BRAIN SCIENCE, PERSUASION ETHICS & THE SINGULARITY

1. BRAIN SCIENCE, PERSUASION ETHICS & THE SINGULARITY Charles Herring, Jr. Herring & Irwin, L.L.P.

2. Don’t Lie-Cheat-StealRules • Disciplinary Rules: • 3.01 – frivolous positions • 3.03 – false statements, fact or law • 3.04 – perjury, false evidence • 4.01 – false statements to others • 8.04(a)(3) – deceit, dishonesty, fraud, misrepresentation

3. Restatement of the LawGoverning Lawyers § 116 cmt. b Witness preparation may include: • discussing the witness’s recollection and probable testimony

4. revealing to the witness other testimony or evidence that will be presented and asking the witness to reconsider the witness’s recollection or recounting of events in that light • rehearsal of testimony • suggesting choice of words

5. Resolution Trust Corp. v. Bright,6 F.3d 336 (5th Cir. 1993) Sanctions imposed: disbarment, $110,000 penalty, removal from representation. RTC attorneys who allegedly had attempted to persuade a witness to sign an affidavit containing statements that the witness had not made.

6. 5th Cir. rev’d: “It is one thing to ask a witness to swear to facts which are knowingly false. It is another thing, in an arms-length interview with a witness, for an attorney to attempt to persuade her, even aggressively, that her initial version of a certain fact situation is not complete or accurate.”

7. “Disciplinary Rules 3.04(b) and 4.01(b) concern the former circumstance, not the latter. . . . A court obviously would be justified in disbarring an attorney for attempting to induce a witness to testify falsely under oath. . . .”

8. Equal Employment Opportunity Commission v. Mitsubishi Motor Manufacturing of America, Inc., No. 96-1192 (C.D. Ill. 10/23/97) • EEOC’s massive sex discrimination case against Mitsubishi • EEOC sent a “Dear Class Member” letter to 60 women Mitsubishi was going to depose. Mitsubishi moved for sanctions.

9. The letter contained “memory joggers” that it “suggest[ed]” each woman begin thinking about to “[c]onsider and try to remember whether or not you have experienced or observed such activities:

10. SEXUAL CONDUCT • sexual jokes, unwanted nicknames or greetings • propositions, requests for sex, requests for dates • unwelcome touching, groping, brushing up against • circulation of pornographic photos, drawings

11. HOSTILITY TOWARDS WOMEN • anti-women statements, such as ‘women don’t belong in the plant,’ ‘why aren’t you home?’ etc. • women getting less favorable rotations/assignments • women getting less training or cooperation or help

12. Mitsubishi argued the letter would “taint” the testimony of the women. • Dueling experts

13. Held: Mitsubishi’s sanctions motion denied. “While certainly suggestive, the letter does not go beyond the bounds of the privilege that attends attorney-client communications related to deposition preparations.”

14. “In fact, the ‘memory joggers’ that Mitsubishi finds so objectionable are probably, in most cases, no more suggestive than Mitsubishi’s own communications with its people before a deposition. . . . The ‘truth’ told at depositions . . . is rarely the product of an unprepared witness.”

15. “Lawyers routinely prepare their clients for depositions by focusing the client on the particular facts of the case that have legal significance. Although lawyers cannot ethically tell or allow their clients to tell a lie, suggesting subject matters to focus on in telling their story is surely what every competent lawyer, including the Mitsubishi lawyers, do to prepare their clients for a deposition.”

16. Ibarra v. Baker2009 WL 2244659 (5th 2009) • Aff’dtr ct findings & discipline: attys “improperly coached witnesses” • Attys disqualified, they and Harris County fined $10,000 • §1983 case – defense was that Ds had “reasonable suspicion” for detention/arrest • D attys coached witnesses thru a consultant

17. “Implanted” terms • Attys used expert/consultant, Rodriguez, commander TxDept Public Safety • Terms: “high crime area” “retaliation” – linchpin of defense • Rodriguez had one-on-one meetings with Ds • One D took notes to depo that closely tracked Rodriguez’s points

18. D Ct: Attys used “Rodriguez to alter the officers’ deposition testimony substantively” • 5th Cir: aff’d: the evidence was “a bit scant” but did not show the trial court’s findings were “mistaken”

19. Monroe H. Freedman, Understanding Lawyers’ Ethics (1990) “An essential step in competently litigating a case is what is called ‘preparing,’ ‘coaching,’ or ‘woodshedding’ one’s witnesses. . . . ‘It is axiomatic. Everyone who testifies has to be woodshedded.’”

20. “For example, the poorly educated day laborer who has suffered an injury, who can only say, ‘It hurt bad,’ must be helped to articulate what the pain is like, when it is present, and how it interferes with work, sleep, family life, and recreation. . . . The relevant details must then be sufficiently rehearsed to assure that no material evidence will be overlooked in testimony at trial, where leading questions will not be permitted.”

21. “[T]he process is a highly creative one, affecting what is ‘remembered’ as much as what is ‘forgotten.’ . . . In fact . . . [memory] grows. Although the initial perception may fade, ‘every time we recall an event we must reconstruct the memory, and so each time it is changed—colored by succeeding events, increased understanding, a new context, suggestions by others, other people’s recollections.’”

22. “A witness may reconstruct events without being … aware that he is either supplementing or falsifying the data of perception.” “Lawyers should be aware that … even ‘straightforward questions of fact’ may significantly affect what a witness remembers, and leading or loaded questions can be particularly powerful in inducing good faith errors in memory ….”

23. “This procedure presents a risk of prompting the client to falsify evidence, but it is necessary to draw out truthful information that the client might have overlooked or might consciously or unconsciously be withholding.”

24. Michael Miller, Working with Memory19 Litig. 10 (Summer 1993) “Despite the psychological truth of the matter, when a witness does not demonstrate expected confidence or recollection on a point, jurors tend to underestimate the accuracy of his other memories.”

25. David Eagleman, Incognito: The Secret Lives of the Brain (2011) “[M]ost of what we do and think and feel is not under our conscious control.”

26. Coffee Station Experiment • Honor-pay system for coffee/tea. • Researcher tracked payments. • Small sign of cost—changed decorative photos at top. • Even-numbered weeks: flowers. Odd-numbered: watching eyes.

27. Coffee Station (cont.) • Results: collected 3 times as much $ odd-numbered (watching eyes photo) weeks. • No office worker even remembered the decorative photos.

28. EXPERIMENTS ON THE EFFECT OF SUGGESTIVE AND LEADING QUESTIONS

30. Two groups of subjects were shown a photo of a basketball player, and then asked questions about the player’s height. • First group: How tall was the basketball player? Result (mean): 6' 7” • Second group: How short was the basketball player? Result (mean): 5' 9"

31. Subjects shown a film of a multi-car accident, in which one car turned right to enter a stream of traffic, causing a five car bumper-to-bumper collision. Questions were asked to 2 groups, about 3 things that were shown in the film and 3 things that were not shown: • First group: “Did you see a . . . ?” • Second group: “Did you see the . . . ?”

32. Results: Whether the item was present or not, the first group (“a”) was twice as likely as the second group (“the”) to answer “I don’t know.” The second group was twice as likely to say “Yes” to identify something as being present that was not present.

33. El Al plane crash in Amsterdam, 1992 • 2 engines fail, crashes, 39 die • 11-story apt. building • Dutch psychologists study

34. “Did you see the television film of the moment the plane hit into the apartment building?” 55% - Yes • Follow-up study: 66% - Yes • Details recalled: speed, angle of impact, fire at impact, plane body just after collision

35. Problem: no such film existed • All results were from suggestive questions, post-crash coverage, conversations at the time

36. The Singularity

37. Ray Kurzweil • Director of Engineering, Google • Winner, National Medal of Technology • Inventor: • CCD Flatbed Scanner • First text-speech reading machine for the blind • Omni-font optical character recognition • First music synthesizer for orchestral instruments • National Inventors Hall of Fame • Bill Gates: “He’s a visionary thinker and futurist.” • 7 books, 5 best-sellers, 2 movies • Keynote: SWSW (2012); LawTech Future (2013)

38. Exponential Rate of Technological Change • Universe – 14 billion years • Earth – 4.5 billion • Genus Australopithecus – 4 million • Homo habilis – 2.5 million • Homo sapiens neanderthalenis – 400,000 • Homo sapiens sapiens – 200,000

39. Exponential Rate of Technological Change • Printing press – 400 years to reach mass audience • Phone – 50 years to reach 25% of Americans and Europeans • Cell phone – 7 years • Facebook – 3 years

40. Exponential Rate of Technological Change • MIT first campus computer – cost tens of millions of $$$; occupied half a building • Current smart phone: • Thousands of times more powerful • A million times cheaper • 100,000 times smaller • Several billion-fold increase in price-performace • 25 years: computers a billion times more powerful, size of red blood cells – easily implanted in brain

43. Dr. Theodore Berger • Director, Center for Neural Engineering, USC • Developer, Brain or Cognitive Prostheses • Work on damaged hippocampus – forms new memories – short term – long term memory (STM to LTM)

44. Dr. Theodore Berger • Rats trained to press levers, in non-matched sequence, for water • Brain signals recorded • Converted to input-output spatial-temporal mathematical codes

45. Dr. Theodore Berger • Then hippocampus drugged • Rats can’t remember • Artificial-hippocampus implant replicates signals • Rat remembers – and can enhance normal memory

46. Dr. Theodore Berger “Artificial memories created by a box and sent through the brain” Potential applications: • Traumatic injury victims • Alzheimer’s victims • “Enhance” memory [witness preparation?]

49. Daniel Reisel: Neuroscience ofRestorative Justice • Studied violent psychopaths in prison • Lacked phyisical empathy –heart-rate increase, sweating • Empathy – centered in brain’s amygdala • Smaller amygdala in these subjects • Brain changing – interacting with victims

50. Dr. Kevin Warwick • Prof. of Cybernetics, University of Reading • Human implants for transmission