An Android in the Jury Room

By Matthew J. Donigian*

I. Introduction

The foreperson is considered an essential component of the American jury.[1]  After being selected foreperson, a juror is delegated the responsibility of harnessing the fact-finding power of the jury to reach an efficient and just verdict.  Although jurisdictions employ different methods when selecting a foreperson, the foreperson almost always functions as the jury’s leader and exercises her power by organizing discussion as she sees fit.  In recent years various jurisdictional foreperson selection processes have been scrutinized by empirical studies that aim to discover if the foreperson’s role gives her unequal influence in a jury’s verdict.  These studies indicate that the foreperson does possess considerable power and that certain methods of selecting a foreperson may be injecting inequity into the system.

Recently, amazing progress has been made in the fields of computing and artificial intelligence (AI), which may allow for an artificial intelligence to take over many of the administrative tasks that are currently taken care of by the foreperson.  Since the advent of the first digital computer—ENIAC—in 1947, the ratio of cost to processing power in computers has increased exponentially.  This reality has produced stunning advances in computing power over the last half century.  In 1986, the Cray X-MP supercomputer was capable of .220 gigaflops of processing power at the cost of about $15 million.[2]  Compare this to the HPU4Science cluster, which has 6,000 gigaflops (6 teraflops) of processing power and cost about $30,000 to build in 2011 using commercially-available gaming computer hardware.[3]  In addition, groundbreaking advancements in machine audio-visual recognition capabilities, natural language processing, and general increases in the sophistication of artificial intelligence are making technological feats once relegated to science fiction novels not only possible, but affordable; two stunning examples of this technology are the Forum and Blog Threaded Content Analysis project that is capable of analyzing “large volumes [of] social media content” and providing summaries useful to intelligence operations[4] and Google’s self-driving car.[5]

Exponential increases in computing power will inevitably allow an artificial intelligence to perform the responsibilities of a jury foreperson.  Handing over the responsibility of controlling the logistical affairs of the jury to an artificial intelligence may prevent the inequities created by unequal delegation of power to the jury foreperson.

II. Problems with the Human Foreperson

As expected, jury forepersons have more influence than other jurors during

deliberations.[6]  Forepersons also participate much more than other jurors, and “account for about 25%-31% of speaking during deliberations . . . .”  In addition, the foreperson makes “twice as many novel statements of facts or opinions” when compared to other jurors.

Jury forepersons are selected differently depending on the jurisdiction.  In most states the jurors themselves are free to choose the foreperson at the beginning of the trial, while in some states the judge selects the foreperson before deliberations begin.  Depending on the selection method employed, different sources of bias may have an effect on which juror is ultimately selected.  For example, when a judge selects a foreperson they may give preference to a juror “who nods at the right times and seems to interpret the case in the same way that judge does.”[7]  In states where jurors select their own foreperson there is evidence that education, occupation, and expertise influence the jurors’ choices.

Does the bias injected by the selection of a foreperson detract from the ideal the jury is meant to live up to?  This question largely depends on what ideal we have in mind.  In the not-so-distant past juries were almost exclusively composed of the wealthier elements of society, and the Supreme Court’s recently adopted ideal of the cross-sectional jury is in stark contrast to the composition of juries at the founding.  In Thiel v. Southern Pacific Co., the Court explains why the cross-sectional jury upholds democratic ideals: “[j]ury competence is an individual rather than group or class matter.  That fact lies at the very heart of the jury system.  To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury.”[8]

III. Technology Required to Create an AI Foreperson

A foreperson requires three major abilities in order to perform her function.  First, a foreperson must be able to hear jury deliberations.  Second, a foreperson must be able to think about what is said by other jurors and process that information.  Third, (ideally) a foreperson should be able to use this information to direct the jury’s discussion.  If a computer is to play the role of foreperson then it must be able to perform all of these functions as well as a human.

A. Speech Recognition

Jury deliberations present several challenges that voice recognition software must overcome if an artificial intelligence is to take over the role of foreperson.  The three most puzzling obstacles are the format of jury deliberations, which may often involve speakers talking over one another in varying volumes and voice types, the speed at which deliberations may take place, and the constant turnover of new jurors each time a trial takes place.

These are major challenges for modern speech recognition software because in order to increase accuracy, current software must be sensitive to a user’s voice while remaining extremely insensitive to outside noise.  This makes the best speech recognition software on the market very good at recognizing the speech of a long-time user with a noise-cancelling microphone but inept at accurately recognizing speech in a multi-party conversation.

The most popular speech recognition software on the market today is Dragon NaturallySpeaking (Dragon).  Although it is amazingly accurate, Dragon is inadequate for application in the jury room for two reasons: first, Dragon owes much of its accuracy to its ability to be “trained” by a user by analyzing the user’s voice when reading preset written materials;[9] and second, Dragon recommends completing training exercises in a location with similar ambient noise to the location where a user will be dictating so that Dragon can better isolate the user’s speech from other noises.

Recent developments in speech recognition algorithms have led to the creation of speech recognition software that—while less accurately than trained software like Dragon—can analyze speech without being trained by a user and can be used in everyday life.  The most popular of this new wave of software are Apple’s Siri and Google Voice Search.  And while these technologies have much of the speech recognition capabilities that would be needed by an AI foreperson, they have been criticized as inaccurate, with one review claiming that Siri processes speech accurately in noisy conditions only eighty-three percent of the time.[10]  Since many queries that are processed by Google Voice Search and Siri are short and to the point, these numbers would likely be far lower when presented with the unique challenges of the jury room.

B. Critical “Thinking” and Natural Language Processing

In order for an artificial intelligence to perform the duties of foreperson, recognizing the speech of jurors is not enough.  The artificial intelligence must also be able to accomplish the more complex task of understanding the context and nuances of natural language.  Without this ability, the machine is simply replacing the court reporter instead of becoming an element of the deliberating body.  While this capability is still outside the reach of current technology, there are several projects that show promise that this accomplishment will become feasible in the near future.

IBM stunned the world on February 14, 2011, when “Watson,” a supercomputer, beat Jeopardy! Champion Ken Jennings in the first and second rounds of a three-round tournament.[11]  Accomplishing this feat required Watson to hear and answer a broad array of questions, many of which included slang terms or cultural references.  Watson was able to win at Jeopardy! largely because of IBM’s natural language processing technology that allowed the supercomputer to “understand” the context of the question being asked and  provided a degree of representation and reasoning based on the processing of the information.

Natural language processing capability is essential to any artificial intelligence foreperson.  A skilled foreperson should also be able to sense consensus and call for straw-poll votes when the debate has coalesced.  Although Watson’s capabilities suggest that this technology will be available in the future, it is not yet adequate for this application.  Watson’s current capabilities are focused on answering specific and structured questions like those in Jeopardy!, and although jStart (Watson’s commercialized version) has been used in more practical applications like processing patient discharge reports in plain-text and generating follow-up alerts for healthcare providers, it is not built to process the massive amount of data and ambiguity present in live-action juror deliberations.[12]

C. Interaction

Perhaps the most important part of an artificial intelligence is its ability to communicate useful information to humans.  If all Watson did was “think” about Jeopardy! questions it may produce interesting academic data, but its astounding capabilities would be lost on much of the population.  What makes Watson truly amazing is its ability to synthesize the previous two capabilities—speech recognition and natural language processing—and then render the correct answer.  IBM allowed Watson to “think” by giving it a plethora of academic resources, the entirety of Wikipedia, and other reference materials.

However, having access to a world of knowledge is not enough.  Watson also needed to be able to sift through this information to identify the knowledge that was pertinent to each question.  IBM’s DeepQA technology gave Watson this ability by allowing Watson to consider the different ways that a question could be interpreted and then use probabilities and a complex search algorithm to hone in on the most likely answers.

Technology like Watson is currently inaccessible to state and federal courts due to the extremely large investment required for Watson to perform at the level it did during Jeopardy!.  This investment is computing power, and Watson had an unbelievable amount at its disposal: 90 clustered IBM Power 750 servers (each retailing at over $85,000) churning out over 80 teraflops of computing power.  Even if Watson-like technology was more cheaply available, it still would not be able to perform the functions of a competent jury foreperson.

IV. Future Feasibility as Evidenced by Exponential Increases in Computing Power

Although computer hardware and artificial intelligence software are currently incapable of performing the functions of the jury foreperson, this capability may not be as far off as many think.  According to Ray Kurzweil, the Engineering Director of Google, computer speed is not only increasing at an exponential rate, but the rate at which computer speed is increasing is also increasing exponentially.[13]  At this rate, supercomputer power will increase to around 500 times faster than the world’s fastest supercomputer, the Titan CrayXK47, by the year 2020.[14]

Kurzweil not only predicts exponential increases in computing power, but also exponential increases in computing price-performance.[15]  According to Kurzweil, this means that “later in this century . . . a thousand dollars of computation will be trillions of times more powerful than the human brain.”  This amount of computing power would be more than capable of performing the functions required of a jury foreperson, and affordable computers capable of performing this feat will most likely be available far before the type of system mentioned by Kurzweil.

IV. Conclusion

The constitution guarantees a criminal defendant the right to a trial by a jury of her peers.  This right places limitations on the role that an artificial intelligence can and should play in the jury room.  However, by relinquishing the leadership functions of the foreperson to an artificial intelligence, the jury can avoid any corruption associated with the foreperson’s selection and the power afforded her.

Eventually, artificial intelligence will be able to perform managerial and organizational tasks far better than any human foreperson.  An artificial intelligence could provide jurors with an accurate breakdown of how much each juror has contributed, a catalog of those contributions, and could ensure that jurors regard jury instructions when delivering a verdict.

In the near future, increases in technology will allow for an artificial intelligence to enter the jury room as a powerful tool.  In order to prepare for this reality, ethical concerns regarding the extent to which an artificial intelligence should participate in deliberations must be considered, and any implementation must carefully balance the defendant’s constitutional right to a trial by a jury of her peers and the interests of fairness and efficiency.

 


* J.D., University of Illinois College of Law. B.A., Political Science, University of Massachusetts at Amherst.

[1] The foreperson is usually elected at the beginning of deliberation and is charged with leading the jury’s discussion.  The foreperson will often call for straw-poll votes to check the jury’s progress toward a verdict.

[2] CRAY X-MP/48: 1986–1990, SCD Supercomputer Gallery, http://www.cisl.ucar.edu/computers/gallery/cray/xmp.jsp (last visited May 8, 2013).

[3] Adam Stevensen, High Performance Computing on Gamer PCs, Part 1: Hardware, Ars Technica (Mar. 30 2011, 11:30 PM), http://arstechnica.com/science/2011/03/high-performance-computing-on-gamer-pcs-part-1-hardware/2/.

[4] Noah Shactman, Air Force’s Top Brain Wants a ‘Social Radar’ to ‘See Into Hearts and Minds, Wired (Jan. 19, 2012, 6:30 AM), http://www.wired.com/dangerroom/2012/01/social-radar-sees-minds/.

[5] See Ashlee Vance, Google’s Self-Driving Robot Cars Are Ruining My Commute, Bloomberg Businessweek (Mar. 28, 2013), http://www.businessweek.com/articles/2013-03-28/googles-self-driving-robot-cars-are-ruining-my-commute (explaining the effects of Google’s self-driving cars on driving).

[6] Traci Feller, What the Literature Tells us About the Jury Foreperson, 22 Jury Expert 42, 42 (2010), available at http://www.thejuryexpert.com/wp-content/uploads/FellerNov2010Vol22Num6.pdf.

[7] Id. at 45.

[8] Thiel v. Southern Pacific Co., 328 U.S. 217, 220 (1946).

[9] See Learn Some Quick and Easy Tricks to Using Dragon NaturallySpeaking, Nuance, http://www.nuance.com/naturallyspeaking/customer-portal/tips-tricks.asp (last visited May 8, 2013) (explaining how to “train” Dragon to recognize your speech).

[10] Philip Elmer-DeWitt, Minneapolis Street Test: Google Gets a B+, Apple’s Siri Gets a D, CNNMoney (Jun. 29, 2012, 6:42 AM), http://tech.fortune.cnn.com/2012/06/29/minneapolis-street-test-google-gets-a-b-apples-siri-gets-a-d/.

[11] David R. Martin & Jim Fitzgerald, IBM’s Watson Beats ‘Jeopardy!’ Champs Ken Jennings and Brad Rutter in First Public Test, Mass Live (Jan. 13, 2011, 10:04 PM), http://www.masslive.com/news/index.ssf/2011/01/ibm_watson_beats_jeopardy_champs_ken_jennings_brad_rutter.html.

[12] UNC Healthcare: How Big Data Was Leveraged to Reduce Medicaid Re-Admissions, IBM Software: jStart Portfolio, http://www-01.ibm.com/software/ebusiness/jstart/portfolio/uncMedicaid.html (last visited May 8, 2013).

[13] Ray Kurzweil, How My Predictions Are Faring 135–36 (2011), available at http://www.kurzweilai.net/images/How-My-Predictions-Are-Faring.pdf.

[14] See Introducing Titan, http://www.olcf.ornl.gov/titan (last visited May 8, 2013) (describing Titan’s theoretical peak performance as 20 petaflops, or 2×1016 flops, compared to Kurzweil’s projection of around 1×1019 flops in 2020).

[15] Ray Kurzweil, Kurzweil Responds: Don’t Underestimate the Singularity, MIT Tech. Rev. (Oct. 19, 2011), http://www.technologyreview.com/view/425818/kurzweil-responds-dont-underestimate-the-singularity/.

Cyborgs: Natural Bodies, Unnatural Parts, and the Legal Person

By Alexis Dyschkant*

INTRODUCTION

The phrase “one’s person” has an important legal role because of the unique rights an individual has over her person and because of the prohibition on wrongfully contacting another’s person.  Isolating the boundary of a person is crucial for determining when (or if) someone has wrongfully contacted an individual.  Historically, “one’s person” has been limited to “one’s natural body” and some, but not all, artificial attachments to one’s natural body.  The cyborg, a creature composed of artificial and natural parts, challenges this conception of a “person” because it tests the distinction between the natural body and an artificial part.  Artificial objects, such as prosthetics, are so closely attached to bodies as to be considered a part of one’s person.  However, claiming that personhood extends to things attached to our natural bodies oversimplifies the complicated interrelation between natural objects and artificial objects in the cyborg.  If our person is no longer limited to our natural body, then we must understand personhood in a way that includes the cyborg.  I argue that the composition of a body does not determine the composition of a person.  One’s person consists to the extent of one’s agency.

ARTIFICIAL PARTS AND ONE’S PERSON: LEGAL BACKGROUND

One commits battery when she causes a “harmful or offensive contact with the person of the other.”[1]  Contact with a person has not been limited to contact with that person’s natural body.  For example, grabbing an object out of one’s hand is battery if the object is so closely connected to someone as to be considered a part of his body.[2]  In particular, objects which serve to substitute for a part of one’s natural body may be considered a part of one’s body, such as interference with a cane.[3]  Disability aids, such as prosthetics, wheelchairs, or hearing aids, are paradigm examples of artificial objects that are viewed as intimately attached to one’s body.  Interference with these objects is likely to be considered contact with a person.

The Restatement of Torts gives a guideline as to what is considered an “intimate connection”:There are some things such as clothing or a cane . . . which are so intimately connected with one’s body as to be universally regarded as part of the person.  On the other hand, there may be things which are attached to one’s body with a connection so slight that they are not so regarded. [4] At the heart of the discussion is the physical relationship between the artificial object and the natural body.  The artificial object needs to be attached to the natural body, and this attachment comes in degrees of intimacy.  At some point, the object is so closely attached we commonly refer to the object as part of one’s person.  Physical attachment to the body is the most significant factor in considering the role of an artificial object to one’s person.  For example, it is unlikely that touching a prosthetic limb that is completely detached from a body would constitute contact with a person.  Being attached to a physical body is paramount to determining whether an artificial object is considered a part of one’s person.

NEUROPROSTETHICS AND THE HIDDEN CYBORG

The problem with focusing on whether an artificial object is attached to a body is that the concept of “attachment” creates a conceptual barrier between “thing attached” and “thing attached to.”  Attachment can come in degrees, but it necessarily includes a relationship between two separate entities.  The image of the body, wholly organic and natural, and its artificial parts creates a dichotomy between the original, real body and its subsequent alterations.[5]  This image may accurately describe common representations of prosthetics and disability products, such as wheelchairs and canes, which can clearly be separated from one’s body.  But, while these kinds of artificial objects are common, it is a mistake to think that this is the norm.  The cyborg is more common than many believe.

A cyborg, simply put, is a creature that consists of both natural and artificial parts.[6]  Recent developments in science, called “Neuroprosthetics,” suggest that a science fiction conception of the cyborg is not entirely fiction.[7]  As the name suggests, Neuroprosthetics are artificial objects that are directly controlled by one’s nervous system—similar to how a natural arm is controlled.  Just in the last few months, we have seen the creation and private use of “Neuroprosthetic exoskeletons,” mechanical additions to a human body, such as a mechanical limb, which are integrated into one’s body.[8]  These exoskeletons respond directly to neuro-information in what has been called a “brain-computer interface.”[9]  Not only are these Neuroprosthetics not easily detached from one’s body like traditional prosthetics, but they challenge the inherent dichotomy between “thing attached” and “thing attached to.”  Neuroprosthetics become conceptually and biologically woven into the natural fabric of one’s body.  At one end, there is a clearly mechanical exoskeleton composed entirely of artificial parts and at the other end there is a natural, organic brain.  Somewhere between these two points, there is the woven interconnection between organic and artificial, but locating the “attachment” is difficult, and potentially, impossible.

But one need not look to modern technology to find cyborgs.  We are all cyborgs.  If the cyborg is as pervasive in society, then there is an even stronger motivation to distance personhood from biology.  The hidden cyborg is someone who has become so accustomed to her artificial parts that she fails to see herself as a cyborg at all.  The image of the natural human body as distinct from artificiality has become a thing of the past.  The most obvious examples of this are everyday objects like eyeglasses or cosmetics.  Tattoos are permanent additions to one’s body that can only be removed by removing organic material.  At the most extreme end of artificiality is the role of devices into which one can “off-load” his cognition, such as smartphones.  Some argue that our ability to save information contributed to the growth of our neuro-processing ability.[10]  Importantly, some of these artificial parts are not attached to a natural body.  Glasses merely rest on a body.  Tattoos are not “affixed” to one’s body, but literally woven into one’s skin.  Computing devices are entirely detached from our natural body.  This suggests that the role of artificial objects in one’s person extends beyond attachment.

CONCEPTIONS OF THE CYBORG’S PERSON

There are three possible responses to the existence of the cyborg.  One is to insist that one’s person is composed of a natural body and attached objects.  A second response, advanced by Gowri Ramachandran, is to reconceive of the body as a “social body.”[11]  I advance a third response which distances the “person” from the “body” and associates one’s person with one’s agency.

Salvaging the Natural Body-Artificial Part Distinction

One may insist that there remains an important difference between the natural body and the artificial object attached to the body.  Tattoos do not occur naturally; one must add a tattoo.  Similarly, one must attach a Neuroprosthetic to a natural body.  The fact that the location at which the exoskeleton is attached is difficult to locate does not mean that there is no point of attachment.  Moreover, consider the exoskeleton or the tattoo a paradigm example of the most intimate attachment.  However, this response blurs the role that “attachment” to one’s person is meant to play.  If the location of the attachment is lost and, thus the boundary between the artificial and the natural, then what distinguishes it from natural attachments such as donated organs other than the fact that it is artificial?  Moreover, even naturally occurring parts of one’s body can also become detached, such as temporary organ removal during surgery or a lost tooth that is going to be reattached.  The fact that functionally-equivalent artificial objects and natural objects can be attached and detached in similar ways suggests that a concept of “one’s person” should not depend on the natural-artificial distinction or the attached-detached distinction.[12]

The Social Body

Ramachandran offers a solution to the cyborg problem by introducing the “social body” which consists of those objects, possibly natural or artificial, which are important to our daily lives.[13]  One’s social body may include objects which blur the line between natural and artificial.  “Pacemakers, imaginary artificial organs of the future, and ink in a tattoo are often thought of as part of the social body, and they are neither organic nor human.”[14]  Ramachandran’s portrayal of the social body de-emphasizes the importance of attachment by focusing on the function of an object.  While this view is indeed a step in the right direction, it does not go far enough to distance the conception of one’s “person” from one’s “body.”  As she points out, the role of artificial objects in the social body is rhetoric that can potentially be identified as a replacement for natural body parts.[15]  The term “social body” invokes a pretense, as if it is an invented term used to give artificial objects a more privileged role in our lives.  Arguably, changing the natural body to a social body continues to place some body at the center of personhood.

Moving Beyond the Body

The view advanced here responds to the introduction of the exoskeleton-bearing cyborg and the hidden cyborg by distancing the body from the person entirely.  What the cyborg shows us is that the body can be composed of any kind of part but the person is necessarily the agent which controls, benefits from, and depends upon these parts.  Human tissue, animal tissue, or mechanical “tissue” all allow a person to exercise their agency and interact with the world.  The type of body which a person controls need not be relevant.  Hence, determining when one has made contact with “the person of another” does not necessarily depend on the naturalness or composition of one’s body, but on the relationship between the object contacted and the person’s agency.  We can imagine a technologically advanced future in which people retain control over parts detached entirely from their body or in which one’s person is dispersed across great spaces.  Neuroprosthetics are the first phase of this development; they are prosthetics that are not only integrated with our bodies, but also with our cognition.  They directly respond to electro-chemical signals put off by our brains.  What constitutes a person, in these cases, is that all of these parts compose a single agent capable of controlling or sensing them in the same way that we currently control or sense our natural parts.  The distinction between person and body is not new, but throughout much of history the person has been limited, or contained in, the body.  The development of the cyborg represents an exciting change.  It is now possible to conceive of the person extending physically beyond the body via attachments, integrations, extensions, and even completely detached objects.[16]


* J.D., College of Law, Ph.D., philosophy, University of Illinois at Urbana-Champaign, expected 2015.

[1] Restatement (Second) of Torts § 13 (1965).

[2] Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 629 (Tex. 1967).

[3] Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111, 114 (1784).

[4] Restatement (Second) of Torts § 18 cmt. c (1965) (emphasis added).

[5] See Donna J. Haraway, A Manifesto for Cyborgs: Science, Technology, and Socialist Feminism in the 1980s, in The Haraway Reader 7, 11 (1985) (discussing three theoretical boundary breakdowns in modern society between human and animal, organism and machine, and physical and non-physical).

[6] Id.

[7]E.g., Miguel A. L. Nicolelis, Mind in Motion, Sci. Am, Sept. 2012, at 58; Emilia Mikołajewska & Dariusz Mikołajewski, Neuroprostheses for Increasing Disabled Patients’ Mobility and Control, 21 Advances Clinical & Experimental Med. 263 (2012), available at http://www.advances.am.wroc.pl/pdf/2012/21/2/263.pdf.

[8] Chris Wickham, UK Paraplegic Woman First to Take Robotic Suit Home, Reuters (Sept. 4, 2012), http://www.reuters.com/article/2012/09/04/us-science-exoskeleton-idUSBRE8830RZ20120904.

[9] Mikołajewska & Mikołajewski, supra note 7, at 264.

[10] Cary Wolfe, What is Posthumanism? 35 (2010).

[11] Gowri Ramachandran, Assault and Battery on Property, 44 Loy. L.A. L. Rev. 253, 259 (2010).

[12] Haraway, supra note 5, at 11–13.

[13] Ramachandran, supra note 11, at 263–66.

[14] Id. at 267.

[15] Id. at 275.

[16] Ramachandran, for example, willingly includes smartphones as part of the social body in the form of an “exo-brain.”  Id. at 275–76.  The introduction of external information processing has led some philosophers, such as extended mind theorists and transhumanists, to include the smartphone as a part of one’s person.  Id.