Science in Legal Education

David L. Faigman, Legal Alchemy: The Use and Misuse of Science in the Law xi-xii (2nd Paperback Printing, 1999, 2000):

... The average lawyer is not merely ignorant of science, he or she has an affirmative aversion to it. ...

...[L]aw students feel no sense of urgency in learning about science. It is not tested on state bar exams. ... From [the students'] vantage point, science is not a necessary part of legal education.

Most of the fault for this misperception lies with the law schools. ... Law students have no sense of urgency about science because their professors do not. ...

...

Without question, law schools will eventually respond to the overwhelming presence of science in the legal process. They have no choice. For now, however, an entire generation of lawyers is being trained without the critical or practical skills to understand what is and what will continue to be an essential part of the lawyer's job description.

Christmas Eve, 2004

There was a time in my life when 1984 lay far in the future. It was George Orwell's 1984. But 1984 came and went. And now it is 2004. And things aren't half-bad.

Merry Chistmas, Season's Greetings, or -- Whatever!

Have a very good new year, y'all.

And remember: always keep the evidence before you. That's the key to the truth.

Facial Profiling

I recently submitted a paper that deals in part with "facial profiling" -- or so I said in my paper.

Now there's a novel law journal topic for you!

Evidentiary Burdens

It is an error to think that an individual can escape being subjected to inferences that depend on observations and judgments about the behavior and attributes of other human beings. Not in a pig's eye! No one can altogether avoid being saddled with signs, signposts, and evidentiary hints that the operations of the world and other people have created.

A Great Leap Forward

"Google, the operator of the world's most popular Internet search service, announced today that it had entered into agreements with some of the nation's leading research libraries and Oxford University to begin converting their holdings into digital files that would be freely searchable over the Web." John Markoff & Edward Wyatt, Google Is Adding Major Libraries to Its Database, New York Times (online), Dec. 14, 2004.

I propose that Google be designated an eleemosynary institution and that Congress mandate that donations to Google be made tax-deductible.

This is truly a great leap forward. Think of all the people in remote corners of the world -- in Columbus, Ohio, for example -- who will be able to access Stanford University's library materials -- and Stanford's reputation, by reason of its generosity, will soon outpace Harvard's. (Harvard is making only 40,000 volumes available online -- "initially." [Harvard, I suppose, is hedging its bets.])

A Modest Proposal for the Marketplace of Grades

A law school colleague sent me a copy of the memorandum found below. I have concluded that my friend wanted me to make the memorandum public.

***

To: Freerise Faculty
From: Prof. Carmichael Carmatcheon
Re: ASC Proposal to Increase Mandatory Median GPA
Date: Sunday, December 5, 2004

I endorse the proposal of the Academic Standards Committee [ASC] to increase the mandatory median GPA at Freerise Law School in order to (i) enhance the employment prospects of Freerise students and (ii) put Freerise students on an even footing with their peers at Pennsylvania, Villanova, and Temple. However, I believe the Committee's proposal is too modest. My recommendations and reasoning are set forth below.

1. As the Committee itself observed, the purpose of the Freerise grading system is to enhance the employment prospects of Freerise students. But if this is the purpose of grades, it follows that all Freerise students should graduate with all "A"s. I so move. (The option of requiring that only "A+"s be awarded is discussed and rejected in par. 4 below.)

2. It is true that the credentials of Freerise students do not quite match of the credentials of students at Penn and Villanova. But this is no reason why the grades of Freerise students should be lower than the grades of students at Penn or Villanova. Freerise properly aspires to compete with Penn and Villanova. Indeed, there should be no limit on Freerise's relentless pursuit of excellence. The median GPA at Freerise should match the highest median GPA at any law school in the country. The median GPA at Harvard is now approximately 3.5. The effective median GPA at Yale or Stanford is probably even higher. If the first motion fails (see par. 1 above), I move that the mandatory median GPA for all first year Freerise students be 3.75; for all second year Freerise students, 3.85; and for all third year students, graduating students, and graduate students, 3.95.

3. I move that Freerise publicly censure academic institutions that are attempting to reverse "grade inflation." So-called grade inflation is a good thing. All law students are above average.

4. I move that all possible steps be taken to hinder attempts by employers to estimate the class rank of Freerise students. It is obvious that if this is not done, any increase in the median GPA at Freerise will have little or no effect.

The best way to enhance the employment prospects of Freerise students while preventing employers from calculating or estimating the class rank of Freerise students is to require that all Freerise students be awarded the grade of "A+" in all courses. However, this step may be premature; it risks making Freerise a laughing stock. Hence, I renew the more modest and reasonable motion that all students be awarded at least "A" in all courses. See par. 1 above. (We can count on the discretion and good sense of the faculty not to subvert the purpose of this rule by awarding an excessive number of "A+"s. However, if experience proves otherwise, the question of whether the mandatory minimum grade of "A" is too low can be revisited at a later time, perhaps as early as next semester.)

5. I move that the grades of "F" and "D" be abolished. Such grades demean the students who receive them. (These grades are in any event almost never given at Freerise.)

6. If the preceding motion (see par. 5 above) fails, I move that any faculty member who awards an "F" or "D" be required to submit a 75 page memo (10 point type, single-spaced) justifying such a grade. If any such justification is deemed inadequate by the FSBA [Freerise Student Bar Association], the faculty member awarding such a grade shall forfeit $10,000 pay per year for three (3) years or, in special circumstances, $20,000 p.a. for five (5) years.

Heavy with Footnotes

Arnold S. Jacobs "holds the world's record for the law review article with the most footnotes (4,824 footnotes, to be exact)." See http://www.proskauer.com/lawyers_at_proskauer/atty_data/0225.

With due all respect to Mr. Jacobs, I wish to note that judgments about scholarly fame -- or disgrace -- depend in part on how one measures such things. For example, one of my footnotes runs for 31 pages (in ten or eight point single-spaced type). See IA Wigmore on Evidence Section 62, at p. 1261-1295 n. 11 (Peter Tillers rev., 1983) (most of this footnote is my doing rather than Wigmore's). This is not an isolated example. See, e.g., I Wigmore on Evidence Section 5 n. 11 (Tillers rev., 1983)(29 pages; my doing entirely). Indeed, it might fairly be said that large portions of my revision of the first volume of Wigmore's Treatise consist of footnotes with text added.

N.B. A word of advice for aspiring legal scholars: If you wish to hide your light under a bushel, there is no better example to emulate than mine -- i.e., you should revise a major treatise (and, ideally, put your own work and thoughts in footnotes in very small print). Doing this will practically guarantee three things:

(i) people will regularly give the original author of the treatise that you have laboriously revised, credit for your insights and your work (see, e.g., Castillo v. E.I. Du Pont de Nemours & Co., 854 So. 2d 1264, 1280, at 1282 (Fla., 2003)(Pariente, J., concurring) (quoting "Wigmore" in Section 41 of the 1983 revision);

(ii) as you approach senescence (and frequently not before), some of the interesting things you wrote will (finally) be discovered -- and you may, perhaps, take some satisfaction in this even though such belated discoveries come too late to boost your career prospects or your income; and

(iii) belated public recognition (here and there) of the things you said (lo! those many years ago in those footnotes) will remind you that some thoughts touted as original by other legal scholars in your field sometimes 'tain't original 'tall (but this sort of reminder is a pleasure available to authors of law journal articles and treatises as well as to revisers of treatises).

On a serious note: It is simply a fact that prior important scholarship often goes unacknowledged. This may be lamentable. But, given the sheer volume of U.S. legal scholarship (and pertinent scholarship by people in other fields), such failures to acknowledge prior relevant work are practically inevitable. One can only hope that in time later laborers in the scholarly vineyards will detect and correct such oversights. But I worry a bit about the adequacy of this sort of corrective mechanism in some cases: I worry that legal scholars are less prone than other kinds of scholars to correct the historical record in scholarship because perhaps it is true that in the legal academy institutional affiliation counts more than in many other sectors of academia and perhaps diligent legal scholars are therefore less willing to publicly take note of the errors committed by some of their colleagues who occupy positions in high or higher places. But perhaps this problem of the corrosive power of status is no more severe in the law school world than it is in most other parts of the academy.

Causes, Associations & Signs

Theories about the workings of inference from evidence perhaps fall into three groups:

1. probabilistic causality
2. associationism
3. semiotics

The first approach holds that evidence works as evidence only if there is a causal connection between evidence and hypothesis.

The second approach holds that evidence works as evidence when experience shows a regular connection (to some degree or frequency) between evidence and hypothesis.

The third approach holds that matters which work as evidence function as signs of matters (hypotheses) beyond themselves.

The third approach, to be respectable, must be stripped of the turgid nonsense in which "semiotics" has been wrapped by many literary theorists.

Much of the theorizing about evidence in the American legal academy buys into the notion that evidence works as evidence only because of experienced or observed regularities in the occurrence of distinct events or phenomena -- that evidence works as evidence only because of the relative frequencies of distinct events or phenomena. But the law in practice is generally indifferent to the relative plausibility of these three seemingly-divergent accounts of evidence, inference, relevance, and probative value; viz., the law in practice accepts much evidence whose causal connection to hypotheses of interest is not demonstrated or demonstrable; it accepts some evidence whose probative force rests on a causal account rather than on observed association or for any other apparent reason; and judges administering the law of evidence accept much evidence as worthy of consideration even when neither a causal account nor observed regularities seem to provide any apparent reason for doing so.

It is good that the law of evidence does accept any one of these three theories as orthodox and authoritative dogma. There are large grains of truth in all three accounts.

The real question, presently unanswerable, is which account best accommodates all three types of sources of human empirical knowledge.

I suspect that the best foundation for a comprehensive account of evidence and inference is laid by semiotic theory, the approach that emphasizes that evidence is an event or state that indicates or suggests a matter apart from, in addition to, or beyond itself.

The view of evidence as essentially sign, or hint, is most readily compatible with the hypothesis that both the human brain (along with its appurtenances) and the cosmos happen to be wired in such a way that a human actor has the ability to see a glimmer of a new truth based upon one encounter with some event or state of affairs -- based, in other words, on an encounter with a unique event, a singularity. And only semiotic theory explains how evidence manages to prod the human imagination to attack complex problems in quite fruitful ways, in situations that are so complex, that have so many ingredients, that random conceptual walks even over aeons of time could not be expected to yield plausible conjectures.

I will explain the above points in much more detail later -- in my promised book. Stay tuned!

Probability, the Law of Evidence, and History

Legal scholars of the law of evidence need not have inferiority complexes:

The law of evidence is the central thread in the history of probability. (James Franklin, The Science of Conjecture: Evidence and Probability before Pascal 1 (Johns Hopkins University Press, 2001)).

But, of course, legal scholars are not renowned for their modesty, yes?

The Mathematics (or Logic) of Evidence in Law: What Is It For?

Mathematical analyses of evidence take a variety of forms and can serve a variety of purposes. Hence, one cannot identify just a single possible valid legal application of mathematical analyses of evidence. But if one wishes to gain some insight into factual, or evidential, inference (and to devise procedures to facilitate inference from evidence) in and for legal proceedings, of what use (if any) is mathematics?

Some people seem to think that legal researchers who fiddle with matters such as Bayes' Theorem are attempting to construct algorithms or some such things that describe how factual inference in trials or other legal proceedings works. It is possible that this is the aim of some legal researchers, but this is generally not what I am after when I try my hand at mathematical analysis of evidence: when I fiddle with Bayes' Theorem, fuzzy logic, or whatnot, I am not attempting to depict how the institution or practice of factual proof in legal proceedings such as trials actually works. I am trying to understand inference, but this is not the same thing as trying to describe how the legal system manages evidential inference.

What might a mathematical (or logical) theory of evidence in or for legal proceedings do? If one's aim in studying the mathematics of evidence is not to describe the legal management of evidence in law, why study the mathematics of evidence (and inference)?

I have asked myself this question before. I now ask the question again because it may be particularly important if one suspects that fuzzy logic says something interesting and important about factual inference in law. A fair question is, "What possible good would a fuzzy explanation of factual proof in law do?"

One answer (one that I have sometimes also given) is that a mathematical account of inference is a valuable heuristic procedure: it is a procedure that reveals to us the implications of our own (logical?) thinking.

This answer has some force, at least sometimes. It has particular force when the heuristic procedure conforms to our untutored intuitions about the workings of sound inference: the answer -- it's all about heuristics, stupid! -- has force, for example, if we already believe that our good thinking takes a Bayesian form and a mathematical account -- in this instance, a Bayesian account -- spells out for us clearly what we roughly but imperfectly already think. This kind of use of mathematics takes us, so to speak, where we already want to go. But this heuristic justification for mathematical analysis of evidence and inference sometimes runs into trouble ...

First, there are those pesky people who refuse to concede that the basic structure of their sound thinking is Bayesian. Well, let's put those silly people to one side for now. But there are other problems ...

Second, sometimes the mathematical calculations seem to run on, so to speak, by themselves -- to such an extent that even a person who thinks that the right logical procedure is being used might feel compelled to say, "I can't honestly say that those calculations represent what I think. I think the conclusion is correct -- I have to say this because I think the method of argument used here was correct and the premises, I think, were correct -- but I can't honestly say that the calculations here portray what I already, if only faintly, thought."

The difficulty with fuzzy logic may be related to this second difficulty: the procedure does not merely elucidate what is already in someone's head. Even if one can do the calculations and personally does the calculations, the procedures and calculations do not seem to be the calculator's. So in what sense (if any) is the mathematical (or logical) procedure "heuristic"?

The law is reluctant to allow legal reasoners -- e.g., jurors, judges -- to surrender their reasoning processes to other agents or mechanisms. The law permits this to happen sometimes, but not often. This is probably one reason why the law is particularly uneasy about analytical procedures that outrun the intuitions of its authorized reasoners.

But there may be a deeper reason why the law is uneasy about -- or uninterested in -- fuzzy logic. The law may take the view that (i) certain things -- e.g., ancillary generalizations, evidential hypotheses, warrants -- must be part of any good reasoning from evidence to possible facts and (ii) fuzzy logic does not make a place, at least not in any obvious way, for such essential features of evidential inference.

"So what?," a logician might say. You are confusing logic and psycho-logic, the logician might say. For example, the logician might add, contentiously, "Just because the law has the deluded notion that ancillary generalizations -- those things you call "evidential hypotheses" -- are necessary to sound argument and inference doesn't make it so. The job of logic is not to make the human psyche comfortable.The inestimable job of logic is to devise procedures that lead to correct answers!"

It has often been noted that people have a tendency to believe the things that please them and to disbelieve matters that make them unhappy. Is it so with law as well? Does the law like to think that its logic is a good logic because thinking so makes the law and lawyers comfortable with what they do and the (deluded) way they think? Is the apparent demand of law, lawyers, and (some) legal theorists that outsiders give lawyers a transparent logic attributable to this?

Another possible answer, of course, is that the intuitions of legal folk have been right all along and that good logic must have the characteristics that legal people have thought all along that good argument must have, and logicians only now (from a longer perspective) are beginning to appreciate this. Hence, on this view, the development of theories of argumentation, the elaboration of Toulmin's theory of argument and logic, and the like are welcome and long overdue developments and are the direction that future studies of the mathematics and logic of evidence in law should take.

But this kind of justification for mathematical or logical analysis of evidence and inference seems to leave fuzzy logic out in the cold. I am not yet prepared to do that. Question: Is there not a place for a mathematical account of evidence and inference that, even though not transparent (even mildly so) to most legal professionals, sheds light on some key features of legal argument, evidential inference, and human knowledge in general? For example, even if the mathematics of fuzzy logic escapes most of us -- and will continue to escape most of us -- is it possible that it is worth studying (but why?) because it grapples with a central(?) feature of at least some legal problems -- matters such as "partial existence"? And is it possible that even if fuzzy logic and its offshoots could and would never be used by professional protagonists in courtrooms, it might nevertheless say something very important about, e.g., factual inference and the way that forensic proof ought to be conducted or managed.(We have our theories about the behavior of plants and we think that some of those theories are correct even though most of us think that the plants themselves do not have in their heads -- do plants have heads? -- the theories that we think describe how they grow etc. Perhaps legal actors such as trial lawyers are sometimes the equivalent of headless vegetables.)

Probability and Precision; Forms of Probability and Uncertainty

Probabilities are not necessarily precise. For example, we can say, "The probability of rain is between one-quarter and one-third." See generally International Society for Imprecise Probability Theory and Applications

Probabilities do not necessarily designate variability or indeterminacy in nature. Probabilities may instead represent ignorance. The former type of uncertainty may be called aleatory. (It goes by other names -- for example, chance.) The latter type of probability -- the one that represents degrees and forms of ignorance -- is often called epistemic probability or uncertainty. (This type of probability is also called different things. For example, it is sometimes called credal probability.) See Brian Weatherson, Keynes, Uncertainty and Interest Rates

The source or cause of uncertainty is important. It is important to know if our uncertainty about an event or hypothesis is attributable to the way the world works, to the chance elements in the world in which we live; or whether our uncertainty is attributable to the lack of information or our uncertainty about methods of assessing the information or evidence we have.

I have often fumbled (largely by remaining silent) in explaining the difference between my interest and the focus of people who are mainly interested in matters such as random variables and causality. The difference is that the people who are interested in the latter are generally interested in patterns of random or chance behavior in nature whereas I am more interested in incomplete evidence and inconclusive argument.

The confusion between aleatory and epistemic probability or uncertainty is perhaps partly attributable to the fact that the aleatory properties of nature often shed light on the appropriate treatment of incomplete information and on appropriate argument from and about evidence and information. In addition, it is very often the case that we have uncertainty compounded, that (some amount of) chance is wrapped in (some degree of) ignorance.

Fuzzy (Legal) Thinking -- or Precise Thinking about Fuzzy (Legal) Matters

Google "fuzzy sets" and you get 129,000 hits.

Google "fuzzy logic" and you get 600,000 hits.

Hey, jurisprudes and legal theorists! Do you think there may be a there there?

Why the general (albeit not universal) silence about fuzzy logic in the legal academy?

Don't lawyers believe in the importance of precise thinking about fuzzy and rough concepts? So why aren't they attracted (generally speaking) to a serious attempt to talk precisely about ambiguity, fuzziness, roughness, and such things? Is it because they see a basic flaw in the theoretical foundations of fuzzy logic? (This I truly doubt! They haven't gotten close enough to the theory to even begin to think about foundational issues.) Is it just because they can't get an intuitive handle on fuzzy sets, fuzzy probabilities, fuzzy measures of uncertainty, and all that? (Perhaps.) Is it because they think probability theory does a better job of describing the properties of imprecise language and imprecise concepts? (This I also doubt.)

Zadeh's more advanced work edges toward a [nominalist(?); semantic(?)] neo-Platonic [or, perhaps better described, "neo-Aristotelian"] notion of partial existence. Do legal theorists shy away from Zadeh because they cannot get a handle on the notion of a thing having some of the properties of some concept to some degree? I doubt this too!

Whether legitimately or not, legal professionals think this way all the time. What did American lawyers do when confronted with institutions that are not quite banks but are very much like banks? They called such hybrid institutions "non-bank banks." Talk about putting aside the principle of non-contradiction! Talk about partiality of existence! Talk about penumbral concepts!

Oops! This last item snuck in here via con law -- Griswold, J. Douglas, privacy, and all that. But there is an affinity here, no?

To get back to the heart of the matter: What's the story here? Fear of fuzziness, is it?

The Japanese will probably have to lead the way -- again.

Local News: Plaintiff Fraud

Headline in Sunday Star-Ledger p. 31 (County News, October 31, 2004):

State fraud files suit against carpeting chain

The Importance(?) of Understanding the Mechanics and Logic of Perception

Law journals devote quite a bit of attention to studies of the reliability and unreliability of eyewitness identification. But could the legal process produce better assessments of eyewitness reports if trial lawyers and judges knew more about the technology, or physiology, of perception and the logic that informs such perception?

Caveat: It does not necessarily follow that human knowledge of perception is presently good enough to be used in the courtroom -- and, even if such knowledge is useful "in principle" for forensic purposes, it does not necessarily follow that lawyers, judges, and jurors have the training or intelligence to make effective use of contemporary knowledge of human perception.

Counter-caveat: It is not prudent to underestimate the intellectual prowess of jurors; and some lawyers and judges have a pleasing degree of scientific literacy.

The question I pose here is not trivial -- for it is an iteration of the question of the extent to which human beings understand their world without understanding it, viz., of the extent to which human beings are capable of drawing inferences about the world without understanding the mechanics that make it work as does. Conversely stated, the question posed here implicates the question whether knowledge of causes improves inference even if it is true that some inference is possible without (much) knowledge of causes.

Counterpoint: The hypothesis that perception (truly) is (pretty good) inference suggests that human beings -- by virtue of their heredity, physiology, etc. -- know much more than they can put in words.

But the question remains: Can explicit knowledge of causes improve inference?

The answer to this question would seem to have to be "yes": It is very hard to deny that some explicitly-formulated knowledge of nature's mechanics -- e.g., gravity -- enables human beings to make better inferences and predictions (predictions are merely a special form of inference) in some situations.

A final word of caution: Even a worm knows how to burrow into the soil. (Indeed, a worm probably knows how to do that better than you do.) But (as far as I know) worms have not produced treatises on soil mechanics.

Perception as Inference (again)

E.T. Jaynes, PROBABILITY OF THEORY: THE LOGIC OF SCIENCE Section 5.4 at 133 (2003):

Seeing is not a direct apprehension of reality, as we often like to pretend. Quite the contrary: seeing is inference from incomplete information, no different in nature from the inference that we are studying here. The information that reaches us through our eyes is grossly inadequate to determine what is "really there" before us.

N.B. The discussion here does not suggest that Jaynes was intimately familiar with recent research on the logic of perception. But he was prescient in suggesting that researchers should investigate whether Bayesian logic informs perception.

Support for the Proposition that Values Depend on (Perceptions of) Facts

Some years ago I argued that there is evidence in law, that the values embedded in law (even in legislation) are in part a function of beliefs about factual propositions, including factual inferences that rest on evidence. See P. Tillers, The Value of Evidence in Law, 39 Northern Ireland Law Quarterly 167 (1988). Perhaps the following statement by Jaynes (amusing footnote omitted) offers some support for my view:

We consider it an important aspect of "objectivity" in inference -- almost a principle of morality -- that we should not allow our opinions to be swayed by our desires; what we believe should be independent of what we want. But the converse need not be true; on introspection, we would probably agree that what we want depends very much on what we know, and we do not feel guilty of any inconsistency or irrationality on that account.

E.T. Jaynes, PROBABILITY OF THEORY: THE LOGIC OF SCIENCE Section 13.12.5 at 424 (2003).

Inference Is Better-Grounded than Choice; and Analysis of Evidence Is More Secure than Economic Analysis -- Is It So?

E.T. Haynes, PROBABILITY OF THEORY: THE LOGIC OF SCIENCE Section 13.12.4 at 424 (2003):

[I]t now appears that from a fundamental standpoint loss functions are less firmly grounded than are prior probabilities. This is just the opposite of the view that propelled the Wald-inspired development of decision theory in the 1950s, when priors [prior probabilities] were regarded as vague and ill-defined, but nobody seemed to notice that loss functions are far more so. For reasons we cannot explain, loss functions appeared to workers at that time to be "real" and definite, although no principles for determining them were ever given, beyond the truism that any function with a continuous derivative appears linear if we examine a sufficiently small piece of it.

In the meantime, there have been several advances in the technique for assigning priors by logical analysis of prior information. But, to the best of our knowledge, we have as yet no formal principles at all for assigning numerical values to loss functions; not even when the criterion is purely economic, because the utility function of money remains ill-defined.

Great Law Schools & Great Libraries

My law school does not do badly in the law school ratings game. But the law school rating services play a poor game because they generally ignore one crucial measure of the greatness of a law school: the quality of a law school's library.

We can have endless debates about whether a law school either is ought to be essentially an academic institution or a professional school, or whether the academic-professional divide is a false one. But -- regardless position we take on such issues -- all sensible law teachers and legal practitioners should agree on one point: much of law centers on TEXT. Hence, a great law school, regardless of how it defines its mission, must be a great repository of textual material (cases, treatises, journals, the lot).

If a law school is to grant text its proper role in the life of a law school, the law library must be a sanctuary, and the library ought to be an inviting and alluring sanctuary. For example, the seats should be comfortable and the physical environment should be aesthetically pleasing and warm. The library must be so arranged that its "customers" want to spend time in it.

A great law school must have a great library. Does US News & World Report know this? Does Brian Leiter know this?

Apparently not.

N.B. My law school fares worse -- not better -- if "library quality" is a measure of the quality of a law school. So this post does not serve a narrowly-conceived personal interest.

A Stellar Conjunction -- or a (non)Lunatic One

Will the Red Sox win the World Series just at the moment that the moon goes blank? If so, are the Red Sox responsible? Or is the moon responsible? Which way does the chain of causation run? Is non-Luna pulling the Red Sox or are the Red Sox eclipsing the moon? I need a Latin phrase here. ("Post hoc, propter hoc"?)

European Morality

"Hussein's government killed an estimated 300,000 people, most of them Shi'ite Muslims or ethnic Kurds, rights groups say. The Iraqi government has identified about 40 mass graves, but until now none has been scientifically exhumed -- in part because European forensic teams won't collect evidence that might be used to win death penalty convictions." Thanassis Cambanis, "In Iraq grave, evidence of regime's horrors," Boston Globe (online) (October 13, 2004).

What Is "What Is Evidence?"?

Some scholarly discussions of the law of evidence begin with a question such as "What is evidence?" or "What is proof?" See, e.g., I Wigmore on Evidence Section 1 (P. Tillers rev., 1983).

Questions such as these have a mind-numbing quality; they have a tendency to paralyze thought.

Why? Is there a better way to consider the nature of matters such as "evidence" and "proof"?

Perhaps questions of the form "What is ... [some thing or phenomenon in law]?" induce mental or intellectual paralysis in part because such questions incline the observer to launch a search for attributes which, when properly assembled and arranged, could constitute -- the observer may hope -- a correct or adequate definition of a phenomenon such as "evidence" or "proof." If a non-solipsistic observer conducts a non-circular search for the attributes of a (complex[!]) social(?!) phenomenon such as "legal evidence," (s)he is likely to generate a very long list of attributes. Such a list of features may end up being a mere aggregation of attributes that resembles a serving of thick porridge unaccompanied by any explanation for the identity or quantity of the ingredients found therein.

I do not wish to overstate my objection to starting discussion of the law of evidence with a definition: it is unlikely that conceptual mush is an inevitable effect of launching an investigation with a request or search for a definition. I only wish to suggest that acquiring an understanding of the nature of a legal phenomenon or practice such as the law of evidence is not best promoted by formulating and then pondering assertions such as "legal proof is an epistemic process," "judicial proof is a legal process" and "judicial proof is a symbolic process," and that the search for an understanding of a matter such as legal proof is better promoted by formulating topics of discussion in the following fashion: "scarcity in proof," "time in proof," "evidence in legal proof," "argument in legal proof," and so on.

A restatement of the general question under discussion in this post:

Is it fair -- or is it instructive -- to begin a discussion of the law of evidence or proof with a definition or definitions of matters such as "evidence" or "proof"?

A tentative answer to the (reformulated) general question:

A question such as "What is [legal] evidence?" is in part an empirical question: unless one is a Platonist -- or unless one denies the possibility of social variation --, a good answer to such a question always requires in part an account of what is conventionally considered to be a thing such as evidence.

True, a definition of phenomenon such as "evidence" or "proof" should not be a mere catalogue of the matters that are considered "evidence" or "proof": a good definition crystallizes a wide diversity of phenomena; a good definition resembles a rule that generates or explains (perhaps only by and large) a wide and diverse collection of phenomena that might be considered instances of a matter such as "legal evidence." But it does not follow that one ought to begin a scholarly discussion of a legal field such as the law of evidence with a rule or formula that (putatively) specifies the essential or important attributes of a matter such as "evidence" or "proof." It is probably better instead to proceed quasi-empirically and quasi-inductively: judgments about the important or "essential" attributes of matters such as "legal evidence" should emerge out of ruminations based on our observations of the real-world workings of matters such as "the law of evidence" or "proof in legal proceedings." (Such ruminations may, but need not, devolve into bare quasi-statistical statements of the relative frequency of various attributes in a process such as "proof in legal proceedings.")

N.B. Is it not the case that for some purposes -- including the present one -- a good "definition" of a social phenomenon and practice such as "judicial proof" must include an account of the motivation(s) for the phenomenon or practice? (Construe "motivation(s)" broadly: make it encompass "function(s).")

Postscript #1: Definitions -- properly and broadly understood -- are important. One needs them to understand the spirit of a social phenomenon or practice that, because of its variety and diversity, may otherwise seem bereft of rhyme or reason.

Postscript #2:The ruminations in this post are intended only for (actual or aspiring) authors of legal texts. (These ruminations are, in any event, unlikely to interest anyone else.)

Sir Richard on Sir Arthur

Judge Richard Posner finds little to admire in Sherlock Holmes' methods. See R. Posner, "CSI: Baker Street," New Republic (October 11, 2004 [which is, BTW, surely a fictitious publication date {since I am reasonably sure that today is October 4, 2004, and in my limited human experience the clock and the calendar do not run backwards, but who am I to say they could not?} -- explain this, ye besotted publishers of journals a/k/a ye purveyors of 21st century versions of Soviet-style histories]).

Judge Posner thinks some or many of Holmes' deductions are little more than a shot in the dark -- and are therefore unscientific.

Verily, verily, I say unto ye ("thee"?; i.e., "to all of you out there"): science requires shots in the dark, shots that are merely(!) prompted, or suggested, by evidence.

Verily, verily, I say unto thee: science depends on careful deductions but it also depends on abductions a/k/a imaginative hypotheses suggested but not dictated by evidence or logic.

Verily, verily I say unto thee -- or ye, or y'all: imaginative reasoning is not an oxymoron -- and, besides, where would we be without Einstein's imagination, an imagination par excellence but an imagination that could work its wiles only because of Einstein's meticulous attention to details and matters such as clocks and their synchronization in distant places [for train schedules and other such purposes]? {You surely don't expect me to answer this last question, do you? The best answer I can give you now: not quite where we are now.}

Take Two Samples ...

Take two samples of handwriting, practically any two samples. Make sure the two samples are made by different people. Question: If you look close enough and long enough, how probable is it that you will find the same extraordinarily rare combination of characteristics in the two samples?

Many years ago I followed exactly this procedure. I had a group of students write down the same phrase twice on two different pieces of paper and then throw their handwriting samples into a hat. I then picked two samples that I knew -- or believed -- had been written by two different people. (I think I asked the students to write their names on the back of each piece of paper with their handwriting samples on the front and I had the students do this before they knew what I was up to.) As I said just moments ago, I picked, more or less at random, two handwriting samples that had been made by different people, by different students. I then scrutinized these two handwriting samples for a while. After doing so, I found about a dozen handwriting quirks that occurred in both samples. I pointed out these similarities to the class. I then did some product rule calculations and I asked the class to do the same with the probability values (and dependencies) that they thought were appropriate. I then asked the students in the class whether they thought the two samples were written by the same person. Everyone (in a class of ca. 25) answered in the affirmative. (I had somehow managed to instruct the actual authors of the two samples to keep their mouths shut.) When I told the students that in fact two different students had produced the handwriting samples, about five students found my confession to be both astonishing and unbelievable; and despite my confession of trickery, they argued that the two sample had been written by the same person.

As I recall, statements by the two students who (I think) actually made the two samples overcame the objections of the dissenting students.

I believe I successfully tricked the class. But I can't really say that the dissenters were completely befuddled or irrational, can I?

Dreyfus redux?

My pedagogical trick would not have worked if one writer had written English and the other, Arabic. It would not have worked if one author had been 25 years old and the other, three years old. Therefore?

Improbable DNA

Jennifer Mnookin, "Fingerprint Evidence in an Age of DNA Profiling," 67 Brooklyn L. Rev. 13, 49-50 (2001)(footnotes omitted):

[I]n a 1999 case in England ... Raymond Easton was charged with burglary after authorities made a "cold hit" with his DNA in a DNA database. His DNA matched the crime scene DNA at six loci. Because there was only a one in thirty-seven million chance that a randomly selected person's DNA would match, Raymond Easton was charged with burgling a house 200 miles from where he lived. However, after Easton, who had advanced Parkinson's disease and was unable even to drive a car, offered an alibi for the night in question, the DNA was eventually tested at four more loci. This more sophisticated test showed there was no DNA match after all. All charges were dropped.

Investigating Multiple SIDs Deaths

Question for the day:

If the number of multiple SIDS ("sudden infant death syndrome") deaths within single families within some large population is exactly what one would expect if chance alone governs the distribution of SIDS, should government authorities investigate for possible wrongdoing if the only thing they know is that there were, apparently, three SIDS deaths within a single family?

Further questions:

(i) Are three such deaths within a single family ever sufficient for a criminal conviction of a person who alone had access to the children when they died?

(ii) If not, would four deaths suffice?

(iii) If not, would five or ... n deaths ever suffice?

Dice, Probability, and Law

There is more to probability than dice and games of chance. Nonetheless, I think it is probably(!?) useful to use dice to introduce law students to some basic points about probability theory. I like to use a set of large "fair" dice. (Later I will perhaps post a [true!] story about my unsuccessful attempt to buy magnetized dice.) This Monday I will also try to use the nifty applet at the following web site to make several points: Introduction to Probability Models.

Magnetized dice would be a nice way to illustrate dependent probabilities.

Repeated rolls of dice (with, e.g., the applet mentioned above) can be used, I think, to show, by analogy, some of the problems that can arise with the use of statistics about the relative (in)frequency of SIDS to prove criminal guilt or, even, with the use of such statistics to justify "just" coercive investigation by the state.

A Timely Closing Argument

In a baby murder trial in which the baby finally died of suffocation, the prosecutor -- Michael D'Andrea -- "asked the jury to look at the clock while one minute ticked by -- the amount of time it would have taken [the baby] to suffocate. As the time elapsed, D'Andrea stared directly into [defendant's] face from across the defense table." Michaelangelo Conte, "Jury takes just three hours to convict mother's boyfriend in baby's death," The Jersey Journal pp. A1 & A10 (September 22, 2004).

I saw some fancy lawyering when I practiced law in Texas (many years ago). But New Jersey lawyers, it seems, have their own bags of tricks.

Some Gentle Readers out there can surely relate stories about similar forensic tricks they have seen; I doubt that Mr. D'Andrea is the first trial lawyer to ask a jury to literally watch a clock for 60 seconds or so. In civil litigation the best-known parallel, now generally frowned upon, is for plaintiff's counsel in a personal injury case to ask a jury to imagine how much suffering plaintiff must endure each second of his or her life, put a dollar value on each second's suffering, and then tote up all of those dollars and return a handsome verdict for plaintiff.

How Should We Think about a Person's Possible Recklessness?

What kind of a fact is "He was reckless"?

"Recklessness" is a concept.

But "He was reckless" is not merely a reformulation of the notion "recklessness."

"He was reckless" is an assertion that there is (or was) an instance of "recklessness."

We want grounds for thinking or asserting, "He was reckless."

We do need the concept, or notion, "recklessness."

But we also need something more.

What more?

The concept "recklessness" can be decomposed. In law it usually is decomposed.

Let's do so.

One legal definition of recklessness might run this way: "A person acts recklessly if he or she consciously disregards a substantial and unjustifiable risk." Cf. New York Penal Law § 120.25."A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person." Add the gloss: A person consciously disregards a risk only if he is consciously aware of the risk. Accord, e.g., Knapik v. Ashcroft, 2004 U.S. App. LEXIS 19445 (2nd Cir., Sept. 17, 2004) (noting that a federal agency concluded that a legal definition requiring conscious disregard of risk "requires an actual awareness of the risk created by the criminal violator's action"). So: assume that one of the ingredients, or elements, of "recklessness" is "conscious awareness"; i.e., one can be called "reckless" only if it can fairly be said that one is "consciously aware" of a risk of some kind.

When does one have an instance of "conscious awareness"?

One cannot indefinitely decompose a notion such as "recklessness."

But we (e.g., a jury) still must decide when to call a state of mind "conscious awareness" and when not to do so. We want to have the jury have grounds for doing so or not doing so.

Aha, evidence surely comes into play now!

"Awareness" -- or, in any event, some state of mind or consciousness -- may be reported by some person -- or there may be a report of a state of mind that suggests awareness: e.g., "It occurred to me that there was a risk of death"; "I heard him mutter, almost under his breath, that he realized there was a serious risk of serious harm."

We might take such a report as a signal.

We might even try to take the thing reported -- the state of mind reported by the reporter -- as a signal.

But if the report is taken as evidence rather than as an exemplar of a matter such as "awareness," ... hmmm ... then what?

Let's use this terminology:

m-1 = state of mind
m-1* = report of a state of mind
A = conscious awareness

If we are to think frequentistically and along Bayesian lines, and if we are therefore to think p(m|A) over p(m|~A), i.e., h/f; we must somehow, in some way, separate m and A: we cannot think of instances of m as being, pro tanto, instances of A; instances or states of m must be distinct from A, nicht wahr? And if that's the way things go when we think frequentistically, perhaps that's also the way things (our thought) must go if we think probabilistically.

But what if we do see A in m -- what if we [already] see A in m and what if we wish to figure out how much of A we should see in m? [Is this a coherent way of thinking?]

Consider a reporter. Suppose the reporter is also the actor; i.e., we wish to know if the reporter was "consciously aware" of a risk. The reporter may be one of our sources of information about his awareness. The reporter must decide what to tell us. How does the reporter decide what to report?

It is possible -- no? -- that the reporter will reason with himself (before reporting), "How much did my state of mind partake of awareness? How much did it have that quality?"

Here our focus is on the reporter's -- i.e., the witness' -- actual belief about his own mental state or condition. We can ponder later how & whether the reporter decides to report what he [thinks he] believes about his mental state or states.

Or is this possibility impossible? Must the reporter believe, "Either I was aware or not aware of a risk. I must decide which, on balance, I more probably was".?

Or can the reporter think, "It's not a question of one or the other. It's a question of the degree to which I was aware, of the degree to which I had conscious awareness. In most instances, even with complete information, I will not be able to say, with fidelity, that either I had conscious awareness or that I didn't have it. The most accurate way for me to report the state of my awareness is for me to report my belief about how much awareness I had."

By posing this thought-experiment involving a reporter-actor ruminating about the form of his report of his own mental processes, I [Peter Tillers] am not ruling out a probans separate from the probandum: I am not saying that evidence in the [modern] classic sense is useless when the matter in issue is some mental state or process. For example, even if I am a reporter-actor I may want to have some evidence of the occurrence or non-occurrence of some thoughts or notions inside my head at some earlier time -- because, for example, my memory may be frail and I may not remember what I thought or felt at some earlier time; I might want, therefore, to look at my diary if I have one. Similarly, an outside observer -- a trier of fact, a jury, for example -- may have to decide whether to believe that a reporter, a witness, is attempting or not attempting to tell the truth as the reporter sees it. In these situations the only question is not how someone should characterize the thoughts and feelings that are thought to have occurred in someone's head, or brain.

*** Why do fuzzy predicates (sometimes) work? Why do fuzzily-measured linguistic variables work? For example, why are they sometimes great as instruments of control? Compare Judea Pearl's approach, which emphasizes that any understanding that intervenes in the world must be an understanding that sees the causal connections among events -- and, for that reason principally, evidence must consist of events that have a discernible causal connection with the matters or hypotheses in issue? There is none of that in Zadeh's version of fuzzy sets. We control the world by working with it at a kind of surface level!

*** Where do we go from here? What is the issue?

Perhaps there are three basic forms of evidence (or signs):

(i) an element is a sign or evidence because it stands in a discernible causal relationship or relationships to pertinent hypotheses;

(ii) an element functions as evidence because it is associated with pertinent hypotheses in some fashion; and

(iii) an event or state serves as a sign of a hypothesis because the event or state partakes or seems to partake of a possible defined state -- and here an event is not so much "evidence" as it is a condition that absorbs or gathers the status of some hypothetical state to some degree, and the thinking or perception here is quasi-Platonic, with the proviso that in Zadeh's world one thinks of events as having varying amounts, or partaking in varying degrees, in names and concepts rather than in being.

This third line of thinking, if it is not entirely absurd, necessarily leads to another category of questions, a category that Zadeh explores (though how successfully for my purposes -- for an understanding of law's reasonings -- I cannot yet tell): we now wish to know to what extent we can reason about our sense of how far an event or set of events -- e.g., "mental states" -- partakes in a concept such as "awareness." Is the judgment about awareness akin to a primitive and irreducible perception -- or is the judgment about a matter such as "awareness" in some (fuzzy) sense an "inference," albeit a fuzzy inference? For example, perhaps the judgments about (degrees of)awareness are and ought to be influenced by matters such as the duration of certain kinds of mental processes and the amount of feeling that accompanied some mental state or states.

But if we are to pursue this kind of inquiry -- and where it will lead I do not know -- it is crucial to play a certain mental trick. The trick is to recognize that a relationship R between events such m and possible states such as A is not always to be resolved by further analysis or elaboration of a concept or notion such as A, "conscious awareness." If we are to think in a Zadeh-like fashion about the implications of E (some item of evidence) for the degree to which m (some mental process) is A (conscious awareness), it is crucial to keep in mind that the appropriateness of seeing some m in A and the question of the extent to which m should be thought to be in A are not exhaustively specified by the definition of A; we must assume that factors outside of A, so to speak, influence the degree of m's membership in A.

But if any of this makes sense, what could a fuzzy analysis of legal reasoning and factual inference in legal settings accomplish? This is a very big question. Perhaps fuzzy analysis would have predictive value. See the work by L. Philipps. But perhaps the theory of fuzzy sets in this connection (factfinding in law) could also serve to reassure us that the way that we generally expect to resolve issues such as "D's recklessness vel non" or "D's conscious awareness vel non" is not irrational.

Consider this specimen phenomenon and problem:

Walter Witness believes and reports: "The thought that my car might skid flitted through my mind. The thought gripped me, but, as I said, it only flitted through my mind. I had other things on my mind, mainly my wife's illness and my bad day at the office. They were in the forefront of my thinking, I was preoccupied with those things."

How should we decide and how do we decide whether or not and to what extent Walter was reckless and consciously aware of a risk that his car might skid? *** Reference material:

Knapik v. Ashcroft, 2004 U.S. App. LEXIS 19445 (2nd Cir., Sept. 17, 2004) (Review of order for deportation of a lawful permanent resident; defendant pled guilty to the crime of attempted reckless endangerment; Knapnik's plea and conviction arose from "an incident in which, while intoxicated, Knapik drove at an excessive rate of speed against the flow of traffic on the Staten Island Expressway"; the question on appeal was whether defendant's conviction was a conviction of a crime of "moral turpitude"; New York statute defined reckless endangerment thus: "A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person."; the court noted that in an earlier and different proceeding involving Illinois law, the BIA found persuasive that under Illinois law a "person acting recklessly must consciously disregard a substantial and unjustifiable risk, and such disregard must constitute a gross deviation from the standard of care which a reasonable person would exercise in the situation. This definition of recklessness requires an actual awareness of the risk created by the criminal violator's action."; the court of appeals further observed that "the BIA [Board of Immigration Appeals] limits moral turpitude to crimes in which a defendant consciously disregards a substantial risk of serious harm or death to another"; but appellant was convicted of attempted reckless endangerment, and the federal court of appeals held that the concept of attempted reckless endangerment is "nonsensical" -- because, it reasoned, a reckless act is unintentional and one cannot intend to commit an unintentional act -- and that a conviction for such a crime with such oxymoronic elements does not support the conclusion that every person convicted of such a "nonexistent" crime was convicted of a crime of "moral turpitude").

A Unified Theory of Uncertainty?

Lotfi Zadeh, Abstract of "Toward a Unified Theory of Uncertainty," a lecture presented at the International Conference on Information Processing and Management of Uncertainty, Perugia, Italy, July 4-7, 2004:

In science, and especially within [the] probability community, it is an almost universally held view that probability theory is the theory of uncertainty, and that no other theory of uncertainty is needed. ...

...

What is proposed here is what may be called a unified theory of uncertainty, or UTU, for short. In this theory, the point of departure is the concept of partiality--a concept which has a position of centrality in human cognition. Thus, in human cognition almost everything is partial, that is, is a matter of degree. For example, we have partial knowledge, partial understanding, partial truth, partial certainty, partial possibility, partial belief, partial causality, partial information, partial preference, partial independence and partial satisfaction. In the unified theory of uncertainty, there are three partialities that stand out in importance, (a) partiality of certainty (likelihood); partiality of truth (verity); and (c) partiality of possibility.

Lotfi Zadeh, "Toward a Unified Theory of Uncertainty--from PT to UTU," PowerPoint Version of lecture presented at Perugia, Italy, July 4, 2004, at p. 159:

The range of application-areas of fuzzy logic is too wide for exhaustive listing. Following is a partial list of existing application-areas in which there is a risk of substantial activity.

1. Industrial control
2. Quality control
3. Elevator control and scheduling
4. Train control
5. Traffic control
6. Loading crane control
7. Reactor control
....
20. Assessment of credit-worthiness
21. Fraud detection
...
23. Pattern classification
...
34. Internet
35. Library and Information science

Blurb by John P. Burgess on back of Susan Haack, Deviant Logic, Fuzzy Logic (U. Chicago Press, 2nd ed., 1996): "Given the amount of media hype 'fuzzy logic' has received, I am pleased by how informatively and entertainingly Dr. Haack writes in debunking it."

Susan Haack, "Do We Need Fuzzy Logic," in Susan Haack, Deviant Logic, Fuzzy Logic 233 (U. Chicago Press, 2nd ed., 1996): "I also want to raise a question: which of the many applications claimed to the credit of fuzzy logic are in fact applications of the base logics [which, she argues, are not part of fuzzy logic], and which of the more radical systems? It would require a more thorough search of the literature than I have been able to undertake to settle the issue; but I should expect, if my criticisms of fuzzy logic are correct, to find that it is the base logics that have been given practical applications."

Stephen Wolfram, A New Kind of Science 1175 (2002): "The idea of intermediate truth values has been discussed intermittently ever since antiquity. Often--as in the work of George Boole in 1847--a continuum of values between 0 and 1 are taken to represent probabilities of events, and this is the basis for the field of fuzzy logic popular since the 1980s."

Joseph Y. Halpern, Reasoning about Uncertainty Section 2.5 at pp. 40, 42-43 (2003):

Possibility measures are yet another approach to assigning numbers to sets. They are based on ideas of fuzzy logic. Suppose for simplicity that W, the set of worlds, is finite and that all sets are measurable. A possibility measure Poss associates with each subset of W a number in [0, 1] and satisfies the following three properties:

Poss1. Poss ([symbol for null set])= 0.

Poss2. Poss(W) = 1.

Poss3. Poss(U v V) = max(Poss(U), Poss(V) if U and V are disjoint.

...

...Perhaps the most common interpretation given to possibility and necessity is that they capture, not a degree of likelihood, but a (subjective) degree of uncertainty regarding the truth of a statement. This is viewed as being particularly appropriate for vague statements such as "John is tall." Two issues must be considered when deciding on the degree of uncertainty appropriate for such a statement. First, there might be uncertainty about John's actual height. But even if an agent knows that John is 1.78 meters tall ..., he might still be uncertain about the truth of the statement "John is tall."

Criminal Evidence Redux

I repeat the following recommendation to prevent it from being buried in a blizzard of blogs:

If you are interested in the UK way of proving and disproving criminal guilt, you must purchase this book:

Paul Roberts & Adrian Zuckerman, Criminal Evidence (2004), 712 pages, Oxford University Press.

This tome is not merely erudite. It is also well written.

Is a Criminal Defendant's Off-the-Stand Courtroom Demeanor Irrelevant?

Bryant v. Maryland, 129 Md. App. 150; 741 A.2d 495 (1999) (murder trial; defendant did not testify):

During closing argument prosecutor said,

There is so much evidence that corroborates what [the prosecution's witness] told you. When I spoke about her demeanor when she testified, and how she answered [defense counsel's] questions, did you notice the defendant's demeanor when she testified, the way he kept looking down and couldn't look at her? She looked in his eyes several times.

...

... You observed that, members of the jury, you were sitting here. We all saw it. He couldn't sit up and look her in the eye because he knew she was telling the truth. He knew she was telling the truth.

The Maryland Court of Special Appeals said:

Argument that asks the jury to consider the demeanor of a witness when testifying is proper and is consistent with the jury instruction given in this case to consider "the witness's behavior on the stand and way of testifying; did the witness appear to be telling the truth." Argument that comments on the courtroom demeanor of a defendant who elects not to testify is a different matter. Courts that have considered this question have reached different conclusions about when, if ever, comment on a defendant's courtroom demeanor is proper. In State v. Rivera, 602 A.2d 775, 253 N.J. Super. 598, (1992), the court held that when a defendant engages in "testimonial behavior before a jury" by injecting unsworn comments into a trial by word, gestures, display of emotion, or other demeanor intended to influence the jury, the prosecutor may, with advance approval of the court and the making of a record of the defendant's conduct, make a limited argument noting the fact of the behavior and that the comment or demeanor should not be considered by the jury. The court further stated, however, a prosecutor may not comment upon the failure of a defendant to act in a particular way during a trial. Id. at 777. See also State v. Johnson, 576 A.2d 834, 851-52, 120 N.J. 263 (1990) (improper for prosecution to argue that defendant failed to make eye contact with jurors during trial.)

...

The Supreme Court of Delaware, in Hughes v. State, 437 A.2d 559 (Del. Supr. 1981), held improper the prosecutor's comments that characterized a non-testifying defendant's courtroom demeanor as unemotional, unfeeling, and without remorse.

In our view, the courtroom demeanor of a defendant who has not testified is irrelevant. His demeanor has not been entered into evidence and, therefore, comment is beyond the scope of legitimate summary. ... Moreover the practice is pregnant with potential prejudice. A guilty verdict must be based upon the evidence and the reasonable inferences therefrom, not on an irrational response which may be triggered if the prosecution unfairly strikes an emotion in the jury.

437 A.2d at 572. See also Pope v. Wainwright, 496 So. 2d 798, 802 (Fla. 1986) (comments on a defendant's demeanor off the witness stand clearly improper); Blue v. State, 674 So. 2d 1184, 1213-15 (Miss. 1996) (error for prosecutor to comment on non-testifying defendant's demeanor and appearance during trial); People v. Garcia, 160 Cal. App. 3d 82, 206 Cal. Rptr. 468, 472-75 (Cal. App. 1984) (prosecutor's references to defendant's courtroom behavior was improper).

On the other hand, the Supreme Judicial Court of Massachusetts has held that a prosecutor's comment on the defendant's squirming, smirking, and laughing during trial was fair comment and in context did not suggest that the prosecutor had knowledge the jury did not share. Commonwealth v. Smith, 387 Mass. 900, 444 N.E.2d 374, 380 (Mass. 1983). That court has said, however, that a suggestion by the prosecutor that normal courtroom behavior betrays consciousness of guilt is improper. Commonwealth v. Valliere, 366 Mass. 479, 321 N.E.2d 625, 635 (Mass. 1974). And, see Commonwealth v. Pullum, 22 Mass. App. Ct. 485, 494 N.E.2d 1355, 1358 (Mass. App. 1986).

The Supreme Court of North Carolina found no error in a prosecutor's comments on the courtroom demeanor of the defendant, holding that such remarks were rooted in the evidence and that the demeanor of the defendant was before the jury at all times. State v. Brown, 320 N.C. 179, 358 S.E.2d 1, 15 (N.C. 1987), cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406, 108 S. Ct. 467 (1987). See also State v. Myers, 299 N.C. 671, 263 S.E.2d 768, 773-74 (N.C. 1980); Wherry v. State, 402 So. 2d 1130, 1133 (Ala. Cr. App. 1981) (conduct of the accused or the accused's demeanor during the trial is a proper subject of comment, at least when insanity is raised as a defense).

...

Turning to the case before us, we conclude that the argument of the prosecutor concerning the alleged failure of this defendant to look at a witness and the inference of guilt that should be drawn from that conduct was improper. The trial judge therefore erred in failing to sustain the defendant's timely objection.

The defendant in this case did not testify, and the State's argument related only to this courtroom conduct. Nowhere in the record is there to be found any reference to the alleged conduct of the accused. The prosecutor was arguing a fact not in evidence, and compounding that by adding her personal assurance that the alleged conduct occurred by saying, "We all saw it." n2 [footnote omitted] The argument related to conduct of the accused that was entirely passive -- his alleged failure to "look [the witness] in the eye." The argument was not, therefore, a comment on intentional conduct of an accused calculated to influence the jury. Moreover, the prosecutor argued her conclusion that the defendant's failure to "look her in the eye" was evidence of guilt -- "He knew she was telling the truth." -- a questionable inference at best. There may be any number of reasons why a defendant will not fix his or her gaze upon a witness, including a possible earlier instruction by defense counsel to avoid any possible implication that the defendant is attempting to intimidate or "stare down" a witness. The prosecutor should have focused on evidence that was before the jury, which may include fair comment on the demeanor of witnesses while they are on the stand, but which will ordinarily not include comments on the courtroom demeanor of the defendant.

In Wilhelm v. State, 272 Md. 404, 326 A.2d 707 (1974), the Court of Appeals noted that counsel may "make any comment or argument that is warranted by the evidence proved or inferences therefrom" and that the prosecutor is free "to comment legitimately and to speak fully, although harshly, on the accused's action and conduct if the evidence supports his comments . . . ." Id. at 412. We do not understand this statement ordinarily to condone comments of the prosecutor on the passive courtroom demeanor of a non-testifying defendant. ...

The Laughter of Non-Testifying Criminal Defendants

United States v. Schuler, 813 F.2d 978 (9th Cir., 1987):

The prosecutor's comment in closing argument on Schuler's laughter during testimony about the threats Schuler made presents procedural and substantive questions. The procedural difficulty derives from the fact that there is nothing in the record indicating that the laughter did occur, although Schuler nowhere objects that it did not. It is very difficult for an appellate court to review an issue that is not grounded in the record. If counsel considers such an outbreak to be significant, he or she should ask the trial court to have it included in the record.

Assuming that the laughter did occur, we are faced with the substantive issue whether the failure to exclude the prosecutor's reference to Schuler's courtroom behavior constituted reversible error. This issue involves several facets, including whether such remarks (1) introduce character evidence solely to prove guilt, (2) violate a defendant's fifth amendment right not to be convicted except on the basis of evidence adduced at trial, and (3) violate fifth amendment rights by indirectly commenting on a defendant's failure to testify at trial. ...

The Ninth Circuit has not ruled whether it is error to permit a prosecutor to comment on a defendant's courtroom behavior. Several other circuits, however, have held that such comment is reversible error and we find the rationale of those cases compelling. n1

n1 Two circuits have rejected a challenge to a prosecutor's comments on the expressionless courtroom demeanor of a defendant in a habeas corpus context. See Borodine v. Douzanis, 592 F.2d 1202, 1210-11 (1st Cir. 1979); Bishop v. Wainwright, 511 F.2d 664, 668 (5th Cir. 1975), cert. denied, 425 U.S. 980, 96 S. Ct. 2186, 48 L. Ed. 2d 806 (1976). Both cases perceived the major issue to be whether such comments necessarily reflected on the defendant's failure to take the witness stand and both concluded that the comments did not necessarily allude to the failure to testify. We do not disagree with that specific holding. We do not accept, however, any broader implication from those cases that references to a non-testifying defendant's demeanor or behavior present no constitutional issue.

Federal Rule of Evidence 404(a) prohibits the introduction of evidence of the character of the accused solely to prove guilt. The prosecutor's remarks in effect did this by suggesting to the jury that Schuler's laughter was relevant apparently for the purpose of showing that he was of bad character because he considered the charges of threatening the life of the President to be a joke. ... While the offense of threatening the life of the President requires proof of a "knowing and willful" act, 18 U.S.C. § 871, and to that extent involves proof of Schuler's mental state, his laughter at trial could not have any relevancy for that purpose. n2 His courtroom behavior off the witness stand was legally irrelevant to the question of his guilt of the crime charged.

n2 Insanity was not an issue at the trial. There are appropriate legal proceedings for restraining mentally ill individuals who are a danger to others. If Schuler was, at the time of trial, a danger to the President or others, California law provides for evaluation and involuntary commitment of individuals who constitute a danger to themselves or others. See Cal. Welf. & Inst. Code § 5150 (West 1984).

The District of Columbia Circuit, when faced with a similar situation, reversed the conviction based in part on the prosecutor's reference to the defendant's courtroom behavior and the district court's refusal to instruct the jury that such behavior must not be considered. United States v. Wright, 160 U.S. App. D.C. 57, 489 F.2d 1181 (D.C. Cir. 1973). The court stated:

Unless and until the accused puts his character at issue by giving evidence of his good character or by taking the stand and raising an issue as to his credibility, the prosecutor is forbidden to introduce evidence of the bad character of the accused simply to prove that he is a bad man likely to engage in criminal conduct. . . .

This basic principle cannot be circumvented by allowing the prosecutor to comment on the character of the accused as evidenced by his courtroom behavior. That the jury witnesses the courtroom behavior in any event does not make it proper for the prosecutor to tell them, with the court's approval, that they may consider it as evidence of guilt.

Id. at 1186 (citations omitted). We agree that such comments are improper. ...

We also conclude that, in the absence of a curative instruction from the court, a prosecutor's comment on a defendant's off-the-stand behavior constitutes a violation of the due process clause of the fifth amendment. That clause encompasses the right not to be convicted except on the basis of evidence adduced at trial. The Supreme Court has declared that "one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds . . . not adduced as proof at trial." Taylor v. Kentucky, 436 U.S. 478, 485, 56 L. Ed. 2d 468, 98 S. Ct. 1930 (1978). We have recognized that a prosecutor may not seek to obtain a conviction by going beyond the admissible evidence. See United States v. Schindler, 614 F.2d 227, 228 (9th Cir. 1980). The Eleventh Circuit in United States v. Pearson, 746 F.2d 787 (11th Cir. 1984), was confronted with a prosecutor's closing argument commenting on the defendant's behavior off the witness stand, as follows:

Does it sound to you like he was afraid? You saw him sitting there in the trial. Did you see his leg going up and down? He is nervous. (Appellant's objection overruled) You saw how nervous he was sitting there. Do you think he is afraid?

Id. at 796. The court found such comments were reversible error, adding that

in overruling [the defendant's] objection and in failing to give a curative instruction, the court, in effect, gave the jury an incorrect impression that [the defendant's] behavior off the witness stand was evidence in this instance, upon which the prosecutor was free to comment.

Id. We agree with the holding of the Eleventh Circuit that such comments in the absence of a curative instruction, constitute a deprivation of the fifth amendment right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 684-85, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); Estell v. Williams, 425 U.S. 501, 503, 48 L. Ed. 2d 126, 96 S. Ct. 1691 (1976). n3

n3 The dissent, to support its position that a defendant's courtroom demeanor is evidence, relies principally on cases where the defendant took the stand. ... When a defendant chooses to testify, a jury must necessarily consider the credibility of the defendant. In this circumstance, courtroom demeanor has been allowed as one factor to be taken into consideration. The dissent has also referred to a case involving a judge's observation of a defendant's demeanor during the sentencing phase of trial. ... At this stage different considerations, including general character, are relevant. The above examples obviously contrast with the present situation where the defendant in the trial phase asserted his right not to testify and where neither his credibility nor his character were relevant considerations.

In addition, prosecutorial comment on a defendant's non-testimonial behavior may impinge on that defendant's fifth amendment right not to testify. We do not accept Schuler's contention that such comments in every case violate the right to remain silent because jurors would naturally take them to be comments on the failure of the accused to testify. ... In fact, we doubt that jurors would construe the prosecutor's comment on Schuler's laughter as referring to his failure to testify. We are concerned, however, that such statements by the prosecutor during trial, or the fear of such statements in closing argument, will tend to eviscerate the right to remain silent by forcing the defendant to take the stand in reaction to or in contemplation of the prosecutor's comments. In effect the defendant would be compelled to testify to explain any actual or possible behavior that the prosecutor might bring to the jury's attention. While this pressure to testify may well be the exception, there is no reason for use of such comments that would justify even a slight opening of the door to an invasion of constitutional rights.

...

When, as here, the prosecutor describes the courtroom behavior of a defendant who has not testified, and then goes on to tell the jury that it may consider that behavior as evidence of guilt, the prosecutor violates those rights.

Hall, J., dissenting:

The majority holds today that a prosecutor's comment in closing argument on the defendant's laughter during the testimony of other witnesses is reversible error. Because I believe that the courtroom demeanor of the defendant in this case is evidence that the jury could properly consider, I respectfully dissent from Section II.A of the majority's opinion.

I

The principle that a defendant's courtroom demeanor is evidence is well-settled. In Russell v. United States, 288 F.2d 520 (9th Cir. 1961), cert. denied, 371 U.S. 926, 83 S. Ct. 296, 9 L. Ed. 2d 234 (1962), this court observed that a trial court is in a much better position than an appellate court to determine whether the evidence in a particular case warrants a new trial. We noted that

the trial judge can see in the conduct and demeanor of one who testifies (or even in the conduct and demeanor of defendants who never take the witness stand, as the defendants did not here) a thousand and one matters impossible for a reviewing court to glean from a printed page.

Id. at 522. Likewise, in Reagan v. United States, 157 U.S. 301, 39 L. Ed. 709, 15 S. Ct. 610 (1895), the Supreme Court quoted with approval instructions that specifically advised a jury to consider the defendant's "demeanor and conduct upon the witness stand and during the trial." Id. at 308 ... . n1 See also Waller v. United States, 179 F. 810, 812 (8th Cir. 1910).

n1 Unlike the defendant in Reagan, Schuler chose not to testify. However, the Russell case, like this case, involved a non-testifying defendant. This court held that the demeanor of such a non-testifying defendant was relevant evidence.

Sound policy reasons exist for allowing a jury to consider the courtroom demeanor of a defendant. As Wigmore noted: "It is as unwise to attempt the impossible as it is impolitic to conduct trials upon a fiction; and the attempt to force a jury to become mentally blind to the behavior of the accused sitting before them involves both an impossibility in practice and a fiction in theory." 2 J. Wigmore, Evidence § 274 (J. Chadbourn rev. ed. 1979). n2 Taken to its logical conclusion, the majority's opinion would require a court to instruct a jury to reach its verdict as if the accused had not been present before it.

n2 See also H. Underhill, Criminal Evidence § 125 n.9 (5th ed. 1956) ("Practically it is impossible to prevent jurors from observing the appearance and behavior of the accused very closely while he is in court during the trial. They will naturally draw inferences therefrom either favorable or unfavorable to him. The information thus obtained is evidence, and, doubtless, many a verdict has been determined thereby.").

The majority relies on United States v. Wright, 160 U.S. App. D.C. 57, 489 F.2d 1181 (D.C.Cir. 1973), United States v. Carroll, 678 F.2d 1208 (4th Cir. 1982), and United States v. Pearson, 746 F.2d 787 (11th Cir. 1984), for the proposition that it is reversible error for a prosecutor to comment on a defendant's courtroom behavior. To the extent that these cases stand for the broad principle that a defendant's courtroom demeanor is never relevant evidence, I believe they were incorrectly decided. However, a careful reading of the cases demonstrates that they are simply restating the standard contained in Fed. R. Evid. 404(a), namely, that "evidence of a person's character . . . is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion."

In Wright, the defendant was charged with bank robbery. During his closing argument, the prosecutor commented on the defendant's unruly courtroom behavior. The District of Columbia Circuit held that the defendant's behavior off the witness stand was not "legally relevant to the question of his guilt or innocence of the crime charged." 489 F.2d at 1186 ... . Similarly, in Carroll, a bank robbery case, the prosecutor commented on the fact that the defendant had examined bank surveillance photographs with his attorney during trial. The Fourth Circuit held that a defendant's courtroom demeanor could not be introduced "solely to prove guilt." 678 F.2d at 1210 ... . n3 Finally, in Pearson, the defendant was charged with possessing an unregistered silencer and possessing a silencer without a serial number. In closing argument, the prosecutor commented on the defendant's nervousness off the witness stand. The Eleventh Circuit held that "the defendant's behavior off the witness stand in this instance was not evidence subject to comment." 746 F.2d at 796 ... .

n3 The court in Carroll also relied on the fact that the prosecutor's comment violated both the defendant's right not to testify and his right to assist his counsel in his own defense. 678 F.2d at 1209. Neither of these factors is present here. The majority concedes it is doubtful that the jurors construed the prosecutor's comment on Schuler's laughter as referring to his failure to testify. Moreover, it is obvious that Schuler's laughter was not an attempt to assist his counsel in his own defense.

The majority incorrectly assumes that Schuler's laughter is evidence of his character offered solely to prove guilt. In fact, Schuler's laughter is relevant to another material issue in the case, Schuler's mental state. As such, the laughter is admissible under Fed. R. Evid. 404(b). n4 Cf. Commonwealth v. Louraine, 390 Mass. 28, 34, 453 N.E.2d 437, 442 (1983) ("It is an established and universally accepted rule that, when a defendant's sanity is at issue, the trier of fact is entitled to consider the defendant's demeanor in court.").

n4 Fed. R. Evid. 404(b) provides as follows ... :

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Fed. R. Evid. 404(b) provides for the admission of other acts of the defendant in order to prove that he had the requisite intent for a crime. In this case, Schuler's intent at the time of the alleged threat was at issue; the defense asserted that Schuler's remark was an expression of anger at law enforcement personnel and not a serious threat to the President. Schuler's behavior in the courtroom was relevant evidence on the issue of intent and, hence, was admissible under Fed. R. Evid. 404(b).

The Ninth Circuit has consistently upheld the admission into evidence of other acts of a defendant where, as here, that defendant's mental state is at issue. For example, in United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977), cert. denied, 435 U.S. 1000, 56 L. Ed. 2d 90, 98 S. Ct. 1656 (1978), this court affirmed the conviction of Patricia Hearst for robbing a bank in San Francisco. At trial, the defense claimed that Hearst was acting under duress at the time she committed the robbery. The trial court admitted evidence of subsequent criminal activities of the defendant in Los Angeles which undercut the defense. This court upheld the admission of the evidence under Fed. R. Evid. 404(b), noting that

appellant's state of mind during the San Francisco robbery was the central issue in the case. State of mind is usually difficult to prove, and the evidence on the issue was sharply divided. The timing and other circumstances of the Los Angeles incidents made evidence of them highly probative on this critical issue.

563 F.2d at 1337.

Likewise, in United States v. McCollum, 732 F.2d 1419 (9th Cir.), cert. denied, 469 U.S. 920, 83 L. Ed. 2d 236, 105 S. Ct. 301 (1984), this court affirmed the conviction of the defendant for bank robbery. At trial, the defense claimed that the defendant was acting under hypnosis at the time of the robbery. This court upheld the trial court's admission into evidence of a twelve year old conviction for armed robbery under Fed. R. Evid. 404(b): "Such a prior act can be probative of intent because the fact that the defendant had an unlawful intent at the time he committed the extrinsic offense makes it less likely that he had a lawful intent when he performed the acts charged as the present offense." 732 F.2d at 1424. We then proceeded to state the general rule of law as follows: "Where the mental state to be inferred from undisputed overt acts of a defendant is the crucial issue, evidence of past criminal acts has generally been found insufficiently prejudicial to warrant exclusion." Id. at 1425.

In this case, Schuler's bizarre behavior in the courtroom lends credence to the government's claim that his threat was indeed serious. Moreover, the admission of Schuler's laughter is certainly less prejudicial than the admission of the criminal acts in Hearst and McCollum. The trial court did not abuse its discretion in allowing the jury to consider Schuler's laughter. n5 [footnote omitted]

.

Courtroom Threat

Michaelangelo Conte, "Baby murder defendant threatens 'snitch' witness in court,"The New Jersey Journal A8 (Sept. 17, 2004):

Jurors were walking from the courtroom when Alvarado [the defendant in a murder trial] turned to prosecution witness Francisco Escribaro [a former cellmate of the the defendant], raised [Escribaro's] written statement in [defendant's] hand, and said, "I am going to make sure people in jail read this because you are a (expletive) snitch."

...

[Trial judge] Nelson told the jury that sometimes attorneys or other participants involved in a trial get excited or angry.

"If it happened in this trial and you heard it, you have to disregard it," he said. "Next week if it's still in the back of your mind, it can play no part in your decision. Everyone understand that?"

But cf. United States v. Mickens et al., 926 F.2d 1323 (2nd Cir. 1991)(held, admission of defendant's courtroom threat against former attorney was not error):

Defendant-appellant Mickens challenges the district court's decision to permit Mickens' former attorney to testify that Mickens had made a hand gesture in the shape of a gun as the former attorney entered the courtroom to testify. Mickens argues that this testimony lacked probative value and that the former attorney's testimony that Mickens had pointed at the court, not at the attorney, was unduly prejudicial. This challenge lacks merit.

...

[T]he standards for admission of Rule 404(b) evidence were satisfied. The testimony about the hand gesture was not offered to prove Mickens' bad character or criminal propensity, but rather to prove his consciousness of guilt. ... The testimony was relevant since an effort to intimidate a key prosecution witness was probative of Mickens' state of mind. ...

Capturing the Friedmans

After many months of trying, I finally made myself watch Capturing the Friedmans. The film was less depressing than I thought it would be -- largely because of Jesse (sp?) Friedman's sense of humor and seeming optimism, even after serving thirteen years in prison.

Do I know if J. Friedman is guilty or innocent?

No.

But I confess I was taken aback by the male police officer's account of the proper way -- he thinks or thought -- of approaching a family that has a child that the investigating police officer thinks has been molested. (You must tell them, he said, in effect, "We know your child has been molested.") I wonder: has this police officer changed his mind? (I have the feeling he hasn't. But I think he may now be a retiree.)

In several weeks the Association of the Bar of the City of New York is running a conference or symposium about the film, and some of the principals involved both in the main story and in the making of the film will be there. I will go to the conference and listen -- and then I will report my impressions on these pages.

Australian Wisdom on Evidence

We Americans (U.S. North Americans, I mean) are too provincial. I also recommend:

Andrew Ligertwood, Australian Evidence, Butterworths.

I have the third edition -- 1998, 678 pages -- at hand. I particularly like the way the book introduces the subject. The first chapter is "The Fundamental Principles." The second chapter is called "The Trial Process." A bit of logic -- a very nice introduction & summary --, and then a bit of procedural context. Very nice!

The titles of other chapters (in this very professional book) also appeal to the foreign observer of the Australian system: Chapter 5, "The Adversary Context"; Chapter 6, "Party Presentation and Prosecution"; and, Chapter 7, "The Testimonial Emphasis."

Criminal Evidence in the United Kingdom

If you are interested in the UK way of proving and disproving criminal guilt, you must purchase this book:

Paul Roberts & Adrian Zuckerman, Criminal Evidence (2004), 712 pages, Oxford University Press.

This tome is not merely erudite. It is also well written.

Postscript: How can evidence be criminal?

Spirited Jury Deliberations

NYTimes, story by Michael Wilson, Section B1 (Sept. 16, 2004):

...Juror No. 4 took the stand and admitted he had filled his 16-ounce Poland Spring bottle, half with vodka, half with water, nipping at it during the four hours of deliberation .... He had drained two-thirds of the bottle during deliberations, and after the verdict was read he took a last "big swig" ....

...

Yesterday, Justice Ellen M. Coin of State Supreme Court in Manhattan issued her ruling: the verdict [against a firefighter accused of stealing at Gound Zero] should stand.

Justice Coin apparently adhered to the traditional rule that evidence of outside influences is admissible to "impeach" a jury verdict but, following considerable precedent, she also concluded that this exception did not apply. She was clearly on the button: spirits are a classic example of internal influence.

[... twitter, twitter ...{hint, hint: joke, joke}]

BTW: a Delaware court's reasoning [quoted by the NYTimes reporter] has a has a kind of probabilistic twinge: "Juror ... intoxication does not necessarily equal bias against the accused." Theory: alcoholic spirits are a bit like a coins or dice: drunken jurors are not prejudiced against or for criminal defendants. This is because, we must assume, the besotted brained of a besotted juror is not influenced, one way or another, by the status of a person as a criminal defendant.

Do We Agree about Bush's Swagger?

Justice Potter Stewart famously once said that he knew pornography when he saw it. Stewart's claim has drawn scorn and ridicule from legal scholars for decades.

But consider this: Bush does literally swagger. And I don't like his swaggering.

But my principal objective now is not to express my personal feelings about Bush's swaggering. Instead, now I want to emphasize the following point:

Although I cannot define or describe swagger, I think I know swagger when I see it -- and I bet you do too; to wit, I bet that many of us would use "swagger" in much the same way, that many of us would agree when swaggering is occurring and when it is not.

If I am right about the workings of "swagger" in American English, it follows that at least some words that many of us cannot readily define sometimes serve as useful or meaningful references -- interpersonally consistent references -- to phenomena in the world. Q.E.D.: We don't always need definitions of words to make words useful or meaningful.

But: People who want to create computers or programs that mimic human behavior don't have the luxury of leaving referring words or concepts (such as "swagger") undefined: if it is to emulate human behavior, the computer or program must be instructed on how or when to use "swagger."

Therefore?

Crimes upon Crimes upon Crimes

White House spokesman Scott McClellan called the killing of children by Chechen fighters a "barbaric terrorist act." He added, "The responsibility for the tragic loss of life rests with the terrorists."

The killing of children by Chechnya fighters, or terrorists, is a terrible crime.

Stalin's 1944 deportation of almost the entire population of Chechnya was a great crime.

Many crimes were apparently committed in the 1999 Russian war against Chechnya. See Yuri N. Maltsev, "Russia's War on Chechnya" (October 28, 2002).

See also Jackson Diehl, "Chechnya Discounted," Washington Post (June 11, 2001) ("What officialdom in Moscow and Washington alike don't want to hear is that the campaign by the Russian military and police against Chechnya's separatists has degenerated into a full-fledged dirty war, complete with disappearances, mass graves, systematic torture and summary execution of civilians. In its scale and ferocity, it far exceeds the campaign Serbian leader Slobodan Milosevic waged against the Albanians of Kosovo before NATO intervention; in the stunning impunity of its state-sponsored brutality, it is like the Latin American dirty wars of the 1970s.")

Old crimes almost never justify new crimes. But old crimes should not be forgotten -- particularly not if the old crimes amount to or verge on genocide. See Lindsey Hilsum, "The conflict the west always ignores," New Statesman Special Report (Jan. 26, 2004)

Do massive human rights violations matter only when they are committed by Saddam Hussein?

Law School Nightmare

You are having a nightmare. You are dreaming that you are you are taking a law school exam. You are told to identify and discuss in depth just several of the many issues presented by the lengthy set of facts found below. Your have lots of time -- two hours -- to write your answer. Do so.

Exam Question
David Defendant is indicted for robbery and sexual assault (rape). This criminal case proceeds to trial in a court of the State of Blackacre.

Judge Major Wisdom is the presiding judge. You are Judge Wisdom’s law clerk. Your name is Diligent Clerk.

At trial the prosecution opens and closes its case-in-chief with the testimony of Pattie Parsons. Pattie testifies that David robbed and raped her in her apartment on April 1, 2004.

After Pattie's testimony, defense counsel makes the following opening statement:

Members of the jury, the evidence you have seen and that you will see shows one of two things: either Pattie Parsons agreed to have sexual intercourse with David Defendant and she agreed to let poor David take the money that she now claims David stole; or Pattie's alleged encounter with David on April 1, 2004, is imaginary rather than real. In either case, you must free David. Thank you.

Defense counsel then offers the following testimony by Astral Astronomer:

I am an astrophysicist. I am also a volunteer counselor for the Amber City chapter of the Young Women's Religious Association, YWRA. My job at YWRA is to provide faith-based personal counseling to any member of our YWRA chapter who wishes to consult me. I am not a member of the clergy and my job is not to provide spiritual advice. But my religious beliefs are the motivation for my work as a volunteer YWRA counselor.

I have been a counselor with YWRA for 10 years. I have no university training in counseling. Counseling is a craft rather than a science. I learned counseling on the job. I attended numerous YWRA training sessions over the years. These training sessions are conducted by fellow YWRA counseling volunteers. Indeed, no one actually “runs” these training sessions; they are a collaborative and cooperative effort: YWRA counselors train each other. Counselors in our chapter meet periodically – usually once a month – to discuss their cases. This is the way training has been done in our chapter for 50 years. Our chapter has offered counseling by volunteers for 50 years. And the training sessions have been part of the counseling program for 50 years. Thus, counseling skills have been passed down from generation to generation. And they have been honed by 50 years' collective experience. I am generally regarded as the best counselor in our YWRA chapter. Many of the people who have consulted me for advice and guidance have thanked me for my efforts to help them.

Pattie Parsons first came to see me in the evening of April 2, 2004. She didn't say anything about having been robbed and raped by David Defendant. She never did say anything to me about a rape or a robbery. But in later counseling sessions she did tell me that early in 2003 she had joined a small group that called itself Exalted Exultations. She told me that she first met David at about the same time; she said that David had joined the group shortly after she had.

As the counseling proceeded, Pattie described Exalted Exultations and its beliefs and its rituals. She said the 10 members of group spent most of their time on the streets. She also said that the group spent much of its time in chanting. Occasionally Pattie illustrated some of the chants for me. When she did this, she invariably fell into a trance-like state.

I have a lot of experience with quasi-religious cults and groups like Exalted Exultations. Groups of that sort prey on young women in this area. And Pattie's experience with Exalted Exultations is very similar to the sorts of experiences that other YWRA members have had with similar fringe cults in this area. When Pattie went into her trances, she effectively became a zombie. Her mind and soul were seeded with perverse thoughts. I don't know what happened on April 1, 2004. But I do know that the encounter that she described at the trial might well be an event that her zombie-like brain wanted or just imagined.

The prosecution vigorously objects to the proposed testimony by Astral Astronomer. Judge Wisdom responds, “We need to take a recess for an hour or two so that I can consider the admissibility of Astronomer's testimony.” Judge Wisdom then turns to you and says, “Diligent, I want you to write a memo for me. I want your memo in my hands in two hours or less. Tell me if the proposed testimony by Astral Astronomer is admissible or inadmissible and tell me why. Make your memo clear. Make your memo concise. Dear Diligent, as you know, I've got a lot of cases on my calendar. I don't have either the time or the inclination to slog through either a jumbled memo or a long one. Are we on the same page?”

Please write the memorandum.

***
Postscript: Should legal education be reformed so that law students do not have to suffer the indignity of taking traditional exams? For example, instead of being required to answer exam questions in, say, two hours, should law students always be required to write research papers, briefs, or memos?

My experience is that the majority of law students prefer to take traditional exams rather than write research papers. But perhaps this attitude by the consumers of legal education is an insufficient reason for not shifting to testing methods that emphasize research and writing.