Release of MarshalPlan 2.4 -- A System for Marshaling Evidence in Legal Settings

I have further tweaked the "stacks" (files) in my evidence marshaling software MarshalPlan: I have added brief spoken explanations about the purposes of some of the stacks.

I call my slightly-revised software MarshalPlan 2.4 (as opposed to MarshalPlan 2.3).

Below find general information about MarshalPlan and instructions for downloading the software.

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Years ago David Schum and I developed the notion of an evidence marshaling system. We laid out the underlying theory of this evidence marshaling system in A Theory of Preliminary Fact Investigation. We developed a kind of computer embodiment, or computer-based expression, of our idea of an evidence marshaling system. Eventually we decided to call our system "MarshalPlan".

More than one year ago I released MarshalPlan 2.2. This moniker -- MarshalPlan 2.2 (now 2.4) -- amounts to a bit of self-mockery: MarshalPlan 2.x is not a prototype of a working application suitable for "real-time" use. Far from it! However, MarshalPlan 2.2, 2.3, and 2.4 are more than mere scratchings on a page that state in words (text) how a MarshalPlan application might work.

MarshalPlan 2.4 is a software application based on the user-friendly programming language Revolution Enterprise(tm). This application -- MarshalPlan 2.4 -- illustrates -- with images, fields, buttons (links), and so on -- how a computer program to support the marshaling and assessment of evidence in preparation for possible trials and also for the conduct of trials, might work.

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To retrieve MarshalPlan 2.4 click on this link. Download all of the Revolution stacks into a single folder on your computer. These stacks all have the suffix "rev". To make these stacks run properly you need a "Revolution Player." To get this free player go here and download the version of the player (either Windows or Mac OSX) that you need. Then drag-drop the "Network.rev" icon onto the "Revolution Player" icon or open the Revolution Player icon and then open the Network.rev stack, or file. You should be in business now: the buttons, or links, in the various stacks should allow you to navigate between the stacks as well as within the stacks. (However, it is possible you will have to drag-drop all of the stacks onto the Revolution Player icon if you wish to navigate between the stacks. Please let me know if this turns out to be the case.)

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SOME VERY IMPORTANT CAVEATS: There are numerous very serious flaws in the software application that you will retrieve by clicking on the links found above, and the application that you will retrieve has numerous gaps and limitations, including the following:

1. In the application itself there is very little explanation of the theory underlying the evidence marshaling strategies that are embedded in MarshalPlan 2.4.

To get that theory and those explanations you will have to (i) read the article I mentioned earlier, A Theory of Preliminary Fact Investigation, and (ii) wander about my personal web site. If you want a comprehensive theory-laden explanation of MarshalPlan, you will have to invite me to give a leisurely talk (preferably on a tropical island or some other attractive venue).

2. Some buttons and links don't work. When that happens, try other buttons and links.

3. Some important stacks are entirely missing. E.g., the "Narratives" stack. The most important missing stacks are those having to do with the development of evidential argument from evidence to factual propositions and with the assessment of the probative value of the evidence. For a discussion of the methods that might be used for this purpose, see Special Issue on Graphic and Visual Representations of Evidence and Inference in Legal Settings, 6 Law, Probability and Risk Nos. 1-4 (Oxford University Press, 2007).

4. MarshalPlan 2.4 is not set up to be linked to a database. This is a most serious deficiency.

But -- in my defense -- I repeat: MarshalPlan 2.4 is NOT a prototype of a working software application, suitable for use in real-time contexts.

MarshalPlan is, instead, an elaborate visual illustration of some of the directions that development of software for marshaling evidence in legal settings should take.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Visual Aids & Visual Sketches during Closing Argument

Question 1: How often do trial lawyers, during closing argument, use visual aids -- diagrams, charts, models, digital images, and the like -- that were not admitted into evidence during the submission of evidence at trial?

Question 2: How often do trial lawyers, again during closing argument, use sketches or other visual aids to depict their arguments about the evidence in the case?

If anyone out there has any anecdotes or other information, I would very much like to hear from you.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Kudos to International Commentary on Evidence on Its 10th Anniversary -- and Kudos to Its Editors, Craig Callen, Sean Doran & John Jackson

A new special issue has just been published in International Commentary on Evidence

The special issue celebrates the 10th Anniversary of ICE by featuring a number of essays on important evidentiary developments from a comparative perspective in the period since ICE was established. The Table of Contents and brief descriptions of the articles are below.

Readers can access all the articles at no charge.

International Commentary on Evidence

Introduction
• Founding editors Craig R. Callen, Sean Doran, and John D. Jackson reflect briefly upon the establishment of ICE and how it has developed in the previous ten years. "Evidence during the Ten Years of ICE"

Articles

• Erica Beecher-Monas of Wayne State University discusses the increasingly antithetical approach to expert testimony by courts, and how this is imposing unacceptable costs on the entire justice system. "Paradoxical Validity Determinations: A Decade of Antithetical Approaches to Admissibility of Expert Evidence”

• Andrew Roberts of University of Warwick provides a critical analysis of some of the more notable procedural developments relating to eyewitness identification evidence over the past decade. "Eyewitness Identification Evidence: Procedural Developments and the Ends of Adjudicative Accuracy"

• Pamela J. Schwikkard of University of Cape Town looks at the status and application of the right to remain silent in a number of common law jurisdictions, favoring the rationale that this right assists in preventing the abuse of public power. “The Muddle of Silence”

• Roger W. Kirst of University of Nebraska College of Law describes how confrontation doctrine was changed in the last decade by Crawford and the Court's subsequent decisions in Davis v. Washington and Giles v. California. He goes on to discuss other confrontation issues the Supreme Court will face in future cases. “A Decade of Change in Sixth Amendment Confrontation Doctrine”

• Myrna S. Raeder of Southwestern Law School reviews the history of advocacy on behalf of adult and child female victims of rape and other sexual assaults, focusing on both long term and short term trends. “Litigating Sex Crimes in the United States: Has the Last Decade Made Any Difference?”

• Johannes F. Nijboer of University of Leiden discusses three dimensions of generality in evidence and procedure. He examines the trend across disciplines and professions, national boundaries, and with respect to specific crimes. “Current Issues in Evidence and Procedure - Comparative Comments from a Continental Perspective”

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PT: In this blog I have occasionally sermonized about the importance of imaginative and entrepreneurial legal scholarship. International Commentary on Evidence is a perfect example of what I have in mind.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Additional Scattered Thoughts on "Inbred" Inference, Tacit Inference, Explicit Inference, and One or Two Possibly-Related Matters

Some knowledge is tacit. But that does not mean all tacit knowledge is inborn, inherited. Some tacit knowledge is surely learned. But all learned knowledge (including learned tacit knowledge) may depend, not only on the lessons of experience (and, sometimes, on self-conscious efforts at learning), but also on some inborn tacit knowledge, some inbred and inherited brain wiring; i.e., perhaps the acquisition of knowledge cannot begin ex nihilo. [But this last supposition creates an infinite regress problem, no?].

Some knowledge involves explicit knowledge. But it does not necessarily follow that a given body of developed explicit knowledge (even esoteric explicit knowledge -- e.g., mathematically-formulated knowledge about the world) altogether avoids reliance on tacit knowledge. For example, perhaps the predictions of a physicist, some other learned person, or artillery officer about the trajectory of a projectile fired from a cannon ordinarily depend on a certain amount (perhaps a large amount) of tacit knowledge as well as on explicit calculations involving Newtonian mechanics, friction coefficients, and other such matters. (But it is possible -- is it possible? -- that some explicit human knowledge can be fully automated by being deposited into an autonomous non-human device -- i.e., that such knowledge may take the form of a fully autonomous robot whose intended operations never require or depend on human intervention.)

Can expressly-formulated principles improve the inferential performance of a device -- be that device mechanical or biological -- whose inferential processes are imperfectly, only partially, understood?

Consider recipes for batters in baseball games. Can expressly-formulated recipes, maxims, or precepts for batters "work"? (Plainly such recipes -- "Keep your eye on the ball!", "Watch the pitcher's grip!", etc. -- do not fully capture or express the way a batter's brain, eyes, etc., work to lead the batter to draw certain inferences -- very quickly! -- about the velocity and trajectory of the ball that he or she hopes to hit out of the ballpark.)

Consider, alternatively, rules built into thermostats -- e.g., "Thermostat, turn on switch X when sensor B shows t-1 or less; but turn on switch Y when sensor B shows t +1 or more." Can such a rule work if the physical processes by which the thermostat's sensors detect signals are not perfectly understood? (The answer would seem to be "yes." What are the implications of that?!)

I realize my ruminations here are primitive, probably even sophomoric. So forgive me for that. I am taking the liberty of doing some exploratory thinking "out loud." Later (probably only much later) I will make an effort to be more systematic.

N.B. The scholarship of Nancy Cartwright and the fuzzy logic-based science of Lotfi Zadeh have an important bearing, I think, on the questions I am raising here. And so does, of course, the vast body of learning now being produced by that vast army of scholars who are carefully studying the neurobiological, neurochemical, neuroelectrical [and neuromagnetic?] computational processes of the human animal. The next generation will be much better equipped than this one to tackle some of the epistemological and inferential puzzles that have bedeviled logicians, philosophers, epistemologists, psychologists, and legal scholars for many, many years.

A further N.B.: I have been talking here, once again, about the phenomenon and puzzle of partial knowledge. I also think I have also been viewing -- have I not? -- the human creature as an organism. These ways of thinking about the human situation have implications for attempts at conscious regulation of inference.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Brief Reflections on Association, Causation, and Inference

In 1988 Professor Richard Wright published an important article: Richard W. Wright, "Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof: Pruning the Bramble Bush by Clarifying the Concepts," 73 Iowa Law Review 1001 (1988). See also Richard W. Wright, "Once More into the Bramble Bush: Duty, Causal Contribution, and the Extent of Legal Responsibility," 54 Vanderbilt Law Review 1071 (2001). Although the prose in Wright's 1988 article was dense and difficult, one of Wright's general ideas was clear, interesting, and important: There is no valid statistical inference without causal reasoning. In recent decades this position has also been taken by the prominent computer science theorist Judea Pearl. See, e.g., Judea Pearl, The Art and Science of Cause and Effect (lecture [with slides], October 29, 1996).

If one has a certain ontology -- that is, if one entertains certain basic beliefs about the underlying structure of the world -- there is something irresistible about the idea of a necessary link between causality and inference. However, the demand for a link between inference and causality can also have a paralyzing effect -- because more often than not the knowledge that human beings have of causes is imperfect and often that sort of knowledge seems destined to remain imperfect.

Yet, it seems hard to resist the conclusion that without some tenable theory of the way one or more things are connected to another thing or things, no probative or inferential weight can be given to any observed associations of events in the world (and that this is so whether or not statistical language and concepts are used to describe those associations).

So how are we (theorists of evidence and inference) to wrestle our way out of this conundrum? I am not sure. But my strong guess is that we have to focus on the notion of what used to be called tacit knowledge, on subconscious perceptual and cognitive processes. The general idea is this: Our brains know more than we do. That is to say: Human knowledge does not consist only of conscious knowledge, or knowledge that human beings have been able to express explicitly.

It must or might be the case, I think, that the brain (i.e., the human neurobiological system) somehow comes to have embedded within it some pretty good working hypotheses about the causal structure of (some parts of) the world and that when the human organism observes certain patterns of events, these embedded tacit hypotheses are brought into play and channel (or influence) the conscious judgments that human beings make about whether some pattern of events or association of events does or does not "validly" matter to the inferences human beings should draw, or can "validly" ("logically") draw, on the basis of their observations of events in the world.

That's the general direction in which my thinking is moving. However, if that's the way inference generally works, numerous puzzles remain. One of the biggest ones is what role conscious reasoning can play if much or most of human knowledge is "tacit," literally subconscious. Another problem (related to the first) is to explain how some human beings have managed to make darned good predictions in some domains by deploying complex conceptual constructs and operations (e.g., quantum theory, calculus, and the like), explicit constructs and operations that did not come into those human beings' brains with their mothers' milk (or milk bottles).

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law