Kate Bloch‘s article “Harnessing Virtual Reality to Prevent Prosecutorial Misconduct,” just published in the Georgetown Journal of Legal Ethics, seeks to provide a technological solution to reduce the serious problem of Brady errors (prosecutorial failure to disclose materially exculpatory evidence). Bloch’s point of departure is that prosecutorial mishandling of exculpatory evidence often stems from cognitive biases and heuristics, and the article suggests the use of avatars to facilitate perspective taking—understanding reality from an alternative point of view—as a remedy.
Professor Bloch’s typology of Brady errors recognizes three categories of misdeeds: when the prosecution is unaware of the existence of exculpatory evidence found by the police (explainable through officer or prosecutor cognitive bias); when the prosecutor knows of the evidence but does not perceive it as materially exculpatory (because of confirmation bias, or “tunnel vision”—the tendency to see one’s case as strong and overlook its weaknesses—or other cognitive biases); and when prosecutors deliberately do not share evidence they know is exculpatory. To me, the most interesting of the three is Professor Bloch’s take on the third category. While conventional legal analysis would recognize an act of knowingly misleading the defense as displaying “intent” or “bad faith,” Professor Bloch’s more nuanced perspective is more empathetic to the prosecutors: they are not necessarily villains if cognitive biases drive their decisions.
Because, to Professor Bloch, all three types of errors often may evince some form of cognitive bias, all three could be addressed through perspective taking. After reviewing some of the proposed solutions for Brady errors—improving charging accuracy, professional and conviction integrity programs, cognitive-bias training, involving unbiased decision makers in the Brady evaluation, open-file policies, and switching roles—she concludes that each of these has promise and shortcomings, and she suggests recurring to virtual reality as a “low overhead, potentially time-effective and cost-efficient approach that might modify the Guilt Perspective and resulting cognitive biases to change prosecutorial behavior to increase appropriate disclosure.”
As an example of the use of avatars, Professor Bloch provides empirical evidence of virtual reality’s proven success in reducing racial biases and in raising awareness to environmental harm. Taking on the embodied reality of a person with a different racial appearance, or experiencing firsthand a tree being cut down, is a powerful experience, which can break through the individual’s sense of self and penetrate consciousness more effectively than conventional persuasive approaches. Professor Bloch argues that similar techniques might be employed to reduce prosecutorial cognitive biases.
The challenge in designing such an experience lies in the fact that, as Professor Bloch explains, “a prosecutor has to concurrently hold two potentially inconsistent theories about the defendant in mind: that the defendant is likely guilty (otherwise charges would not have been filed) but may still be innocent (or at least that there may not be adequate admissible evidence to prove guilt).” The avatar experiment should be therefore designed to “dislodge the hold of the Guilt Perspective” by, for example, transforming the prosecutor into a defendant in the virtual space (Professor Bloch, following a conversation with our colleague Professor Emily Murphy, considers dressing the avatar in a jail-issued orange jumpsuit). A second type of intervention would use the avatar to psychologically reward prosecutors for disclosure, and a third might cast the prosecutor as a defense attorney fighting for a client who had been wrongfully convicted due to a Brady error. Professor Bloch thoughtfully considers the benefits and risks of such interventions, concluding that they are worthwhile investments for the prevention of miscarriages of justice.
Professor Bloch’s point about the importance of experiential perspective-taking is well-taken. Lingering questions about the precise nature of the virtual-reality interventions need to be answered. Would the facts in the virtual event be designed to match a particular case that the prosecutor has on her desk? Would she be embodying a generic defendant, or the particular defendant whose case she is handling? Is it possible, with a one-time virtual reality experience, not only to provide an enlightening experience, but to cure defects in particular cases? In addition, Professor Bloch’s theorizing anticipates some empirical testing as to virtual reality’s efficacy in this context. Given what’s at stake, the benefits the criminal-justice system could reap are well-worth the investment in creating the platform and testing its effect on real-life decisionmaking.