Preet Bharara is the former United States Attorney for the Southern District of New York, a Federal prosecutor by profession and the author of the recent book Doing Justice. His book is about how people in the legal system try to make decisions about what is true in cases where the facts are muddy, and also how they attempt to determine what is right in assigning punishments proportionate to a person's crimes. These are very serious and consequential decisions, so Bharara and his fellow prosecutors are strongly invested in trying to make them correctly. Their best methods make use of both the Narrative System and the Intuitive System, using the strengths of each one to balance out the weaknesses of the other.
An interesting feature of our legal system is that it purports to offer not just opinion or interpretation, but a determination of objective facts. Mistakes can still be made, of course, but the legal system is not offering spin; Bharara's first rule for a prosecutor to bring a case against a defendant is that the prosecutor must honestly believe the person to be guilty of the crime. To enhance the accuracy of decisions about facts or truth, Bharara offers several concrete strategies. First, the prosecutor must have a commitment to finding the truth whatever it may be. This is a Narrative System frame used to approach the data, a story one tells oneself: The central theme of the story is that truth matters, that an accurate result is more important than the specific content of one's findings. It is a guiding framework very similar to the one used by scientists, a master narrative that says one must follow the data where they lead. Another Narrative System technique is attention, the practice of constant vigilance or open-mindedness. Attention is an active rather than a passive state, a practice of deliberately questioning one's own assumptions and reminding oneself that "things are not always as they seem." Bharara said that he would frequently take this practice to extremes, going so far as to present his best evidence to the defense attorney in a case and asking him or her whether there could be any alternative explanation for the facts that had been uncovered. If there was, Bharara was willing to give that alternate narrative serious consideration, to abandon his own preferred narrative of the crime in service of the higher meta-narrative of "discovering truth." Some of these strategies are the same as those identified in my last post exploring the implications of Paul Churchland's neurocognitive model of how the mind forms narratives.
Narrative strategies are not the only ones involved in discovering truth, however; the Intuitive system's learned habits and gut reactions also come into play. In the idea of constant vigilance we also can see a certain habit of mind, a learned response to always double-check. Bharara argues that if the defendant says something happened on a rainy day, the prosecutor should check the weather report from that day's paper. Asking very basic, "stupid" questions is central to the prosecutor's ability to uncover truth, to finding the pieces of evidence that don't fit and may suggest a different version of reality than the defendant is describing. This sort of extreme, reflexive questioning doesn't come naturally; it is something one learns through mentoring and deliberate practice. The same goes for patience, which is exactly the opposite of what may be demanded in high-profile cases where the public wants to see heads roll; the prosecutor, however, has learned that haste is the enemy of truth and discretion the better part of valor. Bharara also describes how an emotional state, a certain fascination with criminals and the way they think, can be used in the service of uncovering truth. He gives the example of a prosecutor who spent Sundays at the racetrack not because he particularly liked racing, but because he liked to see which mafia members talked to each other there, to learn about their social networks and ways of doing business even when he wasn't investigating a specific crime. "His devotion to tracking and tormenting mobsters was complete, bordering on compulsive," writes Bharara. This emotional attachment might be pathological in other circumstances, but in this case was used to help uncover truth. On the other hand, prosecutors also benefit from an ability to form a basic human connection with defendants or witnesses; they get more accurate information when they have an Intuitive-level capacity for empathy. An abusive interrogator may get a story, but it's less likely to be true. An empathic interrogator, on the other hand, learns the suspect's key motivators -- things like family, faith, or a desire for notoriety -- which enable him or her to more effectively elicit genuine cooperation from the most adversarial human beings.
Once the truth has been unearthed -- again, this is the real truth to the best of a fallible human being's ability to determine it, not just a position taken to achieve some end -- the prosecutor's job shifts to making charges and arguing a case in court. Now the question is not "what happened," but "what should be done as a result?" Bharara says that "to charge a person with a crime is to shatter that person's life. It is also to upend the lives of those close to that person." The very act of making charges, therefore, is a sort of punishment and should never be done unless the prosecutor is completely convinced that the suspect is guilty of the crime. This perspective provides another Narrative-level reminder to the prosecutor to go that extra mile and answer questions of fact beyond a doubt. On the other hand, the work of a prosecutor also requires a commitment to justice, which may be another of those meta-narratives that guides the work or simply a felt truth at the Intuitive level, a deep sense of right and wrong. "You have to be the kind of person who is capable of pulling the trigger," Bharara writes, "and at the right time." Whenever we talk about "the kind of person" one is, we are discussing something deeper than ideas and beliefs, something at the Intuitive level of decision-making. The culture of the prosecutor's organization also matters, says Bharara, because the environment imposes expectations and demands on one's behavior. In the case of his office, he tried to promote and maintain a culture in which "justice was more important than victory."
The Intuitive System is also used as a way to achieve justice, as seen in the formality and rituals of the legal system. The judge, for instance, appears as “the black-robed oracle, the voice of God,” with an anonymity and stature that increase everyone’s confidence in the likelihood that impartial justice will be done. Judges are selected for a case using an archaic physical wheel, even though electronic allocation would be simpler and faster. The judge sits on a dias that's physically higher than the other participants down in the "well" of the courtroom; the prosecution and the defense are physically separated both from each other and from the jury. And the formality of a courtroom trial "relies on the right of both sides to present arguments and to challenge arguments ... without fear of being shouted down or shut down -- so long as the presentations are fairly made, with respect and decorum, and so long as they do not make undue appeals to prejudice or fear or emotion. Neither side is permitted to lie or misrepresent, or suggest that truth isn't truth ... . The courtroom rules force truth and prohibit garbage." They do this through insisting on basic civility, and at least a show of respect for even people accused of terrible crimes as fellow human beings. With these strong Intuitive-level cues for politeness, for honesty, and for obedience to authority, only the most hardened liars or self-interested sociopaths can resist. Some of the most remarkable stories in Bharara's book are in fact about mobsters or other committed criminals who do in fact "flip" to testify against their own associates. Some of that behavior is likely due to a Narrative-level judgment about the pros and cons of cooperation, but not all of it. Some criminals appear to respond to the Intuitive-level cues and are willing to come clean even if they themselves will still face punishment.
As in other areas like creativity and faith, the pursuit of justice appears to benefit from people's two minds working in concert. The Intuitive System generates reactions and perceptions that can be harnessed to overcome lies and bring hidden truths to light. And the Narrative System is unsurpassed at pulling together disparate facts and observations into a coherent picture, as well as questioning that picture to identify places where it is still obscuring the truth. Together, the two mental systems have a push-pull dynamic that helps us inch gradually closer to an accurate understanding, and a just resolution to difficult human problems.
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