For interesting notes about these and other questions -- including the relationship between (i) "artistic" representations and (ii) representations using "logical" elements such as arcs and nodes -- see Priit Parmakson, When Does Non-Visual Become Visual?.
Saturday, June 10, 2006
What Is "Visualization" of Evidence and Inference?
Premise: Visualization can facilitate the comprehension, memorization, and analysis of evidence. See Conference Announcement: Graphic and Visual Representations of Evidence and Inference in Legal Settings. But what is "visualization"? (Can blind people visualize evidence?) And when and why do visual representations of evidence and inference impede rather than facilitate understanding? Do successful visual (or graphic) representations of complex problems simplify them? How do they do that? Can representations built out of simple elements become complex? (Yes.) Unintelligible? (Yes.)
Friday, June 09, 2006
Buy This Gem
Be sure to place an advance order for your copy of the following sparkler: the second edition of The Structure of Legal Argument and Proof: Cases, Materials, and Analyses by J.S. Covington, Jr. You will find no better introduction to legal reasoning and other kinds of uncertain reasoning in law. This little book has much to offer old war horses as well as young stallions and fillies.The book will be available in August from William S. Hein & Co., Inc., Buffalo, New York.
Poor or non-existent marketing by the publisher of the first edition doomed the author's first effort to obscurity. You should help see to it that such an injustice does not happen again. If it does, you will be the poorer for it.
Covington is Professor of Law Emeritus at the University of Houston.
Tuesday, May 30, 2006
Thursday, May 25, 2006
Character & Criminality: Some Crime Really Runs in Families
Several years ago an interesting article appeared in the NYTimes but, as far as I can tell, the article got little attention in the Evidence community. The article was about Rooster Bogle and his family. It was written by Fox Butterfield and appeared in the New York Times on August 21, 2002. A fellow blogger, Dr. Jim Eckman, has this interesting summary of the story of Rooster Bogle and his family:
THE LEGACY OF A FATHER The Old Testament talks about the sins of the fathers being visited on the four or five generations that follow. This has always been a difficult concept to understand. At the very least, it gives focus to the truth that fathers have an enormous influence on their children. How a father lives will influence his children, who will then influence their children, etc. The case of Rooster Bogle of Salem, Oregon illustrates this truth.
Dale Vincent Bogle, known as Rooster Bogle, taught his children well. He was in and out of prisons all of his life. He regularly beat his wife and taught his children to steal.
By the time his sons were 10, they were breaking into liquor stores for their dad or stealing tractor-trailer trucks, hundreds of them. His girls turned to petty crimes to support their drug addiction. In time, everybody in the family was in jail. By official count, 28 in the Bogle clan have been arrested and convicted, including several of Rooster’s grandchildren. One of Rooster’s children stated, “Rooster raised us to be outlaws. There is a domino effect in a family like ours. What you’re raised with, you grow to become. You don’t escape.”
Prison officials are now concluding that the Bogle clan is an extreme example of the reality that crime runs in families. Justice department figures demonstrate that 47% of inmates in state prisons have a parent or other close relative who has also been incarcerated. Similarly, the link between the generations is so powerful that half of all juveniles in custody have a father, mother or other close relative who has been in jail or prison. Incredibly, until recently, few states have paid attention to this obvious cycle of crime. The cost to society is enormous. The cost, for example, of incarcerating just 5 of the 28 Bogle clan is $3 million, not counting the cost of their trials.
What social science is now showing us is that the fundamental cause of crime is not primarily poverty, abuse, neglect or drug use, all of which do contribute to criminal behavior. Perhaps the critical reason for criminal behavior is that children learn to imitate their parents. Instead of learning appropriate behavior, they learn to steal, cheat, lie and manipulate. The point is that parents play a tremendous role in shaping the behavior of their children. What they do is often modeled by their children. That is why Moses argued in Deuteronomy 6 that parents are to formally teach the truth about God and to model that same truth through the daily routines of life. There is therefore both a formal and an informal means for communicating truth. If parents like Rooster Bogle formally and informally teach rebellion, dishonesty and violence, the children will grow up doing the same thing. What social science is now telling us is what the Bible has been saying for thousands of years.
Thursday, May 11, 2006
Worrisome Details in Case Involving Fantastic Claims
Until today I had not heard about the trial (and, now, conviction) of the Toledo priest charged with a satanic killing of a nun -- 26 years ago. See, e.g., "Priest convicted of killing nun," UPI Online (Toledo, Ohio; May 11, 2006).
The victim, Margaret Ann, a nun, was murdered in a hospital chapel. "She was murdered on Holy Saturday, the day before Easter, as she prepared the chapel for holiday services. The killer attacked her in the chapel sacristy where the Eucharist was held, strangling her and then stabbing her 31 times, including nine times through an altar cloth. Those wounds [the prosecutor argued] formed the shape of an inverted cross." Harriet Ryan, "Catholic priest convicted of nun's 1980 murder," courttvnews [online] (May 11, 2006). The defendant, a priest, was the chaplain at the chapel.
The jury convicted the defendant, Gerald Robinson, of murder. The jury was apparently convinced that Robinson used a letter opener that he owned to kill Harriet Ryan. However, there are some troubling details about case against Robinson:
1. The reopening of the case against the priest was precipitated by an anonymous person who accused various priests in the Toledo area, including the defendant, of having molested that person years earlier. However, no action has been taken on that complaint.Based on the little I know, this is a very troubling case.2. A local member of SNAP -- Survivors Network for Those Abused by Priests --, it appears, played a large role in getting the prosecutor to reopen the case and to investigate the possibility that Robinson was the culprit. SNAP has rarely if ever encountered an abuse charge against a priest that it disbelieves. Why was this member of SNAP interested in a murder charge against Robinson? Did this member of SNAP have a connection to the anonymous sex abuse complainant or to some other alleged victim or victims of Robinson's sexual molestation and, if so, was this member of SNAP trying to use the murder charge as leverage for possible civil actions against Robinson? What precisely was this SNAP member's role in the murder case?
3. Evidence purporting to show some sort of satanic practices by the defendant Robinson was submitted at the trial. But in his closing argument the prosecutor said "that the murder was not a satanic or ritualized killing" but that, nevertheless, "Robinson performed a 'bastardized version of last rites' on Sr. Margaret Ann.'" Id. I'm not sure there is much of a difference between these two types of alleged religious misconduct. But if there is a difference, why did the prosecutor apparently try to run away from the charge of satanic practices? And if satanic practices were not part of the prosecutor's theory of the case, why did the prosecutor offer evidence of satanic practices at trial?
4. "During the three-week trial, an expert in the occult testified that only a member of the clergy would have the specialized knowledge of Catholic rituals evidenced in the killing." Id. Are you as suspicious as I am about thus supposed expert in the occult? Is it your guess that this "expert" spouted hokum? And why is it that the prosecutor used this "expert in the occult" to testify to Catholic religious rituals instead of an expert in Catholic religious rituals, a person such as a Catholic bishop or a member of the faculty at a Catholic seminary?
5. The evidence that the killing was done in conformity with some distorted religious ritual is highly suspicious. For example, the prosecutor argued that the 31 wounds on the nun's formed an upside down cross. Was that impression -- the impression that the wounds formed a cross -- something akin to a Rorschach test? (Do you recall the highway overpass on which, it appeared -- to some believers -- that an image of the Virgin Mary appeared, at least at times? [Some people, try as they might, could not discern the image of a woman on the overpass. Other people thought they saw streaks created by rain flowing down over grainy concrete.] In these situation much depends on the imagination of the beholder.) And if the killer did make a cross, he must have been fairly clever and persistent and strong and fearless to take the time to kill the victim by precisely landing 31 stab stabs in the pattern of a cross, don't you think?
6. And what evidence was there that Robinson rather than someone else was the guy who stabbed Margaret Ann? Well, it wasn't DNA: DNA tests on Margaret Ann's clothing revealed the DNA of some third person. This, of course, doesn't prove Robinson's innocence. It is entirely possible that after Margaret Ann was killed but before her body was removed, some intruder, a third person, molested the dead body of Margaret Ann and deposited his DNA on her underpants.
7. Well, if DNA didn't identify Robinson, what did? The answer, some news reports tell us, is some creative forensic science, some of it provided by the estimable Dr. Henry Lee. But was this forensic science perhaps too creative for its own good? Consider item 1: Blood spatter evidence -- the pattern of blood spatter from Mary Ann's wounds -- was used, we are told, to help establish that the weapon used to kill Margaret Ann was a letter opener rather than a weapon such as scissors or an ordinary knife. Proposition: The pattern of spatter from a wound can discriminate between letter openers and scissors or ordinary knives. Do you believe that? Consider item 2: There was, we are told, a faint blood stain on cloth that was draped over the altar, an altar that was close to the location of the murder. A part of this faint blood stain -- which would have to have been 20 years old and might have been dry-cleaned a few times -- "bore a striking resemblance to a medallion on the priest's letter opener." Id. What do we have here -- another Rorschach test?
John Silber Reaps the Rewards of Scholarship
"John Silber, who was one of the most handsomely paid university presidents in the nation, has received about $7 million in deferred compensation and other benefits from Boston University since he stepped down as chancellor in 2003." Marcella Bombardieri, Rich rewards outlast Silber's reign,
Boston Globe Online (May 10, 2006)
Tuesday, April 25, 2006
Conference Announcement: Graphic and Visual Representations of Evidence and Inference in Legal Settings
Dates: January 28-29, 2007.
Venue: Cardozo Law School, Yeshiva University, 55 Fifth Avenue (5th Ave. & 12th St.), New York (Manhattan), New York
Description of conference:
One of the largest problems faced by crime investigators, litigators, paralegals, judges, triers of fact, and other actors interested in disputes about factual questions in legal settings is the sheer mass of available evidence in many cases. It is often difficult to remember, retrieve, and interpret evidential information, so that patterns, relations, and inconsistencies often go unnoticed. Tools that support the storage, retrieval, and interpretation of masses of evidence could therefore be of great use.
Psychological studies have shown that people's ability to remember, retrieve,
and interpret information is greatly enhanced if they organize information
in a way that is meaningful to them. Scholars of the law of evidence have
long suggested that graphical representations of evidential arguments and
inferences could support humans in making sense of masses of evidence. As
early as 1913, John Henry Wigmore claimed that his charting method promoted rational thinking about legal evidence. While Wigmore had only pencil and paper to draw his cumbersome graphs, today the computer could make his ideas practically feasible for everyone. Software could be used to draw graphical representations of arguments and inferences about masses of evidence. Moreover, such software could be combined with existing database, document management, and search technology so that collections of evidentiary documents could be stored and retrieved in terms of the user's thinking about a case. Such software would also facilitate transfer of case files to others by increasing the transparency of the files, so that subsequent investigators, prosecutors, and fact finders could gain a quicker and better understanding of the case.
Such software is currently being investigated for use in various domains.
Argument visualization software has been designed, for instance, to support
the teaching of scientific reasoning or critical thinking skills (Belvedere,
Reasonable, Araucaria, Convince Me), to support intelligence analysis, and
to facilitate individual or collaborative problem solving (Questmap, SEAS).
Moreover, current artificial intelligence research offers precise accounts
of evidential reasoning and thus provides a clear semantics of graphical
notations as well as ways to compute with them.
In the legal domain, fact investigators and litigators increasingly use software that supports the storage and retrieval of information in terms of conceptual and relational networks (Holmes 2, Analyst's Notebook). However, as yet, such tools offer little or no support for the structuring of human thinking about thus stored information. This software allows users to store evidentiary data in terms of events, objects, actors, and the relations among these things, but it does not allow users to represent how such data support or undermine hypotheses about what has happened.
This interdisciplinary conference brings together scholars and practitioners from such fields as law, philosophy, computer science, artificial intelligence, cognitive psychology, and linguistics who are interested in the graphic visualization of legal evidentiary inference and its support by software tools. The following issues will be addressed:
Current and new graphical means to visualize factual inference and proof
Semantics of such graphical notations: what are the underlying theories of evidential reasoning? (jurisprudential, philosophical, psychological, rhetorical, logical, or mathematical)
Which software tools for graphical representations of factual inference and proof are currently available or being developed?
What are the potential contexts for the use of such software and what are the potential benefits of such software? (crime investigation, litigation, trial, law teaching, etc.)
To what extent can graphic representation of evidential arguments support the automatic evaluation of hypotheses?
How can current insights about human-computer interaction be exploited to increase the usefulness of such software? (e.g., how can visual complexity created by the size of the available mass of evidence be managed?)
Are empirical results available on usability and effects of use of charting methods (whether manual or digital) in legal or other contexts?
What are the practical constraints faced by crime investigators or legal professionals who want to use such software?
Conference officials:
Peter Tillers (Cardozo Law School): Conference chair e-mail address: peter@tillers.net
Henry Prakken (Universiteit Utrecht / University of Groningen): Program
chair e-mail address: henry@cs.uu.nl
Thomas D. Cobb (University of Washington, Seattle): Deputy program chair
e-mail address: tomcobb@u.washington.edu
Panelists:
The public is invited. There is no registration fee. (However, there will be a modest charge for any lunches or dinners that attendees elect to take at the site of the conference, at Cardozo Law School.)
Program details will be provided later.
Monday, April 24, 2006
Intellectual History, Probability, and the Law of Evidence
Here is a readable copy of my essay Intellectual History, Probability, and the Law of Evidence.
Sunday, April 23, 2006
Intellectual History, Probability, and the Law of Evidence
The review essay Intellectual History, Probability, and the Law of Evidence is now available on SSRN.
Wednesday, April 05, 2006
Judicial Prudence: Does the Supreme Court Always Fail Us Precisely When We Need It the Most?
The Supreme Court of the United States has chosen not to review the Padilla case, the case in which a U.S. citizen was seized in Chicago and held for three years as an "enemy combatant" -- all without a showing of probable cause before a judicial officer and without any other form of judicial review of the merits of the seizure and detention.Bruce Ackerman has it right: this sort of "judicial restraint" leaves open the possibility that this President or another will unilaterally seize and imprison (and execute?) greater numbers of U.S. citizens in the name of the "war" on terror.
The Supreme Court failed us during the Vietnam War: it successfully avoided having to decide the illegality or illegality of that war. Today's edition of the Supreme Court may fail us again: this Court may successfully avoid deciding whether a President can or cannot unilaterally seize and imprison a U.S. citizen. This sort of "restraint" is contemptible judicial behavior; it is a mockery of the ideal of the rule of law; and it is a crude violation of the fundamental principle that the life and liberty of citizens may not be taken away by the whim or the pleasure of the executive.
Of course, it is possible that the Supreme Court secretly harbors the intention of someday rendering an opinion about the legality of the government's treatment of Padilla. If so, I say: What harm can a few more years or decades do? After all, unlike Milosevic, Padilla probably won't die of a heart attack during his first decade of imprisonment.
The Evidence Eliminator
A sure sign of a guilty conscience? See Erica Taub, Deleting May Be Easy, but Your Hard Drive Still Tells All, NYTimes Online (April 5, 2006):
Various software programs can be used to overwrite data. One popular product, Evidence Eliminator, draws a red flag in legal circles."I'm still puzzled why someone would use a product of that name," said Michael A. Gold, a senior partner with the law firm Jeffer, Mangels, Butler & Marmaro in Century City, Calif., and a chairman of the firm's Discovery Technology Group.
Saturday, April 01, 2006
Off-Topic: Larry Alexander on Academic Freedom
I usually focus on evidence and inference. But in recent months and years I have been thinking seriously (but sporadically) about the question of the condition of scholarship in the legal academy. For example, I have been interested in some of the things I recently heard Prof. Peter Schuck say.Today I downloaded an essay by Prof. Larry Alexander on Academic Freedom (March 2006). I'm not entirely sure what to make of Alexander's essay. Some of it rings true to me. Other parts of it sound as if Alexander is fighting the last Kulturkampf. But I don't have a good feel for the state of scholarship and politics in the law school world nationwide (in the U.S., that is). So perhaps his broad characterizations of the ostensibly parlous condition of academic freedom -- and, by extension, scholarship -- in many parts of the academy are correct.
In the last couple of decades when I have thought about legal scholarship in the U.S., I have usually thought about the question of of the condition of legal scholarship in microscopic rather than macroscopic terms. (Ancient personal history: My decision to concentrate on an ant-level perspective on law was in part a flight from certain excesses of grand jurisprudential and philosophical theorizing, excesses to which I had fallen prey.) I have been particularly interested in the workings of evidential inference.
I have been drawn to a particular way of studying factual inference: I have tried (how successfully, however, I do not know) --, I have tried to pursue a method of study that I see as quasi-scientific; I have been drawn to a type of scholarship that wishes to test itself (its conjectures and hypotheses) against things as they are.
What has impressed (depressed!) me from time to time is how little many legal scholars seem to care about the sort of "pedestrian" scholarly work that I myself so admire and how much more a good many legal scholars seem to prefer fields of legal scholarship that are suffused by grand generalities and abstractions that appear to be almost wholly exempt from truth-checking encounters with "reality" or any form of at least partially-independent data or facts.
Perhaps there is a connection between my (admittedly-diffuse) plaint and Alexander's. But perhaps there is not much of a connection. I would like to hear the opinions of others about this question. I want to collect the opinions of others about this issue largely because I personally do not really want to sally forth into the wide and murky terrain that scholars such as Alexander and Schuck explore; I would much prefer to continue to tend my own little garden (which contains factual inference, factual proof, fact investigation, and similar matters).
But if Alexander is correct, I cannot afford to be myopic. Is he correct (in the main)? Is Peter Schuck correct (in the main)?By the by: It is literally impossible to study the plants and weeds in my garden without thinking seriously and carefully about matters such as values, norms, preferences, and all that. But I fancy that my ruminations about matters such as norms are more closely tied to granular phenomena and realities. Perhaps this more restricted perspective is an advantage, at least sometimes.
Thursday, March 23, 2006
The Pajama Hearsay Game?
Remember Vincent Gigante? He was the mobster who, starting in the mid-60s(!), feigned mental derangement to avoid criminal punishment. See Selwyn Raab, Mob Boss Who Feigned Incompetence to Avoid Jail, Dies at 77, NYTimes (Dec. 20, 2005). Gigante, nicknamed variously Chin, Oddfather, the Enigma in a Bathrobe, was nothing if not persistent: As the moniker Enigma in a Bathrobe suggests, one of his strategies was to walk around Greenwich Village in pajamas while muttering nonsense words. Well, that's all very interesting. But what I want to know is whether his kind of pajama-walking and nonsense-talking is hearsay.
Thursday, March 16, 2006
Conference Announcement: Graphic and Visual Representations of Evidence and Inference in Legal Settings
Dates: January 28-29, 2007.
Venue: Cardozo Law School, Yeshiva University, 55 Fifth Avenue (5th Ave. & 12th St.), New York (Manhattan), New York
Description of conference:
One of the largest problems faced by crime investigators, litigators, paralegals, judges, triers of fact, and other actors interested in disputes about factual questions in legal settings is the sheer mass of available evidence in many cases. It is often difficult to remember, retrieve, and interpret evidential information, so that patterns, relations, and inconsistencies often go unnoticed. Tools that support the storage, retrieval, and interpretation of masses of evidence could therefore be of great use.
Psychological studies have shown that people's ability to remember, retrieve,
and interpret information is greatly enhanced if they organize information
in a way that is meaningful to them. Scholars of the law of evidence have
long suggested that graphical representations of evidential arguments and
inferences could support humans in making sense of masses of evidence. As
early as 1913, John Henry Wigmore claimed that his charting method promoted rational thinking about legal evidence. While Wigmore had only pencil and paper to draw his cumbersome graphs, today the computer could make his ideas practically feasible for everyone. Software could be used to draw graphical representations of arguments and inferences about masses of evidence. Moreover, such software could be combined with existing database, document management, and search technology so that collections of evidentiary documents could be stored and retrieved in terms of the user's thinking about a case. Such software would also facilitate transfer of case files to others by increasing the transparency of the files, so that subsequent investigators, prosecutors, and fact finders could gain a quicker and better understanding of the case.
Such software is currently being investigated for use in various domains.
Argument visualization software has been designed, for instance, to support
the teaching of scientific reasoning or critical thinking skills (Belvedere,
Reasonable, Araucaria, Convince Me), to support intelligence analysis, and
to facilitate individual or collaborative problem solving (Questmap, SEAS).
Moreover, current artificial intelligence research offers precise accounts
of evidential reasoning and thus provides a clear semantics of graphical
notations as well as ways to compute with them.
In the legal domain, fact investigators and litigators increasingly use software that supports the storage and retrieval of information in terms of conceptual and relational networks (Holmes 2, Analyst's Notebook). However, as yet, such tools offer little or no support for the structuring of human thinking about thus stored information. This software allows users to store evidentiary data in terms of events, objects, actors, and the relations among these things, but it does not allow users to represent how such data support or undermine hypotheses about what has happened.
This interdisciplinary conference brings together scholars and practitioners from such fields as law, philosophy, computer science, artificial intelligence, cognitive psychology, and linguistics who are interested in the graphic visualization of legal evidentiary inference and its support by software tools. The following issues will be addressed:
Current and new graphical means to visualize factual inference and proof
Semantics of such graphical notations: what are the underlying theories of evidential reasoning? (jurisprudential, philosophical, psychological, rhetorical, logical, or mathematical)
Which software tools for graphical representations of factual inference and proof are currently available or being developed?
What are the potential contexts for the use of such software and what are the potential benefits of such software? (crime investigation, litigation, trial, law teaching, etc.)
To what extent can graphic representation of evidential arguments support the automatic evaluation of hypotheses?
How can current insights about human-computer interaction be exploited to increase the usefulness of such software? (e.g., how can visual complexity created by the size of the available mass of evidence be managed?)
Are empirical results available on usability and effects of use of charting methods (whether manual or digital) in legal or other contexts?
What are the practical constraints faced by crime investigators or legal professionals who want to use such software?
Conference officials:
Peter Tillers (Cardozo Law School): Conference chair e-mail address: peter@tillers.net
Henry Prakken (Universiteit Utrecht / University of Groningen): Program
chair e-mail address: henry@cs.uu.nl
Thomas D. Cobb (University of Washington, Seattle): Deputy program chair
e-mail address: tomcobb@u.washington.edu
Panelists:
The public is invited. There is no registration fee. (However, there will be a modest charge for any lunches or dinners that attendees elect to take at the site of the conference, at Cardozo Law School.)
Program details will be provided later.
Sunday, March 12, 2006
Connecting the Dots -- Literally
Networks have reached the big time: the The New York Times! See Patrick Radden Keefe, Can Network Theory Thwart Terrorists?, NYTimes Online (March 12, 2006).Granted, the NYTimes did not mention Wigmore charts or directed acyclic inference networks; it focused instead on social nets, which are often neither directed nor acyclic. Nonetheless, surely the glare of mass publicity will soon shine on directed acyclic inference networks as well!
Saturday, March 11, 2006
The Danger of Living and Working in the Wrong Place: Rough Justice?
On March 3, 2006, the Department of Defense released 5,000 pages of transcripts of proceedings before the Reprocessed Combatant Status Review Tribunal (CSRT) and the Administrative Review Board (ARB). See http://www.defenselink.mil/pubs/foi/detainees/csrt/index.html. These documents were released in response to a Freedom of Information Act Request. The proceedings involve Guantanamo detainees. I have dipped into a very few of the redacted transcripts of "Testimony of Detainees Before the Combatant Status Review Tribunal." There are interesting and suggestive morsels there. Consider:
From the transcript of the testimony of Mohammed Hussein Abdallah before the Combatant Status Review Tribunal:
First of all, you classified me as a terrorist or associated with this organization; that has no founding or no truth to it at all. I am just a teacher. I teach orphans, seven or eight year old orphans. They came and picked me up at 2 AM from my house. I have no relations or no connections with anybody. All that I used to do was go to work and come back. I stayed with my children and my family. I did not have any relations with any organizations whatsoever. So if teaching orphan children who lost their father how to read and write it a terrorist act, therefore I am a terrorist. If teaching the Koran to children is a terrorist act, then I am a terrorist. Besides this, I have nothing else. I don't know how they classified me as a terrorist.A bit further in the transcript:***
[charge in italics:]3.a.7. Militants associated with Osama bin Laden's Al Qaida organization were traveling through the Jolazai refugee camp in [sic] route to India.
Detainee: I don't know about that. This is the first time I hear this thing. ... I thought that Al Qaida was a secret organization. I just know about it through the media, radio and newspapers and things like that but as people or as a person, I don't know.
... If I may, I would like to read from my notes about some of the organizations that were qualified or categorized as terrorist organizations. ... I never worked before in any terrorist organization. I worked only in humanitarian organizations. [He names one Saudi government organization.] And I also have Al-Ighata (ph), which is another organization that belongs to the Saudi government also. The office of construction that is for Maktab Attaamir (ph), which means the Office of Rebuilding. The person that was in charge or head of this organization was King Fahd of Syria. So I have no relation to this thing, talk to King Fahd; he is still alive. And this organization I just mentioned is a recognized organization and the Pakistani government recognized it. It was funded; it was created in Saudi Arabia. So if this organization in the United States government's view is a terrorist organization, what is my crime? What do I have to do with it? So the people who should answer for this organization are the people who founded this organization or the people who are in charge of it. You didn't detain the founders ... So I am wondering, you could find my house and you couldn't find the Saudi government, the Pakistani government and the Kuwaiti government? ... They took me in the middle of the night. It's almost been two and a half years and I don't know anything about my children and wife. And I always wonder all the time, I keep asking them: What is my crime? What did I do? And no one answers me.
Tribunal Members' questionsQ. Sir, how old are you?
A. I am about 60.
***
Q. This camp that is being referred to as the Jolazai refuge camp, do you have an estimate of how many people were there when you stayed there?
A. What do you mean? Do you mean the population?
Q. Right.
A. ... [I]t is a big number. It is around 50,000 or maybe more. ... The people that were in charge of this camp were government officials ....
Q. At this camp, were people allowed to come and go freely?
A. As I said it was like a city. People leave and come and travel and go. It was like any normal city.
Wednesday, March 08, 2006
NewSpeak
Craven lobbyists are lobbyists. Good lobbyists are activists.Greedy advertisers are advertisers. Noble advertisers are underwriters.
Thursday, March 02, 2006
Forgotten Constitutional History
The Warren Court greatly expanded various constitutionally-rooted exclusionary rules that serve purposes other than truthseeking, purposes such as deterrence of excessive police violence and unreasonable invasions of privacy. There was a great outcry in some quarters against the Court's expansion of such rules in the 1960s: It was often said that the Supreme Court had forgotten that the fundamental purpose of a criminal trial is to determine the truth.
The outcry had an effect: In the last two or three decades the Supreme Court has dramatically limited the scope of nontruthseeking constitutional exclusionary rules.
But guess what? When almost no one was looking, the Supreme Court also limited the reach of constitutional exclusionary rules whose primary purpose is the enhancement of the priority of truth -- factfinding accuracy -- in the criminal process.
So the upshot for the Warren Court's critics was this: Heads we win, tails you lose. Justice Marshall, dissenting in Manson v. Brathwaite, 432 U.S. 98 (1976), noticed this irony as long ago as 1976. Complaining of the Court's relaxation of its rules against the use of unduly suggestive eyewitness identifications, he wrote:
[O]ther exclusionary rules have been criticized for preventing jury consideration of relevant and usually reliable evidence in order to serve interests unrelated to guilt or innocence, such as discouraging illegal searches or denial of counsel. Suggestively obtained eyewitness testimony is excluded, in contrast, precisely because of its unreliability and concomitant irrelevance. Its exclusion both protects the integrity of the truthseeking function of the trial and discourages police use of needlessly accurate and ineffective investigatory methods.It is time for the Court to reverse course once again. This time the Court should focus on developing due process principles that protect the integrity of factfinding in the criminal process.
Truth and Fairness
In Colorado v. Connelly, 479 U.S. 157 (1986), the Supreme Court of the United States said:
The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence.But what could be more unfair than the use of "false evidence"? What could be more unfair than readily avoidable conviction of the innocent?
The dichotomy the Court poses -- avoidance of inaccurate factual adjudication in criminal cases and avoidance of unfairness in criminal cases -- is a false one. Recognition that the disjunction is spurious is essential if the Court is to use the Due Process Clause -- as it should -- to ensure that the criminal justice system achieves some tolerable degree of accuracy in the adjudication of factual questions on which conviction or acquittal hangs.
There is more than a little bit of irony in the fact that in Connelly the Court approvingly quoted its own prior statement that "[t]he central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence."
Tuesday, February 21, 2006
Dennett Demolition Derby
Do contemporary debates about science and religion have anything to say about the nature of evidence and inference in the courtroom (or other legal proceedings)?
For a delicious example of a biting attack on a contemporary religiously-zealous but "scientific" tract in favor of irreligion, see Leon Wieseltier, Review of Daniel C. Dennett, BREAKING THE SPELL: RELIGION AS A NATURAL PHENOMENON, NYTimes Online (Feb. 19, 2006). A sample of the critique:
In his own opinion, Dennett is a hero. He is in the business of emancipation, and he reveres himself for it. "By asking for an accounting of the pros and cons of religion, I risk getting poked in the nose or worse," he declares, "and yet I persist." Giordano Bruno, with tenure at Tufts!Wieseltier also offers less catty critiques. For example:
There are a number of things that must be said about this story. The first is that it is only a story. It is not based, in any strict sense, on empirical research. Dennett is "extrapolating back to human prehistory with the aid of biological thinking," nothing more. "Breaking the Spell" is a fairy tale told by evolutionary biology. There is no scientific foundation for its scientistic narrative. Even Dennett admits as much: "I am not at all claiming that this is what science has established about religion. . . . We don't yet know." So all of Dennett's splashy allegiance to evidence and experiment and "generating further testable hypotheses" notwithstanding, what he has written is just an extravagant speculation based upon his hope for what is the case, a pious account of his own atheistic longing.And:
It will be plain that Dennett's approach to religion is contrived to evade religion's substance. He thinks that an inquiry into belief is made superfluous by an inquiry into the belief in belief. This is a very revealing mistake. You cannot disprove a belief unless you disprove its content. If you believe that you can disprove it any other way, by describing its origins or by describing its consequences, then you do not believe in reason. In this profound sense, Dennett does not believe in reason.An important part of the story of the emergence of modern probability theory involves the study of the evidentiary value of Biblical miracles. See, e.g., Lorraine Daston's Classical Probability in the Enlightenment (Princeton: 1995). See also Oscar Kenshur, Bayle's Probabilistic Fideism and the Rhetoric of Ideology.
Kenshur discusses John Craige's Theologiae Christinae Principia Mathematica (1699). This book, regarded by Ian Hacking as the work of a crackpot, "begins with the notions about the credibility of marvelous historical events that we have encountered in our discussion of Browne. If we assume that extraordinary or miraculous events counted as knowledge to those who witnessed them, but lose their credibility progressively as time goes on, then it follows that we can say that the miraculous events associated with the origins of Christianity are less credible now than they were shortly after the events occurred, and will be even less credible in the future. What Craige did was to try to express this notion in mathematical terms, by computing the degree of probability for each point in time. Once the probability of belief is quantified, then we can predict precisely when the credibility of Christianity will disappear altogether, namely, in the year 3150, and hence that the second coming of Christ will occur before that date."
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