Scientific consensus and expert testimony: lessons from the Judas Priest trial

The face of Jesus was "discovered" in a forkful of spaghetti in a Pizza Hut billboard advertisement in DeKalb County, Georgia, in May of 1991. Joyce Simpson said she was debating whether to quit her church choir as she was leaving a gas station when she felt compelled to look up. "And I saw Christ's face," she said (Guevara-Castro and Viele 1991). Subsequently, dozens of motorists claimed to have seen Jesus shrouded in spaghetti and tomato sauce on the chains billboard. God works in mysterious ways, but this tactic seems unnecessarily convoluted. On the other hand, compared to being abducted by aliens, seeing a face in a blob of spaghetti is small potatoes.

Sometimes perceptual illusions or faulty reasoning can have more pernicious consequences. For example, in 1986 a Philadelphia jury awarded a woman more than $900,000 in damages because she claimed her psychic powers had been damaged during a CAT scan conducted at Temple University Medical School (New York Times, March 29, 1986). Her complaint was supported by the "expert" testimony of a doctor. Unfounded fears are not unusual, but when they are accorded further esteem by a credulous judge or jury we risk surrender to the irrational. What the courts take seriously is believed to be serious by the common citizen. While science can supposedly provide some protection against litigious foolishness, sometimes science itself seems to be part of the problem.

How do scientific beliefs influence courtroom deliberations? More specifically, what happens to an extraordinary claim when it plays a pivotal role in a high-stakes criminal trial? Within the scientific community there are accepted methods and procedures for establishing the truth or falsity of an extravagant claim (Gardner 1981), but the courtroom is a different kind of forum. It is adversarial in nature. What happens to scientific consensus in court, especially if scientific information is distorted, misrepresented, or perhaps not science at all? Peter Huber has described what he calls "junk science" (Huber 1991), and according to Huber junk science may (and often does) wreak havoc with scientific integrity and with justice.

This article explores the issue of junk science in the context of a specific trial - the Judas Priest trial that unfolded in Reno, Nevada, in the summer of 1990. Two teenage boys, James Vance and Ray Belknap, had attempted suicide. At the time of the shootings, Belknap died instantly. Vance was severely injured but he lived, only to die of drug complications three years later. The plaintiffs (the boys' parents) alleged that subliminal messages hidden in the heavy metal rock music that Vance and Belknap listened to contributed to their suicidal impulse. This trial is interesting for a number of reasons. First, it provides a classic example of junk science. Second, the trial established a legal precedent that has already influenced the ruling in a similar subsequent suit. Third, it provides a good forum for illustrating some important and often misunderstood aspects of subliminal perception.

Judas Priest was a British heavy metal rock band - one of the first of that genre. Their popularity peaked in the mid-70s. The album in question (Stained Class) was produced in 1978; the shootings took place in December 1985. It was alleged that a particular subliminal phrase in one of their songs ("Better by You Better Than Me") on the album triggered a suicidal impulse. The phrase at issue was "Do It." In isolation, this phrase has little meaning unless there is some antecedent to which the "It" refers. Moreover, the antecedent could not have been anything that was audible on the record (or visible on the album cover), because such material would have been protected by the First Amendment. Consequently the plaintiffs were in the difficult position of having to acknowledge that the boys were suicidal to begin with, and that the subliminal phrase "Do It" triggered the already existing disposition.

First Amendment Protection and the Denial of Summary Judgment

The defendants denied any and all knowledge of subliminal messages, and they denied having engaged in any tricks or mischief during production of the record. Nevertheless, the case went to trial. The defense was unsuccessful in arguing that any and all speech (including subliminal speech) should enjoy First Amendment protection. In a pre-trial motion, Justice Jerry Carr Whitehead ruled that subliminal speech does not deserve protection because it does not perform any of the functions that free speech accomplishes. Since the recipient of a subliminal message is unaware of it, the message can't contribute to dialogue, the pursuit of truth, the marketplace of ideas, or personal autonomy. There is no information exchange. No arguments are possible if recipients are unaware of the message's presence. People also have a right, the judge added, to be free from unwanted speech. Since subliminal materials cannot be avoided, they constitute an invasion of privacy. For all these reasons, subliminals were not afforded First Amendment protection (Vance v. Judas Priest 1989b). This ruling makes logical sense if a subliminal message could have the power attributed to it by the plaintiffs. The plaintiffs thus achieved a major victory in getting the case to trial in the first place.