In Marvel’s recent two part mini-series, The Trial of the Punisher, mass-murdering vigilante Frank Castle finally sees the inside of a courtroom, and the results are predictably chaotic. Castle’s attorney enters a “not responsible plea” – the insanity defense – which, despite the public’s perception, is exceedingly rare and is actually only entertained in less than 1% of all felony indictment cases tried.

Castle, being the shrewd criminal tracker he is, has intentionally manufactured this scenario so as to reach a pedophiliac mafioso who had disappeared into the Federal Witness Protection Program.

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Comics don’t have a monopoly on courtroom craziness, though. Frank Castle probably couldn’t get a fair trial in the real world, either, given how perception is often informed by expectation and that memory tends to degrade. Consider the following eyewitness testimony from issue #1:

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How sure can the witness be that the skull-shirted man he saw was Frank Castle, really? WHO ELSE could he have envisioned in that position, other than the Punisher? And could his mind have filled in the gaps in the man’s face over time?

Seeing Can Be Falsely Believing

“I know what I saw” is a powerful declaration sometimes made by crime eyewitness and observers of the unusual. There’s even a UFO believer documentary bearing the defiant title, an account that claims it will “challenge your reality.”

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Yeah, good luck with that.

But can we truly believe what we see, especially in stressful situations? A 2010 study by Dennis R. Proffitt of the University of Virginia showed that fear can dramatically alter perception. Subjects standing on an unstable skateboard at the top of a hill judged the incline to be much steeper than it really was, while others standing on a sturdier box guessed closer to the actual angle. Could someone’s perception, then, be distorted when a gun is suddenly pulled in an alley?

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I judge this incline as “pants-shittingly steep.”

Even if a tourist eyeballing one of the most wanted men in America could keep his cool, there are some tricks the brain just can’t avoid. We call them optical illusions. Whether it’s a face on Mars, those moving pictures that don’t really move, or that weird-ass duck-rabbit thing, the brain’s need to fill in the gaps based on past experience can lead to faulty perception in extraordinary circumstances. I’m not saying that’s Mysterio getting ready to ice the drug dealer, but we shouldn’t forget that in some ways our senses are so reliably unreliable that people can actually make a living taking advantage of them.

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Criss Angel profits off your brain’s faulty wiring. Also, apparently, shoulder-presses cats. From metalinjection.net

A System Built on Shaky Foundations

Matters are only complicated when those so-so observations are transcribed into our malleable memories. Contrary to popular belief, human memory isn’t a pristine copy like a video recording, but instead “more akin to putting puzzle pieces together,” cognitive psychologist Elizabeth Loftus told Scientific American in 2010. Knowing this, Loftus has unsettlingly been able to create false memories of a childhood event that never occurred in 25% of test subjects (a MIT team was recently able to achieve something similar with mice). Even so-called “flashbulb memories,” those of traumatic events that produce a clear and lasting image, have been shown to deteriorate at the same rate as ordinary memory – they only SEEM more vivid.

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Unflappable Duke University researchers Jennifer Talarico and David Rubin somehow had the wherewithal to use the September 11, 2001 World Trade Center tragedy to show that memories of the terrible event were no more accurate 8 months later than everyday memories.

Loftus has spent much of her 40+ year career studying these subjects and trying to hammer them home to the American legal system. Her work and that of others helped inspire the Innocence Project, a non-profit organization founded in 1992 to help fight wrongful convictions with the use of DNA testing. In the last 20 years, the Project has exonerated over 300 people, 18 of whom had been sentenced to death. Loftus’ greatest victory to date came in July of 2012, when the New Jersey Supreme Court ordered that all jurors be informed, as part of standard procedure, of the fallibility of memory and eyewitness testimony. Loftus continues to work to see similar changes made in more states.

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Brian Banks (right) is just one of the wrongfully convicted people freed by the Innocence Project. He spent 5 years in jail for a rape he didn’t commit before being released. Image from thestory.org.

So hopefully we won’t have another Satanic panic like the one that erroneously locked up Paul Ingram around the turn of the 21st century. As detailed in Lawrence Wright’s account, Remembering Satan: A Tragic Case of Recovered Memory, Ingram was cajoled into developing false memories that HE HIMSELF had committed terrible ritualistic abuses of his own children, including things that couldn’t possibly have been true. Those memories had supposedly been “repressed,” as some alien abductee advocates claim of their own experiences, even though documentation of such a phenomenon is virtually non-existent in the psychological literature. Ingram was first arrested in 1988 and wasn’t released from prison until 2003.

Understanding Better Than Seeing

There’s an old chestnut that says the American jury system is the worst good idea ever. As we learn more about how we see the world around us and how that information is processed, the aphorism only becomes more poignant. But hey, as G.I. Joe says, knowing is half the battle. Now we can begin trying to fix it. No one should be punished for crimes they haven’t committed.