THE BLOG
03/23/2015 11:34 am ET Updated May 23, 2015

What #TheDress Says About Eyewitness Misidentification

If you have spent any time on social media in the last month, you have likely been inundated with images and analysis of #TheDress.

If you don't know what I'm talking about, an image of a dress that is very clearly royal blue and black in real life has gone viral. The exposure of the picture is such that it has divided viewers into two categories: Those who see it as blue and black, and those who see it as white and gold. If you see a true image of the dress, it is hard to imagine how anyone could ever perceive it as white and gold; however, the viral image is much less clear.

Experts have weighed in on the phenomenon, saying that our brains process colors in context, a term known as "color constancy." For example, if the pinkish hue of light in the sunset falls on a white blouse, the blouse will itself take on a pinkish hue; however, because of context and color constancy, we still see the blouse as white. In terms of #TheDress, how we see the color depends upon how our brains process the context. Neuroscientist Bevil Conway explains the phenomenon to Wired:

What's happening here is your visual system is looking at this thing, and you're trying to discount the chromatic bias of the daylight axis, so people either discount the blue side, in which case they end up seeing white and gold, or discount the gold side, in which case they end up with blue and black.

Right now, you may be asking yourself why a criminal defense attorney would give a damn about a dress. While I have little interest in fashion, I'm definitely concerned with psychology, human nature, and the impact each has on the reliability of eyewitness testimony... and what that testimony can mean for my clients.

The dress is blue and black. That is a fact clearly discernible from later evidence. However, prior to this "new evidence" being discovered, there were at least two camps: those who saw the dress as blue/black and those who saw it as white/gold. Each side was adamant that it was correct. Of course, there were also those who saw something else entirely: blue/orange, white/tan, blue/brown, and so forth.

So, if the description of a single dress -- a still image -- can be so polarizing, what does this say about eyewitness identification and memory of an event that likely occurred in a traumatic situation?

According to The Innocence Project, "Eyewitness misidentification is the greatest contributing factor to wrongful convictions, playing a role in about 75 percent of convictions overturned through DNA testing nationwide." The Innocence Project reports that since 1989, the group has obtained exoneration of 321 people through post-conviction DNA testing. That means 241 of those were sent to prison largely because of eyewitness misidentification.

In a 2012 TED talk, forensic psychologist and expert witness Scott Fraser explains "Why Eyewitnesses Get it Wrong." He states that human memory "abhors a vacuum," and wherever there is a gap in the memory of an event, the brain likes to fill it in with other information:

Below awareness, with no requirement for any kind of motivated processing, the brain fills in information that was not there, not originally stored, from inference, from speculation, from sources of information that came to you, as the observer, after the observation.

Fraser tells the tale of a man who spent 21 years in prison after being convicted of a drive-by shooting based on eyewitness identification from the victim's sons. Both boys identified the shooter as a neighbor their father had warned them to stay away from; however, the boys could not have actually seen the driver because of the darkness of the night, the speed of the assault, and the distance of the vehicle. Rather, their memories reconstructed the eyewitness identification from the warning they had received about a "dangerous" man.

In another TED talk, false memory scholar Elizabeth Loftus writes that convictions based on eyewitness testimony stem from a flawed belief about how human memory works. She describes memory as follows:

[M]any people believe that memory works like a recording device. You just record the information, then you call it up and play it back when you want to answer questions or identify images. But decades of work in psychology has shown that this just isn't true. Our memories are constructive. They're reconstructive. Memory works a little bit more like a Wikipedia page: You can go in there and change it, but so can other people.

Loftus also explains how people described a video of a car crash scene differently depending on the questions they were asked about it. For example, if the viewers were asked how fast the cars were traveling before they "smashed" into each other, they described a faster rate of speed than if they were simply asked how fast the cars were traveling prior to the accident. Similarly, if the interview alluded to the presence of a yield sign, viewers were adamant that there was a yield sign visible in the video -- not a stop sign as was actually the case.

Loftus and her researchers were also able to plant reconstructed personal memories in the minds of 25 percent of people participating in a study. In other words, they convinced test subjects that something happened to them which never actually occurred -- a phenomenon that has been supported by numerous studies:

In one of the first studies we did, we used suggestion, a method inspired by the psychotherapy we saw in these cases, we used this kind of suggestion and planted a false memory that when you were a kid, five or six years old, you were lost in a shopping mall. You were frightened. You were crying. You were ultimately rescued by an elderly person and reunited with the family. And we succeeded in planting this memory in the minds of about a quarter of our subjects. And you might be thinking, well, that's not particularly stressful. But we and other investigators have planted rich false memories of things that were much more unusual and much more stressful. So in a study done in Tennessee, researchers planted the false memory that when you were a kid, you nearly drowned and had to be rescued by a lifeguard. And in a study done in Canada, researchers planted the false memory that when you were a kid, something as awful as being attacked by a vicious animal happened to you, succeeding with about half of their subjects. And in a study done in Italy, researchers planted the false memory, when you were a kid, you witnessed demonic possession.

If memory is so flexible and easily swayed by the context of one's personal history and outside influences -- a patchwork of experiences rather than a recording of actual events -- doesn't it seem dangerous that courts rely so heavily on eyewitness testimony in criminal prosecutions?