Charles Herring, Jr.
Herring & Irwin, L.L.P.

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Disciplinary Rules:
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3.01 – frivolous positions
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3.03 – false statements, fact or law
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3.04 – perjury, false evidence
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4.01 – false statements to others
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8.04(a)(3) – deceit, dishonesty, fraud, misrepresentation

Restatement of the Law
Governing Lawyers § 116 cmt. b
Witness preparation may include:
 discussing the witness’s recollection and probable testimony

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 revealing to the witness other testimony or evidence that will be presented and asking the witness to reconsider the witness’s recollection or recounting of events in that light rehearsal of testimony suggesting choice of words

Resolution Trust Corp. v. Bright ,
6 F.3d 336 (5 th Cir. 1993)
Sanctions imposed: disbarment,
$110,000 penalty, removal from representation.
RTC attorneys who allegedly had attempted to persuade a witness to sign an affidavit containing statements that the witness had not made.

5 th Cir. rev’d:
“It is one thing to ask a witness to swear to facts which are knowingly false. It is another thing, in an arms-length interview with a witness, for an attorney to attempt to persuade her, even aggressively, that her initial version of a certain fact situation is not complete or accurate.”

“ Disciplinary Rules 3.04(b) and
4.01(b) concern the former circumstance, not the latter. . . . A court obviously would be justified in disbarring an attorney for attempting to induce a witness to testify falsely under oath. . . .”

Equal Employment Opportunity Commission v. Mitsubishi Motor Manufacturing of
America, Inc., No. 96-1192 (C.D. Ill.
10/23/97)
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EEOC’s massive sex discrimination case against Mitsubishi
EEOC sent a “Dear Class Member” letter to
60 women Mitsubishi was going to depose. Mitsubishi moved for sanctions.

The letter contained “memory joggers” that it “suggest[ed]” each woman begin thinking about to “[c]onsider and try to remember whether or not you have experienced or observed such activities:

SEXUAL CONDUCT
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 sexual jokes, unwanted nicknames or greetings propositions, requests for sex, requests for dates unwelcome touching, groping, brushing up against circulation of pornographic photos, drawings

HOSTILITY TOWARDS WOMEN
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 anti-women statements, such as ‘women don’t belong in the plant,’ ‘why aren’t you home?’ etc.
women getting less favorable rotations/assignments women getting less training or cooperation or help

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Mitsubishi argued the letter would
“taint” the testimony of the women.
Dueling experts

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Held: Mitsubishi’s sanctions motion denied. “While certainly suggestive, the letter does not go beyond the bounds of the privilege that attends attorney-client communications related to deposition preparations.”

“In fact, the ‘memory joggers’ that
Mitsubishi finds so objectionable are probably, in most cases, no more suggestive than Mitsubishi’s own communications with its people before a deposition. . . . The ‘truth’ told at depositions . . . is rarely the product of an unprepared witness.”

“Lawyers routinely prepare their clients for depositions by focusing the client on the particular facts of the case that have legal significance. Although lawyers cannot ethically tell or allow their clients to tell a lie, suggesting subject matters to focus on in telling their story is surely what every competent lawyer, including the Mitsubishi lawyers, do to prepare their clients for a deposition.”

Ibarra v. Baker
2009 WL 2244659 (5 th 2009)
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Aff’d tr ct findings & discipline: attys
“improperly coached witnesses”
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Attys disqualified, they and Harris County fined $10,000
§1983 case – defense was that Ds had
“reasonable suspicion” for detention/arrest
D attys coached witnesses thru a consultant

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Attys used expert/consultant, Rodriguez, commander Tx Dept Public Safety
Terms: “high crime area” “retaliation” – linchpin of defense
Rodriguez had one-on-one meetings with
Ds
One D took notes to depo that closely tracked Rodriguez’s points

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D Ct: Attys used “Rodriguez to alter the officers’ deposition testimony substantively”
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5 th Cir: aff’d: the evidence was “a bit scant” but did not show the trial court’s findings were
“mistaken”

Monroe H. Freedman,
Understanding Lawyers’ Ethics
(1990)
“An essential step in competently litigating a case is what is called
‘preparing,’ ‘coaching,’ or
‘woodshedding’ one’s witnesses. . . .
‘It is axiomatic. Everyone who testifies has to be woodshedded.’”

“For example, the poorly educated day laborer who has suffered an injury, who can only say, ‘It hurt bad,’ must be helped to articulate what the pain is like, when it is present, and how it interferes with work, sleep, family life, and recreation. . . . The relevant details must then be sufficiently rehearsed to assure that no material evidence will be overlooked in testimony at trial, where leading questions will not be permitted.”

“ [T]he process is a highly creative one, affecting what is ‘remembered’ as much as what is ‘forgotten.’ . . . In fact . . .
[memory] grows. Although the initial perception may fade, ‘every time we recall an event we must reconstruct the memory, and so each time it is changed— colored by succeeding events, increased understanding, a new context, suggestions by others, other people’s recollections.’”

“A witness may reconstruct events without being … aware that he is either supplementing or falsifying the data of perception.”
“Lawyers should be aware that … even
‘straightforward questions of fact’ may significantly affect what a witness remembers, and leading or loaded questions can be particularly powerful in inducing good faith errors in memory ….”

“This procedure
that the client might have overlooked or might consciously or unconsciously be withholding.”

Michael Miller,
19 Litig. 10 (Summer 1993)
“Despite the psychological truth of the matter, when a witness does not demonstrate expected confidence or recollection on a point, jurors tend to underestimate the accuracy of his other memories.”

David Eagleman,
(2011)
“[M]ost of what we do and think and feel is not under our conscious control.”

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Honor-pay system for coffee/tea.
Researcher tracked payments.
Small sign of cost—changed decorative photos at top.
Even-numbered weeks: flowers.
Odd-numbered: watching eyes.

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Results: collected 3 times as much $ odd-numbered (watching eyes photo) weeks.
No office worker even remembered the decorative photos.

EXPERIMENTS ON
THE EFFECT OF
SUGGESTIVE AND LEADING
QUESTIONS

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Two groups of subjects were shown a photo of a basketball player, and then asked questions about the player’s height.
First group: How tall was the basketball player? Result (mean):
6' 7”
Second group: How short was the basketball player? Result (mean):
5' 9"

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Subjects shown a film of a multi-car accident, in which one car turned right to enter a stream of traffic, causing a five car bumper-to-bumper collision. Questions were asked to 2 groups, about 3 things that were shown in the film and 3 things that were not shown:
First group: “Did you see a . . . ?”
Second group: “Did you see the . . . ?”

Results: Whether the item was present or not, the first group (“a”) was twice as likely as the second group (“the”) to answer “I don’t know.” The second group was twice as likely to say “Yes” to identify something as being present that was not present.

El Al plane crash in Amsterdam,
1992
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2 engines fail, crashes, 39 die
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11-story apt. building
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Dutch psychologists study

“Did you see the television film of the moment the plane hit into the apartment building?”
55% - Yes
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Follow-up study:
66% - Yes
Details recalled: speed, angle of impact, fire at impact, plane body just after collision

Problem: no such film existed
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All results were from suggestive questions, postcrash coverage, conversations at the time

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Director of Engineering, Google
Winner, National Medal of Technology
Inventor:
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CCD Flatbed Scanner
First text-speech reading machine for the blind
Omni-font optical character recognition
First music synthesizer for orchestral instruments
National Inventors Hall of Fame
Bill Gates: “He’s a visionary thinker and futurist.”
7 books, 5 best-sellers, 2 movies
Keynote: SWSW (2012); LawTech Future (2013)

Exponential Rate of
Technological Change
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Universe – 14 billion years
Earth – 4.5 billion
Genus Australopithecus – 4 million
Homo habilis – 2.5 million
Homo sapiens neanderthalenis –
400,000
Homo sapiens sapiens – 200,000

Exponential Rate of
Technological Change
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Printing press – 400 years to reach mass audience
Phone – 50 years to reach 25% of
Americans and Europeans
Cell phone – 7 years
Facebook – 3 years

Exponential Rate of
Technological Change
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MIT first campus computer – cost tens of millions of $$$; occupied half a building
Current smart phone:
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Thousands of times more powerful
A million times cheaper
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100,000 times smaller
Several billion-fold increase in price-performace
25 years: computers a billion times more powerful, size of red blood cells – easily implanted in brain

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Director, Center for Neural Engineering,
USC
Developer, Brain or Cognitive Prostheses
Work on damaged hippocampus – forms new memories – short term – long term memory (STM to LTM)

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Rats trained to press levers, in nonmatched sequence, for water
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Brain signals recorded
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Converted to input-output spatialtemporal mathematical codes

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Then hippocampus drugged
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Rats can’t remember
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Artificial-hippocampus implant replicates signals
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Rat remembers – and can enhance normal memory

“Artificial memories created by a box and sent through the brain”
Potential applications:
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Traumatic injury victims
Alzheimer’s victims
“Enhance” memory [witness preparation?]

Daniel Reisel: Neuroscience of
Restorative Justice
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Studied violent psychopaths in prison
Lacked phyisical empathy –heart-rate increase, sweating
Empathy – centered in brain’s amygdala
Smaller amygdala in these subjects
Brain changing – interacting with victims

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Memory
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Communication
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Senses
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Multi-dimenstional thinking
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Extending the body
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Speed of thinking

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Jack Gallant
Brain scan: thousands of photos, clips fMRI to study brain activity – blood flow, neural firing
Voxels=volume pixels of brain activity
Neural decoding
Decoding key results

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Objects: hammer v. house: 90% accuracy
Gallant lab: 2 hours of movie trailers
– computer reference library of 1000s of hours of YouTubes – accurate on flow, colors, shapes – weak on details
(facial features)

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Bypassing human language
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Prediction – 5 to 15 years

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“How will we learn to deal with the truths of unfiltered human thought?”
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“We need to learn how to take this step together.”

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“Judges could use them to sneak a look into suspects’ brains by having them reenact the experience and reading their visions.”
“Such machines could also determine whether someone using the insanity defense is faking it, or whether someone claiming self-defense truly feared for his life.”

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John Villasenor, Could the Government
Get A Search Warrant for Your Thoughts ,
The Atlantic (July 26, 2013)
Daniel D. Langleben & Jane C. Moriarty,
Using Brain Imaging for Lie Detection:
Where Science, Law, and Policy Collide ,
Psychology, Public Policy, and Law (2012)

US v. Semrau
693 F.3d 510 (6 th Cir. 2012)
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Healthcare fraud prosecution
D offered fMRI from Dr. Steven
Laken, Pres. Cephos Corp.
Ev.: Dr. Semrau generally truthful when testified he tried to follow proper billing practices in good faith

US v. Semrau
693 F.3d 510 (6 th Cir. 2012)
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Ct app upheld d ct’s exclusion
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The technology not “fully examined in
‘real world’ settings”
Particular test was “not consistent with tests … in research studies”
R 403: prosecution didn’t know of testing in advance; solely to bolster witness credibility; did not indicate whether truthful on any single statement

US v. Semrau
693 F.3d 510 (6 th Cir. 2012)
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D ct held met first 2 Daubert factors:
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Technique can be/has been tested
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Technique has been subjected to peer review and publication
But not other 2 factors:
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Identification of error rates
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Not generally accepted in the field

US v. Semrau
693 F.3d 510 (6 th Cir. 2012)
“The prospect of introducing fMRI lie detection results into criminal trials is
undoubtedly intriguing, and, perhaps, a little scary.”

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Baylor College of Medicine et al.
Initiative on Neuroscience and the The
Law
David Eagleman, Director;
Secret Lives of the Brain
Incognito: The
Issues
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Crime & big data
Assessing offender risk
Eyewitness identification

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Director, Intelligent Robotics Lab,
Osaka University
Creator of Geminoid
Best Humanoid awards

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“There will be no distinction, post-
Singularity, between human and machine
…. Most significant will be the merger of biological and nonbiological intelligence
….”

When will the Singularity arrive?
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By 2020, brain-computer interface will allow control of android avatars
(e.g., allowing work in dangerous environments; use by disabled medical patients)

When will the Singularity arrive?
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2030:
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Human longevity vastly extended.
Full-immersion virtual reality involving all senses (a la “The Matrix”).
Vastly enhanced human intelligence.
Transfer of individual consciousness to artificial carrier.

When will the Singularity arrive?
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2045:
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The Singularity arrives.
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Nonbiological intelligence will be one billion times more powerful than today’s human intelligence.

THANKS. CALL OR WRITE ANY
TIME
CHUCK HERRING
512-320-0665 cherring@herring-irwin.com