In a recent article published in Wired, America's Justice System Sure Doesn't Know Much Science, Sarah Zhang discusses the legitimate issues of problems with eye-witness testimony, false confessions and police involvement. The criminal justice system, like almost every other system in the world, has flaws. Police intimidate innocents to confess. Police encourage victims of horrible crimes to identify certain people that they think are guilty. Although much of this is not some evil intentional design, people are people.
The article argues that “We are not the people we wish we were.” Everyone has felt this way about some belief or thought they had, but the article’s next says, “The people we wish we were are kind of like computer robot humans who are able to control their biases.” Surprisingly, 35% of law firms in a recent study agree that first-year associates could be replaced with robots! This goes too far, as does the suggestion of replacing lawyers, judges, and witnesses with Avatars.
Human emotion is part of the justice system, but there are already issues with “robotic-emotionless” systems in the legal system. Sentencing guidelines imposed on criminal defendants is a robotic application that many people have issues with. Three strikes is one example of a flaw with a robotic approach. An avatar, without any human emotion, would only consider a single woman stealing a loaf of bread to feed her family a crime.
If she had two prior offenses of stealing, she would be imprisoned for life and her two children would be placed into a foster-system. While stealing food is unquestionably a crime, humans would at least have mixed emotions about how to proceed. There would be many in favor of punishing the woman and many others would be lenient. With human involvement, debate would ensue and justice would occur. An avatar would have no discussion and the woman would be jailed.
Science Doesn't Know Much Law
That is one small emotion appeal, but the system advocated by Zhang is also likely to violate the confrontation clause of the Constitution. The confrontation clause requires that witnesses against a criminal defendant testify in front of the defendant. This is provided for the human emotion of confronting someone you may send to prison.
There are also times when people lie to gain advantages and make accusations based out of jealously, confusion, or greed. Signing a piece of paper or talking to an officer behind closed doors is nowhere near as difficult as the human emotion in a courtroom. The emotional problems that exist in the courtroom exist in real life and leaving these emotions to a robot is not ideal.
The shop owner whose loaf of bread is stolen may be gung-ho about prosecution the day his bread is stolen. However, months later when he sees a broke single mother of two children facing jail, he may decide to show mercy. Or he may aggressively testify against her. Neither approach would be wrong, but it is up to the individual human to decide how to proceed.
The well documented mortgage crisis is another example of why an avatar approach is not ideal. Numerous illegal documents were recorded on title and under a robot approach, if a document is recorded, it is correct. However, it is well known that many of these documents were forged, because Wall Street wolves understood that manipulating documents in a non-judicial foreclosure with no oversight was easy. Applying human emotion, we can understand how it happens and we do not want, or need, a robotic approach to forcing people out of their homes based on forged documents.
The current system is far from perfect, but law is more art than science. Technology should and does play an important and ever growing role in the legal system, but putting technology in charge of everything goes too far.
Authored by Ryan Griffith, LegalMatch Legal Writer and Attorney at Law