Adopting the Mirror Position

Legal reporting without legal reporting

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From a 1996 paper:

 “In most jurisdictions, psychopathy is considered to be an aggravating rather than a mitigating factor in determining criminal responsibility.”

—  Robert D Hare, “Psychopathy: A clinical construct whose time has come?”,

in Curt R Bartol and Anne M Bartol (eds), Current Perspectives in Forensic Psychology and Criminal Behavior, 3rd edition, (2012) [Sage Publications, 2012], 94-105, p 103. Originally published  in 1996 in Criminal Justice and Behavior, Vol 23, No 1, pp25-54.

 

Hypothesis: If the ethical centre of the brain connects to conscious self-awareness through only, say, two or three neurons, and those neurons are functionally compromised, then it would not be surprising that overriding ethical inhibitions would require little effort in such circumstances; alternatively, if the neurons are functioning and the conclusion they transmit is defective, for example by there being an inability to imagine oneself in the place of others, or in imagining one’s responses to others’ responses, then it would not be surprising that decision choices become self-calculating and self-centred in a skewed way, being unable to factor in what other people would consider to be naturally expected responses and choices by others: a flawed world-view interaction model is in play, in other words.  So the ability for empathy fails for that person.

Incorrect processing, or correct processing on incomplete inputs, may produce the right answer by chance every now and then, but incorrect answers are not prevented. (There may be punishment by others after the event, though, if the offender is caught.)

 

***

 

In academic circles, the abstract of an article provides a summary of the contents and subject matter of the article. In the legal report of a case, the headnote looks very much like an abstract – it is at the start of the case report and is providing some sort of a summary – and this could mislead non-lawyers into mistaking the headnote for an actual abstract of the case, and that misconception could in turn lead them down logically-reasoned, but flawed, paths of reasoning.

A case headnote is someone else’s interpretation of what the case is about and its potential legal significance.

Lawyers are trained to read the case itself.

In a textbook for students:

 

Activity

Construct an interpretation map of the facts of the case in The Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] EWCA Div  (http://www.bailii.org/ew/cases/EWCA/Civ/1953/6/html).

—  Nick James, Critical Legal Thinking, 3rd edition, (2011) [Pearson, 2011], p 32.

 

In any case, in deciding whether to adopt a headnote as a correct statement of the case requires reading the law report anyway.

Adopting the headnote as one’s own position on the case without reading that case is a rather peculiar way of proceeding.

Adopting a newspaper headline as the position on the case is even more bizarre.

 

***

 

In 2008, and reprinted in the same criminology book:

 

In criminal law, confession evidence is common, potent, and highly regarded. … Yet confessions are fallible.

Saul M Kassin, “Confession Evidence: Commonsense Myths and Misconceptions”,  in Bartol and Bartol, pp130-139. Originally published in 2008 in Criminal Justice and Behavior, Vol 35, No 10, pp1309-1322

 

The article continues with some stats:

 

12% of …

3% to 4% of …

1% to 2% of …

In North America, police investigators recently estimated that 4.78% of …

 

The 4.78% stands out. (Coincidentally, the round numbers come from other studies; the fractional from one where the author himself was lead author.)

Why not ‘over 4%’, or ‘almost 5%’, or ‘less than 5%’?

One possibility is that there is a confusion between accuracy and precision (since being a psychologist doesn’t guarantee an expertise or competency in statistics).

To get 4.78% in terms of non-fractional persons needs 478 out of 10,000 (and 10k seems rather large, in its own right) or, as a minimum, 239 out of 5,000: anything less than that and we’re back into fractional persons again.

 

 

A scan via Google shows that 631 people participated in a survey, and that (some of them) estimated the 4.78%.

 

By questionnaire, 631 police investigators reported on their interrogation beliefs and practices—the first such survey ever conducted. Overall, participants estimated that they were 77% accurate at truth and lie detection, that 81% of suspects waive Miranda rights, that the mean length of interrogation is 1.6 hours, and that they elicit self-incriminating statements from 68% of suspects, 4.78% from innocents.

 

Further, the 4.78 is an adjustment:

 

We then asked participants to separately estimate confession rates for suspects who were guilty and innocent. Predictably, these questions drew radically different estimates. Respondents estimated that 69.48% of guilty suspects provide a confession (Med = 75; Range = 0 to 100; SD = 23.91; N = 584). Separately, they estimated that 40.24% provided partial admissions and 33.83% provided full confessions. In contrast, they estimated that 23.30% of innocent suspects provide some form of confession (Med = 5; Range = 0 to 100; SD = 33.33; N = 524). A significant degree of Skewness (2.30; SE = .11) and Kurtosis (4.24; SE = .22) was noted in the distribution of false confession estimates. Omission of outliers succeeded in normalizing the distribution and suggested that an average of 4.78% of innocent respondents provide a false confession (Med = 0; Range = 0 to 30; SD = 7.66; N = 380;

Article text:

https://link.springer.com/article/10.1007/s10979-006-9073-5

PDF:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1141359

 

Further Google shows author Kassin (“the pages of American history”) has a predilection for the scriptwriter’s flourish.

For example, in:

https://www.innocenceproject.org/wp-content/uploads/2016/05/Kassin-2012.pdf

he gives a brief overview of a murder case in Italy and refers the reader to:

(for comprehensive overviews of the case, see Dempsey, 2010, and Burleigh, 2011).

with a footnote adding (presumably in case the reader is inclined to check the credentials of the cited Dempsey and Burleigh) that:

 

1 Additional sources to which I had access include the translated police reports of Knox’s statements; personal communications with Amanda Knox, Madison Paxton, and Nina Burleigh; and the Perugia Murder File translation of the Jury/Judge Conviction Report.

 

In a “Corrections and Updates” addendum several corrections are made, significant in a legal sense for anyone presenting a statement of what occurred, and reference is made to the “Hellmann-Zanetti Report on the Acquittal of …” (without mentioning that the charge of falsely accusing the employer of being the murderer was upheld, which attracted a four-year prison term for the accusation).

 

No other updates are mentioned, such as that ‘Hellmann-Zanetti’ was overturned as to the murder acquittal, on appeal to the Supreme Court, on grounds of specious reasoning (that is, circular reasoning, or ‘bootstraps’ logic) and ‘anthropological’ reasoning (read: racism) and the matter was sent back for re-determination to the appeal court level. Nor are any subsequent appeals and what happened thereafter mentioned. Time stops at the correction and the reader is not informed and is therefore left with a distorted impression of what has happened.

Not an ideal position to be in.

 

 

Further, there is a curious absence of reference to other past and future (non-legal) sources matching and even superseding the Dempsey and Burleigh, books which, from a quick scan of Amazon, would include Russell and Johnson’s Darkness Descending (2010), Follain’s Death in Perugia (2012) and Raper’s Justice on Trial: The Final Outcome – Evidence and Analysis in the Meredith Kercher Murder Case (2016).

It’s as if Kassin has not done his homework.

Or, more specifically, he is presenting a false scenario to the reader, much like the subjects of his study present false confessions, and ‘the rippling consequences’ of that scenario flow into other things, including an agenda: “people reflexively accept what is presented to them,” he says. Whether he consciously includes himself in that category is left unsaid.

 

In an ambiguously titled interview article, “Forging Forensic Science: Dr. Saul Kassin on Amanda Knox and the Truth behind False Confessions”

 

“All it took was a confession for Amanda, he said, and everything was set on its own course.”

Not true. A reading of Follain and the others will give a different picture than the one Kassin paints by relying on Dempsey and Burleigh and his conversations. (Not to mention his lack of legal insight is glaringly apparent: for example, an admission by a person cannot be used against them; the Hellmann court decision was annulled on the murder charge; etc)

 

It’s as if a psychological mirror effect is in play: “Prior expectations”, “tunnel vision”, “see what you want to see”.

 

tunnel

There is also a hint of cognitive dissonance in play:

 

“Most people don’t even know that [in the US] police are allowed to lie about evidence. Europeans can’t believe it’s even permissible.”

Interview:

https://www.forensicmag.com/article/2015/03/forging-forensic-science-dr-saul-kassin-amanda-knox-and-truth-behind-false

***

On the one hand, unwarranted techniques used by the Europeans elicited unreliable testimony (therefore, false confession). One the other hand, Europeans are surprised unwarranted techniques are being used by the US.

These Europeans are a wayward lot.

 

***

Unable to see beyond what is presented to him, mistaking those things for headnotes, no updates on matters that would change the position (substantively or otherwise, to point out his ‘harmless error’ jibe’s applicability to his own conclusions), inability to see the other side or integrate those other ideas into a nexus of conceptual associations, and no reference at all to anything legal on the European side – seems to indicate either that traffic is road-blocked on the two neurons from the ethical head office, or that the inputs went haywire there, or both. (His criticism of the Reid technique is independent of his opinion, assumptions and interpretations, though, and stands validly on the experimental results. And that is exactly because he does no ‘production scripting’ with them.)

 

Putting in minute details, saying things happened that didn’t, presenting a picture that is different from actuality, and treating it as true, is exactly paralleling the modus operandi of the false confessor: the question then arises – what future expectation does he have that will be to his benefit?

 

Mitigation or aggravation?

 

Let ℜ = the set of real possibilities motivating someone …

 

Either way, a fourth-hand summary of a case pumping through a non-lawyer pipe: I wouldn’t rely on it.

It doesn’t even qualify to the standards that newspaper reporters doing court cases and other legal reporting are expected to follow.