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


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