What is More Important to You, the System or the Outcome of a Specific Case?

 

© Charles Steele 2020

I suppose it was too much to hope that “Go Set a Watchman” would be as powerful a story as its sibling. And I knew that it was too much to expect that the wait would have anywhere near the hype and frenzy of the last Harry Potter book, but I can at least hope that it will drive people to reread, or read “To Kill a Mocking Bird.”

I have been thinking about TKM for a long while now; frankly, ever since the trial of George Zimmerman. (I would direct anyone who doesn’t see the connection to read the book; or at least see the movie.) I had been sitting in a class with forensic students who knew only what they had seen on TV and the internet, and I listen to them proclaim that they knew what “really” happened. When the media hype surrounding the death of Michael Brown came, the same thing happened. Based on media hype and internet snippets people proclaimed the officer guilty because “they know the police are abusers.”

It’s easy to see TKM as a story about racism. But realize that that is just the prejudice involved. The attitude of white people in TKM toward the defendant is no different than the attitude of the public toward the officer in the Michael Brown case.

“Ahh,” I was told. “But in the Michael Brown case we know an innocent boy was shot down by an officer because he was black. So, it’s like TKM because a black man was victimized.”

But the person who told me this had not read the grand jury transcript. They didn’t care what the “legal” facts were. They had already had a victim they sympathized with and chose to believe in, in advance of the facts. And they were so sure of this belief that they wanted to do away with the grand jury verdict. Set aside the rule of law in favor of popularly held belief of what the facts really were. Their heart may be in the right place, but this is mob rule. And that is what To Kill a Mockingbird is about.

Do you think that Atticus Finch wasn’t as racist as the rest of the town? Do you think that he empathized with the defendant and fought for him out of a personal bond? For a lot of reasons, I don’t. What I see is that Finch was fighting for the system. He put himself between the mob and the defendant, at great personal peril, because justice requires a just system. He was fighting vs. mob rule as surely as Aaron Van Langevelde did when he stood against political pressure from his fellow state Republicans and the followers of the sitting president. 

Mob rule is nothing new, the term comes from “mobile vulgus” meaning “the fickle crowd.” And fickle is the important and often overlooked part of the concept. The mob always thinks it’s right. It really doesn’t matter why it does, by nature of the mob mentality, certainty feeds certainty. Beliefs become facts. It is hard to stand against the mob, especially when you too want what they want. It’s hard to really embrace the idea that good ends can’t come from bad means. Siding with the mob is easier.

Back to Michael Brown, when I asked how the ideation of removing the courts in favor of public opinion wasn’t mob rule I was answered with “Because we’re right. We heard the statement of the witnesses” – to the press mind you not the court, no oaths were sworn. In other cases around the country where we have video, the fervor is even stronger. – “we saw the images on the internet and ‘a picture is worth a thousand words.’”

We want to believe that mobs are made up of evil people who hate for no good reason. The truth is sadly the opposite. Most mob want to do good. They believe their cause is just. And if the action that needs to be undertaken is hard to stomach, then they take strength from the group and cross the murder line - meaning choose to do something normally morally objectionable because it needs to be done.

Most people don’t want to think they are evil or even that they do evil. They will therefore convince themselves that anything they have done was good, or at least not bad. So, when people cross the murder line they rarely come back. To do so would require them to confront at least the willingness to do a bad thing and they were only trying to do good.

Think back to when it came out that the US was torturing suspects at Guantanamo. People were polarized. If you said to those who supported torture that it was a violation of our constitution you were dismissed by millions of people as not able to understand and told that our founding fathers didn’t know the challenges we face. “We have to. ‘Desperate times demand desperate actions.’”

Regardless of your feelings on torcher, I think most people agree that there are times when we as a society have to be hard and do things that we think are bad or even inhuman. I am not going to open the worm can on capital punishment; but what about quarantining the sick. People who, sometimes dyeing, need emotional support are cut off from human contact for the safety of the living.

I used to think that this was an easy, logical decision. Cruel and necessary. I think that very few people would say that it’s wrong to quarantine the sick. And yet, we are now in the exactly that situation with Covid-19 and it has become a major political issue of personal freedom vs. societal good.

You cannot deny that shelter in place orders do curtail civil liberties. It is also true that it sets a president for those liberties to be curtailed for the general good in the future. So, we are deciding to do a bad thing, something that flies in the face of our whole ideology of personal freedom. And we, most of us anyway, are agreeing that it is a good thing to do. But not all courts agree.

I would contend that the courts are making the right call, from a constitutional perspective. But this is at odds with public health concerns, possibly anyway. So, do we suspend the constitutional protections when this is not the only option? If so, where do we draw the line next time? I would rather people not gather in large groups. But, am I willing to suspend right and freedoms to force the issue? I don't know and society is split. 

So back to torture, when the Senate report came out, most of the people I talked to who were in favor of torture then said that the report is wrong. For them to say otherwise would force them to admit that they were a willing to be party to inhuman behavior for no good reason. Those who opposed torcher said that the report must be true and dismiss claims that it was written for political capital.

Most of us will cling to our beliefs because the issue is so polarized and whoever was wrong was very wrong. There is no middle ground. Either you wanted people tortured for no good reasons or you valued the lives of terrorists over that of society. Either way you’re over the murder line.

So, if you accept that people cling to beliefs once they cross the murder line let’s think about what drives them across it. As I said above, all mobs think they are right. Fortunately, our legal system requires facts. This is our protection. Because without them we cannot know if the other guy is right. Or more accurately, we can “know” but we could be wrong. Certitude is a conclusion. Being right is a conclusion. Neither of these are facts, they are what facts allow us to achieve. So, what are the facts leading the mob?

Last time I went on at length about what people accept as corroborative evidence. To that in the internet age we add pictures. “Use a picture. It's worth a thousand words,” is a quote credited to Arthur Brisbane. But he wasn’t talking about the truth; he was talking about publicity and advertising, about manipulating people’s beliefs and desires. Images are effective, this does not make them true. The truth requires more detail. But he is right, a picture can emote. Picture have always been and will always be used to stir emotion. Emotion is also not fact.

But as I said in my last post, people treat accusations as facts. They treat corroborative evidence as factual. To this I add that they will accept emotionally triggering images and recordings as overestimated “facts.” And this further exacerbates the situation.

Before we can reach the proper conclusion, we need to be a country that understands what is and is not confirmatory evidence. We need to be a country that will hold to our decisions until we can legitimately come to one and only one reasonable conclusion. Our mechanism for this is our laws, the courts – not the press and certainly not social media.

Consider the farcical "hearing" in PA this past week. They proudly proclaimed "evidence" that they dared not share in court. We should, we must seriously discount testimony that a many is not willing to swear to and be held accountable for. rhetoric is not testimony. Accusations are not evidence. 

Let’s go back to Salamon and Moyses. (See my last post) With no evidence to support the charges, public sentiment was still enough to drag them before an alternate court in the form of the Inquisition. Charges of heresy were investigated through torcher and confessions obtained could result in execution.

Fortunately for them the case was heard by a trained jurist, a Franciscan named, Johannes de Pogiali. He called the witnesses before him and examined them. In the end he did not find that the accusations against Salamon and Moyses were proven. In his justification he concluded that "it was better to leave a crime unpunished than to condemn an innocent person." This has become a foundation pillar of our legal system. One that we seem to be all too willing to knock out.

Now here I am going to switch stories. In 1957 a Reginald Rose reworked a teleplay he had written into the movie “12 Angry Men.” It is said that this is a movie about consensus building among strangers with different backgrounds. And indeed, no names are exchanged until two jurors are leaving the courthouse. They introduce themselves then part.

But as with many great stories there is more depth. The movie does indeed focus on consensus building. But it is in the backdrop of the principal of reasonable doubt. A murder is presented. The way the story is told, in all likelihood the defendant did commit the murder. At least at no point does the movie try to convince us that he did not.

What the movie does try to show is that even when people are certain, certainty is not a fact. Reasonable doubt has to be assumed when there are no reliable facts present. But breaking through people’s barrier of certainty is a difficult and often emotional project. Again, people cross the murder line.

In this movie, most members of the jury reach the most likely conclusion that will send the defendant – possibly justly – to his death. I don’t think any of them are portrayed as thinking the defendant is innocent. But, the evidence is not reliable. So, do you go with your gut and make the most likely choice, or follow the facts and say that a reasonable man must not have a reasonable doubt?

Too many people are willing to go with their gut. But realize that when the reasonable doubt is removed and we are back to general consensus without reliable facts, we are back to the mob. If you are with the mob you tend to think this is good, you are getting what you want and what you believe is just. But the mobile vulgus is by name and definition fickle. The crowd will not always agree with you or what is anyone’s best interest not even its own members.

And this all wraps back to the place we are here today. A fickle mob made up of millions of American citizens wants to set aside the rule of law because they don’t agree with the legal outcome. They are not evil. They are not intent of doing evil. They are trying to do what they think is right and that scares the hell out of me.

We are in a fight for the core of system that keeps us free. People protesting police brutality are encouraged to loot because they deserve it for reparations. People protecting their businesses are told that if they are close to a riot; they should be allowed to use lethal force against peaceful people they deem to be interfering with their business. People supporting a political candidate are being told that votes should be ignored, and the winner just appointed.

The fact that so many people are willing to destroy the system for the short-term gain of a particular outcome in one specific moment is truly a terrifying reality. So, let me ask you the question I ask my students every year. What is more important to you, the system or the outcome of a specific case? The way the masses answer this question will decided the fate of our nation.

Even If We Dodged a Bullet, the Gun is Still Loaded

 

© 2020 Charles A Steele

This morning’s talking head said that: “We dodged a bullet.” He was talking about the threat to the American Democracy posed by the attempts of the trumpist faction of the Republican party to set aside the results of the elections. For those who have been in a cave for the last few weeks or who might be reading this sometime in the future, the talking head was discussing the public opinion campaign to delegitimize the 2020 election; filled with uncountable allegations, punctuated with spurious law suits and engaging in directed intimidation of certification boards and state legislators.

Although these attempts are still on-going, they have gained no real traction. In almost all of the more than 30 cases, no valid evidence was presented. In no cases, was evidence of significant voter fraud presented. So, we may have dodged a bullet, but we need to realize that the gun is still loaded.

Although most of the plaintiff’s legal council lacked the courage to present false evidence before a judge, that didn’t stop them from flooding the news and social media outlets with the allegations. And quite understandably, a large portion of the trumpists believe the allegations. So, it was asked why do they believe these lies when there was no proof offered? The answer is actually quite simple: to the average person, accusations have become proof of wrongdoing.

This is not a Republican vs Democrat issue. We are a point in society where we must decide between two principals. The first is that all crimes should be punished in the interest of public protection. The second is that the defendant should be presumed innocent if proof to the contrary is not compelling. This is not the first time that this choice has been presented nor is it the first time that well-meaning people have disagreed.

In my own biased and personal opinion, I think it comes down to a confusion between confirmatory and corroborative evidence. Confirmatory evidence is that which proves a theory of the case. A fingerprint that matches a suspect, a bullet that matches a gun barrel. Corroborative evidence supports the theory. If the theory is true, then it would be expected that the evidence is as shown. The suspect was seen with red paint on their hands and red was used to smear the wall. As an aside I caution my students to avoid the term “Circumstantial Evidence.” All evidence is a result of the circumstances of the case.

I ask my students if corroborative evidence is sufficient to convict. Most reflexively say “no.” Then we discuss famous cases like the Casey Anthony and Richard Crafts prosecutions where all of the evidence was corroborative. Then we begin to realize that when there is enough corroborative evidence, a single reasonable conclusion can and sometimes has to be reached.

So now let’s go back to the accusations being made. If the charges were true, we would expect the accusations to be made. Although they are not confirmatory proof, they do take on the reasonable appearance of corroborative evidence. And again, if there is enough corroborative pieces of evidence presented, then a reasonable person can conclude that there is only one reasonable conclusion.

It all comes down to the question of credibility. If the vast amount of corroborative evidence is credible, it carries a great deal of weight. If the evidence is not credible it needs to be ignored. So, how do we determine credibility. You want to say we have a trial don’t you. Common … I dare you say we take it to court.

From the perspective of the general public we abandoned that benchmark a long time ago. Consider the discord and violence we have seen in the last few months. When a black man dies at the hands of police, two different instant assumptions are made by opposing groups. The first is that the deceased is an innocent victim of racial violence. The second from the opposing side is that the deceased was a criminal resisting arrest and that the police are under unfair scrutiny. At the risk of alienating both camps, each group has undoubtedly been correct at one time or another.

But neither camp waits for the confirmatory evidence. The event itself corroborates their view of the case. That is sufficient. Having made that determination with the implications that come with it, they are unlikely change their assessment. (See my previous posts)

In addition, it should be remembered that in the minds of many a great social evil is being fought. They may not agree on what that evils is. And frankly, the best evidence is that both truths are real. Therefore, the details of each example are not important relative to the greater truth and time is of the essence. So, every accusation is a rallying call that needs to be heeded by those supporting the “good fight.” The accusation is sufficient to corroborate the theory and is therefore sufficient proof.

This situation is exacerbated by a strong social messaging that the courts are not there to protect people. How often have you seen statements to the effect that the criminal justice system doesn’t dispense “justice,” it just protects the status quo. So, it is reasonable that people turn to other protectors.  

Consider the case of Salamon and Moyses. Salamon and Moyses were brought before the inquisition in Rimini around the year 1400. They were charged with using heresy to seduce Christian women into having sex. Specifically, they were said to have told their victims that fornicating with Jews wasn’t a sin. [1]

By today’s standards the case may seem trivial, but remember that at the time this was a serious situation with serious and potentially damaging consequences. Such an encounter could leave a lasting tarnish on woman’s reputation and leave psychological scars on her sense of self. These are the same injuries that victims of sexual assault today must contend with.

Certainly just like today, one could ask if the women indeed gullible victims? Could they not just as easily wanted to have sex, choose to drink so they can a flimsy justification that they drank too much, so they don’t have to feel guilty about it and then simply regretted it later? Without a trial to root out the truth there really isn’t any way to know. For the women in Late Middle Ages Rimini, they contended that they were tricked and most importantly they would not have participated if they understood all of the consequences. So, there is no doubt that they regretted the encounter.

Unfortunately for these women, as the Middle Ages gave way to the Renaissance, sexual morays of the general population were far from puritan. Continuing the parallel with today. The women could expect no protection or remedy from the civil courts for any kind of consensual sex.

But the women claimed the men invoked a theological teaching to confuse and befuddle. [1] The matter could therefore be brought before the inquisition where the accusation was often enough proof and punishment for heresy could be very harsh. This situation is parallel to what we have seen on college campuses in recent years.

Today, instead of spurious religious arguments we have drugs and alcohol. In this state of unreason, a woman has sex with a man she says she would not have if she were clear minded. It doesn’t matter if she let herself get drunk because she didn’t want the responsibility of her decision or if she was deliberately incapacitated. Either way the psychological damage is real.

Unfortunately, the courts do not treat a woman who potentially has gotten willfully drunk or high as a victim. But at least some of them are victims and need to be protected. In 2014 this gave a birth to a new inquisition spurred on by public opinion [3]. People supported this alternative adjudication because a lower burden of proof was needed to protect the victims who couldn’t receive protection from established criminal justice system.

In 2017 “#MeToo” became a firestorm across news and social media. The slogan “Believe Women,” also gained popularity in strong part to the allegations against Harvey Weinstein. From the perspective of feminists, it was intended to assert that women are as trustworthy as men. It should not be assumed that every woman making an allegation was motivated by retribution. [6]

Somewhere along the way, during the rhetoric of Tara Reade’s allegations against Joe Biden, the slogan mutated into “Believe All Women.” [6] This new and deadlier slogan became a weapon to be used against objectivity. Any doubt or implication that an allegation was false was seen as an attack on the very idea of protecting women.

Even the famed civil rights lawyer Alan Dershowitz said in gathering at the Purdue University Northwest’ Sinai forum that he was told by friends not to fight a false allegation levied against him. “Take, one for the team,” he said he was told to protect the women making truthful allegations[1]. 

While this was occurring Title IX empowered, and in fact compel, the colleges to investigate and punish these crimes. Here it is a violation of the institutional code of conduct rather than of theological code of conduct like in Rimini. Perhaps this difference is significant.

In the now rescinded Dear Colleague Letter, schools were told, “Police investigations may be useful for fact-gathering; but because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX. Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation. In addition, a criminal investigation into allegations of sexual violence does not relieve the school of its duty under Title IX to resolve complaints promptly and equitably. … a school should not delay conducting its own investigation or taking steps to protect the complainant because it wants to see whether the alleged perpetrator will be found guilty of a crime.” [2] This instruction was applauded in the news and popular media because the women needed to be protected.

In the 1400s, the need to protect the women was also strong; so much so that the accusation alone was enough to justify torcher; and confession under torcher would justify death. Today’s accused are likely to only meet with public dishonor and expulsion from college. Perhaps the attackers of today are getting off too easy.

But what about the innocent men accused? Well the argument is that most women, (Studies and pundit articles vary from 98% to 60%) [4, 5] level truthful allegations. The hearing should root out the others. And in fact, this is the premise of a trial. The evidence is evaluated to root out the truth.

But I am not describing a trial, I am describing an inquisition. The arbiters of which were, in most, cases well meant. Unfortunately, these arbiters who are judges of these inquisitions, were often not trained jurists and investigators. Most were academics and administrators with little or no legal or philosophical training. From 2011 to 2017 when the order was rescinded the Department of Education directed schools to conduct hearing on any case of reported or suspected sexual assault or harassment. Private entities were directed to conduct a legal proceeding with real world and life changing consequences. [2,3]

In this context one could say that the real issue is that even the residents of the ivory tower of higher education no longer value education itself. If they did, then the certainly could not support the new perversion of title nine that replaces formal legal scholarship with a short tutorial. No man or woman who truly believed in education would feel themselves qualified under these conditions, to judge complex criminal matters outside the bounds of the justice system, indeed in preference of the criminal justice system

Of course, the argument given is that it is not a criminal matter. The title nine committees only rule on violations of code of conduct of the University. The inquisition only ruled on violations of codes of conduct of the Church. Both were created to provide punishment because interested parties did not agree with the outcome of the civil courts. In this regard, inquisition like the title nine hearings are not alone. People have sought their alternate protector.

Society has taken too many liberties with the rule of law, when they find that the burdens of law don’t allow their desired outcomes. They have been conditioned through many years of political movements to consider favorable corroborative evidence as definitive confirmatory evidence. And they have been conditioned to believe that if enough people agree with them then illegal acts are permissible in the quest for the greater good.

Unfortunately, I can only leave this discussion with my view of the cause and no remedy. I see this incomplete assessment of the facts spewing from camps all across the political spectrum. And as soon as an issue is brought up that is near and dear to the listener, they will defend with bitter determination the excessed that support their camp. Their truth must be protected at all cost.

There is a greater good that needs to be reached. But decisions based on reactionary thinking, mob rule and flawed logic are weak. Unfortunately, when they collapse, they take the needed pieces to support the good with them. Many black men are subject to racially based injustices. But riots and looting undermine the needed discourse and further polarize society in to camps for and against.

Looking at the evolution of the mutation of “Believe Women,” one can see that it was a deliberate straw man. A logical fallacy that that oversimplifies the argument to discredit it. This was done for political reasons by Republican pundits to discredit the Democrats who endorsing the Feminist movements. [6] Ultimately the “#MeToo” movement has been seen to overreach and faltered.

The mandatory instructions for the Title IX hearings has been rescinded. While some vestiges are still hanging on in liberal strongholds, many parts of the country have now reset to pre-movement levels allowing the same predatory behavior that spawned the letter in the first place to resume. As a result, there are factions among “liberal” educators lobbying President-Elect Biden to put the Title IX hearings back in place or at least elements there of back in place. But the problem isn’t fixed.

And now we are sitting with trumpists all over the nation who believe that their candidate was robbed of an election. Violence has already occurred as a result. It is likely that more violebce will follow.

As individuals, groups and movements that make up our nation, we abandoned the structure that rule of law requires because it was a barrier against our desired outcome. And we are now in a point where out greatest protections have been threatened and could yet crumble. Yes, we may have dodged a bullet, but the gun is still loaded.

 

References

1.         Kenneth Pennington, Innocent Until Proven Guilty: The Origins of a Legal Maxim, 63 JURIST: STUD. CHURCH L. & MINISTRY 106 (2003). Downloaded from: https://scholarship.law.edu/cgi/viewcontent.cgi?article=1169&context=scholar

2.         Dear Colleague letter downloaded from https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf

3.         Betsy DeVos Withdraws 'Dear Colleague' Letter That Weaponized Title IX Against Due Process Robby Soav 9.22.2017 Downloaded from: https://reason.com/2017/09/22/breaking-betsy-devos-withdraws-dear-coll/

4.         False Allegations of Sexual Assualt: An Analysis of Ten Years of Reported Cases David Lisak1 , Lori Gardinier2 , Sarah C. Nicksa2 , and Ashley M. Cote2 Downloaded from https://cdn.atixa.org/website-media/atixa.org/wp-content/uploads/2016/03/12193336/Lisak-False-Allegations-16-VAW-1318-2010.pdf

5.         False reports of sexual assault not as rare as claimed, studies show By Rowan Scarborough - The Washington Times - Sunday, October 7, 2018 Downloaded from: https://www.washingtontimes.com/news/2018/oct/7/false-sex-assault-reports-not-rare-reported-studie/

6.         Monica Hesse; ‘Believe Women’ was a slogan. ‘Believe All Women’ is a strawman. The Washington Post May 12, 2020 Downloaded from https://www.washingtonpost.com/lifestyle/style/believe-women-was-a-slogan-believe-all-women-is-a-strawman/2020/05/11/6a3ff590-9314-11ea-9f5e-56d8239bf9ad_story.html

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[1] Sinai Forum 2019

There’s More to Being a Photographer than Just Owning a Camera. Or, What Makes an Expert?

 © 2020 Charles A. Steele

When we were looking for a photographer for our wedding, several people approached my wife and I saying things like, “My friend Bob just bought a really expensive camera, you should hire him.” And we would ask if Bob is a professional photographer and if we could see samples of his work at other weddings. In response we would be told that Bob loved taking pictures, or that he’s been taking a lot of picture since he got the camera. In one case we even leaned that Bob had taken a class. We did not hire Bob.

Now, does this mean that Bob would have been a bad photographer? No. It is possible that we missed a great opportunity for a big discount. But we had no basis from which to determine how good Bob was; no way to know if he was capable of doing the job. In short, we couldn’t qualify Bob. He didn’t meet the burden to prove he was an expert.

It is apparently unpopular to say, but there is a difference between an expert and a layman. Understanding this difference is increasingly important at a time when talking heads are contradicting each other on critical issues. Information is easy to get. People are feeling validated that they are as good as anyone else in evaluation of that information. Maybe they are. In all likelihood I believe that if an issue is properly explained they probably are. But how do people know that they are working with the proper facts? How does a layman know who is an expert?

This is not a new problem. It has been a reality in legal proceeding since the end of the duel of law. When fighter schools were shut down in the middle ages, combat masters turned to selling themselves to testify in court. If it sounds like an odd shift, remember that at the time, charges of perjury could be met with a dual of law. This led to the inevitable problem. A master swordsman could lie with impunity on the stand since challenging his word could mean death. It didn’t take long for the legal community to realize that a person’s word alone was not enough, witnesses needed to be qualified in some manner before they could testify.

What has evolved is the understanding that there are two types of witnesses: Fact and Expert. Fact Witnesses (AKA lay witnesses) need to have knowledge specific to the case at hand. They can be eyewitnesses to an event or other involved person. The Expert Witness is something entirely different. The Expert Witness gives opinion based on experience, knowledge and expertise. In court cases both are used. So, which is more reliable?

People like to hear from fact witnesses. It is easier to understand and believe someone who says they have direct knowledge of events. Inaccurate or dishonest eyewitnesses are usually picked out during a good cross examination. Even so, data from the Innocence Project does indicate that almost 70% of the wrongful convictions they have overturned were due to inaccurate eyewitnesses.

Expert Witnesses are a more complex issue. Experts don’t usually have any direct knowledge of the issue at hand, they are offering opinions or information based on their understanding of the issue at hand. This greater latitude comes with a need for greater scrutiny. Before we take their word, we need to be able to prove they are qualified to give it.

The role of the expert witness is set out by rule 702 of the Federal Rules of Evidence. The rule requires among other things that a witness qualified as an expert must possesses the relevant knowledge, skill, experience, training, or education and that their testimony is the product of reliable principles and methods. These requirements are further refined by rules of admissibility like Frye and Daubert which both require the science be generally accepted in the scientific community to which it belongs. Unfortunately, there is no such rule in the popular press.

This brings us to an issue affecting the general public. We are in a reality where people are being left to themselves to decide what is the scientific truth on complex issues ranging from global warming to the Covid-19 pandemic. And as I said above, the talking heads are contradicting each other. Sometimes this is genuine ignorance, sometimes it is the result of political agenda. So how does the layman qualify the expert?

We don’t have voir dire in the public arena. So, we can’t directly question and evaluate the expert to challenge their knowledge or bias. We can however frequently look at their experience and training by reviewing their CV or resume. We can in some cases evaluate how well regarded their opinions are in the field to which they belong by looking at their publication that have passed peer review. If neither of these are available, then that needs also be considered.

Now, with these concepts in mind consider Dr. Scott Atlas. He is an advisor to the President on the Covid-19 pandemic. Is he qualified? Although he is not an infectious disease expert, he does have experience with public health care policy. In this capacity he is a lecturer at the Hoover Institution at Stanford University which is a public policy think tank. So, in the quick estimate he does seem to have something to offer to the discussion.

But remember that the Hoover Institution is not a medical group, they are a public policy think tank dedicated to individual, economic, and political freedom. So, we do have a means to potentially establish Atlas’ bias. And, if he were to confine himself to public policy advise exclusively to issue of freedom, then I think it would be safe to say he can be qualified to be considered an expert.    

However, he has drifted into the arena of combating the pandemic. This is outside his core education and professional experience. To many, this disqualifies him as an expert. So here we stop and put his opinion back to the level of a layman. Which we have already said should be limited only to direct knowledge of the issue.

On the other hand, an argument can be made that the pandemic does brush up against his experience and knowledge. It is probably beyond the ability of someone judging from public information to decide if it brushes close enough to include or exclude him as an expert. Therefore, I think it is reasonable for the average person to consider his opinion to be that of an expert. Certainly, Dr. Atlas must purport his words knowing that he will be regarded as an expert.

So, on to the next issue, the testimony itself. Does what he says meet the burden of general acceptance within the scientific community to which it belongs? Here the layman has perhaps the best opportunity to evaluate his opinion.

Although he denies it, everything Atlas has pushed for is in accordance with an attempt to build herd immunity. The best estimates are that this would leave 213 million people in the U.S. infected of which 1,385,800 will die. Now remember that Atlas is not an epidemiologist, by training he is a neuroradiologist who promotes public freedom. His credibility comes from his connection to the Hoover Institution at Stanford.

Stanford is well regarded in the areas of medicine and epidemiology. So, general acceptance by his peers at this institution would go a long way to validating his testimony. His peers however do not accept his opinion. In fact, 98 Stanford physicians and researchers with the relevant expertise in infectious disease, epidemiology, health policy signed and published a letter claiming Dr. Atlas misrepresented the sciences. The letter said his statements “run counter to established science and, by doing so undermine public heath authorities and the credible science that guides effective public health policy.”

In addition, Stanford University has released the following statements:

 

"Stanford's position on managing the pandemic in our community is clear. We support using masks, social distancing, and conducting surveillance and diagnostic testing. We also believe in the importance of strictly following the guidance of local and state health authorities."

 

"Dr. Atlas has expressed views that are inconsistent with the university's approach in response to the pandemic. Dr. Atlas's statements reflect his personal views, not those of the Hoover Institution or the university."

 

In response to the first letter, Dr. Atlas threatened to sue for defamation. As of this writing, there has been no response to the Stanford’s statements. Clearly however, his opinion does not meet the burden of general acceptance.

I warn my forensic students that when they become experts, they need to be wary of drifting outside their actual expertise. They will learn a lot about a lot and may have the knowledge to understand things outside of their core. But because they are credible, the expert needs to stay in their lane and not speculate on things they think they know.

So, to be clear on my lane. I am writing here as someone who teaches testifying and courtroom demeanor. I am not an infectious disease expert. And just to be clear about my personal bias, I am not in favor of an approach to fighting covid-19 that accepts more than one million dead. But I did not choose Dr. Atlas as my example because I disagree with him. I use Dr. Atlas as an example because he is low hanging fruit.

Dr. Atlas is a perfect example of the difficulty facing the people trying to figure out the truth in a dangerous and confusing time. I could easily find potential and self-professed experts on any side of almost any major issue. This is the blessing and the curse of the internet. But because Dr. Atlas has spent most of his career in the public eye and because his peers publicly stated their position on his opinion, we can easily evaluate him as an expert.

In other cases, it is not as easy. Qualifying an expert is something we are just not used to doing… or are we? Your friend is a nurse who tells you your doctor is wrong, and you should really take drug X instead of drug Y. Your friend has no ulterior motive to do you harm. But do you simply accept that they are right, or do you choose to stay with the doctor who has your full medical history and a different training in diagnostics. You evaluate based on the individual credibility knowledge and bias of each source. Admittedly this is harder when you don’t personally know the sources. But it is just as critical.

It may be easier just give up saying the experts disagree and facts keep changing and just pick the most palatable answer. But know that the facts don’t change, our understanding of them does. On many issues the real experts are working on theories that evolve as that understanding grows.

We are in a changing and dangerous time. Most of us don’t personally have the knowledge we need for survival. What we have are talking heads telling use contradictory information. So, choose your experts carefully based on qualifications and bias, not just based on if you like what they are saying.

Should we care about the Hunter Biden Emails? How Important is the Integrity of the System to You?

 

© 2020 Charles A. Steele

 

Each semester I pose a question to my forensic science students: “What is more important, the integrity of the system or the outcome of a single case.” As one might expect, their answers are split with the majority voting for system integrity. Of course, if you think back to my last blog, Why do you think you know what you think you know, they may simply be answering that way to agree with me. I suppose we won’t really know their ethics until they are in the position to have to choose.

My question isn’t just a hypothetical construct. It is a real ethical choice that professionals often have to make. It is at the core of major social conflict and has been for some time now. For example, before it was rescinded the Dear Colleague Letter, schools were instructed under Title IX, to conduct their own investigations and issue punishment for allegations of sexual harassment and assault “even if the police do not have sufficient evidence of a criminal violation.” This instruction was applauded in the news and popular media. It didn’t matter if the evidence was there or not or the witness was credible or not. A large portion of the population wanted justice in the form of a specific outcome.

Consider the Briana Taylor case. The prosecutor, duly elected and charged with directing justice, decided that the evidence against the officers would not support a murder charge. They acted within the bounds of the law. None the less, there is major social pressure from those who do not like the result to ignore the rule of law and seek a punishment.

The outcome of the individual case is personal and emotional. These are strong motivations, and it seems to me that people tend to be more concerned with the individual instances rather than big picture issues. If we can bend the rules to achieve justice, shouldn’t we?

A long time ago when I was a stock boy and saw a person put merchandise in their bag and walk out of the store. I took off after them. Seeing me in pursuit, they tossed the merchandise and kept going. One of our local police officers saw me running, and joined in the chase. By the time he caught up to me I had retrieved the merchandise and was walking back to the store. I told the officer what had happened. Another squad had come from the other direction and caught the shoplifter. Of course, there was no evidence in the shoplifter’s bag, just the testimony of a teenage kid. So the first officer took the items from me and put them in the bag were the second officer then “found” them. On this evidence shoplifter was convicted.  

Was this right or wrong? The person was guilty.

Let me give you another example. I had the opportunity to observe a trial where the defendant had confessed to a crime before he had been read his rights. Through a variety of events all of the forensic data was corrupted or otherwise worthless. But, the prosecution and the experts knew for a fact that he was guilty of murder, even if they couldn’t “officially” know it. So, the prosecution presented expert after expert who skewed their testimony and present hypothetical evidence.

Again right or wrong? Justice system vs. justice in the individual case.

When we look at the vast majority of people who plant, fabricate or adulterate the evidence, we are not seeing sociopaths who are trying to do harm. They are mostly people who know they are right and want to see justice done … at all costs. I think most people at very least empathize with this desire. If it were our items stolen or our loved one who was murdered would we want the guilty to go free because of a procedural mistakes? The temptation to bend or break the rules in the cause of justice is strong.

Now consider the woman who was convicted of killing her daughter in an arson fire. The police were positive she set the fire. So much so, that arson investigator’s report that the fire was an accident was changed by his superior to indicate that the fire was deliberate. She spent years in prison for the murder of her child based on false evidence.

Right or wrong? The woman was innocent.

As forensic scientists, there are many principals that have evolved to guide us in our jobs and to stop us from doing so and causing harm in our intent to do good. Perhaps these should be more globally applied in society. We start with Locard’s Principal, “every contact leaves a trace.” We know to separate the value of class vs. individualizing characteristics. We understand the difference between confirmatory and collaborative evidence. We are wary of observer bias. And perhaps most importantly, we understand the need for proper chain of custody.

In the simplest terms, chain of custody is a log of everyone who has touched or interacted with a piece of evidence from the moment it is discovered until the final resolution of the case. If at any time the chain is broken, that piece of evidence is lost to us. This is true no matter how informative or important that evidence might be to us. This is true no matter how much we want to use it.

I choose this principal, but it seems to exist to most people in a moral gray zone. It has been suggested that the this is caused by a misconception or at least incomplete conception of the purpose of a criminal trial. Most people believe the trial is concerned with the past; what happened?

When people see the “smoking gun” they don’t tend to care where it came from. After all, if it proves our case, does it matter if procedural chain is intact? If we have a gun that matches the bullet recovered from a murder victim with a fingerprint of the suspect on it, do we care that it was lost for a few hours, or days? Yes, we do.

We need to establish the authenticity. "[W]hen real evidence is offered an adequate foundation for admission will require testimony first that the object offered is the object which was involved in the incident, and further that the condition of the object is substantially unchanged." 2 C. McCormick, Evidence 8 (4th ed. 1992)

Federal Evidence Rule 901(a) codifies this requirement: ''The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."

Start with the first link in the chain. Typically, this is held to be when the investigators gain access to the evidence. From that point forward the evidence is controlled so that no changes can be made without notice. However, the interpretation of the exclusionary rule of the fourth amendment require that when there is time between the discovery of the evidence and its delivery to police the courts need to be suspicious. United States v. McKeever,  Zupp v. State, Williams v. State and Thornton v. State all highlight this point. It’s not that evidence found by someone other than law enforcement can’t be used, but its authenticity and protections must be established.

In order to establish these, the police must determine how the evidence was found and preserved before truing it over. Is the evidence authentic? Did the party that found the evidence have motivation or opportunity to adulterate the evidence? A lot of inferences can be determined based on what was done post finding the evidence and subsequent presenting the evidence.

A man finds a gun in a park after a shooting. Instead of truing it over to the police, he keeps it for a week. Eventually he brings it forth and DNA is found on the gun linking to a suspect. Questions like: why did he keep it for 5 days? Did he have any reason to adulterate the evidence? Did he have the ability to adulterate the evidence? How was it stored? Did anyone who did have access have reason to adulterate the evidence?

Overkill? If the person who had the gun for 5 days was a business rival of the suspect and was seem picking up a napkin that the suspect left behind at a restaurant in the  day period now we would agree that there is reason to suspect the evidence. The first link therefore backs up to the finding of the evidence regardless of who found the evidence. If we cannot establish this first link reliably then we must disallow the evidence or risk including manufactured evidence into the process.

The links in the middle are the controls of what has happened after it was found. In general, the evidence comes into police custody, but it may wind up passing throgh other hands. A defense attorney may throgh their own investigation find evidence in a criminal case. If this evidence is going to be use in court, proof of control and condition will still be needed.

But what happens if the evidence is handed off to other interested parties? Does this violate the chain? Again, it can for the same reasons as above. If there is an opportunity and ability for the evidence to be adulterated, we again have a problem. It’s all about protecting the evidence to protect the system. We cannot allow evidence to be manufactured. So, if we cannot be certain that it is real, we have to ignore it.

No consider these emails. Where they found during a warranted search by law enforcement? No. Were they found by someone during the normal performance of their work responsibilities? No. Were they turned over to law enforcement immediately? No.

If they are real, they were found by someone stealing form another person. Ok, maybe you don’t care about that. They were held for a longtime and turned over to a political fixer to be used to attempt to create the same October surprise that occurred in 2016. Under these circumstances, they cannot be used. The motivation to and ability to fabricate is simply too high to be allowed as legitimate evidence.

As I said above, most people believe the trial is concerned with the past; what happened? But it is about the future; what happens next. And the future needs us to preserve the integrity of the system so it and preserve the safety of society. So, should we care about the Hunter Biden Emails? If the integrity of the system to you then the answer is a very clear “no.”

 

What Makes You Think You Know What You Think You Know?

 

As many of you know my primary research is on how well juries understand scientific evidence. One of the things my research as shown me is that slightly less than 15% of the general population understands complicated scientific data and methodology. The rest of the population guesses. When the decision is binary (50% chance of being right or wrong) and all input factors are equal, this generally means that the correct answer is reached by the majority. But the possible answers are not always binary.

Another interesting thing I have learned is that just short of 90% of the population thinks they are in the 15%. So, this brings me to the question at the title of this collection of thoughts: What makes you think you know what you think you know? If you are like me, you have a diverse and often extreme collection of “friends” on social networking platforms. And if you are like me, you will see them post on topics ranging from …. well… everything. But how many of the posters are qualified to give an informed opinion on their topics of choice?

Let’s consider medical and scientific posts. Most people like to think that their opinion, is just as good as anyone else’s. But is it? When was their last formal scientific education? For most people the answer is high school. Ok formal schooling isn’t the only way to learn. So what journals are they reading? Typically, here the answer is none. So, where does their expertise come from?

Consider a woman I met years ago. On our first (and only) date, she mentioned the weapons of mass destruction Bush found in Iraq. She was insistent. So, the hostess brought me a tumbler of whiskey and we dove down on how she knew this. I will spare you the full discussion, but in the end, we figured out she was talking about an episode NCIS. In some ways, this is akin to the CSI effect. People see things represented on TV and social media, and they think they know. But why did she believe it was real?

One might think that she was just an idiot. But she wasn’t. At least I don’t think she was. She seemed to be at least average or above average intelligence; at least in her own areas of expertise. So, where was the disconnect? Perhaps she suffered from a flawed and inflated metacognitive assessment of self. I think many people do.

In addition to the “you are the perfect you” over validation that people get from social media, there are some very real things about the way the brain functions that leads honest people in the wrong direction. Start with the Lake Wobegon Effect, an overestimation of one’s knowledge and capabilities. It is the tendency of a person to see themselves as better than others. It may be the person who thinks they’re funnier or better looking than everyone else does; or simply the person who thinks they’re smarter than they are. For many reasons, this effect is more prevalent where there is the greatest economic disparity. In the United States economic disparity is growing and increasingly thrust in the public view.

Then we have the Dunning–Kruger Effect, where under-skilled people overestimate their actual ability. It is suggested that this overestimation is due to a combination of facts including: 1. People tend to make poor decisions when they don’t have the necessary knowledge or experience. 2. Once the poor decision is made, the individual doesn’t have the knowledge or experience to know it was a poor decision.    

The next piece of the puzzle come from brain scans taken of people during the process of decision making. When people have experience and knowledge, the memory center of the brain are active. When the don’t the pleasure/reward center is active.

So, put this all together. 1. The general population is under educated and does not have the background knowledge to really understand the complex issues. 2. They have been told they are just is good, smart etc. as anyone else. 3. They believe they are better than they are. 4. They don’t have the knowledge or experience to realize they are wrong. 5. They are seeking reward for being right. 6. They guess, drawing on possible answers provided by social and entertainment media. 7. If, they conclude that answer that will give them the approval of a desired social sub-group they are rewarded. 8. They have been “proven” right and gain acceptance of the group. 9. This now becomes the basis for future decisions. The guess has become fact and is the filter by which the topic is assessed in the future.

Then we get to crossing the murder line. The more serious the results of decision the less likely it is that a person will be able to reverse their decision. But that is a discussion for another day.

The above is based on several years of study and experimentation. It is of course the opinion of one man, and it is admittedly a substantially oversimplified presentation. But I offer it none the less to explain my question. Why do you think you know what you think you know?

Was it a validated guess? Was it someone else’s opinion that you just accepted? Is your only source of information social and commercial media? Do you really have the proper education understand? Are you current on the latest science from peer reviewed sources? Is your decision really from a deep logically determined conclusion? Why do you think you know what you think you know?

© 2020 Charles A. Steele