by Houston Criminal Defense Attorney

Avatar Lawyer

Meet ROSS.

Created by and marketed as the world’s first artificially intelligent attorney. The AI machine, powered by IBM’s Watson technology, will serve as a legal researcher for the firm, BakerHostetler.

BakerHostetler emphasized ROSS is not out to replace attorneys, but only to be used as a supplemental tool to “reduce human error, move faster, and move more efficiently.”

The same reasoning cited by Cyberdyne Systems in creating Skynet, a self-aware, artificial intelligence system that initiated mass genocide in the blockbuster movie franchise Terminator. Unfortunately for those waiting, attorney genocide seems unlikely and this article is not about ROSS, BakerHostetler, or Arnold Schwarzenegger.

This article incorporates a different idea with the potential to terminate or at least diminish a trial attorney’s courtroom presence. Walking in ROSS’ red-carpet shadow is Adam Benforado, an accomplished professor of Drexel University Law School and author of Unfair: The New Science of Criminal Injustice, who has proposed virtual courtrooms. That’s right, lawyer avatars. His goal aims at fixing the criminal “injustice” system. A system where verdicts are rendered not on facts, but on cultural cognitions – gut feelings, prejudices, stereotypes, personal likes, or dislikes, sympathies, and generalizations. A system where incorrect Verdicts send innocent people to prison far too often.

How Good People, with Good Intentions, Get Things Terribly Wrong.

Simply put, we don’t understand how the human brain works. While we are aware humans suffer from a long litany of biases, everyday courtrooms across the country attempt the impossible. They try to control uncontrollable biases.

Any trial attorney can give you a voir dire example where an otherwise disqualified juror is rehabilitated by the court. After explicitly revealing a bias, the court instructs the juror, “you can put your feelings aside and follow the law?”. To which the perspective juror reluctantly replies, “I guess, yes.” This exchange by the judge and juror actively promotes a false notion that biases can be suppressed and controlled.

The very purpose of voir dire is to ferret out biases. Sanchez v. State, 165 S.W.3d 707 (Tex. Crim. App. 2005). While the fear of a person concealing explicit biases to remain on the jury exists, it is the hidden, implicit biases lawyers should fear most.

Explicit bias is an attitude and stereotype consciously accessible and endorsed as appropriate. Consider a person’s bias towards vaccinations. This person has a negative attitude (i.e. prejudice) toward vaccinations and also believes vaccinations are bad for your health (i.e. stereotype). In believing vaccinations should be avoided, this person is aware of the attitude and stereotype and endorses them as appropriate. Implicit bias, on the other hand, is an attitude and stereotype not consciously accessible. Consider another person who just recently developed a bias against vaccines. However, this person has a history of receiving vaccinations and has remained in good health. Based on past experiences this person may still have a positive attitude towards vaccines.  Translating these biases to the courtroom, a juror with an explicit bias should recognize their prejudice against a certain class of people and reveal it. A juror with an implicit bias may perceive themselves as objective, but unknowingly hold a negative stereotype about a particular class of people. Jurors may say they will give equal weight to both a police officer’s testimony and a non-police officer’s testimony, but subconsciously they may associate an officer being more trustworthy and credible.

Check out this video from What Would You Do? and see an example of these biases at work.

Like many in the video, it is those who perceive themselves as objective who present the greatest challenge. Research has shown when a person believes himself to be objective; such belief licenses him or her to act on their biases. Eric Luis Uhlmann & Geoffrey L. Coher, “It Think It, Therefore It’s True.”: Effects of Self-Perceived Objectivity on Hiring Discrimination, (2007). Police officers, lawyers, jurors, and judges all harbor these hidden biases. In a judicial poll, 97% of judges ranked themselves in the top half in their ability to “avoid racial prejudice decision making.” Jeffrey J. Rachlinski, Does Unconscious Racial Bias Affect Trial Judges?, 84 NOTRE DAME L. REV. 1195, 1225 (2009). Not only is that figure mathematically impossible, but it is inaccurate. Implicit Association Tests (IAT’s), used to measure hidden attitudes and beliefs, revealed these “impartial” judges had concealed biases on defendants of the opposite race. Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, The Failed Promise of Batson, and Proposed Solutions, 4 HARV.L. & POL’Y REV. 149, 150 (2010). It is the need to counter these biases that stand as the foundation for the lawyer avatar.

The Lawyer Avatar.

In the first part of the two-part proposal, Benforado suggests substituting “live” jury trials with previously recorded trials. Trials that have been edited to eliminate inadmissible material, improper questions, sidebar remarks, objections, and the court’s rulings on those objections. This approach protects jurors from unlawful evidence with the potential to negatively influence their decision-making process. In essence, what jurors don’t know, won’t harm them. In part two of the proposal, he suggests an animated courtroom where lawyers and witnesses are replaced by avatars. In substituting courtroom faces with generic avatars, he believes juries will focus more on the facts of the case as opposed to cultural cognitions bolstered by implicit biases. A witness avatar would hide the physical characteristics of the person testifying (e.g. race, dress, attractiveness, etc.). The judge avatar would hide such things as facial expressions while ruling on evidentiary matters. Supporters believe virtual courtrooms would bury unwanted explicit and implicit biases.

The Lawyer Avatar’s Legal Hurdles

We can assume our founding fathers failed to take into account virtual courtrooms when writing the Constitution. In order to accommodate this idea grounded Constiutional pillars would need to be bent. The 5th Amendment provides, “No person shall . . . be deprived of life, liberty, or property without due process of law.” U.S. Const. Amend. V; See also Tex. Const. art. 1 § 13 & 19.  The 6th Amendment grants the “accused the right to be . . . confronted with the witnesses against him. U.S. Const. Amend. VI; See Tex. Const. art. 1 § 10; See also Crawford v. Washington, 541 U.S. 36 (2004); Langham v. State, 305 S.W.3d 568 (Tex. Crim. App. 2010). Incorporated in both is the right to a fair and impartial jury that is the exclusive judge of the facts and determines the credibility of witnesses and the weight given to their testimony. Tex. Code. Crim. Proc. Art. 36.13. The central purpose of these constitutional principles is to ensure the reliability of evidence against an accused by subjecting it to rigorous testing that includes: physical presence, oath, cross-examination, and observation of demeanor by the trier of fact. Maryland v. Craig, 497 U.S. 836 (1990). Proponents could argue courts have held that although face-to-face confrontation forms the core of these clauses values, it is not an indispensable element, particularly where the testimony’s reliability is assured and public policy is advanced. Id at 837. Adapting the criminal justice system to protect innocent persons from spending years in prison, certainly seems like a valid public interest. On the flip side, appellate courts are careful not to “invade the province of the jury” when reviewing cases. This is due in part because the black robes were not present at trial. It is the jury’s role, not appellate judges, to determine the credibility of the witnesses and the weight evidence should be given. Although one could argue the current legal system shows jurors are deciding cases on things unrelated to the facts of the case, these clauses exist to protect the accused. An adverse witness hiding behind an avatar not only deprives the jury the ability to get a complete picture of the witnesses demeanor but also deprives the accused of truly testing the witness’ story. The witness will feel more comfortable and more confident without having the eyes of the courtroom on him or her, an essential element of confrontation.

Attorney Genocide?

Who knows if virtual courtrooms will ever take a seat in the American justice system or if avatars will help fix a broken system. In the meantime using prior wrongful conviction as lawyer avatar case studies could yield compelling information.  Also, judges, lawyers, officers, and jurors should become aware and educate themselves of these biases and courts should take measures to ensure a fair and impartial jury is seated. United States District Court Judge Mark W. Bennet, for example, spends twenty-five minutes with jury panels during voir dire discussing implicit biases. He shows jurors the above video and has a plaque in the jury deliberation room that reads:

I pledge: I will not decide this case based on biases. This includes gut feelings, prejudices, stereotypes, personal likes or dislikes, sympathies, or generalizations.

We must lay to rest this notion we are infallible and objective. Failure to do so is a vote of injustice. An endorsement that it is okay to send innocent people to prison. As we continue to search for a just system, as we continue to live in a nation where anything is possible, who knows, maybe a lawyer’s courtroom presence will slowly become…terminated.