Susan Crawford: Charlie, the William Weld Professor here at the Harvard Law School and a cofounder of the Berkman Center. And also of course the founder of the Poker Society inter­na­tion­al­ly, teach­es most impor­tant­ly, for this con­text, evi­dence, where he real­ly thinks about infor­ma­tion that’s nec­es­sary to per­suade. Information in con­text. How we deal with all these human bias­es and lim­i­ta­tions of our cor­po­re­al selves, and try to assess a soci­etal ver­sion of the truth col­lec­tive­ly. So Charlie, take us away towards lunch.

Charles Nesson: Jonathan Zittrain and I start­ed the Berkman Center as a means of claim­ing and reclaim­ing, build­ing, an open cyber space that would some­how inte­grate with all our lives in ways that would make life better. 

So, truthi­ness is a rhetor­i­cal pok­er game that the net lets peo­ple play. There is a truth that is self-evident. That all men are cre­at­ed equal. This moral truth defines Americans as a peo­ple. Built on this moral foun­da­tion, our founders wrote our Constitution in our name.

I am a teacher of evi­dence and the American jury. These are two class­es. Both are about the American means for deter­min­ing legal truth. In evi­dence, we study what legal truth is and how the law lord makes it, using jury tri­al. And then how the law lord plays it in the rhetor­i­cal pok­er game of truthi­ness that’s played with the oth­er lords of truth who vie for mind­space and cred­i­bil­i­ty. The jour­nal­ism lord, the sci­ence lord, the lord of reli­gion, to name just a few of the others.

[Nesson’s slides are not shown in this record­ing, but the fol­low­ing para­graph refers to the Necker cube illu­sion]

I’m not sure that this is…can you see this cube two ways? Can you all see it two ways? Is there any­one who can­not see it two ways? Is there any­one who can see it both ways at the same time? No. You can’t. Because to see it in a dif­fer­ent way you must change your point of view. So this becomes a metaphor for truth.

In the American jury class, we study the place of the American jury in American life. As con­ceived by our founders, the jury and its truthi­ness lay at the foun­da­tion of the American repub­lic, and at the core of American civic life. 

In the class we study the decline of the jury under the pres­sures of American cor­po­ratism and American racism. As you look at the Necker cube and con­tem­plate the two-sidedness of truth, you can ask your­self is there a truth we share? 

Well I believe there is a truth we share. I think it’s our sense of jus­tice. I think of the great Paul Newman depic­tion in The Verdict, his clos­ing argu­ment when he speaks to the jury and says, You are the law. I believe there is jus­tice in our hearts.” So the truth, the ver­dict. Vera dic­tos, speak the truth. That’s what juries are told to do. 

This is Bill Stuntz. Bill taught crim­i­nal jus­tice here for the last part of his career. Started the University of Virginia. At the age of 49 he learned that he had colon can­cer. And he set about then writ­ing the book that is the state­ment of his life, called The Collapse of American Criminal Justice. It’s a book I rec­om­mend to all of you. This is the hon­est state­ment of a man who was arch­ly con­ser­v­a­tive in his way. An evan­gel­i­cal Christian. Rock-ribbed Republican. But a book in which he tells us what he’d learned, and it’s in some way quite surprising.

His the­sis focus­es on what you might call the romance of American jus­tice with pro­ce­du­ral­ism. And it’s dis­con­nec­tion from the feel­ing of jus­tice. The extent to which law devel­oped through the Warren peri­od and after. The idea that to defend free­dom we do it with pro­ce­dure. But some­how look­ing at the pro­ce­dures in a way that at the end of the day make us blind to the result that comes out and is jus­ti­fied at the oth­er end. So that our pris­ons are burst­ing with dis­crim­i­na­tion. The sys­tem that used to be based with a jury at its core now works almost entire­ly in terms of pros­e­cu­to­r­i­al dis­cre­tion. So this is a pas­sion­ate book. 

I want to intro­duce you to a case and to an idea. 

…argu­ment next in case 101320, Blueford ver­sus Arkansas.
[clip of audio]

What is that? That’s the audio record­ing of the open­ing of a case that was argued in the Supreme Court of the United States a week ago Wednesday. All of the Supreme Court cas­es’ argu­ments are record­ed. And the oppor­tu­ni­ty to be in the envi­ron­ment of the argu­ment with this kind of life is remarkable.

So this was Blueford v. Arkansas. The issue before the Supreme Court a ques­tion of dou­ble jeop­ardy. And guy’s pros­e­cut­ed for first degree mur­der, with manslaugh­ter a less­er includ­ed offense. The jury is instruct­ed to con­sid­er the first degree mur­der charge first. And only if they all vote to acquit to move on down to the con­sid­er­a­tion of the manslaugh­ter charge.

They retire. They con­sid­er the cap­i­tal offense. They vot­ed unan­i­mous­ly to acquit. They move on down to the manslaugh­ter charge. They can’t agree. They hang. They come back in. The judge sends them out to recon­sid­er again. They come back in. We’re hung.” A mis­tri­al is declared. 

The issue is the pros­e­cu­tor now repros­e­cutes the defen­dant and includes in the pros­e­cu­tion first degree mur­der. And the defen­dant says, I was put in jeop­ardy before a jury of my peers already once. And they acquit­ted me.” And the issue before the Supreme Court is exact­ly this issue that Stuntz is focused on. Procedurally, there is no final ver­dict. In jus­tice, this man has been put in tri­al for his life before twelve of his peers and they vot­ed to acquit. 

Our cham­pi­on in this fight. You will rec­og­nize I hope Elana Kagan.

Elana Kagan: If you look at what the judge said, what the pros­e­cu­tor said, what the defense coun­sel said and then what the jury said, it’s clear that they all thought that they had to unan­i­mous­ly agree on some­thing before they could go to the next crime. And again, there’s no sug­ges­tion in what any­body said that they could go back up. 

Antonin Scalia: Is there any sug­ges­tion that they could­n’t go back up?

[unknown:] That is extra­or­di­nar­i­ly important.

Elana Kagan: And isn’t it usu­al­ly assumed that the jury is not fin­ished until it’s finished? 

Just a clip, but you get it. It’s Scalia against Kagan. It’s sub­stance against pro­ce­dure. And this is a fight that we will see in many forms, as the wis­dom of Bill Stuntz pen­e­trates fur­ther and fur­ther into our judi­cial thought.

With the net, we have the poten­tial to break through to truth of We the People.” The truth we look to in our­selves and we feel as fairness. 

So, there was at one point ear­li­er in my career a play with tele­vi­sion in which I mod­er­at­ed with Fred Friendly as pro­duc­er a series called The Constitution: That Delicate Balance. Fred Friendly I con­sid­ered to be a men­tor and a per­son who stood in back of us as we had the idea of the Berkman Center. It was ini­tial­ly an idea that had pub­lic edu­ca­tion very much in its mind. 

I believe that we are now at a point where we can reach for those aspi­ra­tions of pub­lic edu­ca­tion. And when I say pub­lic edu­ca­tion I mean it as pub­lic civic edu­ca­tion. Education about what it means, what it is, to be a cit­i­zen. What it is to par­tic­i­pate. What it is to actu­al­ly be part of build­ing a civic soci­ety and con­struct­ing it with your membership.

I taught my class yesterday—I’m about to go to the sec­ond class. Yesterday my stu­dents watched 12 Angry Men. Marvelous. And they watched it in the con­text of think­ing about the jury room as a rhetor­i­cal pok­er envi­ron­ment, where the idea is to pay atten­tion to the tech­niques by which one juror bul­lies anoth­er. And to the tech­niques by which the bul­ly­ing is over­come. It’s an oppor­tu­ni­ty I’m hop­ing to car­ry for­ward what I see as the wis­dom of Lady Gaga on the one hand; the hook that she rep­re­sents into the sen­si­bil­i­ty of, to me, a world. And the bril­liance of John Palfrey, whom I believe walks on water. I speak specif­i­cal­ly of the Digital Public Library of America and the poten­tial that I feel in it to treat library as com­mu­ni­ty space. As place where edu­ca­tion takes place. And for me that has to do with a com­bi­na­tion, an aspi­ra­tion, to teach law and pok­er through the net. And to have it be a par­tic­i­pa­to­ry event in which, God bless them, peo­ple come to libraries and play.

I’m now the prin­ci­pal inves­ti­ga­tor of a Berkman project called Mindsport Research Project. It’s a con­cep­tu­al­iza­tion of strate­gic games as some­thing as impor­tant for kids to engage in as phys­i­cal sport. And it starts with Connect Four, and check­ers, and chess and bridge, and pok­er. And the idea of imag­in­ing cyber­space not as just a vir­tu­al space but as an inte­gra­tion of the vir­tu­al and the real. The online envi­ron­ment that would sup­port gath­er­ings and com­mu­ni­ty envi­ron­ments, where peo­ple play the games face to face. That they learn and enjoy to play online. And to use that as the core of an intel­lec­tu­al spine to teach the way pok­er in the real world actu­al­ly works. So, that’s my inflec­tion point. Thank you all very much. Please have lunch.

Further Reference

Truthiness in Digital Media event site