Legal Coffee has a new YouTube channel! In our first video, we tackle the Fourth Amendment.
To understand the Fourth Amendment you need to understand “why” it was created by the Founding Fathers. Before the American Revolution, England’s debt swelled from fighting the French and Indian War. To solve the problem, England decided to tax the American Colonies.
While the Colonists were unhappy about the taxes, it was “how” the King enforced them that truly sparked the American Revolution… and the creation of the Fourth Amendment.
You don’t hear the term shill much anymore. It’s one of those words you only expect to hear from your grandparents. It refers to a person who publicly gives credibility to a person or organization, while not disclosing the true nature of their relationship with the person or organization for which they are shilling. While the term shill seems out of date, it meaning remains relevant.
Today we call shills, and their practices, by names such as spammers and astroturfing. Different names, but the same purpose. Shilling, even by another name, is still thriving today. A shill can now even hire support services to help bolster their shilling. Need a enthusiastic crowd to protest? For a fee, you can hire a crowd to support any cause you like. Just pay for as many protester as want, tell the company what to print on the banners, then you have an instant tribe of credibility on demand.
Of course shilling is about perception not reality. In exchange for the fee, you get the impression of independent outrage against your competitor or in support of your cause. However, the shill does not actually care about your cause. They are a gun for hire, regardless of who else is in the fight. The issues you’re fight for merely determine the scope of their services.
Our legal system is not immune from these credibility on demand organizations. In almost every case where a piece forensic science is given to a jury, they are told the laboratory is “accredited.” To illustrate:
Q: Are you telling the jury, that the fact lab has received accreditation, that is some type of guarantee of the that jury can trust the results in this case?
This is a typical exchange in many of impaired driving cases between the attorney (me) and the government’s lab witness. This exchange is usually followed by providing the jury with the additional revelations that:
- The lab is “accredited” by a private company that receives reoccurring fees for their accreditation, NOT regulated by a government entity;
- Accreditation is not certification. The private company, after they receive your fee, only accredits that you have the correct procedures in place – not that you follow them; and
- It is appears nearly impossible lose your accreditation or even be sanctioned. There are crime labs where criminal activity went undetected for years within the laboratory, and they remained accredited.
Let’s take a step back and reflect upon these realities.
You pay for accreditation. Pay for play is also the fundamental requirement for engaging a “credibility on demand”. Accreditation is actually about whether you having the good written policies on the books, not whether you follow them. Isn’t whether you follow the correct policies and procedure just as important having them? However, this half measure does give the impression of credibility. Moreover, If there are serious problems with the lab’s work, then they still remain accredited. There is remarkable similarities between the accreditation services and “credibility for pay” services.
Think of it this way. You decide to go to a restaurant because of the fantastic reviews you read online. However, before you go, you discover all the reviews were paid for by the restaurant. You also discover the service that provided the faux reviews has done this for other restaurants where people have gotten sick from the food. How do you feel about the restaurant now? Isn’t “why would they pay for their credibility” a fair question.
Shouldn’t we ask the same question about crime laboratories when they pay for credibility?
We all have some modest expectations when taking a plane ride. Personally, I expect that the plane will stay in the air as long as it is supposed to. I would expect a pilot that actually knows how to competently fly the plane. And most importantly, I expect to walk away from the landing. These things do not seem too much to ask when you put your life in someone else’s hands.
Fair Expectations For Other’s Choices
Stepping on a plane is choice. It is a choice which puts our fait in others hands. However, there are times when our fait is put in the hands of others, and we don’t get to choose whose hands. The person wrongfully accused of driving with an alcohol concentration above a legal limit is in such a position. After they consent to a blood test, thinking it will exonerate them; the government makes all the choices that follow. The accused gets no say in the “who” or “how” the test is performed.
In such cases, the blood test result may be the difference between being a criminal for the rest of your life – or – walking out of the courtroom. Thus, it’s fair that we have some reasonable expectations of our government when testing blood.
To Err Is Human, To Ignore Is A Choice
Errors in labs happen.
Machines occasionally malfunction.
Sometimes errors are caused by machines. Sometimes people make the “mistaaakes”. As the saying goes, to err is human. However, not all errors are the same. Spelling “mistake” incorrectly is not the same switching John’s blood test result with Bob’s result. A small grammatical error is not the same contamination in a blood sample. The latter are critical errors. When critical errors occur, without understanding what is causing them, relying upon the results produced is a choice. A choice prohibited by science. A choice we should never accept. It does not seem too much to ask of our government not to make such choices.
Is That A Fly In Your Soup?
You order a bowl of alphabet soup. In the kitchen, the waiter sees a large black fly drowning in it. Fearing for the fly’s life, he reaches with his fingers between a few consonants and scoops up the fly. He has saved the fly from death by soup.
Subsequently, and without telling you, then he takes the same bowl of soup, places it on the table in front of you. With a smile he then says “enjoy your soup.” If you knew about the fly, would you eat the soup? Did simply removing the visible problem in the soup make the soup more edible to you pallet? It does not seem too much to ask of the waiter not to make the choice of serving you a bowl of soup contaminated by an insect
Whether it’s airplanes, alphabet soup, or a blood test result we have a right to some minimum expectations. The more important the thing you are relying upon, the higher our expectations. When evidence will be used to determine guilt or innocence, we should have the highest of expectations that thing were done correctly. Is that too much to ask?
You know what the word fairness means. So do the people sitting to your right; and so do the people to your left. The problem is, you don’t know what each other means when the word is spoken.
You may assume that everyone in a group has a common understanding when they say a process was “fair”. However, in truth, each of you have your own private, and deeply subjective, beliefs for the concept. What is common in your regular day may not be so common for other people.
The problem is simple. It’s a failure to define our terms. Defining your terms is fundamental to any endeavor. The meaning of fairness is no exception. You may recall the saying:
“If you would converse with me, you must first define your terms.”
~ François-Marie Arouet (a.k.a Voltaire)
Voltaire reminds us that “common sense is not so common”. To many of us, it goes without saying that washing your hands includes using soap. At the same time, people have gone to the trouble of making hundred of thousands of signs showing restaurant employees that “washing” your hands includes using soap. Presumably, these signs were created to address a real problem. Next time you are at your favorite restaurant, see if they have one of these “soap included” signs in the bathrooms. If such a sign is absent, then they have failed to defined washing to include using soap. Before you eat the daily special, think about this…and then proceed at your own risk.
What happens in a courtroom when you rely on the assumption that we all have a common understanding when we say something is fair? To many of us, it goes without saying that being fair means treating each other equally. You are taught in grade school that being fair means no special treatment for the “favorites.” No one likes the teacher’s pet. Similarly, equality is also the primary dictionary explanation for what it means to be fair. In various shapes and sizes, our mental frame for fairness equates it with equality. When you see a person treated unequally, for no good reason, doesn’t it seem unfair. However, the courtroom is another story.
Fairness in a courtroom is a one way street. Our Constitution guarantees the people due process. Meaning what are the legal obligations of the government before they take away a person’s life, liberty or property. Due process defines legal fairness.
Our Constitution guarantees rights to the people. It is not government that has a first amendment right to free speech – it is the people. It is not the government that has a right to bear arms – it is the people. It is the not the government that has a right to due process – it is the people. The Constitution was created to protect our citizens against harm by government, not the citizens it accuses.
“Fair” is a legal term of art in a jury trial. Unlike the classroom, the law does play favorites. Both sides are not treated equally. The accused in a criminal case is presumed innocent. She is supposed to begin presumed correct and the prosecution presumed incorrect. This sounds a lot like a teacher’s pet.
The unequal treatment does stop at this presumption. The burden placed on the prosecution to overturn the legal presumption of innocence is the most difficult in all of law – beyond reasonable doubt. On the other hand, the accused has no burden. Being “fair” in a courtroom means acting in accordance with these legal rules. Not the rules we learned in our grade school classroom.
If we want jurors that can be legally fair, then it seems unfair to ask them their ability to do so, without first telling them what “legal fairness” means. Failing to define fairness permits jurors to attach any meaning they choose. How likely is it when a juror is asked if they can be fair during jury selection, that they will happen to pick the meaning we use in the courtroom, when legal definition contradicts our inherently intrinsic beliefs about what it means to be fair? More importantly, why are we gambling on jurors getting it right? Take a page out of a very old book: refuse to have the conversation without first defining your terms.
You start presumed innocent. This is true in every criminal case. If the prosecution does not prove their allegations, beyond reasonable doubt, then the law requires a verdict of not guilty. When this occurs, the status quo remains in place – innocence.
Does this mean that “not guilty” and “innocent” are the same thing? While difficult comprehend, the answer to this fundamental question has not been plainly answered. So let’s fix that now.
We need to start by acknowledging our failure to address the issue of context. Words have different meanings to different people. Take the word hammer standing alone. Some people automatically hear a noun. Some people automatically hear a verb. Similarly, in a debate over the scope of our Second Amendment, the word “militia” means something vastly different depending on which side of the debate you stand.
Words also have different meanings to different people, in different places. In a statistics class, the word “significant” means something very different than it does to a person sitting at their kitchen table figuring out how to make this month’s mortgage payment. In science, something is statistically “significant” if a difference is unlikely due to random chance. To the person trying to pay the mortgage, a “significant” amount of money may just mean more money than they have in the bank.
Words also have different meanings to different groups of people. When words develop special significance to a group we call them terms of art. Law is full of them. It is part of the reason lawyers have jobs. Someone needs to explain all the special meanings we have made up words. Thus, words can have distinctly different meanings depending if are you are a member of the bar or patronizing a bar.
Outside a courtroom, the word “innocent” congers the notion of being free from moral wrong. However, morality is not a verdict decided in a court of law. At the beginning of Charles Dickens’ A Christmas Carol we find a morally repugnant character – Ebenezer Scrooge. Nevertheless, his greed and lack of humanity are not criminal. Behavior only becomes criminal when a legislature makes a law prohibiting it. While those things often overlap, they can be mutually exclusive. The danger is convicting a person accused of a crime based on your moral criteria, not the legal criteria.
Being presumed innocent is not a presumption of being moral. It is an assumption that you didn’t violate law. Innocent is being used here as a term of art. It is actually means “not guilty,” seperate and apart from morality. You start the trial not guilty, and unless the prosecution can prove their allegations beyond reasonable doubt, then you remain not guilty.
Similarly, a not guilty verdict is also called an acquittal. The word is derived from the Latin “ad” meaning to, and “quitare” meaning set free. An acquittal literally means to be set free. In the criminal case, it means to be set from the charges. It’s definition has nothing to do moral purity.
Despite the language we use in the courtroom, a jury verdict is not about innocence (as most of us think of the word). A jury is not presented with a choice of innocent or not innocent (moral or not moral). We merely lead juries to believe these are the choices before them by failing to explain the special meanings we give to ordinary language.
We have an unhealthy relationship with milk – both biologically and metaphorically. While the biological debate is well documented, its metaphorical issues deserve more consideration.
If left to nature the fat in milk will separate. The less dense portions of the fat rise to the top. This is what we call cream. People often consider this the “best” part of milk. The lesson people often draw from this process is the “best” will always end up on top. Expanding the aphorism, “the best will eventually win,” because they are the best.
Of course this lesson is painfully incorrect. It is based upon the premises that human decisions are rational and results are fair. These beliefs are disconnected from reality. Not to say all decisions are completely devoid of these, but they alone are insufficient to bring the “best” to the top.
Is it your experience that the most qualified person always wins? I bet you have seen countless examples where the “best” person for the job doesn’t actually get the job. Have you ever done the “best” work, and not been picked?
In our country, does the “best” person to be President always sit in the White House? According to about half the country the answer may be “yes,” but the other half “no”. Many people may feel it is not even a choice of the two “best“. Rather, it was choice of lesser evils. The cream certainly does not always raise to the top in politics.
People, and the things we pick, rise above others for reasons well beyond their merit. The “best” selling products are not always bought because their superior quality. It is the product with the best story that wins. It is the politician with the narrative that connects with the most voters that is picked. It is attorney that is able to craft the best authentic story that gives her client the best chance.
One needs only to look to milk itself to see past it’s false metaphor. If the milk gods truly believed their own aphorism, there would be no need for celebrities with milk mustaches and a tagline. If the cream always raises to the top, people would already gotten it before the television commercials and billboards.
In westerns you can tell the difference between the hero and villain in a nanosecond. The hero is wearing the white hat. The villain is wearing the black hat. A glimpse at the screen and this symbolism immediately identifies and contrasts the “righteous” and “wicked.”
Your Need To Fill In The Blanks
Your mind is wired to automatically give meaning to whatever is before your eyes. You see two men standing across from each other wearing gun belts and your brain attempts to decipher, categorize and answer countless questions such as:
- How did they get here?
- What will happen next?
- Who is the good guy and who is the bad guy?
You are constantly making up a stories about everything you encounter. You immediately put people into previously invented categories that make up your brain’s mental filing cabinet. This organizational system is the product of our life experience and natural predispositions. Where you file something, is a reflection of your world views on the subject matter you’re attempting to give meaning.
Your Mental Filing Cabinet
This is true both before and after the person standing before you has put their symbolic hat on. The hat’s and its color triggers a preexisting cognitive shortcut in your mind. It ignites a series unconscious mental mechanics determining what section of your mental organizer to file the person in. Wearing a black cues you to put the man into one of your many “bad guy” drawers.
This process is unavoidable. While there are benefits to having a “gut instinct” or “natural tendencies,” they also have downside. Bias often causes us to put the wrong information into the wrong mental drawer. Bias has been responsible for many life’s incorrect judgments. This fundamental truth has been exploited by advertiser well before the first episode of Mad Men.
Putting The Wrong Stuff In The Wrong Drawer
A bias is simply a tendency affecting your decision making. Cognitive bias is when we make inferences about people and situations in an illogical manner which results in our own subjective (and more desirable) reality.
While this process is irrational, it is also real. Mitigating bias requires recognition and introspection. Understanding that we have blind spots and their impact is a step in the direction of truth.
- Am I accepting this as true, simply because the other people in the room also believed it is true?
- Is it possible that I am leaning towards a guilty verdict because it confirmed what I immediately thought when I walked into the courtroom?
- Was it just easier to vote the way I did, because it reflects the way I want things to be?
“Know Thy Bias”
Following the aphorism “know thyself” or more specifically “know thy bias” opens the the door to the possibility of critically assessing a situation as clearly as you can.
A jury trial is fertile ground for our bias. Most people want to believe the police got it right when they arrested the person on trial. Most of us want to live in a place were we can trust everyone in the government to do the right thing, all the time. Accordingly, the dangers exists that we evaluate evidence and vote in conformity with this desire – bias.
Identifying a bias in potential juror only take a nanosecond. Just ask her: which color hat do you picture me wearing? Their immediate choice is their bias.
- “If you chose the black hat, was it because you wanted it to be true? or;
- “Did you chose the black hat because that’s what you thought others would chose?”
Contemplating such questions is introspection. Answering the questions reveals your blind spots and engages the wisdom of “know thyself.” Go watch a few westerns and ask your yourself what story you told yourself about the man in the white hat when he first appears. Go watch True Grit and think about what blink conclusion did you jump to about the man (Rooster) wearing the black?
The answer is your bias. Go identify it.
SIDENOTE: Thank you to attorney Mark Beradoni for first coming with the ideas and concepts for this post.
You provide a product – you. If marketing is telling the story of your product to show its value, then your marketing is your story.
The most persuasive stories are free from deception. Great stories are allergic to half-truths. On the contrary, a story arising from a genuine belief is what creates connection. Connection creates belief. A belief that you’re being taken down the right path.
If you marketing is not working, then you must tell a better story – about you. However, this mean a better product. This means providing a better value. This means a better you.
You make things the way you want them to be. I mean…you try to.
Hemingway ends one of his most famous novels with the line: “isn’t it pretty to think so.” His story shows us how we all color our what ifs with our wants, needs and fears. Hemingway’s art metaphorically reflects our need to believe our world views – regardless of their truth.
While we do not always make our world “pretty,” we do make it customized:
- There are some people that saw the evidence and still believe “OJ didn’t do it.“
- Lots of fans think their favorite baseball team will win a pennant in the springtime, despite a mountain of evidence to the contrary.
- When it comes to politics, people often vote against their own interests because of a moral vision of the world they desire.
Understanding why someone customizes their reality, the way they do, is key to revealing: (1) if your audience is likely to believe your story; and (2) the best way to tell it. In the courtroom we call thisprocess a jury trial. The people you are telling the story to we call jurors, the judge, and lawyers. Everyone of them customizes their reality. It is unavoidable human nature. Emotionally unencumbered rationality is a false premise.
Your challenge is to tell the jury a true story using the currency of their collective world views. People will simply not buy your message if it does not fit their subjective reality. However, it might be “pretty” to think so.