The last decade has witnessed a profusion of commentary on “mind-reading” devices. The scholarly consensus is clear: by essentially “speaking for” defendants, mind-reading devices would offend the basic spirit of the Self-Incrimination Clause. This Article takes the opposing view. First, I reconstruct the Court’s self-incrimination jurisprudence to demonstrate that evidence is only “testimonial” — and thus, privileged — if it involves a “communicative act” from the suspect. Whether or not particular types of mind-reading devices would elicit “communicative acts” is a narrow, technology-specific question. And at least some mind-reading devices almost certainly would not — making their use permissible under the Fifth Amendment. Second, I defend this doctrinal result against normative attack. Many different accounts of the privilege’s theoretical underpinnings exist. I evaluate these accounts in turn, arguing that some are inapposite to mind reading, while others fail in a deeper sense.
Rose Marks and several other members of her family say that they have real psychic powers, which allow them to help persons in distress and put them in touch with deceased loved ones. Federal prosecutors say Ms. Marks and her family are nothing more than scam artists who take victims' money, in some cases thousands of dollars. One person who says she lost money to Rose Marks, almost a million dollars, is the novelist Jude Deveraux. Ms. Deveraux says Ms. Marks, using the name Joyce Michael, became "the source of pain, deception and fraud while trapping Deveraux with threats and the promise of hope."
The defense attorneys in the case are raising a First Amendment free exercise argument, saying that their clients' beliefs in psychic powers and their other practices are part of a sincerely held religious belief. Federal judges in other circuits have held that states cannot prohibit individuals from telling fortunes for pay, for example. The First Amendment exists to protect speech that allows people to engage in discussion on important issues, or issues that they think are worthwhile. Because the First Amendment, one of our fundamental rights is implicated, a court applied the "strict scrutiny" standard, which requires that the government demonstrate that it has a compelling interest (an interest of the highest order) to suppress or limit the speech, and that it is doing so in the most limited way with the narrowest means available. The cases in which federal judges have upheld the rights of fortune tellers, astrologers, clairvoyants and other "crafty science" practitioners to "speak" under the First Amendment include Argello v. City of Lincoln (143 F.3d 1152 (8th Cir. 1998)),(upholding the right of the plaintiff to tell fortunes for pay). See also a prior Law and Magic post here.
However, while the First Amendment is liberal in its protection of speech and belief, it does not protect criminal conduct. What is at issue here may be instead a law of general applicability, a law that is neutral in terms of its application to everyone. If so, if it applies to everyone regarding of his or her beliefs or speech, then the defendants here have a much less convincing argument that they are being targeting for their religious beliefs. The judge in Trimble v. City of New Iberia makes just this point.
For purposes of plaintiffs' motion, the Court will accept the City's position and assume that consumer protection is a compelling state interest. Therefore, the validity of the Ordinance depends on whether it is reasonably necessary to achieve the City's compelling interest. Plaintiffs argue that consumer protection against fraud and unfair trade practices is already provided under state law in the Louisiana Unfair Trade Practices Act, La. R.S. 51:1401 et. seq. Plaintiffs assert that to the extent fortunetelling and the like may be unfair or deceptive, they are already prohibited by state law. The Supreme Court has pointed out that the "existence of adequate content-neutral alternatives undercuts significantly" the government's position that its challenged legislation is reasonably necessary to achieve its interests. R. A. V., 505 U.S. at 395. If the City were concerned about protecting consumers who solicit the services of the plaintiffs, the City could have enacted legislation similar to the Louisiana Unfair Trade Practices Act.
Trimble v. City of New Iberia, 73 F. Supp. 2d 659 (U.S.D.C., W.D. La., Lafayette-Opelousas Div., 1999)(boldface added by editor).
Incidentally, the First Amendment also does not necessarily protect speech "when it is the very vehicle of the crime itself." See Rice v. Paladin Enterprises, 128 F.3d 233 (4th Circ., 1997) at 244.
The case may depend on the language of the statute under which the defendants were charged as well as what the prosecutors can prove the defendants actually did.
Predictive policing is based on the theory that by analyzing past crime patterns and crime data, police analysts can identify future hot spots of crime. Using this predictive modeling, police officers are directed to patrol areas of expected crime for additional police attention. These small hot spots of heightened police presence are poised to become the centerpiece of a new smart policing strategy in which law enforcement resources are directed to targeted locations before the crime occurs. The initial results have been strikingly successful in reducing crime.
Predicting the impact on constitutional rights in those targeted hotspots may be a bit more complicated. One of the unintended consequences of predictive policing technology may be the erosion of Fourth Amendment protections for individuals in those high crime areas.
This article addresses the Fourth Amendment consequences of this police innovation, analyzing the effect of predictive policing on the concept of reasonable suspicion. For example, what happens when patrol officers arrive at the predicted area of crime? If officers observe suspected criminal activity informed by the predicted information, should that information factor into the reasonable suspicion calculation? What are the constitutional consequences of this predictive suspicion? Are data driven “hunches” any more reliable than personal “hunches”? How will this predictive information affect courts addressing whether the individual officer had individualized suspicion of a suspect? These questions have not been addressed by the courts and need sustained consideration.
The article argues that in its idealized form, predictive policing can contribute to the reasonable suspicion analysis and would survive constitutional scrutiny under existing Fourth Amendment precedent. However, predictive policing may expose a weakness in the current reasonable suspicion doctrine, and thus may cause a reevaluation of how courts currently analyze the impact of “high crime area” designations in Fourth Amendment cases.
What happens to a person convicted by scientific (expert) testimony that later comes to be repudiated? Is there a magic key that can open the door of his prison? Caitlin Plummer and Imran Syed tackle this issue in a new article, forthcoming in the Stanford Journal of Civil Rights and Civil Liberties. Here is the abstract for their piece, 'Shifted Science' and Post-Conviction Relief.
Of the many known causes of wrongful convictions, perhaps the most complex and diverse is junk science. We explore here a long-overlooked subset of that category and ask the question: What can be done to cure the injustice of a conviction that was based on scientific testimony that may have been accepted in the relevant scientific community at the time of trial, but has since been completely repudiated? In such an instance, a defendant remains in prison even though the evidence that served as the basis of his conviction has been renounced. After describing the problem and conducting a review of common post-conviction claims- and the reasons they fail in this situation- this article argues that state courts must allow defendants in this unique bind to file new evidence claims to obtain relief. Because new evidence is, as of now, not recognized as a viable basis for a federal constitutional claim, defendants will not have easy recourse in federal habeas corpus petitions, and it is especially crucial that state courts ensure that their rules for new trial motions on the basis of new evidence are broad enough to cover the important category of people discussed here. The article concludes by proposing that federal courts could provide relief to such innocent defendants on habeas if they embrace expansive interpretations of a person’s right to be free from unjust incarceration, and they should do so in order to continue to serve as a check on state court failures causing manifest injustice.
Download the article from SSRN at the link. The citation is
With this essay I begin an examination of the effect and influence of psychics and psychic detectives on the legal system and popular culture. Scripted shows such as the popular Medium and the recently cancelled Ghost Whisperer enhance the personal accounts of the psychic detectives on whom they are based, adapting interesting characteristics and stories, and creating entertainment for viewers. Psychic detective shows such as the reality shows Psychic Detectives, Psychic Witness, and the new series Paranormal Cops provide an alternative to the popular crime scene investigation (CSI) shows as a way to provide a window into the legal system for America’s TV audience. The CSI shows rely on experts and an exciting array of scientific tools, suggesting that scientific evidence often can be so conclusive that the prosecutor in criminal cases can satisfy the “reasonable doubt” standard with no problem. Psychicdetective shows seem to present investigative television that appeals to those interested in the spiritual and the unknown and offer a contrast to the certain outcomes of CSI shows by posing questions that seem closer to the realities with which many viewers are more likely to be familiar through their newspaper and tv experiences. Sometimes juries or judges acquit defendants even though they seem to be guilty or convict them though they seem innocent. Some members of the public think they have paranormal experiences and regularly go to psychics. Many people read newspaper horoscopes, even if only for entertainment, and love the inserts in their Chinese fortune cookies.
Further, such shows emphasize what many viewers may consider to be the fallible side of the legal system, playing on existing viewer fears that defense attorneys with their “tricks” can overwhelm prosecutors and juries. These fears include those that arise out of the impression that constitutional guarantees such as those embedded in the Fifth, Sixth, and Fourteenth Amendments are “loopholes” or “technicalities,” which function solely to give the accused far too many rights at the expense of the victim and his or her family. Linked to that fear is the idea that the police may arrest the wrong person or fail to solve crimes altogether. In conjunction with a news media which deluges viewers with stories about cold cases are horror stories about criminals inexplicably allowed to go free who then commit additional crimes, killers never caught and the suspicion that innocent persons may spend years in prison or may well be executed, such “psychic detective” shows present a convenient solution to what seems to some to be an insoluble and horrific dilemma.
Law enforcement in Santa Cruz is using a tactic called "predictive policing" to try to discern when crimes might spin off from an initial infraction. The practice uses computer modelling to try to figure out when individuals might commit future crimes. It's not sf, it's apparently the latest in attempts to use both computer science and psychology to cut crime proactively now that the economy is down and city, county, and state budgets are no longer so robust.
Why might the police use predictive policing rather than simply watch suspects or persons of interest? They don't have the manpower, and if they don't have sufficient grounds, they also might be subject to an individual's claim that he's the target of police harrassment. But a prediction served up by computer program that certain types of crime, might be likely to occur in certain neighborhoods, based on statistical patterns, could be very helpful.
The Department of Homeland Security is also testing out predictive policing in order to try to weed out terrorist. Its program is called FAST (Future Attribute Screening Technology). Like other commentators on this type of program, the May 27, 2011 Nature article that discusses it likes the analogy to Philip K. Dick's story The Minority Report, made much famous by the film based on it which starred Tom Cruise. Says Nature,
In lab tests, the DHS has claimed accuracy rates of around 70%, but it remains unclear whether the system will perform better or worse in field trials. "The results are still being analysed, so we cannot yet comment on performance," says John Verrico, a spokesman for the DHS. "Since this is an ongoing scientific study, tests will continue throughout coming months."
As I understand the predictive policing systems, none of them promise to identify which individuals will actually commit crimes in the future, as the individual psychics in Minority Report do. But I can understand how some members of the public might believe that such systems might do that, and might object to the use of such systems, or in the alternative, might believe that such systems might do that, and might favor the use of such systems. They might believe that getting potential criminals off the streets before they commit crimes ought to be the business of the police. Lock 'em up, they say. That will keep us safer. After all, isn't continuing the civil confinement of a sexual predator a good idea? (The Supreme Court agrees to some extent: see U.S. v. Comstock--federal law allows civil commitment of mentally ill, sexually dangerous federal prisoner after date he is scheduled to be released from criminal confinement). If a predictive policing system can do that, it's magical. Indeed. We've been looking for the magic that can tell us who's good and who's bad for centuries. That's Santa Claus's list. I think only he has it, and I don't know anyone who has talked to him.
On the Franklin & Bash episode aired June 23 ("Bro-Bono"), the prosecutor makes a Penn & Teller reference, and in my opinion, not an apt one. ADA Janie Ross, Peter Bash's former girlfriend, who is often assigned to prosecute his cases (are there no other ADAs in that office? how odd) objects to one of the pair's shenanigans in court. As Mr. Franklin flips opens a beer and proceeds to imbibe (in open court), working on a theory of their case in order to try to acquit their client, the judge senses that his courtroom is rapidly becoming a circus.
Mr. Bash: "We're arguing that it takes time for alcohol to be absorbed into the body. Mr. Franklin is demonstrating that to the jury." The judge: What's going on here? Ms. Ross: "Your Honor, may we approach the bench with Penn and Teller?"
First, nothing about Franklin & Bash's inappropriate demonstration is remotely magical. Why Janie Ross uses any magician's name in referring to them is beyond me. They aren't using any sort of misdirection, for example. Everyone can see Franklin opening the beer and drinking it; the question is why? Even after his partner explains the reason, the question is still why? If you want to explain to the jury that alcohol takes time to be absorbed into the bloodstream, call an expert witness. Don't drink the alcohol and then ask the police officer to test your partner's responses with a breathalyzer, which is what these two clowns do. (I said they turned the courtroom into a circus).
Second, judges frown on lawyers (particularly prosecutors) who make the "magician" argument. Comparing opposing counsel to a magician is bad form. In extreme cases, it might be grounds for reversal. As I discuss in a recent article, U.S. appellate courts in general disapprove of lawyers who use magical terms or refer to opposing counsel as magicians. For one example of how appellate courts treat the magician argument, see State v. Nasi, 2005 Wash. App. LEXIS 831 (excerpt below).
Because calling counsel a magician has negative connotations, we do not encourage the use of this metaphor. To protect the integrity of the adversarial system, prosecutors should be exceedingly careful, when commenting on defense counsel's strategy, not to improperly disparage defense counsel or defense counsel's role.
Third, Penn & Teller have said and written repeatedly that they don't drink alcohol. See Penn & Teller, How To Play In Traffic (1997), and numerous interviews, and I would think that most people who have heard of the pair know that. So, I wouldn't compare a beer-drinking lawyer in a courtroom (even one doing so to make a point for his client) to P&T. Even a fictional one. Even on TV. It just doesn't make sense.
Finally, the only reason that I can think of for using a magical analogy is to sway the jury. If a lawyer is going to use a magical analogy, she had better be sure it's a good one. Janie Ross's P&T analogy isn't a good one. As I noted before, Franklin & Bash aren't performing any kind of magic here. Franklin is drinking beer and then plans on a breathlyzer test. Neither Franklin nor Bash leads up to nor continues with any kind of "magical" reference. I think Ms. Ross is just trying to use the P&T name for reasons of her own, reasons which I, at least, don't understand. The reference may in fact, help her opponents, since the jury may identify them with the popular magicians. So, what exactly did the writers have in mind?