Those Blinking Declarations!

Oh, real-world evidence problems are so messy! Consider the case in which the victim of a homicide - before his death - allegedly identified his killer by blinking his eyes three times. See Lisa Cornwell (AP reporter), Ohioan to appeal conviction in 'dying blinks' case Houston Chronicle (May 17, 2013). One thinks of Stephen Hawking.

There were "mundane" problems in the Ohio murder case.

For example, the paralyzed victim had been treated with drugs. The victim "failed to respond" to some questions. Sometimes it was "unclear" how often the victim blinked. During questioning, the victim was shown only one photograph, a photo of the defendant.

 The victim died about two weeks after he was questioned by the police.

 

Did the blinks amount to a "dying declaration"? (Did he think he was dying, did he think his death was imminent, etc.?)

 

If they did, were the victim's statements "testimonial" for purposes of contemporary Confrontation Clause jurisprudence? (I hesitate to call it "jurisprudence," but ..., oh well.)

 

Was the identification procedure so unduly suggestive that it violated the federal constitutional guarantee(s) of Due Process?

 

But, above all (I think), is this question: Did the jury have sufficient evidence to conclude beyond a reasonable doubt that the defendant was the killer?

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Proposed new standards for expert witnesses in family court cases in England and Wales

New standards for expert evidence in family courts announced, Consultation launched on exclusion of ‘so-called experts who are not up to scratch’ Fanily Law Week (May 16, 2013?):

The Ministry of Justice has proposed introducing new standards for expert evidence adduced in family proceedings so that such evidence can be given only by qualified, experienced and recognised professionals. 

The government says that for too long there has been an increasing trend in England and Wales for expert witnesses to provide unnecessary and costly evidence – in the form of further written statements, clarifications and additional court appearances. This, continues the Ministry of Justice, can cause major delays in child care cases and in the worst examples this has led to cases being forced to start again.

Under the new plans, for which there will be a consultation lasting nine weeks, experts who are well-qualified and experienced will continue to provide their service in advising the family courts – but (what it terms) 'the so-called experts who provide evidence which is simply not up to scratch' will be excluded.

Family Justice Minister Lord McNally said:

"Poor quality expert evidence can lead to unacceptable delays for children and their families.

"By putting standards in place we will ensure only the highest calibre of evidence is permitted in family proceedings.

"We want to ensure that evidence being put forward is more robust and that cases are resolved more quickly. It is an opportunity we cannot afford to miss."

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The article is short on details about how the proposed tightening of requirements for expert testimony will be achieved.
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Dan Kahan on Some Factors Affecting "Objectivity" (and the lack thereof)

Dan Kahan, Motivated reasoning & its cognates (blog post), Cultural Cognition Project  (May 15, 2013):

1.  Generally. Motivated reasoning refers to the unconscious tendency of individuals to process information in a manner that suits some end or goal extrinsic to the formation of accurate beliefs.  ...

[snip, snip]

The end or goal motivates cognition in the sense that it directs mental operations — in this case, sensory perceptions; in others, assessments of the weight and credibility of empirical evidence, or performance of mathematical or logical computation — that we expect to function independently of that goal or end.  Indeed, the normal connotation of “motive” as a conscious goal or reason for acting is actually out of place here.  ...

Although the students in this study [discussed by Kahan] probably would not have been distressed to learn that their perceptions had been covertly recruited by their desire to experience solidarity, there can be other contexts in which motivated cognition subverts an actor’s conscious ends.  This might be so, for example, when a person who genuinely desires to be make a fair or accurate judgment is unwittingly impelled to make a determination that favors some personal interest, pecuniary or social.

2.  Identity-Protective Cognition. The goals or needs that can motivate cognition are diverse.  They include fairly straightforward things, like a person’s financial or related interests.  But they reach more intangible stakes, too, such as one’s need to sustain a positive self-image or the desire to promote states of affairs or other goods that reflect one’s moral values.

Affirming one’s membership in an important reference group ... can encompass all of these ends simultaneously.  Individuals depend on select others — from families to university faculties, from religious denominations to political parties — for all manner of material and emotional support.  Propositions that impugn the character or competence of such groups, or that contradict the groups’ shared commitments, can thus jeopardize their individual members’ well-being.  Assenting to such a proposition him- or herself can sever an individual’s bonds with such a group.  The prospect that people outside the group might credit this proposition can also harm an individual by reducing the social standing or the self-esteem that person enjoys by virtue of his or her group’s reputation.  Individuals thus face psychic pressure to resist propositions of that sort, generating a species of motivated reasoning known as identity-protective cognition.

Identity-protective cognition, like other forms of motivated reasoning, operates through a variety of discrete psychological mechanisms.  Individuals are more likely to seek out information that supports than information that challenges positions associated with their group identity (biased search).  They are also likely selectively to credit or dismiss a form of evidence or argument based on its congeniality to their identity (biased assimilation).  They will tend to impute greater knowledge and trustworthiness and hence assign more credibility to individuals from within their group than from without.

These processes might take the form of rapid, heuristic-driven, even visceral judgments or perceptions, but they can influence more deliberate and reflective forms of judgment as well.  Indeed, far from being immune from identity-protective cognition, individuals who display a greater disposition to use reflective and deliberative (so-called “System 2”) forms of reasoning rather than intuitive, affective ones (“System 1”) can be expected to be even more adept at using technical information and complex analysis to bolster group-congenial beliefs.

3.  Naïve Realism. Identity-protective cognition predictably impedes deliberations, negotiations, and like forms of collective decisionmaking.  When collective decisionmaking turns on facts or other propositions that are understood to bear special significance for the interests, standing, or commitments of opposing groups (for example, those who identify with the respective sides in the Israel-Palestine conflict), identity-protective cognition will predictably exaggerate differences in their understandings of the evidence.  But even more importantly, as a result of a dynamic known as “naïve realism,” each side’s susceptibility to motivated reasoning will interact with and reinforce the other’s.

Naïve realism refers to an asymmetry in the ability of individuals to perceive the impact of identity-protective cognition.  Individuals tend to attribute the beliefs of those who disagree with them to the biasing impact of their opponents’ values.  Often they are right.  In this respect, then, people are psychological “realists.”  Nevertheless, in such situations individuals usually understand their own factual beliefs to reflect nothing more than “objective fact,” plain for anyone to see.  In this regard, they are psychologically naïve about the contribution that group commitments make to their own perceptions.

[snip, snip]

4.  “Objectivity.” As naïve realism presupposes, motivated reasoning is an instance of what we commonly recognize as rationalization.  We exhort others, and even ourselves, to overcome such lapses — to adopt an appropriate stance of detachment — in settings in which we believe impartial judgment is important, including deliberations or negotiations in which vulnerability to self-serving appraisals can interfere with reaching consensus.  What most people don’t know, however, is that such admonitions can actually have a perverse effect because of their interaction with identity-protective cognition.

[snip, snip]

5.  Cultural Cognition. Disputes set in motion by identity-protective cognition and fueled by naïve realism occupy a prominent place in our political life.  Such conflicts are the focus of the study of cultural cognition.

Cultural cognition refers to the tendency of individuals to conform their perceptions of risk and other policy-consequential facts to their cultural worldviews.  ...

Methods of cultural cognition have also been used to measure controversy over legally consequential facts.  Thus, mock jury studies have linked identity-protective cognition, motivated by the cultural worldviews, to conflicting perceptions of the risk posed by a motorist fleeing the police in a high-speed chase; of the consent of a date rape victim who said “no” but did not physically resist her assailant; of the volition of battered women who kill in self-defense; and of the use of intimidation by political protestors.  To date, however, no studies have directly tested the impact of cultural cognition on judges.

6.  Cognitive Illiberalism. Finally, cognitive illiberalism refers to the distinctive threat that cultural cognition poses to ideals of cultural pluralism and individual self-determination.  Americans are indeed fighting a “culture war,” but one over facts, not values.

[snip, snip]

As much as they agree about the ends of law, however, citizens are conspicuously — even spectacularly — factionalized over the means of attaining them.  Is the climate heating up as a result of human activity, and if so will it pose any dangers to us?  Will permitting citizens to carry concealed handguns in public increase violent crime — or reduce it?  Would a program of mandatory vaccination of schoolgirls against HPV promote their health by protecting them from cervical cancer — or undermine it by lulling them into unprotected sex, increasing their risk of contracting HIV?  Answers to questions like these tend to sharply polarize people of opposing cultural outlooks.

Divisions along these lines are not due to chance, of course; they are a consequence of identity-protective cognition.  ...

Far from counteracting this effect, deliberation among diverse groups is likely to accentuate polarization.  ...

[snip, snip]

Psychologically, however, the injunction to present culturally neutral empirical grounds for one’s position has the same effect as an “objectivity” admonition.  The prospect that one’s empirical arguments will be shown to be false creates the identity-threatening risk for her that she or others will come to form the belief that her group is deluded and, in fact, committed to propositions inimical to the public welfare.  In addition, the certitude that empirical arguments convey — “it’s simply a fact that . . . ”; “how can they deny the scientific evidence on . . . ?” — arouses suspicions of bad faith or blind partisanship on the part of the groups advancing them.  Yet when members of opposing groups attempt to rebut such arguments, they are likely to respond with the same certitude, and with the same lack of awareness that they are being impelled to credit empirical arguments to protect their identities.  This form of exchange — the signature of naïve realism — predictably generates cycles of recrimination and resentment.

[snip, snip]

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