Behavioral science research; Behavioral science and law, part two

The following program is produced by the University of Michigan broadcasting service under a grant he made from the National Educational Television and Radio Center in cooperation with the National Association of educational broadcasters. A new approach to the law a program from the series human behavior social and medical research produced by the University of Michigan Broadcasting Service. These programs have been developed from interviews with men and women who have the too often unglamorous job of basic research. Research in medicine the physical sciences social sciences and the behavioral sciences. Occasionally you will hear what may seem like a strange or unfamiliar. These are the sounds of the participants office is a laboratory or clinic where the interviews were recorded. The people you will hear today are the Honorable David L. bass a lot circuit judge of the United States Court of Appeals in Washington D.C. Dr. Philip que Roche a psychiatrist from Philadelphia and Dr. Harry Calvin Jr. of the law school of the University of Chicago.

Last week when judged by Salon describe the historic aspects of law and human behavior he described a code followed by the Washington D.C. courts whereby persons were given detention not in prisons or jails but rather in a state supported hospital where they were treated for an illness rather than punished through confinement for a crime after they had committed offense against society. This prompted my first question today. Will this new approach to laws show a lack of trained personnel for this great task judged by Salon replied yes and not only that but even after we have them and even after we have adequate hospitals. And even have to we the public come to understand something about the phenomena of behavior. We have to go much deeper than that because the psychiatrist. Can Tell us about the main's. Condition. And he can point out

to us. Some of the causes perhaps. But if. The. Particular behavior is related for example to. An environment of the slums. Then we have to deal with the slums. A psychiatrist can't lift the person away from his and meet you and give him. A code of ethics and moral code to which the person cannot relate. The psychiatrist is limited. And I don't think it's fair to the psychiatrist or fair to the public. To overemphasize. The role of the psychiatrist in this process. He is an essential person. His knowledge is essential. But it is only a step. I suggest that one of the reasons why

we hang on to the idea of punishment because it's easy. We don't have to listen to the behavioral science just. Trouble ourselves to understand him. And then we don't have to trouble ourselves with the conditions which produce the criminal population such as deprivation and lack of. Educational opportunity. Health. Lack of economic opportunity jobs and so forth. These are the problems that we can't get away from even psychiatrists can't solve those problems for us in Judge about salons comments he refers to the psychiatrist frequently a psychiatrist an expert witness. The judge said that's another way of putting that is what light is the psychiatrist by training experience able to provide for evaluating and understanding the behavior of the accused. I would say that the psychiatrists training and experience are largely in the origins and development of

behavior. As I see it. This qualifies him as an expert investigator. A Sherlock Holmes if you will in the realm of psychic phenomena. For whom each item of behavior is another whodunnit or what done it as you please. He is qualified to look for the motivational perpetrator of behavior. He can see the significance of clues and draw inferences based upon his expertise. His skill. Is in uncovering assembling and evaluating behavioral data. Now this is much like the way Sherlock Holmes worked. In tracing a crime to its perpetrator. He didn't stop after determining that the crime. Should be labeled a murderer or should be labeled manslaughter or some other. Crime under the law. And that is one of the objections I have to some of the psychiatric testimony.

Most psychiatrists get on the stand and say the man is suffering from schizophrenia. Or he's suffering from a psychosis. Or from psychopathy or neurosis. This doesn't tell us very much. It is simply a conclusion. Now whether the psychiatrists conclusions. Are sound depend upon. The origin and development. That he can explain with respect to the particular behavior. His conclusions are sound convincing. Only when. He shows us the facts on which he relied on the logic he used in drawing inferences from those facts. As one judges said. And I quote to make a reasonable relationship between a disease and a certain act. The trier of facts must be informed with some particularity. This must be done by testimony.

Unexplained medical labels such as schizophrenia paranoia and so on are not enough. Description and explanation of the origin development. And manifestations of the alleged disease are the chief functions of the expert witness. The chief value of an expert's testimony in this field as in all other fields rests upon material from which his opinion is fashioned. And the reasoning by which he progresses from his material to his conclusions. It is in the explanation of the disease and its dynamics. That is how it occurred developed and affected the mentality and emotional processes of the defendant. It does not lie in his mere expression of conclusions unquote. That's when the lawyer restricts examination of the expert to eliciting labels or conclusion statements. He betrays an ignorance of the

psychiatrist role in the legal process. As does the psychiatrist when he allows this to happen. Just. Because. When psychiatrist limit their testimony. In this fashion. They are telling us. Nothing. That's really helpful. Before symptoms are the result not the cause of behavioral disorders and labels are just labels. If juries are told about motivations organ balls which generate particular behavior. And in such a way that they can dent identify on the basis of their own real life experiences. They will understand the phenomenon of behavior in the familiar terms of cause and effect. And if they see these impulses. As being generated below the conscious level of the individual. It is likely I'm sure. To influence their perspective of the behavioral event. In any

event. This kind of explanation brings the whole business down to earth. We're juries as ordinary human beings can see. That antisocial and destructive behavior is not solely the work of the devil. And if it was explained to us how mines become ravelled. We have protests to perhaps touch the secret in the promise of unraveling them. Is there any probability that more crimes and misdemeanors could occur when persons have the knowledge that they would be treated with sympathy and understanding rather than with more drastic mean. Again judge by Salon commented. My own reaction is. That people who commit these crimes do not think about such matters. And the fact of the matter is that here in the District of Columbia where we've had this broadened rule of responsibility in operation now for some five years. Our experience. Shows. That. 90 out of

90 persons acquitted by reason of insanity. Some twenty five. Have already been released. And out of that 25 only two. Have gotten into serious trouble since then. Now it's quite clear. Unmistakably clear. That. If this experience. Is valid. That. We are way ahead of the game because there is no penitentiary in the country. That can claim such a small percentage of recidivism. And. I am neither proud nor shamed of the fact that under the operation of this rule. People who have been acquitted by reason of insanity. And who must therefore under

our law. Be committed to a mental institution. And these people. Have served on the whole more time. Then I don't like to say serve more time they have been confined in the hospital. For a greater period than they would have been confined in a penitentiary. I I don't think that the length of confinement. Is the test of Cura by any means. And I don't think that we have either the facilities or the knowledge to affect. The number of cures that we want to effect. But unless we start. Make an attempt. To. Make a start to. Try to do this we're never going to get anyplace. I think that there is a there's a real. A. Regrettable lack. Of basic research. And the study of behavior of criminals. These

studies are now being proposed. One such study is being attempted by the. American Bar Foundation which is an adjunct of the American Bar Association. The Menninger Institute at Topeka Kansas. Has some plans in this. Direction. And there are others. And I think they should be encouraged. I submit. That from the point of view of the. Safety of the community. Which is a. Which is. Which. Is a very important part of the policy of the law. That the community is better off. When a man is released from a hospital on the professional medical judgment. That he is not likely. To be dangerous to himself and others

in the reasonably foreseeable future. I think that is much safer. Than reliance upon the certificate of a warden who says this man has served X number of years. He has now paid his debt to society. Good bad or indifferent here is for still another opinion Dr Harry Calvin said in answer to the question will the utilization of behavioral science in the law cause a new approach to the law. Only I think and I under manic way. This is again a point that I feel rather strongly about that the. There was a time when there was hope that you would revolutionize law by bringing in social science. And there are some exciting prospectuses buried in the law libraries written 25 30 years ago that had this approach that the law is by and large archaic rather foolish totally unscientific that the brush of the breath of fresh air that science would bring in would simply turn the thing upside down and change it completely. I think the stance of

those results those efforts were in general rather short lived and unsuccessful. I think there's a lot of work going on today not only in Chicago but in many other schools and I think the stance of people doing the work is really quite different as the hope is for a kind of gradual enrichment of law regarding Mars being a core of considerable hard won wisdom of the other community. And therefore there is not only done expectation of radical change. There's no desire for it as it's hoped at rather this will add here and there gradually. But it would be quite a surprise in a sense almost a disappointment if it turned out to make an enormous change that I think does not understate its value it's something I think States more plausibly how it will come to. Have a real influence. On something as traditional and as longstanding this problem is raw so that I have an optimistic view of what contribution will be made by

the social science studies in general and then the other hand as I say I would think it's a great mistake to raise any expectation it will be a dramatic sharp separation with the past going to the psychiatrist I asked Dr Philip Roche how he as a psychiatrist finds his interest in this realm of law and human behavior. Dr Roche said we might approach that too. I think that you can't use a citizen is naturally interested in them in the way. Moral problems are solved in his community. And. Like anyone else he would take an interest in his social institutions. Particularly those pertaining to justice. However it is not. It is probably not so that the psychiatrist has.

Himself elected to enter into the area of law to participate in it. If we go back into the picture of law and psychiatry from a historical standpoint. I think it is clear. That at least within the last. Hundred fifty years. And this will be particularly true. In Anglo-American law. That the doctor has been called in by the law. To offer. His. Side and in the furtherance of justice. More recently this psychiatrist has been brought into this picture because in the prevailing climate of opinion in the last hundred years. There's been a larger and larger interest in the questions of

motivation. Than the psychology of antisocial. Behavior. The psychology of reform. And. The psychology of punishment. Thus the I would say that this ecologist has been less. Of A. One to have entered into this thing by insinuating himself in the law but rather has he been enlisted to enter into. The. Processes of law that have to do with human motivation for the study of behavior served law through understanding and application. Dr Roach answered one of the things we have to try to work out here. That is this we have to understand the nature of law. And the nature of

scientific endeavor. It is two different areas of knowledge. We also have to understand that law in the sense of its historical perspective. That law fundamentally is not a science but it is a means. Whereby community of human beings. Has developed a way. To. Relieve social tensions between individuals and between individuals and groups. And that historically the law is derived from the magical religious origins. In the early days it was actually the law of God. And it was brought down to two men. Meeting the Rev.. Who organized religious institutions. So

that if individually that when individuals violated the rules. Set down by the law. They were actually violating the rules of God. And. This we must realize persists in a way in modern law. Although the law in its operation today is much much secularized. You do not have the same kind of religious aspects of the law that perhaps existed 500 years ago or even earlier. You only have vestiges of it now in some of the rituals of the courtroom wearing of the robes on the part of the judge the taking of the book is one of the vestiges of the of the magical religious aspect of law. Now. It would seem here that I have been stating this to you I have been in a sense analyzing a lot. I have been with by means of at least a historical approach with some psychological bias been telling you something about what

motivates law. Psychiatry and other behavioral sciences on the other hand. Have no such background. In fact the background of science is one which has been and he said Go. To. A religious orientation as we understand it in the traditional sense. Now. This may give us some hint here as to why. Law is so slow in changing. And if we can use it if we can refer to it as a law. Why it is so resistive. To. Change in terms of what may be the. Discoveries of science. In so far as they touch upon moral problems. Now the law has not been reluctant to accept the discoveries of science in so far as they touch upon. The.

Physical. Manipulations which would enable the law for instance to use scientific methods in the detection of of detection methods and the like. The law uses the latest scientific apparatus in the detection of crime but when it works but when there's a question of guilt when questions which touch upon the moral side. Which are part of the tradition of the community there is a very large resistance to change and a letter particularly a large resistance to. The changes that psychiatry. Believes would enhance the law. Dr. Roche referred to law practices and religion. I wondered if law and religion had their differences because of the harsh treatment sometimes accorded criminal offenders. Judge basil on first comment.

I think absolutely not. The considerations. Which underlie my judgement. Of responsibility. Have been a chief concern of man since the dawn of history. These considerations. Of human responsibility. They have provided no balls for much. Of religion and philosophy. Now the law always reflects the moral views and received the beliefs. Of routing out of religion and philosophy. Of our going out of man's concern with his own responsibility. Now at each stage of its growth. Knowledge was confront the mores of yesterday. Based on yesterday's knowledge.

And this has always been so. Today it is said that the law. Is under to resist and the more recently developed knowledge of the behavioral sciences. Such as sociology anthropology and psychology. But my own view is. That the knowledge of the sciences has and will continue to influence our mores. And by that filtering process. If by no other. It will find reflection. In the law. Uncertain. Seems to me. That the Supreme Court's decision outlawing segregation is a classic demonstration of this phenomenon. Addressing himself to the same question of law and religion Dr. Rose commented the history of punishment will indicate that the most severe punishment which no longer exists today

existed by on the basis of a religious sanction and the further back you go the more cruel the punishments were. And I think a good deal of this comes out of. A lot of the early interpretations of. Scripture. For example a Saint Thomas said that the only way out of guilt is from punishment. We do not have by any by any measure or stretch of the imagination the cruelty of punishments that exist in the Middle Ages or before. The reduction in the punishment has not come about necessarily by religious sentiments nor has it come about by moral sentiments but largely through the change. The transition from a feudal society to a capitalistic society marked by the Reformation and later on by the French

by the reformers of the French Revolution. And it is probably a mistake to assume that we have been any that mean that we have changed or. Softened the penal laws because of sentiment or of even a religious impulse but rather that they have been done because of economic and political considerations of which there is ample scholarship to show to prove this doctor and judge by Salon have commented on relationships between religion and our legal code. And not to conclude this program we called once again on Judge about the law. I ask him if the eventual gains to be found from these studies resulting from the marriage of law and sigh and would produce a new world so to speak. A utopia. He said. I'm not very hopeful for the Utopia. I think I have everything I've tried to say everything I've said I had in mind

simply a re-examination a kind of looking harder looking deeper. And that's all big. But as far as Utopia is concerned. I wouldn't know if somebody asked me to write a book. My formula for the brave new world. I wouldn't know. That I could design anything which would. Which would even come close to what you refer to as there. Is the legal utopia. As mortals. All we can hope to do is to ask ourselves. The right questions. And. I submit that. That all. We can ever hope to do is to look for the right questions. And then we have a better chance of getting. Better answers. Not perfect ones. I think I recently said. Something that I think bears

on that point. I said that the law is neither a scientific instrument. Nor an adjunct to any absolute moral doctrine. Our legal system is the way we conduct our business of mediating conflicts preserving the peace and furthering orderly social development. It stands between all opposing forces or conflicting ideologies. And the criminal law and in the administration of the insanity defense the wisdom of the past including the free will postulate meets modern scientific views including the postulate of causal determinism. The legal process differs from religion in that being concerned with factual decisions. It cannot utter moral imperatives. It differs from science in that it cannot choose its experimental subject matter cannot plead ignorance and it cannot select its hypotheses freely. A court must resolve all the conflicts presented to it with or without

adequate knowledge. Judge by Salon Dr Roche and DR KELVIN will be heard again in three weeks as they discuss research on Law and behavior. Next week you will hear a doctor and an attorney Dr. Bernard Diamond and his wife Anne Diamond a lawyer in the first part of an interview held with them in their San Francisco home as they discuss various aspects of how the doctor and the lawyer view the law. The next programme from the series. Human behavior social and medical research consultant for this program was Dr. Andrew Watson of the University of Michigan. Glenn Phillips speaking asking that you join us next week. Again thanking you for being with us at this time. This program has been produced by the University of Michigan broadcasting service under a grant in aid from the National Educational Television and Radio Center in cooperation with the National Association of educational broadcasters. This is the end of E.B. Radio

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