Last week, the NJ Supreme court under chief justice Stuart J. Rabner issued a unanimous 134 page decision mandating revision of the way eyewitness testimony is handled in that state (see NY Times article). Basically, the court acknowledged the legitimacy of 2 or 3 decades of research by psychologists that shows memory is not only fallible but malleable. Malleability is particularly a problem in police line-ups, in which officers who know which candidate is the suspect can inadvertently provide cues to the witness. Among the data considered were facts gathered by the Innocence Project (see executive summary) such as that of 230 people exonerated by DNA testing, 75% had been convicted based on eyewitness identification. The court of course did not throw out eyewitness testimony, it simply allowed greater latitude in the courtroom for challenging the accuracy of eyewitness ID.

Even without the benefit of scientific papers, our flawed memory is obvious to all of us who ever failed to recognize someone in the grocery store who we had met at a party the weekend before. We humans are amazingly adept at recognizing people we know well. You walk into a restaurant, glance into the back and instantly say, “Hey, look, Jenny and Ryan are here!” However, we’re not very good at recognizing a stranger we briefly encountered a few days (or even hours) ago. Especially when the encounter was stressful, and even more so when the stranger was of another race (I guess “they” all do look alike to “us”).

So why is this blogworthy? First, it’s rare to see a court ruling that matches both common sense and science. What gets my goat, though, is the conservatives’ knee-jerk response, epitomized by a reader comment on the Times article: “Jest [sic] another step in the ongoing process of uplifting the criminal and trodding [sic] on the victim.”

Yes, conservatives look at this as just another way that soft-hearted liberal wackos coddle criminals. For the life of me, I can’t understand why it is that conservatives view any attempt at keeping innocent people out of jail as being “soft on crime.” Wouldn’t you think that the really hard-line law and order types would be the most interested in keeping the innocent out of jail, rather than the least? Why? Because for every innocent person convicted of a crime there’s an actual criminal running around free and laughing with glee that some poor schmuck is going to do his time. What, exactly, is so law and order about letting people get away with crime? Yet that’s what conservatives do when they attack every rule that makes it harder for the wrong people to be convicted. I think every time we hear the conservatives squawk about police and prosecutors having to behave fairly and scientifically, we accuse them of being soft on crime.