Double blind jurisprudence

[Brian Howell]

Americans like to proclaim that justice is blind. At least they use to. Growing public awareness of law enforcement and jurisprudential bias is revealing the naïveté of that proclamation. Besides the obvious racial issues, there are also issues with police interrogation tactics. Simultaneously, within the legal profession itself, there is increasing understanding that many innocents are coerced into false confession: one in four persons exonerated by DNA evidence had previously pled guilty to the crimes for which they were exonerated; this ties back to those interrogation tactics. To top all this off, there isn't a clear definition of what constitutes a valid plea of insanity. Certainly not counsel, nor judges, nor, likely juries—who themselves are subject to many intrinsic biases, including around weight. 

Wired magazine has a short article up that shines (additional) light on these subjects, and also posits strategies for creating a truly blind justice system, including double-blind police interrogations, and virtual courtrooms populated with gender-, race-, and appearance-neutral avatars. 

Are you ready for trials where the jurors never leave the jury room?

http://www.wired.com/2015/08/americas-justice-system-sure-doesnt-know-much-science/

[Jack Saunders]

In the only trial I ever served as a juror, a roomful of hideous low-lifes all walked after shoting each other and stealing from each others in a jointly owned "after hours club."  Whether the business was legal or not was never addressed and obviously skirted.  But the net story was so confusing nobody felt comfortable convicting.  Confusion, I deduced, is a major legal strategy.

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[Scott Hotes]

On Mon, Aug 3, 2015 at 5:55 PM, Brian Howell <bdho...@gmail.com> wrote:

Americans like to proclaim that justice is blind. At least they use to.

The statement that "justice is blind" is meant to imply an aspirational goal.  Something

we strive for.  I don't think the author here is the first to suggest that in practice there

are not problems.  Yes, in recent years we have developed better tools, and better

science, to more fully understand how deeply biases truly are.  That is useful, but I

think it is hyperbole and misleading to suggest that the justice system "doesn't know

much science" (frankly I don't really know what that title means.)

Scientific or not, fundamental rights like the right to confront your accuser are critical.

Yes, of course there can be intimidation, etc., but we also need to be careful what

side we err on, and the values of society we want to protect.  By accusing me you

are potentially taking away my personal liberties, you must be willing to confront me, 

and have a jury see face-to-face the interaction.  I would be very nervous about

taking away this basic legal right.

Regarding false confessions, this does seem problematic.  Statistics show that

false confessions are rampant, and it's right to get to the bottom of this.  OTOH,

are you suggesting we throw out confessions as material to a decision?  That also

seems very problematic.  Or maybe you're suggesting that those detained be 

better protected with respect to aggressive police tactics.  I think most people 

would get behind that, but exactly how do we do this?  Take away police interrogation?

It's easy to see the kinds of problems this would be associated with.  As a society

it is also in our interest to be effective at detaining and prosecuting the truly guilty.

FWIW, I'm not immune to the social cost of forced confessions.  See for example,

The Guildford Four.

Regarding false memories, that too has received a lot of attention recently.  But what

ideas does the author have here?  How can we *not* rely on human memory, or

the confidence people have?  Yes, it's a problem, but relying on memory is not

non-scientific, in many cases it is the best we have.

No, not perfect, but I'm reminded of Churchill's famous line:  "Democracy is the

worst form of government, except for all the others."

Scott

[Craig Good]

On Aug 3, 2015, at 17:55 PM, Brian Howell <bdho...@gmail.com> wrote:

> Americans like to proclaim that justice is blind. At least they use to.

Justice *is* blind. But, as a lawyer friend of my dad’s used to say, we do not go to the courts for justice. We go to the courts for law. It pays not to confuse the two.

Human memory is so bad that, honestly, I think eyewitness testimony should only rarely be admissible, and then only with some contemporaneous support. All human narrative memories are false memories, and the more you remember them the falser they get. But until the fallibility of memory is widely understood this is unlikely to happen.

The avatar idea sounds both noble and risible. I’ve served on several juries. For better or worse we had to rely a lot on the demeanor and tone of witnesses to help assess their credibility. I think transferring all of that to CG avatars with the required fidelity is going to be impossible. And it pretty much drops a JADAM on habeus corpus.

It’s true that the state of science in the courts is a sorry mess. I’d certainly like to see that improved.




--
--Craig WWSJD?
clg...@me.com http://www.craig-good.com
Ooh Eee, Ooh-a-Ahh, Ting Tang, Walla-walla Bing Bang

[David Fetter]

On Mon, Aug 03, 2015 at 06:29:26PM -0700, Scott Hotes wrote:
> On Mon, Aug 3, 2015 at 5:55 PM, Brian Howell <bdho...@gmail.com> wrote:
>
> > Americans like to proclaim that justice is blind. At least they
> > use to.
>
> The statement that "justice is blind" is meant to imply an
> aspirational goal. Something we strive for. I don't think the
> author here is the first to suggest that in practice there are not
> problems. Yes, in recent years we have developed better tools, and
> better science, to more fully understand how deeply biases truly
> are. That is useful, but I think it is hyperbole and misleading to
> suggest that the justice system "doesn't know much science" (frankly
> I don't really know what that title means.)

Let's sketch out what a science-based justice system might look like.
I have some proposals, but before I advance them, I'd be curious to
know in what respects you believe our system of justice is so based.

A couple of terms on which to base the discussion:

- Science is the systematic process of creating and falsifying
mathematical models of the physical world, and

- A scientific theory is a mathematical model as above which has
withstood all efforts thus far to falsify it in a scientific
context.

Should we start with a discussion on the definitions of those two
things, and maybe some others, or can we take those as read and move
on to how science might be applied in a justice system?

> Scientific or not, fundamental rights like the right to confront
> your accuser are critical.

Are you alleging that they are preserved in some meaningful way at the
moment? The bail system, coercing pleas as it does, would suggest
otherwise.

> Yes, of course there can be intimidation, etc., but we also need to
> be careful what side we err on, and the values of society we want to
> protect. By accusing me you are potentially taking away my personal
> liberties, you must be willing to confront me, and have a jury see
> face-to-face the interaction. I would be very nervous about taking
> away this basic legal right.

You're eliding two very different matters here, I hope accidentally.

Confronting your accuser is one thing. Having a jury look at your
physical appearance is a totally different thing. If you're asserting
that these things are inseparable, you need to explain why not rather
than simply asserting it.

> Regarding false confessions, this does seem problematic. Statistics
> show that false confessions are rampant, and it's right to get to
> the bottom of this. OTOH, are you suggesting we throw out
> confessions as material to a decision?

Given the very long history and the science of cognition, among other
things, I think we should at least consider that as a strategy.

> That also seems very problematic. Or maybe you're suggesting that
> those detained be better protected with respect to aggressive police
> tactics. I think most people would get behind that, but exactly how
> do we do this? Take away police interrogation?

Again, based on track records, it's a strategy we should at least
consider.

> It's easy to see the kinds of problems this would be associated
> with. As a society it is also in our interest to be effective at
> detaining and prosecuting the truly guilty. FWIW, I'm not immune to
> the social cost of forced confessions. See for example, The
> Guildford Four

> <https://en.wikipedia.org/wiki/Guildford_pub_bombings>.

You don't need to go as far as Ireland to find such coerced
confessions. Take, for example, the much more typical case here in
the US of of the Central Park Jogger a.k.a. "wilding."

https://en.wikipedia.org/wiki/Central_Park_jogger_case

People decided with extreme swiftness that it had to be a bunch of
black kids running wild, although the word I heard used frequently at
the time started with an N.

> Regarding false memories, that too has received a lot of attention
> recently. But what ideas does the author have here? How can we
> *not* rely on human memory, or the confidence people have? Yes,
> it's a problem, but relying on memory is not non-scientific, in many
> cases it is the best we have.

The recall of a single person is unreliable enough that if it's all we
have, we should be exercising a good bit more systematic caution about
taking away people's liberty (or property, but frankly liberty is a
bigger deal) on that basis.

That said, when a bunch of non-communicating people's memories jibe
and fit a pattern of behavior over time--cf. Bill Cosby, or the common
run of child rape committed by Catholic priests--then there's reason
to believe that a crime has actually been committed by the person so
accused.

> No, not perfect, but I'm reminded of Churchill's famous line:
> "Democracy is the worst form of government, except for all the
> others."

Churchill's line is wholly inappropriate to the situation here as it
presupposes that all viable options currently exist and have
agreed-upon track records to point at. Also, there are judicial
systems outside the US that don't do the things our judicial system
does. They're at least worth a look.

Cheers,
David.
--
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Phone: +1 415 235 3778 AIM: dfetter666 Yahoo!: dfetter
Skype: davidfetter XMPP: david....@gmail.com

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[Scott Hotes]

Inline...

On Tue, Aug 4, 2015 at 8:07 AM, David Fetter <da...@fetter.org> wrote:

> Scientific or not, fundamental rights like the right to confront
> your accuser are critical.

Are you alleging that they are preserved in some meaningful way at the
moment?  The bail system, coercing pleas as it does, would suggest
otherwise.

I never said that the process was perfect, or that there were not areas that

could use improvement.  I was speaking in the context of the proposal of

moving to a digital format, where for example the accuser may not even be

physically present.  My argument is that moving away from this, while possibly

increasing the statistical effectiveness of the process, has potential downsides

such as not allowing the accused to directly confront their accuser, in person,

in court.  So yes, I guess I am saying that, aside from coercing pleas and other

imperfections in the system, does in fact preserve this important aspect in

a meaningful way.

 

> Yes, of course there can be intimidation, etc., but we also need to
> be careful what side we err on, and the values of society we want to
> protect.  By accusing me you are potentially taking away my personal
> liberties, you must be willing to confront me, and have a jury see
> face-to-face the interaction.  I would be very nervous about taking
> away this basic legal right.

You're eliding two very different matters here, I hope accidentally.

Confronting your accuser is one thing.  Having a jury look at your
physical appearance is a totally different thing.  If you're asserting
that these things are inseparable, you need to explain why not rather
than simply asserting it.

Yes, my mistake.  I was trying to say that I believe both may be important,

and for different, albeit related reasons.  At a more general level, I suppose

my point is that the direct human interaction, while potentially reducing

scientific fidelity, may be something intrinsic to our understanding of

justice.

> Regarding false confessions, this does seem problematic.  Statistics
> show that false confessions are rampant, and it's right to get to
> the bottom of this.  OTOH, are you suggesting we throw out
> confessions as material to a decision?

Given the very long history and the science of cognition, among other
things, I think we should at least consider that as a strategy.

OK, certainly not averse to considering any strategy.  I can certainly 

envision cases where a confession would seem very much on the face of

it to be convincing.  No, we do not want to allow coerced confessions, but

can we address that more directly than simply disallowing all confessions?

I committed a crime.  I have guilt.  I want to come clean.  I am telling you

about it now.  Does this not hold some weight in coming to a decision?

 

 

> That also seems very problematic.  Or maybe you're suggesting that
> those detained be better protected with respect to aggressive police
> tactics.  I think most people would get behind that, but exactly how
> do we do this?  Take away police interrogation?

Again, based on track records, it's a strategy we should at least
consider.

I am no police expert, but I would argue you are taking away potentially

the most valuable tool in solving crimes.  This is indeed radical.  The first

place I'd likely start is:  what is the cost to society to let X% of crimes go

unsolved/unpunished, simply because the state cannot be trusted to 

interrogate potential suspects.

> Regarding false memories, that too has received a lot of attention
> recently.  But what ideas does the author have here?  How can we
> *not* rely on human memory, or the confidence people have?  Yes,
> it's a problem, but relying on memory is not non-scientific, in many
> cases it is the best we have.

The recall of a single person is unreliable enough that if it's all we
have, we should be exercising a good bit more systematic caution about
taking away people's liberty (or property, but frankly liberty is a
bigger deal) on that basis.

I understand (at least some of) the weaknesses here, but am still confident

that there are many instances in my memory where a single, particular fact

is recalled with confidence.  For example, I distinctly recall stopping to get

gas yesterday.  I distinctly recall that this happened in S. Berkeley on 

Telegraph Ave.  Are recollections like this, because they come from one

person (me) and not corroborated, simply to be thrown out because of the

known deficiencies in human memory.  I believe your blanket statement

here is simply untenable.

 

> No, not perfect, but I'm reminded of Churchill's famous line:
> "Democracy is the worst form of government, except for all the
> others."

Churchill's line is wholly inappropriate to the situation here as it
presupposes that all viable options currently exist and have
agreed-upon track records to point at.  Also, there are judicial
systems outside the US that don't do the things our judicial system
does.  They're at least worth a look.

That is fair.  Care to give examples of principles that we retain, but are

set aside in other cultures that you consider worth looking at?

Scott

[jack saunders]

When justice becomes "science" we arrive at dystopias like The Minority Report where computers weed out high risk people.

Better that it remain not science but rather "know how" -- the shared experience of people with unpleasant, dangerous but necessary responsibilities.

A very small fraction of cases goes beyond these people all the way to trial, where all the prejudice factors mentioned can be determinative.

At this point a new player enters:  a judge.

In the case I heard, every person dragged in to that courtroom looked and talked like a menace to society, yet nobody went down....because a silver-haired Republican Rotarian in a black robe

made it crystal clear that there were only a handful of yes-or-no questions he wanted answers on.

 

---

From: Scott Hotes <sah...@gmail.com>
To: Brian Howell <bdho...@gmail.com>
Cc: Ipse Dixit <Ipse-...@googlegroups.com>
Sent: Monday, August 3, 2015 6:29 PM
Subject: Re: [Ipse Dixit] Double blind jurisprudence

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[David Fetter]

On Tue, Aug 04, 2015 at 11:17:38AM -0700, Scott Hotes wrote:
> Inline...

Thanks :) I find it a good bit easier to follow threads of
conversation in-line than via top posting. *AHEM!*

> On Tue, Aug 4, 2015 at 8:07 AM, David Fetter <da...@fetter.org> wrote:
>
> > > Scientific or not, fundamental rights like the right to confront
> > > your accuser are critical.
> >
> > Are you alleging that they are preserved in some meaningful way at the
> > moment? The bail system, coercing pleas as it does, would suggest
> > otherwise.
>
> I never said that the process was perfect, or that there were not
> areas that could use improvement.

When you're poor, as increasingly many Americans are, and we'll leave
the science of that to another day, the bail system isn't in
"imperfect," or "could use improvement" territory.

The bail system rigs things in such a way that your ability to dig out
some wad of money, probably one most people on this list would
consider trivial, determines:

- What infraction(s), if any, you'll be charged with, where "can't
make bail" means "more severe."

- The chance that you'll plead out, and this is really, really
important, WHETHER YOU HAD ANYTHING TO DO WITH THE ALLEGED
INFRACTION OR NOT.

- Custody of your children, as CPS is ever eager to jump in if you
happen not to be around to take care of them for any reason or none,
and of course differentially if you're black or brown. Any guesses
which way this difference goes? See above re: pleading out under
enormous time pressure.

- Your future criminal record. Pleading out means you will have one
for the rest of your life modulo a presidential pardon, than which
you have a better chance of winning SuperLotto.

- Your ability ever to have a job. Cf. "ban the box".

> I was speaking in the context of the proposal of moving to a digital
> format, where for example the accuser may not even be physically
> present.

There are a good many situations where the accuser isn't physically
present. Not happening to have enough ready money for bail is a
gigantic contributor to this.

> My argument is that moving away from this, while possibly
> increasing the statistical effectiveness of the process, has
> potential downsides such as not allowing the accused to directly
> confront their accuser, in person, in court.

You'll pardon me if I'm a lot less concerned about theoretical
niceties for people who are on this list than the harsh and terrible
realities of a good many of my neighbors. We have real and
substantive problems with our criminal "justice" system, of which
insufficient facing of accusers is not likely in the top 20.

> So yes, I guess I am saying that, aside from coercing pleas and
> other imperfections in the system, does in fact preserve this
> important aspect in a meaningful way.

See above. It does not.

> > > Yes, of course there can be intimidation, etc., but we also need to
> > > be careful what side we err on, and the values of society we want to
> > > protect. By accusing me you are potentially taking away my personal
> > > liberties, you must be willing to confront me, and have a jury see
> > > face-to-face the interaction. I would be very nervous about taking
> > > away this basic legal right.
> >
> > You're eliding two very different matters here, I hope accidentally.
> >
> > Confronting your accuser is one thing. Having a jury look at your
> > physical appearance is a totally different thing. If you're asserting
> > that these things are inseparable, you need to explain why not rather
> > than simply asserting it.
>
> Yes, my mistake. I was trying to say that I believe both may be
> important, and for different, albeit related reasons. At a more
> general level, I suppose my point is that the direct human
> interaction, while potentially reducing scientific fidelity, may be
> something intrinsic to our understanding of justice.

Here's where the science and our "understanding of justice" collide.
The long and the short of it is that "direct human interactions," as
you put them, have often had the effect over long stretches of time of
perpetuating, and in many cases worsening, horrific injustices.

If you're a poor young black man, you're more likely to have police
contact, not because you're likelier to have done something illegal
than your wealthy white suburban counterpart, but because people have
decided, through "direct human interactions," to place a lot more
police patrols near you than near your counterpart.

You are a good bit more likely to be arrested, given a contact (hey,
Bayesian analysis!). Once arrested, you're more likely to be charged.
If charged, you're more likely to be charged with more severe
infractions for identical behavior. You're more likely to have to
plead out (daddy's friend who knows a good defense attorney doesn't
exist for you), more likely to be convicted if your case goes to
trial, more likely to serve more of your sentence, and on, and on, and
on.

And all this is really, really easy to show using data collected in
the real, physical world we inhabit.

> > > Regarding false confessions, this does seem problematic.
> > > Statistics show that false confessions are rampant, and it's
> > > right to get to the bottom of this. OTOH, are you suggesting we
> > > throw out confessions as material to a decision?
> >
> > Given the very long history and the science of cognition, among
> > other things, I think we should at least consider that as a
> > strategy.
>
> OK, certainly not averse to considering any strategy. I can
> certainly envision cases where a confession would seem very much on
> the face of it to be convincing. No, we do not want to allow
> coerced confessions, but can we address that more directly than
> simply disallowing all confessions? I committed a crime. I have
> guilt. I want to come clean. I am telling you about it now. Does
> this not hold some weight in coming to a decision?

I don't think that a confession by itself should have any legal weight
of any kind. Confessions like Hans Reiser's aren't important because
he fessed up, but because he showed authorities where he'd dumped his
wife's corpse after he murdered her in cold blood, and--this is the
biggie--they found her corpse there.

> > > That also seems very problematic. Or maybe you're suggesting
> > > that those detained be better protected with respect to
> > > aggressive police tactics. I think most people would get behind
> > > that, but exactly how do we do this? Take away police
> > > interrogation?
> >
> > Again, based on track records, it's a strategy we should at least
> > consider.
>
> I am no police expert, but I would argue you are taking away
> potentially the most valuable tool in solving crimes.

If you're going to make that case, please go ahead and dig up
evidence, not hearsay from cops, in its favor. Show the numbers.
This isn't complicated, and large bodies of hard evidence exist.

> This is indeed radical. The first place I'd likely start is: what
> is the cost to society to let X% of crimes go unsolved/unpunished,
> simply because the state cannot be trusted to interrogate potential
> suspects.

Wage theft, which is a bigger pot of stolen money than armed robbery,
goes largely unpunished.

http://www.dailykos.com/story/2014/09/13/1328744/-This-week-in-the-war-on-workers-Wage-theft-dwarfs-robberies-and-burglaries

Care to speculate as to why?

I will put it to you that we are already deciding that a bunch of
criminals will simply not be punished because we've decided that they
don't "look criminal," which goes back to that "direct human
interactions" thing above.

> > > Regarding false memories, that too has received a lot of attention
> > > recently. But what ideas does the author have here? How can we
> > > *not* rely on human memory, or the confidence people have? Yes,
> > > it's a problem, but relying on memory is not non-scientific, in many
> > > cases it is the best we have.
> >
> > The recall of a single person is unreliable enough that if it's all we
> > have, we should be exercising a good bit more systematic caution about
> > taking away people's liberty (or property, but frankly liberty is a
> > bigger deal) on that basis.
>
> I understand (at least some of) the weaknesses here, but am still
> confident that there are many instances in my memory where a single,
> particular fact is recalled with confidence. For example, I
> distinctly recall stopping to get gas yesterday. I distinctly
> recall that this happened in S. Berkeley on Telegraph Ave. Are
> recollections like this, because they come from one person (me) and
> not corroborated, simply to be thrown out because of the known
> deficiencies in human memory. I believe your blanket statement here
> is simply untenable.

Nobody is going to prison on the strength of that claim alone.

In this day and age, if prison were the stakes, that claim is almost
certainly falsifiable (or verifiable, whichever way you want to look
at it) using evidence gathered by the many security cameras and other
recording devices you'd have had to interact with one way or another
in the process of making it true.

[Scott Hotes]

On Tue, Aug 4, 2015 at 5:03 PM, David Fetter <da...@fetter.org> wrote:

> My argument is that moving away from this, while possibly
> increasing the statistical effectiveness of the process, has
> potential downsides such as not allowing the accused to directly
> confront their accuser, in person, in court.

You'll pardon me if I'm a lot less concerned about theoretical
niceties for people who are on this list than the harsh and terrible
realities of a good many of my neighbors.  We have real and
substantive problems with our criminal "justice" system, of which
insufficient facing of accusers is not likely in the top 20.

I'm fine with disagreeing here.  You are no doubt correct that those directly facing

the weaknesses (call them what you like, that's just a word) of the current system

would come up with items much more immediate and direct to their situation.  It's

easy to focus on immediate problems, and often correct.

Yes, indeed it is a theoretical question.  In fact, let me be more precise and pose

it as one:  "What considerations beyond maximizing the likelihood of coming to

the correct conclusion of guilt should be used in evaluating the possibility of moving

to a court system where defendants, plaintiffs, jurors and judges are not co-located

and communication is masked?"  My intent was to pose one, that there is an

inherent value, associated with ethical questions of right and wrong, associated

with facing your accusers directly and in person.

I could be wrong, I will accept that, but breaking out a long list of problems that

are more immediate, and directly problematic does not demonstrate it.

Scott