book review

Unfair: The New Science of Criminal Injustice.

• review by Carina Giesen

Being perceived as victim of an assault or as a drunk – does it matter to physicians when they treat you? Is it common to lie on purpose to a suspect and invent false evidence to get a confession? Can a suggestive interview create false memories in a witness without her noticing? Is a person more likely to get parole after the lunch break?

“Well, maybe, but it should not!” - I believe you agree with me that hopefully this is the prompt answer to all these questions. Yet, according to Unfair: The New Science of Criminal Injustice by Adam Benforado, the sad, but proper response is “yes, indeed!”: Apparently, all (!) involved parties engage in diverse sorts of biased behavior during a criminal investigation and at court – without exception. Some may do so on purpose, but (even more dangerous) – some may do so unintendedly, without being aware of their bias, and worst of all, by holding the absolute conviction of being unbiased and neutral.

Unfair is a book about a lot of things that are wrong with the U.S. legal system: The way suspects and victims are perceived and treated, the at times immoral operating principles of police investigators and lawyers, and the flawed and biased set of beliefs held by judges, jury members, and the public. They all had it coming, and in a thorough, sweeping blow, Benforado is getting to all of them in turns – taking no prisoners.

Each of the first nine chapters is dedicated to one of the prototypical roles involved in the judicial process: the victim (chapter 1), the detective (chapter 2), the suspect (chapter 3), the lawyer (chapter 4), the jury (chapter 5), the eyewitness (chapter 6), the expert (chapter 7), the public (chapter 8), and the prisoner (chapter 9). Starting with a case study to illustrate the theme, every chapter advances in a compellingly analytical and meticulous dissection of the core issues. These in turn are then elegantly combined and discussed in the face of up-to-date scientific explanations and research findings from, for example, social and cognitive psychology or sociology. In my view, the combination of case studies and data makes the book very readable and easy to follow. At the same time, Benforado’s analytical approach keeps you active as a reader and allows you to come up with your own ideas and suggestions of how to fix some of the problems and how to improve the system. Overall, this results in a very balanced mixture of problem-focused and solution-focused story telling. Throughout the book, Benforado is very critical and political in his style of writing, which I personally enjoyed a lot. Since I am a psychologist, I was aware of most of the psychological findings, which are sound and accurately presented and discussed. But even if you are from the field, it is a highly interesting book and you will find many new insights together with known facts in new contexts, which is indeed refreshing. For instance, I was not aware that there are approaches to use neuro-scientific methods like EEG and fmRI for lie detection – which to my view are legitimately criticized by Benforado because they are too easily corrupted and lack ways to detect and correct for faking attempts.

The final two chapters pave the way for reforming the system. Here, Benforado leaves his safe position grounded in case studies and scientific evidence and displays his own ideas of how the system can and might be improved in the future – this indeed is a move I welcome and appreciate very much! On the downside, Benforado has to be careful of not committing the same mistakes as the ones he criticizes, like an over-enthusiastic attitude toward new technical advancements that – although promising – need to be grounded on more solid evidence. For instance, when suggesting virtual legal processes in which all parties are represented by prototypical avatars in a fully controlled virtual environment, I would have appreciated more of Benforado’s critical thinking. For example, there is research evidence showing that gender or racial stereotypes are also applied to male/female or black/white avatars (e.g., Eyssel, & Loughnan, 2013; Kuchenbrandt, Häring, Eichberg, & Eyssel, 2014). Additionally, how people respond to virtual realities in general is presently unresolved and still under investigation. For instance, representing suspects via avatars might not reduce, but rather increase dehumanization tendencies in observers, since processes of perspective taking and empathic concern might operate differently or not at all in these contexts. From my view, a comparative approach (which Benforado often adopts in the other chapters) would have been far more convincing, such as by presenting how other countries deal with particular situations and whether their strategies are superior to the ones presently adopted in the U.S. For instance, German courts have to adhere to a strong protocol of operation, and as a consequence, confessions that were gathered in response to false and fabricated information provided by the investigators cannot be considered when reaching are verdict – which is a very effective method to keep agents from lying to suspects in the first place. Furthermore, in capital crimes, the presence of a defendant for the suspect is obligatory (hence, suspects are prevented from any disadvantage due to waiving their rights for an attorney out of sheer ignorance). Eventually, a “copy what is working, and abolish what is not” strategy might also be easier to sell to both authorities and the public.

Nevertheless, I can recommend Unfair whole-heartedly. It is very well written and truly informative; you will learn a lot of new facts and gain many new insights into the tricky psychology at work as far as judicial processes are concerned. Furthermore, this book is truly thought-provoking and allows for ample discussions with friends and colleagues. Unfair is a critique of our society as a whole and makes you think a lot about the set of rules we live by and how we want to treat each other now and in the future. If you have an interest in these topics, this book is a true must-read!

Additional references:

Eyssel, F.A., & Loughnan, S. 2013. “‘It don’t matter if you’re Black or White’? Effects of robot appearance and user prejudice on evaluations of a newly developed robot companion.”, in: G. Herrmann, M.J. Pearson, A. Lenz, P. Bremner, A. Spiers, & U. Leonards (Eds), Social robotics, Lecture Notes in Computer Science ; 8239.Springer, 422–431.

Kuchenbrandt, D., Häring, M., Eichberg, J., & Eyssel, F.A. 2014. Keep an eye on the task! How gender typicality of tasks influence human-robot interactions. International Journal of Social Robotics, 6(3), 417-427.