During the past week Ive been preoccupied with preparing a PowerPoint talk about Crawford to a training conference for victims advocates and allied professionals. Its not easy trying to make Crawford make sense to non-lawyers (or to lawyers, either, but then you dont need to: lawyers have been trained to accept without questioning arbitrary pronouncements from the Supreme Court).
The problem isnt so much the theory behind Crawford, which is elegant in its reductionist and intellectually dishonest (see post 238) way. Its how the Supreme Court has implemented its revolution.
Anyway, trying to think of ways to explain what our courts have recently been doing to domestic violence and child abuse cases – because thats what Crawford is all about, practically speaking (see post 148) (well, and DWI, too) – has been a useful exercise. Ive finally realized something I should have seen many years ago, which is the extent to which our current criminal law system relies on treating different things as if they were the same.
Its a type of pretend-algebra: if suppressing evidence equals X, and protecting a defendants constitutional rights equals Y, then X = Y.
Which means, if you were paying attention in 8th grade (and most future lawyers could still get decent grades in math right up to the second semester of that year), 2X = 2Y.
I think that, and nothing intellectually more sophisticated, is in the back of many decisions in the criminal law. It can be expressed in a good old-fashioned syllogism:
Protecting the constitutional rights of the accused is a noble and praiseworthy thing for a judge to do, especially if the crime is particularly atrocious.
A judge protects the accuseds constitutional rights by hiding evidence from the jury.
And so, therefore, a judge acts most nobly and is most worthy of praise when …
The problem, of course, is that in the real world X equals Y only in the same sense that shopping at Whole Foods equals living a radically-simple, eco-friendly lifestyle. Or, say, invading Iraq equals smashing al-Qaeda.
The constitutional algebra of X = Y not only confuses the means and the end, but assumes a connection between the two based solely on the judiciarys good intentions. Or wishful thinking. Or willful self-deception. Or contempt for the weaklings who allow themselves to become victims. Or whatever you want to call it.
In short, it involves treating two different things as if they werent different, refusing even to consider the possibility that theyre not the same, and proceeding from there.
I was started down this line of thought by, of all things, the back pages of my local alternative free weekly, the Albuquerque Alibi. Back among the phone-sex ads and personals that seemed designed to make the bored Flying Star patron wonder whether its more likely to be a scam or just a joke, the paper runs Cecil Adams Straight Dope.
Far be it from me to question the font of all knowledge. But still. Recently the Alibi ran his column recycling the studies that purport to show that sugar doesnt have any effect on the behavior of children, contrary to the observations of millions upon millions of parents – as well as of anyone who has gone without lunch and then, mid-afternoon, washed down a doughnut with a Dr. Pepper.
Ah, but thats real life. The studies Cecil cited put mothers and children together in artificial laboratory conditions, and then gave the children either sugar or artificial sweeteners, and then tried to see if the mothers could tell which group their kids belonged to.
Now, it seems obvious to me that: (a) theres no reason to assume without evidence that artificial sweeteners have no effect on childrens behavior; and (b) no one cares whether sugar has a different effect than artificial sweeteners – the question is whether it has a different effect than real food; and (c) the kids behavior will change when in unusual situations, such as those of the experiments; and (d) the parents behavior will change when told to watch for signs that their child is beginning to get out of control, especially if they feel their parenting skills are being judged by the psych students or fellow-parents; and so on.
The studies answer question A: Whether parents can tell if their kid has been given a sugary drink or an artificially-sweetened drink in highly artificial conditions. The premise of Cecils column (and, of course, the studies he was writing about) is that the answer to question A equals the answer to question B: Whether a kid can sit around the house all day and eat tons of sugary things without getting all weird.
Personally, I think an argument could be made that the two questions are not actually the same.
A similar example, also from the fringes of science, was the recent meta-study, given huge publicity, that purported to show the inefficacy of SSRI antidepressants in treating depression, contrary to the experience of millions of patients and mental health providers.
But if you read down to the 9th paragraph of this article, youll find that what the meta-study really examined was changes in patients scores on "the Hamilton scale." The study concluded – and I have no reason to doubt the validity of the conclusion, for all that I wonder if the authors had an agenda – that treatment with antidepressants generally doesnt result in significant changes in the Hamilton scale.
(Possible agendas involve the secrecy-bordering-on-wholesale-deception of the drug companies – more here – and the allocation of public health monies in the U.K. as between talk therapy and drug therapy.)
Now, the Hamilton scale is a screening device used by mental health professionals to determine if a person is seriously depressed. It assigns the patient a score, varying from 0-2 to 0-4, on 21 subjects such as suicidal ideation, and then adds up the scores.
The Hamilton scale is doubtless useful for a triage nurse trying to figure out whether a person is an immediate danger to him- or herself. But its an extremely crude method for measuring the emotional and mental state of a human being. Its a little like asking your colleague if she prefers Italian or Chinese food – good information to have when choosing a restaurant for lunch, but not all that revealing about the persons inner life.
So what the meta-study was measuring was changes in patients responses to simple questions repeated over time. The premise of the meta-study is: when M equals changes in the patients answers to repeated questions, and N equals the patients mental health, then M = N.
My only objection to the study is: No, it doesnt.
At this point in our legal history, Im afraid that too many judges and staff attorneys have too much emotionally invested in the idea that X =Y to begin questioning the equation now. Because if it turns out that concealing evidence from the jury isnt the same thing as protecting a defendants constitutional rights, then they have a lot of splaining to do.
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