Category Archives: Logical Reasoning

The Intersection of Religion and Logic

The Intersection of Religion and Logic

WARNING:  Content not suitable for the very young or the very fragile.

faith and reason

I feel the same way toward those who hold uber-religious views as I do the very young who believe in Santa; I feel compassion toward a thought process they have found enjoyment, solace and comfort in, even if, as I believe, that belief system is fictional.  I want them to enjoy their chosen pastime, even if its foundational premises make me chuckle out loud given the logical absurdities.  I want to respect their chosen beliefs, even if those same beliefs would crucify me for mine.

But there is a line that can get crossed.  This essay directs itself not to personal faith or individual meditative practices, but to the practices and actions of organized religions and cults that impose on others inside and outside the organization who elect not to adhere to its rules.  This essay seeks to enlighten on when that line is crossed necessitating the intersection of reason with religion.    

FAITH, RELIGION, CULTS

First, let me distinguish between what I mean when referring to faith, religion and cults.  Faith is pure.  Faith has no ulterior motive.  Faith is belief: pure and simple.  Faith cannot be wrong.  Faith is what faith is.  Faith is personal, unique to each individual, and constantly evolving with the individual and society.

Religion, in contrast, is the organization of like-minded individuals to achieve like-minded objectives.  This is also a pure objective, as with faith, but something happens on the way to the bank.  Not unlike political lobbyists, the religious powers corrupt the process at its core.  The need of the religion to self-perpetuate supersedes the individual needs of those of faith who adhere to the religion.  Thus, policies that encourage more members (i.e. no birth control) and maximize the profits retained by the church (i.e. those who do not attend church go to hell) supersede logic and make the minister of a fire and brimstone church an extortionate thug holding eternal salvation hostage in exchange for blind faith and charitable contribution.   The suffering of the individual or the family becomes tantamount to the prosperity of the church. 

Cults are “immature” religions that have not withstood the test of time.  The premises of cults are no less or more outrageous and laughable than those of religion, but religion cloaks itself in the veil of “tradition,” claiming respect for its ability to survive throughout the ages.  Although “appeal to tradition” is a logical fallacy, nevertheless, the modern origination of most cults serves to discredit their validity.

Techniques of Neutralization:  At the end of the day, we all have to sleep with ourselves.  Thus, we find a way to rationalize our behaviors to make them consistent with the type of person who we wish to reflect to others and to ourselves.  So the sort of person with whom we choose to associate is important.  If we only elect to associate with selfish people, then the behaviors we would emulate would be selfish behaviors, believing those values to predominate.  If we only associate with racists, then we will promote racist actions seeking approval amongst our peer group.  Certain religions and cults attract a certain brand of hate and intolerance, thus allowing its members to sleep better with themselves at night, reassured that not only do they hold such hateful beliefs, but others do as well.  Thus, religion provides legitimacy to beliefs.  This is good when the beliefs are altruistic and generous, but can be dangerously parasitic in society when the beliefs are prejudiced and judgmental.

The uber-religious are cloaked in judgment.  There is the right way and the wrong way.  One way leads to Nirvana and the other way to Hades.  Though no one has been to either and back, many uber-religious profess to know, with certainty, what is right and what is wrong.  But eternal salvation or damnation is often not a significant enough consequence.  Instead, the uber-religious seek to use secular power to impose its judgment on all others:  believers and non-believers alike.  Call them Islamic Fundamentalists who shoot little girls in the face for wanting an education.  Call them Evangelicals who think the Girl Scouts organization promotes homosexuality and abortion, calling 12-year-old girl scouts, “lesbian baby-killers.”  Call them Hasidic Jews whose sexually-repressive practices align with the puritanical and women are to be silent, subservient child-bearers.  They seek to compel others to believe as they do through lawful authority.

I cannot offer respect to such belief systems and when challenged by their vocal supporters, I cannot remain silent allowing them to sell their hatred re-wrapped and packaged as religion.  When these individuals attempt to defend their hatred of others, by citing antiquated passages of dubious authenticity from a book elevated to higher adulation because its human authors claimed godly inspiration, that line has been crossed.

Faith, at its purest, does not exist to put others down.  Even the ugliest of persons, both inside and outside, is entitled to self-dignity.  But when persons seek to prop themselves up or those with whom they choose to associate, by demeaning others, putting others down and denying to others rights they hold sacrosanct for themselves, it is incumbent upon the child who see the nudity of the Emperor, to point this out to the crowd. 

Hatred, Inequality and Superiority:  Religion that seeks to prop itself up by the condemnation of others is hollow and meaningless.  Such a faith practice offers no moral repose to its holder.  A just God or Gods would support equality in opportunity, equality in love and equality in law amongst all others, and not just amongst those who look similar or hold similar beliefs. 

  • Misogyny and Misandry: Women and Men pitted against each other, with one believing the other inferior and subservient.
  • Racism and Ethnocentrism: holds that persons of a different race or ethnicity are inferior or superior.
  • Classism:  Proletariats, or the working class who do not own property, are pitted against the Bourgeoisie, wealthy capitalists with the wealthy and privileged seeking to deny opportunity and advantage to those less so.

All of these beliefs assert birth privilege:  the idea that when one is born, the gender, race, ethnicity, religion and social class will all pre-determine the earthly privileges and eternal salvation.  To deny the reality of the above would be naïve.  To pretend, however, that religious values support such claims, would be to give credence to the preposterous.  Faith is pure.  Faith is kind.  Faith tolerates.  Faith does not condemn.

One cannot simultaneously respect the individual autonomy of a gay or bisexual person while simultaneously asserting that those who are gay or bisexual are certain to suffer eternal damnation or denying to those who are gay or bisexual the same civil rights afforded to those who are heterosexual.  One cannot simultaneously respect the equality of others irrespective of skin color, ancestry or gender while simultaneously asserting societal privilege to some groups and denying those same opportunities to others.  These actions and beliefs are inconsistent with faith at its purest level.  These actions and beliefs support the promulgation of an organization at the expense of the best interests of society and the individual. 

LOGIC

Logic, conversely, is an absolute.  Logical syllogisms can be proven true.  Inductive premises can be sound or lousy. Logical fallacies are universal.  Logic, at its core, is capable of making sense and providing a structure for decisions.  Is it raining?  Then one needs an umbrella when outside to protect from the elements.  Prayer, alone, will make a soggy companion.

Indeed, through logic and its playmate reason, I am able to place religious texts in their proper historical context, affording them due deference as to the lessons they offer, but accepting their imperfections and inadequacies do not offer them blind allegiance. 

As to any historical, religious text, the following is generally true:

  1.  A mortal wrote the text.
  2. The mortal claimed that God inspired the text.
  3. A literal interpretation of the text cannot be maintained due to the myriad of direct  inconsistencies throughout.
  4. “Cherry picking” which passages to believe and which to ignore or reject renders the entire manuscript suspect in its application or authority.
  5. Modern day interpretation is based on translation from other languages, with errors in translation attributed to lack of knowledge of the intricacies of the language or an imprecise, vague or misleading translation.
  6. Political figures and others in positions of power have revised the document to further their political and personal agendas.  Revision includes insertion of religious text as well as exclusion of others.
  7. Games like “telephone” and “whisper down the lane” highlight the likelihood that earlier versions of actual events preserved through oral tradition, might have been altered in the retelling.
  8. The passages within are based on multiple levels of hearsay without evidence sufficient to attest to their reliability such that they would be inadmissible in a court of law as valid evidence of the truth of the matter asserted.
  9. The passages were not subjected to peer-review process necessary to elevate sources within one’s field to scholarly sources worthy of respect of experts and scholars.

Imagine if, thousands of years from now, the archived compilation of tweets maintained in the Library of Congress is discovered and imported with significance beyond its original import.  Bill O’Reilly has claimed God speaks to him in dreams.  Will his subsequent publications be referred to as the “Gospel according to Bill” and afforded irreverent status as a result?  The biblical quotes from eras long bygone are no more or less compelling as evidence of the cultural movement of the time than are the globe’s collective tweets.  But, like the impulsive and uninspired tweets of today, there is no reason to conclude the passed down passages of the old and new testament to be any more reflective of greater truths or religious ideals.    

HISTORICAL and CULTURAL CONTEXT

Despite its glaring inaccuracies and inconsistencies, there are still benefits to a proper contextual understanding of these texts.  For example, the Bible offers a glimpse back into history; as exaggerated as that history might now appear.  Certain factual truths can be established, offering some historical perspective, though too often these truths are instead mistakenly offered as testament to the literal accuracy of the remainder of the text.  The Bible also offers important lessons on morality, often through the parables and other teachings of Jesus and stronger condemnations in the teachings before he was born.  While imperfect in their origins and retention, religious texts such as the Bible continue to offer an understanding of the moral and religious evolution over the years and the influence of certain emergent leaders. 

Because of the deference afforded these texts and to religious institutions, they were helpful to fill the void not yet reached by science, to protect a population by near certain death, to promote policies intended to grow the community in a time of abundant resources.  Certain practices not mentioned in the religious treatises were nonetheless promoted as religiously-inspired by religious leaders to further the safety and welfare of its followers and to help establish the importance of religion across all stratospheres of ones’ life. 

For example, the kosher practices of the Orthodox Jewish beliefs originated from a need to protect communities from the sickness plaguing certain foods when not adequately prepared.  Certain precautions have taken on modern day extremes, however.  While allowing dairy products to co-mingle with meat products could have spread disease in the middle ages when refrigeration and pasteurization were not yet invented, the modern day interpretation requiring separate refrigerators for dairy and meat would appear to be an unnecessary application of a once-necessary rule.  The religious leaders provided a valuable service, deterring their followers from ingesting unsafe food products, by tying the rules for food consumption to the tenets of the faith.  Modern day, however, that rule and its application requires a more modern interpretation.

Priests in the Catholic faith were permitted to marry through the fifth century.  Then, property and estate law of the era was allowing the property of the Church to pass to the widows and children of the priests upon their death.  Prohibiting priests from marrying and engaging in sex would eliminate this problem and property would return and remain with the Church.  Thus, the rule was born out of the fiscal practicality of the era, but this same motivation no longer exists.  After fifteen hundred years of practice, its consequent is to attract those who are sexually attracted to children as the prohibition against marriage would provide cover as to why one is still single and the respectability of the church would provide access to children.    Allowing priests to marry would eliminate the cover such prohibition provides to pedophiles and would dilute the deviant population in its ranks.  Allowing priests to engage in sex would free them of the psychological repercussions caused by sexual repression and would further dissipate the potential for predatory behavior toward children.  Longer treatises could be engaged in on this subject alone.  Another time. 

The point is that the religious organization and the treatises it reveres to support its beliefs and practices are relevant, contextually, for the peace, security, and stability they offered to the society.  Thus, it is possible to compare the bemused reverence of religious texts as historical artifacts to the familial tradition of reading “’Twas the Night before Christmas” each year.  Each promote to the audience the need to engage in positive behavior to reap the rewards of a benevolent (and sometimes harsh) master of the universe.  I, therefore, find the two populations – that of children believing in Santa Claus or that of adults believing in an omnipotent omniscient God, virtually indistinguishable in their need to believe.

I find it magical and fanciful to allow room for the “unknown” and the “unknowable” in my life.  I allow for the possibility that no one person and no one discipline holds all the answers.  I consider the journey within ourselves to be equally adventurous to the journey of travels through many lands. 

While I want to help guide my son on his spiritual journey, his beliefs will be better influenced when they are personally motivated and not externally imposed.  There are those who seek to know the mysteries of magicians and others who would rather revel in the fanciful belief that the law of physics are malleable for some.  So again my thoughts return to degree and receptivity.  When is one ready to learn a truth and abandon a comfortable but false belief? 

Not wanting my son to distrust me in later years, I considered revealing the truth behind the origination of presents under the Christmas tree but elected not to do so.  I instead wanted my son to experience the mystery of an altruistic and generous benefactor.  Yet, even such a belief was conditioned on a judgment.  Good girls and boys received presents.  Bad ones got nothing but coal.  Even Santa was harsh in his condemnation.  The fictional narrative promotes the idea that the poor who cannot afford presents are less-than-worthy in the eyes of a judgmental “Saint Nick.”  Thank goodness for social programs such as “Toys for Tots” who help to bridge those inequities.

One day, my son began to question the illogicality of a jolly old fat man who delivered toys by flying on a reindeer-driven sleigh and gained access to people’s homes through their chimneys.  When he asked me, one day, if Santa was real, I told him the truth as I knew it:  the presents he always received Christmas morning were those I had purchased for him.  I never regretted the foundation I provided my son in the magical and mysterious.  After all, if one is to understand logic and reason, then it would be equally helpful to understand its opposite and complement:  faith.  But there comes a time where the further exploration of that faith requires challenge through critical thought and rejection of logical fallacy.  Anything else would be an abdication of reason in exchange for the security afforded by blindness.

science of santa

ENCULTURATED BELIEF

Those most enlightened are those with the broadest knowledge of world religions and enculturated understanding. Conversely, those least enlightened are those with the narrowest viewpoints and limited enculturation.

My own emergent philosophy and faith is the culmination of 46 years of experiences, readings, and internal reflections.  I gain my understandings through my upbringing in Catholicism, my understandings of Christian-Judeo teachings and my exploration of Wicca, Taoism and Tantra.  I embrace the reality that my spiritual journey is still in progress and will likely continue until my earthly body shall cease to draw air and circulate blood.

The broader my understanding becomes, the more similarities that present themselves.  For example, when Noah’s Ark was crafted, there had already been hundreds of similar flood stories that pre-dated Noah.  Christians who believe Noah’s Ark is a literal depiction of an actual event are not knowledgeable of all the other similar myths from other cultures that would suggest it rather egocentric to blindly accept one such myth as true while rejecting out of hand all others.  The unwillingness to expose oneself to counter viewpoints helps to foster blindness, not englightenment.

WHEN TO INTERCEDE

I’ve previously expressed an understanding of the individuality of each person’s faith and spirituality.  How could I deign to superimpose my own beliefs at this stage of my journey upon another who has not yet reached this stage?  I wait until prompted to do so; much as my son demonstrated he would be receptive to such an understanding about Santa Claus, I wait for signs and manifestations that another seeks broader understanding and I have insights that would prove beneficial.  This is elusive, sometimes and often appears a Sisyphean task.  

sisyphus

The uber-religious are not likely to shift in their beliefs to any appreciable degree.  The indication of when the time is right, or when the line gets crossed, may be based on the needs of others, not the readiness of the uber-religious.  While it might be ideal to serve only the ripest of apples to the hungriest of people, there are occasions when those who are not-so-hungry would find benefit to eating an apple and even an unripe apple to a hungry person could offer more benefit than foregoing eating anything at all. 

The “hungry” in this case are those who religion seeks to deprive and deny; the victims of hate who are told they are hated not just by mere mortals, but by God himself.  Remaining silent in the face of such hatred would make such silence acquiescence to such Godly condemnation.  Allowing one group of people to assert superiority over another would sanction such practices.  So, it is for the victims of religious hatred and intolerance that these alleged religious freedoms will eventually clash with my logic and values. 

death of socrates

The spiteful, vengeful and retaliatory nature of the Greek and Roman Gods and Goddesses eventually led to the adoption of a single God that manifested itself in three forms:  son, father & holy spirit.  Socrates was convicted of corrupting the youth of Athens and sentenced to die, for suggesting through his philosophical questioning, whether the multi-theistic views of immortal beings who behaved so immaturely, was worthy of emulation.  In contrast, Jesus was a kind and loving man whose actions cannot be criticized.  Thus, a corrupted multi-theism gave way to a pure single theist. 

MODERN DAY

Or did it?  Instead of supporting the sick as would Jesus have done, modern day uber-religious would call such individuals moochers and protect the right of insurance companies to make a profit over the opportunity to provide affordable health care for all.  Instead of supporting women as would Mary require, modern day uber-religious throw figurative stones at those who could never achieve the unattainable ideal of virgin motherhood.  Instead of supporting those of other races and ethnicities as the slavery of the Israelites at the hands of the Egyptians condemned, modern day uber-religious would claim a God-given right to hold others in proximate servitude because of monetary superiority.

The right of one’s religious freedom and freedom of speech cannot exist to impose upon the rights of others.  When one’s religion demands the conversion of others through proselytizing, their need to attain salvation overreaches another’s autonomy and free will.  The right to free speech is not the right to convince or persuade others you are right.  The right to freedom of religion is not the right to impose your religious choices upon others.  The right of association is not the right to deny to others with whom you elect not to associate, equal rights and opportunity.

No religion can legitimately claim to condemn others who engage in consensual sexual practices when those sexual practices may be different from their own.  No religion can legitimately seek to deny adequate health care to those who most require it.  No religion can legitimately seek to repress one ethnicity or race and enrich another.  No religion can claim superiority as between genders.  No religion can claim wealth affords advantage. 

So while the uber-religious are free to believe what they will, they should not accept me to tacitly tolerate their efforts to manipulate me to think as they do.  I will not be persuaded by a claim that God is a judgmental being that holds rich, white straight men in favor and thinks lesser of all others.  My world view finds such a position illogical.  My values for compassion and tolerance require me to speak out against such illogicalities when they are destructive to others, lest I acquiesce through my silence. 

IDEOLOGICAL INCONSISTENCY

I am lucky to live in a time and a place that permits me to challenge the repressive intolerant and hateful views of others when offered up as religious precepts without the certain fear of a torturous death.  Calling others on their hatred and not allowing religions to espouse hatred would seem a simple response, not laden with much danger or peril.  Makes you wonder, then, why more people don’t. I can’t imagine if there is a singular destination in the afterlife that rewards those most deserving, that it will have much patience for those who elected to remain silent in the face of adversity.  But that sounds like the judgmental intolerance that I seek to upend.  Ironic, no? 

 

The Defamation of the Criminal Justice System

defamng justice

The Defamation of the Criminal Justice System

Good name in man and woman, dear my lord,
Is the immediate jewl of their souls;
Who steals my purse steals trash; ‘tis something, nothing;
‘twas mine, ‘tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.
-William Shakespeare, Othello

We have two very different criminal justice systems in the United States.  One that is the reality and the other that exists only in the minds of the entertainment and news media, and the viewers they inform.  The result is an American public that is being misled about the realities of the criminal justice system and this deception has real-life consequences to those the system is meant to serve.

“You have the right to remain silent.  Anything you say can, and will, be used against you.  You have the right to an attorney.  If you cannot afford one, one will be appointed for you.”  We hear this phrase over and over again.  High school students may not be able to name the Vice President of the United States but they know that these words recited constitute the Miranda warning.

As a defense attorney I get contacted by prospective clients who are quick to tell me that they were not “read their rights” when they were arrested, confident they are that this will provide procedural advantage.  Most are very surprised to learn that the police were under absolutely no obligation to read a suspect his or her rights upon arrest.

The Miranda warning as commonly depicted in crime drama series and even in so-called “reality” shows like “COPS” is not the entirety of the Warning read to suspects.  The remainder provides, “Having these rights in mind do you now wish to waive those rights and speak with me now.”  But police have no intention of conducting a formal interrogation in the police car on the ride to the station.  Thus, they are not obligated to even advise the suspect at that moment.  Instead, the advisal will occur, if it happens at all, immediately prior to the formal interrogation.  Most commonly, suspects are presented with a written form containing their rights and they are asked to sign the form so police and prosecutors can later prove that the suspect indeed waived those rights.

Indeed, there is no practical purpose to provide the Miranda warnings upon arrest and tactical considerations would frown upon doing so.  Police can get evidence surreptitiously by placing two cuffed arrestees in the back of the patrol car and leaving them to talk, unwittingly believing that they are alone, all the while the audio recording device in the police cruiser is capturing all they are saying.  This is not a rogue practice but standard operating police procedure.  (Ruttledge, 2008, para. 2 – 3.)    Yet millions of television viewers are led to believe otherwise.  Why?  Perhaps it gives the actors something to say while putting on the cuffs.  Perhaps since every other movie and crime drama series does this, it has become expected in the industry.

Entertainment Media

This is a fictional genre so viewers who watch shows like Law & Order, CSI and Criminal Minds should know the difference between fictional content and reality, right?  Not so.  The problem is that while there is a disclaimer on most shows that the facts portrayed are fiction, the viewer still mistakenly believes that the backdrop for those facts, the criminal procedures portrayed, is accurate depiction of our criminal justice system.

Ask anyone who modernly teaches Criminal Procedure to undergraduate students and you will find resounding support.  Students enter such classes mistakenly believing they have a decent understanding of the criminal justice system from watching such shows.  The reality is the instructors have to de-program and unwind all the falsehoods these shows depict.

While the misinformation places an additional burden on criminal justice faculty, the challenge for the criminal defense attorney representing a client whose liberty is threatened can be untold and provides few opportunities to re-educate.  Jurors on a case do not come to court with a list of episodes they have watched.  The jurors believe that the procedures they have watched are accurate and the attorneys do not know the extent of each individual juror’s misunderstanding.  This has dangerous consequences.

When “The Practice” was popular, I had occasion to watch an episode when Dylan McDermott, playing the role of defense attorney Bobby Donnell, told a jury in closing argument, “I know my client is innocent.”  Six words.  Makes for good drama.  But if I say those words in closing argument, the prosecutor is entitled to a mistrial and I could be fined in contempt for making such a rookie mistake.  I cannot vouch, personally, for my client.  That would make me a witness and entitle the prosecutor to cross-examine me.  So I cannot make such an assertion ever.  Yet I do not know which of the jurors may have seen that particular episode and are expecting, if I believe my client to be innocent, for me to say as such.  So instead, I have to explain this to every jury in every case.  That is just one of the potential ways a misinformed juror could end up wrongfully convicting the defendant based on Hollywood’s reckless disregard for the truth.   This “alternate-reality” depicted in crime drama series does not always inure to the benefit of the prosecutor.

CSI Effect:  This is now a criminological term created by the misinformation in one particular series, CSI.  (Rath, 2011).  Much like with those who watch its companion series Law & Order, viewers universally understand that the factual scenarios depicted on that series are not true.  They may also understand that not all of the forensic techniques showcased are grounded in reality. But without an adequate understanding of the realities of the system, juxtaposed against the fictions presented as truths, the juror is ill-equipped to adequately assess the difference between the two.

CSI has created an entirely new occupation – that of the Crime Scene Investigator.  This position does not exist in one person or in one field of study.  Students enroll in college programs hoping to one day become a “Crime Scene Investigator,” motivated by this series.  Yet this position is unattainable.  There is the entry-level position of crime scene evidence technician.  These are the individuals who collect the evidence.  Then there are those individuals who look under the microscope and conduct scientific analysis.  These are the forensic examiners.  Finally, there are police detectives who interview witnesses.  One person does not do all three tasks.

In talking with jurors after they have rendered verdicts favorable to my client, it is common to find that they were disappointed with the lack of forensic evidence in the case and found the police work to be sloppy and incomplete as a result.  Yet many criminal prosecutions neither need nor support such.  Fingerprints are not going to be taken at all burglaries.  Fingerprints are not capable of being found on many surfaces.  Some surfaces would have so many different fingerprints, isolating to the criminal would be impossible.  Fiber evidence, paint analysis, DNA:  these techniques are costly.  Only in the most serious cases will such costs be justified.

The prosecutor in the Casey Anthony murder trial pulled out all the stops, forensically.  They were able to prove that the “smell of death” was present in the trunk of the defendant’s car.  Yet the jury acquitted Casey Anthony, much to the astonishment of the American public.  Many ascribe this failure-to-convict to the ‘CSI Effect.”  (Hoffmeister, 2011, para.  8).  The prosecutor, by relying so heavily on forensic analysis in its presentation of the case, may have unwittingly perpetuated this.  While proving certain facts forensically, the prosecutor was unable to prove manner or cause of death.  In the past, the circumstantial evidence of her disappearance might have been sufficient to overcome this absence.  But not modernly.  Jurors want and expect more, even while acknowledging CSI is a fictional representation.  Jurors, with “no legal training or real-life experience with the criminal justice system . . .  are without any frame of reference for how trials operate beyond what they see on television.”  (Hoffmeister, 2011, para. 2.)

The role and function of the defense attorney is also routinely impugned on these series.  Retained attorneys are depicted as high-priced shysters who will say or do anything to secure the acquittal of his or her client.  Conversely, the public defender is portrayed as feeble and inept.  Yet none of these depictions resemble reality.  Criminal defense attorneys, unlike their counterparts who practice Civil Law, are less motivated by the material gains in the profession and more motivated by the higher ideals of defending the Constitution.

In a companion piece,I address how the vast majority of cases, approximately 95%, do not go to trial, but plead guilty. (Durose & Langan, 2007.)   In those cases, it is incumbent upon the defense attorney to review the facts to ensure that the crimes alleged are supported by the evidence and that the government acted lawfully within the confines of the Constitution.  In this manner, defense counsel serves a quality control function.  The defense attorney ascribes to the Due Process model philosophy which believes that if the procedure is fair, the outcome should also be fair.  A “win” for the defense attorney, therefore, is a fair outcome and NOT an acquittal.  Prosecutors calculate their win-loss record on convictions and acquittals only.  Thus, in many cases, both prosecution and defense may consider the case that is fairly resolved by conviction, to be a “win” or a successful outcome.  By routinely portraying defense counsel as ethically bereft and chasing after the almighty dollar, the media does a disservice.  Jurors are more likely to believe prosecution experts than defense experts, believing the defense attorney will say or do anything to secure an acquittal.   This creates a bias in favor of the prosecution that shifts the burden unfairly to the defendant.

Reality TV

At its core, however, entertainment television is designed to entertain.  Reality TV, however, which purports to adequately represent the reality of the system, is much more nefarious when it seeks to abandon the truth in exchange for ratings.

Watch most “COPS” episodes and you will see the officers advising suspects of their Miranda warnings upon arrest.  This has confounded me for decades:  why?  I’ve concluded in those cases, it is likely the videographer or producer telling the officer to advise the suspect since its viewers will be expecting they do so.  When shows that purport to be “reality TV” deliberately present and promote a reality that does not exist, this helps to further confuse the public understanding of the true reality.

Beyond Scared Straight:  Perhaps most egregious is the series, “Beyond Scared Straight,” which airs on the Disney A&E network.  In this series, juveniles who get arrested for minor acts of delinquency are incarcerated for the weekend in order to “scare them straight” and deter them from continued criminality.  The only problem?  Scared straight programs do not work.  In fact, in repeated studies, juveniles who participate in the “Scared Straight” programs are almost twice as likely to reoffend as those who delinquents who do not.  (Aos, Phipps, Barnoski & Lieb, 2011.)

Criminologically, this makes sense.  Much of the deterrence of incarceration comes from the fear of the unknown.  The fear of the unknown is taken away from these participating juveniles who, because of the nature of their brief incarceration, are held in a sterilized and protected environment.  The juveniles are exposed to other delinquents who then share their criminal exploits with each other.  In the end, the juvenile, whose brain is not fully formed to appreciate risk and consequence, rationalizes that the experience wasn’t so bad after all and it might be worth committing another delinquent act.  (Sullivan, 2011).  Indeed, as this program has proven to be cost-inefficient and counter-productive to its stated goals, the federal government refuses to allow any federal funding to be used for these programs.  (Hornberger, 2011, para. 5.)

When A&E decided to air the story, it was flooded by the opinions of criminologists and criminal justice policy makers, who provided A&E with the evidence-based analysis showing its ineffectiveness and its danger to the continued delinquency of youth.  Their response?  To air yet a new series of episodes.  (Hornberger, 2011, para. 7.).  A petition, which is now closed, circulated in a failed attempt to require A&E to tell the truth about “Scared Straight” programs.   (Campaign for Youth Justice, 2011).

News Media

Equally disturbing is the inability of the News Media to accurately report on the criminal justice system.  Burglaries, a property crime defined as the entering of a building with the intent to commit a theft or a felony, (FBI, n.d.) are commonly described as robberies instead.  Robberies are, however, a violent crime and involve the taking of property through force or fear from one’s immediate presence.  (FBI, n.d.).  Thus, it would be an impossibility to report that an individual returned home from work one day to find that his or her house had been “robbed.”  Houses cannot be robbed, only people can be.

Another common mistake is the confusion between jail and prisons; a confusion that is exacerbated by realignment practices such as those in California that shift the population of one facility to another.  A prison run by the state and is intended for long-term commitments, generally over one year.  Jail, on the other hand, is a city or county facility and is intended for shorter sentences under one year as well as those who are unable to post bail and are awaiting trial.  (BJS, n.d.)

But the most egregious is how news media report on acquittals.  The reporter will indicate that the defendant was found “Innocent” after a jury verdict.  Unlike the confusion between robbery and burglary or jail and prison, both of which reflect an ignorance but not a malice, the decision to report not-guilty verdicts as “innocent” verdicts is intentionally made.  News outlets, worried that their reporters will make a mistake and not read the tele-prompter correctly, avoid using “Not Guilty.”  If the news reporter mistakenly claims that an acquitted defendant was found “Guilty” instead of “Not Guilty,” a potential civil suit could arise.  The irony is that in order to avoid the reporter making a mistake, the news agency makes a conscious and deliberate decision to report it incorrectly.

We do not have a verdict of “innocence” in our country.  Scotland does.  Scotland has three potential verdicts:  guilty, not-guilty and not-proven.  (The Scottish Government, 2013, para. 1.)  We do not.  Our verdict of “not guilty” could mean that the jury found that the defendant was innocent.  The verdict, however, could also mean that the jury found the prosecutor had not proven guilt beyond a reasonable doubt.  To falsely represent an acquittal as an “innocence” verdict is to misinform the public about what “not guilty” means.  Jurors may be loath to render a not guilty verdict simply because they do not believe the defendant is innocent, and irrespective of whether the prosecutor has proven its case to its standard.

Proof of Defamation

To prove that one’s reputation has been defamed, the litigant will have to prove that there was a published statement, that the statement was false and that the statement was injurious.  (Doskow, n.d., para. 3.)  As demonstrated above, there are many false statements perpetuated about the criminal justice system by the entertainment and news media.  The inability of the lay person to adequately distinguish between the false reality portrayed by the media and the actual system could lead to wrongful convictions or unnecessary acquittals.  When public figures sue for defamation, they have the additional proof of demonstrating actual malice.

“’Actual malice’ means that the person who made the statement knew it wasn’t true, or didn’t care whether it was true or not and was reckless with the truth — for example, when someone has doubts about the truth of a statement but does not bother to check further before publishing it.”   (Doskow, n.d., para. 12.)  This can certainly be proven as to Disney’s A&E network’s reckless portrayal of the “Beyond Scared Straight” program despite overwhelming evidence of its ineffectiveness and counter-productiveness.  This network has deliberately chosen the profit the show generates and rejected the truth.

This “actual malice” standard can also be proven as to news agencies that deliberately elect to report verdicts as “innocent” in order to avoid being sued by an individual for making a mistake.  Perhaps, if the news agency was worried about a defamation lawsuit on behalf of the taxpaying public for defamation of the criminal justice system, it would have the proper incentive to report on the truth instead of creating a fiction.

References:

Aos, S., Phipps, P., Barnoski, R. & Lieb, R.  (2001). The comparative costs and benefits of programs to reduce crime. Olympia, WA: Washington State Institute for Public Policy.  Retrieved on December 1, 2013 from:  http://www.wsipp.wa.gov/rptfiles/costbenefit.pdf

Bureau of Justice Statistics.  (n.d.)  FAQ Detail:  What is the difference between jails and prisons?  Retrieved on December 1, 2013 from:  http://www.bjs.gov/index.cfm?ty=qa&iid=322

Campaign for Youth Justice (2011).  Demand A&E tell the truth about ‘Scared Straight.’  Change.org.  Retrieved on December 1, 2013 from:  http://www.change.org/petitions/demand-ae-tell-the-truth-about-scared-straight

Durose, M.R.& Langan, P.A.  (2007, July 1).  Felony sentences in state court, 2004.  Bureau of Justice Statistics Bulletin.  Retrieved from:  http://www.bjs.gov/content/pub/pdf/fssc04.pdf

Duskow, E.  (n.d.)  Defamation law made simple.  NOLO.  Retrieved on December 1, 2013 from:  http://www.nolo.com/legal-encyclopedia/defamation-law-made-simple-29718.html

Federal Bureau of Investigation.  (n.d.)  Burglary.  Uniform Crime Reports.  Retrieved on December 1, 2013 from:  http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/property-crime/burglarymain

Federal Bureau of Investigation.  (n.d.) Robbery.  Uniform Crime Reports.  Retrieved on December 1, 2013 from:  http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/violent-crime/robberymain

Hoffmeister, T.  (2011, July 7).  Did ‘CSI Effect’ sway Anthony jury?  CNN.  Retrieved on December 1, 2013 from:  http://edition.cnn.com/2011/OPINION/07/06/hoffmeister.anthony.jury/

Hornberger, N.G.  (2011, August).  National juvenile justice experts:  Invest in proven strategies, not “Scared Straight.”  Reclaiming Futures.  Retrieved on December 1, 2013 from:  http://www.reclaimingfutures.org/blog/juvenile-justice-reform-Scared-Straight-CJJ-position-statement

Rath, A.  (2011, February 5).  Is the ‘CSI Effect’ influencing courtrooms?  NPR.  Retrieved on December 1, 2013 from:  http://www.npr.org/2011/02/06/133497696/is-the-csi-effect-influencing-courtrooms

Ruttledge, D. (2008, March 1).  The Bruton rule:  Playing arrestees against each other can help you elicit confessions.  Police Patrol.   Retrieved on December 1, 2013 from:  http://www.policemag.com/channel/patrol/articles/2008/03/the-bruton-rule.aspx

Sullivan, I.  (2011, September 6).  The many things that are wrong with A&E’s “Beyond Scared Straight” program. Juvenile Justice Information Exchange.  Retrieved on December 1, 2013 from:  http://jjie.org/whats-wrong-beyond-scared-straight/

The Scottish Government.  (2013, June).  Reforming Scots criminal law and practice: Additional safeguards following the removal of the requirement for corroboration: Analysis of consultation responses.  Retrieved on December 1, 2013 from:  http://www.scotland.gov.uk/Publications/2013/06/1213/5