Chapter Two deals with how technology will change the legal environment in both the courtroom and in police proceedures in general.
HOW TECHNOLOGY
WILL INVADE THE PROCESS
a. The fMRI
The fMRI is a machine that allows psychologists to observe the brain as it functions in real time. There are presently two companies that claim that with the use of an fMRI they can determine conclusively whether or not an individual is telling the truth. The current fMRI is still a crude instrument, however. It measures blood flow to various sections of the brain, allowing psychologists to map which part of the brain controls which functions. At some point the scanners will be accurate enough to actually observe which synapses in the brain are firing at any given time. With an accurate map of brain function, a psychologist could observe what’s going on neurologically when someone is speaking.
We know that the brain is capable of storing information in its memory. We also know the brain is capable of creating fantasies. The premise for a brain-scan-based lie detector test is really quite simple. The subject is placed under the fMRI scanning device prior to questioning. He is then asked a series of questions. While he is answering, the scanner is observing how his brain is functioning to provide the answers. When someone is telling the truth, his brain will access the area of the brain where memory is stored.
But when he’s lying, he won’t be accessing his memory before answering – he’ll be using the part of his brain responsible for generating fantasies. In theory, this methodology should be foolproof. You either have a real memory of an event or you do not. If your answer is based in fantasy rather than memory, it is almost certainly a lie.
No Lie MRI and Cephos are two companies that presently provide this service, but the technology is still in its infancy. This is not something we will be using in the courtroom until it can demonstrate the same kind of reliability we see from fingerprint and DNA analysis. While in its present form it cannot meet that test, it will be refined and improved over time. The scanning technology itself will become more accurate, and so will the algorithms that analyze brain function. At some point this technology may replace random groups of 12 people as the “finder of fact.” We will know as a scientific certainty whether someone is telling the truth. As I said earlier, the jury does not decide what the actual truth is. They decide what has the appearance of being true. Fortunately, they get it right most of the time. Unfortunately, when they get it wrong, it can result in an atrocity with lives and families ruined.
Before any witness is allowed to testify in a courtroom, he must be sworn in. No one has the right to lie while testifying in court. In fact, lying under oath is itself a crime. And if the lie concerns a material fact in a court proceeding, it’s a felony. If technology can tell with absolute reliability whether a person is telling the truth, and no witness has a right to lie, how long can it be before we place an fMRI above the witness stand? As witnesses testify, the jury will be able to see in real time whether or not their testimony is true.
Many will hail this as a kind of ultimate weapon against the guilty. A defendant will no longer be able to take the witness stand in the hope of cleverly lying his way past a jury. A guilty defendant would be unable to maintain his innocence at trial. It would also stop people from using the criminal justice system as leverage in civil cases. When there is a bitter custody fight going on in the family courts, one parent will often try to get the other charged with domestic violence in the criminal courts. If this succeeds, it is a guaranteed win in the family court because no “abuser” will ever be given custody of the children.
An old joke among trial lawyers has it that the criminal courts are a place where bad people go to act nice and the family courts are a place where nice people go to act bad. I once defended a man in his thirties who was charged with the aggravated assault of a family member. Domestic violence is taken very seriously in Harris County, Texas, where the case was filed, and the prosecution of those cases in that county is very aggressive. My client was accused of striking his wife in the face with a glass paperweight, injuring her. They were in the process of getting a divorce in the family courts when this allegedly occurred.
By having my client charged with felony assault against her, my client’s soon-to-be ex-wife would guarantee herself a victory in family court. She would get sole custody of their son and the lion’s share of their assets. The family courts in Harris County show no mercy to those who would batter their wives and children. This case should serve as a warning to everyone who just assumes anyone charged with a crime is guilty. It isn’t always what it seems.
A TALE OF TWO SPOUSES
There was an ominous knock at the front door. Brad began to panic when he saw the police uniform through the peephole. Brad’s mind raced – why is he here? He opened it a crack. “Is there something I can help you with, officer?” The crisp uniform and broad smile that greeted him belied his mounting anxiety.
“Are you Brad Larsen?” Pure professionalism – not a hint of hostility.
“Yes sir, that’s my name.” With an even broader smile the officer invited Brad to step outside so they could “chat” about something. When he got onto the front porch things changed on a dime. The officer snarled, “You’re under arrest for felony domestic violence, you piece of shit!” While pulling Brad’s left arm behind him he forcibly shoved his face into the brick siding of the house. Brad heard the handcuffs closing around his left wrist before he had time to react. “What is going on, man? Why are you doing this?”
“Shut the fuck up!” snarled the officer. “I’ve already seen the photos of your wife’s face. I just wish you’d swing on me, tough guy. You’re a real badass when you’re fighting a woman,” he growled. A glob of spit landed on Brad’s face – a prelude to the many indignities he was about to encounter.
As Brad sat in the back of a squad car he realized the cuffs were so tight that both his hands had gone numb. He squirmed in the seat to look behind himself and noticed they were turning purple. “We have a problem back there?" the cop asked.
“These cuffs are too tight, my hands are turning purple,” Brad whined.
“A small price to pay for beating the shit out of your wife, scumbag.” Brad’s guts were churning as they pulled into the county lockup. His mind raced: were all those stories about what happens to people in jail really true? He couldn’t remember the last fight he’d been in. His fear for survival kicked in and the adrenaline rush scrambled his thoughts to the point where he couldn’t even focus.
The booking process was just one more indignity: he was printed and had his picture taken with a number placard in front of his chest. Then he had to strip in front of a male guard to look to make sure he had no weapons or drugs. The smell of fear was all around him, mingled with the stench of urine. Someone in a distant cell was yelling incoherently. The cries of someone who was obviously mentally ill were met with complete indifference by guards -- all they wanted was to finish their shift so they could go home. In less than an hour, Brad had gone from the security of his home to the uncertainty of hell on earth. No one in the holding cell would meet his gaze. They were all just as scared as he was.
Brad languished in a cell for two days before he finally got a friend to post bond. Brad now understood how long 48 hours can be when your every waking moment is consumed with fear. Because Brad went in on a felony assault, he was segregated with other violent offenders. Somehow his being a computer analyst – that is, a nerd – did nothing to dissuade the jail analyst from viewing him as a violent offender.
Brad bonded out on Monday and was given a Wednesday preliminary court hearing. Tuesday morning he was in my office looking for help. “Brad, they’re alleging you smashed your wife in the face with a glass paperweight. She has a damaged eye orbital and photos that show blood and bruising on her face.” I was speaking in measured, neutral tones, but he understood the gravity of what this meant.
The offense report told how the couple had initially met at Anne’s apartment to sign an agreed divorce decree. During the discussion, Brad became irate and irrational. A heated argument ensued and Brad became violent. He picked up a glass paperweight from Anne’s desk and struck her repeatedly in the face. Anne raced to the phone and dialed 911, screaming that she was being attacked. The police arrived within minutes to find Anne sitting on the floor crying, her face badly bruised and bleeding. The police took her statement and photographed the bruising and blood. A warrant was issued for Brad’s arrest. A knock on the door, forty-eight hours in hell. And that is how we find ourselves here, in my office.
During the initial interview I explained to Brad how serious this charge was. Aggravated domestic violence is a third-degree felony punishable by two to ten years in prison. Brad had a much different version of what had happened that night. “Look, Brad,” I told him, “you need to tell me what happened. I need to know the truth if I am going to help you.”
Brad slumped into the leather chair and his gaze wandered to the law books resting on dark wood shelves. “How I got here is insane,” murmured Brad. He spent the next hour conveying his version of what had happened. He said his wife Anne had convinced him that they had worked out their differences amicably, and could sign an agreed judgment of divorce. Each of them would share half the marital property and he would have joint custody of his son with liberal visitation rights. Brad would have to pay child support to Anne until their son turned 18 at the standard rate set out by statute. The agreement was acceptable to Brad and they planned to meet at Anne’s apartment to sign the judgment and complete their divorce. When he arrived, however, he was greeted with a document that gave Anne almost all the property and sole custody of their son. Brad protested this was not their agreement and refused to sign.
Anne’s apartment was a mess. Children’s toys were strewn all about the living room. The kitchen sink was piled with dirty dishes, half-eaten take-out and empty cups strewn all over the place. His son was sleeping in the adjacent room, unaware of the impending storm. Brad knew his wife suffered from severe emotional problems. He saw the anguish on her face. But he’d had enough and could no longer carry the burden of her constant rage. He wanted out. She was an albatross. Anne could tell it was different this time. Brad was really leaving. This was permanent. So she decided to make him pay. And this is the point where Brad’s version of events and the police report part company.
Anne picked up a glass paperweight, looked Brad dead in the eye, and shrieked, “You don’t fucking get it, Brad.” Maniacally slamming the paperweight into her face she screamed, “I’m in charge!” Again and again. “I’m in charge, you son of a bitch!” Blood was gushing, a bruise building under the skin. Brad jumped to his feet and started running for the door, knowing full well no one would believe this. Hell, he was watching it and didn’t believe it. As he wrestled the door open, the last thing he saw was Anne punching out 911 on the phone and screaming, “Help me – he’s beating me!”
They say there’s nothing more dangerous for a trial lawyer than to believe his own client. I did everything in my power to get Brad to tell me what had really happened in that apartment. “Listen Brad, that story is ridiculous and there’s no way I can sell it to a jury.” It was the kind of nonsense that makes great drama on TV – but we are living in the real world, not an episode of SVU. I warned him, “You could actually end up in prison before this is over.” Still, he insisted it was all true. Nothing I could say or do would get him to back down.
I went to court with a written motion forcing the DA’s office to seize the paperweight and have it checked for fingerprints by the Harris County Sheriff’s Department. When he read the motion, the judge laughed out loud. He thought it was as ridiculous as I did. Still, the court granted my motion and ordered the paperweight seized and printed. The state agreed to have both paperweight and the print results maintained in the Sheriff Department’s property room to ensure the integrity of the evidence. If the only prints found on the paperweight were Anne’s, we’d have a chance. The prosecutor was smirking throughout the hearing. If Brad’s prints showed up on that paperweight the DA would show him no mercy for having tried to play the system this way. She’d see to that. Vindictive would not even begin to describe my “worthy opponent.” But the court had granted my motion and now we were all in – not a place most lawyers want to be.
During the next two months I returned to court repeatedly, only to discover Anne had several times refused to hand over the paperweight to the DA’s office. During this process, the court had also entered a “no contact order” prohibiting Brad from contacting or speaking to Anne in any way. I cautioned Brad not to call Anne under any circumstances, and told him that if she were to call him it would be important to record the conversation – evidence that she’d contacted him and not the other way around.
One afternoon, while we were waiting on the paperweight that would never appear, Anne did call Brad on his cell phone. “Brad,” she whined, “I’m in a lot of trouble. The DA’s office is trying to get the paperweight from me.” Brad could hear her softly crying. “You know what happens if I give them that paperweight. They’ll put me in jail for this. I am so sorry! I don’t know what I was thinking. The divorce just made me crazy. Do you think we can get back together?” she begged.
Brad managed to record the entire conversation and brought it to my office. I burned a copy of it on a CD and gave it to the new DA. The original prosecutor quickly lost interest in the case when Anne refused to cooperate, and she assigned it to an underling. I told him that after listening to this recording he would understand why he was having no luck in retrieving the paperweight. The new DA took all the evidence in front of a grand jury and the case was no billed. Brad had been vindicated.
Anne did take one more swipe at Brad once the divorce was over. When Anne found out Brad had started dating, in a rage, she reported him to Child Protective Services for sexually abusing their child. The medical examination determined the child had diaper rash but had not been abused in any way. I went to the DA and said it was unconscionable to allow this woman to continue her reign of terror. The DA explained to Anne that if she made one more false accusation he would see to it she went to jail. Four years have now passed without incident.
The problem of people trying to abuse the system with cold-blooded cynicism is not limited to the criminal courts. After 20 years of handling personal injury cases, there is no level of dishonesty that corporate America could pull in a courtroom that would shock me in the least. I will share just one example.
Jason was an iron worker, twenty feet in the air, straddling an iron girder that was being connected to a column at a massive construction site. The column had not been secured to the concrete pedestal properly and the entire column and iron beam tilted to one side. Jason was thrown off the girder and fell feet first to the ground below. His knee blew out the back of his leg and the side of his face was crushed. A life flight helicopter airlifted Jason to a trauma hospital that saved his life. While en route he was given a sedative to calm him down. Upon arrival at the hospital they drew his blood to perform an immediate drug screen before giving him powerful sedatives and painkillers.
All the companies involved refused to pay Jason a dime. Each claimed it had done nothing wrong. While I can understand a company avoiding responsibility for an injury that’s not their fault, this case was outrageous. They tried to blame Jason and fabricated evidence to destroy any chance he would have at obtaining justice. During depositions one coworker reported having seen him smoking marijuana on the job site before falling off the beam. Another coworker testified that Jason had told him that morning that he’d taken meth. Both workers also said he had failed to hook his safety line to his harness. One described the harness as orange, the other beige. They each claimed both clips on his lanyard were fastened to the same D ring on his harness. This crucial piece of evidence, the harness, was removed before Jason was loaded on the air ambulance and then mysteriously disappeared, never to be seen again.
At trial, the insurance company’s defense lawyers pontificated about personal responsibility. They claimed Jason’s brutal injuries were the result of his own carelessness in not tying off and his irresponsible drug abuse. While this made things look grim for Jason, there was some additional evidence that I brought to the forefront. Jason’s drug screen at the ER was positive for the sedative they gave him on the helicopter, but negative for any other kind of drug, including marijuana and meth.
I also had a photograph of Jason up on the steel at another job. Jason was an amateur cowboy and leather worker, and had made his own harness out of dark brown leather. He had never owned a harness that was orange or beige. The belt that wrapped around his waist was 4-inch-wide leather. There were no D rings in his belt at all. When a worker’s job is threatened, it becomes easy for him to say the things his employer wants to hear, regardless of the truth. But for the photo and the hospital lab report, Jason would have been at the mercy of his unscrupulous employer. Jason’s leg eventually had to be amputated, and he suffered permanent brain damage. His case eventually settled for a decent amount and I put his funds in a structure so Jason received a monthly check. He would be taken care of for the rest of his life. An fMRI would have been a very effective way to stop Jason’s employers shamefully trying to cheat an honest worker maimed on the job.
Protecting us from lying defendants is one potential benefit of fMRI technology. But before we start cheering, a word of warning. Defendants aren’t the only ones this technology will affect. The police, too, will no longer be able to fabricate probable cause or missing pieces of evidence. I know some readers will find this an implication to resent, but it is in fact a sad reality of what goes on in our system. The police setting up an innocent man is rare. It is very rare, indeed. It is not, however, unheard of. And that is the problem.
Having spent five years in the DA’s office, I befriended numerous police officers. Over many a beer we discussed crime and punishment as well as the problems with the “system.” When police “play a hunch” as opposed to awaiting probable cause, they are breaking the law. We don’t live in a police state. We live in a liberal democracy anchored by constitutional rights. Governmental power is clearly restrained by black letter law. This includes what the police may and may not do while investigating crime.
Earlier we spoke of the need for police to establish “probable cause” before they can search or make an arrest. If they are investigating a case based on statements from civilian witnesses, they must establish probable cause and then obtain an arrest or search warrant from a magistrate. With the advent of the fMRI, police will also be unable to say things in a courtroom that are untrue. While testifying as to their probable cause, the court and jury will know whether their vocalization of probable cause is coming from memory or a clever fantasy meant to deceive.
I once defended a man charged with DWI where the probable cause for pulling him over was driving without lights at night. My client swore to me he’d had his lights on. I told him the judge wasn’t going to believe him over a police officer, truth or not. After all, why would the officer lie? In fact, my client had been driving a GMC pickup truck with headlights that quite simply could not be turned off. I videotaped the vehicle with the engine running and showed the interior of the vehicle with the light switch turned off and, sure enough, the lights were on at all times.
During the suppression hearing the officer testified under oath my client was pulled over for driving at night without his headlights on. During cross exam, I played the tape while the officer was on the witness stand and forced him to admit that the vehicle I had filmed was in fact the one he’d pulled over. He also had to acknowledge that the film demonstrated this vehicle could not be driven without its lights on. The judge, with a shocked look on his face, demanded to know how the officer could reconcile his prior testimony with what we were all looking at on the video. With a sheepish grin the officer said he could not. The judge loudly banged his gavel and pronounced, “Case dismissed for want of probable cause.” This was nothing more than dumb luck for my client. Had he been driving any vehicle whose lights could have been turned off, we would have lost that hearing when the judge rubber-stamped the officer’s testimony while saying, “Why would the officer lie?”
On a different case my client was pulled over in the dark at one in the morning for excessive smoke from his tailpipe. Under withering cross examination, the officer stuck to his story, insisting that he could see smoke coming out of the tail pipe of a moving car when it was pitch dark. The judge found probable cause for the stop. He apparently thought the officer’s testimony was credible. This is why many cynical defense attorneys refer to judicial review as nothing more than a winking approbation of police misconduct.
With the fMRI lie detector, an intellectually dishonest judge with a history of accepting anything the police say about probable cause, no matter how ridiculous or untrue, would no longer be able to act with impunity. The exclusionary rule would suddenly have real teeth. Those who are familiar with “Strategic Foresight” principles would call this the science of unintended consequences. By making the system completely truthful in every respect, we would initially free a large number of guilty criminals, their convictions overturned due to police misconduct. I say initially, though, because it would not take long for police to realize they could no longer cheat on probable cause. Those officers who insisted on repeated violations due to character defects would eventually be fired. And good luck getting another job as a police officer when you have been fired for falsifying legal documents.
If you doubt the validity of what I have just said, I would point you to the advent of the video camera in squad cars. In 1984, prosecutors were advising police departments to get video cameras into their squad cars. It was a new technology that would make the system much more accurate. The assumption of most prosecutors was that video camera evidence would no longer allow a bunch of lying drunks to get away with DWI. That was the theory, anyway. The reality turned out to be a mixed bag. The camera is not just recording what the defendant says and does. It is also recording the police officer. Over time, when a camera is constantly running, people forget that it is there. This includes the police. My last seven jury trials in Harris County, Texas involving the defense of people charged with DWI all ended in acquittals. It was the videotape at the scene that allowed me to convince the jury my client was not intoxicated. If you look at defense attorney stats pre-video camera, it would be the rare lawyer indeed that could get seven not guilty verdicts in a row.
In each one of those cases, the police had sworn under oath that my client was intoxicated. They testified that the suspects failed the field sobriety tests due to poor balance, slurred speech, and an inability to follow directions. But each time, the videotape told a different story. Their rather slight loss of balance was innocuous, the speech was clear, and they did in fact follow directions. Each officer seized on minutiae and exaggerated wildly. While the officer would be saying one thing, the videotape would show something quite different. I was able to ask the jurors in each one of these cases if they were going to believe what the police said or their own eyes.
I have had several drug cases where a dashboard video camera demonstrated that the police had no probable cause whatsoever to search my client. These resulted in the evidence being excluded and the cases being dismissed. The internet is now filled with episodes of police acting badly because of the proliferation of cell phone cameras.
The point I’m trying to make is that actual truth is a two-way street. This sword will cut both ways. This is why it may not be outlandish to envision our government actually fighting the use of an fMRI lie detector in the court room – a perverse result indeed, given their obligation to find the truth.
The State of Illinois has actually passed a law making it a crime to videotape a police officer performing his duty. Hopefully, when this gets to the Supreme Court it will be found unconstitutional. But there is by no means any guarantee. Advocates of “original intent” will point out that our founding fathers never said anything about videotaping in the Constitution. They do not want activist judges making up new rules.
b. Pulse monitoring system
An MIT media lab student has invented a device that can extract accurate pulse measurements from ordinary webcam images. By pointing a webcam at someone’s face, a person equipped with this device could measure their pulse. During jury selection, an attorney could get real-time information as to how each potential juror was reacting to his questions concerning the law. We would no longer have to depend on an individual juror’s veracity to know his views on potential issues in a particular lawsuit. This is valuable information indeed while picking a jury. As a saying common among trial lawyers has it, “Doesn’t matter what you argue, it only matters who you argue it to.”
I have participated in numerous mock trials of large personal injury cases in order to determine the probable value of the case and to probe for weaknesses. After a truncated presentation of the trial, we can watch jurors from the other side of the one-way mirror as they deliberate our case. This gives us valuable insight as to how the case would play out in front of a real jury. A mock trial, however, is only as good as the lawyers who put it together. To get a valid result requires a balanced and intellectually honest presentation. With total control of the process, any lawyer can win a mock trial by slanting everything to his favor. Of course, to do so would be a complete waste of his own time, as the results would have no meaning. For a serious lawyer, the purpose of a mock jury is to gauge realistically how a real jury may behave.
Now, with the promise of visual pulse-monitoring systems, we are about to see jury consultants run amok. Why engage in mock trials when you can obtain real insights into the actual jury that will hear your case? By pointing a device that fits in a briefcase at individual jurors, they will obtain invaluable data as to how those jurors form opinions. It may be as simple as an attorney pointing his laptop at a jury. This reading of jurors will not stop during the selection phase but will continue throughout the trial. Attorneys will know, in real time, what is and is not working with the jury during trial. The potential for manipulative abuse under these circumstances, especially if only one side has this technology, is massive.
In a very real sense, every trial lawyer, with every piece of evidence he presents, with every question he asks, with every statement he makes, is attempting to manipulate a jury to get the verdict he desires. Before we had powerful technology that exists today, an attorney could only rely on crude ideas about human nature to guide his sense of what would and would not sway a jury. Soon, we may actually be able to remotely read the mind of a juror. If only one side has the financial and technological ability to do this, then a fair trial will be impossible.
For that matter, why limit our speculation on how such technology might be used to the jury? Surreptitiously pointing this equipment at opposing counsel, witnesses, and the judge would provide your side with an incredible insight into the trial itself. If you could tell the trial was going badly – if the judge was leaning against you, for example – you could approach the other side during a break and cut the best deal possible. If things appeared to be going strongly in your favor, you could push for a verdict to maximize the win. To your clients, you would appear omniscient. And in fact, you’d know incalculably more than lawyers today.
c. Magnetic Fields
MIT and Harvard University have discovered a way to alter a person’s sense of morality using magnets. The right temporal – parietal junction (RT PJ) is a part of the brain where moral judgments are made. It is located behind and above the ear. By applying a magnetic field to this part of the brain, scientists made it difficult for their subjects to separate innocent intentions from harmful outcomes. They no longer judged others by their intentions, but rather from harmful events that occurred regardless of intention.
“Using a powerful magnetic field, scientists from MIT, Harvard University and Beth Israel Deaconess Medical Center were able to scramble the moral center of the brain, making it more difficult for people to separate innocent intentions from harmful outcomes. They had 20 subjects read several different stories about people with good and bad intentions that resulted in a variety of outcomes. The magnetic field caused the moral center to ‘misfire’ resulting in the subjects focusing only on the outcome to determine if the actor was good or bad.”
Earlier we discussed how our entire judicial system is built on the concept of mens rea, the guilty mind. On the civil side, if I get drunk, run a red light, and strike someone dead, my negligence makes me legally liable for a wrongful death. If, however, I am driving the speed limit, have had nothing to drink, am paying attention, and a child darts out from behind a parked car, I am not liable for the death of the child. I have not been negligent; the child’s death is what is called an “unavoidable accident.” A great deal hinges on a juror’s ability to view intent, and finding a way to gain greater access to it would be a bonanza for personal injury lawyers. Juries would find for all plaintiffs, regardless of legal fault.
In the criminal court, intent is everything. If I intend to kill someone and I voluntarily pull the trigger, I am guilty of murder. If I’m on a hunting trip with my friends and I shoot at what I think is a deer but turns out to be my buddy Steve, it would be an accident. I didn’t intend to kill my friend, so I didn’t commit murder. Everything depends on what the jurors think about my mental state. So what happens if we put a magnetic field on our jurors?
Prosecutors would become invincible using this technology. All they’d have to do is prove a victim was shot. Self-defense and accident go out the window if the jurors are only focusing on the result and not the intent of the shooter. When a jury is waived and the case is submitted to a judge, we face the same problem. We’d have to shroud the courtroom in a lead shield and force everyone through metal detectors to strip them of electronic hardware before entering the courtroom. As these devices become smaller and smaller, it’s only a matter of time before a corrupt litigant (or his lawyer) avails himself of this kind of trickery.
d. Brain Implants
Numerous scientists in labs all across the world are developing brain implants that will make it possible to connect the human mind to a computer. Most of this work is being done for paraplegics, to increase their options for independence and mobility. It’s only a matter of time before this technology is perfected and can wirelessly connect the human brain to the internet. The potential for a trial lawyer armed with this kind of technological advantage is staggering. Within one human mind would exist all the case law in every U. S. court in history.
Before a hearing or trial, attorneys have to anticipate the issues that will come up in court and research the law in advance. They copy all the cases, highlight relevant sections, and attempt to memorize the more important passages. One of the greatest fears faced by a litigator is his opponent producing a brand-new decision that completely undermines his position. An attorney with a brain implant would be able to pull case law and recite it to the court verbatim. This would all be done seamlessly, with the attorney actually seeing the case in his mind, reading from it as though reciting from memory.
The cyborg attorney would be able to communicate with his expert witnesses, his entire legal staff, jury selection expert, case witnesses, and anyone else that could help him, all without saying a word. He would appear god-like next to the normal attorney limited to human speech and the reach of his own arms.
If the cyborg lawyer has a case manager pointing sensitive instruments at jurors and witnesses during the trial, this information will doubtless be wirelessly transmitted to the attorney through his brain implant. Who would hire an attorney that lacked such enhancements? Can a mere human attorney ever compete on equal footing with a cyborg attorney? Will the legal system allow attorneys unlimited access to enhancements?
I spoke earlier of how litigators rapidly adopt new technologies in an endless struggle to gain an advantage over their opponents. At some point, judges will have to take control of their courtroom. They may install jamming devices that prevent cyborg attorneys from communicating wirelessly with the internet – a leveling process, if you will. Because of the enormous sums of money at stake, corporate America will find ways to defeat any limitations the court places on their cyborg lawyers.
In the twentieth century, unethical lawyers would sometimes try to listen at the jury room door to know what the probable verdict would be in advance. But soon, technology will do more than listen at the door. Technology will allow us to enter the mind of each juror.
The criminal defendant will have his own complaint. He has a constitutional guarantee of the attorney of his choice – something not promised to the defendants in civil trials. If he hires and pays for a cyborg lawyer, he will argue in court that the hobbling of his attorney with jamming devices, etc., amounts to denying him the effective assistance of counsel. We now come back to the “original intent of the founding fathers.” When they guaranteed a right to counsel, of course, cyborgs did not exist. Some will argue that the original intent was that a criminal defendant, when fighting his government, was allowed to use the best lawyer he could find. There were no limitations placed on this. The other side will argue the founding fathers contemplated only the human lawyer because to anticipate the miraculous technology of the twenty-first century would have been impossible.
When the Supreme Court decides this one, it will be an exercise in raw power. They will make a decision based on their own personal biases. The decision will come, of course, shrouded in legal reasoning, precedent and rational argument. In truth, it will always have been anybody’s guess. The decision will have nothing to do with the founding fathers. It will simply fall to the preferences of nine individual citizens, and corporate America will plow massive amounts of money into this process in an attempt to ensure it goes their way.
e. Robotic lawyers
Alan Turing (1912-1954) was a British mathematician and wartime cryptographer, considered by many to be the father of computer science. But it is his work as one of the conceptual creators of artificial intelligence that may be his most noteworthy achievement. In his 1950 paper "Computing Machinery and Intelligence," Turing proposed that machines would ultimately be able to think, and as part of his methodology came up with a way to prove it. His “Turing Test” was intended to gauge the “intelligence” of computers. His tests – in a variety of variations – challenge a computer to either imitate a human or to fool a judging panel by giving responses that seem more “human” than humans themselves. Turing Test competitions are still held annually. The website of one of the most venerable, the Loebner Prize, explains, “In 1990 Hugh Loebner agreed with The Cambridge Center for Behavioral Studies to underwrite a contest designed to implement the Turing Test. Dr. Loebner pledged a Grand Prize of $100,000 and a Gold Medal for the first computer whose responses were indistinguishable from a human's. Such a computer can be said ‘to think.’
Each year an annual prize of $2,000 and a bronze medal is awarded to the most human-like computer.” Skeptics point out that even if a robot or computer can pass the Turing Test, we won’t know for certain whether it’s conscious. It may still be a cold machine without any sense of self that can simply mimic a real human through complex mathematical operations. While this is true, it misses the point. When a robot can imitate us well enough to fool all humans, what difference does it make whether it possess “true” sentience?
This drive to create an artificial advocate, the ultimate warrior in the courtroom, this entity that will not tire, will not surrender, knows no fear, and fights brilliantly at all levels will not stop with a cyborg lawyer. A robotic lawyer would be the ultimate advocate. Physically attractive with a subtle, nuanced control of language, he’d be an incredible advocate. A combination of Cicero, Aristotle, and William Shakespeare all rolled into one with the rugged good looks of Matthew McConaughy or the boyish charm of Tom Cruise, and a mind connected to the Library of Congress, MIT, Harvard, Yale and every law library in the nation. 5,000 years of recorded human knowledge at his fingertips, with total recall.
Having machine intelligence will allow a robotic lawyer to synthesize legal case law and legal reasoning while accessing all the world’s knowledge. He would have all the evidence in his case committed to memory. No notes, no charts, no photos. The entire case would be in his mind – or, perhaps, his hard drive. Cloud computing will allow the robot advocate to process all this information with machine intelligence at speeds thousands of times faster than the human mind. The human lawyer pitted against a robotic lawyer would look like the village idiot by the time the case was done.
The ascending war would require both sides to arm themselves with robotic lawyers. If robotic lawyers were permitted in the courtroom, human lawyers would be fired overnight. During jury selection, a robotic lawyer would have to question jurors about their prejudice against robots. Normally, if a juror can be shown to be prejudiced, he can be kicked off the jury. The reverse is also possible. If a robot is recognized as having civil rights, this would include jury duty. A defendant has a right to be judged by his “peers.” In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court ruled that jurors cannot be removed based on race, ethnicity, religion, etc. Would robots deemed sentient then be a protected class subject to the same ruling?
A prosecutor with a weak case on guilt or innocence but with truly horrific facts can usually count on a jury to be swayed emotionally in his favor. Not so with a robot using machine intelligence to analyze the evidence. The same would be true with a lying police officer who made up his probable cause. Human jurors tend to be hostile to the exclusionary rule because, after all, the defendant “did do it.” Not so with our robotic friend who applies cold, critical thinking to determine if the defendant should be set free, regardless of the crime. The system might, overnight, become both more intellectually honest and more unpredictable. The judge with the trusty rubber stamp being overruled by meticulously honest juries.
Human jurors are expected to discuss the case and, when possible, make a principled compromise to reach a unanimous verdict. Would a robot agree to a verdict with human counterparts he can simply deem incorrect? Will he voluntarily dumb it down to reach a decision with creatures that have one tenth of his IQ? Will human jurors cave instantly to the logic of the robot? With machine intelligence entering into every aspect of the justice system would we even continue to use juries? They might come to seem incredibly quaint, remnants from an age of human deceit and corruption. With a robotically clean and accurate system, what role would remain for jurors?
And what about robotic judges? They present our final conflict. If the human race allows machines to make decisions as to whether or not defendants are put in prison, they will in effect have absolute control over us. It’s one thing to have a robot helping you with your case. It’s quite another to empower robots by giving them control over human beings’ very liberty. If it could be shown that a robotic judge would be eminently more just and wise than his human counterpart, there would surely arise some group pressing to make this final improvement, while those opposed would decry the ultimate debasement of our humanity. The final decision will be an exercise in raw power. Harkening to the original intent of the framers won’t help us with this one. The Constitution is silent here. (That said, I am confident we’ll hear from the original intent crowd, explaining why their idea springs from the founding fathers no matter how pretentious or unlikely the connection.)
Back to our round table:
RANDY: We are merely in the first stages of the situation you allude to in discussing robotic judges. This is already happening in business. General Electric is using digital intelligence to monitor objects on a network that has been dubbed the “Internet of Things.” There are sensors on everything. They’ve slapped sensors on hospital beds, MRI machines, industrial turbines, and refrigerators. These sensors measure temperature, locations, the speed of the machinery, the amount of electricity used. If all this data is collected and pattern recognition software applied to it, it may be able to forecast the future. Instead of having a salesman knocking on doors, a company can use these digital sensors to tell it when a machine will need to be repaired before it breaks down. No longer would there need to be a huge army of middle management personnel, each overseeing a small portion of the company. Instead, this Internet of Things, coupled with pattern recognition software, would be able to make judgments as to what needed to be taken care of immediately, what needed to be shipped in the future, and so on – without a refinery going down or an airplane turbine breaking and grounding a multimillion dollar craft.
ROB: All this is true, Randy, but what does it have to do with the Judiciary and the potential for robotic judges?
RANDY: A judge in the small confined world of a courtroom makes decisions based upon the information being supplied to him within the narrow confines of the witness stand and the rules of evidence. Technologies that are already available can make much more complex and much more considered decisions than many judges are presently making in the courtroom. Your robotic judge is not that far off in the future. All that’s needed is societal acceptance – not some futuristic Space Odyssey. Your future is already here.
CLAY: Hold on, Randy. This discussion is going to get political fast. How do you convince judges to give up the coveted positions they’ve worked so hard for to machines? Sure, a robot will be far more accurate, able to try cases 24/7 without ever catching a cold. But that’s not the point. Humanity is never going to give the final control over to a machine.
RANDY: This conversation reminds me of an old politico in Harris County, Texas. When I was a young attorney there was a county commissioner named Squatty Lyons. This was back in the days when elevators had operators. You’d step into the elevator, tell the operator your floor, and watch as the operator moved a lever on the control panel and the elevator glided up or down. The elevator would slow at a particular floor and the elevator operator would bring the car even with the floor. You’d get off and go conduct your business.
There came a point in Harris County when discussions were being made to replace the elevator system. It was brought up that there were new elevators with buttons so that one could simply go in, punch in the floor, and watch the elevator go to that floor without the need of an operator. Squatty sat listening to all of the other council members talking about how economical this would be. No longer would they need to pay a person in each one of the elevators, nor backups to cover when someone got sick. There was no need to have a retirement system or health insurance for these new elevators. After everyone had had their say, Squatty cleared his throat and in his rather hoarse raspy voice said, “Guys, the last time I looked, elevators don’t vote – humans do.” Each one of those operators retired before any new automated elevators were ever put into the county courthouse.
CLAY: Exactly, Randy. I don’t think human judges, human lawyers, human police officers, human clerks – and especially human politicians – are going to go gently into that robotic good night – not without a fight. Politicians don’t get elected by robots; they get elected by human beings. I can’t see any governor appointing some computerized machine to replace a judge. It would be political suicide.
ROB: Unless of course the robots can put together a sizable campaign contribution. Oh, I’m sorry. Did I say that out loud?
f. Computer Visualization of Human Thoughts
A lot of people consider the computer visualization of human thought to be pure science fiction. But not so fast. On October 29, 2010, an article appeared in Nextbigfuture, titled “New Research on Visual Imagination Could One Day Lead Computers to Tap into Our Dreams.” Scientists have been able to locate the specific neurons responsible for specific memories. By having human subjects think of a particular person, scientists were able to pinpoint an image of that person on a computer screen. Clearly, this science is in its infancy and this is a crude experiment. Proof of concept always is. But it is proof nonetheless. The question is no longer whether, but when. It’s an engineering problem. With enough time, money, and effort, it will become a reality.
Going back to our litigation model, a court is concerned with two basic issues. Question one: did the defendant commit the act? Question two, what to do with a defendant after we have our answer to question one? With the computer visualization of human thoughts, the answer to question one will come from the defendant himself with absolute accuracy. The old adage that it is better to acquit nine guilty men than to send one innocent man to prison will no longer apply. While any system administered by humans is fallible, with the ability to read the human memory, the likelihood of error starts moving very close to zero.
Going back to our constitutional rights: prosecutors cannot force a defendant to give evidence against himself. Based on that, one might assume the courts cannot force a defendant to submit to a brain scan. Wrong! Police can get a search warrant to forcibly take a defendant’s blood for evidence of drugs and alcohol. They can seize personal papers and bank records. The Supreme Court has narrowed the 5th amendment to cover only courtroom testimony. Everything else has been found to be fair game. A nurse can shove a needle into your vein while you’re strapped to a table, but if you’re not forced to speak, it’s not a violation. The Supreme Court recently ruled that gathering DNA evidence by means of a simple swab is legal. What will stop courts from calling a brief stint under a scanner nothing more than a minor inconvenience? While the government is gathering evidence by reading your mind, you’re not forced to speak, so your 5th amendment rights are not being violated. And you thought the government reading your emails was invasive.
Once the technology exists, it will present an opportunity for innocent people to establish their innocence. When a defendant refuses to submit to a brain scan, the overwhelming conclusion that will be held by 99% of the human population is that he is guilty. Arguments about individual liberty and human rights will start to fall on deaf ears. While the defendant might still have his constitutional right to refuse such an invasive procedure, his refusal will in fact seal his fate. Never underestimate the capacity of jurors to declare they’ll follow the law and then violate the hell out of it is soon as they’re alone in the jury room.
If a brain scan were to show the defendant was in fact guilty, we’d still have the second question to address. What do we do with the defendant now that we have established his guilt? If a defendant and his lawyer know that a finding of guilt is inevitable, they’ll consider it what’s known as a “punishment case.” No time or effort is spent on defending against the charge itself, only on minimizing punishment. This is when a jury will hear about the defendant’s background – bad childhood, a serious head injury from a car accident, intoxication, or any other excuse they can fashion to explain the guilty behavior.
This is also the phase of trial where the defendant explains how sorry he is for what happened, and promises it will never happen again. Family and friends take the stand to convince judge and jury that this was aberrant behavior. While the defendant has made a mistake, we’re told it was an unusual one and shouldn’t define the defendant’s being. Next, the defense attorney will passionately plead for probation as an alternative to prison. A brain scan that can actually visualize the thoughts of a human being could become very problematic for this phase of the trial.
When the brain scan showed that the defendant committed the act and was guilty, it immediately answered our first question (Did he do it?). When phase two is commenced (now that we know he did it, what is the appropriate punishment?), the same technology will present a whole new set of problems for the defendant and his lawyer. While the defendant tearfully recounts the horrors of his childhood and describes how the trial process has changed his outlook on life, a computer will be looking into the firing of his actual neurons to determine what is really going on.
What happens when the defendant says he’s sorry, but the computer determines that he’s a stone-cold sociopath, incapable of all empathy? The computer demonstrates not only that the defendant is not truly sorry, but also that he is likely to reoffend. As we discussed earlier, the four accepted reasons for sentencing a criminal defendant are deterrence, retribution, punishment, and rehabilitation. The computer will give us a definitive answer regarding deterrence and likely rehabilitation. Good news for a kid who made a mistake, bad news for the career criminal, the sociopath.
While the lawyer in me has an innate distrust of letting computers decide the fate of human beings, the citizen in me cannot help but see this as an improvement for society as a whole. Anything that will make the system more accurate should be considered an improvement. As a bonus, actual clinical analysis of the defendant’s proclivities removes the problem of bigotry that unfortunately rears its ugly head from time to time in American jurisprudence. We would be left with just the facts.
g. Big Data
Scientists working on artificial intelligence have studied how the brain recognizes patterns. The human mind is equipped to distinguish patterns from inconsequential objects around them. An example can be found in cloud-watching. Not one person has looked at drifting clouds without seeing dragons, lions, or an old man’s face as they breezed across the sky. This is probably an evolutionary trait developed in primitive man to distinguish some predator lying in the tall grass, ready to spring forth and devour its rather defenseless observer. Those that were able to discern these types of patterns survived, and those that were not became supper.
Artificial intelligence techniques have grown exponentially in the last few years. I can remember attempting to use speech recognition software when it first came out and giving up in frustration. Now, this entire book is being written with speech recognition software. One recent example of how far speech recognition has come is a speech given by Microsoft’s Richard Rashid in Tianjin, China. While he gave his speech in English a computer program recognized his words and displayed them simultaneously on a screen. To the amazement of his audience, his words were then automatically translated into Chinese characters while simulation of his own voice pronounced them in Mandarin. This amazing feat was made possible by the deep learning techniques being developed in pattern recognition.
Further advances in pattern recognition software are now being designed to perform human activities like seeing, listening and even thinking. Each of these offers the possibility, in the near future, of amazing technological assistants, like automated driverless cars or actual “employees” that will be able to type, file, deliver, and keep track of the manager’s daily chores at any company. They will pick someone up at the airport and deposit them at their hotel without the involvement of a single human being. There has been startling accuracy in pattern recognition with the deep learning programs already in existence today. They are now mimicking the neural network of the human brain. Advances in pattern recognition may lead to applications for law enforcement and trial work very soon, instead of waiting years for the advancements I’m talking about.
With the ability to accurately discern patterns, facial recognition will vastly improve. Add to that the advent of cheap, high-definition video cameras and surveillance technology will become cheaper and more commonplace. I see a time within a few short years when video cameras are ubiquitous not only in stores but outside in public areas in the U.S. We already have seen this occurring in England. It will become more and more difficult for crime to be committed without a camera somewhere recording it. Instead of having to broadcast grainy footage of a crime on television and hope some citizen calls in with a lead, a computer with this deep learning program could quickly run through all photographs on driver’s licenses contained in government computers and match the perpetrator’s face with his last known address. Arrests will be quicker, and with this type of technology probably more certain than under our present method of interrogation and lineups.
Law enforcement can quickly acquire warrants or narrow down the scope of their investigations by searching through the telephone chatter of our cell phone networks, Twitter feeds, and Facebook ruminations. Comparing these disparate individualized bits of information floating through cyberspace with the location of ongoing or past crimes could greatly narrow down the possible number of suspects and eventually identify an individual to allow for an arrest warrant. Even if there were not enough for an arrest, there might be enough for a search warrant.
The SEC is already using this type of deep learning program to search the billions of trades on all the different stock exchanges, find a common pattern of purchases and sales, and compare that with public knowledge about particular stocks to see if there are buy or sell orders that precede the publication of relevant information. If this pattern clearly indicates advance knowledge of decisions not yet made public, the SEC could issue a Wells notice to individuals or companies, opening an investigation into the possibility of insider trading. This type of programming has greatly reduced the need for individuals to dig through massive amounts of information in the hope of discovering such a pattern. No longer is it necessary for an informer or whistleblower to go to the authorities. Instead, the very trades an investor or company makes can now lead the SEC to an eventual arrest for violation of federal insider trading law.
I suspect large civil law firms in cases with substantial monetary exposure are doing this presently with jury selection. In federal cases it’s common for a large jury pool to be requested months in advance so that an appropriate number of citizens can be selected for jury duty. Any lawyer would want to know the prejudices, fears, and thoughts of potential jurors. This technology could enable him to do just that, using an artificial intelligence deep learning program to go through Twitter communications, Facebook declarations, and purchasing information from data-mining companies. The lawyer could have a complete web browser history for each individual person on the potential jury. This information could be utilized to determine how each individual juror would react to the evidence being presented at trial. If I were representing British Petroleum in their pending lawsuit over the Deepwater Horizon oil spill, I would be utilizing this to search for jurors likely to be sympathetic to those responsible for the largest ecological disaster in recent history.
This technology could be incredibly disruptive to the legal profession. With the ability of this software to ascertain patterns there would be no need to have armies of young lawyers, paralegals, and investigators reading through emails, letters, and documents. No more meetings to find the intent of some individual or company in a lawsuit. Instead, a few specialists with scanners and the right software would be able to discern these patterns in minutes instead of days or months. This would reduce the number of lawyers needed, paralegals hired, or investigators employed for any large lawsuit. Since the software that powers this technology is open source and is not protected by patent restrictions, it may quickly spread to almost any endeavor. The more it’s used the better it becomes and the cheaper it will be to utilize it in ever smaller, less complex matters. Eventually, even small law firms or individual lawyers will be able to utilize this in their practices.
Robotic lawyers (assuming they are allowed) would already have this programmed into their knowledge bases. There is no need for a large computer attached to the robot lawyer. A Wi-Fi connection could quickly transmit this type of information to the robotic lawyer as he sat and asked each of the potential jurors qualifying questions.
District attorneys would be able to show patterns of behavior in a defendant leading back to minutes or seconds prior to the commission of the actual crime. It could possibly be utilized to prove he committed other crimes that were simply not charged previously – and this could be presented to a jury or judge at either the guilt or innocence phase or the punishment phase. The actual video footage of the crime itself (through cheap, high-definition video cameras placed in high-crime areas) – combined with the patterns observed by the deep learning technology – could easily make a case that would be almost impossible to discredit.
What lawyers now call “intuitive knowledge” – knowledge of how to question witnesses, how to ferret out jurors who are not interested in the arguments or have preconceived ideas even before hearing the evidence – is in reality not an intuitive process, but instead one of pattern recognition, more acute in certain people than in others. We think of the Clarence Darrows of the legal profession as mighty lawyers, capable of determining absolute truth. In fact, they may simply have been born with a particular strength for pattern recognition. As we crest the hills of science, we may discover we are merely looking back into our evolutionary past and siliconizing that which is already biologically ingrained in us.
I have discussed how new advances in technology might alter or even disrupt the present judicial system. This list is in no way meant to be exhaustive – if for no other reason than that technology will produce an unknown number of additional problems over the next ten years, just as it has in the past ten years. It is impossible to predict how this will play out 50 years from now, other than to say the current system is unlikely to survive in its present form – not bad news, considering the number of innocents who have been wrongly convicted. Society will not stand idle when technology offers a path to ensure we neither convict the innocent nor acquit the guilty.