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.


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.


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

Three Questions about the Conjunction Paradox

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?


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