IN DOUBT: THE PSYCHOLOGY OF THE CRIMINAL JUSTICE PROCESS. By Dan Simon. Cambridge, Mass.: Harvard University Press. 2012. Pp. 405. $45.00<\/p>\n
I.<\/p>\n
The criminal justice process does not work as well as we think it does. Set aside the overworked public defenders who cannot provide adequate counsel[1]<\/a> and the inordinate reliance on plea-bargaining.[2]<\/a> Set aside improper forensic treatment[3]<\/a> and unreliable informants.[4]<\/a> Set aside the massive discretion mandatory minimums give to prosecutors[5]<\/a> and the accusation that the criminal justice system has replaced Jim Crow laws in the subjugation of African-Americans.[6]<\/a> Look only at jury trials with competent defense counsel, honest police investigators, and fair prosecutors. Even under these idealized conditions, the fact remains: The criminal justice process does not work as well as we think it does.<\/p>\n Dan Simon<\/a>\u2019s In Doubt: The Psychology of the Criminal Justice Process<\/a><\/span> details the damage. While acknowledging that the true rate of false convictions is unknowable, Simon notes that the error rate in capital homicides is approximately 3-4%, and the overall rate of false convictions \u201cmost likely considerably higher.\u201d[7]<\/a> Even these numbers underestimate the defects of criminal justice processes because they include \u201ceasy cases,\u201d which police solve without any investigative effort by detective units and make up the majority of solved crimes.[8]<\/a> In \u201cdifficult cases,\u201d when the investigative resources of the criminal justice system are brought to bear to overcome evidentiary shortfalls, the false conviction rate is higher than the base rate, already over 5%. In Doubt<\/span> turns to social psychology to understand why the criminal justice system so often goes awry.<\/p>\n Although his data in the introduction suggest a coming jeremiad against the criminal justice system, Simon\u2019s goals are more modest. He expressly rejects a \u201cfundamental institutional redesign\u201d in place of recommendations that are \u201cpractical, feasible, and readily implementable in the short or medium term.\u201d[9]<\/a> He moves through stages of the criminal justice process, identifying the ways that cognitive biases derail the quest for accuracy and ending each chapter with a list of recommendations to minimize errors. In the investigative stage, the \u201cadversarial pull\u201d drives investigators to become too confident of suspects\u2019 guilt; eliminating the incentives for clearing crimes could reduce institutional\u2014and therefore internal\u2014pressures.[10]<\/a> Detectives can unknowingly encourage victims to select the suspect out of lineup procedures; \u201cdouble blind\u201d procedures eliminate this potential error.[11]<\/a> Interrogators often coerce suspects into false confessions; convincing them that the confidence they place in their ability to interpret physical cues for truthfulness is exaggerated would reduce this risk.<\/p>\n As Simon proceeds through issue areas at all stages of the criminal justice process, certain psychological phenomena reappear as causes of error. The \u201ccoherence effect\u201d explains people\u2019s bidirectional process of reasoning; just as facts guide conclusions, conclusions radiate backwards and reshape facts.[12]<\/a> Thus when juries learn of an inculpating piece of evidence that suggests the outcome of guilt, they retroactively find an alibi more suspect or an ambiguous composite to more resemble the suspect.[13]<\/a> The effect causes investigators to perceive the evidence as more supportive of their conclusions than it really is, encouraging police to investigate innocent suspects. Months later, the jury may experience the same effect in fitting disparate pieces of evidence into a coherent whole of guilt.<\/p>\n The fallibility of memory also emerges as an issue in several different contexts. Memories are neither as complete nor as accurate as we imagine. Despite common belief,[14]<\/a> memory is not like a video camera. Witnesses cannot know in advance which details of an event are going to be crucial in a criminal trial and simply do not remember most of them. What they do remember is not necessarily accurate. People systematically underestimate distances, overestimate duration, and misestimate speeds.[15]<\/a> Most relevant for Simon, they often misremember criminal events and are unable to accurately identify their perpetrators, despite conventional wisdom that these memories are extremely probative at criminal trials.<\/p>\n Simon presents to the reader a criminal justice system riddled with scores of small inadequacies that all too often accumulate in false convictions. His tone, however, is not that of a firebrand, but a cautious reformer, methodically identifying problems and suggesting fixes.<\/p>\n If anything, Simon treads too carefully in avoiding sweeping conclusions or impugning actors\u2019 motivations. While documenting the \u201cadversarial pull,\u201d detailing how incentive systems push investigators towards the inclination to infer guilt, Simon inserts the caveat that, \u201cThere is reason to believe that most law enforcement personnel in most police departments withstand the adversarial pressures, and conduct thorough and fair investigations.\u201d[16]<\/a> Simon fails to provide the \u201creason to believe,\u201d however, and gives no citation.[17]<\/a> His caveat is implausible; effects on motivation cannot simply be \u201cwithstood,\u201d and alter behavior in subtle and sometimes imperceptible ways. While investigations\u2014perhaps even most investigations\u2014may still be generally fair, they will be less fair in the presence of distorting effects on motivation. The phrasing is also oddly imprecise for an academic work. \u201c[M]ost law enforcement personnel in most police departments\u201d could refer to nearly any number of officers, depending on how many officers comprise the first \u201cmost\u201d and the size of the departments compromising the second.<\/p>\n Simon next writes, \u201cThe adversarial pull, however, is likely to wreak havoc in investigations conducted under intense pressures and performed by those who lack a disciplined professional temperament.\u201d[18]<\/a> While \u201ctemperament\u201d and \u201ctime pressures\u201d likely affect the magnitude of motivational distortions, imagining a fork where the \u201cadversarial pull\u201d either \u201cwreaks havoc\u201d or is \u201cwithstood\u201d entirely oversimplifies motivation\u2019s effects.<\/p>\n Simon\u2019s own motivations likely explain why he\u2014who is so careful not to overreach throughout the book\u2014becomes careless with concepts and phrasing here. The information he presents in the book is radical, yet he insists that poorly designed institutions and subtle psychological phenomena explain many of these errors, not the mendacity of the police or prosecutors. In making the case for good faith actors and technocratic fixes, he sometimes goes too far.<\/p>\n Simon\u2019s general level of caution makes his occasional condemnations more powerful. He reserves his ire\u2014or as close as he comes to it\u2014for practices that plainly do more harm than good and should be abolished entirely. In-court identifications, when a witness identifies the defendant as present in the courtroom during trial, are hollow formalities, as even \u201ca tourist who happened to stumble into the courtroom\u201d could identify the person sitting at the defense table. The practice is useless, Simon claims, but psychologically manipulative, drawing on the emotional response to the performance. Simon finds the practice too worthless \u201cto warrant empirical investigation,\u201d and finds \u201cpuzzling\u201d legal scholars\u2019 indifference to the tactic\u2019s continuance. He recommends not merely reforming the practice but abolishing it.<\/p>\n He reserves a similar fate for composite images of suspects. While the police construct composites with a feature-based process, incrementally adding discrete facial features, memory for faces is holistic. The action of creating the composite can even contaminate the witness\u2019s original memory of the perpetrator, replacing it with the composite itself.<\/p>\n II.<\/p>\n Simon\u2019s recommendations are granular, going out mostly to police departments and trial judges. He rarely mentions legal doctrine; when he does, he often buries a resigned sentence in the middle of a paragraph or a footnote about the Supreme Court\u2019s permissiveness, detachment, or na\u00efvet\u00e9.[19]<\/a> While on the book\u2019s penultimate page he pines generally for a Due Process Clause jurisprudence that demands accuracy, he does not address the constitutional doctrine concerning the more specific concerns he raises throughout the book.<\/p>\n Consider Manson v. Brathwaite<\/span>, when the Supreme Court examined whether the Due Process Clause demanded the exclusion of unnecessary and suggestive eyewitness identification procedures.[20]<\/a> It determined the linchpin of admission must be reliability and laid out the factors courts should use to consider it: \u201c[T]he opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.\u201d<\/p>\n The Court sets out the prongs for a legal test, but the reliability of eyewitness testimony is as much a scientific question as a legal one. As Simon notes, there have been over 2,000 studies on eyewitness testimony,[21]<\/a> and these should dictate \u201creliability,\u201d not prongs the Court laid out in 1977. Some of the Court\u2019s amateur psychology is quite good\u2014as Simon notes, memories fade quickly and the time between the crime and the confrontation is crucial. Some of it is not. While the \u201cwitness\u2019 degree of attention\u201d might intuitively seem to be relevant to preserving memory, high levels of witness stress actually impair identification accuracy.[22]<\/a><\/p>\n While Simon does mention Brathwaite<\/span>, he does so well after Chapter Three (entitled \u201cEyewitness Identification of Perpetrators\u201d), in a footnote, and only to mention that the Court should never have admitted the identification from the case.[23]<\/a> There are several reasons why Simon may be uninterested in the constitutional doctrines that govern the phenomena he deems inaccurate. First, the Court\u2019s insistence on process over accuracy may be so endemic that Simon believes it is unable to regulate smaller questions of the constitutionality of reliability without a broader philosophical shift. Second, police investigations are opaque; much of the information courts need to regulate investigators currently goes unrecorded. Lastly, collecting reliable evidence initially is more important than evaluating evidence later, as the presence of faulty evidence induces other faulty evidence through \u201ctunnel vision\u201d of the investigators and the \u201ccoherence effect\u201d on all involved.[24]<\/a><\/p>\n Two of In Doubt<\/span>\u2019s main themes, however, suggest the potential for constitutional regulation of flawed processes. First, Simon\u2019s primary recommendation through much of the book is electronic recording of police activity, from interrogations, to identification lineups, to all witness statements. Jurisdictions have begun to adopt electronic recording,[25]<\/a> and the trend will likely spread. As more information becomes available, courts will be able to better regulate the investigative process.<\/p>\n Second, Simon notes those present in the courtroom are no more accurate in determining factors like the trustworthiness of witnesses than those examining the cold record.[26]<\/a> The deference that appellate courts give to factfinders is thus largely unearned. If taken seriously, the suggestion that appellate courts should be more aggressive in examining the factual record could also lead to closer regulation of legal processes.<\/p>\n III.<\/p>\n In Doubt<\/span> is a careful and methodical book, one that resists the temptation to rail against the criminal justice system and instead slowly eviscerates it. It sets aside the egalitarian concern that the system works unequally for the technocratic concern that the system does not work at all. Simon writes in his concluding line that, pending reform, \u201c[W]e have no choice but to question the evidence we use and to live in doubt as to who we set free and who we punish.\u201d[27]<\/a> But we do<\/em> have a choice. We can, like the Supreme Court, continue to indulge the fiction that jury trials as currently existing are unparalleled factfinders, or we can begin the hard work of piecing together a system that delivers acceptable outcomes. If we choose the latter, In Doubt<\/span> is a good place to start.<\/p>\n [1]<\/a> See generally<\/span> Rebecca Marcus, Racism in Our Courts: The Underfunding of Public Defenders and Its Disproportionate Impact Upon Racial Minorities<\/span>, 22 Hastings Const. L.Q. 219 (1994)<\/p>\n<\/div>\n [2]<\/a> See generally<\/span> Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial<\/span>, 117 Harv. L. Rev. 2463 (2004)<\/p>\n<\/div>\n [3]<\/a> See generally<\/span> Paul C. Giannelli, “Junk Science”: The Criminal Cases<\/span>, 84 J. Crim. L. & Criminology 105 (1993)<\/p>\n<\/div>\n [4]<\/a> See generally<\/span> Alexandra Natapoff, Beyond Unreliable: How Snitches Contribute to Wrongful Convictions<\/span>, 37 Golden Gate U. L. Rev. 107 (2006)<\/p>\n<\/div>\n [5]<\/a> See generally<\/span> Stephen J. Schulhofer, Rethinking Mandatory Minimums<\/span>, 28 Wake Forest L. Rev. 199 (1993)<\/p>\n<\/div>\n [6]<\/a> See generally<\/span> Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness<\/span> (2010).<\/p>\n<\/div>\n [7]<\/a> Simon at 4<\/p>\n<\/div>\n [8]<\/a> Id.<\/span> at 8<\/p>\n<\/div>\n [9]<\/a> \u00a0Id.<\/span> at 13<\/p>\n<\/div>\n [10]<\/a> Id.<\/span> at 47<\/p>\n<\/div>\n [11]<\/a> Id.<\/span> at 83<\/p>\n<\/div>\n [12]<\/a> Id.<\/span> at 34<\/p>\n<\/div>\n [13]<\/a> Id.<\/span> at 176<\/p>\n<\/div>\n [14]<\/a> Id.<\/span> at 95<\/p>\n<\/div>\n [15]<\/a> Id.<\/span> at 99<\/p>\n<\/div>\n [16]<\/a> Id.<\/span> at 33<\/p>\n<\/div>\n [17]<\/a> The book has 160 pages of footnotes for its 222 pages of content; the absence is noteworthy.<\/p>\n<\/div>\n [18]<\/a> Simon at 33<\/p>\n<\/div>\n [19]<\/a> See e.g.<\/span>, Simon at 132-133<\/p>\n<\/div>\n
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