American Injustice: Part 9 of 10

Based on the book Unfair: The New Science of Criminal Injustice by Adam Benforado.
For more detailed information, read the book.

Technological Changes

More than a hundred years ago, the English writer G K Chesterton noted that “The horrible thing about all legal officials, even the best, about all judges, magistrates, detectives and policemen, is not that they are wicked (some of them are good), not that they are stupid (some of them are quite intelligent), it is simply that they have got used to it.” Our justice system is so familiar that we cannot see its true nature. We need to look at it with new eyes.

Many changes can be made. We know, for example, that implicit racial bias can be reduced by showing people pictures of well-known and strongly positive blacks (such as Martin Luther King) and well-known and strongly negative whites (such as Charles Manson). We can also have people imagine being harmed by a white person and being rescued by a black person. The challenge is to make the debiasing stick.

Some changes are well underway. Many police departments videotape all interrogations from a neutral perspective, use cognitive interviewing techniques, and use lineup procedures that reduce suggestive bias.

What’s next. As we learn more about unfairness that comes from limitations of the human brain, we need to depend less on human faculties. Because eyewitnesses can be unreliable and judges can lack objectivity, we need to develop ways to reduce witness testimony – especially in-court witness identification – and trials. We need to consider eliminating the process of culling jurors without cause. We need to require forensic reports be sent to the prosecution and defense at the same time, and require police reports be available to both sides with no revision by either side. We need to increase the use of security cameras and police body cameras while acknowledging the limitations of these technologies.

DNA evidence is getting more accurate and more sensitive. Acoustic equipment can pinpoint the location of gunshots in urban areas and can swivel cameras to try to record fleeing perpetrators. Panoscan cameras can capture a high-resolution, 360-degree view of a crime scene to reduce missed evidence and faulty memories. Officers can use smart phones to check a location for earlier police activity or check a person for criminal or mental health history, thus reducing mistakes due to the faulty memories of responding officers.

Law enforcement agencies are beginning to use military techniques and equipment to save lives from gunshots and other traumas. Simply switching to the Electronic Benefit Transfer system for welfare payments in the 1990s reduced the amount of cash on the streets and the amount of cash-related crimes. We need to broaden our view of what reduces crime.

We need to consider creating an independent research group for use by Supreme Court justices (and other judges) to avoid the confirmation bias in research by justices and the potentially misleading arguments of Amicus briefs. We need to consider replacing partisan expert witnesses with an independent witness panel funded by both sides as a normal court cost. We need to use an independent expert panel to make decisions about witness credibility and defendant insanity rather than allowing juries or judges to make those decisions.

We should consider eliminating live trials. Using a virtual environment where participants are represented by avatars could eliminate the biases of attractiveness, physical oddities and mannerisms, voice inflection, charm, skin color, wardrobe, and inaccurate signs of credibility or lying. The focus would then shift to content and evidence. The trial would become less a performance and more a determination of facts.

A virtual trial would also reduce the possibility of violence among defendants, witnesses, lawyers, jurors, and observers. Victims would be less intimidated by defendants and more likely to testify in difficult cases, such as rape. And the courtroom environment could be standardized and predictable. All trials could be recorded to benefit appeals. Or a defendant could be tried before multiple juries, possibly in lieu of an appeal. Juries could see and hear the trial on a time delay so an objection that was sustained would not be presented to the jury at all, thus eliminating the impossible task of disregarding something just heard.

Video conferencing for preliminary arraignments, warrant proceedings, and bail and sentencing hearings in Pennsylvania have already saved $1.7 million a month and reduced jail time for poor defendants. Long-distance conferences and meetings are common in business. Medicine, including surgery, is being practiced remotely, sometimes using robots. Our tradition of facing an accuser in person in the same room for a criminal proceeding is no longer justified. Interrogations and witness interviews could also be done with virtual technology with similar benefits. Our science and our experience shows us that bombastic attorneys, nervous witnesses, and unemotional defendants make for good television but poor justice.

All of these changes can be made quickly with little cost.

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