Literature as a Portal into Human Nature for the Defender

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Thursday, March 5th, 2015
Literature as a Portal into Human Nature for the Defender

Lawyers seem to agree that a knowledge of human nature helps in the defense of a criminal case. For example, Leonard E. Davies in his book, Anatomy of Cross- Examination: A History and the Techniques of an Ancient Art, emphasizes “a keen understanding of human nature” as the basis for effective cross-examination. Davies at 285. It may be that not everyone needs to study human nature. I do believe that some defenders have excelled at trial with little interest in the subject, but they seem to have had a set of interests and opinions that were shared by other people, their jurors, in a largely homogenous venue. Beyond these, the skilled defenders I have known all studied human nature.

What I offer below is not the “answer” to human nature, of course, but what perhaps will be an insight. It does not say much about emotion, which is key to decision-making. Nor does it talk about group dynamics—an individual and a pair and a jury and a mob are of different sizes and are different from each other. Nonetheless, I hope you find it interesting and helpful. Our theme is the complexity of human nature and human society. As our guide is Hamlet: “What a piece of work is a man! How noble in reason, how infinite in faculty! In form and moving how express and admirable! In action how like an angel, in apprehension how like a god! The beauty of the world. The paragon of animals. And yet, to me, what is this quintessence of dust?” 

Why does a keen understanding of human nature aid in the defense at trial? Understanding human nature allows us to understand why our client may have committed the crime he committed. It helps us tell our client’s story; if we do not know what facts will produce a reaction of pity or terror in our audience, we will be unable to select events that matter to the story. Understanding human nature helps us pick a jury and perhaps provides a hunch about which jurors will help or hurt us. Studying human nature helps us predict how a person will respond to our actions or answer a question in direct or cross-examination. Being correct about these aspects of human nature will help us make the decisions in trial. Certain jurors may disagree with us about aspects of human nature and this is worth understanding as well. 

What must the defender know about human nature? Many fields require a study of human nature. Economists, anthropologists, and theologians, for example, all develop theories of how people act. Although these are all of interest, as criminal defenders our immediate needs are more limited. It may not be important to us whether people act the way they do because of nature or nurture, but we may want to know how prospective jurors or witnesses feel about this subject so we may tailor our choices and questions. We may not need to know whether there is free will or determinism, but, again, it may be helpful to know this about jurors or witnesses. Whether there is an external or internal control over our actions is less important to our decision-making than what the jurors and witnesses believe about this. Even disputes of correlation or causation are less important to us than in other fields. If we can reliably associate chickens and eggs, we may not need to know what came first. If we know a cock crows at sunrise, whether or not he caused the sun to rise is not quite so important.

We must make a good guess about how people will react in different situations. Which jurors will acquit? What story will move a jury? How will this witness answer my question? Often, even if we are correct about the reaction, we can be wrong about the reason and still gain for our client.

For example, many people and philosophies make predictions based on a theory that people are innately bad. My experience is that most prosecutors who fit the job have this view. “People are bad, so there must be a strong government with strong laws to keep them in line, or there will be chaos that is harmful to all people.” This theory allows them to correctly predict behavior from time to time. It also forms the basis for most of the prosecutors’ trial themes presented to jurors. Sometimes it resonates with jurors and works well. Usually, jurors recognize that it over-simplifies human-kind and they will not swallow it whole.

Other people and philosophies (fewer, I think) make predictions based on a theory that people are innately good, or at least malleable to be made good. “People are good until society corrupts them, and if we have the right responses to social problems, including education and decent treatment, we can bring about a utopia.” Some criminal defenders hold this view, but likely it has declined as Clarence Darrow fades into the past. This theory will also sometimes correctly predict behavior and it will resonate with a few jurors. For the most part, in my experience, it is viewed as naive, and jurors recognize it over-simplifies human nature and will not swallow this whole, either.

Still others rely on a variety of theories, some of which espouse a single description of human behavior: Man is a blank slate. Man is a noble savage. Economic determinism governs human conduct. Repressed sexual desires and the unconscious dictate conduct. In this article, we avoid the explanations that wrap up people in a single big idea and revert back to the more complex understanding that comes from traditional sources from Aristotle to Aquinas. As a portal to traditional understanding of human nature, we propose the defense lawyer study literature. 

The best way for defenders to view human nature is through literature. This is not as frivolous as it may first appear—many of the theorists of human nature rely heavily upon literature. For examples, Freud and Rene Girard come to mind. The great advantage is that literature recognizes the complexity of human personality and human society that confront the criminal defense lawyer. This complexity is also confirmed by science, of course, but literature frees us from being blown around by each new study. Chicago writer Joseph Epstein describes this: “One of the most important functions of literature in the current day is to cultivate a healthy distrust of the ideas thrown up by journalism and social science.” Novels and poems can be the antidote here. “The novel’s spirit is the spirit of complexity,” Milan Kundera writes. “Every novel says to the reader: ‘things are not as simple as you think.’” When he is working well, the good novelist persuasively establishes that life is more surprising, bizarre, fascinating, complex, and rich than any shibboleth, concept, or theory used to explain it. A literary education establishes a strong taste for the endless variousness of life; it teaches how astonishing reality is—and how obdurate to even the most ingenious attempts to grasp its mechanics or explain any serious portion of it! “A man is infinitely more complicated than his thoughts,” wrote Valéry—which, if you think about it, is happily so. A Literary Education at 311.

Why does literature so well describe human nature for criminal defense? First, literature reflects tradition representing centuries of experience about how people act, and through trial and error, it usually gets the right answer. The simpler explanations of human nature that have been espoused since the Enlightenment in efforts to improve upon tradition have fallen short when tested. The older and the more universal the tradition, the more it can be trusted. Newer, more regional traditions are less trustworthy. For example, we do not now believe that trial by battle will find the truth in a lawsuit. This was primarily a Germanic concept (8th century). When exposed to the older and more universal Roman and Christian law, it lost credibility. Second, even if a tradition (in the long, long run) proves to be false, in the shorter run, it is still believed by jurors, so may still for some purposes be relied upon in defending a case. That having been said, we do not live in an age of faith, so to the extent literature is bolstered by psychology as I understand it, I will present it.

First, the literature. In Shakespeare’s play, As You Like It, Act II, Scene VII, Jaques in his monologue beginning “All the world’s a stage,” presents seven stages of man. They are represented by the infant, the schoolboy, the lover, the soldier, the justice, the pantaloon, and the old man in second childishness. These stages did not begin with Shakespeare, but represent a tradition rooted in the Christian philosophy of the Middle Ages. Jaques’ description is humorous and presents a physical description of a man in each of these ages:

All the world’s a stage,
And all the men and women merely players.
They have their exits and their entrances,
And one man in his time plays many parts,
His acts being seven ages. At first the infant,
Mewling and puking in the nurse’s arms.
Then, the whining school-boy with his satchel
And shining morning face, creeping like a snail
Unwillingly to school. And then the lover,
Sighing like furnace, with a woeful ballad
Made to his mistress’ eyebrow. Then, a soldier,
Full of strange oaths, and bearded like the pard,
Jealous in honour, sudden, and quick in quarrel,
Seeking the bubble reputation
Even in the cannon’s mouth. And then, the justice,
In fair round belly, with a good capon lin’d,
With eyes severe, and beard of formal cut,
Full of wise saws, and modern instances,
And so he plays his part. The sixth age shifts
Into the lean and slipper’d pantaloon,
With spectacles on nose and pouch on side,
His youthful hose, well sav’d, a world too wide
For his shrunk shank, and his big manly voice,
Turning again toward childish treble, pipes
And whistles in his sound. Last scene of all,
That ends this strange eventful history,
Is second childishness and mere oblivion,
Sans teeth, sans eyes, sans taste, sans everything.

Next, the evolutionary psychology. These seven stages for Jaques are presented in chronological order. Please understand we are not describing types of people. This is exactly what we are trying not to do: decide that someone is of a type. These are all characteristics within every person, and we never know which one we will see (or be). The evolutionary psychologists recognize that they are explaining the ancient wisdom. Steven Pinker in his book, The Blank Slate: The Modern Denial of Human Nature, refers to this connection:

Evolution is central to the understanding of life, including human life. Like all living things, we are outcomes of natural selection; we got here because we inherited traits that allowed our ancestors to survive, find mates, and reproduce. This momentous fact explains our deepest strivings: why having a thankless child is sharper than a serpent’s tooth, why it is a truth universally acknowledged that a single man in possession of a good fortune must be in want of a wife, why we do not go gentle into that good night but rage, rage against the dying of the light.

Jaques’ stages of man are explained, I believe, by another evolutionary psychologist, Douglas T. Kenrick. Kenrick, a psychology professor at Arizona State University, based on his clinical experiments with human beings, comes to the conclusion that we each have seven subselves that make decisions. For me, this explains why Jaques was correct in describing the seven personalities and also why so much more traditional wisdom about people is also correct. Kenrick places the different selves in a pyramid and describes them from bottom to top: 1. Immediate Physiological Needs, 2. Self-Protection, 3. Affiliation, 4. Status/Esteem, 5. Mate Acquisition, 6. Mate Retention, and 7. Parenting. Kenrick at 1600, Figure 7.2. If this sounds familiar, Kenrick acknowledges Abraham Maslow’s pyramid of the hierarchy of needs and argues that he improves it.

If, in fact, our brains produce seven different subselves, it should not be surprising that much of human organizing of the information brought into the brain reflects different characteristics for that self. How can this work? It is not phrenology and there are not particular parts of the brain that hold each separate self. But there are different parts of the brain that light up a positron emission tomography (PET) imaging test, depending what part of the brain is doing the work. Hearing words, seeing words, speaking words, and generating words all light up different parts of the brain. The neuroscientists tell us: “With the use of these techniques it is becoming increasingly apparent that during a specific task several different brain regions are working simultaneously. There is not just one brain area for one function but rather several brain areas appear to contribute to a particular function.” The Human Brain at 342.

The significant factor, though, is that parts of the brain respond, not the whole brain. If a different part of the brain responds, we get a different result: Happy and sad light up different parts of the brain; romantic and maternal love light up different parts of the brain; cocaine and sugar have similar pleasure centers; a baseline scan and a scan when the person is in prayer are different; exposure to angry faces lights up a bigger area after consuming alcohol. So, neuroscience appears at least not to negate Kenrick’s model. If Kenrick is correct that there are different subselves and if these do correlate with different areas of the brain that are governed by certain hormones that are expressed in different emotions, I suggest, it makes sense that the manifestations of these differences would have been noticed by humanity and described similarly throughout history.

If we accept the theory that the brain produces these separate selves to best promote survival, the reverence shown the number is natural. We have the Seven Deadly Sins, the Seven Virtues, the Seven Sacraments, the Seven Corporal Acts of Mercy, the Seven Spiritual Acts of Mercy, Seven Gifts of the Holy Spirit, the Seven Sorrows and Seven Joys of the Virgin Mary, the seven days of the week, the Seven Heavens, the seven liberal arts, the Seven Wise Masters, seven notes of music in the scale, seven days of creation, vengeance seven times over for killing Cain, Noah’s command to bring seven pairs of every clean animal into the ark, seven years of plenty and seven years of famine in Pharaoh’s dream, seven days in the feast of Passover, a seven-year cycle for a year of Jubilee, seven trumpets for seven days around the walls of Jericho, seven things detestable to the Lord, seven pillars of the House of Wisdom, seven loaves multiplied into seven baskets, and seven demons driven out of Mary Magdalene. When Isaac Newton identified colors of the rainbow—red, orange, yellow, green, blue, indigo, and violet—he grouped seven. As moderns, we have produced the seven stages of grief and the seven dwarfs. And Mickey Mantle wore number seven. Something about that number moves us.

What follows, then, is a description of each of Jaques’ and Kenrick’s seven selves, together with other characteristics that traditionally explain human behavior, especially the seven sins and the seven virtues. A more modern addition comes from the sociobiologist, Edward O. Wilson. He describes different types of aggression with many types of animals, such as rattlesnakes. His summary of the different forms of aggression, not shown by all animals, but all shown by man says there are . . . seven.

No fewer than seven categories can be distinguished: the defense and conquest of territory, the assertion of dominance within well-organized groups, sexual aggression, acts of hostility by which weaning is terminated, aggression against prey, defensive counterattacks against predators, and moralistic and aggression used to enforce the rules of society.”

On Human Nature at 1560.

What follows then, are a list of the competing impulses, desires, urges, personalities, selves, as described by tradition and explained by evolutionary psychology. I have offered a correlation with how I believe these human characteristics best match up. The matches are not exclusive, because greed, for example, may be a harmful excess produced by most personalities. For example, to the extent greed helps satisfy immediate physiological needs or helps to buy weapons or buy status, it could be identified with any subself. However, I suggest it is best viewed as the excess or sin related to retaining a mate, and other personalities are more readily identified with propensities to excess identified with one of the six other sins. Also, Wilson’s types of violence may be invoked for other personalities.

Although I have matched defense of territory aggression with the soldier/night watchman below, this form of aggression may be important for other subselves as well. Also, emotion (which because it is produced mainly by three hormones producing eight combinations) does not match neatly with a personality. A lover or a fighter or a mother can all be angry, sad, or happy. Nonetheless, I believe the alignments ring true in most cases and are helpful in understanding why folks are acting the way they are, and always have been.

The infant mewling and puking in his nurse’s arms. The first of Kenrick’s subselves is the one driving us to fulfill immediate physiological needs. He also calls this subself “the compulsive,” and says it is in charge of avoiding disease. If something smells bad or tastes bad, this subself is engaged. For several years, a child is appropriately selfish and oriented towards fulfilling his own needs, both for food and care and in relation to siblings. No one faults a two-year-old for being in the “terrible twos.” According to both tradition and Kenrick’s evolutionary psychology, the subself, like all of them, once they manifest, stay with us. Even an old man may feel a strong desire to fulfill immediate physiological needs; as an example, Jaques’ justice “with the fair round belly lined with capon” has carried the overindulgence of childhood into a later stage of life. However, this stage greatly marks infancy.

When tradition talks about original sin, it is perhaps this tendency being described. Philosopher Rene Girard describes the basis for infant learning as “mimetic desire.” Children imitate so they can learn and they also imitate desires of others, so that the desire of one child for a particular toy will make that toy more valuable to the other child. Girard then describes this as the basis of original sin; human beings are born with a propensity to imitate each other. Girard at 1602. Girard says because of this, human culture was laid upon a foundation of violence. In the context of Wilson’s forms of violence, I nominate aggression against prey as that most likely to be needed by this subself. The propensity for sin—that is, when this subself dominates the other subselves and we suffer from the excesses—is gluttony. The virtue that manages gluttony is temperance. 

The whining schoolboy with his satchel. Kenrick describes a subself who seeks affiliation as the “team player.” This subself manages problems and opportunities related to affiliation. “To survive and reproduce, our ancestors needed to get along with other people,” Kenrick says. “Friends share food, teach us valuable skills, and fill us in on essential information; they team up with us to move things that are too big; and they provide safety in numbers when the bad guys are around.” Kenrick at 1553. I see this as a source of wanting to be popular in high school. We make alliances, form friendships, and develop a tit-for-tat idea of whether someone has been a true friend. Cliques and rivalries are driven by this subself. This subself may carry on into old age, as well. The old men whittling in front of the general store or the old women in a quilting club would likely be governed by this subself. Wilson’s form of violence associated with this is the “assertion of dominance in organized groups.” The sin, when this subself acts in excess, is envy, and the virtue that manages the sin is kindness. 

The lover sighing like furnace, with a woeful ballad made to his mistress’ eyebrow. Kenrick says we have a subself that is involved in mate acquisition. He calls this the “swinging single.” “This is the subself,” Kenrick says, “concerned with acquiring mates. As I have discussed, the ‘his’ and ‘hers’ versions are somewhat different, tuned to the sex-specific cues that make for good mates.” Id. at 1563. Shakespeare places this subself early in the stages of man, but remember, other cultures had different concepts about when a young woman was ready to marry. Romeo’s Juliet was only thirteen. However, this subself can carrying on into old age as well. The old basketball club owner with the young mistress is likely suffering a visitation of this subself. Wilson has a form of aggression for this called, appropriately, “sexual aggression.” The sin is lust and the virtue is chastity. 

The soldier . . . jealous in honor, sudden, and quick in quarrel. Kenrick describes a subself devoted to self-defense. He calls him “the night watchman”:

This subself manages problems and opportunities linked to self-protection. The night watchman subself is tuned in to information such as: Is that band of nasty looking guys who just walked over the hill going to steal something from me or burn down my hut? Are there enough of my tribe members around that I can protect myself?”

Id. at 1560.

This is the 18-year-old who wants to join the army or study martial arts. This is the inmate who joins the gang. This is the desire to get a concealed handgun license. When threatened, we all have this subself who will help protect us. This is also a young person’s self that may be needed in old age. The elderly couple who buy the doberman, for instance would be making this decision in this subself. Wilson’s form of violence for this subself is the “defense and conquest of property.” The sin is wrath and the virtue is patience. 

The justice, In fair round belly, with a good capon lin’d, With eyes severe, and beard of formal cut, Full of wise saws, and modern instances. The subself that represents much of human creativity is described by Kenrick as that related to self-esteem or status in society. Kenrick calls this subself the “go-getter.” Kenrick describes the function for survival of this subself:

Being respected by others brings numerous survival and reproductive benefits; being disdained carries some serious costs. But respect and status do not come for free: Leaders have to give the group more than followers do, and people do not like it when their friends step over them. The go-getter subself is tuned in to where we stand in the dominance hierarchy and to who is above and below us.

Id. at 1558. This subself comes into dominance in adulthood. Much of what Abraham Maslow called “self-actualization”—the desire to fulfill your unique potential as a musician, poet, or philosopher—is folded by Kenrick into this category of self-esteem. Id. at 1664. Wilson’s aggression matching this category is “aggression used to enforce the rules of society,” which we might expect from the round-bellied justice. The sin is vainglory and the virtue humility. 

The lean and slipper’d pantaloon. This character and the next are objects of ridicule by Jaques because of their physical decline, but they are important as subselves. Kenrick’s category is mate retention. This is the subself Kenrick says is in charge of retaining mates. He calls this subself “The good spouse.” This subself “is tuned in to information about whether my partner seems to be happy or unhappy,” explains Kenrick, “and it is also scanning the social horizon for potential interlopers who might be in the market to make my partner happier.” Id. at 1565. This is for the couple who have picked their mates and now hope to live happily ever after. This is the subself who, for instance, feels guilt or remorse or shame when she betrays her husband and cannot tell herself why. This is also the nest-builder, who makes sure they have a house and cars and 401K. Wilson’s form of aggression for this subself is “defensive counterattacks against predators.” This subself’s sin is greed and its virtue is charity or love. 

Second childishness and mere oblivion, Sans teeth, sans eyes, sans taste, sans everything. This is grandpa’s and grandma’s subself, but it is also represented in parents caring for their young. Jaques gives a grim picture of this age, but for some of us, at least physically, it is not quite that bad. However, it does often, as the years pass, crowd the other subselves. Kenrick puts it on top of his pyramid, calling the subself “parenting.” I would suggest that it is somewhat broader and involves a general devotion to kin; “blood is thicker than water.” This is the ferocious mother protecting her young. This is why you may accept an annoying habit from a family member, but the same habit in a neighbor is intolerable. The form of aggression Wilson gives that fits this subself includes “acts of hostility by which weaning is terminated.” The sin is sloth or acedia. This requires some explanation because in modern times we understand sloth differently than was traditionally true. Sloth is now viewed as the amiable weakness of indolence. Glittering Vices at 1401. However, sloth is not merely inaction; this may have been honored traditionally as a period of prayer and meditation. A hint about the meaning of sloth comes from looking at its virtue: diligence. “The telltale root of our word diligence is the Latin diligere, which means ‘to love.’ Sloth, on this view, is apathy—comfortable indifference to duty and neglect of other human beings’ needs.” Id. at 1420. Within the context of this subself, sloth is shown by the mother who doesn’t feed her child and the son who leaves his invalid father alone without care. We would consider it akin to criminal negligence.

How can we apply this understanding of human nature to trial? Among other things, clients are often unable to explain their conduct. This interpretation of human nature may give some reasons why. When a client says, “I wasn’t myself,” to explain an action, we may get an inkling of what he means. We can more readily discover the client’s story if we understand why he has acted as he has. We can develop a sentencing argument of “aging out” of certain crimes. We are given an argument why some types of violence are not likely to be repeated. Moreover, this view of human nature explains and mitigates some crimes based on which subself has committed the crime. Theft to provide for a kin is different than theft to advance self-esteem. Possession of drugs driven by gluttony (moderns sometimes say “addiction”) is different than possession of drugs driven by greed. It may be helpful in direct or cross-examination to the extent the witness accepts your characterization of his motives. It helps explain hypocrisy. With an innocent client, it may help show lack of motive.

I do not suggest it is necessary or perhaps even a good idea to describe this theory to the jury, but to the extent it is true and resonates in our traditions, a theory of human nature is a good companion for all parts of the trial. In this one matter I have some small measure of certainty: It is a greater task for a juror to give death or a long prison sentence or even to find guilty someone the juror believes carries the seeds within himself to be noble in reason, infinite in faculty, express and admirable in form and moving, in action like an angel, in apprehension like a god, the beauty of the world, the paragon of animals, the quintessence of dust.