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"Smart people (like smart lawyers) can come up with very good explanations for mistaken points of view."

- Richard P. Feynman, Physicist

"There is a danger in clarity, the danger of over looking the subtleties of truth."

-Alfred North Whitehead

July 4, 2011

The End of Something

I will be discontinuing regular posts to this blog. I will post intermittently when something moves me. I have written what I needed to write and have learned much. However, empirical science moves slowly. It takes time to complete an empirical study and much more time to verify the study with other studies to discern any truth. (Not to mention that there are studies that are just plain nonsense from a methodological perspective and from the conclusions drawn from the statistics.)

I desire not to waste your time or mine with writing things because I feel compelled to write a blog entry rather than because I have something I feel worth communicating. Therefore, if you are interested, you may want to have the blog sent to you via e-mail. I will now spend the rest of my summer free-time reading, riding my bicycle, and playing music. Have a great summer.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

To Win an Argument or to Find the Truth

A recent theory of argumentation that has been generating considerable discussion states that the human reason has so many cognitive biases and other flaws because reason evolved for the purpose of winning arguments through persuasion and not as a means of discovering knowledge and making better decisions.[i] These researchers argue that the existence of such cognitive biases, most powerfully represented by confirmation bias, the tendency to view evidence in way that confirms one’s prior views, makes sense only if one views the evolution of human reason for the purpose of winning arguments rather than discovering knowledge. If discovering knowledge was the primary purpose, our reasoning ability would not be as flawed as it is.

The paper is worth the read for anyone interested in the process of reasoning. As for confirmation bias, unfortunately it appears that this error in thought has been elevated to a creed within our political system. One only has to ask a devout Republican and a Democrat (or those associated with each party) to explain their perspective on an issue to see confirmation bias in full action. To allow even the potential correctness of the other side’s position is considered weakness and rejection for being an apostate—a logical result of a system driven by a hypercompetitive desire to prevail at a ballot box rather than to solve problems.

The authors explain that all hope for an actual conversation leading to knowledge is not lost. These researchers state that “people are quite capable of reasoning in an unbiased manner, or at least when they are evaluating arguments rather than producing them, and when they are after the truth rather than trying to win a debate.”[ii] Those of us in decision making positions that affect others would better serve our society by really listening to others, and not only to find the errors in other’s arguments, but to also find any potential truths that expose the errors in our perceptions and thoughts.

[i] Mercier, Hugo, and Dan Sperber, BEHAVIORAL AND BRAIN SCIENCES (2011) 34, 57 –111;

[ii] Ibid. p. 72.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

June 20, 2011

Psychology and Confessions

Neuroscientist David Eagleman, in his book Incognito, describes the human brain as a team of rivals in which various parties in the brain can compete with each other to create a sense of being “conflicted”. He also discusses research that shows that keeping secrets is unhealthy for the brain. Simply stated, he says, a secret is a competition within the brain between telling someone something or not telling them it. This tension is what makes something a secret. He states that secret agents and spies are probably equipped with a strong module for withholding secrets. In contrast, based on the high percentages of confessions in juvenile delinquent cases, it doesn’t appear to me that juveniles have much ability to keep a secret.

Which brings me to the law of confessions. I never believed that the law regarding whether or not a confession was voluntary made much sense. What does it mean to say that “pressures brought to bear on the defendant by representatives of the State exceeded the defendant’s ability to resist”? Except for those defendants who turn themselves into police and actually volunteer a report of their transgressions, almost any confession is the result of pressures brought to bear on the defendant by the police that exceeded the defendant’s ability to resist. That is why they confessed.

Asking some defendants the question, “Did they commit the crime?” is sufficient pressure to exceed their ability to resist, so they confess. That statement would not and should not be considered “involuntary”.

Further, it is stated that the confession must be “a product of a free and unconstrained will.” This formulation requires that there is some entity (apparently called the “will”) that operates as a cause without a cause or as the “ghost in the machine” or the “soul.”

I could never figure out how one would evaluate whether or not another person's confession was the product of a free and unconstrained will. How does one get access to another’s will, except by projecting one’s own conception of their own “will” onto another?

The concept of having a “will” is a cultural and religious construct. For example, some Christian denominations believe in the possibility of “free-will” while others don’t. Buddhists view the concept of having a self as an error in thought.

Instead of looking into some metaphysical conception such as someone’s will, the law would be clearer if the inquiry would be simply reduced to two formulations that encompass the law regarding confessions. The first question is: Were the tactics the State used to obtain the confession incompatible with the values of our society as they relate to a citizen’s relationship with the State? For example, the intentional infliction of physical pain or the threatening of harm to force a confession is clearly incompatible with what we believe is proper behavior a State actor should take toward a citizen. If the tactics were incompatible with societal values, the confession is suppressed.

The second question is: Was the confession obtained unduly unreliable? If it is, the confession is suppressed. In many instances, an unreliable confession will be the result of coercive police conduct with a defendant who is susceptible to providing a false confession. However, Courts have found confessions to be “involuntary” under circumstances where the confession was obtained from an inordinately susceptible individual with very little police encouragement. See for example, State v. Hoppe, 2003 WI 43. The focus should be an evaluation of the unreliability of the confession. The exclusion of unreliable confessions increases the accuracy of the determination of guilt within our criminal justice system.

A focus on proper police conduct and on a statement’s reliability would get the Courts out of pretending to be able to divine what someone’s “will” was (what about that defendant whose will was to confess but other demons in the mind were not allowing him to do so—could any amount of coercion make his statement “involuntary?) and when that “will” was overcome by police pressure resulting in a confession that is not the product of a free and unconstrained will.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

June 13, 2011

David Eagleman Speaks on Neurolaw

Here are a couple of videos of David Eagleman speaking about law and neuroscience.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

The Brain as a Team of Rivals

David Eagleman, in his recent book, Incognito, The Secret Lives of the Brain, argues that the brain is composed of various modules, some with competing objectives, comprising a “team of rivals”.

Eagleman, a neuroscientist at Baylor College of Medicine and director of the Initiative on Neuroscience and the Law, further argues that “blame-worthiness” in the criminal justice system is the wrong question. He persuasively argues that as the understanding of the brain advances, including our understanding of the neurological bases for much deviant behavior, behavior for which defendants had been considered “blameworthy” now lead to legal findings of “not-blameworthy.”

Eagleman argues that the only question is whether the behavior of the defendant can be modified. If it can, then rehabilitation, sometimes in the form of punishment, is appropriate. If the behavior is not modifiable, then a defendant should be warehoused in a place where he or she cannot harm the public.

Eagleman’s perspective on the criminal justice system is purely scientific, and his conclusions logically flow from this perspective. However, as I have argued in other entries in this blog, the criminal justice system is not merely a treatment system, but a social and political institution built on a society’s history and beliefs including religious beliefs—many of which are antithetical to scientific findings and the scientific method. The use of science in the law has sociological limits.

Eagleman’s book addresses many of questions involved in deciphering human behavior and is a must read for anyone involved in the criminal justice system or engaged in any undertaking that involves the modification of human behavior.

June 5, 2011

Looks Matter

Several studies have examined the relationship between the physical attractiveness of a defendant and jury verdicts. One study found that defendants who were considered physically attractive by the jurors were treated more leniently by the jurors and those that were considered physically unattractive were treated more harshly by the jurors.[i]

Another study found that defendants who were considered physically attractive were almost twice as likely to be acquitted than those considered unattractive.[ii]

Finally, a researcher looked at the effect of the physical attractiveness of a victim on a jury’s verdict in a car theft case. His research showed that a defendant was judged more harshly when the victim was physically attractive than when the victim was physically unattractive provided the victim was also careful in attempting to prevent the theft.[iii]

Now all of the above studies involved the use of mock juries. Whether or not these same patterns would hold in an actual trial is another question. However, the studies do indicate yet another potential prejudice of which we need to be vigilant.

[i] Izzett, R.E. & Leginski, W. (1974). Group discussion and the influence of defendant characteristics in a simulated jury setting. The Journal of Social Psychology, 93, 271-279.

[ii] MacCoun, R.J. (1990). The emergence of extralegal bias during jury deliberations. Criminal Justice and Behavior, 17, 303-314.

[iii] Kerr, Norbert L., (1978), Beautiful and Blameless: Effects of Victim Attractiveness and Responsibility on Mock Jurors’ Verdicts, Personality and Social Psychology Bulletin, Vol. 4, No. 3.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

May 30, 2011

Racial Bias and Judicial Decisions

Racial bias and prejudice should have no place in a judicial decision. How good are judges at excluding this pernicious tendency from their deliberations? Researchers attempted to evaluate this question.[i]

These researchers explain that two types of potential bias exist can exist in the courtroom. The first is explicit bias which is bias that people are aware of and sometimes openly acknowledge. With cultural change, explicit bias has decreased and is certainly unacceptable within the judiciary.

The second type of bias is implicit bias which is bias that one may not be aware of and that operates at the unconscious level. Various techniques have been designed to measure implicit bias. One such technique is the Implicit Association Test (IAT) which measures the association between a race and words such as good/bad. (For several such tests see for example, )

The Rachlinski study showed the judges who were tested (from various geographical locations around the U.S.) had a strong white preference on the IAT test. The black judges showed no strong racial preference.

These researchers that attempted to discover whether measures of strong white preference in the IAT impact judicial decision making. The judges were asked to make judicial decisions involving the criminal justice system in three different cases. These questions involved a determination of the guilt of the individual as well as the appropriate disposition. The judges were primed to understand the race of the defendant. The results of this test showed that the judges’ decisions, on the average, were not affected with the race of the defendant.

However, the researchers discovered that judges who had a white preference in the IAT test gave higher sentences to black defendants and judges who had a black preference in the IAT test gave higher sentences to white defendants.

These researchers came to the following conclusions. “First, judges, like the rest of us, carry implicit biases concerning race. Second, these implicit biases can affect judges’ judgment, at least in context where judges are unaware of a need to monitor their decisions for racial bias. Third, and conversely, when judges are aware of a need to monitor their own responses for the influence of implicit racial biases, are motivated to suppress that bias, they appear able to do so.”[ii]

A judicial decision (or any decision within the criminal justice system) should never be affected by racial bias. Those of us in within the justice system must never tolerate explicit bias, and must be alert to, and guard against, implicit bias. The research would indicate if we are aware of our biases, and are committed to an unbiased decision, we have a reasonable likelihood at being successful in making unbiased decisions.

[i] Rachlinski, Jeffrey J., Sheri Lynn Johnson, Andrew J. Wistrich, and Chris Guthrie, 2009, Notre Dame Law Review, Vol. 84:3 pp. 1195-1246

[ii] Ibid, p. 1221

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.