Experiencing Other Minds in the Courtroom

Experiencing Other Minds in the Courtroom

Experiencing Other Minds in the Courtroom

Neal Feigenson

The University of Chicago Press     Chicago and London

The University of Chicago Press, Chicago 60637

The University of Chicago Press, Ltd., London

© 2016 by The University of Chicago

All rights reserved. Published 2016.

Printed in the United States of America

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ISBN-13: 978-0-226-41373-0 (cloth)

ISBN-13: 978-0-226-41387-7 (e-book)

DOI: 10.7208/chicago/9780226413877.001.0001

Library of Congress Cataloging-in-Publication Data

Names: Feigenson, Neal, author.

Title: Experiencing other minds in the courtroom / Neal Feigenson.

Description: Chicago ; London : The University of Chicago Press, 2016. | Includes bibliographical references and index.

Identifiers: LCCN 2016014737| ISBN 9780226413730 (cloth : alk. paper) | ISBN 9780226413877 (e-book)

Subjects: LCSH: Evidence (Law) | Judicial process. | Examination of witnesses.

Classification: LCC K2261 .F457 2016 | DDC 347/.064—dc23 LC record available at https://lccn.loc.gov/2016014737

This paper meets the requirements of ANSI/NISO Z39.48–1992 (Permanence of Paper).

Contents

1  Simulating Subjectivity

2  Knowing Other Minds, Simulating Worlds 6

3  Simulations as Evidence: Conceptual and Legal Overview

4  That’s What I See!

5  The Science of Subjectivity

6  Ex Machina

7  Judging the Person

8  The Future of Simulations

Acknowledgments

Notes

References

Index

ONE

Simulating Subjectivity

To decide cases justly, judges and juries must, among other things, determine the facts. From the evidence presented in court—eyewitnesses’ testimony about what they saw or heard, supplemented by documentary or forensic evidence, expert testimony, and sometimes photos, videos, or audio recordings—they try to build coherent accounts of what happened.

But what if the disputed fact is a perceptual experience known only to the person who experienced it?¹ What a litigant hears or sees (or heard or saw) may be critical, not as evidence of some event in the external world, but as the fact of the matter itself. A plaintiff who suffers from tinnitus as a result of an accident says he now constantly hears a very loud buzzing sound that no one else can hear, limiting his sleep and fraying his nerves. Another plaintiff contends that malpractice in the performance of LASIK surgery has left his vision blurred and doubled, making it very difficult for him to work. Yet another claims that the negligently delayed diagnosis of a condition known as idiopathic intracranial hypertension, which causes pressure on the optic nerve, has reduced her field of vision to a small fraction of what it once was. And a defendant in a criminal case, a police officer, alleges that he fired his gun in justified self-defense because, in the heat of the moment, he thought he saw the victim driving his car straight at him, even though a dashboard camera video from a trailing police cruiser shows that the victim’s vehicle was not headed toward the officer at all.

The outcomes of cases like these may depend on whether jurors believe that the litigants’ verbal reports capture their actual sensory experiences. The police officer may go to prison if jurors do not credit his testimony about what he thought he saw. The civil plaintiffs may recover damages in any event, but jurors who think they really understand what it’s like to experience the plaintiffs’ impaired vision or hearing may award them hundreds of thousands or even millions of dollars more.

How do litigants like these prove that their subjective experiences are (or were) what they claim them to be? Typically, they tell us and trust that we’ll both believe them and appreciate what their words mean. After all, who would know better what their experiences are or have been? Other witnesses may corroborate their reports. Wives describe their husbands’ changed behaviors. Doctors explain how they’ve carefully measured their patients’ hearing or vision and confirm the nature and extent of the claimed impairments.

In a handful of cases, lawyers, litigants, and expert witnesses have gone further. They have created photos, videos, animations, and sound files that purport to recreate the litigants’ sensations. In the tinnitus case, for instance, jurors put on headphones and listened to sounds that, according to the plaintiff and his audiologist, corresponded to the loud buzzing the plaintiff was hearing inside his head. In the LASIK case, the jury saw photographs of the plaintiff’s workplace as it appeared to him, Photoshopped to match his blurred and distorted vision. During settlement negotiations in the idiopathic intracranial hypertension case, the plaintiff’s lawyer played for opposing counsel a video that displayed scenes from the plaintiff’s daily life, first as they would appear to someone with normal vision and then as they appeared to the plaintiff with her severely constricted vision. And in the shooting case, the defense lawyer showed jurors a computer animation of what the critical events looked like to the defendant officer, from his point of view. These sorts of visual or auditory exhibits—what the law calls demonstrative evidence—purport to let jurors know, and not merely know about, what it’s like to be inside the litigant’s mind.²

But how is that possible? How can anyone really know what it’s like to have another person’s sensory experiences, when only that person has direct access to them? How can we ever experience another person’s qualia, the phenomenal qualities of his mental life?

More to the point, why should courts ever admit visual or auditory evidence that purports to convey what another person’s consciousness is like? Of course trial advocates may be as creatively persuasive as the judge, the rules of evidence, and their resources allow. And, to be sure, methods of proof have sometimes run ahead of their scientific warrants. But should jurors be allowed to consider photos or videos that, according to their proponents, recreate a person’s subjective reality?

Courts ought to be skeptical. Judges and jurors care, and should care, about getting the facts right, whether those facts have to do with external reality or a litigant’s state of mind. In the generation since the US Supreme Court’s landmark decision in Daubert v. Merrell Dow Pharmaceuticals (1993), courts have been increasingly focused on the need to ensure that scientific evidence in particular is trustworthy. And the public’s faith in the law depends in part on its confidence that verdicts are sufficiently tethered to the truth. The very audacity of purporting to simulate another person’s private mental experience for all to see or hear should make judges suspicious.

Yet in the handful of cases in which these simulations have been offered, courts have routinely admitted them. Simulations have also, as noted, played a role in settlement negotiations. Only once, to the best of my knowledge, has a simulation of subjectivity been excluded.³

In a world in which computer technology seems nearly omnipotent, and neuroscientists and bioengineers have penetrated the mind so far as to enable people to control cursors on screens and robotic arms just by thinking, maybe it’s not that hard to believe that conscious experience could be uncovered, measured, and digitally recreated. Considering the wide range of contexts in which litigants’ subjective experiences may be at issue—from disability claimants seeking benefits for impaired vision or hearing and sexual harassment victims alleging hostile work environments to prosecutors trying to prove a victim’s fear as an element of extortion (see Kolber 2011)—we can imagine many opportunities for simulating subjectivity in the courtroom. Where might it end? If simulations of tinnitus or blurred vision are allowed, what about simulating the hallucinations that schizophrenics experience? Might jurors be invited to experience, if briefly, a plaintiff’s physical pain? Might it be possible someday to scan a person’s brain to extract her memories and display them on a courtroom screen? And even if it ever becomes possible, would it be a good idea to allow it?

Simulations of subjectivity are made possible, and plausible, by a combination of digital technology, clinical science, creative lawyering, trial practice, the law of evidence, and popular culture. Who thinks this sort of evidence up, how is it made, and how is it presented in court? Do judges and lawyers treat these simulations in a way that illuminates or obscures the very different sorts of claims they make to provide reliable knowledge about litigants’ subjective experiences? How do jurors respond to the vicarious experience of being inside a litigant’s mind? What does admitting this sort of evidence of subjective states tell us about what the law is willing to recognize as a fact? And given that all fact-finding at trial is part of a fundamentally normative enterprise—deciding how much compensation a personal injury plaintiff deserves for her pain and suffering, or whether a defendant in a criminal case ought to be punished for the harm he caused—how might simulations affect the justice that judges and jurors dispense?

This book addresses these questions. Seeing or hearing what purports to be someone else’s sensations can be a far more powerful way to learn what those sensations are like than merely being told about them. Seeing, or hearing, is believing.⁴ Whether a simulation of subjectivity actually provides reliable knowledge about the other person’s inner experience, however, depends on the strength of our grounds for believing in it. And that depends largely on how the simulation was made. Some are backed by scientific authority and offer knowledge of litigants’ sensations at least as trustworthy as, say, the knowledge of external events that computer-animated re-creations of accidents or crimes, commonly admitted as expert evidence, provide. Other simulations rest only on the litigant’s say-so: That’s what I see (or hear). How reliably each type of exhibit can recreate another person’s sensations—and how each may mislead—are questions of philosophical and general interest, as well as a concern for the law.

Lawyers and judges have not always clearly distinguished among the different knowledge claims made on behalf of different types of simulations. Sometimes jurors have been invited to believe that a re-creation provided better evidence of the litigant’s subjective experience than it possibly could have. Some scientifically based simulations, on the other hand, may be given less weight than they deserve if the principles and methods used to create them aren’t made clear. By more carefully appraising each exhibit’s evidentiary support, judges, lawyers, and jurors can promote the wiser use of this powerful new form of evidence.

Simulations of subjectivity have been used most often in personal injury cases, to support plaintiffs’ claims for pain and suffering damages. In these cases, simulations can profoundly change the way justice is done. They can anchor what jurors think about plaintiffs’ impairments and reshape jurors’ responses to plaintiffs’ testimony about their suffering. Perhaps most significantly, experiencing a simulation puts jurors in the plaintiff’s shoes as no other evidence can, giving them unparalleled insight into the plaintiff’s condition, but also threatening to bias their judgments. As more litigants in more kinds of cases seek to recreate their subjective perceptions in court, understanding these simulations and their effects on legal decision making will become ever more important.

Chapter 2, Knowing Other Minds, Simulating Worlds, places the simulation of subjectivity in broader contexts. How should we think in general about the claim that people’s sensations can be digitally recreated for others to share? The chapter briefly surveys the conflicting philosophical and psychological views about how far we can know other minds—specifically, others’ sensory experiences. It also argues that, as a society, we are deeply ambivalent about digital simulations of reality and especially of personhood. Chapter 3, Simulations as Evidence: Conceptual and Legal Overview, then sets out two frameworks for understanding how the law approaches simulations of subjective experience. The first is epistemological. I distinguish three types of simulations, each of which makes a very different kind of claim to provide reliable knowledge of the perceptual experience it purports to recreate. The second is doctrinal. I summarize the law of demonstrative evidence and explain why it leaves judges and jurors much room to misconstrue these exhibits’ probative value.

The next three chapters present case studies of the types of simulation. I examine the simulations in detail, describing how they were made and used in litigation and analyzing the sort of knowledge of the litigant’s sensations that each offered. Chapter 4, That’s What I See!, discusses artist’s sketch simulations; chapter 5, The Science of Subjectivity, simulations based on psychophysical testing; and chapter 6, Ex Machina, those based on physical measurements of the litigant’s perceptual apparatus. The persuasive effects of every simulation, however, go beyond its epistemological value. I draw on cognitive psychology and visual and media studies, among other disciplines, to discuss how each simulation may (or may not) have convinced its audiences that they could vicariously experience and thus really know what it was like to see or hear as the litigant did.

As already noted, simulations have mostly been used in personal injury cases to support plaintiffs’ claims for pain and suffering damages. Chapter 7, Judging the Person, explores how jurors’ responses to simulations may interact with their reactions to the plaintiffs’ testimony, reshaping their judgments about the damages these plaintiffs deserve. Finally, chapter 8, The Future of Simulations, offers a glimpse of the next generation of evidentiary re-creations of subjectivity.

TWO

Knowing Other Minds, Simulating Worlds

Most of this book is about the legal life of simulations of subjective experience: how they are created for use in litigation, how lawyers argue for or against their admissibility at trial, how judges decide whether to admit them, what litigants and expert witnesses say about them on the stand, and how jurors are likely to think about them. But quite apart from how these simulations may fare as courtroom evidence, the very idea that people’s sensations can be digitally recreated for others to experience vicariously is fascinating and problematic.

This chapter offers two broad perspectives on the simulation of subjective experience. The first addresses the basic philosophical question of how far we can really know what another person’s conscious experiences are like. On one hand, some philosophers contend that we can’t know what those experiences are like for the person who has them because phenomenal experience is always experience from a first-person perspective, which no one else can share. On the other, the physics and physiology of perception, everyday mind reading, the science of mirror neurons, and various philosophical arguments, including phenomenology’s understanding of perceptual experience, suggest that we can know well enough what others’ subjective experiences are like even if we can’t have those experiences ourselves. These debates may help us to plumb our own conflicted responses to the prospect of simulating subjectivity in the courtroom.

The second perspective is cultural. As a society we are deeply ambivalent about digital simulations in general. We crave the knowledge they make possible, but we’re nagged by doubts about the reality of what we’re seeing and hearing. And we are especially anxious about the digitization of what we prize as human consciousness. When judges and jurors encounter simulations of subjectivity in court, what they take to be their common-sense responses may well be shaped by these anxieties, whether they acknowledge them or not.

I begin with a few clarifications. The other minds in this book’s title is at once too broad and too narrow. It’s too broad because, first, our concern is not with the entirety of litigants’ mental lives, but only with the relatively small portion (e.g., Wilson 2002) constituted by conscious experience. Second, we’re not concerned with the entirety of conscious experience, but only with phenomenal experience—perceptions and feels.¹ Throughout the book I use various phrases interchangeably to identify the sought-after object of knowledge and the goal of courtroom simulations: perception, subjective perception, experience, sensation, inner reality, and so on. What I mean in every instance is how things look or sound to the litigant. The philosophers’ word for these sorts of phenomenal qualities is qualia (Robinson 2008).²

Other minds is also too narrow, because subjective perception doesn’t take place just in the mind (or the brain). Perception . . . is not a process in the brain, but a kind of skillful activity on the part of the animal as a whole (Noë 2004, 2; see also Gibson 1979). As neuroscientist Jan Lauwereyns has written, sense perception is sensorimotor perception. We have to explore and construct our subjectivity, associating actions and perceptions: ‘This is what it looks like when I do this’ and ‘This is what I get if I do that’ (2012, 205). Subjective experience is not only embodied, but is a function of being a person acting in the world. Some would argue, moreover, that sensory perception is not just an individual matter: Just as meanings are shared, so are sensory experiences (Howes 2005, 4). Perception itself, cultural anthropologists contend, cannot be fully understood in a psychology lab, because it is also shaped by culture and history (Classen 2012; Howes 2005).

Let’s put these complications to the side for now. We’ll begin by assuming there is something intelligible called phenomenal (or perceptual or sensory) experience, apart from whatever it may be an experience of, whatever the person may be doing or trying to do when having that experience, and whatever influence the person’s culture may exert on that experience. And we’ll assume the general feature of the phenomenal experiences in which we are interested is that they have "distinctive subjective feels"—that there is something it is like to have those experiences (Carruthers 2000, 13; see also Block 1995). Given that, we can ask, Can anyone really know what it’s like for another person to have the phenomenal experiences that person does?³

One intuitively compelling answer is, No, we can’t really know what it’s like for another person to have the phenomenal experiences he or she does. The fundamental reason we can’t is that to know what it’s like to have those experiences, you just have to have them—those particular experiences, those qualia, or ones very similar—and having any particular qualia is a uniquely first-person sort of thing, which in principle isn’t available to anyone else.⁴

Let’s spell this out. Simply by introspection, we seem to know the qualia that help to make up our own conscious experience more immediately and more certainly than we can know anything else. For instance, although I may be mistaken about the source of a pain, I can’t be mistaken about whether I’m having the feeling that I’m calling pain (I may, of course, be uncertain about whether to call it pain), and although I may have trouble putting the feeling into words, I can’t be mistaken about what that feeling feels like.⁵ But no one else has that same first-person access to my conscious, phenomenal experience, nor I to theirs. So no one’s conscious experience is directly available to anyone else (see generally Güzeldere 1997).⁶

That is, when it comes to others’ qualia, there seems to be a threshold we can’t cross. As William James put it long ago in The Principles of Psychology: "A blind man may know all about the sky’s blueness, and I may know all about your toothache, conceptually . . . but so long as he has not felt the blueness, nor I the toothache, our knowledge . . . of these realities will be hollow and inadequate" (James [1890] 1950, 2:7). More recently, philosopher Frank Jackson (1986) posed the case of Mary, who is confined to a black-and-white room and, through black-and-white books and television programs, learns everything there is to know about the physical nature of the world and, in particular, color vision. If Mary is let out of the room on a sunny day or given a color television, will she learn anything new? Of course she will: she will now know what it’s like (for her) to see whatever colors she sees. This knowledge could not be conveyed by however many propositional lessons Mary read or heard. She simply had to experience it for herself. She had to acquire this knowledge by acquaintance, not merely by description.

James’s and Jackson’s general point is to distinguish conceptual knowledge from direct sensory experience, and in that respect, the inaccessibility of others’ qualia is similar to that of any other phenomenal experience we are physically incapable of having. But while a normally sighted person can know the sky’s blueness by looking at the sky, many philosophers contend that there is no equivalent way for anyone else, ever, to know your toothache—that is to say, to know what it’s like to experience that particular toothache, the one you’re experiencing.

That’s because, according to philosopher John Searle (1992) and others, the pain (or any other phenomenal experience) has a subjective, first-person character, which cannot be reduced to its third-person, objective, physical features, such as the pattern of neuronal firings that, based on the best available neuroscientific information, cause the experience. Even if we are someday able to explain how consciousness arises from brain activity or to give a satisfactory functionalist account of the role of consciousness, no objective description of the causes or correlates of consciousness can ever capture its distinctively first-person features: what the pain feels like to the person experiencing it. "Every mental state has to be somebody’s mental state. Mental states only exist as subjective, first-person phenomena" (70). That is to say, the first-person experience is ontologically different from third-person reality. And this ontological difference has obvious epistemic consequences: my knowledge that I am in pain has a different sort of basis than my knowledge that you are in pain (118).

The philosopher Thomas Nagel, in his classic essay What Is It Like to Be a Bat? (1974), similarly posits that experience—what it is like for a bat to be a bat or, for that matter, a person to be that person—has a fundamentally subjective character in that it is essentially connected with a single point of view. When we try to understand any other aspect of reality, we do so "by reducing our dependence on individual or species-specific points of view toward the object of investigation. We describe it not in terms of the impressions it makes on our senses, but in terms of its more general effects and of properties detectable by means other than the human senses. The less it depends on a specifically human viewpoint, the more objective is our description" (444), and hence the better our understanding. But, Nagel continues,

experience itself . . . does not seem to fit the pattern. The idea of moving from appearance to reality seems to make no sense here. What is the analogue in this case to pursuing a more objective understanding of the same phenomena by abandoning the initial subjective viewpoint toward them in favour of another that is more objective but concerns the same thing? . . . If the subjective character of experience is fully comprehensible only from one point of view, then any shift to greater objectivity—that is, less attachment to a specific viewpoint—does not take us nearer to the real nature of the phenomenon: It takes us farther away from it. (444–45)

Searle argues that whatever I can know about your pain, it can’t be the same as what I can know about mine, because my knowledge of my pain is infused with my first-person experience of it, whereas my knowledge of your pain lacks your first-person experience of it. Nagel concludes that we can’t grasp the subjective character of others’ experiences in anything like the way we achieve knowledge of anything else, because those methods lead to knowledge by leaving the subjective behind—precisely the point of view that’s essential to knowing what conscious experience is like.⁷ In sum, no matter what neuroscience and other disciplines may uncover about the nature, causes, and functions of conscious experience, we cannot, in principle, know what it’s like for others to have those experiences, because those experiences are essentially subjective and hence cognitively inaccessible to us (van Gulick 1997, 559).

In David Lodge’s novel Thinks . . . , Ralph the neuroscientist remarks to his friend Helen: That’s the problem of consciousness in a nutshell: How to give an objective, third-person account of a subjective, first-person phenomenon. Helen replies, Oh, . . . but novelists have been doing that for the last two hundred years (Lodge 2002, 42). Novelists have the considerable advantage of creating the characters whose consciousness they evoke. But even a skilled novelist’s powers of description, it would seem, can do no more than evoke, suggest, give some idea of; we can’t, merely on the basis of verbal description, really know what it’s like for another person to have the phenomenal experiences she or he does. Some philosophers, psychologists, and neuroscientists would argue, however, that it is possible to know what another person’s phenomenal experience is like, at least with the degree of reliability and confidence that suffices for our knowledge of other kinds of facts, without having done what others contend is impossible: having had the experience in question from the other person’s subjective, first-person perspective. I’ll identify several arguments, as well as counterarguments to them.

First, start with some fairly straightforward inferences from physics and physiology. Assume that all mental phenomena, including all qualia, are caused by something physical, namely, physiological, including neurophysiological, states (sometimes called supervenience; e.g., Searle 1992),⁸ so that any two identical physiological states must correspond to the identical mental state. Then if your normally functioning eyes, visual cortex, and related brain areas are identical for all practical purposes to mine, and given that the receptivity of the cones in the retina to the various electromagnetic wavelengths that produce sensations of color and the way the brain processes those electromagnetic signals to yield sensations of color are themselves matters of objective physical fact, you and I can be pretty sure that when we’re looking at the same thing under the same lighting conditions, our qualia are more or less the same. It’s logically possible that what you subjectively experience when you see what everyone calls red is the same as what I subjectively experience when I see what everyone calls green (the inverted spectrum or inverted qualia hypothetical well-known in the philosophy of mind and perception literature since Locke; see Byrne 2014). If, however, the color you subjectively experience when looking at something everyone calls red is not at all what I subjectively experience when looking at the same thing, there should be some observable physical and/or behavioral differences between us (Churchland 2002; see also Palmer 1999).⁹ In the absence of any such evidence, it is reasonable to infer that our subjective visual experiences, our color qualia, are the same.

This argument, if valid,¹⁰ shows that ordinarily, we can confidently infer that others’ qualia in response to similar stimuli are very similar if not identical to our own. Sometimes, though, those confident inferences will be wrong. That dramatically aberrant subjective perceptions, such as inverted color qualia, are in principle physically or behaviorally detectable does not ensure that, as a practical matter, they will be, and that caveat applies a fortiori to less dramatic differences in qualia.

More importantly, the argument’s basic logic does not justify the inference that we can know what it’s like for others to have the sorts of subjective experiences we’ll be studying in this book. For one thing, some of those experiences don’t reflect responses to external stimuli at all. The plaintiff who suffers from subjective tinnitus, for example, experiences a kind of auditory hallucination. Physics and physiology, at least in the current state of those sciences, offer no basis for inferring what such hallucinations may be like.

Here’s a more fundamental difficulty. The argument from physics and physiology includes these points: (1) We assume, in the absence of contrary evidence, that your visual apparatus (including eyes, visual pathway, visual cortex, and so on) is similar in all relevant respects to mine. (2) If two people who have more or less identical sets of visual apparatus look at the same thing under the same viewing conditions, they’ll have (more or less) the same qualia. (3) Therefore, if we’re looking at the same thing under the same viewing conditions, your qualia must be (more or less) the same as mine—which is to say, I can know what it’s like for you to have that visual experience because I know what it’s like for me to have it.

In the cases discussed in this book, however, the other person’s qualia (when looking at the same thing as we are, under the same conditions) differ from ours; at least, the other person knows that her qualia are different from what they were before her accident or illness. Assuming the truth of (2) above (and holding viewing conditions and so on constant), it follows that her visual apparatus must differ from ours. So the inferential chain starting with (1) never gets going, and, therefore, the argument from physics and physiology seems to be largely beside the point.

Second, folk psychology supports the claim that we can know what others’ inner experiences are like. For most people, solving th[e] other minds problem seems to be no problem at all (Epley and Waytz 2010, 498), because we naturally and intuitively make inferences about other people’s specific, individual mental states—their beliefs, preferences, needs, and so on—all the time.¹¹ Our ability to reason about other minds forms the backbone of all cooperative social life (Epley 2014, xvii). And if these habits of mind perception weren’t accurate enough often enough, presumably they would not have evolved to become our common sense habits.¹² If I am at a baseball game, for instance, and I watch the home team come from behind to win in the bottom of the ninth, I may leap out of my seat, cheering. At that moment I know what I’m subjectively experiencing. At the same moment, I see and hear (and feel, through the vibrations in the stadium) that most of the fans around me are doing the same. Isn’t it reasonable for me to conclude that I know, more or less, that those who are behaving the same way I am are thinking and feeling what I’m thinking and feeling?¹³

This plausible argument gets us only so far, however. It smacks of naive realism (e.g., Gilovich and Griffin 2010), the idea that