The Journal of Things We Like (Lots)
Select Page

Unfair begins with a reminder that medieval methods of factfinding now mocked—“fishing a ring out of a boiling cauldron, carrying an iron straight from the fire, or being plunged into a vat of water”—were employed in their era because they were understood to be cutting-edge analytical techniques. The point, which Adam Benforado drives home with startling, embarrassing force, is that our criminal justice system is in its own dark age, relying on techniques known to be inaccurate and to lead to erroneous results.

Some critiques are familiar, such as that interrogation using the Reid Technique can lead to false confessions, that there are many incompetent defense lawyers, that police and prosecutors sometimes suppress exculpatory evidence. But their unrelenting expression, from the predictable weaknesses of criminal investigation to the established disutility of certain forms of imprisonment, leaves the reputation of the system in tatters. Unfair ends with reasonable and creative, albeit politically improbable, suggestions for reform.

Unfair uses insights from cognitive science and related fields, including research by the author, to explain why our criminal justice system is often a solemn farce. Chapter 1 reports the tragic tale of David Rosenbaum, found lying incoherent on a Washington, D.C., street one evening by EMS. The paramedics jumped to the conclusion that he was drunk; doctors and nurses at the hospital relied on that diagnosis and left him essentially untreated. In fact, he had been struck in the head in the course of a robbery. Rosenbaum, a retired New York Times reporter, died; Senators Orrin Hatch and Ted Kennedy, among others, attended his funeral.

It may be consistent with intuition that public services in a big city could fail. But DNA evidence, our precious, infallible DNA, seems to be subject to the same confirmation bias. Unfair recounts a study where scientists were asked to see if a known sample matched crime scene evidence. The outcomes varied widely depending on whether those performing the test were given a backstory strongly indicating guilt.

Jurors have the luxury of not being under direct stress when making decisions. They have time to deliberate and reflect. Yet, their decisions often rest on unconscious considerations, such as the race or appearance of witnesses or parties, or on other grounds that are in fact not relevant, such as the level of confidence expressed by an eyewitness.

In what will undoubtedly be one of Unfair’s most controversial propositions, Chapter 3 expresses doubt about the existence of free will, and seeks “to eliminate the myth that poor character or an evil soul is behind criminal behavior.” It points out that many people in prison suffer from mental illness, or experienced head injuries. Some forms of misconduct seem to be genetically influenced, and the chapter outlines the theory that childhood exposure to lead explains, in whole or part, the crime rise of the 1960s and beyond. (While I admit that many criminal impulses result from forces that are not the fault of the individual or within his or her control, at the margin, I believe that many criminal impulses can be resisted.)

Unfair’s unwillingness to point the finger is bipartisan; like offenders, the criminal justice system itself does not recognize its actual motivations. For example, “the key to prosecutorial misconduct” in the sense of suppressing exculpatory evidence is surprising: “most lawyers aren’t consciously trying to cheat defendants; they’re just extremely good at deceiving themselves.” When a cop or prosecutor is trying to put a guilty person in prison, no evidence, obviously, can be exculpatory, because the person is guilty. Therefore, the rationalization might go, not disclosing an alibi witness or a no-match DNA test is suppressing mistaken rather than exculpatory evidence.

The criminal justice system officially prides itself on having no bias; “equal justice under law” is inscribed on the Supreme Court building, built in 1932, when African Americans and others could be freely excluded from the jury room and voting booth. Because various forms of cognitive bias are the natural human condition, Unfair proposes to recognize, manage, and reduce bias, instead of pretending that it does not exist. “To hear the law tell it, we are supermen and wonder women, able to rise above our prejudices, see through lies, and recall past events with crystal clarity.” Perhaps the clearest evidence that no party believes this is true is the fact that all plaintiffs and defendants in serious cases will, if they have the resources, hire jury consultants to determine what demographic groups are most likely to be biased in their favor, and what kinds of arguments and evidence will most effectively trigger that bias.

Unfair’s ultimate ambition is, to the extent possible, to squeeze out the causes of inaccurate results and biased policies. Improved forensic science and investigative techniques, as well as increasingly ubiquitous video recording, will help. Unfair also recommends more attention to crime prevention, cost-effectiveness of various policies, and reintegration of former offenders into society.

Perhaps the book’s most original proposition is to use modern technology to make trials less biased. For example, instead of issuing ineffective curative instructions after improper questioning or argument, the proceedings could be recorded, and juries presented only with clean, admissible evidence.

Virtual trials could go even further. Benforado writes, “In most trials, there is no compelling reason for jurors to inspect the defendant, witness, or attorney in the flesh. And preventing jurors from doing so might yield significant benefits.” The race, ability, and appearance of lawyers, and others, has no correlation with the underlying facts, and therefore no legitimate relationship to the outcome. The system could extract the appearance, voice, race, and gender of trial participants, by using avatars or standardized voices. This would be a radical change, but deprives jurors of nothing they are entitled to know.

No one denies that the criminal justice system should be based on reason and respect for our fellow humans, but Unfair compellingly insists that to do that will require accepting some uncomfortable truths. Every lawyer and judge working in the criminal justice system should read this book. Those who take it seriously will sleep uneasily for quite some time.

Download PDF
Cite as: Gabriel "Jack" Chin, Can We Improve on the Ordeal of American Criminal Justice?, JOTWELL (September 12, 2016) (reviewing Adam Benforado, Unfair: The New Science of Criminal Injustice (2015)),