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.
No comments:
Post a Comment