Constructing our reality

I was on my way to the office last night to meet with a client. I flipped on the radio in the car and the only thing worth listening to was the TED Radio Hour on NPR. The topic appeared to be why do people do bad things.

The first speaker was Dr. Philip Zimbardo who conducted a famous experiment in the basement of the Stanford psychology lab 42 years ago. Dr. Zimbardo found two dozen volunteers - he selected half of them to be prisoners and the other half to be prison guards. The experiment was supposed to last for two weeks but it was called out after just a few days because of the sadistic behavior of the guards and the mental breakdowns of the prisoners.



Dr. Zimbardo focused on why good people do evil things. He settled on the social constructs in which we live and breathe. Now, I think he made a false dichotomy between good and evil; I think calling something or someone "evil" allows us to avoid any serious analysis of the problem. But, he looking at social constructs as being the conduit for certain behavior is right on the money.

For an everyday example, just peek your head in any criminal courtroom anywhere around the country and you will see what happens when you slap labels on people and encourage others to treat folks based on the label they're wearing. Defendants are brought in every day who can't afford to post bond. Many of these folks were arrested for nonviolent offenses. But, when given a choice between issuing a personal bond, releasing the defendant and allowing him to fight his case from the outside, or coercing a plea by refusing to look at bond in the context of that particular defendant, you know the choice that will be made.

In some courts judges and court personnel will treat defendants like garbage because they are defendants. We are socialized very early on to believe that a police officer is telling the truth and that the defendant will say whatever he must in order to get away with his crime.

The judge, and his or her staff, are more concerned with moving cases along than they are about the outcome of those cases. After all, regardless of what happens today, there will be someone new sitting on that bench in the morning. Prosecutors are trained to be cogs in the machine. Defense attorneys who prod their clients into pleading out their cases are rewarded with additional appointments. Defendants are just the product that's being moved from room to room without much consideration for the consequences of the game played out in the courtroom.

Now I know I'm painting with a broad brush and that not every judge, prosecutor or defense attorney fits into this model. Unfortunately they are becoming more and more the exception rather than the rule.

I have colleagues who will throw out the word evil when describing this scenario, but I think that description is a bit too simplistic. Our criminal (in)justice system is the culprit in our drama. Those folks in the courtroom are minor stars or bit players. But we all operate within a social construct in which those who can least afford bail and counsel are treated like cattle. There's no need to investigate the case - there'll be another one tomorrow. The defendant just wants to get out of jail and the players know the road map to the outside - get an offer with the exit within reach and plead it out. The system forces the players to blindly recite rights and privileges that no one seriously expected anyone to exercise. We mouth the words and we all go home at the end of the day regardless of what happens to the accused.

We pretend that the plea wasn't coerced by the denial of reasonable bail or the inflating of charges. We pretend that the attorney had adequate time to investigate the case between docket call and lunch. Collateral consequences? Who gives a fuck? Not my problem.

Few question the basic assumptions of our criminal (in)justice system. Few ask questions. Why won't judges grant personal bonds for non-violent first offenders? Why are defendants required to appear at every court setting when there is no need for them to be there? What's the magic number for sentencing? Is a 5 year sentence any more just than a sentence of 54 months? Why are defendants who bonded being supervised by the probation department when they haven't been found guilty of anything? Why is drug addiction treated as a legal and not a medical issue?

Take a look at the jail. The overwhelming majority of detainees and inmates are poor, male and non-white. What message is that sending to their children? How are we socializing the most vulnerable among us?

The system is corrupt. We all know it. There is no such thing as the presumption of innocence. When that jury walks into the courtroom they are told the person sitting next to the defense attorney is the defendant. He or she is dehumanized by the prosecution and the court throughout the entire trial. They are dehumanized for the same reason the student prisoners were dehumanized in Dr. Zimbardo's experiment -- because one you dehumanize someone it's easier to treat them as somehow less worthy of respect, compassion and empathy.

Your lying eyes

Sam Sommers, a social psychologist at Tufts University, has a problem with photo arrays. While preparing to testify as an expert on eyewitness memory, he got a funny feeling about the photo array the complaining witness had viewed.

Mr. Sommers took that photo array, composed of nine photographs, and showed it to 31 people who matched the same basic demographics of the alleged victims. Without providing any details of the crime, he asked each subject to pick the person out of the photo array whom he or she thought committed the crime. He then asked them to make a second choice.

Basic probability tells you that the random sample should pick out the defendant about 11% of the time. Adding a second choice would increase the odds to 2 in 9. The results of the experiment astounded Mr. Sommers.

But in my photo array experiment, 23% of naïve respondents picked out the defendant with their first choice, knowing nothing at all about the crime. And a full 45% chose the defendant with either their first or second choice. Statistical analysis confirms that these are significant deviations from chance: for some reason (or reasons), the defendant did stick out like a sore thumb, casting doubt on the usefulness of the actual victims' identifications in the case.

Mr. Sommers decided to run the experiment again to see if the results would be different if he provided details of the crime. For the follow-up he provided the subjects with the same description the victims gave to police.

The second time around the test subjects picked the defendant out of the photo array 29% of the time and 65% of the test subjects picked him out with their first or second choice.

Whether this experiment speaks more to the problems with photo arrays or with eyewitness identification I don't know. It's shocking that the number of people who picked the defendant out of the array, without having any knowledge of the crime or the suspect, was more than twice what blind chance would dictate.

What was it about the photograph? Was the image the same size as the others on the page? Was it the barely visible booking identification number? Did he just have that look?

Perhaps a new method of eyewitness identification needs to be used - such as that The Justice Project proposed in March of last year.

Thin slicing and jury selection

Chocolate covered bacon.


Grilled cow's brains.


Cockroaches.

Be honest. What was your first reaction when you read the words? Chances are that's how you feel about them. Now, upon further reflection you might change your mind. You might modify your opinion so as not to offend someone.

But nothing can change that initial reaction - your gut reaction. In his book Blink, Malcolm Gladwell talks of "thin-slicing." That's the process of jumping to a conclusion based on a small sample size - but, remarkably, that gut reaction is oftentimes correct. It works because we are able to take the pattern of what we saw or heard and compare it with other patterns we've experienced during our lives.

Ask a young child a question and you will get an honest answer - because the child hasn't learned to filter his or her opinions. I have a three year-old daughter and there are situations that my wife and I dread because we have no idea what's going to come out of her mouth.

I believe that jurors are the same. I always ask jurors a series of scaled questions designed to identify their attitudes (and to ensure I speak to everyone). When I ask a juror to rank on a scale of 0-10 whether they think my client is guilty, I get answers all over the board. The same thing happens when I ask the panel to rate their feelings on whether my client testifies or not. I use those answers to strike jurors for cause.

When the juror is brought before the bench I stand and listen while the prosecutor, and even the judge, attempt to rehabilitate him. At that point the juror has had time to think over his or her answer and is now standing face to face with an authority figure sitting on high with a black robe. Of course that juror is going to say "yes" when the judge asks him if he can follow the law - despite the honest answer he gave during voir dire.

That answer doesn't mean that the bias or prejudice is gone - it just means that the juror felt pressured by the situation to rethink his or her initial reaction in order to please an authority figure.

See also:

"'Thin slices' of life" Monitor, March 2005, vol. 36, no. 3
"Very first impressions" Emotions, 2006, vol. 6, no. 2
"First impressions surprisingly accurate" WebMD, Nov. 6, 2009

Nature v. Nurture

Free will or determinism?

According to a pair of recent studies, how one answers that question goes a long way in determining how you act. Kathleen Vohs and Jonathan Schooler had participants read a passage in Francis Crick's book The Astonishing Hypothesis that espoused a very deterministic view of our brains. Others read another passage from the book that discussed consciousness but never mentioned free will.

Afterward participants were asked to take a math quiz on a computer. During the quiz they were told there was a software malfunction and that they needed to hit the space bar after the question was presented so that the answer did not appear on screen. It turned out that the people who had read the first passage were far more likely not to hit the space bar - in other words, cheat - than the people who read the second passage.

Roy Baumeister conducted a study in which the participants were split into three groups. The first group was told to read statements that were deterministic in nature. The second group read statements that spoke of free will. The third group, or control group, was given neutral statements to read.

In the first experiment, participants were given scenarios and asked what they would do to help the person in trouble. The people who read the deterministic statements were found to be less likely to help out. In the second experiment, participants were told that a classmate's parents had been killed in a car accident and that the classmate would have to drop out of school without some kind of financial help. Again, the people who read the deterministic statements were less likely to help out. Finally, participants were given the opportunity to add hot sauce to a dish being served to someone who was averse to spicy foods. You guessed it, the people who read the deterministic statements were more likely to pour it on.

Knowing a potential juror's attitude toward the debate between determinism and free will could be vital to trying your case. Those who tend toward the determinism, or nature, side of the argument may very well believe that your client is somehow genetically disposed to a life of crime which wouldn't bode well back in the jury deliberation room.

See also:

"Free Will and Ethics" The Frontal Cortex, 12/17/09

Ambiguity and hate crime legislation

Key Sun, Ph.D., a psychologist and associate law professor at Central Washington University, has his own interesting take on what's wrong with the Matthew Shepherd Hate Crimes Prevention Act. While he welcomes the bill's intentions, he fears that language of the bill makes prosecution under the act all but impossible.

He points out that the criminal law definition of a crime must (in most instances) define the mens rea, or criminal intent, of the actor. In Texas we categorize crimes by whether the accused acted intentionally, knowingly, recklessly or negligently. A crime in which the accused intended to cause the result is much more serious than a crime in which the accused acted with criminal negligence.

The Shepherd Act defines a hate crime as one in which "the defendant intentionally selects a victim... because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability or sexual orientation of any person."

The problem, according to Dr. Sun, is that this definition substitutes the alleged victim's status for the defendant's mens rea. "Because of..." is not the same as "acting intentionally or knowingly."

Criminal law is, and should only be concerned with, defining what is, and what is not, a crime. It is not the purview of the penal code to provide an explanation of why a crime occurred. That is the job of the criminologists, sociologists, psychologists, psychiatrists and commentators.

Manipulating the innocent through video

"You might as well confess. We have you on video."

"Okay, okay. I did it. Can I go home now?"

Maybe that's not exactly how it goes, but a new study indicates that people who did nothing wrong are more likely to confess if they are told they were caught on video. In the study, a group of subjects were asked to complete a task. They played a game in which they were asked a series of questions. For every question they answered correctly, they were told to withdraw money from a bank account. For every question they answer incorrectly, they were told to deposit money in that account.

After completing the task, each test subject met with a researcher. The researcher debriefed the test subject and then told him or her that there was evidence the test subject stole money from the bank. Some test subjects were told there was a video showing their dishonesty while others were shown a doctored video showing the thefts.

The test subjects were asked to sign a confession - and 87% of the test subjects signed it when asked the first time. The remaining 13% signed it on the second request.

It is very disturbing that researchers were able to obtain confessions from innocent persons by merely telling them that there was a video. It is even more disturbing that innocent persons were convinced to confess their "guilt" after seeing a doctored video. These folks knew they had done nothing wrong but confessed anyway.

Regardless of the mechanisms involved in creating our see-video versus told-video effect, the results show that doctored videos, or simply the proposition that video evidence exists, are potent forms of suggestion that can contribute to false confessions and foster false beliefs. According to these results, our advice to those who receive digital footage of themselves is: be warned, digital images from untrustworthy sources are like a box of chocolates; never know what you are going to get. -- Robert Nash and Kimberly Wade

Those of us who practice criminal law already know that a person who can't post a bond is more likely to confess to a crime than a person who bonded out. The lure of "time served" is very powerful for those folks in the holdover.

Factor in the threat of video evidence and that poor schmuck doesn't stand a chance.

* A special thanks to Dennis C. Elias, Ph.D. and Zagnoli McEvoy Foley, LLC for the tweets.

Avoiding the fear of defeat

Shelby Lyman is a noted chess author and commentator who pens a weekly column on chess. In his most recent column, Mr. Lyman writes about performance psychology.

He points out that in the game of chess there are numerous occasions that victory may seem assured, or that all hope is lost. But, inevitably, because chess is such a fluid game, that certain win may be just out of grasp or that hopeless position may be turned around. His point is that there is almost always the chance to pause, look at your situation and devise a new strategy rather than just throw your hands up and admit defeat.

Even between top grandmasters, a game often has to be retrieved or won numerous times as the advantage shifts, however slightly, from move to move.

Chess teaches us that in our everday life, there is always a chance to regroup rather than admit premature defeat.

In a DWI case, just because your client blew twice the legal limit, or just because the video isn't good or just because there are some bad driving facts, doesn't mean you should run the white flag up the pole and immediately try to get the best plea agreement you can.

Are there any reasons, other than being intoxicated, that could account for the bad driving facts? Could it be that your client, like many others on the streets, is just a bad or careless driver? Flip on the radio during the morning or afternoon rush hours and you will hear updates alerting listeners where accidents have occurred. Accidents happen - that's why they're called accidents.

What were the conditions under which your client performed the field sobriety tests? Were they conducted on the roadside or at the station? What was the weather that evening? What were traffic conditions? Was your client nervous? Does your client have a medical condition that affects his coordination? Is your client overweight? Old? Was he given an opportunity to practice the exercises? We all have varying degrees of balance and coordination. There's a reason that some folks are professional athletes and the vast majority of us are just weekend warriors.

As far as the breath test goes, does the result "match up" with what you saw on the video? How often is that machine used? When was maintenance last performed on it? Has it ever been taken out of service? Who calibrated it? How many drinks would your client have had to consume in order to raise his alcohol concentration to that level? The "science" behind that machine is questionable at best and can be challenged - if you know what you're doing.

At some point you may determine your case is hopeless; but don't just throw your arms up when the case lands on your desk because it seems unwinnable. Work with it, play around with the facts, use some creativity. There just might be a winning position under there if you look hard enough.