The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Watching the aftermath of the Ferguson grand jury decision reminds me of a law review article, "They Saw a Protest": Cognitive Illiberalism and the Speech-Conduct Distinction, by Kahan et al. As regular readers may recall, the article presents a study of how different interpret an ambiguous video about an emotional and divisive public event. The study showed that people tended to see in the video what furthered their world-view. From the abstract:
"Cultural cognition" refers to the unconscious influence of individuals' group commitments on their perceptions of legally consequential facts. We conducted an experiment to assess the impact of cultural cognition on perceptions of facts relevant to distinguishing constitutionally protected "speech" from unprotected "conduct." Study subjects viewed a video of a political demonstration. Half the subjects believed that the demonstrators were protesting abortion outside of an abortion clinic, and the other half that the demonstrators were protesting the military's "don't ask, don't tell" policy outside a military recruitment center. Subjects of opposing cultural outlooks who were assigned to the same experimental condition (and thus had the same belief about the nature of the protest) disagreed sharply on key "facts"-including whether the protestors obstructed and threatened pedestrians. Subjects also disagreed sharply with those who shared their cultural outlooks but who were assigned to the opposing experimental condition (and hence had a different belief about the nature of the protest). These results supported the study hypotheses about how cultural cognition would affect perceptions pertinent to the speech-conduct distinction. We discuss the significance of the results for constitutional law and liberal principles of self-governance generally.
The basic idea is that people see facts that match their pre-existing senses of the world. And that makes it really hard to reach a social consensus when emotions run high, as different people will in good faith see such different facts.
I think that explains a lot of the reaction to the grand jury's decision. One narrative says that the prosecutors had a weak case based on messy facts and inconsistent testimony. From that perspective, the decision not to charge Wilson was surely correct: We wouldn't want prosecutors to indict a weak case where the jury should acquit. So from that perspective the system worked. The case was investigated, and the grand jury reached a sound decision based on the evidence. Now we can move on.
The other side looks at this completely differently. According to the second narrative, we had a sham grand jury process destined to fail, gutting a strong case that should have gone to trial in open court. The fact that the grand jury wouldn't even indict shows that the legal system doesn't value the life of Brown, and implicitly, all young black men. So from that perspective, the system failed. There was a sham investigation followed by a sham grand jury decision. Now we can't move on at all.
Which brings me to my reader poll. As between the first narrative and the second narrative, which do you think is closer to the truth? Here are four options, two for each answer and two for each (simplified) world-view. For purposes of this poll, "conservative on criminal justice issues" means thinking neutral to favorable thoughts about prosecutors and the police; "liberal on criminal justice issues" means thinking skeptical to negative thoughts about prosecutors and the police.
Which narrative best describes Ferguson and your views of the criminal justice system? Good process and fair outcome, and I am generally conservative on criminal justice issues. Good process and fair outcome, and I am generally lliberal on criminal justice issues. Sham process and sham outcome, and I am generally conservative on criminal justice issues. Sham process and sham outcome, and I am generally liberal on criminal justice issues. Free polls from Pollhost.com
Totally unscientific, of course. Void where prohibited. And all civil comments welcome in the comment thread.