Unfair

by Adam Benforado

  The training doesn’t remove: Benforado, “Quick on the Draw,” 48; Correll et al., “Across the Thin Blue Line,” 1020.

  To do that, scientists have been: Calvin K. Lai et al., “Reducing Implicit Racial Preferences: I. A Comparative Investigation of 17 Interventions,” Journal of Experimental Psychology: General 143, no. 4 (2014): 1–21; Leon Neyfakh, “The Bias Fighters,” Boston Globe, September 21, 2014, http://www.bostonglobe.com/​ideas/​2014/09/20/​the-bias-fighters/​lTZh1WyzG2sG5CmXoh8dRP/story.html.

  One successful approach is to: Lai et al., “Reducing Implicit Racial Preferences,” 7, 15–16; Neyfakh, “The Bias Fighters.” Of course, stereotypes can also be reinforced: in one experiment, people exposed to newspaper stories about black criminals subsequently showed greater racial bias in their shooting behavior. Joshua Correll et al., “The Influence of Stereotypes on Decisions to Shoot,” European Journal of Social Psychology 37 (2007): 1102, 1107.

  Another involves presenting a vivid story: Lai et al., “Reducing Implicit Racial Preferences,” 7, 15–16; Neyfakh, “The Bias Fighters.”

  Now that we know some: Lai et al., “Reducing Implicit Racial Preferences,” 17–18; Neyfakh, “The Bias Fighters.”

  Visit the Martin guitar factory: “Martin Guitar Factory Tour Part 3 (of 6),” YouTube video, 13:57, posted by “Musician’s Friend,” April 14, 2010, http://www.youtube.​com/​watch?v=e4K1ec2n_M8.

  The lacquer on the exterior: “Martin Guitar Factory Tour.”

  With its pressure-sensitive wheel: “Martin Guitar Factory Tour.”

  As Dick Boak, a longtime employee, explains: “Martin Guitar Factory Tour”; Dick Boak, “Welcome,” 2008, accessed May 20, 2014, http://www.​dickboak.com/​dickboak_website​/Home.html.

  We need to be similarly flexible: Whether the focus has been on building instruments, diagnosing illnesses, or racing cars, naysayers have inevitably emerged to suggest that human intuitions, decision-making, and execution are just fine (even optimal), and that the latest research that suggests that they are not is just a fad or a conspiracy or worse. When sabermetrics—the statistical study of baseball—was first introduced, there were numerous skeptics who believed that the best way to tell a good player was by watching him swing a bat and throw a ball, and, even today, there are many who remain wary of replacing or supplementing the intuitions of scouts with mathematical calculations of dynamics that you can’t pick up from just watching games. Phil Birnbaum, “A Guide to Sabermetric Research,” Society for American Baseball Research, accessed May 20, 2014, http://sabr​.org/​sabermetrics. It is unpleasant to imagine that a computer might be better at selecting a team than a human being. And it is equally disquieting to think that a machine might do a better job polishing a fine Martin guitar—objects made with human hands, we imagine, are necessarily superior. Yet, in each case, the backlash has been largely overcome by the results.

  Little would be lost: If eliminating the right to remove jurors without cause proved politically untenable, we might consider replacing it with a more vigorous disqualification for cause. In any case, people should not lose their ability to participate in a vital part of our civic process because of the clothes they are wearing, the color of their fingernail polish, or their posture, let alone the color of their skin or their gender.

  Although, as we’ve seen, videos are not: Of course, as discussed previously, we must be cautious about how we employ video footage, conscious that it can create its own biases.

  The closer we come to a world: One long-term project may be to develop technology that can create rough images or models of people’s faces from DNA left at a crime scene. That possibility has been raised by recent research focused on using interpersonal differences in certain genes believed to be implicated in facial development to produce predictive 3D models of what a person looks like. Sara Reardon, “Mugshots Built from DNA Data,” Nature, March 20, 2014, http://www.nature.com/​news/​mugshots-built-from-dna-data​-1.14899. The challenge is that there is no one gene that determines the shape of your nose and environmental influences can have a big impact on your ultimate visage. But researchers are not daunted and other projects are underway focused on using DNA to predict height and eye color, among other personal features.

  A few cities, for example: Only about one out of five incidents of gunfire is reported to the police. David S. Fallis, “ShotSpotter Detection System Documents 39,000 Shooting Incidents in the District,” Washington Post, November 2, 1013, http://www.washingtonpost.com/​investigations/​shotspotter-detection-system​-documents-39000-shooting​-incidents-in-the-district/2013/11/02/055f8e9c-2ab1-11e3​-8ade-a1f23cda135e_story.html; Yann Ranaivo, “Wilmington to Lease $415,000 Gunshot Sensor Network,” News Journal, February 19, 2014, http://www.delawareonline.com/​story/news​/crime/2014/02​/19/wilmington-to-lease​-415000-gunshot​-sensor-network/5625179/.

  Likewise, knowing that detectives often: Michael Wilson, “Crime Scene Investigation: 360 Degrees,” New York Times, November 18, 2011, http://lens.blogs.nytimes.com/​2011/11/18/crime​-scene-investigation-​360-degrees/?_​r=0.

  Months after a man is found: “A New Perspective on Crime Scenes: The Man on the Bed,” New York Times, November 18, 2011, http://www.nytimes.com/​interactive/​2011/11/20/nyregion/nypd-crime​-scene-panoramas.html; Wilson, “Crime Scene Investigation.”

  In another New York City innovation: Wendy Ruderman, “New Tool for Police Officers: Records at Their Fingertips,” New York Times, April 11, 2013, http://www.nytimes.com/​2013/04/12​/nyregion/​new-tool-for-police​-officers-quick-access​-to-information.html.

  Coming across an individual on the street: Ruderman, “New Tool for Police Officers.”

  This apartment, according to the details: Ruderman, “New Tool for Police Officers.”

  Such technology does raise civil liberties concerns: We will have to engage in a similar balancing calculation when it comes to new tracking technology, like the StarChase system, which allows officers to shoot a small sticky GPS device from the front of their squad car at a fleeing vehicle. Mike Riggs, “The End of Car Chases,” The Atlantic, October 31, 2013, http://www.theatlanticcities.com/​technollogy/2013/10​/end-car-chases/7425/; StarChase, “How it Works—Overview,” 2013, accessed May 21, 2014, http://www.starchase.​com/​howitworks.​html. Already being used in Florida and Iowa, the hope is that the system will eliminate the need for dangerous police chases that lead to loss of life and significant property damage, as we saw in Victor Harris’s case. Riggs, “The End of Car Chases.” Critics, though, worry that such warrantless tracking presents a significant threat to citizens’ privacy rights. Riggs, “The End of Car Chases.”

  All that said, the best way to: Indeed, the best solution to a problem is not always the obvious one and we should be creative. One of my favorite demonstrations of this principle relates to an unexpected way that researchers discovered to cut down on illiteracy in the developing world. Amy Yee, “In India, a Small Pill with Positive Side Effects,” New York Times, April 4, 2012, http://opinionator.blogs.​nytimes.com/​2012/04/04/in-india​-a-small-pill​-with-positive-side-effects/?hp. It wasn’t hiring better teachers or instituting monetary rewards for learning milestones; it was deworming pills. Yee, “In India, a Small Pill.” It turns out that 600 million children suffer from worms and it is a leading reason why they miss school. Yee, “In India, a Small Pill.” For less than the cost of a coffee per student, however, the parasites can be wiped out, resulting in a big boost in attendance and a significantly increased chance that a child will learn to read and write. Yee, “In India, a Small Pill.”

  For example, a city could invest in trauma kits: Tammy Kastre and David Kleinman, “Providing Trauma Care,” Police, January 24, 2013, http://www.policemag.com/​channel/patrol/articles/​2013/01/trauma-care-the-first​-five-minutes.aspx; Katie Emmets, “Local Police Use Blood-Clotting Agent to Save Lives,” Alligator, January 30, 2009, http://www.alligator.org/​news/local/article​_7a650a65-dfa9-​58c5
-aef5-384499ff0ed5.html.

  Or we could have all hospitals: Donald G. McNeil, Jr., “A Cheap Drug Is Found to Save Bleeding Victims,” New York Times, March 20, 2012, http://www.nytimes.​com/​2012/03/21/health/​tranexamic-acid-cheap-drug-​is-found-to-staunch-bleeding.html.

  Researchers recently found that: Richard Wright et al., “Less Cash, Less Crime: Evidence from the Electronic Benefit Transfer Program” (working paper no. 19996, NBER, March 2014), http://www.nber.org/​papers/w19996; Cass R. Sunstein, “Fighting Crime by Going Cashless,” BloombergView, April 29, 2014, http://www.bloombergview.com/​articles/2014-04​-29/fighting-​crime-by-going-cashless.

  The federal government had begun requiring: Looking at the state of Missouri, the authors surmised that taking about $55.9 million of cash out of circulation each month produced a 9.8 percent reduction in crime. Wright et al., “Less Cash,” 25.

  Less cash in circulation meant: Sunstein, “Fighting Crime by Going Cashless.”

  So why not create an: Allison Orr Larsen, “Confronting Supreme Court Fact Finding,” Virginia Law Review 98 (2012): 1310.

  Indeed, when a defendant: West’s Encyclopedia of American Law, s.v. “Insanity Defense,” accessed May 22, 2014, http://legal-dictionary​.thefreedictionary.​com/​Insanity+Defense.

  Responding to the scene of: Similarly, during an interrogation, a detective could depart from protocol established to diminish the likelihood of false confessions and lie to the suspect about evidence found at the scene of the crime, but that officer would do so knowing that he would later have to articulate his reasons and knowing that if such reasons were deemed insufficient, it would seriously undermine the validity of any confession that was obtained.

  All too often people end up: Dan Simon, In Doubt: The Psychology of the Criminal Justice Process (Cambridge, MA: Harvard University Press, 2012), 83.

  We need to disrupt automatic behavior: The good news is that this is unlikely to require much of a shift in practice. Police officers already follow numerous rules of conduct. And while there may be some resistance based on the notion that protocols are for “low level” functionaries and that judges and lawyers cannot possibly be expected to follow them, these legal actors already operate based on established scripts, from the rules of procedure in the courtroom to the way they write their briefs or opinions constrained by statutory law and precedent. The difference is simply that the new protocols will be based in empirical research, not untested intuitions. As the science becomes more and more settled, some of the defaults could be changed into absolute prohibitions.

  If jurors and judges can be swayed: In the future, a juror might put on a pair of “trial” glasses that linked up to a virtual environment. In this environment, every person could be represented by a neutral avatar with the same facial features, blended skin tone, ambiguous gender, and other physical characteristics. When judges, attorneys, witnesses, and jurors needed to speak, their voices could be modulated to create uniformity.

  Introducing virtual trials would also be: Courtroom violence, especially against courtroom staff, judges, and lawyers, has been on the rise. Caroline Cournoyer, “Courtroom Violence on the Rise,” Governing the States and Localities, January 19, 2012, http://www.governing​.com/​blogs/view​/courtroom-violence-on-the-rise.html.

  All virtual trials could be recorded: In addition, another significant benefit of establishing carefully controlled uniformity would be that it would allow for much more effective scientific research in the future. Psychologists and neuroscientists always struggle to simulate a real trial environment, but with the use of virtual courtrooms, that problem might be largely eliminated. Every experiment on juror perceptions or witness testimony or attorney behavior could employ the same virtual environment used in real cases. Indeed, by recording virtual trials, study participants could be presented with the exact same experience as actual judges and jurors in real cases.

  Today, they usually get only: The law varies by state as to whether courts permit videorecording devices in the courtroom. Digital Media Law Project, “Recording Public Meetings and Court Hearings,” accessed May 23, 2014, http://www.dmlp.org/​legal-guide/recording-public​-meetings-and-court​-hearings; Digital Medial Law Project, “State Law: Recording,” accessed May 23, 2014, http://www.dmlp.org/​legal-guide/​state-law-recording.

  That way, if a lawyer’s objection: This wouldn’t prevent the judge from being influenced, of course, but it would be a clear step in the right direction.

  Indeed, when Pennsylvania officials elected to: Christopher Danzig, “Video Arraignments Save Money and Make Judges Feel Safer,” Above the Law, June 17, 2011, http://abovethelaw.com/​2011/06/video-​arraignments-save-money-and-make-judges-feel-safer/; Valerie Werse, “The Confrontation Clause in Video Conferencing,” Rutgers Computer and Technology Law Journal (October 11, 2012): 2, http://www.rctlj.org/​2012/10/​the-confrontation-clause​-in-video-conferencing/.

  A soldier sitting at a computer: Mark Bowden, “The Killing Machines,” The Atlantic, August 14, 2013, http://www.theatlantic.​com/​magazine/archive/2013/09/the​-killing-machines-how-​to-think-about-​drones/309434/; Michael Hastings, “The Rise of the Killer Drones: How America Goes to War in Secret,” Rolling Stone, April 16, 2012, http://www.rollingstone​.com/​politics/​news/the-rise-of-the-​killer-drones-how-america​-goes-to-war-in-secret-20120416.

  On a smaller scale, surgeons working: Joseph L. Flatley, “World’s First Remote Heart Surgery Completed in Leicester, UK,” Engadget, May 4, 2010, http://www.engadget.com/​2010/05​/04/worlds-first​-remote-heart-surgery​-completed-in-leicester-uk/; Stanford Lucile Packard Children’s Hospital, “What Cardiothoracic Surgery at the Children’s Heart Center Is Known For,” accessed May 22, 2014, http://www.lpch.org/​clinicalSpecialtiesServices/​COE/ChildrensHeartCenter​/ctSurgery/knownFor.html. Videoconferencing is also increasingly common in more routine interactions, from chatting with friends and family using Skype or Apple FaceTime to conducting meetings with Microsoft NetMeeting to teaching online classes. In one recent survey, roughly half of MBA student job applicants and two out of three employers had experience using video conferencing technology. Greg J. Sears et al., “A Comparative Assessment of Videoconferencing and Face-to-Fact Employment Interviews,” Management Decision 51 (2013): 1738. It is also worth noting that it is already common at trials for jurors to be presented with animations or virtual-reality reenactments of key events. Brian Bornstein and Edie Greene, “Jury Decision Making: Implications For and From Psychology,” Current Directions in Psychological Science 20 (2011): 66.

  So, we must ask ourselves: The legal obstacles—like the Sixth Amendment’s guarantee that the accused “shall enjoy the right…to be confronted with the witnesses against him”—are more significant, but they are not insurmountable. U.S. Const. amend. VI. Courts have already carved out exceptions to the right to face-to-face confrontation, including allowing closed circuit video testimony by children in cases involving abuse. Werse, “The Confrontation Clause in Video Conferencing,” 4. And the meaning of the Amendment may very well continue to evolve to permit a virtual courtroom as virtual interactions become more common in all fields.

  The traditional justifications: Werse, “The Confrontation Clause in Video Conferencing,” 12.

  If our current legal rules prevent us: One important consideration in deciding whether increased virtual interactions make sense in the criminal justice system is whether they might introduce new biases or bring other unforeseen costs. There is some evidence, for example, that interviews using video conferencing result in lower ratings for job candidates and more negative assessments of interviewers. Sears et al., “A Comparative Assessment of Videoconferencing and Face-to-Fact Employment Interviews,” 1733. That said, it seems likely that such effects will significantly dissipate or vanish completely with improved technology and increased virtual interactions, as lagging Internet connections, poorly placed cameras, and stress brought on by unfamiliarity with the form
at are not likely to be future problems. Sears et al., “A Comparative Assessment of Videoconferencing and Face-to-Fact Employment Interviews.”

  Plus, with virtual technology: As with the virtual courtroom, virtual interrogations and interviews could all be recorded, which would allow researchers to identify more readily the best techniques for eliciting complete and uncorrupted testimonial evidence.

  Some virtual spaces are already: Simon, In Doubt, 86. For example, the PC_Eyewitness computer program has been developed to facilitate more accurate eyewitness identifications. Otto H. MacLin, Christian A. Meissner, and Laura A. Zimmerman, “PC_Eyewitntess: A Computerized Framework for the Administration and Practical Application of Research in Eyewitness Psychology,” Behavior Research Methods 37 (2005): 324–34; Otto H. MacLin, Laura A. Zimmerman, and Roy S. Malpass, “PC_Eyewitness and the Sequential Superiority Effect: Computer-Based Lineup Administration,” Law and Human Behavior 29 (2005): 303–21.

  Lineups created, chosen, and administered: Simon, In Doubt, 86; Maclin, Meissner, and Zimmerman, “PC_Eyewitness”; MacLin, Zimmerman, and Malpass, “PC_Eyewitness and the Sequential Superiority Effect.”

  We need to stop viewing: John H. Ellard et al., “Just World Processes in Demonizing,” in The Justice Motive in Everyday Life, eds., Michael Ross and Dale T. Miller (New York: Cambridge University Press, 2002), 350–62; Roy F. Baumeister, Evil: Inside Human Cruelty and Violence (New York: W. H. Freeman, 1997); John M. Darley, “Social Organization for the Production of Evil,” Psychological Inquiry 3 (1992): 199–218; Leonard Berkowitz, “Evil Is More than Banal: Situationism and the Concept of Evil,” Personality and Social Psychology Review 3 (1999): 246–53.