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Rethinking the role of the image in justice: visual evidence and science in the trial process

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Abstract

Visual displays are increasingly important for presenting scientific evidence in the trial process. This paper engages with some of the arguments of Mnookin, Solomon and Feigenson in examining the challenges and paradoxes of scientific visual displays. The function of the display is ambiguous — is it a tool of logic to clarify arguments or an instrument of persuasion to sway the jury? The role of expert witnesses is also ambiguous — are they authoritative interpreters or teachers or do the displays speak for themselves? The answer to this varies between fingerprint, DNA and other forms of evidence. In a legal environment where disciplinary bodies and judges screen the scientific evidence that juries may see, the role of the jury is undergoing change. On the one hand, the judge rather than the jury may be making decisions about some of the potential facts of the case. On the other hand, the increasingly interactive nature of evidence makes it hard to control the interpretations placed on the information, and may allow juries to pursue their own enquiries. The paper argues for a holistic examination of the sensory environment of the trial including visual displays, but also the performances of the different participants, and the physical and symbolic environment of the courtroom.
Law, Probability and Risk (2007) 6, 311318 doi:10.1093/lpr/mgm040
Advance Access publication on November 13, 2007
Rethinking the role of the image in justice: visual evidence
and science in the trial process
D
AVID
T
AIT
Associate Professor, School of Law, University of Canberra, Australia
Visual displays are increasingly important for presenting scientific evidence in the trial process. This
paper engages with some of the arguments of Mnookin, Solomon and Feigenson in examining the
challenges and paradoxes of scientific visual displays. The function of the display is ambiguous
is it a tool of logic to clarify arguments or an instrument of persuasion to sway the jury? The role
of expert witnesses is also ambiguous are they authoritative interpreters or teachers or do the
displays speak for themselves? The answer to this varies between fingerprint, DNA and other
forms of evidence. In a legal environment where disciplinary bodies and judges screen the scientific
evidence that juries may see, the role of the jury is undergoing change. On the one hand, the judge
rather than the jury may be making decisions about some of the potential facts of the case. On the
other hand, the increasingly interactive nature of evidence makes it hard to control the interpretations
placed on the information, and may allow juries to pursue their own enquiries. The paper argues
for a holistic examination of the sensory environment of the trial including visual displays, but also
the performances of the different participants, and the physical and symbolic environment of the
courtroom.
Keywords: visual evidence; science; juries; interactive evidence.
1. Introduction
Images are central to the justice process. The most dramatic of these images include monarchs
handing down judgements from their throne (Madden, 1976) defendants confessing their errors in
a show trial (Cassiday, 1998) and convicted criminals awaiting execution (Linebaugh, 1993). The
locus of public display since the 18th century meanwhile has arguably shifted from the place of
punishment to the place of judgement (Foucault, 1977). The courtroom is therefore the place where
justice imagery is now most prominently displayed (Taylor, 1993). In contemporary television (TV)
dramas, the forensic laboratory has joined the courtroom as a major locus of justice, although the
inclusion of scientists as major players in real courtroom dramas was already well under way during
the 19th century (Morell, 1999; Gruel, 1995). What are the implications of this increasing role for
scientific evidence for the visual landscape of the courtroom?
Jennifer Mnookin has written extensively on the new legal and social context within which scien-
tific information is received in courts (Mnookin, 1998, 2001a,b; Mnookin & West, 2001). This paper
engages with some of her ideas, including those presented orally at the Visualization Conference
reported in this issue. It comments also on the contribution of Samuel Solomon in the same session
as Mnookin (Solomon, 2006). The trend towards stronger judicial gatekeeping over the admission
of scientific evidence post-Daubert is an important part of this story reported by Mnookin (Daubert
Email: david.tait@canberra.edu.au
c
The Author [2007]. Published by Oxford University Press. All rights reserved.
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D. TAIT
v. Merrell Dow Pharmaceuticals 509 U.S. 579, 1993). But so too are new visual media, or forms
of presenting information to the court, such as interactive or virtual reality evidence (Feigenson,
2006). The effect of such evidence on the deliberations of a jury is not as easy to predict or control,
Feigenson suggests, as the effect of non-interactive evidence. To make sense of the challenges fac-
ing courts in authorizing and using visual displays, it is useful to consider the contradictory trend
towards increasing regulation and professionalism on the one hand and towards interactive evidence
that can unfold in unexpected directions and thereby increase jury autonomy on the other.
2. Images: logic or persuasion?
The conference on Graphic and Visual Representations of Evidence and Inference in Legal Settings
was marked by a lively dialogue between two rather different ways of thinking about visual images.
One tradition tends to see the image as an instrument of ‘logic’, a way of showing the relationship
between ideas, of tracing causal or temporal sequences. The other tradition prefers to regard the
image as a tool of ‘persuasion’, a weapon to cajole, entice or seduce listeners into accepting the
orator’s claims. Logic and rhetoric were the two key pillars of a classical education, so it is not
surprising that they re-appear in this contest for interpretation of the image.
This dichotomy at the conference in part reflects the different sort of images that are being used
and the different parts of the legal process in which they tend to be found. Those who think of visual
representations as tools of logic often have in mind argument diagrams, such as Wigmore charts, that
map the connections between pieces of evidence; these sorts of representations are particularly im-
portant in the investigation stage of an enquiry. Meanwhile, those who consider images as rhetorical
devices are typically thinking of gruesome photographs, graphic animations or displays that report
scientific findings and the impression these make on jurors; emphasis is placed on the emotional
impact that may shape the way evidence is received and used to make decisions.
Samuel Solomon and Jennifer Mnookin may both be said to be firmly in the second camp—
seeing images as rhetorical devices. Solomon is a professional visualizer, someone who assists legal
teams to sway their audiences by skilful use of visual frameworks. As he puts it, ‘the visual is a
roadmap to convert jurors to the arguments being offered’ (Solomon, 2006, p. 5). Mnookin brings
her background both as a historian of science and as a specialist in evidence law, to show how a
‘dazzling demonstration’ by an expert showing off the latest scientific display can convince a jury
(Mnookin, 2007, p. 12). For her, the fingerprint or the x-ray, or any other visual representation of
scientific mastery, has been used as part of a strategy of persuasion.
However, even within the arguments of such advocates of ‘visual images as rhetoric’, we can
see an engagement with the other camp. For Solomon, the craft of persuasion is itself a science
and the quest is to discover underlying regularities. Jurors might start off with a complex set of
frameworks; the task for the good attorney in tapping into the ‘true, universal language’ of images
is to construct a new unitary, truth shared by all, to ‘allow people to see the same image in their
imagination and contemplate its consistent meaning’ (Solomon, 2006, p. 4). This universal grammar,
Solomon shows us, takes the form of timelines, relationship charts, rating scales and decision trees—
visual ways of organizing information into familiar forms. Something that seemed initially to offer
itself as a strategy of deception turns out to be a study of logic—the logic of perception and group
decision-making. Further, the source of deception, Solomon reminds us, is actually human memory.
We fool ourselves when we think we can reconstruct an argument or a testimony accurately. Such
a failing can be remedied—with the aid of diagrams. Visual reminders can allow juries to base
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RETHINKING THE ROLE OF THE IMAGE IN JUSTICE
313
their decisions on accurate summaries of the evidence. So visual images provide both a structure
to interpret the truth correctly and a reminder of the key facts relevant to making an appropriate
decision.
Elsewhere Solomon suggests another role for graphics as a tool for clarifying evidence for the
jury, by ‘visually reframing’ the ‘thought processes’ of jurors (Solomon, 2003, p. 189). The visual
display in this case is not an alien intrusion that re-interprets their ambiguous responses and refreshes
their hazy memories; it is their own interpretations simplified, clarified and transformed into visual
form. Like any successful marketing campaign, the goal is to ‘configure the offer’ in a way that
addresses consumer needs and desires and taps into existing values and expectations (Kotler and
Zaltman, 1971).
3. The ambiguous role of the scientific expert
For Mnookin, the dazzling demonstrations are based around an attempt to create a new source of
authority, the expert, who began supplementing the eyewitness as the major form of evidence during
the mid- to the late-19th century. Part of the lure of the newscientific experts who began to invade the
courtroom was the promise of objectivity, wielding instruments that were ‘seemingly untainted by
the dangers of human subjectivity’ (Mnookin, 2007, p. 3). No longer would fallible mortals have to
interpret the evidence, science would speak for itself, directly through the visual objects presented.
The fingerprint pointed to the criminal, the x-ray ‘did not lie’.
But experts were not happy about stepping out of the limelight, Mnookin informs us, so a
delicate dance began—the expert was the authority, the image divulged the hidden truth, the expert
was needed to interpret the image, the image spoke for itself. It was within this tortured symbiosis
between image and expert that rules for regulating the admissibility of expert evidence were devel-
oped. As with Solomon, reason appears in this story as an organizing framework, in this case used
by scientific experts to assert their own authority. This claim could be contested in the case of hand-
writing experts, who lacked both a disciplinary base and a baseline data in which to ground their
judgements, but with university-based forensic sciences with DNA tests and the like, the images of
the expert become almost unassailable.
As experts become hard to challenge, they tend to become in the process unnecessary. If any
suitably trained scientist would provide the definitive explanation for a laboratory test, then it is no
longer necessary to bring the busy expert into the court to testify to the truth of the procedure, just as
the person who processes data from speed cameras is not required to appear for every speeding viola-
tion. The implication of Mnookin’s argument is that to the extent scientists establish their credibility
as a discipline they simultaneously undermine their claim to personal authority. Or, more generally,
the authority is transformed from one based on personal standing to one based on professional codes
and membership of a recognized discipline. Meanwhile, judges become gatekeepers by applying a
set of rules to whether particular types of evidence meet the standards of ‘science’.
4. The contest between expert and jury models of establishing truth
From the perspective of science, the assignment of increasing privilege to evidence-based research,
peer review and professionalcredentials marks a major step towards making the law more responsive
to reason. In the context of this discussion, the visual information presented in court is therefore
likely to provide established truths rather than junk science.
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D. TAIT
There is another way of understanding this development. It is to see it as yet another attack on
the role of the jury as fact finder. By intervening to screen witnesses, not according to whether the
information they provide is necessarily unfair or prejudicial, but according to whether it is ‘right’
or ‘true’, the judge becomes increasingly like the inquisitorial judges of pre-revolutionary Europe
(Carbasse, 2000). Evidence is subjected to an elaborate series of proofs, much of the evidence comes
on paper rather than in oral form, and the judge is expected to weigh up the evidence based on
an established set of rules. The two major forms of evidence under the ancien r
´
egime were the
confession, the ‘Queen of Proofs’ and the eyewitness testimony. The former could sometimes be
enabled by judicious use of torture. In replacing the commonsense gut instincts of the popular jury
with the elaborate proofs of professionals, contemporary law and science could, it can reasonably be
argued,beconspiringtounderminethesovereignty of juries to pass judgement not just on individuals
but on laws, institutions and social conventions.
This is not to say that the decisions in post-Daubert courts may not be more accurate and consis-
tent than those of pre-Daubert courts, and avoid sending innocent people to prison, or for that matter
that peer-scrutinized disciplinary conventions for distinguishing real science from junk science are
comparable to secret hearings of pre-revolutionary courts. Nevertheless, the increasing acceptance
of expert evidence does mark a shift towards greater authority for the fact-finding entrusted to pro-
fessionals, both scientific bodies and judges.
5. Using images to conceal
In the case of both Mnookin and Solomon, truth is made visible thanks to the image. But there is a
twist. The process of producing images becomes just as much a process of concealment as revelation.
This indeed is how Mnookin concluded her paper, when she said that ‘visual evidence can simulta-
neously hide and reveal’ (2007, 16). For Solomon, all the inconvenient details that do not fit in with
the main story may be swept aside in the quest for clarity. For Mnookin, there are several things that
may be hidden. These include the person of the expert and the source of authority. But also the guid-
ing hand of the judge in admitting (or excluding) expertise, in allowing some images to be presented
for the commonsense of the jury to interpret without the aid of experts, while requiring other forms
of evidence to be accompanied by an authorized interpreter. One of the most frustrating experiences
for a juror in the common law world is to be sent back to the jury room while counsel argue about
the admissibility of evidence, without being informed what the dispute was about. Insult is added to
injury when jurors are instructed not to speculate what might have been withheld from their scrutiny.
Following Mnookin’s argument, it is not just evidence that may be concealed from their eyes
but interpreters to guide them through it; or they may be given the scientific evidence, but denied
the presence of the guide. Golan, drawing on Mnookin’s work, shows how judges drew distinctions
between x-rays and photographs: the former generally requiring an expert to interpret, the latter not
(Golan, 2004, 176–210; Mnookin, 1998). Whether an expert is given the jury in a particular case,
Mnookin’s suggestion that we need to pay attention to what is invisible to the jury is useful advice.
The irony is that the more accepted scientific evidence becomes, the less it may be visible to the jury.
Challenges to the integrity of the test will be increasingly hidden behind the canons of a scientific
discipline; peers in thatdiscipline, not jurors, will decidewhether the procedures are valid.The judge
will decide if an expert needs to appear at all to explain what might be considered self-evident; even
when the expert comes it is (in the expert’s view) in the guise of a pedagogue to teach the jury rather
than a witness for one side.
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RETHINKING THE ROLE OF THE IMAGE IN JUSTICE
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6. Images to shape memory
There is a further dimension to the challenge of describing the role of the visual in a justice perfor-
mance, and this relates to an issue discussed by Solomon, memory. A trial can be seen as a process
of constructing an official memory. It thus provides a complex interplay between presentation and
representation. The parties present themselves to the jury (as models of veracity, as responsible, as
attentive to jury needs); they also present arguments, evidence, witnesses and exhibits. At the same
time, they re-present the crime, by re-enacting it verbally or visually (or both), they provide a nar-
rative that explains their case and they provide charts, photos or other aids to represent (stand in
the place of) memories of those who were actually there. And as Mnookin suggests, the boundaries
between what is ‘real’ or ‘illustrative’, direct or demonstrative become increasingly blurred. In the
context of the court process, they blend together to create new memories, in this case for the jury.
The trial becomes not so much a battle for truth, but for representations—which side constructs the
most convincing memory?
In the terms of the dichotomy between the image seen as an instrument of persuasion or as
a tool of logic, this might seem to represent a victory for rhetoric over logic. However, placing
this in the context of jury deliberation, it can become a contestation of logics (Finkel, 1995). From
the competing images, memories, reconstructions and stories provided them during the trial, they
must formulate their own representation of ‘what happened’ to make sense of the different pieces.
Operating within the sensory landscape of the jury room, they use their own commonsense to judge
the claims of modern science, expert witnesses and every form of visual or verbal evidence. They
bring ‘values-based frameworks’ to interpret the stories told them in court by the lawyers in terms
of the ‘issues’ as they define them rather than the ‘facts’ as the judge may have instructed them
(Solomon, 2003). Individual jurors will bring different interpretations and impressions to the debate,
their own memories of the evidence, their own commentaries on images they saw and words they
heard. In this process of deliberative democracy, a new representation of the case may be born.
Whether an expert diagram is impressive, a flow chart is helpful or a photo is memorable: all these
things should be judged in the last analysis by how they inform the jury deliberation.
7. Scientific exhibit as eyewitness
While the production of scientific truth may become more invisible, the image itself, the visual
marker of science, becomes more prominent within the trial process. It takes on some of the role of
the eyewitnessrather than the expert who has disappeared from view. Inother words, it may be tested
as to its demeanour—does it look good, is it clear, does it insult the intelligence of the jury, maybe
even does it smell good? One version of this argument is known as the Crime Scene Investigation
(CSI) effect, which suggests in part that if the expert evidence does not meet the (unduly) high
expectations set by TV crime programs, the jury may mark down the side that uses it, in most cases
the prosecution (Tyler, 2006; Goodman-Delahunty and Tait, 2006).
One feature of a demeanour criterion of credibility is that it tends to escape rational-legal meth-
ods of assessing relevance, by giving value to hunches, suspicions and interpersonal responses that
cannot be easily put into words. This is sometimes interpreted as involving ‘peripheral’ rather than
‘central’ processing of information because judgements are formed on cues that are considered pe-
ripheral to the central facts at issue (Petty and Wegener, 1999). Alternatively, using demeanour as
evidence for credibility could be thought of as giving priority to the ‘science of experience’ over
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D. TAIT
more abstract approaches to science whose claims are not based on immediate observations. This
was at the heart of the Wells Harbour dispute in the 1780s in which scientific experts provided critical
evidence (Golan, 2004, p. 49).
If evidence is ruled inadmissible, jurors do not get a chance to apply their commonsense to
the credibility of the scientific testimony, an issue that was central to both Frye and Daubert (Frye
v. United States, 1923). While judges and the scientific community may have control over which
‘science’ deserves to be produced before the jury, once the evidence is produced, the professionals
tend to lose control over the interpretation. Whether something akin to a ‘demeanour’ criterion is
applied is a matter of empirical testing, but the absence of the expert charged with personal authority
certainly opens the possibility for this to occur. At any rate since the evidence-based, peer-review
process is hidden from the jurors, it could be argued that this model for weighing up evidence is not
immediately transparent (and therefore accessible) to the jury.
8. The challenge of interactive evidence
Another form of visual evidence examined in more detail by another conference contributor,
Neal Feigenson, appears to offer further possibilities for transforming the character of legal
processes—visual information in interactive form (2006). This might involve panoscans or virtual
‘walk-throughs’ of the crime scene, or computer simulations that reconstruct the chain of events
that led to the incident before the court. These could be on a screen in 2D or in the body of the
courtroom as a holograph. This author is leading a team in Australia to carry out research about how
jurors receive interactive visual evidence, using controlled experiments in increasingly ‘realistic’
environments (see Justiceenvironments.edu.au).
The judge, in a post-Daubert world, may be the gatekeeper, but the evidence once let in becomes
hard to control. A cross-examination can lead to displaying a perspective or scenario that the judge
did not anticipate; similarly, questions from jurors can open up lines of enquiry that one of the parties
had consciously decided to leave closed.
More generally it can be suggested that public trials—and not just particular forms of evidence—
are interactive. As Robert Jacob suggests in his seminal book about justice and the image, justice
is by its very nature a spectacle (Jacob, 1994; Garapon, 1997; Tait, 2001). The rituals, gestures
and processes convey the meaning of the performance. The temples of justice construct particular
relationships between participants, and embody certain views about authority and the state. It is not
the image that embellishes the text or is merely ‘illustrative’ of the real evidence. The image itself is
central to the experienceofjustice.Whatismisleadingisisolatingsomevisualaspects,suchascharts
or exhibits, and treating these as if they were the only visual displays. As Jacob points out, the whole
show is a spectacle, including the verbal exchanges, the rhetorical flourishes and dramatic gestures,
the written documents and the trolley loads of legal texts. Rather than sight playing handmaiden to
sound, they both contribute to a rich and complex sensory landscape.
The jury may be asked to distinguish different factual elements of the case, weigh up the plau-
sibility of each piece of evidence; this is where discrete charts or photographs, expert diagrams or
prosecutorial flow charts may guide the process of deliberation. But one way or another, the jury is
asked to unify all the information into a single decision, to use their commonsense (or intime con-
viction as French juries are asked to do) to put it all together. How do pieces of visual and verbal
evidence work together to ‘crowd out’ or focus the debate (Finkel, 1995), to create empathy for the
accused or the victim (Joliffe and Farrington, 2004) or add additional information through a ‘second
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RETHINKING THE ROLE OF THE IMAGE IN JUSTICE
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channel’ (De Weterlinck et al., 2005)? So the question that we are left with is not just how one piece
of evidence contributes to the whole, it is also what is the total sensory landscape that the jury has
experienced. How does the authority of science combine with the credibility of the expert and the
plausibility of the image? These are important questions which contributors to this discussion have
done much to develop. But to answer the questions it is essential for us to apply the same principles
that judges are expected to apply to expert evidence—we should use empirical research to develop
an evidence base that is subject to open scrutiny through a peer-review process.
Acknowledgements
This paper originated as a commentary on the work by Mnookin and Solomon presented at
the conference. Thanks to helpful comments by reviewers; it has expanded and changed its focus
considerably.
Funding
Australian Research Council (LP0667764).
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... This presence is evident in several situations, such as the consumption of cultural products, television news, the establishment of communities in social networks or the dissemination of information produced by smartphones by witnesses to a specific event, among others. This plurality of situations also affects the field of law and can be observed in different cultural products, such as print journalism, audiovisual movies dealing with law (Asimow 2009, Brown 2017, as well as the presence of images and other audiovisual records in courts from different countries and legal cultures (Tait 2007, Silbey, 2008, Kahan, 2009, Sherwin 2011, Riccio et al. 2018. ...
Chapter
This paper aims to analyze a case brought to a Military Court in Brazil discussing a physical aggression committed by a corporal against a soldier under his command. The aggression was recorded on a cell phone and then disseminated to an entire battalion by the social media. The article discusses how the legal professionals working in the case (lawyers, prosecutors and military judges) have analyzed the video content to sustain their decisions during the case. The paper analyzes the video evidence responsible for starting the judicial procedure. The legal acts discussing the evidence performed by the military prosecutors, the defense lawyers and the military judges in lower and upper levels of jurisdiction were also analyzed. The paper tried to answer the following questions: 1 – is the video evidence interpreted in a different manner compared to traditional evidences such as witnesses or documents? 2 - What were the linguistic-discursive resources of the argumentation employed by legal professionals in the process? 3 To what degree is the video evidence validated by legal professionals acting in the process -? To answer those questions the paper adopted a qualitative methodology aimed to grasp the intricacies and particularities of the legal professionals’ arguments. The research’s preliminary results demonstrate: 1 - legal professionals do not hierarchize the kind of evidence employed in the process, 2 – the video evidence has not been submitted to a formal validation process considering its linguistic-discursive nature, 3 – legal professionals have interpreted the video evidence based on their institutional experience without considering its particularities.
... This presence is evident in several situations, such as the consumption of cultural products, television news, the establishment of communities in social networks or the dissemination of information produced by smartphones by witnesses to a specific event, among others. This plurality of situations also affects the field of law and can be observed in different cultural products, such as print journalism, audiovisual movies dealing with law (Asimow 2009, Brown 2017, as well as the presence of images and other audiovisual records in courts from different countries and legal cultures (Tait 2007, Silbey, 2008, Kahan, 2009, Sherwin 2011, Riccio et al. 2018. ...
... The technology can offer significant benefits over traditional static (photographic) or moving (film) media captured in the real world. The rendered images from virtual worlds are not bound by the limitations of available lighting; they can avoid extraneous information, focusing only on salient evidential items; and they can be colourful, animated and lively enough to guarantee the attention and engagement of the viewer [24,36,37,38]. ...
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An intrinsic connection exists between humans and the memories they create; they define who we are, where we came from and our accomplishments and failures. However, decades of research has shown how fragile human memory can be. Almost all human computer interfaces involve vision and most rely on vision as the primary means of passing information to the user [1]. It is worth considering that perhaps this specific form of media interaction requires special care and attention due to its inherently persuasive nature, and the undue reliance that the viewer may place on information presented through a (poten-tially photorealistic) visualisation medium. Their influence on human memory and behaviour cannot be underestimated. This paper will introduce research undertaken by the author over the past 25 years that has experimented with, and examined a range of visual based presentation technology into courtrooms all over the world. Courtrooms are environments where the decisions made (based on human memory and comprehension) can significantly affect the lives of others. This paper describes research undertaken to assess the effect of visual technology on users (in particular their memory and decision making abilities) and describes some of the issues raised by the experimental results. The work presented in this paper connects psychological research with human cognitive and perceptual processes and limitations, to allow the evaluation and optimisation of visual interfaces. The paper concludes with a discussion of the potential benefits and problems of designing interactive visual technology when considering the impact on human cognition.
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