It's a warm summer evening in Virginia where a nine one one operator answers a call. There's a woman on the other end of the line. She says she's been attacked. Police arrive at the victim's home and they take a statement, the victim, a white woman, says that as she was walking to her apartment, she came across a man laying on the ground. He was clutching his leg. She thought he must have fallen off the bike that was toppled over next to him.

So she bent down to help him. And that's when he grabbed her beater and raped her.

The victim told the police everything she could remember about her attacker. She said the man was black with a light complexion. He had a mustache, a beard and some scratches on his face. Before the attacker left the scene of the crime, he told the victim some vague details about his life. He told her that he had, quote, had other white women. The police escort the victim to the hospital where a rape kit was taken and sent off to a crime lab.

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Check out where the bodies are buried wherever you get your podcast. You're 18 years old, just graduated from high school since you were 13. You knew that you wanted to be a firefighter and now you're doing it. You're tending the fire academy this summer. You're also working at a theme park, collecting tickets, running the rides. It's not the most glamorous job, but he pays the rent. A few months ago, he moved out of your parent's house and into an apartment with your girlfriend.

Everyone says you're too young, but you don't care what they think, you're planning your future together. One evening, you finish up your shift at the theme park and head to the office to clock out, you see a cop there chatting with your boss, you don't think much of it. There's always some security or police at the park. But then you see your boss sort of flick his head in your direction. And when you try to leave the office, the cop stops you.

He says, hey, let me talk to you for a minute. Have you heard about the raid that took place a few days ago, not too far from here? It's like he knew that this crime had been on your mind, you've been making your girlfriend lock the door behind you every time you leave the house, you say, Yes, sir, I did hear about it. Do you know who did it? The officer says he has some questions and asked you if you'll come to the police station with him.

When you get there, the officer takes you into a small room with a table and a few chairs, he says, wait here, you'll stand in as part of a police line up and I'll come back and get you in a few minutes. It dawns on you you're not just here to answer questions, you're a suspect in this crime. You call out to the officer. Wait, what am I doing here? He says the rapists said that he had been with other white women, don't you live with your white girlfriend?

He closes and locks the door behind them. You lean over in your seat and cover your face with your hands. Who would have known information about your personal life and try to use it against you? Was it one of those cops that used to stop by the fire station when you were at the training academy, maybe they saw your girlfriend dropping off dinner at the fire station one night you stop and take a deep breath reminding yourself that being a black man living with your white girlfriend isn't a crime.

At least it's not supposed to be. Not anymore. And yet none of this seems to matter, someone, some cop already had their eye on you for this very reason, but you didn't do anything wrong and you're hopeful that the victim's memory of her attacker will set things straight. What you don't know is that just down the hall from where you're sitting, the woman who called 911 one few days ago is sitting in front of six pictures. An officer tells her to pick out the face of the man who attacked her.

All of the photos set out in front of her are black and white mug shots, except for one yours. You've never been in trouble with the law and so you don't have a mug shot. Instead, the cop that showed up at your job took a picture of your I.D. card from the theme park and slipped it into the photo lineup. Yours is not just the only one that's not a mug shot. It's also the only one that's printed in color.

Suit immediately grabs the woman's attention. She chooses your photo and says, I think that's him. The officer comes back in to get you, he brings you into a room with a window in it and asks you to stand in a line on some, these other men are known as fillers. None of these fillers are potential suspects. The point of them is to see if the victim can identify your face, amongst others, who are supposed to resemble the suspect.

None of these other people's faces were in any of the photos the victim saw except for yours, your color photo I.D. That's the only photo that matches the face of anyone in this lineup. There's an officer at the front of the room and he starts barking out orders to you and the fellers. Stand there and look straight ahead. Now, turn to your right now, turn to your left, you follow the directions that are being shouted out. You can't see her because she's on the other side of a one way mirror, but the victim points you out, she says it's him, I'm sure of it.

And that's all the information the cops need to hear and you are arrested on the spot. You sit in jail wondering what in the world you're supposed to make of how this woman mistook you for someone else, you look nothing like the witnesses original description of her attacker. She'd reported that he had light skin, a mustache, a beard and scratches on his face. You have dark skin. You're almost always clean shaven. There are no scratches or marks on your 18 year old face.

How could that picture in her head, the memory of her attacker, changed so much in such a short amount of time? What is it about that lineup that made her choose you? You eventually stand trial in front of an all white jury of eight women and four men. You were taught your entire life to trust law enforcement, to believe in this system of justice, the police officers, judges, lawyers, jurors, they were all there to figure out the truth, to do the right thing.

But that image come shattering down when the jury comes back and find you guilty of rape, abduction, robbery and forced sodomy. The judge sentences you to two hundred and ten years in prison. After the sentence is read, you slowly look behind you. You try to find your mom, your family, you know, they're sitting just behind you, but you can't see a foot ahead of you. Everything goes black. The story you just heard is based on the true events, Marvin Anderson's wrongful conviction six years after he was sentenced to life in prison, another man confessed to attacking the woman who had misidentified Marvin.

The man that confessed presented new details to a judge that seemed to prove his guilt in Marvins innocence. Still, the judge did not vacate Marvin's sentence. Marvin wrote a letter to the Innocence Project and they took up his case. After years of work, lawyers at the Innocence Project were finally able to convince the judge to compare Marvins DNA with the DNA from semen recovered from the victim when the rape kit was performed. Marvin was not a match, but another man was a match, the man who had confessed to the crime.

After 15 long years in prison, Marvin walked free and became the 90 ninth person to be exonerated based on DNA evidence. He's since become chief of the Hanover, Virginia Fire Department and serves on the board of the Innocence Project. I'm Josh Juban, civil rights and criminal defense attorney, Innocent's ambassador to the Innocence Project in New York today on wrongful conviction junk science. We examine eyewitness testimony when a witness points to a suspect and says that's the person who committed this crime.

There is nothing more convincing to a jury, but it is dangerously inaccurate. Over two thirds of people who are later exonerated based on DNA evidence or convicted based on eyewitness testimony. It may sound like a simple premise, but in order for eyewitness testimony to work and be reliable, we need to rely on our own memories and those of others. But it turns out, just as physical evidence can be manipulated, contaminated or even planted, so too can memories.

In the early 80s, Professor Wilhelm wasnt the father of modern psychology, was giving a lecture at the University of Leipzig in Germany, one of his students attending the lecture was Hugo, Munsterman and Hugo. When he heard this lecture, he was hooked.

He was so fascinated by psychology and he began to study under the father of psychology himself after completing his studies. Hugo started working at Harvard University, where he led the experimental psychology lab.

Hugo was especially interested in the concrete everyday applications of psychology. He wanted to study if and how psychology impacted juries and trial outcomes. And so he began to run experiments on the memory of eyewitnesses in one of his famous experiments. Hugo tested the memories of both adults and children. He showed them a photo in it. There was a farmer sitting at a table eating some soup. Hugo had his test subjects, looked closely at the photo, then he took the photo away, Hugo then asked some open ended questions about it, like, what did you see in the photo to these questions?

The witnesses responded. There was a man in the photo eating his soup. Their memories were accurate. But then Hugo started asking what he called suggestive questions. He asked, for example, did you see the stove in the room? Many of the eyewitnesses answered, yes, they saw the stove, but there was no stove in the photo. Hugo found that through asking suggestive questions like these, he was able to get his test subjects to remember dozens of objects in the photo that never existed.

In another experiment, Hugo sat at a desk at the front of a room and told the students, Remember every detail of what I'm about to do? Starting now with his right hand, Hugo took out a colorful desk and began to spin it while staring at the desk that he was spinning with his right hand. He used his left hand to take out a pencil and write something down on a piece of paper, keeping that desk spinning in his right hand.

He used his left hand again to take out a cigarette case, open it, take out a cigarette, shut the case with a loud click and put it back into his pocket. And a 100 students who saw this demonstration, only 18 of them were able to report what Hugo had done with his left hand. And so Hugo was not only able to show that witnesses might fabricate details of a memory that never existed, but they are also likely to not remember many details of events that happened right in front of their faces.

These experiments also demonstrated that the memories of two different people observing the same event or photo could be wildly different, despite the fact that they had no stake in lying or making the outcome of the events appear to have happened one way or another. Hugo also concluded that the witness, his own claim of certainty didn't necessarily mean that their memories were more accurate. A witness might say, for example, that they were absolutely certain that there was a stove in the photo or that he or she was certain that all Hugo did was spin a disc in his right hand.

But even as they claim certainty, there was proof that their memories were incorrect. When his book on these experiments was published in 1998, The New York Times wrote that his studies had the potential to revolutionize courtroom procedure and to, quote, bring light and order in domains where all or almost all is darkness and confusion. But that's not what happened, because Hugo also had many critics who scoffed at his attempt to apply psychology to the courtroom. And so courtroom procedure around eyewitness testimony was not completely revolutionized.

To this day, countless innocent men and women are sent to prison based on faulty eyewitness testimony. Over a half a century after Hugo's research was mocked, psychologist Elizabeth Loftus took another look at eyewitness testimony with a more modern take on Hugo's experiments. She was able to prove just how unreliable eyewitness testimony is and why it shouldn't be trusted as the gold standard of evidence in a courtroom or in a police lineup. Many people, unfortunately, believe that memory works like a recording device, you take in the information, you record it, you just play it back the way some kind of video recorder would work.

And that is not really the way memory works. What happens when we're remembering something is we we tend to take bits and pieces of experience, sometimes from different times and places. We bring it together and we construct a memory. So I like to think of memory a little bit more, not like a recording device, but more like a Wikipedia page. You can go in there and edit it, but so can other people. Today on our show, we're speaking with renowned psychologist Elizabeth Loftus.

Elizabeth is currently a professor at the University of California, Irvine. She studies human memory, specifically the malleability of memory, which, of course, is a huge factor in cases where eyewitness testimony is used as evidence.

So, Elizabeth, can you tell us about some of the experiments that you worked on to study memories of eyewitnesses? You know, one of the ways that I and my collaborators have studied memory and hundreds of studies, probably now 40, 50 thousand participants over the course of my career, one of the ways that we study memory is we'll show people a simulated crime. For example, we will then expose people to some new information about that crime. So they might have seen a bad guy take a wallet out of somebody's purse and he's wearing a green jacket.

But they then get misinformation from another witness or from a leading question that the jacket was brown. And finally, we will ask our witnesses, tell me exactly what you saw. Give me as much detail as you can remember, and many of them will then remember that the jacket was brown and not green. Or we can make them believe the bad guy had curly hair instead of straight hair, all by exposing people to new information, misleading information, it impairs their own memory.

And this is now referred to in the psychological literature as the misinformation effect.

So give me another example. What are some other experiments you did where misinformation just kind of gets slipped into the person's memory with without them even knowing it? We've shown people a simulated accident, a car goes through an intersection with a yield sign and then ends up hitting a pedestrian and pedestrian falls over, a police officer, comes to tend to the pedestrian is lying down on the on the ground. Afterwards are our witnesses are asked a series of questions. And one of those questions might be, did another car pass the red dots?

And when it was at the intersection with the stop sign. Now, that is a very clever question. Just so you can appreciate the cleverness you was the witness. Think I'm asking you about whether another car passed while the Dotson was stopped. You revitalised the scene and in your visualization, you might put in a stop sign that I've mentioned is part of the question you think you're answering about whether another car stop, but this stop sign kind of invades your consciousness almost like a Trojan horse.

You don't even detect that it's coming. And after that, many people will then claim I saw a stop sign at that intersection and you can show them to scenes, the scene with a stop sign or the scene with a yield sign.

They'll pick the one with the stop sign. They have succumbed to the question and fall in sway, to which suggestion? And now it appears as if this is their memory. Now, I want to get back to the way cops influence a witness, I've dealt with cases where cops know who the suspect is and do things either consciously or even unconsciously, I guess, to encourage the witness to choose the person that they believe is their suspect. Have you dealt with anything like that in your research?

One of my favorite examples, the case I testified in, in California, there's a crime.

The eyewitness has shown a six pack, six photographs. The eyewitness says, I really don't recognize anybody. And the officer says, wait a minute, I see your eyes drifting down to number six. What's going on there? Eventually, number six gets seized upon, identified, and that's the person who gets prosecuted. So there's a highly suggestive thing going on here. I'm willing to certainly to give these officers the benefit of the doubt and say they they're not even aware in a way of their own influence and that a lot of what's happening is kind of unwitting.

So, look, an alleged expert in jury selection and people are always saying to me, like, how does this affect you or are you always trying to psychoanalyze me? So tell me a little bit about how this, you know, deep knowledge of memory impacts. You define yourself like not trusting your own memory at times. Well, one experience that I do have from all these decades of doing this kind of work is I understand that along with those sort of bits of truth are bits of fiction intermingled in there.

And I'm not bothered by that. And I understand that's part of of the the malleable nature of memory. I think what this acceptance has done for me is it makes me a little bit more tolerant of the mistakes that friends make or family members make or even I myself might make. I don't immediately assume somebody is a big, fat liar. They could honestly have a false memory. And I think it's a kind of kinder way to feel about people.

OK, so that's pretty interesting. Do you think this same kindness as you referred to it, that you offer love to your friends, your family, even yourself? Do you think we should offer witnesses the same kind of kindness in court cases? Do you want to call these people a liar or do you want to accept the fact that maybe some kind of process has led them to develop a set of beliefs and things that feel to them like memories? And it is kinder even in a court case?

I think sometimes for for lawyers who are challenging these memories, to talk about them as potentially false memories rather than talk about the accuser as being a big, fat liar.

So you're an expert witness in a lot of cases that depend on eyewitness testimony. You know, we've talked a lot throughout the course of this podcast about how some expert witnesses aren't basing their testimony on good science or facts. But you're not that kind of witness. I mean, you've been studying memory for years and years and you've done experiments and, you know, tested this with thousands of participants. You have a lot of data to back up what you testified to in court.

But tell me, have you ever heard a witness testifying in court or read their testimony? And it kind of made you think, well, this isn't science at all. They're actually twisting this so much that it's more like junk science. I guess what I've seen happen in some cases, and this bothers me, where I think opposing experts are introducing junk science, it's about trauma. They want to introduce a science that basically says traumatic memories are completely different.

Traumatic memories are stored in the body. A traumatic memories can be relied on. Traumatic memories kind of don't have the same problems. In fact, traumatic memories operate under similar in similar ways. They fade over time. They can be influenced by post event information. There are just lots of features of of memory that are true, whether you're trying to remember something that's upsetting or whether you're trying to remember something that is a little bit more neutral and less emotional.

You see this in the movies all the time. They're saying something like, I was so frightened when this happened. I'll never forget that face as long as I live. That's an expression of of the belief that this traumatic memory is sort of imprinted in the brain and is reliably and solidly there. And you just need to read it out. And that is not the way things work with with memory in general or even traumatic memories.

So tell us more about that, because I do think that when we hear about someone who has been raped or there's been a violent attack, our instinct is that we should believe them no matter what. Right. Like, why would somebody make this up? So how do we reconcile the desire to believe a victim or the natural tendency to believe a victim with the knowledge that memories just aren't the most reliable form of evidence? I think the way we reconcile all this is that when there is somebody with an accusation, we certainly listen to it and examine it and we don't want to uncritically accept every accusation, no matter how dubious.

And we don't want to routinely reject an accusation just because we don't like how it sounds. So I do think there is a way to reconcile these two seemingly conflictual driving forces. But I don't think we forego our democratic principles and forget about the fact that that we're proud to have a legal system that respects the rights of the accused to to have a defense.

Yeah, I mean, it's a tough dilemma, right? Because I've had that instance just last week where, you know, I'm defending someone who I believe to be innocent. And, you know, I when people hear about the case or you tell them about the case, you know, at least what's public knowledge, you know, the reaction is, well, why would somebody make up, you know, a accusation of sexual assault, for instance?

But the reality is that they may not be consciously making it up. It may not be a conscious lie. It may just be that their perception and their what they think is their reliable memory is just not correct. Now, look, I have my own ideas. And, you know, the Innocence Project, as you know, has done a ton of policy work around this and trying to get reform achieved in law enforcement across the country in the way they go about instituting lineups and, you know, eyewitness identifications.

But you tell tell me what you think. What do you think is a way that we can reform the system so that eyewitness identification would be more accurate? First of all, one thing that is important, when law enforcement is conducting some kind of test, whether it's with photographs or whether it's with a live lineup, how do you conduct the test? What instruction do you give to the witness who conducts the test? Who were the fillers? The people who were put in the set of photos or put in the lineup along with your suspect?

Each of these issues is important and there are best practices that have been devised by scientists and very thoughtful people in the legal field about what those best practices should be. So best practice, the person conducting the tests should not know who the suspect is. That's one of the most important things. In other words, the person conducting the tests should it should be what's called a double blind test. The witness doesn't know who the suspect is and the person conducting the test doesn't know who the suspect is.

And why that's important is because that means that the person conducting the test cannot inadvertently cue the witness as to who to pick. And the investigator cannot give feedback to the witness, cannot say good job. That's our suspect. That's who we think did it. Another witness picked that same person. This kind of feedback artificially inflate the confidence of the witness and makes them a more powerful witness at the time of the trial, more impervious to cross-examination. It's not a fair situation.

So blind testing is one simple reform that's been suggested. How about the instruction you give to the witness? It's very important to have an unbiased instruction to say to the witness the person may or may not be in this lineup. It's just as important to exonerate the innocent as to find the guilty person. You're trying to take pressure off of the witness, take the pressure off so they don't feel they've got to pick someone, anyone in order to solve the case.

So that's why that instruction is important. Then there are other issues like who you put into the lineup. What should the fillers look like? Do they just resemble the suspect? No, they should also resemble the description that the witness gave. So if the witness said, you know, a skinny guy with medium length hair, you want basically skinny people with medium length hair fitting the description, not just fitting the characteristics of the suspect.

What is the biggest takeaway that you think our listeners should have from today's episode? Just because somebody tells you something and they say it with a lot of detail and they say it with confidence and they even show emotion when they tell you it doesn't mean it really happened, it doesn't mean it really happened exactly that way. You need independent corroboration to know whether you're dealing with an authentic memory or one that is a product of of some other process of imagination, suggestion, misinterpreting dreams or some other non authentic process.

We always try to end each episode with a call to action, so I've been thinking about the lessons from today's interview with Elizabeth and just how interesting, informative and and really eye opening it's been when someone's freedom hangs in the balance. We should leave open the possibility that when someone takes a witness stand and claims to have watched a crime unfold or says they are sure they saw the defendant leaving the scene of a crime, they may not be accurately conveying what happened and not because they're intentionally lying or even shading the truth, but their memory may have been influenced in some way.

So consider the surrounding circumstances, whether they were fed information, if there was a suggestion about who may have committed the crime by a member of law enforcement, if the methods used to, quote unquote, identify a perpetrator or influenced in a way that made the accused stand out. And maybe it's not the most reassuring thing that in an era when it seems that misinformation is rather popular and it's sometimes difficult to know what the truth actually is. Here is yet another reason to doubt our perception of reality.

But remember, your willingness to remain open to all credible possibilities may in fact prevent the next wrongful conviction. Next week on our final episode of the season, we'll explore how what's known as Shaken Baby Syndrome has been used to falsely implicate people in crimes they did not commit. We'll discuss this with executive director of the Center for Integrity and Forensic Sciences, Kate Johnson. Wrongful conviction, junk science is a production of labor for good podcast's in association with signal company no one expects, thanks to our executive producer Jason Flom and the team at Signal Company No.

One, executive producer, Kevin Mortise and senior producers Capricorn Habour and Brett Spangler. Our music was composed by Jay Ralph. You can follow me on Instagram at Duban. Josh followed the wrongful conviction podcast on Facebook and on Instagram and wrongful conviction and on Twitter at conviction.

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