New Article on Repressed Memory: Review of Recent Research

The following new article calls for your attention if your case or cases involve claims of repressed and recovered memory: August Piper, Linda Lillevik & Roxanne Kritzer, "What's Wrong with Believing in Repression?: A Review for Legal Professionals,"14 Psych. Pub. Pol. & L. 223 (2008).

It may be time to permanently repress repressed memory.

the dynamic evidence page

coming soon: the law of evidence on Spindle Law

consulting

Academic Law and Real Law

Academics greeted United States v. Old Chief, 519 U.S. 172 (1997), with considerable fanfare. The decision, it was said, embraced the notion of "narrative relevance." And so it did. But a search in LEXIS and WESTLAW reveals nary a single post-Old Chief judicial decision that uses the phrase "narrative relevance." So is Old Chief's beatification of narrative relevance real law?

A significant chunk of the law school world has been interested in "narrative" for quite some time. But has this academic enchantment with narrative clouded academics' assessment of Old Chief, has it led academics to exaggerate the importance of Old Chief? That's entirely possible.

N.B. I still insist that scenario-formation and scenario-assessment (versus "narrative") are central to fact finding. I believe that these processes are necessary ingredients of almost all fact finding and inference -- no matter what judges might or might not say. (I think the role of narrative in fact finding and evidential inference is a different story -- so to speak).

Caveat: I have not done the sort of exhaustive search and study of the case law that would be necessary to show that narrative relevance does not exist in judicial opinions under some other name. So at this point I can only raise a question. Nonetheless, the utter absence of "narrative relevance" from the language of judicial opinions raises a strong suspicion, no?

the dynamic evidence page

coming soon: the law of evidence on Spindle Law

consulting

A numbers game: 3, 2,...?

On the doctrine of chances again:

Three prior "accidental" drownings are enough to show or suggest that the latest drowning was no accident.

Two prior drownings are also enough to show or suggest that the latest drowning was no accident.

So one prior drowning is also sometimes enough? (If not, why not?)

And, of course, no prior bathtub drownings are necessary and evidence of the putatively accidental but possibly murderous drowning for which accused is on trial is admissible to show that the drowning was no accident.

In short: if it's all about the numbers, there is a sense in which the numbers don't really matter. In any case, what does the number of prior drownings -- one, two, or more -- have to do with the question of whether an inference from propensity is necessary? The answer, I think, is nothing -- unless, that is, you think -- incorrectly -- that the character evidence rule is rooted in nothing except judgments (or beliefs) about the probative value of evidence about human behavior.

the dynamic evidence page

coming soon: the law of evidence on Spindle Law

consulting

Is the Doctrine of Chances Good Law -- Really?

It is often said that the "doctrine of chances" -- think Brides in the Bath -- is good law, if only implicitly so. But my research reveals or suggests that during roughly the last 18 years only a small handful of federal courts -- perhaps only two -- have expressly endorsed the doctrine of chances. In view of this can it reasonably be argued that the doctrine of chances is good law in the federal system? I wonder. I seriously wonder.

the dynamic evidence page

consulting

coming: the law of evidence on Spindle Law

Exculpatory Polygraph Result Admitted in State Criminal Trial

Debra Cassens Weiss, "Law Grad Acquitted, Relies on Polygraph," ABA Journal online (Sept. 5, 2007):

Judge Judy Hunter of Akron, Ohio, acquitted Sharma in a bench trial. She allowed Sharma to introduce the polygraph exam, the first time such evidence was used in an Ohio criminal trial in 30 years, according to a press release issued for the examiner, Louis Rovner.

Prosecutors had appealed Hunter’s decision to admit the test, but an Ohio appeals court said the issue was not ripe for review.

the dynamic evidence page

consulting

coming: the law of evidence on Spindle Law

Lay Judges in Japan -- Expected Rate of Participation

Japan Times Online (Dec. 1, 2008):

Under the lay judge system to be introduced in May, roughly half the people nationwide registered on the list of candidates will likely be summoned by district courts for interviews as possible candidates, according to an estimate released Sunday.

&&&

The Supreme Court sent letters Friday to 295,027 people to notify them that they have been selected as initial candidates for lay judges and may take part in trials for serious crimes in the next year.

the dynamic evidence page

consulting

The Law of Evidence on Spindle Law Is Coming Ever Closer

The law of evidence on Spindle Law is coming. Indeed, it's coming closer than ever.

Stay tuned for details -- details about the forthcoming "Evidence Module."

I will want you to contribute. And I may have something to show you in January or so--something to which you might want to contribute (or so I hope).

the dynamic evidence page

consulting

Rationale(s) for Rules of Evidence

"The" reason for rules of evidence has been discussed (though usually cursorily) many times. Many but not all of those discussions have been simplistic, and many of them (though not all) have said "the" reason for rules of evidence is the need to control jury decision making. There is a refreshing new article about the rationale(s) for rules of evidence in the English common law style (which the English themselves seem to be in the process of abandoning): Lisa Dufraimont, "Evidence Law and the Jury: A Reassessment," 53 McGill L.J. 199 (2008).

Here is the article's abstract:

The common law of evidence is counterintuitive because it seeks to facilitate the search for truth by regulating fact-finders' access to and evaluation of evidence. Since truth seems most likely to emerge when adjudicators reason freely from all available information, this puzzling strategy of seeking truth through evidentiary regulation demands some explanation. The orthodox explanation is that evidentiary regulation functions as a form of judicial control over the jury. Because juries arc untrained, non-professional adjudicators, they are said to lack the competence to evaluate evidence. On this view, evidence rules arc primarily directed at constraining jury decision making and preventing jury error. This jury-centred view has been criticized, and scholars have advanced other explanations for truth-seeking evidence rules. Some suggest that evidence law operates chiefly to promote the search for truth within the context of the adversary system, while others contend that evidence rules are primarily directed at managing the risk of witness dishonesty.

This article examines the claim that evidence law represents a form of jury control, and also considers some competing explanations for evidence rules. The author argues that no single principle explains the law of evidence. A complex set of explanations is needed to account for the historical origins of the rules and to justify them analytically. Moreover, the salience of these various explanations can only be judged in particular doctrinal contexts. Jury-related rationales are most persuasive where there are solid reasons to believe that juries have trouble evaluating the particular form of evidence at issue. Social-scientific research does not support the conclusion that juries are generally incompetent adjudicators, but it does indicate that juries struggle with specific types of evidence. Consequently, the question whether a particular evidence rule can be justified on jury-control grounds depends, first, on the specific competencies required to evaluate the evidence and, second, on what is known about jury psychology and behaviour.

Here is a statement of the article's (refreshing) thesis (which, to my eyes, runs in the tradition of American legal realism), the thesis that no single principle or rationale animates the existence and contours of rules of evidence in the common law style:

The debate over the explanatory principles of evidence law is largely a debate about whom to mistrust. Is our fear that juries may misconstrue the evidence, that adversaries may obscure the truth, or that witnesses may perjure themselves? Of whom are we afraid, and whom are we trying to control? It seems doubtful that these questions can ever be answered in any decisive way.

Certainly some authors identify one explanatory principle as the primary, underlying principle of evidence law. Thayer, among others, focused on the jury, while recently evidence scholars have suggested that the central rationale for evidence law lies elsewhere. Nance argues that the best evidence principle, which is concerned with advocate control, constitutes a superior explanatory principle to the traditional jury-centred rationale for evidence law. According to Imwinkelried, both of those explanatory principles are inferior to the dishonesty-control rationale, which he claims constitutes "the best explanatory hypothesis for the logical structure of Evidence law." [FN236] The modern theorists admit forthrightly that no one principle explains the totality of evidence law, an admission that militates in favour of interpreting their claims modestly. [FN237] But beyond arguing the explanatory power of the various rationales for evidence law, these scholars purport to choose the best, unifying theories, or even to explain the law's "logical structure". [FN238] Such ambitious claims are difficult to defend.

The search for an "organizing principle" [FN239] of evidence law is vain because evidence law is not organized around a principle. Given the ad hoc nature of evidentiary regulation, there is no reason to believe that the various possible rationales for evidence rules are mutually exclusive. A more tenable position is to recognize that various factors, including the trial features under consideration, play a role in explaining evidence law. [FN240] The origins and justifications of evidentiary rules are best uncovered in specific doctrinal contexts. And one could easily add yet more layers of complexity to the picture. Issues that cannot entirely be disentangled from the explanatory principles include extrinsic policy considerations like fairness and due process, as well as concerns about the efficient conduct of the trial process, such as affordability, speed, and finality.

It seems to me that it is no accident that two of the mentors of the author of this delightful article are Steven Duke and Mirjan Damaska of Yale Law School.

the dynamic evidence page

consulting

Reasonable Doubt and Christianity; Reasonable Doubt and Guantanamo; Reasonable Doubt and Torture; Reasonable Doubt and Confessions

In late January of 2009 -- on January 23 -- the Cardozo Journal of International and Comparative Law will host a symposium on "proof beyond a reasonable doubt." One focus of the symposium will be the relationship between the reasonable doubt standard and the history of Christian theology. Another focus will be on the relationship between the reasonable doubt standard, confessions, and torture (and here it is expected there will be some talk about Guantanamo -- just a few days after Barack Obama becomes President of the United States). Perhaps President Obama will take notice?

The following people may participate as panelists or moderators:

Professor James Whitman (Yale)
Professor Barbara Shapiro (UCLA, Berkeley)
Milbert Shin (Deputy, US Department of State, Office of War Crimes Issues)
Professor Ronald Allen (Northwestern)
Professor Suzanne Last Stone (moderator) (Cardozo Law School)
Professor David Hamer (University of Queensland)
Professor James Franklin (Department of Mathematics, University of New South Wales)
Professor Mark Denbeaux (Seton Hall)
Professor Kim Lane Scheppele (Princeton) OR Professor Barry Scheck (Cardozo Law School)
Peter Tillers (moderator)

the dynamic evidence page

consulting

Inference from Signs

I recently decided, more firmly than I had before, that inference from evidence is almost inexplicable unless one supposes some sort of consonance between the cosmos and the human organism. See P. Tillers, "Are There Universal Principles or Forms of Evidential Inference?," in Crime, Procedure, and Evidence in a Comparative and International Context (Oxford: Hart, 2008). As Albert Einstein said of the intelligibility of the cosmos, that evidence should be able to point to something beyond itself is a deep mystery. It is therefore high time, I think, that I pay some serious attention, not only to Peirce's theory of abduction and semiotics, but to the more than thousand-year history in occidental thought of how "signs" work. During a recent semi-random walk through GOOGLE I found a book published in 2001 that looks very promising and interesting: James Allen, Inference from Signs: Ancient Debates about the Nature of Evidence (Oxford University Press, 2001, paperback reprint 2008). The publisher's blurb states:

James Allen presents an original and penetrating investigation of the notion of inference from signs, which played a central role in ancient philosophical and scientific method. Inference from Signs examines an important chapter in ancient epistemology: the debates about the nature of evidence and of the inferences based on it--or signs and sign-inferences as they were called in antiquity.

Special attention is paid to three main issues. Firstly, the relation between sign-inference and explanation. At a minimum, sign-inferences permit us to draw a new conclusion, and they are used in this way in every sphere of life. But inferences must do more than this if they are to play the parts assigned to them by natural philosophers and medical theorists, who appeal to signs to support the theories they put forward to explain the phenomena in their domains. Allen examines the efforts made by Aristotle, the Stoics, the Epicureans, and in medicine to discover what further conditions must be satisfied by inferences if they are to advance explanatory purposes.

To speak of inference from signs presupposes that the use of signs is a form of reasoning from grounds to a conclusion. However, an alternative nonrational conception is explored, according to which the use of signs depends instead on acquired dispositions to be reminded by one thing or another. This view is traced to its probable origin in the Empirical school of medicine, whence it was taken by Pyrrhonian skeptics, who introduced it into philosophy.

Evidence sometimes supports conclusive arguments, but at other times it only makes a conclusion probable. Allen investigates Aristotle's path-breaking attempt to erect standards by which to evaluate non-conclusive but--in Aristotelian terms--reputable inferences.

Inference from Signs fills an important gap in the histories of science and philosophy and provides the first comprehensive treatment of this topic.

Oxford University Press has this to say about the author:

James Allen is professor of philosophy and a fellow of the Center for Philosophy of Science. He has held a visiting appointment at Yale, been a visiting fellow at Clare Hall, Cambridge, and a Stipendiat of the Alexander von Humboldt-Stiftung at the Universitat Hamburg. His principal interests are in ancient Greek and Roman philosophy. He is the author of articles about ancient conceptions of expertise, ancient skepticism, ancient medicine, Aristotelian logic, Epicureanism, Stoicism, and Cicero.

the dynamic evidence page

consulting

The Swarm Intelligence of Ants -- and of the Jury?

I was at an academic conference recently at which a couple of eminent speakers questioned (nay, affirmed) the (ir)rationality of trial by jury. However, am generally of a different mind: I am inclined to think that juries generally get it right -- "it" being, among other things, the facts -- more often than a single professional judge does or than would,say, a randomly-selected group of law teachers. So I was interested in the following recent reminder of swarm intelligence in ants, a reminder that set me to musing once again whether such swarm intelligence exists among groups of human beings such as juries and, if so, in what way and about what sorts of matters: Steve Jones, "E pluribus Unum, NYTimes Book Review (Nov. 21, 2008) (review of Bert Hölldobler & Edward O. Wilson, THE SUPERORGANISM: The Beauty, Elegance, and Strangeness of Insect Societies (W. W. Norton & Company, 2008):

A few simple rules produce what appears to be intelligence, but is in fact entirely mindless. Individuals are automatons. An ant stumbles on a tasty item and brings a piece back to the nest, wandering as it does and leaving a trail of scent. A second ant tracks that pathway back to the source, making random swerves of its own. A third, a fourth, and so on do the same, until soon the busy creatures converge on the shortest possible route, marked by a highway of pheromones. This phenomenon has some useful applications for the social animals who study it. Computer scientists fill their machines with virtual ants and task them with finding their way through a maze, leaving a coded signal as they pass until the fastest route emerges. That same logic helps plan efficient phone networks and the best use of the gates at J.F.K. In the phone system each message leaves a digital “pheromone” as it passes through a node, and the fastest track soon emerges. Swarm intelligence does wondrous things.

'Tis a fact, isn't it, that no single person could have constructed the Empire State Building, invented the micro-chip, or, even, have thought of and have assembled a functioning pressurized rubberized automobile tire? Therefore(?) ... a jury of twelve people can assess can assess ...(?)... [e.g., jealousy as motivation for murder?]... better than any single person can?

the dynamic evidence page

consulting

The Law of Evidence on Spindle Law

The law of evidence on Spindle Law is coming.

Stay tuned for details -- details about the forthcoming "Evidence Module."

I will want you to contribute.

the dynamic evidence page

consulting

New Mexico Supreme Court: Thoughtful Comments about Character Evidence

State v. Martinez, -- P.3d --, 2008 WL 4892091 (N.M.,Oct9. 2008) (Daniels, J.):

A. Theories Underlying Admissibility of Character Evidence

The admissibility of character testimony is regulated in two separate areas of our New Mexico Rules of Evidence: in the relevancy rules of Article 4 and in the witness rules of Article 6. Both of those areas are implicated in the issues presented in this case, which call on us to address the admissibility of character testimony as circumstantial evidence of relevant conduct under Rule 11-404(A)(1) (providing for admission in a criminal case of "[e]vidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same"), as well as the admissibility of character testimony as circumstantial evidence of credibility of a witness under Rule 11-608(A) (providing that "[t]he credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation ... [regarding] character for truthfulness or untruthfulness ... after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise"). The two inquiries are founded on the same underlying beliefs about the relationship between character and conduct, but their uses involve different policy considerations and different rules of application.

Courts and commentators have observed that these uses of character evidence are often misunderstood in their own applications and are frequently confused with one another. ...

This case is an illustrative example. The record reflects confusion by counsel on both sides, by the district court, and by the Court of Appeals as to the differing purposes and applications of the separate admissibility of character testimony as substantive evidence and as witness credibility evidence. To aid in understanding and clarification, we first review the theories, history, and purposes relating to their admissibility.

A review of the development of character evidence shows that its use extends further back into our legal history than even such fundamental rights as those of an accused to testify or to have the assistance of counsel. The theory underlying the relevance of character evidence is based on our common human experience that "[t]he character ... of the persons we deal with is in daily life always more or less considered by us in estimating the probability of their future conduct." 1A Wigmore, Evidence § 55, at 1159 (Tillers rev.1983). In one of the oldest scraps of papyrus to survive from the days of the ancient Egyptians, a king instructs a young prince that "[a] good character is remembered." 1 Miriam Lichtheim, Ancient Egyptian Literature 107 (1973).

Modern scientific research now confirms what human beings have always observed in their own family and community relationships, that the average person is able to explain, and even predict, a subject's behavior with a significant degree of accuracy. Susan Marlene Davies, Evidence of Character to Prove Conduct: A Reassessment of Relevancy, 27 Crim. L. Bull. 504, 517 (1991); see Thomas J. Reed, The Character Evidence Defense: Acquittal Based on Good Character, 45 Clev. St. L.Rev. 345, 356 (1997) ("According to the best available psychological data, character or personality trait theory has a scientific basis. Human beings do behave more or less consistently across a multitude of similar situations."). One of the predictive tools by which those determinations are made is the consideration of one's character traits based on patterns of past conduct. See, e.g., Walter Mischel & Yuichi Shoda, A Cognitive-Affective System Theory of Personality: Reconceptualizing Situations, Dispositions, Dynamics, and Invariance in Personality Structure, 102 Psychol. Rev. 246, 246 (1995) (summarizing "recent empirical data demonstrating that individuals are characterized not only by stable individual differences in their overall levels of behavior, but also by distinctive and stable patterns of behavior variability across situations"). Because conduct reflects character, knowledge of character is necessarily helpful in predicting conduct.

&&&

The State successfully argued in the district court the same position that it has maintained throughout the appellate process, that "there is no pertinent character trait that has been put in issue" because there is no character trait pertinent to a person's propensity to commit any crime of solicitation, including the crime of solicitation to commit burglary charged in this case. In response, defense counsel has argued that "evidence whether he is honest, he's the type of person that commits dishonest acts of robbery and burglary is pertinent."

In this case, Defendant proffered that his character witnesses would testify that he was both an honest and a truthful person. Throughout this litigation, the parties have made no efforts to distinguish honesty and truthfulness as traits having differing relevance or applicability. Honesty and truthfulness, if indeed they can be considered separate traits in other contexts, have been treated as interchangeable in New Mexico case law involving analogous character trait relevance. See Melendrez, 91 N.M. at 261, 572 P.2d at 1269 (holding that offenses of "deceit, fraud, cheating, or stealing" are relevant to both honesty and veracity for purposes of Rule 609 impeachment). The district court determined that evidence of neither was admissible in a prosecution for solicitation to commit burglary. The Court of Appeals, relying in part on the analogous Melendrez opinion construing relevance for Rule 609 purposes, concluded that evidence of both was admissible. The State asks us to hold that neither trait was admissible, and Defendant asks us to hold that both were admissible. Although the parties did not articulate any distinction between the two, our research reflects that we must address whether we should recognize any such distinction for the purposes of deciding this case.

A few courts in other jurisdictions have taken the view that honesty and truthfulness should be given separate evidentiary application under Rule 404(A)(1), on the theory that "one who is honest must also be truthful because honesty subsumes truthfulness," while "one may be truthful but not be honest." Wiggins v. State, 778 S.W.2d 877, 889 (Tex.Ct.App.1989). Our research, however, has found no psychological, sociological, or other scientific or empirical research to support what appear to be only ipse dixit theoretical distinctions. ... There is simply no persuasive authority to support a theory that psychologists or ordinary citizens would draw any realistic distinctions between the likely behaviors of an "Honest Abe" and a "Truthful Abe."

&&&

In this case, the State makes no argument that evidence of honest and truthful character would have been inadmissible if Defendant had been charged with personally committing a burglary. Instead, it argues that a character trait that is pertinent to a charge of burglary is not pertinent to a charge of soliciting someone else to carry out the same burglary.

&&&

The State's theory seems to focus on an accused's particular physical role in the planned crime, instead of the presence or absence of his criminal intent, in determining which character traits are pertinent to a consideration of the likelihood of his participation in the crime. This misapprehends why the law considers character to be relevant in determining guilt or innocence. Criminal intent is the essence of what distinguishes criminal from non-criminal conduct.

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. Morissette v. United States, 342 U.S. 246, 250 (1952) (quoting William Blackstone, 4 Commentaries *22); see also State v. Yarborough, 1996-NMSC-068, ¶ 9, 122 N.M. 596, 930 P.2d 131 ("We must be sure that the penalties associated with a felony conviction are imposed only in response to an act done with at least the minimum culpable state of mind."). In the more colorful phrasing of Justice Oliver Wendell Holmes, "even a dog distinguishes between being stumbled over and being kicked." Oliver Wendell Holmes, Jr., The Common Law 3 (Little, Brown & Co.1938) (1881).

The fallacy of focusing on an accused's physical participation, instead of the relationship between his intent and the commission of a crime, is demonstrated by a few hypothetical differences in how one could intentionally assist in the commission of a burglary. The State has never argued with the proposition that an honest person would be less likely than a dishonest person to enter a home with the intent to steal. Would honesty be any less relevant where a person is accused of reaching through a window to accomplish the same theft, without getting his whole body inside? Or where a defendant allegedly used a pair of tongs to reach inside without any part of his own body crossing the threshold? Or where a defendant is charged with having used a remote control robotic device to make the entry and theft? Or where the defendant, as in this case, allegedly used a human agent instead of a mechanical device to accomplish the very same theft? It is obvious to us that the character inquiry goes to whether a person would be likely to participate intentionally in a crime of theft and not on the physical means of accomplishing that dishonest result.

This little gem of an opinion is only seven pages long.

American legal scholars increasingly ignore judicial opinions. Martinez illustrates the folly of such a cleavage between the academic world and the judiciary: apart from the non-trivial fact that judges make much law, Martinez is a forceful reminder that there is much intelligence on the bench.

On the merits: if the legal process were able to digest a multitude of character details with the same subtlety and discrimination that ordinary people do in their ordinary lives, it might make sense to allow the prosecution to introduce details about the character of the accused during the prosecution's case in chief. But I think it is wildly unrealistic to think that this could be done at reasonable cost in an ordinary hum-drum criminal trial or that nuanced evidence about the details of the behavior of an accused over a period of years could be accurately reconstituted in the resource-starved hothouse of an ordinary party-dominated American criminal trial. Indeed, there is reason to wonder how well any system of criminal adjudication could reproduce such information in the detail that is necessary to make such information predictive of human behavior. So we're in a pickle, aren't we?

the dynamic evidence page

consulting

Videos, Victim Impact Statements & Johnny Lynn Old Chief

The Supreme Court denied cert yesterday in two victim impact statement cases. See Kelly v. California, 07-11703 & Zamudio v. California. The Supreme Court's website actually has a link to the video that was used in the capital sentencing proceeding in Kelly v. California. Go here. This video, together with Justice Stevens's opinion explaining his dissent from the denial of cert, id., must give pause to almost any reasonable person about the role of victim impact statements. And don't the video in Kelly and J. Stevens's dissent raise important and interesting questions about the reach of Old Chief v. United States, 519 U.S. 172 (1997)(wherein the Supreme Court embraced what was later dubbed "narrative relevance")?

the dynamic evidence page

consulting

Rules of Evidence -- They Are Unavoidable

I have long been of the view that rules governing the admissibility of evidence in adjudication are inevitable in any organized system of adjudication -- in any system of adjudication that is part of a procedural system that reflects and embodies societal preferences for certain modes of procedure rather than some other preferences. Any such system of procedure and adjudication, I have long thought, must filter evidence in some fashion. Now I can cite and quote an interesting article that offers some support for my general hypothesis. See Jacqueline Ross, "Do Rules of Evidence Apply (Only) in the Courtroom? Deceptive Interrogation in the United States and Germany," 28 Oxford Journal of Legal Studies 443, 444 (2008):

Scholars who downplay the importance of continental rules of evidence implicitly assume that these rules govern courtroom procedure. But evidentiary rules can shape the ways in which evidence is acquired through investigations as well as ways in which it is ultimately presented at trial. By focusing on courtroom procedure, existing misses the important role that continental evidentiary rules play in sifting information at its source. Constraints on investigators become evidentiary rules when they significantly affect how investigators, such as police and undercover agents, obtain information about criminals, sort it and pass it on to prosecutors. In short, investigative rules function as evidentiary rules to the extent that they filter and shape the information that reaches the trier of fact.

the dynamic evidence page

consulting

Facts in Constitutional Law

Buy this book!

More than 25 years ago William Twining held a conference to proclaim the importance of "fact in law." Now David Faigman has turned Twining's proclamation -- and lament -- into reality. Faigman does so by demonstrating the importance of facts in constitutional adjudication. Of course, facts were always important in constitutional adjudication. The problem is that judges and legal scholars in constitutional law have been extraordinarily cavalier in their treatment of factual inference in constitutional adjudication. Faigman's book should make judges and constitutional law scholars sit up and take notice.

the dynamic evidence page

consulting on investigation strategy and the law of evidence

Fact-Sceptics, Take Heed!

Post-modernists and all ye other fact-skeptics take heed: sometimes evidential inference works rather well. Consider this news item:

2008 TC3 [an asteroid in space] was discovered on 6 October by astronomers using the Mt. Lemmon telescope in Arizona.... At 01:45 UTC, JPL scientist Paul Chodas announced, "We estimate that this [asteroid] will enter the Earth's atmosphere at around 2:45:28 UTC [October 7] and reach maximum deceleration around 2:45:54 UTC at an altitude of about 14 km. These times are uncertain by +/-15 seconds or so."

Question: The actual time of entry in the earth's atmosphere?

Answer: The flash accompanying the asteroid's entry into the atmosphere was photographed by satellite at 02:45:47 UTC [October 7]. This was very probably close to the time of maximum deceleration. That's a difference of seven (7) seconds, which is within the +/-15 seconds uncertainty given by JPL scientist Chodas.

Not bad, eh?

Credit: Mohamed Elhassan Abdelatif Mahir (Noub NGO), Dr. Muawia H. Shaddad (Univ. Khartoum), Dr. Peter Jenniskens (SETI Institute/NASA Ames)

Rules of Evidence in the United States and in Germany

Jacqueline E. Ross, "Do Rules of Evidence Apply (Only) in the Courtroom? Deceptive Interrogation in the United States and Germany," 28 Oxford Journal of Legal Studies 443 (2008), abstract:

Scholars who compare common law and civil law countries have long argued that civil law legal systems such as Germany do not employ formal rules of evidence comparable to those which govern American courtrooms. Civil law systems that commit fact-finding to mixed panels of lay and professional judges are said to have less need for formal rules of evidence that withhold information from decision makers. This article challenges this widely held view. Scholars have failed to recognize that evidentiary rules can restrict not only the presentation of evidence at trial but also the manner of its acquisition during the pre-trial investigation. For this reason, existing scholarship overlooks a rich source of evidentiary norms in the criminal process of civil law countries such as Germany. I argue that German regulation of police interrogation particularly its prohibition of deceptive stratagems plays an important role in shaping the factual record on which the legal system assesses guilt or innocence. The article identifies a number of institutional factors on which this system of pre-trial evidentiary regulation depends.

the dynamic evidence page

consulting on investigation strategy and the law of evidence

Forms of Justice: The Tango and the Rumba

Professor Elisabetta Grande suggests that for comparative study of some procedural systems we should replace the distinction between adversarial and non-adversarial systems with the distinction between procedural systems that resemble the tango and those that resemble the rumba. See E. Grande, "Dances of Criminal Justice: Thoughts on Systemic Differences and the Search for the Truth," in J. Jackson, M. Langer & P. Tillers, eds., Crime, Procedure, and Evidence in a Comparative and International Context: Essays in Honour of Professor Mirjan Damaska.

the dynamic evidence page

consulting on investigation strategy and the law of evidence

Visitors at Yale's Mirjan Damaska Conference

Michael Risinger & Paul Roberts

Paul Roberts & Michele Taruffo

John Jackson, Craig Callen & Michael Risinger

What Happens at Yale Does Not Stay at Yale

the dynamic evidence page