Paulino

Henessys Paulino
Persuading and advocating paper
Dr. Spielvogel
CAS 138T
4/7/16
The U.S. Courts were created under Article III of the Constitution to
administer justice fairly and impartially, within the jurisdiction established by the
Constitution and Congress 1. The purpose of the US Criminal Justice System is to
deliver justice for the community, by convicting and punishing the guilty, while
protecting the innocent 2. However, more frequently than expected, innocent people are
being wrongfully accused for acts they did not commit. The Innocence Project, an
organization that focuses solemnly on exonerating the wrongfully convicted, has
exonerated 337 individuals since 1989 3. This number might not seem substantial,
however one can argue that even one person wrongfully accused it excessive. Also, this
number does not include individuals who died in prison or those whose were not granted
another trial to prove their innocence. According to the National Registry of Exonerations
there have been a total of 1761 exonerations in the United States 4, this number includes
individuals exonerated through the Innocence Project and those who were lucky enough
to have an important figure look at their case and exonerate them.

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The Graph above depicts the number of death row exonerations per state in the
United States 5. Last year the Illinois State Academy of Science conducted a research in
which they found that 4.1% of those who were sentenced to death in the United States
were later shown to be innocent 6.That is 1 in every 25 of those sentenced to death were
not guilty. That number is astonishingly high for a court system that claims to make no
mistakes. Those innocent people have spent decades, not only in jail, but awaiting their
death for a crime they did not commit, while the real perpetrator was roaming the streets
committing more crimes. The United States imprisons more that 2 million people per
year, meaning that even one percent of those who were wrongfully convicted equates to
tens of thousands of tragic errors 7. This issue is of upmost importance and relevance to
us, because being wrongfully convicted can happen to anyone. It is also our tax dollars
that finance for an innocent person to be kept in prison, since our tax dollars is what
keeps prisons and jails running.

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Antonin Scalia (1936 - 2016) was an associated Justice of Supreme Court

appointed by Ronald Regan. He claimed that individuals were rarely if ever wrongfully
convicted. In his quest to quench roomers on the wrongfully convicted he presented a
case in which a convicted felon, Henry Lee McCollum, was accused of sexually
assaulting an 11-year-old girl, then proceeded to suffocating her with her own panties 8.
He argued that Lee was a perfect example of someone who should be placed on death
row. Scalia believed that someone who committed such a heinous crime should be put to
death. Remarkably, soon after his argument Lee was pardoned and found innocent of the
crime through DNA evidence. It was found that the perfect man who deserved to be on
death row was actually innocent. Scalia devoted his entire life on advocating for the death
row and for arguing that individuals are rarely wrongfully convicted. However, his
perfect example was found to be not guilty and pardoned by the governor of North
Carolina. If it were up to Scalia, Lee would have long been murdered for a crime he did
not commit. How can we pretend that individuals are rarely wrongfully convicted when
such a high figure in the court system, such as Scalia, cannot advocate for his cause
without running into someone who was wrongfully convicted?
The innocence project is an organization that focuses its resources on exonerating
individuals who are innocent through DNA evidence. They get up to 4 letters daily from
inmates who claim to be innocent 9, as one might expect they do get mail form
individuals who are guilty of their crime, however those who are innocent can be difficult
to get to, because they do not have enough man power to cover all of the cases. That is
why we must take action before the fact, and prevent these wrongfully accusations
instead of intervening after the fact when it might be too late. There are many things that

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go into someone being wrongfully accused, however we have narrowed it down to one
major causes: eyewitness testimony.
Contrary to popular belief our memory is not like a camera. Humans do not always
perceive what happens around them correctly. Perception is how an individual interprets an event.
Essentially, it is how they interpret information that is happening around them. Meaning that what
a person perceives to have happened might not have happened at all 10. On the other hand, reality
is the true events that transpired. For example, someone speeding down a road and driving
recklessly might be perceived as someone who is a bad driver, in reality he could have just be
rushing to get his wife to the hospital. This unfortunately happens very often in court cases.

Researchers have found that long-term memory is very prone to errors and can easily be
altered, which can be enhanced by the misinformation effect. The misinformation effect
happens when misleading information is given to a witness after the event11. This then
leads to witnesses falsely testifying, thus leading to a wrongful conviction. A bystander
witnessing a crime might perceive what transpired one way and another bystander might perceive
it another way. For example, a witness being interviewed by a cop might point out that the robber
got into a black gateway car. The cop now with this information goes and asks another bystander
were you able to see who was driving the black getaway car? however, the witness might have
seen a red getaway car, not a black one. This new information has now interfered with

what the witness originally thought, which leads her to alter what she saw to fit the
officers questions. One of the most prominent researchers on the misinformation effect is
Elizabeth Loftus. She has conducted over 200 experiments, involving over 20,000
participants12. One of her most famous experiments was conducted in 1974 where
different participants watched a video of a car accident, and were then asked questions on
the video. Their responses to the questions varied depending on the wording of the

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question. If the question read, how fast was the car going when it smashed into the other
car participants reported the car going faster than if the question read, how fast was the
car going when it hit the other car.13 This experiment shows how malleable memory is
and how easy it can be to alter it. If memory is this easy to change, then why is it that
individuals such as the jury rely so heavily on witness testimony in court cases?
Another popular rumor is that individuals remember traumatic events more
vividly than they remember normal events; these memories are called flashbulb
memories. Many claim that these memories are as if our brains recorded what was
happening around us, because the traumatic experience engrained into our brains. A
survey done called national study of 9/11 memories conducted by researchers of New
School University and New York University claim that the flashbulb memories might be
even more inaccurate than normal memories 14. A survey was completed by a random
sample of individuals right after the 9/11 attacks asking a variety of questions pertaining
to what happened that day. One year later the same group was given the exact survey, and
was then given the exact survey three years later; what they found was astonishing. The
same people who took the exact same survey answered differently for each question,
meaning that our memory does not work like a camera and in fact what we remember is
dependent on our environment and is subject to change at any moment 15. One reasoning
as to why flashbulb memories are inaccurate is because of the stress levels experienced
by the victims or the bystanders at the time of the attack. Stress has a negative impact on
the retrieval of information. If an individual is stressed during the attack, which tends to
happen, then their testimony can be faulty because stress levels do interfere with
memory16.

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With that in mind, why is it that the court allows eyewitness testimony to be a
valuable piece of evidence? Half of those who were wrongfully accused were due to
incorrect misidentification by an eyewitness. A case that beautifully depicts the
malleability of human memory is the Ronald Cotton case. In short, Jennifer Thompson
was attacked and raped in her apartment. She took necessary steps to get a good look at
her assailant; she claimed that she was able to see her assailant for a full 20 minutes. With
this same wise judgment she was able to escape and go straight to the police department
where she gave a detailed description of her assailant. Per Thompsons description a
police officer brought in Ronald Cotton who resembled the sketch. The police then put a
lineup together where Thompson identified Cotton as her attacker. There was no other
evidence tying Cotton to the case but Thompsons eyewitness testimony was so strong
that the jury found Cotton guilty. Cotton spent a decade in prison before he was
exonerated through DNA evidence. Her real attacker was a man named Bobby Poole,
whom Thompson had confidently said was not her attacker17.
Thompson saw her assailant for a full 20 minutes and still did not correctly
identify her perpetrator. She was under a lot of stress both while she was being attacked
and when she was picking someone from a lineup. Her stress levels in both occasions led
her to incorrectly recall what her perpetrator looked like. Her stress levels were not the
only factor that led Thompson to misidentify her perpetrator. Unfortunately, race does
play a role in situations like these. Cross-race effect is the belief that people from the
same race look alike; this is seen mostly in Caucasians. Correct identifications are 40%
more likely when the witness and the suspect are of the same race, and eyewitness
misidentification is 50% more likely when they are of different race; almost half of all

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wrongful convictions are partially consequence of cross-race biased 18. So, Thompson
could have thought that Cotton and her actual Rapist, Poole, looked similar leading her to
believe that Cotton was her rapist. Similar does not mean the same however, and that is
what many eyewitnesses fail to take into account when identifying their suspect of a
different race.
Misidentifications happen too often in the court system for it to be the only peace
of evidence to convict someone. Eyewitness misidentification is the greatest contributing
factor to wrongful convictions; playing a role in more than 70% of convictions
overturned through DNA testing nationwide 19. That is why the court system should pass
the notion that someone who is being tried cannot be convicted solemnly on eyewitness
testimony. It is almost impossible to completely rule out eyewitness testimony as a
whole, because of the fact that so many people believe it to be credible, however jurors,
prosecutors, defendants, and judges need to understand that eyewitness testimony is not
accurate. Flipping a coin and deciding if the individual in question is guilty based on
eyewitness testimony yields better result than if an eyewitness takes the stand, because of
the fact that 3/4 of the individuals who are wrongfully accused is because of eyewitness
misidentification.
The root of the problem is the police officers. Without them knowing it they are
putting their eyewitness through the misinformation effect. Police officers should go
through a seminar that explains to them how to properly interview an eyewitness without
asking question that will skew with their perceptions of events. Pedestrians think very
highly of police officers, and so if police are biased or bring in incorrect information the
witnesses will believe them. It is not necessarily the police officers fault that this occurs,

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because as Elizabeth Loftus proved, slight wording of questions can have an important
impact on responses. It is also imperative that eyewitnesses have no contact with each
other in hopes to prevent discussion of the events, because this too will lead to the
misinformation effect. The next group of people who should be well informed on the
malleability of human memory is the jury, since they are the ones who ultimately get the
last vote in court cases. A short video should be shown to the jury, which explains to them
how wrong eyewitnesses can be. The video will entail statistics and explanations as to
why one should not solemnly trust what the eyewitnesses have to say because of the
different factors that can change human memory. The video should take credibility away
from eyewitness testimony, and instead add it to scientific evidence. Many jurors
disregard evidence such as DNA because of its complexity, however many of them do not
know how extremely accurate the science is. Both the video and the defense should stress
the importance of DNA evidence; If they go into trial with the knowledge that eyewitness
testimony is not as reliable as many thought then we can decrease the number of
wrongfully convicted by 70%, giving back the life to many individuals who would have
spent decades in prison for a crime they did not commit.
If these steps are taken then our court system will become that much greater. If the
jury is well informed, when an eyewitness comes up to the stand they will understand that
what they say cannot be 100% credible, which leads for an innocent person not to be
wrongfully accused.

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Endnotes
1. About Federal Courts uscourts. web. Apr. 2016.
<http://www.uscourts.gov/about-federal-courts>
2. Purpose and Responsibility for courts. Nacmnet. Web. Apr. 2016
<https://nacmnet.org/CCCG/cccg_1_corecompetency_purposes_cgsummary.html
>
3. Innocence Project innocence project. Web. Apr 2016.
<http://www.innocenceproject.org>
4. About the Registry. Law. Web. Apr 2016
<http://www.law.umich.edu/special/exoneration/Pages/about.aspx>
5. Death Penalty Information Center. Deathpenaltyinfo. Web. Apr. 2016. <
http://www.deathpenaltyinfo.org/innocence-and-death-penalty>
6. The staggering number of wrongful convictions in America. The Washington
Post. Web. Apr. 2016 <https://www.washingtonpost.com/opinions/the-cost-ofconvicting-the-innocent/2015/07/24/260fc3a2-1aae-11e5-93b75eddc056ad8a_story.html>
7. Ibid
8. Scalias perfect capital-punishment case falls apart. MSNBC. Web. Apr. 2016
<http://www.msnbc.com/rachel-maddow-show/scalias-perfect-capitalpunishment-case-falls-apart>
9. Innocence Project 2016
10. Theories of Communication natescommunication. Web. Apr. 2016. <
http://natescommunication.blogspot.com/2012/09/what-is-difference-betweenperception.html>
11. Misinformation Effect in Psychology: Examples & Overview study. Web. Apr.
2016 < http://study.com/academy/lesson/misinformation-effect-in-psychologyexamples-lesson-quiz.html>
12. Ibid
13. Ibid

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14. 9/11 national memory survey on the terrorist attacks. 9/11 memory. Web. Apr.
2016 <http://911memory.nyu.edu>
15. Ibid
16. Stress and glucocorticoids impair retrieval of long-term spatial memory.
Nature. Web. Apr 2016
<http://www.nature.com/nature/journal/v394/n6695/full/394787a0.html>
17. Criminology 201. Prof. Timothy Robicheaux. Lecture on eyewitness testimony,
Word document. Case Profile: Ronald Cotton. Mar 2016
18. John P. Rutledge. Academic.udayton. Web. Apr 2016.
<http://academic.udayton.edu/race/03justice/justice03.htm>
19. Eyewitness Misidentification. Innocence Project. Web. Apr 2016
<http://www.innocenceproject.org/causes-wrongful-conviction/eyewitnessmisidentification>

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