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Front Page - Friday, June 9, 2017

Bringing science to the courtroom

UTC’s Ross works to increase accuracy of eyewitness testimony

As all 5 feet, 3 1/2 inches of Dr. David Ross entered one of Chicago’s toughest neighborhoods in the dead of night, he had one goal: to save a life.

Even though Ross believed he was safe as he braved the streets to speak with a member of a Latin gang, doubt accompanied each step.

“I’m this little dude walking into the hood at 11 o’clock at night to meet with a gangster disciple – and I’m wondering if I’m going to come out,” explains the University of Tennessee at Chattanooga professor and recipient of the Chattanooga Bar Association’s 2017 Liberty Bell Award. “But they were told to leave me alone.”

Ross was there, looking a little like Columbo as he meandered in, to learn about a death row inmate.

In his role as the mitigation specialist for the defense, he was piecing together the man’s history to reveal why he had committed the crime that had ended another person’s life and prevent the accused from receiving the death penalty.

Ross’ work had led him down a bizarre path few others have traveled. But this was the professional life he had chosen – a life spent pursuing truth and justice through the application of science, no matter where it took him.

Unlike a crime scene investigator, Ross’ field is not the physical sciences but the science of psychology. As such, much of his work has been focused on the weaknesses of human perception and memory. As the mind probes the past, there can be great degrees of variance between what it sees there and what actually happened, he says.

“Our memories are not like video tape recorders. When we experience an event, we can’t push a button and remember it in perfect form. It comes back to us in bits and pieces and we fill in the rest,” he says.

Ross uses a simple exercise when training law enforcement to demonstrate the effects of reconstructive memory: he asks every participant to draw the head of a penny. If there are a dozen people in his class, they’ll invariably produce 12 different drawings.

“Some will draw Lincoln with a beard; others will draw him without a beard. Some will draw him with a hat; others will draw him without a hat,” he says. “If you can’t draw something you’ve handled countless times, what happens when there’s a bar fight or a tragic shooting and stress impacts your memory?”

Ross’ fascination with reconstructive memory led him to the area of research and work on which he has spent the bulk of his career: lineup identification. As he’s labored to unearth the science behind how accurate eyewitnesses are, his nemesis has been unconscious transference, a memory error that occurs when an eyewitness identifies someone in a lineup they recognize but not from the scene of the crime.

“After you witness a bank robbery, you go to the police station and they show you a mug book. Although the suspect is in there, you don’t identify him. Then, a week or two later, the police show you a lineup that contains the suspect,” Ross says.

“People are good at recognizing faces but terrible at remembering where they saw them. So, you see a familiar face but you don’t recall seeing it in the mug book – and that’s who you pick.”

Avoiding this error isn’t rocket science, Ross says. All law enforcement has to do is change its approach to collecting identification evidence. To demonstrate the preferred method, Ross peels six Post-it notes off a yellow pad and arranges them on his desk.

“The typical lineup presents six photographs in an array. Most people will look at those and pick the best one. That’s the process of elimination strategy,” he says. “To fix that, you present the pictures one at a time. Rather than comparing all six photographs to each other, the eyewitness looks at the image and compares it to what he remembers.”

Sequential lineups are very effective at reducing the identification of innocent individuals, Ross says. But finding a solution is not enough; law enforcement must be trained to do lineups correctly. To this end, Ross is a member of the faculty at the Tennessee Bureau of Investigation, where he teaches agents how to collect identification evidence.

“I want them to catch the bad guys and not wrongfully convict someone,” Ross says.

Ross has parlayed his expertise in collecting identification evidence into work for attorneys across the U.S. One example is his work on the case involving Anthony Williams, a Missouri man who was accused of shooting and killing an individual in 1993.

Williams had gone to a dance in eighth grade. At 10 p.m., he was involved in a fight. Although two kids were thrown out, Williams stayed. After the dance ended at midnight, he was standing on the steps outside the building talking with a girl when gunshots rang out and killed someone, Ross says.

Williams was convicted of the crime based on evidence that was shaky, at best, Ross explains.

“The police charged Anthony largely on the eyewitness identification of several people at the dance, many of whom were related to the victim,” he says. “The police put a lot of pressure on those individuals to make the ID, and the procedures they used to secure the ID were terrible.”

Ross says the police brought witnesses in together who knew each other and were aware of what the police wanted. In addition, the lineup included only four people instead of six, increasing the odds of them choosing Williams. Moreover, none of the participants in the lineup matched the verbal description of the shooter, and the witnesses were not told the suspect may or may not be in the lineup.

“There’s a whole set of instructions you’re supposed to give eyewitnesses, but the police didn’t do any of that,” Ross says.

As a result, Ross says, the witnesses picked the person they recognized – Williams.

“They had seen Anthony at the dance. He’d been involved in the fight,” Ross says. “A number of them also said they knew him from elsewhere, with one witness saying Anthony had lived in the same apartment building as a cousin. But he had never lived there.

“They were retrieving memories that didn’t exist and blending them with their recollection of the incident to say he was the shooter,” Ross says. “It was a classic case of unconscious transference.”

After Williams had spent 20 years in state prison, his new counsel asked Ross to assist with the case. He spent approximately 600 hours of pro bono work combing through court documents and related information and testifying before the court and was critical to Williams being released from custody.

Defense counsel said Ross’ testimony and three decades of experience with the academic side of eyewitness identification were critical to persuading the court that Williams had not received justice.

Although Ross worked for the defense to help free Williams, he’s not recognized as an expert for one particular position over another. Instead, Ross’ mission is to uncover the truth and convince others of its existence, whether he’s advancing a plaintiff’s cause over a defendant in a civil case or vice versa, or a prosecution’s cause over a defendant’s, or vice versa.

“I get calls from defense attorneys wanting me to say eyewitness testimony is bad. But it can be accurate. It depends on how you collect it,” Ross says. “I have to read the materials to see if there’s anything to even testify about. Take it or leave it, I’m going to tell you what’s good and bad for the prosecution and what’s good and bad for the defense.

“I’m not the judge or the jury; I’m a scientist. I’m not going to try to win a case for you. If that’s what you want, you have the wrong guy.”

In addition to his professional and academic work in eyewitness identification, Ross has worked with plaintiff and defense lawyers in civil cases to assist them in jury selection, witness preparation and focus groups designed to identify strengths and weaknesses in their cases.

He’s also worked with prosecutors, police departments and defense counsel in criminal proceedings to ensure the most scientifically reliable and accurate testimony is developed and presented.

Ross fell into consulting work by being in the right place at the right time. While a graduate student at Cornell University in Ithaca, New York, he studied under Dr. Stephen Ceci, a psychologist internationally known for his work in researching the accuracy of the testimony of children. During this time, a local trial lawyer would often come to Ceci’s office and talk with him about upcoming cases.

“This was in the 1980s; trial consulting didn’t exist yet. He knew psychologists had something to offer, he just wasn’t sure what it was,” Ross says.

Ross was sitting in Ceci’s office listening to his mentor and the attorney discussing a robbery case when the lawyer expressed uncertainty about selecting the jury. The attorney then turned to Ross and asked him if he wanted to help.

“I said, ‘I’m in!’” Ross says.

As fortune would have it, the trial took place in the town near where Ross grew up. As a result, Ross knew many of the people on the jury panel – but he didn’t tell the attorney this.

“I’d say, ‘Bill, see juror No. 4? I think she has a background in law enforcement. Maybe someone in her family was a police officer.’ So, he’d ask, ‘Mrs. Smith, do you have a background in law enforcement?’ And she’d say, ‘My uncle was a town constable.’ He’d look at me and I’d nod knowingly.”

The worst thing that happened, Ross says, is they won the case.

“I became his lucky rabbit’s foot. I was off to the races picking juries for this guy,” Ross says. “I loved it.”

This work slowly rolled into Ross doing trial consulting. Of the varieties of consulting he does, he says witness preparation is his favorite.

“I take people who have to testify at depositions and trials but have mental blocks or issues that may inhibit their ability to do so and I help them work through their issues. This is very challenging but also rewarding because I see people at a very difficult time in their lives and help them get through it,” Ross says.

“One never knows what’s going on with someone or the pain or distress they feel, but I have to figure it out and empower them to excel in the unfamiliar environment of court. I love that part of my job.”

As a professor at UTC, Ross divides his work between research and teaching. Although he’s engaged in several projects, one study related to criminal disguises is expanding his already-considerable grasp of eyewitness testimony.

“There was a robbery in Nashville. A guy walked into a bank with a pair of pantyhose and a bandana over his head. He placed a fake bomb on the counter and threatened to blow up the place unless the tellers gave him money,” Ross says.

After the tellers were unable to give federal investigators enough information to make an ID, the authorities released a Crime Stoppers video. A woman responded, saying the man in the video looked like her ex-husband – whom she hated, Ross adds.

Although the feds had no fingerprints, weapon or dye pack, they were able to prosecute the man using a law that allows a non-eyewitness to a crime to be used as an eyewitness in court based on their identification of someone in a Crime Stopper video.

Ross was angry when he learned about the case.

“Imagine all the procedures and protocols you have to observe to collect identification evidence, and now you’re going to allow a non-witness to a crime be used as an eyewitness in court?” he says.

Since the law had never been challenged and no one had studied the accuracy of Crime Stopper IDs, Ross dug in.

Ross and two colleagues are currently testing the ability of people to identify a familiar person who’s disguised.

After having a group of participants compile a list of celebrities, they obtained stock photos of the stars, made sure people recognized them and then used Photoshop to place a pair of pantyhose over their faces. They then showed the photos to a different group.

The ability of people to identify the celebrity varied according to the degree of darkness, the opacity of the fabric and how tightly the disguise compressed the face.

Ross and his colleagues are planning to present their findings at a federal public defender’s conference.

“My intent is to change that law,” he says. “Then, when there’s a case like the one the feds had, I’ll be able to take a photograph from the video, compare the level of disguise to our data and say, ‘You can’t ID at that level of disguise,’ or, ‘Yes, it’s possible.’”

Ross also hopes this work is published in a law journal. His resume already lists several pages of peer-reviewed academic publications in which his work has appeared, but for him, the hallmark of his labors is to be cited in law journals and decisions at the state or federal level.

“I want to see my work impact the people who are making the decisions about how we’re going to allow evidence in court,” he says. “That’s not going to happen in an academic journal.”

Several state supreme courts have cited Ross’ work on how to admit eyewitness testimony. For example, Tennessee was once the only state with a per se exclusionary rule that prevented experts on eyewitness memory from testifying in court “since the court deemed the way in which eyewitness memory works common sense.”

Ross, together with Chattanooga Judge W. Neil Thomas III, conducted a study using jury panels, police officers and attorneys that demonstrated how jurors’ understanding of eyewitness memory differs from what science has proven.

“So, when jurors are making judgments about eyewitnesses, they’re using the wrong criteria,” Ross says.

Ross and Thomas presented the data to the Tennessee Judicial Conference. Within a year, State v. Coley, in which the trial court had excluded expert testimony concerning eyewitness identification the defendant sought to offer in a trial for aggravated robbery, was overturned.

The unifying factor in the many kinds of work Ross does is his effort to marry science and the law. It’s a rocky union, he says, because the courts have a poor understanding of science.

“To be admitted into court, scientific evidence must pass the Daubert standard, which determines whether the science is junk,” Ross says, indicating science is often poorly understood by the court.”

To bring the law and science closer together, Ross is writing a manual with Thomas that defines the Daubert standard and will enable judges to ask questions designed to ensure an expert witness is up to snuff. “We’re trying to educate the legal system about science,” Ross says.

Born in Tehran, Iran, where his father worked for the now defunct U.S. Information Agency, Ross sent some of his formative years near Washington, D.C., and the rest in Ithaca, New York.

Growing up, Ross had a reputation as a prankster, although he considered his jokes to be experiments. “People fascinated me,” he says, smiling. “I liked seeing how they reacted.”

By sixth grade, Ross knew he wanted to be a psychologist. When his father tried to steer him toward something practical in college, Ross failed his first accounting class. He then took Psychology 101 as an elective and earned an A.

“From that moment on, I knew what I was supposed to do,” he says.

Ross went on to earn a bachelor’s, master’s and doctoral degrees at Cornell. All three were focused on developmental and social psychology with an emphasis on psychology and the law.

“I wanted to do research that could be applied to the real world,” he says. “I was a blue-collar kid. I needed practicality.”

Ross’ first taste of how the science he loved could be used to effect change came as he and Ceci studied the suggestibility of children in the courtroom. Their corroboration came as the legal obstacles, including age and corroboration requirements, to putting a child on the stand fell away. It was groundbreaking work, and Ceci and Ross were among the first to publish a volume on the topic.

“We wanted to help the courts admit and handle testimony from three- and four-year old kids,” Ross says.

After earning his doctorate in 1989, Ross taught at Boise State in Idaho for three years. He then moved to Chattanooga when the opportunity arose for him to work with Dr. Amye Warren, an authority on child witnesses, at UTC.

Over the last two decades, Ross has embraced life in the Chattanooga area. A resident of Signal Mountain and an avid outdoorsman, he spends his off hours bicycling with friends, hiking and gardening. Ross also enjoys traveling and has stories about competing in Iron Man competitions around the world and fly-fishing in Montana that could rival his courtroom tales.

“My work is emotionally intense,” Ross says. “I couldn’t exist without the fitness component.”

The Chattanooga community has, in turn, embraced Ross. In the most recent example of his local acclaim, the Chattanooga Bar Association named Ross the recipient of the 2017 Liberty Bell Award during its Law Day luncheon in May. The award recognizes community service that has strengthened the American system of freedom under the law.

“We say justice is blind. Justice needs guidance, and science can frequently provide that guidance. Our recipient’s professional life has been dedicated to this principle so that all may have confidence our court systems,” Bill Colvin, president of the CBA, said as he made the announcement.

“I felt humbled,” Ross says. “The award should have gone to someone else.”

Judge Thomas, who has collaborated with Ross on several studies and seminars, disagrees. He says Ross deserves the award, not just for the impact his work has had but also for the way he’s labored quietly, without drawing attention to himself.

“He’s done a lot of good without flying his flag. When Major Winchester first appeared on ‘M*A*S*H,’ Hawkeye told him they did meatball surgery; they patched their patients up and got them out of there,” Thomas says. “Major Winchester said, ‘I do one thing, I do it very well and then I move on.’ He flew his flag continuously. That’s the antithesis of David Ross. He does things extremely well but doesn’t talk about them.”

Enthusiastic, friendly and easy to converse with, Ross makes an uplifting first impression. Those who have known him for a while have even kinder things to say. For example, Thomas says Ross’ defining personality traits are his eternal optimism, pragmatism and pursuit of truth.

(Thomas also calls Ross a “jokester.” However, he turned the tables on his friend when he constructed an elaborate ruse to convince him to attend the Law Day luncheon without telling him why he needed to be there.)

Ross says he simply feels blessed. “I’ve had the opportunity to work with some incredible people in the legal system. I have tremendous respect for them. It’s always been about how we can improve the judicial system,” he says.

Change has not always been easy, as Colvin said during his Law Day remarks. “The law is sometimes slow to recognize scientific developments, and scientific developments are sometimes recognized in courtrooms before gradual acceptance in the scientific community,” he said.

Yet, Ross has done his job well, Thomas says, and both science and law are better for it. “Science and the law don’t always mesh well, but they should. The disciplines can’t be kept separate and be as rich as they are together,” he says. “David’s work brings them closer to each other.”