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The murder happened a little over 21 years ago,

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January the 18th, 1991,

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in a small

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bedroom community

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of Lynwood, California, just a few miles

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southeast of Los Angeles.

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A father came out of his house

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to tell his teenage son and his five friends

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that it was time for them to stop horsing around

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on the front lawn and on the sidewalk,

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to get home, finish their schoolwork,

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and prepare themselves for bed.

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And as the father was administering these instructions,

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a car drove by, slowly,

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and just after it passed the father and the teenagers,

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a hand went out from the front passenger window,

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and -- "Bam, Bam!" -- killing the father.

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And the car sped off.

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The police,

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investigating officers, were amazingly efficient.

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They considered all the usual culprits,

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and in less than 24 hours, they had selected their suspect:

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Francisco Carrillo, a 17-year-old kid

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who lived about two or three blocks away

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from where the shooting occurred.

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They found photos of him. They prepared a photo array,

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and the day after the shooting,

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they showed it to one of the teenagers, and he said,

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"That's the picture.

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That's the shooter I saw that killed the father."

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That was all a preliminary hearing judge had

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to listen to, to bind Mr. Carrillo over to stand trial

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for a first-degree murder.

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In the investigation that followed before the actual trial,

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each of the other five teenagers was shown

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photographs, the same photo array.

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The picture that we best can determine was probably

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the one that they were shown in the photo array

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is in your bottom left hand corner of these mug shots.

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The reason we're not sure absolutely is because

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of the nature of evidence preservation

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in our judicial system,

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but that's another whole TEDx talk for later. (Laughter)

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So at the actual trial,

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all six of the teenagers testified,

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and indicated the identifications they had made

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in the photo array.

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He was convicted. He was sentenced to life imprisonment,

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and transported to Folsom Prison.

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So what's wrong?

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Straightforward, fair trial, full investigation.

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Oh yes, no gun was ever found.

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No vehicle was ever identified as being the one

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in which the shooter had extended his arm,

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and no person was ever charged with being the driver

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of the shooter's vehicle.

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And Mr. Carrillo's alibi?

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Which of those parents here in the room might not lie

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concerning the whereabouts of your son or daughter

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in an investigation of a killing?

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Sent to prison,

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adamantly insisting on his innocence,

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which he has consistently for 21 years.

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So what's the problem?

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The problems, actually, for this kind of case

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come manyfold from decades of scientific research

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involving human memory.

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First of all, we have all the statistical analyses

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from the Innocence Project work,

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where we know that we have, what,

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250, 280 documented cases now where people have

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been wrongfully convicted and subsequently exonerated,

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some from death row, on the basis of later DNA analysis,

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and you know that over three quarters of all of those cases

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of exoneration involved only eyewitness identification

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testimony during the trial that convicted them.

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We know that eyewitness identifications are fallible.

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The other comes from an interesting aspect

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of human memory that's related to various brain functions

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but I can sum up for the sake of brevity here

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in a simple line:

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The brain abhors a vacuum.

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Under the best of observation conditions,

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the absolute best,

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we only detect, encode and store in our brains

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bits and pieces of the entire experience in front of us,

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and they're stored in different parts of the brain.

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So now, when it's important for us to be able to recall

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what it was that we experienced,

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we have an incomplete, we have a partial store,

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and what happens?

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Below awareness, with no requirement for any kind of

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motivated processing, the brain fills in information

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that was not there,

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not originally stored,

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from inference, from speculation,

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from sources of information that came to you,

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as the observer, after the observation.

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But it happens without awareness such that

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you don't, aren't even cognizant of it occurring.

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It's called reconstructed memories.

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It happens to us in all the aspects of our life, all the time.

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Let me ask you to consider the horrific events of 9/11.

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Think about when you first got the information

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about this catastrophe, how you felt,

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and more importantly,

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when was the first time you saw the second trade tower

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implode and collapse

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after the first trade tower had gone down?

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If you're like most Americans, myself included,

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you have a very clear memory that you saw the first tower

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come down and then you saw the second tower

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finally collapse, after the other plane crashed into it,

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within an hour or two afterwards.

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I remember vividly where I was.

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I was down at LAX at the satellite terminal

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for American Airlines

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waiting to get on an airplanes to fly to San Diego,

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and of course all the air traffic was ceased.

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And so I had nothing to do but to sit and watch

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the television monitors with all of the news broadcasts

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over and over and over again

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of the horrendous events.

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And I know I saw that second trade tower come down

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an hour or two after the first.

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And all of the research we have indicates that

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most Americans too, except for a few people who happen

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to live in certain places in New York, right?

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And you know something?

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That's a totally false memory.

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It could not be something you experienced.

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There was absolutely no media footage

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of the second trade tower collapsing

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until over 24 hours after the event.

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But in fact, you know, intellectually, cognitively,

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that they did occur fairly close in time,

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you did know about and see the first one,

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you did see the second one,

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but you didn't see it until over a day later at the earliest,

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but the brain, without you being aware,

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has pulled them together,

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and you believe you saw them very close in time.

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It is a reconstructed memory,

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not an accurate memory,

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no matter how vivid, no matter how sure you are.

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It was those two considerations among others,

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reconstructive memories,

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the fact about the eyewitness fallibility,

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that was part of the instigation

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for a group of appeal attorneys

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led by an amazing lawyer named Ellen Eggers

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to pool their experience and their talents together

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and petition a superior court

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for a retrial for Francisco Carrillo.

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They retained me, as a forensic neurophysiologist,

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because I had expertise

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in eyewitness memory identification,

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which obviously makes sense for this case, right?

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But also because I have expertise and testify about

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the nature of human night vision.

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Well, what's that got to do with this?

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Well, when you read through the case materials

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in this Carrillo case,

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one of the things that suddenly strikes you is that

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the investigating officers said the lighting was good

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at the crime scene, at the shooting.

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All the teenagers testified during the trial

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that they could see very well.

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But this occurred in mid-January,

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in the Northern Hemisphere, at 7 p.m. at night.

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So when I did the calculations

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for the lunar data and the solar data

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at that location on Earth at the time of the incident

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of the shooting, all right,

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it was well past the end of civil twilight

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and there was no moon up that night.

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So all the light in this area from the sun and the moon

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is what you see on the screen right here.

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The only lighting in that area had to come

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from artificial sources,

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and that's where I go out and I do the actual reconstruction

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of the scene with photometers, with various measures

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of illumination and various other measures of

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color perception, along with special cameras

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and high speed film, right?

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Take all the measurements and record them, right?

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And then take photographs, and this is what the scene

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looked like at the time of the shooting

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from the position of the teenagers

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looking at the car going by and shooting.

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This is looking directly across the street

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from where they were standing.

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Remember, the investigating officers' report said

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the lighting was good.

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The teenagers said they could see very well.

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This is looking down to the east,

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where the shooting vehicle sped off,

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and this is the lighting directly behind the father

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and the teenagers.

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As you can see, it is at best poor.

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No one's going to call this well-lit, good lighting,

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and in fact, as nice as these pictures are,

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and the reason we take them is I knew I was going to have to testify in court,

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and a picture is worth more than a thousand words

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when you're trying to communicate numbers,

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abstract concepts like lux, the international measurement

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of illumination, the Ishihara color perception test values.

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When you present those to people who are not well-versed

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in those aspects of science and that, they become

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salamanders in the noonday sun. It's like

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talking about the tangent of the visual angle, all right?

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Their eyes just glaze over, all right?

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A good forensic expert also has to be a good educator,

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a good communicator, and that's part of the reason

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why we take the pictures, to show not only

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where the light sources are, and what we call the spill,

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the distribution, but also so that it's easier

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for the trier of fact to understand the circumstances.

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So these are some of the pictures that, in fact,

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I used when I testified,

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but more importantly were, to me as a scientist,

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are those readings, the photometer readings,

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which I can then convert into actual predictions

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of the visual capability of the human eye

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under those circumstances,

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and from my readings that I recorded at the scene

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under the same solar and lunar conditions

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at the same time, so on and so forth, right,

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I could predict

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that there would be no reliable color perception,

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which is crucial for face recognition,

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and that there would be only scotopic vision,

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which means there would be very little resolution,

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what we call boundary or edge detection,

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and that furthermore, because the eyes would have been

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totally dilated under this light, the depth of field,

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the distance at which you can focus and see details,

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would have been less than 18 inches away.

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I testified to that to the court,

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and while the judge was very attentive,

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it had been a very, very long hearing

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for this petition for a retrial, and as a result,

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I noticed out of the corner of my eye

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that I thought that maybe the judge was going to need

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a little more of a nudge

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than just more numbers.

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And here I became a bit audacious,

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and I turned

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and I asked the judge,

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I said, "Your Honor, I think you should go out

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and look at the scene yourself."

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Now I may have used a tone which was more like a dare

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than a request — (Laughter) —

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but nonetheless, it's to this man's credit and his courage

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that he said, "Yes, I will."

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A shocker in American jurisprudence.

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So in fact, we found the same identical conditions,

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we reconstructed the entire thing again,

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he came out with an entire brigade of sheriff's officers

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to protect him in this community, all right? (Laughter)

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We had him stand actually slightly in the street,

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so closer to the suspect vehicle, the shooter vehicle,

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than the actual teenagers were,

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00:14:03,494 --> 00:14:05,869
so he stood a few feet from the curb

265
00:14:05,869 --> 00:14:08,524
toward the middle of the street.

266
00:14:08,524 --> 00:14:11,618
We had a car that came by,

267
00:14:11,618 --> 00:14:16,129
same identical car as described by the teenagers, right?

268
00:14:16,129 --> 00:14:18,390
It had a driver and a passenger,

269
00:14:18,390 --> 00:14:22,069
and after the car had passed the judge by,

270
00:14:22,069 --> 00:14:25,376
the passenger extended his hand,

271
00:14:25,376 --> 00:14:29,911
pointed it back to the judge as the car continued on,

272
00:14:29,911 --> 00:14:32,396
just as the teenagers had described it, right?

273
00:14:32,396 --> 00:14:35,063
Now, he didn't use a real gun in his hand,

274
00:14:35,063 --> 00:14:37,724
so he had a black object in his hand that was similar

275
00:14:37,724 --> 00:14:40,059
to the gun that was described.

276
00:14:40,059 --> 00:14:42,629
He pointed by, and this is what the judge saw.

277
00:14:42,629 --> 00:14:50,084
This is the car 30 feet away from the judge.

278
00:14:50,084 --> 00:14:52,390
There's an arm sticking out of the passenger side

279
00:14:52,390 --> 00:14:54,651
and pointed back at you.

280
00:14:54,651 --> 00:14:57,092
That's 30 feet away.

281
00:14:57,092 --> 00:14:58,937
Some of the teenagers said that in fact the car

282
00:14:58,937 --> 00:15:01,296
was 15 feet away when it shot.

283
00:15:01,296 --> 00:15:06,314
Okay. There's 15 feet.

284
00:15:06,314 --> 00:15:08,802
At this point, I became a little concerned.

285
00:15:08,802 --> 00:15:14,506
This judge is someone you'd never want to play poker with.

286
00:15:14,506 --> 00:15:18,250
He was totally stoic. I couldn't see a twitch of his eyebrow.

287
00:15:18,250 --> 00:15:21,494
I couldn't see the slightest bend of his head.

288
00:15:21,494 --> 00:15:25,103
I had no sense of how he was reacting to this,

289
00:15:25,103 --> 00:15:27,960
and after he looked at this reenactment,

290
00:15:27,960 --> 00:15:29,315
he turned to me and he says,

291
00:15:29,315 --> 00:15:32,158
"Is there anything else you want me to look at?"

292
00:15:32,158 --> 00:15:33,174
(Laughter)

293
00:15:33,174 --> 00:15:37,211
I said, "Your honor," and I don't know whether I was

294
00:15:37,211 --> 00:15:39,737
emboldened by the scientific measurements that I had

295
00:15:39,737 --> 00:15:43,803
in my pocket and my knowledge that they are accurate,

296
00:15:43,803 --> 00:15:46,120
or whether it was just sheer stupidity,

297
00:15:46,120 --> 00:15:48,847
which is what the defense lawyers thought — (Laughter) —

298
00:15:48,847 --> 00:15:51,153
when they heard me say,

299
00:15:51,153 --> 00:15:53,415
"Yes, Your Honor, I want you stand right there

300
00:15:53,415 --> 00:15:57,071
and I want the car to go around the block again

301
00:15:57,071 --> 00:16:00,739
and I want it to come and I want it to stop

302
00:16:00,739 --> 00:16:05,385
right in front of you, three to four feet away,

303
00:16:05,385 --> 00:16:08,434
and I want the passenger to extend his hand

304
00:16:08,434 --> 00:16:10,886
with a black object and point it right at you,

305
00:16:10,886 --> 00:16:15,669
and you can look at it as long as you want."

306
00:16:15,669 --> 00:16:21,744
And that's what he saw. (Laughter)

307
00:16:21,744 --> 00:16:24,554
You'll notice, which was also in my test report,

308
00:16:24,554 --> 00:16:27,290
all the dominant lighting is coming from the north side,

309
00:16:27,290 --> 00:16:28,624
which means that the shooter's face would

310
00:16:28,624 --> 00:16:31,163
have been photo-occluded. It would have been backlit.

311
00:16:31,163 --> 00:16:33,620
Furthermore, the roof of the car

312
00:16:33,620 --> 00:16:37,989
is causing what we call a shadow cloud inside the car

313
00:16:37,989 --> 00:16:40,595
which is making it darker.

314
00:16:40,595 --> 00:16:46,634
And this is three to four feet away.

315
00:16:46,634 --> 00:16:48,137
Why did I take the risk?

316
00:16:48,137 --> 00:16:52,368
I knew that the depth of field was 18 inches or less.

317
00:16:52,368 --> 00:16:54,541
Three to four feet, it might as well have been

318
00:16:54,541 --> 00:16:57,624
a football field away.

319
00:16:58,961 --> 00:17:00,867
This is what he saw.

320
00:17:00,867 --> 00:17:04,530
He went back, there was a few more days of evidence

321
00:17:04,530 --> 00:17:07,691
that was heard. At the end of it,

322
00:17:07,691 --> 00:17:09,695
he made the judgment that he was going to grant

323
00:17:09,695 --> 00:17:12,259
the petition for a retrial.

324
00:17:12,259 --> 00:17:15,511
And furthermore, he released Mr. Carrillo

325
00:17:15,511 --> 00:17:18,143
so that he could aid in the preparation of his own defense

326
00:17:18,143 --> 00:17:24,688
if the prosecution decided to retry him.

327
00:17:24,688 --> 00:17:26,795
Which they decided not to.

328
00:17:26,795 --> 00:17:31,370
He is now a freed man. (Applause)

329
00:17:31,370 --> 00:17:35,221
(Applause)

330
00:17:35,221 --> 00:17:40,498
This is him embracing his grandmother-in-law.

331
00:17:40,498 --> 00:17:44,621
He -- His girlfriend was pregnant when he went to trial,

332
00:17:44,621 --> 00:17:48,474
right? And she had a little baby boy.

333
00:17:48,474 --> 00:17:51,703
He and his son are both attending Cal State Long Beach

334
00:17:51,703 --> 00:17:54,692
right now taking classes. (Applause)

335
00:17:54,692 --> 00:17:58,046
(Applause)

336
00:17:58,046 --> 00:18:02,273
And what does this example --

337
00:18:02,273 --> 00:18:06,707
what's important to keep in mind for ourselves?

338
00:18:06,707 --> 00:18:09,466
First of all, there's a long history of antipathy

339
00:18:09,466 --> 00:18:11,787
between science and the law

340
00:18:11,787 --> 00:18:14,357
in American jurisprudence.

341
00:18:14,357 --> 00:18:18,025
I could regale you with horror stories of ignorance

342
00:18:18,025 --> 00:18:22,289
over decades of experience as a forensic expert

343
00:18:22,289 --> 00:18:26,378
of just trying to get science into the courtroom.

344
00:18:26,378 --> 00:18:31,200
The opposing council always fight it and oppose it.

345
00:18:31,200 --> 00:18:34,586
One suggestion is that all of us become much more

346
00:18:34,586 --> 00:18:37,635
attuned to the necessity, through policy,

347
00:18:37,635 --> 00:18:40,796
through procedures,

348
00:18:40,796 --> 00:18:43,317
to get more science in the courtroom,

349
00:18:43,317 --> 00:18:45,319
and I think one large step toward that

350
00:18:45,319 --> 00:18:47,153
is more requirements,

351
00:18:47,153 --> 00:18:50,179
with all due respect to the law schools,

352
00:18:50,179 --> 00:18:54,793
of science, technology, engineering, mathematics

353
00:18:54,793 --> 00:18:56,161
for anyone going into the law,

354
00:18:56,161 --> 00:18:59,476
because they become the judges.

355
00:18:59,476 --> 00:19:03,341
Think about how we select our judges in this country.

356
00:19:03,341 --> 00:19:07,316
It's very different than most other cultures. All right?

357
00:19:07,316 --> 00:19:09,457
The other one that I want to suggest,

358
00:19:09,457 --> 00:19:11,452
the caution that all of us have to have,

359
00:19:11,452 --> 00:19:13,545
I constantly have to remind myself,

360
00:19:13,545 --> 00:19:16,425
about just how accurate are the memories

361
00:19:16,425 --> 00:19:22,748
that we know are true, that we believe in?

362
00:19:22,748 --> 00:19:26,066
There is decades of research,

363
00:19:26,066 --> 00:19:29,717
examples and examples of cases like this,

364
00:19:29,717 --> 00:19:31,850
where individuals

365
00:19:31,850 --> 00:19:35,067
really, really believe. None of those teenagers

366
00:19:35,067 --> 00:19:37,384
who identified him

367
00:19:37,384 --> 00:19:40,075
thought that they were picking the wrong person.

368
00:19:40,075 --> 00:19:43,281
None of them thought they couldn't see the person's face.

369
00:19:43,281 --> 00:19:45,665
We all have to be very careful.

370
00:19:45,665 --> 00:19:49,250
All our memories are reconstructed memories.

371
00:19:49,250 --> 00:19:51,741
They are the product of what we originally experienced

372
00:19:51,741 --> 00:19:54,417
and everything that's happened afterwards.

373
00:19:54,417 --> 00:19:56,531
They're dynamic.

374
00:19:56,531 --> 00:19:59,164
They're malleable. They're volatile,

375
00:19:59,164 --> 00:20:03,894
and as a result, we all need to remember to be cautious,

376
00:20:03,894 --> 00:20:06,111
that the accuracy of our memories

377
00:20:06,111 --> 00:20:10,704
is not measured in how vivid they are

378
00:20:10,704 --> 00:20:15,164
nor how certain you are that they're correct.

379
00:20:15,164 --> 00:20:18,430
I'm sure I saw the second trade tower collapse

380
00:20:18,430 --> 00:20:21,186
an hour later,

381
00:20:21,186 --> 00:20:25,585
but I know it could not have happened.

382
00:20:25,585 --> 00:20:30,217
Thank you. (Applause)