Clever Compliment(?)

The author -- creator, owner, master, governor? -- of a blog on appellate litigation -- Howard Bashman -- says that this blog on evidence "sounds as though it could be nearly as boring as a blog devoted to the subject of appellate litigation." This is either a compliment or faint praise. Or perhaps it is outright criticism. And if it is criticism, it is virtually unanswerable. Well, I won't let any of these subtle considerations deter me, I will assume the worst, and I will just plow on -- mainly by admitting the case against this blog:

The question of whether Muslim religious beliefs are evidence of terrorist inclinations is ... soooo boooooring!(?)

The question of whether DNA can conclusively prove that innocent people have been executed is also ... sooo boooring!(?)

The question of whether DNA evidence can show the innocence of the youths convicted of "wilding" in the Central Park jogger case is ... soooooooo boooooooring!(?)

(But the question of whether the CIA, FBI, et al. should have anticipated 9/11 is .... clearly ... not boring.)

Well, as they say in Minnesota, ... whatever ...

But perhaps I should note that this blog -- the one now in front of your eyes -- is about evidence, and not just the law of evidence. Hence, this blog is not condemned to investigate only burning issues such as the wisdom of the latest curlicues in the hearsay rule in the Eighth Circuit.

Ah, I have nothing but good wishes for authors of blogs about appellate litigation! (They -- the authors, I mean -- may need my blessings.)

Postscript: While I can guarantee that many of the topics considered in this blog will be interesting, I can't guarantee that my discussion of those interesting topics will be palatable, let alone interesting.

Postscript on the Logic of Judicial Proof: Is Abduction the Next Big Thing?

Many people think abduction -- abductive inference -- is the next big thing. See, e.g., Charles Peirce, David Schum, John Josephson & Scott Brewer (somewhat, in any event). Do you agree?

Do we need more than just abduction to handle the dynamic properties of factual inference and proof in litigation? (Clarification: The eminent theorists listed above may well agree that we do.)

Two Items: (i) Deduction, Induction, and -?-duction; and (ii) Important New (2001) Book

Item #1: Do we all now agree that 20th century American legal scholars in Evidence got it only half-right -- or 1/3 right -- when they said (characteristically) that factual inference involves induction rather than deduction? I think there are at least two things wrong with what they said.

Consider the simpler point first: Factual inference typically involves more than deduction. But it is quite incorrect to say that factual inference does not involve deduction. I'm right, no? Consider an astrophysicist who is drawing an inference about the location of Jupiter at 03:24 Greenwich Mean Time (or sidereal time?), June 13, 1827. This astrophysicist, in drawing his or her inferences -- in reaching conclusions about that question --, will certainly reason deductively on occasion -- by reasoning from, for example, Kepler's laws (as modified by Einstein's special theory of relativity?). It would not be difficult to find other such examples of the use of deductive reasoning to draw inferences about terrestrial phenomena (by, e.g., the use of the "laws" of chemistry, physics, or other such "hard" sciences). So we ought to correct our venerable predecessors (in the law of evidence) by saying that factual inference ordinarily involves more than just deductive reasoning.

But isn't there a more fundamental sense in which our predecessors -- legal scholars in the field of Evidence -- got at only part of the truth about factual inference? "Induction" means various things. But suppose we take it to mean an "inference about classes of events by the observation of particular instances or phenomena" -- or, if you prefer, the "extraction of general laws or general descriptive principles from the behavior or attributes of particular instances, events, phenomena, or data." If this is (roughly) what the problem of induction is all about, very little of the process of factual inference in forensic environments -- e.g., in trials -- involves this sort of reasoning. Although (as I have just suggested) proof in trials may involve the deployment or application of "general laws," factual proof at trial only infrequently seeks to divine or establish "general laws" that govern (selected) natural phenomena. (But it must be said that the process of proof in litigation sometimes is directed -- at least in part -- at establishing precisely such things, i.e., general {natural} laws, e.g., laws or principles that describe the relationship between certain types or classes of cancer and certain types or classes of sugar substitutes or, say, asbestos fibers). In many instances, however, the objective of forensic proof will be merely to "prove" -- to induce the jury to infer -- that a particular event happened and to do so by drawing on pre-existing general principles of some kind, ones that were not established in the lawsuit or trial at hand.

I suppose I'm saying the obvious. But if what I'm saying is so obvious, shouldn't judges should stop parroting the cliche (note: accent over the 2d "e" here) --, shouldn't they stop saying that factual inference involves induction rather than deduction? Folks who say that sort of thing are speaking -- at best -- 1/3 of the truth! {Ah, sometimes numbers just don't allow a person to speak very precisely!}

Item #2: Perhaps most of you are already in the know. But -- just in case -- let me say that students of forensic factual inference should be aware of the high praise that has been bestowed on a recently-published book: James Franklin, THE SCIENCE OF CONJECTURE: EVIDENCE AND PROBABILITY BEFORE PASCAL (Johns Hopkins University Press, 2001).

Shall we read this book together and talk about it?

Evidence News:
Academic Stuff

I. New Conference

Inference, Culture, and Ordinary Thinking in Dispute Resolution.
Venue: Cardozo School of Law, New York City (Manhattan).
Dates: April 27-29, 2003.
Panelists:
Scott Brewer, Professor of Law, Harvard Law School
Jerome Bruner, University Professor, New York University
Oscar G. Chase, Professor of Law, New York University School of Law
Mirjan Damaska, Sterling Professor, Yale Law School
Florrie Darwin, Lecturer, Harvard Law School
Phoebe C. Ellsworth, Kirkland and Ellis Professor of Law, University of Michigan Law School
David L. Faigman, Professor of Law, University of California, Hastings College of Law
Richard D. Friedman, Ralph W. Aigler Professor of Law, University of Michigan Law School
Alvin Goldman, Board of Governors Professor (Philosophy and Cognitive Science), Rutgers University
Samuel R. Gross, Thomas & Mabel Long Professor of Law, University of Michigan Law School
Susan Haack, Professor of Philosophy & Professor of Law, University of Miami (Coral Gables)
Reid Hastie, Professor of Behavioral Science, Graduate School of Business, University of Chicago
John Jackson, Professor, Faculty of Law, Queen’s University of Belfast
Richard Leary, DCI, Honorary Senior Research Fellow, Jill Dando Institute of Crime Science, School of Public Policy, University College London
Richard Lempert, Eric Stein Distinguished University Professor of Law and Sociology, University of Michigan Law School
Marilyn MacCrimmon, Professor of Law, Faculty of Law, University of British Columbia
John McCarthy, Professor emeritus, Department of Computer Science, Stanford University
Robert J. Mislevy, Professor, Department of Measurement, Statistics & Evaluation, University of Maryland (College Park)
Jennifer Mnookin, Associate Professor of Law, University of Virginia School of Law
Charles Nesson, Weld Professor of Law & Director, Berkman Center for Internet and Society, Harvard Law School
Aviva Anne Orenstein, Professor of Law, Indiana University School of Law
Roger Park, Distinguished Professor, James Edgar Hervey Chair in Litigation, University of California, Hastings College of Law
Lothar Philipps, Professor (emeritus), University of Munich
Mike Redmayne, Lecturer in Law, Law Department, London School of Economics and Political Science
Burkhard Schafer, Lecturer, Faculty of Law, University of Edinburgh
Alex Stein, Sylvan M. Cohen Professor of Law, Faculty of Law, Hebrew University of Jerusalem
Edward Stein, Associate Professor of Law, Cardozo School of Law, Yeshiva University
Peter Tillers, Professor of Law, Cardozo School of Law, Yeshiva University
Judge Jack B. Weinstein, United States District Court, Eastern District of New York
Olav Wiegand, Professor, Fachbereich Philosophie, Universitaet Mainz, Germany
Charles Yablon, Professor of Law, Cardozo School of Law, Yeshiva University
Ronald R. Yager, Director, Machine Intelligence Institute & Professor, Information Systems, Iona College
Frank Yates, Department of Psychology, University of Michigan
John Zeleznikow, Director, Joseph Bell Centre for Forensic Statistics & Legal Reasoning, Faculty of Law, University of Edinburgh.
Possible Panelists: Peter L. Murray (Harvard), Andrew Palmer (University of Melbourne), William Twining (University College London) & a possibly-soon-to-be-named prominent prospect!

II. New Book:

M. MacCrimmon & P. Tillers, eds., THE DYNAMICS OF JUDICIAL PROOF: COMPUTATION, LOGIC, AND COMMON SENSE (Physica- & Springer-Verlag, 2002) (vol. 94 in series STUDIES IN FUZZINESS AND SOFT COMPUTING, Janusz Kacprzyk, editor).

Group-to-Individual Inference

Groups (of People) and Inferences about Individual Members of Groups (of People): Thoughts Provoked by Professor Sharon Davies – but through absolutely no fault of hers!

Can or should inferences be drawn about individuals from their membership in a group or groups of people?

Can inferences about a particular person’s behavior be drawn from a person’s membership in the group (i) Roman Catholics, (ii) Muslims, (iii) French citizens, or (iv) the Aryan Brotherhood (a once-widespread racist prison gang committed to violence and other vile matters, see United States v. Abel, 469 U.S. 45 (1984))?

*** Not all members of a group of people always or even ordinarily act the same way under the same or similar circumstances. For example, the behavior of “French citizens” and “Muslims” (often) varies widely.

Therefore?


*** Can the membership of an individual in a group of people support inferences about the behavior of that individual?

***

Individual people – all individual people – belong to many groups, perhaps an infinite number of groups. For example, one person may belong to the following groups: (i) French citizens, (ii) Roman Catholics, (iii) females, (iv) adults, (v) regular newspaper readers, (vi) practitioners of voodoo, (vii) child molesters, and (viii) homo sapiens.

Therefore?


N.B. A riddle: Since there are not an infinite number of people, how is it possible for individual people to belong to an infinite number of groups of people?


*** It is reasonable to suppose that male Roman Catholics tend to act differently than female Roman Catholics in some circumstances.

It is reasonable to suppose that adult male French Roman Catholics tend to act differently than adult male German Roman Catholics in some circumstances.

And it is definitely reasonable to suppose that adult male Bavarian Roman Catholics act differently than adult male Prussian Roman Catholics!

Therefore?

***

It is unlikely that any of us have ever observed the behavior of other people who belong to exactly the same constellation of groups to which any individual person belongs. This would in fact be impossible – since all individual people are to some extent different and thus belong, to some extent, to different constellations of groups of people.

Therefore?

***

Of course, many us – indeed, all of us – are profoundly ignorant about the behavior of many groups – often without being aware of the depths of our ignorance.

Therefore?

*** Is it immoral to base inferences about individuals on the behavior or characteristics of groups?
Is it illegal to do so (in, say, the courtroom)?
Is it unconstitutional to do so?


***

Is it possible for anyone to draw inferences about individuals – individual people – without drawing on knowledge or assumptions about the behavior or characteristics of groups – including groups of people?

9/11 and Investigation: The Proper Study of Hints of the Future

9/11 and Investigation: The Proper Study of Hints of the Future

In recent days and months there have been many reports of investigative blunders before 9/11. See, for example, the AP report carried by salon.com and the recent book THE CELL by John Miller & Michael Stone with Chris Mitchell. And it is hard to avoid the conclusion that serious investigative blunders were committed. (Just why were those guys interested in learning how to fly large jet planes without being interested in learning how to get such planes on the ground safely?)

But any fair evaluation of the performance of the FBI, the CIA, and similar investigative and intelligence agencies must consider that the process of investigation is extraordinarily difficult, in many respects far more difficult than, say, the evaluation of evidence presented by lawyers in trials. The difficulty of investigation is related to the "hindsight effect," the tendency of people to say, after some unexpected event has happened, that any fool could and should have expected that the unforeseen event would happen.

One of the things that makes investigation extraordinarily difficult is that in many investigations the investigator does not know the questions, let alone the answers: the investigator does not know, for example, that an important question is whether or not someone will hijack a plane and crash it into a building rather than, say, whether or not someone will park a truck bomb in front of the American embassy in Turkmenistan. (Is there an American embassy in Turkmenistan?)

Test yourself. What question or questions should the FBI et al. be trying to answer now, today? Whether or not someone will commandeer a passenger jet and crash it into a building? Whether someone will commandeer a passenger ship and then park and explode it near mid-town Manhattan? Whether someone will carry a nuclear bomb in a suitcase across the U.S.-Canadian border by Minnesota? Whether someone will dump LSD (or worse) into the Concord, Massachusetts, reservoir? The range of possible threats -- and, thus, the range of possible questions -- is enormous.

But the 9/11 tragedy suggests that the investigator's dilemma is not always hopeless. Evidence has the important capacity to suggest pertinent possibilities; little bits of evidence have the ability to provoke the imagination in productive ways. Example of such a "provocative evidentiary trifle": students who wanted to learn to fly without wanting to learn how to survive flying. (There were in fact investigators -- e.g., FBI agents -- who drew the conclusions that were, in hindsight, right on the button. Taken as a whole, America's intelligence and investigative systems failed. But it should not be forgotten that in the midst of this massive intelligence failure, there were some remarkable individual victories, victories achieved by investigators who clearly had a remarkable degree of intelligence, diligence, and imagination.)

"Policy makers" -- I mean legislators and other such people -- have now jumped on the bandwagon: they now recognize the importance of intelligent intelligence. And they now realize what some people (e.g., David Schum) have been saying for quite some time: connecting dots is as important as collecting dots; i.e., analyzing evidence is as important as collecting it. But what remains unclear (to this writer) is whether these same policy makers appreciate the price that must be paid for intelligent intelligence analysis. By all accounts, the amount of evidence and data collected by intelligence agencies such as the FBI and the CIA is enormous. The problem investigators, investigators, and analysts face, therefore, is not so much a shortage of data as a surfeit of data, an abundance of data. The trouble is that someone must sit down and think about the masses evidence and data that our intelligence and investigative agencies manage to collect. (This means, at a minimum, that potentially important bits of information embedded in foreign languages must be translated into languages that intelligence analysts can understand. But such translation, of course, is not sufficient.)

Until the artificial intelligence people make more progress than they have so far, effective evaluation of masses of data and evidence is an extraordinarily time-consuming and labor-intensive process. If we in the U.S. are are seriously worried about terrorist threats, we must be prepared to foot the bill to pay for analysts whose job it is to look at masses of evidence and data in the hope of detecting therein signs and hints of terrorist activities and dangers.

So the bad news is that effective intelligence analysis is very expensive. But there is also good news: We may not have to surrender our rights and liberties to achieve effective investigation. The failures of American intelligence with regard to 9/11 were not due to the absence of pertinent evidence and data. There was, it now appears, an abundance of such evidence and data. Our system of intelligence and investigation failed us principally because the system did not make good use of the evidence and information that it already had in its hands.

DNA in the News: Imperfect Evidence and Imperfect Justice

Yesterday we commented on an attempt to use DNA evidence to exonerate a prisoner of murder (and rape). Today we can report that the attempted exoneration was successful and that the (former) prisoner is Eddie Joe Lloyd.

The exoneration of Mr. Lloyd (by the Innocence Project) moved the NYTimes to editorialize, "Every DNA reversal is a lesson in the problems with one prosecutorial tool or another. Witnesses are unreliable. Criminals will lie in exchange for lenient treatment. Mr. Lloyd's case shows that even a signed confession is not always what it seems. And it provides further proof that the American justice system is imperfect at best, and frequently far too flawed to rely on capital punishment." Section A; Page 16; Column 1; Editorial Desk (Headline "110 Wrongful Convictions, and Counting"), August 27, 2002, Tuesday, Late Edition - Final.

We have no opinion about Mr. Lloyd's guilt or innocence; we are unfamiliar with the details of his case. However, we do have some questions about the NYTimes view of the case:

#1: Was it DNA that taught the NYTimes that "witnesses [can be] unreliable"? Or did the NYTimes know that before?

#1A: Did DNA and the Lloyd case teach the NYTimes that witnesses are always unreliable? (If so, the NYTimes editors might wish to reconsider their position.)

#2: Did the NYTimes only recently realize that "[c]riminals will lie in exchange for lenient treatment"?

#2A: Does the NYTimes believe that the (unreliable) testimony of criminals who hope for lenient treatment should be removed from the courtrooms of our land? Always? Should such testimony be removed from the pages of our newspapers? And should the (unreliable) testimony of criminals or prisoners who give testimony in the hope of exculpating themselves also be removed from the courtrooms and newspapers of our land? (If so, should the American criminal justice system and the NYTimes have ignored Mr. Lloyd's professions of his innocence?)

#3: Is it news (to the NYTimes) that "even a signed confession is not always what it seems"?

#4: Does Mr. Lloyd's case demonstrate that "the American justice system is imperfect"? (The answer is "yes" -- though we do have to assume Mr. Lloyd's innocence.)

#4A: Does Mr. Lloyd's case -- or the 109 other cases of apparent exculpation to which the NYTimes refers -- reveal the extent of the imperfections in the "American [criminal] justice system"? Or is it necessary to know how many times the criminal justice gets it right?

*** Questions, questions! What about answers?

Well, consider these (limited) points:

First: Although capital punishment may be a bad idea, the Lloyd case -- by itself -- only shows -- at most -- that the American criminal justice system sometimes convicts innocent people. The Lloyd case (by itself) does not show the relative frequency of wrongful convictions.

Second: While the Lloyd case (and cases like it) may show that witnesses and confessions are sometimes "unreliable," the Lloyd case and cases like it do not show that witnesses or confessions are always or ordinarily unreliable (much less worthless), and the Lloyd case and cases like it do not by themselves tell us how the American justice system should deal with confessions or self-interested testimony.

Third: The Lloyd case should teach us -- but it won't, alas --, it should teach us that DNA evidence is not a magic bullet on the question of criminal guilt or innocence. While I have little reason to doubt Mr. Lloyd's claim of innocence, there is ample reason to reject any claim that the DNA evidence in his case -- or in any other case -- conclusively demonstrates his innocence. Errors run two ways in the criminal justice system -- in favor of criminal defendants as well against them. And, DNA (or any other existing forensic technology) notwithstanding, fact finding errors of either kind remain inevitable in the criminal justice system.

Current Events

News Item #1: Sam Dillon, "Fighting Back, Accused Priests Charge Slander," The New York Times, Section 1, Page 1, National Desk, August 25, 2002 (Sunday, Late Edition - Final) reports that some priests are now bringing lawsuits against accusers who, the priests say, defamed them (the priests) by falsely accusing them (the priests) of sexual abuse. A "survivors group" castigated one such defamation lawsuit as "un-Christian, vengeful-style litigation that may scare others who have been abused and are hurting into remaining silent."

If one is a priest who has been falsely accused and maligned, one might instead be inclined to say that a defamation lawsuit is one way to right a grievous wrong.

It's all a matter of perspective -- and, one hopes, of the facts! Right? Yes? No?

News item #2: Today's NYTimes (which has not yet appeared on an internet site that I can access) carries a story about a prisoner who claims to have been wrongly convicted. The story asserts that a DNA test or tests show that the bodily fluids found on pertinent clothing were not the prisoner's and, it is said, this DNA evidence thus shows (or tends to show) the prisoner's innocence of the murder for which he was convicted long ago. The same story notes that this same prisoner signed a written confession, a confession in which the prisoner apparently admitted committing the murder for which he was tried and convicted. To help explain this confession -- to explain why the prisoner might have confessed committing a crime that he did not commit --, the story quotes an expert -- I am reciting this from memory--, the story quotes an expert who asserts that when police officers have in hand the person who they believe to be the perpetrator, such police officers have a strong inclination to assemble evidence that supports their suspicion and their case. The implication is that this inclination -- this desire to wrap up a case against a person believed to be guilty -- explains the confession of the prisoner who is the subject of the NYTimes story. Suppose it is so: suppose police officers will often go to great lengths to secure convictions of the people who they think are the perpetrators. If this is how police often behave and if this inclination is the explanation for this prisoner's confession, might this (hypothesized) inclination also explain why the bodily fluids allegedly found on the pertinent clothing or materials do not match the prisoner's body? You out there -- you lurkers! -- tell this suspicious mind (mine, I mean)--, dear Reader(s), tell this suspicious mind the {fantastic?} possibility that it (this suspicious mind) is entertaining! (Your discovery will be its own reward.)

On Doing Non-Bovine Blogging

Being new -- brand new -- to blogging, this blogger needs advice about good blogging. Should I compose my thoughts before I blog? Or should I blog daily -- with 1/4-baked thoughts?

I should avoid the confessional (narcissistic) mode, no? That being said, would this (possibly incompetent) law teacher's occasional impressions about the job of teaching Evidence interest anyone? Not?

Do you want to hear grand thoughts about probability, inference, uncertainty, et al.? Or would you prefer my thoughts about current events -- such as botched police investigations? Both?

My thanks in advance for your advice.

Time and Justice in Massachusetts

It appears that at least some of the numerous plaintiffs and alleged victims in the "Catholic clergy sex abuse scandal" cases claim that they repressed their memories of their abuse by Catholic clergy. See, e.g., Douglas Belkin, "Shanley Pleads Not Guilty," The Boston Globe,Metro/Region p. B1 ( July 11, 2002).

Long-lasting defects in memory have occasionally been a rewarding attribute in Massachusetts.

In 1992 Ann Shahzade commenced a civil action in which she averred that she had been sexually abused by the defendant – her cousin – more than forty-seven [47!] years earlier. Shahzade v. Gregory, 930 F. Supp. 673 (D. Mass. 1996). The sexual abuse allegedly occurred from 1940 to 1945. Plaintiff was 68 years old when she commenced her lawsuit against her even more elderly cousin. Defendant – her cousin – made a motion for summary judgment: he argued that plaintiff's civil action was barred by the applicable Massachusetts statute of limitations. United States District Court Judge Harrington, however, denied the motion. He reasoned that there was admissible evidence that plaintiff had repressed her memories of having been abused, repressed memories that plaintiff allegedly recovered during psychotherapy in 1990. Judge Harrington acknowledged that the evidence clearly showed that plaintiff had long believed – indeed, had believed for much of her adult life – that she had been abused by her cousin. But Judge Harrington concluded that there was sufficient admissible evidence to show that until 1990 – when psychotherapy allegedly allowed plaintiff to fully recover her repressed memories and thus endowed her with new understanding – plaintiff did not appreciate the cause of the harms that she allegedly experienced as a result of the alleged sexual abuse by her cousin half a century before.