5 Staples of the Legal System That Statistics Say Don't Work

Well, Actually ...

Just about anything, really.

The simultaneous lineup sucks, mainly because it's common for witnesses to just point out whoever looks the closest to what they remember, whether the actual perp is up there or not. The question the police want answered is "Do you see the guy who mugged you up there?" but the witness always hears it as "Tell us which of those six guys looks the most like the dude who mugged you. And it has to be one of them, or else you've wasted everyone's time."

And it's an even bigger problem when the officer standing there with the witness is the one who's working the case -- the officer is going to, consciously or unconsciously, subtly do everything he or she can to make that little old lady pick the guy the cops think did it (scientific experiments always have to control for this, otherwise the results are considered invalid).

There is an easy fix -- it's called a sequential lineup. The witness sees photos of people one at a time instead of all at once. The trick is not to tell the witnesses how many photos there are in total, and to only allow them to go through the pictures once. That's all there is to it -- it prevents witnesses from simply picking someone out because they're the best option in the bunch, it encourages them to keep looking until they see one who actually fits their memory, and it eliminates the chance for an officer to say things like "Now, did you look closely at No. 2? Look at him again, with his squinty, purse-stealing eyes ..."

But despite its unquestionable superiority over the old-fashioned lineup, a nationwide survey of U.S. police departments revealed that it's glaringly absent from nearly every precinct. If their objection is that you can't ask a photograph to step forward or turn around or say things like "Give me the keys, you fucking cocksucker," there's also the option of just using more people in the lineup -- just a few more choices make the rate of correct identification soar -- but again, you want the witness to see them one at a time.

So why do they stick to the old way? Well, a cynical person would say that some departments like knowing that they can subtly steer a witness to finger the "right" guy. But it could also be that they grew up watching the same cop movies we did and think the other way is cooler.

Well, Actually ...

Imagine you're sitting on the jury of a murder trial where someone's life is in your hands, and the judge reads the following instructions to you out loud:

"In regard to the trier of fact, reasonable doubt is not a mere possible doubt, a speculative, imaginary, or forced doubt. If, after carefully considering, comparing, and weighing all the evidence, there is not an abiding conviction of guilt, or, if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable."

Even for somebody who watches a lot of court dramas, hearing that out loud would sound like a word casserole. But that dense mass of double negatives and disjointed phrasing is the actual instructions intended to be read to a jury. As a result, juries frequently have no idea what the fuck they're supposed to be doing -- in one study, half of jury members didn't understand that the defendant doesn't need to prove him- or herself innocent, and 86 percent of criminal jurors don't know what constitutes proof of guilt. Of jurors asked to participate in a test on the things they should absolutely know after they've heard their instructions, most of them score about 40 percent.

Now, we don't want to alarm you, or imply that if you go to court your fate will be decided by 12 confused people who just want to get the hell out of there before the judge reads more cryptic riddles to them in Latin. We're just saying that instances of baffled jurors making terrible decisions are shockingly well-documented.

OK, so if these people are so befuddled by the process, why don't they just ask somebody?

The answer: They're probably not allowed to. It's up to the individual courts to decide if they'll allow jurors to talk and, spoiler alert, most of them don't (and in five U.S. states, it's absolutely prohibited for the jury to ask questions during any point in the trial). They are apparently afraid that the jurors would be constantly blurting embarrassing bullshit like Ralph from The Simpsons ("Excuse me, Mister Judge, I think I sharted again!"), but there are instances of jurors asking really good questions. For instance, in a lawsuit over a crippling hand injury, a juror had to ask whether the plaintiff was right- or left-handed. Everyone else involved in the trial knew, but no one thought of mentioning it to the jury.

The only legitimate reason not to allow juries to ask questions is because it makes trials take longer. Trials that involve jury questions are an average of half an hour longer, or as everyone else may know it, the "order" half of a Law & Order episode.

Wouldn't avoiding jury confusion be a good use of that time? Hell, until recently, most courts wouldn't even let the jury take notes. All of the things they let you do in school so you'd be ready for the exam aren't allowed when some guy's life is on the line.

It's not pretty, but how else can you get results? Nobody knows the inside of a criminal operation like another criminal, and you know they're telling the truth because its their own ass on the line.

Well, Actually ...

They have every motivation to lie, and nothing to lose by doing it.

For instance, at some point Zacke ran out of things to snitch about, but still hadn't shaved off all the years of his sentence. So, he got creative and just started making shit up. He helped lock away a man named Wilton Dedge for burglary and sexual battery by claiming that Dedge confessed everything to him on the bus one day. Dedge spent 22 years in prison based on Zacke's witness testimony. That's how long it took for DNA evidence to exonerate Dedge, which meant he got an apologetic "Sorry we locked you up for 22 years in hell" slap on the back from the court and a ride home. But Zacke still got decades taken off his sentence for all his help.

This isn't a one-off occurrence, either. Unreliable snitches are a gold mine for prosecutors. Of all the people on death row who were finally proven innocent, about 46 percent were there in the first place because of these incentivized jailhouse informers who are rewarded with reduced sentences or special treatment and sometimes even money. Well, shit, if we can't trust the most amoral, duplicitous members of society, then who can we trust?

Texas passed a law last year that makes evidence obtained from prisoners in exchange for leniency, specifically in murder cases, inadmissible. Oh, and the only way "He totally told me he did it!" testimony from cellmates can be used is if it's recorded (so that, you know, we have some proof that the conversation actually occurred). But of course we can't expect the rest of the world to be as advanced and progressive as Texas.

In nearly every procedural show, there's at least one moment where the rough and tumble cop watches a suspect squirm under the hot lights of an interrogation and just knows he's lying. It makes sense that cops would be good at sniffing out dishonesty. After years of listening to liars, they can read it on someone's face, like Tim Roth in that show that got canceled.

If solving crimes is all about finding out the truth, what could be better than a cop who can spot a lie at a glance?

Well, Actually ...

Nobody can do that. They just think they can.

See, police officers have to go through rigorous training to make sure they pick up on the common tells people exhibit when they lie, but all of that training is actually worse for them than no training at all. The problem is that the training focuses on signs of nervousness, like twitching and discomfort, when twitching and discomfort are also known side effects of an innocent person sitting in an interrogation room. So as you can imagine, there are a lot of false positives. There are also countless other factors that determine how much someone squirms -- like their cultural background, what kind of lie they're telling, and whether the suspect is generally a noddy, hand-and-feet-movey kind of person (how many of you reading this are fidgeting at a desk right now, tapping your foot or bouncing your knee?)

A grizzled old police officer might say, "Yeah, that training is BS! I can spot a lie thanks to my 20 years on the streets."

Nope, sorry. They did a study on officers who'd been on the force for anywhere between three and 26 years and found that, incredibly, the longer someone's been an officer, the worse he or she is at telling when someone's lying.

It comes down to overconfidence. The long-time officers believed they could sniff out lies over 70 percent of the time when in fact their success rate was just south of 50 percent, much worse than the cops who had only been on the force for three or four years. In fact, in another study, they pitted police investigators against regular college students and had them each try to sniff out lies from inmates. The college kids did better.

That's because the only real way to tell if someone is lying is if their story doesn't add up. That's why believing that they can read a liar's face makes things worse -- instead of thinking about the questions they ask and the answers they get, officers focus on every single tiny movement their suspect makes, which ultimately is useless information. So if a police officer asks you a question and follows it up with "And don't lie to me because I'll be able to tell," there's a good chance you can tell him anything you like, as long as you don't twitch when you do it.

That question is from a district judge exam in New York state, and perhaps unsurprisingly, no one has failed it since 1999. In fact, it's more surprising that someone actually did fail it, because you only need 70 percent correct to pass, and you can retake it as many times as you like. And these small town courts aren't just relegated to the rural areas of New York -- they are everywhere. The scariest part is that three-quarters of the judges appointed to these courts have no legal training whatsoever, and some of them never even finished high school.

But surely these judges only deal with cases involving crop tampering and cattle disputes -- there's no way the government would let them hand down prison sentences, right? Wrong! They handle around 300,000 criminal cases a year, plus millions of minor offenses like misdemeanors and traffic violations, and dole out a heap of jail time. Who's watching over them to make sure they're following procedure? Probably nobody! There is almost no oversight -- in New York state, for instance, the branch responsible for keeping tabs on 1,250 district judges is staffed by only 29 people. See, suddenly all of those "crazy judge hands out wacky sentence" news stories make sense.

Only sometimes it's not so funny. Take the case of Stanley Yusko, a judge in the Catskills who frequently and illegally imprisoned people for months before trial. Or Elaine Rider, who got so confused when a lawyer argued that evidence had been seized illegally that she asked the prosecutor to decide the case for her. Or John Cox, the quarry worker turned judge who had a habit of jailing anyone unable to pay a fine (he only got away with this for 22 years before someone told him to stop, at which point he claimed that it was the first time anyone had told him not to). Want us to keep going? OK, how about Donald Roberts, the former state trooper turned judge who denied a woman a protection order against her husband on the basis that "every woman needs a good pounding now and then."

Again, we don't want to overstate the problem. We're just saying that when the Scarecrow wantonly sentenced people to death by way of the frozen rivers of Gotham in The Dark Knight Rises, even he was better suited to be a judge than most of these folks.

For more things that just aren't working well, check out The 5 Most Popular Safety Laws (That Don't Work) and 5 Common Crime Fighting Tactics (Statistics Say Don't Work.

If you're pressed for time and just looking for a quick fix, then check out 4 Foods Renamed So That You Might Actually Eat Them.

And stop by LinkSTORM to discover why you shouldn't moon a judge.

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