Brett Kavanaugh, Steven Avery, and their accusers

In the mid-1980s, Steven Avery was charged with several crimes after Penny Beerntsen was found raped and beaten.  Avery had more than a dozen alibi witnesses and a store receipt showing he was nowhere near the scene of the crime, yet he was convicted.  Why?  The accuser pointed the finger at him and said she was sure it was him.  “I remember his face very clearly. It’s like a photograph in my memory,” she testified.  (See chapter one, here.)

After eighteen years in the slammer, DNA evidence proved Avery’s innocence.  In the meantime, the real rapist remained free to rape other women.  But the point is this: an accuser’s confidence level in his or her identification is not strongly correlated with the accuracy of that identification.  (See p. 105-108, here.)  In other words, most of us are overconfident in our abilities of recall, we easily fool ourselves, and, as a result, we fool others.

The Avery-Beerntsen disaster came to mind while I was watching the hearings on Supreme Court nominee Brett Kavanaugh.   Unlike Avery’s accuser, Kavanaugh’s accuser was not injured or left for dead – in fact, clothing was never even removed.  Rather, she claims to have fought off two boys at a high-school party – one of them allegedly Kavanaugh.  But, according to this story, her psychologist’s notes indicate that, at another point, she reported it was four boys.  Further, as she makes the allegation now, she doesn’t know the year it happened, how she arrived at the party, or how she got home.  She doesn’t even know where the party was held.  Yet, despite what is, at best, a very spotty recollection, the image of Kavanaugh’s face is “seared into my memory,” she testified.  (To me, this was not persuasive, but rather eerily similar to Beerntsen’s allegation that Avery's face was “like a photograph in my memory.”)

This slow-moving train wreck involving Kavanaugh is rich with issues, including how Democrats have mocked the presumption of innocence, claimed that Kavanaugh must prove his innocence, and also claimed that “the victim” or “the survivor” must not only be heard but also believed just because an allegation has been made – nothing like putting the cart before the horse.  This rhetoric from our political leaders and lawmakers is scary stuff, to be sure.  It is reminiscent, quite literally, of the Salem witch trials.  (That’s a post, or possibly a book, for another day.) 

But even if, for the sake of argument, Kavanaugh’s accuser truly believes this event happened to her, here’s the bigger point: When someone claims to be “100 percent sure” of something, be leery.  There are few things in life of which we can be 100 percent certain.  And people who claim otherwise – no matter how well-meaning or confident they appear to be – are dangerous and should be viewed with great skepticism.  And that’s even with the assumption that they’re not lying – an assumption we should not be too quick to make.  

P.S., How stupid are the Republicans?  They appoint a prosecutor to question the complaining witness / accuser, and, not surprisingly, the prosecutor doesn’t ask a single question about the alleged incident itself, or even how the accuser could be so sure it was Kavanaugh.  Tip to Republicans: Next time you want something done right, call a criminal defense lawyer.