A Universal Cognitive Illusion -- Or "Your Suitcase Is Not as Small as You Think It Is"

Flash: A Suitcase Serves as a Nifty Form of Demonstrative Evidence.

"Guilty verdicts without a body are rare,"Seattle pi.com (June 29, 2004):

Mark Elby was charged with killing his wife and then putting her body in a suitcase and "throwing it off the 182-foot-high Deception Pass Bridge."

"When defense attorneys in court argued that a woman couldn't fit in a suitcase, the prosecuting team brought a suitcase into the courtroom and had a petite woman curl up inside."

Elby was convicted.

Another Corpus Delicti without a Corpus

See Tom Hays (AP), "Man arrested [in] NY woman's disappearance," nj.com (Jan. 15, 2008)

&&&

Technicalities can not only get you off. Sometimes they can send you to the gallows.

Pocono Record (December 24, 2007):

Q. The police suspect there's been a murder but no body has turned up anywhere. Does this mean they have to give up on the case? A. That's what 1949 London serial killer John George Haigh boasted to police after killing Mrs. Durand-Deacon, saying he had dissolved her remains in acid so the victim no longer existed, says E.J. Wagner in "The Science of Sherlock Holmes."

"You will find the sludge which remains on Leopold Road. But," he smiled confidently, "you can't prove murder without a body."

Haigh was mistaken on this point, as many others have been. The law does not require a corpse but rather a "corpus delicti," or "the body of evidence that establishes the crime has taken place." Not understanding this, Haigh made a full confession of the killing, plus five others, claiming he was a vampire in dire need of their blood. The police pegged his motive as going after the women's valuables. When experts examined the sludge, they spotted small polished pebbles that turned out to be gallstones of the late Mrs. Durand-Deacon. Also found were her dentures, bone fragments and part of a handbag. Later, the jury wasted no time in finding Haigh guilty and sentencing him to death.

John Henry Wigmore Awards for Lifetime Achievement in the Law of Evidence and the Process of Proof

On January 5, 2008, the Evidence Section of the Association of American Law Schools awarded two now-legendary men -- William L. Twining and Judge Jack B. Weinstein -- the inaugural John Henry Wigmore Awards for Lifetime Achievement in the Law of Evidence and the Process of Proof.

I had the honor of introducing Professor Twining. Professor Margaret Berger introduced Judge Weinstein.

I made the following comments about Professor Twining:

Twenty two years ago Richard Lempert wrote that evidence scholarship was “moribund” when he began teaching in 1969. Having administered that slap at the Evidence professoriate of his day, Lempert added a passage that is redolent of Goethe’s Faust’s complaint about dessicated and life-sapping scholarship. Lempert wrote that although the federal codification movement had begun to breathe new life into the field of evidence, law review articles about evidence generally followed "the model 'What's Wrong with the Twenty-Ninth Exception to the Hearsay Rule and How the Addition of Three Words Can Correct the Problem.'" These articles, Lempert said, "were seldom interesting and if they had potential utility it was rarely realized, for the federal rules remain today largely as they were when enacted. The work was, in short, a timid kind of deconstructionism with no overarching critical theory to give it life."

Lempert’s claim that Evidence was on death’s door in 1969 or 1970 was an exaggeration. Judge Weinstein was doing important work in Evidence in the late 1960s. So too were professors such as John Kaplan and Vaughn Ball. Moreover, James H. Chadbourn’s painstaking preparatory work in the 1960s on the forthcoming California Evidence Code was nothing to sneer at.

Still, Lempert’s characterization of evidence scholarship circa 1970 was, in the main, on target.

But things that start badly sometimes turn out well.

In the 1970s and 1980s fresh faces emerged who changed the face of evidence scholarship here and elsewhere in the world. Among the innovators were Richard Lempert himself, David Kaye, Judge Jack Weinstein, and, of course, William Twining.

Twining cannot be given sole credit for the broadening and the deepening of evidence scholarship that we have witnessed during the last three-and-one-half decades.

But of course no single person can take sole credit for the flowering of evidence scholarship during the last 30-35 years.

Be that as it may, Twining has been an important player in the transformation of evidence scholarship.

Furthermore, Twining has made distinctive contributions to evidence scholarship, and his contributions have put a special imprint on this still-mutating field, an imprint that will be felt, I think, for decades to come.
Before I say just a few words about just a very small sample of Twining’s many distinctive contributions, I want to make two general points about Twining’s influence.

First, America is not the world. Twining’s influence on the development of evidence scholarship in the rest of the world probably exceeds any other individual’s. As many of you know, Twining is now known for his work on globalization. But even in the field of evidence, Twining is a scholar with a truly global reach.

Second, Twining is Evidence’s Mao Tse-Tung. He, more than anyone else, has taken steps to institutionalize the evidence revolution – he has worked to establish programs and communities in order to ensure that scholarship about evidence will continue to deepen, broaden, and evolve, if not forever, then at least for quite a while to come.

For example, not only has Twining been working at this evidence business for a very long time, and not only does he have legions of former students & admiring ex-colleagues all over the world, he is also one of the prime movers behind the sprawling, interdisciplinary, and exciting research program and community at University College London that goes by the name Enquiry, Evidence, and Facts. (If all goes well, this program and this community will continue in some form at UCL.)

Now I want to say just a few words about just three of Twining’s many contributions to evidence scholarship. I must use broad brush strokes; I cannot go into detail. This is an introduction rather than a eulogy, and I have only five minutes to speak.

If I have his personal history right, Twining did not begin his teaching career in the UK. But he was in the UK when he began his work on evidence and proof in earnest.

Academics tend to be somewhat isolated from the real world.

This was certainly true of legal academics in the UK in the 1960s and 70s, which is when Twining came of age as a law teacher: at that time the vast majority of UK law teachers had little or no experience in law practice. (The practice of law was a different career path.)

Furthermore, in those days law teachers in the UK, even (or particularly) law teachers (dons) at Oxford and Cambridge, were generally an intellectually insular lot: they generally had little interest in any academic field other than law.

As I see it, Twining meant to send his unrealistic and parochial academic colleagues in the UK three messages.

Two of those messages are particularly germane in today’s America, now that American law teachers are becoming increasingly divorced from law practice – two of Twining’s three messages amount to shots across the bow of people who are entering law teaching today.

The three messages are these:

1. Getting the facts right is very difficult.
2. Evidence and facts are a very big part of law.
3. Factual inference and proof drip with logic and with theory.

1. The difficulty of getting the facts right.

Attempts to get the facts right face at least two big difficulties.

First, subjectivity and prejudice threaten the very core of the enterprise of fact finding.
Second, getting the facts right is an arduous and time-consuming enterprise – facts are not reeled in like fish in a well-stocked pond – because

(a) getting the facts right requires attention to evidentiary details, large masses of evidence; and
(b) drawing sound conclusions from masses of evidence requires the development of multiple multistage arguments.

Twining has taught that it is important that budding lawyers and judges study this painstaking and time-consuming process.

Twining taught that it is possible to teach budding lawyers and judges useful things about the process of inference and proof – that although assessment of evidence is at least as much art as science – in his view, more art than science – there is reason to think that law teachers can teach their students something useful and important about the arduous and difficult activity of factual inference and factual proof.

But Twining makes it clear that no student should be left with the notion that there is somewhere a magic bullet – a rote or mechanical procedure that can guarantee that any dummy or slouch can get the facts right without doing a heckuva a lot of work. Twining teaches and preaches that exactly the opposite is the case: sound inference generally requires good judgment and a heckuva a lot of work.

He also teaches that even when lawyers, judges, and fact finders work conscientiously and hard, there is no guarantee of infallibility about facts. Twining believes that an additional reason for getting law students to study evidence, inference, and proof is to get them to understand the many ways in which inference and proof can go wrong.

2. Evidence and facts are an important part of law.

Lawyers do many things. Two of the many things they do is (i) gather and assess legal materials (i.e., “legal research and analysis”) and (ii) gather and assess evidence.
Twining, who is something of a legal realist, had to remind UK law teachers that practicing lawyers do more of the latter than of the former.

Most of you [Evidence teachers] don’t need to be reminded of this.
But some of the people who are entering law teaching today need to be reminded of this.
Perhaps the U.S. Supreme Court also needs to be reminded of this. (The Court is not overflowing with people who have seen law practice first-hand.)

3. Twining’s third general message has to do with the relationship between evidence & theory.

One of Twining’s original motivations for studying evidence was jurisprudential: he wanted to develop a better understanding of law by getting a better understanding of factual proof in law.

The structure of factual inference and proof should be important to many people other than students of factual inference and proof in law.

The nature of argument about evidence should interest to students of the nature of argument about legal rules and principles.

For one thing, arguments about legal principles may spring from facts about the world. For another thing, even legal argument and legal interpretation may be, to an important extent, an effort to infer how things actually stand in the world.

The nature of factual inference in law should interest also philosophers in general – because epistemology is central to philosophizing about human society and the human condition, and the workings of factual inference in law shed light on problems of epistemology.

Evidence theorists need to become a bit more imperialistic: they need to tell or remind other legal theorists that theories about law cannot get along if those theories are bereft of arguments about the nature and structure of inference and proof. You – you down-to-earth evidence theorists – must teach those fancy-pants legal theorists that they can’t and won’t go far unless they too learn to take evidence, inference, and facts very seriously indeed.

This is one of William Twining’s most important lessons.

I give you William Twining.



THE END

An expanded version of the above introduction will be published in the Seton Hall Law Review. The expanded version has note material. You can get the expanded introduction here.

Prospective Law Clerk, Test Your Mettle (or Your Legal Acumen or ... Whatever)

Peter Plaintiff brings a civil action for damages against David Defendant in a court of the State of Blackacre. The complaint avers that Defendant was Plaintiff’s landlord and that Defendant unlawfully evicted Plaintiff from the apartment that Plaintiff had leased from Defendant. In his answer Defendant denies that he evicted Plaintiff. Defendant avers, in the alternative, that he had good cause to evict Plaintiff and terminate the apartment lease.

This civil action – Peter Plaintiff versus David Defendant – proceeds to trial. The presiding judge is Judge Bolix Wisdom. You are Judge Wisdom’s law clerk. Your name is Diligent Clerk.

In her opening statement Plaintiff’s counsel asserts that the evidence at the trial will show that a bomb destroyed the bathroom in Plaintiff’s apartment six months before the expiration of Plaintiff’s lease and that Plaintiff, not having a bathroom, decided to move out of the apartment. Plaintiff’s counsel further states that the evidence at the trial will show that Defendant arranged for the bomb explosion that destroyed the bathroom in the apartment and that Defendant did this vile deed because he wanted to be rid of Plaintiff because Defendant had found a prospective tenant who was willing to pay vastly more rent for the apartment than Plaintiff was obligated to pay.

Defendant’s counsel tells a very different story in his opening statement. Although he agrees that a bomb destroyed the bathroom in the leased apartment, Defendant’s counsel states that the evidence at the trial will show that the bomb explosion in the apartment was caused, not by Defendant, but by Plaintiff. Defendant’s counsel adds that the evidence will show that Plaintiff built the bomb that destroyed the bathroom in the apartment.

Peter Plaintiff is the first witness. On direct examination he gives testimony that tends to support his claim that David Defendant arranged for the bomb explosion in the apartment. At the conclusion of the direct examination of Plaintiff , Defendant’s counsel asks for a bench conference and then states:

Your Honor, we believe Plaintiff was and is a member of the Sao Paolo Branch for Political and Religious Liberation, or – as it is commonly known – SPBPRL. We believe that SPBPRL was and is a neo-Maoist political and military movement, a movement whose founding was inspired, oddly enough, by South America’s Catholic Liberation Theology. SPBPRL was and is dedicated to the elimination of capitalism and the destruction of all property. We believe that a chapter of SPBPRL – a chapter consisting of Peter Plaintiff and two other people – held weekly meetings in Plaintiff’s apartment to plot the destruction of capitalism and property in Blackacre. We believe that Plaintiff and his cohorts built and exploded the bomb in the bathroom of his apartment in an effort to eliminate capitalism and destroy property in Blackacre. During our cross-examination of Plaintiff, we will ask Plaintiff to confirm these points. If he denies any of them, your Honor, we propose to call his former roommate and collaborator Rabid Rouser, who has personal knowledge of all the matters I have just mentioned. I should add, your Honor, that Plaintiff and Rouser were not merely members of the Blackacre chapter of SPBPRL. They were in fact co-founders of SPBPRL. We will also confirm this point during our cross-examination of Plaintiff or, if need be, through the testimony of Rouser. This is our offer, your Honor, and we ask that you rule that we can proceed in the manner I have just described.

Plaintiff’s counsel states, "Your Honor, this is the most ridiculous story I have ever heard. In any event, all of the testimony and evidence that my esteemed colleague vainly hopes to elicit from Plaintiff and Rouser is inadmissible. And let me tell you why." Before Plaintiff’s counsel can say anything more, Judge Wisdom interrupts her by saying, "No, that’s o.k. I don’t want to hear anything more from you. I’ve got a very bright law clerk. But my sense is that there are some thorny evidence issues here. I’m going to adjourn the trial for a day so that I can consider them diligently." Snickering slightly, Judge Wisdom 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 the testimony that defense counsel hopes to elicit from Plaintiff or Rouser – or from both of them – is admissible or inadmissible. Oh yes, I almost forgot: Diligent, don’t forget to do your homework. What I mean is this: I’m sure you’ll have to do some legal research. I can’t imagine that you can give me a good analysis of this thorny problem without doing some legal research. So get to work.

Write the memorandum and submit it within 24 hours.

Publication of Special Issue on Visualization of Evidence and Inference

See Table of Contents

Reflections

See Reflections on the 1970s

Relative (Lawyerly) Misery

Robert Miller notes that a story in American Lawyer recites that Manhattan lawyers earning $1,000,000/year and more are unhappy because financial professionals make more. Miller concludes, "Indeed, there is no misery so small that it cannot fill the human heart."

With that in mind, I will go back to my books and my writing.

"And a Merry Christmas to you!" said Scrooge (eventually). Or something of the sort.

The conference Enquiry, Evidence & Facts was a smashing success.

Whether my talk was a smashing success is a different question.

I know of no programme or community in the world that is quite like the Enquiry, Evidence & Facts programme and community in London. May it (or they) long live!

A Puzzle

The narrator -- in the Chevron ad on PBS TV --, the narrator (sonorously) intones, "Where are the answers?"

I think, "Where are the questions?"

Then I think, "In the very act of asking for answers, the narrator asks a question."

So, dear Reader, do I have any reason to complain?

Is the narrator's answer a question? Is it both a question and an answer? Is it both a question and a question?

Or does the narrator's answer (question?) generate a question?

And why am I wasting my time with such questions?

The Most Incomprehensible Thing

An article in the NYTimes reminds us that Albert Einstein reportedly said:

The most incomprehensible thing about the universe is that it is comprehensible.

There is a similar mystery -- or, there is a species of this mystery -- about the ability of evidence to reach beyond itself, to suggest possibilities that are not, strictly speaking, shown or demonstrated by evidence but that nevertheless sometimes turn out to be (probably) true. (E.g., I see what looks like a footprint -- and I infer that someone walked there; I see what may or may not be a handprint, I infer that it is a handprint, and I infer, or guess, that David Defendant's palm put it there.)

Clergy Abuse Scandal, Catholic Clergy, Protestant Clergy, Celibacy & Anti-Catholic Prejudice

The "clergy sex abuse scandal" was breaking in the United States when I was a visiting professor at Harvard Law School in the spring semester of 2002. And the Boston Globe was leading the charge: reports and revelations of abuse were appearing daily or almost daily in that paper's pages.

After a month of two of reading such reports and revelations, I noticed -- it was hard not to notice -- that all of the revelations were about alleged abuse by members of the Roman Catholic clergy; in the eyes of the Boston Globe reporters "clergy abuse scandal" seemed to be a synonym for the "Catholic clergy sex abuse scandal."

I sent two e-mail messages to the Boston Globe that spring to ask why its investigative team wasn't looking into sex abuse by Protestant clergy.

The Boston Globe responded. Its response was not that it already had too much on its hands and that it didn't have the time or resources to broaden its investigation or to launch a new investigation. The Boston Globe's response was that the consensus is that sex abuse by Protestant clergy is not a serious problem.

Over the years the Boston Globe has worked hard to defend the proposition that homosexuality among the Catholic clergy was not the cause of the "[Catholic] clergy abuse scandal." But the Boston Globe has not hesitated to say or intimate that the Catholic Church's clergy celibacy policy [which it opposes] was a major cause of the "[Catholic] clergy abuse scandal." See, e.g., James Carroll, "The Basilica of Denial," Boston Globe (December 5, 2005) ("Last week's Vatican 'instruction' restricting admission to the priesthood to heterosexuals was an exploitation of prejudice about homosexuality aimed at drawing attention away from the real crisis facing the Catholic Church. If any one group "caused" the priest sex-abuse scandal, it was not gays, but rather the bishops themselves, who now scapegoat gays. ... What the scandal reveals is the moral bankruptcy of the entire Catholic clerical culture, but in order to deal with that, basic questions about celibacy, women's ordination, the role of the laity, and repressive authority would have to be asked.")

In 2005 the Irish Echo Online reported that the Boston priest "[Paul] Shanley, who is 73, received favorable press coverage from the Boston Globe and other publications during the late 1970s, when he served as a celebrated street priest working with alienated youth." In 1980 a New York Times columnist scolded the Boston Archdiocese for putting limits on the pastoral work of Paul Shanley, who was known for directing his pastoral work at homosexuals. See Columnist in NYTimes Criticizes Roman Catholic Hierarchy for Reining in Paul R. Shanley. It was this same Shanley who later became one of the principal figures in the "clergy abuse scandal" in the Boston area.

It is possible that clergy celibacy is a cause of sexual misbehavior by Catholic clergy. But, thanks to Martin Luther, Lutheran churches do not have a "policy" of celibacy for clergy. And it seems that the Evangelical Lutheran Church in America may now be experiencing its own "clergy abuse scandal." The first major sign of such an impending disaster for Lutheran churches was the $60,000,000+ (yes, more than sixty million) settlement in 2004 of legal claims against a Lutheran minister, against a Lutheran seminary, against the Evangelical Lutheran Church in America [ELCA], and against various Lutheran officials. The gravamen of the charge was that a Lutheran pastor molested male children and that various Lutheran officials and organizations allowed a known sexual predator to become a pastor who was in a position to molest children. See Christianity Today:

In what may be the largest per capita clergy abuse settlement ever, nine victims will receive $36.8 million from the Evangelical Lutheran Church of America's Northern Texas/Northern Louisiana Synod and two former officials. The civil case follows the conviction of Gerald P. Thomas, former pastor of Good Shepherd Lutheran Church in Marshall, Texas, for sex crimes against children. An additional $32 million out-of-court settlement was reached before the trial ended. Total awards amounted to nearly $69 million awarded to 14 victims.

Individual awards ranged from $50,000 to $9.8 million depending on medical needs and the amount of abuse suffered. The settlements involve Trinity Lutheran Seminary in Ohio, a Michigan candidacy committee that ordained Thomas, Good Shepherd Church, the Northern Texas/Northern Louisiana Synod, and Bishop Mark Herbener of the Northern Texas-Northern Louisiana Synod and his assistant Earl Eliason. According to the ELCA, the 5 million-member denomination will pay $8 million of the total settlement.

See also Bob Ross, Jr., "Judge OKs settlement in Lutheran Church abuse case," Chicago Sun-Times (April 13, 2004) ("The case of former Lutheran pastor Gerald Patrick Thomas Jr., who was sentenced last year to 397 years in state prison for sexually assaulting boys in this East Texas town, has drawn parallels from victims' advocates to some of the worst cases in the Roman Catholic abuse crisis.")

It now appears that a second big shoe may be about to fall: twenty (20) men in New Jersey have brought a lawsuit against a Lutheran parish, against the Evangelical Lutheran Church in America [ELCA], and against the New Jersey Synod of the ELCA. These men seek approximately $100,000,000 in damages. They aver that a male Lutheran minister molested them when they were children.

See Kathleen Hopkins, "Sex-abuse lawsuit against Brick Twp. church to proceed," Ocean County Observer (August 19, 2007):

A $100 million lawsuit against St. Thomas Lutheran Church in Brick will proceed after a judge on Friday declined to dismiss complaints brought by 19 men who allege they were molested as children in the 1960s, 1970s and 1980s by the church's onetime pastor.

&&&

Toms River attorney Robert R. Fuggi filed the lawsuit on behalf of 19 plaintiffs, who now range in age from 29 to 52, who allege they were molested by [the parish pastor] Slegel when they were children ranging in age from 5 to 15. There is a 20th man who also claims he was molested as a child by Slegel, whom Fuggi said he plans to add as a plaintiff to the lawsuit. &&&

"Today was a significant victory," Phillipsburg attorney Gregory Gianforcaro, another attorney representing the plaintiffs, said afterward of O'Brien's decision. "It means that the case can proceed on for pretrial hearings."

For a 40-year-old Brick man who is one of the 19 plaintiffs, the decision means he can continue with his quest to protect his own and other children from similar sexual abuse. "I'm a parent, and I have two small children, and I don't want anyone to go through what I went through," said the man, whose identity has been withheld because he was the victim of alleged sexual assaults. "I don't want anyone to go through the hell that I and the other 19 did."

The man, who attended Friday's hearing with 12 of the other plaintiffs, said outside the courthouse that he was 6 years old and would play ball in the street every day with his friends when Slegel opened the doors to the church's facilities to them, telling them they could have a place to play, rain or shine.

Soon after that, Slegel would take him into his office, make him sit on his lap and molest him while the boy played with the pastor's typewriter, the man alleged. The molestation occurred weekly for seven years, until he was 13 years old, the man claimed.

Asked the number of times it occurred, the man responded, "I can't count that high." By the time he was a teenager, "I turned to alcohol, marijuana and cocaine — anything to bury it," the man said. "I was guilty of living a block away (from the church). I was just trying to be a kid."

Also outside the courthouse, the mother of one of the plaintiffs, who did not identify herself to protect the identity of her son, said, "We thought it was awesome that the church was opening its doors to the kids, and we were totally trusting. We never heard anything (about sexual abuse by clergy) back then."

Attorneys for the church on Friday argued that the church, school and its officials have immunity from the claims in the lawsuit because of their status as charitable organizations. The attorneys for the defendants also argued that the two-year statute of limitations had long passed before the lawsuit was filed in 2005.

"The alleged acts of sexual abuse took place between 1967 and 1985," William J. Conroy, attorney for the church and school, told O'Brien.

"My client is deceased, which means this case is a very difficult case to defend for all of the defendants," said Linda A. Olsen, the attorney representing the estate of Slegel, who was living in Southern Shores, N.C. when he died last year at age 77.

Normally, the statute of limitations would have started to run when the plaintiffs turned 18. But Fuggi said because of his clients' repressed or delayed memories of the alleged abuse, the statute of limitations would not start to run until they realized the molestation caused emotional problems they are experiencing as adults.

O'Brien ordered that the plaintiffs be examined by medical and mental-health experts for the defense to determine when they remembered the alleged abuse and realized what effect it had on them. The judge ordered future hearings to be held on that matter and on the relationship of each plaintiff with the church and school to determine whether their claims can proceed to trial or are barred by either charitable immunity or the statute of limitations.

O'Brien, in making his ruling, cited a 2006 decision by the state Supreme Court in a case involving alleged child sexual assault — John W. Hardwicke against the American Boychoir School. The Hardwicke decision said charitable organizations are not immune from claims brought for willful, wanton or grossly negligent conduct, and that an institution such as a school can be viewed as a child abuser if it is standing in place of a child's parents and fails to protect the youngster from abuse.

The judge said he would meet with the attorneys in the case in November of 2008 to schedule the pretrial hearings, after the plaintiffs are examined by medical and mental-health experts. O'Brien dismissed complaints brought by two of the plaintiffs against the Rev. John M. Elstad, an associate pastor who worked under Slegel and assumed the post of senior pastor upon Slegel's resignation amid scandal in 1993. O'Brien dismissed the two complaints because the allegations of abuse preceded Elstad's arrival to the church, but he let stand the complaints of the remaining plaintiffs against Elstad.

The lawsuit has alleged that Elstad, who retired in 2004, and other church and school officials turned a blind eye to the sexual molestation.

Elstad's attorney, Michael Gilberti, has denied that Elstad had any knowledge of the alleged abuse. Joseph Goldberg, an attorney representing officials of the Evangelical Lutheran Church in America and 192 Lutheran churches known as the New Jersey Synod, said the church officials named as defendants were not yet in office when the alleged molestation occurred.

Does the story sound familiar?

Does the Pultzer Prize-winning Boston Globe want to reconsider its position about the scope and possible causes of the "clergy abuse scandal"? If not, is the Boston Globe guilty of anti-Catholic prejudice?

N.B. I have been a Lutheran all my life. I am now reconsidering my religious affiliation. I live in New Jersey. To my knowledge, there has been little if any discussion in by the ELCA hierarchy about the possible problem of Lutheran clergy abuse. The position of the ELCA seems to be like the Boston Globe's: "What problem?" I suspect that time will tell a different story.

Two More Advance Copies of Papers on Visualization of Evidence and Inference

The following advance copies of papers on the visualization of evidence and inference are now available:

1 December 2007

Chris Reed and Glenn Rowe, A pluralist approach to argument diagramming, Law, Probability and Risk Advance Access published on December 1, 2007. doi:10.1093/lpr/mgm030

26 November 2007

Terence J. Anderson, Visualization tools and argument schemes: a question of standpoint, Law, Probability and Risk Advance Access published on November 26, 2007. doi:10.1093/lpr/mgm039

These advance copies will disappear in a week or two; the hard copy of LPR's quadruple(!) special issue on visualization of evidence & inference will be published in hard copy very soon.

When Guilt or Innocence Hangs (Largely) on a (Microscopic) Speck

Some years ago - in 1999 -- Jill Dando, a well-known BBC TV reporter (or "presenter"), was shot to death. In 2001 a man called Barry George was tried and convicted for her murder. A key piece of evidence -- apparently the key piece of evidence -- against George was a "microscopic particle of gun shot residue found in the pocket of a jacket owned by George." Wikipedia Article. But the UK Court of Appeal has just concluded that George's conviction was "unsafe" and it allowed George's appeal (i.e., it vacated his conviction). (But George was not released from custody.)

An article in the Guardian in the summer of 2002 asserted, "The evidence against George - resting primarily on an invisible particle of explosives residue found on the lining of his coat - was remarkably thin. He lived in a cluttered and uncleaned flat." Bob Woffenden, Shadow of Doubt?, Guardian (July 6, 2002)

I have not studied this well-known case, and I have not read the Nov. 15 opinion of the Court of Appeal. But one media account implies that it is possible the Court of Appeal allowed George's appeal (on Nov. 15, 2007) because the Court concluded that there was a real possibility that the police who searched George's apartment inadvertently deposited the microscopic particle on George's clothing. Other sources hint at a slightly different but similar ground for the overturning of George's conviction -- that the argument tying the speck or particle to the gun that was used to shoot Jill Dando was weak and perhaps that the Court of Appeal concluded that it was equally probable that the speck found in the pocket of George's jacket came from a different source, from a source other than the murder weapon. See, e.g., the Wikipedia article cited above. Cf. a BBC news report discussing the argument before the Court of Appeal prior to the ruling by the Court of Appeal:

Dr Ian Evett, an FSS employee since 1966, said his position was one of "vague unease", Mr Clegg [defense counsel] said.

He [Evett?] said an FSS report found "it would be just as likely that a single particle of discharge residue would have been recovered from his pocket whether or not he was the person who shot Miss Dando nearly a year previously".

Needless to say, I need to read the Nov. 15 opinion of the Court of Appeal.

One odd thing about this case is that a well-known "crime science" institute was established in Jill Dando's memory. See UCL Jill Dando Institute of Crime Science

Scientific evidence can be powerful. But sometimes scientific evidence makes a great deal out of physically trifling trifles of evidence. Is the object lesson of the George case this: when scientific inferences rest on physically small trifles (a hair, a speck of dust, etc.) very careful attention must be paid to how the evidentiary trifle might have gotten to where it was found? [For example, was the trifle wafted there by the wind? Was it deposited there by a police officer? Did the cleaning lady {or gentleman} leave it there? Etc.] Or does this case merely teach that the science used to draw inferences from the trifle in question went awry (perhaps due to mistakes by the testifying expert or, alternatively, perhaps because of defective scientific theory)? I shall have to read the opinion. Or, dear Reader, perhaps you will do this for me?

Brain Complexity: An Update

A smart$#%, or a modern-day imaginary academic Walter Mitty(?), suggests how recent research into electromagnetic fields in the brain might show that brain operations might are far more complex than previously imagined:

I couldn't take it anymore. I raised my hand.

"Yes?" Karmel [an imaginary lecturer] boomed.

I cleared my throat. "I have a question about neurons."

"What is it?" He seemed slightly irritated by having to deviate from the portrait of the hypothalamus that he was so masterfully painting.

"Is the action potential, the electrical charge that travels down the axon of a neuron, in any way similar to electric current that passes through wires in a circuit?"

"The action potential is an electrochemical impulse, whereas the current in wires is purely electrical - though there are some similarities."

"Well, I guess what I was wondering about is this - we know when current passes through a wire it creates an electromagnetic field around that wire. Is it true, then, that when a neuron fires, an electromagnetic field appears around the axon?"

"Yes, in fact some research has actually measured the strength of these magnetic fields." He seemed pleased with his answer.

I twirled my pen between my fingers. "That's interesting, because the magnetic field around a wire alters or creates current in a wire lying near it. Does that mean that any single neuron can influence the action potential of other nearby neurons not just through the synapse, but also through the changes in its magnetic field - and doesn't that add a level of complexity to how the brain functions that far surpasses our current knowledge, especially since our theories primarily emphasize synaptic transmission?"

Karmel's pipe dropped from a stout, upright angle to a limp, downward slant. He pulled it out of his mouth and leaned across his desk towards me, squinting slightly, as if trying to bring me into sharper focus. "I suppose the magnetic fields around axons might influence the activity of other axons, but the communication of information in the brain is primarily through the synapses.... Now, as I was saying, the hypothalamic nuclei are intricately interconnected and receive information from motor systems and from olfactory, gustatory, visual, and somatosensory systems..."

&&&

If quantum computing is what the brain does, the complexity of the brain's opreations is almost boundless. See, e.g., the brief discussion here; the author -- Stuart Hameroff, M.D. -- there states (in part):

Beginning in the early 1980's Benioff, Feynman and others proposed that states in a system - bits in a computer - could interact while in quantum superposition of all possible states, effecting near-infinite parallel computation. Rather than classical Boolean bit states 1 or 0, quantum computers would utilize interactive "qubits" of 1 and 0. If quantum computers can ever be constructed they will have huge advantages in important applications. As the brain/mind has always been cast as current information technology, consciousness may inevitably be seen as some form of quantum computation.

Are Sensations Irreducible or Are They Complex?

Marvin Minsky, Interior Grounding, Reflection, and Self-Consciousness (originally published in Brain, Mind and Society, Proceedings of an International Conference on Brain, Mind and Society, Graduate School of Information Sciences, Brain, Mind and Society, Tohoku University, Japan, September 2005):

[S]ome people ... think that the qualities of such sensations [such as the sensation of a color such as "red"] are so basic and irreducible that they will always remain inexplicable.

However, I prefer to take the opposite view—that what we call sensations are complex reflective activities. They sometimes involve extensive cascades in which some parts of the brain are affected by signals whose origins we cannot detect—and therefore, we find them hard to explain. So, I see no exceptional mystery here: we simply don’t yet know enough about what is actually happening in our brains. But when you think enough about anything, then you see this is also the case with everything.

Minsky is one smart cookie.

Two More Advance Copies of Papers on Visualization of Evidence and Inference

Please go here for advance copies of the following two papers on graphic and visual representations of evidence and inference in legal settings (but the gratis links to these papers will expire in a few weeks, when the hard copy of the special issue[s] on visualization appears):

David Tait, Rethinking the role of the image in justice: visual evidence and science in the trial process, Law, Probability and Risk Advance Access, published on November 13, 2007. doi:10.1093/lpr/mgm040

Burkhard Schafer, Can you have too much of a good thing? A comment on Bart Verheij's legal argumentation support software, Law, Probability and Risk Advance Access, published on November 13, 2007. doi:10.1093/lpr/mgm038

A Comment Pertinent to Visualization of Evidence and Inference

Consider these propositions:

Ideas and diagrams are higher abstractions than words and fonts. The Idea Processor depicts ideas as graphical objects and its relationship as links. You get the Big Picture at all times, and details can be hidden from view. A diagram helps to organize cognitive activities and select approaches to problem solving. A diagram need not be a precise representation of all aspects of the real world. Vagueness helps to distill the generic attributes of the ideas and encourages exploration. A sketch is often not so much vague as it is something that stands for a family of precise models.

Axon Concepts

Note the comment about the possible occasional value of vagueness in diagrams.

Unconscious - and Remarkably Complex! - Inference

Although described as a master computer, the brain is fundamentally more complex and its processes far more subtle than those of any current computer design. With the advantage of parallel operation of neuronal populations, the brain manages and controls a wide variety of tasks simultaneously, reliably, and with rapid precision. Indeed, much of the brain's work proceeds even in the absence of an individual's conscious awareness.

All brain activity results from electrical and chemical communication among neurons (the primary signaling cells of the brain), each of which can communicate with other neurons using signals at rates of up to 1,000 events (impulses) per second. To understand the brain, neuroscientists must measure and analyze the rapid changes in neuronal signaling activity that occur over the vast networks of cells and connections. The scope of this endeavor is immense. It is estimated that the human brain contains more than 100 billion neurons, and each neuron maintains an average of about 1,000 connections, called synapses, with other neurons. Some neurons have as many as 200,000 synapses. During each moment of daily life, neural signals may be transmitted across any of approximately 100 trillion synapses.

Constance M. Pechura and Joseph B. Martin, eds., Mapping the Brain and Its Functions (National Academies Press, 1991)

Perception as Unconscious Inference; Shades and Forms of the Same

Perception involves unconscious inference. But unconscious inference in perception takes various forms. Gary Hatfield has apparently spent much of his professional career studying the nature of perceptual inference. See here. Shouldn't people in the law of evidence -- people who profess to care about perception and about reports based on perception -- pay attention to Hatfield's work?

Much of Hatfield's work focuses on vision.

Do You Believe in Sociobiology and Law? - Chapter 5

29 London Review of Books No. 22 (15 Nov. 2007) has further responses to Jerry Fodor's jab at ultra-Darwinism. The attempted rebuttals are of diverse kinds. See Letters at id. The rebutters (people) include Jerry Coyne, Philip Kitcher, Daniel Dennett (of course), Steven Rose, Colin Tudge, and Kit Evans (on an architectural point -- spandrels v. pendentives).

I assume -- I hope -- Fodor will respond. We have the makings of an interesting debate here (but perhaps Fodor will replace references to spandrels with references to pendentives?).