Thursday, December 1, 2011

Memory and Honesty

Memory is the sea in which we spend our lives swimming forward (or at least: in which we spend our lives treading water), the context that gives meaning to the perceptive abilities we bring to bear in our efforts to decipher the world and grant meaning to what we see, hear, taste, smell, and feel of it. Moreover, an intact, healthy memory is considered the sine qua non of mental health itself: one of the chief hallmarks of mental illness is precisely the inability to distinguish between fantasies and “real” memories, between things we’ve once imagined happening and things that actually did occur, between dreamscape and landscape, between idle thoughts we really may once have had and events that really did once take place. No one has ever been charged with perjury for saying on the witness stand, “I got a clear, unobstructed view of their villainous faces when armed robbers burst into the Rite-Aid where I had gone after work to buy a toothbrush” when what that person, no doubt trying to speak honestly, can only really mean that he or she, while speaking under oath months later, remembers standing there in that drugstore on that fateful day and seeing what happened when the robbers burst into the place, their guns drawn and their larcenous intent all too obvious.

All that being the case, I was especially interested by an article that appeared in the paper the other day about the reasonableness of relying on memory in the adjudication of criminal trials. Perhaps some of you saw it as well. (If you are reading this on-line, you can find the article, written by Laura Beal and published in the Times last Monday, here.) It’s an interesting piece, and well worth your time, for a variety of reasons, but the detail that caught my attention had to do with the intersection of eye-witness testimony and DNA evidence: the author wrote, to my mind amazingly, that eye-witness testimony had been crucial in the cases of a full three-quarters of the 280 defendants whose convictions incontrovertible DNA evidence was subsequently instrumental in overturning. That is a detail that no citizen who cares about justice can feel good about passing quickly by.

Many of my readers know that I am a subscriber to the electronic newsletter of the Innocence Project, an undertaking founded in 1992 by Barry Sheck and Peter Neufeld as part of the Cardozo Law School of Yeshivah University but that now exists in its own right as a non-profit organization devoted to seeking justice for the incorrectly convicted. The numbers tell the story, and they are astounding: 208 convicted individuals exonerated, seventeen of whom had actually been sentenced to death. Collectively, and even more astoundingly, those 208 individuals served over 3,600 years in prison for crimes none of them had committed. For the record, the same DNA evidence that gained freedom for the wrongly convicted also led to the conviction of the real criminals in 125 of those cases. So this particular sword cuts both ways! But, as satisfying a thought as that may be (and surely is), I find myself far more profoundly drawn to the statistic mentioned above: that the convictions of a full 75% of the 208 individuals who were subsequently exonerated were based on eye-witness testimony that was apparently incorrect and untrue. That, I believe, is a number that all Americans who care about justice should pause thoughtfully to consider.

There is a strong racial element in play here as well: in forty percent of the cases involved, the incorrect testimony involved a witness misidentifying an accused individual of a different race. There could, I suppose, be malice involved—and it is hard to imagine a more pernicious form of non-violent racism than choosing to lie about someone on the witness stand solely because of that person’s race—but my suspicion (and the opinion of the Innocence Project as well) is that something far more subtle is afoot here: people are simply less good at recognizing people of other races than they are at recognizing fellow white people or fellow black people or fellow any kind of people who are whatever it is they themselves are. The “other” is weird, strange, a bit unrecognizable. The old canard that all “those” people look alike is derogatory and insulting, but it’s not entirely untrue: people of distinguishable races and ethnic groups apparently do tend to look far more like each other in the eyes of outsiders than they do to each other. You can read more about the Innocence Project on their website at, but the detail I want to focus on here is the one relating to the reliability of eye-witness testimony.

Our Torah clearly understands that eye witnesses can simply be wrong. And, indeed, the Torah seems to address the issue through ancillary legislation designed to eliminate the possibility of error. Torah law, for example, specifies that no one may ever be convicted on the basis of one sole eye witness and that any such witness may only speak in court if the court has determined in advance that, at the very least, a second witness will testify to having seen the same thing. (The Torah laws prohibiting defamatory speech are set aside for witnesses testifying in court. But they are specifically not set aside if it is clear in advance that such testimony cannot possibly lead to a conviction.) Furthermore, there are two different kinds of questions which witnesses must answer, one set related to the specific details of the crime in question and the other related to what moderns would label as circumstantial details: not what the accused was seen doing at some specific place and time, but what color sweater she or he was wearing at the time or what kind of shoes. It is true that there is some extra leeway with respect to the questions we would label circumstantial: if either witness or both witnesses say that they do not know the answer to one of the circumstantial questions, the court may still consider their testimony. But if either witness cannot answer a specific question relating to the time or the place of the alleged incident, or to the identity of the person seen doing the thing the accused stands accused of having done, then such testimony is discarded as invalid and the trial cannot proceed unless new eye witnesses can be produced.

Furthermore, the Torah understands that people get it wrong all the time and so introduces the concept of hatraah, a kind of decisive check on the system that more or less guarantees that no one will ever be convicted falsely. Hatraah means “warning,” and the concept is simple enough: the witnesses must also testify to the fact that they personally warned the accused of the consequences of his or her actions. It sounds simple, but what the Torah is really saying is that we do not rely simply on eye witnesses claiming to have seen something, that they must personally have experienced the kind of relationship with the accused that will subsequently make it almost impossible, assuming their probity, for them to give false testimony. Rambam explains how the whole warning thing works: “How is a warning administered? They say to someone, ‘Desist, for the action you are about to undertake is a sin and you will become liable to be executed by the court’ or ‘Desist, for what you are about to do is a sin and you will be severely punished if you are convicted’ And then the person to whom they are speaking must acknowledge their words and say something like ‘I know, but I am going to proceed to commit this act nevertheless.’” And even that is not enough: according to Rambam, the individual being warned must then commit the act in question almost immediately. If more time passes than would be necessary for one average citizen to greet another, then the accused can only be convicted if it can be demonstrated in court that he or she was warned a second time.

For good measure, eye witnesses who insist that they knew the accused well enough to identify him or her and that they personally administered the requisite warning must then be formally threatened with having to bear the responsibility for the execution of an individual falsely convicted because of their incorrect testimony for the rest of their lives, and that it is not going to be solely the life of the accused for which they will bear responsibility but also for the lives of all of his or her now-to-be-unborn descendants.

So how many people do you imagine were ever convicted under such a system? The answer is…who knows? It’s mentioned in the Mishnah that any court that executes more than one person every seven years is to be condemned as one excessively willing to convict. As great a luminary as Rabbi Akiba is cited as having remarked once that he couldn’t really understand how anyone at all could ever be convicted under the Torah’s system. Nor is it entirely obvious that the Jews under Roman rule had the right to execute anyone anyway. But all that is beside the point, which is that our tradition clearly understands that even the eye witness testimony of the most reliable and honest individual can be fatally flawed. And its remedies—requiring always more than one witness, insisting that the witnesses not only testify that they saw the accused but that they actually knew him or her, demanding that the witnesses be able to say in court that they spoke to the accused and know for a fact that he or she was acting with malice aforethought—are clearly based on the assumption that even the most well-meaning person can simply be wrong. So you see how infuriating it is to me, and should be to us all, when someone announces that the Judeo-Christian tradition (whatever that is) supports the notion of capital punishment as it is carried out in our country. Yes, of course, our Torah demands that death be meted out for serious crimes and sins. But the detail that is rarely mentioned is that the same Jewish tradition would never countenance the conviction of anybody at all based solely on circumstantial evidence or the eye witness testimony of a single individual.

The sages of ancient times would have loved DNA. And they would especially have loved the Innocence Project, with its insistence on the basic unreliability of eye witness testimony that has not been shorn up so unassailably that the chances of it being incorrect are almost nil. That was what our rabbis were trying to do in ancient times with all the requirements they found hiding in Scripture just behind the texts that appear blithely to be decreeing capital punishment for all sorts of grievous wrongdoing. And it is what DNA testing is able to do today in a far more comprehensive manner. I can’t imagine the ancients wouldn’t have embraced the concept had they been able to imagine it, because in the end, the underlying principle is the same: to find someone guilty in court, the evidence has not merely to be compelling, but—to the greatest degree possible—incontrovertible.

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