There was an intriguing little article in the June 11 issue of People magazine, titled “Dog Discrimination?” Apparently, your average big black dog (“known in the rescue world as a BBD”) is much less adoptable than other dogs and “definitely more at risk of going to death row than a yellow or tan dog.” According to Jacque Lynn Schultz, of the ASPCA, this is in part because of their dark fur: “They look menacing–people can’t read their facial expressions as easily.”
The superficialities of appearance count for a lot in our society. We seem to attach more meaning to the aesthetic norms of exterior looks than to substantive evaluations such as beneficence of disposition, rationality of thought or generosity of action. While first impressions may count for something in some circumstances, the haruspication of character from looks alone is vastly overrated and generally misleading. Study after study has documented the unreliability of witness identification. Study after study has shown the degree to which race, class, suggestion, personal bias, fatigue, whimsy and stress can skew results. The work of the Innocence Project, whose use of DNA tests has exonerated so many of the mostly dark faces on death row, is only the most recent documentation of the frequency with which catastrophic mistakes about stereotyped demeanor do happen.
Indeed, the responsible use of forensics (whose fallibility is another story) has highlighted the contrast among differing methodologies of fact-finding on display in modern courtrooms. Scientific truth-seeking is a process, an inquiry, a series of tests that are reproducible. Scientists hold themselves open to a wide, sometimes endless range of variables that might contribute to cause and effect, right down to the clichéd flapping of butterfly wings in the Amazon causing storms in British Columbia. Truth to lawyers, on the other hand, is a “due” process, an obligatory series of steps that re-enact or recapture an event that occurred in another time and place. Its goal is closure rather than eternal exploration.
Both science and law have their meta-worlds–the lab, the courtroom–and each sets up controls against the influence of extraneous matter, as in the sterilization of equipment or rules that exclude hearsay. If science is rooted in empiricism, the trial is to some extent a theatrical enterprise. Philosopher Susan Haack has likened proof in the courtroom to a quasi-religious proceeding, historically traceable to the dunking of suspected witches to see if God would save them before they drowned; law professor Jessie Allen has analogized it to the kind of sequential rituals of mask and incantation that give certain traditions of magic their social power. We dress judges in robes, we raise our hands, we swear on a Bible. Then comes the peculiar process of evaluating “demeanor”: studying the bodies of parties and participants–their faces, their fidgety fingers–for outward signs of lying, for any shiftiness that will reveal the certain discomfort God and conscience will manifest in them if they are knowingly breaking an oath taken in the name of the divinity.