The Jury Algorithm

The Jury Algorithm by Stanley P. Santire 1 of 26

THE JURY ALGORITHM:

How to Simulate a Jury, Whether We Can Do So

& Why We Should Care By Stanley P. Santire1

Table of Contents

I. Introduction II. Why

A. Why Before the How B. The Singular Purpose of Rules C. War Games

III. Whether A. Yes We Can B. Turning Turing Around C. Digital Holy Grail

IV. How A. From Chinese Box to Jury Box B. Virtual Computer C. For 0’s & 1’s to No’s & Yes’s D. Garbage In, Garbage Out: Input Before Output. E. Sex by the Numbers F. Flow Diagram G. Note About References and Terms H. A Caveat

V. Primary Sequence List – Sexual Harassment Jury Analog VI. Conclusion Attachment A: Primary Flow Diagram – Sexual Harassment Jury Analog

I. INTRODUCTION For the neophyte trial lawyer a jury trial is a carefully structured process with a

well marked path. Numerous rules of procedure and evidence seem to lay out a clear course. For the experienced trial lawyer, the ideal gives way to reality. In an actual trial the simplicity cloaking competing goals suddenly disappears. Conflicting claims and thoughts emerge heavily drenched with human biases unique to each participant, including - and most critically - the jurors. Feelings deceive logic. The goal of court rules is to tame these biases and empower logic through structure and direction. In a jury trial, a prime function is to filter irrelevant factors from the ultimate decision makers while

1 Stanley P. Santire, founder and managing principal of the Santire Law Firm, BBA University of Houston, 1966,

J.D. University of Texas School of Law . The author owes much to reviews and suggestions by Mark H. Friedman, University of Tennessee, industrial/organizational psychologist, Ph.D., Louis Markos, Robert H. Hare Chair in Humanities, Houston Baptist University, University of Michigan, Ph.D., and Edward Lewis, University of Michigan Law School, J.D., practicing lawyer and former faculty member, University of Michigan Law School.


providing them with relevant information in a structured process with a defined path resulting in a well grounded decision. If the algorithmic process central to digital computers could guide us through the emotional haze that smothers human reason, it could help us effectively navigate the complex litigation decision process. Beyond the court room, the concept would facilitate conflict resolution efforts ranging from business disputes to international confrontations. This paper does not propose litigation by computer. Nor is the idea of computerized human decision making revolutionary. Much research has gone into using computers to approximate the human mind. The hope is for something much more focused and therefore pragmatic: understanding the human drama of a jury trial as an algorithm. An algorithm is a finite set of instructions that, if followed, accomplishes a particular task.2 The most wide spread use of an algorithm is in computer programs. Any computer program is essentially an algorithmic process or, more accurately, a set of algorithms. The proposition of this paper is to see a jury trial as a computer process. In this way we enhance our understanding of the jury process and build a better foundation for moving it closer to the ideal goal of logical and well reasoned conflict resolution. The premise is simple: simulate a group of human beings in a trial from voir dire to verdict. The challenge is daunting and perfection cannot be expected. What can be hoped for is a tool to bring reason to the inherently passion filled arena of human conflict. First we will consider why we want to do so, follow with thoughts on whether we can, and conclude by considering how.

II. WHY

A. Why Before the How

“He who has a why to live can bear almost any how.”

Friedrich Nietzsche With these words Nietzsche described the capacity to bear suffering. Despite his primary intent, he also pointed to the essence of our strength in any worthwhile pursuit. Compared to the struggle with suffering, our ability to develop a computer program to simulate the role of a jury may appear prosaic. Yet we cannot deny the impact of computers on human society or the effort to make a better world in which suffering is reduced. After all, through the computer we produce medical technology to cure disease, evolve better agriculture to feed the hungry, enhance society’s ability to reduce poverty and make possible previously inconceivable achievements in every field of science. Nor in the midst of all this can we ever forget the no less important central role of the jury in the historical aspirations of humanity, particularly for democracy. Laying the foundation for modern America, the jury was central to the Athenian invention of democracy and the right to one is a key element in the United States Constitution.3 Neither the computer nor

2 Chuang Ming Liu, Design and Analysis of Computer Algorithms, Computer Science and Engineering,

NTUT, Spring 2008 3 United States Constitution, Article 3, Section 2.


the jury is prosaic. Combining them to produce an algorithm for dealing with conflict can be nothing less than profound. Still we need to know it is also something other than profound. In our pragmatic world we need practical applications. As William James put it "Grant an idea or belief to be true . . . what concrete difference will its being true make in anyone's actual life? How will the truth be realized? What experiences will be different from those which would obtain if the belief were false? What, in short, is the truth's cash-value in experiential terms?”4 Responding to James’ questions, a jury algorithm could serve three very practical and valuable roles: legal education, jury trial preparation, and a fundamental dispute resolution process for a broad range of conflicts.

As to legal education, the need is extensive. Thousands of students graduate every year from American law schools. In 1996, three years at the top fifty law schools in America cost from about $38,000 to well over $100,000.5 Law students graduate with an average debt of $84,000.6 One of the most lamented aspects of a law school education by many alumni is that dealing with a jury trial is left to be learned after graduation. The development of trial skills is literally trial and error. The newly minted lawyer enters a real court room assisting in handling a real case in front of a real jury. Airline pilots begin their training in a simulator. No airline passenger would willingly ride in a commercial jet piloted by someone about to learn through mistakes made during the flight. Yet, except for the few students who participate in moot court exercises, the trial process is a mystery until they enter it representing a client. If we could help students prepare for that experience, they would be better prepared to deal with it upon graduation and clients would be more effectively served. Just as a flight simulator dramatically contributes to pilot training before entering a real cockpit, law students could gain immense insight into trial work before walking into a court room. This could then be carried further. A computer simulation of a jury trial would help the experienced trial practitioner prepare for, and more effectively engage in, the battle of a particular trial.

B. The Singular Purpose of Rules

As experienced litigators know and all law students in civil procedure classes are

told, the singular purpose of rules of procedure and evidence is to achieve a logical conclusion by isolating the pertinent facts, smothering innuendos and neutralizing the irrelevant elements of unique personalities. The entire jury trial process is designed to filter extraneous factors from the ultimate decision makers while providing them with both facts and a structured process by which to make a decision. So in the midst of abundant guidance why do we have a problem? Why, in each trial, must a group of

4 William James, Pragmatism: A New Name For Some Old Ways of Thinking, Longman Green & Co. Lecture VI,

1907. 5 Internet Research Group, Inc., Cost-to Benefit Analysis of American Law Schools. Thi study utilized the tope fifty schools based on ranking by U.S. New & World Report Magazine. An can be found at http://www.ilrg.com/schools/analysis/ 6 Equal Justice Works, the National Association for Law Placement, and the Partnership for Public Service “From Paper Chase to Money Chase: Law School Debt Diverts Road to Public Service”, National Association For Legal Career Professionals, November 2002,


human beings work so hard to reason their way to a resolution? Why does a litigator so easily lose that vision of a clear path? Here the simplicity cloaking competing claims suddenly disappears. Conflicting claims and thoughts about those claims are heavily drenched with human feelings unique to each participant. Feelings deceive logic.7 Aristotle’s ideal of human logic is threatened if not crushed. If a computer could help guide us here, it could help us in any complex decision process.

We may not want to surrender the actual decision to a computer. As human beings, we need to preserve our humanity. Even if we wanted to defer to a machine on that ultimate decision of determining who wins and who loses, the computer may not be able to relieve us from the responsibility for rational judicial conclusions. Yet the digital mind’s eye of a computer can help us achieve clarity from the vantage of mathematically pure calculation. It could bring logic and consistency to human reasoning and enhance our understanding of an otherwise seemingly muddled decision process. Perhaps, just perhaps, by seeing a jury trial as an algorithm, we approach that ideal of a truly rational decision. Even if we refuse to let the computer make the final decision, it can reduce the range options, compress our decision time, and open the possibility of greater confidence in the validity of a verdict, not to mention enhance our capacity to achieve a desired verdict.

Clearly the time has come for litigators to take advantage of a major trend in computer use. The analogy between litigation and combat is frequently made.8 Perhaps the lessons of combat could be helpful. As one military leader explained, “Technology does not win wars; soldiers and leaders do . . . Training translates technology’s potential into actual combat power.”9 The analogy of a jury trial to combat is not without merit. “Lawsuits are wars too. Just as most international disputes are settled long before they get to the battlefield, so are lawsuits played out in meeting rooms, boardrooms, lawyer’s offices . . ”10

C. War Games

Instead of the immensely complex and expensive technology of warfare, lawyers often use people to prepare for a trial. For example, the term “mock jury” refers to a type of group analysis model that allows lawyers to evaluate the potential reactions of jurors to their evidence and arguments before a case goes to trial. Typically, a mock jury consists of eight to twelve “jurors” assembled to hear a summary presentation of both sides of a

7 Sidney Axinn, The Logic of Hope: Extensions of Kant’s View of Religion, Edition Rodopi, 1994. 8 Barry L. Goldstein, The Litigation Manual: Special Problems and Appeals, edited by John G. Koeltl and John E. Kiernan , American Bar Association, 1999, page 695. Also see Frederick Whitmer, Litigation Is War: Strategy & Tactics for the Litigation Battlefield, Thomson/West, 2007. 9 Lt. General James M. Dubik, USA, Simulation Operations And Battle Command Integration, Simulation Division

of the Army’s Battle Command Directorate, Army G-3/5/7 available at http://www.ms.army.mil/fa57/07_0_FA57_Flipbook.pdf. Also see letter from James F. Wiggins, Director, Acquisition and Sourcing Management, U.S. General Accounting Office, to Senator Kay Bailey Hutchison, August 29, 2001 available at http://www.gao.gov/new.items/d011113r.pdf. 10 Bruce Buaeno de Mesquita, The Predictioneer’s Game, Random House, 2009. page 87-88.


case. Once the case is presented, participants discuss the evidence and the arguments. Lawyers observe the group discussion from behind a one-way mirror or via remote video transmission.11 Mock juries are analogous to the war games used by military strategists and tacticians. These war games are often repeated with different scenarios using different variables. Various strategies and tactics are tried to ascertain possible outcomes.12 Due to cost, the mock trial typically occurs only once and the utilizing lawyers draw their conclusions from the responses of the mock jurors.13 Of course if resources are sufficient a litigator could retain an ongoing mock jury to be updated and queried as the trial proceeds. Then again, the cost of having multiple ongoing mock juries during the full trial would be cost prohibitive for all but those cases in which litigators – due to their clients – have immense resources and large potential returns from favorable results.

If the jury process could be simulated with a computerized algorithm, the various parameters would be changed to consider alternatives. As in military use, the high speed of computers simulating a human group decision could be repeated to achieve a broad array of tactical choices. This computerized simulation would be far more cost effective than a human mock jury. It would also mean a much wider array of litigation parties could take advantage of it. Prior to trial, analysis could be run based on a spectrum of variable factors including a range of possible juror psychological profiles.14 During voir dire, the characteristics of jury panel members could be run through computerized personality analysis to assist in both preemptory strikes and arguments setting out challenges for cause. Following the impaneling of the jury, ongoing analysis could be constantly maintained by inputting various occurrences, including perceived jury reactions. A litigator could use the results to periodically adapt tactics in real time. None of this would need a totally unique or actual psychological profile of each juror. Inputting information obtained during voir dire and jury observations during trial, broad range probable profiles could be built with the intention of achieving a general insight both as to individuals in the group and the blended collection of various possible personality types. This would be much more cost effective than repeating a mock jury trial for each set of possible parameters. From the voir dire through real time analysis of a trial’s evolution to statistical forecasting of a jury verdict, a jury algorithm could enhance litigation efficiency and bolster the potential for objectivity. This objectivity would benefit not only society’s effort to have a rational, fair conflict resolution process. It could add to the objectivity of each litigator.15 It would, inevitably, give tremendous

11 Jerry W. Thomas, Mock Juries, 1993, available athttp://www.decisionanalyst.com/Downloads/MockJuries.pdf 12

Michael Macedonia, Games Soldiers Play, IEEE Spectrum, March 2002, page 32 13 Patricia W. Lyer, Nursing Home Litigation: Investigation and Case Preparation, Lawyers and Judges Publishing

Company, 2006, page 682 14 For analysis of computerized verses psychological analysis see William M. Grove, David H. Zald, Boyd S.

Lebow, Beth E. Snitz, and Chad Nelson, “Clinical Versus Mechanical Prediction: A Meta-analysis,” Psychological Assessment, Vol 12(1), Mar 2000, pages 19-30. Also see Irving V. Weiner, “Handbook of Psychology, Volume 10, Assessment Psychology”, edited by John R. Graham and Jack A. Naglieri, John Wiley & sons, 2003, page 148 15 For a discussion on the need for such objectivity, see Antonin I. Pribetic, The “Trial Warrior: Applying Sun Tzu’s

The Art of War toTrial Advocacy”, 45 Alberta Law Review, pages 1017-1035,d 2008


advantage to one side or the other if only one side utilizes the simulation. If both sides were to do so, the process would dramatically enhance the potential for pre-verdict negotiations and agreed settlement or provide an impetus to settlement during the trial.

A third “why” for considering the jury trial as an algorithm is the broader range of alternative dispute resolution. Possible applications range from labor and construction arbitration to mediation of international conflicts such as the Israeli/Palestinian conflict. In addition to direct efforts to resolve these conflicts, considerable effort is spent in trying to find viable ways to do so.16 Surely the world would be better served by submitting international confrontations to a final jury decision rather dealing with the constant potential for war.17 The realities of sovereignty and politics prevent this. As a viable alternative, placing such conflicts in the context of a computerized jury deliberation might provide diplomats and international negotiators with better conflict insight and enhance the array of effective options.

PART 2: WHETHER

A. Yes We Can

Clearly we have substantial reasons to utilize computers in simulating a jury trial.

Whether we can do so depends on our ability to emulate the success of computers in various other decision making processes. In a pioneering insight, n 1943 William S. McCulloch, philosopher, physician, mathematician, and poet, proposed that a human brain could be modeled as a network of logical sequential functions.18 This was a revolutionary thesis at the time and proved both influential and prophetic.19 Researchers subsequently found that a behavior algorithm, consisting of a qualitative personality hypothesis, can be expressed quantitatively in conventional units and then deeds.20 The results become the subjects of human behavior calculations.

Researchers at MIT in the 1960’developed a computer program known as Eliza. Eliza responded to the user's questions and statements and applied basic counseling techniques such as reflection, focusing, clarification, and open-ended inquiry.21 The development of Eliza pioneered the development of computerized interactive psychotherapy. Research to date finds that some things are almost impossible for a computer to do, like noticing sarcasm in someone’s voice – on in the expression of a

16 James A. Schellenberg, Conflict Resolution: Theory, Research, and Practice, State University of New York Press, 1996, page 8. Also see John M. Dutton, William H. Starbuck, Computer Simulation of Human Behavior, John Wiley, 1971 17 For the viability of applying an algorithm to a seemingly dispute such as the Israeli-Palestinian situation see Bruce Buaeno de Mesquita, The Predictioneer’s Game, Random House, pages 71 –77 and pages 103-115 18 Warren S. McCulloch and Walter Pitts, A Logical Calculus of the Ideas Immanent in Nervous Activity, Bulletin of Mathematical Biophysics, Vol 5,, 1943. pages 115 – 133, 19 M. Mitchell, The Emerging Science At the Edge of Order and Chaos, Simon & Shuster, 1992, page 113. 20 N. M. Amosov, V. M. Belov, D. N. Galenko and V. S. Olshanikov, Heuristic Personality Models, Kybernetes,

1973, Vol. 2, page 181. 21 John Suler, Computerized Psychotherapy, The Psychology of Cyberspace, August 1999, vol 1.0


juror.22 These shortcomings are not an obstacle. In view of the possibility of an algorithm used as a tool to assist human decision making rather than replace it, perfection is not a practical or necessary goal. Indeed, such utilization is quite feasible in dealing with an analysis of human behavior. In a randomized controlled study of a computer-assisted therapy program developed to permit individualized therapy in a group setting researchers concluded that at least one form of computer-assisted psychotherapy is as effective and acceptable to patients in a clinical setting as standard short-term cognitive-behavioral therapy conducted by experienced clinicians.23

Note that the title of this paper is “Jury Algorithm” and not “Trial by Computer.” I am not proposing that we use computers to analyze a legal case and then accept the result to predict a verdict.24 Nor am I saying we must consider the viability of replacing a trial by human peers with a trial by computer.25 To that end, brilliant minds have been doing fascinating work ever since the advent of the supercomputer.26 Even the developer of Eliza, Dr. Joseph Weizenbaum at MIT, cautioned us on this. He wrote:

"I want them [teachers of computer science] to have heard me affirm that the computer is a powerful new metaphor for helping us understand many aspects of the world, but that it enslaves the mind that has no other metaphors and few other resources to call on. The world is many things, and no single framework is large enough to contain them all, neither that of man's science nor of his poetry, neither that of calculating reason nor that of pure intuition. And just as the love of music does not suffice to enable one to play the violin - one must also master the craft of the instrument and the music itself - so it is not enough to love humanity in order to help it survive. The teacher's calling to his craft is therefore an honorable one. But he must do more than that: he must teach more than one metaphor, and he must teach more by the example of his conduct than by what he writes on the blackboard. He must teach the limitations of his tools as well as their power.”27

My thesis is that a trial, particularly a jury trial, is not just capable of being

mimicked by a computer. It is a virtual computer. A simulated jury in a computer is a potential tool for the mind and not a substitute. More to the point, the typical jury process is a crude computer. The ideal of what happens to a jury in trial is an algorithm. An algorithm is “composed of simple steps that can be executed with stupendous

22 E-Business and E-Challenges by Veljko Milutinovic and Frederic Patricelli, IOS Press, 2002 pages 293-294 23 Sharon Dolezal Woods, Cynthia Belar and John Snibbe, A Comparison of Computer-Assisted Psychotherapy and

Cognitive-Behavioral Therapy in Groups, Journal of Clinical Psychology In Medical Settings, Vol. 5, No. 1, 1998, page 103 24 MacCrimmon, M., (1989). Expert Systems in Case-Based Law: The Hearsay Rule Advisor, The Proceedings of the Second International Conference of Artificial Intelligence and Law, Association for Computing Machinery Press, New York, p. 68. 25 G.M. Mosley Contractors, Inc. Phillips, 487 So. 2d 876, 879 (Ala. 1986) 26 Andrew Hodges and Douglas Hofstadter, Alan Turing: The Enigma, Walker & Company, October 2000 27 Joseph Weizenbaum, Computer Power and human Reason: From Judgment to Calculation, San Francisco: W. H.

Freeman, 1976


reliability by one simple mechanism or another.”28 For a mathematician, long division or multiplication is an elemental example as is Einstein’s equation of E=MC2. Even Charles Darwin utilized an algorithm in writing about evolution. Here is how he put it.

“What limit can be put to this power, acting during long ages and rigidly scrutinizing the whole constitution, structure, and habits of each creature, favoring the good and rejecting the bad? I can see no limit to this power, in slowly and beautifully adapting each form to the most complex relations of life.”29

The essence of a modern digital computer is a huge algorithm, an electronic psyche in the machine. An algorithm can be “defined as a precise and complete step-by-step recipe for a computational procedure, with very exacting and specific rules, expressible in a programming language.”30 As in mathematics and physics - and as was discussed above, in psychology - , the algorithmic operation of a computer can provide a vivid image of how the idealized jury trial process works.

B. Goal of the Rules

The goal of a trial is a logical conclusion based on facts and law.31 This goal is

clearly stated in Rule 1 of the Federal Rules of Civil Procedure.32 An obstacle to this goal is that the outcome is determined by a collection of human minds. In her book “The Law As it Could Be”, Professor Owen Fiss points out that judgments even of sophisticated jurists ranging from Earl Warren to William Rehnquist have “an emotional component, that is, as properly being based on some mixture of reason and passion.”33 The mixture of reason and passion inherent in the human mind is obvious in emotionally charged cases such as sexual harassment which we will use to illustrate the proposition of this paper.34 In such cases, issues are imbued, often drowned, by a sea of emotion and personal feelings that often overwhelm logic. Though Aristotle is generally recognized as inventing the science of logic,35 his predecessor and inspiration for the core American law school teaching method, Socrates, pioneered western philosophy by pointing out how illogical we can be.36

28 Daniel C. Dennett, Darwin’s Dangerous Idea, Simon & Shuster, 1995, page 51. 29 Charles Darwin, On the Origin of Species by Means of Natural Selection, London: Murray, 2nd Ed., 1874, page 469. 30 Encyclopaedia Britannica, Macropedia, 1974, Volume 4, page 1054. 32 “These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” Federal Rules of Civil Procedure, Rule 1, Scope and Procedure. 33 Owen Fiss, The Law As It Could Be, NYU Press, 2003, page 225 34 Litigating the Sexual Harassment Case, edited by Matthew Schiff & Linda Kramer, American Bar Association, 1999 35 Charles Van Doren, (History of Knowledge, New York: Ballantine Books, 1991, page 43-44. Also see the Organon, Aristotle 36 Plato, The Dialogues of Plato, translated into English by B. Jowett, Random House (New York, 1937)


In perhaps the most influential dialogue written by Plato, Socrates is on trial for his life, accused of atheism. His primary defense is to show contradictions. Addressing the accusation by Miletus, Socrates says “For he certainly does appear to me to contradict himself in the indictment as much as if he said that Socrates is guilty of not believing in the gods, and yet of believing in them.“37 Socrates asks only for justice in the court, saying that the duty of a judge is to “judge according to the laws, and not according to his own good pleasure.”38 He believed the primary path to justice was a logical analysis of the facts. If only we could present the facts to a court and know that unerring adherence to law and reason would always result in justice. We might even go further. We could eliminate the human factor, burdened by our sometimes messy thinking and distracted by biases and preconceptions. We could utilize science, not artistry, and harness the full power of logic and evidence.39 If only we could feed all the facts into a machine with electrical impulses operating according to the unerring laws of physics as substantive law and procedural rules. In goes the input. Out comes the verdict. “Tis a consummation devoutly to be wished”.40

Not by chance was Shakespeare talking about suicide. We may fear that if we turn fundamental decisions over to an inert collection of electrically charged silicon and metal we surrender the civilization’s defining social function of using human reason to determine who wins and who loses in a decision involving human beings.41 In a mechanized alternative The result could be collective existential suicide by killing the freedom so essential to being human.42 Following that path, we could find our lives to be the product of machines rather than machines being tools to enhance our lives. Yet, without sacrificing our fate to machines, we already use them to enhance those same lives. In its impact, the computer is arguably the most powerful and beneficial machine in history. Certainly a trial lawyer could say of a trial “I can work this out in my head” But as Bruce Bruno de Mesquita put it, no one can work through complex problems as effectively as they can with the help of a computer. “That is exactly where the added value comes in from having a trustworthy algorithm.”43 The result is that we can find “it profitable to think of the world in computational terms.”44 A computer has not yet been called to jury service. Despite this, we can consider whether the clarity of a computer’s decision process aids us in our understanding of what

37 Ibid Volume One, page 410. 38 Ibid page 417 39 Bruce Bueno de Mesquita, The Predictioneer’s Game, Random House, 2009, page xix. 40 William Shakespeare, Hamlet, Act III, Scene 1 41 Jaron Lanier, Future Tense: Confusions of the Human Mind: Cherish the Individual, Communications of the ACM, September 2009, Vol. 52, No. 9. page 112. 42 “Alfred Adler believed in the fundamental creative power of individuals and their freedom to choose and change their direction in life; this is very similar to the biological process called autopoesis which is the autonomous, self-renewing, and self-directing nature of all life forms (Nelson 1991).” chapter titled Classical Adlerian Theory and Practice by Henry T. Stein, Ph.D. and Martha E. Edwards, Ph.D. in the book Psychoanalytic Versions of the Human

Condition: Philosophies of Life and Their Impact on Practice, edited by Paul Marcus and Alan Rosenberg. At http://ourworld.compuserve.com/homepages/hstein/theoprac.htm 43 Bruce Bueno de Mesquita, The Predictioneer’s Game, Random House, 2009, page 90. 44 Paul Davies, The Mind of God, Simon & Shuster, 1992, 118


can be expected in the collective minds of a jury. Just as evolution changed our view of life, computers are changing our view of mind.45 Scientists struggle to explore the capacity of a computer to think as effectively as a human being.46 “IBM recently unveiled an advanced computing system that engineers hope can compete against humans on the long-running television game show Jeopardy.”47 For lawyers observing this effort, the challenge can be turned around so that an intriguing question emerges. Can we clarify the jury decision process by seeing it as a computer might see it or, more accurately, as a computer would do it? Instead of considering how a computer compares to the human decision making process, we might use the computer process as a prophetic mirror of human decision making.

C. Turning Turing Around

Philosophers and psychologists long suggested that mechanical processes might be

useful for understanding human behavior.48 Bertrand Russell said “The mind is a strange machine which can combine the materials offered to it in the most astonishing ways.”49 Going back much further, Aristotle laid the seed for considering the mind as a machine.50 In the 4th Century, B.C., Aristotle laid the foundation of logic as a science.51 Twenty-two centuries later and using Aristotle’s work as a foundation, George Boole developed the “world’s first mathematical logic.”52 With Boolean algebra, Boole’s made the digital computer possible.53 Computer scientists took the next step. They dreamed of using computers to duplicate the human mind. “The information age began with the realization that machines could emulate the power of minds”54. In 1950, Alan Turing projected a vision with a seminal question. "May not machines carry out something which ought to be described as thinking but which is very different from what a man does? This objection is a very strong one, but at least we can say that if, nevertheless, a machine can be constructed to play the imitation game satisfactorily, we need not be troubled by this objection".55 To keep this paper focused, I turn Turing’s question around by asking: May not human beings carry out something which ought to be described as computing but which is very different from what a computer does?

45 Marvin Minsky, Ph.D. Why People Think Computers Can’t, AI Magazine, vol. 3 no. 4, Fall 1982. Reprinted in Technology Review, Nov/Dec 1983, and in The Computer Culture, (Donnelly, Ed.) Associated Univ. Presses, Cranbury NJ, 1985 46 A. M. Turing, Computing Machinery And Intelligence Mind, 59, 1950, 433-460 47 Sharon Gaudin, IBM Plan Human-Machine Jeopardy Match, Computerworld, May 4, 2009, page 10. 48 Lee Gomes, Mind Versus Machine, Forbes, 5/11/2009, Vol. 183, Issue 9, page 46. 49 Bertrand Russell “The Conquest of Happiness” Horace Liveright, Inc., 1930, page 126. 50 Igor Aleksander “How to Build a Mind: Toward Machines With Imagination” Columbia University Press, 2001, page 54 51 John Corcoran, Aristotle’s Prior Analytics and Boole’s Laws of Thought, History and Philosophy of Thought, Psychology Press, Volume 24, Issue 4, 2003, page 261. 52 supra, page 261. 53 Frank J. Swetz, Learning Activities From the History of Mathematics, Walch Publishing, 1964, page 66 54 Martin Campbell-Kelly, Computing, Scientific American Magazine, September, 2009, page 62. 55Turing, A. M., 1950. "Computing Machinery and Intelligence", Mind 59/433-460, p. 435


D. Digital Holy Grail

Today we call Turing’s vision Artificial Intelligence or “AI”. AI has evolved to the point where computers convincingly mimic, or even engage in, many human behaviors. They play chess, fly aircraft and hunt for what we want on the Internet. Turing’s reputation as a genius was founded on his use of computers to decipher the supposedly undecipherable German codes of World War II.56 Before him, computers were used to aim large guns. Born in the violence of war, computers saturate the world with electronic data on which our society and most lawyers depend. Is it really beyond possibility for a computer to bring help to understanding jury deliberations when that same computer is capable of correcting a lawyer’s grammar through the Grammatique of WordPerfect or the Grammar Check of Microsoft Word? We call upon computers to engage in psychoanalysis.

While writing this article I went online and entered the search term “Myers Briggs”. The Myers Briggs test is based on the work of Swiss psychologist Carl Jung. Much to my surprise, I found that my online results were almost identical to a Myers Briggs test administered and graded by a friend who is a PhD. psychologist. In this brave new online world, with a little tenacity we can find our very own computerized therapist. Can we doubt that a computer could someday try a law suit when we already use it for psychological testing? The Holy Grail of computer science is to go further, beyond games and imitation.

In their quest, AI scientists seek to recreate human consciousness in a box. Without denying the possibility, some observers put limits on the AI horizon.57 John R. Searle, as professor of philosophy at University of California at Berkeley, made a distinction between advocates of Strong AI and Weak AI.58 Strong AI advocates believe that given the appropriate programming a computer actually becomes a mind; i.e. can be said properly to understand concepts and have other related cognitive states.59 For the weak AI advocate, the computer is simply a tool used to test various hypotheses about brain function.”60 My thesis is well within the more limited ambition of the weak AI school with hope for strong AI. I propose the computer as a tool of understanding and analysis, a paradigm that clarifies the trial of human conflict by a group of human beings called a jury.

56 The Essential Turing: The Ideas that Gave Birth to the Computer Age, Edited by B. Jack Copeland, Oxford University Press, 2004, page 279 57 Beryl Lieff Benderly, The Growth of the Mind And the Endangered Origins of Intelligence, Da Capo Press, 1998, page 39 58 John R. Searle, Minds, Brains, and Programs, The Behavioral and Brain Sciences, vol. 3. Copyright 1980 Cambridge University Press. 59 P.W. Singer, Wired For War: The Robotics Revolution and Conflict in the 21

st Century, Penguin Press, page 416

60 From “Computers, Artificial Intelligence, the Brain, and Behavior” by Andrew Jordan , http://serendip.brynmawr.edu/bb/neuro/neuro00/web1/Jordan.html


PART 3: HOW

A. From Chinese Box to Jury Box

To examine the basic premise of AI, Professor Searle used what he called a Chinese box.61 Suppose we take an English speaking man who does not understand Chinese and lock him in a box. He is now a prisoner and knows only what is given to him. Through a slot in the door he receives material in this sequence: 1st a batch of Chinese writing, 2nd another batch of Chinese writing and a series of rules in English that correlate the Chinese words the English words, and, 3rd another batch of Chinese writing and instructions that correlate the first and second batch with the third, and explain how to give back responses in Chinese to the symbols in the third batch. Searle uses this example to show the limitations of AI. He points out that there is no understanding of Chinese involved in the process, at least for the prisoner.

A computer can provide answers to submitted questions. However, like the prisoner in the box, he computer has no understanding of what it is doing. Now let us make the prisoner ignorant of a different subject. Instead of Chinese, he does not know the law. He has no education in Socratic analysis, critical thinking or the workings of court cases. He never read Black’s Law Dictionary, briefed a court case, or prepared for a bar exam. In other words, we put a typical juror into the box. Through the slot he receives: 1st a batch of documents of legal terms that he finds incomprehensible, 2nd another batch containing rules plus a series of facts and 3rd, a batch of instructions that correlates the first batch with the second and instructs him to analyze the facts and make conclusions drawn from the facts but confined to the legal terms. We might add another step: 4th the prisoner must make a response, or set of responses, each consisting of a yes or no, to a series of questions. Take the prisoner out of the box, put him in a chair with other similarly treated prisoners and fence them all in with a railing. Now, because we have several prisoners in our jury box, we add yet one more step: 5th the responses by the prisoner are to be coordinated with the other prisoners who have gone through the same process. Our prisoner is now a juror among jurors and we have a trial.

Look more closely at the prisoner in the Chinese box. Searle makes the point that the prisoner does not understand the Chinese words involved in the process. Similarly, though a computer provides answers to given questions, it has no understanding of what it is doing. At first this indicates that there is no way to get from a strictly formal computer language consisting of a series of 0's and 1's to human thought. According to our common assumption, more is happening in the human mind than a series of simple computer language words consisting of a collection of 0’s and 1’s. On one hand, Searle recognizes that on first encounter our brains, like computers, are machines. They are composed of substance, of neurons and synapses that transmit and exchange electrical charges. On the other hand, they are very special machines; i.e. things that think. This

61 John Searle, Minds, Brains, and Programs, Behavioral and Brain Sciences, Vol. 3, Issue 3, 1980, For a good description also see William E. Lyons, Matters of Mind, Routledge, 2001, page 165


thinking thing produces poetry, structures complex business deals, drives cars, designs – and navigates - rockets to the moon, and listens to music. It also generates an endless variety of conflicts resulting in trials. This thinking thing produces computers while the reverse, machines that produce thinking, have not yet been deemed possible except in science fiction and very ambitious champions of strong AI.

Instead of looking at an individual brain, consider a collection of entities that communicate with a set of symbols called words. Searle puts it this way. “While it is true that the individual person locked in the room does not understand the story, the fact is that he is merely part of a whole system and the system does understand the story. The person has a large ledger in front of him in which are written the rules, he has a lot of scratch paper and pencils for doing calculations, he has ‘data banks’ of sets of Chinese symbols. Understanding is not being ascribed to a single person; rather it is delegated to this whole system of which he is a part.”62 Similarly, in the jury trial our litigation system does not entrust a decision process to a mere individual. We look to the system, the jury as a whole. We do this because we put our faith in a synergistic process, a collaboration of several minds, to achieve a result that is more than the sum of its parts. We hope that people pooling their thoughts will achieve a more objective result than any of them would achieve individually. “Belief in the adage that two heads are better than one can be seen in the acceptance of juries as a basic component of our legal system and in the widespread use of committees.”63 So, taking a cue from Professor Searle, let’s look at that synergistic system. Instead of being confined in a literal box, consider a jury during the highly structured process we call a trial. This process is intended by court procedure and the rules of evidence to be a box, isolating the people inside it from irrelevant information, confining them to properly introduced evidence and the court’s instructions. We already recognize this procedural confinement by referring to the grouping of juror’s seats in the court room as the jury box.

B. Virtual Computer

Within their box, we expect jurors to reach a definite conclusion based on facts

and rules that are themselves a collection of specified symbols. Whether a collection of minds can engage in a process of thinking separate from the individuals making up the collection has long been doubted.64 The collective entities of the jury are held together by the flow of words, symbols or, if you would, imitators of electrical charges that are the life blood of computers. We can easily forget that human thought is never directly exchanged between or among human beings. Human minds are completely isolated from each other. To communicate, we use symbols called words which themselves are

62 John R. Searle, Minds, Brains and Programs, The Behavioral and Brain Sciences, vol. 3. Copyright 1980 Cambridge University Press. 63 Gayle W. Hill “Group Versus Individual Performance: Are TV + 1 Heads Better Than One”, Psychological Bulletin, American Psychological Association, Vol. 91, No. 3, page 1 64 Political Science Quarterly, Academy of Political Science, 1921, Vol. 36, page 122-123. More recently see Karl E. Weick, Making Sense of the Organization, Blackwell Publishing, 2001, page 272.


composed of a collection of 26 discrete symbols forming a discrete set of symbols called an alphabet. While the individual juror thinks, we can assume that the jury, the collective body, does not. That body receives from outside the box a stream of symbols and during deliberations exchanges these symbols among a fixed number of jurors. From this perspective we can look at the trial as a computing process rather than a mere collection of separate human minds. Let’s call this an algorithmic process. More to the point, we find a virtual computer. This is exactly the assumption made by the Federal Rules of Civil Procedure. They specify that “Unless the parties stipulate otherwise, the verdict must be unanimous and be returned by a jury of at least 6 members.”65 The rules exclude any consideration of a flesh and blood brain making a decision.

In a jury trial, we seek a single decision by a collective mind rather than a single mind. This is collective mind is singular, a clearly defined collection of minds. We seek a verdict from a jury, not a variety of verdicts from jurors. Our goal is to see if we can run a software program through this virtual computer just as we do with that box called a PC or, depending on your preference, an Apple. In this setting the software becomes something other than the role of an individual mind of a juror. Instead it takes the virtual role of what Searle calls “Weak AI”, a collective tool for the human beings that make up the jury. Though he is a prominent critic of exaggerated claims for the computer as mind, Searle says “I have no objection to the claims of weak AI.”66

C. From 0’s & 1’s to No’s & Yes’s

Human beings do not converse in 0’s and 1’s, the language of computers. Even with all its rules a trial does not transpire as a series of binary digits. More to the point, a trial is filled with the nuances of biases and values. Searle provides an answer. “To find out if an object is really a digital computer, it turns out that we do not actually have to look for 0's and 1's, etc.; rather we just have to look for something that we could treat as or count as or could be used to function as 0’s and 1's.”67 The italics are his. So in looking at the trial process, we need only find a human corollary to computer’s binary digits. These are obvious. They are the words “no” and “yes”, direct analogs to “0” and “1” used in a computer algorithm. An algorithm is “a set of ordered steps for solving a particular problem.”68 We can also characterize it as a sentence written with mathematics, binary math to be exact.69 The path a jury follows to a verdict emerges as an algorithm.

To render a verdict, a jury answers a series of questions in a jury charge. Each question is answered with a yes or a no. A “no” is, like zero, a nullity, and a “yes” is 1, a confirmation of being. Of course a trial is something more. It is the interaction of human

65 Federal Rules of Civil Procedure, Rule 48, Number of Jurors, Verdict. 66 John R. Searle, Minds, Brains and Programs, The Behavioral and Brain Sciences, vol. 3. Copyright 1980 Cambridge University Press. 67 John R. Searle, Is the Brain a Digital Computer, address to the American Psychological Association http://www.ecs.soton.ac.uk/~harnad/Papers/Py104/searle.comp.html 68 Robert Oshana, DPS Software Development Techniques for Embedded And Real-time Systems, Elsevier, 2006, page 59 69 Bruce Bueno de Mesguita, The Predictioneer’s Game, Random House, 2009, page 20.


beings and therefore filled with ambiguities, the biases we each bring to words that are beyond mathematically correct definition. No clear 0’s or 1’s here, at least not on first impression. Despite these ambiguities and more to the point of our algorithmic vision, every successful trial has one unbreakable rule that brooks no nuance. From the perspective of most parties to litigation, a trial is a zero sum game.70 It typically has a discrete winner and a clearly defined loser. Exceptions to this sometimes seem to appear. A plaintiff may get only part of the decision sought. This does not change the fundamental concept. What is not obtained by one party is a benefit to the other. At each discrete segment of the result something is won and something is lost. This perception of a trial as a zero sum game serves as a powerful argument for mediation.71

In the process of determining the result of this zero sum game, the jury has a set of issues which demand responses of discrete yes’s and no’s. As the jury progresses through a series of issues, they often do not know the ultimate result. The goal of an ideal trial is that they do not know: the better, say the judicial purists, to keep them objective. Thus the perfect trial is an inexorable evolution in logic without sensing that in its soul it is a computer program. It is a virtual computer, a composite of computations consisting of a series of yes’s and no’s mimicking their cousins in computer land, the 0’s and 1’s. We are now ready to set out our elements for a case to be tried by building our algorithm for the jury deliberation.

D. Garbage In, Garbage Out: Input Before Output.

Unlike the fixed and clear nature of an eventual verdict, with our jury algorithm as

litigators we are seeking probability, not prophecy. We are, after all, dealing with the ambiguities of personal preferences and biases that permeate human decision making. A computer is no more effective than the incoming available information concerning human thought where reflective human analysis is never perfect. Like our minds, a computer is dependent on the quality and quantity of information provided.72 However – and this is critical - unlike our minds, computers do not have an emotional I.Q. They brook no interference in their mathematically rigid rationality. This means that as a practical matter a computer can never come to a single conclusion that will emulate exactly the result of collaborating human minds. Therefore, rather than delve into the specifics of how a single rigid jury algorithm would be best designed, we can consider the various options. We have some very good ones available. We know, for example, that stochastic processing has been used to analyze the behavior of shares in the stock market and that ultimately such behavior grows out of collective – and often emotionally charged - human decision making.73 A stochastic process is random and evolves with time. This 70 Nicholas Leonidas Georgakopoulos, Principles and Methods of Law and Economics: Basic Tools for Normative

Reasoning, Cambridge University Press, 2005, Page 105 71 Edited by 71 Karen Duffy, James Grosch, & Paul Olczak, Community Mediation: A Handbook for Practitioners

and Researchers, Guilford Press, 1991, page 5 72 Deborah Du Nann Winter & Susan M. Koger, The Psychology of Environmental Problems, Lawrence Erlbaum Associates, 2004, page 158 73 Gregory F. Lawler, Introduction to Stochastic Processes, Chapman & Hal/CRC, 2006, page 1


would seem to make it the preferred choice for a jury algorithm in real-time analysis as a trial proceeds from voir dire to verdict.

We are not confined to the stochastic process. For example, an algebraic approach has some potential for jury decision analysis and could be an algorithmic candidate to help litigators present their strongest evidence.74 However, the stochastic process model may be superior to the algebraic approach in having the capacity to account for error variance in the juror decision-making process. Jurors make decisions about evidence in real time, interpreting and weighing each piece of evidence as received and adjusting their perceptions and attitudes before considering the next piece of evidence. Stochastic processing appears to be more attuned to this decision evolution.75

Whatever the computational model used for an algorithm, the process would consist of a series of steps. That is the nature of an algorithm. Once we set up this series for our jury algorithm, we would download it to a computer and follow with periodic inputs of information. This input would consist of facts, law, and observations. Information would range from evidence and law ascertained before trial as well as pretrial motion decisions, observations of members of the jury during voir dire, witness responses, and observations by the litigator of juror and judge behavior during the trial.

E. Sex By the Numbers

An excellent test case for a jury algorithm is a claim of sexual harassment. In any such claim, sex is by definition a central element. Sigmund Freud pioneered modern psychology with the premise that sexual emotions are a powerful force strongly distorting reason.76 As we saw above, a basic element in the trial of Socrates was his assertion that emotions can hinder justice. Aristotle went even further. He said law is reason free from emotion.77 We can safely assume that a sexual harassment trial is heavily imbued with emotions with an inherent tendency toward human error in logic.78

The basic question in a sexual harassment case is simple enough. Did the defendant engage in activity that American society condemns? It is an accusation fraught with strong feelings by all parties as well as most jury members. The U.S. Supreme Court laid out a series of steps that a trial is supposed to follow to arrive at an answer.79 The rules of evidence and procedure have plenty of rules to follow in an effort to achieve Aristotle’s ideal of objectivity. Courts and legislatures churn them out by the hundreds. For an experienced trial lawyer, the process is supposed to lay down a well marked path.

74

Psychology and Law: An Empirical Perspective, edited by Neil Brewer and Kipling D. Williams, The Guilford Press, 2005, page 372. 75 Psychology and Law: An Empirical Perspective, edited by Neil Brewer and Kipling D. Williams, The Guilford Press, 2005, page 372. 76 Sigmund Freud, The Interpretation of Dreams (1900) 77 Aristotle, Nicomachean Ethics 78 Jenson v. Eveleth Taconite Co., 120 F.3d 1287 (8th Cir. 1997) This case was the basis of a successful movie “North Country” directed by Niki Caro and starring Charlize Theron. 79 See McDonnell Douglas Corp. v. Green 411 U.S. 792 (1973)


A purpose of this paper is to envision a way for a computer to be used as a set of headlights to better understand the reality of that path as the trial unfolds.

F. Flow Diagram

Like the human mind, the computer operates on input. The first input step is providing it with pertinent facts and law. So we ask our computer to do a search. For brevity we cheat a little. Our computer is a recently minted astute law clerk. This particular cheating is allowed. After all, our goal is a software program designed to understand a jury in a sexual harassment case and not to carry out legal research. However, we are cheating in this article only to achieve brevity by not wading into the separate algorithm of legal research. As users of LexisNexis and WestLaw know, computer engineers and programmers have already designed effective programs for this task. The search term for our computer friendly law clerk is “sexual harassment - Title VII – U.S. Supreme Court – 5th Circuit” (assuming the case is to be tried in the 5th Circuit because this author practices primarily in the 5th Circuit) plus various permutations. Next we put all the resulting cases through the computer to cull out those that repeat discrete elements of a Title VII sexual harassment case in the 5th Circuit. We then instruct it to list the remaining cases with priority given to those most frequently cited. We then ask our computer to put these elements in a sequence according to the order in which they are dealt with in the cases. Our computer gives us the results. We quickly realize that our computer is very comfortable with the project because Title VII sexual harassment cases have ten discrete points, called issues. Each issue is a question requiring a “no” or “yes”. Each answer determines the next step in the sequence. In other words, we have a simple algorithm. The algorithm appears as the “Primary Sequence List” accompanying this article to which we append, for the sake of our human observer of the computer’s logic pattern, the most frequently cited respective cases for each Step. A graphic version of the algorithm is the software flow diagram. The computerized jury schematic is the “Primary Flow Diagram”. In place of “Diagram” for the more tactile reader we could use the term “Roadmap”. To show that such a metaphor is not a product of the author’s imagination, the use of such a road map occurred in the 5th Circuit case of Casiano v. AT&T, thereby confirming the lucky choice of the 5th Circuit for our computerized trial adventure.80 In Casiano, Justice Wiener drafted a diagram of the case he was analyzing saying “Moreover, we do so to reinforce the methodology specified by the Supreme Court for disposing of all supervisor sexual harassment cases under Title VII, following step by step the clear road map laid out for trial and appellate courts in companion U.S. Supreme Court cases, Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton.”81 While Justice Wiener saw a “road map”, a term not found in the Supreme Court cases he cited, he implicitely realized that those cases

80 Cassiano v. AT&T Corp. 213 F.3d 278 (5th Cir. 2000) 81 Burlington Industries, Inc. v. Ellerth 524 U.S.724, 118 S.Ct. 2257 (1998) Faragher v. City of Boca Raton 524 U.S. 775, 118 S.Ct. 2275 (1998)


collectively displayed a path on which a computer would feel comfortable. Utilizing a premise of this paper, in place of the term “road map” he could have used the concept of an “algorithm” as his metaphor.

Despite my use of a simplified model below for the algorithm, several of the questions within the model generate a subset of questions to which the respective answers are also yes’s or no’s. Furthermore, each question would be dependent on an averaged decision accruing from discrete simultaneous subroutines simulating each juror. The feasibility of using individualized jury psychological profiles was addressed earlier in this article. These individualized juror subroutines would be based on the profiles of each juror fed into the computer during voir dire and updated with subsequent observations of jurors during trial.

The simplified model consists of a Primary Sequence List, which could be called the Primary Algorithm. Via a Subroutine Sequence List, it is supplemented by various ancillary algorithms, or “subroutines” in computer programmer terminology, for the subsets in addition to the individualized juror profile subroutines. In an actual algorithmic process the Primary Sequence List and a series of subroutine sequence lists would be integrated. For example, consider Step 6 in the Primary Sequence List: “Tangible adverse affect resulted from plaintiff’s rejection of sexual harassment?” Step 6 actually consists, in our virtual computer’s mind, of a subset of questions to be satisfied by a set of yes’s or no’s, the subroutine or set of subroutines. Is the affect tangible? Is it adverse? Did the affect result from plaintiff’s rejection? Was it rejection of sexual harassment? For this Step 6 Sub Routine, I defer to a set of questions from a pattern jury charge described in the Subroutine Sequence List and referenced in Step 6 of the Primary Flow Chart. The need for subroutines is not an objection to a jury. Rather it further supports the value of a computer’s perspective. A question that on its face appears to be too ambiguous for the computer is merely an adjunct process, an ancillary algorithm, for what human beings refer to as a different level of thought, often blurred by being loosely described as an assumption. An algorithmic process makes no assumption other than the rules and data built into the process.

G. Note About References and Terms

The following Primary Sequence List shows the respective cases for each step.

The accompanying Primary Flow Diagram at the end of this article shows a simplified logical structure of the process. In the Primary Sequence List as well as the Primary Flow Diagram, the term AH is “Alleged Harasser.” PE is “Plaintiff Employee,” the employee alleging harassment. DE is Defendant Employer, the employer of both AH and PE. As the process proceeds, it encounters parameters in the form of cases inserted by the research algorithm. The Diagram and the Sequence list are intended only to illustrate a concept, a jury algorithm. For this reason, the article is not complicated by adding the subsets, or subroutines, that deal with any subsets of questions.

H. A Caveat


The Primary Sequence List and the Flow Diagram are extremely simplified illustrations of a concept and nothing more. The author is a lawyer with experience in jury trials. He is neither a computer programmer nor a computer architect. These illustrations are intended to display the concept and not to be actually used to program a computer. A fully functional and usable jury algorithm will require the collaboration of various disciplines including “the talents of a neuroscientist studying the detailed wiring of the brain, cognitive psychologists studying the second-by-second process of high-level reasoning, artificial intelligence researchers trying to model those thinking processes in a computer – even linguists studying the structure of human languages and anthropologists studying human culture.” 82 To function in the legal environment of a court room this gathering would require participation by experienced trial lawyers and jury consultants. The beauty of a resulting computer simulation is that with a desktop computer at each step of the trial a litigator could try out various ideas and see how they really work.83 With this in mind, we can set out a vision of a fundamental model as described below and in the accompanying Flow Diagram. V. PRIMARY SEQUENCE LIST – SEXUAL HARASSMENT JURY ANALOG

A. “Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for

an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. 2000e-2(a)(1).” Meritor Savings Bank FSB v.Vinson ET AL 477 U.S. 57 (1986)

A. “This case presents the question whether workplace harassment can violate Title VII’s

prohibition against “discriminat[ion] . . . because of . . . sex,” 42 U.S.C. § 2000e-2(a)(1), when the harasser and the harassed employee are of the same sex. Oncale v. Sundowner Services

B. Title VII’s prohibition of discrimination “because of . . . sex” protects men as well as women, Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983) We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. Oncale v. Sundowner Services

C. “ . . . we conclude that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII , . . . “ Oncale v. Sundowner Services

82 M. Mitchell Waldrop, The Emerging Science At the Edge of Order And Chaos, Simon & Shuster, 1992, page 71 83 Ibid page 289.

Step 1: Discrimination alleged? If yes, go to Step 2. If no, DE wins.

Steps 2: PE & AH of different sex? If yes, go to Step 6. If no, go to Step 3.

Step 3: AH Homosexual: If yes, go to Step 6. If no, go to Step 4.


A. “In Oncale, the Court outlined three ways in which a plaintiff can show that an incident of same-sex harassment constitutes sex discrimination. First, he can show that the alleged harasser made "explicit or implicit proposals of sexual activity" and provide "credible evidence that the harasser was homosexual." Second, he can demonstrate that the harasser was "motivated by general hostility to the presence of [members of the same sex] in the workplace." Third, he may "offer direct, comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace." La Day v. Catalyst Technology Inc. 5th Circuit B. See La Day v. Catalyst Technology, Inc., above

See La Day v. Catalyst Technology, Inc., above

See La Day v. Catalyst Technology, Inc., above

A. A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. “Burlington Industries, Inc. v. Ellerth 524 US 742 (1998)

B. “When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII.” Burlington Industries, Inc. v. Ellerth 524 U.S. 742 (1998)

C. “When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII.” Burlington, Inc. v. Ellerth, id

D. “And, lest our verbal exposition of the methodology mandated by the Supreme Court in those two cases be less than pellucid, we append to this opinion a graphic representation of that procedure. At the first stop on the Ellerth/Faragher road map, courts are required

Step 4: AH motivated by general hostility to persons of same sex as Harasser? If yes, go to Step 6. If no, go to step 5.

Step 6: Tangible adverse affect results from PE rejection of sexual harassment? If yes, then PE wins. If no, go to Step 7.

• See Step 6 Subroutine Sequence List.

Step 5: Comparative treatment both sexes the same in the workplace? If no, DE wins. If yes go to Step 6.

Step 7: Tangible adverse affect results from PE acceptance of sexual harassment? If yes, then PE wins. If no, go to Step 8


to determine whether the complaining employee has or has not suffered a "tangible employment action." If he has, his suit is classified as a "quid pro quo" case; if he has not, his suit is classified as a "hostile environment" case. That determination provides a fork in the road on the Ellerth/Faragher map: In a "quid pro quo" case, the road branches toward a second stop at which the court must determine whether the tangible employment action suffered by the employee resulted from his acceptance or rejection of his supervisor's alleged sexual harassment. If the employee cannot show such a nexus, then his employer is not vicariously liable under Title VII for sexual harassment by a supervisor; but if the employee can demonstrate such a nexus, the employer is vicariously liable per se and is not entitled to assert the one and only affirmative defense permitted in such cases since Ellerth and Faragher. In other words, proof that a tangible employment action did result from the employee's acceptance or rejection of sexual harassment by his supervisor makes the employer vicariously liable, ipso facto; no affirmative defense will be heard.” Casiano v. AT&T Corporation, No 99-50992 (5th Cir. June 12, 2000)

E. “On the other hand, if the first-stop question is answered in the negative, i.e., the employee did not suffer a tangible employment action ---- the situation perceived to exist as a matter of law by the district court in this case ---- the suit is a "hostile environment" case, and the other branch at the fork in the Ellerth/Faragher road must be followed. On this branch, a different inquiry ensues at the second stop: If proved, would the actions ascribed to the supervisor by the employee constitute severe or pervasive sexual harassment? If they do not, Title VII imposes no vicarious liability on the employer; but if they do, the employer is vicariously liable ---- unless the employer can prove both prongs of the Ellerth/Faragher affirmative defense, to wit: Absent a tangible employment action, (1) the employer exercised reasonable care to prevent or correct promptly any such sexual harassment, and (2) the employee did not unreasonably fail to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.” Casiano v. AT&T Corporation, No 99-50992 (5th Cir. June 12, 2000)

A. “In sum, we hold that a claim of "hostile environment" sex discrimination is actionable under Title VII, . . . “Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)

B. “For sexual harassment to be actionable, it must be sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment” Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)

C. “Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII's broad rule of workplace equality.” Harris v. Forklift 510 U.S. 17 (1993)

Step 8: Hostile environment severe? If yes, go to step 10. If no, go to Step 9.

Step 9: Hostile environment pervasive? If yes, go to Step 9. If no, DE wins.


See Step 8: C

A. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages Burlington Industries, Inc. v. Ellerth

B. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Burlington Industries, Inc. v. Ellerth

See Step 10: B.

Subroutine Sequence List

The Step 6 Subroutine Sequence is based on the following set of issues. This particular

set of issues was taken from the “Pattern Jury Instructions For Cases of Employment Discrimination (Disparate Treatment) For The District Courts of The United States Court of Appeals For The First Circuit” updated by the First Circuit Court of Appeals on April 11, 2003. They are for a case of quid pro quo sexual harassment, also referred to by the U.S. Supreme Court as Tangible Sexual Harassment.

First, [he/she] was subjected to unwelcome sexual advances that were sexually motivated because of [his/her] sex; and Second, [her/]his]rejection of the advances affected a tangible aspect of [her/his] employment – in other words, that were it not for [her/his] rejection of the advances, [she/she] would not have been [specify adverse action].

Based on this set of jury questions, the steps in this subroutine would be as follows:

Step 10: DE exercise reasonable care to prevent and correct. If yes, go to Step 11. If no, PE wins

Step 11: DE unreasonably fail to take advantage of preventive or corrective opportunities provided by DE? If yes, DE wins. If no PE wins.

Subroutine Step 6.2: PE subjected to sexual advances? If yes, go to Step 6.3 If no, go to Primary Routine Step 7.

Subroutine Step 6.1: Sexual advances by AH? If yes, go to Step 6.2. If no go to Primary Routine Step 7.


Using the set of questions from a Step 6 Subroutine, a subsidiary flow diagram could be structured that would fit nicely into the Primary Flow Diagram. Of course, even a question within the Subroutine could be broken down into further questions so that a third level subroutine may be needed. That third level routine may need more subroutines and so we might find ourselves going to a fourth level or even deeper. As in human thought, the deeper we go, the more effective is our understanding. Considering the inherent complexity of the human brain and the failure of science – only thus far84 - to actually duplicate human thought in a microchip, this seems at first blush a complex phenomenon that is less efficient than merely asking a few human beings to answer a series of questions with a yes or no. Such an objection misses the point. The very nature of increasingly complex levels of subroutines indicates the capacity of the computer to mimic the multi-layered nature of the human mind pioneered by Sigmund Freud. However, we are not dealing with human thought or even how a particular mind works. The purpose of structuring the jury deliberation as a computer flow diagram is to grasp the basic structure of a process that entails the collaboration of several human minds. After all, a jury is not a human mind. It is actually much simpler. A jury consists of a

84 “No one knows what the computers of 50 years hence will look like. Perhaps their abilities will surpass even the powers of the minds that created them.” Martin Campbell-Kelly, Computing, Scientific American, September 2009, page 65.

Subroutine Step 6.3: Sexual advances unwelcome? If yes, go to Step 6.4. If no, go to Primary Routine Step 7.

Subroutine Step 6.4: Sexual advances motivated by PE sex? If yes, go to Step 6.5. If no, go to Primary Routine Step 7.

Subroutine Step 6.5: PE rejected sexual advances? If yes, go to Step 6.6. If no, go to Primary Routine Step 8.

Subroutine Step 6.6: PE’s rejection affected PE’s employment? If yes, PE wins. If no, go to Primary Routine Step 7.

Subroutine Step 6.7: Affect on PE’s employment was tangible? If yes, PE wins. If no, go to Primary Routine Step 7.


group of discrete beings that must come to collective discrete decisions based on specific discrete facts and according to specific definitions. Like the computer, the jury deals with yes’s and no’s, essentially a series of 0’s and 1’s. We may disagree with the feasibility of Turing’s speculation on machines carrying “out something which ought to be described as thinking.”85 Even if we see feasibility in such speculation, we certainly would not want to surrender our thinking to machines any more than we would want to trade our face in the mirror for a mirror perfect picture of ourselves to be worn as a mask. Yet, we certainly welcome the image in the mirror as an excellent tool to understand what we really look like. Thinking of a trial as a computer algorithm helps us reflect on the fundamental steps followed by the trial. Such insight leads to better understanding both the logic that ties together the legal issues and the human group decision making mechanism that deals with those issues.

VI. Conclusion

A machine will never replace a jury. This is not a wishful statement by a human author confronted – and intimidated – by an increasingly computerized world. It is simply recognition that juries are an inherently human process. We will not allow ourselves to be displaced from making the fundamental decisions affecting human lives. Computers are tools. As such, they play an important role in facilitating the decision process. With computers we enhance our ability to make those decisions in a logical, faster, and well informed manner. As we find society’s decisions shaped by ever more complex laws and the enormity of information in an internet savvy society, we can use the logic of a machine, the computer’s perspective, to help us grasp the fundamental elements in our decision making. By breaking down the elements of a trial and organizing them into the logical flow of a computer flow chart, a lawyer can draft a clearer picture of the elements and how they are related to each other. Beginning with the voir dire, we could increase our ability to project possible outcomes. In the typical jury charge, we could provide juries with a flow diagram that clearly lays out the logical steps of what is expected of them. During the trial, by constantly inputting evidence and real time occurrences we could analyze progress and increasingly focus our expectations and our litigation tactics. To enhance law students learning of the law, we could help them build flow diagrams consisting of threads that weave through various inter-related court decisions. This would mimic the sentence diagramming that is so effective in helping grade school students understand grammar and syntax. To keep abreast of their profession, lawyers, judges and academics could synthesize the cumulative effects of mutually dependent cases. A spill over benefit of such an achievement would be to enhance all conflict resolution efforts in both domestic and international arenas. Above all, the clear picture drawn by a flow diagram could help citizens understand the impact on their lives by the maze of laws and the trial arena drama growing out of those laws. By thinking about a jury trial as an algorithm or, perhaps easier to envision, a virtual

85 supra


computer, we can evolve a better understanding of the vast array of decisions that make up a society. In short, by looking at the world through a computer’s eye, we move closer to clarity in an ever more complex world.


Attachment A:

PRIMARY FLOW DIAGRAM - SEXUAL HARASSMENT JURY ANALOG

Step 1: Discrimination alleged by PE?

Step 5: Comparative treatment of both sexes in same workplace?

Step 2: PE & AH of different sex?

Step 3: AH homosexual?

Step 4: AH motivated by general hostility to same sex as AH?

Step 7: Tangible adverse affect from acceptance of harassment?

Step 9: Hostile environment is pervasive?

Step 10: Did DE take reasonable care to prevent and correct?

Step 11: Did PE unreasonably fail to take advantage of protective or corrective

opportunities?

Yes

No

No

No

Step 6: Tangible adverse affect from PE’s rejection of harassment?

No

No

No

Yes

Step 8: Hostile environment is severe?

Yes

No

No

No

No

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes No

DE Wins

DE Wins

DE Wins

DE Wins

PE Wins

PE Wins

Jump to Step 6

Jump to Step 6

Jump to Step 6

Jump to Step 6

Jump to Step 6

PE Wins

PE Wins

Documents

The Jury Algorithm