Skepticism and the legal system

[Nyarlathotep]

Having heard the news, today, that the Duke University Lacross team had been cleared by DNA evidence, I got to thinking about the justice system and how it requires almost the antithesis of skeptical thought.

In every report I heard or read, the news that the team had been cleared by DNA evidence was being touted by the defense attorney. Had the tests come out otherwise, I have no doubt that (unless the boys wanted a plea bargain or something) he would have sought to have the DNA evidence thrown out, possibly even challenged the accuracy of it. This is the problem, a test is either accurate or it is not. The way our justice system works is that you have two opposing sides , both of which start with a conclusion; one that the accused is guilty, the other that he is innocent. Both sides then try to work to find evidence for their conclusion and try to work the fact to fit it. In any other field, starting with a conclusion and finding facts that fit would be called pseudo-science or somesuch. But in the legal system it is the norm.

The problem is, I have to admit, I can't think of a better system. I have thought perhaps a better system mught be to have something of a detective or other fact finder (maybe several, with specialties in certain fields) who goes out, collects the facts of the case, reports to the court and then the judge makes a decision based on that. But I can see roughly a zillion problems with that, too. And maybe the fact that in this case you do two competing theories each trying to make a better case for being true helps it somewhat.

But even so, if you were going to remake society, how would you make the justice system work? What other alternatives would there be that would be fair and ensure that the guilty are punished and the innocent are not?

[jj]

Well, having recently been on a jury, a bit more critical thinking from the jury would discourage some of these behaviors, I think, but what's surprising is how well it works even under rather annoying circumstances.

On the other hand, if lawyers thought that using fallacies, etc, would not influence juries, they'd stop.

[TragicMonkey]

The system is fine; it's the people who are flawed.

[JamesDillon]

Nyarlathotep,

You're leaving out one key element of your analysis of the legal system. Yes, both sides start with a preconceived conclusion (more or less-- it's usually a bit more complicated than that, since most cases ultimately settle/plea bargain, but that's a fair approximation) and work to fit the evidence to that conclusion. However, don't overlook the fact that the evidence is weighed and the conclusion is reached by a neutral third party who has no interest in favoring one side or the other. In theory, the way this is supposed to work is that the attorneys for both sides build the strongest case they can on the basis of the available evidence, and the judge/jury then decides which side the facts best support. I think that, when it functions optimally, the legal system is very much a skeptical institution.


Edit: This is vitally important. The Duke lacrosse team has not been "cleared" of wrongdoing. What has happened is that no DNA evidence was found linking any of the players to the victim. This does not mean that the players are not guilty. It does not mean that the prosecution cannot go forward (in fact, the investigation is still continuing (http://sportsillustrated.cnn.com/2006/more/04/11/duke.lacrosse.ap/index.html)). Absence of DNA evidence does not preclude prosecution on the basis of other evidence, and the prosecutor seems to believe that he has further evidence that the players were involved.

[JamesDillon]

Well, having recently been on a jury, a bit more critical thinking from the jury would discourage some of these behaviors, I think, but what's surprising is how well it works even under rather annoying circumstances.

On the other hand, if lawyers thought that using fallacies, etc, would not influence juries, they'd stop.

About a year ago, the law firm I work for had a firmwide litigation department retreat. One full day of that event was spent having a mock trial and jury deliberation. The firm got 12 non-lawyers to sit in the jury box (I think they were employees of the hotel at which we were staying) and partners from the firm presented both sides of the case in a truncated trial format. The jury was then excused to another room to deliberate and reach a verdict, but there were cameras in the other room broadcasting their discussion to all of the attorneys in the audience (they were aware of this).

The interesting thing about it, from my perspective, is that the jurors completely ignored or misunderstood most of the salient facts and legal issues that, as an attorney, I found relevant, but they still managed to reach the same conclusion that I had! I still haven't decided whether that experience made me more or less confident in the jury system, but it was in any case quite illuminating.

[Nick Bogaerts]

The problem is, I have to admit, I can't think of a better system. I have thought perhaps a better system mught be to have something of a detective or other fact finder (maybe several, with specialties in certain fields) who goes out, collects the facts of the case, reports to the court and then the judge makes a decision based on that. But I can see roughly a zillion problems with that, too. And maybe the fact that in this case you do two competing theories each trying to make a better case for being true helps it somewhat.

Yes, that's closer to an inquisitorial system, which you see in Roman rather than Common Law, which you often find in mainland Europe. It has its own weaknesses of course, such as being more vulnerable to corporatism and corruption.

[Nyarlathotep]

Nyarlathotep,

You're leaving out one key element of your analysis of the legal system. Yes, both sides start with a preconceived conclusion (more or less-- it's usually a bit more complicated than that, since most cases ultimately settle/plea bargain, but that's a fair approximation) and work to fit the evidence to that conclusion. However, don't overlook the fact that the evidence is weighed and the conclusion is reached by a neutral third party who has no interest in favoring one side or the other. In theory, the way this is supposed to work is that the attorneys for both sides build the strongest case they can on the basis of the available evidence, and the judge/jury then decides which side the facts best support. I think that, when it functions optimally, the legal system is very much a skeptical institution.


Well, as I said, I think that it is possible that the fact that you have two competing ideas helps somewhat. It's just that, as a layman, sometimes it seems as if a trial is less an attempt to get at the truth of a matter as it is some sort of complex game wherein the players try to twist the facts to fit their side of the story. As a skeptic, that bugs me a bit.

[Nyarlathotep]

Yes, that's closer to an inquisitorial system, which you see in Roman rather than Common Law, which you often find in mainland Europe. It has its own weaknesses of course, such as being more vulnerable to corporatism and corruption.

That is one of the big weaknesses I have thought about it. Another is that it is that if your fact finder is less than impartial himself, it can lead to all manner of problems.

[JamesDillon]

Well, as I said, I think that it is possible that the fact that you have two competing ideas helps somewhat. It's just that, as a layman, sometimes it seems as if a trial is less an attempt to get at the truth of a matter as it is some sort of complex game wherein the players try to twist the facts to fit their side of the story. As a skeptic, that bugs me a bit.

As a skeptic lawyer, it used to bug me, too :) But bear this in mind-- the job of an attorney is not to be impartial. That responsibility rests with the judge and jury. The legal system functions best when lawyers present the strongest possible case for their client (within the boundaries of the very significant ethical rules that say, for example, that we can't lie or knowingly misrepresent the facts). The idea behind the system is that the fact-finder is in the best position to determine what the actual facts are when the competing interpretations of evidence are presented as vigorously as possible.

[Nova Land]

But even so, if you were going to remake society, how would you make the justice system work?I think the problem lies more in society than in the legal system, so I would focus more on changing social values.

The problem I see here in the legal system is that the lawyers -- both defense and prosecution -- often use tactics which are more about their side winnning than about truth prevailing. Even if one believes that one is right, one should be able to distinguish between tactics which help bring out the truth (so that if indeed you are right, then you will prevail) and tactics which will help your side prevail regardless of who is actually right.

That's not supposed to be the way the legal system works. But because of prevailing values in our society that is the way it does work -- and I can't see any change in the rules of the legal system that will make it work differently. Only when social values change -- when society values those who work to see truth prevail over those who work to see themselves prevail -- would I expect to see the kind of changes in the legal system which you are talking about.

That's not an easy change to make. But it is one which I feel skeptics can play an important part in bringing about. (Over time. Over a l-o-n-g time.) That attitude -- of working to bring out what is true, not simply working to beat one's opponents in debates -- is a core part of what I believe skepticism is about.

Randi and the million dollar challenge provide good examples of this attitude. The million dollar challenge is set up so that if someone truly possessed a paranormal ability they would be able to demonstrate it and they would prevail. (Compare that to any number of counter-challenges which paranormalists and biblical-fundamentalists have made, which are designed to be unwinnable and are simply tools for bashing the opposition with. Which, sadly, is how even some people here perceive the JREF challenge. Sorry, I don't have the link to the thread which gave me that impression, but can search for it later if anyone wishes.)

In order to get society at large to appreciate -- and, even more important, begin practicing -- skeptical values, we need to appreciate and practice them more ourselves. This forum is a good place to start. When visitors here see posters acting in ways that make it appear they are more concerned with whupping those who disagree than with truly illuminating issues, that is the message they will take away. When visitors can come here and see, instead, people doing their best to illuminate issues (even when doing so may undercut some of their own arguments) -- and if they see that this is actually a practical way of behaving which leads to more productive discussions with better resolutions -- then we have a better chance of their going away and adopting that behavior themselves.

[Cleon]

Well, it's not up to the lawyers to judge the case--that's for the judge/jury. The problem is, and I think people overlook this a lot of times, it's not the lawyer's job to get to the "truth." The lawyer is there to be an advocate for his client; nothing more, nothing less. It can be irksome for skeptics to see someone run rings around the truth, but to me, that's par for the course and in many ways that's how it should be.

[JamesDillon]

The problem I see here in the legal system is that the lawyers -- both defense and prosecution -- often use tactics which are more about their side winnning than about truth prevailing. Even if one believes that one is right, one should be able to distinguish between tactics which help bring out the truth (so that if indeed you are right, then you will prevail) and tactics which will help your side prevail regardless of who is actually right.

Subject to some important qualifications, I suppose that's basically true, but I don't see it as a problem as you seem to.

First, as to the qualifications, it is important to understand that very strict rules exist as to what lawyers can and cannot do during the course of a litigation. These largely boil down to: we can't lie, and we can't allow our clients or other witnesses to lie.

We can, are expected and arguably ethically bound to, cast the facts in the light most favorable to our client, to vigorously present any and all legal arguments favorable to our client's position, and to make every effort to persuade the court to adopt the interpretation of facts and law most favorable to our client's interests. Bear in mind that attorneys are fundamentally counselors and advocates. Our job is only to provide our expertise on the intricacies of the complex legal system in order that our clients may avail themselves of that system in pursuit of their own goals. We are emphatically not charged by the legal system to act with impartiality, nor is it our place to pass judgment on the merits of our client's case. Our job is only to help our clients present their case in the most persuasive manner possible to the court, which is the impartial decision-making body. The legal system requires lawyers to be partial and biased in order that it may best arrive at an impartial and unbiased decision. As I've said above, the fundamental idea is that, when both sides of an argument are presented as powerfully as they possibly can be, the decision maker is in the best possible position to find the truth. Obviously this ideal is not realized in every instance, but it is, in my view, a pretty good attempt at institutionalized skepticism, and it has worked very well for quite a long time.

[Nyarlathotep]

As a skeptic lawyer, it used to bug me, too :) But bear this in mind-- the job of an attorney is not to be impartial. That responsibility rests with the judge and jury. The legal system functions best when lawyers present the strongest possible case for their client (within the boundaries of the very significant ethical rules that say, for example, that we can't lie or knowingly misrepresent the facts). The idea behind the system is that the fact-finder is in the best position to determine what the actual facts are when the competing interpretations of evidence are presented as vigorously as possible.


Okay but what about the false dichotomies that seem bound to occur at times under the current system?

I don't feel adequate to the task of debating the fine points of case law with a lawyer, so lets make up a hypothetical case (and please correct me if anything is implausible about it, I am going off my non-lawyers knowledge of the legal system). Let's say our hypothetical defendant is accused of murder. The prosecutor makes his best case, which is that the defendant intentionally and pre-meditatedly kiled his victim, which IIRC is first degree murder. The Defendants lawyer makes his best case, which is that the defendant was nowhere near the murder scene at the time of the murder and couldn't possibly have killed the victim.

Now each lawyer will make his best case and the impartial judge and jury will pick which scenario holds up better. All well and good so far. But the false dichotomy can come in this way; what if NEITHER version is true. For example, what if the defendant indeed killed the victim, but he circumstances did not meet the definition of first degree murder, perhaps he killed the victim by accident, for example. Such situations seem likely to occur. So how do an impartial judge and jury get to the truth of the matter when neither of the competing stories is completely accurate, when the truth lies somewhere in the middle?

[JamesDillon]

So how do an impartial judge and jury get to the truth of the matter when neither of the competing stories is completely accurate, when the truth lies somewhere in the middle?

I think the system for the most part assumes that neither side's rendition of events will be completely accurate-- even if the parties agree on the basic facts of the case, so much rests on nuances of intention and motivation, or on the fine points of statutory interpretation, that the "truth" will almost always rest somewhere in the middle. I use the quotes there because, legally speaking, the truth is whatever the court finds the facts to be. It's easy to stipulate hypothetical situations in which all of the operative facts are clearly known, but in real cases what "actually" happened is to some degree fundamentally unknowable. Scientists and skeptics recognize that, for any set of observations, an indefinitely large number of theories exists that can account that set. The same holds true in the law, and much of a court's job involves figuring out which of the purported facts, and sometimes more importantly, which interpretations of the facts, are most credible.

You're right that it really isn't possible to be confident that, in every case, our legal system is capable of discovering each and every relevant fact and mechanically deriving a clear-cut remedy for the aggreived party on the basis of unambiguous statutory categories. If you can propose a system that can consistently do that, then I agree with you that it would be better than the one we currently have in place. But I don't think that's possible, and I think that the common-law system in which opposing advocates present the strongest factual and legal case possible for their client within the bounds of ethical propriety is a very good institution for getting it close to right most of the time.

As has been noted already, many continental European countries have an inquisitorial system in which, as I understand it, the court itself takes an active role in the investigation of the matter. I don't know much about how that works, but since their societies seem to run as smoothly as ours, I suppose it works well enough. I doubt that that system is any more reliable than ours in getting to the absolute truth of a matter, though.

[Nyarlathotep]

Hmmm, things to think about.....

[jj]

The interesting thing about it, from my perspective, is that the jurors completely ignored or misunderstood most of the salient facts and legal issues that, as an attorney, I found relevant, but they still managed to reach the same conclusion that I had! I still haven't decided whether that experience made me more or less confident in the jury system, but it was in any case quite illuminating.

The jury I was on was split this way. Several of us had a pretty good grasp of what the law and the judge had ordered. The forperson as well, but she also had, it would appear, an agenda that involved trying to downplay the judge's instructions.

I know I already wrote this up (it's somewhere in community) but the surprising thing was that the people who could follow the law, and who could think critically, were pretty much a broad spectrum of the jurors, and some of the professional types were no more skeptical or analytic than the stereotype of a factory worker from Ohio.

None the less, it worked out pretty well, which is interesting.

[jj]

As a skeptic lawyer, it used to bug me, too :) But bear this in mind-- the job of an attorney is not to be impartial. That responsibility rests with the judge and jury. The legal system functions best when lawyers present the strongest possible case for their client (within the boundaries of the very significant ethical rules that say, for example, that we can't lie or knowingly misrepresent the facts). The idea behind the system is that the fact-finder is in the best position to determine what the actual facts are when the competing interpretations of evidence are presented as vigorously as possible.


I guess the part that bothered me was that some of the jurors were sucked completely in by some of the defense's fallacies of rhetoric. In the end, though, they were argued away from that position in deliberations.

[Nyarlathotep]

Here's a thought that jj's post brought to mind.

Is it possible that the fact that you have to get twelve people to agree on something in hte US justice system (try getting twelve random people to agree on anything, g'wan, try it), possibly helps weed out the worst logical fallacies and leads to a better result?

If that's the case is it possible you could get just as good results with a lesser number, or better results with a higher one?

[JamesDillon]

Is it possible that the fact that you have to get twelve people to agree on something in hte US justice system (try getting twelve random people to agree on anything, g'wan, try it), possibly helps weed out the worst logical fallacies and leads to a better result?
That's arguably one of the main points of having a jury system-- the consensus of 12 people is more likely to avoid faulty reasoning than would a single person. Another justification for the jury system, which I think is historically valid even if rarely acknowledged explicitly, is its nullification function. A jury can serve as a safeguard to ensure that, where a technical breach of the law is established, punishing the accused for that breach is consistent with the norms and expectations of the community. It's sort of a warm, fuzzy glove on the iron hand of the law.

If that's the case is it possible you could get just as good results with a lesser number, or better results with a higher one?
That's a better question for a psychologist than a lawyer. I took a legal history course in law school, in which I think the origins of the 12-person jury (and even today they're not always made up of 12 people, nor is a unanimous verdict always necessary, though I think it may be in criminal cases) was discussed, but I'm a little hazy on the details.

Personally, as an attorney (or as an elitist snob, take your pick), I tend to trust a single judge to apply the law correctly more than 12 laypeople, but, for the reasons discussed above, the "correct" application of the law is perhaps not always the most desirable outcome, and conviction by 12 peers perhaps does give the process a greater moral authority than would conviction by a single judge (although, again, there are such things as criminal bench trials whenever the defendant waives his/her right to a jury trial).

[BPSCG]

The way our justice system works is that you have two opposing sides , both of which start with a conclusion; one that the accused is guilty, the other that he is innocent. Both sides then try to work to find evidence for their conclusion and try to work the fact to fit it. In any other field, starting with a conclusion and finding facts that fit would be called pseudo-science or somesuch. Might it be more accurate to say that each side presents its hypothesis about where the truth lies, rather than its conclusion, and that the jury acts as the peer review board, deciding whether the prosecution's hypothesis has been proven? This strikes me as being very much a scientific approach, as long as the judge can make sure irrelevancies don't creep into the evidence, and as long as the jury can keep its personal biases out of its deliberations. That's a couple of big "ifs" to be sure, but in the absence of running multiple experiements with proper controls (kinda tough to do in a murder case...), that would seem to me to be the best you could hope for.

[Nyarlathotep]

Might it be more accurate to say that each side presents its hypothesis about where the truth lies, rather than its conclusion, and that the jury acts as the peer review board, deciding whether the prosecution's hypothesis has been proven? This strikes me as being very much a scientific approach, as long as the judge can make sure irrelevancies don't creep into the evidence, and as long as the jury can keep its personal biases out of its deliberations. That's a couple of big "ifs" to be sure, but in the absence of running multiple experiements with proper controls (kinda tough to do in a murder case...), that would seem to me to be the best you could hope for.

Looked at that way, yeah, it sounds like as close to a scientific process as the circumstances allow. But still, my impression (which admittedly comes mostly from watching a lot of 'Forensic Files', so I will fully admit it could be waaaaaaaaay off) is that each side starts with a conclusion, and tries to fit the facts around it. BUt it could be looked at your way too, I suppose.

Mind you, I am not knocking the U.S. legal system or lawyers as a profession. Just wondering aloud about it, mostly. ANd this thread has been quite educational for me.

[jj]

Personally, as an attorney (or as an elitist snob, take your pick), I tend to trust a single judge to apply the law correctly more than 12 laypeople,

Personally, having been on a jury recently, I think you're right. The willingness of some of the jury members to ignore the law and the judge's directions I found a bit chilling, really. In the long run, though, others kept the process on track.

[ERGONER]

.... I got to thinking about the justice system and how it requires almost the antithesis of skeptical thought..
..well, the American 'justice' system as widely practiced today requires almost no thought by the citizenry. Government prosecutors simply select their targets & attack with a powerful array of police & administrative powers, and hundreds-of-thousands pages of arbitrary laws/regulations/precedents/interpretations; real legal justice is incidental.

However, in theory and constitutional edict, the American system is fundamentally based upon skeptical-thought -- nobody-is-guilty unless judged so, beyond any reasonable doubt by a neutral panel of fellow citizens.
The case must be proven to a skeptical jury.

The adversarial debate {..Trial } may be objective, subjective, or both. But the core principle of the 'judgment' process is always that the specific theory (indictment) is FALSE, unless proven otherwise beyond any reasonable doubt.
That core principle is ultimately subjective ... because 'scientific-certainty' cannot be routinely achieved -- therefore, the benefit-of-the-doubt always goes to the defendant ... as a key right of a free citizenry.

Our American system guarantees the right to jury-trials for criminal indictments -- because its designers well understood that government judges & magistrates (government employee-bureaucrats/politicians) could not be ultimately trusted with such power over the citizenry. Power Corrupts.

The American legal system looks good in theory, but a now sorry spectacle in practice. The Rule-of-Law is lost.
Nobody on the planet can even begin to know what the full 'Law' is in the United States ... and even less as to how some unaccountable government lawyer might choose to apply it against a citizen.