Thursday, March 26, 2015

Example of Retroductive Reasoning

NYTimes report:

" As officials struggled Wednesday to explain why a jet with 150 people on board crashed in relatively clear skies, an investigator said evidence from a cockpit voice recorder indicated one pilot left the cockpit before the plane’s descent and was unable to get back in.

A senior military official involved in the investigation described “very smooth, very cool” conversation between the pilots during the early part of the flight from Barcelona to Düsseldorf. Then the audio indicated that one of the pilots left the cockpit and could not re-enter.

“The guy outside is knocking lightly on the door and there is no answer,” the investigator said. “And then he hits the door stronger and no answer. There is never an answer.”

He said, “You can hear he is trying to smash the door down.”


QUESTION: What are some possible explanations; what is their relative (comparative) plausibility; and what further evidence would you seek to strengthen or weaken each possible explanation?

1. The pilot in the cockpit had had heart attack. (Alternative: He or she had a stroke. Etc.)

2. A terrorist (or flight attendant) forced the pilot in cabin to crash the plane. (Variants of this explanation.)

3. The pilot in the cabin decided to crash the plane. (Etc.)

4. Etc.


See generally    

The Fabrication of Facts in Investigation and Adjudication

Monday, March 16, 2015

Trial by Jury in China?

See for dissertation "Jury System and China":
Jury System and
发布日期:2012-02-24 21:34:16

                                                                             By Linchang Shen
Ⅰ Introduction
Ⅱ Decline vs. Reintroduction
Ⅲ Is Jury System Totally an Imported Institution for China?
Ⅳ Should China Adopt Some Kind of Jury System?
Ⅴ Is Anglo-American Jury System Suitable for China?
Ⅵ How to Reform the Current People’s Assessor System?
Ⅶ Conclusion

It is quite interesting that since the turn of 20th and 21st century the jury system has attracted enormous attention throughout the world. Unexceptionally, this institution has also aroused heated debates in China. The purpose of this dissertation is to study whether China should adopt some kind of jury system and which style of jury system is more suitable for China if one is adopted, and further to explore how to reform the current jury system in China. The dissertation first looks through the reintroduction of jury system in Russia, Spain and Japan, analyzes the underlying motives of the important judiciary reforms and extracts the implication for China. Afterwards, the article researches whether China should adopt a jury system and then explores the suitable style jury system for China. Finally, the article examines the current jury system in China, points out the defects, and then correspondingly puts forwards some suggestions for reform of the current jury system.
issertation "Jury System and China":
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Evidence marshaling software MarshalPlan

Saturday, January 03, 2015

Taking Inference Seriously

Taking Inference Seriously

I am deeply honored to be here – to be virtually here – to receive the Wigmore Lifetime Achievement Award.

There is relatively little doubt that some of you associate my name with the so-called (and now not so new) New Evidence Scholarship. The New Evidence Scholarship began roughly in the late 1960s and early 1970s. Mathematics and statistics have played a prominent role in the New Evidence Scholarship, and a good deal (though by no means all) of the new scholarship whose study I have promoted over the years makes use of mathematics and statistics. The underlying reason for my interest was never just the idea that mathematical tools can shed light on the nature of evidence and inference. I have always had a broader and fuzzier goal, the goal of advancing the study of evidential inference by employing a wide variety of conceptual tools and branches of human knowledge, including but not limited to mathematics, formal logic, and matters of that sort.

In my own work I have used mathematical tools only sparingly, and generally I have used only very simple mathematics (primarily arithmetic and simple algebra). When I have used mathematical tools, I have used them, in the main, not to construct models of the world but, rather, to explore the nature of argument from and about evidence. Mathematics is, among other things, a special grammar or language that can be used to construct arguments. When I have used mathematics in my work, I have used it primarily to explore the nature of evidential argument.

It is fortunate (or perhaps it was just inevitable) that evidential argument has been the focus of my sporadic efforts to use mathematics in my scholarship. The role of argument in inference has been my focus because I strongly believe that human beings do not directly perceive the world that they believe surrounds them; I have long believed that human beings use their minds, brains, and senses to construct the world, to form images of the world that they believe or assume surrounds them. Give this, it should be apparent why I think that argument – including mathematical evidential argument – is subjective. And given this, you can understand why I reject the notion that an argument about evidence couched in mathematical language is an algorithm, or a fixed formal recipe for the solution of an evidential problem. Logically valid arguments can and do produce false conclusions. (For example, a formally valid argument may rest on false premises.) Finally, it should now also be apparent why I do not believe that an evidential argument couched in mathematical language is necessarily a “model” of actual evidential inference. The reason is the same as before: an argument is an argument – whether mathematical language is used to make the argument or not. For me, mathematics is a guide to the nature of certain kinds of argument.

Although I believe evidential argument and evidential inference are necessarily subjective, I do not believe that inference from evidence is or should be nothing more than an act of free creation or pure invention. I am too much of an admirer of science and common sense to believe any such thing. In most legal settings the aim of factual inference is to produce factual conclusions that have a good chance of being true, that have a good chance of approximating actual events and states of affairs in the world. For this reason, if for no other, it is fortunate that legal systems worthy of the name demand that important factual conclusions must rest on at least some evidence: a requirement of evidentiary support imposes at least some veritistic (truth-seeking) constraints on fact-finding.

But although I concluded that that evidence and argument are two essential ingredients of reliable factual inference, I also reached the conclusion that these two ingredients cannot by themselves explain how human inference in legal settings actually works or how it should work. Although the requirement of evidentiary support insures that some of the premises of an argument about facts have a basis in evidence, a bare requirement of evidentiary support allows the formation of distinct valid inferential arguments that lead to a variety of factual conclusions, including disparate factual conclusions. This consideration, along with my experience as a litigator in law practice and my experience more generally as a human being in the world, led me to the conclusion that any adequate account of the actual or proper working of factual inference must take intuition into account.

But to assign intuition a central role in fact-finding in the legal process is almost a show-stopper. That's because “intuition” seems to refer to beliefs, principles, propositions, and other such matters, or matters that are not arrived at through conscious deliberation but are simply given or implicit, that just happen to be there in our minds, in our brains, or somewhere else in ourselves. If this is what intuition is, and if fact-finding in the legal process is importantly driven by intuitions, it hardly seems possible to regulate fact-finding in a rational fashion. The notion of rational intuitive inference appears to be an oxymoron! This is the puzzle I have wrestled with most of my working life.

Although I may strike you as an unduly obsessive fellow, allow me to say that I believe and I hope I have made some progress in solving the puzzle about the relationship between reason and intuition in inference. One of my insights (which is not necessarily an original insight) is that the answer to the question of the role of reason and intuition in inference cannot be given in either/or form: the correct answer cannot be that inference is always driven either by reason or intuition but not by both. Reason and intuition both play a central role in inference.

In addition, the boundary between intuition and reason is not fixed, it is not immutable. When I engage in introspection, I often conclude that many of my intuitions are at least in part a product of my earlier conscious ruminations (sometimes, to be sure, very fragmentary and disordered ruminations, but conscious ruminations nonetheless). If my experience is not atypical and if it is not a product of delusion, perhaps it is possible to get decision makers who are involved in the legal process to reflect on and sometimes revise the intuitions with which they begin; evidence and argument can be directed at such intuitions.

As I struggled to work out the role of intuition in fact-finding in the legal process, it became apparent that such insights, even if valid, do not guarantee that fact-finding in the legal process will be accurate. For even if some intuitions are penetrable by reason, human beings seem to have some or many intuitions that are largely impenetrable to introspection and deliberation; many of the intuitions that play a role in fact finding probably lie entirely beneath reach of conscious thought. So I was forced to confront the following question: even if we recognize that both intuition and reason play a role in factual inference and even if we acknowledge that we can consciously evaluate some of our intuitions, are we forced, in the end, to conclude that no matter how much we human beings reflect and deliberate, our factual inferences are generally not trustworthy because at least some of the premises of our inferential processes are largely or entirely beyond the reach of conscious thought – and, for that reason, are therefore necessarily untrustworthy?

As I struggled with this question intermittently, for literally decades – I consulted literature in fields such as neuroscience, artificial intelligence, psychology, and cognitive science. I was trying to find out whether there is much reason or logic involved in subconscious inferential processes. And much of the literature I examined does assert or assume that some sort of logic or logics control, regulate, or structure subconscious inferential processes. To be sure, some of the literature that I examined emphasizes the fallibility of subconscious (and conscious) human judgment, inference, and deliberation. Moreover, none of that literature asserts that human judgment is infallible. But at least some of the literature asserts that at least some subconscious human judgments about at least some aspects of the world are not only produced by natural processes that are governed by some sort or logics but are also, in the end, miraculously enough!, fairly reliable.

But after reaching these conclusions, I was left with a nagging question: how does the recognition that (a) subconscious inference exists (and is omnipresent in human inference) and (b) some sort of logic or logics are involved, bear on the puzzle I posed earlier, that is, does the unavoidable role of intuition in human inference necessarily frustrate any effort to make the process of factual inference in the legal process both rational and reliable? Eventually I arrived at two conclusions that are pertinent this puzzle – but, as you will see, they are not entirely reassuring conclusions.

First, although there is ample reason to believe that a logic or logics of some kind play a critical role in subconscious inference, the nature of that logic or logics is not yet well understood. If that is true, the notion that we might use some sort of logic-based technology to improve subconscious human inference in general is only a fantasy at this point in human history.

Second, even if we grant the general supposition that subconscious human inference is "fairly reliable," we cannot extract from this fuzzy general supposition A. exactly how reliable subconscious human inference is, and B. the circumstances that render subconscious human inference either more or less reliable. Given these two desultory conclusions, does it follow that my extended exploration of the literature in fields such as artificial intelligence and cognitive science was pointless?

I am inclined to think that the literature I examined offers rational grounds for the hope that two important propositions about human inference are true:

First, as I have already said, that many of our subconscious or tacit inferences are "fairly reliable." Unlike some students in the fields of "heuristics and biases" and behavioral economics, I am impressed by how often human beings get their inferences right rather than by how often they get their inferences wrong. A belief in the reliability of much subconscious inference counsels against too strong a general distrust of the substrate of subconscious human inference.

Second, as I noted earlier, even if one supposes (as I do) the existence and omnipresence of subconscious inference in human inference, it does not follow that all subconscious human inference is entirely inaccessible to conscious thought. Although the structure of some subconscious human inferential processes is likely to remain entirely impenetrable to conscious human thought, it is possible as I said earlier, and even likely, that there are degrees of subconsciousness, and that careful and persistent deliberation can bring to consciousness some thoughts and feelings that initially lurk largely beneath conscious awareness, that swim between consciousness and unconsciousness. If so, as I noted earlier, it is possible that actors in the legal process can, with effort, make themselves more conscious of, more attentive to, more aware of some of the intuitions that seem to play a role in their thinking about evidence – and it is possible (though not inevitable) that by doing this such actors will improve the quality of their inferences.

Of course, even if I am right about all of this it remains true that a vast number of subconscious inferential processes will remain largely beyond the reach of conscious human deliberation and introspection, and such subconscious inferential processes will remain, by definition, impervious to conscious critical examination. But perhaps this is a limitation that we must just accept; perhaps all that we can ask of human actors is that they deliberate as carefully as they can about their intuitions and, taking whatever advice they can from other people and outside sources, decide as carefully as they can. For the foreseeable future, fact-finding in the legal process necessarily involves human actors. It is too much to ask human beings to do more than the best that they can, but perhaps these insights can help us better understand what constitutes the best that human beings can do.

Tuesday, December 02, 2014

Profiling and the hopeless yearning for "specific evidence"

If the DOJ's promised new anti-profiling guidelines rely to any significant extent on the notion of "specific evidence," the new guidelines will be a hopeless mishmash. Cf. Peter Tillers, If Wishes Were Horses: Discursive Comments on Attempts to Prevent Individuals from Being Unfairly Burdened by their Reference Classes, 4 Law, Probability and Risk 33 (Oxford University Press, 2005).


Evidence marshaling software MarshalPlan

Tuesday, November 25, 2014

Is fuzzy logic passé?

Lotfi A. Zadeh

to BISC-Group
Berkeley Initiative in Soft Computing (BISC)

Dear members of the BISC Group:

    For your information, following is an updated version of a brief report on the impact of fuzzy logic. Comments are welcome.



Factual Information about the Impact of Fuzzy Logic


•    Total number of papers with “fuzzy” in title (Google Scholar): 360,000

•    Count of publications containing the word “fuzzy” in title, as cited in INSPEC and MATH.SCI.NET databases.
Compiled on September 11, 2014.

INSPEC Database

1970-1979:   569
1980-1989:   2,375
1990-1999:   21,572
2000-2009: 44,695
2010-present: 31,826
Total:   101,037

MathSciNet Database

1970-1979:   446
1980-1989:   2,474
1990-1999:   5,526
2000-2009: 10,295
2010-present: 7,131
Total:   25,872

Count of citations
•    Number of citations/results of papers by L. Zadeh (Google Scholar): 138,270
•    Number of citations of L. Zadeh’s paper “Fuzzy sets,” Information and Control, 1965 (Google Scholar): 52,484
•    Number of members of the BISC Group (subscribers on BISC mailing list)
worldwide: 990


•    Number of fuzzy-logic-related patents issued: 560,000


Fuzzy in title
1.    Fuzzy Sets and Systems
2.    IEEE Transactions on Fuzzy Systems
3.    International Journal of Fuzzy Logic and Intelligent Systems
4.    Fuzzy Optimization and Decision Making
5.    Journal of Intelligent & Fuzzy Systems
6.    Fuzzy Economic Review
7.    International Journal of Uncertainty, Fuzziness and Knowledge-Based Systems
8.    Journal of Japan Society for Fuzzy Theory and Systems
9.    International Journal of Fuzzy Systems
10.    International Review of Fuzzy Mathematics
11.    Fuzzy Systems and Soft Computing
12.    Turkish Journal of Fuzzy Systems
13.    Annals of Fuzzy Sets, Fuzzy Logic and Fuzzy Systems
14.    Iranian Journal of Fuzzy Systems
15.    Fuzzy Information and Engineering
16.    Advances in Fuzzy Systems
17.    International Journal of Fuzzy System Applications
18.    Advances in Fuzzy Sets and Systems
19.    International Journal of Fuzzy Systems and Rough Systems
20.    International Journal of Fuzzy Logic Systems
21.    Journal of Biomedical Fuzzy Systems Association
22.    Advances in Fuzzy Mathematics
23.    Journal of Fuzzy Mathematics
24.    Journal of Advanced Research in Fuzzy and Uncertain
25.    Fuzzy Systems & AI—Reports & Letters
26.    Neural and Fuzzy Modeling Technology in Economics
27.    International Journal of Fuzzy Systems and Advanced Applications
28.    International Journal of Fuzzy Computation and Modelling
29.    International Journal of Fuzzy Information and Engineering

Soft Computing in title (soft computing=fuzzy logic, neurocomputing and evolutionary computing)
1.    Soft Computing
2.    Applied Soft Computing
3.    Mathware & Soft Computing
4.    Journal of Multiple-Valued Logic and Soft Computing
5.    Applied Computational Intelligence and Soft Computing
6.    Autosoft Journal. Intelligent Automation & Soft Computing
7.    International Journal of Advances in Soft Computing and Its Applications
8.    International Journal of Artificial Intelligence and Soft Computing
9.    International Journal of Soft Computing Applications
10.    International Journal on Soft Computing
11.    International Journal of Soft Computing
12.    International Journal of Mathematics and Soft Computing
13.    International Journal of Soft Computing Simulation and Software Engineering
14.    International Journal of Soft Computing and Bioinformatics
15.    Journal of Artificial Intelligence and Soft Computing Research
16.    International Journal of Soft Computing and Engineering
17.    Fuzzy Systems and Soft Computing
18.    International Journal of Research and Reviews in Soft and Intelligent Computing
19.    International Journal of Factory Automation, Robotics and Soft Computing
20.    International Journal of Biomedical Soft Computing and Human Sciences
21.    Archives for the Philosophy and History of Soft Computing

Impact on pure mathematics
•    Total number of papers with “fuzzy topology” or “fuzzy topological spaces” in title (Google Scholar): 1417
•    Total number of books with "fuzzy topology" or "fuzzy topological spaces" in title (Google Books): 148

Lotfi A. Zadeh
Professor Emeritus
Director, Berkeley Initiative in Soft Computing (BISC)
729 Soda Hall #1776
Computer Science Division
Department of Electrical Engineering and Computer Sciences
University of California
Berkeley, CA 94720-1776
Tel.(home): (510) 526-2569

Friday, September 19, 2014

Wigmore Lifetime Achievement Award

Peter Tillers will be the recipient of the Wigmore Lifetime Achievement Award at this year’s (Jan. 2015) AALS meeting; the presentation will be made during our section’s joint luncheon with the Criminal Justice section. Thanks to all of you who nominated candidates, and thanks to the officers and executive committee members of the evidence section for discussing the nominations and voting. 

David S. Caudill (Chair, AALS Section on Evidence)
Professor and Goldberg Family Chair in Law
Villanova University School of Law

Thursday, September 18, 2014

Precise reasoning about reasoning with fuzzy words

Comment by Tillers: legal scholars might avoid uttering a great deal of nonsense about imprecise legal concepts if they took the trouble to study fuzzy logic.

Lotfi A. Zadeh:

Berkeley Initiative in Soft Computing (BISC)

Dear members of the BISC Group: 

    The concept of FL-generalization was introduced in my 2008 paper "Is there a need for fuzzy logic?" Information Sciences. The basic importance of FL-generalization has not been fully recognized as yet. For those who are not familiar with FL-generalization, a brief explanation is provided in the following.  

    In large measure, science -- including mathematics -- is based on the classical, Aristotelian, bivalent logic. Bivalent-logic-based science has achieved brilliant successes. But what is striking is that bivalent-logic-based science ignores a basic reality. In human cognition, almost all classes have unsharp (fuzzy) boundaries. Bivalent logic is not the right logic for dealing with such classes, nor is bivalent-logic-based probability theory. What is needed for this purpose is fuzzy set theory and, more broadly, fuzzy logic, FL. Informally, fuzzy logic is a system of reasoning and computation in which the objects of reasoning and computation are classes with unsharp (fuzzy) boundaries.  

    The point of departure in fuzzy set theory is a generalization of the concept of a set to the concept of a fuzzy set. A fuzzy set, A, in a space, U, is a graduated class of elements of U. Graduation involves association of each element, u, of U with its grade of membership in A. This very simple generalization has wide-ranging ramifications. 

    Let T be a bivalent-logic-based theory, formalism, algorithm, concept, etc. T is FL-generalized by adding to T the concept of a fuzzy set along with associated concepts and techniques. The result of FL-generalization is fuzzy T.Examples. Fuzzy arithmetic, fuzzy linear programming, fuzzy control, fuzzy stability, fuzzy support vector machine, fuzzy group theory, fuzzy topology, fuzzy convex set, fuzzy back-propagation algorithm, fuzzy probability, etc. T may be viewed as a special case of fuzzy T. FL-generalization is a matter of degree, reflecting the extent to which sets in T are replaced by fuzzy sets. In the limit, FL-generalization of T involves a shift in the foundations of T from bivalent logic to fuzzy logic. 

    What is gained by FL-generalization? There are two principal rationales. First, FL-generalization opens the door to construction of better models of reality. There is a fundamental conflict between two realities. In the world of human cognition, almost all concepts are classes with unsharp (fuzzy) boundaries, that is, are a matter of degree. In the world of science, almost all definitions are bivalent, with no degrees allowed. Here are a few examples. In economics, the official definition of recession is bivalent. Specifically, economy is in a state of recession if the GDP declined in two successive quarters. Realistically, recession is not a bivalent concept -- it is a matter of degree. In probability theory, stationarity is defined as a bivalent concept. Realistically, stationarity is a matter of degree. In stability theory, stability is defined as a bivalent concept. Realistically, stability is a matter of degree, and so on, and on and on. FL-generalization of definitions, serves an important purpose--replacement of bivalent definitions with fuzzy-logic-based definitions which are better models of reality. 

    The second rationale has a position of centrality in applications of fuzzy logic. Specifically, the second rationale involves an exploitation of tolerance for imprecision through replacement of numbers with precisiated words. A word is precisiated by representing it as a label of a fuzzy set which has a specified membership function. A striking example of exploitation of a tolerance for imprecision is the problem of stabilization of an inverted pendulum. The traditional approach starts with formulation of differential equations of motion, followed by application of stability theory. In the fuzzy-logic-based approach, a small number of very simple fuzzy if-then rules, with precisiated words in the antecedents and consequents, are employed to describe the dynamics of the inverted pendulum. This is the essence of what is called the Fuzzy Logic Gambit. Fuzzy Logic Gambit is an essential ingredient of the formalism of Computing with Words (CWW). Basically, CWW may be viewed as a progression from the use of numbers to the use of precisiated words. 
     In summary, FL-generalization may be viewed as an important instrument of generalization in which the point of departure is replacement of the concept of a set with the concept of a fuzzy set. In large measure, scientific progress is driven by a quest for better models of reality. What I see in my crystal ball is the following. In coming years, more and more theories, formalisms, algorithms and concepts will be FL-generalized. This is likely to be the case even in mathematics--a discipline in which the word "fuzzy" strikes a dissonant note. What should be recognized is that shifting foundations of a theory from bivalent logic to fuzzy logic need not involve a loss of rigor and precision. Example. Fuzzy topology is every bit as rigorous and precise as classical topology. Comments are welcome.


Lotfi A. Zadeh
Professor Emeritus
Director, Berkeley Initiative in Soft Computing (BISC)
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Wednesday, September 10, 2014

The Trouble With Harvard

Steven Pinker The Trouble With Harvard New Republic (September 4, 2014)


Deresiewicz writes engagingly about the wacky ways of elite university admissions, and he deserves credit for opening a debate on policies which have been shrouded in Victorian daintiness and bureaucratic obfuscation. Unfortunately, his article is a poor foundation for diagnosing and treating the illness. Long on dogmatic assertion and short on objective analysis, the article is driven by a literarism which exalts bohemian authenticity over worldly success and analytical brainpower. And his grapeshot inflicts a lot of collateral damage while sparing the biggest pachyderms in the parlor. 

But the biggest problem is that the advice in Deresiewicz’s title is perversely wrongheaded. If your kid has survived the application ordeal and has been offered a place at an elite university, don’t punish her for the irrationalities of a system she did nothing to create; by all means send her there! The economist Caroline Hoxby has shown that selective universities spendtwenty times more on student instruction, support, and facilities than less selective ones, while their students pay for a much smaller fraction of it, thanks to gifts to the college. Because of these advantages, it’s the selective institutions that are the real bargains in the university marketplace. Holding qualifications constant, graduates of a selective university are more likely to graduate on time, will tend to find a more desirable spouse, and will earn 20 percent more than those of less selective universitiesevery year for the rest of their working lives. These advantages swamp any differences in tuition and other expenses, which in any case are often lower than those of less selective schools because of more generous need-based financial aid. The Ivy admissions sweepstakes may be irrational, but the parents and teenagers who clamber to win it are not.

Likei many observers of American universities, I used to believe the following story. Once upon a time Harvard was a finishing school for the plutocracy, where preppies and Kennedy scions earned gentleman’s Cs while playing football, singing in choral groups, and male-bonding at final clubs, while the blackballed Jews at CCNY founded left-wing magazines and slogged away in labs that prepared them for their Nobel prizes in science. Then came Sputnik, the '60s, and the decline of genteel racism and anti-Semitism, and Harvard had to retool itself as a meritocracy, whose best-and-brightest gifts to America would include recombinant DNA, Wall Street quants, The Simpsons, Facebook, and the masthead of The New Republic.
This story has a grain of truth in it: Hoxby has documented that the academic standards for admission to elite universities have risen over the decades. But entrenched cultures die hard, and the ghost of Oliver Barrett IV still haunts every segment of the Harvard pipeline. 
At the admissions end, it’s common knowledge that Harvard selects at most10 percent (some say 5 percent) of its students on the basis of academic merit. At an orientation session for new faculty, we were told that Harvard “wants to train the future leaders of the world, not the future academics of the world,” and that “We want to read about our student in Newsweek 20 years hence” (prompting the woman next to me to mutter, “Like the Unabomer”). The rest are selected “holistically,” based also on participation in athletics, the arts, charity, activism, travel, and, we inferred (Not in front of the children!), race, donations, and legacy status (since anything can be hidden behind the holistic fig leaf).
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Criminal Corporate Character

Criminal Corporate Character

Robert E. Wagner 

City University of New York (CUNY) Baruch College Zicklin School of Business Department of Law

August 15, 2014

65 Florida Law Review 1293 (2013) 


In the last few years, corporations have been accused of crimes ranging from environmental pollution on an unprecedented scale, to manslaughter, to election tampering, to large-scale antitrust violations. Many of these accused companies had previously committed similar acts or even the exact same offense. Unfortunately, the rules of evidence in the federal system and in virtually every state system prohibit the use of this information in a prosecution for such crimes. The reasons for this prohibition are based in historical anomalies, a mistaken understanding of corporate function, and a misplaced anthropomorphism of the corporation. This combination of errors has resulted in the questionable practice of excluding relevant evidence in cases where the justifications for exclusion are either nonexistent or weak and the benefits of admitting the evidence clearly prevail. This Article demonstrates the fallacies of this continued practice and argues in favor of change. Specifically, this Article shows why evidence concerning the character of a corporation should be allowed in criminal settings to prove that the corporation acted in conformity with that character on the date in question. Courts so far have not given much consideration to the question and have simply assumed that the character evidence rules apply to corporations. I base my objections to this practice on the goals of corporate criminal liability, the inherent weaknesses of the character evidence rules generally, and the way in which corporate structure exacerbates those weaknesses. Lawyers should argue that the character evidence rules do not apply to corporations, judges should decide accordingly, and legislatures should amend both the Federal Rules of Evidence and their state counterparts to make it unambiguously clear that corporations are not covered by the same principles regarding character as individuals.
Number of Pages in PDF File: 37
Keywords: corporations, evidence, white collar crime, character, corporate crime
JEL Classification: K22, K14
Accepted Paper Series 

Download This Paper

Date posted: August 15, 2014  

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Wednesday, September 03, 2014

New Jersey's eyewitness identification jury instructions

"The New Jersey instructiondid not improve juror's ability to discern quality; rather, jurors indiscriminatingly discounted “weak” and “strong” testimony in equal measure. "

"The Novel New Jersey Eyewitness Instruction Induces Skepticism But Not Sensitivity"
Arizona Legal Studies Discussion Paper No. 14-17

ATHAN P. PAPAILIOU, University of Arizona
DAVID V. YOKUM, University of Arizona - James E. Rogers College of Law, University of Arizona - College of Science

CHRISTOPHER T. ROBERTSON, University of Arizona - James E. Rogers College of Law, Harvard University - Edmond J. Safra Center for Ethics, Harvard University - Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics

In recent decades, social scientists have shown that the reliability of eyewitness identifications is much worse than laypersons tend to believe. The courts have only recently begun to react to this evidence, and New Jersey has, in particular, reformed its instructions to jurors, notifying them about the frailties of human memory, the potential for lineup administrators to nudge witnesses towards suspects that they police have already identified, and the advantages of certain lineup procedures including blinding of the administrator.

Our experiment tested the efficacy of New Jersey’s real-world intervention. In a 2×2 between-subjects design, mock jurors (N = 335) watched a 35-minute murder trial, wherein identification quality was either “weak” or “strong” and either the New Jersey or a “standard” jury instruction was delivered. Jurors were less than half as likely to convict when the New Jersey instruction was used (OR = 2.55; 95% CI = 1.37 – 4.89, p < .001). The New Jersey instruction, however, did not improve juror's ability to discern quality; rather, jurors indiscriminatingly discounted “weak” and “strong” testimony in equal measure. Trial judges should consider only giving the instruction for weak eyewitness evidence, to thereby increase the diagnosticity of trials.


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Tuesday, August 05, 2014

Kevin Clermont on the "conjunction paradox"

The so-called conjunction paradox has bedeviled modern theorizing about burdens of proof ever since L Jonathan Cohen introduced the paradox some decades ago. Kevin Clermont makes a powerful argument that multivalent logic rather than bivalent logic describes the task that factfinders encounter when they engage in fact-finding in legal proceedings and that, if that's the case, the conjunction paradox disappears. See Kevin Clermont Conjunction of Evidence and Multivalent Logic (July 24, 2014).

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Wednesday, July 30, 2014

The Central Park Jogger Case: A Dissenting View

MICHAEL F. ARMSTRONG, WSJ Persistent Myths in the Central Park Jogger Case (July 29, 2014)


"The defendants were convicted in 1990 for participating, with 30 or 35 other 14- to 16-year-olds, in a series of attacks in Central Park on the evening of April 19, 1989. The convictions were based largely on the defendants' own statements to the police. By far the most serious of the assaults was the horrific, bloody rape and near-murder of a 29-year-old female jogger, who survived, but without any memory of what had happened. The defendants served prison sentences from six to 13 years.

"Their convictions were vacated in 2002 when Matias Reyes, an imprisoned serial rapist and killer, volunteered that he had raped the jogger, a claim confirmed by DNA tests, and that he had done it alone, a claim resting solely on his credibility.

"In the lawsuit against the city that followed, police and prosecutors honored a court request not to discuss the case publicly. The defendants—now civil plaintiffs—launched a high-powered publicity campaign that has persuaded many that they were completely innocent, that they had been coerced and fed false stories by the police, and that they have been exonerated. None of these contentions is accurate."


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Sunday, July 27, 2014

"Don't Send Your Kid to the Ivy League"

This is a very interesting essay (but – perhaps this is a minor point – I have grave reservations about William Deresiewicz's suggestion to weight SAT scores to help offset the disadvantages that applicants from lower socioeconomic backgrounds suffer from).

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Sunday, July 13, 2014

On the recording of confessions

See Jennifer Mnookin's Op-Ed  on the recording of confessions.


Supporters of the practice present recordings as a solution for a host of problems, from police misconduct to false confessions. But while there are lots of good reasons to require them, they are hardly a panacea; in fact, the very same qualities that make them useful — their seeming vividness and objectivity — also risk making them misleading, and possibly even an inadvertent tool for injustice.
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Thursday, July 03, 2014

Period. Full Stop?

Jennifer Schuessler, If Only Thomas Jefferson Could Settle the Issue NYTimes (July 2, 2014)


Every Fourth of July, some Americans sit down to read the Declaration of Independence, reacquainting themselves with the nation’s founding charter exactly as it was signed by the Second Continental Congress in 1776.

Or almost exactly? A scholar is now saying that the official transcript of the document produced by the National Archives and Records Administration contains a significant error — smack in the middle of the sentence beginning “We hold these truths to be self-evident,” no less.

The error, according to Danielle Allen, a professor at the Institute for Advanced Study in Princeton, N.J., concerns a period that appears right after the phrase “life, liberty and the pursuit of happiness” in the transcript, but almost certainly not, she maintains, on the badly faded parchment original.

That errant spot of ink, she believes, makes a difference, contributing to what she calls a “routine but serious misunderstanding” of the document.

The period creates the impression that the list of self-evident truths ends with the right to “life, liberty and the pursuit of happiness,” she says. ...

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Tillers: It has often been said that in the 18th century and before English-speaking peoples were remarkably lackadaisical about punctuation. If this is true, whether or not the period was there in the original Declaration of Independence was less significant than it would be to a 21st Century mind – and 18th-century "sloppiness" about punctuation suggests that "close textual analysis" to ascertain the meaning or intent of 18th-century documents will go badly wrong if the text being studied is studied in isolation. Are you listening, original intent theorists?
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Friday, May 23, 2014

Larry Laudan on seriatim versus v. contemporaneous eyewitness identifications

Recent research has revealed that sequential lineup eyewitness identifications are less likely to falsely identify an innocent suspect as the culprit than are traditional simultaneous lineups. This has led numerous reformers to advocate (and many jurisdictions to accept) that the latter procedure should be replaced by the former. Clark has rightly pointed out that mis-identification data has another twist that almost everyone else has ignored; to wit, sequential lineups are much more likely to lead to false negatives than are simultaneous lineups. 

If, as we have every reason to believe, both types of lineups are more likely to include a guilty party than to include only innocent suspects, there are powerful reasons to say, as Clark does, that sequential lineups are apt to have higher aggregate error rates than simultaneous lineups do. That should give pause to the growing movement to replace the latter by the former.

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