Nonverbal Lessons from DNA Exonerations

Since 1989, there have been 261 post-conviction DNA exonerations in the United States. These are cases where DNA evidence irrefutably showed that the convicted felon had not committed the offense and were later exonerated. Of the 261 who thus far (as of October 30, 2010) have been exonerated, chillingly 17 served time on death row. On average these individuals served 13 years and their average age at the time of conviction was 27. In 116 of the cases, the real culprit was identified conclusively and thus justice was served.

Pathetically, in all of these cases, it was not because the prosecutor wanted to go back and revisit the case or because the investigating officer felt something was wrong that finally justice was achieved. In fact, most of these cases have been resolved through the efforts of these innocent yet convicted defendants, their families, volunteers, and members of the Innocence Project who have championed the re-examination of these cases through the use of DNA evidence.

Through the science of DNA, 261 individuals have had their lives returned back to them. Probably the most famous of these cases is that of the Central Park Jogger Case, wherein DNA eventually exonerated five men wrongfully convicted and the real perpetrator, whose DNA matched that found at the crime scene, willingly confessed (Navarro 2008, 206-207. Yet, there are many things that are troubling about this, not the least of which is the fact that there are many more cases out there, perhaps hundreds more, which cannot be resolved through DNA examination because the evidence has been destroyed or damaged, sufficient evidence was not collected at the crime scene from different locations, evidence was misplaced, or because of institutional ineptitude, ignorance, or sadly malfeasance (http://www.innocenceproject.org/; Drizin & Leo 2004).

In the above exonerations, I am happy − if not elated − that the innocent were freed and that lives, reputations, and prestige were reconstituted. Nevertheless, I suspect one cannot make up for the years lost, the indignities experienced along the way, and the loss of friends and loved ones through the oppressive and destabilizing dynamic effect of arrest, trial, and imprisonment which negatively impacts on others. Not to mention the loss of confidence in a system which is suppose to protect the innocent.

Before I go any further I should say that I am no friend of criminals, I have no weakness in my heart for those who commit crimes. I spent nearly 30 years putting criminals away and as far as I am concerned, take the anti-socials (APA definition) and the psychopaths (Hare’s definition) and their ilk in whatever form, and put them away because they are oxygen thieves, predators with no redeeming value. But at the same time, having left Cuba at an early age where a pathologically narcissistic psychopath runs that country and laws are capricious, arbitrary, draconian, and unjust, I want to make sure that those we put away are done so justly. I strongly believe we should incarcerate the guilty, but it should be done ethically, legally, scientifically, and in a manner that stands up to judicial as well as outside scrutiny. I have seen what a heavy hand can do in the name of “security” or “peace” or “social tranquility” and rights must be protected at all times.

These DNA exoneration cases trouble me because they are an example of something that is insidious. They teach us that wrongful convictions are not isolated or rare events as many of us wrongly believe but rather very common occurrences. In 75% of these cases, where DNA proof conclusively showed that these individuals did not commit these crimes (it’s not their DNA at the crime scene), it was eye witness testimony, the least reliable of proofs, which convicted these individuals (Innocence Project; Ost 2006; Canter & Alison 1998). Recent experiments as reported in The Economist also demonstrate in a laboratory setting that about one in four adults will give false confessions - that is a remarkable number.

It is sad to think that someone could be put on death row merely on the testimony of someone. Especially when we know that when stress is a factor, when there are distractions, or the witness is of a different race, all sorts of observation, memory and recognition errors creep into the equation (Vrij 2004, 57-104; Simons & Chabris 2010; Johnson 2007).

As bad as all that sounds, that is not what prompted me to write about these miscarriages of justice. What prompted me to write about them was the fact that in 25% of the DNA exoneration cases, the defendants themselves while innocent had made incriminating admissions or had given signed false confessions. Yes these individuals, who did not commit these crimes signed statements saying they did. That’s what really caught my eye and should shock everyone reading this article or anyone who cares about justice. Through endless hours of intense interrogation, some in excess of 12 hours with individuals as young as 17, they were able to pressure these innocent individuals into signing false confessions. We now know that about ¼ of us will admit guilt, even though innocent, just to end an intense and aggressive interrogation process (Granhag & Stromwall 2004; Kassin 2004, 172-194; Kassin 2006, 207-227).

Singularly appalling fact:

And while these facts are startling, nothing was as shocking to me as this single fact which I discovered while researching these 261 cases: In 100% percent of these cases, the prosecutor and the judge, but more importantly, the investigating officers who initiated these cases through the legal system, believed that these individuals were lying when they denied their complicity. One hundred percent is a number that you almost never hear in anything, even germ killers are only 99% effective), and yet here, 100% of the officers involved were convinced through statements and through reading the defendant’s body language that they were the true culprit. 100% of the officers involved swore and averred that these individuals were culpable, beyond all doubt, lying in their protestations and declarations of innocence. This is the part that should make every law enforcement officer who is ethical and every citizen to take pause. 100% of the officers in these cases failed to detect the truth

In a way it should not shock me (few things do any more) because in America there are over 17,000 law enforcement agencies and each trains differently and has different standards, many still only require a high school education (FBI Uniform Crime Reports). Unfortunately, law enforcement officers are no better than the training they receive and the skills they apply. Unfortunately many law enforcement agencies provide very little interview training, some as few as 10 hours of interview training, with no national standards set as to what is valid, what is scientific, and what constitutes proper interviewing (Schafer & Navarro 2010). Many officers learn by watching others or by adopting techniques they see on television. Yes, television!

Unfortunately, many law enforcement officers have been erroneously taught (I was one of them back in 1975 when I went through the Utah police academy before I went into the FBI), that the detection of deception through nonverbals was foolproof. There are many officers still out there, I know because I run into them in seminars or they write to me, that claim they can detect deception from the direction that suspect looks or when they touch their nose, or some other unscientific tripe they heard or were taught along the way (Vrij & Semin 1996). They will get angry when I tell them that most of us are not very good at detecting deception (Ekman 1991, 162; Vrij 2000, 5-31). They come back with anecdotal facts or claims that they are “. . . accurate at least 95% of the time,” as one boastful officer stated to me. Which begins to explain, but not excuse, how 100% of law enforcement officers, attorneys for the government, and judges were utterly wrong in these exoneration cases.

This is a hard pill to swallow, that so many could be so wrong. This can only occur when there is arrogant self assurance that one can tell when someone is lying. Especially when scientific research has been telling us for nearly three decades that we humans are not better than chance, a 50/50 proposition (coin toss) at detecting deception (Ekman; Ekman & O’Sullivan; Ford; DePaulo, et. al.; Kassin, Vrij). And pathetically, a very few, and I mean very few, under special circumstances, rise only to slightly above chance; at most maybe 60% of the time (Navarro 2008, 205-231). This is why in these 261 DNA exonerations we have 100% failure on the part of the officers − believing that these individuals were culpable. It is because of our inability to detect deception accurately that they failed so miserably.

I may not make many friends with this article in the law enforcement community, but these are the facts. Justice Louis Brandeis eloquently warned us, “Our government is the potent, the omnipresent teacher.  For good or for ill, it teaches the whole people by its example.” . . . “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.” (Olmstead v. United States 1928).

DNA exonerations are a humbling lesson for all of us. Take heed.

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Joe Navarro is a former FBI agent and author. For additional information please visit his web sit, www.jnforensics.com or follow him here in Psychology Today Blog Spycatcher or on twitter at @navarrotells. Copyright © 2010.

Bibliography

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