In the current fraught political environment, it is tempting and troubling to think that we are witnessing some entirely new phenomenon in which truth no longer matters.
Although no political party or social movement has a monopoly on mendacity, what has thrust into the spotlight is a concern over how “alternative facts” might impact jury trials is the current political scene and the spread of untruths affecting politics-particularly through social media. At the same time, college campuses are aboil with heated disputes over political correctness and the need (or not) for trigger warnings accompanying controversial subjects.
Blood has actually been spilled (in Paris and the Netherlands) over the publication of commentaries and cartoons deemed offensive to religious beliefs.
Candid public discourse and reasoned public dialog are under attack. Even the recent Parkland school shooting immediately inspired conspiracy theories and monstrously false narratives.
Things may worsen as technology facilitates new forms of deceptions. (See Henry Farrell and Rick Perlstein, Our Hackable Political Future, New York Times (Feb. 4, 2018)).
These events have not occurred in a vacuum. The recent book by Kurt Anderson, “Fantasyland: How America Went Haywire,” bluntly assesses of the extent to which empiricism has been cast aside in contemporary American culture (as well as the historical roots of this phenomenon):
By my reckoning, the more or less solidly reality-based are a minority, maybe a third of us but almost certainly fewer than half. Only a third of us, for instance, believe with some certainty that CO2 emissions from cars and factories are the main cause of Earth’s warming. … Only a third strongly disbelieve in telepathy and ghosts.Two-thirds of Americans believe that “angels and demons are active in the world.” …A third believe … that the government has, in league with the pharmaceutical industry, hidden evidence of “natural” cancer cures; that extraterrestrials have recently visited (or now reside on) Earth. A quarter believe vaccines cause autism and that Donald Trump won the popular vote in the 2016 election. A quarter believe that our previous president was (or is) the Antichrist. A quarter believe in witches. Remarkably, … one in five Americans … believe that “the media or the government adds secret mind-controlling technology to television broadcast signals” and that U.S. officials were complicit in the 9/11 attacks. (Id. at 6-7.)
This, of course, barely scratches the surface. We may, thus, rightly be worried whether the disease infecting the body politic may spread to the judiciary.
Certainly the increasing politicization of Supreme Court and other judicial appointments cannot escape notice. As Thurgood Marshall pointedly noted as long ago as 1991 (only hours before announcing his unexpected immediate retirement), in the opening words of his dissent from a majority decision overturning two precedents regarding the admissibility of victim impact statements in criminal sentencing proceedings: “[p]ower, not reason, is the new currency of this Court’s decision-making.” Payne v. Tennessee, 501 U.S. 808, 844 (1991).
But as to whether the current situation is unprecedented, the sense here is that the judiciary retains inherent defenses against the corrosive effects of current unconstraint from norms of candor.
Except perhaps in politically-tinged litigations, where jurors are at greater risk of deriving (and maintaining) biases from popular culture and social media, courtrooms (and jurors) still can be shielded from “alternative facts.” Indeed, the very essence of the adversarial process is a world away from the echo chambers on social media. Nonetheless, some refinements in our familiar processes may well be needed to shield jurors from sources of bias … and shield biased jurors from trials.
Truth in the World at Large: A Philosophical Framework
The literature on innate biases in human thought is vast and beyond this author’s expertise. However, a recent review of three books summarizes the basic theme that, by happenstance or evolution, our capacity for rational thought developed to serve social functions, not for logical rigor itself, hence illuminating the current crisis of candor. (Elizabeth Kolbert, That’s What You Think: Why Reason and Evidence Won’t Change Our Minds, The New Yorker February 19, 2017.)
Research shows that when test subjects are falsely primed to believe they have made correct or incorrect judgments about certain facts, they retain their self-assessments (positive or negative) about their judgment skills even after being told the truth that they did no better or worse than others. “Even after the evidence ‘for their beliefs have been totally refuted, people fail to make appropriate adjustments in those beliefs.” Indeed, “[o]nce formed … impressions are remarkably perseverant.”
One author concludes that “[r]eason developed not to enable us to solve abstract, logical problems or even to help us draw conclusions from unfamiliar data; rather, it developed to resolve problems posed by living in collaborative groups.” Reason evolved not for pure logic, but to facilitate coexistence in social groups and self-advancement. This may account for “confirmation bias,” i.e., the “tendency people have to embrace information that supports their beliefs and reject information that contradicts them.”
Moreover, “people experience genuine pleasure-a rush of dopamine-when processing information that supports their beliefs.” Thus, “[i]t feels good to ‘stick to our guns’ even if we are wrong,” explaining perhaps why people reject even life-saving developments, such as the safety of vaccines, despite ample contrary evidence.
Studies also show that respondents highly overrate their knowledge of basic facts because we evolved to work collaboratively in social groups, in so doing being required to rely on information supplied by others. “So well do we collaborate … that we can hardly tell where our own understanding ends and others’ begins.” We thus often form opinions based on our social setting, which is fine for handling concrete tasks (e.g., operating a computer or even a toilet), but may be problematic in forming political views.
Studies show that the less a person knows about a subject, the more likely he or she is to be influenced by feelings instead of knowledge. However, increasingly, when test subjects were pressed to explain the bases for their stated views, and hence confronted with their relative ignorance, they tended to ratchet down the intensity of their original positions, which may be more akin to the adversarial process of jury trials.
The philosopher, Hanna Arendt wrote presciently in her 1967 essay, Truth and Politics (reprinted in Between Past and Future (Viking 1971)), that truth and politics were never harmoniously aligned.
Not only mindful of mass manipulation of fact in totalitarian regimes, Arendt wrote:
No one has ever doubted that truth and politics are on rather bad terms with each other, and no one, as far as I know, has ever counted truthfulness among the political virtues. Lies have always been regarded as necessary and justifiable tools not only of the politician’s or the demagogue’s but also of the statesman’s trade. (Id. p. 252.)
Arendt cites Hobbes’ ending to his “Leviathan” that “such truth as opposeth no man’s profit, nor pleasure, is to all men welcome,” as well as Hobbes’ observation that: “I doubt not, but if it had been a thing contrary to a man’s right of dominion, that the three angles of a triangle should be equal to two angles of a square; that doctrine should have been, if not disputed, yet by burning of all books of geometry, suppressed, as far as he whom it concerned was able.”
In politics, unlike science or philosophy, ideas and facts can only be advanced for political purposes (attaining power). Thus, when truthful ideas enter politics, they become merely opinion. (Id. p. 238.)
It is only by the power of persuasion rather than inherent accuracy that truth can carry the day. Indeed, we should hardly be surprised that dishonesty is essential to politics: “Since the liar is free to fashion his ‘facts’ to fit the profit and pleasure, or even the mere expectations, of his audience, the chances are that he will be more persuasive than the truthteller.” (Id. p. 251.)
Recent events bear out Arendt’s observations.
That Arendt may have been right about many things, does not guarantee that she was correct about everything, yet she does note (optimistically from our present perspective) that the judiciary is among the public institutions in which “contrary to all political rules, truth and truthfulness have always constituted the highest criterion of speech and endeavor.” (Id. p. 260.) To this author, her assessment seems largely correct, for reasons summarized below.
Alternative Facts in the Legal World
Although some analysts (in particular the “critical legal studies” movement) have argued that the judicial system systematically maintains the dominant power structures in society, unlike politics, courts are presided over by neutral arbiters. And while judges are prone to human error, they also are highly trained and bound by the Code of Judicial Conduct. Nor can lawyers ignore rules of professional ethics, and even at their worst, generally have at least some understanding of the importance of maintaining a reputation for credibility and candor.
Within this broad if admittedly porous structure, the Federal Rules of Evidence and motions in limine provide obvious barriers to fabricated evidence, and dubious expert testimony can be excluded by Daubert motions.
Testimony and documents likewise can be excluded at trial, and attorneys mindful of the need to maintain their own and their clients’ credibility likewise operate within stated and unstated limits. Where such restraints are breached, jurors can be given appropriate cautionary instructions, and skillful cross-examination can turn the tables on dishonest witnesses.
These tools are all obvious examples how jury trials are unlike the rough and tumble of the political arena and social media, where there are few clear ethical rules; no presiding judge, and only fickle public opinion operates as a limit.
Recalling the brief discussion above concerning confirmation bias, the adversary system (perhaps most clearly on display at trial) is a dialog, a back and forth, designed to challenge assumptions. It could scarcely be more different from the echo chambers of social media in which alternative facts flourish and fester.
Unlike social settings where the less one knows about a subject the more likely one is to be influenced by feelings, a jury trial more closely resembles the scenario where test subjects required to articulate the reasons for their assumptions tend to back off from at least some of those unanalyzed presuppositions. Jurors (if they are listening) inevitably hear both sides of every question. Yet, embracing the suggestion from social science that the more we must articulate the reasons for our beliefs the less we are likely to rely on untested assumptions, one obvious suggestion is to employ detailed special verdict forms that require jurors to articulate their reasoning and hence confront possible unspoken biases.
Nonetheless, in one recent patent case, TEK Global SRL v. Sealant Systems Int’l, Inc., 3:11-cv-0774 (N.D. Cal.) (reported in Dorothy Atkins, IP Attys Taking ‘Extreme Liberties’ With Truth, Law360 July 20, 2017), Federal Judge Vince Chhabria “complained … that it’s become commonplace for patent attorneys and their clients to take ‘extreme liberties with the truth and reality,’ saying during a post-trial hearing in a dispute between two tire companies that such practices need to be reined in.”
Judge Chhabria apparently was dismayed that the defendant’s expert contradicted his own client’s arguments. Weighing a possible sanction under the “exceptional case” standard, the court cautioned that if it were not “exceptional” it was only because “it’s become common in patent cases that attorneys and their clients ‘overreach to the extreme… .'”
As in TEK Global, expert witness testimony may pose unique threats to empiricism. In this attorney’s experience, a technical expert in a patent case, or a damages expert or consumer research expert, or indeed any expert with specialized knowledge beyond the ken of the typical judge or juror, has greater opportunities to construct abstract theoretical frameworks judges or jurors cannot critically assess. Opposing counsel must be alert to raise objections, employ vigorous cross-examination, and have appropriate rebuttal expert testimony and evidence.
Without diminishing the risk that jurors generally may be increasingly numbed by the spread of alternative facts in the political arena, jurors’ basic sense of fairness may be tested most in trials raising broader issues of social justice that jurors face in their daily lives, hear on the news or read about in social media.
Civil rights cases, for instance, criminal actions involving public officials, or other cases impressed with a broader public interest are most likely to require jurors to overcome possible biases-biases that customary voir dire in federal court will not expose. Particularly in such cases, voir dire may need to be broadened to include not only what newspapers and TV shows jurors follow, as is typical in federal trials, but what also what blogs they read and what social media tools they use.
To be sure, the tools summarized above to preserve the sanctity of the courtroom do nothing to keep jurors from using social media and Google in disregard of court instructions to confine their reviews to the evidence actually presented and admitted at trial. This author had a suit end in mistrial, for instance, when one juror researched an adverse party on Google and reported to her fellow jurors what a “monster” he was.
However, such extracurricular research is distinct from the issue of “alternative facts” as such, because the problem here was not the inherent falsity of the information the juror found but that it simply was outside the record.
Greater attention will no doubt need to be paid to anticipating what sorts of information jurors can most easily find if they are so-inclined and presenting testimony to blunt any such improper messages. No assumption is made that this will be easy, and research shows that direct efforts to rebut negative information is often more damaging than ignoring it. The “backfire effect” describes circumstances when, faced with contradictory evidence, individuals’ existing biases and established beliefs not only do not change but actually get stronger.
Lest one think that alternative facts are new, the recent book, “Fantasyland: How America Went Haywire,” traces a long arc of fantastical thinking in American life, suggesting something unique in “the American experiment, the original embodiment of the great Enlightenment idea of intellectual freedom, every individual free to believe anything she wishes, [which] has metastasized out of control. From the start, our ultra-individualism was attached to epic dreams, sometimes epic fantasies – every American one of God’s chosen people building a custom-made utopia, each of us free to reinvent himself by imagination and will.” (Id. at 5.)
The drift to fantasy has been amplified on the internet, where fellow fantasists can find one another and foster collective delusions. But this is not a new phenomenon.
To be sure, a general decline in standards of truthfulness in society at large could well ultimately undermine jurors’ perceptions of true and false in general. Hanna Arendt, the philosopher, thus observed that “[i]t has frequently been noticed that the surest long-term result of brainwashing is a peculiar kind of cynicism-an absolute refusal to believe in the truth of anything, no matter how well this truth may be established. In other words, the result of a consistent and total substitution of lies for factual truth is not that the lies will now be accepted as truth, and the truth defamed as lies, but that any sense by which we take our bearings in the real world-and the category of truth vs. falsehood is among the mental means to this end – is being destroyed.” (P. 257.)
We have no clear baseline of what untruths or delusions carried the day in an imagined earlier happier era.
The commercial radio industry, still in its infancy, was alarmed by Orson Welles’ 1938 broadcast, “The War Of The Worlds.” Although the deception may have been less widespread than once thought, at least some listeners understood the radio drama was an actual newscast of a Martian invasion.
The internet and social media today perhaps parallel commercial radio in 1938. The internet has an even broader reach (and less regulation) than traditional print news, radio or television, and has proven a remarkably efficient medium for spreading falsehoods. However, precisely because we have no baseline as to what level of dishonesty and deceit has always been present in public spaces, we have no simple metric by which to judge to what extent the internet and social media have increased or reduced or left unchanged the extent to which individuals are influenced by false information.
Human nature, however, has not suddenly changed (either evolved or devolved). Fantastic thinking has always been present and will never go away. How much the internet and social media is changing public life or the judiciary and jury system simply cannot yet be assessed. Maybe it never can. But the adversarial system, while fundamentally different from politics, will nonetheless need to adapt.
*An early version of this paper was presented to the Federal Bar Council.
Jonathan E. Moskin is a partner and intellectual property lawyer with Foley & Lardner LLP. He is a member of the IP Litigation, Trademark, Copyright & Advertising and Privacy, Security & Information Management Practices.