Unfair (34 page)

Another promising approach is to limit the discretion of legal actors. As we've seen, when Supreme Court justices do research, they tend to sort through information in a biased fashion, finding exactly what they are looking for while avoiding and discounting contradictory data. Amicus briefs—filled with self-serving and misleading data—only make matters worse.
So why not create an independent group, like Congress's Congressional Research Service, to provide reports on relevant topics to all the justices? This simple fix could combat judicial tunnel vision and ensure that all of the justices have access to the same data, which would make it harder to ignore conflicting evidence.

Likewise, given the tendency of experts to align their opinions with the side paying their fees, why not eliminate partisan expert witnesses? We could turn instead to independent witness panels funded jointly by the parties as part of normal court costs. And why not give those independent expert panels the ability to make binding decisions? We know that jurors don't understand the factors that can lead to memory distortions, so why do we allow them to decide whether a witness's identification or testimony is credible? If we care about accuracy, it makes little sense to give jurors the ability to decide for themselves whether to accept an expert opinion whole cloth or discard it entirely.
Indeed, when a defendant
invokes the insanity defense, it seems odd to permit expert testimony by psychologists on the key question of whether the accused was incapable of appreciating the nature of his criminal action, but then leave it to the jury (or, in some cases, the judge) to make the ultimate determination.

We should also consider establishing new protocols to channel behavior in the many situations where independent panels aren't feasible. With strong default best practices, cops, judges, prosecutors, and others could deviate where required but would know that they'd have to justify their actions later.
Responding to the scene of a school shooting, for instance, police officers might stray from protocol by having a witness identify the man they had caught, but they would do so knowing that they would later have to articulate their reasons (“We needed to immediately determine if a killer was still active on the campus,” for instance), and if the reasons were deemed insufficient (if, say, the crime scene was completely secure), the identification would not come before a jury.
All too often people end up engaging in practices that we know are problematic—like using highly suggestive show-ups rather than live lineups—simply because it is convenient.
We need to disrupt automatic behavior known to lead to bad outcomes and force people to challenge their working assumptions.

Computer programs can help by effectively “thinking” for legal actors during the moments when biases tend to arise and errors most often occur. So, for example, a smartphone app might guide a patrol officer securing a crime scene through an established set of procedures, with prompts at the points when errors are commonly made, much as a GPS program helps a driver navigate through an unknown city to a particular destination. Given the diffusion of responsibility in such hectic situations, the smartphone could force an officer to identify which other team members are in charge of various critical duties (recording the identities of witnesses at the scene, ensuring that evidence is preserved until detectives arrive, and so on) and then, in real time, list these officers'
duties on their smartphones. An officer collecting witness information could then be prompted to take headshots, record initial statements, and enter names and phone numbers. An officer helping an injured victim could be walked through a series of quick checks designed to rule out life-threatening medical problems, avoiding the myopia that doomed David Rosenbaum.

This isn't science fiction; it only feels that way. Faced with a similarly grave threat, the aviation industry developed rigorous protocols and automated processes designed to avoid pilot error. Today, jetliner captains can disengage various autopilot functions and certain alerts when unusual circumstances call for a tailored approach. But for routine matters, they let established processes guide things, greatly reducing the risk of disaster. Yes, there is less human agency in the picture—many planes can now follow a flight path specified before takeoff without any intervention from the pilot—but few of us would complain that this is a step in the wrong direction. Indeed, it seems misguided to fret about the impact of such technology when the consequences of a mistake are so high. If we are comfortable with an e-mail program that warns us when we've forgotten to include an attachment we mentioned, why should we worry about technology that helps avoid plane crashes, accidental shootings, and wrongful convictions?

In the decades and centuries to come, we will have to decide how far we are willing to go in the quest to reduce our reliance on human cognition. One possibility is to dispose of live trials. I know this sounds radical, but hear me out.

If jurors and judges can be swayed by the attractiveness of a witness, a defendant's skin color, or the prosecutor's mannerisms, might it not make sense to one day move proceedings to a virtual environment, where participants interact through avatars designed to eliminate these biases? In most trials, there is no compelling reason for jurors to inspect the defendant, witness, or
attorney in the flesh. And preventing jurors from doing so might yield significant benefits.

As was highlighted earlier, one way to reduce the possibility of jurors using inaccurate “tells” (like gaze aversion or jittery knees) to determine the credibility of a witness is to stop instructing them to focus on demeanor evidence. But a potentially more effective approach is simply to bar them from observing demeanor altogether. When there are no eyelids to monitor for excessive blinking, a juror or judge is forced to focus on what the witness actually says. And when you don't know if the defendant is black or white, slim or obese, old or young, attractive or unattractive, it is far less likely that biases grounded in these interpersonal differences will exert an influence. If you cannot hear a person's slow Southern drawl, you are much less likely to assume that the person is unintelligent or carries prejudices against African Americans.

It should not matter that the prosecutor has a particularly commanding presence in the courtroom or a charming way of speaking, or that the defendant has a generally dour expression or a strangely shaped head. And we should be willing to take bold action to address such a serious problem.

The virtual trial would help eliminate bias on the part of lawyers and judges as well. If they didn't know the demographic characteristics of the jurors, they would be less likely to make assumptions and treat them differently. And with the jury unable to see the lawyers, both prosecutors and defense attorneys might focus on making stronger arguments and probing more deeply into inconsistencies in witness statements rather than using body language, voice inflection, and wardrobe for maximum effect.

Introducing virtual trials would also be a boon for courtroom safety—eliminating the possibility of violence between defendants, witnesses, lawyers, and observers—as well as reducing the psychological strain entailed in providing in-court testimony or sitting on a jury. When I was called for jury service in Philadelphia, hearing the details of the crime—an alleged brutal beating
that caused the victim brain damage—left me thinking about my own security. What was stopping one of the defendant's associates from following me home? And I realize that the discomfort I felt on that occasion is trivial compared with the fear experienced by victims and witnesses forced to testify face to face with the perpetrators of horrific acts of violence. As any district attorney will tell you, one of the major reasons that rape prosecutions are so difficult is that victims refuse to testify because they don't want to be in the same room as their attackers. With virtual testimony provided through avatars, the otherwise reluctant might feel comfortable enough to help put away dangerous individuals. And since all witnesses would likely feel less intimidated or nervous, it would also reduce the need for the rigorous rehearsal that can distort memories.

That comfort could be bolstered by standardizing the virtual environment of jurors, judges, witnesses, and attorneys. The simulated space of each trial—including the jury's vantage point on the witnesses, the color of the courtroom walls, the amount of light from windows, and the height of the judge's bench—would be uniform, so that all court participants would know exactly what to expect. There are almost certainly many other things besides the timing of lunch that affect verdicts and sentences—we just haven't yet identified them. The goal would be to remove all variability among trials, save for the particular facts and the law—the elements that are meant to determine the outcome.

All virtual trials could be recorded, which would greatly benefit appellate judges, who would be able to review exactly what jurors saw and heard.
Today, they usually get only a typed transcript of lower court proceedings, and it can be very difficult to get a sense of the vital nuances of what happened at trial. Along with the recordings, we might consider instituting additional safeguards for the accused, such as the option of presenting the trial to multiple juries (possibly in lieu of an appeal). From a societal perspective, this would allow us the best possible opportunity to see whether
our trials yield consistent results. And it might provide for more community engagement and increased transparency, by permitting far more people to observe the trial as it actually happens. In fact, criminal trials could even be broadcast through a court's website, supplementing the spotty error- and bias-checking done by attorneys and judges with crowdsourced oversight.

Even better, we could control juror bias directly by adopting a time delay between when attorneys present evidence and when it is broadcast.
That way, if a lawyer's objection to particular testimony or a particular line of questioning is sustained, it wouldn't be presented to the jury at all. And a delay would allow judges to consider matters more deliberately, which could cut down on errors that lead to overturned verdicts and new trials.

The hurdles facing virtual adjudication are much lower than you might imagine. For one thing, the startup costs are likely to be dwarfed by the long-term benefits. With virtual courtrooms, major expenses like transportation and security would be drastically reduced.
Indeed, when Pennsylvania officials elected to begin using video conferencing for some preliminary arraignments, warrant proceedings, and bail and sentencing hearings, they found that they saved $1.7 million each month. Freed from the logistical constraints of a physical courthouse, more cases could be heard each day, so poor defendants would spend less time locked up before trial, and the correctional system wouldn't have to spend so much to house them.

Similar technology already exists for conducting meetings and conferences, and virtual interactions are becoming commonplace. Increasingly, individuals separated by thousands of miles negotiate the details of multi-billion-dollar deals, manage international incidents, and coordinate military operations in real time. The sophistication and fluidity of exchanges can be astonishing.
A soldier sitting at a computer in Nevada can help a Marine patrol take cover in the mountains of Afghanistan, monitor their exact movements with the help of infrared uniform patches, and instantly
launch a missile from a Predator drone hovering fifteen thousand feet above them to take out an approaching pickup truck.
On a smaller scale, surgeons working remotely have used robots to perform heart surgery, and every day psychologists see patients on Skype.

So, we must ask ourselves, if a doctor no longer needs to be in the same room with her patient, why is it so critical that a defendant be in the same room as the person he allegedly raped or shot or robbed?
The traditional justifications—particularly that judges and jurors need to be able to take in a witness's entire demeanor—just do not stack up against the science.
If our current legal rules prevent us from taking advantage of technological progress to remedy unfairness, we should reconsider those rules.

It is true that a virtual courtroom would remove a lot of the drama and excitement from the trial. But that is exactly the point: the elements that make for good television—bombastic attorneys, witnesses with shaky hands, and defendants seemingly unmoved by the tearful testimony of the victim—make for poor justice.

Of course, the virtual courtroom is but one of the criminal justice venues that could benefit from a redesign. Interrogations could also be conducted virtually, allowing for much better control over the factors that correlate with false confessions, as well as those that promote truthful testimony. The same is true of interviews with witnesses.
Plus, with virtual technology, witnesses could be interviewed quickly and effectively wherever they happened to be.

Some virtual spaces are already being developed, with the virtual identification procedure leading the way.
Lineups created, chosen, and administered by computers remove a major source of human bias. And there are yet other intriguing possibilities. What if we eliminated the prison and created a virtual corrections environment? Those convicted of crimes might continue to live in their homes and work at their jobs but be required to spend two hours every day in an immersive online space tailored
to serve whatever ends we deemed best, whether deterrence, rehabilitation, or something else. The eventual payoff could be enormous. For one thing, we would no longer have to house, feed, and clothe most inmates, which would drastically reduce correctional costs. More critically, only the convict would experience the punishment, not his children, spouse, parents, and friends, as in the current system, and it would be only the punishment that we directly intended, not the assaults that plague today's prisons. Alternatively, what if we allowed the public access to virtual crime scenes in cold cases to encourage crowdsourced detective work? Some facts could be withheld for strategic purposes, but why not tap into the creative problem-solving abilities of millions of Americans? Leaving a case to a single cop seems ludicrous in this light. We need to look in new directions if we want to make a meaningful change to our system. We're limited only by our imaginations and our stubborn adherence to the way things have “always” been done.