Quickie news: Wakefield sues British authors and publishers for libel–in Texas

I wish I had more time to write about this tonight, but I just had to post something on the lawsuit filed today (January 4, 2012) in a Texas trial court by Andrew Wakefield, the disgraced British former physician whose 1998 Lancet article created the modern vaccines-cause-autism myth. Wakefield is suing BMJ (the former British Medical Journal), Brian Deer, the author of a January 5, 2011 (Happy Anniversary!) BMJ article, and later follow-up article, that detailed Wakefield’s falsification of data and fraud in the Lancet article, and Fiona Godlee, a physician and editor of BMJ who authored an editorial in the same issue.

At first I wondered if the news of the lawsuit was just a bad rumor, but the available copy of the complaint has all the markings of a document that has actually been filed in a court.

My quickie analysis/prediction, subject to the usual caveats that I haven’t had a lot of time to research this and I have purposely over-generalized and simplified the law:  There are quite a few hurdles for Wakefield to clear to be successful.  First, he has to show that the Texas courts have jurisdiction/power to conduct the trial in the first place.  Wakefield is suing a British publication and two citizens of the United Kingdom in Texas because he resides in Texas now.  In the United States, a court has jurisdiction or authority over a defendant only if the defendant has sufficient contacts or involvement with the state in which the court sits.  Wakefield claims that Texas courts have jurisdiction over BMJ, Deer and Godlee because they “direct[ed] a significant and regular flow of publications . . . to institutional and individual residents of [Texas]” and because they committed a tort (a personal wrong) against him, and he is a resident of Texas.

A publisher of widely-disseminated material isn’t subject to the jurisdiction of every court where the material may end up.  Either the specific article involved must have been “directly aimed” at the state, or the publisher must have sufficient “contacts” with the state to give the state’s courts jurisdiction over any case involving the publisher (for example, the New York Times can be sued in New York, even if it is being sued for a car accident that one of its employees causes in Pennsylvania, just because it’s based in New York–or is it New Jersey now?).

Many courts have held that merely publishing materials that may end up in a given state is not enough to subject a publisher to the jurisdiction of that state’s courts.  The publisher must have “directly aimed” the allegedly defamatory material at the state.  The mere presence of the target of an article is not enough.  Although a famous U.S. Supreme Court case held that an article about an actress in California was enough to subject the publishing newspaper to a libel lawsuit in California, a recent federal appeals court decision noted that in that case the article was about the actress and her career in California, and wasn’t based on the actress’s mere presence in California.  Although this article is about Wakefield, who now resides in Texas, it wasn’t about Wakefield’s activities in Texas.  It was about Wakefield’s activities in the United Kingdom, where all of his defendants are.  I don’t know if the BMJ’s circulation is enough in Texas to give the court “general” personal jurisdiction over any case involving the publication, but I doubt it.

If Wakefield gets past the jurisdictional hurdle, he then has to battle the First Amendment.  I have no doubt that Wakefield is a “public figure” and the issue of the safety of vaccines is a public issue.  Because of that, the First Amendment’s protection of public discourse on items of public import requires that Wakefield prove “actual malice,” which means that he must prove that the authors and publishers of the BMJ article knew that the defamatory statements were false or that they made the statements with reckless disregard of the truth or falsity of the statements.  Wakefield actually alleges in his complaint that the authors knew the statements were false.  Saying it in a complaint is one thing.  Proving it is another.  Proving someone’s knowledge is a hard thing to do.  Not impossible, but very hard.

Another hurdle facing Wakefield is the legal concept of “res judicata,”  which roughly translates to “we’ve been through this already.”  (Some legal nit-pickers may claim that the real translation is “the thing has been adjudicated,” but don’t you believe them.)  The concept goes something like this: once you have had a “full and fair opportunity” to litigate some claim, issue or fact in one court, and have lost, you don’t get to litigate it again, even in some other court.  Wakefield has already been through a huge proceeding before the United Kingdom’s General Medical Council in which he lost his license to practice medicine.  He had a full and fair opportunity to litigate the matter there.  The Council found that he had falsified elements of his Lancet article and that he had abused developmentally disabled children (there’s a guy you want to bring home to mom).

My major question on this point is whether Texas considers results of administrative proceedings to have “preclusive” effect.  Some states say that a finding by an administrative agency has the same effect as a finding of a court.  Some states say that only court proceedings count.  If Texas is in the former group, then Wakefield will have a tough time getting to trial.  Any Texas lawyers who can answer that one?

Also, I have to question whether the BMJ article has really caused any damage to Wakefield’s reputation.  In order to recover some money damages, Wakefield has to prove either that he suffered some actual damage to his reputation or that the article damaged him in his occupation or profession, in which case he would get at least nominal damages.  I don’t think he’ll be able to prove that he suffered some damage to his reputation given the horrible worldwide reputation that he has.  Given the highly-publicized findings of the British General Medical Council a year before the articles in question, it’s hard to believe that the articles caused any additional harm to his reputation.  In addition, I don’t think that he will be successful in proving that the defamatory statements concerned his occupation or profession because they concerned his medical research as a physician–and he’s no longer a physician.  (Interestingly, one of the statements in the articles that Wakefield claims is false is “now apparently self-employed and professionally ruined, [and] remains championed by a sad rump of disciples.”  I didn’t know that “rump” was the collective noun for a group of disciples.  I thought it was “flock.”  You learn something new every day.)

OK, I really must go.  I may try to update and clean up this post in the coming days.  Comments, critiques and corrections are greatly encouraged and invited.

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Filed under Free speech, Lawsuits, Libel

More Legal Thuggery: Publishers of cognitive test instrument force “open source” test offline

Although the controversy was conceived almost nine months ago, the authors of a New England Journal of Medicine (NEJM) “Perspective” article recently gave birth to a flood of commentary about the actions of a current owner of the copyright to a long-used mental status examination demanding that a recent, free, “open source” mental status exam be taken down from the website where it was available.

Our villain is PAR, “also known as” (its words, although to me that always evokes an image of an evlidoer who seeks to hide its identity) Psychological Assessment Resources, which “publishes psychological assessment instruments, software, books and other related materials in the following areas: personality/counseling, neuropsychological assessment, forensics, achievement/development/learning, intellectual/ability/cognitive, behavior/health, and career development/business.”

Since 2001, PAR has owned the copyright to the “Mini-Mental State Examination” (MMSE).  Before PAR acquired the copyright from the MMSE’s authors, the MMSE, according to the NEJM article, was “widely distributed in textbooks, pocket guides, and Web sites and memorized by countless residents and medical students” and had become the de facto standard for cognitive testing of patients in clinical settings.  The test consists of 30 short questions and tasks that a medical provider asks a patient to answer or do.  PAR charges $1.23 per copy of the test instrument. Although the MMSE is apparently now in its second incarnation, I was able to find a copy of what is apparently the first edition of the test.

Our heros are Tamara G. Fong, MD, PhD, and her colleagues, who developed, tested, and made available to the world–for free–the “Sweet 16” cognitive impairment test.  If all scientists did this all the time with their inventions, the world would be a wonderful place indeed.

But, as they say, no good deed goes unpunished (has anybody ever performed a scientific study of that?).  PAR, apparently afraid of losing its sales of the MMSE, demanded that the Sweet 16 be removed from its internet home at the Hospital Life Elder Program.  The Sweet 16 was removed, and there is no indication from any player whether that might change any time soon.

The Legal Background

A fuller and better explanation of why PAR is way off base with its claim that the Sweet 16 infringed its copyright is presented by law professor James Grimmelman.  But I’ll give the Reader’s Digest version of applicable copyright law, and hope that Reader’s Digest doesn’t sue me for copyright infringement.

Article I, Section 8 of the United States Constitution gives Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”   Congress, never one to exercise restraint in wielding powers, has created an extensive set of laws to protect authors–whether or not their art is “useful”–and inventors.

Section 106 of Title 17 of the United States Code, the copyright law, gives the owner of the “copyright” to the work several exclusive rights in the work, including the rights to

  1. Reproduce the work;
  2. Prepare derivative works based on the work;
  3. Distribute copies of the work;
  4. In the case of artistic works, perform the work publicly;
  5. In the case of artistic works, display the work publicly;
  6. In the case of audio recordings, “perform the copyrighted work publicly by means of a digital audio transmission.”

Apparently, PAR’s claim here is that the Sweet 16 was a “derivative work” of the MMSE.  Section 101 of he Copyright Act defines “derivative work” as follows:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

I cannot fully determine whether the Sweet 16 is a derivative work because I can’t find a copy of the Sweet 16 to compare to the MMSE, and, frankly, I don’t really know what the above-quoted language would mean when applied to a test for cognitive status.

Even without seeing the Sweet 16, however, I am comfortable saying that I would find it hard to believe that it would qualify as a “derivative work” of the MMSE.  As Professor Grimmelman explains, and as Section 102(b) of the Copyright Act provides, copyright protection is not available to a process or procedure (don’t ask me what the difference between “process” and “procedure” is):

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

To the extent that the MMSE is merely a process to determine a person’s cognitive state by asking certain types of questions, it’s not subject to copyright protection.

Also, the MMSE is probably not protected because it’s not truly “original.”  Copyright law protects only “original works of authorship.”  According to some of the medical articles I read in researching this, the kinds of questions embodied in the MMSE–questions like “What is the year?”–have been around a long time in assessing cognitive status.  Perhaps the specific order and wording of the questions is protected to the extent it might be “original,” but the use of the questions themselves is apparently not original.

The moral background

It seems that, for PAR, what’s good for the goose isn’t good for the gander.  According to a complaint filed against PAR that ended up in federal court, in the mid-2000s PAR was asked by an author of one of its tests to take down from the internet a revised version of the test.  The author was concerned that important portions of the test were missing from the internet version, and that the internet version as published had not been validated by scientific studies.   According to the complaint, a contract between PAR and the author prohibited PAR from making revisions to the test except by agreement with the author, and PAR breached that agreement by publishing the internet version.  Because that case appears to have been settled out of court, it is impossible to know what happened in the end, although the test in question is still on PAR’s website, in several versions.  But it appears that PAR did not act so quickly, if at all, to remove a disputed work from the internet, as it demanded that the Sweet 16 authors do.

And, at least one commentator has not-so-subtly implied that the “Brief” version of the MMSE-2, published by PAR, of course, may actually be a spin-off of the Sweet 16.  If that’s true, then the moral lows to which PAR has sunk become even deeper.  If it’s the other way around, that is, if the Sweet-16 authors “copied” the brief version of the MMSE-2, that still doesn’t change my mind: the “brief” version of the MMSE-2 would still be a “process” that is not subject to copyright protection, and PAR would be merely trying to suppress a legal alternative to its tests.  I can’t find any indication of when the “brief” version was first published or whether PAR even claims that the Sweet 16 was copied from the “brief” version of the MMSE-2.

Why was the Sweet 16 taken down?

We can’t know for sure why the Sweet 16 was removed from its internet site.  My guess (not very skeptic-like, I know) is that the authors/owners thought that they were acting perfectly legally, but the mere threat of a lawsuit and its resulting cost, in both time and money, stopped them from litigating the matter.   This is the problem with threats of legal action–the victim of the threat has to make a judgment as to whether the any legal fight is worth it, and whether the risk of a loss is worth it.  Here, where the authors were not making any money from the test, it understandably isn’t worth it to them to fight PAR’s threats.

What can be done?

I wish there were some scientists’ or skeptics’ legal defense fund to assist scientists and skeptics who seek to improve the world by promoting science and scientific discussion and preventing quackery, legal thuggery, and other enemies of science.  Otherwise, entities like PAR will, in the interest of their profits, make meritless threats in an effort to chill the progress of science.
I also wish the parties involved, especially PAR, would be more open and let everyone know exactly what the problem with the Sweet 16 is.  I’d love to hear from PAR with a defense of its actions and, like any good skeptic, I’m willing to change my mind after receiving convincing evidence that indicates that I am wrong.  Without a full explanation from PAR as to why the Sweet 16 was infringing on their work, however, the world is left with the impression that they are merely using their resources to stomp a lowly “competitor” into the ground to protect their own bottom line.

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Del Monte engages in legal thuggery against government scientists

When the mafia makes threats, it doesn’t pretend that what it is doing is legal.  Del Monte Fresh Produce, however, apparently likes to pretend that the law is on its side when it engages in thuggery.

For those of you who haven’t heard, Del Monte has sued the FDA after the FDA determined that Del Monte cantaloupes, which are imported from Guatemala, were contaminated with salmonella, and ordered that cantaloupes from Guatemala no longer be imported, at least temporarily.  (Speaking of the mafia, wasn’t there a famous mafioso named Sal Monella?)  Del Monte agreed to a voluntary recall of the product

Del Monte, apparently not satisfied with trying to reverse the official government action, has also threatened to sue an Oregon state epidemiologist for its role in investigating the salmonella outbreak.

The suit against the FDA

In its suit against the FDA (complaint), Del Monte claims that the FDA had insufficient evidence to conclude that cantaloupes, or cantaloupes from Guatemala, were the source of the illnesses.  It claims that the FDA never tested any cantaloupes, and in fact had recently inspected the farm in Guatemala and had not found any salmonella there.  Among its other claims were that one infected  patient denied having eaten cantaloupes, that the retailer who sold the cantaloupes had also sold non-Del Monte cantaloupes, and that contamination may have occurred at the retailer.

Del Monte’s legal claims were that the FDA acted outside of its legal authority, and that it acted based on “rules” that were internal policies that had not been properly subjected to the required public notice and comment period.

I don’t have a problem with the suit against the FDA, which is a request for a court order declaring the FDA’s order illegal, voiding it, and preventing the FDA from enforcing it.  It is perfectly appropriate for a company to seek review by a court of an administrative agency’s judgment and factual findings.  Indeed, Congress has created an entire procedure for review of most government actions, although Del Monte did not use that procedure in this case (I’m not sure why, although it may be that legally that procedure is unavailable to Del Monte in this case).

The threat against Oregon officials

Del Monte has also threatened to sue Oregon officials, including its public health department and an individual epidemiologist in that department.  Although the newspapers describe Del Monte as having made a “threat,” it appears to me that the document was probably a formal notice of a possible lawsuit.  In most, if not all, states, before you can sue the government or a government official, you have to give the government or official notice–often very quickly, like in a matter of a few months–that you are going to do so.  Many times, even after a notice is served, no suit is filed.  We don’t know whether Del Monte will end up suing.

From all reports, it appears that Del Monte is asking for monetary compensation from Oregon for its actions.  It’s not clear exactly what action Oregon took, other than investigating for the FDA and maybe reporting its findings to the FDA.

I don’t necessarily have a problem with the notice, because many times people serve these notices just to preserve rights and to give themselves some time to think about whether to sue.

If Del Monte decides to sue, I will have a huge problem with it.  Scientists who are protecting public health need to be able to do their work without the specter of a lawsuit hanging over their heads.  It’s unlikely that an individual who gets sick will sue an epidemiologist for missing some contamination, and the epidemiologists will therefore be subconsciously biased in favor of food suppliers, who have the resources to sue.

Even if Del Monte is not successful, just putting the epidemiologists through the emotional turmoil of a lawsuit would be enough to affect their judgment in the future.

Fortunately, if Del Monte does file its lawsuit, it appears to have extremely little chance of succeeding.  Government agencies and officials are protected by sovereign, or governmental, immunity for many actions, including (and especially) actions that involve their discretion and professional judgment.  The laws protecting governments from lawsuits for such acts were enacted to prevent the very situation that Del Monte might cause: making government agents afraid to do their jobs, thereby endangering the public.  Public officials owe their duties to the public, and not to individual companies or people.

Like with many other things, I think Del Monte would be better off staying the shadows until this all blows over.  If it does sue government officials who are trying to prevent consumers from getting seriously ill, it will, in my view, seriously hurt its own reputation and any trust that the public has in it.

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Filed under Lawsuits, Lawsuits against government officials, Uncategorized

More lessons, this time from the California Science Center

The First Amendment is often inconvenient. But that is besides the point. Inconvenience does not absolve the government of its obligation to tolerate speech.
–Justice Anthony Kennedy (1936 – )

This is going to be a quick post, at least for now, due to my time limitations.

Yesterday, the California Science Center (CSC), a public institution and affiliate of the Smithsonian Institution, settled a lawsuit against it filed by the American Freedom Association (AFA). AFA had claimed that CSC had breached a contract for AFA’s rental of CFC’s IMax theater to show a pro-intelligent-design film. CSC claimed that AFA breached the contract first by falsely publicizing, through the Discovery Institute, that the event was sponsored or endorsed by CSC. AFA, in turn, claimed that it had no control over the Discovery Institute’s publicity of the event. More importantly, AFA claims that the CSC cancelled the showing because of the content of the film, and that it therefore violated AFA’s First Amendment rights.

I can’t express an opinion on the lawsuit itself, since I have not seen any of the court documents, the original rental agreement, the discovery from the lawsuit, or the publicity that was allegedly a breach of the contract. But I do want to correct some misperceptions and answer some questions raised in PZ Meyers’s excellent post (does he have any other kind?) on the topic, and in the comments to that post.  I will add links and references tonight, time permitting.  [Update: I don’t have the time tonight, but I have made some minor edits.]

Pseudo-scientists have just as much right to speak out as skeptics do. The first comment to PZ’s blog suggests that the CSC should simply not rent to organizations like the AFA. That, however, would be a blatant First Amendment violation. If a government institution makes space available to outside organizations to engage in speech, it cannot pick and choose arbitrarily what kinds of organizations it will rent to. There are two levels of First Amendment analysis here. The first level looks at the ability (or inability) of a government organization to choose what it would allow to be shown based on the subject matter of the speech. For instance, if the CSC has made a clear policy that it will only rent its theater to organizations showing films relating to science, it will likely be able to successfully defend any claim that it must require a knitting club to show the movie, “How to Knit a Killer Sweater.” If, however, the CSC simply made its theater available to all non-profits, then it can’t later choose to exclude a film on abortion because it’s squeamish about the subject.

The second level looks at the ability of the government organization to choose the organizations to which it will rent based on the viewpoint of the speech. Another commenter on PZ’s blog asks whether “what Luskin [the Discovery Institute’s lawyer] says about the First Amendment (i.e. that it “forbids government preference for one viewpoint over another”) sound like complete shite…?” No, it’s not baloney. It’s entirely accurate. The worst thing a government institution can do is discriminate on the basis of viewpoint. The CSC cannot say, “We’ll rent to films explaining evolution but not to films arguing against evolution.” Can it refuse to show any films about evolution? Maybe, given its ability to regulate the subject matter to some extent, but if it starts to make policies excluding only controversial science subjects, then the courts will question their purpose in making those policies, and if the intent was to suppress speech with which the CSC did not agree, then the courts may require the CSC to change its policies.

PZ himself asks in the comments,

You can’t have a general license agreement that spells out a list of things you will intentionally discriminate against, without discriminating. I wonder, though, if there aren’t models for exclusion that could be used. If the KKK asked to lease the IMAX theater, would they do so?

Again, this depends on the policies and the purposes behind those policies. If the KKK wanted to show a film arguing that there is scientific evidence that people of African descent have inferior intellect, and the CSC’s policies state that it will rent out the theater to organizations showing films on scientific subject matter, then the CSC would likely have to rent the theater to the KKK. There are “models for exclusion,” as PZ puts it. Public libraries around the country deal with this kind of problem (limiting the use of meeting rooms) all the time, and the American Library Association has some guidance for libraries on its website.

One commenter answers PZ by saying,

KKK is classified as a hate group so if fits into an entirely different legal area.

Obviously, the fix for this is to get these creationist groups categorized as hate groups. Then the museum would be legally backed up in saying they don’t want to associate with homophobic, patriarchal, lying bastards.

Well, not quite.  There is no such legal “category” as “hate groups.”  There are things called hate crimes, but the key is that whatever you’re doing has to be a crime in the first place.  Then the sentence or penalty can be enhanced if your motive was “hate.”  In other words, if you just beat the crap out of someone for fun, then you may only serve up to five years in jail.  But if you beat the crap out of them because they’re gay, then you may spend up to ten years in jail.  But the government can’t treat someone differently just because the person hates gays.

Many comments make the point that the CSC should have allowed the AFA to show the film, but engaged in its own speech to counter the message presented by AFA.  Some commenters suggested holding a lecture before or after AFA’s film, or putting up posters around the theater, or otherwise publicizing that the event was not sponsored or endorsed by the CSC.  I couldn’t agree with these comments more.  People much smarter than I have recognized that the marketplace of ideas will take care of itself.  The best way to counter speech with which you do not agree is to engage in more speech.

Speaking of more speech, I’ll post more later.  I’ve got to get back to work now.

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Court’s application of science of eyewitness identifications: Close but no cigar

 “[T]here is almost nothing more convincing [to a jury] than a live human being who takes the stand, points a finger at the defendant, and says ‘That’s the one!’”

–Justice William J. Brennan

I feel the frustration that many scientists report when they read media accounts of scientific studies.  I have finished reading all 132 pages of the New Jersey Supreme Court’s decision yesterday discussing eyewitness identification testimony, that is, eyewitnesses identifying a particular person as being the one whom they saw committing, or at the scene of, the crime.  The New York Times described the decision as issuing “sweeping new rules,” and Scientific Amercian said that the decision was an indication that “the courts seem to be finally catching up with the science.”   But a careful reading of the decision shows that there will be little effect on the admissibility of eyewitness identification testimony in New Jersey.

After two and a half years of careful study and debating, and a ten-day hearing before a special master at which over 200 scientific studies were admitted and seven expert witnesses testified,  the New Jersey Supreme Court determined that there were serious problems with the existing system of determining whether an eyewitness’s identification of a suspect is admissible in a criminal trial and, if it’s admissible, whether expert testimony and jury instructions on its reliability should be provided.  In fact, the court said, as courts and even law enforcement agencies have recognized before, eyewitness misidentification is the leading cause of wrongful convictions across the country.  Nationwide, “more than seventy-five percent of convictions overturned due to DNA evidence involved eyewitness misidentification.”

After finding that the current system was inadequate, the court carefully considered the factors that lead to misidentification, and established a better, but still far from perfect, system of filtering out unreliable eyewitness identification.  After I summarize the opinion, I will describe my concerns with it.

The “current” system

New Jersey’s now-former system, which is similar to other states’ systems, worked like this: The defendant brought to the court’s attention some evidence that the police, in getting an eyewitness to identify the defendant as the perpetrator, were “suggestive” to the witness during the process.  If the court determined that the process was impermissibly suggestive, then, before the state could have the eyewitness identify the defendant as the perpetrator at the trial, the state had to prove to the judge “that the identification[] . . . had a source independent of the police-conducted identification procedures.”  The court used the following five factors in making that determination:

  1. the “opportunity of the witness to view the criminal at the time of the crime”;
  2. “the witness’s degree of attention” to the crime and the perpetrator;
  3. “the accuracy of [the witness’s] prior description of the criminal”;
  4. “the level of certainty demonstrated at the time of the confrontation”; and
  5. “the time between the crime and the confrontation.”

This system, the court astutely noted, “overstate[d] the jury’s inherent ability to evaluate evidence offered by eyewitnesses who honestly believe their testimony is accurate.”  The court described the recent research showing that juries are overly impressed with witnesses who express confidence in their testimony.  The Court said:

We presume that jurors are able to detect liars from truth tellers. But as scholars have cautioned, most eyewitnesses think they are telling the truth even when their testimony is inaccurate, and “[b]ecause the eyewitness is testifying honestly (i.e., sincerely), he or she will not display the demeanor of the dishonest or biased witness.”

The first sentence of that quotation stands in stark contrast to the rest of the opinion in that it provides no scientific basis for its assertion.  (When you don’t have the science, just “presume”!)  I’m pretty sure I remember hearing about recent studies indicating that people can’t tell liars from truth tellers.  But given the shortcomings of human memory, of which this opinion reminded me, I could be wrong about that.  I’ll update this blog post if I can find links to studies showing that people cannot spot a liar.

But the key to this, as the court noted, is that the eyewitnesses don’t realize that their testimony is inaccurate.  Even if they are being honest, the witnesses will be falsely confident, and the jurors will believe them.

The current law is based on a United States Supreme Court case from 1977, Manson v. Brathwaite.  That’s 34 years ago, for those of you without calculators handy.  In the 1970’s, however, there were only four published studies on eyewitness identification, according to the experts who testified in front of the special master.  The research has picked up exponentially since then, though; in the last 30 years, there were over 2000 studies on the subject, according to the special master.  From all of those studies, though, one has to wonder why it took this long to get to this point.

The court gave credit to the New Jersey Attorney General’s office, which, in 2001, had adopted “best practices” for administering lineups, but questioned the office’s position that a failure to follow the guidelines should not result in the inadmissibility of the identification.  (Compare that to the rule that a failure to give Miranda warnings when they are required does result in any statements made by the defendant being inadmissible.)  The court said that the Attorney General’s guidelines were inadequate.

The court decided that given the current science, something had to be done.

The court’s examination of the science

The court undertook a thorough and careful examination of the science, including an analysis of its reliability.   The court determined that the scientific community was in agreement on most of the factors that affect eyewitness identifications.   It discussed the manner in which many of the studies were conducted, and noted that many were double-blinded, controlled laboratory experiments, but others were “real-world” experiments or data analyses.  It recognized the importance of peer review to science, and described the agreement among the experts who testified before the special master.

I won’t go into the descriptions of the specific studies and findings specifically, but that section of the opinion is a good read.

The court then made specific findings as to several factors that the studies described that lead to reliability, or unreliability, of eyewitness identifications.  Those factors were divided into two types: “system variables” and “estimator variables.”  “System variables” are those arising from the process law enforcement uses to obtain the identification from the witness.  “Estimator variables” are “factors related to the witness, the perpetrator, or the event itself — like distance, lighting, or stress — over which the legal system has no control.”

The court made the following findings as to the “system variables”:

  1. The identification “may be” unreliable if the lineup is not administered by a blinded administrator.  In other words, the police officer asking the witness to identify which picture in a lineup was the suspect should not know which picture is the suspect (or even if the suspect’s picture is among the pictures in the lineup).
  2. Pre-lineup instructions are necessary to inform the witness that the suspect may not even be in the lineup, and that the witness should not feel compelled to select one of the pictures.  Without these instructions, witnesses may choose the “best” match to their memory, which will lead to an unreliable identification.
  3. The witness’s choice in a lineup is unreliable unless (a) the pictures are taken and arranged such that the suspect does not stand out; (b) there is a minimum number of “fillers,” or known non-suspects, in the lineup; and (c) the lineup features only one suspect.
  4. “Information received by witnesses both before and after an identification can affect their memory. Confirmatory feedback can distort memory. As a result, to the extent that the witness’s confidence in his or her choice may be relevant in certain circumstances, it must be recorded in the witness’ own words before any possible feedback.”  (But if the administrator is blinded, feedback would be impossible anyway.)
  5. Viewing a suspect more than once during an investigation can affect the reliability of the later identification.  Successive views of the same person can make it difficult to know whether the later identification stems from a memory of the original event or a memory of the earlier identification procedure.
  6. The evidence is insufficient to express any preference between simultaneous lineups, in which the pictures are all shown to the witness at once, or sequential lineups, in which the witness views one picture at a time.
  7. Composite drawings, whether created by a sketch artist or computer, “produce poor results.”  “It is not clear, though, what effect the process of making a composite has on a witness’ memory — that is, whether it contaminates or confuses a witness’ memory of what he or she
    actually saw.”
  8. “Showups,” in which only the suspect is shown to the witness, without any “filler” non-suspect pictures, are inherently unreliable unless they are performed within a couple of hours after the crime.

The court then analyzed the “estimator” variables as follows:

  1. Even under the best viewing conditions, high levels of stress can diminish an eyewitness’ ability to recall and make an
    accurate identification.
  2. “When a visible weapon is used during a crime, it can distract a witness and draw his or her attention away from the culprit. ‘Weapon focus’ can thus impair a witness’ ability to make a reliable identification and describe what the culprit looks like if the crime is of short duration.”
  3. “[T]he amount of time an eyewitness has to observe an event may affect the reliability of an identification.”
  4. “[A] person is easier to recognize when close by, and that clarity decreases with distance.  We also  know that poor lighting makes it harder to see well. . . . Scientists have refined those common-sense notions . . . .”
  5. Being older or under the influence of drugs, or both, “can affect the reliability of an identification.”  Additionally, witnesses are better at recognizing people of their own age than people older or younger than they are.
  6. A perpetrator’s changes in appearance, or disguises worn during the crime, can affect a witness’ ability to remember and identify a perpetrator.  “Disguises as simple as hats have been shown to reduce identification accuracy.”
  7. “Memories fade with time.”
  8. Witnesses have more trouble identifying persons of a race different from their own.
  9. Witnesses’ exposure to opinions, descriptions, or identifications by others relating to the crime or the perpetrator can affect the accuracy of an identification.
  10. Laboratory results are mixed as to whether an identification is more reliable the sooner after a crime it is made.

The Court then examined studies that attempted to determine whether the public and prospective jurors had accurate perceptions of the science relating to eyewitness identifications.  The court concluded that there was no definitive proof regarding what jurors know, but that generally “people do not intuitively understand all of the relevant scientific findings.”


The new rules

The court ended by setting out new rules, and a new system, for determining whether an eyewitness identification is reliable enough to be presented to a jury, and for instructing the jury how to analyze any eyewitness identification.

The court gave a step-by-step guide to its new procedure:

First, to obtain a pretrial hearing, a defendant has the initial burden of showing some evidence of suggestiveness that could lead to a mistaken identification. . . .  That evidence, in general, must be tied to a system — and not an estimator — variable.

Second, the State must then offer proof to show that the proffered eyewitness identification is reliable — accounting for system and estimator variables — subject to the following: the court can end the hearing at any time if it finds from the testimony that defendant’s threshold allegation of  suggestiveness is groundless.

Third, the ultimate burden remains on the defendant to prove a very substantial likelihood of irreparable misidentification. To do so, a defendant can cross-examine eyewitnesses and police officials and present witnesses and other relevant evidence linked to system and estimator variables.

Fourth, if after weighing the evidence presented a court finds from the totality of the circumstances that defendant has demonstrated a very substantial likelihood of irreparable misidentification, the court should suppress the identification evidence. If the evidence is admitted, the court should provide appropriate, tailored jury instructions . . . .

If some actual proof of suggestiveness remains, courts should consider the above system variables as well as . . . estimator variables to evaluate the overall reliability of an identification and determine its admissibility. . . .

The court rejected an approach recommended by the special master that would have been more favorable to defendants.  That approach would have allowed the defendant to use both system and estimator variables to obtain the pretrial hearing.  The court reasoned that (1) a court would not likely suppress an eyewitness identification solely because of estimator variables (what is “too dark” to see a suspect?); (2) courts cannot affect estimator variables; (3) “suggestive behavior can distort various other factors that are weighed in assessing reliability[, which] warrants a greater pretrial focus on system variables”; and (4) with the recommended approach, there would be a lot more pretrial hearings, and those hearings would be more “intricate,” and that’s just too much of a pain in the ass.  (OK, that last clause is my phrasing, not the court’s.)

The court then stated that instructions to juries in criminal cases should be uniform and should explain the relevant factors that effect the reliability of the identifications.  It asked a committee to draft proposed revisions to the state’s model jury instructions, which the court will review.  The court will then adopt new standard instructions (which may be modified in each case to fit the case’s specifics).

The shortcomings of the new system

Although this is a good start, I don’t consider it a major breakthrough or vast improvement over the past, for several reasons.  First, the procedure for the judge’s review of the eyewitness identification before it gets to the jury gives short shrift to the science.  After discussing how unreliable eyewitness testimony is, the court still requires the defendant to show some suggestiveness in the administration of the lineup (the “system variables”) in order to even have the court begin to consider whether the eyewitness testimony might be reliable.   This can mean that the state may be able to have admitted into evidence the testimony of a witness where the science says that it is very unlikely that the testimony will be reliable, as long as the lineup was performed correctly.

As an extreme example, if a witness was on the 20th floor of a building 200 feet from a crime on the street, at night, and the perpetrator was wearing a ski mask, but then in a well-run lineup the witness identifies the suspect as the perpetrator, the court’s decision leaves no procedure for the defendant to challenge the reliability or admissibility of the eyewitness identification.  Only after the eyewitness has pointed to the defendant in the courtroom and said to the jury, “That’s the guy!” will the defendant be able to cross-examine the witness to attempt to show the unreliability of that testimony.

This procedure is at odds with the science that holds that the eyewitness identification is likely unreliable to begin with, whether or not there is some lineup and whether or not any lineup is performed using the most recent science.

Second, the procedure puts the ultimate burden on the defendant to show that the identification is unreliable.  In fact, the court requires the defendant to show “a very substantial likelihood of irreparable misidentification.”  One has to wonder how a misidentification would ever be repaired given the science that (1) memories get worse, not better, with time, and (2) outside influences on a person make memories less reliable.  If eyewitness identification is as troublesome as the court describes, and if it has caused so many wrongful convictions, then how does the court justify what boils down to a presumption that the eyewitness testimony is reliable?  Shouldn’t it be up to the state to show that the identification is reliable before it is admissible?

Third, and perhaps most telling, is this statement by the court:

We also expect that in the vast majority of cases, identification evidence will likely be presented to the jury.   The threshold for suppression remains high. Juries will therefore continue to determine the reliability of eyewitness identification evidence in most instances, with the benefit of cross-examination and appropriate jury instructions.

In other words, not much will change.  Oh, the juries may hear from the judge all about how the eyewitness identification may be affected by all of these factors, but the opinion does not cite any science that shows that the jury instructions will have the desired effect of accurately weeding out unreliable eyewitness identifications.   I doubt that the jury instructions will undo the scientifically-proven effects of a confident witness’s testimony that the guy sitting at the defense table was the one whom the witness saw stab that poor old lady who was just minding her own business.

Conclusion

Don’t get me wrong; I’d rather be a defendant under the new system than under the old, and I’d rather be a member of the society that uses the new rules than the old.  I wouldn’t say, for instance, that this opinion stinks like the stretch of the New Jersey Turnpike that goes through the City of Elizabeth.  (Sorry, had to work that in somewhere.)  I also have the give the court credit for acknowledging that the science will continue to change, and that the police and the courts must adapt to that change.

I just think the court was a little wimpy in adopting its new procedures, and that the new procedures don’t effectively resolve the problems with eyewitness identification testimony that the court has raised.  After all, as the court said, ” At stake is the very integrity of the criminal justice system and the courts’ ability to conduct fair trials.”

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Quickie News: Court issues science-based guidelines on eyewitness identification

This is huge.  HUGE, I tell ya.  So huge that, after I heard this on the radio this morning, I had to squeeze in this post during my lunch hour.  I’ll try to get out a full post tonight.

The New Jersey Supreme Court has issued an opinion today that is the culmination of several years of work by it and its special master determining the science regarding eyewitness identification.  According to the case summary produced by the court’s clerk, “The Special Master presided over a hearing that probed testimony by seven experts and produced more than 2,000 pages of transcripts along with hundreds of scientific studies.”

So, you ask, why is this such big news?

Glad you asked.  For centuries, courts have established rules of evidence that seek to determine what kinds of information is reliable, so that decisions are made based on the most reliable information available.  That’s right: eons before the invention of computers, somebody in a robe and powdered wig was uttering “garbage in, garbage out.”  But the rules of evidence are based on nothing more than centuries of gut feelings by judges and legislators about what kind of information is trustworthy.

As many studies have shown, because of human nature and the human brain, eyewitness identification of a person is often flat out wrong.  (I tried to explain this to my wife once, but she still didn’t believe that I had mistaken the 23-year-old skinny brunette for her.)  It is also the sole real basis of many convictions.  As a result, many of those convictions are factually incorrect, and many more may be factually correct but legally incorrect in that the evidence used to support the conviction did not actually prove beyond a reasonable doubt that the defendant was the one who committed the crime.

That a court would engage in scientific research to determine what information is reliable is surprising but reassuring.  Of course, this came from a pretty progressive state; my hopes for similar measures in other states are not so high.

Read all about it here, for now, and watch for more in this space.  Maybe I’ll even have time to read the entire 135-page decision this afternoon.

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Quickie News: Town gets sued for banning psychics

This post introduces a new feature of this blog: “Quickie News.”  Because I’m a lawyer and have to be precise with my language, I should explain that by “Quickie News” I mean a very brief post to inform my readers of some science/skeptical/legal news when I don’t have time for a lengthy, explanatory post.  I don’t mean news about couples engaging in short-lived coitus.

For some of the Quickie News posts, I’ll try to write a full, explanatory post later on.  I may, as I will do here, add a “quickie analysis” just to get things going.

The honorable subject of my first Quickie News is the town of Hattiesburg, Mississippi, which is being sued for prohibiting psychics from plying their trade within the town limits.

Quickie analysis: The psychics have a good case, especially as to the “prior restraint” on their speech.  It’s almost impossible for the government to legally prohibit (enjoin) speech before it happens, as was famously described in the Pentagon Papers case.  Authorities would have a much better shot at charging the psychics with a crime or violation of their state’s unfair trade practices law, if they have one.

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Lessons from EpiRen: do public employees have free speech rights?

For this, my first post on this long-planned blog, I am hoping to use current events in the skeptical world to show one way in which I hope to be of some help to skeptics: by giving a brief, plain-English explanation of the law surrounding some issue.  Be warned, though, that by making a “plain-English explanation,” I am purposely leaving out some of the nuance and gray area of the law.

Here, my focus is on a post on Liz Ditz’s blog, I speak of Dreams.  The post describes how René Najera, an epidemiologist for a state department of public health who goes by the pen name “EpiRen,” was ordered by his supervisors to stop his blogging and tweeting about matters relating to public health.  The orders came after a man describing himself as a “pharmaceuticals entrepreneur” contacted the supervisors to complain about Najera’s comments, which the “entrepreneur” claimed defamed him and his business.  Najera, not wanting to risk his job, agreed, and will no longer be blogging or tweeting about public health.

The comments to the post included a question about the legality of the supervisors’ orders:

This seems to me like a violation of free speech. Just as it is illegal to fire someone because of race or religion, shouldn’t it be illegal to fire someone for views expressed outside the workplace?

and a biased, ignorant response to that question:

[A]s a labor organizer, I can tell you for a fact that unless [Epi]Ren is a member of a union, he can be fired at any time for any or no reason at all, as long as it doesn’t come under the EEOC protected things like race, gender or religion.

So unless Ren can prove that protecting the public’s health by educating online is his religion, he can be fired for his online communication. Unless you have it protected in a union contract, you have no free speech if your employer doesn’t like it.

The bias of this “labor organizer” results in a common overstatement of the benefits and protections of unionization.  There are many other sources of protections for workers, and especially government workers, in both federal and state laws, ranging from state and federal constitutions on down to agency policies.  There is also the private employment contract that affects any employment relationship, whether that contract is formed by collective or individual bargaining.  (I’ll admit, though, that most employees have far less bargaining power when acting individually than when acting collectively.)

But I digress (mostly due to my own bias against unions).

Public employees have the free speech rights of other citizens

The U.S. Supreme Court, in the May 2006 decision in Garcetti v. Cabellos, had occasion to explain the free-speech rights that public employees possess.  In that case, Cabellos, a deputy district attorney, was disciplined for his complaints about his supervisors’ actions that he wrote in an internal office memorandum.  The Supreme Court found that Cagellos’s free-speech rights were not infringed when he was disciplined, because the memo was written in his capacity as deputy district attorney, and a government agency is entitled to review the work of an employee even if that work involves speech.

The Court was careful to point out, however, that when a public employee speaks  on a matter of public concern as a citizen, and not as a government official, the employee is entitled to most of the free-speech rights of any citizen.  Yes, I said “most” and not “all.”  The Court said that a government agency has some discretion to restrict the non-work-related speech of its employees if that speech affects the agencies operations.

From the facts that I have (which isn’t the same as the facts a judge or jury would have after a trial), Najera was not speaking in his capacity as a public official.  Therefore, the rights of his employers to censor his speech are very limited.  I have not heard anything that indicates that his blogs and tweets have affected his employer’s operations.  Therefore, I think, based on my very limited knowledge of the facts, that Najera would have the protection of the law, namely the First Amendment of the U.S. Constitution, for his speech.  He probably can’t be fired for his blogging and tweeting.  But, like any good skeptic, I’m open to more information that might change my mind.

Note that these protections are less available to employees of private companies (or individuals) than government employees.  An employee in the private sector can, and often does, give up a right to speech as part of the employment contract.  Wal-Mart would have the right to fire me for saying that it’s a dangerous, conspiratorial organization out for world domination, more than the Environmental Protection Agency would.  Perhaps this is what the union organizer was referring to, but he or she missed the very important fact that Najera was an employee of a public, and not private, employer.

The importance of government-employee speech

In Garcetti, the Supreme Court noted that giving public employees free-speech rights protects not only the employees, but also society.  Government employees, after all, are in the best position to report on the activities of the government agencies for which they work.  It is in society’s best interest to give government employees the ability to inform the public about the activities of, and problems in, a government agency, the Court indicated.

The evils of suppressing Najera’s speech

I was not familiar with Najera/EpiRen.  But several people whose opinions I trust have expressed how wonderful he is.  Therefore, I accept that he is wonderful.  (Fellow skeptics, name that logical fallacy.)  But that is completely irrelevant to my opinions on this situation.

Najera’s employers (no, I’m not going to comment on the “pharmaceuticals entrepreneur,” and not because I’m afraid that he’ll sue me if I say something nasty about him) have acted rashly in stifling Najera’s outside activities, even if they relate directly to his job.  No, make that especially because they relate directly to his job.

As the Supreme Court expects, I want public employees to speak out about subjects related to their jobs.  Who better to tell me what’s going on in a government agency than someone who works there every day?  Who better to tell me about public health than someone who works in that field?

I think Najera’s employers might make things worse for themselves for what they have done.  I suspect that most people who find out about this would trust Najera’s agency less now than they did before.  They have all the appearances of hiding something, and of being afraid of their employees talking without an official sanction of everything uttered.

A personal note

Some of you may have noted that my real name is not on this blog.  That’s because I work for a public agency, and I do not want my agency connected with anything I write.  I am, of course, speaking entirely on my own, and my agency has nothing to do with this.

If, someday, somebody discovers who I am and complains to my employers, and if they order me to stop writing public comments on the law, I most likely will.  I completely understand Najera’s decision to stop his outside activities in favor of his job.  I only wish his employers would encourage, rather than prohibit, his outside activities in the interest of public health.

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