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TEDxUSC

Scott Fraser: Why eyewitnesses get it wrong

May 4, 2012

Scott Fraser studies how humans remember crimes -- and bear witness to them. In this powerful talk, which focuses on a deadly shooting at sunset, he suggests that even close-up eyewitnesses to a crime can create "memories" they could not have seen. Why? Because the brain abhors a vacuum. Editor's note: In the original version of this talk, Scott Fraser misspoke about available footage of Two World Trade Center (Tower 2). The misstatement has been edited out for clarity.

Scott Fraser - Forensic psychologist, expert witness
Scott Fraser is a forensic psychologist who thinks deeply about the fallibility of human memory and encourages a more scientific approach to trial evidence. Full bio

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Double-click the English subtitles below to play the video.
The murder happened a little over 21 years ago,
00:17
January the 18th, 1991,
00:21
in a small
00:26
bedroom community
00:28
of Lynwood, California, just a few miles
00:30
southeast of Los Angeles.
00:33
A father came out of his house
00:36
to tell his teenage son and his five friends
00:38
that it was time for them to stop horsing around
00:42
on the front lawn and on the sidewalk,
00:45
to get home, finish their schoolwork,
00:48
and prepare themselves for bed.
00:50
And as the father was administering these instructions,
00:53
a car drove by, slowly,
00:57
and just after it passed the father and the teenagers,
01:00
a hand went out from the front passenger window,
01:03
and -- "Bam, Bam!" -- killing the father.
01:07
And the car sped off.
01:12
The police,
01:15
investigating officers, were amazingly efficient.
01:17
They considered all the usual culprits,
01:21
and in less than 24 hours, they had selected their suspect:
01:24
Francisco Carrillo, a 17-year-old kid
01:28
who lived about two or three blocks away
01:32
from where the shooting occurred.
01:34
They found photos of him. They prepared a photo array,
01:36
and the day after the shooting,
01:41
they showed it to one of the teenagers, and he said,
01:45
"That's the picture.
01:48
That's the shooter I saw that killed the father."
01:50
That was all a preliminary hearing judge had
01:55
to listen to, to bind Mr. Carrillo over to stand trial
01:58
for a first-degree murder.
02:03
In the investigation that followed before the actual trial,
02:06
each of the other five teenagers was shown
02:09
photographs, the same photo array.
02:12
The picture that we best can determine was probably
02:16
the one that they were shown in the photo array
02:19
is in your bottom left hand corner of these mug shots.
02:21
The reason we're not sure absolutely is because
02:25
of the nature of evidence preservation
02:29
in our judicial system,
02:33
but that's another whole TEDx talk for later. (Laughter)
02:35
So at the actual trial,
02:40
all six of the teenagers testified,
02:43
and indicated the identifications they had made
02:46
in the photo array.
02:50
He was convicted. He was sentenced to life imprisonment,
02:53
and transported to Folsom Prison.
02:58
So what's wrong?
03:03
Straightforward, fair trial, full investigation.
03:06
Oh yes, no gun was ever found.
03:10
No vehicle was ever identified as being the one
03:14
in which the shooter had extended his arm,
03:18
and no person was ever charged with being the driver
03:21
of the shooter's vehicle.
03:24
And Mr. Carrillo's alibi?
03:28
Which of those parents here in the room might not lie
03:32
concerning the whereabouts of your son or daughter
03:37
in an investigation of a killing?
03:40
Sent to prison,
03:46
adamantly insisting on his innocence,
03:48
which he has consistently for 21 years.
03:52
So what's the problem?
03:57
The problems, actually, for this kind of case
04:00
come manyfold from decades of scientific research
04:03
involving human memory.
04:07
First of all, we have all the statistical analyses
04:11
from the Innocence Project work,
04:13
where we know that we have, what,
04:16
250, 280 documented cases now where people have
04:18
been wrongfully convicted and subsequently exonerated,
04:22
some from death row, on the basis of later DNA analysis,
04:26
and you know that over three quarters of all of those cases
04:33
of exoneration involved only eyewitness identification
04:36
testimony during the trial that convicted them.
04:43
We know that eyewitness identifications are fallible.
04:46
The other comes from an interesting aspect
04:51
of human memory that's related to various brain functions
04:54
but I can sum up for the sake of brevity here
04:57
in a simple line:
04:59
The brain abhors a vacuum.
05:02
Under the best of observation conditions,
05:06
the absolute best,
05:10
we only detect, encode and store in our brains
05:12
bits and pieces of the entire experience in front of us,
05:16
and they're stored in different parts of the brain.
05:20
So now, when it's important for us to be able to recall
05:22
what it was that we experienced,
05:26
we have an incomplete, we have a partial store,
05:29
and what happens?
05:34
Below awareness, with no requirement for any kind of
05:37
motivated processing, the brain fills in information
05:40
that was not there,
05:45
not originally stored,
05:47
from inference, from speculation,
05:50
from sources of information that came to you,
05:52
as the observer, after the observation.
05:55
But it happens without awareness such that
05:58
you don't, aren't even cognizant of it occurring.
06:00
It's called reconstructed memories.
06:04
It happens to us in all the aspects of our life, all the time.
06:06
It was those two considerations, among others --
06:11
reconstructed memory, the fact about the eyewitness fallibility --
06:14
that was part of the instigation
06:18
for a group of appeal attorneys
06:21
led by an amazing lawyer named Ellen Eggers
06:24
to pool their experience and their talents together
06:27
and petition a superior court
06:31
for a retrial for Francisco Carrillo.
06:33
They retained me, as a forensic neurophysiologist,
06:38
because I had expertise
06:43
in eyewitness memory identification,
06:45
which obviously makes sense for this case, right?
06:47
But also because I have expertise and testify about
06:50
the nature of human night vision.
06:53
Well, what's that got to do with this?
06:58
Well, when you read through the case materials
07:01
in this Carrillo case,
07:04
one of the things that suddenly strikes you is that
07:07
the investigating officers said the lighting was good
07:10
at the crime scene, at the shooting.
07:13
All the teenagers testified during the trial
07:17
that they could see very well.
07:20
But this occurred in mid-January,
07:24
in the Northern Hemisphere, at 7 p.m. at night.
07:27
So when I did the calculations
07:33
for the lunar data and the solar data
07:36
at that location on Earth at the time of the incident
07:38
of the shooting, all right,
07:41
it was well past the end of civil twilight
07:43
and there was no moon up that night.
07:46
So all the light in this area from the sun and the moon
07:48
is what you see on the screen right here.
07:50
The only lighting in that area had to come
07:53
from artificial sources,
07:56
and that's where I go out and I do the actual reconstruction
07:59
of the scene with photometers, with various measures
08:02
of illumination and various other measures of
08:05
color perception, along with special cameras
08:06
and high-speed film, right?
08:11
Take all the measurements and record them, right?
08:13
And then take photographs, and this is what the scene
08:16
looked like at the time of the shooting
08:18
from the position of the teenagers
08:20
looking at the car going by and shooting.
08:22
This is looking directly across the street
08:26
from where they were standing.
08:28
Remember, the investigating officers' report said
08:31
the lighting was good.
08:33
The teenagers said they could see very well.
08:35
This is looking down to the east,
08:38
where the shooting vehicle sped off,
08:41
and this is the lighting directly behind the father
08:44
and the teenagers.
08:49
As you can see, it is at best poor.
08:52
No one's going to call this well-lit, good lighting,
08:56
and in fact, as nice as these pictures are,
08:59
and the reason we take them is I knew I was going to have to testify in court,
09:03
and a picture is worth more than a thousand words
09:06
when you're trying to communicate numbers,
09:09
abstract concepts like lux, the international measurement
09:12
of illumination, the Ishihara color perception test values.
09:15
When you present those to people who are not well-versed
09:20
in those aspects of science and that, they become
09:23
salamanders in the noonday sun. It's like
09:26
talking about the tangent of the visual angle, all right?
09:29
Their eyes just glaze over, all right?
09:32
A good forensic expert also has to be a good educator,
09:35
a good communicator, and that's part of the reason
09:39
why we take the pictures, to show not only
09:41
where the light sources are, and what we call the spill,
09:43
the distribution, but also so that it's easier
09:46
for the trier of fact to understand the circumstances.
09:49
So these are some of the pictures that, in fact,
09:53
I used when I testified,
09:56
but more importantly were, to me as a scientist,
09:58
are those readings, the photometer readings,
10:00
which I can then convert into actual predictions
10:02
of the visual capability of the human eye
10:07
under those circumstances,
10:10
and from my readings that I recorded at the scene
10:12
under the same solar and lunar conditions
10:16
at the same time, so on and so forth, right,
10:18
I could predict
10:21
that there would be no reliable color perception,
10:23
which is crucial for face recognition,
10:25
and that there would be only scotopic vision,
10:27
which means there would be very little resolution,
10:30
what we call boundary or edge detection,
10:32
and that furthermore, because the eyes would have been
10:34
totally dilated under this light, the depth of field,
10:36
the distance at which you can focus and see details,
10:40
would have been less than 18 inches away.
10:43
I testified to that to the court,
10:48
and while the judge was very attentive,
10:51
it had been a very, very long hearing
10:53
for this petition for a retrial, and as a result,
10:56
I noticed out of the corner of my eye
11:01
that I thought that maybe the judge was going to need
11:02
a little more of a nudge
11:07
than just more numbers.
11:09
And here I became a bit audacious,
11:11
and I turned
11:13
and I asked the judge,
11:15
I said, "Your Honor, I think you should go out
11:17
and look at the scene yourself."
11:20
Now I may have used a tone which was more like a dare
11:23
than a request — (Laughter) —
11:26
but nonetheless, it's to this man's credit and his courage
11:28
that he said, "Yes, I will."
11:33
A shocker in American jurisprudence.
11:36
So in fact, we found the same identical conditions,
11:40
we reconstructed the entire thing again,
11:43
he came out with an entire brigade of sheriff's officers
11:45
to protect him in this community, all right? (Laughter)
11:49
We had him stand actually slightly in the street,
11:54
so closer to the suspect vehicle, the shooter vehicle,
11:59
than the actual teenagers were,
12:02
so he stood a few feet from the curb
12:05
toward the middle of the street.
12:07
We had a car that came by,
12:10
same identical car as described by the teenagers, right?
12:13
It had a driver and a passenger,
12:17
and after the car had passed the judge by,
12:19
the passenger extended his hand,
12:23
pointed it back to the judge as the car continued on,
12:27
just as the teenagers had described it, right?
12:31
Now, he didn't use a real gun in his hand,
12:34
so he had a black object in his hand that was similar
12:36
to the gun that was described.
12:39
He pointed by, and this is what the judge saw.
12:41
This is the car 30 feet away from the judge.
12:44
There's an arm sticking out of the passenger side
12:51
and pointed back at you.
12:54
That's 30 feet away.
12:56
Some of the teenagers said that in fact the car
12:58
was 15 feet away when it shot.
13:00
Okay. There's 15 feet.
13:03
At this point, I became a little concerned.
13:06
This judge is someone you'd never want to play poker with.
13:11
He was totally stoic. I couldn't see a twitch of his eyebrow.
13:15
I couldn't see the slightest bend of his head.
13:20
I had no sense of how he was reacting to this,
13:23
and after he looked at this reenactment,
13:26
he turned to me and he says,
13:29
"Is there anything else you want me to look at?"
13:31
I said, "Your honor," and I don't know whether I was
13:34
emboldened by the scientific measurements that I had
13:38
in my pocket and my knowledge that they are accurate,
13:41
or whether it was just sheer stupidity,
13:45
which is what the defense lawyers thought — (Laughter) —
13:47
when they heard me say,
13:50
"Yes, Your Honor, I want you stand right there
13:52
and I want the car to go around the block again
13:54
and I want it to come and I want it to stop
13:59
right in front of you, three to four feet away,
14:02
and I want the passenger to extend his hand
14:06
with a black object and point it right at you,
14:10
and you can look at it as long as you want."
14:12
And that's what he saw. (Laughter)
14:18
You'll notice, which was also in my test report,
14:22
all the dominant lighting is coming from the north side,
14:26
which means that the shooter's face would
14:28
have been photo-occluded. It would have been backlit.
14:30
Furthermore, the roof of the car
14:33
is causing what we call a shadow cloud inside the car
14:35
which is making it darker.
14:39
And this is three to four feet away.
14:42
Why did I take the risk?
14:46
I knew that the depth of field was 18 inches or less.
14:50
Three to four feet, it might as well have been
14:54
a football field away.
14:55
This is what he saw.
15:00
He went back, there was a few more days of evidence
15:02
that was heard. At the end of it,
15:06
he made the judgment that he was going to grant
15:08
the petition for a retrial.
15:11
And furthermore, he released Mr. Carrillo
15:14
so that he could aid in the preparation of his own defense
15:16
if the prosecution decided to retry him.
15:19
Which they decided not to.
15:25
He is now a freed man. (Applause)
15:28
(Applause)
15:33
This is him embracing his grandmother-in-law.
15:37
He -- His girlfriend was pregnant when he went to trial,
15:42
right? And she had a little baby boy.
15:46
He and his son are both attending Cal State, Long Beach
15:50
right now taking classes. (Applause)
15:53
And what does this example --
15:59
what's important to keep in mind for ourselves?
16:03
First of all, there's a long history of antipathy
16:07
between science and the law
16:11
in American jurisprudence.
16:13
I could regale you with horror stories of ignorance
16:15
over decades of experience as a forensic expert
16:19
of just trying to get science into the courtroom.
16:23
The opposing council always fight it and oppose it.
16:28
One suggestion is that all of us become much more
16:33
attuned to the necessity, through policy,
16:36
through procedures,
16:39
to get more science in the courtroom,
16:41
and I think one large step toward that
16:44
is more requirements,
16:46
with all due respect to the law schools,
16:48
of science, technology, engineering, mathematics
16:51
for anyone going into the law,
16:56
because they become the judges.
16:58
Think about how we select our judges in this country.
17:01
It's very different than most other cultures. All right?
17:05
The other one that I want to suggest,
17:08
the caution that all of us have to have,
17:10
I constantly have to remind myself,
17:13
about just how accurate are the memories
17:15
that we know are true, that we believe in?
17:18
There is decades of research,
17:23
examples and examples of cases like this,
17:26
where individuals
17:31
really, really believe. None of those teenagers
17:33
who identified him
17:36
thought that they were picking the wrong person.
17:38
None of them thought they couldn't see the person's face.
17:41
We all have to be very careful.
17:45
All our memories are reconstructed memories.
17:47
They are the product of what we originally experienced
17:50
and everything that's happened afterwards.
17:53
They're dynamic.
17:55
They're malleable. They're volatile,
17:57
and as a result, we all need to remember to be cautious,
18:00
that the accuracy of our memories
18:04
is not measured in how vivid they are
18:07
nor how certain you are that they're correct.
18:11
Thank you. (Applause)
18:16
Translator:Joseph Geni
Reviewer:Morton Bast

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Scott Fraser - Forensic psychologist, expert witness
Scott Fraser is a forensic psychologist who thinks deeply about the fallibility of human memory and encourages a more scientific approach to trial evidence.

Why you should listen

When it comes to witnesses in criminal trials, the accuracy of human memory can mean the difference between life and death. Scott Fraser is an expert witness who researches what’s real and what’s selective when it comes to human memory and crime. His areas of expertise include human night vision, neuropsychopharmacology, and the effect of stress and other factors on the human mind. He has testified in criminal and civil cases throughout the U.S. in state and federal courts.

In 2011 Fraser was involved in the retrial of a 1992 murder case in which Francisco Carrillo was found guilty and sentenced to two life sentences in prison. Fraser and the team that hired him staged a dramatic reenactment of the night of the murder in question and showed the testimonies that had put Carrillo in jail were unreliable. After 20 years in jail for a crime he didn't commit, Carrillo was freed.

The original video is available on TED.com
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