Wednesday, February 18, 2015
One of the scariest things about litigation is that your fate is in the hands of people you don't know who may or may not see the world the same way you do. Everyone has their own prejudices, biases, experiences, and understandings of what makes sense to them and what doesn't. Sometimes the mental predispositions of other people line up with your own thinking and sometimes they don't. It's not necessarily that one world view is "right" and another is "wrong." It's just that different people see things in different ways. Often that's a good thing because different viewpoints can be an engine of progress and a fountain of new and interesting ideas.
In a legal setting, however, these differences can be terrifying because what makes perfect sense to you might seem utterly foreign or unbelievable to someone else or vice versa.
Take, for example, a case where a woman reports that she was sexually assaulted. An investigation reveals that the morning after the alleged assault, the woman sent text messages to the alleged assailant saying "I'm ok" or "I'm fine." What is the right way to interpret the significance of those messages? Are the text messages admissions that nothing really happened the night before or are they signals that the woman is still processing the trauma she experienced?
In a recent article in the Chronicle of Higher Education by Andy Thomason and Robin Wilson, here is what one lawyer who specializes in investigating allegations of sexual assaults on college campuses is quoted as saying:
"I’ve seen text messages exchanged very, very soon after an alleged assault, and I put less weight onto those," she says. If a woman is saying things like "It’s OK" or "I’m fine," says Ms. Kurker, "they don’t mean anything except the person just doesn’t want to deal with the situation right now."
But if, weeks on, the alleged victim is sending friendly texts to the alleged perpetrator, that could mean something different. "It doesn’t make sense," she says, "that they would be exchanging flirty text messages after that time if something had gone wrong."What's interesting about this statement by the investigator is not whether her view of what different messages at different times might mean for a particular person is right or wrong, because how would you know, especially in an individual case. Rather, the statement is striking because it offers a glimpse into the influence of preconceived notions on interpreting events and forming judgments about them.
And here's the real point: everyone comes to questions of fact with preconceived notions. Sometimes we call these notions experience. Sometimes we call them common sense. Those are the positive descriptors. If we disagree with the predispositions, we call them bias, prejudice, or ignorance.
For people caught up in the legal system, the reality is that winners and losers will in many cases be decided, right or wrong, by what makes sense to other people whether we agree with them or not.
Thursday, February 12, 2015
The San Jose Mercury News has this report today:
Because of financial aid, most students don’t pay the full sticker price, but still, that’s a lot of money. Paying full freight for four years at Stanford costs a cool quarter million. And the costs keep going up.Stanford University will hike its tuition this fall by 3.5 percent, bringing it to $45,729, the campus announced Wednesday.The new fees will raise the undergraduate tab to $60,427 for next year, a total that includes $14,107 for room and board and $591 for a mandatory health fee.
Saturday, February 7, 2015
Andrew Whitman at the American Criminal Law Review has this story about a new Illinois law that tries to solve the problem of police giving subtle or not-so-subtle hints to eyewitnesses trying to pick suspects out of lineups or photo arrays.
The Illinois law counters the problems of cognitive and confirmation bias. The law first requires that photo arrays (in which witnesses are shown pictures of the suspect and “fillers”) and in-person lineups be conducted by officers who do not know which choice is the suspect. Nobody who knows the identity of the suspect is allowed in the room. Next, the law sets standards to ensure that the police’s suspect “does not unduly stand out from the fillers.” For example, it would be against the spirit of the law if all of the fillers wore prison garb, and the suspect wore a shirt and tie.
Most uniquely, the new law requires that lineups and photo array identification be videotaped by an unbiased police officer. Thus, the State of Illinois hopes to remove the guesswork of identifying bias and see for itself what’s going on.Read the whole thing: Videotaping Justice: How Illinois Has Dealt With the Problem of Police Suggestion and How it Might be Used at Trial