Your Memory Does Not Work Like TiVo! by Benjamin Hand-Bender

Benjamin Hand-Bender J.D. Candidate 2018 University of Colorado

Justice Frankfurter wrote in 1927 that

What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy.[1]

During the early 19th century, mistaken identification by eyewitness was widely recognized as the leading cause of wrongful convictions in the U.S.[2] Unfortunately, this trend does not seem to have changed in the last century.

The Innocence Project estimates that of the 349[3] wrongful convictions of defendants it has worked to exonerate, “[e]yewitness misidentification is greatest contributing factor to wrongful convictions proven by DNA testing . . . .”[4] The Supreme Court has recognized the seriousness of the issue, stating that eyewitness misidentification “probably accounts for more miscarriages of justice than any other single factor.”[5]

Yet federal courts’ analyses of eyewitness identification of due process have not been sufficient to protect innocent defendants from wrongful conviction. In Neil v. Bigger, the Court recognized that the primary evil to be avoided is “very substantial likelihood of irreparable misidentification.”[6] Despite this dictum, the Court found that “show-up” identifications can still meet requirements for due process and it rejected a strict exclusion of suggestive identifications. The Court detailed what it factors it viewed as relative to determining if eyewitness identification procedures were adequate to ensure that due process of the criminal defendant was afforded.[7] Unfortunately, these “factors” are not founded in science, and in fact represent many of the lay assumptions about the brain and memory formation, retention and recall.[8]

Courts and laypeople alike tend to perceive of human memory as a straightforward, linear process:[9]

The expectation is that memories are stored like TiVo recordings. and that witnesses can retrieve them at will. That the quality of witness identification and testimony are dependent only on the credibility of the individual offering it. Conversely, neuroscience has shown that eyewitnesses are generally unreliable—due to the complexity and frailty of the brain, racial differences between witnesses and those they identify, stress during memory formation, and other factors.[10] Furthermore, human memory is highly susceptible to external factors, and thus our memories change over time.[11] Despite this unreliability, many jurisdictions do not allow expert testimony on the neuroscience of memory and the unreliability of eyewitness testimony.[12]

Yet the courts have yet to incorporate a nuanced understanding of the human brain—and how the mind is in fact a complex network of independent and overlapping neural processes. Contrary to lay-perceptions, fMRI scans demonstrate that different parts of the brain are responsible for the different “phases” of memory creation:[13]

The fact that various processes and parts of the brain is simply one demonstration that the acts of creating (encoding), keeping (maintenance), and retrieval (remembering) a memory are not identical, and various genetic, physical, and environmental factors can have different effects on these distinct neural processes.[14] Moreover, the type of memory one is attempting to recall employs different parts of the brain and neural processes:[15]

This neuroscience finding directly challenges a common lay perception on memory: that all memories are created equal. In fact, whether you are recalling something you were not paying attention to, compared to something you are familiar with or found novel, it is actually different parts of the brain that activate.[16] Additionally, it has been well-established that memory retention is different for formaiton of short-term memory (STM), immediate-term memory (ITM), anesthesia-resistant memory (ARM), and long-term memory (LTM).[17]  The last of which, LTM, is most commonly relied upon in eyewitness identification and requires repetitive mental training and only develops after several hours:[18]

Thus, while the field of neuroscience is expanding its tools and findings, the criminal courtroom has yet to catch up. Potential jurors still typically believe that your mind can play back what you previously experience like a video recording, that your memory is stable over time, that confidence in your memory is correlated to accuracy, that subsequent events do not alter your prior memories, and that people’s faces stand out and can easily be recognized.[19] Yet, the majority of qualified memory experts reject every single one of these statements:[20]

Currently, the “reason most frequently cited by courts for excluding expert testimony is that expert testimony regarding the accuracy of identifications usurps the role of the jury as the sole judge of the credibility of witnesses.”[21] Given the terrifying frequency and centrality of eyewitness identification in wrongful convictions over the last one hundred years, it is time for all jurisdictions to allow scientists to give testimony on the credibility of witnesses’ identification and memory. Only permitting memory expertise in the courtroom will enable jurors to be fully informed when assessing witness credibility.




[1] United States v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 1933, 18 L. Ed. 2d 1149 (1967) (quoting The Case of Sacco and Vanzetti 30 (1927)).

[2] See e.g., Hugo Münsterberg 49–56 (1908); Edwin M. Borchard, Convicting the Innocent at xiii-xv (1932) (early case study finding that forty-four of the studied sixty-five wrongful convictions were based upon mistaken eyewitness identification); see also Joyce W. Lacy and Craig E. L. Stark, The Neuroscience of Memory: Implications for the Courtroom, 14 Nat. R. Neuroscience 649, 649-50 (discussing that empirical research studies have shown how imperfect human memory since 1885, and yet these conclusions have remained largely unrecognized in contemporary society).

[3] Innocence Project, (last visited Feb. 21, 2017).

[4] Innocence Project, (last visited Feb. 21, 2017).

[5] United States v. Wade, 388 U.S. 218, 229 (1967).

[6] Neil v. Biggers, 409 U.S. 188, 198-99 (1972).

[7] Id. at 199-00 (“the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.”)

[8] Ralph N. Haber & Lyn Haber, Experiencing, Remembering and Reporting Events, 6 Psychol. Pub. Pol’y  & L. 1057, 1057-58 (2000).

[9] Saul Mcleod, Stages of Memory Encoding Storage and Retrieval, Simple Psychology (2013) (last visited Aug. 6, 2016),

[10] Alex Kozinski. Criminal Law 2.0, 44 Geo. L.J. Ann. Rev. Crim. Proc., at iii-iv (2015) (author is a former judge on the United States Court of Appeals for the Ninth Circuit).

[11] Id. at vi-vii.

[12] Id. at iv.

[13] Timothy M. Ellmore, Fiona Rohlls & Faraz Khursheed, fMRI of working memory impairment after recovery from subarachnoid hemorrhage, 4 Frontiers in Neurology (article 179), Nov. 6, 2013, at 1, 6 fig.2.

[14] Brain Facts: A Primer on the Brain and Nervous System, Society of Neuroscience (Mar. 27, 20012),

[15] S.M Daselaar, M.S. Fleck, & R. Cabeza, Triple Dissociation in the Medial Temporal Lobes: Recollection, Familiarity, and Novelty, 96 J. Neurophysiology 1902, 1906 fig.1 (2006).

[16] Elizabeth Loftus, Our Changeable Memories: legal and practical implications, 4(5) Nature R. Neuroscience 231, 231-34 (2003).

[17] Tim Tully, et al., Targeting the Creb Pathway for Memory Enhancers, 2 Nature Reviews 267, 269 fig.1 (2003).

[18] Id. at 269.

[19] Haber & Haber, supra note 8, at 1057–58.

[20] Id. at 1058.

[21] Henry F. Fradella, Why Judges Should Admit Expert Testimony on the Unreliability of Eyewitness Testimony, 2 Fed. Cts. L. Rev. 1, 21 (2007).


3D-Printed Problem: Regulating 3D-Printed Firearms by Diane Sung

Diane Sung
J.D. Candidate 2018
University of Colorado


The history of 3D printing begins as early as 1983 when Charles Hull first invented “stereolithography” (SLA), the process behind 3D printers.[1]  In 1986, Hull founded 3D Systems and developed the first commercial 3D printer, SLA-1.[2]  Since then, the technology has continued to develop and advance, with a wide range of uses and increasing popularity among consumers.  Among those uses is the ability to 3D print firearms, which has created a growing need for new regulations.  However, regulatory response may favor public safety and national security concerns over protecting constitutional rights.  Though those concerns have merit, diminishing constitutional rights would be an unfortunate response and a better approach would be for lawmakers to work within the bounds of the Constitution.


The Future of Manufacturing                                                                                                                        

In recent years, 3D printers have created some incredible products that demonstrate the incredible capabilities of this technology:

  • November 2010 – The “Urbee,” a prototype for the first car to have a 3D printed body, is completed.[3]
  • July 2011 – The Southhampton University Laser Sintered Aircraft (SULSA), the first aircraft to have an entirely 3D-printed body is announced and later flown.[4]
  • February 2012 – The world’s first 3D-printed lower jaw implant is created and later successfully implanted in an 83-year-old patient.[5]
  • May 2013 – The “Liberator,” the world’s first fully 3D-printed gun, is created.[6]
  • January 2014 – SpaceX successfully launches its Falcon 9 rocket with a 3D-printed valve.[7]
  • January 2015 – A five-story apartment building comprised primarily of 3D printed parts, is built in China by WinSun, a Chinese construction company.[8]


Online Blueprints & Government Response

By using digital files as “blueprints” for various objects, 3D printers have numerous capabilities such as those listed above.[9]  Online resources like Thingiverse provide platforms for open-source software where users can share their blueprint files for 3D printing.[10]  Although 3D printing has many positive uses, the introduction of the 3D-printed gun has been controversial.  In 2013, a company named Defense Distributed created the “Liberator,” the first 3D-printed gun.[11]  The group then released the blueprints for the 3D-printed gun online, making them available to the public.[12]  Despite the State Department’s demands to remove the blueprints, over 100,000 people have already downloaded them.[13]

Under the 1988 Undetectable Firearms Act, it is illegal for anyone to “manufacture, import, sell, ship, deliver possess, transfer, or receive any firearm” that is undetectable by metal detectors or x-ray machines.[14]  In December 2013, the Senate approved the ten-year extension of the 1988 Undetectable Firearms Act that was set to expire.[15]  Two New York Senators, Steve Israel and Chuck Schumer, sought to expand the Act’s scope to better account for 3D-printed firearms.[16]  Their proposals would require the detectable metal component of any firearm to be a crucial and functional part.[17]  However, Republicans strongly opposed any efforts to expand the Act, and 3D-printed guns remain legal in the United States today.[18]


Regulating Under the Constitution

Today, the country remains deeply divided on the issue of gun control, and the introduction of 3D-printed guns complicates the issue.  With few safeguards in place to sufficiently regulate 3D-printed firearms, it is easy to view 3D-printed guns as a threat to the general public’s safety.  As 3D-printing technology continues to advance, current firearm regulations will likely be insufficient and the need for regulation will grow.  However, this may at times conflict with individual rights.[19]

Finding a solution for managing this new technology is far from simple and raises several constitutional issues:

  • Do 3D-model files constitute free speech protected by the 1st Amendment?[20]
  • Under the 2nd Amendment, do citizens have the right to privately create potentially unregulated guns?[21]
  • What impact would the regulation of 3D-printed guns have on an individual’s privacy rights under the 4thAmendment?[22]

These issues must be addressed in order to propose effective regulations and legislation.  Although regulation raises some constitutional concerns, leaving the expanded use of 3D printers and 3D-printed guns largely unregulated may also violate or infringe other rights, particularly in intellectual property.  For example, the copyright infringement issues around illegally downloaded music files could similarly affect the digital files needed for 3D printing.[23]  The increasing popularity and accessibility of 3D printers among general consumers will likely make unregulated 3D-printed guns a more prevalent and widespread issue.[24]  Strengthening existing laws, such as expanding the Undetectable Firearms Act, or implementing new regulations that better target the issues directly can help provide some controls over 3D-printed firearms without treading on constitutional rights.  The law needs to adapt to better address this advancing technology and the impact of its increasing private use, but should do so without weakening individual rights.


[1] The Journey of a Lifetime, 3D Systems, (last visited Sep. 15, 2016).

[2] Id.

[3] Tim Stevens, The Urbee Hybrid is the first car to come out of a printer, Engadget (Nov. 3, 2010),

[4] Ben Coxworth, World’s first ‘printed’ aircraft is flown, New Atlas (July 29, 2011),

[5] Transplant jaw made by 3D printer claimed as first, BBC News (Mar. 8, 2012),

[6] Andy Greenberg, Meet The ‘Liberator’: Test-Firing The World’s First Fully 3D-Printed Gun, Forbes (May 5, 2013, 5:30 PM),

[7] SpaceX Launches 3D-Printed Part to Space, Creates Printed Engine Chamber, SpaceX (July 31, 2014),

[8] Michelle Starr, World’s first 3D-printed apartment building constructed in China, CNET (Jan. 19, 2015, 7:05 PM PST),

[9] T. Rowe Price, 3D Printing Infographic,
Printing_Infographic_FINAL.pdf (last visited Jan. 28, 2017).

[10] Thingiverse, (last visited Jan. 28, 2017).

[11] Andy Greenberg, Meet The ‘Liberator’: Test-Firing The World’s First Fully 3D-Printed Gun, Forbes (May 5, 2013, 5:30 PM),

[12] Andy Greenberg, 3-D Printed Gun Lawsuit Starts the War Between Arms Control and Free Speech, Wired (May 6, 2015, 5:08 PM),

[13] Senator seeks to extend ban on ‘undetectable’ 3D-printed guns, The Guardian (Nov. 17, 2013, 9:20 EST),

[14] Undetectable Firearms Act of 1988, 102 Stat. 3816.

[15] Susan Davis, Congress extends plastic gun ban, USA Today (Dec. 9, 2013, 8:53 PM EST),

[16] Schumer Announces Support For Measure To Make 3D Printed Guns Illegal, CBS N.Y. (May 5, 2013, 12:17 PM),

[17] Andy Greenberg, Bill to Ban Undetectable 3D Printed Guns is Coming Back, Wired (April 6, 2015, 7:00 AM)

[18] Susan Davis, Congress extends plastic gun ban, USA Today (Dec. 9, 2013, 8:53 PM EST),

[19] Defense Distributed v. U.S. Dep’t of State, 838 F.3d 451 (5th Cir. Tex. 2016).

[20] See Barton Lee, Where Gutenberg Meets Guns: The Liberator, 3D-Printed Weapons, and the First Amendment, 92 N.C. L. Rev. 1393, 1393-1394 (2014).

[21] Josh Blackman, The 1st Amendment, 2nd Amendment, and 3D Printed Guns, 81 Tenn. L. Rev. 479, 490-492 (2014).

[22] See Julian J. Johnson, Print, Lock, and Load, 2 J. of Law, Tech., & Policy 337, 353 (2013).

[23] Anne Lewis, The Legality of 3D Printing: How Technology Is Moving Faster than the Law, 17 Tul. J. Tech. & Intell. Prop. 303, 315-317 (2014).

[24] Gartner Says Worldwide Shipments of 3D Printers to Reach More Than 490,000 in 2016, Gartner (Sep. 29, 2015),

Prisoners’ Reintegration in the Digital Age: A Cross-Cultural Analysis of Technology’s Presence, Function, and Utility in Both Retributive and Rehabilitative Justice Systems by Marissa Weber


Marissa Weber
J.D. Candidate 2019
University of Colorado

Dissimilar Criminal Justice Systems in Use Internationally

Criminal justice systems are not internationally uniform. Terrorism is one issue that demonstrates this principle. When terrorists attack and endanger a state, governments display distinct approaches and beliefs on how best to respond. Governments must develop answers for how and where to invest their punishment efforts, and whether retribution or rehabilitation is the correct path, or an enterprise in between. Perhaps there is an intuitive overlap between these two approaches. How a society answers these questions alludes to the public values it holds dear. The United States’ more retributive justice system and Norway’s more restorative and rehabilitative justice system, distant from each other on a punishment spectrum, manifest a strong comparative analysis to dissect criminal reintegration efforts. While the two countries’ self-identifications, as liberal democracies, for example, are similar, their relationships with and approaches to terrorism and other extreme crimes are deeply divergent. [1]

It is possible, and ordinary, for regions to function as allies while maintaining drastically contrasting political and adjudicative approaches. Both the United States and Norway self-identify as liberal democracies, strive to maintain social order, and regard their systems as just. Their stances reflect their public values in a more emic way than do their political self-identifications, digging deeper than broad, etic, interpretive concepts with which these regions identify, such as liberalism. These regions differ in their interpretations of what it means to be liberal, what it means to be a democracy, what social order entails, and of the application and permanency or immutability of human rights. Their dissimilar laws function as active processes through which people generate social meaning in order to give expression to their culturally distinct values.

While their differences are visible through political distinctions and recidivism rates, criminals re-entering society in both nations face a similar legal and technological struggle: a society more digitized than when they left it.[2]  Not only does a digital society pose an issue for criminals in both nations re-entering society because of culture shock and feeling disadvantaged, but also because it decreases the likelihood of securing a job, which increases the likelihood of reoffending and heightened recidivism rates.[3] The United States and Norway have distinct legal approaches to rectify this disparity that prevents smooth reintegration of criminals into society.


Revamping the Criminal Justice System: Technological Training

The immersion of inmates’ everyday lives in technology has the potential to be so pervasive, profitable, and motivating, specifically by providing inmates with a sense of purpose and hope. While the differences between retributive and rehabilitative justice systems are so vast that they have generated centuries-long, unresolved moral and ethical debates, advanced educational technology may be a resource that both justice systems proudly adopt.

Experiential and experimental technological programs have already manifested in prisons, beyond a rudimentary level. For example, California’s San Quentin State Prison supports one notable technological program: The Last Mile.[4] The Last Mile is an entrepreneurial initiative to connect inmates with the world of technology start-ups. The initiative created a program, Code 7370, that teaches inmates about computer programming and website building.

While these programs produce marketable tools, there are downsides as well. San Quentin prohibits internet access during Code 7370 classes, which limits inmates’ capacity to put their skills into effect.

However, the program is an experimental start to a potentially technology-fueled future, a future largely dependent on how such programs affect recidivism rates. A Corrections Corporation of America survey suggests only 12.5% of employers would review the application of someone with a criminal history.[5] This statistic stresses the importance of educational technology programs that may provide inmates one less thing to worry about as they reintegrate into society: interacting with an ever-evolving technological world. A former inmate of the California Department of Corrections and Rehabilitation, who did not have a technological education while incarcerated, shared the hardships of his reintegration into society, unaware of how phone booths had largely become décor.[6]

On the other side of the justice system spectrum, Norway’s Halden Prison, globally known to be the prison of “humaneness,” also experiments with technology implementations in their rehabilitation facilities for dangerous criminals, who require immersive and intense rehabilitation. One unique facility, Halden Prison, carries out rehabilitation through its mixing studio program. There, inmates can mix their own music and broadcast monthly on a local radio channel.[7] Norway’s recidivism rate for dangerous criminals is substantially lower than that of the United States’, and it is unclear what impact technology has on this rate in Norway.[8]


Drawbacks and Challenges

While it may be too soon to assess the cross-cultural impact of the implementation of technological programs in prisons, such programs’ potential challenges are quite clear. Laws often function as a reflection only of what a society is presently ready or prepared for. For example, neither the United States’ nor Norway’s societies are prepared for a justice system that permits inmates’ use of personal cell phones or access to the internet, since such unlimited use could lead to illegal activity and other freedoms.[9] When certain technologies are permitted, challenges arise in how to limit their use. There are many public policy considerations behind these policies that protect the public interest and safety.

This similar positioning can be seen through laws of both regions. For example, the United States’ Cell Phone Contraband Act of 2010 imposes penalties for the possession of such contraband. The Act alludes to “a phone or other device used by a user of commercial mobile service” (18 U.S.C. §1791). Similarly, Norway’s Regulations to the Execution of Sentences Act prohibit one from bringing a telephone or similar device into a prison, unless for training situations, for which “extraordinary need” is documented. Additionally, the Act prohibits prisoners from connecting to the internet. The bases of these penalties and regulations are security concerns, inappropriate usage of technology unrelated to self-betterment and/or education, and risk of isolation, all of which may nullify and reverse any positive efforts technology could produce for inmates. The world of technology is infinite and cavernous in its evolution, requiring a certain level of limitation of technology usage in corrections facilities.


Future Considerations

The United States and Norway have seemingly good reason to not provide inmates with extensive technological freedoms. However, it is also seemingly logical that inmates treated more humanely and given responsibility while incarcerated will be more prepared to re-enter society than inmates who are deprived of any connection to the evolving world. It will be revealing to see how far nations around the world, such as the United States and Norway, take the implementation of technology in their justice systems. The statistics on employment and recidivism rates for inmates reintegrating into society will inform us on whether technology has distinct effects within such distinct justice systems. Maybe technology will close the gap; like most things, a balance is needed.

On both sides of the current gap is an issue that extends to both regions’ cultures: money. In places like Texas’s Travis County Correctional Complex, technology is not being used as an educational, employable tool, but instead as a cost-efficient, impersonal instrument that seemingly benefits correctional facilities and burdens their inmates.[10] Digitized visitation allows inmates to “meet” with visitors through video-communication in their prison cells. While this visitation method expands visiting hours, cuts staffing costs, and reduces contraband, it also puts inmates at increased risk of isolation and mental health issues, which is counterproductive for motivating dangerous criminals to rehabilitate and reintegrate.[11]

This particular system has yet to reach Norway, and it is unknown whether it ever will. Regardless, it is evident that the use of technology in prisons, like anywhere else, is incomparably efficient for education, productive for interacting in this ever-evolving digital world, cost-efficient, but also detrimental for issues like mental health.

In trying to comprehend the role of technology in justice systems around the world, it is useful to return to the issue of dangerous criminals, as they present complexities that are enlightening to dissect. For example, “terrorism aims at the very destruction of human rights, democracy and the rule of law”; yet humans of many democracies, such as the United States and Norway, who are equally targets of terrorism, struggle to agree on the human rights that extreme criminals deserve.[12] As law is an active process through which different societies generate different social meanings to express different values, being human is an active process through which individuals do the same. Therefore, it is vital that societies consider the need for increased compassion toward its members, in order for them to evolve as active, high-functioning societal participants. This compassion may require a larger technological presence to allow inmates the opportunity to reflect their society’s progress, or may take the form of less technology, to preserve mental health and human interaction.

Because the United States and Norway agree on the importance of rehabilitative technological training but disagree on the shape rehabilitation should take, maybe there can be an integration of methodology, illuminating the most positive attributes of both perspectives. Regardless, the evolution of these regions’ justice systems will be a reflection of their capacity in this digital age, will inform us of their societal values, and will affect the relationship between the regions that currently diverge in their legal perceptions of justice.


[1] Extreme – in reference to “extremely grave” situations, such as “war, public danger, or other emergency that threatens the independence or security of the State party.”

Office of the United Nations High Comm’r for Human Rights, States’ obligations under human rights law, OHCHR.COM (last visited Jan. 3, 2017), ons/DigestJurisprudence .pdf.

[2] Christina Sterbenz, Why Norway’s prison system is so successful, Business Insider: Law & Order (Dec. 11, 2014, 1:31 PM),

[3] Id.

[4] Prison Programs Change Lives, (last visited Jan. 3, 2017),

[5] Kevin Roose, After years behind bars, can prisoners re-enter a digital society?, Fusion: TECH BEHIND BARS – Part 2 (Feb. 4, 2015, 11:30 AM),

[6] Id.

[7] Amelia Gentleman, Inside Halden, the most humane prison in the world, (May 18, 2012, 4:48 PM),

[8] Supra, note 2.

[9] Supra, note 5.

[10] Bernadette Rabuy and Peter Wagner, Screening Out Family Time: The for-profit video visitation industry in prison and jails, Prison Policy Initiative: Publications (Jan. 2015),

[11] Id.

[12] Office of the United Nations High Comm’r for Human Rights, States’ obligations under human rights law, OHCHR.COM (last visited Jan. 3, 2017), ons/DigestJurisprudence.pdf.