Julie A. Seaman, Black Boxes

• Publication year: 2008

BLACK BOXES

Julie A. Seaman^*

ABSTRACT

The metaphor of the black box has often been used to describe the qualities of the human mind; likewise, the jury box is frequently referred to as a black box. In both contexts, the metaphor is apt because of the inscrutability of the process that gives rise to the outputs that emanate from each. Recent advances in brain imaging techniques have now begun to crack open the black box that is the human mind by illuminating the physical manifestations-the "neural correlates"-of a wide range of cognitive processes. In particular, research into the neural correlates of deception presents the genuine prospect of a reliable, forensically practicable lie detector within the foreseeable future. This Article proceeds in the nature of a thought experiment to explore the ramifications for the jury system of a highly reliable lie detection technique. In particular, I suggest that opening the black box of the mind would have the effect of opening the black box of the jury room.

Conventional wisdom has it that the jury's primary-if not singular- function is to determine the historical facts of the case. Yet it is clear that in addition to finding facts, juries also operate in the much more controversial realm of making law. At its extreme, this lawmaking role may result in jury nullification, whereby the jury issues a verdict intentionally contrary to the law as instructed by the court, applied to the facts as found by the jury. Whereas the jury's power to nullify is well-settled, its right to nullify is highly contested. Thus, much of the scholarly and judicial discussion has focused on the issue of whether the jury may or must be instructed that it has the ability to return a verdict contrary to the applicable law. Though scholars are divided, courts have uniformly held that juries should not be told of their power to nullify.

To the extent that brain-imaging lie detection techniques (along with other technological advances in forensics) diminish the need for jury fact-finding, the jury's lawmaking role would become more transparent to the public and, perhaps equally important, to the jury itself. In cases in which the facts were clear, the possibility and the actuality of nullification also would become clear. Thus would arise the questions: Is the black box quality of jury decision making integral to the nature of the jury system itself? Would opening the black box destroy it? Should even highly accurate lie detection evidence be excluded to preserve the black box nature of jury decision making? This Article offers a framework within which to begin to think about these questions.

INTRODUCTION .............................................................................................. 429

I. INSIDE THE FIRST BLACK BOX: WATCHING THE BRAIN THINK .......... 441

A. The Brain on Lies-an Overview ................................................ 443

B. The Brain-Imaging Studies .......................................................... 445

1. "Guilty Knowledge" Playing Card Studies .......................... 447

2. Increasing Ecological Validity ............................................ 449

3. Malingering ......................................................................... 450

4. Autobiographical Lies ......................................................... 451

C. Recent Advances .......................................................................... 452

II. INSIDE THE SECOND BLACK BOX: WATCHING THE JURY DECIDE ...... 456

A. Shutting the Lid: Protecting the Jury as Sole Fact Finder ......... 457

B. Pressure Building Outside the Box ............................................. 466

C. The Box Splits Open: What Remains of the Jury's Role? ........... 475

III. LEGISLATING INSIDE THE BLACK BOX: JURY NULLIFICATION ........... 478

CONCLUSION: PANDORA'S JURY BOX ........................................................... 487

When a machine runs efficiently, when a matter of fact is settled, one need focus only on its inputs and outputs and not on its internal complexity. Thus, paradoxically, the more science and technology succeed, the more opaque and obscure they become.¹

The jury is the justice system's black box; historical information enters and legal conclusions are produced. The methods and reasons for arriving at those conclusions are unknown in ordinary review. We decline to hypothesize about the jury's reasoning.²

INTRODUCTION

This Article considers black boxes and their place in the resolution of legal disputes. The phenomenon of jury decision making in cases involving complex science is awash in black box metaphors. The use of science in the courtroom-and especially very complex science well beyond the understanding of typical legal actors³-presents something like a nesting of black boxes, one inside the other. First, there is what many have called the black box of the human mind.⁴Next, there is that classic black box of the litigation process: the jury.⁵And at the most general level, there is the paradoxical black box of modern science and technology, as described in the first epigraph above. Every so often, the opportunity arises to peer inside a black box; the choice whether to do so seems to depend on a complex balancing of curiosity and fear. What if it should turn out that, as with Pandora's box, a host of evils is let loose that, once released, cannot be undone?⁶

Rapid advances in neuroscience over the past few years have raised the genuine prospect that the inner workings of the human brain might soon become visible. Already, scientists using powerful brain imaging technologies have begun to distinguish lying brains from truthful brains,⁷false memories from true memories,⁸and "malingerers" from those experiencing genuine symptoms.⁹Research in cognitive neuroscience¹⁰has uncovered distinctive regions of the brain that are differentially activated when, for example, subjects view photographs of out-group versus in-group members,¹¹when they apply word-based rules versus moral intuitions of justice,¹²and when they experience feelings of disgust¹³or romantic love.¹⁴The processes of decision making, including those outside conscious awareness,¹⁵have become increasingly visible. Perhaps most amazing-and most disconcerting-is that scientists in several recent experiments have been able to determine with a high degree of accuracy what subjects were thinking about or looking at simply by analyzing scans of their brains.¹⁶Though certainly years, and perhaps decades, remain before such research reaches a level of reliability sufficient for courtroom use,¹⁷it seems fair to say that the future approaches the doorstep-if it is not already poised at the threshold.¹⁸

With the ability to unlock the black box of the mind-for example, to know whether a witness's testimony is truthful, deceptive, or simply mistaken- would come the prospect of a clearer view into that other black box: the jury box. Typically, a jury verdict in a criminal case¹⁹is inscrutable; the jury performs its paradigmatic function as fact finder shrouded in secrecy, and it is impossible to say why or how the jury convicted or acquitted in any given case.²⁰Indeed, the Federal Rules of Evidence, along with other doctrinal and procedural rules, work to ensure that this will be so.²¹Observers can, and

Allure of Neuroscience Explanations, 20 J. COGNITIVE NEUROSCI. 470, 477 (2008); Jennifer Kulynych, Note, Psychiatric Neuroimaging Evidence: A High-Tech Crystal Ball?, 49 STAN. L. REV. 1249, 1251 (1997). I am mindful of this danger and recognize that it is fully possible that a reliable lie detector will never be developed. However, I believe that the current project is nonetheless useful for two reasons: First, given the very rapid advances in the field, it is at least conceivable that the technology will reach a stage of high accuracy. It is preferable to consider the potential implications of the technology in advance of that point. Second, purely as a thought experiment it is useful to ask what, if anything, would remain of the jury's role in the criminal justice system were its fact-finding function to become obsolete. Such an inquiry reveals important insights about the institutional role of the jury and also about the potential importance of concealing its workings within a black box. often do, speculate about the prevalence of jury nullification,²²but they can never say definitively whether a particular jury has acquitted despite the facts, or because of them.²³Much of this ambiguity rests on the jury's unique and protected role in evaluating witness credibility; there always remains the possibility that even seemingly overwhelming evidence of guilt has been rejected by the jury as not credible.²⁴However, if a machine finally were able to reveal whether a witness was telling the truth or lying,²⁵it would become much more apparent-to the public and, perhaps more significantly, to the jurors themselves²⁶-that the function of the jury is not limited to simple fact- finding.²⁷

Ultimately, then, the prospect of a highly reliable lie detector raises fundamental questions about the role of the jury in our civil and criminal justice systems, and indeed about the purpose of the jury trial itself.²⁸If the fact-finding function of the jury were to (continue to) diminish over time due to scientific advances-including, for example, the development of a noninvasive, extremely reliable, and highly accurate lie detector-would trial by jury ultimately become an anachronism like the medieval trials by ordeal and by battle?²⁹The answer to this question, as well as to questions about how the system should respond to such scientific advances, depends in large part on how the jury's role and purpose are conceived. If the jury is viewed primarily as a fact finder and lie detector,³⁰then technologies that provide more accurate fact-finding and better lie detection arguably should replace a jury system that, increasingly, appears...