Picturing Argument from & about Evidence in the 21st Century: A Conference

Well, if pictures of reasoning -- including reasoning from and about evidence -- are so persistent and powerful, why then there ought to be a conference -- about the visualization of evidence and inference. And such a conference will in fact take place -- in New York City (Manhattan) at Cardozo Law School in late January 2007. The conference will be called Graphic and Visual Representations of Evidence and Inference in Legal Settings. Henry Prakken is the chair of the program committee and Tom Cobb is the deputy chair of the program committee. The panelists for this two-day event include:

Tim van Gelder (U. of Melbourne)

John L. Pollock (U. of Arizona)

Philip Dawid (U. College London)

Douglas Walton (U. of Winnipeg)

Branden Fitelson (U. of California – Berkeley)

Priit Parmakson (Tallinn University, Tallinn, Estonia)

Dale Nance (Case School of Law)

William Twining (U. College London & U. of Miami)

Andrew Palmer (U. of Melbourne)

David Schum (George Mason U.)

Richard Lempert (U. of Michigan & National Science Foundation)

Henry Prakken (Utrecht University)

Chris Reed (U. of Dundee)

Vern Walker (Hofstra U.)

John Josephson (Ohio State University)

Neal Feigenson (Quinnipiac Law School)

Richard Sherwin (New York Law School)

Jennifer Mnookin (UCLA))

Peter Tillers (Cardozo Law School, Yeshiva University)

Ron Loui (Washington University, St. Louis)

Samuel Solomon (CEO of DOAR, Inc.)

Thomas Cobb (University of Washington School of Law)

(The names of several additional panelists will be announced soon.)

Wigmore's Picture-Thinking

... but -- of course -- John Henry Wigmore got started decades ago on the business of "visualizing" complex argument. He gave us the following sorts of pictures of complex argument from evidence:

Wigmore, however, was not the first person to diagram argument from or about evidence. William Lambarde did so in the seventeenth century -- his handbook for justices of the peace contained a diagram depicting the temporal sequence of events in issue and events that serve as evidence, or indicia, of such events in issue -- and even Lambarde's diagrams apparently drew on diagrams constructed much earlier. See B. Shapiro, INTELLECTUAL HISTORY, PROBABILITY, AND THE LAW OF EVIDENCE: "Beyond Reasonable Doubt" and "Probable Cause": Historical Perspectives on the Anglo-American Law of Evidence 152-154 (1991).

They Also Do It in the UK: Visualize Argument

Chris Reed and Glenn Rowe have developed argument visualization software Araucaria -- and it is free.

Australian Mapping

No, not mapping of Australia -- but mapping by an Australian -- Tim van Gelder. He is developing a method of argument visualization for lawyers. For details join the Austhink mailing list.

Are There Preferred Classes of Evidence?

Yet another court agrees that "direct" evidence is not necessarily more potent than circumstantial evidence:

Whittington, Sr. v. The Nordham Group, 2005 U.S. App. LEXIS 25685 (10th Cir., Nov. 29, 2005) (civil action for damages under Age Discrimination in Employment Act; plaintiff was 62 years old when terminated; plaintiff relied in part on evidence showing that a similarly-situated employee of age 57 was not terminated):

Nordam relies on cases from the Sixth, Seventh, and Eighth Circuits in arguing that we should adopt a bright-line rule that five years is an insignificant difference in age as a matter of law. None of those courts, however, applies such a bright-line rule. ...

In our view, a definitive five-year rule is unjustified. ...

To the extent that other circuits establish a direct-evidence requirement when the age difference is less than five years, we choose not to follow them. The authorities are legion that circumstantial evidence can be every bit as compelling as direct evidence. See, e.g., Rogers v. Missouri P. R. Co., 352 U.S. 500, 508 n.17, 77 S. Ct. 443, 1 L. Ed. 2d 493 (1957) (citing The Robert Edwards, 19 U.S. (6 Wheat.) 187, 190, 5 L. Ed. 238 (1821)) ("Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence."); United States v. Becker, 62 F.2d 1007, 1010 (2d Cir. 1933) (Hand, J.) ("The requirement [that the jury be separately charged as to circumstantial evidence] seems to us a refinement which only serves to confuse laymen into supposing that they should use circumstantial evidence otherwise than testimonial."); 1A John Henry Wigmore, Evidence 26 (Peter Tillers rev. 1983) ("Wigmore's view that circumstantial evidence may be as persuasive and as compelling as testimonial evidence, and sometimes more so, is now generally accepted."). We decline to set rigid guidelines and will leave to the jury the evaluation of the evidence, subject as always to the oversight of the district court to refuse to permit unreasonable findings.

Cf., e.g., the recent case McEwen v. Tennessee Dept. of Safety, 173 S.W.3d 815; 2005 Tenn. App. LEXIS 157 (March 22, 2005) (dispute over forfeiture of personal property for illegal sale of controlled substances; Court of Appeals rejected owner's contention that evidence of facts warranting forfeiture was insufficient):

Direct and circumstantial evidence is equally relevant, NEIL P. COHEN ET AL., TENNESSEE LAW OF EVIDENCE § 4.01[5], at 4-10 (4th ed. 2000), and equally probative. See, e.g., State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct. App. 1999); State v. Marsh, 278 Kan. 520, 102 P.3d 445, 450 (Kan. 2004); State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492, 502 (Ohio 1991); State v. Cherry, 361 S.C. 588, 606 S.E.2d 475, 481 (S.C. 2004); see also 1A JOHN H. WIGMORE, EVIDENCE § 26 (Tillers rev. 1983). Accordingly, litigants may prove any material fact by direct or circumstantial evidence or a combination of both, State v. Phillips, 138 S.W.3d 224 at 230; Brown v. Daly, 83 S.W.3d 153, 160 (Tenn. Ct. App. 2001), and in certain situations, circumstantial evidence may be more convincing than direct evidence. United States v. Robinson, 177 F.3d 643, 648 (7th Cir. 1999); Estate of Brock ex rel. Yadon v. Rist, 63 S.W.3d 729, 731 (Tenn. Ct. App. 2001).

Death at Night in New Jersey: On Habit and Character

I have a new paper:

The Death of a Youth and of a Drunkard:
A Remarkable Story of Habit and Character in New Jersey

The paper's abstract reads:

In many ways the case was unremarkable. It involved a traffic fatality that may have involved drunken driving, a tragic but common occurrence. This unremarkable case -- the criminal action of State of New Jersey v. Petro Radziwil, Indictment No. 1257-8-86 -- is nevertheless noteworthy. Radziwil raises important questions about an important part of the law of evidence: the relationship between habit evidence and character evidence. But the questions that Radziwil presents reach beyond the law of evidence. The criminal justice system is disproportionately populated with unsavory people, unpleasant people, stubborn people, and strong-willed people. Criminal defendants are frequently both unsavory and unpleasant, and many witnesses -- including prosecution witnesses -- share these traits. Prosecutors and criminal defense counsel, although not as a rule unsavory, can be unusually strong-willed and stubborn, and judges who preside in criminal cases may become hardened not just to the suffering of victims but also to the plight of those who cause harm. This combination of character traits has the making of a toxic brew. There is reason to worry about the capacity of strong-willed actors such as police officers and trial judges to make sound judgments about the unpleasant and unsavory people -- criminal defendants and witnesses -- that they routinely encounter while performing their assigned chores in the criminal justice system. The story of Petro Radziwil illustrates how personal likes and dislikes, and the prejudices of actors in the criminal process, can affect the outcomes of criminal proceedings. The story of Petro Radziwil also raises the question of whether much can be done to scrub the criminal process clean of the influence of the biases and emotions of the people who shape that process.

An Amicus Brief in the Bobby Holmes Case

Forty law professors -- all teachers of the law of evidence -- have joined in an amicus brief in the Bobby Holmes case. The amicus brief proceeds on the theory that the trial court's exclusion of exculpatory evidence deprived Bobby Holnes of his Sixth Amendment right to have a jury, not a court, decide his factual guilt or innocence.

J-Blogs: The Next Big Thing!

We may be entering a new phase in the history of judicial appeals, judicial dissents, judicial arguments, judicial (self-)justification, and judicial loquaciousness. I refer, of course, to judicial blogs -- or, more pithily (for those in the know), to j-blogs or, better yet, j-blawgs. That this -- j-blogging (or j-blawging) -- is the next big thing in the history of the American judicial system is plainly shown by the recent exchange in the New Yorker (October 31, 2005, and December 5, 2005). The first part of this extrajudicial judicial debate began via an intermediary, Jeffrey Toobin. Mr. Toobin interviewed Justice Breyer and reported some of Breyer's views about methods for settling constitutional disputes. See J. Toobin, "Breyer's Big Idea," New Yorker (October 31, 2005). Judge Lawrence K. Karlton, Senior Judge, U.S. District Court, E.D. California, was not pleased by what he saw there. In a letter in the December 5 issue of the same periodical he wrote:

The Supreme Court Justice Stephen Breyer's response to the quotation from my decision excluding the words "under God" from the Pledge of Allegiance seems to suggest that my complaint over the lack of guidance offered by the Supreme Court was a personal one. ... The intention [presumably J. Karlton's], however, was to note an institutional problem. [There is more. But I refrain from further quotation; buy the issue and read for yourselves.]

Now this exchange (between a high judicial luminary and one that inhabits the nether regions of the federal judiciary) in a periodical that is sometimes practically funereal may not strike you as revolutionary. But, my fellow bloggers, au contraire: It is only a matter of time before such extrajudicial judicial argument spills over into widely-read periodicals such as New York's Daily News and, ultimately [horrors!?], into the blogosphere. As one eminent poobah recently said, "What's the point of writing something that no one reads?" Well, as all bloggers know, the best way to reach a world-wide audience is via the world wide web. Hence: the phenomenon of the j-blog is nigh.

Yes, I know, I know: Judge Richard Posner has been blogging for some time (with his spiritual kith and kin, the Chicago economist Gary Becker). But Judge Posner, I believe, has refrained from using his blog to defend his judicial opinions. (Am I wrong? I haven't read every blog written by Posner. [In my defense: It is beyond any human being's capacity to read everything written by Posner: Posner's pen moves faster than the eye. Posner himself has supra-human eyes and rapidly-moving word-processing fingers; and the electrical impulses in Judge Posner's brain clearly outrun the speed of light. {The existence of Richard Posner disproves Einstein!}])