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The Know-Believe Gap

I am going to tell you something you don’t believe.  I didn’t believe it.  But sadly, I came to learn it’s true. And it’s terrible. It’s destructive.  Terribly destructive…to our democracy.   The kicker, we didn’t even know we believed it.

Who does our Constitution protect against?  Before you answer that, let me share my observation.  People, lots of people, somehow came to believe our Constitution is the bad guy’s best buddy.  It’s like we switch sides.

The Headline

If you heard nothing else but – case against a man accused of murder dismissed because police interfered with his right to counsel – what might be some of your first thoughts?  He got off on a technicality.  Or maybe, judges just keep protecting criminals.  If this is true, then your reaction would find plenty of company.  It would be standing room only at a meeting of that club.

“Man accused of murder set free because of technicality”

That brings us back to our question: Who does our Constitution protect against?  If you are lucky enough that your early education curriculum included civics, then you know the answer is our own government.  More specifically, our Constitution does not villainize the government but recognizes that people within it inevitably will abuse the power we have entrusted to them.  It intends to protect individual liberty when people in the government act like tyrants.

Chances are you, and most of the people around you probably understood this in some manner. Then why react to the headline about a person merely accused murder, being dismissed, as getting off on a technicality?  Because all of us have a gap between what we know and what we believe.

The word murder simply resonates louder inside you than accused.  So much so, your brain may not even have noticed it was part of the headline.

Based on the headline alone we have no idea if the accused committed the murder.  We just know he was accused of it.  Despite every court in our country telling every juror that – being accused is not evidence of guilt – sometimes our brains have minds of their own; they are not so easily persuaded by written instructions.

Whose Side Are You Taking?

Looking through the lens of our Constitution, whose side are taking when the voice inside you says he got off on a technicality?  The King or the Colonists? 

Let’s say in 1770, the King accused George Washington of murder.  Also imagine, in the extremely hypothetical event that a judge in the American colonies dismissed the case because George’s due process rights were violated (Under the Rights of Englishmen).  The same murder headline above could be written about George.  Do you feel the same about this both of them? I doubt it.  You probably didn’t think George got off on a technicality.

“Man accused of murder exonerated because of tyranny”

A technicality is in the eye of the beholder.  Apparently, so are constitutional rights.  Somehow over time, we have come to view our own safeguards for the abuse of power as complicity with criminals.  How do you think George would have felt about the whole technicality line of thinking thing?

The Bigger Kicker

When a Judge uses the Constitution as a shield to protect an individual’s liberty (which appears to be happening less and less over time) why do so many of us – with no personal stake in the outcome – automatically respond as if a tragedy has occurred?  Perhaps the gap between what they know about our Constitution and what they believe (even unconsciously) has grown too far apart.

It’s hard to imagine a greater existential threat to our justice system.  If due process is reduced to a technicality, then any means justify any ends claimed in the name of justice.  Our Constitution is meant to protect us.  It’s meant to prevent people in Government from acting like tyrants.  Of course, you already knew that.  However, ask yourself: do you truly believe it?  

How wide is the gap between what you know about our Constitution and what you believe about it?

 

 

 

 

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The Sixth Amendment’s Confrontation Clause

In our second video, we square off with the Sixth Amendment’s Confrontation Clause. It’s one of our most important, but misunderstood constitutional rights. When someone accuses you of wrongdoing, your right to confront them may be the only way to clear your name.

Black and white cowboy hats

Black & White Cowboy Hats

In westerns, you can tell the difference between the hero and villain in a second.   The hero is wearing the white hat.  The villain is wearing the black hat.  This symbolism immediately identifies and contrasts the “righteous” and “wicked.”

Our 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 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, it is a reflection of your worldviews on the subject matter you’re attempting to give meaning.

Your File 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 hat 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 a 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.

On occasion, I will tell a group of potential jurors a version of this rift.  Then I will ask them, when “you first saw me which hat did you have me wearing?”  It never fails to begin an interesting and revealing conversation. 

Sorting It Out 

If you ever chose to put the black hat on someone, was it because you wanted it to be true? Or, did you chose the black hat because that’s what you thought others people would also have chosen? Contemplating such questions is introspection. Answering the questions reveals your blind spots.

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?

 

 

 

 

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The Fourth Amendment…In the beginning

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.

 

 

 

 

 

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Davis v. United States

Did Davis v. United States end the Fourth Amendment’s protection of individual liberty?

 

By Lawkop on October 23, 2017 | The Toolbox | A comment?

Fairness…Part 2

 

 

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 has a common understanding when they say a process was “fair”. However, in truth, each of you has your own private, and deeply subjective, beliefs for the concept.  The issue 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)

This reminds us that what we often think is common sense may not be so common.

To many of us, it goes without saying that washing your hands includes using soap. At the same time, companies have gone to the trouble of making thousands of signs showing restaurant employees that “washing” your hands includes using soap. I am assuming that 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 not, then you know they have failed to define washing as using soap.  Think about that before you eat the special…proceed at your own risk.

What happens in a courtroom when you rely on the assumption that we all have a common understanding of fairness? To many of us, it goes without saying that being fair means treating each other equally.  Equality is the primary dictionary explanation for what it means to be fair.  In various shapes and sizes, most people equate fairness with equality.  When you see a person treated unequally doesn’t it seem unfair?  However, the courtroom is a different story.

Legal fairness for the accused is intended to be a one-way street. Our Constitution guarantees the people due process. Due process provides the legal obligations of the government before they take away a person’s life, liberty or property. Due Process essentially defines legal fairness.

Our Constitution guarantees rights to the people. It doesn’t confer rights to the government.  It’s not the 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. 

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 people to attach any meaning they choose.

How likely is it when a person is asked if they can be fair, that they will happen to pick the meaning we use in the courtroom?  When the 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.

 

 

 

 

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Fairness Part 1

Innocent or Not Innocent

Under the rule of law, you start presumed innocent.  This is true in every criminal case.  If the prosecution does not prove their allegations, beyond a 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?  The answer to this fundamental question has not been plainly answered.  So let’s fix that now.

In Context 

We must start with 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.

We must also consider which person is listening and where.  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.

Then we need to consider that words have different meanings to different groups.  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 for 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

Outside a courtroom, the word “innocent” congers the notion of being free from moral wrong.  At the beginning of Charles Dickens’, A Christmas Carol, Ebenezer Scrooge is a morally repugnant character.  Nevertheless, his greed and lack of humanity are not criminal.  In a court of law, you are not asked to determine between moral or not moral.

In a courtroom, 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.

We Don’t Presume Morality

Being presumed innocent is not a presumption of being moral.  It is a requirement that before you learn any fact about a case – you begin by assuming the accused – didn’t violate a law.  Innocent is being used here as a term of art.  It actually means “not guilty,” separate and apart from morality.  You start the trial not guilty, and unless the prosecution can prove their allegations beyond a reasonable doubt, then you remain not guilty.

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 their choices.  Perhaps we should tell them the difference?

 

 

 

 

 

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Fairness

Fairness is a complicated picture to paint.

If you put a group of people in a room, they could probably agree upon a definition of fairness.  However, it is unlikely they will all agree what “fairness” should look like in any given situation. Thus, when a person says they can be “fair and impartial” that doesn’t reveal much.  Other than they believe they are fair.  Don’t most of us think we are fair people?

A meaningful search for a fair and impartial juror requires more than obtaining their affirmation of words from case law. The investigation starts with differentiating the common definition of fairness from the requirements of “fairness” in a courtroom.  For most people, fairness includes the concept of equality. However, “fairness” to a person charged with a crime requires inequality.

Outside a courtroom, if you have to decide which of two people is telling the truth, it is unlikely that you presume one of them is innocent. It’s even more unlikely that you would require one person to prove their case beyond all reasonable doubt. That would not seem equitable.  Such favoritism certainly doesn’t seem fair.

However, in a jury trial where a person is accused of a crime, these inequitable rules are the cornerstone of our justice system. Because the government has so much power, because the risk of wrongful conviction is so great (even when the prosecution is well intended), the only way a person could ever get a fair trial is to require such inequities.  A juror’s ability to be fair is dependent upon their ability to see “fairness” this way – not their own way.

 

 

 

 

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The lines on the page

A good lawyer spends their time mastering the lines on the page. But the lawyer I want to hire, is the one that spends their career obsessing on what’s between them.

By Lawkop on September 1, 2017 | OpEd | A comment?
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False Scales

It’s an old warning, but it still holds true – beware of false scales. Throughout history the admonition against using a numerical value to mislead others has taken many forms:

  • Proverbs 11:1 tells us “[t]he Lord detests the use of dishonest scales, but he delights in accurate weights”;
  • Leviticus 19:35 cautions “‘[d]o not use dishonest standards when measuring length, weight or quantity.”
  • Mark Twain is quoted as saying “[t]here are three kinds of lies: lies, damned lies and statistics.”

Each of these aphorisms recognizes the power of numbers to mislead or bolster a weak argument.  

However, despite history’s warning, many people appear wired to automatically believe numbers in print. A printed number has a sticky quality that is difficult to detach. This is why politicians use them so often regardless of their truth.  

Providing a number without the facts that belie it distorts its meaning by providing an incomplete picture. Showing only the parts of picture you want people to see is a powerful persuasion technique…as the most deceptive things in life are almost true. That is what makes them so believable.  

Test results in DUI cases are no exception. Anecdotally speaking, the majority of DUI cases are not the person who is a sleep in a running car, that is stopped in the middle of an intersection at a green light, clutching an open bottle of vodka. Impaired driving cases are usually less obvious. Most convictions are dependent upon the results of a chemical test.

Our best evidence for determining impairment (by alcohol) is a reliable measurement of a person’s alcohol concentration. DUI is one of the few crimes in our country where a printed number is the primary difference between innocence and guilt. As such, there is no situation where it is more important to heed history’s warning about false scales.

When a blood tester prints out a number it is the end result of its software’s counting and processing the data it has been provided. There is no artificial intelligence within the machine guaranteeing the trustworthiness of the result. Moreover, the printed number is not meant to represent the true value of a person’s alcohol concentration. It is merely a best estimation. However, when it is portrayed as a the right answer, the problem is not with the machine. The problem is with the human who knows it is misleading to provide a number without an explanation of its limitations.  

Reporting just a number printed by a machine is form of deception which incorporates “a truth”. It is true that the machine printed that number. However, if that number:

could have a range of uncertainty below a statutory limit;

is created by a machine that has been assigning the wrong number to the wrong person; or

has been produced by using a unreliable calibration method

…it cannot be trusted. Without knowing these facts, the number falsely implies certainty.

The results of any measurement are only truly understood in the totality of its context – supported by the underlying data. Dishonest scales are not only to be detested by a higher power…we the people should detest them as well. As the American economist Edwards Deming famously declared “In God we trust; all others bring data.”

 

 

 

 

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