Behavioral Science & the Law: Updating our Outmoded Legal System with Adam Benforado

The latest scientific research suggests that the great edifice of law is grounded on incorrect and damaging notions about human cognition that have gone uncontested for centuries.”

4 September, 2020

Katie Wolf

Katie Wolf


Adam Benforado is a lawyer, writer, and professor at the Thomas R Kline School of Law at Drexel University. He made a splash with his New York Times best-selling book, “Unfair: the New Science of Criminal Injustice.” The book explores his extensive research into cognitive psychology and how it relates to our legal system. Adam’s research continues to show that our system of law and punishment neither meets our needs nor aligns with our purported values. But beyond that, Adam is proposing bold, fascinating and controversial ideas for how our justice system could be radically improved.

Check out Adam’s best-selling book on Amazon, and learn more about his ideas in this episode of the Filevine Fireside.


How to Listen

Join us as we sit down with the country’s best attorneys to talk about their processes and practices, as well as their outlook on the always-changing legal landscape.

Full Transcript

Katie Wolf: I'm Katie Wolf. And this is the Filevine Fireside. Today, prepare yourself to hear a radically new vision for what our legal system could look like. Adam Benforado writes, the latest scientific research suggests that the great edifice of law is grounded on incorrect and damaging notions about human cognition that have gone uncontested for centuries. Well, Adam is beginning to contest those notions. Adam Benforado is a lawyer writer and professor at the Thomas R. Kline School of Law at Drexel University. He made a splash with his New York Times bestselling book, Unfair: The New Science of Criminal Injustice. The book explores his extensive research into cognitive psychology and how it relates to our legal system. Adam's research continues to show that our system of law and punishment neither meets our needs nor aligns with our purported values. But beyond that, Adam is proposing bold, fascinating, and controversial ideas for how our justice system could be radically improved. Adam, thank you so much for taking the time to talk with us today. Adam Benforado: It's my pleasure. Katie Wolf: How did you get into this work where you're connecting cognitive psychology and the legal system? Adam Benforado: It really, I think happened for me at law school. I think I went to law school very much with, I think, a social justice mindset. I think I imagined myself in a courtroom fighting on behalf of the voiceless and downtrodden much like the television heroes that I grew up with. And I think when I got to law school, I was actually rather disillusioned. And I think a lot of that came from a frustration concerning what I was being taught. I was being drilled on legal rules and doctrine that didn't seem to me to be often what was deciding outcomes. It seemed to me oftentimes that it made a lot more difference who the judge was, or what the particular makeup of the jury was, or whether the police officer who started this whole thing in motion was carrying racial bias or not. And I think some of my professors seemed very happy to just continue with the traditional story that it was all about doctrine and deducing what the law was, this old school approach to legal education and to thinking about law. And I started working though with this guy, Jon Hanson, who runs this project on Law and Mind Sciences at Harvard Law School. And I think that this was my aha moment, was finding someone who shared my skepticism. Who said, you know what? Instead of assuming all of these things assume that people enter contracts as rational actors. Assume the criminals weigh the costs and benefits before deciding whether to commit crimes. Let's actually look what psychologists and neuroscientists and even people in business, right? Marketing experts have learned about human behavior. And let's actually look at and consider whether we might be wrong in a whole range of spheres. And so that really suddenly made law school exciting and interesting. I started doing a lot of writing and decided that this was what I wanted to do was to try to bring incorrect assumptions about human behavior into law and rebuild the system with truth. Katie Wolf: So, so much of the way we think about law and legal education is about logic and rationality and that's what you have to prove your competence in, in order to be a good lawyer. But you're saying, look at the system not in terms of a logic puzzle, but in terms of empiricism, how do people actually work? Adam Benforado: Yeah. And I think also understanding that human beings are not robots and that includes judges, that includes police officers and understanding that there is a lot that actually is fairly predictable, but it is not the human being passed down from neoclassical economics, it's all knowing individual who has perfect access to his preferences and can just exert his will after weighing the costs and benefits to make an optimal decision. That is not a real human being and so I think studying human behavior ought to be a basis. And certainly as a law professor, I bring it in with my first year students in their first semester when I teach criminal law. We are talking about how judges, how jurors, how police officers, how crime scene investigators make decisions and where things can go wrong. Katie Wolf: Your book is subtitled, The New Science of Criminal Injustice. I'm sure that our listeners are all aware of different biases and different problems within the criminal justice system. Can you share some of the areas that your research brought to light and perhaps things that surprised you when you learned them? Adam Benforado: Yeah. I think there are many areas and some of these ought to be familiar now to readers and listeners. I think things like problems with eyewitness identifications. When I was a law clerk probably almost 15 years ago, I actually got an eyewitness identification case. And at that time I think people just assume different eyewitness pick someone out of a lineup. Well, that's a done deal. That's the right person. And certainly if they were confident, that's a done deal. Now we have lots of evidence to suggest that there can be biases introduced by the person actually running that lineup simply by causing a person to take their time simply by the order in which images are shown, whether they show in simultaneous or sequential, all of these little things that don't seem like they should matter at all come in. We also know now that people can actually confess to crimes even very serious crimes, that they did not commit. We now understand that that is not an unpredictable outcome. That is absolutely a predictable outcome. When we use certain interrogation tools that are designed not to figure out the truth, but rather to gain a confession. And we know even that when it comes to jury decision-making, the individuals come in with their own conceptions of what particular legal rules say, they have ideas about what rape is, what insanity looks like. And a judge can spend all this time offering up a jury instruction about this is the definition of rape in our jurisdiction, or this is the definition of insanity. And jurors may completely disregard that and simply go with what their gut instinct tells them what that lay conception of that term is. And so for me, I think I had many staggering moments but I think one of the real takeaways is just that well-intentioned people can produce terrible injustice. I think growing up, certainly, I wasn't in a legal family. My dad is a scientist, my mom's an artist. I had faith that mostly we had justice, occasionally we had injustice and that injustice was the result of bad apples. Occasionally, we had a racist police officer, occasionally we had a corrupt judge and I think for me, and this is research I've been doing for years and years, when you look at all of the cases of injustice, and there are so many that have been revealed as a result in particular of DNA exonerations. But if you look across them, so many of them involved people who believed that they were doing the right thing, who had every incentive to get things right. And I'll tell you just one story which I mentioned the book, and that is this case of John Jerome White, which involved just horrible facts. A woman was raped, and she was brought in to do a lineup, brought down to the local jail. And she looked at the five men in the lineup, carefully studied each of them and said, yeah, it's number three right there. And that was John Jerome White. He ended up spending something like two decades in prison. Then, right, they finally tested the DNA evidence and it turned out he was innocent. Now that was not what took my breath away. What took my breath away is we have a picture of that original lineup, which I include in the book. And the real perpetrator was in that five person lineup. He turned out as a total coincidence, he just been locked up in the jail on an unrelated charge. They brought him in as a filler, basically just, you look kind of like the guy, we think that it stand here and here is a victim of the most intimate of crimes who looks at her perpetrator and actually picks out a guy, two people over. And I think that just as a sign of how vulnerable we are in the legal system, right? Like here's someone who has every incentive to get it right who had interaction with a person where she really carefully looked at him and yet made this error and it took us two decades. Now, some people look at that and say, well, eventually you got it right, but this man's life, he'd lost two decades and you know what? When you walk up the wrong person that means that that dangerous individual, that rapist is out on the street. And so I think this is why taking an approach that says, we have to understand how real humans behave. We have to take all of the cognitive biases seriously, that ought to bring in people from every walk of life, from every political persuasion, we all ought to be on that reform team. Katie Wolf: Also, your research has looked at how judges and juries they make decisions based on things that are not supposed to matter on appearance and demeanor and that's obviously that's race and ethnicity and gender class markers, but also little things, gestures, ways of speaking that we consider to be tells but really aren't, just how people speak. And I think this gets to one of your ideas that I found very startling and also very interesting the case for a totally virtual court. Can you explain what that would look like? Adam Benforado: Yeah. It's very interesting now obviously in the time of COVID when there actually are so many court indirections which are being moved into the virtual space for completely other reasons. When I was advocating for this and writing this book, the impetus for that is when we look at the evidence of trying to train people to control biases, to engage in de biasing, a lot of the findings are depressing. It's very hard even when people are aware, we run experiments where we tell people, okay, here's a bias that many people suffer from and people think that they're not going to demonstrate that bias. And then they go ahead and demonstrate that bias. And so I think the best approach in some ways going forward is to create situations where biases can't even manifest, right? As opposed to let's train people about the problems with biases, the fact that they carry them and give them strategies to try to clamp those down. It's far better to actually try to avoid whatever that bias is by not allowing it to ever come into operation. And so if we know, for example, that people carry certain end-end implicit racial biases or often make decisions based on stereotypes or a negative effect, why not actually blind people to race. If we know that human beings are very bad, lie detectors and focus on the wrong things, which we know what do they focus on? They focus on gaze aversion, not looking someone in the eye. They look at things like jittery limbs. Both of those are not good tells at all. Many people who are lying will look you straight in the eye with steady hands. And many people like me get nervous just going through airport security. And I think that a better approach than trying to train people not to focus on these elements that literally they've been focusing on their entire lives. It's better just to not have people see those jittery limbs or verdad gaze. And so this really led me to the idea oof trying to create a space where we could actually be better scientists, where we could actually remove things that we know are biasing from the equation. And that got me interested in the potential for virtual spaces which have proven to be so valuable in this moment of pandemic. And I think there is that potential to try to focus things onto what actually matters and what's meant to matter, which are the facts and the law, not whether the witness is particularly attractive. We know more attractive witnesses are more likely to be believed, not on the race of the defendant, not on the fact that a particular lawyer has a slow Southern drawl which we associate with not being very intelligent. None of those things should matter. Katie Wolf: Do you find lawyers are intrigued and onboard with what you're saying or is that a hard audience for these- Adam Benforado: I would say that defense attorneys... Yeah. I've gone around the country before COVID fairly regularly talking to groups of judges and defense attorneys and prosecutors. I found defense attorneys were very open to what I would say. In fact, that would be where it would be a whole bunch of people saying, oh, I'm working on this case and that brought up and I would find judges would be often very receptive and would say, yeah, when you were talking about problems with plea bargains, I share those concerns. I'm wondering if you have ideas about how... So judges, defense attorneys pretty open to it. Forensic scientists also, I found very open to problems that I talked to them about like confirmation bias when you're working hand in hand with the police and you know that the person whose fingerprint you're looking at or blood evidence or whatever it is, is an individual who has already confessed or who the police strongly believe did it, that can bias things. I think because forensic scientists are scientists, I think they are more receptive to like being like, yeah, actually we're not using best practices. And we can really reform crime labs around the country to reduce our errors. The people who I've gotten the most pushback from honestly are prosecutors. And I think that in part has come from a little bit of a feeling of being under attack, of being vilified. These are many people who went into the job because they wanted to give back. It's government services, it's public service. These are people who wanted to protect the public. And I think almost uniformly have really good intentions and who are working often for less pay, more stressful situations. And so to have someone like me, an academic come in and say, hey, like, let me talk to you about prosecutorial misconduct or let me talk to you about, how innocent people can be sentenced for crimes that they didn't commit. Or let me tell you about how we've been sending people away for too many years with little benefit. Adam Benforado: That's really personally can feel like an attack. And I understand that, I think for me, I often try to explain that I think we're all on the same team here. I think no prosecutor wants to send innocent people away. I certainly don't want dangerous individuals on the street. And I don't think that's all prosecutors, certainly here in Philadelphia, for example, I think we have a very reform minded prosecutor who is very focused on things I talk about in the book like conviction integrity units, like rethinking mass incarceration. And so I think that's changing in the United States, but certainly certain prosecutor's offices I've come to have been very resistant to change in part because I think the book at least suggests that there are some things that we've been doing for a long time which have been very harmful. And when you have been actively involved in some of those things, even when I say, "Hey, it's not your fault. It's the system we built. You were just doing your job." That's still feels like a personal attack. And I can understand that. Katie Wolf: Yeah. But what interests me about your ideas is that it's not necessarily about curing, fixing the hearts of everyone involved, fixing them from their evil behavior of racism and prejudice but instead doing a system change. So whatever's in their heart, isn't really relevant. Adam Benforado: Yeah. I think that's a really nice way of putting it, which is another metaphor might be like we should stop focusing on bad apples, right? Fishing bad apples out of the barrel and focus more on our orchards, right? You can say, well, we still care about the same thing. We want to get rid of that bad taste when someone comes to our apple standard and gets an apple that doesn't taste good. It's just how do you get rid of that? I personally think it's a systematic approach, and it's an evidence-based approach it's to say, right? These other fields have learned that you don't go by gut instinct. You don't go by your assumptions. It used to be like a medicine you go in and your doctor would make some call based on anecdote and his own gut. Now we have evidence-based medicine, and there's an assumption that we are constantly trying to make it better. We realize we're going to make mistakes. We're going to have a medication that we learned doesn't work and we pull it from the market and we change. And we try to find a better medicine. Adam Benforado: And there's something in law where we think that the principles are somehow different, that the law from 200 years ago auto work just as well today. Whereas we completely accept that the medical practices from two years ago could use an update. Same thing in anything, technology, you don't want the state of transportation technology from 200 years ago, we want to know the latest way. And I think that that mindset of, hey, let's collect real-world data. Let's look at whether our mechanisms actually accomplish what we think they accomplish. Let's continue to run real-world experiments, collect new data, and let's use the wonderful situation we have in the United States, where we have all of these little incubators, we can innovate, try new things, see if they work, and then if it does work, transfer it to other jurisdictions. We can do that. All it takes is that evidence-based approach which says, I actually care how real humans behave. And I've committed to a system that actually does what it says it does. Katie Wolf: Adam, I have so many questions for you about just so many... It just sparks so many ideas and big questions. And I love that you're doing this work, but I'm just going to have to tell everyone you've got to read this book, Unfair: The New Science of Criminal Injustice. And as the last question I want to ask you about the next area that you're writing about right now, which are The Rights of Children. Adam Benforado: Yeah. I think it actually flows directly out of our conversation. I think in thinking about how to reform criminal justice, obviously in the book, I talk a lot about smaller steps we can make today, changing our interrogation procedures, changing how we do eye witness identifications, changing what we tell jurors to pay attention to. But as we think about these big base changes, I think a lot of the real bang for the buck can come from changing children's situations. I think so many problems, social problems, not just crime, but poverty, health problems, are so much more effectively and efficiently treated when you focus on targeting them in children. And I could give you a million statistics about each dollar you spend on early education, each dollar you spend on early preventative health care comes back so many times later on. And yet our system currently is so focused on not only adults, but a very reactive system that waits for problems to emerge. And so I really wanted to make an argument that we ought to be thinking about children and building our systems to protect and ensure the welfare of children not simply because that is the moral thing to do, but because it is the best way to build the world in which we all want to live. And so I think in some ways, this is a radical vision because I'm not simply saying we should make children equal, it's I think we should prioritize children's rights. And what else makes it, I think somewhat radical vision is that I think we should do this not simply because it is the right thing to do for children but because it's the right thing to do for all of us. I think you could be completely indifferent to the welfare of children, and prioritizing children's welfare is the way to get what you want selfishly. And so in this book, I really look at everything from early childhood, all the way up through adolescents. And I think this is a topic that I've certainly been, I teach a course called The Tights of Children at the law school. It's something I've been thinking and doing research in for quite a while. And I think it's a book that's filled with a lot of, I think, shocking things that after you think about them my hope is you start to actually think, wow, there's a real logic to that. And so I argue that young people should be allowed to vote. I argue about a whole range of things that I think intuitively people at first are like, ah, I don't think that's right. And then hopefully after reading a few pages, you start to think, ah, I want to have a debate with my son about this and see what he thinks. Katie Wolf: Well, I'm so excited for that book coming out. I hope you've been able to find time amid all of your work and caring for your own children. Adam Benforado: That's the hardest part. That's the hardest part. Katie Wolf: Yeah. Thank you so much for taking the time to talk with us, Adam, and for bringing these ideas to our attention. Adam Benforado: It was my pleasure. Katie Wolf: This has been the Filevine Fireside. I'm Katie Wolf. Join us next time.