(3089/898) Uviller: Virtual Justice - 3

2123) It is the faith of our adversary system (touching, really, in its superb naivete) that any twelve ordinary citizens can detect an untruthful live witness by the visible cues of lying. This theory supposes that, for virtually all humanity, falsehood is so uncomfortable that, magnified by hostile interrogation, the liar's discomfort cannot be concealed. The lie (we customarily forget here the honest mistake) will betray itself in tone of voice (too loud, too soft, too aggressive, too submissive), manner of articulation (crossed arms or legs, eyes aloft, rigid posture, shifting position, fingers nervously touching face and head), and other cues too subtle to describe but readily recognizable across the courtroom well. These are the products of live testimony known as demeanor evidence, and the jury is explicitly told that they may consider them in resolving the credibility issue. [...] And no one in the courtroom has the slightest problem with this. Not just lawyers and judges, but apparently almost everyone else shares the belief that liars generally give themselves away to the close observer by the rebellion of the autonomic nervous system, the locus of the conscience that cannot abide falsehood.

[...] But for all the accord, there is very little evidence to support the notion that a lie waves a behavioral flag. People simply cannot - as they think they can - read falsehood in the vocal and bodily accompaniments to recital. [...] [T]here are many studies, some better than others, and they all agree - and the unanimous verdict can hardly be ignored. [...]

[...] So much for demeanor evidence. Some commentators (me among them) believe that coherence is the prime guide to credence. The plausibility factor: jurors asking themselves, Does this story make sense? This, I believe, is the final hurdle in selling a story to a jury, the last question they ask themselves before casting their final votes. And it is the prime task of the trial lawyer to take the bits and pieces recited by the witnesses, put them together with the physical evidence, expert opinions, and whatever else there may be that fits, and advance to the jurors a coherent series of events - a compelling story - in which the jury can concur, agreeing, yes, it makes sense that it happened just that way.

H. Richard Uviller
Virtual Justice (1996)

2124) There is something peculiarly human about the concept of guilt, and it should be applied only to those who have the basic trait of an adult human animal: moral understanding.

Today we have swarms of experts in moral understanding. They are not (as some might suppose) theologians or moral philosophers. They are psychologists (alienists, we lawyers use to call them in a wonderfully descriptive term.) Because "mental disease or defect" is generally part of the definition of legal insanity, psychiatrists, psychoanalysts, and clinical psychologists are regularly called upon to give their opinions on the mental condition of the defendants who assert this defense.

The lawyers' resort to the psychiatric guild for their guidance presents an amusing clash of intellectual cultures [...] a central paradox of any legal system,. Shrinks [...] are basically determinists. They believe in something called the personality [...] which is composed (in a disputable mix) of nature and nurture, of genetic traits and the myriad impressions of experience. Behavior is the product of personality. If a person kills another human being and no one made him do it, he did it because he was required to by his own personality. External circumstances, the events of the moment, do not cause behavior, thought they may stimulate forced within the stored potentials of personality. All things we are, civilized and primitive, are the determinants of all the things we do.

Law - especially criminal law - posits a very different motive agent in behavior, a concept without which there would be no crimes. Free will. According to this quaint idea, people are endowed with the capacity for free and intelligent choice. Adults, therefore, are responsible for their choices. Guilt, under this rubric, is the social response to a faulty choice - not a feeling, as the shrinks would have it, but a moral status. If we act only as we must, according to the wiring of our personality, we cannot be held responsible -morally or criminally - for any action. To be responsible -guilty - implies than an alternative course could have been chosen.

How, then, can we punish as criminals people who did what they did because, given who they are, they could have done nothing else? This is the disturbing paradox throbbing in the courtroom every time a shrink takes the stand to testify on the issue of insanity. [...]

[...] [To the testifying psychologist] the lawyer's standard question, "In your opinion, Doctor, did this man know or appreciate the nature and quality of his actions" becomes "Was he psychotic?" The free will/moral capacity junk then become surprisingly easy. If he was psychotic, a prisoner of his disease, the cognitive processes cannot be said to function freely and the moral judgment must reflect the delusion. The resulting evidence the doctor gives is probably heard by the jury as: "Because of his mental disease, this person should not (or should) bear moral responsibility for what he did." So the lawyers and the doctors talk their different languages at each other, and the jury usually gets enough information to do the right thing.

[...] We do not conclude from a diagnosis of psychosis - nor do we expect juries to so conclude - that the moral capacity is gone. Free will, and the responsibility it implies, survive even the most catastrophic collapse of the cognitive faculties.

H. Richard Uviller
Virtual Justice (1996)

2125) Just because conduct can be explained does not mean it should be excused. [...] Justice [...] is not satisfied by justification. [...] [A]ll crimes - especially serious crimes - can be explained. Some explanations may mitigate culpability, some may cancel it, but only as the democratically elected branch of government decides they should. Some explanations affect the severity of the punishment appropriate to the case, but guilt and punishment are two different things. Justice [...] is uncomfortable with ad hoc defenses predicated on some improvised theory of moral justification, impelled by sympathy, and built on some pseudoscientific theory of mental impairment. [...] [This] is to replace law with impulse - not a good thing.

H. Richard Uviller
Virtual Justice (1996)

2126) The issue of whether a legal excuse or justification can be predicated on a novel theory of inducement, duress, or mental irresponsibility frequently comes down to the question of whether a respectable expert can be found who will describe the condition in terms familiar to traditional concepts of culpability. [...] But there is something strange and disturbing about abdicating to the experts. There are no experts in culpability - except the jurors themselves. Some jurisprudents might claim to have discovered the essence of criminality, to know the fundamental elements of justification or excuse. For the rest of us, crimes are those defined behavioral incidents that the body politic formally declares are punishable. There are old crimes and new, serious and minor. There are even crimes that scholars call malum in se - inherently evil - and offenses that are malum prohibitum - wrong only because it is against the law. There are acts that are universally called crimes and those that are culturally specific. And that might be said of defenses. But in our tradition of legality, we do not allow either punishment or excuse because some wise and erudite person, thinking carefully and dispassionately after the fact, concludes that under circumstances the conduct was wrong and inexcusable or that it was justified. Even if a lay jury agrees.

Nullification by the jury is tolerable - just barely - under the principle of legality. It is tolerable to me because it is an extraordinary device, an escape hatch for those extreme cases in which jurors are so deeply motivated that they are willing to kick over the traces. Virtual nullification, manufactured by an expert who can convince a jury that a defendant does not deserve punishment, I find abhorrent. These experts do not pretend to be specially anointed in moral judgment; they would deny that they presume to redefine criminality to fit a particular case. But it seems to me that is precisely what they are doing. To give it an as expert opinion that a mass murderer should be excused as insane because he was suffering from black rage or she was in the throes of premenstrual syndrome, to say that a killer was unbalanced [...] because he had been eating Twinkies all afternoon, to argue that [a defendant] was not criminally responsible because he has succumbed to mod mania - or yes, even to suggest that a battered woman who slays her partner as he sleeps was justified because she was acting in self-defense - comes very close to asking a jury to acquit a guilty person because he or she does not morally deserves conviction.

H. Richard Uviller
Virtual Justice (1996)

2127) I am increasingly troubled by a [justice] system that leaves so much to the fortunes of battle, the distributions of skills and resources, the luck of the moment. To me, serious fact finding takes place in a disinterested investigation, not in a clash of opposed interests. Facts are better found by an earnest investigator than be a randomly assembled group of spectators.

An investigation-driven adjudication system would, I think, most hurt the guilty defendants who today put their hopes on the vagaries of an adversary contest. A detached investigation, focused on facts and undistracted by courtroom theatrics, is likely to point the finger unwaveringly at the guilty person [...]

[...] [A judge] cannot help but think from time to time that the inherent strain of her job is exacerbated by the adversary system, that she could more responsibly perform her duties, could concentrate her energies more efficiently, if she was not compelled to be a spectator at a contest of gladiators in a coliseum of ego where participants are goaded by the public and the media to present the important business of justice as theatre. The judge cannot help but feel that the American process of investigation and adjudication sometimes distracts her - and the other players - from the ends of literal justice and subtly substitutes the gratification of virtual justice.

H. Richard Uviller
Virtual Justice (1996)

2128) There are certainly cases, maybe even most cases, in which the evidence presented to the jury shouts "guilty" or "not guilty" loudly and clearly. Any jury, even half asleep and suffering severe reality deprivation, could not fail to see the actual truth nestled in there among the evidentiary facts. For such cases any kind of fact finder will do. But in a significant number of cases, vital credibility calls must be made between witnesses, neither of whom is off the wall. A trial does not have to drag on for months and months, testimony and documents do not have to fill shelves of transcript for a factual pattern to be complex. Pieces have to be fitted together, discarded, and amplified by imagination to recreate a true picture of a multifaceted event.

Jurors are no better equipped for that task than anyone else. In fact, many have never before grappled with a tough fact pattern, tried to make sense out of disparate reports, evaluated scientific expert opinion along with the fragmentary and bumbling accounts of chance witnesses. The courtroom setting is to jurors, as it is to participants, an artificial place in which to absorb information. The enforced, sometimes restless passivity of the juror, the masked performances of the witnesses, and the ferocious partisanship of the lawyers hardly allow the jurors room for the development of opinion and the play of personal judgment that nourish most decisions in ordinary circumstances. And the rules of evidence, beloved of trial advocates, rarely improve the flow of intelligible information to the jury box. Sending such issues into jury rooms on clouds of faith is often nothing more than inviting jurors to trust their hunches, do what they feel in their bones is right, and give us any result we can live with. This is not fact finding. This is settling for virtual justice.

H. Richard Uviller
Virtual Justice (1996)