Law and Magic Blog

Daryl Bem and ESP

Discover Magazine's March issue has a lengthy article about Daryl Bem's research into ESP. Here's a link.

Neuroimaging Scans As Evidence

The literature on neuroimaging and its use in the courtroom is expanding furiously. Many legal scholars are weighing in on its uses, particularly on its possible use as a "magic cure" as a lie detector. Here's what Jennifer Bard, of Texas Tech University School of Law, thinks of neuroimaging scans and their use as evidence.

Jennifer Bard, Texas Tech University School of Law, A Call for a Moratorium on the Use of Information Derived from Neuroimaging as a Truth-Verifier in U.S. Courts.

Any law student who has taken Evidence has read about, or better experienced, an experiment in which a man bursts into a crowded classroom, runs through shouting and then leaves. When questioned directly after the event there is strong disagreement among the witnesses as to what the man was saying, what he was wearing and whether or not he had a gun. Based on the work of psychologist Elizabeth Loftus, now on the faculty of the University of California at Irvine Law School, this experience, more than any dry article about cognitive science, demonstrates the inherent unreliability of human memory and the conviction of eye-witnesses about what they have seen. Lawyers involved in the Innocence Project which is seeking to challenge wrongful convictions based on eye-witness testimony by examining conflicting DNA evidence have further brought these findings to public attention. As they explain, 'Research shows that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound.' Yet despite what has become common knowledge about the malleability of human memory, the idea that it’s possible to access the brain directly to find out whether a witness is telling the truth is being put forward by companies which seek to profit from research that suggests that new imaging technology can detect when a human is telling a lie. These companies are advertising this technology as a tool for law enforcement and promoting its use in U.S. trials as a way of helping juries to assess the credibility of witnesses.

This article explores these claims that neuroimaging scans can be used to detect lies, which far exceed those made by responsible scientists, and also puts them in the context of a series of U.S. Supreme Court cases which have dramatically changed how scientific (forensic) evidence can be presented to the jury in criminal trials. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L. Ed. 2d 469 (1993) (establishing new criteria for admission of scientific evidence); Crawford v. Washington, 541 U.S. 36 (2006) (requiring that defendants directly face accusors). It also addresses the significant criticisms being brought against what has often been incautious adoption of unreliable techniques. 'Strengthening Forensic Science in the United States: A Path Forward' (National Research Council 2009).

In this article I argue that promises of lie detection are not only based on false premises, but they are harmful to the integrity of the legal system because they seek to substitute a technology, which is not just undeveloped and inadequately tested but inherently flawed, for the judgment of the fact-finder, judge or jury, in a criminal trial. I conclude that even if there was neuroimaging technology which could provide direct access to human thought, the result would share the inaccuracies and subjectivity that we already know is an inherent feature of human memory. Moreover, because this technology promises to do something that jurors know they cannot - determine when a person is lying - there is a substantial risk that it will prejudice defendants because jurors will substitute the results of the technology for their own collective judgment.

Download the full text of the paper from SSRN at the link.

Fox Cancels "Lie To Me"

According to this story from The Hollywood Reporter, the Fox drama Lie To Me, finishing up its third season,  will not be back next year. The show is based on the work of Paul Ekman and features a psychologist, who with his team, tracks down criminals by detecting them in lies. Currently, seasons 1 and 2 are available in DVD.

The Situationist Blog

The Situationist, a blog run by Harvard Law School's The Project on Law and Mind Sciences, occasionally has posts of interest to us here at the Law and Magic Blog. Check out the "Illusions" category, for example. Here you'll find a post on that famous fleeting gorilla (not the 800 pound gorilla in the room, but the one who passes through, unnoticed except for those few folks who seem to be able to focus on just about everything), neuroscience and illusion, and "brain magic." Under the "law" category, you can check out Ian Herbert's post on the psychology and power of false confessions. Once made, they take on a frightening life of their own, and can tip the balance for jurors.

Who Ya Gonna Believe? Me? Or Your Lying' Eyes?

NPR's Robert Krulwich brings us yet more proof that eyewitness evidence might not be all that reliable. Professor Kokichi Sugihara creates simple (or not so simple) little gadgets that make a mess of our brains. "See" here.

The Salem Witchcraft Trials and Today's Prosecutors

Jane Campbell Moriarity, University of Akron School of Law, has published Wonders of the Invisible World Prosecutorial Syndrome and Profile Evidence in the Salem Witchcraft Trials in volume 26 of the Vermont Law Review. Here is the abstract.

The primary aims of this Article are to deconstruct the evidence from the Salem witchcraft trials and to determine whether those prosecutions relied upon syndrome and profile evidence, and whether such, evidence played a substantial role in the convictions. The secondary aim is to determine whether modern cases employ evidentiary methods sufficiently similar to the Salem cases such that we should reconsider prosecutorial syndrome and profile evidence.

This Article concludes that prosecutorial syndrome evidence and, to a lesser degree, prosecutorial profile evidence, were relied upon in the Salem cases and were important to the convictions. Moreover, in modem cases, which rely on syndromes for purposes of conviction and profiles for purposes of reasonable suspicion and probable cause, the essential cognitive error in the Salem trials is still present in the use of syndrome and profile evidence: the belief that criminal behavior can be determined with sufficient certainty by considering constellations of behaviors in either victims or defendants. This Article argues that experience-based conclusions about the relationship between observed behaviors and crime, when not subjected to a more searching or science-based scrutiny, are both incomplete and laced with the potential for error.

As developed more fully in Part VI, infra, courts have shown a great willingness to accept prosecutorial profile and syndrome evidence, the validity of which is premised primarily on the experience of law enforcement officers and treating therapists. Courts have not been forceful in requiring proof of the underlying belief structures that animate profile and syndrome evidence, namely that crime is meaningfully related to defendant behavior and victim behavior. Part VI submits that current appreciation for scientific method, along with the Supreme Court's mandate that trial courts engage in rigorous "gatekeeping" of expert evidence" and amended Federal Rule of Evidence 702, collectively support greater proof of reliability and validity of prosecutorial syndrome and profile evidence prior to its admissibility at trial.

Although the comparison between the witchcraft trials of 1692 and modem trials may be considered inflammatory, it is important to remember that the experts relied upon in Salem were employing precepts that had been in use for approximately a century." Moreover, although witchcraft may not have been the cause, there were numerous examples of people and animals in Salem becoming sick and dying. Thus, some of the harm was very real, even if the cause misperceived. Finally, it is the respective methodology under comparison, not the actual evidence. The law does not always recognize its own errors while they are occurring, but often discovers them only in the refracted light of history.

Download the full text of the Article from SSRN at the link.

Professor Moriarty discusses seventeenth century and modern "ways of knowing" and their probative value, suggesting that while they haven't changed since 1692, the assumptions we make about what we observe certainly has. She points out that scientists sometimes term "insights" what they use to fuel hypotheses (and then test by the scientific method). I note that others term these insights something else ("visions" perhaps) and don't test them at all.

Professor Moriarty's piece links up nicely, it seems to me, with what we seem to be learning about magic and neuroscience, and how magicians (and others) deceive us so easily. As Hercule Poirot, a devotee of justice, as opposed to prosecution, and a remarkable though fictional figure-outer of puzzles, it gives one furiously to think. His creator, like other good mystery writers, knew a lot about deception herself. But that's material for another post, about mystery writers and magic.

Minority Report

Hot on the heels of the BMJ's verdict comes this story from the New York Times, describing the publication of a study in the Journal of Personality and Social Psychology that seems to support the idea of the existence of clairvoyance.

One of psychology’s most respected journals has agreed to publish a paper presenting what its author describes as strong evidence for extrasensory perception, the ability to sense future events....The paper describes nine unusual lab experiments performed over the past decade by its author, Daryl J. Bem, an emeritus professor at Cornell, testing the ability of college students to accurately sense random events, like whether a computer program will flash a photograph on the left or right side of its screen. The studies include more than 1,000 subjects.[link omitted]

Charles Judd, the outgoing editor of the Journal of Personality and Social Psychology, which is a publication affiliated with the American Psychological Association, explained to the NYT that “Four reviewers made comments on the manuscript and these are very trusted people.” But one critic says that the standards reviewers use when critiquing articles that challenge accepted science ought to be different from those they use when they examine articles that are building on accepted scientific concepts. "Several top journals publish results only when these appear to support a hypothesis that is counterintuitive or attention-grabbing,” Eric-Jan Wagenmakers, a psychologist at the University of Amsterdam, wrote by e-mail. “But such a hypothesis probably constitutes an extraordinary claim, and it should undergo more scrutiny before it is allowed to enter the field.” Dr. Wagenmakers writes a response to Dr. Bem's study in the same issue of the Journal. Here's a link to a draft of the study; the text notes that it is "not the copy of record."

Putting aside questions about the validity of the study, what would happen if ESP were to be shown to be a certainable ability? Suppose we could demonstrate that certain individuals had it, and could harness it predictably? Would we enter the world of Philip K. Dick's "minority report"? What would be the implications for free will? For the law?

Currently, we do not arrest people for crimes they are going to or might commit, although in certain cases, prosecutors and legislators try to create situations in which people can be detained or jailed for prospective actions.  Consider the situation of an individual who is pleasantly buzzed and sitting behind the wheel of a parked car. Should he be arrested for driving while intoxicated? No, because he's not driving. Can he be arrested for being drunk in public, for example, under California Penal Code section 647(f)? Possibly, even if he isn't completely under the influence, and the arresting officer may also be concerned that the individual might put the keys in the ignition and drive away under the influence, so the officer might arrest for public drunkeness to prevent the greater, potential harm.

Consider an even more interesting problem that has been in the headlines recently. Prosecutors have been attempting to commit sex offenders to a term of civil commitment after they have served their prison terms under the Adam Walsh Child Protection and Safety Act of 2006 (18 U.S.C. § 4248). In U.S. v. Comstock, the U.S. Supreme Court considered whether such an extended term is constitutional and held that Congress had the power to allow extend such terms on the theory that Congress has the right, as guardian of federal prisoners, to extend their care as long as necessary until it (or its appointed caretakers) deem that they are no longer a danger to society. Thus, these particular offenders serve not simply their mandated criminal sentences, but additional civil terms, and these civil terms seem to be open-ended.

If some individuals (let's call them ESPers) had the ability (clairvoyance) to discern who was likely to commit a murder, or a rape, or a kidnapping, or a robbery, and alert the police (or more benignly) the victim in order to avoid those circumstances that would avoid the tragedy, then we might applaud those outcomes. But we would need a 100 percent success rate. And how would we measure that success rate? Life is not a scientific experiment. We have no way of detecting whether, all things being equal, things might have turned out differently without the ESPer's alerts. If we didn't have a 100 percent success rate, then we would run into all sorts of other problems, some of them legal. For example, suppose the standard operating procedure in a non-100 percent success rate environment for an ESPer is to alert the police that a murder will or might occur. Suppose the police, for whatever reason, don't act immediately to prevent the murder, and the ESPer becomes concerned and notifies the possible victim. The victim acts by killing the identified killer, not moments before the identified killer tries to kill the victim (that is, not in self-defense) but an hour before, or days before, because the victim is certain, based on the advice of the ESPer that the victim will be killed by the killer. Now we have a murder, all right, but the victim is the killer. Do we have self-defense, albeit days before? How far can we stretch the self-defense category? Should we stretch it at all in these circumstances? Does the fact that the police do nothing allow the victim to protect herself more than if they had done anything at all? Suppose the victim can show that the (now dead) killer was preparing an attack on her and that the ESPer was in fact correct about the vision of murder? Suppose the victim can show that the ESPer's visions are 95 percent accurate? What if they are only 50 percent accurate? Should testimony about ESPer accuracy be allowed at trial? What about testimony about reasonableness concerning the victim/defendant's reliance on ESPer accuracy?

I'll stop here, because I could go on and on. However, in terms of proof of the existence of ESP--we aren't there yet. We are not anywhere near there. We are in a world in which some people accept that the paranormal exists, some don't, and some wonder, and find the question very interesting. And the courts do not take judicial notice of ESP.

Psych-Ing Out Harry Potter

For Harry Potter fans, a new book (at least new to me) called The Psychology of Harry Potter: An Unauthorized Examination of the Boy Who Lived, edited by Neil Mulholland, and published by Benbella Books. I admit that I don't quite understand the subtitle ("An Unauthorized Examination of the Boy Who Lived". Lived where? Lived what? How? but anyway. Among the essays included are Jessica Murakami's "Mental Illness in the World of Wizardry," and Patricia Rippetoe's "Defense Against the Real Dark Arts."

A couple of other Harry Potter psychology and philosophy titles, if you like this subject:

• David Baggett, Harry Potter and Philosophy: If Aristotle Ran Hogwarts (Open Court, 2004).
• William Irwin, The Ultimate Harry Potter and Philosophy: Hogwarts for Muggles (Wiley, 2010).

Hectic Holidays Ahead, But Do the Planets Cause Them? Or Is It the People On This Planet?

So the astrologers are telling us that Mercury is in retrograde during the upcoming holidays and thus, We Are In Trouble. What To Do?

According to one of the Sexy Beast's interviewees, "shoppers who wait until after Dec. 9 will get stuck with faulty products or presents that no one wanted in the first place. By mid-December, holiday travelers will be hit with bad weather, mechanical errors and possibly, terrorist threats. Wars may break out, marriages will dissolve, people will lose their jobs and, as astrologer Gahl Sasson put it, “the whole planet is going to have Tourette’s syndrome.”" Yikes.

Apparently, among the best advice astrologers consulted have is to finish shopping early. Think practical. Buy gift certificates, not electronics, which I suppose could break down (although they do that even when Mercury isn't in retrograde. And what about the years when all this stuff happens and Mercury isn't in retrograde? I don't understand). Don't overdo. Be flexible.

All good advice. But on the other hand, don't psychologists give out similar advice every holiday? See Relationship advice for the holidays here, travel advice for the holidays here, and depression busters here. Oddly, Mercury in retrograde is not mentioned in any of them.

Carry on. I wish you and yours a wonderful non-denominational gift-giving occasion.

Magicians and the Psychology of Illusion

To add to the reading list:

Sofie Lachapelle, From the Stage to the Laboratory: Magicians, Psychologists, and the Science of Illusion, 44 Journal of the History of the Behavioral Sciences 319-334 (Fall 2008).

In 1894, French psychologist Alfred Binet published an article on the psychology of conjuring. By observing five magicians perform in his laboratory, he was hoping to gain a better understanding of the psychological processes responsible for inducing illusions in an audience. This article focuses on the subjects of these experiments and their world. It attempts to explain why five men belonging to a profession in which secrecy was vital agreed to enter the laboratory and reveal their tricks. It argues that magicians saw themselves as men of science and that, by entering Binet’s laboratory, they were responding to an opportunity to participate in a world to which they wished to belong.