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The Multiple Dimensions of Tunnel Vision in Criminal Cases

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Abstract

The 170-plus postconviction DNA exonerations of the last 15 years have exposed numerous problems that have contributed to convicting the innocent. The specific problems include eyewitness error and flawed eyewitness procedures, false confessions, forensic error or fraud, police and prosecutor misconduct, inadequate defense counsel, jailhouse snitch testimony, and others. A theme running through almost every case, that touches each of these individual causes, is the problem of tunnel vision. Tunnel vision is a natural human tendency with particularly pernicious effects in the criminal justice system. This Article analyzes tunnel vision at various points in the criminal process, from police investigation through trial, appeal, and postconviction review. The Article examines the causes of tunnel vision in three domains. First, tunnel vision is the product of natural human tendencies - cognitive distortions that make it difficult for human beings in any setting to remain open-minded. Second, institutional or role pressures inherent in the adversary system can exacerbate the natural cognitive biases, and induce actors to pursue a particular suspect too soon or with too much zeal. Finally, in some ways the criminal justice system embraces tunnel vision as a normative matter; it demands or teaches tunnel vision overtly, as a matter of policy or rule. This Article concludes by examining possible corrective measures that might be adopted to mitigate the effects of tunnel vision.
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June2006
TheMultipleDimensionsofTunnelVision
InCriminalCases
KeithA.Findley&MichaelS.Scott
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Reprinted with permission of the Wisconsin Law Review, further reproduction forbidden without permission.
THE MULTIPLE DIMENSIONS OF TUNNEL VISION IN
CRIMINAL CASES
KEITH A. FINDLEY* AND MICHAEL S. SCOTT**
I
NTRODUCTION
The discovery of hundreds of wrongful convictions in the last
fifteen years has shaken up the criminal justice world. Since the advent
of postconviction DNA testing around 1990, more than 170 people
convicted of serious crimes have been exonerated by DNA, a number
off of death row, and most after serving many years in prison.
1
Literally hundreds of additional exonerations in the last fifteen years
alone have been based on evidence other than DNA.
2
Because DNA
evidence exists in only a small minority of all cases—and is preserved
and available for postconviction testing in an even smaller proportion of
cases—and because innocence is so very difficult to prove
postconviction without DNA, these known exonerations almost surely
reflect only the tip of a very large iceberg.
3
These exonerations have
challenged the traditional assumption that the criminal justice system
does all it can to accurately determine guilt, and that erroneous
conviction of the innocent is, as the Supreme Court has assumed,
* Clinical Professor, University of Wisconsin Law School; Co-Director,
Wisconsin Innocence Project. J.D., Yale Law School 1985; B.A., Indiana University
1981. I am grateful to D. Michael Risinger, Richard A. Leo, Meredith Ross, John
Pray, Byron Lichstein, and Frances Reynolds, as well as Ken Hammond and Dennis
Hanson, both of the Wisconsin Department of Justice Division of Law Enforcement
Services, Training & Standards Bureau, for their valuable feedback on drafts of this
Article.
** Clinical Assistant Professor, University of Wisconsin Law School;
Director, Center for Problem-Oriented Policing; former police executive. J.D.,
Harvard Law School 1987; B.A. University of Wisconsin-Madison 1980. I wish to
acknowledge the valuable insights offered by several veteran police investigators and
supervisors, including Deputy Chief Ron Glensor and Commander Steve Pitts, Reno
(Nev.) Police Department; Chief Dan Reynolds, Greer (S.C.) Police Department; Chief
Richard Thomas, Port Washington (Wis.) Police Department; Chief R. Gil
Kerlikowske, Seattle Police Department; Ken Hammond, Wisconsin Department of
Justice Training & Standards Bureau; and Assistant United States Attorney Rita
Rumbelow, Western District of Wisconsin.
1. Innocence Project, www.innocenceproject.org (last visited Feb. 22,
2006).
2. Samuel R. Gross et al.,
Exonerations in the United States, 1989 Through
2003
, 95 J. CRIM. L. & CRIMINOLOGY 523, 523-24 (2005).
3
. Id
. at 529.
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292 WISCONSIN LAW REVIEW
“extremely rare.
4
Further, they have opened a window for scholarly
and institutional inquiry into the causes of wrongful convictions and the
reforms that might prevent such miscarriages of justice in the future.
This burgeoning inquiry has identified many of the recurrent
causes of error, including fallible eyewitness identification evidence and
flawed eyewitness identification procedures, false confessions, jailhouse
snitch testimony, police and prosecutorial misconduct, forensic science
error or fraud, and inadequate defense counsel.
5
A theme running
through almost every case, that touches each of these individual causes,
is the problem of tunnel vision.
Tunnel vision is a natural human tendency that has particularly
pernicious effects in the criminal justice system. By tunnel vision, we
mean that “compendium of common heuristics and logical fallacies,” to
which we are all susceptible, that lead actors in the criminal justice
system to “focus on a suspect, select and filter the evidence that will
‘build a case’ for conviction, while ignoring or suppressing evidence
that points away from guilt.”
6
This process leads investigators,
prosecutors, judges, and defense lawyers alike to focus on a particular
conclusion and then filter all evidence in a case through the lens
provided by that conclusion.
7
Through that filter, all information
supporting the adopted conclusion is elevated in significance, viewed as
consistent with the other evidence, and deemed relevant and probative.
8
Evidence inconsistent with the chosen theory is easily overlooked or
dismissed as irrelevant, incredible, or unreliable.
9
Properly
understood, tunnel vision is more often the product of the human
condition as well as institutional and cultural pressures, than of
maliciousness or indifference.
Tunnel vision both affects, and is affected by, other flawed
procedures in the criminal justice system. For example, mistaken
eyewitness identifications—the most frequent single cause of wrongful
convictions
10
—can convince investigators early in a case that a
4. Schlup v. Delo, 513 U.S. 298, 321 (1995).
5. B
ARRY SCHECK ET AL., ACTUAL INNOCENCE: FIVE DAYS TO EXECUTION
AND
OTHER DISPATCHES FROM THE WRONGLY CONVICTED 246 (2000).
6. Dianne L. Martin,
Lessons About Justice from the “Laboratory” of
Wrongful Convictions: Tunnel Vision, the Construction of Guilt and Informer
Evidence
, 70 UMKC L. REV. 847, 848 (2002).
7
. See, e.g.
, Myrna Raeder,
What Does Innocence Have to Do With It?: A
Commentary on Wrongful Convictions and Rationality
, 2003 MICH. ST. L. REV. 1315,
1327-28.
8
. See, e.g.
, Martin,
supra
note 6, at 848.
9
. See id.
10. In various studies of wrongful convictions, eyewitness error has been cited
as a contributing factor in anywhere from 60 to 85 percent of all wrongful convictions.
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2006:291
Tunnel Vision in Criminal Cases
293
particular individual is the perpetrator. Convinced of guilt,
investigators might then set out to obtain a confession from that
suspect,
11
producing apparently inculpatory reactions or statements
from the suspect, or leading investigators to interpret the suspect’s
innocent responses as inculpatory. The process of interrogating an
innocent suspect might even produce a false confession. Police and
prosecutors, convinced of guilt, might recruit or encourage testimony
from unreliable jailhouse snitches, who fabricate stories that the
defendant confessed to them, in hopes that they will benefit in their
own cases from cooperation with authorities.
12
Forensic scientists,
aware of the desired result of their analyses, might be influenced—even
unwittingly—to interpret ambiguous data or fabricate results to support
the police theory.
13
All of this additional evidence then enters a
feedback loop that bolsters the witnesses’ confidence in the reliability
and accuracy of their incriminating testimony and reinforces the
original assessment of guilt held by police, and ultimately by
prosecutors, courts, and even defense counsel.
14
Tunnel vision, in a general sense at least, is a well-recognized
phenomenon in the criminal justice system. Most official inquiries into
specific wrongful convictions have noted the role that tunnel vision
played in those individual cases of injustice.
15
For example, former
See
SCHECK ET AL.,
supra
note 5, at 246 (finding eyewitness error in 84 percent of the
first sixty-two postconviction DNA exonerations); Gross et al.,
supra
note 2, at 542
(finding eyewitness error in 64 percent of the cases identified in their study of 340
wrongful convictions between 1989 and 2003).
11. When investigators believe a suspect is the perpetrator, their inquiry shifts
from a fact-gathering “interview” to a confession-seeking “interrogation.” In many
departments, police are taught to “interrogate” suspects only when they are satisfied the
suspect is guilty; at that point the objective is obtaining a confession. Various
stratagems are then employed to break the suspect down psychologically and to induce
a confession.
See
infra
Part II.C.1.
12. Martin,
supra
note 6, at 861.
13
. See
Peter J. Neufeld,
The (Near) Irrelevance of
Daubert
to Criminal
Justice and Some Suggestions for Reform
, 95 AM. J. PUB. HEALTH S107, S111 (2005)
(noting that “examiner bias” produces skewed results in forensic laboratories where, as
is common, “police . . . offer a detailed narrative of the crime and an inventory of
whatever other inculpatory evidence they have against the suspect on the request form
used to order a particular scientific test”);
see generally
D. Michael Risinger et al.,
The
Daubert/Kumho
Implications of Observer Effects in Forensic Science: Hidden
Problems of Expectation and Suggestion
, 90 CAL. L. REV. 1 (2002).
14
. See
Martin,
supra
note 6, at 848; George Castelle & Elizabeth F. Loftus,
Misinformation and Wrongful Convictions
,
in
WRONGLY CONVICTED 17, 18-19, 24,
29-30 (Saundra D. Westervelt & John A. Humphrey eds., 2001).
15. Both scholarly and popular accounts of wrongful convictions have also
observed the problem of tunnel vision: “Perhaps the most common fault with criminal
investigations is their failure to explore all the possible suspects. When attention begins
to focus on a single individual, too often the detectives are called off the general hunt to
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294 WISCONSIN LAW REVIEW
Illinois Governor George Ryan’s Commission on Capital Punishment
concluded that tunnel vision played a significant role in most of the
thirteen Illinois cases studied in which an innocent person was
sentenced to death before being exonerated and released from death
row.
16
The official investigation of the wrongful convictions in
Chicago’s “Ford Heights Four” case also concluded that tunnel vision
was largely to blame.
17
Official Canadian governmental inquiries, held
after high-profile exonerations,
18
have repeatedly identified tunnel
vision as a significant problem in those cases.
19
And the Innocence
go after the single target. Tunnel vision sets in.” BILL KURTIS, THE DEATH PENALTY
ON
TRIAL: CRISIS IN AMERICAN JUSTICE 33 (2004);
see also
Martin,
supra
note 6, at
849; James McCloskey,
Convicting the Innocent
, 8 CRIM. JUST. ETHICS 2, 56 (1989).
Even before the problem of wrongful convictions was widely recognized, the American
Bar Association (ABA) and the Association of American Law Schools (AALS)
described the process that can lead to tunnel vision. In a 1966 joint report, the two
organizations observed:
What generally occurs in practice is that at some early point a familiar
pattern will seem to emerge from the evidence; an accustomed label is
waiting for the case and, without awaiting further proofs, this label is
promptly assigned to it. It is a mistake to suppose that this premature
cataloguing must necessarily result from impatience, prejudice or mental
sloth. Often it proceeds from a very understandable desire to bring the
hearing into some order and coherence, for without some tentative theory of
the case there is no standard of relevancy by which testimony may be
measured. But what starts as a preliminary diagnosis designed to direct the
inquiry tends, quickly and imperceptibly, to become a fixed conclusion, as
all that confirms the diagnosis makes a strong imprint on the mind, while all
that runs counter to it is received with diverted attention.
A
M. BAR ASSN & ASSN OF AM. LAW SCH.,
Report of the Joint Conference of the
American Bar Association and the Association of American Law Schools on
Professional Responsibility
, 44 A.B.A. J. 1159, 1160 (1958)
reprinted in
THE LAWYER
IN MODERN SOCIETY 188, 189 (V. Countryman & T. Finman eds., 1966).
16
. See
STATE OF ILL., REPORT OF THE GOVERNORS COMMISSION ON CAPITAL
PUNISHMENT 20 (2002),
available at
http://www.idoc.state.il.us/ccp/ccp/reports/
commission_report/complete_report.pdf.
17. Steve Mills & John Biemer,
Ford Heights 4 Inquiry Clears Cops,
Prosecutors
, CHI. TRIB., Aug. 22, 2003, at 1.
18. In Canada, unlike most jurisdictions in the United States, the government
has responded to exonerations by holding extensive inquiries into what went wrong and
what might prevent such errors in the future. For a discussion contrasting that response
to the typical response in the United States, in which the exonerated are released
without official comment or inquiry, see Keith A. Findley,
Learning from Our
Mistakes: A Criminal Justice Study Commission to Study Wrongful Convictions
, 38
CAL. W. L. REV. 333, 338-39, 342-44 (2002).
19
. See
FPT HEADS OF PROSECUTION COMM. WORKING GROUP, REPORT ON
THE
PREVENTION OF MISCARRIAGES OF JUSTICE 35 (2004),
available at
http://canada.justice.gc.ca/en/dept/pub/hop/; Province of Manitoba, The Inquiry
Regarding Thomas Sophonow, http://www.gov.mb.ca/justice/publications/
sophonow/arnold/recommend.html (last visited Feb. 25, 2006).
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2006:291
Tunnel Vision in Criminal Cases
295
Commission for Virginia issued a report finding that tunnel vision
played a significant role in many of Virginia’s thirteen proven wrongful
convictions.
20
Most discussions of tunnel vision have focused on its effects in the
initial stages of criminal cases—during the police investigation.
21
That
is indeed where tunnel vision begins, and in many respects where it can
be most damaging, because all later stages of the process feed off the
information generated in the police investigation.
22
But tunnel vision in
the criminal justice system is more pervasive than that. Considerable
literature also examines various pressures on prosecutors that can cause
them to act in ways that subvert justice, whether intentionally or, as is
more often the case, unintentionally.
23
That literature also depicts a
form of tunnel vision. But the problem is more pervasive than even
that literature suggests. In this Article, we explore the ways in which
tunnel vision infects all phases of criminal proceedings, beginning with
the investigation of cases and then proceeding through the prosecution,
trial or plea-bargaining, appeal, and postconviction stages. We seek to
expose some of the myriad expressions of this tunnel vision, and to
come to some understanding of its multiple causes. We examine the
roots of the problem in cognitive biases, institutional pressures, and
deliberate policies reflected in rules and training throughout the system.
In the end, we attempt to draw from this inquiry some understanding of
the measures that might be taken to mitigate the harmful effects of
tunnel vision.
Part I begins with a discussion of several case studies in wrongful
convictions that help demonstrate how tunnel vision can derail the
search for the truth. Part II seeks to identify sources of tunnel vision in
three domains. First, it draws on the cognitive sciences to seek an
understanding of the cognitive biases that can produce tunnel vision,
even in well-meaning participants in the process. Second, it turns to an
analysis of other institutional pressures, many of which are products of
the adversary system and the feedback loops inherent in that system,
that magnify the natural, cognitively based tendency toward tunnel
vision. Third, it examines normative features of the criminal justice
system that exacerbate the problem of tunnel vision—rules and
20. INNOCENCE COMMN FOR VA., A VISION FOR JUSTICE: REPORT AND
RECOMMENDATIONS REGARDING WRONGFUL CONVICTIONS IN THE COMMONWEALTH OF
VIRGINIA
10 (2005),
available at
http://www.wcl.american.edu/innocenceproject/
ICVA/full_r.pdf?rd=1.
21
. See
Martin,
supra
note 6, at 850 (describing an example of tunnel vision
during the police investigation stage).
22
. Id.
at 849.
23
. See infra
Part II.B.2.
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296 WISCONSIN LAW REVIEW
deliberate practices that reinforce the natural cognitive biases and
institutional pressures. Finally, Part III discusses possible reforms that
might counter the tendencies toward tunnel vision, and that might
thereby help the system perform more accurately and reliably.
I. C
ASE STUDIES IN TUNNEL VISION
A. Marvin Anderson
After a trial that lasted less than five hours, Marvin Anderson was
convicted of robbery, forcible sodomy, abduction, and two counts of
rape of a twenty-four-year-old woman in Hanover, Virginia, in 1982.
24
In 2002, DNA testing proved that he did not commit the crime.
25
Police investigators had focused on Anderson because the rapist, who
was African American, had mentioned to the victim that he had a white
girlfriend, and Anderson was the only black man police knew of who
was living with a white woman.
26
Anderson did not fit the victim’s description of her attacker in
several respects; Anderson was taller than the man the victim described
and, unlike the attacker, Anderson had a dark complexion, no
mustache, and no scratches on his face.
27
Nonetheless, investigators
obtained a photo of Anderson from his employer (he had no prior
record and hence no mug photo) and presented it to the victim in an
array of six to ten photos. Anderson’s photo was the only one in color,
and the only one with his social security number printed on it.
28
The
victim selected Anderson’s photograph. Thirty minutes later, police
put together a live-person lineup that again included Anderson.
29
Anderson was apparently the only person in the lineup whose photo had
24. Innocence Project, Case Profiles: Marvin Anderson,
http://www.innocenceproject.org/case/display_profile.php?id=99 (last visited Mar. 28,
2006). Anderson was sentenced to 210 years in prison, was paroled after fifteen years
in prison, and was serving lifetime parole at the time of his exoneration.
Id
.
25
. Id
.;
see also
Demme Doufekias Joannou & W. Hunter Winstead, A
Report on the Case of Marvin Anderson 8-9, 15 (unpublished report prepared for the
Innocence Commission of Virginia, on file with authors).
26. I
NNOCENCE COMMN FOR VA.,
supra
note 20, at 13; Joannou & Winstead,
supra
note 25, at 4, 6.
27. I
NNOCENCE COMMN FOR VA.,
supra
note 20, at 13, 70; Joannou &
Winstead,
supra
note 25, at 6.
28. INNOCENCE COMMN FOR VA.,
supra
note 20, at 13; Joannou & Winstead,
supra
note 25, at 5.
29. It is unclear whether the true perpetrator was included in either the photo
array or the lineup because police did not keep track of the names of the individuals
included. Joannou & Winstead,
supra
note 25, at 8.
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2006:291
Tunnel Vision in Criminal Cases
297
also been included in the photo array.
30
Police told the victim to “go in
and look at the people in the line up to see if she could pick out the
suspect,” and she again picked Anderson.
31
Many of the procedures
used in Anderson’s identification process are now widely recognized as
suggestive or flawed in ways that can lead an eyewitness to mistakenly
identify an innocent person.
32
There were other reasons to doubt the identification as well. DNA
testing was not yet available at the time, but a forensic scientist testified
that she had performed blood typing on swabs from both Anderson and
the victim and was unable to identify Anderson as the source of semen
samples collected in the rape kit.
33
In addition, Anderson presented
four alibi witnesses, including his mother, his girlfriend, and two
neighbors, who all testified that they saw him outside his mother’s
house washing his car at the time of the attack.
34
None of this
evidence, however, was enough to overcome the eyewitness
identification.
35
Tunnel vision infected Anderson’s case from the beginning,
leading police, prosecutors, defense counsel, and eventually the jury
30
. Id.
at 20-21.
31
. Id
. at 7.
32. The flawed procedures used in this case included using a photograph of
the suspect that stood out as distinctive; showing the photographs and individuals
simultaneously rather than sequentially; leading the victim to believe that the suspect
was included among the photographs and individuals presented and that her task was
“to see if she could pick out the suspect”; using officers who knew that Anderson was
the suspect to conduct the identification procedure; and showing the suspect to the
victim in multiple proceedings, especially when he was the only one included in each of
those proceedings.
See,
e.g.
, John Turtle, R.C.L. Lindsay & Gary L. Wells,
Best
Practice Recommendations for Eyewitness Evidence Procedures: New Ideas for the
Oldest Way to Solve a Case
, 1 CAN. J. POLICE & SECURITY SERVICES 5 (Spring 2003)
(explaining “recommended” policies and procedures for eyewitness identification),
available at
http://www.psychology.iastate.edu/faculty/gwells/CJPSSarticle.pdf; WIS.
DEPT OF JUSTICE, OFFICE OF ATTORNEY GEN., MODEL POLICY & PROCEDURE FOR
EYEWITNESS IDENTIFICATION (2005),
available at
http://www.doj.state.
wi.us/dles/tns/eyewitness.asp.
33. INNOCENCE COMMN FOR VA.,
supra
note 20, at 13.
34. Joannou & Winstead,
supra
note 25, at 10-11.
35. It is not uncommon for juries to reject alibi evidence—even true alibi
evidence—particularly when the alibi witnesses are perceived as motivated to protect
the defendant.
See
Elizabeth A. Olson & Gary L. Wells,
What Makes a Good Alibi?
A Proposed Taxonomy
, LAW & HUM. BEHAV. 157, 157-58 (2004) (noting that, even for
individuals later exonerated by DNA testing, alibi evidence is often ineffectual and that
indeed “‘weak alibis’ [are] often exploited by prosecutors and used as incriminating
evidence”); R.C.L. Lindsay et al.,
Mock-Juror Evaluations of Eyewitness Testimony:
A Test of Metamemory Hypotheses
, 15 J. APP. SOC. PSYCHOL. 447 (1986) (finding that
only alibi witnesses who were not relatives of the defendant were effective at reducing
convictions in cases where an eyewitness identified the defendant as the perpetrator).
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298 WISCONSIN LAW REVIEW
and reviewing courts, to minimize and discredit the alibi evidence, the
mismatch between the victim’s description of the perpetrator and
Anderson’s appearance, and the absence of physical evidence. Even
more significantly, the premature focus on Anderson meant that no one
pursued evidence that was available before trial that pointed toward the
true perpetrator.
36
As the Virginia Innocence Commission concluded,
“[o]nce the victim identified Anderson, . . . the police did not pursue
additional leads.
37
The DNA testing that exonerated Anderson in 2002 identified the
true perpetrator—a man named Otis “Pop” Lincoln.
38
The match to
Lincoln should not have come as a surprise. Lincoln’s name had been
circulating in the community as a likely suspect for some time prior to
Anderson’s conviction, but no one investigated him.
39
Two friends of
the Anderson family said before trial that just before the rape they saw
Lincoln riding a bicycle toward the shopping center where the attack
occurred—a fact of particular significance because the attacker rode a
bicycle.
40
Moreover, these witnesses heard Lincoln make sexually
suggestive comments to two young white girls, and then boast as he
rode past that he would force himself onto a woman if she refused his
advances.
41
The owner of the bicycle that was used by the assailant
also said that Lincoln had stolen it from him approximately thirty
minutes before the rape.
42
After Anderson was arrested, others in the
community reported to Anderson’s mother that Lincoln drove by her
house one day because he wanted to see “the young boy who was
taking his rap.”
43
Moreover, unlike Anderson, Lincoln had a criminal
record for sexual assault and was awaiting trial for another sexual
attack at the time.
44
Nonetheless, even Anderson’s defense lawyer
declined to investigate or call any witnesses who could have linked
Lincoln to the crime at trial.
45
Eventually, six years later, at proceedings on Anderson’s
application for habeas corpus, Lincoln confessed fully to the crime in
court under oath and provided details of the attack.
46
Nevertheless, the
36. INNOCENCE COMMN FOR VA.,
supra
note 20, at 13.
37
. Id
.
38
. Id
. at 14.
39
. Id
. at 70.
40
. Id
.
41
. Id
.
42
. Id.
43
. Id
.
44
. Id
.
at 13.
45. Innocence Project,
supra
note 24.
46.
Id
.; Joannou & Winstead,
supra
note 25, at 13.
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2006:291
Tunnel Vision in Criminal Cases
299
same judge who presided over the original trial refused to credit
Lincoln’s confession, finding that it was untruthful.
47
The Governor
subsequently refused to intervene and denied clemency.
48
Anderson
remained in prison, and then on parole, for several more years until
DNA testing confirmed that Lincoln, not Anderson, was the attacker.
49
Other aspects of the case also reveal just how stubborn erroneous
beliefs in guilt can be. Despite the weakness of the case against
Anderson, and the abundance of evidence that should have alerted
authorities to investigate Lincoln, the original prosecutor in the case
claimed that, from his perspective and until the exoneration, the
Anderson case was “the clearest case he had ever had.”
50
Although
Anderson’s trial lawyer made numerous egregious errors, the trial court
was unwilling to grant a new trial on a claim of ineffective assistance of
counsel. The court concluded that it made no difference that: (1)
counsel had a conflict of interest because he had previously represented
Lincoln on a previous attempted rape charge; (2) although the lawyer
knew there was evidence against Lincoln, and admitted that he
suspected Lincoln, he failed to disclose his prior representation of
Lincoln, his suspicions about Lincoln, and his conflict of interest to
Anderson; (3) despite Anderson’s mother’s repeated pleas, the lawyer
failed to call Lincoln or the other witnesses who had watched Lincoln
harass the young women, make threats, and ride off on a bicycle
toward the crime scene just before the attack in this case; and (4) the
lawyer failed to ask that the bicycle ridden by the attacker on the day of
the rape be fingerprinted or introduced into evidence, even though the
bicycle was in police custody. The trial court found that all of this was
insufficient to meet the two-pronged test for ineffective assistance of
counsel.
51
B. Steven Avery
Like Marvin Anderson, Steven Avery was convicted of a brutal
rape primarily on the strength of the victim’s eyewitness
identification.
52
Like Anderson, Avery was convicted despite strong
alibi evidence, and even though the true perpetrator was well known to
47. Innocence Project,
supra
note 24.
48
. Id
.
49
. Id
.
50. Joannou & Winstead,
supra
note 25, at 18.
51
. See
Strickland v. Washington, 466 U.S. 668, 669 (1984).
52. Memorandum from Peggy A. Lautenschlager, Attorney General, State of
Wisconsin, to Mark Rohrer, District Attorney, Manitowoc County, Wisconsin (Dec.
17, 2003),
available at
http://www.doj.state.wi.us/newsarchive/rep121803_DCI.asp.
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300 WISCONSIN LAW REVIEW
police and prosecutors and should have been a prime suspect.
53
Also
like Anderson, Avery was wrongly convicted because tunnel vision
prevented system actors from considering alternative theories about the
crime until DNA evidence finally proved in 2003 that Avery was
innocent, and that another man, Gregory Allen, was guilty.
54
By then,
Avery had served more than eighteen years in prison.
55
The rape and attempted murder in Avery’s case was committed in
broad daylight on a beach in Manitowoc County, Wisconsin, in 1985.
56
While being treated in the hospital after the attack, the victim gave
police a description of her attacker and helped create a composite
sketch.
57
Based on that description and sketch, local sheriff’s deputies
thought the attacker might be Avery.
58
Law enforcement knew Avery
because Manitowoc was a small community, he had relatives who
worked in the sheriff’s department, he had previously been convicted of
two counts of burglary and one count of cruelty to an animal, and he
was being prosecuted at the time for allegedly forcing the wife of a
deputy off the road at gunpoint as part of an ongoing feud.
59
The sheriff presented Avery’s photo to the victim as part of a nine-
photo simultaneous array, telling her that “the suspect might be in
there.”
60
The victim later said that the sheriff’s statement led her to
“believe[] that the suspect’s photograph was included in the group of
nine photos.”
61
However, a photograph of Allen, the true perpetrator,
was not included in the array and the victim instead selected Avery’s
photo.
62
Three days later, after the victim had been informed that
police had arrested the man she identified, police conducted a live-
person lineup to confirm her identification.
63
Avery was the only
53
. Id
.
54
. Id.
55
. Id
. Two years later, Avery was charged with a subsequent rape and
murder of a young woman committed in October 2005. As of this writing, Avery has
not yet been tried on those charges. The new charges raise no questions about the
validity of the previous exoneration. Regardless of the outcome of the pending trial,
Avery’s wrongful conviction in 1985 remains an important case study in the problem of
tunnel vision.
56
. Id
.
57
. Id
.
58
. Id.
59
. Id
.
60
. Id
.
61
. Hearings of the Wisconsin Assemb. Judiciary Comm. Avery Task Force
,
2003-2004 Leg., Reg. Sess. (Wis. 2004) (statement of Penny Beerntsen) [hereinafter
Beerntsen Statement].
62
. Id
. at 1.
63. Memorandum from Peggy A. Lautenschlager to Mark Rohrer,
supra
note
52.
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2006:291
Tunnel Vision in Criminal Cases
301
person in the lineup whose photo had also been in the previous photo
array.
64
Avery was also the shortest, youngest, and fairest person in
the lineup.
65
Unlike Avery, a few of the people in the lineup wore
professional attire such as neck ties, and some wore glasses.
66
Records
from the lineup indicate that one lineup member looked at Avery during
most of the lineup.
67
Again, the victim picked Avery.
68
The State bolstered its eyewitness evidence with circumstantial
evidence. Deputies swore that the night of the arrest they told Avery
only that he was being arrested for attempted murder, yet they claimed
Avery told his wife that he was being accused of attempting to murder a
“girl.”
69
Despite the ambiguous nature of that evidence, the deputies,
the prosecutor, and, ultimately, the courts thought it was highly
incriminating that Avery seemed to know the gender of the victim.
70
In
addition, to rebut Avery’s alibi—his claim that he had spent the day
pouring concrete with his extended family and friends—the State
offered evidence that the State Crime Laboratory could find no traces of
concrete dust on his clothing.
71
The State also offered evidence that a
hair found on Avery’s tee shirt was microscopically similar to the
victim’s head hair.
72
Avery’s defense was unusually strong. He presented sixteen alibi
witnesses who confirmed that he had been pouring concrete during the
day and then had taken his wife and five young children—including six-
day-old twins—to Green Bay, more than an hour’s drive away, for
64
. Id
.
65
. Id
.
66
. Id
.
67
. Id
.
68
. Id
.
69
. Id
.
70
. See
State v. Avery, 213 Wis. 2d. 228, 245, 570 N.W.2d 573, 581 (Ct.
App. 1997) (referring to the “powerful” evidence that Avery referred to the victim as a
female prior to being told the gender of the victim by the police).
71
. Id
.; Memorandum from Peggy A. Lautenschlager to Mark Rohrer,
supra
note 52.
72. Microscopic hair analysis has been roundly criticized in recent years as
“junk science.” Postconviction DNA testing has shown that microscopic hair analysis
is frequently misleading or inaccurate.
See
Neufeld,
supra
note 13, at S107-8; Clive A.
Stafford Smith & Patrick D. Goodman,
Forensic Hair Comparison Analysis:
Nineteenth Century Science or Twentieth Century Snake Oil?
, 27 COLUM. HUM. RTS.
L. REV. 227 (1996) (discussing the questionable scientific foundation of microscopic
hair analysis). The Wisconsin State Crime Laboratory no longer performs microscopic
hair analysis, in part because DNA testing is so much more reliable. Telephone
interview by Keith Findley with Jerome Geurts, Director, Wis. State Crime Laboratory
(April 27, 2006).
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302 WISCONSIN LAW REVIEW
supper and to shop for paint.
73
Instead of taking pause from this
evidence, the State sought a way to minimize its significance. The
prosecutor impeached the testimony of Avery’s family and friends as
biased.
74
When Avery presented the testimony of unbiased witnesses—
the clerk and the manager at the Shopko store where Avery purchased
his paint in Green Bay—sheriff’s deputies sought a way around their
testimony. The clerk and the manager, who had not known Avery
previously, remembered him checking out because it was unusual to see
a family with five young children, including twins who were less than a
week old. And they produced the cash register tape showing that
Avery and his family had checked out at 5:13 p.m.—a little over an
hour after the victim claimed the attack had begun.
75
Sheriff’s deputies
countered that they had done a timed drive from the location of the
assault to the Green Bay Shopko and had been able to make it to the
checkout line in fifty-seven minutes.
76
But, as the Attorney General
concluded after investigating Avery’s wrongful conviction in 2003:
[T]he officers admitted that they went ten miles per hour over
the speed limit to reach those numbers and the officers did not
account for potential delays resulting from the presence of
five children, including six-day old twins, all of whom were
seen with Avery and his wife at the Shopko. Moreover, the
reenactment did not allow any time for picking up Avery’s
family and would therefore assume that Avery’s wife and five
children were at the beach somewhere or in the car while he
committed the assault.
77
Simply put, tunnel vision prevented the deputies, the prosecutor, the
judge, and the jury from appreciating the implausibility of that
scenario.
Even more startling, however, the sheriff’s department and
prosecutor refused to consider or investigate the true perpetrator, even
though he was in their sights all along. Allen, who was identified as
the true perpetrator by a cold hit in the DNA database in 2003, was a
known sexual offender in Manitowoc County prior to this offense, and
his offenses were escalating.
78
Two years earlier, the same prosecutor
73. Memorandum from Peggy A. Lautenschlager to Mark Rohrer,
supra
note
52.
74
. See
Avery
, 213 Wis. 2d. at 245, 570 N.W.2d at 581.
75. Memorandum from Peggy A. Lautenschlager to Mark Rohrer,
supra
note
52.
76
. Id
.
77
. Id
.
78
. Id
.
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2006:291
Tunnel Vision in Criminal Cases
303
who prosecuted Avery had convicted Allen of a very similar attempted
sexual assault—Allen masturbated while walking behind a woman and
then lunged at her—on the same beach as the site of the attack in
1985.
79
At the time of the 1985 offense, Allen was a chief suspect in
the murder of a fifteen-year-old girl in North Carolina, and was
suspected of a series of attempted sexual assaults, attempted burglaries,
window peepings, and acts of exposing himself in Manitowoc County.
80
Allen was considered such a threat to commit a sexual assault that
Manitowoc police maintained daily surveillance on him, checking on
his whereabouts as many as fourteen times each day, during the two
weeks prior to the 1985 assault for which Avery was wrongly
convicted.
81
The day of the attack, police were called away to other
duties and were only able to check on Allen once.
82
In fact, before
Avery was convicted, at least two employees in the district attorney’s
office expressed concern that they believed Allen, not Avery, was
responsible for the assault for which Avery stood charged.
83
Nonetheless, the sheriff’s department and prosecutor steadfastly
refused to consider that Avery might not be guilty, or to investigate
Allen. When the police department suggested to the sheriff’s
department that Allen might be the perpetrator, the sheriff simply
responded that Allen had been ruled out as a suspect.
84
When the
victim inquired about the police department’s concerns regarding Allen,
the sheriff’s department told her, “Do not talk to the Manitowoc Police
Department. It will only confuse you. We have jurisdiction.”
85
and all
“other suspects ha[ve] been looked at and were ruled out . . ..”
86
The resilience of the view that Avery was guilty also infected the
postconviction and appellate stages of the case. On direct appeal, the
court of appeals rejected challenges to the out-of-court identifications,
concluding that, despite the now-apparent deficiencies in the
79
. Id
.
80
. Id
. Finally, ten years after the 1985 assault, Gregory Allen was convicted
of a subsequent sexual assault of a woman in Green Bay, and was sentenced to sixty
years in prison. Meg Jones,
Man Linked to Sexual Assault Transferred to Waupun
,
MILWAUKEE J. SENTINEL, Sept. 26, 2003, at 3B,
available at
http://www.jsonline.com/news/state/sep03/172525.asp.
81. Tom Kertscher,
Police Were Watching Man Now Linked to Avery Case
,
M
ILWAUKEE J. SENTINEL, Oct. 20, 2003, at 1A,
available at
http://www.jsonline.com/news/state/oct03/178587.asp.
82
. Id
.
83. Memorandum from Peggy A. Lautenschlager to Mark Rohrer,
supra
note
52.
84
. Id
.
85. Kertscher,
supra
note 81.
86. Beerntsen Statement,
supra
note 61, at 7-8.
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304 WISCONSIN LAW REVIEW
identification procedures that were employed, “the photo array
constitute[d] one of the fairest ones this court ha[d] seen.”
87
Subsequently, in 1995, Avery obtained postconviction DNA testing in
an attempt to prove his innocence.
88
Unfortunately, the technology was
not advanced enough at that time to produce dispositive results.
89
The
DNA taken from the victim’s fingernail scrapings (she said she had
scratched at her attacker) showed the presence of DNA from the victim
and an unknown third person, but could not conclusively exclude (or
include) Avery.
90
Avery argued that the third-party DNA had to be the
real attacker’s, but the courts denied relief, concluding that the foreign
DNA could have gotten under the victim’s fingernails innocently.
91
Despite the now-apparent weaknesses in the State’s case, including
Avery’s sixteen alibi witnesses, the court of appeals asserted that it did
not “view this case as ‘extremely close,’” and accordingly concluded
that the new DNA evidence was not enough to warrant a new trial.
92
In September 2003, the Wisconsin State Crime Laboratory was
able to use previously unavailable technologies to extract a DNA profile
from the victim’s pubic hair combings.
93
That DNA profile
conclusively excluded Avery.
94
Moreover, when laboratory analysts
ran that profile through the State DNA Databank, they obtained a cold
hit on Allen, whose profile was in the databank because he had
subsequently committed another sexual assault, for which he was by
then serving sixty years in prison.
95
By stipulation of the parties and
order of the court, Avery was exonerated and released the following
day.
96
87. State v. Avery, No. 86-1831-CR, 1987 WL 267394, *5 (Wis. Ct. App.
Aug. 5, 1987) (unpublished opinion).
88. Wisconsin Innocence Project, Case Profiles: Steven Avery,
http://www.law.wisc.edu/fjr/innocence/avery_Summary2.htm (last visited Mar. 28,
2006).
89
. Id
.
90. The tests done at that time could not exclude or include Avery because
they revealed genetic markers consistent with both the victim and Avery.
See id
.
91. State v. Avery, 213 Wis. 2d 228, 243, 570 N.W.2d 573, 580 (Ct. App.
1997).
92
. Id
. at 245, 570 N.W.2d at 581.
93. Tom Kertscher & Jesse Garza,
DNA Clears Prisoner 17 Years Into His
Term
, MILWAUKEE J. SENTINEL, Sept. 11, 2003, at 1A,
available at
http://www.jsonline.com/news/racine/sep03/168842.asp.
94
. Id
.
95. Memorandum from Peggy A. Lautenschlager to Mark Rohrer,
supra
note
52.
96
. See
Kertscher & Garza,
supra
note 93.
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2006:291
Tunnel Vision in Criminal Cases
305
C. The Central Park Jogger Case
To say that tunnel vision has affected the investigation and
prosecution of a case is not necessarily to say that police were
motivated improperly, or that their initial suspicions about the
defendant were unfounded. Rather, it is simply to observe that police
(and eventually prosecutors and courts) might have focused too quickly
or exclusively on a suspect or suspects. It is to caution everyone in the
criminal justice system to be receptive to, and make inquiry into,
alternative possibilities, even when the evidence against a given suspect
looks powerful.
The Central Park Jogger case serves as an example. On an April
evening in 1989, around 9:15 p.m., a young woman was attacked,
beaten, sexually assaulted, and left nearly dead in New York City’s
Central Park.
97
Remarkably, she survived despite the loss of nearly 80
percent of her blood.
98
But she retained no memory of the attack.
99
Quickly, and with good reason, police and prosecutors focused
their attention on a group of youths who had been “wilding” in the park
that night. This group of teenage boys, estimated at up to forty or fifty
in number, spent the evening roaming the park, harassing, physically
beating, and attempting to rob joggers, cyclists, and others in the
park.
100
Responding to complaints about these attacks, several police
officers spotted fifteen to twenty boys in the park around 10:15 p.m.
and caught several of them as they fled.
101
Later that night, around 1:00 a.m., two men discovered the female
jogger’s nearly lifeless body in the park.
102
Because she was found near
the location where several other victims had been attacked that night,
police suspected the boys were also responsible for the attack on the
female jogger.
103
Throughout the rest of that night and the next day,
police and prosecutors interrogated the fourteen- to sixteen-year-old
suspects (including several who were arrested the next day).
104
Ultimately, after interrogations that ranged from fourteen to thirty
hours,
105
police and prosecutors succeeded in obtaining confessions
97. Steven A. Drizin & Richard A. Leo,
The Problem of False Confessions in
the Post-DNA World
, 82 N.C. L. REV. 891, 894 (2004).
98
. Id
.
99
. Saul M. Kassin & Gisli H. Gudjonsson,
The Psychology of Confessions:
A Review of the Literature and Issues
, 5 PSYCHOL. SCI. IN THE PUB. INT. 33, 34 (2004).
100
.
Drizin & Leo,
supra
note 97, at 894-95.
101
. Id
. at 895.
102
. Id
.
103
. Id
. at 895-96.
104
. Id
. at 896.
105.
Kassin & Gudjonsson,
supra
note 99, at 60.
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306 WISCONSIN LAW REVIEW
from five boys to the rape of the Central Park Jogger.
106
Four of those
five confessions were videotaped.
107
But only the confessions were
recorded; the hours of interrogations that led up to the confessions were
not.
108
Precisely what happened during the hours of unrecorded
interrogations was a matter of contention both before and at trial. The
boys and their parents claimed coercion, alleging that the police
slapped, yelled, and cursed at the boys, called them liars, and suggested
they would be released if they confessed.
109
Police admitted lying to
the boys about fingerprint evidence, but denied any coercive tactics.
110
The trial court credited the police version and held that the boys’
confessions were admissible at trial.
111
Regardless of where the truth
about those interrogations lay, two things are clear: police and
prosecutors were focused on the boys as suspects, and they succeeded
in getting the boys to confess.
At trial, prosecutors also introduced evidence that hair consistent
with the victim’s hair was found on one of the boys’ clothing, along
with a bloody rock that prosecutors claimed the boys used to bludgeon
the jogger.
112
All five boys were convicted of participating in the rape
of the jogger and other attacks committed in the park that night.
113
In 2002, evidence began to emerge that the boys were innocent.
114
In January of that year, a man named Matias Reyes confessed to
authorities that he raped the Central Park Jogger, and that he had acted
alone.
115
It turned out that Reyeswas one of New York Citys most
notorious serial rapists.”
116
In the months following the Central Park
attack, until his apprehension in August 1989, he had “terrorized the
Upper East Side, raping four women, one of whom, a pregnant
woman, he killed after raping her in front of her children.”
117
DNA
subsequently confirmed the confession: Reyes’s DNA matched semen
on the jogger’s sock.
118
Mitochondrial DNA testing of the hair found
on one of the boys’ clothing also showed that it probably was not the
106
.
Drizin & Leo,
supra
note 97, at 896.
107
. Id
.
108
. Id
.
109
. Id
. at 896-97.
110
. Id
. at 897.
111
. Id
.
112
. Id
.
113
. Id
.
114
. Id
. at 898.
115
. Id
.
116
. Id.
117
. Id
.
118
. Id
.
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2006:291
Tunnel Vision in Criminal Cases
307
jogger’s, and additional testing on the bloody rock showed the blood
and hair on the rock were not hers either.
119
A subsequent investigation
by the district attorney’s office found no link between Reyes and any of
the five defendants.
120
Moreover, the district attorney’s office
concluded that the confessions from the five boys were inconsistent
with one another on “virtually every major aspect of the crime,”
121
were inconsistent with the objectively verifiable evidence, and were
demonstrably false in significant respects.
122
Accordingly, the district
attorney’s office joined in a motion to vacate the convictions and the
court set aside all five convictions in December 2002.
123
Despite this new evidence, former prosecutors and police involved
in the case sharply criticized the district attorney’s office for joining in
the motion to vacate the convictions.
124
The police department
conducted its own investigation and issued a report that ultimately
supported the decision to vacate the convictions, but disputed many of
the district attorney’s conclusions, sought to discredit Reyes’s detailed
confession, and offered several theories to explain how the boys might
have committed the crime with Reyes.
125
II. T
HE SOURCES OF TUNNEL VISION
A. Tunnel Vision as a Function of Cognitive Biases
The tendency toward tunnel vision is partly innate; it is part of our
psychological makeup. Tunnel vision is the product of a variety of
cognitive distortions that can impede accuracy in what we perceive and
in how we interpret what we perceive. Psychologists analyze tunnel
vision as the product of various cognitive “biases,”
126
such as
119
. Id
. at 899.
120. Affirmation in Response to Motion to Vacate Judgment of Conviction ¶
46, New York v. Wise, No. 4762/89 (N.Y. Sup. Ct. Dec. 5, 2002),
available at
http://files.findlaw.com/news.findlaw.com/hdocs/crim/nywiseetal120502aff.pdf.
121
. Id
. ¶ 86.
122
. Id
. ¶¶ 91-93.
123. Drizin & Leo,
supra
note 97, at 899.
124
. Id
.
125
. Id
. at 899-900;
see also
NEW YORK POLICE DEPT, CENTRAL PARK JOGGER
CASE PANEL REPORT (2003),
available at
http://www.nyc.gov/html/nypd/html/dcpi/
executivesumm_cpjc.html.
126. It should be kept in mind that in the social sciences the term “bias” is
value neutral. It merely describes a situation in which any errors that might be made
are skewed in one direction or another, as opposed to a situation of random error,
where errors have no directionality. In some contexts, biases may be desirable when
they run in the direction of errors that are less costly than their opposites.
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308 WISCONSIN LAW REVIEW
confirmation bias, hindsight bias, and outcome bias. These cognitive
biases help explain how and why tunnel vision is so ubiquitous, even
among well-meaning actors in the criminal justice system.
Understanding these biases offers some insight into the reforms or
remedies that might be implemented to try to counteract tunnel vision,
as well as insight into reforms that are likely to be futile.
The cognitive biases to which we refer have been the subject of
substantial study by experimental psychologists over the course of many
decades,
127
but the tendency of humans toward such biases has been
obvious to careful observers since time immemorial.
128
What has not
been so obvious prior to the investigation of modern science is the
extent to which such biases can operate without conscious recognition,
and the variety of circumstances that can intensify the effects of the
underlying biases.
Different researchers use slightly different labels for related and
sometimes overlapping conditions and effects. The foundational
tendency is probably best understood as an expectancy bias, which is a
form of confirmation bias.
129
When people are led by circumstances to
expect some fact or condition (as people commonly are), they tend to
perceive that fact or condition in informationally ambiguous
situations.
130
This can lead to error biased in the direction of the
expectation.
131
When what a person expects to see is the result of the
person’s own generation of hypotheses, theories, or scenarios about
what must be the case, the personal investment in those hypotheses will
reinforce the tendency to perceive or overvalue confirming information
127
. See
THOMAS GILOVICH, HOW WE KNOW WHAT ISNT SO: THE FALLIBILITY
OF
HUMAN REASON IN EVERYDAY LIFE 33 (1991); RICHARD NISBETT & LEE ROSS,
HUMAN INFERENCE: STRATEGIES AND SHORTCOMINGS OF SOCIAL JUDGMENT (James J.
Jenkins et al. eds., 1980); Alafair S. Burke,
Improving Prosecutorial Decision Making:
Some Lessons of Cognitive Science
, 47 WM. & MARY L. REV. 8 (2006); Charles G.
Lord et al.,
Biased Assimilation and Attitude Polarization: The Effects of Prior
Theories on Subsequently Considered Evidence
, 37 J. PERSONALITY & SOC. PSYCHOL.
2098 (1979); Raymond S. Nickerson,
Confirmation Bias: A Ubiquitous Phenomenon in
Many Guises
, 2 REV. GEN. PSYCHOL. 175, 175 (1998); Yaacov Trope & Akiva
Liberman,
Social Hypothesis Testing: Cognitive and Motivational Mechanisms
,
in
SOCIAL PSYCHOLOGY: HANDBOOK OF BASIC PRINCIPLES 239, 239-70 (E. Tory Higgins
& Arie W. Kruglanski eds., 1996).
128. Julius Caesar, for example, observed that “people easily believe that
which they want to be true.” Risinger et al.,
supra
note 13, at 6 (quoting G. JULIUS
CAESAR, CAESARS COMMENTARIES ON THE GALLIC WAR 155 (Frederick Holland
Dewey ed., Translation Publishing Co. 1918) (51 B.C.E.) (“[H]omines fere credunt
libentur id quod volunt.”)).
129. Risinger et al.,
supra
note 13, at 12-26.
130.
Id.
131.
Id.
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2006:291
Tunnel Vision in Criminal Cases
309
and to miss or irrationally undervalue disconfirming information.
132
Similarly, when such hypotheses are provided by a person of superior
status in a team effort, or when self-worth and role-success contribute
to emotional investment, the confirmation bias can be amplified, so that
even the most obvious and unambiguous “disconfirming” information
may remain undiscovered, or be dismissed.
133
In a sense, cognitive biases are a byproduct of our need to process
efficiently the flood of sensory information coming from the outside
world. Without some system of categories or “schemata” to organize
that information, it would remain, in the imagery of noted psychologist
and philosopher William James, a “blooming, buzzing confusion.”
134
It
is likely that most of the cognitive biases and heuristics that appear to
be wired into us were adaptive to the conditions under which we
evolved as a species. But as a result of this necessary system of
categorization, interpretation, and selective attention, we can be subject
to error. The effects can be pernicious, whether the investigators
involved are scientists or homicide detectives, unless the biasing
tendencies are recognized and steps are taken to control or correct for
them.
1.
CONFIRMATION BIAS
Confirmation bias, as the term is used in psychological literature,
typically connotes the tendency to seek or interpret evidence in ways
that support existing beliefs, expectations, or hypotheses.
135
The bias
has several expressions. In part, the bias reflects that, when testing a
hypothesis or conclusion, people tend to
seek
information that confirms
their hypothesis and to avoid information that would disconfirm their
hypothesis.
136
For example, a classic study asked people to find the rule that was
used to generate a series of triplets of numbers (that is, a series such as
4-6-8).
137
The experimenter presented the triplet and asked the subjects
132.
Id.
133.
Id
.
134.
Id
. at 14 (quoting WILLIAM JAMES, THE PRINCIPLES OF PSYCHOLOGY,
1890, ch. 13,
reprinted in
53 GREAT BOOKS OF THE WESTERN WORLD 318 (Robert
Maynard Hutchins ed., 1952)).
135. N
ISBETT & ROSS,
supra
note 127, at 169-71; Nickerson,
supra
note 127, at
175; Trope & Liberman,
supra
note 127, at 239-70.
136. G
ILOVICH,
supra
note 127, at 33; Burke,
supra
note 127, at 8; Lord et al.,
supra
note 127, at 2098; Nickerson,
supra
note 127, at 177.
137. C
ATHERINE FITZMAURICE & KEN PEASE, THE PSYCHOLOGY OF JUDICIAL
SENTENCING 30 (1986); Nickerson,
supra
note 127, at 179.
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310 WISCONSIN LAW REVIEW
to hypothesize a rule that explained the sequence.
138
The subjects then
tested their hypotheses by proposing additional triplets; the
experimenter then told them whether the proposed sequences fit the
rule.
139
The subjects typically tested their hypotheses only by proposing
triplets that fit their hypotheses.
140
Because the subjects rarely proposed
triplets that did not fit their hypotheses, they were precluded from ever
discovering that their hypotheses were wrong and that they had merely
proposed triplets that
also
fit the actual rule.
141
In essence, subjects
showed a preference for evidence that would
confirm
their hypothesis
over evidence that would
disconfirm
it, even though the latter would
have been more probative.
142
In another experiment, subjects were given four cards, each with a
different letter or number—an A, B, 2, or 3—on the side facing up.
143
They were then given a hypothesis, that any card with a vowel facing
up had an even number on the reverse side, and were asked which card
or cards they would turn over first to test that hypothesis.
144
The most
common response was to turn over the A and 2 cards—cards that could
offer evidence consistent with the hypothesis.
145
Turning over the 2
card, however, was actually uninformative because it could only
confirm the hypothesis—a vowel on the other side would be consistent
with the hypothesis, but a consonant would neither confirm nor
disprove the hypothesis.
146
Turning over the 3 card potentially could
have been very informative because a vowel on the other side would
have disproved the hypothesis.
147
But subjects rarely turned over the 3
card because they naturally sought confirming, not disconfirming,
evidence.
148
Studies show that this preference for confirming information
prevails in a social context as well.
149
For example, in a study that has
been repeated numerous times in different ways, subjects were asked to
138. Nickerson,
supra
note 127, at 179.
139
. Id
.
140
. Id
.
141
. Id
.
142. Burke,
supra
note 127, at 7.
143. G
ILOVICH,
supra
note 127, at 33.
144
. Id
.
145
. Id
.
146
. Id
.
147
. Id
.
148
. See id
.; P.C. Wason,
Reasoning
,
in
NEW HORIZONS IN PSYCHOLOGY 135,
139-41 (B.M. Foss ed. 1966).
149. Mark Snyder & William B. Swann, Jr.,
Behavioral Confirmation in Social
Interaction: From Social Perception to Social Reality
, 14 J. EXPERIMENTAL SOC.
PSYCHOL. 148, 156 (1978).
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2006:291
Tunnel Vision in Criminal Cases
311
interview a target person to determine whether that person was an
introvert or an extrovert.
150
In one study, the interviewers were given a
list of questions to select from to probe the target’s personality.
151
Half
of the interviewers were told to choose questions that would test
whether the person was an extrovert, and the other half were told to
choose questions that would test whether the person was an introvert.
152
Consistently, interviewers chose questions that would prove, but never
disprove, the implicit hypothesis.
153
Hence, subjects told to ask
questions to test for extroversion chose questions like, “What would
you do if you wanted to liven things up at a party?” while subjects
testing for introversion asked questions like, “What is it about large
groups that make you feel uncomfortable?”
154
Numerous studies have repeatedly shown this confirmation bias,
and have found that people seek information in ways that increase their
confidence in prior beliefs or hypotheses—as in the studies cited here—
even when they have no vested interest in those hypotheses.
155
Consistently, studies also confirm that people prefer to test a hypothesis
or rule “by choosing only examples that would be classified as
instances of the sought-for concept if the hypothesis were correct.”
156
People disfavor choices that would disprove the hypothesis.
157
Ironically, this confirmation preference not only inhibits discovering the
incorrectness of a particular hypothesis, but “this strategy would not
yield as strongly confirmatory evidence, logically, as would that of
deliberately selecting tests that would show the hypothesis to be wrong,
150
. See id
. at 151-52.
151. Miriam Bassok & Yaacov Trope,
People’s Strategies for Testing
Hypotheses About Another’s Personality: Confirmatory or Diagnostic?
, 2 SOC.
COGNITION 199, 202 (1984).
152
. Id
.
153
. Id
. at 210.
154. Burke,
supra
note 127, at 9; Mark Snyder & William B. Swann, Jr.,
Hypothesis-Testing Processes in Social Interaction
, 36 J. PERSONALITY & SOC.
PSYCHOL. 1202, 1202-12 (1978); GILOVICH
, supra
note 127, at 34-35.
155. Nickerson,
supra
note 127, at 178; GILOVICH,
supra
note 127, at 33.
156. Nickerson,
supra
note 127, at 178.
157. In part, we have a natural preference for confirmatory information
because “it is easier to deal with cognitively.” GILOVICH,
supra
note 127, at 31.
Confirming information tends to be directly relevant to the proposition at issue,
whereas information that fails to confirm a proposition can be only indirectly relevant,
and accordingly requires additional cognitive steps “to put the information to use.”
Id
.
at 31-32. In addition, nonconfirmatory information is typically framed as a negative,
“and we sometimes have trouble conceptualizing negative assertions.”
Id
. at 32. To
illustrate, Gilovich has noted how much easier it is to conceptualize the statement, “All
Greeks are mortals,” than the negative of that statement, “All non-mortals are non-
Greeks.”
Id
.
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312 WISCONSIN LAW REVIEW
if it is wrong, and failing in the attempt.”
158
Although such
confirmation-biased information is often less probative than
disconfirming information might be, people fail to recognize the
weakness of the confirming feedback they receive or recall.
159
In this
sense, the data “suggest that feedback that is typically interpreted by
participants to be strongly confirmatory often is not logically
confirmatory, or at least not strongly so. The ‘confirmation’ the
participant receives in this situation is, to some degree, illusory.”
160
Empirical research also demonstrates that people not only
seek
confirming information, they also tend to
recall
information in a biased
manner. Experiments show that, when revisiting information
previously obtained, people search their memories in biased ways,
preferring information that tends to confirm a presented hypothesis or
belief.
161
For example, in one study participants were read a story
about a woman who behaved in a number of both introverted and
extroverted ways.
162
Two days later, half the participants were asked to
assess the woman’s suitability for a job that obviously required
extroversion; the other half were asked to assess the woman’s
suitability for a job that would presumably demand introversion.
163
Those asked to assess the woman’s suitability for the extroverted job
recalled more examples of the woman’s extroversion, and those asked
to assess her suitability for the introverted job recalled more instances
of her introversion.
164
The hypothesis at issue—the woman’s suitability
for the particular job—biased the way participants searched their
memories for confirming evidence.
165
In addition to seeking and recalling confirming information, people
also tend to give greater weight to information that supports existing
beliefs than to information that runs counter to them;
166
that is to say,
158. Nickerson,
supra
note 127, at 179. All writers on the general theory of
investigation appear to agree that looking for disconfirming evidence is the preferable
way to structure an investigation if the goal is to maximize accuracy.
See
Risinger et
al.,
supra
note 13, at 6. As Sir Frances Bacon wrote in 1620, “it is the peculiar and
perpetual error of the human understanding to be more moved and excited by
affirmatives than negatives, whereas it ought duly to be impartial; nay, in establishing
any true axiom, the negative instance is the most powerful.”
Id
. (quoting FRANCIS
BACON, NOVUM ORGANUM, BOOK I, 109, point 46 (1620),
reprinted in
30 GREAT
BOOKS OF THE WESTERN WORLD 110 (Robert M. Hutchins ed., 1952)).
159
. See id
.
160
. See
Nickerson,
supra
note 127,
at 179.
161. Burke,
supra
note 127, at 9-10.
162. GILOVICH,
supra
note 127, at 36.
163
. Id
.
164
. Id
.
165
. See id
.
166. Nickerson,
supra
note 127, at 178.
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2006:291
Tunnel Vision in Criminal Cases
313
people tend to
interpret
data in ways that support their prior beliefs.
167
Empirical research demonstrates that people are “incapable of
evaluating the strength of evidence independently of their prior
beliefs.”
168
This process of selective information processing has been
studied extensively, and the findings have been replicated in many
contexts.
169
In part, the research shows a general tendency to
“overweight positive confirmatory evidence” and “underweight
negative discomfirmatory evidence.”
170
In other words, “people
generally require less hypothesis-consistent evidence to accept a
hypothesis than hypothesis-inconsistent evidence to reject a
hypothesis.”
171
Social scientists have attributed this phenomenon, at least in part,
to motivational factors.
172
When presented with information that
challenges their beliefs, people are motivated to defend those beliefs in
a way that reinforces their initial viewpoint.
[People] will search internally for material that refutes the
disconfirming evidence, and, once that material is retrieved
from memory, there will be a bias to judge the disconfirming
evidence as weak. In contrast, when presented with
information that supports prior beliefs, people allocate fewer
resources to scrutinizing the information and are more
inclined to accept the information at face value.
173
Indeed, studies show that, in some circumstances, people do not
respond to information at variance with their beliefs by simply ignoring
it, but rather by working hard to examine it critically so as to
undermine it.
174
“The end product of this intense scrutiny is that the
contradictory information is either considered too flawed to be relevant,
or is redefined into a less damaging category.”
175
Moreover, people
tend to use different criteria when they evaluate data or conclusions that
they desire than when they evaluate conclusions they disfavor.
176
For
preferred conclusions, “we ask only that the evidence not force us to
167
. See id
.
168. Burke,
supra
note 127, at 10.
169
. Id
. at 11.
170. Nickerson,
supra
note 127, at 180.
171
. Id
.
172. Burke,
supra
note 127, at 11.
173
. Id
. at 12 (footnotes omitted).
174. GILOVICH,
supra
note 127, at 55-56.
175
. Id
.
176
. Id
. at 83.
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314 WISCONSIN LAW REVIEW
believe otherwise . . . .”
177
For disfavored conclusions, however, “we
ask whether the evidence
compels
such a distasteful conclusion—a
much more difficult standard to achieve.”
178
Thus, “[f]or desired
conclusions . . . it is as if we ask,
Can
I believe this?’ but for
unpalatable conclusions we ask, ‘
Must
I believe this?’”
179
Accordingly, when considering data, people sometimes see
patterns they are looking for even when those patterns are not really
there.
180
On a social level, numerous studies have shown that
descriptions provided in advance (expectations) about a person’s
qualities can affect how others assess that person.
181
For example,
observers who were told in advance that a person had particular
personality characteristics tended to see those qualities in that person,
whether or not those characteristics were objectively present.
182
This
phenomenon can be particularly significant in criminal cases, where an
individual is being judged—by police, prosecutors, defense lawyers,
judges, and jurors—and where the initial working hypothesis presented
to each actor in the system is that the defendant is guilty (despite the
theoretical presumption of innocence).
While biases thus affect the acquisition and interpretation of
information, and thereby impede rational or logical adjustment of
hypotheses or conclusions to reflect new information, natural tendencies
also make people resistant to change even in the face of new evidence
that wholly undermines their initial hypotheses.
183
This phenomenon,
known as
belief perseverance
or
belief persistence
, can render a belief
or opinion very intractable.
184
People are naturally disinclined to
relinquish initial conclusions or beliefs, even when the bases for those
initial beliefs are undermined.
185
Thus, people are more likely to
question information that conflicts with preexisting beliefs, and are
more likely to interpret ambiguous information as supporting rather
than disconfirming their original beliefs.
186
People “can be quite facile
177
. Id
.
178
. Id
. at 84.
179
. Id.
180. Nickerson,
supra
note 127, at 181;
see
GILOVICH,
supra
note 127, at 15-
18.
181. Nickerson,
supra
note 127, at 181.
182
. Id
.
183
. Id
. at 187.
184
. Id
.; Burke,
supra
note 127, at 13; Joel D. Lieberman & Jamie Arndt,
Understanding the Limits of Limiting Instructions: Social Psychological Explanations
for the Failures of Instructions to Disregard Pretrial Publicity and Other Inadmissible
Evidence
, 6 PSYCHOL. PUB. POLY & L. 677, 691 (2000).
185. Nickerson,
supra
note 127, at 187.
186
. Id
.
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2006:291
Tunnel Vision in Criminal Cases
315
at explaining away events that are inconsistent with their established
beliefs.”
187
For example, empirical research has shown that people find it
quite easy to form beliefs that generally explain an individual’s
behavior, and to persevere with those beliefs even after the premise for
the initial belief is shown to be fictitious.
188
In a classic study, subjects
were asked to distinguish between authentic and fake suicide notes.
189
At various points, subjects were given feedback about how they were
performing.
190
The feedback was in fact independent of the choices
they made; researchers randomly informed the participants that they
were performing far above average or far below average.
191
Researchers then debriefed the participants, explicitly revealing to them
that the feedback had been false, predetermined, and independent of
their choices.
192
Yet, when later asked to rate their ability to make such
judgments, those who had received positive feedback rated their ability
much higher than those who had received negative feedback, even
though they had all been told that their feedback was arbitrary.
193
A follow-up experiment found similar perseverance effects for
people who did not perform the tasks themselves, but who observed
others performing the tasks as well as the debriefing sessions.
194
In
other words, observers also maintained their beliefs about the subject’s
ability to perform the assigned task, even after learning that the bases
for their beliefs were false.
195
The belief perseverance phenomenon is apparent in many of the
wrongful conviction cases.
196
For example, even when presented with
DNA evidence proving that semen taken from a sexual assault victim
could not have come from the defendant, prosecutors sometimes persist
in their guilt judgments and resist relief for the defendant.
197
As
187
. Id
.
188
. Id
. at 188.
189
. Id
. at 187-88.
190
. Id
. at 188.
191
. Id
.
192
. Id
.
193
. Id
. at 181; Burke,
supra
note 127, at 13; Lee Ross, Mark R. Lepper &
Michael Hubbard,
Perseverance in Self-Perception and Social Perception: Biased
Attributional Processes in the Debriefing Paradigm
, 32 J. PERSONALITY & SOC.
PSYCHOL. 880, 882 (1975).
194. Nickerson,
supra
note 127, at 188.
195
. See id
.; Burke,
supra
note 127, at 14.
196
. See
Daniel S. Medwed,
The Zeal Deal: Prosecutorial Resistance to Post-
Conviction Claims of Innocence
, 84 B.U. L. REV. 125, 129 (2004).
197
. See id
.
According to Medwed, empirical evidence shows that prosecutors
have consented to DNA tests in less than 50 percent of the cases in which testing later
proved innocence.
Id
. Medwed has expressed alarm at the “qualitative evidence of
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316 WISCONSIN LAW REVIEW
Professor James Liebman has observed, “prosecutors have become . . .
sophisticated about hypothesizing the existence of ‘unindicted co-
ejaculators’ (to borrow Peter Neufeld’s phrase) to explain how the
defendant can still be guilty, though another man’s semen is found on
the rape-murder victim.”
198
Thus, these cognitive biases help explain what went wrong in
many wrongful conviction cases, including the cases of Anderson,
Avery, and the Central Park Jogger defendants. Convinced by an
early—although plainly flawed—eyewitness identification, police and
prosecutors in the Anderson and Avery cases sought evidence that
would confirm guilt, not disconfirm it. They searched for
incriminating evidence against their suspects, but never looked at viable
alternative perpetrators. When confronted with ambiguous or
inherently weak evidence—such as the microscopic hair “matches” and
Avery’s statement that police had accused him of killing a “girl”
police and prosecutors interpreted it as powerfully incriminating.
When confronted with contrary evidence—such as the many alibi
witnesses in Avery and Anderson’s cases, the inconsistencies and
inaccuracies in the confessions in the Central Park Jogger case, and the
perpetrator’s confessions in Anderson’s case and the Central Park
Jogger case—they sought to discredit or minimize that evidence. In
Avery’s case, for example, the prosecution even hypothesized that
Avery committed the rape while his wife and five children waited for
him in the car; that Avery then collected his family and made a mad
dash to the Shopko store in Green Bay, exceeding the speed limit the
entire way; toted his children, including two infants, through the store;
and raced to the checkout line with paint in time to checkout within the
time frame permitted by the evidence. The stubborn assessment of
guilt in these cases persisted on appeal and through postconviction
proceedings, tainting perspectives on the relative strength of the States’
and defendants’ cases and even leading authorities to reject a full
confession by the true perpetrator in Anderson’s case.
199
prosecutorial indifference and, on occasion, hostility to even the most meritorious of
post-conviction innocence claims.”
Id
.
198. James S. Liebman,
The New Death Penalty Debate: What’s DNA Got to
Do with It?
, 33 COLUM. HUM. RTS. L. REV. 527, 543 (2002).
199. While confirmation bias is typically associated with the investigation
stages of cases, the same phenomenon is present throughout the criminal justice system,
and is even encouraged as a matter of policy.
See infra
Part II.C.
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2006:291
Tunnel Vision in Criminal Cases
317
2. HINDSIGHT BIAS AND OUTCOME BIAS
Tunnel vision is reinforced by other cognitive distortions as well,
including hindsight bias, or the “knew-it-all-along effect.
200
Cognitive
research has repeatedly shown that, in hindsight, people tend to think
that an eventual outcome was inevitable, or more likely or predictable,
than originally expected.
201
Hindsight bias essentially operates as a
means through which people project new knowledge—outcomes—into
the past, without any awareness that the perception of the past has been
tainted by the subsequent information.
202
Hindsight bias is a product of the fact that memory is a dynamic
process of reconstruction.
203
Memories are not drawn from our brains
fully formed, but are assembled from little bits and pieces of
information as we recall an event.
204
Those little pieces of information
about an event or situation are constantly being updated and replaced in
our brains by new information.
205
The updated information is then used
each time we reconstruct a relevant memory, making the ultimate
conclusion appear preordained, or more likely than we could have
known at the outset.
206
Understood another way, the process is one in
which an individual reanalyzes an event so that the early stages of the
process connect causally to the end.
207
“During this