This is my second post in a series that explores how we can think about news stories about people using lethal force in an act of claimed self defense. Part 1 discussed the basics of what might or might not be self defense, and this part expands the discussion to cover witness reliability.
I want to emphasize again that my discussion is neither legal advice nor self defense instruction, because I’m not qualified to give either, so if you read any of this as a how-to guide, you’re making a serious mistake.
So far in my discussion of the ethics of lethal force, I’ve discussed the basic ethics of self defense and the importance of considering what the participants thought was going on. But unless we are involved in the incident ourselves, we have no direct knowledge of either of those things. We have to rely on what the participants and other witnesses tell us, and that can get tricky.
Human perception is unreliable. We may think we experience the world in continuous high-definition full-motion real-time 3D Technicolor with stereo sound, but decades of research into the physiological and neurological function of our senses tells us that the raw sensory inputs are filled with noise and gaps, and our brains pick bits here and there that seem important, and fill the gaps with plausible guesses (based on our genetics and past experience), presenting the result to our conscious minds so we can react. If we’re under a lot of stress, this process gets streamlined to make it even faster, sacrificing accuracy in favor of quick responses to the most likely threats. We can miss important observations, misidentify objects, confabulate details, and even get confused about the order of events.
This problem appeared in Part 1 as the problem of mistaken beliefs: If Alice is expecting Bob to draw a weapon, and Bob reaches into his pants pocket to withdraw a mobile phone, Alice’s brain may catch the first glimpse of something dark and shiny and her brain may take an urgent shortcut to “Gun!”
If she then shoots Bob, is it fair to say she was careless for shooting before identifying the weapon? Or was it an excusable mistake because she was up against the limits of her sensory system? Does it matter that she could have done more to train her brain to make better decisions? Does it matter if someone trained her incorrectly? Does it matter if she incorrectly believes that people of Bob’s race are more likely to pull a gun?
Whatever we believe about the legitimacy of Alice’s perceptions, the same issues arise again when considering her account of events because what she remembers depends on what she thinks she saw — garbage in, garbage out — so we have to take into consideration the errors in her perception.
Making things worse, not only are people fooled by their perception of reality, but their memory of their perceptions changes over time. Our brains process our memories the same way we process reality, making mistakes and filling in the gaps along the way. We also integrate information from other sources into our memories, believing things we heard from other people, even if they aren’t true: If Dave saw Bob pull out a mobile phone but Alice says she shot him because she saw him draw a gun, Dave may come to believe Alice’s version and remember seeing a gun too.
We try to create a consistent picture of the world, but sometimes that means we replace real memories with invented ones, instead of the other way around. Sometimes the more we think about an event we remember, the more we contaminate our memory with errors and lies.
Interlude: Standing Your Ground, Lying in Wait, and Looking For Trouble
George Zimmerman’s shooting of Trayvon Martin brought a lot of attention to the issue of standing your ground. This enters our analysis in the form of asking whether it’s a moral failure to use lethal force to end a life-threatening situation when the threat could have been averted by some other means. If Alice is sitting in her car, and Bob approaches on foot, wielding a knife and screaming “I’m going to kill you!”, can Alice simply drive away? And if she could, does that mean that shooting him instead is unnecessary and therefore wrong?
What if Alice is walking instead of driving, is she still obligated to try to run? What if she’s trapped in a dead-end alley and can’t run away? What if the alley has a gangway between buildings that she could escape through, but Alice doesn’t see it? How hard should she be required to look for an alternative before shooting?
The details can be confusing. What if Bob is wearing running shoes and Alice is wearing high heels? Is she still obligated to try to escape? If Bob does chase her, how close should she let him get before she stops running and starts shooting? Fifty feet? Ten feet? When he grabs her? Whenever she reasonably believes escape is impossible? Whatever distance her shooting instructor taught her?
What if Alice is in her own home? Is she required to flee her home if she can? If she’s trapped in a room, and the assailant is blocking the exit, is she obligated to try to get out the window? What if she’s on the second floor? What if she’s on the fourth floor? What if she can flee safely, but her child is still in the home somewhere? It’s hard to know where to draw the lines.
Another issue I thought was raised by the Zimmerman case (although it was rarely mentioned) is the problem of someone who’s looking for trouble.
Suppose Alice stops in a rough bar to have a drink, and when she pays, she flashes a large wad of cash in her purse. As she leaves the bar, Bob follows her out into the dark street, pulls a knife, and demands “Your money or your life!” Alice draws her gun and shoots him dead.
That sounds like a pretty clear case of shooting in self defense, but suppose we find out that Alice has been flashing cash in rough bars three times a week for the last six months? Suppose Alice was intentionally trying to draw someone like Bob into attacking her, thus creating a situation in which she would be justified in shooting and killing him?
On the one hand, Bob brought the problem on himself by committing a violent assault. On the other hand, Alice pretty clearly had a premeditated plan to kill someone, which is usually called murder. So while Bob is certainly not innocent, Alice is arguably not innocent either.
Another example might be if Bob breaks into Alice’s place of business after hours, intending to rob the safe, but it turns out Alice is still there, and she confronts Bob and kills him in self defense. If Alice was lying in wait in the store in hope of confronting and killing a burglar, she might not be as innocent as if she had been working late to balance the books.
Standing your ground, lying in wait, looking for trouble — these are murky issue where reasonable people will disagree. I think it ultimately comes down to a conflict of values between Alice’s right to protect herself and society’s preference for reducing violence. We want Alice to be able to shoot to defend her life, but we also want to discourage Alice from entering into situations, deliberately or not, where she is likely to have to do so.
Up until now, I’ve been discussing the natural difficulties that arise when trying to analyze the morality of a lethal force incident. But now it’s time to address an unnatural difficulty: In addition to the honest perceptual problems that can contaminate witness accounts, we also have to allow for the possibility that witnesses are deliberately lying to hide the truth. In our attempt to understand what happened, we may have opponents who want to fool us.
Until now, we were able to confine our analysis to the particulars of the incident — who was where, what they did, and why they did it — but when we have to consider the possibility that some of the witnesses are lying, it means we have to check their story and evaluate their credibility, and so our analysis becomes explosively complex, consuming everything in the world.
For every single witness, whether they were involved or not, we have to consider the possibility that their story is a lie. We need to check it for internal inconsistencies, and we need to check it against our mental model of how the world works.
If Alice says Bob broke in to her house by smashing the second story window into her bedroom, does that seem like something that really could have happened? Is climbing up to smash a second-story window a common way for attackers to enter a house? Is it a sensible way to enter this house? Or would some other point of entry have been simpler? Does it make sense that Bob could have climbed up there? If he’d need a ladder to make the climb, did police find a ladder somewhere nearby? Is there any way to rule out the possibility that Alice placed the ladder there after shooting Bob? Does the spray of smashed glass comport with Alice’s story of what happened?
We should also consider the motivations of the witnesses. People directly involved have the strongest motivation to lie because they could face punishment for crimes. Alice might shoot Bob in cold blood out of pure malice, and then try to keep herself out of jail (and civil court) by saying she had to defend herself against Bob’s attack. Alternatively, Bob might attack Alice and get shot by her in a legitimate act of self defense, only to try to stay out of jail by claiming from his hospital bed that she shot him without provocation.
We also have to consider how each witness’s story is supported or contradicted by the accounts of the other witnesses. If Alice says Bob broke in, but her neighbor Emily claims to have seen Alice let Bob in the front door, how do we decide whether to believe Alice or Emily? We could analyze each of their stories in detail and try to pick it apart. How did Emily happen to be looking at Alice’s house? Could she see it from where she says she was? How does she know it was Bob? How does she know it was Alice who let him in?
If Carl steps forward as a witness and claims Alice shot in self defense, it’s possible that he is lying for reasons of his own. Perhaps he backs Alice’s story out of a sense of loyalty, even though he saw nothing at all, or perhaps he saw her murder Bob, but he backs her story because he fears her retribution. Perhaps he just hated Bob and doesn’t want to see Alice punished for something he wanted to do himself.
Alternatively, maybe Dave steps forward and says he saw Alice murder Bob. It’s possible that Dave hates Alice and wants to make her life miserable. Or maybe he didn’t actually see anything, but he doesn’t believe Bob would have attacked Alice, so he feels justified in lying to ensure that Alice is punished for the unprovoked murder of Bob. Or maybe Bob was Dave’s best friend, and even though he knows Bob attacked Alice first, he’s still angry enough at Alice to want her to suffer. Or perhaps Bob and Dave both attacked Alice, and now that Alice has won the fight, Dave wishes to blame her for murder to deflect attention away from his own crimes and get vengeance for the death of his friend.
It’s not just the specifics of the incident that matter. It’s also quite reasonable to examine witness stories for peripheral details that turn out not to be true. If Fred says he saw the whole thing while driving home from work, but the location of the incident is not on his route home, then maybe he’s lying about seeing the incident as well. Or maybe the incident is on his route home, but we have reason to believe he was somewhere other than his job that day, so he wouldn’t have been on that route. If he’s lying about the little things, maybe it’s because he’s lying about the big things.
Looking even further afield in our attempt to evaluate the credibility of witness stories, it pays to investigate whether the alleged behavior of the participants in this incident is consistent with their past behavior. Has Bob ever attacked someone before? If Gloria reports being attacked by Bob, it tends to support Alice’s story. On the other hand, if Bob has no history of violence, we might ask whether it’s more likely that Bob did something uncharacteristically violent, or that Alice is making it up.
That in turn might lead us to look into Alice’s past, to see if she has a history of shooting people. We might also then investigate whether Alice has a history of telling lies. If Alice has previously made false accusations that Harold attacked her, it casts doubt on her story that Bob attacked her.
Of course, when we hear either of these stories about the past — Bob’s previous attack on Gloria, Alice’s previous lies about Harold — it opens up two more incidents to analyze. Did Bob really attack Gloria, or is Gloria lying? Did Alice really falsely accuse Harold of attacking her, or is Harold lying? If there are additional witnesses to those incidents, the investigation proceeds to analyze their credibility as well.
The pattern repeats as all kinds of things get pulled in. What kind of person is Bob? Was Bob coming home from church at the time of the incident? Or was he coming home from heavy drinking at a rough bar? Did he get in a fight at the bar? Did he start the fight? Is Bob prejudiced against people like Alice? Is Alice prejudiced against people like Bob? What are the prejudices of every single witness? Do Bob and Alice know each other? Were they coworkers? Did either of them hate the other? Was one of them stalking the other? Were they lovers? Former lovers? Who dumped who, and why?
All of the answers to all of these questions require evidence, and that evidence comes in the form of accounts from other witnesses, all of whom must also be evaluated for plausibility and truthfulness, because people may lie to help their friends and hurt their enemies, or for personal reasons. We have to keep asking, how do we know? And who says? And are they telling the truth?
So now it begins to matter that Alice’s story is backed by Ivan, but maybe Ivan is lying because Jeff thinks Ivan has a thing for Alice because he saw Ivan give her flowers, but Kate says she got flowers from Ivan too, so maybe Ivan just likes giving women flowers, and now Larry is telling us that Jeff is lying about Ivan’s attachment to Alice because he hates her, and, and, and…
We’ve gone from the simple case of Alice shooting Bob to the vagaries of whether Jeff is lying about why Ivan is giving flowers to women. It all seems like a distraction, but there’s also a point about the credibility of a key witness to a shooting, so we can’t ignore it, but we shouldn’t make too much of it either, and so maybe we should get a little more information…
Multiply that by ten, or a hundred, and you can see why discussions of these incidents go so far afield. This is why it may be important that Treyvon Martin had Skittles, or that Michael Brown stole some cigars. This is why it may be important that Brown was going to college, or that officer Wilson had worked for a troubled police department before transferring to Ferguson. These facts aren’t part of the shooting incident, but they may matter because they’re part of how we judge the truthfulness of witnesses.
That’s it for now. In the third and (I think) final chapter, I’ll talk about how we hear about all this, and how we respond to it.
Update: Part 3 is up.