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« Law & Cognition 2016, Session 1 recap: Whence the Likelihood Ratio? | Main | Protecting the Vaccine Science Communication Environment (new paper) »
Friday
Aug262016

Law & Cognition 2016: On-line seminar

Well, it’s that time of year again . . . school starts Monday!

Just as I did last year, I’ll be teaching the seminar Law & Cognition this fall.   This document on “course information & topics” is what passes for a syllabus, although if you like you explore the complete set of “reading lists” for an earlier version of the seminar.

Now, last year I did manage to post occasional “class reports,” including a three-part set on the “impossibility” of rules of evidence (parts one, two & three).

But this year, I’m going to try to be more diligent about posting class summaries of the sort that would allow “virtual participation,” including on-line discussion.  

Indeed, it would be great if this course developed the sort of on-line presence that the 2015 Science of Science Communication one did—the weekly discussions there were amazing, mainly owing to Tamar Wilner’s regular and insightful essays.

Well, we’ll see anyway!

But without further ado, let’s turn to week one. 

The reading list & study questions are posted below (and here, if you prefer to download .pdf versions).  If you can’t get ahold of Pennington & Hastie, then a great substitute is unfirewalled here.

But also read the “How would a Bayesian Factfinder behave?” document—I anticipation that will be the lynchpin of discussion, at least at the start, when class meets on Tuesday.

“See you” there!

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Reader Comments (3)

My first thought is that we've got no evidence besides Rick's word for it that it happened like that. Objectively, we've got a dead body with knife in hand and Rick's bullets in it, and Rick's testimony. And it's a given that a clever murderer would have a good-but-unverifiable story. Maybe the knife was taken out in self-defence?

Conversely, maybe the true events were actually *more* damning regarding Frank's threat to Rick, but Rick didn't want to give evidence on that because it would lead to police questions in areas Rick didn't want them to go. Consider, for example, Alan Turing complaining to the police about a burglary at his house, telling them who did it (information he got from his boyfriend), but in the process opening up a line of questioning that ended up with him admitting to homosexuality, then illegal in the UK. There are circumstances where the genuine victims of crime may have good reasons not to tell the police the whole story. Rick may have only told the minimum needed to cover himself. So even if you're able to poke holes in the story, that doesn't mean that it wasn't self-defence.

For example, suppose Frank was blackmailing Rick for access to the company building. Rick had handed over the card, and hence had no means of retreat, when Frank discovered that it didn't give access to the money, and tried to kill Rick in a drunken rage. Rick retreated as far as he could, pulled out the gun, and shot him. Then recovered the card, re-entered the building, paused for a few minutes while getting his story straight in his head, then calling 911. He obviously couldn't admit that Frank had had the key card so his escape was cut off without having to admit to the blackmail. He therefore relied on the 'stand your ground' principle. Even if the law doesn't actually allow that, if Rick can persuade the jury that he had believed it did (and was not in a position to make considered legal judgements), he may well have believed that he was acting legally. The 'mens rea' principle requires that a person be aware that their action is (or is likely to be) prohibited. I don't know whether a genuine/reasonable belief that one is covered under self-defence constitutes a valid legal defence to a charge of premeditated murder. (Or ought to be. It's an interesting philosophical question.)

Based on the information available so far, I'd say the case is not provable, one way or the other. As either prosecution or defence, I'd be waiting for forensic evidence, looking for other witnesses, and investigating the background of any relationship that might have previously existed between them, or any other circumstances liable to raise passions. I think a competent prosecutor would be able to discount Rick's testimony as unproven, but without further evidence would not be able to use that to prove that it was not self-defence. I'd say the defence was currently in the stronger position - although given that people do get convicted on purely verbal evidence, I'd not consider it a safe bet.

--

Having briefly skimmed the reading material, the only thing I'd say would be that juries are used precisely because of those situations when the common social understanding of morality differs from the letter of the law and the intent of the legislators. It's a safety mechanism, to avoid the law diverging too far from the far more complex morality jointly agreed by society, that the legislature can only approximately determine and codify. Although the theory is that juries are instructed by the judge on the correct interpretation of law, and are meant to use that, there is a deeper theory that makes it their job sometimes to overrule that - i.e. jury nullification. Some of the cases where jurors substituted their own informal understanding of the law over the judge's instructions may be instances of this, rather than psychological incompetence on their part. Only when persuaded of the morality of the law's interpretation, by understanding the reasons for it being the way it is, do they actually use it.

There's a close and informative analogy between morality and language. The language people actually speak is incredibly complex, subtle, sophisticated, deeply consistent, and almost entirely unconscious. It is negotiated during the constant interactions between millions of people trying to communicate and live together. People have tried to find systematic rules and principles that it follows (or they believe it ought to follow) and have written many books on grammar and style. There are even people who have set up committees of 'experts' to define correct language usage, and impose their rules on the rest of society. But society laughs, and carries on inventing and changing, while the committees stumble along in unwilling pursuit. The average 5-year old often has a deeper (if unconscious) intuitive understanding of grammar than a student educated in the formal rules. We rely on juries precisely because they often have a deeper understanding of right and wrong than can be codified in a set of fixed rules ahead of time and in ignorance of the detailed events. (Again, it's an interesting philosophical question whether we should.)

So in understanding why juries sometimes ignore instruction in favour of their own interpretations, you need to first check that they're not nullifying verdicts with regard to laws they actually do understand but don't agree with.

August 31, 2016 | Unregistered CommenterNiV

@NiV-- you won't even take my word for it on a vignette? Oh boy...

It would be interesting to see what the lawyers would do w/ you if you were a prospective juror & gave these answers during the jury-selection voir dire.

As for jury's moral perception -- why are the jurors any better equipped to do what you are describing than any other socially competent person or group of them? If we had professional factfinders, wouldn't they possess the same sort of moral-life sense plus an acquired professional legal-proceeding sense to boot?

BTW, was Smith one of the things you were able to find & skim? Is there something *wrong* w/ the rules the jurors (if we assume these studies are modeling what real ones do) aren't following? Why have rules at all?

September 1, 2016 | Registered CommenterDan Kahan

"@NiV-- you won't even take my word for it on a vignette? Oh boy..."

:-)

"If we had professional factfinders, wouldn't they possess the same sort of moral-life sense plus an acquired professional legal-proceeding sense to boot?"

Yes, but it's both specific to a particular sub-culture, and inevitably polluted b that professional awareness.

A professor of linguistics, nowadays, if he wishes to argue for a particular formation being grammatical or otherwise, will cite surveys of ordinary people speaking. While he's perfectly capable of speaking English himself, and will indeed derive a lot of his results through introspection, he has his own quirks and differences of accent, dialect, and idiom, as does every individual. The ultimate source is always the statistical collective.

For that matter, a professor of social psychology has their own personal psychology, and could also derive research results by introspection. Or by surveying other psychology professors. And yet every one I know always collects data from subjects picked at random from the general population. It's true that if you did a survey of psychology professors they would be able to give you a more detailed insight into their reasoning. But they're also biased by their knowledge of what answers are expected given the prevailing hypotheses.

"Why have rules at all?"

Partly to provide a helpful pre-built framework of legal and moral reasoning, considering issues that a juror might not think of unless prompted, partly to ensure consistency and the avoidance of loopholes between laws that injustices could slip through, and partly for prior certainty, so that people can know in advance what the rules are. Moral dialects differ, although they're usually mutually intelligible. You'll only correct someone's English if it exceeds a threshold.

As someone once put it, "The rules are there to make you *think* first before you break them."

September 1, 2016 | Unregistered CommenterNiV

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