Bad Astronomy links to the story of Lisa Miller, a San Francisco woman sentenced to two months in jail for using a fake psychic routine to scam $108,000 from a victim who came to her for relationship advice. There were a couple of questions that popped up in the post and the comments, and I think they bear more examination.

Does this set some kind of precedent for the truth or falsity of claims of psychic powers? Can we start rounding up other psychics and prosecuting them for fraud? The short answer is “no.” There’s really nothing here that makes it any easier for the government to prosecute psychics.

The biggest reason why this won’t lead to a wave of psychic convictions in that there wasn’t a trial. She was charged, and (probably) took a plea deal. There was no evidence presented, nor any ruling by the court, on whether or not Ms. Miller actually had any psychic powers. The court doesn’t know, and doesn’t care, whether she can do anything spooky or not. As far as the court is concerned, Ms. Miller may be able to speak with spirits, translate dog barks into English and accurately predict when babies have poopy diapers by reading their auras. She might be able to call heaven collect and get your dead grandpa’s ghost to tell you where he hid his set of antique ivory anal beads. Ms. Miller could have just been too lazy to use her “real” powers when advising this particular victim.

Not incidentally, Ms. Miller’s plea of no contest will make it harder for her victim to win a civil suit. A no contest plea generally can’t be used as evidence of the acts in a civil trial. So if our victim isn’t satisfied with restitution, and wants to sue Ms. Miller for other damages, she can’t go to court and say “of course she scammed me, she was convicted of scamming me, give me some money.” She’ll have to essentially start from scratch, and prove that Ms. Miller is a con artist with other evidence. It’s not the same as a criminal prosecution, but it’s an avenue that victims of this kind of fraud can pursue without government help, and this conviction doesn’t make that easier for this particular victim.

Finally, even if Ms. Miller had stuck to her story and defended her “powers” in court, criminal trials aren’t binding on other courts. It sounds strange, but a ruling by a trial court only applies to the law and the facts at issue in that particular case. It’s only when an appeals court weighs in that the rulings become rules that lower courts have to follow.

If (in my feverish skeptical law student wet dreams) an appeals court created or employed an evidentiary test that psychics had to meet to be considered “genuine,” it would be binding on trial courts, but only in that state (or Circuit, if it was a federal case). Only a Supreme Court ruling on the subject would make that kind of test binding on every court in the land, and send all the phony mediums scrambling across the Canadian border like cockroaches.

In his post, Phil asks the following question:

“What’s the difference between this woman and Sylvia Browne, John Edward, James van Praagh, and all the other so-called ‘psychics’?”

There’s an easy joke in there about how those three are obviously all men, baby, but we’ve got to draw the line somewhere. A lot of it, as some of the BA comments pointed out, probably comes down to the famous psychics having better lawyers, but I think there are a few distinctions that are worth discussing, despite the risk that the Lisa Millers of the future will learn to perfect their future scams.

The first is that the prominent scam artists are careful to disclaim their TV shows, public appearances, books, websites and bowel movements as “for entertainment purposes only.” It sounds ridiculous, but it speaks to the limited power that the government has to regulate in certain spheres. This little disclaimer is generally enough, as far as the law is concerned, to put you on notice that you shouldn’t rely on psychic advice or promises. Even when a psychic is telling you to your face that he or she has spooky mystical powers, you’re swallowing that bunk at your own risk.

Secondly, the famous psychics are generally smart enough not to get themselves into a mess like this. The secret is victim management. Sylvia Browne makes an obscenely good living scamming lots and lots of people out of a little bit of their money. Even though $750 for an hour of private consultation sounds like a lot, it’s nothing compared to the time and expense of filing a lawsuit. If some of the scammees come to see through the ruse, chances are it won’t be worth it monetarily for them to pursue a lawsuit.

And in terms of criminal prosecution, a state isn’t going to be able to devote scarce resources to pursue fraud at such a relatively low level. There are only so many prosecutors and so many hours of courtroom time, and the government is too busy with important things, like trying to make the executive branch into a “no-oversight” zone.

Ms. Miller, though, made the mistake of milking a single cow hard enough to put a significant hurt on her, to the tune of $108,000. Once the mark suspected fraud, her losses were large enough that it made sense for the state to prosecute. If Ms. Miller had known when to stop working the pump, she might have gotten away with it.

Another of my skeptical law student wet dreams is getting together a whole passel folks who’ve been scammed by a TV psychic and aiming a class action suit squarely at one of those cretins. (A psychic, not a victim.) As to whether that’s even possible, the answer is ask somebody who has the time to research it, and the money to start the suit in the first place.

Finally, and this is purely speculative, I suspect that any attorney who works for a successful paranormalist is smart enough to recommend settling any lawsuit that might be brought. The last thing that the individual psychic, and the industry as a whole, would want to risk is a court ruling that a psychic’s powers aren’t real. While it might not be binding on any other court, it certainly wouldn’t look good in the court of public opinion.

So let’s call this a limited victory. One horrible fraud is held accountable; one victim gets her money back. Because I am a dreamer, I hope that she will learn not to trust psychics, and that she’ll sue the ever-loving shit out of Ms. Miller. And if any lawyer out there wants to file a class-action suit against a TV psychic, I am a whiz at indexing discovery, and I work cheap.

spread the panic!

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Tags: Bad Astronomy, bLAWg, fraud, James van Praagh, John Edward, law, Phil Plait, psychic, scam, stupid, Sylvia Browne

This entry was posted on Friday, December 12th, 2008 at 8:07 am and is filed under Panic!, bLAWg. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.