Lawyer Monthly - January 2022 Edition

n layman’s terms, what is a “human factor” analysis? Generally speaking, a human factor analysis (HFA) involves the study of the human being as a central part of a system or event. HFA may not only include an analysis of perception, behaviour, and outcomes under a significant activation of the sympathetic nervous system (“fight or flight”), but also the results associated with routine, repetitive or concurrent behaviours or tasks. HFA specifically addresses cognitive and physiological capabilities and limitations, physical actions and perceptions, errors, decision- making, memory and recall, and training methodology. Along with computer science, the study of human factors has been described as the most relevant science developed in the last fifty years. How do these factors shape our behaviour? Our behaviours and decisions I How Does a “Human Factor” Analysis Influencing every aspect of a crime is the human factor – the capabilities and limitations of a person’s behaviour under significant distress. Both prosecutors and defence stand to gain from an in-depth understanding of how a suspect can be expected to react when a fight-or-flight response is triggered. Below, Bruce Champagne shares more on this fascinating area of science with Lawyer Monthly and expands on its significance in a courtroom. 68 WWW.LAWYER-MONTHLY.COM | JAN 2022 EXPERT WITNESS are not only by produced by conditioning and training, but also through decision-making heuristics and the influences of the sympathetic nervous system (SNS). When the SNS is sufficiently stimulated, it will influence a subject’s focus, perception, senses, decision- making, speech, and memory recall. As the subject’s heart rate elevates with an SNS- stimulated response, their ability to respond is adapted accordingly. Complex motor skills begin to deteriorate. Depth perception and near and peripheral vision also become reduced (sometimes referred to as “tunnel vision”). Auditory exclusion may be present, as the brain excludes any sound it perceives as unnecessary to address the present focus or threat; subjects involuntarily ignore other sounds. Importantly, cognitive processing deteriorates, perhaps negatively influencing analysis, decision-making and outcomes. When the event is recounted later, the subject may not only say they felt “fear,” but there is also a significant possibility that the subject and witnesses will be inaccurate in their perceptions and recall. Subjects have been suspected and/or are criminally charged because their statements are “not consistent with the evidence,” when if they were truthful in their statement of an involvement that may have included the stimulation of the SNS, inaccuracy could be expected in some degree. What is the importance of these factors in determining culpability in a criminal case? Is it reasonable to expect any person to act outside of the capabilities of human physiology, especially under a sympathetic nervous system response? Though utilised routinely by other industries and professions for error mitigation and within civil proceedings, the judicial system may utilise HFA only when evaluating law enforcement-related use-of-force incidents. It Is it reasonable to expect any person to act outside of the capabilities of human physiology, especially under a sympathetic nervous system response? Affect a Criminal Trial?