Conference on Graphic and Visual Representations of Evidence and Inference in Legal Settings

Cardozo School of Law will host a conference on

Graphic and Visual Representations of Evidence and Inference in Legal Settings

Dates: January 28-29, 2007.

Venue: Cardozo Law School, Yeshiva University, 55 Fifth Avenue (5th Ave. & 12th St.), New York (Manhattan), New York

Program

First day (January 28, 2007):

9.00am-9.20am: Welcoming Comments (P. Tillers)

9.20am-11.00am:

Moderator: Henry Prakken
Vern Walker, Visualizing the Dynamics around the Rule/Evidence Interface in Legal Reasoning
Richard Sherwin & Neal Feigenson, Thinking beyond the Shown: Implicit Inferences in Visual Evidence and Argument
Marc Lauritsen, Comment

11.00am-11.20am: coffee break

11.20am-1.00pm:

Moderator: Thomas Cobb
Tim van Gelder, Rationale: A Generic Argument Mapping Tool
Chris Reed, Wigmore, Toulmin and Walton: The Diagramming Trinity and their Application in Legal Practice
Dale Nance, Comment

1.00pm-2.00pm: lunch

2.00pm-3.40pm:

Moderator: Justin Hughes
John L. Pollock, Some Puzzles about Defeasible Reasoning
Ron Loui, A Modest Proposal for Annotating the Dialectical State of a Dispute
Richard Lempert, Comment

3.40pm-4.00pm: tea break

4.00pm-5.20pm:

Moderator: Richard Lempert
Thomas F. Gordon & Doug Walton, Visualizing Arguments of the Carneades Argumentation Framework
Bart Verheij, Virtual Arguments: On the Design of Argument Assistants for Lawyers and Other Arguers

5.20pm-6.30pm: dinner

6.30pm-8.15pm:

Moderator: Thomas Gordon
Doug Walton, Argumentation Theory for the Law of Evidence
Henry Prakken, Argument Visualisation Software for Crime Investigators: Design and First Experiences
William Twining, Comment

Second day (January 29, 2007):

9.00am-10.40am:

Moderator: William Twining
John Lowrance, Graphical Manipulation of Evidence in Structured Arguments
John Josephson, Graphical Display of Evidence and Inference in a Prototype System for Command-Post Information Fusion
Kevin Ashley, Comment

10.40am-11.00am: coffee break

11.00am-1.00pm:

Moderator: Kevin Ashley
David Schum & Jon Morris, Law Comes to the Rescue of Intelligence Analysis: Evaluating HUMINT
Philip Dawid & Amanda B. Hepler, Bayesian Networks for the Analysis of Evidence
Branden Fitelson, Argument Diagrams, Bayes Nets, and Independent Evidence

1.00pm-2.00pm: lunch

2.00pm-3.40pm:

Moderator: Jonathan Gottfried
Bruce Hay, Law's Visual Imagination
Priit Parmakson, Can Effective Visual Representations Be Produced Systematically?
Neal Feigenson, Comment

3.40pm-4.00pm: tea break

4.00pm-6.00pm:

Moderator: Neal Feigenson
Jennifer Mnookin, Visual and Expert Evidence: Rhetorical Connections and Invisible Affinities
Samuel Solomon, Visual Storytelling - Contextualizing Evidence through Visualization Taken from Real Cases
Deirdre Dwyer, Comment
David Tait, Comment

6.00pm-6.15pm: Closing Comments (Henry Prakken)

---

Peter Tillers (Cardozo Law School): Conference chair; e-mail address: peter@tillers.net Henry Prakken (Universiteit Utrecht & University of Groningen): Program chair; e-mail address: henry@cs.uu.nl Thomas D. Cobb (University of Washington, Seattle): Deputy program chair; e-mail address: tomcobb@u.washington.edu Jonathan Gottfried: Local affairs coordinator: Jonathan Gottfried; e-mail address: jgottfried@pobox.com"

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Panelists:

Kevin Ashley University of Pittsburgh School of Law)

Thomas D. Cobb Lecturer University of Washington School of Law

Philip Dawid Professor of Statistics University College London

Deirdre M. Dwyer British Academy Post Doctoral Fellow Pembroke College Oxford University

Neal Feigenson Professor Quinnipiac University School of Law

Branden Fitelson Assistant Professor of Philosophy University of California at Berkeley

Tim van Gelder Associate Professor of Philosophy University of Melbourne

Thomas F. Gordon Senior Research Scientist eGovernment Competence Center Fraunhofer Institut fuer Offene Kommunikationssysteme; web log

Bruce Hay Professor Harvard Law School

Amanda B. Hepler Department of Statistical Science University College London

John Josephson Research Scientist Laboratory for Artificial Intelligence Research Computer Science and Engineering Ohio State University

Marc Lauritsen President Capstone Practice Systems

Richard Lempert Eric Stein Distinguished University Professor of Law and Sociology University of Michigan Law School

Ronald P. Loui Associate Professor of Computer Science and Engineering Washington University in St. Louis

John D. Lowrance Program Director, Artificial Intelligence Center SRI International

Jennifer Mnookin Professor UCLA School of Law

Jon Morris Affiliate Faculty Member School of Information Engineering and Technology Systems Engineering and Operations Research George Mason University

Dale Nance Professor Case Western Reserve University School of Law

Priit Parmakson Lecturer Tallinn University

John L. Pollock Professor of Philosophy and Cognitive Science University of Arizona

Henry Prakken Lecturer, Department of Information and Computing Sciences Utrecht University & Professor of Law and ICT Faculty of Law University of Groningen

Chris Reed Senior Lecturer & Assistant Head of Research University of Dundee

David Schum Professor Systems Engineering & Operations Research George Mason University

Richard Sherwin Professor & Director, Visual Persuasion Project New York Law School

Samuel Solomon Chairman & CEO DOAR Litigation Consulting

David Tait Senior Lecturer School of Law University of Canberra

Peter Tillers Professor Cardozo School of Law Yeshiva University

William Twining Quain Professor of Jurisprudence emeritus University College London Law Faculty & Professor University of Miami School of Law

Bart Verheij Lecturer & Researcher Artificial Intelligence University of Groningen

Vern Walker Professor Hofstra University School of Law

Douglas N. Walton Professor of Philosophy University of Winnipeg

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Description of conference:

One of the largest problems faced by criminal investigators, litigators, paralegals, triers of fact, and others interested in disputes about factual questions in legal settings is the sheer mass of evidence available. It is often difficult to remember, retrieve, and interpret voluminous evidential information, and important relationships and inconsistencies may go unnoticed as a result. Tools that support the storage, retrieval, and interpretation of large masses of evidence would therefore be of great use.

Psychological studies have shown that people's ability to remember, retrieve, and interpret information is greatly enhanced when they organize it in a way that is meaningful to them. Scholars of the law of evidence have long suggested that graphical representations of evidential arguments and inferences could help people make sense of masses of evidence. As early as 1913, John Henry Wigmore claimed that his charting method promotes rational thinking about legal evidence. Wigmore had only pencil and paper to draw his cumbersome graphs. Today computer software may make it possible for almost anyone to construct useful graphical representations of arguments and inferences related to large collections of evidence. If such software were combined with with existing database, document management, and search technology, documentary evidence could be stored and retrieved in accordance with the user's view of a case. This would facilitate the transfer of a case file from one person to another because it would make it easier for recipients of files to grasp the signficance of the evidentiary details of a case. Software for graphical representation of evidential argument is currently being investigated for use in various domains. Argument visualization software has been designed, for instance, to support the teaching of scientific reasoning and critical thinking skills (e.g., Belvedere, Reasonable, Araucaria, Convince Me), to support intelligence analysis, and to facilitate individual or collaborative problem solving (e.g., Questmap, SEAS). Moreover, current artificial intelligence research offers precise accounts of evidential reasoning and thus provides a clear semantics of graphical notations as well as computationall methods.

In the legal domain, fact investigators and litigators increasingly use software that supports the storage and retrieval of information in terms of conceptual and relational networks (e.g., Holmes 2, Analyst's Notebook). As yet, however, such tools offer little or no support for structuring thinking about information: existing software allows users to store evidentiary data in terms of events, objects, actors, and the relations among these things, but it does not allow users to represent how such data support or undermine factual hypotheses.

This interdisciplinary conference brings together scholars and practitioners from fields such as law, philosophy, computer science, artificial intelligence, cognitive psychology, and linguistics. The following topics and issues will be addressed:

• New and current graphical means for visualization of factual inference and proof.
• Semantics of graphical notations: what are the underlying theories of evidential reasoning, including jurisprudential, philosophical, psychological, rhetorical, logical, and mathematical theories?
• Software tools that are currently available or under development for graphical representation of factual inference and proof.
• Potential contexts for the use of such software (e.g., criminal investigation, intelligence analysis, trials, and law teaching).
• Can graphical representation of evidential argument support automatic evaluation of hypotheses?
• How can current insights into human-computer interactuions be exploited to increase the usefulness of such software; e.g., how can visual complexity generated by large masses of evidence be managed?
• Are there pertinent empirical studies and findings about real-world use of evidence-charting methods in legal and other contexts?

---

For drafts and abstracts of some conference papers please go to http://tillers.net/conference.html. Final versions of the papers will be published in Law, Probability and Risk in 2007 and 2008.

---

The public is warmly encouraged to attend the conference. Advance registration is not required and there is no registration fee. However, there will be a charge for any lunches or dinners that attendees elect to take at the site of the conference, at Cardozo Law School. If you are not a panelist and would like to join us for any lunches or dinners at Cardozo, please RSVP to the address shown below by January 15, 2007, and indicate which meals you wish to purchase, enclosing payment of $35 for each. Please make checks payable to Cardozo School of Law. Send payment to

Alisa Norr Legal Secretary Friedman Kaplan Seiler & Adelman LLP 1633 Broadway, 46th floor New York, NY 10019 United States

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Hotel arrangements may be made through the conference travel agency:

Morris Park Travel Bureau 1745 Wiliamsbridge Road Bronx, NY 10461 1-718-792-9850 or toll free 1-877-526-8844 Fax: 1-718-863-7121 Email: MPTVL@AOL.COM

The Attorney-Client Privilege in Japan

Chris Betros, "Jury System Won't Work in Japan," Japan Today (Sept. 12, 2006):

Another obstacle is the lack of lawyer-client confidentiality in Japan. During major criminal cases, the defendant’s lawyer routinely reports to the media everything his or her client says.

But I bet the mixed court system will "work." Do I have any takers?

Of course, much depends on what one means by "work." Cf. What is the meaning of "is"?

Lay Participation in Trials: Diverging Trends

The U.K. has been cutting back on trial by jury for years. Japan, however, seems to be going in a different direction: it is reintroducing a mixed court system for some criminal cases. See Robert E. Precht, "Japan, the Jury," New York Times Section A, Column 2, Editorial Desk, p. 31 (Dec. 1, 2006).

Extract:

Beginning in 2009, Japan will institute a jury system called saiban-in. Juries consisting of three law-trained judges and six citizens chosen by lottery will decide criminal cases by majority vote. Japan had an American-style jury system for 15 years, but it was abolished by Japan's military government in 1943. Since then, verdicts have been decided by three-judge panels, leaving citizens with no voice in a system in which virtually all criminal trials end in a conviction. ...

&&&

According to surveys conducted by a sociologist, Hiroshi Fukurai, the prospect of jury service intimidates many Japanese; other polls show 70 percent of them don't want to be on juries. ...

Why is the Japanese Conviction Rate So High?

See J. Mark Ramseyer and Eric B. Rasmusen, "Why is the Japanese Conviction Rate So High?," 30 Journal of Legal Studies 53 (January 2001).

More on the Death Penalty in Japan

JapanFile (March 2002):

Carrying out the Sentence

The procedure for execution in Japan is opaque and carried out in [secret]. Executions are performed not at prisons, but at detention centers. Those on death row are never sent to prison, but remain in the detention center until an appeal is won or their execution is carried out. The method used is hanging, a procedure which has been abandoned in many places because it can result in beheading. Executions are usually carried out on Friday mornings, and convicts are not given advance notification. Surviving any Friday past nine a.m. guarantees another week of life. The names of the executed are never announced publicly, and the act of execution may not be acknowledged until well after the event. Even family and attorneys are not informed of the deaths firsthand - they learn of the executions when the detention center requests that a prisoner's possessions or ashes be picked up.

Historically, executions have been carried out while the Diet is in recess, a strategic tactic by the LDP to avoid political criticism. Last year [2001], two inmates, one in Nagoya and one in Tokyo, were hung on December 27. The day was politically well chosen. Not only was the Diet out; but two other trials overshadowed the executions. Prosecutors in Utsunomiya, Tochigi requested death for Shinozawa Kazuo, accused of killing six women in a jewelry store heist last June, and Takuma Mamoru, the perpetrator of the Ikeda elementary school murders entered a guilty plea in Osaka and requested the death penalty.

No Man [in Japan] Knows ... the Hour ...

Setsuko Kamiya, Day of Hanging Comes without Warning, Japan Times (Dec. 26, 2006):

Death row inmates [in Japan] do not know until the morning of their last day that their number is up. It could be next week, next month, or years away. But for four, the gallows suddenly came Monday.

The condemned, and their next of kin, are purposely kept in the dark about their fate by the government until the time to hang arrives. As one Justice Ministry official put it, this is to lessen the mental torture of an inmate waiting to die, but critics have long denounced this logic as the exact opposite of the torturous truth.

The four hanged Monday were no exception, and now 94 others sit on death rows nationwide, never knowing when the knock on the door will come.

Conference on Graphic and Visual Representations of Evidence and Inference in Legal Settings

Cardozo School of Law will host a conference on

Graphic and Visual Representations of Evidence and Inference in Legal Settings

Dates: January 28-29, 2007.

Venue: Cardozo Law School, Yeshiva University, 55 Fifth Avenue (5th Ave. & 12th St.), New York (Manhattan), New York

 

Program

First day (January 28, 2007):

9.00am-9.20am: Welcoming Comments (Tillers)

9.20am-11.00am:

Vern Walker, Visualizing the Dynamics around the Rule/Evidence Interface in Legal Reasoning
Richard Sherwin & Neal Feigenson, Thinking beyond the Shown: Implicit Inferences in Visual Evidence and Argument
Kevin Ashley, Comment

11.00am-11.20am: coffee break

11.20am-1.00pm:

Tim van Gelder, Rationale: A Generic Argument Mapping Tool
Chris Reed, Wigmore, Toulmin and Walton: The Diagramming Trinity and their Application in Legal Practice
Dale Nance, Comment

1.00pm-2.00pm: lunch

2.00pm-3.40pm:

John L. Pollock, Some Puzzles about Defeasible Reasoning
Ron Loui, A Modest Proposal for Annotating the Dialectical State of a Dispute
Richard Lempert, Comment

3.40pm-4.00pm: tea break

4.00pm-5.20pm:

Thomas F. Gordon & Doug Walton, Visualizing Arguments of the Carneades Argumentation Framework
Bart Verheij, Virtual Arguments: On the Design of Argument Assistants for Lawyers and Other Arguers
Marc Lauritsen, Comment

5.20pm-6.30pm: dinner

6.30pm-8.15pm:

Douglas N. Walton, Argumentation Theory for the Law of Evidence
Henry Prakken, Argument Visualisation Software for Crime Investigators: Design and First Experiences
William Twining, Comment

Second day (January 29, 2007):

9.00am-10.40am:

John Lowrance, Graphical Manipulation of Evidence in Structured Arguments
John Josephson, Graphical Display of Evidence and Inference in a Prototype System for Command-Post Information Fusion

10.40am-11.00am: coffee break

11.00am-1.00pm:

David Schum & Jon Morris, Law Comes to the Rescue of Intelligence Analysis: Evaluating HUMINT
Philip Dawid & Amanda B. Hepler, Bayesian Networks for the Analysis of Evidence
Branden Fitelson, Argument Diagrams, Bayes Nets, and Independent Evidence

1.00pm-2.00pm: lunch

2.00pm-3.40pm:

Bruce Hay, Law's Visual Imagination
Priit Parmakson, Can Effective Visual Representations Be Produced Systematically?
Neal Feigenson, Comment

3.40pm-4.00pm: tea break

4.00pm-6.20pm:

Jennifer Mnookin, Visual and Expert Evidence: Rhetorical Connections and Invisible Affinities
Samuel Solomon, Visual Storytelling - Contextualizing Evidence through Visualization Taken from Real Cases
Deirdre Dwyer, Comment
David Tait, Comment

6.20pm-6.35pm: Closing Comments (Prakken)

Conference officials:
Peter Tillers (Cardozo Law School): Conference chair; e-mail address: peter@tillers.net
Henry Prakken (Universiteit Utrecht & University of Groningen): Program chair; e-mail address: henry@cs.uu.nl
Thomas D. Cobb (University of Washington, Seattle): Deputy program chair; e-mail address: tomcobb@u.washington.edu
Jonathan Gottfried: Local affairs coordinator: Jonathan Gottfried; e-mail address: jgottfried@pobox.com"

Panelists:

Kevin Ashley
University of Pittsburgh School of Law)

Thomas D. Cobb
Lecturer
University of Washington School of Law

Philip Dawid
Professor of Statistics
University College London

Deirdre M. Dwyer
British Academy Post Doctoral Fellow
Pembroke College
Oxford University

Neal Feigenson
Professor
Quinnipiac University School of Law

Branden Fitelson
Assistant Professor of Philosophy
University of California at Berkeley

Tim van Gelder
Associate Professor of Philosophy
University of Melbourne

Thomas F. Gordon
Senior Research Scientist
eGovernment Competence Center
Fraunhofer Institut fuer Offene Kommunikationssysteme; web log

Bruce Hay
Professor
Harvard Law School

Amanda B. Hepler
Department of Statistical Science
University College London

John Josephson
Research Scientist
Laboratory for Artificial Intelligence Research
Computer Science and Engineering
Ohio State University

Marc Lauritsen
President
Capstone Practice Systems

Richard Lempert
Eric Stein Distinguished University Professor of Law and Sociology
University of Michigan Law School

Ronald P. Loui
Associate Professor of Computer Science and Engineering
Washington University in St. Louis

John D. Lowrance
Program Director, Artificial Intelligence Center
SRI International

Jennifer Mnookin
Professor
UCLA School of Law

Jon Morris
Affiliate Faculty Member
School of Information Engineering and Technology
Systems Engineering and Operations Research
George Mason University

Dale Nance
Professor
Case Western Reserve University School of Law

Priit Parmakson
Lecturer
Tallinn University

John L. Pollock
Professor of Philosophy and Cognitive Science
University of Arizona

Henry Prakken
Lecturer, Department of Information and Computing Sciences
Utrecht University
&
Professor of Law and ICT
Faculty of Law
University of Groningen

Chris Reed
Senior Lecturer & Assistant Head of Research
University of Dundee

David Schum
Professor
Systems Engineering & Operations Research
George Mason University

Richard Sherwin
Professor & Director, Visual Persuasion Project
New York Law School

Samuel Solomon
Chairman & CEO
DOAR Litigation Consulting

David Tait
Senior Lecturer
School of Law
University of Canberra

Peter Tillers
Professor
Cardozo School of Law
Yeshiva University

William Twining
Quain Professor of Jurisprudence emeritus
University College London Law Faculty &
Professor
University of Miami School of Law

Bart Verheij
Lecturer & Researcher
Artificial Intelligence
University of Groningen

Vern Walker
Professor
Hofstra University School of Law

Douglas N. Walton
Professor of Philosophy
University of Winnipeg

Description of conference:

One of the largest problems faced by criminal investigators, litigators, paralegals, triers of fact, and others interested in disputes about factual questions in legal settings is the sheer mass of evidence available. It is often difficult to remember, retrieve, and interpret voluminous evidential information, and important relationships and inconsistencies may go unnoticed as a result. Tools that support the storage, retrieval, and interpretation of large masses of evidence would therefore be of great use.

Psychological studies have shown that people's ability to remember, retrieve, and interpret information is greatly enhanced when they organize it in a way that is meaningful to them. Scholars of the law of evidence have long suggested that graphical representations of evidential arguments and inferences could help people make sense of masses of evidence. As early as 1913, John Henry Wigmore claimed that his charting method promotes rational thinking about legal evidence. Wigmore had only pencil and paper to draw his cumbersome graphs. Today computer software may make it possible for almost anyone to construct useful graphical representations of arguments and inferences related to large collections of evidence. If such software were combined with with existing database, document management, and search technology, documentary evidence could be stored and retrieved in accordance with the user's view of a case. This would facilitate the transfer of a case file from one person to another because it would make it easier for recipients of files to grasp the signficance of the evidentiary details of a case.

Software for graphical representation of evidential argument is currently being investigated for use in various domains. Argument visualization software has been designed, for instance, to support the teaching of scientific reasoning and critical thinking skills (e.g., Belvedere, Reasonable, Araucaria, Convince Me), to support intelligence analysis, and to facilitate individual or collaborative problem solving (e.g., Questmap, SEAS). Moreover, current artificial intelligence research offers precise accounts of evidential reasoning and thus provides a clear semantics of graphical notations as well as computationall methods.

In the legal domain, fact investigators and litigators increasingly use software that supports the storage and retrieval of information in terms of conceptual and relational networks (e.g., Holmes 2, Analyst's Notebook). As yet, however, such tools offer little or no support for structuring thinking about information: existing software allows users to store evidentiary data in terms of events, objects, actors, and the relations among these things, but it does not allow users to represent how such data support or undermine factual hypotheses.

This interdisciplinary conference brings together scholars and practitioners from fields such as law, philosophy, computer science, artificial intelligence, cognitive psychology, and linguistics. The following topics and issues will be addressed:

• New and current graphical means for visualization of factual inference and proof.
  
• Semantics of graphical notations: what are the underlying theories of evidential reasoning, including jurisprudential, philosophical, psychological, rhetorical, logical, and mathematical theories?
  
• Software tools that are currently available or under development for graphical representation of factual inference and proof.
  
• Potential contexts for the use of such software (e.g., criminal investigation, intelligence analysis, trials, and law teaching).
  
• Can graphical representation of evidential argument support automatic evaluation of hypotheses?
  
• How can current insights into human-computer interactuions be exploited to increase the usefulness of such software; e.g., how can visual complexity generated by large masses of evidence be managed?
  
• Are there pertinent empirical studies and findings about real-world use of evidence-charting methods in legal and other contexts?
  

---

Drafts and abstracts of some or all papers will be made available online at http://tillers.net/conference.html shortly before the conference begins. Final versions of the papers will be published in Law, Probability and Risk in 2007 and 2008.

---

The public is warmly encouraged to attend the conference. Advance registration is not required and there is no registration fee. However, there will be a charge for any lunches or dinners that attendees elect to take at the site of the conference, at Cardozo Law School. If you are not a panelist and would like to join us for any lunches or dinners at Cardozo, please RSVP to the address shown below by January 15, 2007, and indicate which meals you wish to purchase, enclosing payment of $35 for each. Please make checks payable to Cardozo School of Law. Send payment to

Alisa Norr
Legal Secretary
Friedman Kaplan Seiler & Adelman LLP
1633 Broadway, 46th floor
New York, NY 10019
United States

---

Hotel arrangements may be made through the conference travel agency:

Morris Park Travel Bureau
1745 Wiliamsbridge Road
Bronx, NY 10461
1-718-792-9850 or toll free 1-877-526-8844
Fax: 1-718-863-7121
Email: MPTVL@AOL.COM

Litvinenko Case: Crank Amateur Hypothesis 4.0

Information on SLATE suggests that a rank amateur unschooled in either advanced spycratft or nuclear technology could not have been the culprit in Litvinenko's death:

Under very tight controls in the United States, minute traces of polonium-210 are embedded in plastic or ceramic, allowing them to be used safely in industrial static eliminators. To recapture these traces in any toxic quantity would require collecting over 15,000 static eliminators and then using highly sophisticated extraction technology. Such a large-scale operation would instantly be noticed, and its product would be adulterated by residual plastic or ceramic. In any case, what investigators reportedly recovered from Litvinenko's body was pure polonium-210.

Rap Expert; the Social Mores of Rappers

NYTimes, December 12:

When the police arrested Ronell Wilson in 2003, a day and a half after two undercover detectives were shot in the back of the head, they found scraps of paper in his pocket with handwritten rap lyrics that bragged about a killing.

&&&

The scraps of paper were formally introduced as evidence yesterday....

&&&

Defense lawyers usually argue that the lyrics are boastful fantasies, common to the point of irrelevance. Mr. Wilson’s lawyers have indicated that they plan to call a scholar named Yasser Arafat Payne, described in court documents as a rap expert, to make a similar argument.

***

"The rap expert is expected to testify that rap music lyrics often describe violent and sexual acts, and other antisocial behavior, that are not necessarily rooted in actual events," the lawyers wrote. "The expert is also expected to testify that rap music lyrics are often based on imagination and fantasy, rather than on reality. We will update the information as soon as we learn more details."

The rap expert, I surmise, is to testify not only about the content of rap lyrics he has seen or heard, but also about what rap lyrics indicate about the behavior of composers of rap lyrics. One obvious question is the source, or basis, of the putative expert's knowledge about this relationship between lyrics and behavior. A less obvious question is the validity -- normative and epistemic validity -- of the group-to-individual inference on which such evidence about the "meaning" of violent rap lyrics in, say, the community of rappers or in the comminity of composers of rap lyrics. The case may be a nice test of whether group-to-individual inferences are less odious as well as inferentially less fragile when those inferences are mediated by, or based upon, a person's participation in the social mores of a sector of society such as "rappers" or "composers of rap music lyrics." Cf. the debate about group-to-individual inference in United States v. Shonubi. (The Wilson murder trial, it should be noted, is taking place in the Second Circuit, and the appellate opinions in Shonubi are also from the Second Circuit.)

The Virtual Personal Appearance of the Deceased: Unduly Prejudicial?

The Japan Times reports:

The Sapporo High Court has rejected a request by the bereaved parents of a junior high school student who died in a traffic accident in Hokkaido in 2003 to bring her remains to court hearings, sources familiar with the matter said Sunday.

&&&

The parents were allowed to bring the remains into the courtroom at the district court. Misa's father, 35-year-old Hiroyuki Shirakura, said, "We would like Misa to attend the court hearings."

Details Pertinent to Bungler (Kovtun)-Murder Hypothesis 2.2

More details, from washingtonpost.com, about Bungler (Kovtun)-Murder Hypothesis 2.2:

German authorities said Sunday they found traces of polonium-210 at a Hamburg apartment where Kovtun is believed to have spent the night before he left for London to meet Litvinenko. The substance was found on a couch where Kovtun is believed to have slept.

Tests on radioactive traces found in the passenger seat of the BMW car that picked up Kovtun from the Hamburg airport showed that "it is definitely polonium," police spokesman Andreas Schoepflin said Monday.

Radioactive traces also have been found on a document Kovtun brought to Hamburg immigration authorities; and at the home of Kovtun's ex-mother-in-law outside Hamburg _ again from before the Nov. 1 meeting.

German prosecutors did not say whether they suspect Kovtun might have been involved in Litvinenko's death. But they said they were investigating him on suspicion he may have improperly handled radioactive material.

***

"We still believe that both variants are possible: that he may be a victim, but also that he may have been involved, at least in procuring the polonium," prosecutor Martin Koehnke said Sunday.

But Kovtun is said to have been a "fierce critic" of the Kremlin. So was he a double agent -- or is it true after all, as some Russians supposedly claim, that Litvinenko's death was a scheme to discredit the Kremlin?

Bungler-Murder Hypothesis 2.2

We had Bungler-Murder Hypothesis 2.1. Perhaps we now have Bungler-Murder Hypothesis 2.2 -- because, according to the International Herald Tribune, Kotvtun may have been leaving traces of polonium 210 before he went to London and met with Litninenko and Lugovoi:

German investigators have been focusing on Kovtun after traces of polonium-210, the radioactive element that killed Litvinenko, were found in and around Hamburg.

Kovtun visited the city, where his ex-wife lives, on the eve of his Nov. 1 trip to London, where he met with Litvinenko. The former agent said he fell ill that day and he died three weeks later. Russian prosecutors say that Kovtun has since been diagnosed with radiation sickness.

Lugovoi has denied that either he or Kovtun were involved in Litvinenko's death.

I classify the hypothesis involving Kovtun as a variant of the 2.0 class of hypotheses because in both hypotheses polonium 210 was mishandled and both Kovtun and Lugovoi are ex-KGB agents. But this hypothesis might eventually end up also being a variant of the 3.0 poisoned drink hypothesis. I have no automatic system for classifying and filing investigative hypotheses.

Hypothesis 3.0: A Poisoned Drink (but not Hemlock) in the Pine Bar in the Millennium Hotel

The Times Online reports the following hypothesis:

A minute quantity of polonium-210 placed in Litvinenko's glass would explain how he ingested the radioactive poison that led to his agonising death three weeks later.

The vapour that evaporated from the drink would have been inhaled by anyone in the area, with a greater concentration for his Russian companions and staff, who would have been in the bar much longer.

Investigators believe the poison cocktail was likely to have been manufactured in a guest room at the hotel, a short walk away from the US Embassy. Significant traces of polonium-210 were found in a fourth-floor room, which was occupied by a visiting Russian. Police believe that the killer may have stalked Litvinenko in London that day and had first tried to poison the ex-KGB colonel in a sushi bar. That failed but the poisoner left ample traces of the deadly radioactive isotope in the Piccadilly restaurant. Traces were also found on an Italian academic, Mario Scaramella, who was in the Itsu sushi bar. Toxicologists found polonium-210 in every place that Litvinenko visited after his drink at the hotel. It was not until he arrived home two hours later that he was violently ill.

Times Online added this tidbit:

Traces of polonium-210 has been found at Parkes Hotel, Mayfair, it was confirmed last night. It means that radiation has been found at all three hotels where Mr Lugovoy had stayed since flying to London on October 16. The Parkes was the first he stayed at.

Is it possible that Lugovoy is the victim, not of a conspiracy, but of circumstances? One wants to know: Did Lugovoy start trailing clouds of polonium 210 before he met with Litvinenko in the Pine Bar of the Millennium Hotel? (The answer is surely out there, in the media reports. It's just that I don't have the time to look for it.)

The Right Metaphor for Hypothesis 2.1.1: A Radioactive Pig-Pen

Charles Schultz's comic strip had a character called Pig-Pen, who trailed clouds of dirt as he went about his way. Litvinenko's possible killer in Hypothesis 2.1 may have been a kind of radioactive Pig-Pen. Traces of polonium 210, perhaps left by the Litvinenko's assassin, have been found or may have been found on or at:

1. Litvinenko
2. Two or three airplanes that flew between Moscow and the UK, airplanes on which the possible assassin traveled
3. British embassy in Moscow, which the possible assassin visited
4. Millennium Hotel in Mayfair, London, where the possible killer Lugovoi, or Lugovoy, met with Litvinenko and Litvinenko's friend or associate, Dmitry Kovtun
5. Sushi bar Itsu, where Litvinenko met with Mario Scaramella, on the same day (before or or after?) Ltivinenko met with Lugovoi
6. Dmitry Kovtun, who himself now lies in a coma
7. Six or seven staff members of the bar in the Millennium Hotel

It is hard to keep track of all the people and places where polonium 210 may have been found. For example, we should not forget Litvinenko's wife, who presumably got contaminated by Litvinenko rather than by Lugovoi. There is also that strange fellow Mario Scaramella -- another ex-KGB agent --, who met with Litvinenko in the Itsu sushi bar.

Of course, it may turn out that all of these people worked at a nuclear power plant on the side -- or perhaps they had the hobby of collecting anti-static brushes (some of which carry small amounts of polonium 210).

Or perhaps the waiter did it!

Litvinenko's dog?

Does Lugovoi live near Chernobyl? Does he meet with former KGB agents to trade stories about the good old days and exchange souvenirs of the tools of the KGB trade?

Rules of Evidence in Nonjury Trials

A friend called my attention this afternoon to the intriguing exchange between Professors Frederick Schauer, Jennifer Mnookin, and Walter Sinnott-Armstrong about the relationship between trial by jury and (legal) rules of evidence. Professor Schauer, who began the exchange, challenges the assumption -- held, he notes, by John Henry Wigmore -- that the connection between jury trial and rules of evidence is intimate. And he makes some very nice points.

Being one of Wigmore's revisers, I feel entitled -- impelled, even -- to barge into this discussion. (As a reviser of one part of the Master's Treatise I have this right ex cathedra, as it were.) In Section 4d.1 of 1 John Henry WigmoreEvidence in Trials at Common Law (P. Tillers. rev. 1983) I questioned, although I did not directly challenge, the Master's view about the relationship between the law of evidence and the "jury-system." (Wigmore's views about this relationship were rather more complex and nuanced than the usual snippets quoted by commentators might suggest. But that's another story.)

Before I grace these pages with some of the thoughts I expressed more than 20 years ago, I would like to call the gentle Reader's attention to a sentiment I expressed in the preface to my revision of the first volume of Wigmore's Treatise:

Much of the new discussion I present in this revision is attributable to the peculiar character of the first volume of the third edition of the Treatise, in which Wigmore set forth the basic theoretical framework for the entire treatise. Two general perspectives inform Wigmore's treatment of every branch of the law of evidence. The first perspective is his view of the relationship between the exclusionary rules of evidence and the institution of trial by jury; the second perspective is his view of the nature of proof and inferential processes and of the relationship of those matters to the exclusionary rules. I have devoted much discussion to these two general perspectives because of my conviction that they are of fundamental importance to the structure of the entire treatise and, more generally, to a meaningful assessment of the nature and purposes of the law of evidence.

A bit later in this longish post I will make a brief point about the importance of the heuristic functions of rules of evidence. But before I do that, I want put before you some things I said in the early 1980s about rules of evidence in nonjury trials. But even before I do that, I would like to suggest that a treatise writer (and also a treatise reviser) tends to acquire a perspective on law that is uncharacteristic of many law teachers today. A treatise writer, being immersed in a huge mass of legal material, quickly becomes aware of the fact that the legal realists were onto something. The treatise writer understands that it is unlikely in the extreme that any single rationale undergirds any body of law.

At the begining of Section 4d.1, in note 1, I wrote:

A considerable amount of [the] discussion of rules of evidence in nonjury trials is the byproduct of reflections on the place of the law of evidence in administrative proceedings. See particularly the materials by Davis supra. See also Davis, Evidence Reform: The Administrative Process Leads the Way, 34 Minn. L. Rev. 581 (1950). See also, e.g., Note, Evidence — Hearsay — Adoption of Liberal Admission Rules of Administrative Tribunals in Antitrust Court Action, 5 Vand. L. Rev. 655 (1952) (comment on United States v. United Shoe Mach. Corp., 89 F. Supp. 349 (D. Mass. 1950)). Hence, there has been an understandable tendency to assume that the same considerations apply with respect to the problem of the use of rules of evidence in both administrative proceedings and in bench trials. This view rests on the assumption that all the differences between administrative proceedings and bench trials save one — the absence of a jury — are immaterial. (Professor Davis asserts that rules of evidence are inappropriate in all governmental nonjury proceedings of any character whatsoever.)

We have chosen not to paint with so broad a brush. In the first place, the actual extent to which rules of evidence are applied in various types of nonjury proceedings cannot be succinctly or easily described. (See, e.g., administrative proceedings, §§ 4a through 4c supra; arbitration proceedings, § 4e infra; and presidential impeachment trials, § 4j infra.) Furthermore, the decisive importance attached to the absence of a jury can be questioned. There are significant differences, for example, between administrative proceedings and bench trials that may offer an explanation, and perhaps a justification, for the greater willingness to use rules of evidence in bench trials. Thus, for example, the participants in a bench trial, unlike some participants in administrative proceedings, are generally familiar with rules of evidence, and in a bench trial the usual courtroom procedures are available to deal with the logistics involved in the presentation of evidence and in the making and recording of rulings on objections and matters such as offers of proof. Moreover, a bench trial is still generally regarded as a judicial proceeding, and there may be a general sense, particularly in the legal priesthood, that the use of rules of evidence is part of what it means for a court to "act like a court"; arguably, this expectation, if shared by the public, is not one that should be lightly disregarded. (See further discussion in text infra.) These considerations, and other considerations peculiar to other types of proceedings, have to be analyzed to determine the wisdom and propriety of a uniform principle that rules of evidence should be jettisoned in all nonjury proceedings wherever conducted. (Distinctions among the types of rules of evidence involved may also have to be made. See, e.g., discussion in text relating to privileges and matters such as standards of proof.)

There is little doubt that the traditional emphasis on rules of evidence as "jury trial rules" must be broadened. As many observers have noted, bench trials now greatly outnumber jury trials. Furthermore, many disputes that might have been resolved by judicial machinery are now funneled, at least in the first instance, into other tribunals, such as administrative agencies and arbitration proceedings. Examination of the actual conduct of various types of proceedings reveals a surprising measure of attachment to evidentiary rules and practices that in many respects resemble traditional rules of evidence. This attachment to rules of evidence is of course interesting and important in its own right, but it is also of interest for the light it may shed on the reasons for the use of rules of evidence in jury trials. Traditionally, it has been assumed the exclusionary rules, at least, serve primarily to guard against inaccurate factfinding by juries. The use of rules of evidence in a variety of nonjury proceedings may suggest that the basis of exclusionary rules of evidence does not rest entirely or primarily on epistemic considerations. Conversely, the use in nonjury proceedings of certain types of rules of evidence, particularly those rules apart from the exclusionary rules, serves to highlight the possibility that there are legitimate epistemic considerations that justify resort to those rules even when there is no jury that (we suppose) must be prevented from misestimating the value of the evidence put before it. (We think here of rules quite apart from rules such as those that allocate burdens of proof among the parties. Rules allocating factfinding burdens and responsibilities among the parties establish a kind of general factual framework — a canvas — upon which and through which the parties are required to sketch a different picture by presenting evidence that varies or restores those general initial assumptions about what we must believe happened if we are not given any reason to believe otherwise. These sorts of rules may be necessary in any formal system of adjudication.)

While Professor Davis has argued that the traditional exclusionary rules are generally inappropriate in administrative proceedings, he does not believe that there should be no rules governing the admissibility of evidence in administrative proceedings. As he put it in a letter, he believes that "meaningful evidence must be received in absence of a sensible reason for exclusion." Letter from K. Davis to Peter Tillers (March 16, 1992) (on file with Little, Brown & Co. and with the reviser). And he is quite right in saying that this rule, while different from the traditional exclusionary rules, is a rule. Id.

The gentle Reader may justifiably wonder why a 1992 letter -- from Professor Davis -- appears in a book putatively published in 1983. The answer has to do with the liberties that online databases now permit: Professor Davis' letter and my response to it appear in the online version of the 1983 revision of the first volume of the Treatise.

In the body of Section 4d.1 of my 1981 revision these comments (among others) appear (footnotes omitted):

The widespread use of these various [previously-enumerated] principles does result in a relaxation of the rules of evidence in bench trials, but it is an exaggeration to say that "technical" rules of evidence are inapplicable in bench trials.

First, some states clearly and simply reject the notion that exclusionary rules should be more liberally and freely applied in nonjury trials.

Second, some courts do not take the view that the presumption (described above) implies that the trial judge should apply different standards of admissibility; the presumption is only a peculiar application of the principle that reversal may be had only for prejudicial error. Moreover, the presumption is rebuttable, and a trial judge who admits on the record that he relied on improper evidence will be reversed under this rule if the error is otherwise prejudicial. See note 6 supra.

Third, the right to relax the rules does not give the trial court a parallel right or privilege to exclude evidence that is ordinarily admissible; judgment will ordinarily be reversed if he does so. Hence, the trial court in a bench trial is required to apply exclusionary rules which are more liberal than the ordinary exclusionary rules and which, in any event, are no more restrictive. (It is doubtless not the case that the trial court is required or permitted to admit all evidence the parties may care to offer, however tangential it may be. See discussion in text infra.)

Fourth, codifiers of evidence refused to make any express distinction between jury and nonjury trials even though the argument of the need for the distinction was well known.[fn18] (Professor Davis, among others, expressly urged the Advisory Committee to the Federal Rules of Evidence to make the distinction. His plea went unheeded. See note 3 supra.)

Fifth, the relaxation of the rules permitted in many states does not apply at all to a wide range of evidentiary rules. Thus, for example, privilege rules apply in bench trials[fn19] and the constitutionally mandated exclusionary rules (see, e.g., §§ 815-863 and §§ 2183-2184a infra) apply in bench trials.[fn20] Similarly, rules regarding presumptions, burdens of proof, and the like are applied in bench trials and the rules regarding character evidence in criminal cases are routinely applied. Furthermore, quite apart from constitutional exclusionary rules, many other constitutionally mandated evidentiary rules apply in some fashion in bench trials. Thus, for example, guilt in a criminal prosecution must always be shown beyond a reasonable doubt. See §§ 2497-2497a infra.

Sixth, it seems obvious that procedural rules designed to maintain the integrity of the adversary process in relation to evidentiary matters and to protect the dignity of the parties are applicable in jury and nonjury trials alike.

Seventh, and finally, many trial judges apply exclusionary rules in bench trials as a matter of practice.

All in all, the maxim that technical rules are inapplicable in nonjury trials must be taken cum grano salis.

The principle that strict rules of evidence do not apply in nonjury trials has its primary significance in broadening the standards of relevancy applicable in bench trials and in moderating the exclusionary force of nonconstitutional exclusionary rules such as the hearsay rule. Nonetheless, even in bench trials, trial courts do not admit any evidence a party may care to submit, and the exclusionary force of the principle of relevancy, though greatly moderated, still retains some significance. This in itself is no great surprise and should not be the cause for woe. The lessons of administrative practice (see § 4c supra) teach us that a heavy price may be paid for the absence of significant constraints on the admission of evidence offered by parties. Any system of procedure that vests authority in private parties to conduct a lawsuit must make some effort to prevent the parties from Dickensian efforts to prolong lawsuits in an attempt to frustrate justice; it is not surprising (therefore?) that trial judges in bench trials still may exclude evidence offered by the parties (since even the application of liberal substantive standards of relevancy may suggest that some evidence offered by the parties has relatively insignificant probative value). It is quite another matter to explain the surprising persistence in bench trials of the use of fixed exclusionary rules such as the hearsay rule. The use of such rules is left unexplained by the traditional view of the function of such rules. (See citations in note 1 supra, and see citations and discussion in § 4c supra.) In a bench trial there is no jury and no need to screen out categories of evidence the jury is likely to misestimate the value of. The vesting of the administration of the exclusionary rules in the judiciary rests on the premise that judges, unlike juries, are better able to make reliable estimates of the value of categories of evidence the jury is not allowed to see. In any event, in a bench trial the screener of the evidence is also the factfinder; thus the prophylactic effect of the exclusionary rules is greatly diminished even if we assume that a judge's decision to exclude evidence in a bench trial produces a mental reorientation that frequently leads to some degree of appropriate discounting of the value of the excluded evidence. The argument that the use of exclusionary rules in bench trials saves time is often unconvincing:

[Experience has demonstrated that in a trial or hearing where no jury is present, more time is ordinarily lost in listening to arguments as to the admissibility of evidence and in considering offers of proof than would be consumed in taking the evidence proffered, and that, even if the trier of facts, by making close rulings upon the admissibility of evidence, does save himself some time, that saving will be more than offset by the time consumed by the reviewing court in considering the propriety of his rulings and by the consequent delay in the final determination of the controversy."[Builders Steel Co. v. Commissioner. 179 F.2d 377, 379 (8th Cir. 1950).]

The stubborn persistence of the exclusionary rules in bench trials strongly suggests that the rationale for the various exclusionary rules is not as simple as we sometimes suppose. And, on reflection, we have little reason to be surprised at the failure of those rules to yield to simple logic. Complex social and legal practices such as are reflected in the rules of evidence are never likely to be either explained or justified by reference to a single purpose; and if we focus on the reasons for our attachment to rules of evidence as we now have them, as opposed to trying to justify their use in nonjury trials, we quite plainly have to refer to a number of purposes and interests, none of which may be safely singled out as being predominant, much less as being of exclusive significance and interest. Thus, for example, we cannot easily discount the possibility that lawyers may have an interest in preserving a familiar system of trial and proof. One historical study lends strong support to the thesis that the rules of evidence serve the legal profession's interest in predictable judicial administration of trials. This interest in the use of rules of evidence at trial may not merely be a matter of economic self-interest or intellectual inertia but may derive from deeper and tougher roots, which implicate the legal profession's basic conceptions of the nature of legal authority and of the characteristics that make it legitimate. Professor Langbein, reflecting on the reasons for the use of torture in older systems of trial and the use of plea bargaining in ours, wrote in Torture and Plea Bargaining, 46 U. Chi. L. Rev. 3, 19-20 (1978):

[A] legal system will do almost anything, tolerate almost anything, before it will admit the need for reform in the system of proof and trial. [Medieval torture and modern plea bargaining are] shoddy subterfuges [that are] tenacious [because] they shield their legal systems from having to face up to the fact of breakdown in the formal law of proof and trial.

Why is it so hard for a legal system to reform a decadent system of proof? I think there are two main reasons: nothing is quite so imbedded in a legal system as the procedures for proof and trial, because most of what a legal system does is to decide matters of proof — what we call fact-finding. . . .

The intertia, the resistance to change that is associated with such deep-seated interests [viz., institutions of the legal system that are geared to a particular system of proof] is inevitably reinforced by the powerful ideological component that underlies a system of proof and trial. . . . Because the theory of proof purports to govern and explain the application of the adjudicative power, it plays a central role in legitimating the entire legal system.

There may be less dismal reasons for our attachment to exclusionary rules in bench trials than those Professor Langbein offers. In another context (see § 4c supra), we have suggested that rules of evidence such as the hearsay rule effectively function as preferential rules that force the parties to look for and produce more reliable evidence — a matter of no small concern when the finding and presentation of evidence is largely left in the hands of the parties rather than in those of the court. Furthermore, the critics of the exclusionary rules may have given insufficient consideration to the possibility that many traditional rules of evidence serve important purposes apart from the promotion of accuracy in the factfinding process. (This is an excusable dereliction since traditional scholarship in the law of evidence has made truthfinding the paramount concern. See § 37 infra.) Thus, for example, the hearsay rule may indeed serve to protect (however imperfectly) the primitive notion that one should have the opportunity to confront one's "accuser." Finally, we have already alluded to the possibility that informality in the trial process does not satisfy the community's deep-seated desires that a court act "like a court." (It is quite unclear, however, whether the laity thinks that courts do not act or look like courts if they fail to observe rules of evidence similar to those now in use. Cf. § 4h infra (rules in voluntary associations).)

Now a word about heuristics and rules of evidence. My 1983 comments emphasized that rules of evidence may serve non-epistemic purposes. I did talk there about how rules of evidence may function as rules of preference, a point that Professor Dale Nance has usefully elaborated in great detail. But I shied away from emphasizing that rules of evidence serve may reflect societal judgments about the probative value of evidence. Part of my reason for de-emphasizing this sort of epistemic basis for rules such as the hearsay rule was that at that time in my life -- before 1983 -- I was very impressed with how very slight variations in evidence can dramatically alter the probative value of evidence and how difficult therefore it is to group evidence into broad categories and make defensible judgments about the probative value of such classes of evidence. However, I have increasingly come to think that rules such as the hearsay rule serve the important purpose of forcing at least the trial judge (and also the trial lawyers) to ruminate about the value of proferred evidence by thinking about the fact (for example) that the source of the evidence is not in court. An example of how a rule of evidence -- the inference-on-inference rule -- can be turned into a heuristic procedure is supplied by the Tenth Circuit's treatment of the no-inference-on-inference rule. See The Tenth Circuit Makes Pretty Good Sense of the Inference-upon-Inference Rule

Bungler-Murder Hypothesis 2.1

There is strong evidence that the ex-KGB agent Andrei Lugovoy may be the culprit (or one culprit, in any event) in Litvinenko's death. Polonium 210 has been found on three or four separate planes on which Lugovoy traveled between Moscow and the U.K. Lugovoy himself has radiation poisoning. And "the Russians" won't allow Scotland Yard to interview Lugovoy. Hmmm ... This looks very suspicious. Trotsky redux ... except that this time the killer bungled things and damaged himself as well as the intended victim? Killer Keystone Kops?

I wonder: Does Comrade Lugovoy need time to get his story straight? Or has the Russian government acquired a new respect for the rights of the the ill and the disabled?

You don't think I'm being too cynical, do you? Perhaps Putin is right: This investigation is just a plot to embarrass the Russian government.

Flash: Now it seems that "traces of radiation [have] been found in the UK's embassy in Moscow." See today's Irish Times. What on earth?!?

The Leading Experts on Reasonable Doubt

There is a new book about reasonable doubt:

This book, the publisher's NYTimes Book Review blurb states, contains the views of "85 of our most influential experts."

But I do not see the following names on the list of contributors:

Judge Jon Newman
Judge Jack B. Weinstein
Professor George Fisher
Professor James Q. Whitman

Well, you can't have an essay from every self-appointed expert, can you now? In any event, Jerry Falwell contributed an essay to the book. So did Jayson Blair. These fellows plainly know their law. In any event, they know the law better than, for example, Judge Weinstein does; about this there can be no reasonable doubt.

Coincidence -- or Strong Support for Bungler Hypothesis 2.1?

Today's NYTimes also reports:

In Moscow, the newspaper Kommersant reported that Andrei Lugovi, one of the two Russians who met with Mr. Litvinenko at the Millennium hotel on the day he became sick, said he had flown on one of the contaminated British Airways jets on Nov. 3.

Bungler Hypothesis 2.0 (and Bungler Hypothesis 1.1)

The British police have now uncovered traces of polonium 210 at at least twelve (12) different sites. See today's NYTimes. Assuming that the polonium 210 traces all emanate from the same sample of polonium 210, this new evidence suggests a new variant of the bungler hypothesis: people other than the victim Alexander V. Litvinenko carried a large amount of polonium 210 and bungled doing so. Call this Bungler Hypothesis 2.0

It appears that some traces were deposited days before L's death on an airplane that flew between the UK and Russia. If it is improbable that L flew to Msocow and back to the UK at that time, this bit of evidence greatly strengthens the hypothesis that some bungler apart from L was doing the principal bungling.

It is conceivable that someone traveled with the polonium from Moscow to the UK at L's behest. Call this Bungler Hypothesis 1.1.

One wants to know if the traces of polononium might have been deposited as a result of trips to to the bathroom. In this event presumably a large amount of polonium 210 would not have to have been involved. But if such bodily secretions were the source of the traces at the 12 locations, L probably was not the source -- since he probably did not fly to Moscow and back. Or?

The Bungler Hypothesis

News reports now state that the British police have found traces on polonium 210 at six locations where Litvinenko had been in the hours or days before his death. Does this evidence suggest, not that L committed suicide, but that he himself was wittingly carrying polonium 210 for some reason and somehow mishandled this substance and thereby unwittingly killed himself? If traces of polonium 210 were left by L's movements over a period of days rather than hours, this may strengthen the hypothesis that L was a witting rather than an unwitting carrier of the substance.

Conference on Graphic and Visual Representations of Evidence and Inference in Legal Settings

Cardozo School of Law will host a conference on

Graphic and Visual Representations of Evidence and Inference in Legal Settings

Dates: January 28-29, 2007.

Venue: Cardozo Law School, Yeshiva University, 55 Fifth Avenue (5th Ave. & 12th St.), New York (Manhattan), New York

 

Program

First day (January 28, 2007):

9.00am-9.20am: Welcoming Comments (Tillers)

9.20am-11.00am:

Vern Walker, Visualizing the Dynamics around the Rule/Evidence Interface in Legal Reasoning
Richard Sherwin & Neal Feigenson, Thinking beyond the Shown: Implicit Inferences in Visual Evidence and Argument
Kevin Ashley, Comment

11.00am-11.20am: coffee break

11.20am-1.00pm:

Tim van Gelder, Rationale: A Generic Argument Mapping Tool
Chris Reed, Wigmore, Toulmin and Walton: The Diagramming Trinity and their Application in Legal Practice
Dale Nance, Comment

1.00pm-2.00pm: lunch

2.00pm-3.40pm:

John L. Pollock, Some Puzzles about Defeasible Reasoning
Ron Loui, A Modest Proposal for Annotating the Dialectical State of a Dispute
Richard Lempert, Comment

3.40pm-4.00pm: tea break

4.00pm-5.20pm:

Thomas F. Gordon & Doug Walton, Visualizing Arguments of the Carneades Argumentation Framework
Bart Verheij, Virtual Arguments: On the Design of Argument Assistants for Lawyers and Other Arguers
Marc Lauritsen, Comment

5.20pm-6.30pm: dinner

6.30pm-8.15pm:

Douglas N. Walton, Argumentation Theory for the Law of Evidence
Henry Prakken, Argument Visualisation Software for Crime Investigators: Design and First Experiences
William Twining, Comment

Second day (January 29, 2007):

9.00am-10.40am:

John Lowrance, Graphical Manipulation of Evidence in Structured Arguments
John Josephson, Graphical Display of Evidence and Inference in a Prototype System for Command-Post Information Fusion

10.40am-11.00am: coffee break

11.00am-1.00pm:

David Schum & Jon Morris, Law Comes to the Rescue of Intelligence Analysis: Evaluating HUMINT
Philip Dawid & Amanda B. Hepler, Bayesian Networks for the Analysis of Evidence
Branden Fitelson, Argument Diagrams, Bayes Nets, and Independent Evidence

1.00pm-2.00pm: lunch

2.00pm-3.40pm:

Bruce Hay, Law's Visual Imagination
Priit Parmakson, Can Effective Visual Representations Be Produced Systematically?
Neal Feigenson, Comment

3.40pm-4.00pm: tea break

4.00pm-6.20pm:

Thomas Cobb, Argument Visualization as Jury Reform
Jennifer Mnookin, Visual and Expert Evidence: Rhetorical Connections and Invisible Affinities
Samuel Solomon, Visual Storytelling - Contextualizing Evidence through Visualization Taken from Real Cases
David Tait, Comment

6.20pm-6.35pm: Closing Comments (Prakken)

Conference officials:
Peter Tillers (Cardozo Law School): Conference chair; e-mail address: peter@tillers.net
Henry Prakken (Universiteit Utrecht & University of Groningen): Program chair; e-mail address: henry@cs.uu.nl
Thomas D. Cobb (University of Washington, Seattle): Deputy program chair; e-mail address: tomcobb@u.washington.edu
Jonathan Gottfried: Local affairs coordinator: Jonathan Gottfried; e-mail address: jgottfried@pobox.com"

Panelists:

Kevin Ashley (University of Pittsburgh School of Law)

Thomas D. Cobb
Lecturer
University of Washington School of Law

Philip Dawid
Professor of Statistics
University College London

Neal Feigenson
Professor
Quinnipiac University School of Law

Branden Fitelson
Assistant Professor of Philosophy
University of California at Berkeley

Tim van Gelder
Associate Professor of Philosophy
University of Melbourne

Thomas F. Gordon
Senior Research Scientist
eGovernment Competence Center
Fraunhofer Institut fuer Offene Kommunikationssysteme; web log

Bruce Hay
Professor
Harvard Law School

Amanda B. Hepler
Department of Statistical Science
University College London

John Josephson
Research Scientist
Laboratory for Artificial Intelligence Research
Computer Science and Engineering
Ohio State University

Marc Lauritsen
President
Capstone Practice Systems

Richard Lempert
Eric Stein Distinguished University Professor of Law and Sociology
University of Michigan Law School

Ronald P. Loui
Associate Professor of Computer Science and Engineering
Washington University in St. Louis

John D. Lowrance
Program Director, Artificial Intelligence Center
SRI International

Jennifer Mnookin
Professor
UCLA School of Law

Jon Morris
Affiliate Faculty Member
School of Information Engineering and Technology
Systems Engineering and Operations Research
George Mason University

Dale Nance
Professor
Case Western Reserve University School of Law

Priit Parmakson
Lecturer
Tallinn University

John L. Pollock
Professor of Philosophy and Cognitive Science
University of Arizona

Henry Prakken
Lecturer, Department of Information and Computing Sciences
Utrecht University
&
Professor of Law and ICT
Faculty of Law
University of Groningen

Chris Reed
Senior Lecturer & Assistant Head of Research
University of Dundee

David Schum
Professor
Systems Engineering & Operations Research
George Mason University

Richard Sherwin
Professor & Director, Visual Persuasion Project
New York Law School

Samuel Solomon
Chairman & CEO
DOAR Litigation Consulting

David Tait
Senior Lecturer
School of Law
University of Canberra

Peter Tillers
Professor
Cardozo School of Law
Yeshiva University

William Twining
Quain Professor of Jurisprudence emeritus
University College London Law Faculty &
Professor
University of Miami School of Law

Bart Verheij
Lecturer & Researcher
Artificial Intelligence
University of Groningen

Vern Walker
Professor
Hofstra University School of Law

Douglas N. Walton
Professor of Philosophy
University of Winnipeg

Description of conference:

One of the largest problems faced by criminal investigators, litigators, paralegals, triers of fact, and others interested in disputes about factual questions in legal settings is the sheer mass of evidence available. It is often difficult to remember, retrieve, and interpret voluminous evidential information, and important relationships and inconsistencies may go unnoticed as a result. Tools that support the storage, retrieval, and interpretation of large masses of evidence would therefore be of great use.

Psychological studies have shown that people's ability to remember, retrieve, and interpret information is greatly enhanced when they organize it in a way that is meaningful to them. Scholars of the law of evidence have long suggested that graphical representations of evidential arguments and inferences could help people make sense of masses of evidence. As early as 1913, John Henry Wigmore claimed that his charting method promotes rational thinking about legal evidence. Wigmore had only pencil and paper to draw his cumbersome graphs. Today computer software may make it possible for almost anyone to construct useful graphical representations of arguments and inferences related to large collections of evidence. If such software were combined with with existing database, document management, and search technology, documentary evidence could be stored and retrieved in accordance with the user's view of a case. This would facilitate the transfer of a case file from one person to another because it would make it easier for recipients of files to grasp the signficance of the evidentiary details of a case.

Software for graphical representation of evidential argument is currently being investigated for use in various domains. Argument visualization software has been designed, for instance, to support the teaching of scientific reasoning and critical thinking skills (e.g., Belvedere, Reasonable, Araucaria, Convince Me), to support intelligence analysis, and to facilitate individual or collaborative problem solving (e.g., Questmap, SEAS). Moreover, current artificial intelligence research offers precise accounts of evidential reasoning and thus provides a clear semantics of graphical notations as well as computationall methods.

In the legal domain, fact investigators and litigators increasingly use software that supports the storage and retrieval of information in terms of conceptual and relational networks (e.g., Holmes 2, Analyst's Notebook). As yet, however, such tools offer little or no support for structuring thinking about information: existing software allows users to store evidentiary data in terms of events, objects, actors, and the relations among these things, but it does not allow users to represent how such data support or undermine factual hypotheses.

This interdisciplinary conference brings together scholars and practitioners from fields such as law, philosophy, computer science, artificial intelligence, cognitive psychology, and linguistics. The following topics and issues will be addressed:

• New and current graphical means for visualization of factual inference and proof.
  
• Semantics of graphical notations: what are the underlying theories of evidential reasoning, including jurisprudential, philosophical, psychological, rhetorical, logical, and mathematical theories?
  
• Software tools that are currently available or under development for graphical representation of factual inference and proof.
  
• Potential contexts for the use of such software (e.g., criminal investigation, intelligence analysis, trials, and law teaching).
  
• Can graphical representation of evidential argument support automatic evaluation of hypotheses?
  
• How can current insights into human-computer interactuions be exploited to increase the usefulness of such software; e.g., how can visual complexity generated by large masses of evidence be managed?
  
• Are there pertinent empirical studies and findings about real-world use of evidence-charting methods in legal and other contexts?
  

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Drafts and abstracts of some or all papers will be made available online at http://tillers.net/conference.html shortly before the conference begins. Final versions of the papers will be published in Law, Probability and Risk in 2007 and 2008.

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The public is warmly encouraged to attend the conference. Advance registration is not required and there is no registration fee. However, there will be a charge for any lunches or dinners that attendees elect to take at the site of the conference, at Cardozo Law School. If you are not a panelist and would like to join us for any lunches or dinners at Cardozo, please RSVP to the address shown below by January 15, 2007, and indicate which meals you wish to purchase, enclosing payment of $35 for each. Please make checks payable to Cardozo School of Law. Send payment to

Alisa Norr
Legal Secretary
Friedman Kaplan Seiler & Adelman LLP
1633 Broadway, 46th floor
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United States

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A Time-Space Line in the Litvinenko Investigation

The NYTimes reports today:

The British police on Sunday sought to retrace the movements of Alexander V. Litvinenko, a former Russian secret agent, before he fell ill from the radiation poisoning that killed him last week.

Naturally I wonder if the British police are using a computer to display the space-time lines they construct. See conference on graphic and visual representations of evidence and inference in legal settings.

A Largely-Forgotten Crime

The partisans fighting for Chechen independence have committed some appalling atrocities. However, I think it only right to record that Chechens were the victims of of a great and largely-forgotten crime. Consider Anne Applebaum, Gulag: A History pp. 427-429 (Doubleday 2003):

The Soviet authorities had "trustworthy information" [during WWII] that there were thousands of spies, yet no spies had been reported. Ergo, everybody was guilty of hiding the enemy.

The "collaborators" included several small Caucasian nations--the Karachai, the Kalmyks, the Chechens, and the Ingush--as well as the Crimean Tartars and some other small minority groups: Meskhetian Turks, Kurds, and Khemshils, as well as even smaller groups of Greeks, Bulgarians, and Armenians. Of these, only the Chechen and Tartar deportations were ever made public in Stalin's lifetime. ...

[T]here is no evidence of massive Chechen or Tartar collaboration. ... An NKVD report from the time speaks of only 335 "bandits" in the [Chechen] republic. ...

In fact, Stalin's aim, at least in deporting the Caucasians and the Tartars, was probably not revenge for collaboration. He seems, rather, to have used the war as a form of cover story, as an excuse to carry out long-planned ethnic-cleansing operations. ... All the evidence seems to indicate that Stalin simply wanted to wipe his hands of this troublesome, deeply anti-Soviet people.

...

If anything, the Chechen [deportation] operation was crueler [than the Tartar deportation operation]. Many observers remember that the NKVD used American-made Studebakers in the Chechen deportations, recently purchased through the Lend-Lease program, and shipped over the border from Iran. Many have also described how the Chechens were taken off the Studebakers, and placed into sealed trains: they were not only deprived of water, like "ordinary" prisoners, but also of food. Up to 78,000 Chechens may have died on the transport trains alone.

...By 1949, hundreds of thousands of the Caucasians, and between a third and a half of the Crimean Tartars were dead [from disease and physical hardship].

But from Moscow's point of view, there was one important difference between the wartime waves of arrest and deportation, and those that had happened earlier: the choice of target was new. For the first time, Stalin had decided to eliminate not just members of particular, suspect nationalities, or categories of political "enemies," but entire nations--men, women, children, grandparents--and wipe them off the map.

Perhaps "genocide" is not the proper term for these deportations, since there were no mass executions. ... "Cultural genocide," however, is not inappropriate. After they had gone, the names of all the deported peoples were eliminated from official documents... The authorities wiped their homelands off the map... Regional authorities destroyed cemeteries, renamed towns and villages, and removed the former inhabitants from the history books.

Disclosure:

In evaluating my assessment of the evidence in the Litvinenko case, you should take into account that I was born in Riga, Latvia, and that my maternal grandparents were deported to Siberia in June of 1941, shortly before the German invasion of the USSR began. The mode of transportation: Railroad cattle car and barge. Result: Death within a year.

Tracing the Original Source of the Polonium 210

The Guardian reports:

What are the main lines of inquiry?

The [UK] security services will focus on where the polonium 210 came from. If it was made in a nuclear facility, it will contain traces of other radioactive isotopes that could identify the facility.

Is This Keystone Cops Story True?

Eric Margolis of the Toronto Sun writes (emphasis added):

During 1999, Moscow and a provincial city were racked by a series of apartment building bombings that killed 300 people. Panic swept Russia.

The bombings were blamed on "Chechen Islamic terrorists." But Moscow police caught a team of SVR [Russian intelligence agency for foreign affairs] agents red-handed planting explosives in a residential building. The agents claimed they were running a "security test."

Question: Is this story true?

A nuclear reactor may have been required to kill Litvinenko

Acording to the NYTimes, 11/24, a nuclear reactor would be required to produce the amount of polonium 210 reportedly found in Alexander V. Litvinenko's (dead) body:

[M]aking the "significant quantities" described in Mr. Litvinenko's body by the British Health Protection Agency would require a nuclear reactor that could bombard the element bismuth with neutrons.

"To most chemists, this is astonishing," said Dr. Andrea Sella, a lecturer in inorganic chemistry at London’s University College. "This is not available commercially."

"This is not the kind of weapon that any kind of amateur could construct," he added. "It would require real resources to do it."

Polonium 210 is "extremely hard to detect"

Associated Press reports that polonium 210, which was used to kill Alexander V. Litvinenko, is extremely hard to detect. See CNN.com, Nov. 24, 2006.

A Big Power Spy-and-Statecraft Puzzle

What an interesting case.

His name is Alexander V. Litvinenko.

He is dead.

He claims -- that is, claimed before his death [it is said] -- that Putin ordered his death.

Before we talk about the material that killed him, consider the possible motivation.

Mr. Litvinenko at one point said, I believe, that the bombings of some residential buildings in Moscow -- Was it Moscow? -- were a ruse. He charged (did he not?) that the Russian secret service or some such agency actually did the bombing(s) with the plan to blame the bombing(s) on Chechen rebels.

The bombing did take place. I remember newspaper and media accounts immediately thereafter blamed it on the Chechen rebels.

Mr. Litvinenko was himself once a Russian intelligence agent.

What killed Mr. Litvinenko? It was, today's NYTimes reports, polonium 210, which is a "rare and hard-to-produce substance" and "dangerous when breathed, injected or ingested."

For the sleuth, the rare nature of polonium 210 should be an advantage. For example, does it take certain very expensive equipment to produce? Do only a few people know how to make it? Does it leave telltale radioactive traces when it is transported in, say, a suit case? Does a particular sample have a kind of signature? What is this stuff polonium 210?

Ancient facts: Stalin deported, it is said, the entire population of Chechnya during WWII. But the Chechens get little sympathy in the rest of the world, let alone in Russia. Do they deserve all of the hatred they get? Is some of their militaristic activity a prediction made true? Are Chechen rebels freedom fighters? How should we think about them? Does it matter -- for purposes of our little (big?) spymaster riddle?

Let's get more facts.

Putin rejected the family's charge of murder. Does his denial have any probative value? What say you, Richard Friedman?

Does it matter whether Putin's denial was "vehement"? How are we to know whether Putin denied the charge vehemently? By how red-faced the Russian spokesmen were when they made denials on his behalf? Did Putin make a denial in person -- e.g., before the cameras at the EU-Russia conference?

Read on, ptillers!

NYTimes today: "Mr. Litvinenko's slow and inexorable death was among the most bizarre since Georgi Markov, a Bulgarian dissident, was murdered in London with a jab from a poison-tipped umbrella in 1978."

What would motivate someone to kill someone with a substance such as polonium 210 rather than with, say, rat poison or mercury or lead or arsenic? Was a message being sent? Or is polonium 210 harder to detect and trace?

Read on, ptillers.

NYTimes: "Doctors said that the Ukrainian president, Viktor A. Yushchenko -- who campaigned in 2004 to move Ukraine away from Russian influence and forge closer ties with the European Union -- was poisoned with dioxin when he was running for office, leaving his face badly disfigured. Russia, as well as an array of Mr. Yushchenko's political adversaries, was suspected in the poisoning, but the matter was never resolved."

Do only intelligence agencies use small quantities of rare radioactive substances to kill their targets? How would we know if that is the case?

Read on, ptillers.

NYTimes today: "The police searched several locations that Mr. Litvinenko had visited in early November -- the Itsu sushi bar on Piccadilly, his home in the white-collar Muswell Hill neighborhood of north London and the Mayfair Millennium Hotel near the American Embassy in Grosvenor Square -- and said they had found radioactive traces at each of them."

Now this is interesting.

We need some time lines -- both big and small.

We need a time (and space) line of Mr L's movements over the last few weeks and perhaps months. We also need a timeline of his adult life, do we now?

Rogue intelligence agents are a possibility.

Another possibility: An intelligence agent (Russian?) with a purely personal animus against Mr. L.

Another possibility: An elaborate suicide hoax (but the death was no hoax).

Ah now, this tidbit from the NYTimes is very important:

A British counterterrorism official said polonium 210 was a byproduct of the nuclear industry and is used in the production of antistatic materials. But in the form believed to have been used in the suspected poisoning, it would have required high-grade technical skills and a sophisticated scientific process to produce, probably within a nuclear lab.

Nuclear labs? What kind? The kind that universities operate? Something more elaborate? A nuclear weapons plant?

Note: NYTimes on Mr. L's personal past and also on alleged Russian skullduggeryuggery in creating bombing incidents to whip up enthusiasm for the second Chechen war (the 1999 war):

Mr. Litvinenko was a former operative in the K.G.B. who became a colonel in its successor organization, known by its Russian initials as the F.S.B. In the late 1990s, Mr. Litvinenko said publicly that he had been ordered to assassinate Boris Berezovsky, an exiled Russian tycoon, but had refused to do so. He fled to Britain and secured British citizenship earlier this year. In 2003, he wrote a book accusing the Russian secret service of orchestrating apartment house bombings in Russia in 1999 that led to the second Chechen war.

'Tis true that Soviet intelligence agents (and agents of ministries such as the "Interior Ministry") have a long history of agitprop, which sometimes took the form of staging violent incidents that could bebe blamed on chosen targets. Some people have said the Soviets learned these tricks from the Nazis. Or was it the reverse? In any case, the tactics were used by Soviet actors even in the Baltics in the early 1990s. But the Balts knew, of course, who was doing what. Unclear if the senior Bush saw through the ruses.

Ah, Putin charges that L's death was a political act by Russia's enemies:

Mr. Putin found himself on the defensive when he appeared in Helsinki, Finland, after a meeting with leaders of the European Union, as he had been when he traveled in Europe following the death of Ms. Politkovskaya.

He called Mr. Litvinenko's death a tragedy, but suggested that there was "no indication that it was a violent death," citing what he said was a British medical report. He called for an investigation and pledged the assistance of Russian authorities.

"I hope that the British authorities will not contribute to the fanning up of political scandals having no real grounds," he said in remarks televised in Russia.

Mr. Putin also brushed aside the significance of Mr. Litvinenko's poisoning, suggesting his death was being used for political purposes.

"Those who did it are not the Lord, and Mr. Litvinenko is not Lazarus," he went on. "It is regretful that even such a tragic event as the death of a human being is being used for political provocation."

Note: Putin himself was a Soviet intelligence agent stationed in East Germany. He must have known about dirty tricks, even if he did not personally perpetrate them.

Is the following a coincidence?:

Andrei Lugovoi, a former K.G.B. colleague who met Mr. Litvinenko in London, denied in a radio interview on Friday that he or a colleague, Dmitry Kovtun, had any part in poisoning him. Speaking on Ekho Moskvy, an independent Russian radio station, Mr. Lugovoi said that he and Mr. Kovtun had met Mr. Litvinenko at a hotel in London on Nov. 1, the day he fell ill, and had discussed business for 20 to 30 minutes.

"He did not order anything," he said. "We did not pour anything for him."

Do I have the patience to unravel this puzzle? Do you? The FSB?

In any event: problems of evidence are everywhere, and this one has pizazz.