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BRAIN SCIENCE, PERSUASION ETHICS & THE SINGULARITY Charles Herring, Jr. Herring & Irwin, L.L.P.

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Presentation on theme: "BRAIN SCIENCE, PERSUASION ETHICS & THE SINGULARITY Charles Herring, Jr. Herring & Irwin, L.L.P."— Presentation transcript:

1 BRAIN SCIENCE, PERSUASION ETHICS & THE SINGULARITY Charles Herring, Jr. Herring & Irwin, L.L.P.

2 Don’t Lie-Cheat-Steal Rules Disciplinary Rules: Disciplinary Rules: 3.01 – frivolous positions 3.01 – frivolous positions 3.03 – false statements, fact or law 3.03 – false statements, fact or law 3.04 – perjury, false evidence 3.04 – perjury, false evidence 4.01 – false statements to others 4.01 – false statements to others 8.04(a)(3) – deceit, dishonesty, fraud, misrepresentation 8.04(a)(3) – deceit, dishonesty, fraud, misrepresentation

3 Restatement of the Law Governing Lawyers § 116 cmt. b Witness preparation may include: discussing the witness’s recollection and probable testimony discussing the witness’s recollection and probable testimony

4 revealing to the witness other testimony or evidence that will be presented and asking the witness to reconsider the witness’s recollection or recounting of events in that light revealing to the witness other testimony or evidence that will be presented and asking the witness to reconsider the witness’s recollection or recounting of events in that light rehearsal of testimony rehearsal of testimony suggesting choice of words suggesting choice of words

5 Resolution Trust Corp. v. Bright, 6 F.3d 336 (5 th Cir. 1993) Sanctions imposed: disbarment, $110,000 penalty, removal from representation. RTC attorneys who allegedly had attempted to persuade a witness to sign an affidavit containing statements that the witness had not made.

6 5 th Cir. rev’d: “It is one thing to ask a witness to swear to facts which are knowingly false. It is another thing, in an arms-length interview with a witness, for an attorney to attempt to persuade her, even aggressively, that her initial version of a certain fact situation is not complete or accurate.”

7 “ Disciplinary Rules 3.04(b) and 4.01(b) concern the former circumstance, not the latter.... A court obviously would be justified in disbarring an attorney for attempting to induce a witness to testify falsely under oath....”

8 Equal Employment Opportunity Commission v. Mitsubishi Motor Manufacturing of America, Inc., No (C.D. Ill. 10/23/97) EEOC’s massive sex discrimination case against Mitsubishi EEOC’s massive sex discrimination case against Mitsubishi EEOC sent a “Dear Class Member” letter to 60 women Mitsubishi was going to depose. Mitsubishi moved for sanctions. EEOC sent a “Dear Class Member” letter to 60 women Mitsubishi was going to depose. Mitsubishi moved for sanctions.

9 The letter contained “memory joggers” that it “suggest[ed]” each woman begin thinking about to “[c]onsider and try to remember whether or not you have experienced or observed such activities:

10 SEXUAL CONDUCT sexual jokes, unwanted nicknames or greetings sexual jokes, unwanted nicknames or greetings propositions, requests for sex, requests for dates propositions, requests for sex, requests for dates unwelcome touching, groping, brushing up against unwelcome touching, groping, brushing up against circulation of pornographic photos, drawings circulation of pornographic photos, drawings

11 HOSTILITY TOWARDS WOMEN anti-women statements, such as ‘women don’t belong in the plant,’ ‘why aren’t you home?’ etc. anti-women statements, such as ‘women don’t belong in the plant,’ ‘why aren’t you home?’ etc. women getting less favorable rotations/assignments women getting less favorable rotations/assignments women getting less training or cooperation or help women getting less training or cooperation or help

12 Mitsubishi argued the letter would “taint” the testimony of the women. Mitsubishi argued the letter would “taint” the testimony of the women. Dueling experts Dueling experts

13 Held: Mitsubishi’s sanctions motion denied. “While certainly suggestive, the letter does not go beyond the bounds of the privilege that attends attorney-client communications related to deposition preparations.” Held: Mitsubishi’s sanctions motion denied. “While certainly suggestive, the letter does not go beyond the bounds of the privilege that attends attorney-client communications related to deposition preparations.”

14 “In fact, the ‘memory joggers’ that Mitsubishi finds so objectionable are probably, in most cases, no more suggestive than Mitsubishi’s own communications with its people before a deposition.... The ‘truth’ told at depositions... is rarely the product of an unprepared witness.”

15 “Lawyers routinely prepare their clients for depositions by focusing the client on the particular facts of the case that have legal significance. Although lawyers cannot ethically tell or allow their clients to tell a lie, suggesting subject matters to focus on in telling their story is surely what every competent lawyer, including the Mitsubishi lawyers, do to prepare their clients for a deposition.”

16 Ibarra v. Baker 2009 WL (5 th 2009) Aff’d tr ct findings & discipline: attys “improperly coached witnesses” Aff’d tr ct findings & discipline: attys “improperly coached witnesses” Attys disqualified, they and Harris County fined $10,000 Attys disqualified, they and Harris County fined $10,000 §1983 case – defense was that Ds had “reasonable suspicion” for detention/arrest §1983 case – defense was that Ds had “reasonable suspicion” for detention/arrest D attys coached witnesses thru a consultant D attys coached witnesses thru a consultant

17 “Implanted” terms Attys used expert/consultant, Rodriguez, commander Tx Dept Public Safety Attys used expert/consultant, Rodriguez, commander Tx Dept Public Safety Terms: “high crime area” “retaliation” – linchpin of defense Terms: “high crime area” “retaliation” – linchpin of defense Rodriguez had one-on-one meetings with Ds Rodriguez had one-on-one meetings with Ds One D took notes to depo that closely tracked Rodriguez’s points One D took notes to depo that closely tracked Rodriguez’s points

18 D Ct: Attys used “Rodriguez to alter the officers’ deposition testimony substantively” D Ct: Attys used “Rodriguez to alter the officers’ deposition testimony substantively” 5 th Cir: aff’d: the evidence was “a bit scant” but did not show the trial court’s findings were “mistaken” 5 th Cir: aff’d: the evidence was “a bit scant” but did not show the trial court’s findings were “mistaken”

19 Monroe H. Freedman, Understanding Lawyers’ Ethics (1990) “An essential step in competently litigating a case is what is called ‘preparing,’ ‘coaching,’ or ‘woodshedding’ one’s witnesses.... ‘It is axiomatic. Everyone who testifies has to be woodshedded.’”

20 “For example, the poorly educated day laborer who has suffered an injury, who can only say, ‘It hurt bad,’ must be helped to articulate what the pain is like, when it is present, and how it interferes with work, sleep, family life, and recreation.... The relevant details must then be sufficiently rehearsed to assure that no material evidence will be overlooked in testimony at trial, where leading questions will not be permitted.”

21 “[T]he process is a highly creative one, affecting what is ‘remembered’ as much as what is ‘forgotten.’... In fact... [memory] grows. Although the initial perception may fade, ‘every time we recall an event we must reconstruct the memory, and so each time it is changed— colored by succeeding events, increased understanding, a new context, suggestions by others, other people’s recollections.’”

22 “A witness may reconstruct events without being … aware that he is either supplementing or falsifying the data of perception.” “Lawyers should be aware that … even ‘straightforward questions of fact’ may significantly affect what a witness remembers, and leading or loaded questions can be particularly powerful in inducing good faith errors in memory ….”

23 “This procedure presents a risk of prompting the client to falsify evidence, but it is necessary to draw out truthful information that the client might have overlooked or might consciously or unconsciously be withholding.”

24 Michael Miller, Working with Memory 19 Litig. 10 (Summer 1993) “Despite the psychological truth of the matter, when a witness does not demonstrate expected confidence or recollection on a point, jurors tend to underestimate the accuracy of his other memories.”

25 David Eagleman, Incognito: The Secret Lives of the Brain (2011) “[M]ost of what we do and think and feel is not under our conscious control.”

26 Coffee Station Experiment Honor-pay system for coffee/tea. Honor-pay system for coffee/tea. Researcher tracked payments. Researcher tracked payments. Small sign of cost—changed decorative photos at top. Small sign of cost—changed decorative photos at top. Even-numbered weeks: flowers. Even-numbered weeks: flowers. Odd-numbered: watching eyes.

27 Coffee Station (cont.) Results: collected 3 times as much $ odd-numbered (watching eyes photo) weeks. Results: collected 3 times as much $ odd-numbered (watching eyes photo) weeks. No office worker even remembered the decorative photos. No office worker even remembered the decorative photos.

28 EXPERIMENTS ON THE EFFECT OF SUGGESTIVE AND LEADING QUESTIONS

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30 Two groups of subjects were shown a photo of a basketball player, and then asked questions about the player’s height. First group: How tall was the basketball player? Result (mean): First group: How tall was the basketball player? Result (mean): 6' 7” Second group: How short was the basketball player? Result (mean): Second group: How short was the basketball player? Result (mean): 5' 9"

31 Subjects shown a film of a multi-car accident, in which one car turned right to enter a stream of traffic, causing a five car bumper-to-bumper collision. Questions were asked to 2 groups, about 3 things that were shown in the film and 3 things that were not shown: First group: “Did you see a... ?” First group: “Did you see a... ?” Second group: “Did you see the... ?” Second group: “Did you see the... ?”

32 Results: Whether the item was present or not, the first group (“a”) was twice as likely as the second group (“the”) to answer “I don’t know.” The second group was twice as likely to say “Yes” to identify something as being present that was not present.

33 El Al plane crash in Amsterdam, engines fail, crashes, 39 die 2 engines fail, crashes, 39 die 11-story apt. building 11-story apt. building Dutch psychologists study Dutch psychologists study

34 “Did you see the television film of the moment the plane hit into the apartment building?” 55% - Yes Follow-up study: Follow-up study: 66% - Yes Details recalled: speed, angle of impact, fire at impact, plane body just after collision Details recalled: speed, angle of impact, fire at impact, plane body just after collision

35 Problem: no such film existed All results were from suggestive questions, post- crash coverage, conversations at the time All results were from suggestive questions, post- crash coverage, conversations at the time

36 The Singularity

37 Ray Kurzweil Director of Engineering, Google Director of Engineering, Google Winner, National Medal of Technology Winner, National Medal of Technology Inventor: Inventor: CCD Flatbed Scanner CCD Flatbed Scanner First text-speech reading machine for the blind First text-speech reading machine for the blind Omni-font optical character recognition Omni-font optical character recognition First music synthesizer for orchestral instruments First music synthesizer for orchestral instruments National Inventors Hall of Fame National Inventors Hall of Fame Bill Gates: “He’s a visionary thinker and futurist.” Bill Gates: “He’s a visionary thinker and futurist.” 7 books, 5 best-sellers, 2 movies 7 books, 5 best-sellers, 2 movies Keynote: SWSW (2012); LawTech Future (2013) Keynote: SWSW (2012); LawTech Future (2013)

38 Exponential Rate of Technological Change Universe – 14 billion years Universe – 14 billion years Earth – 4.5 billion Earth – 4.5 billion Genus Australopithecus – 4 million Genus Australopithecus – 4 million Homo habilis – 2.5 million Homo habilis – 2.5 million Homo sapiens neanderthalenis – 400,000 Homo sapiens neanderthalenis – 400,000 Homo sapiens sapiens – 200,000 Homo sapiens sapiens – 200,000

39 Exponential Rate of Technological Change Printing press – 400 years to reach mass audience Printing press – 400 years to reach mass audience Phone – 50 years to reach 25% of Americans and Europeans Phone – 50 years to reach 25% of Americans and Europeans Cell phone – 7 years Cell phone – 7 years Facebook – 3 years Facebook – 3 years

40 Exponential Rate of Technological Change MIT first campus computer – cost tens of millions of $$$; occupied half a building MIT first campus computer – cost tens of millions of $$$; occupied half a building Current smart phone: Current smart phone: Thousands of times more powerful Thousands of times more powerful A million times cheaper A million times cheaper 100,000 times smaller 100,000 times smaller Several billion-fold increase in price-performace Several billion-fold increase in price-performace 25 years: computers a billion times more powerful, size of red blood cells – easily implanted in brain 25 years: computers a billion times more powerful, size of red blood cells – easily implanted in brain

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43 Dr. Theodore Berger Director, Center for Neural Engineering, USC Director, Center for Neural Engineering, USC Developer, Brain or Cognitive Prostheses Developer, Brain or Cognitive Prostheses Work on damaged hippocampus – forms new memories – short term – long term memory (STM to LTM) Work on damaged hippocampus – forms new memories – short term – long term memory (STM to LTM)

44 Dr. Theodore Berger Rats trained to press levers, in non- matched sequence, for water Rats trained to press levers, in non- matched sequence, for water Brain signals recorded Brain signals recorded Converted to input-output spatial- temporal mathematical codes Converted to input-output spatial- temporal mathematical codes

45 Dr. Theodore Berger Then hippocampus drugged Then hippocampus drugged Rats can’t remember Rats can’t remember Artificial-hippocampus implant replicates signals Artificial-hippocampus implant replicates signals Rat remembers – and can enhance normal memory Rat remembers – and can enhance normal memory

46 Dr. Theodore Berger “Artificial memories created by a box and sent through the brain” Potential applications: Traumatic injury victims Traumatic injury victims Alzheimer’s victims Alzheimer’s victims “Enhance” memory [witness preparation?] “Enhance” memory [witness preparation?]

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49 Daniel Reisel: Neuroscience of Restorative Justice Daniel Reisel: Neuroscience of Restorative Justice Studied violent psychopaths in prison Studied violent psychopaths in prison Lacked phyisical empathy –heart-rate increase, sweating Lacked phyisical empathy –heart-rate increase, sweating Empathy – centered in brain’s amygdala Empathy – centered in brain’s amygdala Smaller amygdala in these subjects Smaller amygdala in these subjects Brain changing – interacting with victims Brain changing – interacting with victims

50 Dr. Kevin Warwick Prof. of Cybernetics, University of Reading Prof. of Cybernetics, University of Reading Human implants for transmission Human implants for transmission

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57 ENHANCEMENT

58 Memory Memory Communication Communication Senses Senses Multi-dimenstional thinking Multi-dimenstional thinking Extending the body Extending the body Speed of thinking Speed of thinking

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62 Functional MRI Studies Jack Gallant Brain scan: thousands of photos, clips Brain scan: thousands of photos, clips fMRI to study brain activity – blood flow, neural firing fMRI to study brain activity – blood flow, neural firing Voxels=volume pixels of brain activity Voxels=volume pixels of brain activity Neural decoding Neural decoding Decoding key results Decoding key results

63 Functional MRI Studies Objects: hammer v. house: 90% accuracy Objects: hammer v. house: 90% accuracy Gallant lab: 2 hours of movie trailers – computer reference library of 1000s of hours of YouTubes – accurate on flow, colors, shapes – weak on details (facial features) Gallant lab: 2 hours of movie trailers – computer reference library of 1000s of hours of YouTubes – accurate on flow, colors, shapes – weak on details (facial features)

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65 Mary Lou Jepsen Head of Display Division, Google X Head of Display Division, Google X Her own brain surgery Her own brain surgery Imaging enhancement Imaging enhancement

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72 “We’re going to be able to dump our ideas directly into digital media” “We’re going to be able to dump our ideas directly into digital media” Bypassing human language Bypassing human language Prediction – 5 to 15 years Prediction – 5 to 15 years

73 “How will we learn to deal with the truths of unfiltered human thought?” “How will we learn to deal with the truths of unfiltered human thought?” “We need to learn how to take this step together.” “We need to learn how to take this step together.”

74 Court Applications “Judges could use them to sneak a look into suspects’ brains by having them reenact the experience and reading their visions.” “Judges could use them to sneak a look into suspects’ brains by having them reenact the experience and reading their visions.” “Such machines could also determine whether someone using the insanity defense is faking it, or whether someone claiming self-defense truly feared for his life.” “Such machines could also determine whether someone using the insanity defense is faking it, or whether someone claiming self-defense truly feared for his life.”

75 Court Applications John Villasenor, Could the Government Get A Search Warrant for Your Thoughts, The Atlantic (July 26, 2013) John Villasenor, Could the Government Get A Search Warrant for Your Thoughts, The Atlantic (July 26, 2013) Daniel D. Langleben & Jane C. Moriarty, Using Brain Imaging for Lie Detection: Where Science, Law, and Policy Collide, Psychology, Public Policy, and Law (2012) Daniel D. Langleben & Jane C. Moriarty, Using Brain Imaging for Lie Detection: Where Science, Law, and Policy Collide, Psychology, Public Policy, and Law (2012)

76 US v. Semrau, 693 F.3d 510 (6 th Cir. 2012) Healthcare fraud prosecution Healthcare fraud prosecution D offered fMRI from Dr. Steven Laken, Pres. Cephos Corp. D offered fMRI from Dr. Steven Laken, Pres. Cephos Corp. Ev.: Dr. Semrau generally truthful when testified he tried to follow proper billing practices in good faith Ev.: Dr. Semrau generally truthful when testified he tried to follow proper billing practices in good faith

77 US v. Semrau, 693 F.3d 510 (6 th Cir. 2012) Ct app upheld d ct’s exclusion Ct app upheld d ct’s exclusion The technology not “fully examined in ‘real world’ settings” The technology not “fully examined in ‘real world’ settings” Particular test was “not consistent with tests … in research studies” Particular test was “not consistent with tests … in research studies” R 403: prosecution didn’t know of testing in advance; solely to bolster witness credibility; did not indicate whether truthful on any single statement R 403: prosecution didn’t know of testing in advance; solely to bolster witness credibility; did not indicate whether truthful on any single statement

78 US v. Semrau, 693 F.3d 510 (6 th Cir. 2012) D ct held met first 2 Daubert factors: D ct held met first 2 Daubert factors: Technique can be/has been tested Technique can be/has been tested Technique has been subjected to peer review and publication Technique has been subjected to peer review and publication But not other 2 factors: But not other 2 factors: Identification of error rates Identification of error rates Not generally accepted in the field Not generally accepted in the field

79 US v. Semrau, 693 F.3d 510 (6 th Cir. 2012) “The prospect of introducing fMRI lie detection results into criminal trials is undoubtedly intriguing, and, perhaps, a little scary.”

80 NeuLaw.org Baylor College of Medicine et al. Baylor College of Medicine et al. Initiative on Neuroscience and the The Law Initiative on Neuroscience and the The Law David Eagleman, Director; Incognito: The Secret Lives of the Brain David Eagleman, Director; Incognito: The Secret Lives of the Brain Issues Issues Crime & big data Crime & big data Assessing offender risk Assessing offender risk Eyewitness identification Eyewitness identification

81 Hiroshi Ishiguro Director, Intelligent Robotics Lab, Osaka University Director, Intelligent Robotics Lab, Osaka University Creator of Geminoid Creator of Geminoid Best Humanoid awards Best Humanoid awards

82 Hiroshi Ishiguro

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84 Ray Kurzweil The Singularity Is Near The Singularity Is Near “There will be no distinction, post- Singularity, between human and machine …. Most significant will be the merger of biological and nonbiological intelligence ….” “There will be no distinction, post- Singularity, between human and machine …. Most significant will be the merger of biological and nonbiological intelligence ….”

85 When will the Singularity arrive? By 2020, brain-computer interface will allow control of android avatars (e.g., allowing work in dangerous environments; use by disabled medical patients) By 2020, brain-computer interface will allow control of android avatars (e.g., allowing work in dangerous environments; use by disabled medical patients)

86 When will the Singularity arrive? 2030: 2030: Human longevity vastly extended. Human longevity vastly extended. Full-immersion virtual reality involving all senses (a la “The Matrix”). Full-immersion virtual reality involving all senses (a la “The Matrix”). Vastly enhanced human intelligence. Vastly enhanced human intelligence. Transfer of individual consciousness to artificial carrier. Transfer of individual consciousness to artificial carrier.

87 When will the Singularity arrive? 2045: 2045: The Singularity arrives. The Singularity arrives. Nonbiological intelligence will be one billion times more powerful than today’s human intelligence. Nonbiological intelligence will be one billion times more powerful than today’s human intelligence.

88 THANKS. CALL OR WRITE ANY TIME CHUCK HERRING


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