News and Commentary Archive

Explore recent scientific discoveries and news as well as CLBB events, commentary, and press.

Mission

The speed of technology in neuroscience as it impacts ethical and just decisions in the legal system needs to be understood by lawyers, judges, public policy makers, and the general public. The Massachusetts General Hospital Center for Law, Brain, and Behavior is an academic and professional resource for the education, research, and understanding of neuroscience and the law. Read more

Eyewitness Testimony Is Unreliable: The SJC Tries To Reform Its Use

In August 2014, CLBB partnered with the American Psychological Association to submit an Amicus Brief to the Massachusetts Supreme Judicial Court (SJC) which outlined the latest neuroscientific understanding of eyewitness memory. The following January, the SJC issued an opinion in Commonwealth v. Gomes that changed eyewitness testimony law. This article discusses the reforms the SJC is making to account for the fallibility of memory.

By Daniel S. Medwed | WGBH | September 25, 2015

The Massachusetts Supreme Judicial Court (SJC), the state’s highest, enjoys a storied place in the annals of progressive legal thought.  Among its many notable achievements, the SJC laid the groundwork for the national recognition of same-sex marriage by the U.S. Supreme Court last June through its innovative 2003 decision in Goodridge v. Department of Public Health, the first major case upholding the right of gay couples to wed.

The SJC may well be on the cusp of another trailblazing decision that could also legal resonate across the nation. It has recently taken up an issue near and dear to the hearts of many critics of American criminal justice policy: the problem of eyewitness misidentification.  Continue reading »

Should Cops Get to Review the Video Before They Report?

By Kathy Pezdek | The Marshall Project | August 13, 2015

The scenario is all too familiar. A police officer with a dash-cam or body camera stops an individual, the situation escalates, the individual is apprehended, a charge is made and the individual is arrested. The question is whether prior to being questioned or even prior to writing a report, should the officer be permitted to view the recorded footage?

Philip Eure, the Department of Investigation’s Inspector General for the NYPD, recently recommended that police officers be prevented from viewing recorded footage before giving a statement to investigators. Quick to respond, New York’s City Police Commissioner, Bill Bratton called this “one of the recommendations of the I.G. that we strongly, strongly disagree with and will not support under any circumstance.” His concern was enhancing the integrity of police officers; “I am not intending to use the cameras to play a game of gotcha with the cops.”

This is a complex issue, but one for which cognitive science research provides a clear answer. If the purpose of any investigation is to get the most complete, accurate information possible, then it could be argued that the officer should view the footage, probably multiple times, prior to being questioned and prior to testifying. Human memory is notoriously flawed, but we can consider recorded footage to be “ground truth.” So according to this argument, bolstering the officer’s account by having him view the recorded footage effectively serves to enhance the accuracy of the officer’s report. And it does.

The problem is that in so doing, two independent lines of evidence – the officer’s eyewitness memory and the recorded footage – are no longer two independent lines of evidence. That is, the eyewitness memory of the officer has been tainted by viewing the recorded footage. If in the prosecution of the case the officer is to serve as an eyewitness, and his memory is to be preserved untainted, then it is critical that the officer not view the footage. Continue reading »

America’s Justice System Sure Doesn’t Know Much Science

By Sara Zhang | WIRED | August 3, 2015

JAMES HOLMES WALKED into a midnight screening of The Dark Knight Rises in 2012 carrying three guns including a semi-automatic rifle and opened fire, killing 12 people and injuring 70 more. Nobody, not even his defense attorneys, denied that. But those attorneys still told a jury and a judge that Holmes was not guilty of those crimes—because he was insane. Last month, that jury rejected that assertion, finding Holmes guilty on all counts.

Holmes’ plea didn’t get him off, but it did get people talking about the insanity defense again. It’s a rare move for defense attorneys these days, even quaint sounding. Psychiatrists no longer call patients “insane.” It’s not a clinical diagnosis. Yet the term persists in the courtroom—along with many other practices unsupported by modern psychology and neuroscience.

Americans inherited a legal system shaped by history, not by science. “The legal system is resistant to change and resistant to paying attention to scientific research,” says Adam Benforado, a law professor at Drexel University and author of the recent book Unfair: The New Science of Criminal Injustice. The system assumes that innocent people don’t confess to crimes they didn’t commit. It presumes that eyewitness testimonies are reliable. It counts on the impartiality of jurors.

None of those things are borne out by evidence.

Continue reading »

CLBB Brief changes Mass. Eyewitness Testimony Law

Harnessing the current scientific consensus on the neuroscience of memory, CLBB recently contributed to a fundamental shift in the treatment of eyewitness identifications in Massachusetts courtrooms. CLBB partnered with the American Psychological Association to submit an Amicus Brief to the Massachusetts Supreme Judicial Court which outlined the latest neuroscientific understanding of eyewitness memory.

The brief addressed the misconception that human memory may work like a video camera and rejected the notion that witnesses who are highly confident in their identifications are therefore necessarily reliable. It outlined research demonstrating that a witness’s viewing of the same suspect in multiple identification procedures lowers the reliability of subsequent identifications and research regarding the effect of stress on the ability to recall past events. The Court embraced the core arguments presented in the Amicus brief, namely that these scientific principles regarding the limits of eyewitness identification are so well established that in appropriate cases, juries should be explicitly instructed about these limitations. Continue reading »

Why Police Lineups Will Never Be Perfect

By Virginia Hughes | The Atlantic | October 2, 2014

One night in 1984, a man broke into 22-year-old Jennifer Thompson’s apartment, threatened her at knifepoint, and raped her. While it was happening she tried to memorize everything about him—his  face, hair, clothes, body type. Later that day, she recounted those details to a police sketch artist.

Two days later, a detective showed Thompson a photo lineup of six men. She ruled out four of them right away, and stared at the other two pictures for four or five minutes. Finally she chose one. “Yeah. This is the one,” she said, as recounted in the book Picking Cotton. “I think this is the guy.”

“You ‘think’ that’s the guy?” one of the detectives asked her.

“It’s him,” she said.

“You’re sure?” asked another detective.

“Positive.”

She wrote her initials and date on the back of the photo, then asked them, “Did I do OK?”

“You did great, Ms. Thompson.”

The man she identified, Ronald Cotton, was convicted and sentenced to a life in prison. More than 10 years later, a DNA test revealed that Thompson had pointed to the wrong guy. Cotton was innocent.

Eyewitness testimony is hugely influential in criminal cases. And yet, brain research has shown again and again that human memory is unreliable: Every time a memory is recalled it becomes vulnerable to change. Confirming feedback—such as a detective telling a witness she “did great”—seems to distort memories, making them feel more accurate with each recollection. Since the start of the Innocence Project 318 cases have been overturned thanks to DNA testing. Eyewitness mistakes played a part in nearly three-quarters of them.

Continue reading »