Stuff You Should Know - How Eyewitness Testimony Works(?)

Episode Date: July 25, 2019

Few things are more compelling than a witness pointing out a defendant in the courtroom as the perpetrator. But few things are also more unreliable than eyewitness testimony. Our memories can be pretty terrible, which matters when you’re facing death row. Learn more about your ad-choices at https://www.iheartpodcastnetwork.comSee omnystudio.com/listener for privacy information.

On the podcast, Hey Dude, the 90s called, David Lasher and Christine Taylor, stars of the cult classic show, Hey Dude, bring you back to the days of slip dresses and choker necklaces. We're gonna use Hey Dude as our jumping off point, but we are going to unpack and dive back into the decade of the 90s.

We lived it, and now we're calling on all of our friends to come back and relive it. Listen to Hey Dude, the 90s called on the iHeart radio app, Apple Podcasts, or wherever you get your podcasts. Hey, I'm Lance Bass, host of the new iHeart podcast, Frosted Tips with Lance Bass. Do you ever think to yourself, what advice would Lance Bass

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Listen to Frosted Tips with Lance Bass on the iHeart radio app, Apple Podcasts, or wherever you listen to podcasts. Hey, everybody, it's Josh and Chuck, and we're coming to see you guys. Some of you, some cities, just listen up. That's right, because we just did Chicago and Toronto, and it went great.

And I think our topic of bleep went really well. Sure did. And everyone loved hearing about bleep. That's right. So if you're in Boston, you can come see us on August 29th at the Wilbur. Portland, Maine, Maine? At the State Theater on August 30th, I can't wait.

I'm gonna it's Labor Day weekend. I'm gonna stay the whole weekend. I'll be all over Maine. That's great, man. Where else? We're gonna be in Orlando on October 9th, and then on October 10th, we're gonna be in New Orleans, man. And then later on that month,

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Hey, and welcome to the podcast. I'm Josh Clark, and there's Charles W. Chuck Bryant, and there's Jerry over there. And this is Stuff You Should Know, the continuing courtroom drama edition. Yeah, this one, I think if you take our podcast on memory and our podcast on police lineups, and they made love, then they would have this baby.

I just came a little aroused, Chuck. Can you tell? Yeah, this is, I guess 2011 was the memory one, so that's been a while. Yeah, also you could sprinkle in a little photographic memory. Maybe that one was just watching. Sure, okay. Jerry's back.

Yeah, I know, hey Jerry, how are you? That's right, good answer. So, Chuck, have you ever been wrongfully convicted of a crime based on eyewitness testimony? Not convicted, but you have been indicted on a crime. Not indicted. You have been accused of a crime. I've been accused of crimes.

Really? I think you should dish about that. You know, crimes against humanity. Okay, I'm gonna take all that as a no, you never have. That's great, but it turns out there are plenty of people, hundreds so far in the US alone, who have been found to have been wrongfully convicted of crimes, big crimes.

I mean, crimes that have put them on death row based on eyewitness testimony. And in the last few decades, it's become really apparent that eyewitness testimony is really not great. I mean, we've known it for a long time, but thanks to DNA evidence coming along, we can now go back and say, yeah, this person is innocent, actually.

Yeah, you want to hear something, a little story? Yes, please. So we worked with a locations person, actually two people. It's a couple on some of the stuff you should know stuff back in the day. I think some of the shorts. Sure, I remember them. And locations, and I'm not going to say their names

or anything to protect them, but they were riding their bikes and were hit and run last week. Oh, no. And she's fine now, but she was in the hospital. It was not great. And they have, I've been following this on social media, they have video from everyone has cameras now, businesses and homes and stuff.

They have video of the incident. They have the car's license plate is clear as day. The car is clear as day. The police have all the stuff, and the police are like, nothing we can do about it unless you have an eyewitness that can say who the driver was. What?

It's the same thing that happened to me in LA when I told that story back in one of our shows. When I got hit and run, and I couldn't identify this young woman in a lineup card. Oh, yeah. And they're like, sorry, she said she didn't do it. I'm like, that's all you got to do is say I didn't do it. But the same thing is happening to them.

They have, you wouldn't believe the clarity of the videos that show this car hitting them and leaving. And they're like, nothing we can do about it. Man, that is crazy. So that's a pretty good example of the law being slow to catch up to the current state of, I guess, the world, basically. Yeah, I mean, they're working the case,

and they're trying to find out who did it. But they can't simply go to the person's house who owns that car and arrest somebody. I guess in a way, though, that it sounds stupid and dumb. But at the same time, it is kind of reassuring, especially with the rise of Deepfakes, which we've talked about, too. You can't just fabricate a video, especially convincing one

to be like, go arrest this person. I guess so. My thought, though, is like, go bring in the person who owns the car, and you will probably very likely find out who was driving it if it wasn't them. Yeah, especially if you are really generous with the rubber hose, you know what I mean? And the D-Lousing.

I've met more of the beating with the rubber hose. No, I know what you mean. Oh, OK. Well, you took it a different direction. I was just thinking of Rambo and First Blood. What, did they D-Lous Rambo? Yeah, they D-Loused him and then hit him with the fire hose. OK, huh.

But all this to say, eyewitness testimony is what's needed in many cases to prove guilt. But it's so unreliable. It's like a joke, almost. It's the gold standard in the American justice system. And I would suspect just about every justice system that if somebody comes into a court and points at them, the suspect or the defendant, and says,

I saw them kill that person. I saw them hit that couple with their car and drive off. I saw them. Other people who make up juries will be like, wow. How are you going to argue with that? You can't. This person's swearing under oath that they saw them do it. They don't strike me as a liar.

They don't seem to have anything to gain from lying about this. So I'm going to go ahead and believe this person and convict. But like we've kind of been toying with a little bit and saying eyewitness testimony isn't great. You don't have to have some sort of vested interest in sending someone to prison. You don't have to be outright lying to basically send someone to jail who's actually innocent

based on your own testimony. And while you're doing this, while you're testifying in court, you might actually fully believe what you're saying, even though what you're saying is fabricated. And actually, you don't really recognize the person that you're saying you saw commit this crime. Yeah, and a jury is way more likely to convict if you're like super, super sure.

And you're like, oh, no, that was the person. I am 100% positive, but as we will learn as we impact this topic, that confidence in court is not there from the beginning necessarily. Yeah, yeah, that's true. But if you think that confidence sells it, if you have a cocky witness, they'll just kill the defendant on the spot.

So like, are you 100% sure? And they go, what did I just say? Exactly, that kind of witness will send you to the electric chair or the lethal injection needle every day of the week. They're called, do I stutter, witnesses. Right, oh my God. All right, let's get into this.

We've been dancing around it quite a bit. It's been a beautiful dance, but let's get into it, okay? Yeah, I guess this 1959 paper kind of says it all. Physiologist, I'm sorry, a psychologist, an attorney named Robert Redmount, said it has been suggested that the presumption is probably warranted to the effect that a random person give an accurate original perception.

Well, in the ordinary course of events, reflect the memory competent to serve most of the purposes for which it is demanded, which that's sort of a long way of saying, eh, memory's good enough, right? Yeah, basically that the average person walking around can serve as a reliable eyewitness to a crime. Basically, and what this 1959 brief is basically saying

is like, this is the state of affairs in the American justice system that if you say you saw something and you say you're pretty sure that what you're saying or what you think you saw is accurate, the court system can rely on you enough to convict somebody. Yeah, but almost to the point where it's like, can we all just get on the same page here

and agree that we'll just believe someone when they say they're really sure? Yeah, I mean, it smacks of that too, for sure. It definitely does. Like, I guess the guy was just trying to shore up any opposition to it. And I mean, that was 1959, but long before that, there were chinks in the armor of eyewitness testimony

and just how reliable it was. So, I mean, people have been using eyewitness testimony for basically ever, right? It's probably the oldest type of testimony that there is in any kind of court or proceedings or anything like that. But starting in the early 20th century, as psychology kind of developed,

one of the first things that psychology took on was the reliability of memory and eyewitness testimony. And one of the first people to take it on was a psychologist named Hugo Munsterberg. I got the umlaut, correct, thanks, man. Nice job. He wrote a book called On the Witness Stand in 1908. And he's known still today

as the father of applied psychology. He was a psychologist who said, hey, here's how psychology can help you in your day-to-day life, especially if your day-to-day life is that you're being convicted of a crime based on eyewitness testimony. And he basically showed through a lot of experiments and exercises when he was a lecturer at Harvard

that memory was definitely not essentially just like a film strip or a videotape or for today's kids an MP4 file, you know? That we don't just sit there and record the events going on around us in the world at all times and can go back and replay those events in our lives. And it's an accurate rendering of what we experienced. That's just not the case.

Well, yeah, and this is with students where they knew that they were doing memory tests and quizzes and they knew that they were there to do that and had to focus on this stuff. And you really need to concentrate and remember what I'm about to show you. Yeah, maybe have a sandwich beforehand. Yeah, and they were still inaccurate

and really demonstrated what we all now know is the fact that human memory is very fallible. Like forget about just happening down the street. You got a million things on your mind. You're right in the middle of texting someone and you look up and you see a crime happen. Like that has, after reading this stuff, it seems like very little probability

of you getting that stuff right. Right, yeah, I saw somewhere that smartphones in general are they're good in that, you know, they can help capture video of a crime or a photo of a crime. But at the same time, they really make a lot of witnesses unreliable because everyone is so distracted by their smartphones that they don't really see what's going on or don't,

you know, they might have otherwise been a really good witness, but they were kind of glued to their phone at the time. I mean, that's true about everything when it comes to smartphones. Yes, man. I wasn't paying attention, I was looking at the phone or the people that, you know,

if I can complain about concerts again for a moment. Go ahead, man. The people that videotape the entire songs are usually looking at it through their phone and that's the worst possible way to experience a live musical moment. It really is, especially when you consider that they will probably never go back and watch that video.

Yeah, Justin, my buddy, my tall British friend, he yells from behind them so you can hear it on the video, you're never gonna watch it as loud as he can, which is great. He's probably right like 80% of the time, I would say. Yeah, but I would like to see the next day where some of those people watch it and they hear Justin in the background screaming,

you're never gonna watch it. They're probably like, what is that guy talking about? Or the person watching is like, I showed that guy. Right. So Hugo Munsterberg, he wrote this thing on the witness stand basically saying, we should not just, you know, take everyone's word for it when an eyewitness comes forward in a criminal proceeding.

Like there's problems with memory and I've just demonstrated it. But his writings were largely overlooked because during World War I, he was from Germany but he became a German-American. He wandered around vocally supporting Germany during the First World War, which is not something you wanted to do back then.

No, it's not a good way to get your book out there. No, so he was basically just ignored for many, many years even though he was one of the first psychologists to take up this mantle. And it wasn't until about the mid-70s that psychology again took this up. And there were two psychologists in particular, a guy named Robert Buckout,

who basically was the first to be like, memory is not a videotape is one way to put his research. And then another psychologist, a very famous psychologist named Elizabeth Loftus in the later 70s, a few years after Buckout, was really the one whose work kind of captured the popular imagination and made us all realize that we're just total frauds

when we're recalling a memory. Well, yeah, and with the advent of DNA evidence and when all it took was a building up of cases being overturned because of DNA evidence where eyewitness testimony that was 100% positive was directly overturned. You get enough of those mounting up. And then all of a sudden,

the United States has a problem on their hands and they have to say, well, maybe we really need to look into this whole thing about memory and eyewitness testimony not being super reliable. Right, let's take the next 30 years to mull it over basically. Sure. So yeah, that was the Innocence Project in particular.

There have been people working to exonerate people based on faulty evidence, which really got a punch in the arm or shot in the arm after DNA evidence like you were saying, but the Innocence Project in particular was started in 1992 and they've got like, I think 365 exonerations under their belt. One for each day of the year.

Exactly, they do it on the daily. We did a show on that too, so. Yeah, you remember? Our world is closing in. We talked to Paula's on. That's right. So I can tell by that sigh, I think you're ready for a message break.

You wanna take one? Yeah, I'm just gonna Google some, some Paula's on, trying to remember who she was. All right. We'll be back right after this. On the podcast, Hey Dude, the 90s called David Lasher and Christine Taylor, stars of the cult classic show, Hey Dude, bring you back to the days of slip dresses

and choker necklaces. We're gonna use Hey Dude as our jumping off point, but we are going to unpack and dive back into the decade of the 90s. We lived it, and now we're calling on all of our friends to come back and relive it. It's a podcast packed with interviews, co-stars, friends, and nonstop references to the best decade ever.

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or wherever you get your podcasts. Hey, I'm Lance Bass, host of the new iHeart podcast, Frosted Tips with Lance Bass. The hardest thing can be knowing who to turn to when questions arise or times get tough, or you're at the end of the road. Ah, okay, I see what you're doing. Do you ever think to yourself,

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or wherever you listen to podcasts. All right, so, Chuck, we've been talking a lot of smack about the human memory. Let's back it up with some facts and figures and stuff, OK? Yeah, I mean, there have been, like you said, the past 30 years is when the United States started doing, I just said, United. Started doing more and more studies on the human memory

and how accurate it is. And it has really exposed the flaws and biases. And it's really not even, I mean, it is memory, but it's also perception. Right. And what we perceive is going on. And there are a lot of, like, we don't all agree on what perception even means.

And there are a lot of different theories about how we can get through life. And there are a lot of different theories about how visual perception works. Yeah, there's, like, a twofold issue with memory. There's the formation of memory, and then there's the recall. Right? So with the formation of memory, it's

like, yeah, if you can't agree on what constitutes reality, you know, it makes it really tough to perceive reality in, like, a standard, uniform, objective way. But you can form a wrong memory. That's like, that should stop everyone cold in their tracks. Right, exactly. And there's basically two ways of looking at how we perceive reality.

And it is either reality exists in some way that we don't perceive, and we kind of paint this picture that we think of as reality, but that's not actually really reality. Or reality is reality, but we just kind of perceive it as a piecemeal in order to save energy, save time, save storage space, whatever. But the upshot of both of these, and I really

want to do an entire episode on the nature of reality someday, OK? Sure. But the upshot of these theories on what reality isn't how we perceive them is that we basically take what we need from the environment, from whatever scene we're observing, whatever, and then we kind of fill in the blanks to create this complete picture.

And in doing so, if we're just kind of walking through a meadow or something like that, enjoying the day, that doesn't really matter, right? We can kind of recall what the butterfly that flew by looked like, what its colors were, what the trees looked like. But if we really dig in, did we actually look at the trees that kind of provided the backdrop of this scene?

Or is it just kind of a conception of what trees in general look like in that situation that our minds filled in? And when people started thinking about this stuff, not just psychologists, but neurologists, philosophers, all these, a lot of different people, trying to figure out how we go through the life and reality and perceive the world, it became really apparent

that we do a lot of shorthand construction as we're kind of moving through life. And when we're walking through a meadow, not that important. When we're convicting a person of robbery and murder, then it does become important. And it is an issue that we just kind of fill in the blanks to create a whole picture that didn't necessarily happen. Yeah, I don't know if anyone listening has ever

seen the hollow mask illusion. That has to do with Gestalt theory, basically, that our perceptions are based on perceptual hypotheses. So that's us making these educated guesses about the sensory information that our eyeballs and our ear holes. And we should point out that eyewitness testimony can mean audio, like something you overheard as well. I don't know how well other senses have performed in court.

I was thinking about that. I guess, did you smell a chemical smell or something like that? That would be one, but I mean, I don't know what else you would, like, did you feel the murderers touch? Taste, I don't know. Did you lick the guy who was robbing the gas station?

But if you look at the great example of Gestalt theory and that perceptual hypotheses is the hollow mask. So if you go online, there's one very famous one of Albert Einstein. And it's basically someone will show you what looks like a mask of Albert Einstein. It's face, and then they start to turn it around. And about halfway through, you realize

that you were looking at the inside of that mask and not the outside of that mask. And it's painted, of course, but it's still concave. So it shouldn't look convex, but yet it does. And it's a mind trick and it's really freaky. It is, but it also just kind of goes to show that our brains leap to conclusions, basically. Yeah, absolutely.

Another thing is that the whole Darwinian approach is basically if you're in a dangerous situation, your brain is gonna quickly decide what's most important to pay attention to in that scene. And that will, of course, skew reality depending on what's going on. Plus also, so that's point one, our brains fill in the blanks,

probably more than we realize to create our idea of reality and memory, right? Yes. And even when we're actually actively taking in information, just how good, say, like our eyesight is, or our hearing is. Or how good the lighting is on a street, or... Exactly.

And that's one thing that defense attorneys, in particular, will try to attack is things like that. Like, do you wear glasses or contacts? Have you ever had Lasik? Was it raining out? Was it nighttime? How far away were you? That streetlight was under repair.

We have records. Exactly. And the whole courtroom goes, oh. Yeah. Yeah. It's the big moment. And Perry Mason shoots a duck. Perry Mason farts in court?

I didn't say that. I said he shoots a duck. All right. It was his thing, at least at first in the early episodes. And then the producers were like, this isn't going anywhere. We're gonna drop this as his thing. Your honor, I object.

Huh? Right. That's right. That was from episode three. Yep. Oh, boy. So there has to be a standard here, though, when it comes to court and how well people see.

I mean, it can't... I mean, it is case by case, in that every case is its own unique thing in court. But there has to be some sort of standard, as far as like, how well does somebody with 2020 vision see, for instance? Right. And there's a guy named Jeffrey Loftus,

a researcher from, I believe, is it UW? Yeah, UW. And he kind of developed this formula on 2020 vision over distance, which basically says at 10 feet, you might not be able to see eyelashes on a person's face. Right.

200 feet, you may not be able to see eyes. And at 500 feet, you could see a person's head, but it's just a big blur. So like, this could be, and is this the standard that they use in court? I think he's trying to make it a standard. And I'm sure he gets called on as a professional witness and says all this,

but I don't believe it's an actual, like it's been judged to be like the standard. Like they don't whip out a chart in court. No, but I think if you really wanted to get the point across, you could do worse than hiring Jeffrey Loftus. Yeah, and I imagine don't they also do, do they test these people?

I don't know. I think if you have a really good defense attorney, you could probably ask that a witness, if not go to an optometrist, at least have their optometrist records subpoenaed. Or in the dramatic TV or film version, you see the, your honor, if I may step to the rear of the courtroom

and you do that move. Right. And then, you know, you hold up two fingers and you say, how many fingers am I holding up? And then what? And then Mr. Brady crosses a briefcase and the guy with the neck brace on turns his head. What a chump that guy was, he was not committed.

No. That's so great that you said that because it was between that or a Perry Mason joke for me if I was going to swoop in. Okay, I don't know much Perry Mason. Did he fart in court? No, I just totally made that up. I don't know anything about him either.

No, it was Raymond Burr. Oh, sure. Oh, no way. He was Ironsides or was he both? He was both, buddy. But I mean, if there was ever somebody that looked like he'd fart in court, it's Raymond Burr, you know?

Even like put together clean shaven Raymond Burr from Perry Mason. Yeah, he does look gassy, doesn't he? A little bit. So, okay, moving on Chuck, there's also the problem that researchers have found that we humans have a finite amount of attention, right? And if there's a bunch of stuff going on at once

or we have to pay attention to multiple things in quick succession, it's been found that there are a lot of problems with that. That we don't really do real well with fast-paced stuff coming at us, especially when we're stressed out or in a high stress situation. Yeah, it's like this stuff is really neat.

There's something called attentional blink, not intentional, attentional. And that's when, like when you're just looking around at things anywhere you are, it feels like one big fluid thing where you're taking in everything. But that's not really happening. When you, you know, if I'm looking at this coffee cup

and then I look up at your face, there's something called attentional blink, which is a little blip, less than a second, where there is, I guess, just an interruption in input. Yeah, in your attention. Yeah. You know, you're shifting from one thing to the other, and it's not a fluid motion, it's kind of like a hiccup.

But you don't notice this. No, you don't. It all blends seamlessly because your brain is filling in these little gaps. But during that period, if something really vital happened in that, say, half of a second span, you might not notice it. And because we've already seen that our brains

tend to fill in information to create a smooth picture of reality, that could be problematic for the person who you're saying you saw do something or didn't see. That's right. The other thing about attentional blink too, is that it really kind of points out that if we are really focused on one thing,

we might miss another, that our attention is very selective. Like a smartphone. Basically, yeah. Yeah, you know, if you're like into your smartphone, you're not paying attention to stuff going on around you. Even if like you're driving, like if you're driven up next to somebody

and they're driving like 30 miles an hour under the speed limit, which supposedly is safe, but you know, they're on their phone and you honk at them and like flip them off and like throw a rock at their windshield, that kind of thing. And they don't even look up. Yeah, they don't know you're there.

No, they have no idea. That's kind of the same thing. But there's this really amazing video that I hadn't heard of, but these two magicians I know, Jared and John, who I hope are working on a podcast about this kind of stuff. They pointed it out, did you go see that video that was linked in this article?

Which one? The one that was created in 1999 by Daniel Simmons and Christopher Shabris or Shabri, where it's the ball passing video. Oh, yeah, yeah. Okay, so I don't want to give anything else out about it. Yeah, totally. Everybody just go look up 1999 Daniel Simmons

ball passing video and prepare to be amazed. But it really drives home like what the, just how focused we can become at the expense of other information. That's right. What else, Chuck? Well, there's something called the psychological refractory period or the PRP.

And that's when if two things, if two cognitive tasks, and this can include you seeing things, if they arrive really closely together, there's a bit of a lag time between when we process these two things, that first thing and then that second thing. So if these things are coming in quick succession or they are very intense

or there are a lot of different stimuli, there is a little bottleneck, a processing bottleneck that can occur. And especially in like a scary experience, like if someone sticks a gun in your face or something, the big example that you always hear is like what was the weapon? Was it a gun or a knife?

And it's been kind of shown time again, if you're, if you are, if someone comes and sticks a gun in your face, you're gonna have your attention on the gun and more so than the face. So you might not be able to recall what your perpetrator looked like. You may have more information about the gun,

which is a little helpful, but not as much as their face. Yeah, you know, I think I told you before that time that Yumi got mugged, she was not focused on the gun and did not know that the guy had had a gun on her. And her friends, when she was asked if there was a gun at the cop station, she's like, I actually don't know. Like she didn't process the gun.

And her friends were like, yeah, there was a gun, the guy had a gun, which is, I hadn't realized, like I get that, you know, not processing something because of a stressful situation, but it's funny that's like the opposite, apparently, of how it usually is. Yeah, and I think you can sort of train yourself. I mean, hopefully this kind of thing doesn't happen

over and over again to Yumi or anyone else, but like I've sort of told myself, like if anything ever happens, try and keep your wits about you and take in as much detail as you can and like repeat it in your brain over and over. That's just good advice for like daily living. Sure.

That's mindfulness, I think. Yeah, that's a good point. I told you before, I think it was the police lineups one that she was able to pick the guy out in the lineup. So maybe she was focused on the guy's face and was missing the gun rather than the opposite. Exactly, was that a finger in your pocket? Right.

Don't say the second part. So I'm not going to, I'm just gonna leave it up to the listeners, dirty, dirty listeners minds. So there's also another one for forming memories that has kind of confounded researchers for a while. And it's called the own race bias or cross race effect. Yeah, we talked about this in police lineups, didn't we? I feel like we did,

but I think it's worth going over one more time. Sure. So it basically is, it says that if you are a witness and you witness a crime that's carried out by somebody from another race or ethnic group other than yours, you're going to have a harder time recognizing that person than you would if they were a member of your own race or ethnic group.

And so it seems easy-peasy, well, that you're just a racist and everybody of another race looks alike to you. That's not the case. They found that people who score low on questionnaires about being prejudiced also are subject to the cross race effect and that it's across the board for everybody of any race, they're all equally subjected or they're equally, what's the word?

Victims of it, I guess. Mistaken. Yeah, it's in there somewhere. Misidentified? No, they're equally susceptible. Susceptible, we got there, we got there Chuck. Yeah, that's true. And that's really interesting.

Like you could test out as the least prejudice person on the planet and still misidentify someone from another race. Yeah, and they think that different races have different defining characteristics and that you as a child and probably well into adulthood are kind of trained to pick out the identifying characteristics of people of your own race,

which doesn't necessarily apply to people of other races. And so people really are bad at distinguishing different members of different races, not because they're racist and everybody looks alike, but because they're looking for the wrong cues, distinguishing cues. Yeah, and sometimes people can look like other people. Sure.

It's in the famous cases section, I'm gonna go ahead and pick one out of there. Oh yeah, I know which one. Very famous case of Ronald Cotton in 1984, he was identified as the perpetrator of a rape, sentenced to life in prison. And I went back and I looked at the person who eventually was found out to be the,

he was exonerated, Cotton was, but the real guy, Bobby Poole, that I saw side by side images, these guys look a lot alike. They look a lot alike. Like their noses are different, but if you block out their nose, the lower half of their face and their eyes and forehead

are really, really similar. And I think that's just a case of really bad luck. It was really bad luck, it ultimately pan out to be really good luck, but I mean, the victim, the eyewitness was the victim, a woman named Jennifer Thompson. And during the rape, she did, she took your advice and like kept her wits about her as much as possible

and took the opportunity to study the guy's face. But because Poole and Cotton look so much alike, there was a case of mistaken identity of a witness who actually, as we'll see, was kind of unsure at first, but became more and more confident, which is a big problem. But when Cotton was exonerated, Jennifer Thompson and Ronald Cotton went on to write a book about the whole thing together.

Yeah, they're friends, they got to be friends because she experienced a tremendous amount of guilt for identifying this man and him serving time for something he didn't do. And yeah, they wrote a book together, which is now, I was like, oh man, that's tell me that's gonna be a movie soon. And as of like a couple of months ago,

it was optioned to be a film. Nice. It's called, the book's called Picking Cotton. Oh my. Yeah, I know. Picking Cotton, Colin, our memoir of injustice and redemption. Semi-Colin.

Oh God. So yeah, the good luck he had though was that Bobby Poole and Ronald Cotton were in the same jail together and they were frequently mistaken for one another. That's how much they really looked alike. And I guess Bobby Poole blabbed to another inmate that he was the one who had really raped Jennifer Thompson

and that cotton was in there wrongfully and that word got around. And then finally, thanks to DNA evidence, Ronald Cotton was excluded from the crime. Yeah. Nice ending to that story. It is. That's the only one in the list

that does have a nice ending though. That's true. So here's the other thing with eyewitness testimony or should we take a break? That's to you, pal. All right, let's take a break and I'll tell you about that other thing right after this. On the podcast, Pay Dude the Nineties called

David Lasher and Christine Taylor stars of the cult classic show, Hey Dude, bring you back to the days of slip dresses and choker necklaces. We're gonna use Hey Dude as our jumping off point, but we are going to unpack and dive back into the decade of the 90s. We lived it, and now we're calling on all of our friends

to come back and relive it. It's a podcast packed with interviews, co-stars, friends, and non-stop references to the best decade ever. Do you remember going to Blockbuster? Do you remember Nintendo 64? Do you remember getting Frosted Tips? Was that a cereal? No, it was hair.

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as we take you back to the 90s. Listen to Hey Dude, the 90s called on the iHeart radio app, Apple Podcasts, or wherever you get your podcasts. Hey, I'm Lance Bass, host of the new iHeart Podcast, Frosted Tips with Lance Bass. The hardest thing can be knowing

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And so will my husband, Michael. Um, hey, that's me. Yep, we know that, Michael. And a different hot, sexy, teen crush boy bander each week to guide you through life, step by step. Oh, not another one.

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and make sure to listen, so we'll never, ever have to say, bye, bye, bye. Listen to Frosted Tips with Lance Bass on the iHeart radio app, Apple Podcasts, or wherever you listen to podcasts. So here's the other thing

about eyewitness testimony. All right. Is that, uh, like you have to do this a bunch of times. It's not like you identify someone in a police lineup, and then you're in court the next day. Right.

You identify someone in a lineup, and then you're going to get grilled by cops after that. And then you're going to get talked to by your attorney beforehand. And you're going to be recalling this and describing this scene and this, uh,

who you think is a perpetrator a lot of times. And every time this happens, um, something can go wrong with your recall, basically. Yeah, yeah. And so, I mean, like we've talked

about this so many times, but every time you recall a memory, you are adding to it. You're, um, you're adding more information to it. Right. And that information can be incorrect or flawed.

And if we, if our brains kind of strive to create as complete a picture as possible, if the memory originally is incomplete, the more we recall it, the more we're going to round it out to create this,

this, this picture. And since part of the process, like you're saying of going through the criminal justice system as an eyewitnesses to recall over and over and over again, by definition,

that process, um, leads to contaminated evidence. In this case, the evidence of an eyewitnesses, um, testimony. Yeah. And, you know,

not to mention when cops get in there and they ask leading questions a lot of times and even this one example is really great. Even swapping out one word. One. That you might not think matters

if, if you hear the questions, did you see the broken headlight as opposed to did you see a broken headlight? That takes on a whole different meaning because in that first one, the cop is basically saying there was a broken headlight

and did you see it? Not was there one? Yep. That's called the misinformation effect and it can be as innocuous as that. It can be purposeful. Like if a cop believes that the suspect is the one,

um, cops have been known to ask leading questions. And when you have, uh, an eyewitness who's kind of so, so on something, after a few leading questions

and they're answering, they can become more and more confident in their, um, in their, their memory, their recall of the event. And then that coupled with the fact that, well, this is the right person,

obviously, because the cops wouldn't be prosecuting, um, or arresting somebody. If it wasn't the right person, that just gives the whole thing even more confidence.

And studies have found over time, the more confidence, um, or the longer, um, more often a memory is recalled, the more confidence grows associated with it. And the less accurate it may be.

Right. Right. So there's this, there's like a, um, a negative correlation over time between confidence and accuracy

of a, of a memory. Over time, that's a big distinction that we'll get into later. But the longer it goes on, so say like a, from the time a crime occurs

to the time the court date comes or the trial starts, it could be a year and you, the eyewitness might have had to recall this for half a dozen people,

at least, not to mention all the friends and family that you've shared the story with. And so what a lot of people say is by the time, maybe the second, third, fourth time you're recalling this,

you're not recalling your original memory any longer. You're recalling the story that was helped to be fabricated by the cops and the prosecutors. And in some part by yourself, just from telling this,

you're recalling the story. You're not recalling the actual memory. And that's a real problem because that's how people get wrongly convicted by eyewitnesses who go into court and say,

I'm a hundred percent certain that that was the person that I saw commit that crime. Yeah. And the thing, I mean, if you just think about in your own lives,

not, I mean, forget crimes and forget courtrooms. Like just think about stories that you like great stories from your life that you've told

a bunch of different times about this one time when like, these become so burned in your brain as these great stories that like I'm always curious to like I wish I had video of these stories

as they happened because it'd be kind of fun to go back and see this funny story about when like my friend and I got shaken down by the Texas Highway Patrol. Like I tell the story all the time.

But it turns out, I wonder what really happened that day though. Right. And like by the, by the end of the story, by the time the story is told, it's like Chuck Norris

himself is Walker, Texas Rangers doing the search or my ghost story in Athens. Like to me, I tell that story exactly as it happened. But who knows? Well, yeah,

it's kind of like you're playing a game of telephone with yourself over time. You know, like stuff just gets kind of muddled and and again, normally this doesn't matter, you know, unless you happen to be

telling a bit of a fish tail to somebody who can't stand fish tails and calls you out on it. It doesn't really matter, right? Like it does matter in a court of law and the fact that the courts

have continued to pretend like this, this isn't an actual implication of the human memory. The human memory is actually infallible and just continued on with eyewitness testimony has been a problem in the past.

I'm not sure if we've gotten that across or not yet. And consider this too, that juries, I mean, we talked about that confidence building over time. By the time you get to that jury

and you are super confident, that's going to have a huge impact. Juries are going to be far more influenced by a confident witness than someone's like, hey, I'm pretty sure, but you know,

if I'm really being honest because I'm on the witness stand, I can't be a hundred percent sure. Yeah, that is a rare eyewitness from what I can tell that that by the time the trial comes along,

they have been so prepped and guided and have become so confident that from what I can tell, it would be really rare to hear an eyewitness be like, I'm not so sure,

maybe they probably wouldn't make it to the witness stand because the prosecutor doesn't want somebody like that on the stand. So what you're going to hear in court is, yes,

I'm absolutely sure. And you know, juries are just normal people. They're not doing the research on, you know, the possible infallibility or the possible fallibility

of eyewitness testimony. So it's up to the the defense attorneys to kind of poke holes in this stuff. And so they will. But for a long time, this was really surprising to me. I had no idea.

Courts wouldn't allow expert testimony that basically taught jurors how many problems there are with human memory and that eyewitness testimony is not all it's cracked up to be and that not only should you not be wowed

by the confidence of somebody who comes into court a year after the crime is 100% certain, you should probably discount that testimony altogether. Yeah. And the reason that they weren't allowed

is that they claimed that was common sense. Like everybody knows that our memories aren't great and eyewitness testimony probably isn't great. Whereas it seems to me obvious that you would want to get

an expert in there to at least explain this stuff. Especially in like a capital case. Yeah. I mean, you can still make up your own mind, but at least know the facts and the science behind

eyewitness identification. So you can like take that into consideration as a juror. Right. That's just not the case. That wasn't it. But then apparently they started turning

overturning convictions because the expert witness on eyewitness testimony was disallowed. Right. And once that started happening they started allowing them in the actual trials.

But that's kind of like if you have a defense attorney and you're being tried for a really important crime that you could get some serious time for. You want that attorney to bring in a witness

an expert witness on eyewitness testimony for sure. Yeah, the Supreme Court themselves in 1977 ruled 72 that eyewitness testimony is constitutional. It does not violate

the 14th Amendment. Even if it's suggestive but they said it was subject to five factors that just depends. It's a case by case thing. But the witness's degree of attention.

Right. So you have to determine that. The opportunity of the witness to view the criminal at the time of the crime. Right. So I guess just literally physically were you able

to see this happen, right? Or smell or hear or lick the criminal. The accuracy of the prior description of the criminal. That's a big one and that still holds up today.

Yeah. Like if you told the cops initially that the guy had a mustache and you didn't have a mustache you're going to hear about that from the defense during the trial.

And we'll get into that later on. But that you know that sort of virgin description is that the right word to use? I love it. Is the one that really should count. Sure.

All right. And then what were the last two factors of the five? The level of certainty demonstrated at the confrontation. And by confrontation they mean that that's the thing that you always see

on like courtroom dramas where the witness they say, you know, do you see the perpetrator here today? And the witness says, yes, that man there. And then they say,

let the record show that the witness is pointing at the defendant. And then Perry Mason farts. Right. That's the particular one that's under attack today because they're saying like

how certain does that witness seem when they confront the defendant in court? Right. And then the last one is the time between the crime and the lineup. Like, you know, was it

if the witness saw the crime and then the cops don't catch the person for, you know, three months. Is that too long? Yeah. Like, does the witness become

unusable at that point? And those five, those were the tests for constitutionality of an eyewitnesses testimony. Yeah. I think those are five pretty decent factors to consider.

Yeah, except for the one, the one about the certainty demonstrated at confrontation. And that's the big battle today because some people are like, look, man, if human memory is that fallible, maybe we should just get rid

of eyewitness testimony all together. Right. But now I think is the approach like, hey, why don't we just treat it like anything that can be contaminated from, from like physical evidence? Like, why don't we just treat this like physical evidence and say,

you know, it was that again, that virgin identification is the one that counts and everything after that is tainted. Yeah. And so everybody on this, there's a, there's kind of a battle over just how much confidence

relates to accuracy and memory. Yeah. That's the crux. Right. But both sides say everything after that first recall, whether it's telling the cop on the scene of the crime,

what you saw, or whether it's the lineup, wherever it is, the first memory test is what it's called. The first time you do that, that is the only evidence that should be admissible. And everybody can talk

about that evidence and you can come to court and describe that evidence. But every other time you recall it after that, it should be considered contaminated evidence just as much as you would consider somebody dropping a blood on,

a blood sample as contaminated or smearing a fingerprint as contaminated. Same thing. That's the big, the big crux. Everybody says, disregard everything after that.

Where they disagree though, Chuck, is just how much during that first, that first memory test, how much confidence is correlated to accuracy. Right. And some people say it's very highly correlated. Like one guy said that in,

I think 15 different experiments, they found that the, that accuracy was 91%, 97% accurate. Confidence indicated a 97% accuracy. And other people are like, that's flim flam. Don't listen to that guy.

But that's the battle that's going on right now. But everybody agrees that whole courtroom, that's the man right there, that that shouldn't hold any water whatsoever. The problem is that holds the most water because that's what's done

in front of a jury. These are human beings, you know, someone might carry that kind of confidence in every area of their life. Whereas someone else might be very unsure about everything in their life and that wouldn't be a time for them to be like,

you know, someone who's not very confident, it's probably going to have a hard time being super confident about something this important. Sure. You know. But you also could imagine that that person would maybe be more easily coached

than somebody who does have a lot of self confidence. Coach them up. Yeah. Isn't that the phrase? That's what it says. The t-shirts say. Coach them up. So you want to go over any of these other ones?

I guess we can. I mean, this is all sort of innocence project stuff. I mean, there's certainly been plenty of examples over the years. I think of the 300 and well, how many? You said there's 352 now. 365 that I saw. 365 convictions.

At this time, let's just say it was 349 that they had overturned. 70% of them were based on the testimony of an eyewitness and this is just death row. Like forget muggings. Yeah. I don't know if it's all just death row or not, but some of these two were not just single witnesses,

multiple eyewitnesses, which if there's one thing that basically says there was a cop or a prosecutor who coached everybody to basically share the same story, that's it. It's an overturned conviction with multiple eyewitnesses that DNA evidence shows were all incorrect. Yeah. This one right here was especially maddening Jerome White

in 1979 was convicted of rape and robbery and he was exonerated 12 years later, but the real guy who did the crime was in the actual same lineup where White was identified. Yeah. So that one's especially tough pill to swallow. The one that gets me, do you remember Troy Davis? Oh, yeah.

Like back in 2011, Georgia executed Troy Davis for the murder of a cop, Mark McPhail. Savannah, right? Yeah, Don and Savannah. And there was no physical evidence and no weapon. Nothing tied Troy Davis to the crime except for nine eyewitnesses, seven of which recanted their testimony. And there was a big deal because a lot of people are like,

it looks like Georgia is going to execute an innocent man. We need to get this commuted to a life sentence so we can try to figure this out. And there was a petition that went around. I remember signing it. There was 660,000 signatures on this petition and it still didn't get his sentence commuted and Georgia executed what was almost certainly an innocent man

for the murder of Mark McPhail. Yeah, that was tough. Which also means that the murderer of Mark McPhail is still out there somewhere. Yeah, I think that's not mentioned enough in these cases. Like it's obviously we should think about the victim and the second victim, which is the person falsely accused. And then there's also a murderer out there, maybe.

Yeah, that's another episode I want to do is times when almost certainly innocent people were executed. Okay, that'll be a fun one. That's a good title for the episode. You've got to put the um in there too. Well, that's it for eyewitness testimony unless you have something else. I got nothing else.

Well, Chuck says nothing else. I got nothing else. So that means everybody, it's time for listener mail. This is a very sweet email. Hey guys, on Father's Day in 2015, our son Aaron died from cancer at the age of 40. One of his last wishes was for his beloved Australian shepherd dog, Scully,

to live on a family farm with some wonderful friends he knew from Pennsylvania. Scully was with us in Southern California at the time. So I began looking at options to send her back and it became obvious that driving Scully to Gettysburg was the only true way to say goodbye and carry out Aaron's wish. I announced to the family I was taking her back

and our daughter, who had come home to be by his side while he was in hospice, quickly said she wanted to come with me. Without any further delay, the three of us took off across the country. After a few hours of listening to the radio, our daughter, Brandy, said, do you want to listen to some podcast? Sure was my response.

What's a podcast? She plugged in her phone and started an episode of stuff you should know. And from that moment on, for the next four days, we listened to an endless stream of you guys. I wanted to thank you for helping us cope with the pain and heartache we were dealing with. Your banter and fun were very therapeutic

as my daughter and I traveled across country with our thoughts and Scully. Being with my daughter and sharing all this time together with you by our sides was one of the best experiences of my life given the circumstances. I now listen to you guys often and my daughter even bought me a Jerry quote blank t-shirt. That's a good one.

As a reminder of our time together. And that is from Doug and Brandy Bell. Thanks a lot, Doug, and thanks a lot, Brandy. I like the cut of your jib for suggesting stuff you should know. Yeah, terrible circumstance, but I'm glad Scully's on that farm in Pennsylvania. Thanks, Doug. Thank you, Brandy.

And on behalf of all of us, our deepest condolences, we're glad that we could have some small part in making it a little better for you. Absolutely. If you want to get in touch with us like Doug did, you can go on to stuffyshouldknow.com and check out our social links. You can also send us an email to stuffpodcast

at iHeartRadio.com. Stuff You Should Know is a production of iHeartRadio's How Stuff Works. For more podcasts from iHeartRadio, visit the iHeartRadio app. A couple podcasts are wherever you listen to your favorite shows. On the podcast, Hey Dude, the 90s called David Lasher and Christine Taylor,

stars of the cult classic show Hey Dude, bring you back to the days of slip dresses and choker necklaces. We're going to use Hey Dude as our jumping off point, but we are going to unpack and dive back into the decade of the 90s. We lived it, and now we're calling on all of our friends to come back and relive it.

Listen to Hey Dude, the 90s called on the iHeartRadio app, apple podcasts, or wherever you get your podcasts. Bye, bye, bye. Listen to Frosted Tips with Lance Bass on the iHeartRadio app, apple podcasts, or wherever you listen to podcasts.