Some Evidence of a Cause of the Concentrated Trial: A Lesson from Japan

Gavin Blair, "A new day for Japanese justice, Here comes the (lay) judge," GlobalPost (June 14, 2009):

In a radical change to Japan's modern justice system, lay judges will now be involved in trials of serious crimes: Six lay judges will sit on the bench alongside three professional judges at trials.

{snip, snip, snip}

One beneficial side effect of the changes will likely be a faster criminal justice process, as the current practice of spreading trials out over months, and sometimes years, will end.

“Judges sometimes work on dozens of cases at a time, sitting one day a month on each trial, spending the time between reading case documents,” [Hiroshi] Kawatsu [a trial attorney who heads the Japan Federation of Bar Associations’ (JFBA) Research Office for Judicial Reform] explained. The need for lay judges to return to their normal lives will make this impractical, and Japan is thus adopting a more focused approach to pre-trial procedures and evidence.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Japan's Mixed-Court Trials Soon to Swing into Action

See "134 so far to stand trial by lay judges," Japan Times Online (June 22, 2009).

The very first trial involves a killing caused by plastic bottles filled with water:

The first [trial], involving a 72-year-old man charged with murdering a neighbor, is scheduled for Aug. 3 to 6 at the Tokyo District Court.

Katsuyoshi Fujii allegedly stabbed Haruko Bun, 66, a South Korean resident of Japan, to death May 1 on a road in Adachi Ward.

Fujii has allegedly told the police he lost his temper after some plastic bottles filled with water in front of his home were knocked over by a motorcycle owned by Bun's son.

Many people place plastic bottles around their garages, gardens and planters under the false belief that light reflected from them will scare off stray cats.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Quantifying Doubt in Criminal Trials

In his article "In Two States, a Lower Bar for Conviction" Adam Liptak of the New York Times writes:

A unanimity rule [for jury verdicts in criminal trials] would seem to reinforce the requirement that prosecutors prove their cases beyond a reasonable doubt. Two jurors out of 12, if you do the math, represent about 16 percent of the panel. That’s a fair amount of doubt.

This eminently silly statement proves that you can do sums and fractions and still produce ridiculous propositions. For example, would Mr. Liptak conclude that if a jury of twelve convicts, it is certain that the accused is guilty? Or does he think that each juror's amount of doubt should be measured and then averaged to determine how much doubt there "was"? Perhaps a successor to C.P. Snow should write a book called THE THREE CULTURES. There are people who are in the sciences. There are people who are in the humanities. Then there are people who...

Robert McNamara, who died today, also knew how to do his sums and fractions back in the 1960s. But his computations (which involved the number of enemy fatalities in the Vietnam war) were, for various reasons, largely meaningless.

The rest of Mr. Liptak's article is more interesting (and sensible).

If Justices Scalia and Thomas cling to their original intent mantra, they will rule that the Sixth Amendment requires unanimous jury verdicts for convictions in criminal trials. The question is whether three other Justices will endorse this bottom line.

Incidentally, wouldn't Scalia and Thomas also have to endorse a unanimity requirement and twelve member juries for the trial by jury that is guaranteed by the Seventh Amendment in some civil trials?

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Release of MarshalPlan 3.0

MarshalPlan (my evidence marshaling software) now has a complete set of evidence marshaling stacks.
In particular, MarshalPlan now has a "probative value" stack (as well as recently-developed stacks for (i) assessment of the credibility of witnesses, (ii) laying out the sequence of important actions and events during prelitigation investigation, during pretrial investigation, and during the process of proof at trial, and (iii) developing and assessing narratives, stories).
The new "probative value" stack supports the development of inferential argument based on evidence and the assessment of the force of such argument.

Although I have now provided a (helpful) stack for assessing the probative value of evidence, I do not pretend that the "probative value" stack provides a comprehensive explanation of methods of sketching argument about and from evidence. For detailed 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).

I am sometimes called a Bayesian. However, the probative value stack I have developed uses no numbers whatever. This reflects my view -- one that I share with David Schum -- that the structuring of argument about and from evidence is logically prior to any quantitative assessment of argument about and from evidence. Moreover, I believe that one can usually meaningfully assess the strength of evidential inference without using numbers to express one's judgment about the degree of the uncertainty that attends any argument about and from evidence.

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Please follow the instructions found below to download MarshalPlan 3.0.



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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 3.0) -- 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, 2.5, 2.6, 2.7, 2.8, and 3.0 are more than mere scratchings on a page that state in words (text) how a MarshalPlan application might work.
MarshalPlan 3.0 is a software application based on the user-friendly programming language Revolution Enterprise(tm). This application -- MarshalPlan 3.0 -- 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 3.0 for Windows click on this link. Download all of the Revolution stacks, including either the "Revolution Player" or "Revolution Media" (revMedia), 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" or "Revolution Media." If your computer doesn't use a Windows operating system, go here and download the version of the rev stacks you need and go here or here to download, respectively, the version of the Player or revMedia [Mac OSX or other] that you need.) Open the Revolution Player or RevMedia and then drag-drop the "Network.rev" icon and all other "rev" stacks onto the "Revolution Player" or revMedia icon; or run the Revolution Player or revMedia and, using the Player or revMedia, open all of the "rev" stacks. 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.



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SOME IMPORTANT CAVEATS: The software application that you will retrieve by clicking on the links found above has serious gaps and limitations, including the following:

1. In the application itself there is only sparse explanation of the theories underlying the evidence marshaling strategies that are embedded in MarshalPlan 3.0.

To get that some of that theory and those explanations (but not all of them) 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. A few buttons and links don't work. When that happens, try other buttons and links. (Otherwise resort to expletives. You have my permission.)
3. MarshalPlan 3.0 is not set up to be linked to a database. This is a most serious deficiency.

But -- in my defense -- I repeat: MarshalPlan 3.0 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.

Having made this important disclaimer, I now add that MarshalPlan is creeping ever closer to being something akin to a genuine software prototype suitable for real-world and real-time use. The biggest bridge will be crossed when I manage to make the forthcoming "web-resident" version of MarshalPlan database-friendly. I must also find a way to standardize many of the fields in which users are invited and expected to add "data" such as dates and names. Please give me about six months to get these things done.

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The dynamic evidence page
Coming soon: the law of evidence on Spindle Law

Assessing Inference by Picturing It

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law