How our Brains Foster Wrongful Convictions

How our Brains Foster Wrongful Convictions

Wrongfully convicted

Back in college my social psychology professor, Elliot Aaronson Ph.D., told us a story over 3 lectures that had us absolutely riveted. It was about a young man Bradley Nelson Page (not to be confused with Dr. Bradley Nelson), a UC Berkeley student who had been accused of murdering his girlfriend.   Dr. Aaronson led us through all the factors of the interrogation that led Page to a false confession of her murder.

That story left me with a sense of awe about how effective persuasion could be.  But it also left me profoundly disturbed about how it could be used, and the implications it had on our “justice” system.

We heard how the police used various mechanisms we discussed in class to force Page to concoct a story that allowed them to frame him.   As a college student, Page could have never imagined that the police would lie and use such manipulative tactics to force a confession!   He later recanted his confession after he was given enough space and rest to think clearly.

But his recanting wasn’t sufficient. Dr. Aaronson was called to testify about how someone could be forced to confess something they didn’t do.  In court, he was allowed to talk about the research, but not to express his opinion about what happened to Page.    While the Oakland police got to claim they found the murderer, the implications of this story had profound disturbing effects on the greater society.

Lost Trust

Thanks to Dr. Aaronson, thousands of students of social psychology now are far more wary of the police and their motives.    I, and probably many others lost their trust that the police’s intentions are to serve and protect us.

Not only was an innocent person’s sense of trust and justice ripped away by this tragedy, but the real killer (who later confessed in jail that he had murdered several women in the same area around that time) was still at large.  Other lives were lost because the police didn’t focus on finding the truth. They just wanted someone to blame!

Our justice system isn’t structured for justice

With this story, I lost my faith in the American legal system.  And since then, the more I’ve learned about how our brain works and how we are influenced, the more convinced I’ve become that justice cannot be properly served in a court with a “jury of our peers”.


our justice system is 2 sidedThe American judicial system assumes that if humans are presented with 2 sides of an argument, they will be able to make a logical choice about which is correct.

But findings from neuroscience, psychology and  social psychology prove overwhelmingly that humans are not primarily influenced by rational and logical choices.   Our emotions, the context, our stereotypes, our impressions of others and the way our brain processes information foil our ability to think rationally, logically and fairly.

 How our Brains Get in the Way of Justice

We see everything through a filter.   Dr. Lisa Feldman Barrett, author of How Emotions are Made, says we construct our emotions.  My work shows that our responses and emotions are influenced by our past and inherited past.

Every thought we think is tainted by biases.   The more inner work we’ve done to clear our past traumas and negative beliefs, the easier it will be to see things in a more positive light.

Our brains are influenced by context.  One juror’s motivation could be to get this decision made to get back to work. Another, who may appreciate the break from a boring job may appreciate the change and be willing to put in whatever time needed to make a good decision.   One juror might have lost faith in the police or lawyers, another might believe that everyone’s intentions in the legal system are pure. One could lack trust in a victim because she remind him of an ex.  Another could empathize because she reminds him of a favorite sister. One might be triggered by a particular behavior by the prosecutor that makes them not trust him, while another isn’t fazed.   Plus we are all subject to implicit biases associated with stereotypes that our society shares.   There is no way to properly eliminate all these subtle influences with our current system.

Being objective takes training.  And current training isn’t enough.

As a scientist, we spend many hours evaluating and critiquing others work so that we can maintain the integrity of science.  Despite decades of training, biases are clearly not eliminated.  I saw this all too well with how scientist responded to my findings that were within their realm of believability, vs. findings that were less mainstream.   My work was critiqued far more harshly when I made discoveries that made them squirm, and therefore it was much harder to get these findings published.

What gets in the way of us seeing the truth?

Lack of awareness of our subconscious influences

I work with subconscious and I regularly read about the subconscious forces that affect us.  But I cannot keep everything I’ve learned about the subconscious in the forefront of my mind when I encounter a new situation, a movie or a person.   I am probably more educated than most on the topic.  Yet because I can’t practically take the time to synthesize everything I know as I encounter someone or something new, I am subject to subconscious biases as well.   As in the book Thinking, Fast and Slow by Daniel Kahneman, we have to have fast ways of interpreting our world.  And this doesn’t give us the time we need to think logically and objectively.

Cognitive dissonance.

We have a preconception of what the truth is.  If someone that we don’t know or trust comes along to challenge that, we will fight hard to maintain our beliefs.  If they challenge what we believe we are experts in, or our sense of self, we will fight even harder to maintain our inner status quo.  This prevents us from being objective.


If a well-respected famous person challenges our version of reality, it’s easy to think they are brilliant. If they don’t appear to have a following or much social status, they are often ignored.  Men, especially tall men with deep voices, tend to be taken seriously far more than women because of our preconceived stereotypes of what a person of authority looks and sounds like.

In the case of Bradley Nelson Page, the 2 police were in positions of authority.  When they claimed to have evidence that implicated him, his exhausted brain had to grapple with his belief that the police were trustworthy and knew what they were talking about, and his own belief that he didn’t commit a crime.    The more convinced they were, the more he began to doubt his own memory.   He was held for 16 hrs of questioning until they got what they wanted from him.

The Milgram experiment shows how powerful an authority figure can be.  When pushed by authority to deliver shocks to a confederate, 65%  of subjects delivered the highest level of dangerous shocks!   The use of authority figures who lie to support their accusations, and use exhaustive hours of questioning to force confessions is extremely manipulative.   We can never have justice if such behavior is allowed in police stations!

Conceptions of how we should behave:

implicit biases get in the way of our assumptionsWe trust people who fit our predefined notions of what we expect them to be.   Men who are more masculine, and women who are more feminine are deemed more trustworthy.  We can’t escape stereotypes either.   A black male would have a harder time getting a job as a nursery school teacher, and a Chinese man would be less competitive as a psychologist just because of our preconceived and unfair notions of what it means to be an African American male or a Chinese man.

Men are sentenced for much shorter times (2-6 years) when they kill their spouses than females (15 yrs) .   This is true despite that fact that 40-80% of women convicted of murder are acting in self defense against their abusers.   Why? Because we trust those who behave within our preconceived stereotypes.   We are more likely to dismiss men’s behavior when they get angry.  And we expect woman to be sad and remorseful.

We believe that a person who is charged with a crime should show remorse.  If he doesn’t (or if we can’t detect it), we think he is inhumane.  But what if (as in the case of the Boston Bomber, Dzhokhar Tsarnaev), you grow up in a culture like Chechnya that values stoicism.  Then showing remorse (regardless of whether it is felt) could be seen as a weakness. Tsarnaev wrote a letter of apology, but it wasn’t allowed into the trial.  It’s hard to say if this could have influenced how he was sentenced.

Over confidence in our ability to read others emotions

Our read of other’s emotions is based entirely on our own perceptions, which is constructed from our own experience.  Dr. Lisa Barrett, author of How Emotions are Made says there is no one facial signature for each emotion.   Emotions are subject to our own personal filters, and much of that is driven by our culture.  Thus it’s very dangerous to make conclusions about other’s motives, as they are based on our faulty perceptions of other’s emotions.

Implicit biases:

Prejudices are powerful. If a black teenager commits murder, they are much more likely to be charged as an adult because of negative stereotypes.  Similarly, a frat boys who commits rape or murder is often given lighter sentences.  The judges or juries are more able to empathize with the frat boys, and are more likely to dismiss their crimes as crimes of immaturity, and this is reflected in their less punitive sentencing.  Similarly black women who kill their spouses get harsher sentences than white women who do the same.

Similarly we have stereotypes based on our political leanings.   If you are progressive, and if you see a crowd of protestors that are supporting gay rights, you are less likely to see them as violent.  But if you were conservative, you are more likely to believe gay rights protestors are trouble makers.

Lack of recognition of how we are affected by our biological state

when judges are tired, it influences the objectivityJudges are more likely to have harsher sentences later in the morning , before breaks and late in the day.   They are far more lenient after they are able to take a break.  Our moods are clearly better when we are well rested.

Research shows exhaustion, which occurred when Bradley Nelson Page was questioned for 16 hrs, affects moral judgment.  As this article says, it doesn’t necessarily lead to a decline in morality, but it leads to more difficulty making moral decisions, especially under evocative circumstances.

Misplaced trust

When asked to do something, most people give people in position of authority, the benefit of the doubt.  While there are often very good reasons for not rocking the boat (i.e. stable employment), there is a downside to not asking questions.  If the people in positions of power have ill intentions, any immoral behavior they exhibit will be allowed to thrive and perpetuate.

The good news, is that awareness of corruption is growing, and more of us are growing more cautious with our trust.

Another place we tend to place too much trust in is the biological evidence!  Even I, as a trained neuroscientist often default to this type of thinking!

DNA evidence is far from irrefutable. There aren’t rigorous protocols put in place to ensure accuracy, and errors can easily occur in the lab.   DNA can also be easily transferred. Therefore, if you pick up DNA from a knife for example, it can contain the DNA of multiple people.   Therefore if your DNA does a better job of sticking to the knife, than you are more likely to be identified as a culprit in crime!   Plus there is a lot of pressure for forensic labs to produce the evidence that is the prosecutors want to see!  In North Carolina, crime labs are rewarded $600 for every DNA analysis that results in a conviction!!!

Our memories are faulty

Research has shown that eye witness reports are unreliable.  We also assume that if someone is confident about their memory that they are more likely to be accurate.  But research shows confidence does not correlate with accuracy!

More recently it has been found that we vary tremendously in terms of our ability to recognize faces.  Ideally we need to know how likely each eye witness is to be accurate, to properly assess the weight of his/her choice in a police roundup.

A proposal for justice

let detectives solve crimesOur court system is developed on the premise of winning:  one side is pitted against the other each with a primary focus to win their case. There are egos involved, and because there is tremendous motivation to win, important evidence is selectively ignored to enhance the arguments of each side.   It focuses on producing the best argument for a jury and a judge who is swayed by their own biology, their life experience and how they filter the information presented to them.  If your side has more money, you can hire lawyers that are better at winning.  Because of the wiring our brains and the way the evidence is presented, this system cannot be objective.  It is not humanly possible.

“There are very few neutral actors in the system because it’s so adversarial. Many want to inflate the estimate, others want to deflate it. It’s depressing. It’s not like other areas of public policy.  In education, energy, healthcare, there are people who disagree, but they are not systematically designed to fight. But in the criminal justice system, it’s set up as us-versus-them. We want to move past that.”  -Jennifer Thompson, author of Picking Cotton

I believe the primary motivation should be to find the truth. The consequences of a wrongful conviction are too horrific for the falsely accused.   Being falsely accused and years in prison can turn an ambitious student to an embittered traumatized and angry adult.   And when the wrong person is convicted, the real culprit remains at large, thus endangering the rest of us.   Criminals can more safely believe they are unlikely to get caught, and certain minorities need to constantly be vigilant about being falsely accused.

 The biggest lie we tell ourselves is that we are capable of being objective. 

However, this is impossible. Our brains are simply NOT wired this way.

We are all biased

 In order to have justice, I propose we approach each case as a private detective would.   Instead of the incentives being to charge someone with a crime, they would be to solve the puzzle to determine exactly how a crime happened.  Evidence would be gathered, and a theory of the crime would be proposed.   Then as in science, a paper could be written detailing the detective’s arguments.  The paper would need to be reviewed by a jury of peers.  If there is not clear consensus on the plausibility of the story, then the case should allow another detective to gather more evidence and suggest another theory.  The case would not be closed until there is consensus that the most plausible story has been found.

This proposal could be modified to use other mediums, such as a talk, or a computer program to present the evidence.

Each private detective would have to undergo rigorous training about how to properly gather objective evidence, and the factors involved that could influence their ability to be objective.   When their theories are reviewed by their peers, like scientists, the peer detectives should look for evidence of biases or errors in their evidence, and their conclusions.   Private detectives would have to demonstrate that their primary motive is to uncover the truth, and that they understand the consequences of wrongful convictions. They should have to prove that they are able to be objective and undergo regular reviews and education to ensure that they are aware of the latest research in how we can be biased.

Are you concerned about biases in our legal system?   What do you think we should do to ensure accuracy in judicial system?  Please share your comments below!


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