Failed Evidence: Why Law Enforcement Resists Science

4. The Real Reasons for Resistance: Cognitive Barriers

78 > 79 As we saw in the last chapter, none of these explanations constitutes a convincing reason to resist years, even decades, of accumulated scientific proof that points toward better, more accurate police investigation. Nevertheless , the resistance of police and prosecutors to better practices remains quite real. Thus we circle back to the same question: Why? What makes key actors in law enforcement reluctant to the point of refusal to reexamine how they do what they do? Why the hesitancy to grab hold of better, more accurate investigative tools? Some legal scholars and commentators have suggested that at least when it comes to prosecutors, the resistance reflects a deficiency in values. According to this view, prosecutors share a culture of overzealousness that pushes them away from ethical practices in pursuit of convictions and long sentences .1 Others see a lack of “moral courage”2 among prosecutors, or their failure to fulfill their duty to act not just as advocates for the state but as “minister[s] of justice,”3 as the norms of the profession require. Still others have concluded that the willingness among prosecutors to break the rules in the pursuit of guilty verdicts runs both wide and deep.4 None of these explanations seems any more convincing than what law enforcement itself says. No evidence exists to prove that prosecutors have less in the way of ethical scruples than other lawyers. While plenty of cases in reported legal opinions do contain examples of prosecutorial misconduct of one kind or another, this does not explain the general resistance to change. In order to understand why prosecutors and police resist the pull of science toward better investigative practices, we must understand two other sets of forces. One concerns the enormous institutional and political hurdles to change, the subject of chapter 5. In this chapter, we will explore the other forces: significant cognitive barriers that obstruct the ability of police and prosecutors to turn toward the improved investigative tactics to which modern science points us. These cognitive barriers are not peculiar to those in law enforcement; rather, they exist in every person, whatever he or she does for a living. To one degree or another, they interfere with our ability to come to rational conclusions concerning our own knowledge, actions, or plans. Thus the answer lies not in the fact that police or prosecutors are especially unethical or immoral, or particularly inclined toward misconduct. Rather, it is that they are human beings. And human beings share a number of important thought processes that distort their attitudes, reasoning, and decision making. Professor Alafair Burke of Hofstra Law School puts it well when she says that prosecutors “sometimes fail to make decisions that rationally further justice, not because they fail to value justice, but because they are, in fact, irrational. They make irrational decisions because they are human and 80 > 81 This explanation illuminates the power of cognitive dissonance very well. The smoker knows that smoking constitutes a real health hazard; the accumulation of years of evidence, well known to the public, looms large. On the other hand, another thought anchors firmly in her mind: she smokes. These two inconsistent thoughts cannot coexist without giving rise to tension, and any normal person will seek relief from that discomfort, if not by quitting then by reworking her beliefs. These reworked beliefs aim to bring the two dissonant cognitions into harmony, even if these new beliefs take the form of deluding rationalizations. Explaining this process, Elliot Aronson says it shows that we should not view “people as rational beings [but rather] as rationalizing beings.”13 To get an idea of how cognitive dissonance can make a difference in an individual police investigation—the role it can play in the course of a single case—think back to the Norfolk Four, the rape and murder case discussed in chapters 2 and 3. Recall that detectives quickly focused on Danial Williams, a neighbor of the victim. Police detained and questioned Williams overnight, pressuring him ever more harshly, asserting with perfect certainty that they knew he had done it, even manufacturing apparently indisputable evidence of his guilt. Williams then gave police a confession. These facts form the first cognition for the police: Williams killed the victim; case closed. But, just a short time later, the detectives received the autopsy report and discovered that the confession contained major errors that made it inconsistent with the physical evidence...