THE criminal justice system is flawed. Many of its key assumptions about human nature lack evidence. Deep-set prejudices make it hard for some defendants to get a fair trial. False confessions are rife. Lawyers are no more honest than anyone else, and judges no less susceptible to bias. Juries often make terrible decisions. Too many cases ride on expert testimony that jurors and judges are ill-equipped to understand.
So says Adam Benforado, in his provocative book Unfair. His criticisms are not new. The usual response from the legal profession is that the system is the best it can be, and a notable improvement on such previous incarnations as summary justice and vigilantism. But Benforado, an associate professor of law and former lawyer, thinks we could do a lot better – by bringing behavioural science into the mix.
In Unfair, he argues that most errors in criminal justice stem from the failure to take into account the frailties of human cognition, memory and decision-making. “We think we understand the factors that determine whether a cop draws his gun, where police departments and prosecutors allocate precious resources, how high a judge sets bail, and if legislators pass a tough new crime bill,” he writes. “But a growing body of scientific evidence suggests that we are not the consistent, rational number-crunchers that we suppose.”
As well as being a legal scholar, Benforado is well versed in behavioural science: the two disciplines meet in many of his papers. Much of the psychological research he presents has been documented, including Stanley Milgram’s obedience experiments and Daniel Kahneman’s studies on heuristics. But the implications for justice are less well known, and are shocking.
Consider, for example, that the police interrogation technique most commonly used in the US amounts to coercion and has led to numerous false confessions; that even with training, police officers are no better at spotting deception than anyone else; that the behavioural cues that jurors are encouraged to monitor in defendants for signs of guilt are largely meaningless; and that the lack of diversity among judges – in gender, race, background and political orientation – has resulted in a dangerously constricted notion of right and wrong.
Benforado’s solutions are radical. He recommends banning all procedures known to be troublesome, such as in-court identification line-ups (easily corrupted) and expert witnesses loyal to one side (he would make them all independent, funded by both parties). He also favours disposing of live trials, replacing them with virtual environments where participants interact using avatars. “When you don’t know if a defendant is black or white, slim or obese, old or young, attractive or unattractive, it is far less likely that biases grounded in these interpersonal differences will exert an influence.”
Does he expect too much from science? He is occasionally over-eager to apply laboratory findings to real-world situations. For instance, he proposes using fMRI to screen jurors for inherent biases towards certain groups, even though there is much disagreement among researchers about whether fMRI could do any such thing, and recent research shows that biases do not affect perception as strongly as is commonly supposed.
And some of his arguments end up spiralling beyond the orbit of both science and law. How can we legally resolve the insight, from social psychology research, that a person’s decision to commit a crime is part-determined by psychological and situational influences beyond their control? Unsurprisingly, he leaves that hanging.
Yet this is a book everyone in the legal profession should read, and the rest of us too, for it is as much about the confounding idiosyncrasies of everyday behaviour as inequity in law. “The main enemy of justice does not lie in the corrupt dispositions of a few bigoted cops, stupid jurors, or egotistical judges,” Benforado says. “It is found inside the mind of each of us.”
This article appeared in New Scientist under the headline “When justice goes wrong”