The Need for a Scientific Legal Process

The Broken Scale

The Canadian justice system has some serious problems, like access to justice and excessive backlog, which “like an achilles heel, is bringing the civil justice system to its knees.” In an attempt to resolve these issues, the judiciary has resorted to alternative methods like arbitration and mediation, which is now mandatory in Toronto, Ottawa and Windsor. However, the problems remain.

The Persistence of Medieval Methods

Beneath the cost and delay of a trial is a more sinister problem, which is that we don’t even know how accurate it is. Trial is a medieval method, which has roots in trial by combat and ordeals to determine who is right. In America trial is constitutionally recognized as an ordeal, since the Fifth Amendment calls it “jeopardy of life or limb.” Yet, trial is the terminus ad quem of a legal dispute and the very thing that motivates parties to settle or not.

Trial by combat (caution: blood and violence)

Trial by ordeal

Professors Ian Bushnell and John Morton (1971) argue that trial by combat persists in the form of trial by argument, which is safer for the ‘champions’ (i.e., the attorneys) but just as dangerous or more for the litigants. See Scott Ian Bushnell & John Desmond Morton, Cases and Materials on Evidence (London, ON: UWO Faculty of Law, 1971). This is because what it means to win a trial by combat is clear (the loser dies). Moreover, the winner of a trial by combat (usually the stronger, smarter and more experienced fighter) can be easier to predict than the winner of an argument, which can be subjective (even though the more educated, smarter and more experienced person normally wins). For instance, in the clip below Wimp Lo believes he won because he is bleeding, which is often the way arguments go. 

“I am bleeding, making me the victor!”

Francis Lee Bailey, a famous American defence attorney, sees trial as “the true substitute for gladiatorial combat,” which agrees with the views of professors Bushnell and Morton. He says:

Those who think the information brought out at a criminal trial is the truth, the whole truth, and nothing but the truth are fools. Prosecuting or defending a case is nothing more than getting to those people who will talk for your side, who will say what you want said.

Astrophysicist Neil deGrasse Tyson accuses the trial process of being “bred in debating teams” which “isn’t about who’s right, but who argues best”:

Tyson says a trial “isn’t about who’s right”

Comparison to Witch Trials in Ghana

In Ghana, witches are tried by slaughtering a chicken. If it falls with its legs down, the accused is supposed to be a witch. To the credit of this method, there’s at least a simple way to know how frequently slaughtered chickens fall legs down. It’s not as easy to know how often arguments in court lead to the right answer.

Witch trials in Ghana

Our Research Agenda

The trial process and alternative methods should be tested for accuracy. New methods should also be developed and tested for comparison. For instance, we are developing a method of scientific arbitration called corroborated polygraph testing (CPT) that we hope will someday be available on the market for clients who seek a scientific alternative to trial.

Corroborated Polygraph Testing (CPT)

Intro to CPT

In our article “Why Do You Always Go to Court? Why Don’t You Take the Polygraph?” we propose a method of scientific arbitration called corroborated polygraph testing (CPT). The method consists of polygraph testing to extract hidden crucial information (HCI) that can be verified, leaving no doubt about the truth of the matter. This method combines legal and scientific methods to:

    • ask legal questions with scientifically verifiable and legally admissible answers,
    • carry out legal investigations with the help of private investigators and
    • produce a legally and scientifically valid judgment.

Needless to say, the method can only work if:

    • there is HCI,
    • it is verifiable and
    • polygraph testing can reveal it.

The pun in the title “Why Don’t You Take the Polygraph” comes from the following ad campaign by the federally controlled passenger train company VIA Rail. A reminder to the government of Canada that it should also change its habits for the better.

VIA rail ad campaign: “Why don’t you take the train?”

Better than Torture

Whereas the method of trial evolved from trial by combat and ordeal, as a painless substitute for the ‘champions’ only (see article), CPT may be said to have evolved from the method of torture, as a painless substitute for the litigants. Indeed, one will notice that the reasoning behind CPT and torture is the same. Unlike trial by combat or ordeal, torture is not only pragmatic, but also accurate when the subject confesses HCI, which can then be verified.

Polygraph testing is basically a new kind of ‘torture’ that doesn’t cause the subject any pain or torment it in vain if there is no HCI. The inability to extract and verify HCI (presuming it’s there), by CPT or any other method, means the issue is not scientifically resolvable, which is a valid scientific resolution of the matter.

Arguments Against Polygraph Testing

Two common arguments against polygraph testing are that it usurps the fact-finding role of the judge or jury (R v Béland) and isn’t reliable. 

The first argument may be true to the extent that judges and juries tend to simply rely on the judgment of polygraphists concerning the credibility of testimony instead of their own judgment. However, this doesn’t say whether polygraph testing is accurate or not, which is the important question.

The second argument often goes that polygraph testing can’t accurately tell apart true or false answers to control and relevant questions or there isn’t a signature reaction that shows a person is lying or telling the truth. In fact, evidence shows that polygraph testing can accurately tell apart true or false answers to control and relevant questions. Moreover, it’s not so much a matter of detecting a signature reaction to telling the truth or lying as distinguishing between a normal and an abnormal reaction to a loaded question whose answer can be verified. If there is no abnormal reaction, then the HCI isn’t discoverable by polygraph testing or doesn’t exist. 

In other words, if there are no detectable signs of hidden information or ways to reveal it, any process (not just polygraph testing, but trial as well) is just pure prejudice and a waste of time. Polygraph testing is just a proven method to uncover some hidden information. Unlike torture and deception, it doesn’t involve illegal means of obtaining information.

How It Works

Instead of lawyers examining witnesses and arguing in front of a judge or jury, polygraph operators will interrogate the witnesses and private investigators will verify any HCI obtained.

One intrinsic disadvantage of this method is that the revealing instance (e.g., a spontaneous reaction to the suggestion the body is in the river) and discovery (e.g., finding the body in the river) may not be repeatable. However, this needn’t undermine confidence in the results, since one of the persons involved in the discovery must have possessed the HCI. The only options besides the suspect are the arbitrator(s), polygraphist(s) or private investigator(s), who have no interest or involvement in the matter.

The results of the investigation, including a discussion of the methods, will be peer reviewed by scientific and legal experts and published as “Cases of Scientific Arbitration” in an open-access journal online. This may be contrasted to the standard procedure where a jury gives a verdict without providing any reasons or a judge writes an opinion–which is neither methodical nor subject to peer-review–after hearing arguments in court.

The methodical character of CPT alone means it is a predictable and corrigible form of judgment.

The table below compares CPT and trial.

CPT vs. trial

Method CPT Trial
Process
  • Polygraph operators interrogate the witnesses to find HCI
  • Private investigators will carry out the crucial experiment
  • Parties call witnesses to testify
  • Lawyers cross-examine witnesses and argue in front of a judge or jury
Outcome
  • Results of the investigation, including a discussion of methods, are published in an open-access journal online
  • a transcript is sometimes produced
  • the judge writes reasons for its decision
  • the jury doesn’t write reasons for its decision (the jury box is a black box)

Potential Clientele

Unfortunately, the people who will be interested in this method of arbitration are parties in civil litigations who sincerely insist they are telling the truth and where a verifiable matter is at issue, because its demonstrated success in these cases is very high (over 90 percent), unlike the roughly 50 percent success rate of trials. Insincere litigants who dispute moot issues are not likely to agree to or pay for this method, unless they are compelled to do so, e.g., by the court or law, and are likelier to resort to more exploitable alternatives, such as mediation or negotiation, in order to reach a settlement.

While scientific arbitration would best apply to criminal proceedings, they are not subject to arbitration in the private domain. So, unless governments adopt this method for criminal proceedings, it will not be available as an alternative to a criminal trial, as it should be.

This method could benefit innocent accused persons–or accused persons against whom there is no evidence–if the courts would admit a CPT report on the accused as evidence. However, they won’t do this because it would be considered self-serving evidence and oath-helping. Moreover, only judges and juries can assess the credibility of a witness according to R v Béland.