In case you by some miracle hadn’t noticed it yet, tens of thousands of web sites around the country and around the world, are “going black” or putting up banners explaining that they are not available or there is no content today etc… In protest against the “Stop Online Privacy Act” and the “ProtectIP act”, which are currently (or were recently), being promulgated in congress.

We don’t have a problem with anyone who does. It’s important that people understand what SOPA and PIPA are (or were), and most folks are sadly unaware of the kind of stupid and harmful things that our government does.

Google and Wikipedia are two of the most important and most used sites on the net; and by participating in this protest, they will very certainly make a lot more people aware of this issue.

But “going black” isn’t what we do here.

We talk about political and social issues here; in particular about liberty and freedom. We try to inform people about the important issues, events, and principles of liberty and freedom; and then talk about them in as free and open a way as we can.

I personally think that going black would be entirely against what we are about here; and while it might help to draw more attention to the problem, it wouldn’t help us inform you, or help us begin the conversation about the issue.

… and of course, you can’t go to wikipedia day to find out about it…

So, I personally, would like to do something that is in the spirit of protesting the idiotic and harmful nature of these pieces of industry lobbying masquerading as legislation…

…And share a few things:

That’s the best explanation of why the freedom to share (within fair use of course, copyrights ARE important) is important; and why legislation like PIPA and SOPA are not only stupid and harmful, but entirely antithetical to the American system of ordered liberty.

And then there’s this piece by my friend (and bestselling author, buy his excellent books please) Larry Correia:

“for all of the people out there on the internet having a massive freak out about the government potentially damaging something they love… WELCOME TO THE PARTY.

You think this is something new or unusual? Nope. This is just about a topic that you happen to be familiar with. If you fall into that camp, I want you to take a deep breath, step back, and examine all of the other issues in the past that you didn’t know jack squat about, but your knee jerk reaction was to say “there’s a problem, the governement has to do something!” Well guess what? The crap the federal government usually comes up with to fix these problems is similar to SOPA. In other words, the legislation addresses a perceived problem by instituting a bunch of stupid overregulation and taking away someone’s freedom.

You think people need access to affordable medical care and shouldn’t be denied coverage? Well, you got used and we got the bloated ridiculous mess that is Obamacare. You saw a news report about how big business defrauded people and said congress should do something? Well, everyone in the business world got screwed because of Enron by completely useless new arbitrary crap laws, and a few years later we got into an even bigger financial crisis which the arbitrary crap laws we spent billions conforming to did nothing to prevent. No, because that financial crisis was caused by people saying that there was this huge problem that needed to be fixed, so more people who couldn’t afford to pay mortgages could still buy houses, and the government simply had to do something to fix this problem!

Any crisis… Any problem… You ask the feds to fix it, you get this kind of answer. Almost never do the laws fix the actual problem. Instead the government gets bigger and gains a few more powers and it doesn’t fix the issue. When the problem gets bigger, then the government gets bigger and gains a few more powers that actually make the problem worse. Oh look! Despite all of these laws the problem has gotten even bigger? Whatever should we do? Why, I know! Let’s pass an even bigger law that takes away more individual freedom and gives the government more control!
Repeat, repeat, repeat.

Any topic, any situation, any problem.

They address it, you lose freedom and they gain more control. Some of you are only offended today because this particular law hurts something you enjoy. The rest of the time? Screw it. You can’t be bothered to pay attention. Or worse, people like me who are up in arms over an issue are just cranks or anti-government crackpots.”

I was going to write something roughly similar to this, but Larry beat me to it… and I’d rather share what he wrote, because it’s good, and because I can.

At least for now…

In a sense we have come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.

It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked “insufficient funds.” But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. So we have come to cash this check — a check that will give us upon demand the riches of freedom and the security of justice.

America has come a long way since King delivered this speech. Racial and ethnic minorities have made great strides thanks to courageous individuals like King who made a stand for liberty and justice (and in King’s case, paid with his life) and we are all better off for it.

Here is the rest of the speech. Listen and be inspired.

Really, what’s not to like?

Hat Tip: Free Talk Live

Thankfully, the fine folks at the “Restoring California Coalition” have decided to throw their weight behind the solution: the Millionaires Tax! And additional tax of 3% of income on taxable income over $1M, and of 5% on taxable income over $2M. (I’d point out that this would raise STATE tax brackets in those cases to 13.55% and 15.55%, respectively, well beyond any other state).

And of course, they’ve chosen as their poster child for the tax a representative sample of the average California high earner:

Now, I’ve got little love for Kim Kardashian. I fail to understand how someone has parlayed — as Joel McHale of The Soup is so fond of saying — a big ass and a sex tape into a fashion/fame empire. In fact, it’s not even a big ass and a sex tape that were the key; a lot of women probably have those. It’s more that she’s the offspring of a famous lawyer… A lawyer who was only famous because a major athlete/actor allegedly brutally murdered his wife and her boyfriend.

Any world where Kim Kardashian can be said to “deserve” her fame is a bit sketchy to me. In fact, my thoughts on her are oddly similar to those of Wil Wheaton:

That said, though, I don’t hate Kim Kardashian. I don’t know Kim Kardashian. While her onscreen persona is a bit vapid and useless, she’s obviously smart enough to have parlayed her fame into more fame and more money. She at least figured out the cardinal rule of fame: strike hard while the iron is hot. I don’t believe that we, as a society, should punish her because bored housewives find some escapist fantasy following the Kardashian family’s latest doings. And further, I don’t believe that we should, as a society, use her as the public scapegoat as a representative sample of “the rich” when she’s nothing of the sort.

The real “rich” that will be hurt by this tax are businessmen, and as much as the left scoffs at the idea of “job creators”, anyone in this state who has worked for a startup sees the reality: most of those businesses wouldn’t exist without the blood and sweat of the guys at the top — who often forego income, sleep, time with family and stability for years to build a company that eventually rewards them quite handsomely.

But even worse in this analysis is the fact that California has tried a Millionaires Tax rather recently, and the results weren’t exactly as planned:

In 2004, voters narrowly approved Proposition 63, the Mental Heath Services Act (MHSA), which imposed an additional 1% tax on personal income above $1 million. The funds generated from this “millionaire’s tax” were intended to expand county mental health programs. Taxpayer and business groups opposed the measure for a couple of obvious reasons. First, California is already a high tax, high spending state that didn’t need any more revenue. Second, as we predicted, Prop 63 would exacerbate California’s income tax volatility.

Although the final vote for Proposition 63 was tallied more than four years ago, evidence suggests that California’s most wealthy have continued to vote on this measure — with their feet. A recent survey from TNS Research, an international business research firm, found the California counties of Los Angeles, Orange and San Diego had the 1st, 4th and 6th highest number of millionaires in the country. However, even as the national population of millionaire households grew by 5.9% in 2007, Los Angeles County lost about 7000 of these households. Orange and San Diego Counties lost millionaire households as well.

So the net result was that the millionaires left. Further, this tax intended to improve county mental health programs largely had trouble spending the money. The above article (a tad outdated from 2008, to be sure) pointed out that the calls at the time were to pull the unspent $2B+ and allow it to be reallocated to general revenues.

This is bad policy, and it will only work to damage the California economy at a time when we’re already reeling from the housing bust. Following that by making Kim Kardashian the poster child for your movement is cheap and opportunistic, which might not be so objectionable if she represented the “average” California millionaire — but she doesn’t. Of course, I can’t claim it’s a bad tactic — given the moron voters in this state, it might actually work.

California has problems. Those problems require hard solutions, but instead we have people here who think we can simply paper over it by soaking the rich. After all, they just need to pay their “fair share”*.

* Fair share = always more than they’re paying today, no matter how high that number currently is.

I can think of no finer eulogy than the one given by Radley Balko on The Agitator:

There aren’t very many people who can claim that they personally changed the public debate about an issue. Reynolds could. Before her crusade, no one was really talking about the under-treatment of pain. The media was still wrapped up in scare stories about “accidental addiction” to prescription painkillers and telling dramatic (and sometimes false) tales about patients whose lazy doctors got them hooked on Oxycontin. Reynolds toured the country to point out that, in fact, the real problem is that pain patients are suffering, particularly chronic pain patients. After Reynolds, the major newsweeklies, the New York Times, and a number of other national media outlets were asking if the DEA’s war on pain doctors had gone too far. …

She was tireless. I often thought she was a bit too idealistic, or at least that she set her goals to high. She told me once that she wouldn’t consider her work done until the Supreme Court declared the Controlled Substances Act unconstitutional. …

Reynolds started winning. She deserves a good deal of the credit for getting Richard Paey out of prison. She got sentences overturned, and got other doctors acquitted. …

Of course, the government doesn’t like a rabble rouser. It becomes especially wary of rabble rousers who begin to have some success. And so as Reynolds’ advocacy began to move the ball and get real results, the government bit back. When Reynolds began a campaign on behalf of Kansas physician Stephen Schneider, who had been indicted for overprescribing painkillers, Assistant U.S. Attorney Tonya Treadway launched a shameless and blatantly vindictive attack on free speech. Treadway opened a criminal investigation into Reynolds and her organization, likening Reynolds’ advocacy to obstruction of justice. Treadway then issued a sweeping subpoena for all email correspondence, phone records, and other documents that, had Reynolds complied, would have been the end of her organization. …

So Reynolds fought the subpoena, all the way to the U.S. Supreme Court. And she lost. Not only did she lose, but the government, with compliance from the federal courts, kept the entire fight secret. The briefs for the case are secret. The judges’ rulings are secret. Reynolds was barred from sharing the briefs she filed with the press. Perversely, Treadway had used the very grand jury secrecy intended to protect the accused to not only take down Reynolds and her organization, but to protect herself from any public scrutiny for doing so. …

Despite all that, the last time I spoke with Reynolds, she working on plans to start a new advocacy group for pain patients. She was an unwearying, unwavering activist for personal freedom.

And she died fighting. Rest in peace.

Read the whole thing.

Clearly, we fall far short from having Bill of Rights that we adhere to and that was designed for our future posterity over 220 years ago. In the end, it is public opinion that most restrains political power — not words on paper, not judges, not politicians’ promises. A population that is not decidedly and passionately against violations of their liberties will see their rights stripped away. If we want to have a Bill of Rights Day worth celebrating, we must demand that officials at all levels respect our freedoms — and not let the government get away with abusing them.

Gregory is right: preserving the Bill of Rights ultimately rests with all of us.

That’s right, starting September 1 , more than 500 Michigan restaurant and bar owners will begin turning state lawmakers away from their establishments. State Senator So-and-so wants a brew? Too bad. Politicians won’t be served until they revisit the state’s 2010 smoking ban, which, owners say, has devastated business, and left bars like Sporty O’Tooles on the verge of collapse.

Okay, “nanny” is a bit of a misnomer in this case as these bar owners are reserving their freedom of/from association rights in their own establishments but good for them for standing up to these busybodies in the legislature. These are the kinds of bans I would love to see more of.

Stewart Rhodes, the founder of an organization established in 2009 called Oath Keepers, says that not only do soldiers and peace officers have a right to refuse to carry out an order that violates the U.S. Constitution but a sworn duty to disobey the order. Rhodes, graduate of Yale Law School, veteran, former firearms instructor, and former staffer for Congressman Ron Paul’s D.C. office, started Oath Keepers in response to what he perceived as an erosion of civil liberties that has escalated since 9/11.

Oath Keepers’ critics (particularly on the Left) believe the organization to be a Right wing “extremist” organization full of Birthers, Truthers, militia members, hate groups, and various other conspiracy theorists. In this article in Reason, Rhodes clears the air. Also, found in the organization’s bylaws:

Section 8.02
(a) No person who advocates, or has been or is a member, or associated with, any organization, formal or informal, that advocates the overthrow of the government of the United States or the violation of the Constitution thereof, shall be entitled to be a member or associate member.

(b) No person who advocates, or has been or is a member, or associated with, any organization, formal or informal, that advocates discrimination, violence, or hatred toward any person based upon their race, nationality, creed, or color, shall be entitled to be a member or associate member.

So what specifically makes Oath Keepers so controversial? My guess would be their list of 10 “Orders We Will Not Obey”:

1. We will NOT obey orders to disarm the American people.

2. We will NOT obey orders to conduct warrantless searches of the American people

3. We will NOT obey orders to detain American citizens as “unlawful enemy combatants” or to subject them to military tribunal.

4. We will NOT obey orders to impose martial law or a “state of emergency” on a state.

5. We will NOT obey orders to invade and subjugate any state that asserts its sovereignty.

6. We will NOT obey any order to blockade American cities, thus turning them into giant concentration camps.

7. We will NOT obey any order to force American citizens into any form of detention camps under any pretext.

8. We will NOT obey orders to assist or support the use of any foreign troops on U.S. soil against the American people to “keep the peace” or to “maintain control.”

9. We will NOT obey any orders to confiscate the property of the American people, including food and other essential supplies.

10.We will NOT obey any orders which infringe on the right of the people to free speech, to peaceably assemble, and to petition their government for a redress of grievances.

Imagine how much freer our country would become if everyone in law enforcement and in the military adopted this creed and took their oaths seriously?

The heavy metal band Disturbed has stepped up in a big way to not only educate their fans of the miscarriage of justice that occurred in West Memphis, Arkansas in a new song entitled “3”, but also to give their fans an opportunity to help. Their new single is available for download only for $.99 ($1.03 after taxes); all proceeds for this single will go toward Damien Echols’ legal fees.

From Distrubed’s official website:

It all began May 5, 1993 when three eight-year-old boys were found mutilated and murdered in the Robin Hood Hills area of West Memphis, Arkansas. Under tremendous pressure to find the killer despite physical evidence pointing to anyone, West Memphis officers coerced an error-filled “confession” from a mentally handicapped teenager, Jessie Misskelley Jr., questioning him for hours without counsel or parental consent, only audio-taping two 46-minute fragments. Jessie recanted his statement the same night but it was too late: Jason Baldwin, Damien Echols and Misskelley all were arrested on June 3rd, and have been incarcerated ever since.

Local media said the murders were part of a satanic ritual; human sacrifices in the wooded areas of West Memphis, Arkansas. The police assured the public the three teenagers in custody were definitely responsible for these horrible crimes. There was no physical evidence, murder weapon, motive, or acquaintance with the victims so the State stooped to presenting Damien’s black hair and clothing, heavy metal t-shirts, and Stephen King novels as “proof” the children were sacrificed to the devil. In early 1994, Echols was sentenced to death by lethal injection, Baldwin received life without parole, while Misskelley got life plus 40 years.

[…]

With the steadfast support and financial help of their supporters, there is now factual, scientific evidence of their innocence. Damien, Jason and Jessie still must fight to gain their freedom but there are major differences now: the “satanic cult sacrifice” motive is now an embarrassment the prosecution doesn’t even embrace. More important, forensic technologies have progressed to the point where previously untested items yielded definitive results: Not one molecule of DNA from the crime scene matches that of Damien, Jason or Jessie. The DNA does match of a pair of individuals (one of them a victim’s stepfather) that were admittedly together on the day the children disappeared.

[…]

In November of 2010, the State Supreme Court of Arkansas finally ruled in the WM3′s favor for the first time, ordering new hearings wherein all post-conviction DNA, forensic evidence or testimony that could lead to their exoneration will be heard. Judge David Laser was assigned to be the judge of this evidentiary hearing which will begin on December 5, 2011.

While it’s true the WM3 can see the light at the end of this tunnel, they still desperately need your financial help. Judge Laser ordered all remaining DNA is to be tested and we must pay for it, as well as additional forensic investigations and legal work. Please visit wm3.org for more information on the case and make your tax-deductible donation to the defense fund.

The case of the West Memphis 3 is one of the most disturbing cases I’ve ever followed; this is a worthy cause. If you are unfamiliar with this case, in addition to visiting wm3.org, watch the HBO documentary Paradise Lost: The Child Murders at Robin Hood Hills, the follow-up Paradise Lost 2: Revelations, and the 48 Hours Mystery episode “A Cry for Innocence.”In closing, here are the lyrics to the new Disturbed single entitled “3” below the fold.

I often wonder why i sit and wait to die
What have i done to justify the sentence they gave?
Too many hours spent in darkness questioning…
“how and why”?

I can’t remember many moments in the light
This retribution has defiled me to no end
And execution without merit looms ahead
Tell me why!

I was a boy who had to live his own way
I never fit into the model they had designed
I chose a path less taken…
I stood with others who had often felt the same
We got stares from passersby
Our dark attire seemed to frighten people away
And when three young boys died
They pointed fingers and entangled us in a lie!

…no hope in sight…..

I sit here terrified!
Can’t someone try to bring the truth to light?
Won’t anybody open up their eyes?
Before the three of us have lost our lives!

Why was everybody so damn afraid?
They blamed the devil for the heinousness of the crime
And to justify their own faith
We were labeled followers of Satan for a time
The three of us were attacked and disgraced
For many hours we were questioned and someone lied
One of us couldn’t take it
His simple manner was manipulated in time….
Fear made him lie….

Now i sit here terrified!
Can’t someone try to bring the truth to light?
Won’t anybody open up their eyes?
Before the three of us have lost our lives!

Now i am terrified!
Can’t someone try to bring the truth to light?
Won’t anybody open up their eyes?
Before the three of us have lose our lives!

Can’t anybody see through their disguise?!
Believe we didn’t take their lives!
And now the three of us have lost our lives…

I often wonder why i sit and wait to die
What have i done to justify the sentence they gave?
Too many hours spent in darkness questioning…
“how and why”?

As for me, I rarely bring up such trivialities, because the response you usually get from a leftist is “yeah, well why didn’t you guys on the right care about deficits and spending when Bush was in office?”

Despite the fact that I did care, the question stands.

Is the left hypocritical to care about ending the war until one of their own is in the White House? Yes. Is the right hypocritical to stay silent about the Bush/Republican spending and now throw a fit when a Democrat is in the White House? Yes. Is it doubly hypocritical to call out your opponents for behavior that you’ve just spent 8 years emulating? Yes. It’s a logical fallacy known as a tu quoque, but the question still stands; pointing out your opponents hypocrisy doesn’t excuse your own.

McArdle quotes a post from an antiwar activist who interviewed an academic researcher who has published on this topic. And I think the point is highly instructive:

“As long as voters remain highly polarized along party lines,” he responded by e-mail, “self-identified Democrats are unlikely to protest against Obama’s policies, even if they disagree with some of them strongly. A sudden end to the era of partisan polarization seems highly unlikely. So I would say that it is a very good bet that Obama will not confront large left-wing demonstrations. Of course, LBJ faced large left-wing demonstrations, but the party system was not polarized back then in the way that it is today.”

The same dynamics apply to the Tea Party: “Our analysis implies that the Tea Party will have a lower degree of organization and success in 2012 than it did in 2010. Because the Republicans won the House and made gains in the Senate, Tea Party activists feel much less threatened today than they did a year ago. So, while the Tea Party will obviously be around in 2012 — and it will likely factor into the Republican presidential contest — our analysis suggests that the Tea Party will not generate the same level of enthusiasm next year as it did last year.”

I disagree with his point about the Tea Party, though, as the “public face” of the government is invariably the Presidency, and that will continue through 2012 — including very contentious negotiations over budget matters and a Senate still in Democratic hands. However, should Obama be voted out of office and Republicans take over government, I believe no level of spending or debt will keep the Tea Party’s activism fully fueled.

I don’t play this “gotcha” game because I understand that it’s all deeply rooted in human tribal tendencies. We divide the world into “us vs. them”, and rationalize away the bad things “our guy” does because there must have been a good reason for it, while impugning the motives of what “their guy” does because he’s obviously got ulterior motives. Libertarians, IMHO, are a bit more naturally attuned to see this behavior for what it is, because almost everyone in the world is a “them” politically to us. However, try criticizing Ron Paul, or the Liberty Dollar, or suggesting that Atlas Shrugged might not be a great and insightful movie*, and watch the knives come out as you become a “them”.

Rather we should accept that this tendency exists, so that we can try to guard against it in our own hearts. The answer to being called out for hypocrisy shouldn’t be to point out that your opponents are also hypocritical as if it’s an excuse — it should be to evaluate your own hypocrisy and stamp it out — even if the means you’ll need to go against “your party” to do so.

We were able to surpass our goal and bring in $520 for the organization, and I believe the entire fundraiser successfully exceeded their organizational goal of $20K.

We here at TLP are honored to have readers who were willing to do more than talk about liberty and justice, but who are willing to actually put their hard-earned dollars on the line to help it be achieved.

Disclaimer: The views expressed here at The Liberty Papers either by the post authors or views found in the comments section do not necessarily reflect the views of The Innocence Project nor its affiliates.

In support of our fundraising efforts for The Innocence Project, I had tried to dedicate at least one post per week over the last four weeks to the cause of criminal justice reform – many of which are the very reforms The Innocence Project are working to bring about. With today being the last day of this fundraising campaign, 228 “Innocence Partners” combined efforts has raised nearly $15,000 of the $20,000 target. As of this writing, you readers have already donated $375 – 75% of our $500 goal! Thanks to everyone who has donated so far or plans to donate. Remember: your donations are 100% tax deductible.

Believe it or not, in the time we joined this campaign nearly a month ago to help The Innocence Project, 2 individuals have been exonerated as a direct result of The Innocence Project’s help!

In case you are wondering what $20,000 can accomplish (the overall campaign’s goal), this is how far The Innocence Project says the money can go:

• Pay for post-conviction DNA testing that may prove innocence for 4 clients.

• Provide 16 exonerees with basic needs including food, rent, and transportation for the first month after release.

• Cover the costs to send 20 exonerees to testify before state legislatures to reform the criminal justice system.

• Send 25 local advocates to an Innocence Project training to learn how to advance wrongful conviction reforms in their state.

• Allow a staff attorney to represent 5 clients.

• Enable staff to advocate for wrongful conviction reforms in 6 states.

In this series of posts, I covered some of the reforms and issues The Innocence Project has been trying to bring to light such as compensation for the wrongfully convicted, eyewitness misidentification, and false confessions. Rather than doing a rush job writing a final piece for the series, I encourage everyone to follow this link for the Frontline episode entitled “Burden of Innocence” (I couldn’t find a nifty player to embed the episode into this post but you can watch the episode in its entirety there). This episode deals with life after these individuals have been exonerated and their struggles to reenter and rejoin free society. It seems that there is much work that needs to be done here as well.

The Innocence Project is a non-profit group working to offer legal services to convicts claiming innocence who have a chance to prove it. Living in as free and just a country as we manage to have, there are still mistakes — many more than we likely realize. Those on the wrong end of those mistakes often have nobody willing to fight for them, even if they are truly innocent.

The Innocence Project hoped to get 200 individuals to set up web pages attempting to raise $100 each for a total fundraising goal of $20K. Given the modest but wider reach of this blog, I set up our page with a goal of $500, and I think it’s a good one, because we’re over 60% there.

If you haven’t rattled the cup yet, I highly recommend you do so. You’re working to help people who have been unfairly beaten by the system clear their name. If that’s not enough, it’s tax deductible, so every dollar you donate reduces the amount the system has to railroad others.

We’re less than $200 from the goal. Go help out someone who needs it.

Disclaimer: The views expressed here at The Liberty Papers either by the post authors or views found in the comments section do not necessarily reflect the views of The Innocence Project nor its affiliates.

In support of our fundraising efforts for The Innocence Project, I have decided to dedicate at least one post per week over the next four weeks to the cause of criminal justice reform – many of which are the very reforms The Innocence Project are working to bring about. As of this writing, you readers have already donated $310 – 62% of our $500 goal! Thanks to everyone who has donated so far or plans to donate. Remember: your donations are 100% tax deductible.

With that out of the way, now I will turn your attention to the topic at hand: Eyewitness Misidentification.

Back almost three years ago to the day, I wrote a post about Troy Davis who had his death row appeal denied despite seven eyewitnesses recanting their testimonies (this case is still winding its way through the courts; here is an update on where the case stands today). As is often the case whether here at The Liberty Papers or at other blogs, the discussion that followed my post was actually a great deal more interesting than the post itself IMHO. Jeff Molby, a person who comments on a somewhat regular basis, really got the discussion going with several Liberty Papers contributors and readers.

The part of the post that Jeff believed to be “misleading” was the following statement I took from The Innocence Project webpage that dealt with the role eyewitness misidentification plays in wrongful convictions:

Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.

While eyewitness testimony can be persuasive evidence before a judge or jury, 30 years of strong social science research has proven that eyewitness identification is often unreliable. Research shows that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound. Instead, witness memory is like any other evidence at a crime scene; it must be preserved carefully and retrieved methodically, or it can be contaminated.

This was Jeff’s response:

Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.

That’s a misleading stat. The relevant stat would be the percentage of convictions based on eyewitness identification that were later overturned due to DNA testing.

Comment by Jeff Molby — March 17, 2008 @ 12:51 pm

Perhaps the reason Jeff found the quote was misleading was my fault rather than The Innocence Project’s. The page that I took the quote from goes into greater detail complete with links for further reading. From my reading of their material, it seems to me that the statistics they are dealing with are from their now 266 exonerations. As the discussion unfolded, this forced me to do some additional research outside of The Innocence Project [Thanks a lot Jeff : ) ] to see if I could find more data to support –or refute The Innocence Project’s claim. Fellow contributor and lawyer by trade, Doug Mataconis also weighed in with his thought about the reliability of eyewitness testimony.

The highlights from this discussion are below the fold.

The relevant stat would be the percentage of convictions based on eyewitness identification that were later overturned due to DNA testing.

I don’t completely agree. A very small portion of convictions are amenable to DNA testing. The proper denominator would be the number of convictions that are subsequently tested where eyewitness identification played a role.

The problem with examining the cases tested by the innocence project is that there will be a sampling bias: people who are innocent are much more motivates to seek out avenues for exoneration, and the innocence project will select cases that where they have a higher probability of success to focus their limited resources.

Comment by tarran — March 17, 2008 @ 6:38 pm

The proper denominator would be the number of convictions that are subsequently tested where eyewitness identification played a role.

I would also include those convicts for whom DNA evidence was available, but never tested. If a convict isn’t pursuing all possible means for an acquital, it’s hard to assume he’s anything other than guilty.

Regardless, I think we can agree that the statistic cited is pure garbarge.

Comment by Jeff Molby — March 17, 2008 @ 8:05 pm

If you read a report analyzing aircraft crashes, and the report stated that cracks in the pressure hull had contributed to 75% of crashes, I doubt you would be claiming that that statistic was somehow misleading and that the important question was how many planes flew with similar cracks safely.

It depends on the point you’re trying to make.
Read that sentence again:

Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.

Notice that the assertion is about “wrongful convictions” (herein referred to as “apple”), yet their supporting statistic is about “convictions overturned” (herein referred to as “orange”).

We can agree that there are some unknown number of wrongful convictions that never get overturned, right? Isn’t it quite possible that there are other unmentioned factors that bias the sample?

And even if there aren’t, the author goes on to assert that eyewitness testimony is “often unreliable.” He didn’t offer a shred of evidence to support that statement. The eyewitness testimony could be right 99.999% of the time for all we know, because he only examined the convictions that were overturned.

In the context that it was presented, the stat is useless at best.

Comment by Jeff Molby — March 18, 2008 @ 9:46 am

The only wrongful convictions we know of are ones that are overturned. Well, that’s not completely correct; there are cases like the one that’s the focus of Stephen’s post here.

These aren’t apples and oranges. The convictions overturned is a subset of a larger, unknown and unknowable set, all the wrongful convictions. The use of a small sample to come to conclusions concerning larger sets is the heart of “hypothesis testing” which is one of the most highly developed branches of statistics.

You could argue that they are making conclusions about all apples from a sample of golden delicious apples, and I would agree with you. But to claim that this is apples and oranges is a bit much.

With that being said, they are absolutely correct that eyewitness testimony can be quite unreliable. In fact some branches of eyewitness testimony are known to be often unreliable, such as identification of a stranger. There was a series of psychological experiments that demonstrated this; the researchers could consistently get witnesses to finger the wrong man as a person who committed a a simulated robbery merely through having a patsy in the crowd loudly and incorrectly describe one aspect of the thief’s appearance.

Now, again, you could argue that the statistics they present, on their own do not back up this claim. However, the unreliability of witnesses when describing novel people or situations is well known enough that it needs no confirmation anymore than a guy talking about airplane design need to justify his assertion that air pressure can be used to calculate altitude.

Comment by tarran — March 18, 2008 @ 10:35 am

Jeff:

If you actually follow the link, you will see that TIP considers such factors as estimator variables, and system variables. TIP also has made observations about eyewitness misidentification based on the over 100 convictions they have helped overturn. If you look to the right side of the web page, you will find more outside information about the unreliability of the use of eyewitness identification: here’s an Iowa University Study and a website from one of the study’s authors Iowa State Psychology Professor Gary Wells .

If you are skeptical about TIP’s sources, do an independent Google Scholar Search on the topic from 2000 to 2008. You will find that Dr. Wells’ articles are among the top scholarly articles cited by other peer reviewed scholarly articles found by Google Scholar.

On Table 1 of this study which interviewed 64 psychologists who had courtroom experience found in the May 2001 issue of American Psychologist, the very first of thirty variables listed in determining the reliability of an eyewitness is the stress level at the time of the event. The statement next to this variable reads as follows: “Very high levels of stress impair the accuracy of eyewitness testimony.”

This would explain why I could not remember exactly what this man looked like even though he was looking right at me less than 2 feet away; I was scared shitless (to use a scientific term).

The very first page of the same study states the following:

In 1996, the National Institute of Justice reported on 28 wrongful convictions, cases in which convicted felons were exonerated by DNA evidence […] Remarkably, all of these cases contained one or more false identifications.

This is only the tip of the iceberg. The body of research being done concerning eyewitness mistakes is growing. Read these studies as well as a few of your own and then tell me that eyewitness testimony is generally reliable enough to take someone’s freedom or someone’s life.

Comment by Stephen Littau — March 18, 2008 @ 11:56 am

Stephen,

This case, and the issue of eyewitness testimony, reminds me of two classes I took, one in college and one in law school, where the professor engaged in an experiment that showed just how unreliable eyewitness testimony can be.

It should be familiar to anyone who’s taken a criminal justice class of any kind.

In both cases, we witnessed what looked like a crime (theft in one case, attempted assault in the other) but was actually a ruse between the professor and a graduate assistant. After it happened, the professor asked the class to recount details about what they saw such as:

- The height of the person who had run into the room
- What color hair they had.
- How tall they were
- Whether they were fat or thin
- What was said

Stuff like that.

Without exception, everyone got at least one crucial detail about the incident completely wrong. And that was mere minutes after it happened.

I don’t practice a lot of criminal law, but even on the civil side it became obvious to me quite early on that when someone gets up on the stand in a courtroom and is asked to recount the details of an event that happened years in the past, they usually aren’t getting everything completely right.

In a civil case, it usually isn’t crucial because documents usually control.

In a criminal case, where someone’s freedom or life is on the line, basing a conviction solely on the testimony of witnesses, without corroborating physical evidence seems foolish.

Comment by Doug Mataconis — March 18, 2008 @ 1:09 pm

You could argue that they are making conclusions about all apples from a sample of golden delicious apples, and I would agree with you. But to claim that this is apples and oranges is a bit much.

Ok, you can reduce the scale of my analogy if you like, but my point is still valid. The subset is non-random* and therefore it is not logically possible to draw conclusions about the whole from that subset; if you want to make a hypothesis from the subset and use that as the basis for further experiments on the whole, knock yourself out. You can’t, however, make conclusions.

*Not only is it not random, it isn’t even mixed up a little. The subset is narrowly defined to only include a single class of cases.

Now, again, you could argue that the statistics they present, on their own do not back up this claim.

That’s what I was doing.

With that being said, they are absolutely correct that eyewitness testimony can be quite unreliable

If you actually follow the link, you will see that TIP considers such factors as estimator variables, and system variables. TIP also has made observations about eyewitness misidentification based on the over 100 convictions they have helped overturn.

I don’t necessarily take issue with their conclusion. I just take issue with the way that stat was presented. It struck me as MSM-style sensationalism.

Even if the stat did speak directly toward their conclusion, they still should have given it some context. “Played a role in more than 75%”? Ok, where does that fall in comparison to other factors? Presumably there are multiple factors in most wrongful convictions, so 75% might not even be good enough for 3rd place for all I know.

Comment by Jeff Molby — March 19, 2008 @ 1:25 am

A Final Thought
Just how reliable are eyewitnesses and their testimonies? Whether or not The Innocence Project is being “sensational” in presenting their data to make their point, I think we can all agree that the courts rely entirely too much on eyewitness testimony – particularly when the eyewitness in question doesn’t know the person who they saw committing the crime. I think we can also agree that the techniques that the police use when interviewing eyewitnesses can be improved to minimize the possibility of convicting an innocent person.

The Innocence Project does have some great ideas for doing just that and some of their reforms have been adopted at the state and county level. To learn more about how The Innocence Project is working to reform eyewitness identification procedures, follow this link. If you believe these reforms and others will improve the system and you would like to help make these reforms possible, I would encourage you one more time to go to our “Innocence Partners Page” and make a tax deductible donation to help us meet our $500 goal (we’re only $190 away!).

Also, a special thanks to Jeff Molby, Tarran, and Doug Mataconis, for contributing so much to a discussion that was so valuable that it deserved to be revisited and reintroduced to readers a full three years later. This is what makes blogging such a rewarding hobby for me.