Saturday, September 18, 2004

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").

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