Japan's Mixed-Court Trials Soon to Swing into Action

See "134 so far to stand trial by lay judges," Japan Times Online (June 22, 2009).

The very first trial involves a killing caused by plastic bottles filled with water:

The first [trial], involving a 72-year-old man charged with murdering a neighbor, is scheduled for Aug. 3 to 6 at the Tokyo District Court.

Katsuyoshi Fujii allegedly stabbed Haruko Bun, 66, a South Korean resident of Japan, to death May 1 on a road in Adachi Ward.

Fujii has allegedly told the police he lost his temper after some plastic bottles filled with water in front of his home were knocked over by a motorcycle owned by Bun's son.

Many people place plastic bottles around their garages, gardens and planters under the false belief that light reflected from them will scare off stray cats.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Quantifying Doubt in Criminal Trials

In his article "In Two States, a Lower Bar for Conviction" Adam Liptak of the New York Times writes:

A unanimity rule [for jury verdicts in criminal trials] would seem to reinforce the requirement that prosecutors prove their cases beyond a reasonable doubt. Two jurors out of 12, if you do the math, represent about 16 percent of the panel. That’s a fair amount of doubt.

This eminently silly statement proves that you can do sums and fractions and still produce ridiculous propositions. For example, would Mr. Liptak conclude that if a jury of twelve convicts, it is certain that the accused is guilty? Or does he think that each juror's amount of doubt should be measured and then averaged to determine how much doubt there "was"? Perhaps a successor to C.P. Snow should write a book called THE THREE CULTURES. There are people who are in the sciences. There are people who are in the humanities. Then there are people who...

Robert McNamara, who died today, also knew how to do his sums and fractions back in the 1960s. But his computations (which involved the number of enemy fatalities in the Vietnam war) were, for various reasons, largely meaningless.

The rest of Mr. Liptak's article is more interesting (and sensible).

If Justices Scalia and Thomas cling to their original intent mantra, they will rule that the Sixth Amendment requires unanimous jury verdicts for convictions in criminal trials. The question is whether three other Justices will endorse this bottom line.

Incidentally, wouldn't Scalia and Thomas also have to endorse a unanimity requirement and twelve member juries for the trial by jury that is guaranteed by the Seventh Amendment in some civil trials?

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Release of MarshalPlan 3.0

MarshalPlan (my evidence marshaling software) now has a complete set of evidence marshaling stacks.
In particular, MarshalPlan now has a "probative value" stack (as well as recently-developed stacks for (i) assessment of the credibility of witnesses, (ii) laying out the sequence of important actions and events during prelitigation investigation, during pretrial investigation, and during the process of proof at trial, and (iii) developing and assessing narratives, stories).
The new "probative value" stack supports the development of inferential argument based on evidence and the assessment of the force of such argument.

Although I have now provided a (helpful) stack for assessing the probative value of evidence, I do not pretend that the "probative value" stack provides a comprehensive explanation of methods of sketching argument about and from evidence. For detailed discussion of the methods that might be used for this purpose, see Special Issue on Graphic and Visual Representations of Evidence and Inference in Legal Settings, 6 Law, Probability and Risk Nos. 1-4 (Oxford University Press, 2007).

I am sometimes called a Bayesian. However, the probative value stack I have developed uses no numbers whatever. This reflects my view -- one that I share with David Schum -- that the structuring of argument about and from evidence is logically prior to any quantitative assessment of argument about and from evidence. Moreover, I believe that one can usually meaningfully assess the strength of evidential inference without using numbers to express one's judgment about the degree of the uncertainty that attends any argument about and from evidence.

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Please follow the instructions found below to download MarshalPlan 3.0.



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Years ago David Schum and I developed the notion of an evidence marshaling system. We laid out the underlying theory of this evidence marshaling system in A Theory of Preliminary Fact Investigation. We developed a kind of computer embodiment, or computer-based expression, of our idea of an evidence marshaling system. Eventually we decided to call our system "MarshalPlan."
More than one year ago I released MarshalPlan 2.2. This moniker -- MarshalPlan 2.2 (now 3.0) -- amounts to a bit of self-mockery: MarshalPlan 2.x is not a prototype of a working application suitable for "real-time" use. Far from it! However, MarshalPlan 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, and 3.0 are more than mere scratchings on a page that state in words (text) how a MarshalPlan application might work.
MarshalPlan 3.0 is a software application based on the user-friendly programming language Revolution Enterprise(tm). This application -- MarshalPlan 3.0 -- illustrates -- with images, fields, buttons (links), and so on -- how a computer program to support the marshaling and assessment of evidence in preparation for possible trials and also for the conduct of trials, might work.



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To retrieve MarshalPlan 3.0 for Windows click on this link. Download all of the Revolution stacks, including either the "Revolution Player" or "Revolution Media" (revMedia), into a single folder on your computer. These stacks all have the suffix "rev". (To make these stacks run properly you need a "Revolution Player" or "Revolution Media." If your computer doesn't use a Windows operating system, go here and download the version of the rev stacks you need and go here or here to download, respectively, the version of the Player or revMedia [Mac OSX or other] that you need.) Open the Revolution Player or RevMedia and then drag-drop the "Network.rev" icon and all other "rev" stacks onto the "Revolution Player" or revMedia icon; or run the Revolution Player or revMedia and, using the Player or revMedia, open all of the "rev" stacks. You should be in business now: the buttons, or links, in the various stacks should allow you to navigate between the stacks as well as within the stacks.



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SOME IMPORTANT CAVEATS: The software application that you will retrieve by clicking on the links found above has serious gaps and limitations, including the following:

1. In the application itself there is only sparse explanation of the theories underlying the evidence marshaling strategies that are embedded in MarshalPlan 3.0.

To get that some of that theory and those explanations (but not all of them) you will have to (i) read the article I mentioned earlier, A Theory of Preliminary Fact Investigation, and (ii) wander about my personal web site. If you want a truly comprehensive theory-laden explanation of MarshalPlan, you will have to invite me to give a leisurely talk (preferably on a tropical island or some other attractive venue).

2. A few buttons and links don't work. When that happens, try other buttons and links. (Otherwise resort to expletives. You have my permission.)
3. MarshalPlan 3.0 is not set up to be linked to a database. This is a most serious deficiency.

But -- in my defense -- I repeat: MarshalPlan 3.0 is NOT a prototype of a working software application, suitable for use in real-time contexts.
MarshalPlan is, instead, an elaborate visual illustration of some of the directions that development of software for marshaling evidence in legal settings should take.

Having made this important disclaimer, I now add that MarshalPlan is creeping ever closer to being something akin to a genuine software prototype suitable for real-world and real-time use. The biggest bridge will be crossed when I manage to make the forthcoming "web-resident" version of MarshalPlan database-friendly. I must also find a way to standardize many of the fields in which users are invited and expected to add "data" such as dates and names. Please give me about six months to get these things done.

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The dynamic evidence page
Coming soon: the law of evidence on Spindle Law

Assessing Inference by Picturing It

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Litigation Is Just One Darned Surprise after Another!

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

The Character Evidence Rule

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See Spindle Law's Evidence Module for material on the character rule a/k/a character evidence rule a/k/a propensity rule.

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The dynamic evidence page

Now here: the law of evidence on Spindle Law

Do You Have to Know the Law of Evidence?

No -- not if the trial judge likes you, and your opponent is as ignorant as you are about the law of evidence. See Successfully Introducing and Excluding Evidence without Knowing A Thing about the Legal Rules Governing the Admissibility of Evidence

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Argumentative interim summations in criminal trials

United States v. Yakobowicz, 427 F.3d 144 (2d Cir. 2005) (in this interesting case a panel of the Second Circuit discusses at length interim summaries or summations in criminal trials and explains, at length, why it thinks such summaries are in general suspect in criminal cases; why the argumentative interim summaries in this case were impermissible on various legal grounds; why they deprived accused of his constitutionally-guaranteed right to a fair trial; and why they amounted to "structural error," requiring an automatic reversal; Sotomayor, J., dissented on the question of whether allowing such argumentative interim summaries by the prosecution error was a "structural" error but said, "I agree fully with the majority that the use of interim summaries in criminal trials is suspect at best. District courts should avoid this practice in light of the significant pressure the procedure can place on a defendant's Fifth Amendment right to remain silent and to put the government to its burden of proof before deciding whether and how to respond.")

I wonder if there is a general agreement out there with the idea that arguments by counsel should be prohibited until after the submission of evidence because juries must keep an open mind.

The Second Circuit panel said: "The traditional order of events at a criminal trial-opening statements, presentation of evidence, summations, and jury instructions-has numerous purposes. Among these purposes is to enable juries to avoid forming opinions before the close of evidence and deliberations. This is reflected in trial courts' repeated instructions to juries to keep an open mind until deliberations."

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Was Mr. Ricci Treated Like a Statistic?

In an interview broadcast by NPR, Mr. Ricci, the lead plaintiff in the New Haven firefighters' case, said that New Haven did him a wrong because it treated him like a statistic. Mr. Ricci may have gotten things backwards:

If Ricci had been treated like a statistic, he (probably) would not have been treated like a statistic.

That's because statistical analysis, properly done, might have shown that it was no great surprise that only White firefighters were eligible for a promotion to the vacant positions.

If we assume that New Haven was acting in good faith, New Haven was unduly impressed by the statistic that only White firefighters were eligible for a promotion. So if Mr. Ricci was a victim of statistical argument, the problem was perhaps that he was victimized by very bad statistical argument.

However, the Supreme Court of the United States did not do any better than New Haven did.

Just as you can't show that some set of results is suspicious just by eyeballing the statistics, you can't show that the results are non-suspicious just by eyeballing the statistics.

But that's what the Supreme Court effectively did when it rejected New Haven's characterization of the test results as "raw racial results."

The question comes down to this: Whose (statistical) ignorance do you prefer, New Haven's or the Court's?

The Court gave its own ignorance the preferred position, by putting the burden on New Haven to show that the results of the test were racially discriminatory or suspect.

The above are off-the-cuff reactions based on a partial reading of the opinion. So I may yet end up retracting, or eating, my off-the-cuff sentiments.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Waiting for Ricci...

Will the Supreme Court's announcement of its decision (in about an hour) in Ricci v. DeStefano disappoint both supporters and critics of of the Second Circuit's decision in that case? It's not impossible: the Supreme Court's opinion may consist of one or two lines -- announcing, e.g., a summary remand.

N.B. For what it's worth: I remain a strong supporter of Judge Sotomayor. Her perspective would be good for the Court. I would also emphasize that her experience includes experience as a prosecutor and as a commercial litigator. She has worked (in that hackneyed but apt phrase) in the trenches. This gives her an understanding of "procedure in action" that the other Justices (with all due respect) lack.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Explanatory Notes in MarshalPlan 2.8 about Role of Personal Attributes for Credibility Assessment

Announcement: Now there are brief notes in the "Credibility" stack and its substacks in MarshalPlan 2.8 that explain the role of personal attributes for the assessment of credibility of witness reports.

Note: The third card of the downloaded credibility stack of MarshalPlan 2.8 seems to be distorted. Try using "Revolution Player" rather than the standalone stack "Network.exe" to run the credibility stack. In the meantime, I will try to correct the problem. Thanks for your patience. But even with the distortion, you can push buttons on the third card of the main credibility stack to get to the substacks, which explain what's what in credibility assessment.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

MarshalPlan 2.8 Now Has a Witness Credibility Stack

MarshalPlan, my evidence marshaling software, now has a stack that provides support for the development of arguments and analyses about the credibility of witnesses. Hence, MarshalPlan has a new moniker: MarshalPlan 2.8.

The new credibility stack and its substacks are relatively primitive. But I believe they may nevertheless be useful for teaching purposes, and a few addled trial lawyers may also find them interesting. (I will add detailed commentary later. Most of the spadework has already been done by David Schum.)

To retrieve the new version of MarshalPlan just follow the instructions given below. Many thanks.

&&&

Years ago David Schum and I developed the notion of an evidence marshaling system. We laid out the underlying theory of this evidence marshaling system in A Theory of Preliminary Fact Investigation. We developed a kind of computer embodiment, or computer-based expression, of our idea of an evidence marshaling system. Eventually we decided to call our system "MarshalPlan".

More than one year ago I released MarshalPlan 2.2. This moniker -- MarshalPlan 2.2 (now 2.8) -- amounts to a bit of self-mockery: MarshalPlan 2.x is not a prototype of a working application suitable for "real-time" use. Far from it! However, MarshalPlan 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, and 2.8 are more than mere scratchings on a page that state in words (text) how a MarshalPlan application might work.

MarshalPlan 2.8 is a software application based on the user-friendly programming language Revolution Enterprise(tm). This application -- MarshalPlan 2.8 -- illustrates -- with images, fields, buttons (links), and so on -- how a computer program to support the marshaling and assessment of evidence in preparation for possible trials and also for the conduct of trials, might work.

&&&

To retrieve MarshalPlan 2.8 click on this link. Download all of the Revolution stacks, including the "Revolution Player," into a single folder on your computer. These stacks all have the suffix "rev". (To make these stacks run properly you need a "Revolution Player." If your computer doesn't use a Windows operating system, go here and download the version of the player (Mac OSX or other) that you need.) Open the Revolution Player and then drag-drop the "Network.rev" icon and all other "rev" stacks onto the "Revolution Player" icon; or run the Revolution Player and, using the Player, open all of the "rev" stacks. You should be in business now: the buttons, or links, in the various stacks should allow you to navigate between the stacks as well as within the stacks.

&&&

I am very pleased to report that MarshalPlan will be available this fall as an application that runs directly on the web, in your browser. This will make it much easier for you (and my Fact Investigation students) to try out the software; you will only need to download a plug-in.

&&&

SOME IMPORTANT CAVEATS: The software application that you will retrieve by clicking on the links found above has serious gaps and limitations, including the following:

1. In the application itself there is little explanation of the theory underlying the evidence marshaling strategies that are embedded in MarshalPlan 2.8.

To get that some of that theory and those explanations (but not all of them) you will have to (i) read the article I mentioned earlier, A Theory of Preliminary Fact Investigation, and (ii) wander about my personal web site. If you want a truly comprehensive theory-laden explanation of MarshalPlan, you will have to invite me to give a leisurely talk (preferably on a tropical island or some other attractive venue).

2. A few buttons and links don't work. When that happens, try other buttons and links. (Otherwise resort to expletives. You have my permission.)

3. One or two important stacks are missing. The most important missing stack is the one that would deal with evidential argument from evidence to factual propositions and with the assessment of the probative value of the evidence -- in particular, an "Evidential Argument & Probative Value" stack. For a discussion of the methods that might be used for this purpose, see Special Issue on Graphic and Visual Representations of Evidence and Inference in Legal Settings, 6 Law, Probability and Risk Nos. 1-4 (Oxford University Press, 2007).

4. MarshalPlan 2.8 is not set up to be linked to a database. This is a most serious deficiency.

But -- in my defense -- I repeat: MarshalPlan 2.8 is NOT a prototype of a working software application, suitable for use in real-time contexts.

MarshalPlan is, instead, an elaborate visual illustration of some of the directions that development of software for marshaling evidence in legal settings should take. (Having said that, I will now add that MarshalPlan is creeping ever closer to being something akin to a genuine software prototype suitable for real-world and real-time use. The biggest bridge will be crossed when I manage to make the forthcoming "web-resident" version of MarshalPlan database-friendly. I must also find a way to standardize many of the fields in which users are invited and expected to add "data" such as dates and names. Give me about six months.)

&&&

The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

MarshalPlan 2.7 Now Has a Narrative Stack (a Story-Telling Stack)

I have uploaded a "Narrative" stack and have made it part of MarshalPlan, my evidence marshaling system. Hence the new moniker: MarshalPlan 2.7

&&&&

Years ago David Schum and I developed the notion of an evidence marshaling system. We laid out the underlying theory of this evidence marshaling system in A Theory of Preliminary Fact Investigation. We developed a kind of computer embodiment, or computer-based expression, of our idea of an evidence marshaling system. Eventually we decided to call our system "MarshalPlan".

More than one year ago I released MarshalPlan 2.2. This moniker -- MarshalPlan 2.2 (now 2.7) -- amounts to a bit of self-mockery: MarshalPlan 2.x is not a prototype of a working application suitable for "real-time" use. Far from it! However, MarshalPlan 2.2, 2.3, 2.4, 2.5, 2.6, and 2.7 are more than mere scratchings on a page that state in words (text) how a MarshalPlan application might work.

MarshalPlan 2.7 is a software application based on the user-friendly programming language Revolution Enterprise(tm). This application -- MarshalPlan 2.7 -- illustrates -- with images, fields, buttons (links), and so on -- how a computer program to support the marshaling and assessment of evidence in preparation for possible trials and also for the conduct of trials, might work.

&&&

To retrieve MarshalPlan click on this link. Download all of the Revolution stacks, including the "Revolution Player," into a single folder on your computer. These stacks all have the suffix "rev". (To make these stacks run properly you need a "Revolution Player." If your computer doesn't use a Windows operating system, go here and download the version of the player (Mac OSX or other) that you need.) Open the Revolution Player and then drag-drop the "Network.rev" icon and all other "rev" stacks onto the "Revolution Player" icon; or run the Revolution Player and, using the Player, open all of the "rev" stacks. You should be in business now: the buttons, or links, in the various stacks should allow you to navigate between the stacks as well as within the stacks.

&&&

I am very pleased to report that MarshalPlan will be available this fall as an application that runs directly on the web, in your browser. This will make it much easier for you (and my Fact Investigation students) to try out the software; you will only need to download a plug-in.

&&&

SOME IMPORTANT CAVEATS: The software application that you will retrieve by clicking on the links found above has serious gaps and limitations, including the following:

1. In the application itself there is little explanation of the theory underlying the evidence marshaling strategies that are embedded in MarshalPlan 2.7.

To get that some of that theory and those explanations (but not all of them) you will have to (i) read the article I mentioned earlier, A Theory of Preliminary Fact Investigation, and (ii) wander about my personal web site. If you want a truly comprehensive theory-laden explanation of MarshalPlan, you will have to invite me to give a leisurely talk (preferably on a tropical island or some other attractive venue).

2. A few buttons and links don't work. When that happens, try other buttons and links. (Otherwise resort to expletives. You have my permission.)

3. Some important stacks are entirely missing. The most important missing stacks are those having to do with the development of evidential argument from evidence to factual propositions and with the assessment of the probative value of the evidence -- in particular, the "Witness Credibility" and "Probative Value" stacks. For a discussion of the methods that might be used for this purpose, see Special Issue on Graphic and Visual Representations of Evidence and Inference in Legal Settings, 6 Law, Probability and Risk Nos. 1-4 (Oxford University Press, 2007).

4. MarshalPlan 2.7 is not set up to be linked to a database. This is a most serious deficiency.

But -- in my defense -- I repeat: MarshalPlan 2.7 is NOT a prototype of a working software application, suitable for use in real-time contexts.

MarshalPlan is, instead, an elaborate visual illustration of some of the directions that development of software for marshaling evidence in legal settings should take.

&&&

The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

MarshalPlan 2.7 (an evidence marshaling system)

I have uploaded a "Narrative" stack and have made it part of MarshalPlan, my evidence marshaling system. Hence the new moniker: MarshalPlan 2.7

&&&&

Years ago David Schum and I developed the notion of an evidence marshaling system. We laid out the underlying theory of this evidence marshaling system in A Theory of Preliminary Fact Investigation. We developed a kind of computer embodiment, or computer-based expression, of our idea of an evidence marshaling system. Eventually we decided to call our system "MarshalPlan".

More than one year ago I released MarshalPlan 2.2. This moniker -- MarshalPlan 2.2 (now 2.7) -- amounts to a bit of self-mockery: MarshalPlan 2.x is not a prototype of a working application suitable for "real-time" use. Far from it! However, MarshalPlan 2.2, 2.3, 2.4, 2.5, 2.6, and 2.7 are more than mere scratchings on a page that state in words (text) how a MarshalPlan application might work.

MarshalPlan 2.7 is a software application based on the user-friendly programming language Revolution Enterprise(tm). This application -- MarshalPlan 2.7 -- illustrates -- with images, fields, buttons (links), and so on -- how a computer program to support the marshaling and assessment of evidence in preparation for possible trials and also for the conduct of trials, might work.

&&&

To retrieve MarshalPlan click on this link. Download all of the Revolution stacks, including the "Revolution Player," into a single folder on your computer. These stacks all have the suffix "rev". (To make these stacks run properly you need a "Revolution Player." If your computer doesn't use a Windows operating system, go here and download the version of the player (Mac OSX or other) that you need.) Open the Revolution Player and then drag-drop the "Network.rev" icon and all other "rev" stacks onto the "Revolution Player" icon; or run the Revolution Player and, using the Player, open all of the "rev" stacks. You should be in business now: the buttons, or links, in the various stacks should allow you to navigate between the stacks as well as within the stacks.

&&&

I am very pleased to report that MarshalPlan will be available this fall as an application that runs directly on the web, in your browser. This will make it much easier for you (and my Fact Investigation students) to try out the software; you will only need to download a plug-in.

&&&

SOME VERY IMPORTANT CAVEATS: The software application that you will retrieve by clicking on the links found above has serious gaps and limitations, including the following:

1. In the application itself there is little explanation of the theory underlying the evidence marshaling strategies that are embedded in MarshalPlan 2.7.

To get that some of that theory and those explanations (but not all of them) you will have to (i) read the article I mentioned earlier, A Theory of Preliminary Fact Investigation, and (ii) wander about my personal web site. If you want a truly comprehensive theory-laden explanation of MarshalPlan, you will have to invite me to give a leisurely talk (preferably on a tropical island or some other attractive venue).

2. Some buttons and links don't work. When that happens, try other buttons and links. (Otherwise resort to expletives. You have my permission.)

3. Some important stacks are entirely missing. The most important missing stacks are those having to do with the development of evidential argument from evidence to factual propositions and with the assessment of the probative value of the evidence -- in particular, the "Witness Credibility" and "Probative Value" stacks. For a discussion of the methods that might be used for this purpose, see Special Issue on Graphic and Visual Representations of Evidence and Inference in Legal Settings, 6 Law, Probability and Risk Nos. 1-4 (Oxford University Press, 2007).

4. MarshalPlan 2.7 is not set up to be linked to a database. This is a most serious deficiency.

But -- in my defense -- I repeat: MarshalPlan 2.7 is NOT a prototype of a working software application, suitable for use in real-time contexts.

MarshalPlan is, instead, an elaborate visual illustration of some of the directions that development of software for marshaling evidence in legal settings should take.

&&&

The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Help Me Construct a Stack for Narrative, or Story-Telling, for Litigation and Similar Situations

I have long delayed developing a "stack" (in my MarshalPlan software) that can support the development of narratives, or stories, for litigation -- or, at a minimum, remind budding trial lawyers and others of the importance of story-telling in litigation and trials (and in investigation?). This is partly because it is unclear -- as least to me -- how narratives, or stories, relate to the search for the truth about facts. (MarshalPlan began as a system to support investigation and I have implicitly assumed that the purpose of good investigation is to produce accurate judgments about factual questions.) However, I can no longer postpone the important chore of supporting the formation of productive stories and narratives. So I have begun developing a stack called "Narrative."

I have put the following blurb, or explanation, on the "Narrative" stack:

Narrative has an uneasy and complicated relationship to the search for truth about fact and law. (I wonder if Aristotle might not be the best guide on this.)

This stack invites you to construct one or more narratives for a case. A narrative normally involves actors. A narrative often involves a theme that runs through all or many events in the narrative. A narrative may have more than one theme. A theme may involve actors' motivations and their character.

A narrative involves settings in which events happen. These settings include an initial setting, intermediate settings, and a concluding setting, or denouement. A narrative involves a temporal series of events (including actions) in a series of settings. An effective narrative also involves a conjecture and an argument about how some or all of the temporal events in a case are connected with each other. But a narrative does not necessarily recount possible events in chronological order. Nonetheless, effective narratives rest on time lines and scenarios; narratives bereft of such temporal foundations are incoherent and unintelligible. (The purpose of a narrative in a legal context is to persuade the audience of the truth of factual hypotheses, and not merely to entertain.)

A narrative that seek to persuade an audience of the truth of the story recounted is effective only to the extent that the audience believes that the story advanced by the narrator is adequately supported by the available evidence and probable facts. This is so unless the narrator is able to confuse the audience about the apparent evidence and the apparent facts or induce the audience to ignore what it believes to be the evidence and the facts. But the willingness of an audience to accept the narrator's story may be affected by the apparent logical force of the inferences generated by the available evidence.

A narrative ordinarily involves the use of drama or other devices to engage the emotion, attention, and interest of the audience. A narrative may be designed -- and it very often is designed -- to serve partisan purposes rather than or other than the discovery of the truth about factual questions. But narrative -- whether wittingly or unwittingly -- can promote the search for the truth. This is because the drawing of good inferences by an audience in part requires that (i) the audience pay attention to the issues and the questions before it and (ii) the audience care how those issues and questions are answered. Narrative engages the emotion of the audience and it thereby engages the attention of the audience and the audience's appreciation of the importance of arriving at the right answers.

By the way: analysis of narrative can also help a person, party, or a trier of fact to assess the strengths and weaknesses of another party's or person's narrative.

Well, that's a start.

On the next card in the stack I have created fields with the following labels (designating what kind of text is to go into those fields):

name of case:

setting:

time of event or action:

actor or actors:

general theme (e.g., character of person, fate, accident, desire for vengeance, malicious recklessness):

theme of this specific event or act and relationship to general theme (e.g., motivation or purpose of action; or motivation or character of actor or actors, and relationship to general theme [such as the dangerousness and fragility of everyday life or the greedy character of large corporations]):

Below the above fields I plan to put buttons that link to (existing) stacks such as "case time line", "actors", and "case scenarios".

OK. Is the stuff above helpful? What next?

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Constitutional Law -- Is That All There Is?

I got the latest e-mail message notifying me of the contents of the latest issue of Harvard Law Review: Vol. 122 · June 2009 · No. 8. All three headlined articles -- correction, two of the three headlined articles are about constitutional law. (The third paper is not much better: it's an abstract review of an abstract discussion of statutory interpretation.) What's the matter with those people (yes, "those people")? Don't they realize there is more to law than constitutional law (or theories of legal interpretation and reasoning)?

I can understand the impulse to flee courses such as those about the Uniform Commercial Code or bankruptcy; I zealously avoided taking such courses when I was in law school. And I can understand people who find themselves in law school and wondering why they are there. I had similar sentiments when I was a student in law school. But I cannot understand people putatively learned in the law who think that only constitutional law matters.

I rather think that nonconstitutional law -- contracts, environmental law, labor law, corporate and securities law, property law, local government law, and all that -- has a bigger effect on daily life than constitutional law does. In any case, such nonconstitutional legal fields are not unimportant. So suck it up, you law review editors, and decide that if you're in law school, you're going to study all the law that matters -- including, of course, the law of evidence.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Tim van Gelder on Argument Mapping

Those of you who are interesting in charting, or mapping, argument about and from evidence for trials or in anticipation of possible trials should keep your eye on Tim van Gelder's work on mapping argument of various kinds and in various contexts. He has recently written a nifty summary of research and work on argument mapping. TvG's summary will eventually be published as an encyclopedia entry.

Indeed, legal professionals should keep an eye on TvG's work (and software) even if they are not interested in argument mapping as such; they should consider his work even if they are (they think) just interested in careful (but "ordinary" or "commonsense") argument about (or "analysis" of) evidence in or for litigation.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Leibniz on Age

"‘I have never,’ [Leibniz] reflected, ‘been so old as I am now.’" (Jonathan Rée, "Dispersed and Distracted," London Review of Books(June 25, 2009)

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

The Latest Intimations from on High about the (Lack of) Implications of Due Process for Pretrial Investigation

In District Attorney's Office for the Third Judicial District v. Osborne, No. 08–6. (June 18, 2009), the Court, dealing with and rejecting a claim of a due process violation for denial of post-conviction access to DNA evidence, said (5-4):

Establishing a freestanding right to access DNA evidence for testing would force us to act as policymakers, and our substantive-due-process rulemaking authority would not only have to cover the right of access but a myriad of other issues. We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. Cf. Arizona v. Youngblood, 488 U. S. 51, 56–58 (1988). If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when? No doubt there would be a miscellany of other minor directives. See, e.g., Harvey v. Horan, 285 F. 3d 298, 300–301 (CA4 2002) (Wilkinson, C. J., concurring in denial of rehearing).

I cannot think of a single significantly-new interpretation of the Constitution that did not require federal courts to issue a "miscellany of minor directives" that give flesh to the new Constitutional principle laid down by the Court. Consider, for example, the multitude of questions that were left unanswered by this very Court in Crawford v. Washington, 541 U.S. 36 (2004). An army of legal scholars, trial lawyers, and judges has been hard at work trying to divine what Crawford requires in a myriad of situations.

On the merits: Arizona v. Youngblood is a lamentable decision that should be overruled. Reason: factfinding accuracy in the criminal process depends on effective pretrial investigation more than on any other single factor except perhaps money.


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The dynamic evidence page
Coming soon: the law of evidence on Spindle Law

Some Japanese Legal Professionals Have Great Expectations for Japan's New "Lay Judge" System

Japan Times Online reports that some Japanese legal observers believe that the participation of lay people in criminal trials will reduce the frequency of factfinding errors. An extract from the article:

Toshikazu Sugaya spent 17 years in prison after being convicted of kidnapping and murdering a 4-year-old girl in Ashikaga, Tochigi Prefecture, in 1990 but was freed this month after recent tests indicated his DNA did not match traces found on the victim's clothing. Initial tests had led to his getting a life sentence.

But having lay judges, or "saibanin," participate in the criminal trial to weigh the evidence and reach a verdict should lead to fewer miscarriages of justice, because the fresh eyes of the public will be involved in the trial process and they will try to do the right thing, the lawyers said.

"I can't say firmly that lay judges could have prevented Sugaya's conviction, because forensic evidence and a confession were submitted, and there is no proof the lay judges would not have been swayed into believing them," Makoto Miyazaki, president of the Japan Federation of Bar Associations, said at the Foreign Correspondents' Club of Japan in Tokyo.

[snip,snip]

Satoru Shinomiya, a lawyer and professor at Kokugakuin University law school, said the courts failed to listen to Sugaya's attorneys, who argued that the accuracy of the early DNA tests were problematic because the sample was collected long after the crime and was not properly stored.

"If the lay judges had been there, at least they would have listened to the argument carefully," Shinomiya said.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law