Russian-American Histories

The other day I turned once again to Rock v. Arkansas, 483 U.S. 44 (1987), and United States v. Scheffer, 523 U.S. 303 (1998), in my Evidence class. This made me think once again of what used to be called "Russian history." Official Soviet historians were renowned for airbrushing inconvenient facts, people, and photos out of their histories. You know what? The Supreme Court of the United States sometimes does the very same thing. In Scheffer the Court said it was clear that the holding in Rock rested entirely on the 5th Amendment Privilege against Self-Incrimination and the implied right of a criminal defendant to testify in his or her own defense in a criminal case. But you know what? Before Scheffer was decided, many astute observers thought that the constitutional foundations and potential reach of Rock were broader than that; after all, in Rock the Court mentioned and seemed to rely on, not only on the 5th privilege, but also on the Compulsory Process Clause and the Due Process-rooted right of a criminal defendant to present a defense and the implied right of the defendant to present relevant and material exculpatory evidence.

So you see: Russian or Soviet history is sometimes quite American. (I imagine: Judge: "Clerk: airbrush, please!")

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Browser-based evidence marshaling: MarshalPlan in your browser

Reminder: Browser-Based MarshalPlan Exists; Your Comments Wanted

A browser-based version of MarshPlan is now available. Go here.

Other important tricks & reminders:

1. Do NOT use Internet Explorer, at least for the time being. (IE won't work.)

2. You will have to accept a plug-in.

3. When the browser page MarshalPlan appears, click on the button "Enter Marshalplan." If nothing seems to happen, shrink your browser or look under your browser window (but do not close your browser). You should see the stack "Network Manager." You are in MarshalPlan. Click buttons (links).

If you do not wish to use a browser to run MarshalPlan, you still have the option of downloading MarshalPlan. To do so, go here and follow the instructions.

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As always, please keep in mind that MarshalPlan is not a prototype of a real-world real-time operating system. In its present configuration, it is more akin to a tinker-toy, suitable for use mainly in the classroom.

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The most important part of this message: I want your comments, suggestions, brickbats, and whatnot.

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In a few weeks, I will have a short "white paper" explaining the functions, aspirations, limitations, and theoretical premises and implications of MarshalPlan. Stay tuned.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

n% of false convictions involved X; therefore ...?

In Benn v. United States the District of Columbia Court of Appeals comes close to embracing the following argument: "X% of false convictions resulted from cases in which eyewitness identification evidence was given; therefore, eyewitness identification should be [limited] [regulated]." See id., 2009 WL 2778266, *6 n. 49 (September 3, 2009) (draft opinion).

Dear Reader, does the following logic hold?:

(i) 100% of false convictions resulted from cases in which judges were involved; therefore, the use of judges in criminal cases should be [abolished] [limited] [regulated].

(ii) A high percentage of false convictions resulted from cases in which defense counsel were involved; therefore, the use of defense counsel in criminal cases should be [abolished] [regulated] [limited].

(iii) 100% of false convictions resulted from cases in which evidence was involved; therefore, the use of evidence in criminal cases should be [abolished] [regulated] [limited].

Can we agree that while it might (or might not) be a good idea to abolish, regulate, or limit the use of eyewitness identifications, judges, defense counsel, or evidence simpliciter in criminal cases, the statistics cited above do nothing to support the proposition that any of the suggested things should be done in any of the the above situations. Isn't that true? (It is.)

Incidentally: constitutional considerations aside, if the above statistics show or suggest that the use of eyewitness identification evidence should be [further] regulated or limited, does this thesis also hold when the eyewitness identification evidence is offered by a criminal defendant? If not, why not?

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Inanities of the sort mentioned above sometimes make me think it's time for me to retire. Is it really necessary to re-learn, re-teach, and re-hash basic principles of evidence to the judiciary? (E.g.: "Children, remember that a brick does not a wall make. And keep in mind that sometimes the cases come out the way they should. Don't we need to know how often that happens? Yes, children....") I grow weary.

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Undoubtedly I would feel differently if I had been convicted of a crime as a result of mistaken eyewitness identification evidence. Therefore?

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This is not to say that there are no things that could be done (at an acceptable price) to improve the accuracy of eyewitness identification evidence and reduce the frequency of false verdicts.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

MarshalPlan (evidence marshaling for legal purposes) in your browser

Did the Government Prove that the 80 Year-Old Defendant Was Four Years Older than the Child Victim?

Oliver v. United States, 711 A.2d 70, 71 n.2 (D.C. App. 1998) (per curiam):

Mr. Oliver contends that the government failed to prove he was four years older than the children he was accused of enticing. He was eighty years old at the time of his sentencing, and the child he was convicted of enticing was nine years old at the time of trial. Viewing the evidence in the light most favorable to the government, as we must, not only was it obvious to the jurors that Mr. Oliver was at least four years older than the child, but also the evidence showed that he had been taking children on camping trips for approximately twenty years.

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Cf. demeanor of persons in courtroom but not testifying and "Are courtroom events or statements not formally introduced 'evidence'?"

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

New Case Favoring Expert Testimony about Eyewitness Identification

See the as-yet unpublished opinion in Benn v. U.S. --- A.2d ----, 2009 WL 2778266 (D.C., Sept 3, 2009). The first paragraph of the opinion states:

Raymond Benn appeals his convictions, after a second jury trial, for the armed kidnapping of Charles "Sean" Williams on December 1, 1992. This appeal raises an issue we have grappled with before, the admission of expert testimony on the potential unreliability of eyewitnesses. For the first time, however, we do not affirm the trial court's exclusion of the proffered expert testimony. In excluding the expert testimony proffered by appellant, the trial court applied incorrect legal principles. It came dangerously close to employing a per se rule of exclusion and made a determination that contravened a holding of this court following the first trial. Moreover, the court did not follow the analysis established in Dyas v. United States, [FN2] which requires the trial court to consider three distinct factors in determining whether to admit expert testimony on the reliability of eyewitness identifications, and to do so in the context of the proffered expert testimony and evidence in the particular case. Because we cannot say that exclusion of the expert testimony proffered here was harmless, in a case that depended exclusively on the identification of eyewitnesses, we remand for further proceedings consistent with the analysis set forth in Dyas and this opinion.

I have not yet read the opinion but it looks to be an attempt at a comprehensive analysis of the general and much-mooted question of the admissibility of expert testimony about the reliability or unreliability of eyewitness identification.

The expert involved was Steven Penrod.

Stay tuned for possible further discussion of this opinion.

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Go to Spindle Law's Evidence Module for legal rules and principles governing expert evidence about eyewitness identification.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Rape Case Now before Mixed Court in Japan

The new mixed court system in Japan -- a system in which six lay judges and three professional judges sit in each trial -- is becoming almost routine now. A case that includes rape charges is now being considered. The only issue before the court is punishment; the defendant has admitted guilt. See "First rape trial with lay judges begins," Japan Times Online (September 3, 2009).

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Updated List of Stacks (Evidence Marshaling Strategies) in MarshalPlan

The stacks (files) found below are the evidence marshaling stacks that now exist in MarshalPlan -- and each one of these stacks (or files) is the equivalent of a method of marshaling, or organizing, evidence. You can run those stacks with Revolution Player. (To download a non-Windows-operating-system player, go here.)

I suggest you download all of the stacks found below before you run them with the Revolution Player -- because then the stacks will link to each other and you can then see MarshalPlan 3.1 in its full glory.

After you download all of the stacks and open Revolution Player, I strongly suggest you start by running the stack Network Manager; this stack gives you a map of all of the other stacks.

Network Manager

As I noted above, I suggest you begin by using Revolution Player to run this stack.

Analysts (Users)
Legal Actors
Event Actors
Witnesses
Directory of (All) Persons
Case Theory
Evidence of Material Facts
Evidence for and against Material Facts
Legal Argument
Substantive Legal Rules
Rules of Evidence
Legal Source Material
Loose Thoughts
Possibilities
Elimination of Possibilities
Questions & Issues
Raw Evidence
Records
Actor Scenario
Case Scenario
Tangible ("Real") Evidence
Actor Time Line
Case Time Line
Time Line for Tangible Evidence
Witness Time Line
Narrative, Story-Telling, and Rhetoric
Investigation and Proof Time Line
Witness Credibility

Witness Credibility Attribute: Ability to Communicate
Witness Credibility Attribute: Veracity
Witness Credibility Attribute: Personal Knowledge
Witness Credibility Attribute: Memory
Witness Credibility Attribute: Objectivity
Witness Credibility Attribute: Sensory Capacity (Quality of Sense Organs)

Probative Value (a/k/a "Argument from Evidence to Factual Hypothesis," or "Factual Inference" proper)

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N.B. As always, please keep in mind that MarshalPlan is not a prototype of a real-world real-time operating system. In its present configuration, it is more akin to a tinker-toy, suitable for use mainly in the classroom.

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If you wish to view MarshalPlan in your browser (rather than download MarshalPlan stacks), go here and follow the instructions.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

New York Times v. Oxford University Press

In the American law school world what is the comparative weight of:

A. Prominent and repeated mention of the thoughts of a faculty member by the New York Times

and

B. Publication of a book by Oxford University Press?

Problem:

1. Reported pronouncements of academics in the mass media tend to be glib rather than thoughtful.

2. Academic books are, more often than not, arcane, arid, and irrelevant.

Mentions in the mass media count more in the law school world than some observers might think; they count for quite a bit. (Word of such mentions quickly circulates in metaphorical faculty corridors, and there is often a breathless quality to academics' mentions of such mentions by the mass media.)

P.S. I confess to having written arcane and arid stuff. But I do not admit that any or much of it is "irrelevant." ("Irrelevant to what?," you might ask. My reply: "That's a good question.")

P.P.S. The prestige of mentions by the New York Times may well decline. The importance of TV publicity will probably increase.

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These thought fragments came into my brain while I was watching a C-Span Booknotes re-broadcast of an interview with Richard Posner about his book Public Intellectuals: A Study in Decline (2002).

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Parts of the Alpha Version of the Evidence Module Have Been Unveiled

Parts of the alpha version of Spindle Law's evidence module have been unveiled. If you wish to see what's what and to contribute to the development of the module -- and I warmly encourage you to do so --, please write to info@spindleresearch.com for a password, and then go here and get to work!

N.B. The evidence module now accommodates state cases, and not just federal cases. This is a sea-change in the scope of the evidence module. The cases now found in the evidence module are exclusively federal cases. State cases are badly needed. Contribute them!

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

A Sickening Closing Argument

The ABA Journal and a post on the Legal Profession Blog recently mentioned an AP story about an appeal in a medical practice case in Montana. The Montana Supreme Court ruled that the trial court erred in not granting a motion for a mistrial. See Heidt v. Argani, 2009 Montana 267 (August 14, 2009).

The story caught my eye for two distinct reasons. Let me explain.

In his closing argument in the trial of this medical malpractice action -- for alleged negligence by a medical doctor that caused the death of the plaintiff's husband -- plaintiff's counsel did what he and, apparently, Gerry Spence call "channeling"; that is, during closing argument plaintiff's counsel, in an effort (which was at least partially successful) to get the jury to imagine how the decedent must have felt (as a result of defendant's alleged negligence), spoke in the first person and pretended he was the dead husband and then spun out a narrative that showed -- supposedly -- how and what the husband felt as he was dying. (Plaintiff's counsel and, presumably, defense counsel saw no "other minds" problem here -- or other bodies problem, for that matter.)

But the channeling went further: plaintiff's counsel also described how and what the dead husband felt -- after his death -- as he was being autopsied and also after he was autopsied.

This argument about the husband's feelings after his death is in itself rather interesting. Does this part of the closing argument assume a fact not in evidence -- that dead people feel things after they're dead? (I assume that Montana law does not allow recovery for any such post-death pain and suffering.)

Well, if this is an example of channeling and if Gerry Spence is the originator of channeling, Spence has apparently invented a very effective form of trial advocacy. The closing argument by plaintiff's counsel was so effective that it apparently made one juror fall ill. The Montana Supreme Court's opinion recites:

After an extended closing, Heidt's attorney began to "channel" a description of the death of Heidt's husband, using phrases such as: "Then, oh my God, I'm dying." He then began describing being autopsied, including a description of being cut open and of his sorrow at not getting to see his children grow up.

This got to be more than some could bear. One of the jurors announced that she was "not okay" and that she thought she was going to pass out.

The upshot of this story was not (as you might expect) that defendant (the doctor) made a motion for a mistrial and that the Montana Supreme Court held that the trial court erred in not granting the motion. No, the upshot of this story was that the Montana Supreme Court ruled that the trial court erred in denying plaintiff's motion for a new trial.

If you are puzzled by this, it is perhaps because I have not yet told you the full story.

The rest of the story is that the defendant doctor gave the ill juror medical assistance. Because of that, the Montana Supreme Court ruled, the trial court should have granted plaintiff's motion for a new trial.

Hence, although Plaintiff's counsel perhaps won a battle by "channeling," he lost the war at the trial: the jury returned a verdict for the defending doctor. But the determined counsel for plaintiff got the Montana Supreme Court to give his client a second bite at the apple.

You can imagine why the Montana Supreme Court ruled as it did. At least several jurors who were also nurses also gave the juror medical assistance and witnessed (apparently) the medical assistance provided by defendant (and also, incidentally[?], by plaintiff's co-counsel, who also happened to be a medical doctor!), the Montana Supreme Court felt that the jury would be prejudiced by this and that plaintiff could not have a fair trial. (In the course of explaining this point the Montana Supreme Court noted with approval a similar case in which a New York State court had explained that the jury would be prejudiced because it had seen "the doctor competently administer care and possibly save the life of a fellow juror." One wonders whether it was partly this evidence of the defendant doctor's medical competence in another instance that alone disturbed the New York and Montana courts.)

The Supreme Court of Montana explained its ruling this way:

The situations in [Campbell v. Fox, 113 Ill. 2d 354, 498 N.E.2d 1145, 101 Ill. Dec. 637 (Ill. 1986), [Reome v. Cortland Memorial Hospital, 152 A.D.2d 773, 543 N.Y.S.2d 552 (1989)] and in this case arose in a unique situation-a medical malpractice trial in which the jury gets to see the defendant doctor reacting to a real-life situation and apparently successfully delivering life-saving care. The effect of this on the jury is immeasurable, whether or not individual jurors admit it or even consciously know it. We agree with the courts in Campbell and Reome and their assessment of the substantial impact on the jury of observing the actual drama in the courtroom, when compared to listening to testimony describing past events during the trial itself.

Well, well. There is much grist for discussion here. One issue the court might have meditated about a bit is the question, "What's so bad about drama?" Cf. Old Chief, 519 U.S. 172 (1997). Given the event that triggered the chain of events that led to the appeal -- the "channeling" by plaintiff's counsel that made a juror fall ill --, this seems not an reasonable question to ask and address.

But the most remarkable thing about the appeal is that the Montana Supreme Court uttered not one word about whether plaintiff's "channeling" was proper or improper. (We don't know if defense counsel objected to the "channeling.")

In connection with the question of "channeling" about matters such as a dead man's presumed feelings during his own autopsy, a post-appeal comment by plaintiff's counsel (noted in the ABA story) provides food for thought:

Harman [plaintiff's counsel] said the closing argument was the first time he tried “channeling” the likely thoughts of a decedent, and he hasn’t had occasion to use the technique again. But that doesn’t mean he won’t. 

“These types of arguments can be very effective,” he said. The only possible objection to a “channeling” argument, he learned in his legal research, is that it could inflame the passion and prejudice of the jury. “But in my opinion, that’s what good closing argument for a good trial lawyer is about,” Harman said.

Now, my dear Reader, do you interpret the comments by plaintiff's counsel Harman the way I do? Is he saying -- isn't he saying -- is he actually saying -- that a "good closing argument" is about "[inflaming] the passion and prejudice of the jury"?

Did Harman misspeak? Or was he just being candid?

If Harman was being candid, do you agree with him? If so, do you think part of the federal "prejudice rule" -- Federal Rule of Evidence 403 -- and its state counterparts should be repealed?

Federal Rule of Evidence 403 states in part: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice"

The best training for trial advocacy is plainly an appearance or two on Oprah Winfrey's show.

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Spindle Law's Evidence Module has material about the legal rules and principles governing closing arguments in trials.

Lay Judges in Japan Take Part in News Conference

Many observers (including Japanese observers) wondered if cultural attitudes in Japan would make lay judges there passive and ineffective. And some Japanese citizens and jurors persist in saying that Japanese citizens really don't like the idea of being jurors. But is this sentiment -- the notion that ordinary Japanese people are quiet and withdrawn in social settings -- just a piety? I raise this question (again) -- this time because after the second trial with lay judges, all six of the lay judges and both of the two alternate lay judges agreed to take part in a news conference. The Japan Times Online reported:

All six lay judges and two alternates attended a news conference after the trial. Five agreed to be photographed by reporters and two gave their names.

"I've been quite tired. I don't think I want to do it again," said Kenji Kikuchi, smiling during the news conference.

Question: What do you make of Kenji Kikuchi's smile as he (she) spoke? Do you think it's possible he (she) was enjoying himself (herself)?

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Isn't Evidence the Most Important Subject?

Thesis: Evidence is the most important subject.

Discuss.

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See Spindle Law's Evidence Modulefor material about the purpose or purposes of proof in trials.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Inbred Probability

Probabilistic thinking, Alison Gopnik says here, is in the brain's cellular matter -- or, in any event, in the structure and development of the brain's neural connections. I guess I will have to read Gopnik. Her account in the op-ed piece still sounds a bit akin to the tabula rasa theory: Gopnik's account in the op-ed piece suggests that the tablet (the baby's brain) is not entirely empty mainly because probabilistic patterns of organizing data are already embedded in it (the brain or neuro-physiological system). I am inclined to think that babies are born with more than empty but (allegedly) powerful probabilistic methods of interpreting experience and sense data. Perhaps Gopnik agrees, perhaps not; I don't know what she has to say about this issue. So I will have to read her.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Legal Reason and Unreason

Tim van Gelder put an interesting post on his blog about his struggle to restate the reasoning in a judicial opinion. I sent him the following brief (and slightly-edited) private message in which I said, "Your discussion reminds me of the difficulties that many first year law students have with judges' reasoning. The message typically sent by law teachers to their charges is that students have to learn to think logically when in fact, in a real sense (as Tim's post illustrates), people who wish to learn the law have to learn to think illogically."

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Run MarshalPlan (all of it) in Your Web Browser

You can now use your web browser (except Internet Explorer) to run the complete and fully-functional version of the evidence marshaling software MarshalPlan. To run MarshalPlan click on

this link.

But keep the following three things in mind:

1. Do NOT use Internet Explorer, at least for the time being. (IE won't work.)

2. You will have to accept a plug-in.

3. When the browser page MarshalPlan appears, click on the button "Enter Marshalplan." If nothing seems to happen, shrink your browser or look under your browser window (but do not close your browser). You should see the stack "Network Manager." You are in MarshalPlan. Click buttons (links).

If you do not wish to use a browser to run MarshalPlan, you still have the option of downloading MarshalPlan. To do so, go here and follow the instructions.

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As always, please keep in mind that MarshalPlan is not a prototype of a real-world real-time operating system. In its present configuration, it is more akin to a tinker-toy, suitable for use mainly in the classroom.

In the weeks and months to come, I will post messages that further explain the nature and purposes of MarshalPlan. Stay tuned.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

It Takes a Good Theory to Build a Good (Cognitive) Tool -- or What's Wrong with Most Constitutional Theorizing

I once heard Wards Edwards say that it takes a great theory to build a good tool. Or perhaps this is what David Schum once told me that Ward Edwards once said to him when David had wondered aloud about the value of some his research. There is much wisdom in what Edwards said.

I gnash my teeth or break out in hives when I hear or see a legal scholar say or write that this or that legal field or problem is "undertheorized." This sort of statement suggests that these legal scholars believe that law encrusted with theory is inherently better than law that is not so encumbered. The statement also suggests that these legal theorists believe that coming up with good theories is just a matter of willpower and determination.

Of course, inventing theories is in fact very easy. For example, it is not hard to theorize that the world is an egg laid by a great big turtle. The difficulty, of course, is developing good theories.

There have been various verificationist theories of science, and these theories have gone wrong in various ways. But what they have in common and what remains true in them is the belief that a good theory must be put to the test -- the belief that one must, ultimately, determine whether one's theory stands up to the facts, to the actual workings of the world.

This is one big reason why evidence is or ought to be important in legal scholarship (as well as in science).

The attitude of legal scholars instead is often, "I have an alluring theory. Let me me see if I can make the pertinent legal phenomena fit my theory." This attitude is the path to perdition. It is the legal equivalent of the search for epicycles.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Student Investigation into Public Corruption in New Jersey

It's time to 'fess up: in the spring semester of 2009 a team of students in my course in fact investigation began an investigation of public corruption in New Jersey. The investigation centered on one public official in Jersey City. I mention this because the cat is, so to speak, already out of the bag: on July 23, 2009, the FBI arrested 44 persons in the New York City metropolitan area. Many of those persons were public officials in New Jersey who were effectively charged with taking bribes from a person they mistakenly thought was a real estate developer who was seeking official favors in exchange for money. The person who offered and gave the bribes was in fact a fellow who had gotten into a bit of trouble with the law himself -- in part by successfully(!) passing a bad check for $25 million at a bank drive-through window -- and who decided to cooperate with federal authorities and set up a massive sting, all in an effort to mitigate the punishment that he would eventually be given for his own federal crimes.

I am teaching fact investigation again this fall. My class and I will have to decide whether it is both possible and prudent to try to complete the investigation that the spring semester's fact investigation class began. The difficulties facing any such investigation are formidable: witnesses with something to hide will be especially wary, and federal authorities may not appreciate efforts by law students to investigate matters they may still be investigating. So the hurdles facing a continuation of last semester's investigation are substantial. But perhaps there is a sensible and useful way for my students to go forward with this investigation into public corruption in New Jersey. My students and I will discuss this issue in several weeks, which is when classes at my law school start up again. But I will not report in public the decision that my students and I reach. Sorry!

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

The Importance of Being Open-Minded, Persistent, and Meticulous in an Investigation

Several years ago I wrote and published a paper "The Death of a Youth and of a Drunkard: A Remarkable Story of Habit and Character in New Jersey." The paper appeared in Richard Lempert, ed., Evidence Stories (Foundation Press, 2006). The paper recounted an investigation that some students in my course on fact investigation conducted. The students' investigation demonstrated, in part, the way in which a stereotype ("He was a lousy and dangerous drunkard") can blind both the participants in an investigation and the participants in a trial.

A little while ago I received an interesting e-mail message from Paul Masley, an investigator in West Virginia. With his permission, I have reproduced below a very slightly-edited copy of his message.

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From: Paul D. Masley / [name of company deleted]
Date: Fri, Jul 31, 2009 at 4:01 PM
Subject: The Death of a Youth and a Drunkard
To: peter@tillers.net

Dear Professor Tillers:

I am an insurance claims investigator by profession. While working on a case that I just could not figure out what happened and doing research on the internet, I came across this fantastic paper written by you [about the criminal case State of New Jersey v. Radziwil].

A little background. My client was accused of a hit and run with a pedestrian (death). My client stated that he had hit a deer in another county. The vehicle had been repaired using OEM parts. The only difference was that the repairing shop had used a newer model grille as the original could not longer be purchased.

Even though this case was different [from yours], the similarities were vaguely the same. The more I dug into the cause, the more clueless I became as to the cause. The item that caught my attention in your paper was the evidence for the vehicle. I must have reread your document ten times in my attempt to pick through what I had on my case and each time it pointed back to the evidence submitted on the vehicle. It was wrong.

It took several more weeks of digging and during this time I found that another severe crash had occurred with a similar model vehicle. The only difference was the year models and that the grilles were different. With this in mind, I went back to the family in hopes that they had photos of the vehicle prior to the crash. After digging through hundreds of photos, we found what were looking for.

Upon producing these photos and having several witnesses testify that these photos were of the correct vehicle, producing the repaired photos, and then comparing them to the items that the police used, the case was thrown out. The best document that I was able to obtain for my client was the vehicle production run. The document lists exactly what grille was used in the vehicle, down to the part number. My client's vehicle had not been damaged prior to the incident with the deer. The grille parts that the police had used in their attempt to prosecute my client listed the wrong part number. They had almost 80% of the grille.

I do wish to thank you for listing this document. It made me think. I do have a copy of it in my claims guide and have shared it with other claims examiners when they have been stumped. One other thing I did learn from reading between the lines of your document is to trust no one but your own instincts and to believe in your client.

With best regards,

Paul D. Masley
XXXXXXX
XXXXXXX
XXXXXXX
Charleston, West Virginia 25302
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XXXXXXX

XXXXX (Personal Company Email)
XXXXX (Main Company Email)

CONFIDENTIALITY NOTICE

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An Old Story Retold: Inference and Theoretical Variety

Part of what I wrote more than two decades ago bears repeating here and now:

V. THEORETICAL VARIETY

The symposium papers [presented at the Boston University symposium on probability and inference in the law of evidence] offer a variegated theoretical menu; it is not easy to find a common thread. If one views the papers at a high level of abstraction and generality, it may be fair to say that the various papers deal with the same thing--matters such as probability, uncertainty, and inference--but nonetheless make very different claims about this 'thing.' From this perspective, one could argue that the variety found in the symposium papers is something of an embarrassment. In fact, however, the variety in the symposium papers is only an embarrassment of riches. There are many reasons for differentiated theoretical perspectives and explanations. It does not follow from this multiplicity of perspectives either that nothing has been learned or even that fundamental and irreconcilable theoretical conflicts exist. For example, in some instances the differences in the propositions being advanced may be attributable simply to the fact that different processes in the real world are being talked about under rubrics such as 'inference' or 'proof.' This is not to say, to be sure, that close analysis of the papers would show that no true disagreements exist; they do. Nonetheless, the profusion of formal theory, theoretical perspectives, normative theory, and social, political, and ethical theory that surfaces in the symposium papers hints that the way lies open for a synthesizing approach that would use this theoretical diversity to offer a more systematic and comprehensive description of the characteristics-- both logical and empirical--of processes of proof in law. Possibly, each of the papers reveals something true or significant about proof processes. If so, the job is not to grade or rank the various theoretical approaches, but to try to determine what sort of logical and theoretical matrix relates and orders the various contributions made by the various papers to our understanding of inference, proof, and related matters. Regardless of whether all the papers objectively reveal something significant about processes of proof and inference, there is good reason to think that one should entertain this supposition for purposes of further investigation. 'Proof,' in its various guises, is a very complex set of processes and activities. It would be surprising to find that a relatively comprehensive description of its characteristics could be given without resort to a wide variety of theoretical perspectives.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

First Japanese Trial with Lay Judges

The first Japanese trial with lay judges (in the modern era) took place. But that's not the real news. The real news is that one of the lay judges questioned a witness. See Setsuko Kamiya, "Historic first: Lay judge quizzes witness," Japan Times Online (August 5, 2009). Perhaps now we'll hear less about the supposed servility of the ordinary Japanese citizen.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law