Hackneyed Thinking about the Hearsay Rule

The New York Times reports that the Obama administration is considering preserving the military commissions in some form. Part of the motivation for that, it is said, is this: "Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies."

It is unfortunate that we have not yet drawn the right lessons from the Guantanamo-Military Commission experience. One of the notions held by the Bush administration people who set up the commissions was that judges, courts, lawmakers, etc., are naive in their treatment and distrust of hearsay evidence. Like first year law students (and many of their teachers blissfully unburdened by any on-the-ground experience in law enforcement or criminal justice), these "reformers" were bold and believed that any rational dummy knows that hearsay evidence is often worth quite a lot.

What our experience with the commissions should teach us is that hearsay evidence is often worth very little and that its use in adjudication presents serious problems. Any dummy who has just a bit of experience in investigation and litigation should know that. It is not easy to figure out how to sort hearsay wheat from hearsay chaff. But it is important to make the effort. Otherwise we will continue to have imprisonment for years on end on the word of the legendary Afghan goat herder resentful of his neighbor and eager for economic self-advancement.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

MarshalPlan 2.5

How many lives does a cat have?

I have tweaked MarshalPlan once again. There is now a better chance than ever that the user will not get stuck in a "stack" with no way to navigate through the stack. (But now and then you will still have to utter an expletive and just exit the stack. You have my sympathy in advance, and I, I trust, your forgiveness [in advance].)

Oh yes: I am indeed talking about my evidence marshaling software.

Below is some 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 2.5) -- 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, 2.4, and 2.5 are more than mere scratchings on a page that state in words (text) how a MarshalPlan application might work.

MarshalPlan 2.5 is a software application based on the user-friendly programming language Revolution Enterprise(tm). This application -- MarshalPlan 2.5 -- 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 2.5 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.)

Alternatively, if your computer uses Windows, go to this link and download and run this standalone program.

If your computer has a different operating system (e.g., Linux or one of the Macintosh/Apple operating systems) go to this link, open the appropriate folder, and download and run the file "Network".

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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 2.5.

To get that some of that theory and those explanations (but not all of it) 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 truly 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. (Otherwise resort to expletives. You have my permission.)

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 2.5 is not set up to be linked to a database. This is a most serious deficiency.

But -- in my defense -- I repeat: MarshalPlan 2.5 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

An Indirect Comment on the Cognitive Capacities of Jurors?

Adele Conover, "To Fathom a Colony’s Talk and Toil, Studying Insects One by One," NY Times (April 28, 2009):

"'It’s fascinating that many cognitive functions — learning, planning, using tools — can be solved by brains several orders of magnitude smaller than ours,' Dr. [Anna] Dornhaus said. 'It shows that we should never underestimate an animal because it is small.'"

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law