The Invisible Gorilla: And Other Ways Our Intuitions Deceive Us (18 page)

At one point the rapist tried to kiss Thompson. She told him that she would “feel so much more at ease” if he would just put his knife outside the apartment. Surprisingly, he did. Then she asked to get a drink in the kitchen. Once there, she saw that the back door was open and realized that the rapist must have entered the apartment through it. She ran outside and found a neighbor—a professor at Elon who recognized her from campus—who let her in. She fainted and was taken to the hospital.

Later that same night, less than a mile away, another rape took place. The attacker appeared in the victim’s bedroom, fondled her breasts, and briefly left before returning to rape her. The victim tried
to telephone for help, but the line was cut (as it had been at Thompson’s home). The rapist spent as much as thirty minutes in the apartment and left by the front door. The police quickly inferred that the same man committed both crimes.

Just hours after her ordeal, Jennifer Thompson described her attacker to a police composite artist. Detective Mike Gauldin, who investigated the case, said later that he “had great confidence in her ability to identify her assailant.” According to the bulletin the police issued, the suspect was a “black male with a light complexion, around six feet tall, 170 to 175 pounds … with short hair and a pencil-type mustache.” After publicizing the sketch, Gauldin received a tip that Ronald Cotton, who worked at a nearby seafood restaurant, resembled the person in the picture. Thompson readily picked a photograph of Cotton out of an array that included five other potential suspects, all black males, mentioned by tipsters. Only then did the police tell her that Cotton had a prior conviction for attempted rape. He’d also been convicted for breaking and entering and was said to have touched some of the waitresses at his workplace and made inappropriate comments to them. Thompson later identified Cotton in a “live” lineup, in which the suspects also spoke words she remembered her attacker saying. Ronald Cotton was arrested and imprisoned while he awaited trial.

During the trial, which took place in January 1985, no definitive physical evidence was offered, nor was it mentioned that the victim of the other rape that night could not identify Cotton (and thus that he was not being tried for that crime). The case was decided on the contrast between Cotton’s shaky and inconsistent alibis for the night of the rape, and Thompson’s confident, consistent identification of Cotton, from the photo array, to the lineup, to the courtroom. Thompson proved to be a compelling witness: She told the jury that during the rape, she had the presence of mind to focus her efforts on memorizing “every single detail on the rapist’s face” in order to make sure he was caught later. “Jennifer, are you absolutely sure that Ronald Junior Cotton is the man?” asked the prosecutor. “Yes,” she replied. The jury convicted Cotton after four hours of deliberation. He was sentenced to life plus fifty years in prison.

Two years later, Ronald Cotton received a new trial after another prisoner named Bobby Poole told other inmates that
he
, not Cotton, was the one who had raped Jennifer Thompson. Cotton and Poole looked similar, so much so that some prison workers mistook them for each other. Cotton tricked Poole into posing side by side with him for a photograph, which he sent to his lawyer with a letter describing his claim that Poole was the real rapist. But in court during Cotton’s second trial, Thompson looked at Bobby Poole and said, “I have never seen him in my life. I have no idea who he is.” A more categorical—and confident—statement is hard to imagine. The jury was convinced, and Cotton went back to prison with an even harsher sentence, this time having been convicted of both rapes.

As the years passed, Thompson gradually managed to put the entire matter behind her. In 1995, ten years after the first trial, she was contacted again by Mike Gauldin and the district attorney, who told her that lawyers for Cotton had requested DNA testing to determine whether he might have been wrongly convicted. DNA recovered from her body at the hospital would be compared with fresh samples provided by Ronald Cotton, Bobby Poole, and Thompson herself. She cooperated enthusiastically, convinced that the test “would allow me to move on once and for all.” But the test proved that Thompson, despite her inner and outward confidence in her memory, had been wrong all along. Cotton had been right in protesting his innocence, as had the jailhouse braggart Poole in boasting of his own guilt—his DNA matched that left by the rapist.

Thompson accepted Cotton’s innocence, but she was racked with guilt over the responsibility she felt for taking away his freedom. She wrote later that “for so many years, the police officers and the prosecutors told me I was the ‘best witness’ they ever put on the stand; I was ‘textbook.’” Jurors believe confident witnesses, and investigators and prosecutors know this. The U.S. Supreme Court stated that the “level of certainty of the witness” was an important factor in a 1972 case where a victim expressed “no doubt” in court that she recognized her own rapist.
⁴²
By contrast, most psychologists who testify as experts on eyewitness memory
say that “an eyewitness’s confidence is
not
a good predictor of his or her identification accuracy.”
⁴³
In fact, mistaken eyewitness identifications, and their confident presentation to the jury, are the main cause of over 75 percent of wrongful convictions that are later overturned by DNA evidence.
⁴⁴

In a powerful demonstration of the extent to which confidence sways juries, psychologist Gary Wells and his colleagues conducted an elaborate experiment that resembled the entire criminal law process, from the initial witnessing of a crime to the jury’s decision on guilt or innocence. First, the researchers staged a crime for each of 108 different subjects: An actor pretended to steal a calculator from the room where each subject was completing some forms.
⁴⁵
Wells varied the amount of time that the perpetrator was in the room, how much he said to the subject, and whether he wore a hat (which made his face harder to see). Shortly after the “criminal” left the room, the experimenter entered and asked the subject to select the criminal from a photographic lineup and to state a level of confidence in that selection. Not surprisingly, subjects who had viewed the criminal only briefly were more than twice as likely to make an incorrect selection from the lineup as those who viewed the perpetrator for a long time. Yet they were nearly as confident in their selection as those who saw the perpetrator for a long time.

The most interesting part of this experiment wasn’t the finding of overconfidence, which had been demonstrated before. After selecting a person from the lineup and judging their confidence in their selection, the subjects were then “cross-examined” by another experimenter who had no information about which choice they had made or how confident they were. Videotapes of these cross-examinations were shown to a new group of subjects—the “jurors”—who were asked to judge whether the witness had made an accurate identification. The jurors trusted the selections of highly confident witnesses 77 percent of the time and less confident witnesses 59 percent of the time. More important, the jurors were disproportionately swayed by a highly confident witness when the witness experienced poor viewing conditions (only a brief exposure to a hat-wearing perpetrator). That is, confidence had the most detrimental
effect on juror judgments when the witnesses had the least information to go on.

At Ronald Cotton’s trials, the juries relied on confidence as a way to distinguish an accurate witness from an inaccurate one. A group of scientists led by Siegfried Sporer, a psychologist at the University of Giessen in Germany, reviewed all of the studies done on the identification of suspects from lineups—a crucial step in the investigation of Cotton for the Thompson rape. Several of these studies showed no relationship between the accuracy of witnesses and the level of confidence they expressed, but others found that higher confidence is associated with greater accuracy. Considering all of the relevant studies, they found that on average, high-confidence witnesses are accurate 70 percent of the time, whereas low-confidence witnesses are accurate just 30 percent of the time.
⁴⁶
So, all other things being equal, a confident witness is more likely—much more likely—to be accurate than an unconfident one.

But there are two problems here. First, the level of confidence witnesses express depends as much on whether they are confident in general as on whether they are accurate in a given instance. If jurors could observe the confidence of a particular witness under a wide variety of situations, they could better judge whether that witness’s testimony was unusually confident. In the absence of any information about whether or not a witness generally acts with confidence, we tend to trust people who appear confident. The effect of a confident witness holds so much sway that 37 percent of respondents in our national survey agreed that “the testimony of one confident eyewitness should be enough evidence to convict a defendant of a crime.”

Second, and even more important, is that while higher confidence is associated with higher accuracy, the association is not
perfect
. Highly confident witnesses are right in their identifications 70 percent of the time, which means they are wrong the other 30 percent of the time; a criminal conviction based entirely on a confident eyewitness identification has a 30 percent chance of being erroneous. As eyewitness testimony expert Gary Wells and his colleagues at Iowa State University put
it, “We would expect to encounter a highly confident mistaken eyewitness (or a nonconfident accurate eyewitness) about as often as we would encounter a tall female (or a short male).”
⁴⁷
This should make us question verdicts that rely exclusively on eyewitness memories, no matter how confidently they are recalled in court.

The Ronald Cotton case is often described as one of mistaken eyewitness identification due to the fallibility of memory. It is. But if the illusion of confidence did not exist, the authorities and the jurors would not have given Thompson’s identifications and recollections the inordinate weight they did. They would have recognized that her lack of doubt still left much room for error, and that physical and even circumstantial evidence are necessary backstops for eyewitness testimony—no matter how articulate, persuasive, and confident its delivery.
⁴⁸
The illusion of confidence obscures all of this, often with disastrous consequences.

For Ronald Cotton, the consequence was eleven years in prison for crimes he didn’t commit, but it could easily have been his entire life. At his second trial, on the basis of new testimony by the second victim, he was convicted of both rapes that were committed on that July night. His lawyers later wanted to test his DNA against samples from each crime scene, but the material from the second rape had deteriorated too much. If the samples taken from Jennifer Thompson were not testable—or were gone entirely—there would have been no way to prove Cotton’s innocence. Instead, he was set free on June 30, 1995. He was offered $5,000 in compensation by the state of North Carolina, an amount later raised to over $100,000 by changes to the law. These days, he travels and speaks on the issue of false convictions, often in tandem with Jennifer Thompson, who is now a married mother of triplets and an advocate for criminal justice reform.

In our view, what is most in need of reform is the legal system’s understanding of how the mind works. The police, the witnesses, the lawyers, the judges, and the jurors are all too susceptible to the illusions we have discussed. Because they are human, they believe that we pay attention to much more than we do, that our memories are more complete
and faithful than they are, and that confidence is a reliable gauge of accuracy. The common law of criminal procedure was established over centuries in England and the United States, and its assumptions are based precisely on mistaken intuitions like these.

The mind is not the only thing we think we understand much better than we actually do. From physical mechanisms as simple as a toilet or a zipper, to complex technologies like the Internet, to vast engineering projects like Boston’s “Big Dig,” to abstract entities like financial markets and terrorist networks, we easily deceive ourselves into thinking that we understand and can explain things that we really know very little about. In fact, our dangerous tendency to overestimate the extent and the depth of our knowledge is the next everyday illusion we will discuss. The
illusion of knowledge
is like the illusion of confidence, but it is not a direct expression of one’s level of certainty or ability. It doesn’t involve telling someone else that you are “confident,” “certain,” “better than the average person,” and so on. It involves implicitly believing that you understand things at a deeper level than you really do, and it lurks behind some of the most dangerous and misguided decisions we make.