A Witness, Two Lawyers, and a Trial Judge Form Some Beliefs, Make Some Statements, and Shape a Lawsuit

Two Lawyers and a Judge Shape a Lawsuit

The Role of Decision Makers' Epistemic States (Inferences) & Speech Acts in the Formation of an Episode of a Legal Process such as Litigation

The Difficulty of Pretrial or Prelitigation Investigation and Planning

Question: Why is the investigation of and planning for a possible lawsuit and trial more difficult than planning and preparation in the somewhat-but-not-precisely comparable settings & situations mentioned (see below) by David B. Leake in Artificial Intelligence?

In real-world situations, it is seldom possible to generate a complete plan in advance and then execute it without changes. The state of the world may be imperfectly-known, the effects of actions may be uncertain, the world may change while the plan is being generated or executed, and the plan may require the coordination of multiple cooperating agents, or counterplanning to neutralize the interference of agents with opposing goals. Determining the state of the world and guiding action requires the ability to gather information about the world, though sensors such as sonar or cameras, and to interpret that information to draw conclusions (See MACHINE VISION). In addition, carrying out actions in a messy and changing world may require rapid responses to important events (e.g., for a robot-guided vehicle to correct a skid), or an ongoing process of rapidly selecting actions based on the current context (for example, when a basketball player must avoid an opponent). Such problems have led to research on reactive planning, as well as on how to integrate reactive methods with the deliberative methods providing long-term guidance (See ROBOTICS). The RoboCup Federation sponsors an annual series of competitions between robot soccer teams as a testbed for demonstrating new methods and extending the state of the art in robotics (www.robocup.org).

Wishes, Horses, and Group-to-Individual Inference

Take a gander at this -- if you wish: If Wishes Were Horses: Discursive Comments on Attempts to Prevent Individuals from Being Unfairly Burdened by their Reference Classes

The 72-witness rule

James Franklin reports (at pp. 13-14 in his book The Science of Conjecture: Evidence and Probability before Pascal (2001)) that the False Decretals, a mish-mash of things compiled ca. 850 A.D., contain a passage asserting that a "bishop should not be condemned except with seventy-two witnesses." About this and some similar rules for defendants of lesser stature Franklin writes:

It is the world's first quantitative theory of probability. Which shows why being quantitative about probability is not necessarily a good thing.

Evidence and Discretion in Booker

I have not yet studied the opinions in Booker v. United States, 2005 LEXIS 628 (Jan. 12, 2005), but based on the holding in Booker as I now understand it (i.e., before actually reading the opinions), I already know that this Evidence person will have one nagging question in his brain as he tries to decipher Booker.

Although Booker arguably strikes a blow for liberty (see my post of January 12, 2005), second-hand accounts (and my quick skim of small portions) of Booker suggest that Court embraced a proposition that strikes me as extraordinarily odd:

A trial judge violates the constitution (the Sixth Amendment right to trial by jury) if she enhances the sentence of a criminal defendant beyond the normal statutory maximum if a jury has not found that the evidence presented to it shows beyond a reasonable doubt that the factor or factors justifying such enhancement do in fact exist; but a trial judge can impose a harsher than normal sentence (i.e., enhance a sentence beyond the normal statutory maximum) without jury adjudication of the existence or nonexistence of factors that the trial judge believes warrant the imposition of a harsher than normal sentence -- as long as the trial judge is not required by a legislative command to impose a harsher than normal sentence under specified circumstances.

If this is the Court's conclusion, the conclusion is odd. Does the Court's conclusion rest on the proposition that evidence is immaterial if a trial judge (or the judiciary) is free to decide which circumstances warrant the imposition of a harsher than normal sentence? Why should the decision to enhance a sentence be free from the constitutional requirement of proof beyond a reasonable doubt merely because the trial judge (or the judiciary) is left with the freedom to decide which circumstances warrant a harsher than normal sentence? Does the Court's position rest on the fallacy that evidence is immaterial if decision involves discretion? See P. Tillers, The Value of Evidence in Law (1988).

A Coalition for Liberty?

Federal Sentencing Rules Are Wrongly Applied, Court Rules by The Associated Press in NYTimes Online (January 12, 2005):

The high court's vote to require more jury participation was 5-4 and included the same odd right-left combination of justices as those who had held sway in June. Justices Antonin Scalia and Clarence Thomas are the court's most conservative members. Justices John Paul Stevens, David H. Souter, and Ruth Bader Ginsburg are in the liberal wing.

Refreshing! -- on a number of counts.

Footnote: Perhaps the UK will reconsider its current skepticism about the value of lay participation in ajudication?

How Long Did the Typical English Criminal Trial before the Lawyers Last?

In a recent book review, "Though the Heavens May Fall'" and "Bury the Chains": Freed, NYTimes Sunday Book Review (Jan. 9, 2005), Marilynne Robinson wrote:

More insight into the actual operations of the law would have been useful -- some discussion, for example, of the yawning gulf between the principle of the right to trial and the fact that in early-19th-century England, an average felony trial lasted less than nine minutes, sometimes ending so quickly that the accused did not know he had been tried.

Does someone in cyberland have documentation for this point, please? I am interested in the point because I am skeptical of the praises that Prof. John Langbein sings for the English criminal trial before lawyers began representing defendants in felony cases.

Thank you!

Evidence Exam: Try Your Hand?

Question

Peter Plaintiff is a prison inmate. Della Defendant is a prison guard. Peter brings a civil action against Della in the State of Blackacre. The action is for assault and sexual assault. The first count of Peter’s complaint avers that at 2:00 a.m. on June 1, 2002, Della shot Peter in the leg with a revolver as he lay sleeping on his bed in his cell. The second count of the complaint avers that Della climbed into bed with Peter after shooting him and attempted to have sexual intercourse with him. Della’s responsive pleading to the complaint contains an answer and a counterclaim. The answer avers that Della shot Peter to ward off Peter’s attempt to rape her. The counterclaim states a claim against Peter for assault.

The case proceeds to trial in a court of the State of Blackacre. Judge Major Wisdom is the presiding judge. You are Judge Wisdom’s law clerk. Your name is Diligent Clerk.

At the trial Peter testifies that Della assaulted and sexually assaulted him in the manner described in the complaint. On cross-examination Peter states, “I have never belonged to a gang.”

Della’s counsel then offers to have Buddy Cellman testify that he (Buddy) and Peter were cellmates and that on September 1, 2004, Peter said to him:

You know, I belong to Prison Misprision. That’s a prison gang. It’s got a chapter right here in our joint. It’s got chapters in lots of joints. Prison Misprision has got lots of mumbo-jumbo. When people are initiated into Misprision, they swear to maim prison guards and rape women. That’s done in candlelight. That’s the way it’s done in all of the gang’s chapters. Buddy, you should consider joining Misprision. If you don’t join a gang, the guards will get you even if your fellow inmates don’t. I know what I’m talking about. In this joint ya gotta get your enemies before they get you.

Peter’s counsel objects to this proposed testimony.

Judge Wisdom responds, “We need to adjourn the trial for a day so that I can consider the admissibility of Mr. Cellman’s testimony.” Judge Wisdom then turns to you and says, “Diligent, I want you to write a memo for me. I want your memo in my hands in 24 hours or less. I want you to tell me if Buddy’s testimony about his conversation with Peter is admissible or inadmissible. Consider and evaluate all plausible objections to Buddy’s testimony. Hit the books!”

Write the memorandum and submit it within 24 hours.

On a Comment by Senator Brownback in the Confirmation Hearing on the Nomination of Alberto Gonzales for Attorney General

Dear Senator Brownback:

The department that the U.S. Attorney General heads is called the "Department of Justice," and not the "Department of Security."

***

Senator Brownback said that the first priority of the Attorney General is protection of the security of the United States.

***

The Attorney General is in part a prosecutor. But the Attorney General also has the duty to see that justice is done. The precise manner in which these two duties should be combined is subject to disagreement. But few informed observers (other than Senator Brownback) believe that the duty of the Attorney General to promote security takes absolute precedence over every other duty.

Death of a Scholar

Visiting adjunct professors (and many visiting professors) are the Willie Lomans of the twenty-first century.

Science in Legal Education

David L. Faigman, Legal Alchemy: The Use and Misuse of Science in the Law xi-xii (2nd Paperback Printing, 1999, 2000):

... The average lawyer is not merely ignorant of science, he or she has an affirmative aversion to it. ...

...[L]aw students feel no sense of urgency in learning about science. It is not tested on state bar exams. ... From [the students'] vantage point, science is not a necessary part of legal education.

Most of the fault for this misperception lies with the law schools. ... Law students have no sense of urgency about science because their professors do not. ...

...

Without question, law schools will eventually respond to the overwhelming presence of science in the legal process. They have no choice. For now, however, an entire generation of lawyers is being trained without the critical or practical skills to understand what is and what will continue to be an essential part of the lawyer's job description.

Christmas Eve, 2004

There was a time in my life when 1984 lay far in the future. It was George Orwell's 1984. But 1984 came and went. And now it is 2004. And things aren't half-bad.

Merry Chistmas, Season's Greetings, or -- Whatever!

Have a very good new year, y'all.

And remember: always keep the evidence before you. That's the key to the truth.

Facial Profiling

I recently submitted a paper that deals in part with "facial profiling" -- or so I said in my paper.

Now there's a novel law journal topic for you!

Evidentiary Burdens

It is an error to think that an individual can escape being subjected to inferences that depend on observations and judgments about the behavior and attributes of other human beings. Not in a pig's eye! No one can altogether avoid being saddled with signs, signposts, and evidentiary hints that the operations of the world and other people have created.

A Great Leap Forward

"Google, the operator of the world's most popular Internet search service, announced today that it had entered into agreements with some of the nation's leading research libraries and Oxford University to begin converting their holdings into digital files that would be freely searchable over the Web." John Markoff & Edward Wyatt, Google Is Adding Major Libraries to Its Database, New York Times (online), Dec. 14, 2004.

I propose that Google be designated an eleemosynary institution and that Congress mandate that donations to Google be made tax-deductible.

This is truly a great leap forward. Think of all the people in remote corners of the world -- in Columbus, Ohio, for example -- who will be able to access Stanford University's library materials -- and Stanford's reputation, by reason of its generosity, will soon outpace Harvard's. (Harvard is making only 40,000 volumes available online -- "initially." [Harvard, I suppose, is hedging its bets.])

A Modest Proposal for the Marketplace of Grades

A law school colleague sent me a copy of the memorandum found below. I have concluded that my friend wanted me to make the memorandum public.

***

To: Freerise Faculty
From: Prof. Carmichael Carmatcheon
Re: ASC Proposal to Increase Mandatory Median GPA
Date: Sunday, December 5, 2004

I endorse the proposal of the Academic Standards Committee [ASC] to increase the mandatory median GPA at Freerise Law School in order to (i) enhance the employment prospects of Freerise students and (ii) put Freerise students on an even footing with their peers at Pennsylvania, Villanova, and Temple. However, I believe the Committee's proposal is too modest. My recommendations and reasoning are set forth below.

1. As the Committee itself observed, the purpose of the Freerise grading system is to enhance the employment prospects of Freerise students. But if this is the purpose of grades, it follows that all Freerise students should graduate with all "A"s. I so move. (The option of requiring that only "A+"s be awarded is discussed and rejected in par. 4 below.)

2. It is true that the credentials of Freerise students do not quite match of the credentials of students at Penn and Villanova. But this is no reason why the grades of Freerise students should be lower than the grades of students at Penn or Villanova. Freerise properly aspires to compete with Penn and Villanova. Indeed, there should be no limit on Freerise's relentless pursuit of excellence. The median GPA at Freerise should match the highest median GPA at any law school in the country. The median GPA at Harvard is now approximately 3.5. The effective median GPA at Yale or Stanford is probably even higher. If the first motion fails (see par. 1 above), I move that the mandatory median GPA for all first year Freerise students be 3.75; for all second year Freerise students, 3.85; and for all third year students, graduating students, and graduate students, 3.95.

3. I move that Freerise publicly censure academic institutions that are attempting to reverse "grade inflation." So-called grade inflation is a good thing. All law students are above average.

4. I move that all possible steps be taken to hinder attempts by employers to estimate the class rank of Freerise students. It is obvious that if this is not done, any increase in the median GPA at Freerise will have little or no effect.

The best way to enhance the employment prospects of Freerise students while preventing employers from calculating or estimating the class rank of Freerise students is to require that all Freerise students be awarded the grade of "A+" in all courses. However, this step may be premature; it risks making Freerise a laughing stock. Hence, I renew the more modest and reasonable motion that all students be awarded at least "A" in all courses. See par. 1 above. (We can count on the discretion and good sense of the faculty not to subvert the purpose of this rule by awarding an excessive number of "A+"s. However, if experience proves otherwise, the question of whether the mandatory minimum grade of "A" is too low can be revisited at a later time, perhaps as early as next semester.)

5. I move that the grades of "F" and "D" be abolished. Such grades demean the students who receive them. (These grades are in any event almost never given at Freerise.)

6. If the preceding motion (see par. 5 above) fails, I move that any faculty member who awards an "F" or "D" be required to submit a 75 page memo (10 point type, single-spaced) justifying such a grade. If any such justification is deemed inadequate by the FSBA [Freerise Student Bar Association], the faculty member awarding such a grade shall forfeit $10,000 pay per year for three (3) years or, in special circumstances, $20,000 p.a. for five (5) years.

Heavy with Footnotes

Arnold S. Jacobs "holds the world's record for the law review article with the most footnotes (4,824 footnotes, to be exact)." See http://www.proskauer.com/lawyers_at_proskauer/atty_data/0225.

With due all respect to Mr. Jacobs, I wish to note that judgments about scholarly fame -- or disgrace -- depend in part on how one measures such things. For example, one of my footnotes runs for 31 pages (in ten or eight point single-spaced type). See IA Wigmore on Evidence Section 62, at p. 1261-1295 n. 11 (Peter Tillers rev., 1983) (most of this footnote is my doing rather than Wigmore's). This is not an isolated example. See, e.g., I Wigmore on Evidence Section 5 n. 11 (Tillers rev., 1983)(29 pages; my doing entirely). Indeed, it might fairly be said that large portions of my revision of the first volume of Wigmore's Treatise consist of footnotes with text added.

N.B. A word of advice for aspiring legal scholars: If you wish to hide your light under a bushel, there is no better example to emulate than mine -- i.e., you should revise a major treatise (and, ideally, put your own work and thoughts in footnotes in very small print). Doing this will practically guarantee three things:

(i) people will regularly give the original author of the treatise that you have laboriously revised, credit for your insights and your work (see, e.g., Castillo v. E.I. Du Pont de Nemours & Co., 854 So. 2d 1264, 1280, at 1282 (Fla., 2003)(Pariente, J., concurring) (quoting "Wigmore" in Section 41 of the 1983 revision);

(ii) as you approach senescence (and frequently not before), some of the interesting things you wrote will (finally) be discovered -- and you may, perhaps, take some satisfaction in this even though such belated discoveries come too late to boost your career prospects or your income; and

(iii) belated public recognition (here and there) of the things you said (lo! those many years ago in those footnotes) will remind you that some thoughts touted as original by other legal scholars in your field sometimes 'tain't original 'tall (but this sort of reminder is a pleasure available to authors of law journal articles and treatises as well as to revisers of treatises).

On a serious note: It is simply a fact that prior important scholarship often goes unacknowledged. This may be lamentable. But, given the sheer volume of U.S. legal scholarship (and pertinent scholarship by people in other fields), such failures to acknowledge prior relevant work are practically inevitable. One can only hope that in time later laborers in the scholarly vineyards will detect and correct such oversights. But I worry a bit about the adequacy of this sort of corrective mechanism in some cases: I worry that legal scholars are less prone than other kinds of scholars to correct the historical record in scholarship because perhaps it is true that in the legal academy institutional affiliation counts more than in many other sectors of academia and perhaps diligent legal scholars are therefore less willing to publicly take note of the errors committed by some of their colleagues who occupy positions in high or higher places. But perhaps this problem of the corrosive power of status is no more severe in the law school world than it is in most other parts of the academy.

Causes, Associations & Signs

Theories about the workings of inference from evidence perhaps fall into three groups:

1. probabilistic causality
2. associationism
3. semiotics

The first approach holds that evidence works as evidence only if there is a causal connection between evidence and hypothesis.

The second approach holds that evidence works as evidence when experience shows a regular connection (to some degree or frequency) between evidence and hypothesis.

The third approach holds that matters which work as evidence function as signs of matters (hypotheses) beyond themselves.

The third approach, to be respectable, must be stripped of the turgid nonsense in which "semiotics" has been wrapped by many literary theorists.

Much of the theorizing about evidence in the American legal academy buys into the notion that evidence works as evidence only because of experienced or observed regularities in the occurrence of distinct events or phenomena -- that evidence works as evidence only because of the relative frequencies of distinct events or phenomena. But the law in practice is generally indifferent to the relative plausibility of these three seemingly-divergent accounts of evidence, inference, relevance, and probative value; viz., the law in practice accepts much evidence whose causal connection to hypotheses of interest is not demonstrated or demonstrable; it accepts some evidence whose probative force rests on a causal account rather than on observed association or for any other apparent reason; and judges administering the law of evidence accept much evidence as worthy of consideration even when neither a causal account nor observed regularities seem to provide any apparent reason for doing so.

It is good that the law of evidence does accept any one of these three theories as orthodox and authoritative dogma. There are large grains of truth in all three accounts.

The real question, presently unanswerable, is which account best accommodates all three types of sources of human empirical knowledge.

I suspect that the best foundation for a comprehensive account of evidence and inference is laid by semiotic theory, the approach that emphasizes that evidence is an event or state that indicates or suggests a matter apart from, in addition to, or beyond itself.

The view of evidence as essentially sign, or hint, is most readily compatible with the hypothesis that both the human brain (along with its appurtenances) and the cosmos happen to be wired in such a way that a human actor has the ability to see a glimmer of a new truth based upon one encounter with some event or state of affairs -- based, in other words, on an encounter with a unique event, a singularity. And only semiotic theory explains how evidence manages to prod the human imagination to attack complex problems in quite fruitful ways, in situations that are so complex, that have so many ingredients, that random conceptual walks even over aeons of time could not be expected to yield plausible conjectures.

I will explain the above points in much more detail later -- in my promised book. Stay tuned!