Transcript van der Vlies

CN: This is the start of a research, which will hopefully lead to insight into how autonomous systems can be designed that human beings can except them, and since social rules between people are very important we have focused on witness presence. And as a professor of constitutional law I was wondering what is the nature of a witness?

IvdV:: A witness is mainly important in procedures before courts, otherwise we might have witnesses, but I don’t think we call them like that. A Witness is a formal title of person in a formal procedure and apart from that we of course have reports from experts for example, but when I focus on the witness is given as a title for the person in a procedure before the court. And this person has to be sworn in, as you know, and then they can give a statement on what they have seen, experienced or what so ever and then they can give a contribution to find the truth. They are meant to find the truth.

CN: Yes, and they are both part of proof of guilt, but they are also part of alibi’s. Is the physical presence of the witness important?

IvdV: It’s essential. Law is an old fashioned concept and anything of a new instrument will only get it’s place in the system of law after quite a while. I remember that the fax was introduced and that it took quite a while, I think it took more than five years before the fax had any status in law. Before that, it could give an idea of what was coming, but to make a letter formal, for example, you needed a real piece of paper with ink, and not a fax. Now in law it’s accepted that you can send letters by email for example, but they will only be accepted if there is a code system to detect whether the email was really received.

CN: If you focus on the moment that people are sworn in, in physical presence, and this physical presence a person says “I am honest”. Can you explain how it feels when one does that? And can you imagine this happens by phone, or by videoconference?

IvdV:: The declaration of the person that he is honest, even when it comes from a witness who is standing before my eyes, it wouldn’t mean that much. A witness is sworn in and because of that you have to accept that anything he says is true. But still you are always searching whether what he says, is true yes or no and you are checking for that, every aspect of his attitude. So it might come in by phone, if no other way is possible, but a witness declaration by phone I think it is void. You cannot really see if the person is really him. That would only be arranged again if there is an officer of the court on the other side present, in the presence of the person that is phoning you, who can declare, because you know this officer, that the person that is speaking is really this person. Otherwise there is no use for such a witness by phone.

CN: And if you say, ‘I am checking his attitude’, how do you do this?

IvdV: By looking at him and by using your experience. Because the judges in the court have worked there for many years and they have to learn from experience how to deal with witnesses. In law school you will learn law from the books, but law in practice is always quite something else. and when I was in the court, - I have been part time judge for quite a long time - and then I learned quite a lot from my colleagues in the court especially by this checking the attitude and asking questions over and over again to see whether you get the same answer over and over again.

CN. But can I ask you again, when you check attitude, what do you look at?

IvdV:: Whether a person is looking at you yes or no. Whether he is hesitating and how he is hesitating. Whether he is looking angry yes or no. Whether he is looking furious yes or no. Looking guilty, or special expressions in general. That’s the eyes and the face. Or maybe also whether he is standing proudly, yes or no, but mainly the expression on the face.

CN: Do you recall colleague judges that gave you advice in how to check out attitude?

IvdV: No, not spontaneously. I asked them, but it is something they do by experience and not something they teach. I am teacher and they are judges. So they don’t start with explaining and they will only answer my questions if I have ask.

CN: So you have an impression of the attitude of the witness?

IvdV: Yes

CN: And then a certain negotiation starts in your brain, heart, feelings, How does that happen? You are assessing trustworthiness, you are assessing truth, can you describe moments in that process?

IvdV: That’s difficult. Only on the attitude you mean?

CN: Yes. Maybe you ask questions to find out?

IvdV: Yes, I ask questions, but first I try to find out a formal truth. You see something changing for example and then you try to find out why this person looked away. Or you try to remember what the question was and at what point he looked away and then you try to find out why he is looking away. Whether this looking away could be explained. Can I imagine a reason why he did it and try to find out that reason, present the reason, and ask the witness whether he had thought about that point.

CN. So you are actually monitoring intentions to try and find out about the trustworthiness off the witness?

IvdV: Yes and also whether he understands which aspects of the case are important for the court. Because the witness has a story, that does not have to be the same background as the story of the law in general and the court especially. He can have an own agenda in telling his story, which he should be allowed to do. But then also you have to try to find a common path on which we can walk to find out the truth.

CN: So I imagine there are implicit intentions and explicit intentions? How do you see them?

IvdV: Well it’s in a way the same way as I react on you now. Because I think I come from a different background, so I don’t quite understand your questions. I just try to give the answers of which I think that you want to hear them and then I look to your face. Like now, you start to nod and I think, ah I am on the good path. But other than a witness - I feel myself much more in the position of the witness now, than the other way round - you try to find out whether you are talking about the same thing because that’s the only frame you have to see whether the witness is telling the truth, yes or no. If the frames are different you don’t know how his story fits in your frame. So you have to make in your head a common frame; a frame from the law side and a frame from his side. And then see whether these stories fit yes or no. That’s sometimes quite difficult. Sometimes of course there are easy cases.

CN: So you know how you make frames? I know I ask really hard questions but it’s very interesting what you tell me.

IvdV: I think I start with making a frame immediately, because I am very aware of the fact that law is a very formal system. And for myself it was very confronting to find out how formal it is. So I know that in a way the system, the frame from which I work, is hollow and very spacious. And the frame from which a person starts to tell me his story is what he has experienced and his relations with the person about whom he is telling the story. So I have to find out two things about him. No, that is not true…I try to find out what his frame is, that’s the very first thing, because only then I can make a relation to my own frame.

CN: Is it like for instance: since law is a formal system, every life has formal facts, so the first match is for example date of birth
Is it so that facts make a frame which then intentions and attitudes are playing a role? Or is the intention and the attitude already part of the frame? Like this person is angry, so I adjust immediately my frame.

IvdV: I know he is angry, no, I, try to find out whether he is angry yes or no, because that might be very important for the way he expresses himself. And I know then also that he wants to convince me of the fact that his angriness is justified. So he tries to convince me of something. And the point is, I am convinced of it immediately. I know he is angry. So I have to tell him that I know that, because otherwise he keeps on telling his inner story in a way, and not facts and what you try to get out of a witness are the facts because they are important for the case. So I have to reassure him in a certain way, and that could also be a common ground. And I can accept that he is angry, he knows I accept it, and from that point on he might be able to tell me what the facts were.

CN: Yes, Very interesting. Can I ask you about the senses. So we see things, we hear things, we smell things, we taste things we sense things; Is there a sort of value chain of senses?

IvdV: When you were asking this, I thought, we like the written stuff, we don’t like anything that’s only seen or heard, we like it written down and a signature. That’s something we can work with, and so if you are looking for proof, I am just thinking aloud (I am not really answering your question) if we are looking for proof, then the declaration of a witness will never be enough because we know people can be mistaken and in that way we are more looking for numbers than we are making the priority line in senses I think. We attach more value to what people have seen, than to what people have heard, I don’t think so. Smell and taste I don’t think we attach much value to it, except from a dog, that we attach much value to it. I have never heard of a case that’s solved by the fact that people smelled something.

CN: Pollutions or so?

IvdV: Pollutions, but they are specific cases, but not in general.

CN: So actually the senses are mostly distrusted?

IvdV: Yes

CN: And technology is trusted?

IvdV: Yes, Much more, yes. I remember also a case, which was for me very surprising. In that case a woman was raped and she had heard the voice of her rapist and the people had found the suspect and they thought it was really him who had raped this woman. So you got a line-up so to say, of voices, and the woman recognized immediately the voice of the person of whom the police thought he was a suspect as the person who had raped her. So this case came before the district court because also of some eyewitness, he was convicted. And then he went into appeal with the higher court –and I was member of that court at the time- and then between the verdict of the district court and our court, DNA had evolved as a system. So then we checked the DNA of the man against the seamen that was found in the woman and they didn’t match! So the suspect was not the rapist after all. So the women who had distinctly recognized the voice, she was wrong. He was not the person. That is why in law mechanical evidence is trusted more than the senses are.

CN: DNA is a medical technology, it relates to the body of physical presence. But maybe there is a robot or a surveillance system, which declares she can’t have been at a certain place. Many autonomous systems are tracing behaviours, whether it’s a license number or bank details or phone records, I mean there are lots of those records.

IvdV: Yes, anything without personal interference will be trusted more.

CN: And when does this flip? When is a system wrong and can a person win from a system?

IvdV: If an expert, who interprets the data can proof this. Or is that not an answer to your question?

CN: Yes, but I don’t like it as an answer.

IvdV: That’s a very funny thing of justice in general of course that they have to assess all kinds of techniques that they cannot understand. Because judges are all laywers and the only thing we know about is the Law. And the only thing that judges have learned to work with are alive witnesses and paperwork. They love paperwork. So everything that’s on paper is OK, live witness you can work with and all the other systems are over and over again, new. And that is always a burden to the court. So DNA we trust, but we have a medical advisers that work with the court on a regular bases, and then we trust the advice of this medical advisor whether the DNA proof was done in a fair way.
CN: Yes, because that’s also interpretation.

IvdV: That’s also interpretation, yes.

CN: It’s humans interpreting things

IvdV: It’s hardly ever that you find a case that is really hard proven, that you can remake the case in a mechanical way so that you have a proof that is a hundred percent tight. You have to interpret it.

CN: So this is very interesting for me, because this is where human witnesses and system witnesses clash and collide. If I would argue with you that actually –following what you just said- that there is no technological proof apart from human beings interpreting technology. So it is just all human beings that have entitlement to speak.

IvdV: Say that again?

CN: I am looking for how the relation between human beings and systems - all sorts of mathematical technologies or DNA, let’s just call it all systems -
So on the one hand people need to be in court in person, because the embodiment of truth and facts are otherwise what are you talking about? So there is on the one hand a very strong emphasis on embodied presence and on the other hand that will always loose from systems. So can you elaborate on this relation?

IvdV: I’ll try, I think the witness is in a way a lay person, that as a judge you have to find out whether this person is speaking the truth yes or no. And the witness in general is a person who appears for the court once, or maybe two times, but that’s it. Systems are, let’s say, in essence, unknown to the court, because the court consists of lawyers, and they can’t handle the systems themselves; they need other experts. Experts are people who are sworn into the court and who work with the court on a regular bases. So that’s when there comes a relationship between the court and the expert. Because the court knows how to assess the expert, knows the value of the expert, and knows his status in his own field for example. And this expert is quite another person than the witness. The expert is somebody you can trust. You have to find your way with an expert, but after a while as a court you decide that in principle you can trust the expert. This expert, he will explain the technical and technological systems to you. And that is where you have to relate to; that’s where you have to build on.

CN: But how do you –because you are checking out the attitude of the witness- you are assessing his intentions, and his trustworthiness, how do you monitor intentions of systems?

IvdV: We leave it to the experts.

CN: You leave it to the experts? Even though you know that experts have interests in systems?

IvdV: We try to find - if I may speak for the court - we try to find experts who are not biased by any interests.

CN: So their interest is everything?

IvdV:: Yes

CN: It’s interesting that you refer to the ‘time’ thing. So the witness is a lay person, he is there only once or twice, while the systems and the experts have a long term relation and even though the connection to the event, which is being judged upon, is in high interest of the witness and of no interest to the systems. The time connection, of the systems and the experts with the court wins, prevails, there’s more value then the witness report.

IvdV: yes

CN: What about place? So the witness comes to the court, he has to be there even though what happened didn’t happen in the court most of the time. So you talk about a place and judge upon a place at a time when you were not there, but there are of course system reports on that place and there are people saying that they were there. How does that go? The surveillance camera for instance always wins?

IvdV: Yes, if the experts say that the surveillance camera was in order of course. You try to find, you know that sometimes they can be manipulated so you check whether they were manipulated yes or no. .and everything other thing will be in order. You have to know a few things on technology to assess your expert and there will always be an expert to give a report on the functioning of a surveillance camera. Unless it’s for sure that it could be.

CN: But place is important!?

IvdV: Depends, depends, in many fraud crimes for example, they are not committed in one place, they are committed all over the world. And then it is not that important. It depends on the crime.

CN: And the same counts of course for how people relate to other people, but relations to other people mostly disqualify witnesses?

IvdV: yes. Disqualify not totally, you can also find a part of the truth also by interested parties, but then you have to translate. They can tell something that can be of value.

CN: and then the last dimension I discuss is the possibility to act. So if I am present in a crime scene, and I witness and I do not act, I can become guilty.

IvdV: Yes

CN: So being a witness actually includes having responsibility to act in certain situations.

IvdV: in certain situations, yes. It all depends.

CN: And how do you describe those situations? When does a witness become liable?

IvdV: well indeed when there was an obligation for him to act, and he didn’t, then he is liable. That is always the case with, for group crimes for example. Group crimes are only recently recognized in law. Before that only one person could commit a crime. If five persons nownow attack a train you can now condemn the group as such, convict, Before that you had to divide the group into five parts and tell that every one had committed a part of the crime, and then these other four would be witnesses for the fifth, and in the American system that is really used. Say that one person wouldn’t be persecuted if he could give witness on the acts of the other one. But if now these five persons acted together committing one crime, then you can hear their stories, but they are of less value for your self as a judge, because you think all the time maybe he is telling a story from his own perspective giving more blame to others then to himself. And then he would not commit a crime giving such a report, if he is not sworn in. He can choose himself to be sworn in as a witness or not to be sworn in.
If he is not sworn in and just telling his story from his own perspective as a suspect, he gives witness of course in your in your informal way of assigning a witness, but in the legal perspective a suspect is not.

CN: Ok, so there is a difference between being present and being a witness?

IvdV: Yes, in the formal way.

CN: And the only difference is being sworn in?

IvdV: Yes, but if you are sworn in and you don’t tell the truth it’s a crime. If you are just a suspect and you don’t tell the truth, it’s no crime.

CN: So being a witness is a choice.

IvdV: Yes

CN: Just being present doesn’t count? You have to say ‘yes I am present” or ‘yes I witness, I take responsibility for my words and my acts’, and then you are a witness?

IvdV:: Yes, and I have to think why, and that’s a very principle, a very essential principle of law, that nobody has to bear witness against himself. You are not obliged to bear witness against your self. So if you are part in a groups crime and your story would burden your own shoulders, you are not compelled to tell it.

CN: But now let’s go to the social engineering side of this. So you are speaking law, what courts do, has a huge effect on society. That’s what children learn, you are not aloud to steel, it’s how our behaviours our conduct of behaviour is engineered. Call it like that, since we work for engineers today.
So there is this really interesting, that you can be present and that you cannot take responsibility for your presence. So you can be a witness, but you don’t have to be a witness if you say “I don’t want to be a witness”.

IvdV: Well in this case, if you then would create a proof against yourself, if that is not the case, and you are called to the court as a witness, then you have to give your report. So you can only ‘disculp’ yourself if this principle is applicable, that you are putting a burden on yourself.

CN: And in all other cases?

IvdV: In all other cases, when you are not family and you are not married, then you have to do it.

CN: Then you have to be a witness

IvdV: Yes.

CN: And also like I walk on the street, something happens, I am a witness, whether I like it or not, that’s true?

IvdV:: Yes, in principle yes.

CN: If I happen to be in the wrong place at the wrong time…,

IvdV:..and you see something and you are not committing a crime your self, you are not related to the person of whom you have seen something and you are called into the court, then you have to witness. If you don’t do it, well there are all kind of phrasings for that of course. If you say that you cannot remember it, if you say you are not able to speak about it, these are all kinds off ways out.

CN: But the way to become a witness is to be in a certain place at a certain time.

IvdV:: Yes

CN: That has to be established and the condition is that you are not related?

IvdV: Yes.

CN: While most technology systems try to establish relations to establish trustworthiness. It’s just the opposite way around, on internet, liability or trustworthiness is created by showing “I know you, I know you, oh, so then this person will be OK too.

IvdV: Yes, and that is in a way how it goes with the establishing of the value of experts. Then it’s the “I know you” “I know you”. Then you go by trustworthy relations. And with witnesses you think often that they are biased, if they have any kind of relation.

CN: So that’s not about trustworthiness maybe, that’s maybe about..

IvdV: ..their capacity to speak the truth. He could tell the truth, but he is not telling it because of the fact that he thinks the truth is damaging for his relation. Or he is denying the truth because he thinks it’s also a better…

CN: So actually relations function on the level of intelligence? And time and place function on the level of being witness? And the senses are actually the only input to know what happens? Because even experts use senses to know what the machine is doing.

IvdV: Yes, and with experts the court will establish their value and trust them, and with the witness it’s always a problem.

CN: Can I ask you a last question? Being involved in law for such a long time, in different roles, how would you describe the social engineering that you do? Are you aware of it and how does it happen?

IvdV: Let’s start with that the influence of law and the enforcement of law is huge. And sometimes I think it is even huger than we even think. Because I see that a rather procedural way of behaviour is developing in society. Everybody is becoming more or less a civil officer and referring for his acts to the system. And …less frequent to his/her own value system. I think that the social impact of the law system, which is a huge system nowadays, has more impact then we assume. Because if you look at law in a more traditional way, you could also say that the law is more or less looking inward. So in a way it’s very true that law and lawyers are looking inward.
Many books are written on the fact that law and lawyers have their own system and that they frame every story within their own system, and that other systems are functioning also within their own frame. Starting from that point of view, you can say that also the values of the law are not always internalized by the people.

C.: But are you actually saying that law negotiates between the inner value system people have and the administrative or the organizational system they work in?

IvdV: Yes

C.: And how does law know about the internal value system?

IvdV: You don’t have to know about it to direct it. Law has many instruments to direct people and people will react on it from their own inner value system. But that doesn’t mean that law on forehand knew what it was doing.

CN: Yes. But you socially engineer to it as private as possible. I mean you have values, there are values underlying every law system, to which you socially engineer.

IvdV: Yes, that’s true, But it’s maybe much more one way than there is really conversation going on between the people and the law. And the gap, that is so often hit upon in discussions, has to do, I think, with that characteristic. That law doesn’t really know what’s going on, but tries to understand. But if you try to understand people from within your own frame you can’t really understand, you have to open up your own frame to understand people. But if your frame is very mighty, and the frame of the law is very mighty, then your frame will have an immense impact.

CN: But this is like people who design systems. They make systems that effect lives. Deeply. The mightiness of the law is legitimized by its values. The value, it proclaims. Which are the constitutional law for example. That’s true, right?

IvdV: Yes, that is true.

CN: So those are political choices that are made. While in system engineering there is no ground law. There is not.

IvdV: Isn’t there? I wonder that. Because in our constitution, if you look at our written constitution, there are let’s say two hundred paragraphs, and only ten of them are paragraphs that deal with values. But the constitutional law as such is also in the heads of the people and in the tradition of the law. Because democracy, part of it is written in the constitution, but it is much more in the heads of the people. People are really angry if the Government would deal without acting democratically. And that is not because people have written a constitution. I bet ninety five percent of the Dutch people never have read the constitution.

CN: No, but if you would say what the values are

IvdV: People would say “I live under the rule of law, without knowing what it is, but they could explain it. Not because they have read it but because they have known it by tradition.

CN: But for example in law we have the right to answer. When you are accused, you have the right to reply. That’s not like that in systems.

IvdV: No, but that is maybe because these systems are very young. Because these principles of the law, they stam from the Greek and the Roman, they are not from yesterday.

CN: No, but could you just by heart say the ten basic principles on which law is based?

IvdV: If I had to say, but that is then rather personal: personal integrity; the freedom of expression; the freedom to live under a rule of law; the law, that is the fourth then, being a law that is set up via a democratic system; that there are courts that will apply the law; that there is no other force in society than coming from the police under the rule of law; that there is a right of every person to build his own capacities;
and that there is a right to build your own direct social relationships. Something like that. Others will be derived from that.

CN: This is very beautiful. And is there also a dynamic?

IvdV: Yes there is always a dynamic, because people live in a society, so there is never one person who can develop his totally personalized way of living, you are always in interaction with other persons and nobody is the same. Dynamic is given. I think law is based on the relationships between persons and a system.

CN: Very interesting.

IvdV: I see you dream away

CN: I dream away… Can you give any advise to system engineers, who are making autonomous systems?

IvdV: Well when we were talking about the way the courts deal with experts, I thought maybe there is a beginning of a relation between systems and people. Because in the end it is again and again the trust you have in a person and it’s knowledge about the system. So you have to relate yourself to the way experts are educated. I think that you immediately know, like you ask me ten principles for the law, you know immediately ten principles for …

CN: systems design

IvdV: Yes, and these are the important principles. It is not like they are unknown, because the systems came into being within the community and in this community there were already thoughts on how to deal with systems. And if you try to work out these principles, these eight or ten principles, I am sure that you will find other people that have more or less the same thoughts. Because we try be creative and original, but in general more people think about the same things in the same way and from there I also think it is very interesting that you try to derive some principles from the law because I think it is all dealing with persons and systems and you can maybe translate these principles from the law into system design as well.

CN: At the moment we are exploring the idea, with the group that is doing this research, that autonomous systems will have their autonomous say and they will be, like people, part of the community.

IvdV: That can be

CN: In that case you have a community in which systems are as much actors as people are.

IvdV: But then they are welcome into our people system if they behave like decent
people, and otherwise not.

CN: Yes, they have to behave like decent people or like decent systems.

IvdV: and if they like to be like human beings…oh no you said they are autonomous?

CN: They are autonomous, I think they will not have behaviours of human beings, otherwise we will not recognize them. So you need to be able to recognize to be able to judge, otherwise you can’t judge if you don’t recognize. But most things of the system we don’t recognize. But because they are now so complex they have become actors in their own right. And the question is, which is also why this group is doing this research, like is this where we want to go? And if so, how will it be decent systems? What are the ten principles? These are the questions we ask. If you say, yes they can come in the community, well then they’ll have to behave like decent human beings. Well this is exactly the research. How should they behave to be decent?

IvdV: They have to behave under the rule of law. Because the phrasing under the rule of law is always that you don’t have to accept any person or autonomous system above you without your own consent. Consent is always very important. You have to accept it without your own consent - and that is always the tricky thing- if this autonomous system is placed above you, due to the law.

CN: Thank you very much. Is there anything you want to add?

IvdV: It is very interesting. No I wouldn’t know. I am now just starting to understand why you were asking all these question. So now I have to think about it whether I have to ask something yes or no. Because now I start to walk within my head these autonomous systems and try to think about them what it means for me and what I would say about it, from a legal perspective. I will call you.