Criminal Testimonial Injustice

doi:10.29158/JAAPL.240065-24

By Jennifer Lackey. Oxford, U.K.: Oxford University Press, 2023. 209 pp. $80.00. E-book.Reviewed by Alexis Glomski, DO, and Susan Hatters Friedman, MD

In Criminal Testimonial Injustice, Jennifer Lackey guides the reader through testimonial injustices that occur from the beginning of the criminal process in the interrogation room to the final stages in front of parole boards and how they affect suspects, defendants, witnesses, and victims. Although the detailed explanations can be tedious and redundant, Lackey excels at connecting the practical and philosophical concepts through use of stimulating case examples.

Lackey describes “agential testimonial injustice” as occurring when the way that testimony is extracted bypasses, exploits, or subverts the defendant’s own agency, and yet that testimony is considered with an unwarranted excess of credibility. If another party is given undue credibility, that can also result in agential testimonial injustice to an individual because the individual’s own testimony is then regarded as less truthful by comparison. She uses cases of shaken baby syndrome to demonstrate the excess of credibility that is sometimes given to experts and describes how, in some cases, experts testify that an infant’s presentation was shaken baby syndrome based on ipse dixit conclusions rather than medical science. Despite this, these experts still were granted unwarranted credibility and tended to be believed more than extensive evidence to the contrary.

In the introduction of the book, Lackey discusses a case of false confession and the case that inspired her to write this book. Demetrius Cunningham was a 15-year-old Black boy brought to the police station as a witness so that he could identify suspects in a lineup. He was separated from his father and interrogated for 12 hours by multiple white officers without an attorney present and ultimately confessed that he had murdered an elderly woman. He recanted his confession upon reuniting with his father. Despite a lack of physical evidence to connect him to the crimes, he was convicted and sentenced to 80 years in prison based largely on his false confession. Lackey dedicates a chapter to discussing false confessions and recantations, specifically the unwarranted excess of credibility given to confession and the criticism and dismissal of recantations.

Eyewitness misidentification remains the strongest factor contributing to wrongful convictions that are later proven to be erroneous by deoxyribonucleic acid (DNA) testing. Lackey introduces a thoughtful discussion of how the interrogation tactics that produce false confessions also produce false accusations. Like with false confessions, this testimony is then given excessive credibility despite knowledge about the tactics used and concerns about the reliability of eyewitness testimony as evidence. The well known case of Cathleen Crowell Webb is used to illustrate this. When she was 16, Ms. Webb accused Gary Dotson of abducting and raping her. Eight years later, she recanted her testimony and admitted that she fabricated the accusation, afraid of a possible pregnancy from another, consensual, sexual relationship. Despite this, the judge found her teenage trial testimony to be more credible than her recantation. Years later, Mr. Dotson would become the first person in the United States to be exonerated based on DNA evidence.

Lackey criticizes plea bargains for being coercive. One concept Lackey uses to demonstrate this is the “trial penalty” or the substantial difference between the sentence received when a defendant opts for a trial versus that offered through a plea deal. This is exemplified by the case of Eric Weakley and Michael Hash, who were teenagers accused of murdering an elderly woman. Police pursued Mr. Weakley, who had a reputation as a follower and someone who could be easily intimidated, until his employer fired him. He submitted to a polygraph, which he failed. He then confessed to the murder. He was offered a plea deal to testify against Mr. Hash and plead guilty to second-degree murder, a charge that carried at most 20 years behind bars, or he could face life in prison. He took the deal and served just over six years in prison. In contrast, Mr. Hash rejected plea deals stating that he would not admit to something he did not do. He went to trial, was found guilty, and was sentenced to life in prison. Five years after Mr. Weakley’s release from prison, he formally recanted his confession and testimony against Mr. Hash. He stated, “All the information I gave at trial about the crime scene was given to me during interviews with police and prosecutors” (Ref. 1, p 128). Mr. Hash’s conviction was later voided; Senior U.S. District Judge James C. Turk cited “outrageous” police and prosecutorial misconduct (Ref. 1, p 128).

Lackey describes how biases and prejudice about race and gender both cause and exacerbate agential testimonial injustice. One striking example of this is that, contrary to the false confessions discussed earlier, the credibility of victims of sexual assault is discounted when they report the assault but elevated when they recant their report. Further, the credibility given to eyewitness testimony is greater when the suspect is Black and the even greater when the victim is White.

Finally, Lackey discusses how agential testimonial injustice occurs in the later stages of the criminal legal process, when admissions of guilt and expressions of remorse may be extracted from innocent individuals at sentencing and parole board hearings. Defendants may be instructed about what to say and how during allocution and in front of parole boards. The defendant is expected to admit guilt and express an appropriate amount of remorse. If these expectations are not followed, the defendant receives a harsher sentence.

In summary, many of the assertions in this book are not novel to those exposed to the criminal justice system, but the reader is given a fresh look at the way these testimonial injustices occur and their consequences. This book would be useful to forensic psychiatrists, other mental health professionals, attorneys, judges, and law enforcement personnel seeking to increase their understanding of biases.