Sorting Out YourThoughts about a Case (or a Possible Case)

Here is a device -- part of a system -- for sorting out, or organizing, your thoughts about a case or possible case:

Loose Thoughts Stack (Windows)

Loose Thoughts Stack (Mac OSX)

This stack -- "Loose Thoughts" -- is one element of the experimental software MarshalPlan 2.1.

Stay tuned for further developments.

Japan's Minister of Justice on Trial by Jury and Capital Punishment

David McNeill, Justice Minister talks in death-penalty riddles, Japan Times Online (Jan. 27, 2008):

In an interview in Weekly Asahi [Justice Minister Kunio Hatoyama] called the jury system "an imitation of foreign countries," and added, "I believe it is being enacted in Japan because it is being done overseas. I think it will be great if the system works well, and that it should be re-evaluated."

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[In another interview Justice Minister said:]

As the Japanese place so much importance on the value of life, it is thought that one should pay with one's own life for taking the life of another. You see, the Western nations are civilizations based on power and war. So, conversely, things are moving against the death penalty. This is an important point to understand. The so-called civilizations of power and war are the opposite of us. From incipient stages, their conception of the value of life is weaker than the Japanese. Therefore, they are moving toward abolition of the death penalty.

It is important that this discourse on civilizations be understood.

All clear?

Legal Transplants from Abroad in Japan; Police Treatment in Japan of Criminal Suspects in Custody

David McNeill, Citizens routinely denied legal rights, Japan Times Online (Feb. 2, 2008):

[Constitutional] safeguards [of the rights of criminal suspects] are interpreted by Japanese courts in a way that makes them virtually meaningless.

The provisions were drafted by the postwar Allied Occupation, with the goal of creating an "adversary system of justice" along American lines: Investigating and gathering evidence should be separated from considering evidence and deciding a case; judges should be removed from the investigating function; and prosecution and defense must enjoy equal opportunity to present evidence.

This reform was a radical change from the prewar system in which prosecutor and judge were not clearly separated, and defendants were seen more as part of an inquisitorial process than a neutral rehearsal of evidence and fact.

Says [Lawrence] Repeta [Omiya Law School Professor]: "Many observers agree that what we have today bears a closer resemblance to the prewar system than the adversary system envisioned by the drafters of the Constitution. Judges question witnesses aggressively when they wish, and prosecutors play a dominant role, with defense lawyers typically in a minor role in trials."

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So who will protect the suspect [in criminal cases in Japan]? Well, in Japan it will be the police, according to new interrogation rules issued this week in the wake of the Kagoshima and Toyama cases. From April, detectives will be explicitly forbidden from striking, shaking or even touching someone in custody, or from using words "likely to embarrass or make a suspect feel uneasy," harming their dignity or promising lighter treatment in return for a confession.

The new guidelines suggest that the impact of jury trials is already being felt: The police are "mindful," says state broadcaster NHK, that juries who mistrust the police could undermine trials. But the monitoring will be internal, and the police are still refusing to cede a key demand from the Japan Federation of Bar Associations: The videotaping of interrogations.

"There is no change in a system where insiders check other insiders," Hokkaido University Professor Yuji Shiratori told Kyodo News on Friday.

Rap Music Lyrics as Evidence of Guilt in Criminal Trials

See Andrea L. Dennis, Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence, 31 Columbia Journal of Law and the Arts 1 (2007).

The article has some delicious, or appalling, quotations from training manuals for prosecutors. (Training manuals for trial lawyers display the law's equivalent of the relationship between lawmaking and meat processing.)

The use of rap lyrics as evidence in criminal trials is fertile soil for the cultivation of devilishly-difficult (and interesting) essay exam questions. Students, you are hereby forewarned.

Time and Evidence

Time is involved in a number of important and separate ways in fact investigation, evidential argument, and evidence assessment in legal settings (and probably in many other kinds of settings):

1. Time and Fact (a/k/a Evidential) Investigation

A. The history of an investigation (including investigative paths not taken as well as those taken)
B. Guesses or predictions about the discovery of evidence through future action

2. Time and Events at Issue

A. The (possible) sequence of events at issue in time
B. The causal nexus between events at issue in time

3. Time and Sources of Evidence

A. The (possible) sequence of events pertaining to states of sources of evidence (such as "human sources," human beings)
B. The causes of changes over time in the states of sources of evidence

4. Time and Deliberation

A. The order of receipt of evidence by (or submission of evidence to) the fact finder or decision maker
B. The sequence of deliberation by the trier of fact or decision maker

5. Time and Mind (a/k/a Judgment)

A. Changes in the trier's or decision maker's recollections, sentiments, and similar matters that affect evidential assessment
B. Temporal causes of such changes in the mind or judgment of the trier or decision maker

A system to facilitate or support fact investigation, evidential argument, and evidence assessment should be sensitive to these various perspectives on evidence, to these various ways of organizing evidence and thinking about evidence. I pledge that future iterations of MarshalPlan will (eventually) incorporate (all of) these various ways of marshaling evidence and thinking about evidence.