Megrahi and the value of “evidence”

by endlesspsych

The astute amongst you will note that yet again this is not a post about autism, fiction and mindblindness. I’m sorry my ire has been raised by another topic, my posting on this is perhaps slightly influenced by the excellent Robin Ince gig I have just attended but thats by the by…

There appears to be two or perhaps three, no doubt we will discover a more precise number as I type,  schools of thought regarding Megrahi’s compassionate release. There are those who think that Megrahi’s release was wrong and has weakened the Scottish legal system (which has somewhat more sinister implications which I may touch on later), there are those who think that a compassionate release was the right thing to do on principle and there are those who believe that it was the right thing to do because had Megrahi had the time to mount an appeal then it’s likely given the quality of evidence that convicted him he would have been exonerated. Ergo releasing him compassionately was the right way to go as had the evidence been examined with a critical eye he would have been acquitted anyway (go-go Gadget thesaurus).

This website is good on the evidence (or lack thereof) so I’ll just give you an extract of that and the link…

A vitally important issue was the date on which the goods that surrounded the bomb were purchased in Malta. There were only two live possibilities: 7 December 1988, a date when Megrahi was proved to be on Malta, and 23 November 1988, when he was not. In an attempt to establish just which of these dates was correct, the weather conditions in Sliema on those two days were explored. Shopkeeper Tony Gauci’s evidence was that when the purchaser left his shop it was raining so heavily his customer thought it advisable to buy an umbrella to protect himself while he went in search of a taxi. The unchallenged meteorological evidence led by the defence established that, while it had rained on 23 November at the relevant time, it was unlikely to have rained at all on 7 December and, if there had been any rain, it would have been at most a few drops, insufficient to wet the ground. On this material, the judges found in fact that the clothes were purchased on 7 December.
On evidence as weak as this, how was it possible for the trial court to find him guilty? And how was it possible for the appeal court to fail to overturn the conviction?

Now if that website is to be trusted (and ok I may be more willing then usual to suspend critical appraisal of the facts it presents as it kinda fits with my prejudices – but I will welcome counter evidence if offered.) it does appear ridiculous that a conviction could have been made on such spurious grounds. However if you know a little about the nature of eye witness testimony, the foibles of human memory and the power of suggestion it becomes almost tragically comical.

The validity of eyewitness testimony is highly contentious but is also, conversely, one of the bedrocks of evidence in courtroom trials; no doubt due in some small part to the appeal of anecdotal evidence to simple little homosapiens like ourselves. Social psychologists have found that we may be careful and rigorous in our gathering of information about a product/service, say purchasing a new car and checking out reliability statistics for a thousand odd miles or models, but that one persons anecdotal evidence can override our carefully gathered information, say one person claims to know someone who owned the car the survey says is most reliable and it always broke down. For some reason the argument presented by another person is more salient then the information or evidence we have already gathered and it will be unlikely that we will actually buy the reliable car based upon this.

In a courtroom setting this is worrying as it perhaps implies that we are less at the whim of the evidence but at the whim of charismatic, well spoken and intentionally manipulative defence and prosecution lawyers.  Who will use all sorts of rhetorical techniques to achieve their desired outcomes one of my personal favourites is when they deliberately transgress the etiquette and internal rules of the court. That is to say when they say something that the judge must strike from the record, as it has been suggested by research that having something struck from the record may actually increase it’s salience to the jury. It’s a clever if dubiously moral technique which makes the information they have imparted, with disregard for the courts procedures and rules, seem like a forbidden fruit to the jury and thus more important. I mean try thinking of a white bear when someone explicitly tells you not to think of a white bear… (This alone I think is an argument for evidence to be submitted to the jury pre-recorded and edited after questioning by lawyers…)

In the context of the judicial system this is worrying because research by eminent psychologist Elizabeth Lofthus, amongst many others, suggests that memory and eye witness testimony are highly unreliable. Lofthus and Palmer asked participants to estimate the speed of cars by asking different questions: “How fast were the cars going when they hit/smashed/etc?” unsurprisingly they found the words used to frame the question greatly effected the participants estimates. They concluded that evidence is easily distorted depending on the questioning technique used and that information aquired after the event can be incorporated into the memory of the event itself.

Experiments conducted by Barbara Tvernsky and Elizabeth Marsh further detail some of the issues with eyewitness testimony – the vulnerability of human memory to bias. In one group of studies participants were given the “roommate study” a description of incidents involving one of two fictitious roomates. Later participants were asked to recount these incidents in a neutral fashion and write a letter of recommendation for the roomate or to write a letter complaining about the roomate. They found that those who had written positive letters recalled the fictitious roommate incidents more favourably then those who had written negative ones. This is perhaps related to Robert Cialdinis weapon of influence  – commitment and consistency. It also perhaps has implications for trial justice, if you consider that in the experiment just writing a negative letter coloured the participants views of another person, in that perhaps just the effect of seeing the suspect in the dock or the act of giving evidence against them will influence past memories of event. Or more succintly that seeing someone in a dock might prime a person to reassess their memories and report them with a negative slant – although it’s perhaps likely this will depend on whether the individual is a witness for the defence or the prosecution.

The above are a few reasons why I can’t quite understand the view that Megrahi shouldn’t have been released because it undermines or weakens the Scottish justice system. To my mind it strengthens trust in the justice system and shows that Scotland does not have a system based on revenge, vengeance and pointless punitive measures but on compassion.  Furthermore many of the arguments I have seen about weakening the Scottish justice system seem based on the idea that the system is infallible. Which is patently a fallacy. The above examples should be enough to suggest to anyone that nigh on any justice system based on trial by jury is unreliable and highly, highly fallible… To say that Megrahi shouldn’t have been released, when it seems likely he would have been exonerated by appeal if the evidence were appraised critically, seems to put faith in something we don’t actually have – this myth of a perfect justice system that doesn’t make any mistakes… There is more then enough evidence to suggest that is not the case.

I’ll get round to that autism blog eventually! Promise!