Support this on Patreon!

Be sure to share your comments in the Class Participation section below -- that's the best part! Also, you can use the arrows on your keyboard to flip through pages quickly.

Use this link to buy the books, and a portion of the proceeds goes to St. Jude Children's Research Hospital

Join the conversation!
There are now 50 comments... what are your thoughts?
  1. Jeff B says

    Whatever Sis claims, that sure seems to be how it feels.

  2. Enuz says

    That does seem mighty sketch. Prove the ID was unreliable, the procedure was suggestive, and the tainted results still come in because the witness “Felt right”?

    • It seems like it is just really difficult to rule “You are not allowed to identify the guy who stabbed you.”

    • Scientific approach yes or no, as soon as we start to undermine the relevance of the human cognition we could rule out everything.
      “Was he really stabbed or did he just perceive it wrong?
      >>The medic clearly diagnosed him with a stabbing wound<<
      "But did he really see a wound or did he just think he saw one?"

      Granted, that's a hell of a slippery slope argument but you can't tell someone that he didn't see what he thinks he saw because you say so. Who are you to tell other people what is real and what isn't?

      • The reliability of a medical autopsy is greater than an eye-witness account, especially since you can write things down while doing it and aren’t distracted by knives. You can even take pictures.

        Still, it is hard to convince people that preventing a stab victim from identifying the person who they think stabbed them.

        • Why? Is a medical examiner’s memory any less subject to any of these things? Can his judgement not be flawed? Is it impossible for him to mistake a knife wound from a wound caused by a sharp piece of glass? Do medical examiners never rush things because they need to get home for a date or a child’s dance recital? Are they never under any sort of intense pressure to come up with a cause that matches what the police want?

          Also, if a medical examiner is performing autopsies on people who survived a knife attack…

          • The fundamental difference between a crime victim/witness and a medical or other examiner is this:

            A victim/witness of a crime is, without enough warning, facing an unexpected situation – perhaps a gun to their face or seeing violence across the street. This triggers hormonal flood in their system, activates the “lizard” brain and so on, and generally reduces their cognitive functions.

            An examiner who is asked to examine a crime scene, a victim’s body, a weapon or anything else is given enough warning to mentally prepare for the task. Any hormonal flood in their system, which of course could have been initially happening when they were informed of their task (“There’s a a six-year old mutilated girl…”) dissipates by the time they actually start performing the task, and their cognitive abilities are not only fully functional, but they may take additional steps to boost them or ensure they work optimally (demanding that on-lookers be pushed away, disruptive elements removed etc.)

            It really is the difference between trying to understand what the P.A. system is saying in a crowded noisy train station (victim/witness) and going to a recording studio and listening to that same P.A. system’s original recording in a sound-proof room.

            This is why it makes more sense to take the word of experts more seriously than the flawed witness/victim testimony.

            • Those things have to do with their knowledge. Their memories and observations are just as susceptible to tampering as anyone else.

              • Which is why we have autopsy reports, lab notebooks, cameras taking photos of everything… The memory is backed by thorough documentation.

                If a stabbing victim had a running GoPro camera strapped to their head when they’re stabbed, you’re sure as hell going to use that camera footage over the memory of the victim.

              • Remembering a face is fairly complex since it can’t be reduced to simple written facts (at least not without the perpetrator standing still for a portrait by a witness who’s skilled at sketching. A medical examiner has the luxury of taking time to record their observations while looking at the deceased and can refer to these notes immediately before the trial or any time before.

                During an autopsy, the examiner are undistracted and KNOW what they need to learn and remember. They are in a quiet room, removed from any threat or distraction. A witness to a crime, especially the victim probably won’t be focussing on identifying the perp later, as their instincts are pushing them to focus on details that will help them survive in the moment. The details of an unfamiliar face is utterly useless information as far as our fight-flight-or-freeze instincts are concerned.

                Medical examiners can have their memories altered, but they have plenty of advantages over a witness.

      • If someone took some hallucinogenic drugs and became convinced that you are a fire breathing dragon and that the only way that they could survive was to kill you first, then would you hesitate to point out that you are not a fire breathing dragon despite appearances to the contrary? Doesn’t that warrant telling someone else that their cognition is flawed?

          • My point is that sometimes the flaws in the cognitive faculties of others are obvious. So the “you can’t tell someone else that what they perceive isn’t real” argument doesn’t hold water.

            • Okay, but who brought up fire-breathing dragons and hallucinogenic drugs? I’m pretty sure nobody was hallucinating in this case. If there are extenuating circumstances like that, then bring them up, but I don’t think the quirks of normal human cognition are grounds for it – if they were, then why have ANY witness testimony at all?

              If it turns out the witness was on LSD at the time they witnessed a crime, I’m pretty sure they wouldn’t even bother using them, even if the judge did let it in. Doesn’t get easier than a one-question cross-examination to discredit your witness.

  3. Gregory T. Bogosian says

    It seems like the law might as well be what D.C. says. Even in all of the cases where you do prove that the I.D. procedure was unnecessarily suggestive, how do you prove that the witness’s memory is unreliable when no one has any evidence of what happened besides the witness’s testimony itself?

    • It seems like the only way to attack the reliability of the witness would be to catch them changing/misremembering something in their sworn statement or some inconsistency in the statements of other witnesses/evidence. A lawyer is probably going to go over the story ahead of time to prevent this, but I could see an argument of “If you can’t remember X how can we trust your memory of Y?” You might also be able to challenge the assertion with an alibi or a dissenting eyewitness account from someone that appears more objective or reliable.

      This is also a matter of “innocent until proven guilty” and the unspoken “if the state does shady things getting evidence, it should be excluded” (like when evidence is excluded when the police do something illegal). A confession obtained by overly harsh interrogation tactics are excluded (even though such a confession can be correct or not), why not a suggestive procedure of eyewitness identification?

  4. UsaSatsui says

    “Where did you get that backdrop? Do you carry it with you all the time? And who are these people and why are they barging into my courtroom?”

    Anyways, reliability of the witness’s testimony and accuracy of the witness’s testimony are two entirely different things. Only the first is being ruled on here. Even without any of these issues, even if the eyewitness got a full-on, 100% perfect look at him, picked him out of the world’s most perfect lineup, and would literally bet his life that it was the guy, none of that has any bearing on whether or not he’s actually correct. Right now, they’re looking at things that affect the reliability of the ID, and that’s all. Whether or not he’s right is a question of fact, and that’s for a jury to decide.

      • So, I’m not feeling super creative right at the moment- who else could make the ID unreliable other than the government?

        • Probably worth mentioning that there have been several cases of hypnotherapists supposedly uncovering suppressed memories relating to a trial. That doesn’t mean that hypnosis has any scientific evidence supporting the idea that it assists memory, just that people sometimes come out of hypnosis convinced that it has helped them remember something!

          • There is good reason to be skeptical of “repressed memories” recovered by hypnosis.

            There is zero empirical evidence so far that our brains even do repress memories. (The phenomenon is hypothesized to happen unconsciously, without our free will, without our even knowing it happened, in response to a traumatic event. It is not the same as a “suppressed” memory that you consciously chose to avoid thinking about.) The only evidence of repressed memories, when you get down to it, comes from the person claiming to have recovered the memory. Such recovered memories aren’t limited to real-life events, but often involve such fanciful things as being abducted by aliens. They firmly believe these newly-“discovered” memories, but there is no basis to suspect that they’re real.

            One important factor is that these repressed memories are recovered via such things as hypnosis. But remember that hypnosis IS suggestion. The whole point of it is to take advantage of the fact that our brains are prone to suggestion. And there IS plenty of evidence that people who claim to have recovered repressed memories are:

            (1) Easier to hypnotize in the first place — they’re already highly suggestible, and more flexible in what they’re willing to consider “real.”
            (2) More susceptible to forming false memories — demonstrably so, in laboratory experiments.
            (3) Get this — WORSE at suppressing memories than normal people are.

            That’s not to say that our brains don’t try to scrub out unwanted memories. As demonstrated earlier in the comic, the reason why our memories are so suggestible in the first place is it’s a survival skill — you don’t want to remember the wrong thing, so you want to be able to edit your memory to make it more accurate. That works great in navigating real life, remembering where the dangers are or what happenS when I do this… but it’s terrible when we rely on it as an accurate transcript of what happenED.

            Indeed, this memory malleability is the mechanism by which our brains DO suppress memories — not by hiding them, however, but by CHANGING them. This “adaptive forgetting” is done by creating and reinforcing FALSE memories while weakening and turning off the connections for the original one. It’s precisely the thing we want to avoid doing to witnesses.

            It seems without question that using hypnosis to “recover” memories is unlikely to boost the volume on the old connections, while carrying a substantial risk of forming new false memories.

            tl;dr — There’s no evidence that repressed memory is even a thing. But there’s lots of evidence that using hypnosis to recover it actually creates new false memories.

      • So even if there was unquestionable proof that the witness’ memory had been made unreliable by a non-government actor, it still goes in and it’s on DC to convince the jury?

        Part of me worries that some judges might even let it in even if the government had made the memory unreliable so long as it wasn’t intentional, because “we shouldn’t punish them if they weren’t behaving badly” – the same bad reasoning we saw back with the exclusionary rule. I dunno, maybe I’m just being cynical here.

        • It’s got a certain internal logic to it. See, it isn’t the prosecution’s or the judge’s job to vet the evidence – the prosecutor just has to present it. Vetting it is the jury’s job, to decide what reliability value to associate with the witness’ ID.

          This is, of course, another strike against the use of the jury system. There’s a reason that the inquisitorial system is probably a lot fairer.

          • Assuming the judge is fair. I think it might be better to leave that power in the hands of 12 than in the hands of 1, particularly when the 1 works for the same government that’s trying to put me in jail.

            • Jurors are summoned by the state and compensated by the state for their time. For all intents and purposes, juries and judges both work for the same government as the prosecutors.

              • No, they do not. If anything, juries are being forced by the government to serve on the jury, and the compensation is minimal, if anything. They hear one case, and are done for a couple years. They have no attachment to the government, the law, or anything else related to the “system”. That’s kind of the point.

                (Grand juries, which sit for months and hear many cases, are a different story)

              • Oh yes, I’m sure jury members feel some oath of loyalty to the government for the pittance they receive for their quite unwelcome time on the jury.
                Honestly, though the general public is a LOT more likely to side with the government than with the “criminal,” (“He/She MUST have done something wrong, otherwise why is he/she here?”) it only takes one holdout for a mistrial. That’s a much better bet than the chances of getting a sympathetic/objective judge who is also not having a bad day. I’ll take 12 over 1 any day.

          • If the inquisitorial system was fairer to the defense, wouldn’t there be a lot more bench trials in the US?

            • It’s because a jury is more advantageous to the defense, not “fairer”. Especially in a criminal trial. You only need to truly convince 1 of 12 people.

              I’m not sure which system is more fair or not. It really does depend on the parties involved and their roles, and how well they do them. I do know in places where the adversarial system is used, there are more acquittals.

              • “I do know in places where the adversarial system is used, there are more acquittals.” How do you know that? I know that in Japan and Russia the conviction rate is about 99% But what about continental Europe? Where they use the inquisitorial system in the sense that the judge asks the parties and witness’s questions directly but still require the consent of a jury to convict?

                • I know this because conviction rates in countries with common law are lower than conviction rates in countries with civil law. That doesn’t make one system better or worse (it could be because of more guilty people being acquitted in the common law system, or because cases in civil law countries get dropped sooner if there’s little evidence to convict with). It’s impossible to tell which system is “better” unless we know what percentage of people who are wrongly judged (guilty when innocent, or vice versa), and we will never truly know that.

                  • But how do you know that common law countries have lower conviction rates than civil law countries? What sources are you using?

                    • An old law textbook from about 10 years ago that, try as I might, I can’t find. There’s also a short article on Wikipedia on conviction rates, and it says the conviction rates in US Federal courts is 85% and English courts is 80% (and yes, I checked the sources listed in the article). Couldn’t find anything on any specific civil law countries, though.

  5. nick012000 says

    So, out of curiosity, I’ve got a question that’s a bit topical, but unrelated to the current topic of the comic.

    Is Self Defense a valid defense for Criminal Negligence charges? For instance, if you’re partying in a gay nightclub, when an Islamic terrorist shows up and starts shooting people, so you run away and then lock the door behind you to stop the terrorist from following you, but also trapping people inside with the terrorist.

    Because apparently that actually happened in Orlando, and I’m curious what might happen to the guy that did it.

  6. Gregory T. Bogosian says

    @UsaSatsui: First: most U.S. criminal cases are state, not federal. Second: That still means that of the two common law countries that you listed, they usually convict the defendant.

    • “In recent years, the conviction rate has averaged approximately 84% in Texas, 82% in California, 72% in New York, 67% in North Carolina, and 59% in Florida.”. Wikipedia|Conviction Rate, check the references for the source on that. And the argument isn’t that they “usually convict” or “usually acquit” in common law countries. They usually convict everywhere. It’s that it’s lower in common law jurisdictions.

      • But they only civil law country that they pointed out was Japan, which does have a 99% conviction rate. However, that is attributed to low prosecution budgets rather than civil law procedure. So how can we know what the actual conviction rates are for the civil law world as a whole?

        • Japan has a highly unusual system compared to most civil law jurisdictions – the reason for the high conviction rate is because they generally don’t go to trial unless they have a confession. (Which means that they use an appalling level of pressure, by American standards, in the custodial interrogation.)

          If you can keep your story straight for twentysome days behind bars when even your own lawyer is trying to get you to confess, then they’ll figure that you probably didn’t do it. Also, while plea bargaining is officially banned, unofficially it happens all the time and they call it a conviction.

          So the statistic is a bit misleading. Not sure whether other inquisitorial systems have unofficial plea bargains that get registered as convictions.

  7. UsaSatsui says

    I don’t know, maybe you can do some damn research yourself and back up YOUR point. I think I’ve done enough. Even the only thing you’ve posted on the issue supports my side.

    • I couldn’t find anything on just the conviction to acquittal ratio. However, I did find a source that said that the median rate of conviction for adult suspected offenders is 60%. Mind you, in addition to acquittals, that also includes all the cases where the prosecutors office declined to fill charges. ( page 94). It also shows that the Americas have a median 14.1 adults prosecuted per-100,000 persons and 4.6 adults convicted. Which gives a ratio of prosecutions to convictions of 0.32. contrasting with a median for all countries of 30.4 adults prosecuted per 100,000 persons and 18.5 adults convicted for a ratio of 0.61. However, This list doesn’t include data for the United States. The only common law country in the Americas that they included, Canada, has a higher conviction rate than the median, 9.0 per 100,000 but a lower prosecution rate, 13.7. The jurisdiction of England and Whales have a higher conviction rate than the median for all countries. 24.3 for England and Whales against 18.5 for all countries. (pages 104 to 105).

      I am not trying to be difficult or pedantic. It is just really hard to get a straight answer out of Google on this one.

Class Participation

Your email address will not be published. Required fields are marked *

Support this on Patreon!