tag:theconversation.com,2011:/africa/topics/ferguson-grand-jury-13741/articlesFerguson grand jury – The Conversation2017-08-08T00:57:30Ztag:theconversation.com,2011:article/821972017-08-08T00:57:30Z2017-08-08T00:57:30ZThe grand jury’s role in American criminal justice, explained<figure><img src="https://images.theconversation.com/files/181296/original/file-20170807-9597-1imi1c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Special Counsel Robert Mueller.</span> <span class="attribution"><span class="source">AP Photo/J. Scott Applewhite</span></span></figcaption></figure><p>Grand juries play a major role in the U.S. criminal justice system.</p>
<p><a href="http://time.com/4887147/robert-mueller-grand-jury-donald-trump/">Special Counsel Robert Mueller</a> has called upon a federal grand jury to help him investigate Russia’s role in the 2016 election. It is a logical step in an investigation where there is some evidence that needs to be be gathered. Even before this grand jury, there was <a href="https://www.theatlantic.com/politics/archive/2017/06/mueller-michael-flynn-turkey/529011/">another grand jury impaneled</a> to look into business dealings and campaign contacts of President Donald Trump’s former national security adviser, Michael Flynn. The new grand jury widens the scope of the investigation, and it is likely focusing on others associated with the Trump campaign.</p>
<p>A grand jury does not mean that the investigation will lead to any formal criminal charges, which are known as indictments. There was a grand jury that issued subpoenas during the investigation into <a href="http://www.judicialwatch.org/press-room/press-releases/judicial-watch-fbi-court-filing-reveals-grand-jury-targeted-hillary-clinton/">Hillary Clinton’s email server</a>, for example, but no one was charged with any crimes. </p>
<p>In order to understand grand juries and their work, I offer the following explanation of how federal and state grand juries are used in the U.S.</p>
<h2>Legal basis: Federal and state</h2>
<p>The <a href="http://constitution.findlaw.com/amendment5.html">Fifth Amendment to the U.S. Constitution</a> provides the legal basis for grand juries. In federal criminal cases, federal grand juries are made up of 16 to 23 members. They decide whether to indict someone who is being investigated, and at least 12 grand jurors need to agree to issue an indictment. </p>
<p>In addition to considering whether individuals may have committed a crime, a grand jury can also be used by a prosecutor as an investigative tool to compel witnesses to testify or turn over documents. <a href="https://www.washingtonpost.com/politics/special-counsel-mueller-using-grand-jury-in-federal-court-in-washington-as-part-of-russia-investigation/2017/08/03/1585da56-7887-11e7-8f39-eeb7d3a2d304_story.html?utm_term=.0041dedbde14">Reports</a> indicate Mueller is using a grand jury for the latter.</p>
<h2>Makeup of a grand jury</h2>
<p>Grand jurors are usually chosen from the same jury pool as trial jurors. For a federal grand jury, all U.S. citizens over the age of 18 living in the federal district court’s geographic jurisdiction are in the pool. </p>
<p>Court clerks first identify members of the grand jury pool from public records, including records of licensed drivers and registered voters.</p>
<p>Next, prospective grand jurors are screened, usually through questionnaires. </p>
<p>To be a member of a federal grand jury, a person has to be adequately proficient in English, have no disqualifying mental or physical condition, not be currently subject to felony charges punishable by imprisonment for more than one year and never have been convicted of a felony (unless civil rights have been legally restored). The court then randomly chooses candidates for the grand jury from this pool.</p>
<h2>Work of the grand jury</h2>
<p>In all felony cases, there must be a “probable cause determination” that a crime has been committed in order for a case to move forward to a trial or a plea. “Probable cause” means that there must be some evidence of each element of the offense. In the federal system, a grand jury is the body that makes the probable cause determination. In many states, like Missouri, the probable cause determination can be made either by a <a href="https://ago.mo.gov/docs/default-source/publications/courtprocess.pdf?sfvrsn=4">grand jury or at a preliminary hearing</a> before a judge. </p>
<p>When there is an option for either a grand jury or preliminary hearing to determine probable cause, the prosecutor decides which one to use. For example, in the shooting death of Michael Brown by police officer Darren Wilson, the St. Louis County prosecuting attorney brought the <a href="https://theconversation.com/explainer-the-grand-jury-in-the-darren-wilson-case-and-beyond-34857">evidence to a grand jury</a> rather than choosing to present evidence to a judge through a preliminary hearing. In serious cases like murder, most prosecutors use the grand jury because it is usually quicker than a preliminary hearing.</p>
<p>Most people whose cases go to the grand jury have already been arrested. These include all of the cases in which a person is arrested while committing a crime or shortly after the crime has been committed.</p>
<p>In some cases, like the Russia investigation, prosecutors do not have all the evidence they need to make a good case. In these investigations, a grand jury is used to help with the investigation. Once the grand jury is impaneled, the prosecutor has the ability to subpoena records and witnesses. </p>
<p>Subpoena power means the prosecutor can compel witnesses to turn over documents and to testify. If the prosecutor obtains sufficient evidence of a crime, the same grand jury has the power to indict whomever it believes has committed a crime.</p>
<p>The work of a grand jury is required by law to be done in secret, so the public has no right to know who is subpoenaed or what documents the grand jury is reviewing. Even though the grand jury work is secret, federal rules and a majority of states permit grand jury witnesses to discuss what occurred when they testified. </p>
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<a href="https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=487&fit=crop&dpr=1 600w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=487&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=487&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=612&fit=crop&dpr=1 754w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=612&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/181295/original/file-20170807-25539-17c5ww3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=612&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">President Clinton in videotaped grand jury testimony Aug. 17, 1998.</span>
<span class="attribution"><span class="source">AP Photo/APTV</span></span>
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</figure>
<p>In some high-profile cases, witnesses subpoenaed to appear before the grand jury will talk to the press if they think it will be helpful to them. For example, when President Bill Clinton testified before a grand jury during the investigation into Whitewater and Monica Lewinsky, <a href="http://www.history.com/this-day-in-history/clinton-testifies-before-grand-jury">he went on national television </a>and announced that he had testified.</p>
<h2>Potential dangers</h2>
<p>The secrecy of a grand jury presents some dangers. The defendant does not know the evidence being considered, does not have a right to be present and cannot question the evidence early in the criminal justice process. As a result of the secrecy, the grand jury can also end up being a tool of the prosecution, and the prosecutor can choose to withhold evidence that is favorable to the accused. That is why a former chief judge of the New York Court of Appeals, the highest court in New York, <a href="http://www.nytimes.com/1985/02/18/opinion/do-we-need-grand-juries.html">famously said</a> that a prosecutor could get a grand jury “to indict a ham sandwich.” </p>
<p>These types of dangers are always present during any grand jury, and getting a grand jury to issue an indictment may be easy. But, in high-profile cases, like the Russia connection to the Trump presidency, proving wrongdoing beyond a reasonable doubt through a trial or a negotiated guilty plea usually proves much more difficult.</p><img src="https://counter.theconversation.com/content/82197/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter A. Joy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>What is a grand jury, who serves on it and what is it used for? A criminal law expert tells you everything you need to know.Peter A. Joy, Henry Hitchcock Professor of Law, School of Law, Washington University in St. LouisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/351342014-12-08T11:01:44Z2014-12-08T11:01:44ZWhy it’s time for pervasive surveillance…of the police<p>Michael Brown’s recent shooting death by Ferguson police officer Darren Wilson illustrates the pressing importance of digitally documenting police activity, while Eric Garner’s case illustrates the limits. Had Officer Wilson been wearing a body camera, we would have a far better understanding of just what, exactly, triggered Brown’s death. But the existence of a video capturing Garner’s death-by-chokehold was not enough to persuade a New York grand jury to indict. So what does this tell us about the value of recordings? </p>
<p>We need recordings, and we need them not just to investigate high-profile shootings. There is a growing demand for accurate recording of the entire spectrum of police activity, making greater transparency of policing an urgent priority. However, recordings by themselves are not a magic bullet. </p>
<p>The need for more recording is undeniable. Unless a bystander has a cell-phone camera ready, our knowledge of contested facts too often depends solely on the reports of police officers and the citizens with whom they interact. Although we know that most police officers do make a good faith effort to accurately report the facts, we also know that some officers do not. For instance, according to a recent survey one out of every seventeen Denver police officers has been subject to administrative discipline for “departing from the truth” in matters related to their <a href="http://www.denverpost.com/ci_18448755">official duties</a> That figure counts only those who have been formally sanctioned. </p>
<p>Concerns about police dishonesty extend throughout the evidence-gathering phases of criminal procedure. Police officers have been found lying about observing suspects engaged in illegal activities, where and how contraband was recovered, and whether suspects consented to searches, were given <a href="http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=6013&context=law_lawreview">Miranda warnings, or confessed</a>.</p>
<h2>The mind can play tricks on us</h2>
<p>Even when police make good faith efforts to comply with the law, unintentional bias, poor memory, and sloppy procedures can undermine the accuracy of arrest reports, interview reports, and testimony. This leads investigators and courts to make incorrect inferences regarding the reliability or admissibility of evidence or even, in some cases, about a defendant’s substantive guilt. </p>
<p>Problems of this sort arise because the investigatory process occurs in a black box. Absent blind trust in the accuracy and honesty of first person accounts, we cannot be confident that we know what really happened.</p>
<p>While there are limits, digital recording technology presents a promising solution. Although some jurisdictions have begun to experiment with new recording technology, no jurisdiction has implemented a comprehensive digital recording requirement for all police activities. But it could be done. The technology now exists to cheaply and easily document all aspects of a police investigation. </p>
<p>Stationhouse questioning and lineup administration could be easily handled through use of conventional video recording devices. Dashboard cameras already record highway stops in numerous jurisdictions. For encounters in the field, as President Obama recent urged, so-called “body worn video” could cheaply and easily be used to document police-citizen encounters. </p>
<p>There are numerous reasons to use technology to monitor police activity. Visual recordings provide far more complete and accurate evidence of key evidentiary events, such as police-citizen confrontations, confessions and eyewitness identifications. Without recording, prosecutors, defense lawyers, judges, and juries are all left reconstructing the key events of an investigation based on often conflicting hearsay accounts from police, the defendant, and eyewitnesses. Given the ease of making a digital recordings, it is simply crazy to expect juries routinely to accept police officers’ hearsay accounts when they could instead be presented a real-time recording of the event.</p>
<p>Given the obvious advantages, the question is not whether we should routinely record police activity, but why such recording technology hasn’t already been more widely adopted. </p>
<h2>Police have their own reasons for objecting to video</h2>
<p>There are four main reasons. First, police departments believe, rightly or wrongly, that secrecy is vital to their effectiveness, and that courts and the general public will misperceive or misinterpret their conduct if they are caught taking shortcuts. Second, even entirely by-the-book police officers resist pervasive recording because of privacy concerns. Third, figuring out how to handle massive amounts of digital data presents real hurdles, and courts are reluctant to devote the resources needed to sift through the massive amounts of data that would be produced by pervasive recording, nor have they mastered how such data can be presented to jurors cheaply, efficiently, and consistent with traditional rules of evidence. Finally, police departments point to tight budgets as a reason not to invest in digital recording. </p>
<p>While these are real concerns, they are not insurmountable. Jurors are surprisingly sophisticated when it comes to understanding, and tolerating, legitimate but deceptive or devious investigative strategies. The police need for tactical secrecy must, at some point, give way to the need to deter police misconduct and document facts that might be critical to the determination of guilt and innocence. </p>
<p>Likewise, police officers’ potential privacy concerns, while understandable, are overstated. Employers generally are free to surveil their employees as long as they provide adequate notice. Police officers, moreover, are uniquely public actors and are routinely expected to perform their duties in front of spectators. (Of course, privacy concerns are not limited to police, and may be even more acutely felt by citizens who interact with them. Protections would need to be developed for them.) Finally, neither court procedures nor police budgets should stand in the way. The expense of digital cameras is relatively small. If using cameras prevents even one one major civil rights lawsuit, it would more than cover the costs. And whether or not we move toward widespread recording, big data is coming, and lawyers and courts will have to learn to handle it. The justice system will adapt.</p>
<p>Of course, cameras are no panacea. The Eric Garner case is only the latest reminder that people can see an event for themselves and still disagree about what happened. The difference, however, is that with the video, we have a basis for discussion. Like the Rodney King beating before it, the recording is the prerequisite for the conversation that followed. Factual knowledge is needed to figure out how, or whether, things must change. And increased transparency is needed not just in force cases, but at every stage of criminal justice. As both the Michael Brown and Eric Garner cases so tragically demonstrate, we need to know the facts. That much is obvious. Figuring out what to do with that knowledge is more difficult, and even more essential.</p>
<p>_</p><img src="https://counter.theconversation.com/content/35134/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Russell Dean Covey does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Michael Brown’s recent shooting death by Ferguson police officer Darren Wilson illustrates the pressing importance of digitally documenting police activity, while Eric Garner’s case illustrates the limits…Russell Dean Covey, Professor of Law, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/348572014-12-01T20:36:15Z2014-12-01T20:36:15ZExplainer: The grand jury in the Darren Wilson case and beyond<p>Now that the grand jury has decided not to indict Officer Darren Wilson in the shooting death of Michael Brown, an unarmed 18-year old man, there remain many questions about this grand jury and generally about the use of grand juries in the United States. </p>
<h2>The legal basis: federal and state</h2>
<p>The fact that twelve randomly picked impartial citizens played such a key role in the matter is a unique feature of the criminal justice system in the US.</p>
<p>The US Constitution and all state constitutions provide for grand juries. In federal criminal cases, federal grand juries consisting of sixteen to twenty-three members make all decisions to indict, and at least twelve grand jurors are necessary in an indictment, commonly called a “true bill.” </p>
<p>Provisions in state constitutions vary in terms of the size of grand juries. The Missouri Constitution calls for a twelve member grand jury, nine of which must concur in an indictment. </p>
<h2>The make up of the Ferguson grand jury</h2>
<p>Grand jurors in St Louis County are chosen from the same jury pool as trial jurors. A judge selects the grand jurors, and the judge tries to ensure that jurors are representative of the community. </p>
<p>The grand jurors who heard the case involving Michael Brown’s death were chosen in May, long before his death in August. </p>
<p>The judge chose nine white jurors and three African American jurors. Seven jurors were men and five jurors were women. They were from all parts of St Louis County, and the percentage of African Americans (25%) on the grand jury roughly equals the percentage of African Americans (24%) in St Louis County. The grand jury’s term was originally four months long – the normal term – but a judge extended the term in order for the grand jury to consider possible charges against Darren Wilson.</p>
<h2>The work of the grand jury</h2>
<p>In all felony cases, there must be a “probable cause determination” that a crime has been committed. Probable cause means that there must be some evidence of each element of the offense. Most serious criminal cases usually begin with the prosecutor charging a person with one or more felonies. After the person is charged, the prosecutor has the option of bringing the case to the grand jury for the probable cause determination or to go before a judge for a probable cause determination through a preliminary hearing. </p>
<p>At a preliminary hearing, the accused is present along with his or her lawyer who can cross-examine witnesses. In the grand jury, however, only the prosecutor is present along with the grand jurors: both the prosecutor and the grand jurors can question each witness. </p>
<p>The grand jury process excludes the suspect and the defense attorney because it is not supposed to be a mini-trial but rather solely determine if there is some evidence to support felony charges. Like a preliminary hearing, it is a check on whether there is probable cause to support felony charges but is a secret proceeding that is usually much quicker than a preliminary hearing. </p>
<p>In St Louis County, prosecutors usually bring serious felony cases or cases with numerous witnesses to the grand jury rather than a preliminary hearing because a police officer who has investigated a case can summarize his or her findings and witness statements to present the case more quickly than at a preliminary hearing where witnesses would be examined and cross-examined.</p>
<h2>What happened in the Darren Wilson case</h2>
<p>In this case, the prosecutor did not bring charges against Darren Wilson. Instead, the prosecutor used the grand jury in an investigative role to determine whether to indict Darren Wilson. Under existing law, the prosecutor has discretion to proceed in this way. Unlike a regular grand jury hearing where a prosecutor presents just enough evidence to support probable cause, the grand jury heard all of the evidence that the prosecutor had on the case as it considered. </p>
<p>Using a grand jury in this way is unusual. Prosecutors go this route in cases involving possible excessive force by police or possible charges of corruption against elected officials. For example, a grand jury in <a href="http://www.huffingtonpost.com/2014/11/29/grand-jury-decision-eric-garner_n_6240348.html">New York City</a> has been investigating the chokehold death of Eric Garner by a police officer since September. In August, a grand jury in <a href="http://www.usatoday.com/story/news/nation/2014/08/15/grand-jury-indicts-texas-gov-rick-perry-/14138843/">Texas</a> indicted Texas Governor Rick Perry on two felony counts for abusing his official power and coercing a public servant in an effort to force a district attorney to step down after she was arrested on drunk-driving charges.</p>
<p>In St Louis, Darren Wilson was permitted to testify, and he injected the defenses of a justified use of force and self-defense. The testimony by Darren Wilson is very unusual, because normally the suspect or, if charges have been filed, the accused, does not have an opportunity to testify before a grand jury. Indeed, in <a href="http://www.law.cornell.edu/supct/html/90-1972.ZO.html">United States v. Williams</a>(1992), the US Supreme Court observed that the accused neither has a right to testify nor to have the prosecution present exculpatory evidence (favorable to the defendent) to the grand jury. </p>
<p>Like any other witness testifying before a grand jury, Darren Wilson was not permitted to have an attorney present. The transcript of his testimony indicates that he was permitted to tell his version of what occurred. There were few hard questions put to him by either the prosecutors or any of the grand jurors.</p>
<p>Before the grand jury began their deliberations, the prosecutors instructed the grand jury that to return an indictment against Darren Wilson they had to find probable cause that he committed an offense. They were also told that to indict they would have to find <em>no</em> probable cause that either he acted in self-defense or that his use of force was justified under the law. These instructions likely led the grand jury, who heard conflicting testimony about what occurred, to decide not to indict Darren Wilson.</p><img src="https://counter.theconversation.com/content/34857/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter A. Joy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Now that the grand jury has decided not to indict Officer Darren Wilson in the shooting death of Michael Brown, an unarmed 18-year old man, there remain many questions about this grand jury and generally…Peter A. Joy, Henry Hitchcock Professor of Law, School of Law, Washington University in St LouisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/346922014-11-30T22:12:17Z2014-11-30T22:12:17ZVagaries of memory mean eyewitness testimony isn’t perfect<figure><img src="https://images.theconversation.com/files/65867/original/image-20141130-20606-1f9fm10.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Police often rely on witnesses to finger the right guy, but eyewitnesses are far from perfect.</span> <span class="attribution"><a class="source" href="http://www.shutterstock.com/pic.mhtml?id=121070422&src=lb-29877982">Lineup image via www.shutterstock.com.</a></span></figcaption></figure><p>Twenty eyewitnesses testified before the grand jury investigating the police shooting of Michael Brown in Ferguson, Missouri. None of these accounts is fully consistent with any other. Moreover, eyewitnesses even gave accounts that do not agree with their own earlier versions. To the public and the media, these discrepancies have been startling. </p>
<p>But psychological scientists who study human perception and memory are not surprised at all. In fact, had there been good agreement among the various witnesses, psychological scientists would have been very suspicious and speculated that something was amiss. Those of us who study eyewitness memory have long observed that these accounts are far less reliable than people – including the eyewitnesses themselves – tend to believe. </p>
<h2>Making a memory</h2>
<p>What causes these memory errors? In order to report accurately on a witnessed event, the witness must successfully encode information on what he’s seen, store it as a memory and then retrieve it. Each of these three stages is complex and imperfect. The final memory report can be no better than the weakest part of each of the three stages.</p>
<p>Consider the encoding, or acquisition, stage. While witnessing an unexpected, complex event there is often confusion, distraction and fear. On top of this, there is an illusion of sorts that we are taking in the details of the scene. But studies show that the brain is actually primarily absorbing the gist of the scene and few of the details. This reflects a phenomenon called <a href="http://www.gocognitive.net/demo/change-blindness">change blindness</a> – people tend not to notice visual differences in the details of a scene. So what actually gets stored in the second stage of memory is full of gaps. The brain doesn’t like gaps, especially when there’s a need to understand what was just witnessed. These gaps are often filled in unconsciously with inferences, deductions or other processes that are not very reliable.</p>
<p>The groundbreaking work of cognitive psychologist <a href="http://www.holah.co.uk/summary/loftus/">Elizabeth Loftus</a> illustrates vividly how memory changes after the witnessed event as a function of externally-provided information – even when that information is false. This can result in false memories. What is stored in memory is not a stagnant picture or video of the event but a constantly-edited record that evolves. Since we tend not to be aware of the editing process, we end up believing that the reconstructed memory is what we actually saw.</p>
<p>Finally, we have to retrieve the memory and retrieval itself can alter it. Every time we retrieve a false memory – privately to ourselves or by telling another person – it tends to strengthen that false memory. In the end we have a full story of what we saw, one that we might very confidently believe but might have only a very distant relation to what actually happened.</p>
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<a href="https://images.theconversation.com/files/65869/original/image-20141130-20582-wit2y0.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/65869/original/image-20141130-20582-wit2y0.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/65869/original/image-20141130-20582-wit2y0.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=440&fit=crop&dpr=1 600w, https://images.theconversation.com/files/65869/original/image-20141130-20582-wit2y0.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=440&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/65869/original/image-20141130-20582-wit2y0.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=440&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/65869/original/image-20141130-20582-wit2y0.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=553&fit=crop&dpr=1 754w, https://images.theconversation.com/files/65869/original/image-20141130-20582-wit2y0.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=553&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/65869/original/image-20141130-20582-wit2y0.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=553&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Since the courts rely heavily on eyewitness testimony, they should stick to recommended best practices.</span>
<span class="attribution"><a class="source" href="http://commons.wikimedia.org/wiki/File:CourtEqualJustice.JPG">Matt H. Wade</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<h2>Fallible memories and the legal system</h2>
<p>There is good documentation of how eyewitness unreliability plays out in eyewitness identification – when a witness points to an individual and says “that’s who I saw commit the crime.” Since the 1970s, <a href="http://public.psych.iastate.edu/glwells/">my research program</a> has conducted controlled experiments that show how easily witnesses will pick the wrong person from a lineup. Then, with only the slightest reinforcement, they become convinced and highly confident in their mistaken identification. Making this mistake then causes their memory to change to fit the person they mistakenly identified. </p>
<p>This kind of mistaken eyewitness identification is not just a laboratory phenomenon: since the advent of forensic DNA testing in the 1990s, hundreds of innocent Americans who had been convicted by juries and served hard time (some even sentenced to death row) have been <a href="http://www.innocenceproject.org/">exonerated by DNA tests</a>. Tellingly, approximately 75% of those exonerations were cases involving mistaken eyewitness identification.</p>
<p>The legal system has been slow to respond to eyewitness science. Despite the fact that the legal system relies very heavily on eyewitnesses, the legal system has no theory of memory, law enforcement is not educated about the workings of memory, judges are not trained on how memory works (and does not work) and a large percentage of courtrooms do not permit expert testimony on the reliability of eyewitness memory. </p>
<h2>How best to use eyewitness testimony</h2>
<p>This year, however, a blue ribbon panel of the National Academy of Sciences conducted an extensive review of the science on eyewitness identification. Among other things, the <a href="https://doi.org/10.17226/18891">Academy’s report</a> calls for all law enforcement agencies to provide their officers and agents with training about vision and memory, practices for minimizing contamination of eyewitnesses, and the use of effective protocols for obtaining and preserving eyewitness accounts. The Academy report also calls for the use of expert testimony about eyewitness reliability in certain cases as well as jury instructions that might help jurors make more informed judgments about eyewitness reliability.</p>
<p>None of this should be taken as evidence that eyewitnesses are always wrong. Eyewitness testimony is a critical tool in the legal system for reconstructing what actually happened. Too many bad guys would go free if eyewitness memory were completely discarded as a tool. But the legal system needs a more sophisticated appreciation for the vagaries of memory, how to avoid contamination of eyewitness memory and the conditions under which eyewitness testimony is more and less trustworthy.</p><img src="https://counter.theconversation.com/content/34692/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gary Wells receives funding from: The National Science Foundation</span></em></p>Twenty eyewitnesses testified before the grand jury investigating the police shooting of Michael Brown in Ferguson, Missouri. None of these accounts is fully consistent with any other. Moreover, eyewitnesses…Gary Wells, Professor of Psychology, Iowa State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/347392014-11-27T09:28:20Z2014-11-27T09:28:20ZFerguson: a tale of two competing narratives<p>Before the ambulance even came to collect the body of 18 year-old Michael Brown from the streets of Ferguson, it was clear that this case would be tried in the court of public opinion. Was Brown a “gentle giant” or a common thief? Had he attacked a police officer who had never before shot anyone, or been shot down by an intimidated cop before he had a chance to surrender?</p>
<p>Three separate autopsies agreed that Brown could have survived five shots, but not the one to his head that killed him. Was he surrendering, or charging a cop who was shooting at him? By the time Saint Louis County Prosecutor Robert McCulloch walked to the podium, in the middle of Monday night prime time television, to announce that a grand jury had decided there was no reason to blame Darren Wilson, it was clear that this case would not resolve as easily as an episode of “Law and Order.”</p>
<p>“The most significant challenge encountered in this investigation,” <a href="http://www.theguardian.com/us-news/ng-interactive/2014/nov/25/ferguson-grand-jury-decision-annotated?CMP=share_btn_tw">McCulloch said, </a> “has been the 24-hour news cycle and its insatiable appetite for something – for anything – to talk about.” </p>
<p>That cycle is increasingly fed by social media, and in the last several days the back and forth had reached a fever pitch. But McCulloch’s statement belies the fact that both law enforcement supporters and civil rights advocates spread disinformation, while in the days leading up to the grand jury announcement, cable news networks used that online debate to fuel ratings. </p>
<p>Indeed a close examination of the Brown case reveals the growing interactivity among media, and how any given photograph or video can both reveal, yet conceal context. It is helpful to go back to the beginning. </p>
<h2>Let’s start at the beginning</h2>
<p>Reporting the story on August 10, the day after the shooting, <a href="http://www.nbcnews.com/storyline/michael-brown-shooting/teen-killed-missouri-officer-after-physical-confrontation-police-n177206">NBC News used a photo</a> of an unsmiling Brown flashing either a peace sign or a gang sign, depending on your point of view. That gave rise to a meme, <a href="http://www.onthemedia.org/story/if-they-gunned-me-down/">#IfTheyGunnedMeDown</a>, in which black men showed pictures of themselves as family men and in “Thug” poses, questioning which the media would use. </p>
<p>Two days later, Don Lemmon on <a href="http://www.cnn.com/2014/08/12/us/missouri-teen-shooting-social-media/">CNN interviewed Brown’s parents</a>. Brown’s mother called him “a gentle giant,” intimidating at 6’4" and 300 pounds, but not a fighter. Then, a week later, when Ferguson Police chief Thomas Jackson finally identified as Darren Wilson, he simultaneously gave <a href="https://www.youtube.com/watch?v=mkOfqIXkBRE">FOX News a video</a> that immediately went viral on You Tube. It showed a man, apparently Brown who appeared to be stealing a handful of cigars and pushing the owner of the store out of the way as he walked out the door. </p>
<p>That narrative, of a thief being chased by an outstanding cop, would frame the story and eventually led to Wilson’s exoneration. This week, the story belongs to the cop who was trying his best to save his own life. But throughout, there have been so many competing narratives that no one entity seemed capable of sorting them out. </p>
<h2>Mistakes were made on both sides</h2>
<p>Anonymous, a group of hackers who operate under one Twitter handle, <a href="http://csglobe.com/anonymous-reveals-ferguson-officers-name/">posted a picture of a policeman</a> who didn’t even work in Missouri. A picture of a woman <a href="http://twitchy.com/2014/08/14/wife-of-ferguson-police-chief-attacked-for-allegedly-calling-black-people-feral/">who was identified as Wilson’s wife</a> was “overheard” complaining about the way “feral black Americans kill themselves and each other, then claim they’re the victims. What insanity is that?” Although Wilson wasn’t even married at the time, that alleged exchange was seized by Wilson supporters to justify his actions, along with a picture of someone who resembled the officer lying in bed with a fractured orbital socket “beaten to a bloody pulp.” That picture helped Wilson raise $500,000 on GoFundMe (a similar fund, set up by supporters of Brown, raised only about $300K). </p>
<p>As cable news parsed out these debates, they seemed to spend more resources stoking ratings than informed analysis. The nadir was probably <a href="http://www.mediaite.com/tv/cnns-jones-lemon-rip-into-each-other-over-ferguson-protests/">the on-air debate</a> Tuesday night between CNN’s Don Lemmon and contributor Van Jones. They were both tear-gassed at the same march, but couldn’t agree whether it had been “peaceful protestors” or whether any “leaders” had been present.</p>
<p>Prosecutors jumped in on both sides, second guessing McCulloch’s decision to dump all the evidence into the grand jury’s lap, instead of parsing it themselves. <a href="http://www.washingtonpost.com/wp-srv/special/national/ferguson-grand-jury-findings/">The Washington Post</a> did an analysis the hewed closely to the prosecutor’s report, while <a href="http://www.theguardian.com/us-news/ng-interactive/2014/nov/25/ferguson-grand-jury-decision-annotated?CMP=share_btn_tw">The Guardian</a> parsed the subtext. The latter, I would argue, helped readers better understand the story.</p>
<p>A viewer would be well-advised to explore <a href="http://thenewsliteracyproject.org/NewsLitBits/misinformation-about-ferguson">The News Literacy Project</a>, which has posted a series of misinformation about Ferguson along with some tips for those trying to sort fact from fiction. They include examining the sources for news stories, cross-referencing stories, and noting the disparities.</p>
<p>Anyone who does will discover that the truth is slippery and ephemeral, and that even forensic evidence conceals the motivation of the actors.</p><img src="https://counter.theconversation.com/content/34739/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>June Cross does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Before the ambulance even came to collect the body of 18 year-old Michael Brown from the streets of Ferguson, it was clear that this case would be tried in the court of public opinion. Was Brown a “gentle…June Cross, Professor of Journalism, Columbia UniversityLicensed as Creative Commons – attribution, no derivatives.