The prejudiced ear

A big murder trial wrapped up recently in Salt Lake City. It was one of those trials that capture national attention, and the November 13 edition of NBC’s Dateline was devoted to the case.

Martin MacNeill, a doctor, was tried and convicted of killing his wife. One of the prosecution theories is that he killed her so he could be with his mistress. The wife was found, fully clothed, dead in a bathtub. She had recently had a facelift, and her doctor-husband prescribed painkillers, on which she overdosed.

The wife...the doctor...the mistress. A deadly mix.

During the trial, as is the norm in cases like this, the 911 call he made when he called to say his wife wasn’t breathing was played for the jury, and we all got to hear the hysteria in his voice. There was a whole follow-up of things he said to first responders. When introduced to the jury his statements at a time of crisis just didn’t sound like they thought a man who had just lost his wife would speak.

It always strikes me during such moments in a trial as to whether it is fair to introduce evidence that was created at such a moment. Often what the caller says doesn’t ring true to the listener. It often sounds fake. If the caller is very emotional it can sound forced. If there are no histrionics it may sound like the caller is emotionless, and doesn’t care.

But really, how does anyone know how someone else will react during such a stressful time?

What if the caller was innocent, yet was overwhelmed by events? MacNeill screamed at the 911 dispatcher who asked if he was performing CPR, as if his credentials as a physician were being challenged. As it turned out, the jury didn't need to hear that call. They had plenty of other evidence on which to find Dr. MacNeill guilty, but that 911 call piled on to the other events and didn’t help. According to published reports the jury considered it part of his “over the top” response to his wife’s death.

The prejudice comes in when we condemn someone for not having what we think is the proper reaction. I have heard a lot of former jurors in other trials say they didn’t think the defendant sounded sincere, or didn’t act like they imagined they would in similar circumstances.

In the book, Alien Hand Syndrome and Other Too-Weird-Not-To-Be-True Stories by Alan Burrows, the author addresses that prejudice in a chapter called “Cognitive Glitches.”

     “The false consensus effect is the tendency of individuals to assume that others think and act the same way as they do. It applies to such things as opinions, thought patterns, attitudes and behaviors.  Essentially, false consensus is an expression of the average person’s complete inability to comprehend the thought processes of another. The effect is so powerful that subjects asked to envision someone with a different attitude or opinion will often imagine the other person as mentally deficient or deluded. This bias severely limits the ability of humans to understand or predict the behavior of others.”

Is there a standard by which we judge how other people react? I think it would be prudent for a defense attorney to call a psychologist who could explain the false consensus effect. Whether it would do any good or not to tell people that just because they wouldn't overreact to a 911 operator they shouldn't assume everyone would act as they expect.

I assume someone who has willfully killed a spouse and calls 911 probably wants to make it sound real, so they do an acting job. That in itself will sound phony. Human beings, especially when lying, are acting and we may think we’re up to being convincing, but folks, unless you’re a trained professional, don’t try it. Most people will be too kind to tell you they think you are lying, but that is no indication your acting is working for its intended audience. I believe Robert DeNiro or Meryl Streep could be standing over a dead body, holding a smoking gun and still convince police they didn’t kill anyone. False consensus syndrome or not, I know I couldn’t match their acting abilities.

Finally, if I had been on that jury I would have found Dr. MacNeill guilty of murdering his wife. But I believe my decision would have been based on evidence alone, not on how I think he should have sounded when speaking to others in the immediate aftermath of his wife’s death.