Friday, December 08, 2006

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?

Thursday, December 07, 2006

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

    Wednesday, December 06, 2006

    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?!?

    Sunday, December 03, 2006

    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.