The lawyer alone is obdurate. The lawyer and the judge and the juryman are sure that they do not need the experimental psychologist. They do not wish to see that in this field preeminently applied experimental psychology has made strong strides.... They go on thinking that their legal instinct and their common sense supplies them with all that is needed and somewhat more.... The Court would rather listen for whole days to the "science" of the handwriting experts than allow a witness to be examined with regard to his memory and his power of perception, his attention and his association, his volition and his suggestibility, with methods which are in accord with the exact work of experimental psychology.
Hugo Munsterberg, On the Witness Stand 10, 46 (1908)
The legal profession's reluctance to acknowledge the findings of social scientists, while accepting other "sciences" on little other than blind faith has contributed to the phenomena of erroneous convictions. It is undisputed that people are convicted and sentenced, sometimes to death, (1) for crimes they did not commit. (2) The advent of deoxyribonucleic (DNA) testing and rapid improvements in DNA technology have resulted in the exoneration of over 163 people in the United States. (3) As forensic DNA technology continues to evolve and improve, other forensic sciences, long accepted by courts as scientific proof of identification in criminal cases, have come under scrutiny. Individuals convicted on the basis of expert forensic testimony on comparisons of bitemarks, (4) hairs, voiceprints, earprints (5) and fingerprints, (6) were freed after post-conviction DNA tests established their innocence and proved the "scientific" evidence wrong. In one example, prosecutors stated that hairs found at a rape scene were "indistinguishable" from Jimmy Ray Bromgard's. With faulty statistics to bolster this bold statement, Bromgard, at eighteen, was sentenced to forty years in prison. Fifteen years later he was exonerated when DNA evidence proved he did not commit the rape. (7) In another case, the prosecutor's use of voiceprint analysis to match David Pope's voice with threatening messages left on the rape victim's answering machine following her attack sealed his conviction. Post-conviction DNA tests freed Pope, but only after he spent fifteen years in prison. (8)
At the same time, studies of DNA exonerations and other erroneous convictions have validated the research of social scientists, particularly in the areas of mistaken eyewitness identification, false confessions and suggestibility of children. Courts traditionally tended to exclude scientific evidence from expert witnesses in these disciplines, primarily on the basis that the testimony addressed matters within the common understanding of jurors, (9) was confusing, (10) or that it invaded the province of the jury to make credibility determinations. (11) However, with the increased awareness of the role that mistaken identification, false confessions and suggestive interviewing of children play in convicting the innocent, a new trend is developing regarding the admissibility of expert testimony. Courts have more recently acknowledged that the research of social scientists in these areas contains findings that are counter-intuitive and therefore expert testimony can assist the trier of fact. (12)
Section II of this essay will provide an introduction (the literature is far too extensive to attempt a comprehensive treatment in this article) to the findings of social scientists in the areas of: a) eyewitness identification; b) false confessions; and c) suggestibility of children. In each section, it will also discuss efforts to implement reforms based upon the research of social scientists. Any meaningful reform must take place on two fronts. First, it is essential that "obdurate" lawyers and judges address their preconceptions about the social sciences and educate themselves about the findings of applied psychology. …