Behavioral science research; Behavioral science and law, part five

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 research on Law and behavior. A program from the series human behavior social and medical research produced by the University of Michigan Broadcasting Service. 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 Roche a psychiatrist from Philadelphia Pennsylvania. And Dr. Harry Calvin Jr. of the law school at the University of Chicago. And my name is Glenn Phillips from the original recording between Dr. Calvin and myself. Dr. Kelvin describes part of the research project at the University of Chicago dealing first with Jury Studies that a jury which has been really that our major.

Venture. Something of mine actually fascinating institution that we sort of fall in love with as we continue to study it. It's a remarkable institution more remarkable I think that we tend to realize in the largest terms it is a great instance of confidence in the layman as of using the Ryman for serious business or government and the largest theme of the jury a lot has many professional themes of great interest to the lawyer but I just think it would would have for the public at large is they mostly the layman versus the expert in government. And I were overall impression from a study now some five years of the jury is that so much to our surprise the jury performs well enough. So at least it's holding his own with any any alternative way of resolving the kinds of controversies that the jury is given to handle as it's quite positive vote in favor as a layman in that sense against the expert or against the need for expertise in an important area of life.

As was mentioned earlier. When one has an appendicitis story or. Headaches of chronic nature they go to an M.D. So if you were on trial why not go to somebody who was trained in making these deliberations or decision. Well there are various reasons for that your analogy is one that was constantly pressed by the. People sympathetic to introducing expertise in some areas in fact it has been introduced as you get a technical enough kind of activity. You may have an administrative agency set up now with specialists in that activity which way take over but for the most part the answer is really twofold. One that for is it turns out for most of these conferences there really aren't experts. I mean there is no one who is an expert in what it means committing murder and not. In the sense in which the doctor is an expert on the appendicitis and that's why there is the controversy. Secondly there is something comfortable about the 12 most of the

jury. The fact that these are ordinary citizens means being brought in. The impression given that sentence the dispersion of power constantly because no jury is very powerful since it disperses almost to me it's a transient group. As against trusting more and more crucial decisions like this to single person out is true of course that the usual alternative the jury is not an expert in the sense of the doctor but an expert in the sense of the judge and the great. Theme inside of the jury. It is the judge as it is the own judges decide these controversies as contrasted to the 12 men laymen jury and we will have a quite elaborate study as one aspect of the project or the differences in decision and a whole series of cases. Attorney or whether a judge will decide this question or a jury decide how differently do they decide. There are enormously different terms of whether there are set up. But in many ways they turn out was surprisingly similar results. I think I would put the matter

in summary something like this it isn't that you could not have a civilized democratic society without having a jury system I think that's overstating it. But since we have a jury system also refreshing interesting institution every perform so remarkably well. The realization that you could have some kind of expertise introduced here is certainly no reason for eliminating the system as it is now if you've got it. At least I think it holds its own at least with with any alternatives. And it does provide an unusual window through which to look at human nature operating and serious matters and an encouraging window. I mean I say that. For me to get back to the behavioral sciences aspect of this for a moment. Areas of interest rather joint interest such as the studies of. Groups and the jury. We talked a little while ago about. How one area can give to the other or vice versa. And that would be the study of the jury as a group.

Well that's one one example is that there's been considerable interest in the last 20 years in the behavior of small groups I mean regarding a small group now as a little organism in itself to be studied as a very rapidly expanding field. The jury in many ways is the most interesting or one of the most interesting small groups in existence. What happens in terms of this mutual exchange of benefits and having it suddenly available to study is it to the small groups expert. If you can get a jury population he has a much more adult much more interesting population and is working on much more genuine problems and general has been true of the existing small group studies in the past. That's a great advantage John. It greatly broadens the resources with which he can work from the law side to have someone who is interested in the dynamics. Under which the group operates and I saw him prior to learning about how small groups to operate and who perceive the jury as an exciting small group discussing Iryna differences moving towards a verdict and so forth

finally arriving in a consensus group that's a real measurable advance in his perspective about his own institution. Further the small groups of men will bring with him some techniques for the Study of the jury's deliberation behavior which the law would never have and which further. Add to the lies learning about its own long standing institution the juries in this instance. You have quite an interesting marriage of interests both sides seem to be coming off very well indeed as a result of a joint effort to study the jury. Do you have a problem or not a problem but I know there are problems right there which are. Indigenous. To specific small groups in other words are there problems which are indigenous to a jury as opposed to. I'm trying to think of a group that's a good point and I think the answer is I think I people would certainly say the answer is yes that they specify the problems as they would not be quite hesitant about generalizing from the jury small group

to any small group. There's the husband wife and child might be a small group with operate very differently on the other hand if you papers have been written out of the project now would show that certain. Attributes of a small group carry over very interesting me into the jury and I just sort of speak of the power of. Items like that as one for example is that the role of a woman and a group in general is a more immediate return of socializing role than one of getting the job done. This carries over even into the jury job and that becomes a kind of interesting test as a range as a point you see that there's a kind of feminine and masculine role with respect to the way a group performs. Again as you might expect the status differences that come from the real world tend to assert themselves in a small group. And that the man who's a leader outside the group may tend rather automatically without any any explicit.

Voicing of the point begin to function as a leader in the group in much the same way. Well the jury offers a very interesting test of that the degree to which they. Are better educated wealthier etc.. People who are more in sense men of affairs. Do they when they are on a jury along with the. Other members of the society and the jury has drawn a very broad cross-section. Does their natural. Leadership and so forth tend to assert itself again as you say earn respect in the jury room much the same as they do outside and the answer is to a considerable degree yes I mean this is one break and the other democratic and probably the jury. And this is again an example of the kind of testing that you can you can. There's a very cute. Set of findings about who gets elected foreman of a jury. And it's done almost automatically always the jury selected zone Foreman in most places very rapidly and by a kind of

tacit acknowledgement that someone is the kind of person that would be the foreman it's a judgment perhaps by the way just a few remarks he's made. It's not surprising that between proprietors and laborers who take take gross distinctions and. They proprietor about four times as frequently as a laborer and ends up as the foreman. Men infinitely more frequently than women and that the foreman. Writes infinitely more frequently the negroes and so forth that would you get you get some of these things carrying over immediately into this group that reflect. General values and certifications of within the society. As one of the foremost scholars of the law. I asked Judge David Bassett Elaan how research such as Dr. Calvin has just described for example may contribute to the law or to new concepts of the law. Judge best said Judge learned hand. Has noted. And I quote. Most people. Have a feeling that justice requires a law breaker to suffer. Just

as they think. That sin. Should entail suffering in the center. Personally he continued. I do not share that feeling which is a vestige of a very ancient primitive and irrational beliefs and emotions. However. It would be unwise. And incidentally impractical. To disregard it as a constituent element. It is extremely strong in most people unquote. I agree with Judge hand that it is strong. But I do not think. That we should consider it. As a bar. To entertaining and considering new vistas of knowledge a new and important insights into the human condition. Of. Modern day psychology. At least appears to promise a new dimension of such knowledge. But if we are mindful of history we surely must realize how foolish it would be.

To think that this fresh view of behavior places us on the brink of providing a final answer to the ancient problem of responsibility. Many scientific advances however can be expected to contribute better solutions. For example. It is. Perhaps not unlikely. That in our own time. Biochemistry or bio physics or some other new source of knowledge will provide new tools. New Dimensions. Or better solutions but still not perfect or permanent ones. Now. The role. Of. The behavioral science is in the law. I think was forecast. By Mr Justice Brandeis. Because although he didn't. Concern himself at least publicly. With the problems of of crime the treatment of criminals.

He did. Set a precedent. Which has a very important bearing on that. Subject. Or he is the one who introduced. What we have come to know is the Brandeis brief. In other words the brief. Of lawyers. In which quite surged. To adopt. The new rules and new approaches. New concepts. Justice Brandeis believed in fructify ing the law by making it responsive to scientific developments and general intellectual advances. He felt that survival of basic social respect for the law on the part of the populace. Required no less. And he believed that the living Law had to maintain its vital relation to changing

social life. Now the law of course. Has. An overriding concern with precedent. And it is this concern which impedes the acceptance. Of information. From the behavior of another social sciences. In 1916 Justice Brandeis. Quoted a proven way from a statement by a psychologist. That. And I quote the liar who has not studied economics and sociology. Is very apt to become a public enemy. Unquote. It's very interesting. That Justice Brandeis. Should have borrowed the words of a psychologist to express this strong view.

Because it certainly applies in our day with great force. To the behavioral sciences including psychology. How the phrase public enemy is perhaps too strong since through special newspaper use after 1916 it has lost its traditional quality. But lawyers working in the field of criminal law who resist or ignore the facts and insights. Hold very considerable offering of sociology psychology psychiatry. And allied disciplines. Does a deep disservice to the public which expects its experts to improve our ways of carrying on the business of society. He is no friend of the public. Or is he a good servant of the law. And the law by itself. Without the workers in the fields of the behavior of social scientists. Is cast in the hopeless role of a socially isolated. Traditional

bulwark. Against the welter of modern problems and forces. Which create the question of crime. And the so called criminal population. And in this losing struggle. The law by which I mean police judges lawyers and prison guards. Would have it at its disposal a limited set of concepts honored by time alone. In brief. The law would have largely. Only. The lex talionis the idea of retributive punishment. Based on absolute moral principles of purportedly universal application. By itself. The law would dispose of both the problems of crime and the criminal himself with the one idea of punishment. Repress crime and all anti-social behavior by punishment alone. Rehabilitate the offender by punishment alone. Achieve social understanding of

wrong doing and the wrong door by the sole mechanical response. Punish them. They deserve it. If we practice in our courts of law the theory that therapy in some form will correct deviant behavior and possibly prevent or at least control this behavior. How is it possible to imagine that all persons are not mentally ill who commit a criminal act. Dr Philip Roche voiced his opinion to this theory. Well I think it's quite possible. I think first of all you have to consider that there is a fairly good segment of our society who are basically antisocial. By reason of the kind of. Environment in which they were brought up. And the circumstance of their lives there is certainly a small society within a society that is antagonistic to the law abiding society and always will be. It will be difficult in applying the standards of our law by society to say these

people are mentally ill. They are impelled towards crime because it is a way of life. And. Where is that. The people that were speaking of Psychiatry and Behavioral Sciences the people who are impelled to crime because it's a means whereby they resolve mental tensions within themselves which is quite a different story. So that. If we bring back these two instances to Basil on recommendation one can readily see that if you have an individual who commits a crime. The derm rule would not apply to him unless you obviously feel within the standards that are set up by psychiatrist. He might come from that antisocial group or he might come from the neurotic group of people who carry out crime but because a

person commits a crime doesn't mean that he's mentally ill. A lot of individuals who have no mental illness. They are people who have some some element of mental conflict and disturbance but it but it doesn't take on the degree of reality distortion that we think of that we apply to people whom we regard as really mentally sick. And the other criterion that would apply to people who are really mentally sick are those who need care those who need something done to them. You put them away in a hospital or to guard them in such a way that they do not harm themselves or harm others. In the case of the Durham decision if the end of it if it can be shown by the testimony at the time this individual committed this offense his behavior was such. That it would fit in with the stand with his standards of abnormal behavior as a psychiatrist understands such standards. Then we might consider this

individual as mentally diseased. If that is the case it simply means he's not put in a penal institution but put in a hospital. The Durham rule then merely is a way of separating out. Classes of offenders so that they are appropriately treated. It doesn't let anybody off. It doesn't excuse anybody. It merely is a means of separating out those persons who commit crimes because they are afflicted with mental disorder from those who aren't. I commented to Dr Roche that to me at least it was almost inconceivable that the anti-social behavior displayed by the Dylan jurors or the Nelson for example would not be interpreted as mental derangement. His reply was Well you are right in one way. I would say theoretically this is correct that anyone.

In that in the sense that he so deviates from the norms set in society so as to become a danger to that society. Must be motivated in a way which we would regard as diseased. But from a theoretical standpoint or at least from an academic standpoint this is true. But the moment you get into questions of social policy. Then you have to draw the line somewhere as to where you divide this class. This is one of the recurrent. Complaints that one hears about. From. From lawyers particularly that one hears about psychiatrist that psychiatrists believe that all criminals are mentally ill or crazy. But as I say academically true but no psychiatrist would advocate that everyone in whom he found symptoms. That he could fit

into his catalogue. Of. Specimens of psycho pathology would insist this individual be found not guilty by reason of insanity. This would be a violation of social policy. He must draw the line somewhere. So that you so that you don't have chaos. Now as society goes along the line is gradually shifting more and more to those persons who do not fit in with the old time conventional picture of mental mental illness. As the behavioral sciences say psychiatry in psychoanalysis is beginning to understand the inner workings of psychic life we are beginning to see that there are. There are mental diseases that exist in people without outward manifestations in the conventional. Type such as the man in the street can

recognize. That is a man no longer has to be a raving lunatic in order to be regarded as insane. But a man can certainly be an extremely sick person mentally without any surface manifestations whatsoever. And as our knowledge increases in this area we begin to see that we can include more and more of those people within that rule set by the law. And the psychiatrist will leave it to the lawyers and the those who frame social policy as to where to put the line. I ask Judge Basta Lon if he felt the new training would be required for future lawyers. I do think that the law schools. Are embarking. On a program of. Demonstrating to students the relationship between the law. And the social scientists.

I think that. Law students are now being taught more and more. That the law doesn't exist in a vacuum. That we must know something about the conditions. Upon which the law must operate. I think that. I don't know that we're going to have. A new approach in the law. I would only. Look for a reexamination. Or so and that re-examination process. Should be going on all the time and we should test our hypotheses. We should test them against. The conditions of our time and the needs of our time. Rather than the needs. Of some past day. To conclude today's program I asked Judge Basta Lon if he would agree with the statement that the needs of today are the same as past generations. But knowledge and

conditions have changed. Not only do we have new and different knowledge. But the conditions themselves have changed. For example. In an agrarian society where many of our rules were fashioned. You didn't have people living so closely together. So enter dependent this close living this energy. Dependence raises all kinds of problems. For example we have a rule that evolved out of the common law. I was born about 500 years ago in the under which. A landlord was not responsible. For injuries which occurred. During the term of the leasehold. From disrepair which occurred after the lease comments. In other words if a landlord rented.

His. Building. The land. And land. And he turned it over to the tenant in good shape. If something went into disrepair thereafter and as a result of that somebody got hurt the landlord was not responsible. Now the reason for this rule was. That at the time this rule was born. The important part of a lease hold was the land and not the building. At that time people made their own repairs. They weren't interdependent on one another. Moreover the landlord was likely to be many hours or many days away from the. Place of the leased. Premises. Too much of a burden to require him to go into see with it everything is in repair. So the burden was placed upon the tenant. But today. That rule which still operates. It is

manifestly unfair. Since. We are living together. Very very closely. And if a landlord as happened in one case let a slum. Primus. In disrepair and as a result of that child was hurt. He could not plead that. When the tenant rented the land. Granted the premises. That the tenant was interested more in the land. Than the in the House involved. And he could not plead. That. He would take him. It would be too burdensome to require him to travel to the place. In order to see that it was in good repair. And another very important fact is. That the people who live in the slum areas. Using are without the means and sometimes even the understanding to effect the

repairs. That are required. As a practical matter. These premises are managed in operated. By professional management firms. Whose business it is to see that these places are in repair. This has been the last program of a five part section dealing with the law and behavioral science. Our thanks to the Honorable David L. bass salon Dr. Philip Cuellar Roche and Dr. Harry Calvin for their participation on today's program. Next week you will hear a panel of the country's leading behavioral scientists as they discuss research and the government's role in behavioral science. On the next program from the series human behavior social and medical research consultant for this program was Dr. Andrew Watson of the University of Michigan. We extend our special thanks to the Mental Health Research Institute of the University of Michigan for their

assistance. Glenn Phillips speaking asking that you join us next week and 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 NEA E.B. Radio Network.