Posts Tagged ‘judges’

Do Proponents of “Originalism” Have Healthy Memories?

February 6, 2017

Originalism refers to the notion that judges should attempt to interpret the words of the Constitution as they were understood at the time they were written.  The first question is how can judges do this?  The judges need to accomplish both time travel and mind reading.  That is, they need to travel back in time and somehow understand what these now deceased individuals were thinking.

But even if this could be accomplished, is it desirable?  According to the Constitution at that  time, slavery was legal, but blacks were counted as two-thirds of a human being, and woman could not vote.  So what is the point of going back in time?  Textualists are judges who only consider  the words of the law being reviewed should be considered, neither the writers’ intent nor the consequences of the decision.  So words rather than their intended meanings and results are what is important?

Fortunately, these gross injustices were corrected by amendments to the Constitution. This was the result of the Founding Fathers realizing that there would be a need to amend the Constitution.  It seems clear that they viewed the Constitution to be a fluid document that would need to be changed over time.

So why do these concepts still prevail? Individuals who advocate these concepts are actually insulting the Founding Founders.  HM is certain that if Founding Fathers were asked about this mind reading task, they would tell people of the future not to try to travel back in time.  HM is able to make this assertion from the reading of the Constitution without having to take recourse to time travel and mind reading.

Unfortunately, these beliefs of originalism and textualism are litmus tests for some Senators in approving Supreme Court nominees.  HM thinks that any judge holding to these beliefs does not belong in Traffic Court, much less the Supreme Court.  This acceptance of originalism provides a key insight as to the break between the legal system and justice.

In case the reader has still not inferred the answer to the question posed in the title, the answer is no.

© Douglas Griffith and healthymemory.wordpress.com, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Douglas Griffith and healthymemory.wordpress.com with appropriate and specific direction to the original content.

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Why False Confessions Trump Evidence

June 30, 2015

Perhaps the most blatant example of the title  is the case of the Central Park Five.  This case attracted enormous attention as it supposedly characterized “wildings”  that were taking place.  Here five black men were convicted of raping and brutalizing a young woman.  There is a video piece on this that I encourage you to watch should you get the opportunity. You will see how the police interrogated these suspects, not with the hope of getting at the truth, but rather at getting them to confess, which they did.  However, it was quite clear from the physical evidence that the police were intent on getting confessions rather than seeking the truth.  The physical evidence at the scene indicated that this was not a gang rape.  And the DNA evidence, which is regarded as close to a gold standard as one can find for legal proceedings, completely exonerated these five men.

One of the reasons that confessions are regarded so highly is that juries ask themselves “Why would individuals incriminate themselves?  Don’t they know about their Fifth Amendment rights?
If you have viewed or get the opportunity to view the interrogations of the Central Park Five  you will see the extreme pressure these individuals are placed under in uncomfortable conditions for prolonged periods of time.  Moreover, there is psychological research showing that people can be falsely convinced that they did actually commit the crime (see the healthy memory blog post “False Memories Leading to Confessions” ).  And they are told that the investigation will continue, so being desperate or wrongly convinced, they reason that eventually truth will out and that they will be exonerated.

Research has indicated why these false confessions are so powerfully persuasive.  Common sense informs people that people will not incriminate themselves, these confession contain credible narratives (which often are created during the interrogation process), these narratives corrupt other evidence and undermine the truth-seeking process.

So what can be done about this?  First of all,  people, police, prosecutors, judges, juries, and appeals courts should be made aware of this research and question the reliability of these confessions.  Interrogations should be videotaped and reviewed.  There are recommended procedures for these interrogations and these procedures need to be followed.