An article by David Robson of the BBC discusses the research of magician Jay Olson, who studies the psychological tricks of his profession, and explains how advertisers, politicians, and yes, magicians, among others, are master manipulators. More here.
Will brain science be used by the government to access the most private of spaces — our minds — against our wills? Such scientific tools would have tremendous privacy implications if the government suddenly used brain science to more effectively read minds during police interrogations, criminal trials, and even routine traffic stops. Pundits and scholars alike have thus explored the constitutional protections that citizens, defendants, and witnesses would require to be safe from such mind searching.
Future-oriented thinking about where brain science may lead us can make for great entertainment and can also be useful for forward-thinking policy development. But only to a point. In this Article, I reconsider these concerns about the use of brain science to infer mental functioning. The primary message of this Article is straightforward: “Don’t panic!” Current constitutional protections are sufficiently nimble to allow for protection against involuntary government machine-aided neuroimaging mind reading. The chief challenge emerging from advances in brain science is not the insidious collection of brain data, but how brain data is (mis)used and (mis)interpreted in legal and policy settings by the government and private actors alike.
The Article proceeds in five parts. Part I reviews the use of neuroscientific information in legal settings generally, discussing both the recent rise of neurolaw as well as an often overlooked history of brain science and law that stretches back decades. Part II evaluates concerns about mental privacy and argues for distinguishing between the inferences to be drawn from the data and the methods by which the data is collected. Part III assesses current neuroscience techniques for lie detection and mind reading. Part IV then evaluates the relevant legal protections available in the criminal justice system. I argue that the weight of scholarly opinion is correct: The Fourth Amendment and Fifth Amendment likely both provide protections against involuntary use of machine-aided neuroimaging mind reading evidence. Part V explores other possible machine-aided neuroimaging mind reading contexts where these protections might not apply in the same way. The Article then briefly concludes.
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.
The Scientist reports that according to a new Royal Society study, the emerging discipline of law and neuroscience may not be the magic technology that detects lies, at least not as far as the courtroom is concerned. fMRI scans seem to assist in identifying deceptive people. But figuring out whether someone is telling "the truth" if that person believes he is being truthful, has always been a problem, since such witnesses are credible. Their testimony simply differs from the facts. Thus, if the witness believes he is recounting actual events, even his version differs from what happened, and fMRI scans don't seem to help much, if at all, in identifying that witness.
As far as neuroscience in court goes, the study notes that many lawyers and judges have no training in the science on which neuroscience is based and do not understand its applications and limitations. Undergraduates do not learn how law and neuroscience applies in society. Lawyers and scientists do not have a systematic or official way to work together to discuss research in the field. More information, including links to a press briefing and the report in pdf, e-reader, and Kindle versions, is available here.
The Royal Society study seems to confirm what other studies have been suggesting for a while. See this blog's index term "neuroscience" for more posts.
Does deception have a tell? Better said, can you tell if someone has deceit on his mind? We're talking the guy in the next cubicle, not David Blaine. According to the authors of recently published papers in the Journal of Neuroscience, Psychology and Economics, and the Journal of Social, Evolutionary, and Cultural Psychology, maybe.
Says the Chronicle of Higher Education,
[M]aybe the answer is in his face. A 2009 paper tried to determine whether we know someone has Machiavellian tendencies just by looking at him. Researchers showed participants pictures of the faces of people who had taken the Mach-IV. Using functional magnetic resonance imaging, they found that participants’ amygdalas, which process emotion, were activated more when they viewed the faces of high Machs. They also lit up when they viewed people who scored high on psychopathy measures, though not on faces of people who scored high on narcissism (incidentally, psychopathy, Machiavellianism, and narcissism make up what psychologists ominously call “the dark triad”). From the paper:
"This indicates facial geometry contains accurate and reliable signals that reflect an individual’s trustworthiness and the neurology associated with threat detection is sensitive to these features."
Again, there are reasons to be skeptical. I haven’t come across follow-ups to this study (let me know if I’ve missed them) and there are scientists who think this kind of light-it-up brain-scan research is hooey.
Both of these studies depend on the widely used Mach-IV measure, which asks participants to agree or disagree with 20 statements like “All in all, it is better to be humble and honest than to be important and dishonest” and “Most people who get ahead in the world lead clean, moral lives” and “The best way to handle people is to tell them what they want to hear.” You have to wonder whether a true high Mach would really answer those questions honestly.
So, who's on first, here? People who believe one can, essentially, read minds by looking at faces (after analyzing brains)? Or people who believe they can fool people who ask questions by dishonestly answering those questions? PSYCH-OUT! Read the entire Chronicle article here. Read The Prince here. (I have always thought The Prince was just a little satirical, but maybe that's just me).
Tonight is the second episode of P&T's new show, Penn and Teller Tell a Lie. I have to say that while I generally like the duo's work, and I was prepared to like this show, last week's premiere underwhelmed me. Based on common sense, I picked out the lie (the feline "gag reflex" story, coupled with the photo of the New York Public Library lions) fairly easily, as did, apparently, a lot of other viewers. Obviously, P&T are "salting" the fake story with clues in order to teach the viewers something about critical thinking and careful observation, which is a Good Thing. I applaud them for that.
But I think a lot of today's viewers who generally aren't strong on critical thinking are strong on Internet searching. Great, I, say. Another teachable moment. Not being a magician, I feel free to reveal another way to pick out P&T's lie. Google. I repeat. Google, Google, Google. Or Bing. Bing, Bing, Bing. The Internet isn't all bad. It does have its good points, one of which is to verify positive information, as in this case.If one can verify a P&T story using key words, then one can eliminate that story as a candidate in the "lie" category. Googling does, however, make the premise of Tell a Lie a little less than magical. If the information that reveals or assists in revealing the lie, or eliminates some of the possible lies is easily available on the 'net, then the show is just a little less entertaining. That misses the point, you say? It's more fun to try to figure out the lie on your own, you say? Possibly. So refrain from Googling, Binging, Dogpiling, Alta Vista-ing, or otherwise assisting yourself cyberspatially. Me, I like trying to put one over on my favorite magician when I watch the show, and I like verifying my deductions. Some magicians are annoyingly deceptive guys, and frankly, in this case I feel no guilt in indulging in misdirection. "Honey, pay no attention to the clicking of keys from behind your curtain."
Ultimately, if viewers end by combining careful observation, critical thinking, and search skills, they'll have learned a lot from this show.
By the way, I actually believe in the feline "gag reflex." My felines exhibit it, and it increases exponentially as they approach, gag, and lie on any Oriental rug. This is a process. First they approach. Then they gag. Then I say, "Who left the hairball?" Then they lie.
As a follow-up to their immensely successful show, Bullshit, which aired on Showtime for eight seasons, magicians and political pundits Penn & Teller are offering up another skeptical look at the world around us on "Penn & Teller Tell a Lie," airing on the Discovery Channel beginning Wednesday, October 5th at 10 p.m., 9 Central time. I'm not particularly enamoured of the title, but I suppose "Penn & Teller Lie To You" is a little too obvious. The title is, after all, true, which is the fun of it. Reviews from Blogcritics here, Variety here. More here on the show from the Discovery Channel's website, which carries a warning: Don't Try This At Home. Already sounds promising. And like the lawyers have been obligatorily loose on the set.
Lawyers are given license to suspend what philosophers have called sincerity conditions. We ordinarily take people as being sincere in their speech. They expect us to do so, just as we, when we speak, expect others to take us as being sincere. Lawyers, however, are given license to be insincere. They are trained to be simultaneously truthful and insincere. On the one hand, they are required to tell the truth in the context of legal proceedings. On the other, they are insincere in that they routinely structure their speech to lead others into drawing inferences that will serve the lawyer’s goals, whether or not those inferences reflect a fair assessment of facts or law. This paper looks at the distinction between lying and deception, and finds some moral distinction, but not enough to justify the conduct acceptable by the legal profession on moral grounds. The paper discusses aspects of our psychology that make us vulnerable to the kind of deception practiced by lawyers, and concludes by criticizing American legal education for not imbuing a sense of responsibility in young lawyers that should accompany the license to be insincere. While the article focuses on lawyers working in the American adversarial system, many of the observations and issues apply to lawyers working in other legal systems, as well.
Professor Solan says in part:
Lawyers are given license to suspend what philosophers have called sincerity conditions. We ordinarily take people as being sincere in their speech. They expect us to do so, just as we, when we speak, expect others to take us as being sincere. The assumption of sincerity is generally suspended when we know that a person is speaking on behalf of someone else and taking an assigned position, making lawyers‘ insincere speech a special case of a more general phenomenon. Just as debaters and actors can and should put their own beliefs aside, lawyerly conduct can, in broad terms, be justified by the attorney‘s obligations in the adversarial system, which is often discussed under the rubric of role morality. After all, how can a lawyer represent a party in litigation without advocating for that party‘s position, whatever the lawyer believes?
Not all forms of insincerity are acceptable, however. Lawyers are trained to be simultaneously truthful and insincere. While they may structure their speech to lead others into drawing inferences that will serve the lawyer‘s goals, whether or not those inferences reflect a fair assessment of facts or law, they must not lie. It is acceptable to use cross-examination to direct a jury toward a theory that the evidence supports but which the lawyer does not believe to be true. It is not acceptable, however, for the lawyer to misstate the evidence in a closing argument.
This distinction – between lying and deception by misdirection – is accepted as a skill at which lawyers should become facile. Yet it rests on a shaky moral foundation. People typically have strong intuitions that lying is bad per se, and that that it is better to frame something deceptively than to lie about it. But many moral philosophers do not give much credit to this intuition. A person who is the victim of a deceptive practice generally feels no less violated just because the deception was not accomplished through a bald-faced lie. This essay explores this distinction, on which so much of lawyerly practice is based.
Moreover, the best lawyers are so convincing that they are able to cause their audience to let down their guard and to forget that they are dealing with an advocate. The essay also explores some of the psychology that leads to this sometimes unwise placement of trust. Thus, lawyers can be truthful, insincere, and effective all at the same time. In fact, they must be both truthful and insincere to be effective advocates, because zealous advocacy requires some degree of insincerity, and lawyers are not permitted to lie. This, in turn, explains why it is easy to distrust lawyers while, at the same time, admiring them. As Robert Post observed, lawyers ―are simultaneously praised and blamed for the very same actions.
Hmmm. Sort of like magicians (but less fun, and more expensive)? Download the essay from SSRN at the link, and pay no attention to the person behind the curtain.
Sad news from Hollywood. Actor Peter Falk has died at the age of 83. As Lieutenant Columbo, he bested two magicians: The Great Santini, played by the late Jack Cassidy, in "Now You See Him," and Elliot Blake (Anthony Andrews) who poses as a psychic, but is really a magician, in "Columbo Goes To the Guillotine." In that episode, the killer does in a fellow magician who knows too much about him. In both episodes, Columbo learns some magic tricks. More about Columbo at the Ultimate Columbo Site, and about Columbo and the law in Columbo Goes To Law School.