Other elements of social context, too, as well as psychic or symbolic ones, affect the apparent simplicity of the effect of penicillin. Once antibiotics are technology, the social behavior of people affects the biological environment in which bacteria evolve. If humans use antibiotics too pervasively, as they do, resistance is selected for, and the antibiotics become ineffective.

Is this technology exactly? What is the real point advanced by the anecdote? It's attractive, and I find it very interesting, but I'm not sure what it's doing here, so I could use one more sentence of explanation.

I think it's fair to say that it's useful for that to be one way in which technology is understood in its relation to legal phenomena. But the real subject of your essay, it seems to me is that evidence must so be understood. Law in one setting is asking whether polygraph results are evidence, and in another case asking whether it is a violation of someone's rights to administer polygraph examinations, regardless of whether their results are admissible evidence of deliberate falsehood. You imply that the conclusions reached are inconsistent, although that's not quite clear to me because the questions seem incommensurable. But your point seems to me to be larger than the polygraph: our decisions about evidence, whatever it is and however it is gained, enact ritual. Technology is ritualized in its contact with the system because everything that produces or constitutes evidence is subject to the ritualization you are observing. The intellectual progression you are following therefore seems to me to be in the direction of thinking about the ritualization of justice, which might be simply designated as "procedure," rather than about technology per se.

-- DianaSidakis - 19 May 2010

Constructing Truth: Technology and Ritual

Technology, as a product of science, has the ability to appear neutral, as if existing outside of any history or culture. As a simple example, I think of the power of penicillin to kill bacteria. Regardless of time or place, penicillin will kill certain bacteria. The technology of the antibiotic exists outside of the culture that discovered, created, or employs it. Yet, an over reliance in a fixed truth can obscure subtleties and contradictions. Penicillin’s ability to kill certain bacteria in a Petri dish may be uncontested, but the human patient is more complicated. One explanation is that “humans are not machines, and emotions are not abstractions. Hope and expectation, anxiety and fear, trust and suspicion — these cause physiological changes in the brain that can interact with drugs, changing their effects.” The neutrality of the treatment is unraveled by the social processes that surround its human subject. The ritualization of treatment, whether it is a placebo or penicillin, can produce varying effects.

Like law, medicine is a highly ritualized practice that employs technology, ancient and new, in constructing particular social relationships. While the placebo effect of a new medical technology can be tested and compared in trials, the parallel effect of technology in the law is harder to trace. Examples of a placebo effect of technology producing truth in law are made more obvious from the distance of time or place. For instance, in the early 20th century, members of the High Court of Tibet in Lhasa would travel to Nechung Monastery to visit the State Oracle to investigate crimes: “like most people in Tibet, criminals wanted advice about the best day to perform an act. A person who proposed to commit a robbery, for example, would seek the guidance of an oracle and, in the process, reveal his plan. The Nechung Oracle, remembering dates, persons, and schemes would act as a conduit by relating proposed crimes and their perpetrators to the court officials during their appointed visits.” During the 1940s, Tibetan judges said they received little information about crimes from the Oracle, casting doubt on his continued role as a conduit, but not on the power or existence of a conduit itself.

The American judicial system likewise relies on technology and rituals in its production of a stable truth. The criminal defendant’s constitutional rights are reinterpreted as certain technologies seem to wane or ascend in their ability to create a form of truth in the courtroom.

In U.S. v. Scheffer, the Court held that Military Rule of Evidence 707 (which made polygraph evidence inadmissible in court-martial proceedings) did not unconstitutionally abridge the accused’s right to present a defense. Edward Scheffer worked for the Air Force as an informant for drug investigations. During the course of his work, he was required to submit to urine and polygraph tests. After leaving the base without leave, Scheffer was arrested. A urine analysis indicated he has used methamphetamine. In his defense, Scheffer argued that he did not knowingly use drugs. To support this claim, he sought to introduce an Air Force administered polygraph test which “indicated no deception” when Scheffer denied any drug use since joining the Air Force.

The Sixth Amendment provides that “the accused shall enjoy the right…to have compulsory process for obtaining witnesses in his favor.” The Court has held that “few rights are more fundamental than that of an accused to present witnesses in his own defense,” and that “the right to compel a witness’ presence in the courtroom could not protect the integrity of the adversary process if it did not embrace the right to have the witness’ testimony heard by the trier of fact.”

The accused’s right only exists to the extent of the Court’s interpretation of it. The Court has found that state and federal rulemakers have latitude to establish rules excluding evidence from criminal trials, and that such rules do not unconstitutionally limit an accused’s right to present a defense as long as they are not “arbitrary or disproportionate to the purposes they are designed to serve.” The ritual production of truth, and the accused’s right to present her witnesses, hinges on constructed meanings of “arbitrary” and “disproportionate.”

Technology can be manipulated to fall within, or outside of, these bounds. In Scheffer v. United States, the Court determined that “there is simply no consensus that polygraph evidence is reliable.” The rational and proportionate measure (barring polygraph tests) to ensure a legitimate end (ensuring reliability) creates the boundaries for admissibility. Yet, the limits of rationality, proportionality, and legitimacy are continually reinterpreted with different outcomes.

For instance, polygraph tests have been found to be rational, proportionate, and legitimate instruments to monitor convicted sex offenders on supervised release. Jeffrey Johnson pled guilty to sexual misconduct charges. As part of his supervised release, he had “mandatory sex offender treatment using polygraph testing to obtain information necessary for risk management and treatment.” Johnson objected to the polygraph testing, arguing that polygraph testing is unreliable and could not be used as a condition of his release.

The Second Circuit disagreed and dismissed Johnson’s claims of the unreliability of polygraph tests and undue deprivation of liberty. Rather than being used for its truth, the Circuit found that “polygraph testing may serve salutary purposes in the supervised release context.” The polygraph test is recast as a therapeutic tool, assisting the convicted sex offender as “an added incentive to furnish truthfulness testimony to the probation officer.” The test, established as unreliable for the purposes of producing truth, is re-fashioned into a ritual that compels sex offenders to speak truth.

In this way, the judicial system adapts its use of technology to enforce its administration of power. Contradictions (polygraph tests are inadmissible for their truth/ polygraph tests are admissible for their power to compel the truth) do not undermine the legal system. Rather, such rituals demonstrate the conduits and fissure of power. Technology, as a product and a producer of truth, must be understood as another ritual in the practice of law.