The Situationist

Opening Black Boxes – Abstract

Posted by The Situationist Staff on May 28, 2009

Black BoxJulie Seaman has posted another terrific article, “Black Boxes,” on SSRN (published in 58 Emory Law Journal 428 (2008).  Here’s the abstract.

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The metaphor of the black box has often been used to describe the qualities of the human mind; likewise, the jury box is frequently referred to as a black box. In both contexts, the metaphor is apt because of the inscrutability of the process that gives rise to the outputs that emanate from each. Recent advances in brain imaging techniques have now begun to crack open the black box that is the human mind by illuminating the physical manifestations – the “neural correlates” – of a wide range cognitive processes. In particular, research into the neural correlates of deception presents the genuine prospect of a reliable, forensically practicable lie detector within the foreseeable future. Here, I proceed in the nature of a thought experiment to explore the ramifications for the jury system of a highly reliable lie detection technique. In particular, I suggest that opening the black box of the mind would have the effect of opening the black box of the jury room.

Conventional wisdom has it that the jury’s primary – if not singular – function is to determine the historical facts of the case. Yet it is clear that in addition to finding facts, juries also operate in the much more controversial realm of making law. At its extreme, this law-making role may result in jury nullification, whereby the jury issues a verdict intentionally contrary to the law as instructed by the court applied to the facts as found by the jury. Whereas the jury’s power to nullify is well-settled, its right to nullify is highly contested. Thus, much of the scholarly and judicial discussion has focused on the issue of whether the jury may or must be instructed that it has the ability to return a verdict contrary to the applicable law. Though scholars are divided, courts have uniformly held that juries should not be told of their power to nullify.

To the extent that brain imaging lie detection techniques (along with other technological advances in forensics) diminish the need for jury fact-finding, the jury’s law-making role would become more transparent to the public and, perhaps more important, to the jury itself. In cases where the facts were clear, the possibility and the actuality of nullification also would become clear. Thus would arise the questions: Is the black box quality of jury decision-making integral to the nature of the jury system itself? Would opening the black box destroy it? Should even highly accurate lie-detection evidence be excluded in order to preserve the black box nature of jury decision-making? This Article offers a framework within which to begin to think about these questions.

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For a sample of related Situationist posts, see “The Situation of Hate Speech – Abstract,” “Jurors, Brain Imaging, and the Allure of Pretty Pictures,” “The Legal Brain,” and “Jury Selection.”

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2 Responses to “Opening Black Boxes – Abstract”

  1. Tamara Piety said

    I look forward to reading this article in detail, but I think the prospect of accurate fMRI lie detection is (as I understand it) still relatively remote, while the dangers of courts and the public leaping to adopt the latest technology that purports to offer reliable lie detection is fairly proximate and of grave concern. As the author notes, all one has to do is to look at the history of other lie detection technologies to feel some caution about embracing a new technology too enthusiastically, particularly when offered by the prosecution. The National Research Council’s recent report on the state of the forensic sciences contains some cautionary tales on this issue with respect to all manner of forensic testimony purporting to be “expert” (with some corresponding danger of deference from the jury) that has regularly (and continues to be) admitted by the courts but which lack empirical foundation. It is extremely important to not confuse or conflate what courts decide to admit with real evidence of the technology’s validity or reliability. A court’s decision to admit something is legal proof but not empirical proof, any more than a court’s decision to admit the testimony of an “expert” astrologer would be proof of the external validity of astrology as a practice. Compared to the rather remote and largely hypothetical question of whether, assuming fMRI lie detection achieves some reliability, it would do away with juries, the danger of admitting it without sufficient grounding seems to me of much greater concern. Many of those subsequently exonerated by DNA were initially convicted with dubious forensic science testimony. Conversely, there has been for some time fairly good evidence that juries cannot do many of the things we ask them to do.(Ex: disregard something they have already heard; use evidence for one purpose but not another, as when jurors are asked to use evidence of a witness’ prior conviction as evidence for assessing his credibility or character for truthfulness, but not for propensity; not discuss issue of insurance; and a host of other incredible constructs). And courts have been fairly resistant to permitting expert testimony about things that challenge existing assumptions, say the frailties of eyewitness testimony or memory or fingerprint comparisons, etc. Were accuracy of factual determinations the main concern in trials one might have predicted that all this evidence concerning unreliable forensics would be admitted and that the Rules of Evidence would have long since been reformed to bear some resemblance to how people really think. Indeed we might have predicted a system of evidence-based evidence as Simon Cole has suggested, and relied less on juries at that point, were it not clear that something else is going on. I think something else is going on and that the experience with forensic science generally to some extent answers the question posed here.

  2. [...] Opening Black Boxes – Abstract [...]

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