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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

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.