1 Rethinking the Ken Through the Lens of Psychological Science Jason M. Chin TC Beirne School of Law, University of Queensland W

1 Rethinking the Ken Through the Lens of Psychological Science Jason M. Chin TC Beirne School of Law, University of Queensland William E. Crozier John Jay College of Criminal Justice, City University of New York *Forthcoming, Osgoode Hall Law Journal **This article deeply benefited from insights provided by Heather Douglas, Caitlin Goss, Saul Kassin, and John Monahan. We are also grateful for the incisive feedback of two anonymous reviewers and the Osgoode Hall Law Journal editors and editorial board. Conversations with Richard Kemp and Kristy Martire at the annual meeting of the Evidence-Based Forensics Initiative in Wollongong, New South Wales were critical in the early stages of this article. 2 Abstract Canadian courts are loathe to admit expert evidence from psychological scientists when that evidence does not concern a disposition, typically a psychological disorder. As a result, psychological evidence concerning the unconscious processes and situational forces that underlie mistaken eyewitness identifications and wrongful confessions are regularly excluded from courtrooms. Courts justify these exclusions on the basis that the evidence is not beyond the ken of the trier of fact – the psychologist would simply be describing an experience shared by judge and jury. This reasoning stands on a fundamental misunderstanding of psychology. In fact, psychological science finds that the situation drives behaviour in a manner that regularly evades the trier of fact’s ken. This is because these situational forces rely on unconscious cognitive processes, and humans rarely have introspective access to these processes. As a result, humans cling to several deep misconceptions about memory processes and confessions. In this Article, we first discuss the mechanics of the mischief: why humans fail to account for unconscious processes and the situation, and instead focus on disposition. Then we provide evidence for this type of reasoning in decisions to exclude expert evidence about eyewitness identifications and false confessions. We conclude with recommendations to manage prejudicial evidence in a manner that is based on a more nuanced understanding of human psychology. 3 Table of Contents Abstract ........................................................................................................................................... 2 Table of Contents ............................................................................................................................ 3 Part I. Introduction .......................................................................................................................... 4 Part II. Unconscious Neglect and Dispositionism .......................................................................... 8 Unconscious versus Conscious Processes .................................................................................. 9 Social Psychology and the Nonintuitive Power of the Situation .............................................. 12 Applied Social and Cognitive Psychology on Eyewitness Memory and False Confessions .... 14 Part III. Unconscious Neglect and Dispositionism in Expert Evidence Law ............................... 20 Eyewitness Memory.................................................................................................................. 25 False Confessions and Mr. Big Operations............................................................................... 29 Part IV. Countering Unconscious Neglect and Dispositionism .................................................... 37 Part V. Conclusion ........................................................................................................................ 47 4 Part I. Introduction Outside consciousness there rolls a vast tide of life which is perhaps more important to us that the little isle of our thoughts which lies within our ken.1 Canada, like many jurisdictions, relies on a “beyond the ken” standard to determine if expert evidence is necessary and thus admissible in court.2 In other words, expert evidence may only be admitted if it is likely to be outside the experience of the trier of fact. Fields like forensic science and pathology usually meet this standard and thus experts in these fields regularly appear in court. However, psychological scientists – outside of some clinicians – face a good deal more difficulty.3 This tendency has received a great deal of academic criticism because these psychologists would often opine on psychological phenomena that contribute to wrongful convictions, especially eyewitness memory and false confessions.4 Our contribution to this field 1 Eneas Sweetland Dallas, The Gay Science (London: Chapman and Hall, 1866), as quoted in Timothy D Wilson, Strangers to Ourselves Discovering the Adaptive Unconscious (Cambridge: Belknap Press of Harvard University Press, 2002) at 17 [Wilson]. 2 R v Mohan, [1994] 2 SCR 9 at para 26, 114 DLR (4th) 419 [Mohan]. In the United States, the Federal Rules of Evidence overturned the common law beyond the ken standard. However, the authors of The New Wigmore: A Treatise on Evidence, 2d ed (Thomson Reuters) at s 2.1.3 note that “many-perhaps most” American courts continue to apply the old common law rule [New Wigmore]. Similarly, in Australia, the Uniform Evidence Law abolished the requirement that opinion evidence go beyond common knowledge. In New South Wales, for instance, see: Evidence Act 1995 (NSW) at s 80(b) “Ultimate issue and common knowledge rules abolished”. Still, common law States retain the beyond common knowledge requirement and regularly exclude psychological scientific evidence on that basis, R v LM [2004] QCA 192. And, as in the U.S., even states that have adopted the Uniform Evidence Law still retain the common knowledge distinction to some extent, see: JD Heydon, Cross on Evidence, 10th ed (Chatswood NSW: LexisNexis, 2015) at 237-239, 1018-1024. 3 For a review, see: David M Paciocco, “Coping with Expert Evidence About Human Behaviour” (1999) 26 Queen’s LJ 305-346 [Paciocco]; Gary T Trotter, “False Confessions and Wrongful Convictions” 35:2 Ottawa LR 179-210 [Trotter]; Timothy E Moore & Cindy R Wasser, “Social Science and Witness Reliability: Reliable Science Begets Reliable Evidence” 33 CR (6th) [Moore Reliable Science]; Jill Copeland, “Helping Jurors Recognize the Frailties of Eyewitness Identification Evidence” (2002) 46 Crim LQ 188-209 [Copleand]; Lisa Dufraimont, “Regulating Unreliable Evidence: Can Evidence Rules Guide Juries and Prevent Wrongful Convictions?” (2008) 33 Queen’s LJ 261-326 [Dufraimont]; Emma Cunliffe, “Without fear or favour? Trends and possibilities in the Canadian approach to expert human behaviour evidence” (2006) 10 International Journal of Evidence & Proof 280–315 [Cunliffe]. 4 Copeland, ibid; Trotter, ibid at 193; Dufraimont, ibid at 312, 321-326; Amy D Trenary, “State v. Henderson: A Model for Admitting Eyewitness Identification Testimony” (2013) 84 University of Colorado Law Review 1257- 1303. But for an argument that psychological scientific evidence is unnecessary, see: Lee Stuesser, “Experts on Eyewitness Identification: I Just Don’t See It” 31 Man LJ 543-553. 5 – the subject matter of this Article – is an explanation for why judges tend to find that psychological science is within the trier of fact’s ken and why that decision is mistaken. In determining whether evidence is beyond the ken, courts fall prey to two fundamental misunderstandings about human psychology. First, they neglect the unconscious processes5 that underlie our behaviours and emotions. Second, courts discount the power of the situation in favour of a dispositional model of human psychology. As a result, judges regularly exclude experts because of the assumption that jurors are fully equipped to understand those unconscious and situational forces. They reason that those psychological forces form part of the everyday human experience and thus jurors already know all they need to know. But, as E.S. Dallas noted in the quote that began this Article, this approach wrongly restricts their view of human nature to that which is within our conscious ken. To take an example from the eyewitness memory field, the leading Canadian judgment drew a strict line between evidence about the situational forces that cause misremembering and disorders like autism that impact memory.6 The situational evidence is inadmissible because jurors all have memories and have all experienced forgetting.7 Disposition is admissible because jurors have not experienced autism.8 This approach represents a facile and incorrect view of psychology. Rather, humans cannot report on what the unconscious parts of their brain are up to and are, in fact, oblivious to those processes. For similar reasons, they are often unaware of the situational forces that 5 In using the term unconscious, we are referring to the concept as it has been explored in decades of cognitive scientific research on mental processes that evade conscious reflection. This conception contrasts with the lay (and Freudian) meaning of the word often associated with sublimated desires. 6 R v McIntosh, 35 OR (3d) 97 at para 21, 117 CCC (3d) 385 [McIntosh]: “…expert evidence might be admissible to show that the witness is an autistic savant and that such exceptional memory feats are often associated with this syndrome.” 7 Ibid at para 20. 8 Ibid at para 21. 6 profoundly impact their lives. As hundreds of wrongful convictions demonstrate, people do not naturally think like psychological scientists and thus require

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