Unfair

by Adam Benforado

  Failing the test can mean: Megerian, “Parole Board Says Polygraph Tests Effective”; Tubman-Carbone, “An Exploratory Study,” 2.

  In certain states, they may: Texas Department of Criminal Justice Parole Division, “Sex Offender Treatment and Polygraph Guidelines,” January 28, 2014, 10, https://www.tdcj.state.​tx.us/documents​/parole/03.06.09_parole_policy.pdf.

  These technologies are starting: The message of this chapter is not that novel technology and science that attempts to capture people’s hidden thoughts, memories, and intentions must be permanently kept out of our judicial system. Some of this initial research is greatly promising and should continue. For instance, inspired by the Aditi Sharma case, cognitive neuroscientists decided to conduct some initial experiments looking at whether brain images can be used to distinguish between whether someone is looking at a novel image or something they have previously encountered. Cognitive Neuroscience Society, “Memory, the Adolescent Brain and Lying.” To test this, they had people wear a digital camera around their necks for a few weeks, which took 45,000 photos per person. Study participants were then placed inside an MRI and shown some of those photos along with scenes that they had never seen. By looking at the participant’s brain activity, researchers found they could distinguish the familiar and unfamiliar images with a mean accuracy of 91 percent. Cognitive Neuroscience Society, “Memory, the Adolescent Brain and Lying.” This is precisely the type of valuable endeavor that we should support.

  As suggested in the introduction, we must also remember that our current approaches to determining people’s inner motives and impressions may rest on completely untested assumptions, so in some cases techniques based on encouraging but limited findings or imperfect science may actually be an improvement over the status quo.

  The existing instructions just aren’t: Cutler and Kovera, “Expert Psychological Testimony,” 55–56.

  The main problem is not the criteria: Daubert, 509 U.S. at 589–94; Neil Vidmar, “The Psychology of Trial Judging,” Current Directions in Psychological Science 20, no. 1 (2011): 60, doi: 10.1177/0963721410397283.

  In a recent survey, only 5 percent: Sophia I. Gatowski et al., “Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post-Daubert World,” Law and Human Behavior 25, no. 5 (October 2001): 433, 445–47; Vidmar, “Psychology of Trial Judging,” 60.

  Moreover, in an experiment involving: Margaret Bull Kovera and Bradley D. McAuliff, “The Effects of Peer Review and Evidence Quality on Judge Evaluations of Psychological Science: Are Judges Effective Gatekeepers?” Journal of Applied Psychology 85, no. 4 (2000): 574, 579–83; Vidmar, “Psychology of Trial Judging,” 60.

  Indeed, in the last few years: “Judicial Seminars on Emerging Issues in NeuroScience,” American Association for the Advancement of Science, last updated July 22, 2014, http://www.aaas.org/​page/​judicial-seminars-emerging-issues-neuroscience; MacArthur Foundation Research Network on Law and Neuroscience, “Education and Outreach,” Vanderbilt University, 2014, http://www.​lawneuro.org/​outreach.php; Floyd E. Bloom et al., A Judge’s Guide to Neuroscience: A Concise Introduction (Santa Barbara: University of California, 2010); National Research Council of the National Academies, Reference Manual on Scientific Evidence, 3rd ed. (Washington: The National Academic Press, 2011).

  The first law and neuroscience coursebook: “Law and Neuroscience,” Vanderbilt University, 2014, http://www.psy.​vanderbilt.edu/​courses/neurolaw/.

  We could very well bar: Henry T. Greely, “Law and the Revolution in Neuroscience: An Early Look at the Field,” Akron Law Review 42 (2009): 698–99. There are other questions to consider related to the treatment of lie detection companies. Should we regulate private entities and the technology they develop to improve accuracy, just as we oversee the safety and effectiveness of medical devices and drugs? Greely, “Law and the Revolution,” 699. Should stepladders continue to face more direct government oversight than lie detectors, or will such review stifle innovation? Occupational Safety and Health Administration, “Safety and Health Regulations for Construction,” accessed May 18, 2014, https://www.osha.gov​/pls/oshaweb/​owadisp.show_document?p_table=standards&​p_id=10839. Although, there is no general regulation of lie detectors requiring that they prove their effectiveness, at least one scholar has suggested adopting an FDA-type review of neuroscience lie detection technology to address unreliability and maximize the benefits of the new scientific approaches. Greely and Illes, “Neuroscience-Based Lie Detection,” 405–20.

  For centuries, we’ve espoused: Stanley, “High-Tech ‘Mind Readers.’ ”

  Under traditional English law: Boyd v. U.S. 116 U.S. 616, 625–29 (1886); Stanley, “High-Tech ‘Mind Readers.’ ”

  In the United States, the Fourth: Stanley, “High-Tech ‘Mind Readers.’ ”

  Many of my students shrug: Charles Duhigg, “How Companies Learn Your Secrets,” New York Times, February 16, 2012, http://www.nytimes.com/​2012/02/19/​magazine/shopping-habits.​html?pagewanted=all.

  The truth is that many Americans: Stanley, “High-Tech ‘Mind Readers.’ ” The ACLU takes the position that even if lie detection was sufficiently reliable, it ought to be rejected as an “unacceptable violation of civil liberties.” Stanley, “High-Tech ‘Mind Readers.’ ”

  Given the different cultural backgrounds: Such an approach seems consistent with a Rawlsian vision of justice. John Rawls, A Theory of Justice (Cambridge, MA: Belknap Press, 1971).

  There’s no reason that prosecutors and defendants: Certain scholars have made strong arguments in favor of having different standards of admission of scientific evidence for the prosecution and defense. Christopher Slobogin, Proving the Unprovable: The Role of Law, Science, and Speculation in Adjudicating Culpability and Dangerousness (New York: Oxford University Press, 2007), 131–44.

  8. Umpires or Activists? ~ The Judge

  John Roberts was sitting on: Biographies of Current Justices of the Supreme Court, Supreme Court of the United States, http://www.supremecourt.gov/​about/​biographies.aspx.

  It had been more than a decade: Richard W. Stevenson, “President Names Roberts as Choice for Chief Justice,” New York Times, September 6, 2005, http://www.nytimes.com/​2005/09​/06/politics/politicsspecial1​/06confrim.html​?pagewanted=all. 157 There were now two vacancies: Stevenson, “President Names Roberts.”

  Standing in his way: United States Senate Committee on the Judiciary, Nomination of John G. Roberts, http://www.judiciary.senate.gov/​meetings/nomination-​of-john-g-roberts.

  But the landscape had changed: Nina Totenberg, “Robert Bork’s Supreme Court Nomination ‘Changed Everything, Maybe Forever,’ ” NPR, March 19 2012, http://www.npr.org/​blogs/itsallpolitics​/2012/12/19/​167645600/robert-borks-supreme​-court-nomination-changed-everything-maybe-forever.

  Like Roberts, Bork had: Totenberg, “Robert Bork’s Supreme Court Nomination.”

  And despite the efforts: Totenberg, “Robert Bork’s Supreme Court Nomination.”

  But a series of missteps: Totenberg, “Robert Bork’s Supreme Court Nomination.”

  In the end, fifty-eight senators: Totenberg, “Robert Bork’s Supreme Court Nomination.”

  Where Bork had appeared humorless: Totenberg, “Robert Bork’s Supreme Court Nomination”; Kenneth Jost, “Roberts’ Confirmation Hearings Conclude,” NPR, September 15, 2005, http://www.npr.org/​templates/story/​story.php?storyId=4850135.

  Where Bork had weighed in: Confirmation Hearing on the Nomination of Robert H. Bork to be Associate Justice of the United States, Before the Comm. on the Judiciary, 100th Cong. (1987); Totenberg, “Robert Bork’s Supreme Court Nomination”; Jost, “Roberts’ Confirmation Hearings Conclude.”

  Arguably the savviest move: Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States, Before the Comm. on the Judiciary, 109th Cong. (2005).

  Roberts certainly wasn’t the first: In an American Bar Association Jo
urnal survey conducted shortly before the hearings, more than 50 percent of Americans voiced serious concern about “judicial activism.” American Bar Association, “Most Americans See ‘Judicial Activism’ Crisis,” WND, September 20, 2005, http://www.​wnd.com/​2005/09/32620/; Robert Schwartz, “Like They See ’Em,” New York Times, October 6, 2005, http://www.nytimes.com/​2009/07/12/​weekinreview/12weber.html?pagewanted=all. And during the proceedings, then-Senator Sam Brownback (R.-Kan.) rued the fact that “we’ve gotten to a point today where in many respects the judiciary is the most active policy player on the field.” Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States, Before the Comm. on the Judiciary, 109th Cong. (2005). Senator Jeff Sessions (R.-Ala.) offered a similar sentiment, speaking of the desperate need for “a fair and unbiased umpire, one who calls the game according to the rules and does so competently and honestly every day.” Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States, Before the Comm. on the Judiciary, 109th Cong. (2005). The New York Daily News lauded the analogy, explaining that it showed that Roberts’s “work will deal with legal opinions, not his personal opinions.” “The Next Chief Justice,” New York Daily News, September 16, 2005. Here, in Roberts’s model, was a counter to the unelected “activist,” legislating from the bench. Schwartz, “Like They See ’Em.”

  Good judges call: Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States, Before the Comm. on the Judiciary, 109th Cong. (2005).

  They don’t pitch: Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States, Before the Comm. on the Judiciary, 109th Cong. (2005).

  Bad judges, by contrast: Schwartz, “Like They See ’Em.”

  They are unelected activists: Schwartz, “Like They See ’Em.”

  In setting out the two: Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States, Before the Comm. on the Judiciary, 109th Cong. (2005); Jost, “Roberts’ Confirmation Hearings Conclude.”

  More important, he engendered a world: Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to be an Associate Justice of the Supreme Court of the United States, Before the Comm. on the Judiciary, 109th Cong. 14 (2006); Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, to be an Associate Justice of the Supreme Court of the United States, Before the Comm. on the Judiciary, 109th Cong. 57–59 (2009); Confirmation Hearing on the Nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States, Before the Comm. on the Judiciary, 111th Cong. (2010).

  Justice Sotomayor’s path through: Sonia Sotomayor, “A Latina Judge’s Voice,” Berkeley La Raza Law Journal 13 (2002): 87–92.

  In Sotomayor’s estimation: Sotomayor, “A Latina Judge’s Voice,” 92. This perspective aligned with President Barack Obama’s statement, during the search to replace retiring justice David Souter on the bench, that “empathy” was a key trait that he looked for in a Supreme Court nominee. “Failure of Empathy and Justice,” New York Times, March 31, 2011, http://www.nytimes.com/​2011/04/01/opinion/01fri2.html. And it is no surprise that the president also came under fire, as a result: the empathetic justice is, in many ways, the opposite of the cold, steel-eyed umpire justice.

  As the Republican senator: Bruce Weber, “Umpires v. Judges,” New York Times, July 11, 2009, http://www.nytimes.com/​2009/07/12/​weekinreview/​12weber.html?pagewanted=all&_r=0.

  While a few Democratic senators criticized: Tony Mauro and David Ingram, “The Sotomayor Confirmation Hearings: Sotomayor Pledges ‘Fidelity to the Law,’ ” National Law Journal, July 13, 2009, http://www.​law.​com/​jsp/​article.​jsp?​id=1202432212396&The_​Sotomayor_​Confirmation_​Hearings_​Sotomayor_​Pledges_​Fidelity_​to_​the_​Law&slreturn=20120912191112. At her hearing, Judge Sotomayor explained that “judges can’t rely on what’s in their heart” and that her “philosophy of judging [is] applying the law to the facts at hand.” Her responses eventually prompted Senator Lindsey Graham of South Carolina to remark, “I listen to you today; I think I’m listening to Judge Roberts.” Peter Baker and Neil A. Lewis, “Republicans Press Judge About Bias,” New York Times, July 14, 2009, http://www.nytimes.com/​2009/07/​15/us/politics​/15confirm.html.

  During his confirmation hearings: The conceptions of biased and unbiased judges embodied in the umpire analogy was never intended to be just a description of the world, but rather as a tool to change it. Adam Benforado, “Color Commentators of the Bench,” Florida State University Law Review 38 (2010–2011): 466; Aaron S.J. Zelinsky, “The Justice as Commissioner: Benching the Judge-Umpire Analogy,” Yale Law Journal 199 (2010): 117, http://www.yalelawjournal.org/​the-yale-law-​journal-pocket-part/supreme-court​/the-justice-as-commissioner​:-benching-the-judge%25.

  There was a war over: Benforado, “Color Commentators of the Bench,” 466.

  Establishing the umpire as an ideal: Benforado, “Color Commentators of the Bench,” 466.

  There was no need: Benforado, “Color Commentators of the Bench,” 466.

  And it would limit others: Benforado, “Color Commentators of the Bench,” 466.

  Indeed, a majority of Americans: American Bar Association, “ ‘Judicial Activism’ Crisis”; Schwartz, “Like They See ’Em”; Adam Liptak and Allison Kopicki, “Approval Ratings for Justices Hits Just 44% in New Poll,” New York Times, June 7, 2012, http://www.nytimes.com/​2012/06/08/us/politics​/44-percent-of-americans-approve-of-supreme-court-in-new-poll.html​?_r=1&hp&​pagewanted=print.

  Likewise, while 45 percent of conservative: “Supreme Court’s Favorable Rating Still at Historical Low,” Pew Research Center for the People and the Press, March 25, 2013, http://www.people-press.org/​2013/03​/25/supreme-courts-favorable​-rating-still-at-historic-low/.

  A prime culprit appears to be: Robert P. Vallone, Lee Ross, and Mark R. Lepper, “The Hostile Media Phenomenon: Biased Perception and Perceptions of Media Bias in Coverage of the Beirut Massacre,” Journal of Personality and Social Psychology 49, no. 3 (1985): 577–85.

  In one of the most famous demonstrations: Vallone, Ross, and Lepper, “The Hostile Media Phenomenon,” 580.

  Given the impact of cultural cognition: Vallone, Ross, and Lepper, “The Hostile Media Phenomenon,” 581.

  What is surprising is that: Vallone, Ross, and Lepper, “The Hostile Media Phenomenon,” 581. In sports, the same dynamic may give rise to the strange—but not unusual—situation where opposing fans at the end of a game agree on nothing, except that the refs were terrible.

  In line with Roberts’s model: Take the general directive that a “judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment.” “Code of Conduct for United States Judges,” United States Courts, last revised March 20, 2014, http://www.uscourts.gov/​RulesAndPolicies/CodesOfConduct​/CodeConductUnitedStatesJudges.aspx. This implies that a judge is fully aware of when, say, his identity as a Republican, Harvard-educated, white male or a member of the Catholic church influences his decision-making and can simply decide not to allow it to have any effect. Being impartial, in this view, is a choice.

  That’s why we have rules: “Code of Conduct for United States Judges”; “Judicial Conference Regulations—Gifts,” United States Courts, http://www.uscourts.gov/​RulesAndPolicies/​CodesOfConduct/JudicialConferenceRegulationsGifts.aspx. We assume that by focusing on “bribes” and close personal ties to litigants and controversies, our rules to guard against bias are on the right track, but may just not go far enough. According to the Code of Conduct for United States Judges, a judge should not hold office in a political organization or solicit funds for a candidate. “Code of Conduct for United States Judges.” Likewise, a judge should not receive gifts from those coming before the court. And a judge should not secretly meet with one side in a case and exclude
the other. “Judicial Conference Regulations—Gifts.” These prohibitions all make intuitive sense. Seemingly, the only problem is that they don’t apply to all judges—in particular, Supreme Court Justices and state and local judges—and leave too much discretion to individual judges.

  The evidence that members of the judiciary regularly and consciously exploit the lacunas in our rules at the expense of impartiality is all too clear to many of us. On the right side of the bench, the wife of Justice Clarence Thomas founded a conservative legal organization dedicated to opposing President Obama’s policy agenda and Thomas attended a private political retreat set up by Charles Koch, the billionaire conservative who has made no secret of his goal to undermine the Obama administration, yet Thomas has failed to recuse himself in key cases in which the president’s policies have been challenged. Eric Lichtblau, “Thomas Cites Failure to Disclose Wife’s Job,” New York Times, January 24, 2011, http://www.nytimes.com/​2011/01/25​/us/politics​/25thomas.html. Similarly, Justice Scalia robed up for a challenge to Vice President Dick Cheney’s energy task force despite going on a duckhunting trip with the vice president less than a month after the Court elected to hear the case. Eric Lichtblau, “Advocacy Group Says Justices May Have Conflict in Campaign Finance Cases,” New York Times, January 19, 2011, http://www.nytimes.com/​2011/01/20​/us/politics​/20koch.html​?_r=1&emc=eta1. On the left side of the bench, Justice Ginsburg cofounded the Women’s Rights Project at the ACLU, but ruled on many cases related to woman’s rights. Sandra Pullman, “Ginsburg and WRP Staff,” American Civil Liberties Union, March 7, 2006, http://www.aclu.org/​womens-rights/​tribute-legacy-ruth-bader​-ginsburg-and-wrp-staff. And Justice Kagan was “a cheerleader for ObamaCare” as solicitor general, in the words of S.A. Miller at the New York Post, but didn’t step “aside from the legal challenge to it” once she became a justice. S.A. Miller, “Kagan O’Care Bias Feared,” New York Post, November 16, 2011, http://www.nypost.com/​p/news/national/​kagan_care_bias_feared_rCgJr9pt6EoKnTRwHAXTeO