GOOGLE defines "inference" -- and does an interesting & useful job

By entering "define: inference" in the Google search engine, you get:

Definitions of Inference on the Web:

* the reasoning involved in drawing a conclusion or making a logical judgment on the basis of circumstantial evidence and prior conclusions rather ...
wordnetweb.princeton.edu/perl/webwn

* Inference is the act or process of deriving a logical consequence conclusion from premises.
en.wikipedia.org/wiki/Inference

* The act or process of inferring by deduction or induction; That which is inferred; a truth or proposition drawn from another which is admitted ...
en.wiktionary.org/wiki/inference

* a conclusion derived from observations
www.handsontheland.org/lms/mod/glossary/view.php

* A judgement based on reasoning rather than on direct or explicit statement. A conclusion based on facts or circumstances. For example, advised not to travel alone in temperatures exceeding fifty degrees below zero, the man in Jack London's "To Build a Fire" sets out anyway. ...
www.tnellen.com/cybereng/lit_terms/terms/Literary.Terms.2.html

* is a logical guess based on evidence based on evidence in the text.
ridersenglish.edublogs.org/glossary-arranged-by-unit/

* A general conclusion drawn from information that is given.
www.northwestern.k12.oh.us/curriculum/documents/glossary.doc

* a conclusion one can draw from the presented details
kmhs.typepad.com/parrott_ap_english_langua/files/rhetorical_terms.doc

* The skill of using the results of an investigation based on a premise.
dpi.wi.gov/standards/sciglos.html

* In machine learning, inference is the process of deriving conclusions or making predictions based on existing information. See Wikipedia for more.
www.broad.mit.edu/annotation/conrad/glossary.html

* making conclusions about a piece of literature when the connection is not provided in a piece of literature.
www.4classnotes.com/literary%20vocabulary.htm

* is the forming of a conclusion from premises by logical methods. (Intro)
www.logic-classroom.info/glossary.htm

* inferencing - This is the means by which the learner forms hypotheses, through attending to input, or using the situational context to interpret the input.
myopiczeal.blogsome.com/2005/03/17/definitions-of-words-in-our-glossary-of-terms/

* The conclusions that one is able to draw from the data. Sometimes the numbers do not tell the whole story. Please see the section on How to use Canadian Cancer Surveillance On-Line. ...
dsol-smed.phac-aspc.gc.ca/dsol-smed/cancer/glossa_e.html

* the process of reasoning whereby one statement (the conclusion) is derived from one or more other statements (the premises).
www.filosofia.net/materiales/rec/glosaen.htm

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

The Shonubi Problem Reappears: Estimating Drug Quantities

At the center of the Shonubi opinions -- all five(!) of them -- was the problem of using (apparently-)reliable evidence about the amount of illegal narcotics carried by a drug mule on one drug-smuggling trip to estimate the total amount of illegal narcotics carried by the drug mule during a number of other (apparent) drug-smuggling trips (eight trips in all in the Shonubi case). See United States v. Shonubi, 802 F. Supp. 859 (E.D.N.Y., 1992) (Weinstein, J.) ("Shonubi I"); United States v. Shonubi, 998 F.2d 84 (2d Cir, 1993) (Oakes, Newman & Cardamone, JJ.) ("Shonubi II"); United States v. Shonubi, 895 F.Supp. 460 (E.D.N.Y.) (Weinstein, J.) ("Shonubi III"); United States v. Shonubi, 103 F.3d 1085 (2d Cir., 1997) (Newman, Cardamone & Calabresi, JJ.) ("Shonubi IV"); United States v. Shonubi, 962 F. Supp. 370, 375 (E.D.N.Y. 1997) (Weinstein, J.) ("Shonubi V"[!]). See also P. Tillers, United States v. Shonubi: A Statistical Oddity?; "P. Tillers, Introduction: Three Original Contributions to Three Important Problems in the Law of Evidence," 18 Cardozo L. Rev. 1875 (1997); P. Tillers, "If wishes were horses: discursive comments on attempts to prevent individuals from being unfairly burdened by their reference classes," 4 Law, Probability and Risk 33 (2005).

This problem -- and the more general problem of drawing conclusions about a "population" based on a sample of the population -- reappeared (unsurprisingly) in United States v. Krasinski, 545 F.3d 546 (7th Cir. 2008).

In Krasinski the Seventh Circuit distinguished Shonubi II (and some other cases) by saying that in Krasinski, unlike in Shonubi (and in some other cited cases), the maximum and minimum amounts carried on each trip were known (pretty firmly, in any event). Id. at 552.

Otherwise, the Seventh Circuit held that the method used by the trial judge in Krasinski -- which was exactly the method originally used by Judge Weinstein in Shonubi (see Shonubi I) and condemned by the Second Circuit in Shonubi II: using the amount believed to have been carried by the drug mule on one trip to produce an average for all (apparently-)known drug-smuggling trips by the mule -- was not an abuse of discretion. The Seventh Circuit said nothing about the question that so occupied and bothered the mind of the Second Circuit: the use of "indirect" evidence to establish or estimate the total amount of the illegal drugs carried by a drug smuggler on all of the smuggler's drug-smuggling trips (that is, on all trips reasonably believed or reasonably shown to have been drug-smuggling trips). Compare my comment all evidence is circumstantial and indirect.

The Seventh Circuit said:

Krasinski maintains that the district court erred when it found him responsible for the sale of 112,000 pills. He contends he was only responsible for 30,000 pills and that any amount above that lacks sufficient indicia of reliability. A defendant has a due process right to be sentenced on the basis of reliable information, United States v. Bautista, 532 F.3d 667, 672 (7th Cir.2008), and a district court may not base its drug quantity calculation on pure speculation or “nebulous eyeballing,” United States v. Jarrett, 133 F.3d 519, 530 (7th Cir.1998). A seizure of the drugs involved in the offense, of course, provides reliable information regarding drug quantity. See Bautista, 532 F.3d at 672. Admissions in a plea agreement also conclusively establish the admitted facts. United States v. Warneke, 310 F.3d 542, 550 (7th Cir.2002) (“An admission is even better than a jury's finding beyond a reasonable doubt; it removes all contest from the case.”).

A district court may use a reasonable estimate of the quantity of drugs attributable to a defendant for guidelines purposes. United States v. Acosta, 534 F.3d 574, 582 (7th Cir.2008); see also U.S.S.G. § 2D1.1 cmt. n. 12 (“Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of the controlled substance.”). Here, Krasinski admitted in his plea agreement that he delivered between 5,000 and 30,000 Ecstasy pills on approximately eight to ten separate occasions. He also admitted delivering 7,000 pills on March 5, 2003. With these statements in mind, the district court first found that Krasinski delivered Ecstasy pills on seven occasions, a conservative figure in light of Krasinski's admission that he made eight to ten deliveries. The district court then took note of Krasinski's specific admission that he delivered 7,000 pills on one occasion. For the other six deliveries, the district court estimated that he delivered 17,500 pills each time, a figure he calculated by averaging the 5,000-and 30,000-pill figures. The result was a total of 112,000 pills.

As we have recognized before, arriving at sentencing determinations through averaging can be problematic. See United States v. Johnson, 185 F.3d 765, 768-69 (7th Cir.1999). “[A]t some point a court's estimation will seem less like a restrained approximation and more like unsupported conjecture.” United States v. Henderson, 58 F.3d 1145, 1152 (7th Cir.1995). A calculation based on a wide range of endpoints, for example, is cause for concern. Compare United States v. Sepulveda, 15 F.3d 1161, 1197 (1st Cir.1993) (using midpoint between four ounces and one kilogram to determine drug quantity erroneous) with United States v. Webster, 54 F.3d 1, 5-6 (1st Cir.1995) (upholding use of two ounces for circumstances where witness testified that one to three ounces supplied and eight ounces in instances where witness stated six to twelve ounces supplied). Extrapolating from a small number of known quantities also raises a red flag, especially when the maximum and minimum amounts are unknown. See Johnson, 185 F.3d at 769 (vacating sentence where amount carried on fourth trip determined only by looking to amount carried on three others); United States v. Shonubi, 998 F.2d 84, 89-90 (2d Cir.1993) (finding error in assumption that quantity of heroin possessed on one trip represented typical quantity on eight trips).

The calculation employed by the district court in this case was not the most conservative one it could have performed. The district court could have held Krasinski responsible for a one-time delivery of 7,000 pills, one delivery of 30,000 pills, and six deliveries of 5,000 pills, a calculation also consistent with the plea agreement. See Jarrett, 133 F.3d at 530-31 (approving conservative drug quantity approximation based on five months of undercover purchases and defendant's admissions). The result would have been a total of 67,000 pills, and, notably, a lower offense level for Krasinski. See Presentence Report at 6 (deeming Krasinski responsible for 80,000 to 240,000 Ecstasy pills).

Nonetheless, we cannot say that the district court's decision to hold Krasinski responsible for 112,000 pills was clearly erroneous. The district court based the number of deliveries and the range for the quantity of pills in those deliveries on numbers supplied by Krasinski himself. Significantly, unlike in Johnson, we know the maximum and minimum quantities involved. Cf. Johnson, 185 F.3d at 765. Moreover, Krasinski states in his sentencing memorandum that according to Misiolek, Ogonowski said Krasinski was responsible for about 100,000 pills, so a second source supported the decision to hold Krasinski responsible for between 80,000 and 240,000 pills, the range of pills in Krasinski's advisory guidelines range. And although Krasinski claims that Ogonowski would testify that Krasinski supplied only 30,000 pills, Krasinski cites nothing in support of his claim, and Krasinski admitted to supplying more than that in his own plea.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

An Exam Question

Last semester I gave my Evidence students the option of taking a 24-hour open-book take-home exam. This is the problem I gave them:

Problem

Unctuous Uncle, a 50 year-old adult, is charged with the sexual molestation of his niece, a minor child, Nellie Niece. The case is tried in a federal district court before Judge Minimum Wisdom. You are Classy Clerk. You are Judge Wisdom's law clerk.

If permitted to testify, Nellie will be the government's chief witness. Shortly after the trial begins, the prosecutor offers to have Nellie testify that in 2007, when Nellie was four years old, Unctuous stroked her "wee-wee."

In response, the defense requests and the trial judge grants a voir dire hearing. Pike Piker, a social psychologist, then testifies for the defense that (i) he treated Nellie for six weeks in 2008, when Nellie was five years old, (ii) Nellie repeatedly told him that she believes that all men are devils, (iii) Nellie is a social psychopath, and (iv) female social psychopaths tend to be misanthropic and they tend to have sexual delusions.

After this testimony is presented to the trial court, the defense asks the trial court to bar Nellie from testifying at the trial. The defense asks, in the alternative, that Pike Piker be allowed to present to the jury the testimony that he presented to the trial judge. The prosecution opposes the defense motion for an order barring Nellie from testifying at the trial and it moves, in the alternative, for a trial court order barring Piker from presenting his testimony to the jury.

After hearing these motions and responses, the trial judge states, "I'm going to adjourn the trial for a day so that I can think things over.” The trial judge then turns to you and states:

Classy, I want you to write a memo for me. I want your memo in my hands in 24 hours or less. I want you to tell me if I should grant or deny either one or both of the defense motions. And, Classy, I want a classy memo. So don’t forget to do your homework. I mean that I expect to do some legal research; I can’t imagine that you can give me good answers without doing some legal research. So get to work.

Write the memorandum and submit it to Judge Wisdom within 24 hours.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

A Hearsay Question

"JOLIET, Ill. -- A woman who mysteriously drowned in a bathtub will be given a voice as witnesses tell an Illinois judge how she feared the ex-husband now charged in her death." ("Witnesses to say drowned Ill. woman feared ex-cop," AP story (Jan. 21, 2010)).

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Ms. Martha Coakley and the Fells Acres Cases

Dorothy Rabinowitz, the Pulitzer Prize-winning Wall Street Journal editorial page writer, published an interesting article about the role of Ms. Martha Coakley in the Fells Acres and Amirault "day care abuse" cases. (Ms. Coakley is the recently-defeated Senatorial candidate and the current attorney general of the Commonwealth of Massachusetts.) Go here to see what Rabinowitz said.

Dorothy Rabinowitz is the author of No Crueler Tyrannies: Accusation, False Witness, and and Other Terrors of Our Times (2003, paperback 2004). This book should be compulsory reading for every prosecutor and every criminal defense lawyer in the country (and beyond).

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Correction: only 1,670,000 hits

I must have omitted a quotation mark the last time I conducted a narcissistic search (which happened a few hours ago). A more recent Google search yields only 1,670,000 hits for this blog:

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

This Blog's Google Hit Tally: 13,800,000?

I like to be popular (I think) -- but the following count strikes me as very odd:

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Tools for the Study and Management of Evidence

In some recent posts I have talked about the importance of conceptual tools. I have been riding this hobby horse for quite some time. Years ago I wrote:

One last word, Brother Lash. I am pleased that the procedures described in The Hypercard(tm)-based Spiritual Exercises of Saint David of Virginia45 [n. 45. For a discussion of this system see Peter Tillers & David Schum, A Theory of Preliminary Fact Investigation, 24 U.C. Davis L. Rev. 931, 944-48 (1991).] strike you as simple and familiar. Since those exercises were intended for the ordinary pilgrim, we wanted them to be user-friendly. Moreover, the spiritual exercises we describe are really only tools. The best tools, of course, are easy to use. It is certainly interesting and reassuring to hear that other pilgrims have made use of exercises like those in our software prototypes. (We have also heard such reports.) Needless to say, we did not invent the methods that pilgrims have used since days of yore to discipline and purify the mind that seeks the bliss of Knowledge; these methods, we believe, are natural to practically Everywoman and Everyman. Thus, if our computer-based network of possible spiritual exercises performs a service, it does so mainly by making it easier for the pilgrim to bring familiar spiritual methods more clearly to mind and to decide how to arrange and combine them to best effect for her particular spiritual situation. Thus, the computer can make even spiritual labor more productive and efficient.

I must admit I am pleased you know what the Prophet (and Saint) David and I are about; unlike some other people, you do not make the mistake of thinking that our spiritual exercises are rituals or rites. As you know, Brother Lash, some Believers hold that ritual has an intelligence of its own and that the mindless repetition of ritual can produce Knowledge. We are grateful that you did not accuse us of pursuing or purveying that sort of unnatural and artificial intelligence. However, I fear you may have made a mistake of the opposite sort. I sense that the simplicity of the procedures and methods in The Hypercard(tm)-based Spiritual Exercises of Saint David of Virginia disturbs as well as charms you; you seem to hint that our exercises lack sophistication. If that was your subtextual intimation, Brother Lash, I fear you have lost sight of the distinction between spiritual exercises and theology. While our tool for organizing the movement of the inner spirit flows from our theology, the tool we have developed is not itself theology or theoria. (It's just a tool.) By the same token, the simplicity of our method of organizing spiritual exercises does not mean that the theoria that produced it is simple or simplistic. I am sure that you will agree that it takes a subtle theology to produce an efficient user-friendly computer-embedded Hypercard(tm)-based network of reciprocally interactive spiritual exercises.

Yours truly,

/s/Peter Pilgrim,
Doctor of Facts

A Curious Document Recently Discovered in the Archives, 14 Cardozo Law Review 149, 162-163 (1992)

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Solomonoff, Artificial Intelligence & Probability

Obituary in the New York Times (Jan. 9, 2010):

Mr. Solomonoff [widely regarded, along with Marvin Minsky and John McCarthy, as one of the principal founders of Artificial Intelligence] went on to pioneer the application of probability theory to solving artificial intelligence problems. But in the 1960s and 1970s he was ahead of his time, and the approach initially had little impact on the field. More recently, probability theory has caught on among artificial intelligence researchers; it is now the dominant approach.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Hegel Empiricized: A Lens on Modern American Proof?

When I was in college, varieties of positivism were all the rage. So I took it as gospel (so to speak) that "ought" cannot be derived from "is." Then I went to law school. There I found law teachers who regularly seemed to extract legal oughts from (legal) facts (i.e., legal precedents & the like).

Those law teachers of mine generally seemed to be rather intelligent fellows. And most of them didn't seem to be troubled by the "conflation" (as we say today) of "is" and "ought" in, say, tort law or in the law of property.

Well, then: How are we -- how am I -- to discern and describe the "structure of proof in modern American trials"? (I have said I would write about this topic someday. So I need to answer this question.)

Years ago I swore off Hegel. (I am in distinguished company. For example, Bertrand Russell did so, so did Friedrich Nietzsche, so did Charles Saunders Peirce -- and so did many other 19th and early-20th century luminaries -- after being immersed in the Hegel-Geist.) But -- nonetheless -- I think this: One cannot explain the "structure" of society or law without identifying and discussing the "purposes" of parts of a society or of parts of a legal system.

But where are such purposes to come from?

Am I to take them out of my own solipsistic, narcissistic head?

No. That won't do. (After all, Hegel's rationalistic [effective] solipsism is why I renounced Hegel and people like Hegel. [Beyond that, his logic stinks.])

Purposes must come from facts in the world.

But how do facts -- even social facts -- generate oughts - even social oughts?

Here is a sort of solution: Hegel must be empiricized. Or perhaps re-Aristotelianized.

That is to say: Perhaps by observing some things as they are, we can see some of their functions -- and, having done that, perhaps it is not inappropriate -- or at least not wildly irrational -- for us (some of us) to regard some such functions as admirable functions, our functions, viz., our (social and perhaps even individual) purposes.

There are functions everywhere. Natural organisms are full of functions. (Aristotle noticed this a very long time ago. [I am not, of course, speaking of mathematical functions.])

Societies (it has often been said) are analogous to organisms. Be that as it may, different parts of society seem to have some functions. Perhaps, by close observation, one can identify some of the functions of at least some parts of some societies -- and perhaps one can call some of those functions "purposes."

Perhaps -- furthermore -- there are some relatively invariant functions. For example: Perhaps some human electro-neuro-biological processes have pretty much the same functions everywhere on the current version of our planet earth.

And perhaps there are some constraints -- e.g., time -- that are with us at all times (so to speak).

But contingency is there too, no? For example, some legislator has a bad day and her staff puts clumsily-drafted language into a bill that neither she nor any other legislator actually reads. Voila: a rape shield law has been amended.

Furthermore, social purposes are fuzzy determinants of social and legal phenomena.

So what do we have? This: a mixture of fact, accident, necessity, function, and purpose.

But this abstract conclusion really doesn't tell us very much, does it, about "the structure of proof in modern American trials"? It only provides a rough framework for a way of trying to study the structure of proof in modern American trials. Isn't that right, Dear Reader?

But this framework -- as little as it is -- is -- in any event -- what it is: a framework. And perhaps that's good for something.

Enough! It's time to get on (again) with the treatise on proof. I'll report on my progress (or lack thereof) later.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Richard Dawkins: Darwin's Rottweiler

"If T.H. Huxley was ‘Darwin’s bulldog’, the Oxford emeritus professor for the public understanding of science, Richard Dawkins, has been called his unmuzzled rottweiler..." (Steven Shapin, The Darwin Show London Review of Books (Jan. 7, 2010).)

Shapin observes that some of Darwin's admirers say that Darwin's theory of evolution "explains everything" in biology. Shapin comments, "That is, however, a step too far for some otherwise sympathetic scientists. As the geneticist Steve Jones put it, Darwin Year has encouraged ‘vulgar Darwinists’ in their already souped up tendency misleadingly to treat evolutionary biology as ‘a universal solvent that can sort out the most recalcitrant problems of society, consciousness, politics, literature and more’."

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Disappearing Corpses and Statistical Method

In Stanislaw Lem's The Investigation (Adele Milch, trans., 1992; first Polish ed., 1959) corpses mysteriously begin disappearing from mortuaries in and near London. A statistician is brought in to help with the investigation. The statistician concludes that the solution to the riddle of the disappearing corpses lies in the fact that the product of the time and distance between any two consecutive incidents multiplied by the difference in temperature at any two sites of consecutive incidents of disappearing corpses yields a constant.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Why the conditional relevance doctrine may be dangerous

Much academic discussion of the conditional relevance doctrine (of the sort found in Federal Rule of Evidence 104(b)) must seem hopelessly ethereal. However, a recent decision (2006) by Washington State's Supreme Court is a nice example of how the doctrine can subvert standard notions about how the process of proof should work. In State v. Dixon, 147 P. 3d 991 (Wash. 2006) the Washington State Supreme Court upheld the trial court's ruling rejecting the attempt by a criminal defendant charged with sexual molestation to impeach the alleged victim with a statement in which she may or may not have recanted her charge of molestation and admitted she had been lying and the Washington Supreme Court did so on the ground that the relevance of the child's statement depended on whether she was or was not referring to her father and the defendant, it ruled, had offered insufficient evidence to support a finding that the child was indeed referring to her father rather than someone else:

¶ 26 Here, the relevancy of the defense's proffered impeachment evidence (Hansen's testimony concerning N.D.'s alleged question about lying) was dependent upon the establishment of fact B (that N.D. was referring to lies she had told about the molestation allegations). In other words, under ER 104(b), the defense's desire to prove fact A (that N.D. was asking Hansen what she should do if she had lied about the molestation allegations) was dependent on proof of fact B (that N.D.'s question pertained to the molestation allegations). Consistent with the comment to ER 104(b), the trial court exercised its discretion and determined that evidence of fact B should precede evidence of fact A.

¶ 27 Regarding fact B, the trial court's proper inquiry under ER 104(b) is "whether the evidence is sufficient to support a finding of the needed fact." State v. Karpenski, 94 Wash.App. 80, 102, 971 P.2d 553 (1999) (emphasis added). As to the applicable standard of review, the Karpenski court stated that "[w]hen a trial judge's function is to decide whether the evidence is sufficient to support a finding, a reviewing court's function will be the same." Id. at 104, 971 P.2d 553. We conclude, as did the trial court, that the defense provided no "evidence . . . sufficient to support . . . the needed fact." Id. at 102, 971 P.2d 553. Hansen's testimony proved nothing more than that N.D. had possibly lied about something. Hansen's speculation remained the only support for "the needed fact" that N.D.'s comments to Hansen pertained to the molestation allegations. Id. Given the failure of the defense to provide sufficient support, the trial court determined that Hansen's testimony was too speculative and therefore not relevant under ER 104(b) and ER 402. Contrary to Dixon's contention, the trial court's relevancy determination under ER 104(b) was not an abuse of discretion. Because the defense failed to establish the relevancy of N.D.'s cryptic remark to Hansen, the trial court properly precluded the defense from using Hansen's testimony for impeachment purposes as a prior inconsistent statement pursuant to ER 613(b).

There is a strong argument that the child's statement, though cryptic, was relevant and that it should have been left to the jury to decide whether the alleged victim was or was not saying that she had lied. Justice Madsen, concurring, wrote:

¶ 30 I agree with the dissent in State v. Dixon, noted at 118 Wash.App. 1005, 2003 WL 21916401 at *6, 2003 Wash.App. LEXIS, at *16 (unpublished opinion) (Bridgewater, J., dissenting), wherein Judge Bridgewater noted that the question presented to the trial court was one of conditional relevance. As he correctly concluded, the trial court erred when it failed to evaluate the evidence in the light most favorable to the defendant, as proponent of the evidence. State v. Karpenski, 94 Wash.App. 80, 103 n. 101, 971 P.2d 553 (1999) (judge may not reject inferences favorable to the proponent when determining sufficiency of evidence under ER 104). As Judge Bridgewater stated, N.D.'s statements to Amber Hansen about lying were relevant if the jury believed those statements concerned Dixon.

¶ 31 The evidence offered by Arthur Dixon showed that just prior to N.D.'s unsolicited statement to her aunt about lying, N.D. had overheard her mother and Hansen talking about Dixon and the charges that were filed as a result of N.D.'s accusations against Dixon. And, during the same time period, N.D. had discussed with her counselor whether the abuse she complained of was real or a dream. Viewed in the light most favorable to Dixon, the statements are at least minimally relevant as prior inconsistent statements. This is so because N.D. had testified that the abuse occurred, but these prior statements, and the inferences therefrom, imply that she was lying about the abuse. State v. Dickenson, 48 Wash.App. 457, 467, 999 740 P.2d 312 (1987) (inconsistency is determined not by specific statements alone but by the effect or impression conveyed). For the reasons articulated by Justice Sanders in his dissent, Dixon should have been allowed to pursue this area of inquiry. The State could then have attempted to demonstrate that the earlier statement was not made or that it did not refer to Dixon.

The dissenting opinion reads this way:

¶ 34 The majority holds Arthur Dixon failed to provide evidence "`sufficient to support'" the fact that N.D. had been discussing Dixon's molestation charges when she asked her aunt, Amber Hansen, "[W]hat do I do if I'm lying[?]" Majority at 997 (quoting State v. Karpenski, 94 Wash.App. 80, 102, 971 P.2d 553 (1999)); 4 Report of Proceedings (RP) at 489. Accordingly, the majority upheld the trial court's determination that Hansen's testimony was "too speculative and therefore not relevant" under ER 104(b). Majority at 997-98. I disagree.

¶ 35 Hansen's testimony is not irrelevant because viewed in a light most favorable to Dixon it is entirely plausible for the jury to infer N.D.'s statement "[W]hat do I do if I'm lying[?]" referenced Dixon's alleged molestation. And when considering preliminary questions related to relevance, the trial court may not reject evidence or inferences favorable to the proponent. Karpenski, 94 Wash. App. at 103 n. 101, 971 P.2d 553.

¶ 36 Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401 (emphasis added). The threshold for relevancy is low. Bell v. State, 147 Wash.2d 166, 182, 52 P.3d 503 (2002). "When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." ER 104(b).[3] In other words "`[t]he judge requires the proponent to bring forward evidence from which the jury could find the existence of the preliminary fact. The opposing party may 1000 then bring in disputing evidence. If on all the evidence the judge determines that the jury could not find the existence of the preliminary fact, he excludes the evidence. Otherwise, the question is for the jury.'" Kosmas v. State, 316 Md. 587, 601, 560 A.2d 1137 (1989) (quoting McCormick on Evidence § 53, at 137) (Edward W. Cleary ed., 3d ed. (1984)). See also Kosmas, 316 Md. at 601, 560 A.2d 1137 ("`The judge must determine that a reasonable jury could make the requisite factual determination based on the evidence before it.'" (quoting 1 Jack B. Weinstein and Margaret A. Berger, Weinstein's Evidence § 104[09] (1988))).

¶ 37 N.D.'s aunt who witnessed the question believed N.D. was discussing her father. It is therefore plausible a jury could reach the same conclusion.

Q: (Defense counsel) And what was [N.D.] talking about?

A: (Hansen) She was talking about her dad or at least that's what I got out of it.

Q: Had you been talking about her father?

A: Yes.

4 RP at 489.

¶ 38 Judge Bridgewater's dissent from the Court of Appeals decision below correctly determines a reasonable jury could reach such a conclusion after inferring from N.D.'s statement,

"1. A lie had been told.

"2. By [N.D.] (she was asking about herself, and not asking for another).

"3. The lie related to whether the molestation occurred, not to lies about breaking things."

State v. Dixon, noted at 118 Wash.App. 1005, 2003 WL 21916401 at *6, 2003 Wash.App. LEXIS 1770, at *17 (2003) (unpublished opinion) (Bridgewater, J., dissenting). N.D.'s use of the first person suggests she was talking about herself as having told the lie. Her comment, "phrased in the past tense, that it had `gone too far' suggests both that N.D. was talking about an actual, past lie and that the lie was about a serious matter capable of `go[ing] too far.'" Id. at *6, 2003 Wash.App. LEXIS 1770 at *17 (alteration in original) (quoting 4 RP at 489). Furthermore, N.D. posed the question shortly after Hansen and N.D.'s mother discussed Dixon in N.D.'s presence. 4 RP at 489. In a light most favorable to Dixon, this evidence and resulting inferences reasonably connect N.D.'s lie to Dixon's alleged molestation. Id. at *6-7, 2003 Wash.App. LEXIS 1770 at *17-18.

¶ 39 In support of its position, the majority states "the trial court concluded that [Hansen] had failed to confirm that N.D.'s question about lying concerned the molestation allegations." Majority at 997. But the trial court's analysis was incorrect; Hansen did not need to confirm N.D's question about lying concerned the molestation allegations; the court needed merely to find "evidence sufficient to support a finding of the fulfillment of the condition." ER 104(b) (emphasis added).[4] And here, the evidence was sufficient to support such a finding.[5]

¶ 40 Even after "conditionally relevant" evidence is admitted, a jury must weigh its value and probative force to determine the 1001 ultimate question: whether Dixon molested N.D. See State v. Reil, 409 N.W.2d 99, 106 (N.D.1987) ("Once the evidence is admitted the question becomes one of credibility and probative force and the trier may ultimately disbelieve the proponent's proof and entirely disregard or substantially discount the persuasive impact of the evidence admitted. [ER 104(b)] requires only that the court admit evidence if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification. The rest is up to the jury.'" (quoting 1 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence ¶ 901(a) [01], at 901-16 to -18 (1983))). In the end, the jury may find the evidence so overwhelmingly indicative of abuse that N.D.'s question could not have been referencing the molestation charges. But this is a question for the jury and not for the courts.

¶ 41 Dixon was precluded from using Hansen's testimony for impeachment purposes under ER 613(b). Criminal defendants have a constitutional right to impeach prosecution witnesses with prior statements that are inconsistent with the witness's trial testimony. See State v. Dickenson, 48 Wash.App. 457, 470, 740 P.2d 312 (1987) (constitutional harmless error test applies to the erroneous refusal to allow a defendant to impeach a witness with a prior inconsistent statement). And reversal is required unless no rational jury could have a reasonable doubt about the defendant's guilt absent the error. State v. Spencer, 111 Wash.App. 401, 408, 45 P.3d 209 (2002). Contrary to the majority's determination that "`the untainted evidence is so overwhelming it necessarily leads to a finding of guilt' beyond a reasonable doubt," the court's error is not harmless as the entire case rests upon N.D.'s credibility, and evidence "poking holes" in her credibility would doubtless affect the outcome of the trial. Majority at 998 (quoting State v. Easter, 130 Wash.2d 228, 242, 922 P.2d 1285 (1996)). See State v. Neal, 144 Wash.2d 600, 611, 30 P.3d 1255 (2001) ("An error is prejudicial if, `within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.' State v. Smith, 106 Wash.2d 772, 780, 725 P.2d 951 (1986). Improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the evidence as a whole.").

¶ 42 The case should be reversed and remanded for a new trial.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Admissibility Rules and Closing Argument: Parallel Worlds?

In Spindle Law's evidence module, I comment:

There is some tension between the closing argument and admissibility rules. See, e.g., Samuel Gross, "Make-Believe: The Rules Excluding Evidence of Character and Liability Insurance," 49 Hastings L.J. 843 (1997). One of the recognized functions of the closing argument (or summation) is storytelling. In general, however, the rules regulating the admissibility of evidence at trial pay scant attention to storytelling. But cf. Old Chief v. United States, 519 U.S. 172 (1997). One of the recognized functions of storytelling, or narrative, in closing argument is to tell a persuasive story -- or even a gripping one -- and in this way (as well as in other ways) arouse and appeal to the sentiments and passions of the trier of fact (particularly a jury). But the language of the admissibility rules as well as the language that courts usually use to explain and interpret them usually characterizes "passion," "sentiment," and "emotion" as dangerous. See, e.g., Evidence Advisory Committee's Note on Federal Rule of Evidence 403 ("The case law recognizes that certain circumstances call for the exclusion of evidence which is of unquestioned relevance. These circumstances entail risks which range all the way from inducing decision on a purely emotional basis, at one extreme, to nothing more harmful than merely wasting time, at the other extreme."; "'Unfair prejudice' within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.") Sometimes it seems that the law of evidence and "effective trial advocacy" [live in] parallel worlds. Cf. P. Tillers, at A Sickening Closing Argument (blog post) (August 21, 2009)....

There is a large body of literature (much of it in bar journals) on the art of the closing argument and on the role of appeals to emotion for effective oral advocacy in the closing argument. See, e.g., Ronald J. Matlon, Opening Statements - Closing Arguments (2009); Robert P, Burns, A Theory of the Trial 67-72 (1999, paperback 2001); Jacob A. Stein, Closing Argument: The Art and the Law (1969).

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

The Importance of Checklists

I sometimes think of my theory of evidence marshaling in legal settings as doing little more than laying out different kinds of checklists that are important in pretrial fact investigation and for trials. This is why I have just ordered the new book by Atul Gawande, The Checklist Manifesto: How to Get Things Right (2009). (Gawande is a surgeon.)

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

History of Forensic Entomology

See Mark Benecke's A Brief History of Forensic Entomology.

On forensic entomology in general see Education through Entomology.

A hat tip to Mary Thompson!

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

victim's specific acts --> victim's character --> victim's conduct ?

In State v. Fish, 213 P.3d 258, 263-272 (Ariz. Ct. App. 2009) the Arizona Court of Appeals refuses to follow Commonwealth v. Adjutant, 443 Mass. 649, 824 N.E.2d 1 (2005), and abandon the prevailing rule that when character, or disposition, is admissible in a criminal trial to show an alleged victim's conduct, the victim's conduct may be shown only by opinion or reputation and not with victim's specific acts. See the node Character of victim may be shown only by reputation or opinion in the evidence module of Spindle Law. The court distinguishes the use of a person's specific acts when (i) a victim's specific acts are known to a party such as a criminal defendant and the specific acts are introduced to show a legally-material fact such a defendant's fear of victim to support a defense such as self-defense and (ii) the character, or propensity, of a person is an essential element of a claim, charge, or defense.

Arizona's court of appeals graciously cites my revision of vol. 1 of Wigmore's monumental treatise on the law of evidence -- and I am appropriately grateful. However, I personally now favor the approach now taken in Massachusetts. Cf. Character Traits as Reference Classes and A Constitutional Right to Offer Character Evidence?.

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The dynamic evidence page

Another (Painful) Example of the Importance of Evidence Marshaling

See Marc Mazzetti & Eric Lipton, "Spy Agencies Failed to Collate Clues on Terror," NYTimes (Dec. 30 2009)

MarshalPlan 3.0

Three Generations of the New Evidence Scholarship

The first generation of the New Evidence Scholarship emphasized the heuristic uses of mathematical analysis of evidence; it emphasized that numbers (especially as used in probability theory) could illuminate the logic and structure of factual inference in general and of particular problems of factual inference.

The second generation of the New Evidence Scholarship focused on mathematically-laden problems of scientific evidence (e.g., DNA evidence) and on problems of factual inference that seem tractable to statistical analysis.

The third generation of the New Evidence Scholarship (NES) also uses mathematical argument and analysis. But this variant of NES does not require or expect consumers of mathematical analysis to do computations. Instead, NES-3rd uses mathematics and computations to develop tools for deliberation about inference, tools that do not require or expect the user of the tool to do computations.

A key premise of this third generation of NES is this: rigorous analysis (including mathematical analysis) is required to design a tool that promotes or supports or facilitates logical inference by ordinary people about ordinary [non-scientific] problems but the tool thus produced must not require such ordinary people to do mathematical computations.

Two major practitioners of NES-3rd are Douglas Walton and Tim van Gelder. (There are others.) Of course, the third approach to factual inference was, so to speak, there all along, at least in a germinal form: Wigmore's charting method (which appeared in print in 1937) anticipated key ingredients of the third approach. William Twining refurbished and modernized Wigmore's charting notations (and was among the very first to defend the importance of Wigmorean-style charting of evidential inference). David Schum married Wigmorean charting with mathematics and produced probabilistic inference networks. Working from left field (i.e., not starting within NES-1st or NES-2nd), Tim van Gelder is now effectively taking this progression to the final and critical stage. He is doing so by emphasizing how important it is that math- and logic-generated charts, diagrams, pictures, images, and, in general, conceptual tools present and portray problems of inference in a way that is intuitive and natural and intelligible to "ordinary" human beings (whose reasoning capacities are in fact extraordinary).

The most exciting and revolutionary developments in NES are yet to come. And some of the most exciting of these exciting developments are bubbling up from down under.

Created with Rationale(tm)

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

The Brilliance of False Memories

Salvador Dali in THE COLUMBIA WORLD OF QUOTATIONS (Robert Andrews et al. eds., 1996), as quoted in Allison J. Garton, Comment: Reconciling the Incongruous Demands of Therapist-Patient Confidentiality and Falsely Accused Third-Parties, 2006 Cumberland Law Review 77, 77:

The difference between false memories and true ones is the same as for jewels: it is always the false ones that look the most real, the most brilliant.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.