Friday, June 26, 2015

Finding Justice

A law professor from Drexel University, wrote an article about the criminal justice system in the June 14, 2015 edition of The New York Times. In the article he pointed out how human problems affect justice. I have had some experience in the criminal justice arena as an expert witness. I provided competency to stand trial evaluations for the Superior Court and also testimony and evaluations for plaintiff attorneys. I also have a plaintiff attorney friend that I have consulted with regarding many of his cases.

Some of the human problems that exist in our criminal justice system are as follows: 1. The setting where the “crime” took place, as well as where the trial is held. For instance, if the so-called crime took place in San Francisco, compared to some rural area in Northern California there would be likely differences. To generalize, urban San Francisco is a multiethnic community, which may have a more liberal or forgiving setting than a more conservative, mostly Caucasian and rural community. So where a person is tried can most definitely affect trial outcome.

 2. Eyewitness testimony is noticeably and consistently flawed since memory is a mystery-it’s an important facet of cognition that encompasses everything as well as the capacity for remembering. There are different types of memory, such as declarative memory, episodic memory, procedural memory and implicit memory. We don’t know if the problem in memory is that we forget, or that we have trouble retrieving the memory. Aside from witnesses that lie, witness memory is highly unreliable because most crimes happen unexpectedly and are over in a flash, making them events that by definition are not remembered well. For instance, the indoor or outdoor lighting may be less than optimal and other events may serve as distractions. Not only that, witnesses may have been thinking about internal issues, or were not paying much attention. They may even be concerned about their own safety or that of other bystanders. Concerns, fears like these often greatly impair later memory. In the laboratory, significant research has demonstrated that is easy to fool participants trying to recall the details of an event by simply introducing misinformation. For instance, stop signs, have been remembered as yield signs, white cars have been remembered as blue ones and Mickey Mouse remembered as Minnie Mouse.  Highly suggestible individuals have the poorest memory recall events. In the traditional police lineup, witness confidence isn’t always a signal of memory accuracy. Witnesses’ who are absolutely certain may be no more correct with their recollections, compared to those who were fairly sure. Unfortunately, the degree of witness certainty often influences whether jurors believe their testimony. Further, most people are not very good observers of other people’s faces, especially if their exposure to the other person was very brief. Few people have perfectly matched eyes and one is usually larger than the other. Noses and ears come in all shapes and are also highly variable and irregular. Also, other commonly worn factors can distort the image of a face like eyeglasses, hats and caps. The combination of a wide brimmed hat and a high coat collar is almost as effective as wearing a mask. Facial hair, including beards, mustaches and sideburns comes in all sizes and shapes. Also, the reflection of light off the skin shows through many if not most beards, except for the thickest black beard or hair.

 3.  DNA findings are subjective. DNA matches are significantly more likely when the forensic expert was aware that the sample comes from someone the police believe is guilty or fits the theory of the police. Blind testing would be a simple way to get more accurate DNA findings.

 4. Confessions that appear voluntary are not always as such. Even the placement of the camera-either behind the accused or interviewer affects the definition of a so-called voluntary confession. In other words, when watching the recording with the camera behind a detective, people are much more likely to find that the confession was voluntary than watching the confession from the perspective of the suspect.

 5. The bias of the judge and his or her relationship with the plaintiff attorney was also important. If the judge disliked the attorney or for that matter, had a bias against the crime, then the suspect would be in big trouble and can likely predict an outcome of guilty.

 6. Law enforcement bias has been in the news. Questions like was the policeman, a racist exist today? Other factors to consider would be the character of the policeman or arresting officer. Some officers of the law dislike and are prejudiced and have ill feelings against the poor, the weak, and individuals from low socioeconomic conditions. They perceive these individuals as being inferior, lazy, irresponsible, and requiring being controlled and dominated.  When the officer comes from a position of strength like the institution of law enforcement with its guns, clubs and backup he or she is more likely to use force to get the individual to submit, comply and become passive. However, when the behavior is to the contrary, the officer often consciously or unconsciously reacts aggressively. When feeling threatened, look out for that law enforcement’s over-the-top aggressive behavior.

These are just a few of the issues confronting our criminal court justice system. Hopefully, stay clear and make good choices, so that one doesn’t become a victim of our system. Our system is not perfect, but it’s the one we have so far. Hopefully, a more scientific approach can help modify and improve what we have.

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