It is a fundamental premise of our legal system that legal process - courtroom adjudication in particular - is a reliable way to discern the truth among conflicting facts; and that justice results from the impartial application of ascertainable and certain legal rules by trained officials - judges - to those facts. Faith in this premise is what sustains our belief in the rule of law and our willingness to entrust controversial and difficult decisions to courts and judges.
Of course, if we are honest with ourselves, we will acknowledge that lawyering and judging are human processes, and as such are necessarily somewhat fallible. Perfection is a standard seldom achieved in any human endeavour. But it is critically important to what I would call the the ideology of the rule of law that that we believe that the processes by which law is applied are reliable, that (for example) lies can be detected in cross-examination, that the best argument will always prevail, that a good argument is the best way to arrive at the truth, and that judges in particular are good at these things.
This faith in legal process is what underlies our reliance upon bills of rights. A bill of rights takes a political value, such as free speech, which is generally accepted as necessary to sustain a free and democratic society, and turns it into a legal rule. The rule is enforceable by judges. We assign courts the task of interpreting and applying that rule. Why? Because we trust judges. Why do we have that trust? One reason is because of their independence. Judges have no stake in the game and therefore are not predisposed to favour one side or the other in any particular case. But another reason why we give the task of applying the law to judges is because, as I have already said, we think they do a good job of it. We believe that a courtroom is a good place to discern the truth; first by “finding” the facts; and then through processes that are objective, neutral, and impartial, deciding what the law is, and applying it to those facts.
If you accept all these things as true, as articles of faith, as it were, in our legal system, then you will be as interested as I was to see the title of an upcoming legal and medical conference sponsored by the Trial Lawyers Association of BC. It’s called, “Merging of the Minds: Understanding how the Neuroscience of Magic affects the Practice of Law and Medicine.” (www.tlabc.org)
Yep. A law course called the Neuroscience of Magic.
Now before you think I am about to go on a rant about the Trial Lawyers of BC, hold your fire. This is serious stuff. The course is not just an excuse to spend a day away from the office; conference attendees will be eligible for continuing professional development credits from both the Law Society of BC and the UBC Faculty of Medicine. But more importantly, this course promises to be a particularly interesting opportunity to learn about work that is being done across a number of disciplines - psychology and neuroscience in particular - that is demonstrating how the mind actually works, as opposed to how we used to believe it worked. And what we are learning about the mind has all kinds of ramifications for legal process and, I suggest, our perspective on the rule of the law.
Now this is just a blog, and I am just an amateur at this stuff, but I want to give you some examples of this work, to illustrate what I am talking about.
First, the TLABC course itself. The range of subjects covered in this one day course is broad, but one lecture looks particularly interesting. It’s entitled, “Sleights of mind: what the neuroscience of magic reveals about our everyday deceptions”. The lecturers are Stephen L Macknik and Susan Martinez-Conde, both researchers from Phoenix, Arizona, and they are authors of a book that has that same title. I haven’t read the book, but I went to their website (www.sleightsofmind.com). Allow me to borrow from the authors’ own description of their work:
- "Neuroscientists Stephen Macknik and Susana Martinez-Conde, the founders of the exciting new discipline of NeuroMagic ... have convinced some of the world’s greatest magicians to allow scientists to study their techniques for tricking the brain. Magic tricks work because humans have a hardwired process of attention and awareness that is hackable—a good magician uses your mind’s own intrinsic properties against you in a form of mental jujitsu. By understanding how magicians hack our brains, we can better understand how the same cognitive tricks are at work in advertising strategy, business negotiations, and all varieties of interpersonal relations. When we understand how magic works in the mind of the spectator we will have unveiled the neural bases of consciousness itself."
Fascinating stuff. Not just because I’m interested in how magicians work, but because I am interested in what trial lawyers will do with these insights in a courtroom. What they are supposed to learn is pretty clear: how to “hack” the brains of everyone else in the courtroom: witnesses, jurors, other lawyers, and yes, judges. And so the question arises: is the courtroom a place where our faith in logic and reason is redeemed, or is it a theatre for a magic show?
You may think this is a one-off piece of enjoyable eccentricity. It’s not.
Last Saturday I had the pleasure of listening to a fascinating panel discussion at a Canadian Bar Association conference in San Diego, California. The subject of the panel was bias in judicial decision-making. The panellists were Craig Jones, and Art Vertlieb. Both are highly regarded lawyers: Mr. Jones is a law professor at Thompson Rivers University, whose research these days is focused on the psychology of advocacy; and Mr. Vertlieb is president of the Law Society. The panel discussion was based on an article that Mr. Jones published in the April 2013 edition of the Advocates Quarterly
entitled, "The Troubling New Science of Legal Persuasion: Heuristics and Biases in Judicial Decision Making".
The presentation consisted of a high level overview of recent psycholological research that is revealing how humans actually make decisions.
One example given is the phenomenon of decision fatigue. This is illustrated by a study done of parole boards in Israel. If I may borrow from an August 17, 2011 New York Times Magazine article by John Tierney (I didn’t make sufficiently detailed notes of Mr. Jones’ presentation last Saturday) what researchers Jonathan Levav of Stanford and Shai Danziger of Ben-Gurion University discovered after studying over 1000 parole board decisions was this:
- There was a pattern to the parole board’s decisions, but it wasn’t related to the men’s ethnic backgrounds, crimes or sentences. It was all about timing ... Judges, who would hear the prisoners’ appeals and then get advice from the other members of the board, approved parole in about a third of the cases, but the probability of being paroled fluctuated wildly throughout the day. Prisoners who appeared early in the morning received parole about 70 percent of the time, while those who appeared late in the day were paroled less than 10 percent of the time.
In other words, the outcome of these parole board hearings was not solely a product of rigorous fact-finding and rule-applying. It was also the result of decision fatigue, the “hard mental work” of ruling on case after case.
For trial lawyers the implications of this work are pretty clear: don’t ask judges to make hard decisions at the end of the day. If you can, plan your courtroom day so the hard decisions are made in the morning. But of course, the work of courts is not organized in a way that takes these considerations into account. Rather, the assumption - the presumption - of our legal system is that, assuming the facts and the law are the same, courts will make the same decisions at 3 pm as they would at 10 am. But that, it turns out, is not how we actually function.
Much of the work surveyed in Mr. Jones’ presentation would be familiar to readers of Daniel Kahneman’s fascinating 2011 book, Thinking, Fast and Slow, and the equally fascinating works of Jonathan Haidt, a New York University professor who has written The Happiness Hypothesis: Finding Modern Truth in Ancient Wisdom (2006) and The Righteous Mind: Why Good People are Divided by Politics and Religion (2012).
It turns out, or at least it increasingly appears to be the case, that we are not the creatures of logic and reason that we have fancied ourselves to be. Rather, we are repeatedly prone to biases and misconceptions. We make our minds up, and then we search for reasons to justify our decisions. We have a tendency to favour information that confirms the beliefs and hypotheses we already hold, which means we tend to disregard information that does not align with our preconceived notions of what ought to be true. We like people who are like us and tend to distrust people who are not. We are more apt to believe a statement if it is accompanied by a picture, even if the picture does not actually confirm the statement. We are prey to “associative effects” which mean that our decisions can be made more conservative if they are made to follow some evocation of fear. And our decision-making is affected by “presentation triggers” - the depth of our voice, the metre of our speech, our attractiveness, and so on.
And perhaps most importantly, most of the time, even if we know these biases exist, we are not actually aware they are operating.
Why are these presentations being made at law conferences? Well the main reason is to inform lawyers so that they can use these tools more effectively in their work. To speak in a certain way, to get their witnesses to dress nicely, to make certain kinds of arguments, and offer certain kinds of evidence. To realize that a more attractive geologist may be more persuasive as an expert witness than an unattractive one. To use pictures in addition to words. To conjure judges (and juries) into thinking in certain ways without them even knowing it. In other words, to improve their chances of winning.
All of this is interesting - and useful, too.
But I am more interested in what it all means for our faith in the ideology of the rule of law. If, as it is increasingly becoming clear, legal processes, legal reasoning, legal conclusions, are not quite so rational and objective as we have traditionally believed them to be, perhaps we should be a little more cautious - a little less triumphalist - about them. I have my own bias on this, to be sure. I believe that in the long run social and human welfare will be better served if we deal with our most difficult problems in the political arena, rather than in a courtroom. When we stop trying to turn all of our moral and political questions into legal rules. So if it turns out that the legal process is just as human and just as fallible as politics, I think, well, maybe that’s progress.