Friday, December 31, 2010

(True) Euclidean Logic & the Law

An article in the New York Times reports on math & science education in China. The reporter David Barboza tells this anecdote:
In Li Zhen’s ninth-grade mathematics class here last week, the morning drill was geometry. Students at the middle school affiliated with Jing’An Teachers’ College were asked to explain the relative size of geometric shapes by using Euclid’s theorem of parallelograms.

A teacher instructed students in class at the middle school associated with Jing’An Teachers’ College in central Shanghai.

“Who in this class can tell me how to demonstrate two lines are parallel without using a proportional segment?” Ms. Li called out to about 40 students seated in a cramped classroom.

Question: Should law students, lawyers, judges, and ... er ... law teachers be able to reason about this sort of problem?

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Thursday, December 30, 2010

Thoughts about a course in constitutional criminal procedure

I am meditating about my developing unorthodox course in constitutional criminal procedure.

I want my students to become acquainted with some basic constitutional rules & principles, but I do not want to use much course time to get my students to memorize leading cases and their holdings (which they will probably quickly forget after the examination). So I am thinking about using the bulk of class time to having students make arguments from specific constitutional perspectives about specific problems . Hence, at times I may ask students to play the role of Justice Black, Justice Frankfurter, or Justice Scalia. At other times I may ask students to formulate a constitutional argument not yet clearly ever embraced by any member of the Court.

I think such a course could be fun and instructive. But would it work?

On reflection, I think roles should be assigned a full week before class and the arguments should focus on the issue or issues in the "leading cases" that we will study. Correct? I think I might ask students to outline their arguments in advance in Google Docs that can be shared with every member of the class. Does this sound like a good idea?

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Monday, December 27, 2010

Academic corruption may not be as serious as legal corruption in Russia. But to this academic, it is worrisome that at the University of North Carolina in 2008 "A’s have become the most frequent grade"

Why do the faculty at UNC and other colleges say that a large number of students are very much above average? Plainly it is because faculty are rewarded if they do so and are punished if they give lower grades.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Legal Travesty in Russia

The U.S. Administration may want to rethink whether it really wants to "reset" relations with Russia. After eight years of prison for Mikhail Khodorkovsky, a corrupted judicial system has convicted Mr Khodorkvsky of new offenses and is perhaps prepared to imprison Mr Khodorkovsky for some additional years. See Andrei Ostalski The verdict that may shake Russia BBC News (Dec. 27, 2010). The Obama Administration professed to want to bring "change" to America. But perhaps the change it desired does not include a serious concern about human rights violations in other countries.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Thursday, December 23, 2010

A (Minor) Manifesto (about American Legal Education)

A Manifesto

1. Law school courses generally focus on legal rules. But facts are just as important both for successful law practice and for an understanding of the actual workings of the law.

2. There are now some law courses that call on students to do fact investigation. For example, in litigation clinics students must often gather evidence and assemble it in preparation for trial. But fact investigation involves more than intuition and hunch. Fact investigation involves mental discipline; it involves and requires orderly thinking.

3. No method known to humankind can guarantee that a litigator (or some other sort of lawyer) will do fact investigation successfully. But some methods commonly involved in fact investigation can be identified – and they can be taught. See the course in fact investigation at Cardozo School of Law.

Monday, December 20, 2010

N.B: This software only illustrates how a fully developed version of MarshalPlan would work. For example, the existing version of the software does not allow the user to store data permanently. For a more expansive discussion of the limitations of the current versions of MarshalPlan, go here.

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The dynamic evidence page
It's here: the law of evidence on Spindle Law. See also this post and this post.

Saturday, December 18, 2010

MarshalPlan on the Web

After much struggle, I have succeeded in making MarshalPlan -- my evidence marshaling software --, I have succeeded in making this software available for your viewing pleasure in your browser. (But Chrome will not work for some reason. Firefox is a sure bet. Internet Explorer? I don't know.)

This software is not technically snazzy. It is technically crude. (Some buttons [links] don't even work. But most of them do.) But though technically crude, MarshalPlan is theoretically sophisticated. And it is, in principle, very useful to folks such as trial lawyers and investigators. Or so I think.

This software has had a long gestation period and it has gone through many iterations. One person who played a very large part in the development of the concept -- and, to some extent, the technology -- of MarshalPlan was David A. Schum. But I don't know if David wants to take any credit or blame for the thing I have managed to cobble together over a weekend -- and over many years.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Looking Backward at the Birth of a New Science of Evidence

P. Tillers, Webs of Things in the Mind: A New Science of Evidence (essay reviewing work of David Schum), 87 Michigan Law Review 1225 (1989):

[snip, snip]

[snip, snip]

[snip, snip]

[snip, snip]

[snip, snip]

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Monday, December 13, 2010

A Forty Years War

See Roger C. Park, Hastings College of the Law; Peter Tillers, Benjamin N. Cardozo School of Law; Frederick Crawford Moss (emeritus); D. Michael Risinger, Seton Hall University School of Law; David H. Kaye, The Pennsylvania State University; Ronald J. Allen, Northwestern University Law School; Samuel R. Gross, University of Michigan Law School; Bruce L. Hay, Harvard Law School; Michael S. Pardo, University of Alabama School of Law & Paul F. Kirgis, St. John's University School of Law Bayes Wars Redivivus - An Exchange

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Sunday, December 12, 2010

New research on the mathematical analysis of fingerprint evidence

Sindya N. Bhanoo, Calculating the Rarity of a Fingerprint NYTimes (December 10, 2010):
Researchers have found a way to mathematically calculate the rarity of a fingerprint.

Although fingerprints are unique to every individual, crime scene prints are usually incomplete patterns taken off doorknobs or glass.

Knowing the rarity of a partial print could be useful to forensic scientists who are trying to determine how valuable a fingerprint is as evidence, said Sargur Srihari, a computer scientist at the University at Buffalo who is leading the research.

... Dr. Srihari and his graduate student Chang Su say they have done the same for fingerprints [used the rarity of fingerprints to evaluate fingerprint evidence].

“It’s purely mathematical,” Dr. Srihari said. “We’re simply saying, ‘We just found something that is unusual, and that makes it an important piece of evidence.’ ”

To do the research, the scientists defined fingerprints as a series of points, composed of the endings of ridges and ridge bifurcations.

They then pulled from a database of 4,000 fingerprints kept on file at the National Institute of Standards and Technology and created a computer system that can read fingerprint patterns. Based on a print’s points, the system can mathematically determine its rarity.

...

The research was presented this week in Vancouver, British Columbia, at the annual Neural Information Processing Systems conference.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Wednesday, December 08, 2010

Dumb (Ex-)Cops and Robbers

"Less than two hours after they stole \$1 million in perfume from a Carlstadt warehouse, a group of cops-turned-robbers met in New York City to deal with concerns that two of the box trucks they rented had been seized at the crime scene, a co-conspirator testified Wednesday. "Brian Checo, testifying for a second day at the trial of fellow New York Police Department officer Kelvin Jones, said he was particularly worried because he had presented his driver’s license to rent one of the Penske trucks in Jersey City earlier that day." from Peter Sampson, Testimony details coverup effort after Carlstadt perfume heist NorthJersey.com (Dec. 10, 2010)

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

The Confounding of Experimental Results by Unknown Variables

Jonah Lehrer, "The Truth Wears Off: Is There Something Wrong with the Scientific Method?," The New Yorker 52, 56-57 (Dec. 13, 2010):
In the late nineteen-nineties, John Crabbe, a neuroscientist at the Oregon Health and Science University, conducted an experiment that showed how unknowable chance events can skew tests of replicability. He performed a series of experiments on mouse behavior in three different science labs: in Albany, New York; Edmonton, Alberta; and Portland, Oregon. Before he conducted the experiments, he tried to standardize every variable he could think of. The same strains of mice were used in each lab, shipped on the same day from the same supplier. The animals were raised in the same kind of enclosure, with the same brand of sawdust bedding. They had been exposed to the same amount of incandescent light, were living with the same number of littermates, and were fed the exact same type of chow pellets. When the mice were handled, it was with the same kind of surgical glove, and when they were tested it was on the same equipment, at the same time in the morning.

The premise of this test of replicability, of course, is that each of the labs should have generated the same pattern of results. "If any set of experiments should have passed the test, it should have been ours," Crabbe says. "But that's not the way it turned out." In one experiment, Crabbe injected a particular strain of mouse with cocaine. In Portland the mice given the drug moved, on average, six hundred centimetres more than they normally did; in Albany they moved seven hundred and one additional centimetres. But in the Edmonton lab they moved more than five thousand additional centimetres. ...

The disturbing implication of the Crabbe study is that a lot of extraordinary scientific data are nothing but noise.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Tuesday, December 07, 2010

The Truth Wears Off? Empirical Tests of Various Matters -- such as Eyewitness Identifications

Those of you who are interested in empirical studies of matters such as the accuracy of eyewitness identification really should read Jonah Lehrer, "The Truth Wears Off," The New Yorker 52 (December 13, 2010). [Yes, yes, I know: It's not December 13 yet. Complain to the New Yorker, please.]

A snippet:

Although verbal overshadowing remains a widely accepted theory [the theory that witnesses' verbal descriptions of events decrease the accuracy of the witnesses' identifications and descriptions] -- it's often invoked in the context of eyewitness testimony, for instance -- [Professor Jonathan] Schooler [of UCSB, a principal originator of the theory] is still a little peeved at the cosmos. "I know that I should move on already," he says. "I really should stop talking about this [that his repeated efforts to replicate earlier results of empirical tests show decreasing support for the hypothesis of verbal overshadowing]." That's because he is convinced that he has stumbled on a serious problem, one that afflicts many of the most exciting new ideas in psychology.
Following the report of this near-confession by Schooler, the article recounts the story of the Duke psychologist who in the 1930s conducted experiments that suggested that one of his human subjects [a student, Adam Linzmayer] had extra-sensory perception: The student seemed to have an uncanny ability to guess hidden cards in a special deck of cards: "[H]e averaged nearly 50% [accuracy in guessing cards correctly instead of the expected 20%], and pulled off several uncanny streaks, such as guessing nine cards in a row. The odds of this happening by chance are about one in two million. Linzmayer did it three times." However, the Duke psychologist, before publishing his experimental results, tested the student some more -- quite a bit more. What happened? After two years of additional experiments with the student and the deck of cards, this happened: "[T]he student lost his spooky talent." The Duke psychologist (Joseph Banks Rhine) was "forced to conclude that the student's 'extra-sensory perception ability has gone through a marked decline.'"

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Sunday, November 28, 2010

Memorable Cases, Memorable Names; Evidence of Third-Party Guilt & the Constitutional Right to Present a Defense

In a recent "unpublished" opinion in a case with a memorable name the Ninth Circuit made some interesting statements about a criminal defendant's constitutional right to present a defense by submitting evidence of a third party's guilt. In United States v. War Club, No. 10-30005, 2010 WL 4670174 (9th Cir., Nov. 1, 2010) the United States Court of Appeals for the Ninth Circuit said:
Robert War Club appeals his conviction ... for the first-degree murder of Richard Green.... ... We conclude that by limiting cross-examination of Green's brother, the district court precluded War Club from developing evidence that Green's brother had a motive to commit the murder. The court thereby deprived War Club of the "meaningful opportunity to present a complete defense" guaranteed by the Constitution. Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). ...
At trial, War Club presented the theory that Richard Comes Last committed the murder at the direction of Green's brother. To support this defense theory, War Club established that Comes Last was at the scene on the morning of the murder because Green had asked him for help inflating a car tire; that Green's body was found adjacent to a portable air tank and on top of a hose connected to an air compressor; and that Comes Last knew the location of a remote control that could have been used to close the door to the garage where Green was killed. War Club also established that Comes Last did odd jobs for Green's brother, whom Comes Last regarded as his "father."
During his opening statement, War Club's counsel promised to complete the picture by showing that Green's brother possessed a motive for the killing: revenge. Based on a statement given by Green's brother to a law enforcement officer, War Club proposed to prove that thirty years before the murder, Green raped his brother's girlfriend; that Green's brother confronted Green with a gun about the incident; that although Green's brother subsequently married his girlfriend, the rape was a source of tension during the marriage; and finally, that two years before the murder, the marriage ended in divorce due to residual resentment over the rape. War Club tried to elicit this information during his cross-examination of Green's brother, but the district court sustained the government's objection to this line of questioning on the grounds of relevance and prejudice.
This was error. As an evidentiary matter, "[f]undamental standards of relevancy ... require the admission of testimony which tends to prove that a person other than the defendant committed the crime that is charged." United States v. Crosby, 75 F.3d 1343, 1347 (9th Cir.1996) (quoting United States v. Armstrong, 621 F.2d 951, 953 (9th Cir.1980) (Kennedy, J.)). This is so "[e]ven if the defense theory is purely speculative," because "it is the role of the jury to consider the evidence and determine whether it presents 'all kinds of fantasy possibilities' ... or whether it presents legitimate alternative theories for how the crime occurred." United States v. Vallejo, 237 F.3d 1008, 1023 (9th Cir.2001). In this context, our cases have relied on Wigmore's admonition that if evidence of third-party culpability "is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic, but should afford the accused every opportunity to create that doubt." Id. (quoting 1A JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 139 (Tillers rev. ed.1983)); Crosby, 75 F.3d at 1349 (same).
The district court erred by deeming the evidence War Club sought to develop irrelevant and prejudicial. Although the rape occurred thirty years before the murder, the court failed to appreciate that the divorce occurred two years before the murder, and so was neither too distant nor too attenuated to form the basis for a valid alternative theory of motive. The danger of unfair prejudice was small, relative to the probative value of the proffered evidence--which was the only evidence adduced of Green's brother's motive. ...
As a constitutional matter, a defendant's right to present a defense--whether grounded in the Fifth Amendment's Due Process Clause or the Sixth Amendment's Compulsory Process Clause--"includes, 'at a minimum, ... the right to put before a jury evidence that might influence the determination of guilt.' " United States v. Stever, 603 F.3d 747, 755 (9th Cir.2010) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987)). We have identified violations of this right where, for example, a district court has "declared a range of defense theories off-limits, without considering in any detail the available evidence it was excluding," id. at 757; excluded "key corroborative evidence" for a "central" defense claim contesting the government's theory of prosecution, Boulware, 384 F.3d at 808-09; and excluded evidence refuting the government's theory of motive, United States v. Whitman, 771 F.2d 1348, 1351 (9th Cir.1985). Where, as here, a district court excludes evidence material to the defense on the basis of an erroneous evidentiary ruling, "due process concerns are still greater because the exclusion is unsupported by any legitimate state justification." United States v. Lopez-Alvarez, 970 F.2d 583, 588 (9th Cir.1992).
The due process violation is not limited to the exclusion of the potentially exculpatory evidence of the rape and the divorce; the court's ruling hampered other aspects of War Club's defense. For example, War Club cross-examined Comes Last about whom he phoned first after he learned that Green's body had been discovered, 911 or Green's brother. Comes Last testified at trial that he phoned 911 first, but he had previously told a law enforcement officer the opposite. War Club sought to argue that a call to Green's brother before a call to 911 was a warning from one co-conspirator to another. Without evidence of Green's brother's motive, however, the jury was not equipped to grasp the significance of the order of the calls or of Comes Last's inconsistent statements. See Lunbery v. Hornbeak, 605 F.3d 754, 761-62 (9th Cir.2009) (had erroneously excluded statement been admitted, "the remaining pieces of the puzzle would have become more relevant").

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Saturday, November 27, 2010

Full-Body Scanners in Churches & Kindergartens Necessary for Security

The Hill (Nov. 23, 2010):
Homeland Security Secretary Janet Napolitano says terrorists will continue to look for U.S. vulnerabilities, making tighter security standards necessary. “[Terrorists] are going to continue to probe the system and try to find a way through,” Napolitano said in an interview that aired Monday night on "Charlie Rose."
According to reliable sources, Secretary Napolitano is studying plans to use body scanners at entrances to churches, monasteries, and nunneries as well as at other undisclosed venues (such as universities and kindergartens). "We know terrorists despise non-Muslim houses of worship. Religious organizations are a major vulnerability. We must protect them."

She added, "There is no reason to believe the use of scanners in and around churches violates the Establishment Clause. Homeland Security is sensitive to civil liberties."

Rumor has it that college students enrolled in courses in secular humanism will soon be regularly strip-searched (by the TSA). Such courses, Homeland officials are rumored to have said, are considered high-value targets by terrorists and are easy to infiltrate. However, there have been sensitive discussions in high levels of government about whether secular humanists deserve the same level of protection as religious believers.

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A word to the wise: Don't believe everything you read.

Friday, November 26, 2010

Confessions & the Right to Present a Defense in Japan

Abridged translation of article in the November issue of the Sentaku Magazine -- published sub nom. Highhanded prosecutors get judicial pat on the back Japan Times Online (Nov. 26, 2010):
[J]udges rely excessively on ... depositions, especially in cases handled by special investigation squads, which exist only at the district public prosecutors offices in Tokyo, Osaka and Nagoya. Thus, investigators in these special investigation squads have gotten the idea that as long as they manage to get a suspect to sign a deposition, courts will find him or her guilty. This presumption has led to unethical, and sometimes illegal, means of obtaining confessions.
This partly explains why 99.9 percent of defendants in criminal cases are found guilty and why the process has become a hothouse for generating false charges.
Another problem with criminal court proceedings at present is that public prosecutors present only the "best evidence" to courts. They select the testimony and material evidence that they find useful in winning conviction. Since prosecutors don't have to disclose testimony or evidence favorable to a defendant, it is only natural that they normally succeed in getting a conviction.
It's the job of defense lawyers to find evidence favorable to defendants. Even if they find such evidence, if it has not been disclosed by the prosecution, they must obtain the Supreme Court's approval for presenting it to a court. The process for getting approval is complex and difficult.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Sunday, November 21, 2010

Over the years there has been much discussion about the conjunction paradox that is said to arise from the legal requirement that each essential element of a claim or charge (and, I might add, of an affirmative defense) be shown to some specified standard of persuasion such as proof beyond a reasonable doubt. It has been argued that a paradox arises if such a burden of persuasion requirement is given a mathematical interpretation that assumes that uncertainty is graded cardinally.

Suppose that the preponderance of the evidence standard requires a showing that of more than a .5 probability. On the one hand, if this mathematical requirement applies to each element of a claim and if there is more than one element to a claim, then the legally-requisite probability that the entire claim has been established -- element a, element b, etc. -- holds only if p(a) X p(b) ... p(n) is greater than .5. But if this is the case, it is argued, it follows that the probability of at least one element must be shown to be considerably more than .5. This is said to follow by application of the product rule, which in its simplest form holds that the probability of a & b together equals the probability of a times the probability of b. On the other hand, if the legal burden of persuasion is interpreted to require only that the probability of each element of a claim is more than .5, it is said that another absurd result arises, which is that a party can establish a claim (or an affirmative defense, I would add) even if the party fails to establish that the probability of all of the essential elements taken together is greater than .5.

Quite a few observers have noted that dependencies among the factual hypotheses that a party attempts to establish to establish a claim (or, I would add, an affirmative defense) reduce the numerical anomalies generated by a mathematical interpretation (based on cardinal numbers) of standards of persuasion. But unless the dependencies are complete among all essential elements, dependencies do not eliminate the paradox.

I have three questions:

1. Has anyone noticed the similarity between the conjunction paradox as formulated above and the paradox that arises if it is believed that several testimonial qualities (e.g., veracity vel non, objectivity vel non, ability to perceive vel non, etc.) are essential to an assessment of the credibility of a witness and if one accepts the suggestion (made by at least one probabilist and implicitly also by Edmund Morgan's treatment of chains of inference) that the probabilities of such credibility attributes must be multiplied with each other to arrive at a judgment about the aggregate probability that a witness is credible?

2. Has anyone in the literature argued or suggested that a mathematical interpretation of burdens of persuasion requires that the prior probabilities of the various elements of a claim, charge, or defense be considered and that sometimes or often it it might be appropriate to assume that the prior probability of a fact instantiating an essential element is, for example, more than .5 or .95 or even some higher probability?

3. Has anyone considered what the application of the conjunction paradox to affirmative defenses does to the application of the conjunction paradox to the essential elements of a claim or charge and has anyone argued that the application of the product rule to affirmative defenses makes the conjunction paradox paradoxical?

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The dynamic evidence page
It's here: the law of evidence on Spindle Law. See also this post and this post.

Friday, November 19, 2010

A Multi-Sided Exchange about Bayesianism -- Once Again

See Roger Park, Peter Tillers, Frederick Moss, D. Michael Risinger, David Kaye, Ronald Allen, Samuel Gross, Bruce Hay, Michael Pardo & Paul Kirgis, Bayes Wars Redivivus - An Exchange (2010).

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Tuesday, November 16, 2010

The Russian Right to Trial by Jury May Not Be Everything It Was Cracked Up to Be

See Ellen Barry, In Russian Justice, Jury Is Something to Work Around NYTimes (Nov. 15, 2010).

Among the tidbits in the article:

[T]he number of jury trials remains so small — around 600 a year out of a total of more than one million — that they vanish into a justice system that in some important ways has changed little since Soviet days.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Wednesday, November 10, 2010

In Texas, Object -- Over and Over -- to Polygraph Test Results

Polygraph test results were admitted in a probation revocation proceeding. In an "unpublished" memorandum opinion, a Texas Court of Appeals said that polygraph test results are inadmissible in such a hearing. Gardner v. State, No. 02-09-00360-CR (Tex. App. -- Fort Worth Dec. 4, 2010):
Polygraph results are generally inadmissible for all purposes. Nesbit v. State, 227 S.W.3d 64, 66 n.4 (Tex. Crim. App. 2007); Nethery v. State, 692 S.W.2d 686, 700 (Tex. Crim. App. 1985) ("Even if the State and the defendant agree and stipulate to use the results of a polygraph at trial, we have held the testimony to be inadmissible."), cert. denied, 474 U.S. 1110 (1986); Russell v. State, 798 S.W.2d 632, 635 (Tex. App.-Fort Worth 1990, no pet.) ("The results of polygraph examinations are excluded due to their inherent unreliability and tendency to be unduly persuasive."); see Reed v. State, 48 S.W.3d 856, 864 (Tex. App.-Texarkana 2001, pet. ref'd) ("[P]olygraph evidence is inadmissible at a bench trial as well as at a jury trial.")
However, the Court of Appeals for Fort Worth held that appellant Gardner had waived his claim of error because Gardner had failed to object to each and every (successful) attempt of many attempts by the state to introduce polygraph evidence:
However, a defendant must assert a proper, timely objection to the admission of polygraph results to preserve error. Jasso v. State, 112 S.W.3d 805, 813-14 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd) (explaining that the "standard set by our high court for the timely assertion of objections is both demanding and unforgiving"); see Graham v. State, 3 S.W.3d 272, 285 (Tex. App.-Fort Worth 1999, pet. ref'd). To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh'g), cert. denied, 526 U.S. 1070 (1999). Also, with some exceptions that do not apply to this case, to preserve error, a party must continue to object each time the objectionable evidence is offered or obtain a running objection to the evidence. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (citing Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)). Thus, a trial court's erroneous admission of evidence will not require reversal when other such evidence was received without objection, either before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). This rule applies whether the other evidence was introduced by the defendant or the State. Id. Although appellant objected to the first portion of the community supervision officer's testimony that mentioned the results of appellant's polygraph tests and objected to a question in the middle of his own testimony, he did not object to every question or answer that disclosed the results, and he did not obtain a running objection to the polygraph evidence. His trial counsel also elicited some of the evidence. Nonetheless, appellant argues that his first objection preserved error relating to all of the polygraph testimony because "[f]urther objections were useless as counsel could assume the trial court would make the same ruling in each instance." But in Leday, the court of criminal appeals stated,
In requiring an objection every time the objectionable evidence is offered, we are in a minority of courts which do not follow the general rule that the repetition of an objection is needless when the court's ruling has indicated that an objection to such evidence will definitely be overruled. See Wigmore on Evidence § 18 (Peter Tillers rev. 1983). Our rule which requires objection to every offer is sometimes called "the `futility rule'; that is, despite ruling of judge that evidence is admissible, party must keep making futile objections on pain of waiver." 21 Charles Alan Wright & Kenneth W. Graham, Federal Practice & Procedure § 5039 n. 11.1 (Supp. 1998) (citing Texas cases). We have found that the general application of this rule has not proven to be burdensome for defense counsel in many cases.
Id. at 717-18 (emphasis added and footnote omitted); see Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (relying on Leday to overrule an evidentiary issue); see also Long v. State, 10 S.W.3d 389, 399 (Tex. App.-Texarkana 2000, pet. ref'd) (explaining that the requirement of objecting each time inadmissible evidence is offered "remains true with regard to testimony regarding polygraph examination results").

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Sunday, November 07, 2010

European University Institute Conference on Proportionality and Justice

The February 25-26, 2011, QAJF European University Institute (Florence) conference on "proportionality and justice" now has a complete and functioning web site. Please go there to see a description of the conference and to register if you wish to present a paper at the conference. People who would like to present a paper at the conference should submit an abstract by December 15. See dates.

I mention this conference on this blog because a substantial part of the conference will be devoted to the use of formal and quantitative methods to analyze (and perhaps to help regulate) evidential inference in legal proceedings such as trials.

So: Next year in Florence!

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Wednesday, November 03, 2010

Human Cognitive & Inferential Frailty?

On this blog I have occasionally questioned the general thrust of literature that emphasizes what a bad job human beings do of drawing inferences from evidence. I have been rather more impressed with how good a job human beings often seem to do when engaged in the difficult and complex job of drawing inferences from evidence. See Peter Tillers, Unconscious -- and Remarkably Complex! -- Inference (Nov. 15, 2007) (blog post) and especially Peter Tillers, Perceptual Errors (July 24, 2007) (blog post). I think this is one reason why my eye was drawn to the extraordinarily interesting article by Natalie Angier, Seeing the Natural World With a Physicist’s Lens, NYTimes (Nov. 1, 2010).

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Sunday, October 31, 2010

So you want to be a lawyer?

So you want to go to law school?

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Sunday, October 24, 2010

Reimagining the Stodgy Law School Casebook for the Digital Age Atlantic (Sept. 20, 2010)

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Tuesday, October 12, 2010

Workshop on AI & Evidence, ICAIL 2011, Pittsburgh, June 2011

One-Day Workshop on AI & Evidential Inference
in Conjunction with
ICAIL 2011, Pittsburgh, Pennsylvania, June 2011

Workshop Chairs: Giovanni Sartor & Peter Tillers
Program Committee: Henry Prakken, Giovanni Sartor, Douglas Walton, & Peter Tillers
Panelists: Ronald J. Allen, Floris Bex, Scott Brewer, Craig Callen, James Franklin, David Hamer, Bruce Hay, Joseph Laronge, D. Michael Risinger, Michael Pardo, Federico Picinali, Henry Prakken, Giovanni Sartor, Peter Tillers, Bart Verheij, Douglas Walton, Nanning Zhang
Publication: The Oxford journal Law, Probability and Risk has agreed to publish those workshop papers that pass peer review.
Subject: The workshop will examine computational methods and evidential inference in legal settings such as pretrial investigation and trials. Two foci of discussion will be (i) stories, narrative, or rhetoric, and evidential argument; and (ii) burdens of proof. Panelists will also be free to consider other topics, including, for example, (iii) evidential inference and statistical methods, and (iv) cognitive science, psychology, and inference.
Biographical details about panelists (listed in alphabetical order):
Ronald J. Allen, John Henry Wigmore Professor of Law at Northwestern University, in Chicago, Illinois. He did his undergraduate work in mathematics at Marshall University and studied law at the University of Michigan. He is an internationally recognized expert in the fields of evidence, procedure, and constitutional law. He has published five books and approximately eighty articles in major law reviews. The New York Times referred to him as one of nation's leading experts on evidence and procedure. He has been quoted in national news outlets hundreds of times, and appears regularly on national broadcast media on matters ranging from complex litigation to constitutional law to criminal justice.
Floris Bex, postdoctoral research assistant, Argument Research Group, University of Dundee. Bex has written a comprehensive dissertation on reasoning with legal evidence and proof. In this dissertation he presents an informal theory, which caters to an (informal) philosophical and legal audience, as well as a more formal logical theory, aimed at an AI-oriented audience. His work has been frequently presented at the relevant conferences (Jurix, ICAIL). As of 2003, Floris has published four major journal papers on the subject of reasoning with evidence. At the University of Groningen (2005 - 2009), Floris has taught law students the basics of thinking about evidence and scenarios and he was recently (2010) invited by the court of appeals in Arnhem to give a seminar about reasoning with evidence. Together with Henry Prakken, Floris gave workshops on evidential reasoning at the IVR legal theory conference in Cracow (2007) and at a recent conference for Dutch judges and legal professionals (2010).
Scott Brewer, professor of law, Harvard Law School. Research Interests: Philosophical Aspects of Legal Thought. Education: SUNY at Stony Brook B.A. 1979, Philosophy and Religious Studies; Yale University M.A. 1980, Philosophy; Yale Law School J.D. 1988; Harvard University Ph.D. 1997, Philosophy. Appointments: Lecturer on Law, 1988 ; Assistant Professor of Law, 1991; Professor of Law, 1998. Representative Publications: Brewer, Scott. "Scientific Expert Testimony and Intellectual Due Process," 107 Yale Law Journal 1535 (1998); Brewer, Scott. "Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy," 109 Harvard Law Review 923 (1996).
Craig Callen, Judge John D. O' Hair Professor of Evidence & Procedure, Michigan State University School of Law. Callen's research in evidence for the last three decades has focused on the lessons of psychology, math, logic, statistics and AI for evidence, with particular emphasis on information processing theory.
James Franklin, professor, School of Mathematics and Statistics, University of New South Wales. Brief History. Franklin's undergraduate work was at the University of Sydney (1971-75). He completed his PhD in 1981 at Warwick University, on algebraic groups. Since 1981 he has taught in Mathematics at UNSW. His book What Science Knows: And How It Knows It (Encounter) was published in 2009. His book Catholic Values and Australian Realities appeared in 2006. Franklin's book Corrupting the Youth: A History of Philosophy in Australia was published by Macleay Press in 2003. His book The Science of Conjecture: Evidence and Probability Before Pascal (Johns Hopkins University Press) appeared in 2001. Franklin's research areas include the structuralist philosophy of mathematics and the 'formal sciences' (He is a member of the Sydney School), Australian Catholic history, the parallel between ethics and mathematics, restraint, the quantification of rights in applied ethics, and the analysis of extreme risks.
David Hamer, associate professor, Law Faculty, University of Sydney. David Hamer has undergraduate degrees in both science and law from the Australian National University and a PhD from the University of Melbourne. His dissertation examined probabilistic models of burdens and standards of proof. He has published a series of articles in leading journals in Australia and the UK applying probability theory to various aspects of evidence, proof and justice, including causation, the right to silence, civil and criminal standards of proof, delayed complaints and double jeopardy.
Bruce Hay, professor of law, Harvard Law School. Research Interests: Economics of Procedure and Litigation; Evidence; Legal Theory. Education: University of Wisconsin B.A. 1985, Political Science and French; Harvard Law School J.D. 1988. Appointments: Assistant Professor of Law, 1992; Professor of Law, 1998. Representative Publications: "Manufacturer Liability for Harm Caused by Consumers to Others," 94 American Economic Review 1700 (2005) (authored with K. Spier); "Sting Operations, Agents Provocateurs, and Entrapment," 70 Missouri Law Review 387 (2005); "'Sweetheart' and 'Blackmail' Settlements in Class Actions: Reality and Remedy," 75 Notre Dame Law Review 1377 (2000) (authored with D. Rosenberg); "Burdens of Proof in Civil Litigation: An Economic Perspective," 26 Journal of Legal Studies 413 (1997); "Allocating the Burden of Proof," 72 Indiana Law Journal 618 (1997).
Joseph Laronge, Sr., Assistant Attorney General, Oregon Department of Justice: Laronge has been a trial and appellate attorney for 35 years. For the last ten years, he has made extensive use of argument mapping (e.g., Rationale software and embodied metaphoric argumentation visual languages) in trial illustrative exhibits and court briefs as ancillary support for factual and legal inferential arguments. During this period, he has applied these argument mapping approaches for teaching advanced legal reasoning skills as an adjunct professor of law in Advanced Argumentation at Lewis & Clark Law School and as a former associate with Austhink Consulting. He previously taught the fundamentals of legal reasoning as an adjunct professor of law in Legal Research & Writing at Willamette University Law School. From these experiences, Laronge found that the multiplicity of modes of inference and arguments schemes was an impediment to the enhancement of law students’ legal reasoning skills and the clear and rigorous representation of such argumentation in court. To help overcome this obstacle, he developed a single generalizable structure of inferential proof named defeasible class-inclusion transitivity (DCIT). Since 2005, Laronge has used DCIT successfully as a persuasive universal structure of factual and legal inferential reasoning in trial and appellate court real-world applications. An explanation of its theoretical foundation and its generalizable application in court is discussed in “A Generalizable Argument Structure Using Defeasible Class-inclusion Transitivity for Evaluating Evidentiary Probative Relevancy in Litigation” J Logic Computation exp066 first published online December 2, 2009 doi:10.1093/logcom/exp066.
Michael Pardo, associate professor of law,University of Alabama School of Law, writes and teaches in the areas of evidence, criminal procedure, civil procedure, and jurisprudence. His scholarship explores a variety of philosophical issues in these areas, with a particular focus on epistemological issues regarding evidence and legal proof. His recent scholarship also examines philosophical and evidentiary issues pertaining to law and neuroscience. Professor Pardo is the author of several publications in law reviews, including the Boston College, Illinois, Northwestern, Texas, and Iowa Law Reviews, among others, and in peer-reviewed journals, including Legal Theory, Law and Philosophy, and the Journal of Legal Studies, among others. His article, “The Field of Evidence and the Field of Knowledge,” was presented at the Stanford/Yale Junior Faculty Forum in the jurisprudence and philosophy category. Professor Pardo is also a co-author of the fifth edition of Evidence: Text, Problems, and Cases (Aspen, forthcoming, with Allen, Kuhns, Swift, and Schwartz) and a forthcoming book on law and neuroscience (with Dennis Patterson). Professor Pardo is currently the Chair-Elect of the American Association of Law Schools Section on Evidence. He also serves as the U.S. book review editor of International Commentary on Evidence. Professor Pardo joined the Alabama Law Faculty in 2005. Prior to joining the faculty, he was a visiting assistant professor at Chicago-Kent College of Law and at Northwestern University School of Law. Professor Pardo received his JD from Northwestern University School of Law.
Federico Picinali, LLM student at the Yale Law School; PhD student at the UniversitÃ  degli Studi of Trento, Italy. Former Visiting Researcher at UC Hastings, Cardozo School of Law and Penn Law. Former Exchange Student at the UCB Boalt Hall School of Law. Picinali received a Degree in legal sciences and a Specialized degree in law at the UniversitÃ  degli Studi of Milan, Italy. His research interests and publications concern the influence of fact finding on substantive criminal law principles, inferential reasoning, the beyond a reasonable doubt standard, the comparison between "legal reasoning" and "factual reasoning."
Henry Prakken, lecturer in the Intelligent Systems Group of the computer science department at Utrecht University, and professor of Law and IT at the Law Faculty of the University of Groningen. Prakken has master degrees in law (1985) and philosophy (1988) from the University of Groningen. In 1993 he obtained his PhD degree at the Free University Amsterdam with a thesis titled Logical Tools for Modelling Legal Argument. His main research interests concern logical and dialogical aspects of argumentation, and the application of argumentation in legal reasoning, multi-agent systems and other domains. Prakken was the ICAIL program chair in 2001 and the ICAIL president in 2008-9. He had papers accepted at all ICAIL conferences since 1991 except in 1999 (when he gave a tutorial). Prakken co-organised workshops on legal reasoning about evidence at ICAIL 2001 and IVR 2007 and a conference on a similar topic in New York. He has published regularly about evidence since 2001.
D. Michael Risinger, John J. Gibbons Professor of Law. Seton Hall University School of Law. Risinger holds a B.A., magna cum laude, from Yale University, and a J.D., cum laude, from Harvard Law School. He clerked for the Honorable Clarence C. Newcomer of the United States District Court for the Eastern District of Pennsylvania. He is a past chair of the Association of American Law Schools Section on Civil Procedure, the immediate past chair of the AALS Section on Evidence, and a life member of the American Law Institute. He was also a member of the New Jersey Supreme Court Committee on Evidence for 25 years, which was responsible for the current version of the New Jersey Rules of Evidence. Professor Risinger moved to Seton Hall Law School in 1973. He served as a visiting senior fellow on the law faculty of the National University of Singapore from 1985-1986. Professor Risinger has published in the areas of evidence and civil procedure. He is the co-author of Trial Evidence, A Continuing Legal Education Casebook and the author of two chapters in Faigman, Kaye, Saks and Cheng, Modern Scientific Evidence (“Handwriting Identification” and “A Proposed Taxonomy of Expertise”). Professor Risinger was selected as one of Seton Hall’s two inaugural Dean’s Research Fellows (2002-2004) and was named the John J. Gibbons Professor of Law in May 2008. His scholarship has recently concentrated on wrongful convictions as well as expert evidence issues.
Giovanni Sartor, professor of Legal informatics and Legal Theory at the European University Institute of Florence and at the University of Bologna. He obtained a PhD at the European University Institute (Florence), worked at the Court of Justice of the European Union (Luxembourg), was a researcher at the Italian National Council of Research (ITTIG, Florence), held the chair in Jurisprudence at Queen’s University of Belfast (where he now is honorary professor), and was Marie-Curie professor at the European University of Florence. He is President of the International Association for Artificial Intelligence and Law. Sartor has published widely in legal philosophy, computational logic, legislation technique, and computer law. Among his publications is: Corso di informatica giuridica (Giappichelli, 2008), Legal Reasoning: A Cognitive Approach to the Law (Springer: 2005), The Law of Electronic Agents (Oslo: Unipubskriftserier, 2003), Judicial Applications of Artificial Intelligence (Dordrecht: Kluwer, 1998), Logical Models of Legal Argumentation (Dordrecht: Kluwer, 1996), and Artificial Intelligence in Law (Oslo: Tano, 1993).
Peter Tillers, professor of law, Cardozo School of Law, Yeshiva University. Tillers is a reviser of John Henry Wigmore's multi-volume treatise on the law of evidence and has published a variety of articles on evidence, inference, and investigation. He is an editor of the Oxford journal Law, Probability and Risk. He is former chairman and secretary of the Evidence Section of the Association of American Law Schools. He was a Fellow of Law & Humanities at Harvard University and an Alexander von Humboldt & Senior Max Rheinstein Fellow at the University of Munich. He was a visiting professor at Harvard Law School in the spring semester of 2002. Tillers was legal adviser for the Latvian mission to the United Nations during the 48th Session of the General Assembly. He maintains a website with discussion of a wide range of general issues of evidence. Tillers' scholarship focuses on evidential inference and fact investigation in legal settings. He maintains that multiple methods of marshaling and analyzing evidence are important in trials, in pretrial investigation and informal fact discovery, and in other domains. He believes that inference networks offer a useful window into investigative discovery and proof at trial. But he believes that subjective, synthetic, and gestalt-like perspectives on evidence, inference, and proof are also essential.
Bart Verheij, lecturer and researcher at the University of Groningen, Department of Artificial Intelligence and a member of the ALICE institute. He participates in the Multi-agent systems research program. His research interests include argumentation, rules and law, with emphasis on defeasible argumentation, legal reasoning and argumentation software. As research methods, he uses formal analysis (in the styles of logic and analytic philosophy), software design, algorithm implementation, agent-based social simulation, controlled experiment, observation, and thinking and exploring. His research field is interdisciplinary, and includes artificial intelligence, argumentation theory and legal theory.
Douglas Walton holds the Assumption University Chair in Argumentation Studies, and is Distinguished Research Fellow Centre for Research in Reasoning, Argumentation and Rhetoric (CRRAR), at the University of Windsor. He serves on the editorial boards of several journals, including Informal Logic, Argument and Computation, and Artificial Intelligence and Law. He is the author of forty-five books and three hundred refereed papers in the areas of argumentation, logic and artificial intelligence. The books include Witness Testimony Evidence, Cambridge University Press, 2008, Fundamentals of Critical Argumentation, Cambridge University Press, 2006, and Legal Argumentation and Evidence, Penn State Press, 2002.
Nanning Zhang, Ph.D., Senior Partner, Hunan Tiandiren Law Firm, Changsha, Hunan Province, People's Republic of China. Research interests: Evidence. Education: Henan University B.A. 1990, Enterprises Management; Central South University M.A. 1997, Philosophy of Science and Technology; Sun Yet-sen University Ph.D. 2006, Legal Logic; Post-doctoral fellow in evidence law at China University of Political Science and Law, 2009. Representative Publications: Nanning Zhang & Lingyun Tang, “On The Validity Of Argument In Law”, in The Uses of Argument: Proceedings of a Conference at Mcmaster, David Hitchcock, Ed., Ontario, 515-524 (2005); Nanning Zhang & Douglas Walton, “Recent Trends in Evidence Law in China and the New Evidence Scholarship”, 9 (2) Law Probability and Risk 103-127 (2010).

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The dynamic evidence page
It's here: the law of evidence on Spindle Law. See also this post and this post.

Monday, October 11, 2010

The Earth Is Not Flat -- and Columbus' Contemporaries Did Not Think It Was

This is Columbus Day -- a good day to remember that Columbus' contemporaries did not think the earth is flat. The people who say that medieval folks thought that the earth is flat are either bigoted or ignorant.

Pythagoras, who lived in the 6th century B.C., concluded that the earth is round.

"The misconception that educated people at the time of Columbus believed in a flat Earth...was listed [in 1945] by the Historical Association (of Britain) as the second of 20 in a pamphlet on common errors in history." Flat Earth, Wikipedia (accessed October 11, 2010).

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Thursday, October 07, 2010

Forms of Reasoning in Factual Inference

Globular Star Cluster NGC 6934 Credit: NASA, ESA, Hubble Space Telescope

Question: How many kinds of logical processes are involved in factual inference?

Answer: Even if one ignores the reasoning that is involved in processes such as telling stories and developing scenarios -- or the reasoning that is or may be involved in matters such as "simply" classifying material such as "legal source material" -- or the reasoning that is involved in the imaginative reconstruction of meaning -- or the logical operations that are involved in "tacit" mental operations of the brain and in subconscious signal processing by human sensory organs -- or the reasoning that is used in synthetic ("holistic") thinking -- quite a few modes of reasoning, or argument, seem to be in play in factual inference, including the following:

Deduction
classic:

if you have man, then there is mortality
(you have Socrates and) Socrates is a man
therefore: there is mortality

modern form:

if a and b, then c
there is a
there is b
therefore: c

if a or b, then c
there is not-a
there is b
therefore: c

if a or b, then c
there is not-a
there is not-b
therefore: c or not-c

if not-a and not-b, then not-c
there is not-a
there is not-b
therefore: not-c

Induction
if X has property a with relative frequency .9 in n instances of X, then X (all instances of X) has property a with a relative frequency of ca. .9

if X1, X2, … X20 have property a with a relative frequency of .9, then there is a ca. .9 probability that X21 has the property a

Analogy
There are entities X and Y. There is the property a.

If water is added to X, X acquires the property a.
Y is similar (in relevant respects) to X.
If water is added to Y, Y (probably) acquires property a.

If water is added to X, X acquires property a.
Y is similar (in relevant respects) to X.
If water is is added to Y, Y (probably) acquires a property similar to property a.

If water is added to X, X acquires the property a.
Liquid nitrogen is similar (in relevant respects) to water.
If liquid nitrogen is added to X, X (probably) acquires the property a (or a property similar to a).

Abduction & Abduction-Retroduction
The existence of M is surprising.
If E were true, it would explain M.
Therefore: E may be true.

The existence of M is surprising.
If E were true, it would best explain M.
Therefore: E is most probably true.

The existence of M is surprising.
If E were true it would explain M.
If E is true, the chances of (the existence or occurrence of) X, Y, and Z are high.
X, Y, and Z exist.
Therefore: there is some (perceptible positive) probability E is true.

Subsumption & Classification
If there is an x, then y
m is an x
Therefore: y

If there is an x, then y
m has all of the properties of x
Therefore: y

If there is an x, then y
m has many of the properties of x
Therefore: there is (probably) an x
Therefore: there is (probably) a y

If there is an x, then y
m has the properties of x to some degree
Therefore: there is to some degree an x
Therefore: there is to some degree a y

If there is an x, then y
m is similar to x
Therefore: there is (probably) an x
Therefore: there is (probably) a y

Postscript: The above catalogue is, I trust, somewhat more meaningful than the following Borgesian classification of animals:

1. fat animals
2. rational animals
3. animals with four feet
4. animals with four feet and two tails
5. animals with brown hair

Monday, October 04, 2010

Hegel on Wall Street -- or in Left Field?

It's nice to see that the New York Times is publishing serious philosophical stuff -- see J.M. Bernstein Hegel on Wall Street NYTimes (Oct. 3, 2010) -- but methinks Hegelian ethics and politics -- like Hegelian metaphysics -- just will not fly. True, for some purposes (e.g., tort law) human beings perhaps "intend" more than the subjective intentions they have in their heads when they act. But unless omniscience and omnipotence are ascribed to human actors, human beings do not "intend," "want," or "affirm" all of the consequences precipitated by their actions. Hegelian theory offers no principled basis for drawing the line between those consequences of human actions that may be attributed to human actors and those consequences that are not properly viewed as having been chosen by an individual actor. Hegel's notion of "tacit will" may be a majestic conceptual or philosophical effort -- but it is in the end a failure because it merely restates the problem of ascription and responsibility instead of solving it. (In fairness to Hegel: Perhaps this is the fate of all philosophical analyses of individual responsibility.)

P.S. I grant that this post has little to do with the law of evidence. Or?

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Wednesday, September 29, 2010

EUI-Florence Conference on Proportionality and Justice

Put the following event on your calendar for 25-26 February 2011:

International Conference on Quantitative Aspects of Justice and Fairness -- with emphasis on Proportionality and Justice

Venue:European University Institute, Badia Fiesolana Via Dei Roccettini 9, Florence, Italy

Details:

Introduction
QAJF conference aims to develop an open interdisciplinary discussion on addressing legal and ethical issues through formal and quantitative models. Quantification promotes not only comprehensibility, but also communication between cultures, and disciplines. Its roots can be found in different cultural traditions.
In particular, the present edition will focus on Proportionality and Justice, and aims at investigating the extent to which formal and quantitative models can be brought to bear on issues pertaining to balancing interests and values of different individuals, social groups and institutions, in different legal, political or social contexts.

General themes
The QUAJUF conference addresses the use of formal\quantitive methods in connection with any of the the following topics:

Ethics, moral theories and theories of human rights (e.g., assessment as of harms & benefits to other persons; quantitative models of justice and fairness)
Legal theory (balancing rights and duties; formal and quantitative models of legal argumentation/justification)
Law (quantification and the application of the law, e.g., compensation for economic harm, for pain & suffering; criminal punishment and deterrence)
Analytical philosophy (ontology and metaphysics of quantification)
Science, technology and legal responsibilities (neurosciences and the measurement of mind, assessing environmental and human impacts of dangerous technologies, responsibilities of scientists)
Mathematics & Computer science (mathematical and computational approaches to model justice and fairness, e.g., game theory, geometry, fractals, etc)
Evidence (mathematical & statistical analysis of factual inferences in trials; burdens of persuasion and proof)
Economics (economical and decision-theoretic models of justice and fairness)
Medicine & Health care (e.g., measuring the quality of medical care; allocating medical resources, etc)
Theology (e.g., views in Judaism, Christianity, Islam, Buddhism, etc., of quantitative aspects of justice and fairness )
Didactics (e.g., effective teaching of concepts or problems of justice having quantitative or numerical aspects)

Specific themes
In particular, this edition of the conference, focuses on aspects of proportionality and justice, such as the following:

The emergence of the ideal of proportionality in different philosophical, religious and legal traditions
Telelological arguments, goals, values and deontology in legal and moral thinking
Multicriteria decision-making and social choice
Quantitative and non-quantitative model of proportionality
Proportionality in distributive and corrective justice
Balancing rights and values in moral and legal reasoning
Proportionality and judicial review
Proportionality and the assessment of evidence
Proportionality and justice in tort and criminal law.

Submission Details

The conference will include invited contributions addressing the different aspect of proportionality and justice from different perspectives. The program committee invites further contributions from the participants to the conference, consisting in original, previously unpublished, research papers pertaining to any of these topics.

The paper should be in English, and should be no longer than 15 pages when formatted according the LNCS specifications (http://www.springer.de/comp/lncs/authors.html). The first page should contain the full name and contact information for at least one of the authors, and it should contain an abstract of no more than ten lines. Authors should submit their papers electronically using the submission system at

http://ww [forthcoming].

Each submitted paper will be carefully peer-reviewed by a panel of PC member based on originality, significance, technical soundness, and clarity of exposition and relevance for the conference.

For each accepted paper, at least one author is required to register for the conference and should plan to present the paper.

Publication
The selected papers will be published in book form in the …….. series (approval pending). Copies of the conference proceedings, will be provided to all participants.

Important dates:

Paper submission: 15 December 2010
Paper reviews: 15 January 2011
Conference: 25-26 February 2011

Thursday, September 23, 2010

86 Years?

Dan Murphy, Aafia Siddiqui, alleged Al Qaeda associate, gets 86-year sentence Christian Science Monitor (Sept. 23, 2010):
Aafia Siddiqui, a US-educated Pakistani neuroscientist whose lawyers argued is mentally unstable, was sentenced to 86 years in prison in a New York district court for trying to shoot American soldiers in an Afghanistan police station two years ago.

[snip, snip]

Richard Berman, the sentencing judge, was unswayed by the defense's request for leniency on the basis of mental illness. Siddiqui herself remained calm in court, and called for peace after her sentencing.

''Don't get angry,'' she said, according to Pakistan's Dawn newspaper. ''Forgive Judge Berman."

Question 1: Since federal law has no parole and does not allow sentence reductions for "good behavior," would it have been more merciful and just for Judge Berman to sentence the defendant to death (if he had had the power to do so) rather than sentence her to imprisonment for a term of 86 years?

Question 2: Is it possible the defendant was sentenced to imprisonment for 86 years because she may be related by marriage to a mass murderer? (The article quoted above also states: "US court filings say she told FBI agents that she'd married Ammar al-Baluchi, a nephew of Khalid Sheikh Muhammad, the man who carried out most of the planning for the 9/11 attacks and who is in US custody in GuantÃ¡namo Bay.") What would you say if that were the case?

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Tuesday, September 21, 2010

Notes for a Talk in a Faraway Place

The Structure of Proof in Modern Trials

• A version of this talk will be published as a discussion paper in 2011 in Law, Probability and Risk
• If one travels across time, continents, and cultures, one needs to attend to the interests and attitudes of one's audience. If one doesn't do so, one risks being thought strange. Of course, the same may hold true if one travels just from New York City to Texas (a mere 1,600 miles or so). Some years ago I traveled from New York City, where I was teaching at the time, to Houston, Texas, to give a talk at one of the law schools in Houston. At the time I was much preoccupied with the work that had been done by people in artificial intelligence. I was interested in such stuff because I wondered about the possible applications of that research to the study of evidentiary processes in litigation and adjudication. In my talk in Houston I tried to explain my tentative conclusion that artificial reasoning methods (including statistical methods) could not supplant ordinary methods of reasoning. After the talk, it soon became apparent that some or much of the audience viewed me as closely akin to a man from Mars.1
___________

Note 1. I didn't get the job. (But I had the good sense to withdraw my candidacy before the school had a chance to reject me.)

___________

Today I will use some words – words such as “ontology” – that may seem strange or repellent to some or many of you. So I thought I would begin by talking briefly about some of my motivations for talking in ways that may seem strange or unpleasant to some or many of you. Before I do that, however, let me acknowledge the possibility that it might have been better for me to launch into my strange way of talking without a word of explanation. My experience is that if one comes from a culture or tradition that is completely alien to one one's hosts, the hosts are likely to think, “Well, I don't understand a word he says. But he's supposed to be a smart man and I probably don't understand that strange stuff because I just don't know enough to begin to understand what he's talking about.” I considered playing this gambit but I decided not to do so because I concluded that Americans and Australians know each other too well for me to pull off such a sleight-of-hand.

Some years ago – many years ago – I revised (and, harrumph!, greatly expanded) the first volume of John Henry Wigmore's multi-volume treatise on the law of evidence. Being a reviser is both harder and easier than being an author of one's own book. It is easier because one can, if one wishes, take the position of a critic and commentator rather than that of author. And in dealing with some or many of the theoretical portions of Wigmore's magnum opus, I often did exactly that. However, after finishing my revision, I agreed to write a successor to my revision. Now, after a delay of many years, I am doing that. The job of this successor volume, like part of its precursor, is to examine “theoretical considerations” that bear on the law of evidence and proof. This means I can no longer just be a commentator. Now I must present my own “theory of proof.”

In looking at what others had done when trying to develop a theory of the law of evidence and proof, I saw many impressive accomplishments. I also saw a variety of approaches. On the one hand, some of the authors I read seemed to focus on the abstract logic of uncertain reasoning; and their theory of the law of evidence and proof (a theory that they often called a theory of “relevance”) effectively amounted to their view of the nature of logical thinking about uncertain factual propositions. It seemed to me then – and it seems to me now – there is something wrong with this approach. Above all, I wondered and wonder how it can be confidently said that the methods of reasoning and demonstration in a particular legal system (such as the American one) rest on and express such logic.

On the other hand, other American Evidence scholars seemed to do little more than catalogue some of the features they thought and said were characteristic of the American law of evidence and American methods of proof. These catalogues, taken as such, were sometimes interesting. But I couldn't see and I still can't see how such catalogues, in of themselves (if taken at face value), could be a considered a “theory” of the American law of evidence or American methods of proof. Catalogues, taken as such, are mere lists of things, not explanations.

In more recent years some legal scholars have taken middle course between these two extremes. Legal scholars such as William Twining, Paul Roberts, and Adrian Zuckerman have not tried to reduce the systems of proof they studied either to logic or to contingency. These authors have instead emphasized what might be called the force of cultural and normative ideals in the workings of the law of evidence and of evidentiary processes in settings such as criminal trials.2

__________

Note 2. In Criminal Evidence (2004) Paul Roberts and Adrian Zuckerman invoke five central principles to explain, they say, the main features of the law of criminal evidence in England. Id. at pp. 18-22. In Rethinking evidence: exploratory essays (2nd ed., 2006) (as well as elsewhere) William L. Twining describes what he calls the “rationalist” tradition of evidence scholarship. At p. 76 of that book he even provides a helpful table that summarizes the properties that that that scholarly tradition ascribes to the methods of inference and proof used in trials following the common law tradition. (But he views these attributes of inference and proof as forming an “ideal type” rather than an actual and precise characterization of any actually-existing system of juridical proof.)

__________

However, these folks (particularly Twining) are not willing to regard the law of evidence in this or that country as nothing more than a cultural artifact. Twining apparently thinks that logic is also at work in the proof process in law – at least sometimes and to some degree.3

__________

Note 3. In various writings Twining advocates the use of neo-Wigmorean analytical methods to advance what he presumably views as “rational” methods for lawyers to participate in the process of juridical proof. See, e.g., Terence Anderson, David Schum & William Twining, Analysis of Evidence (2nd ed., 2005). However, Twining has relatively little to say about the rationality or irrationality of specific rules of evidence such as the hearsay rule and the best evidence rule.

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I think this third way of looking at juridical proof – as being neither pure logic nor pure accident – is, roughly speaking, the correct one. But to say that is not to say a whole lot. Where do we go from here? More specifically, where do I go from here? What if anything can I add to what Twining, Roberts, and Zuckerman have said and written?

I yearn to extract timeless lessons – or, in any event, relatively timeless lessons – from my study of juridical proof in America. If I am to have any hope of doing that, I think I must turn to ontology – that is to say, I think I must talk about the fundamental nature of things, including the fundamental nature of the human animal. However, if an ontology is to be of any substantial use to me, it cannot amount to the teasing out of the necessary consequences or implications of the unchanging nature of things and human beings. That sort of ontology would likely generate an ideal model of juridical proof, but not an explanation of actual systems and practices of juridical proof. I want and need an ontology – a theory of nature and of human nature – that allows for contingency as well as necessity. In addition to that, however, I yearn for an ontology that allows reason to exist in contingency and accident (to exist, that is, in contingency, not just co-exist with it).

Can I have all that I want? That remains to be seen.

We all know what some of the necessary starting points must be. We must all concede, I think, that human beings have limited amounts of time and limited resources. Furthermore, we must all now concede, I think, that almost all factual questions have uncertain answers and that nothing we can do can eliminate all uncertainty about most factual hypotheses.

So far so good, yes? But what does this tell us about the nature of juridical proof?

Perhaps it tells us quite a bit. One might argue that given the realities of human existence that have been recognized so far, we know that a system of juridical proof must draw uncertain factual inferences about factual questions in a limited amount of time and with limited resources – and, knowing that, we at least know that if we are to understand factual proof we must understand the logic of uncertain inference and the workings of the logic inference under resource and time constraints. So, to understand proof, we must understand the logic and economics of uncertain inference. There are, of course, quarrels about the nature of the logic of uncertain inference and about how scarcity constrains and channels uncertain inference. But at least – so it might be argued – we know what we have to study and understand if we are to understand juridical proof.

But there is something wrong with this hypothesis. The error is hinted at by one question: How do we know that actual systems of juridical proof (if, that is, they deserve to be called “systems”) aim at establishing the truth about the world? Furthermore, even if we concede that truthfinding is one of the aims of any system of juridical proof, how do we know how important that aim is?

These questions point to an important feature of actual systems of juridical proof: Proof practices in legal settings are social and cultural phenomena that have multiple purposes; when viewed from the perspective of the norm of truthfinding, juridical proof has many “accidental” features – and nothing in heaven (or on earth) dictates what those “accidental” purposes are, how important they are, or what the tradeoffs are between such accidental purposes and truthfinding. Given these realities, it is probably not possible to deduce the necessary characteristics of juridical proof (except at a very abstract level, one from which deductions about specific proof practices can rarely be drawn).

Are we then reduced to embracing the question-begging proposition that ontology reveals the nature of juridical proof to the extent that juridical proof seeks to establish the truth about the world?

I think that is not the limit of what ontology has to teach us about the actual and necessary workings of juridical proof. I say that because modern ontology teaches us that the human animal is an evolving intelligent organism. This feature of our existence (in addition to the features of time and resource constraints) also has some necessary implications for the workings of rational juridical proof.

I cannot spell out all of the implications today. Permit me to mention just two possible implications of this fact about the present character of human existence.

First, because human beings are natural organisms, human beings will and must use tacit, ingrained, and subterranean knowledge and “information processing mechanisms” to reach conclusions about the world. This fact has in turn a variety of implications. For example, it generally means that no conceptual apparatus can hope to replace the inferential mechanisms that human beings use to draw conclusions about the world; and it means that, in general, the job of explicit inferential methods is, to the extent possible, to make the relatively implicit, the partially submerged, more explicit and less submerged. The person who more than any other has adopted roughly this perspective on representations of evidential inference is Timothy van Gelder. Van Gelder views such representations as tools that can “augment” existing human cognitive capacities – rather than as devices that replace defective human cognitive processes. In a seminal article about his software Rationale – and, more generally, about formal representations of evidential inference – van Gelder tellingly quotes D.A. Norman at the very beginning of the article:

The power of the unaided mind is highly overrated. Without external aids, memory, thought, and reasoning are all constrained. But human intelligence is highly flexible and adaptive, superb at inventing procedures and objects that overcome its own limits. The real powers come from devising external aids that enhance cognitive abilities. (Timothy van Gelder, “The Rationale for Rationale,” 6 Law, Probability and Risk 23, 24 (2007) (quoting D.A. Norman, Things That Make Us Smart: Defending Human Attributes in the Age of the Machine (Reading, MA: Addison Wesley, 1994).)
As this quotation makes plain, van Gelder definitely does not abjure logic. But he does believes that representations of logical evidential inference can complement naÃ¯ve cognitive capacity. In an e-mail conversation with me he referred to such representations as “extrospection” – as contrasted with introspection. This neologism evokes what I have in mind when I talk about the implications of thinking of individual human beings as “evolving intelligent organisms,” for the enterprise of constructing formal representations of evidential inference.

Second, the material that the human mind must excavate to guess at the proper workings of the human mind is not just the workings of one’s own psyche and mental processes. The philosophical investigator must entertain the hypothesis that at least some human social practices, like individual mental processes, are to some extent rational truthfinding practices and that social factfinding processes, like individual psychic and mental phenomena, can suggest or hint at important characteristics of the proper logic of evidential argument, or factual inference.4
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Note 4. In my abstract I offer three examples of the possible epistemological lessons of actual human social-legal practices. For example, I suggest that American proof practices, if viewed as resting on truthfinding considerations, harbor some possibly very important epistemological lessons about the relationship between truthfinding, multiple investigative hypotheses, and resource constraints. Cf. Peter Tillers, “The Fabrication of Facts in Investigation and Adjudication,” (1995, 1998 & 2007) (see esp. “§5. Implications of Interpersonal Variability in the Formation of Conjectures and Hypotheses: Let a Hundred (Discordant?) Flowers Bloom in Investigation and Proof?”), at http://tillers.net/fabrication.html
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My vision of (wo)man and his (her) world is neo-Aristotelian. I do not believe in the radical separation of descriptive inferential theory and normative inferential theory. I believe that the ideal workings of human inference must be and are rooted in the actual workings of human inference and that human intelligence consists in part of the ability to see when actual inference works well and when natural inference works in a degraded or imperfect fashion. The function of reflection and conscious thought is, to the extent possible, to perfect – and, very occasionally, to transcend – the excellence of natural human thought.

&&&

This – what I have just said – is the nub of what I wanted to say today. After I shared the outline of this talk and the abstract of my forthcoming paper with several close friends, I got two very interesting reactions.

One friend (Bruce Hay) wondered about – well, in truth, he vigorously challenged – my treatment of “the question of universality/necessity vs. accident/contingency.” He wrote that he wondered whether my premises imply that legal factfinding systems would evolve toward the same end, that they would all eventually become more or less the same or whether, instead, my principles or premises suggest or imply that “our limitations naturally evolve us toward very different cultural results.” Am I suggesting, that is, that “if we were all infinitely rational beings we would presumably have the same practices; but we aren't, so we should expect very different, localized, contingent, accidental adaptations in the matter of proof, as in other matters”?

I answered in part by saying the following:

You raise a question I didn't try to answer, the question of the universality or non-universality of my theory of proof. I recently told a good friend … that I had made a mistake in originally conceiving of my Sydney talk as sketching the outlines of a theory of proof.

My focus is in part on human social-legal practices as offering "hints" of rationality. This business of hints has an obvious and intended link to the Peircean … idea that evidentiary trifles are sources of inspiration for abductive inferences. …

Decades ago I was a neo-Hegelian. (That was before I decided that any kind of Hegelian logic is a dead end.) If I were still a neo-Hegelian, I might venture to guess that different societies largely-unwittingly experiment with, or at least try out, different visions of inferential rationality.5

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Note 5. Earlier in this talk I spoke of my yearning to extract timeless lessons – relatively timeless lessons – from ontology. One possible (relatively) timeless lesson from the evolving nature of human creatures and societies may be that different individuals and societies can and will entertain different ideas about how to best find the truth about facts and about how best to reconcile the search for the truth with other objectives, preferences, and aspirations. Cf. my concluding comments today about the question of the eventual convergence or non-convergence of individual or socio-legal methods for getting at the truth about facts. Simply stated, I am agnostic on the question of where all of us are headed.

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Two other friends – good friends both (Scott Brewer & Federico Picinali) – raised another question. They raised this second question in different ways but they raised essentially the same question.

One of these two good friends was particularly upset by what he thought were the anti-critical implications of my argument, by what he thought was the implication that human beings should tolerate and accept their error-prone ways of reasoning about evidence and facts. The other friend raised this same question in a different way. I answered as follows:

The question of the relationship between native or inherited reasoning, on the one hand, and artificial or new forms of reasoning, on the other hand, is central. It certainly is the case that in some domains (e.g., the realm of chemistry) we have improved our reason. It is also the case in other domains (such as law) that we hope to improve on our prior and inherited reasoning. It is rare that we can entirely escape from inherited (and often tacit) reasoning. But we can improve or we hope to improve how well our inherited conceptual, reasoning, sensory etc. equipment works. I see the human animal as in part a self-organizing creature. But the human creature must work with [the equipment] it has at any given moment. There is a mystery here: The human creature has the power to use what it has to become more than it was. This applies to reasoning and inferential ability. But history proves that this can happen. Else how does one explain the existence and power of methods such as calculus?
These two general questions – one question deals with humanity writ relatively large (socio-legal methods of factual inference and proof), the other with single human creatures (the methods individuals do and should use to draw inferences from evidence) – these two general questions may be related. I confess I hesitate to discuss how they may be related because I fear that I am wading into deep philosophical questions that are better addressed by theologians or cosmologists than by parochial lawyers such as me. But the persistent nagging of my friends has forced me into this corner. So please bear with me while I venture a few extremely speculative thoughts.

In both cases – both in the case of humanity writ large and in the case of humanity taken singly – I assert that it may be possible, appropriate, and perhaps even necessary to wrest rational methods for dealing with uncertain factual propositions out of our existing or inherited human thought-practices. The fragility of this hypothesis in either case (in the collective case or the case of the individual) is exposed by the following question: By what right can we or should we believe that anything in our existing way of thinking or in our existing way of doing things (dealing with factual issues) is rational and what is the process by which we supposedly improve on the hypothetically half-baked rationality of our existing modes of thought and action, which may not partake of rationality to begin with?

My answer to this is a concession that I have no demonstrably-correct solution to this difficulty. But I do say that what we see in ourselves (either taken singly or taken collectively) does sometimes appear to us to be rational and sensible and that when we reflect on what we presently do and the way we presently think (process information), we sometimes seem to make our half-conscious but rational inferential practices more explicit and thereby – it seems to us – sometimes make our existing ways of thinking and acting work better – and that sometimes we are even able to decide to modify the way we think and act (as well improve the working of our ways of thinking and acting) and that sometimes (but not always) by doing so we are able to become more rational in the way we draw conclusions about facts. I also say that I am not alone in believing that such things happen. But I readily concede that this is not conclusive proof that such things do actually happen. Moreover, I concede that even if I am correct – even if such things do happen – I am not in a position to say whether we are all evolving toward becoming better and more rational beings or whether something like a divine or cosmic spirit or substance has implanted within us some budding rationality together with the ability to develop our incipient and imperfect rationality and sometimes even transcend it. But I am entitled to hope!

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My thanks to Bruce Hay, Scott Brewer, and Federico Picinali for their perceptive comments on a draft of this talk. (My thanks also to Jim Franklin and Michael Risinger, who made comments after the talk was written.)