Probable Origin of Term "Circumstantial"

James Franklin, The Science of Conjecture: Evidence and Probability before Pascal 32 (Johns Hopkins, 2001) (footnote omitted):

[Baldus de Ubaldis, in his late fourteenth century commentaries] mentions a kind of presumption called circumferent, which proves only when collected with others, apparently the origin of modern "circumstantial" evidence.

The Courage and Love of Justice Sandra Day O'Connor

The story of Justice Sandra Day O'Connor's struggle with the consequences of Alzheimer's disease is quite moving. (Her husband is afflicted with Alzheimer's and Justice O'Connor retired early from the Court to help arrange for his care.) Her recent (brief) plea for increased funding for research into this disease is also moving. See Lauren Neergaard (AP), "O'Connor makes personal plea for Alzheimer's aid," philly.com (May 14, 2008).

Jerry Fodor Strikes Again

"As for me, I'm inclined to think that Chicken Little got it right. Abduction really is a terrible problem for cognitive science, one that is unlikely to be solved by any kind of theory we have heard of so far." Jerry Fodor, The Mind Doesn't Work That Way 41 (MIT 2001).

N.B. Many theorists believe there are three (rather than two) basic patterns of inference:

1. deduction
2. induction
3. abduction

Abductive inference involves -- roughly speaking -- the mysterious business of finding more in information or events than seems to be there in strictu sensu; for example, abduction involves the suggestive character of evidentiary details; it involves events and matters that function as "signs," or hints, as matters that somehow (in the human imagination) point beyond themselves.

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How does Rutgers manage to land so many philosophers with captivating prose (as well as interesting ideas)?

A Malicious Fairy Princess Spreading Spreading Pixie Dust Laced with DNA over European Crime Scenes?

A friend alerted me to the following odd story about the "phantom of Heilbronn." See Tristana Moore, "Germany hunts phantom killer," BBC News (April 21, 2008). European police have recovered "matching" DNA -- DNA said to belong to a single unknown female person -- from crime scenes in a wide variety of areas in Europe involving a variety of crimes (30 sets of crimes) committed over a period of 15 years. The police now think they may be close to identifying the perpetrator -- either that or the source of this DNA. It will be very interesting to see how this story unfolds.

Character Evidence in New Zealand

Section 40 of the New Zealand Evidence Act of 2006 provides:

40. Propensity rule

(1) In this section and sections 41 to 43, propensity evidence—

(a) means evidence that tends to show a person's propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but

(b) does not include evidence of an act or omission that is—

(i) 1 of the elements of the offence for which the person is being tried; or
(ii) the cause of action in the proceeding in question.

(2) A party may offer propensity evidence in a civil or criminal proceeding about any person.

(3) However, propensity evidence about—

(a) a defendant in a criminal proceeding may be offered only in accordance with section 41 or 42 or 43, whichever section is applicable; and

(b) a complainant in a sexual case in relation to the complainant's sexual experience may be offered only in accordance with section 44.

(4) Evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in section 37 and, accordingly, this section does not apply to evidence of that kind.

New Zealand's treatment of character evidence differs from the U.S. treatment of such evidence in at least two interesting ways:

1. In New Zealand the default rule now is that propensity evidence is admissible.

2. In New Zealand the use of propensity on the issue of veracity -- or, as I would put it, on the issue of the probative value of conduct offered testimonially -- is completely separated from the use of propensity to show conduct that is not offered testimonially.

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A quick read of Section 43 of the New Zealand Evidence Act of 2006 suggests that the main constraint in New Zealand on the use of propensity evidence against criminal defendants is the principle of undue prejudice.

Observations:

1. New Zealand's undue prejudice approach expressly grants much discretionary authority to trial judges.

2. How far do Sections 40 and 43 sanction the use of group behavior, propensities, and characteristics to show individual behavior? Do Sections 40 and 43 have any effect on how far and under what circumstances such evidence is admissible to show individual behavior or characteristics, either in criminal or civil cases?

Japan: Underlawyered or Overlawyered -- or Who Knows?

There was a fascinating article in the Japan Times online about the reason for having or not having many lawyers. See Colin P.A. Jones, "Law Schools Come under Friendly Fire," Japan Times online (Jan. 28, 2008). Among the points made by the protagonists in the debate (which takes the form of a debate about the number of persons who ought to be allowed to pass the annual bar exam) are the following:

The number of people allowed to pass the annual bar exam is fixed at an absolute number.

Japan's Justice Minister Hatoyama is challenging the current plan to increase the number of annual admittees from 1,500 to 3,000 by 2010.

My research shows that the current population of Japan is roughly 127,000,000.

Colin Jones, the author of the article, asserts that regional bar associations have joined the justice minister in questioning the planned increase in the number of planned admittees. He writes:

Unfortunately, in addition to these very valid criticisms, at least some of the bar association comments veer off into self-interest and self-importance, both justified by an alternative form of logic that only applies to protected industries. The Kanazawa Bar Association, for example, argues that more lawyers will result in (gasp!) greater competition. Facing increased competition, goes the logic, lawyers will have to focus increasingly on the grubby task of making money, losing the leisure that is apparently necessary to engage in advocacy for the public good (which is of course one of the mandates of lawyers everywhere). As a result, the number of immoral lawyers will increase as they take on bad, even hopeless, cases just to earn a living.

The pass rate on the annual bar exam was once 2-3%.

The author of the article -- a professor at Doshisha University Law School in Kyoto -- opines: "That the number of lawyers generated by the new law schools has become an issue already, when the impact so far is a relatively modest increase, reflects one of the core problems with the whole system — that it was apparently set up without a serious inquiry into what the average person actually needs out of Japan's legal system. Indeed, one fascinating aspect of the whole debate over the number of lawyers in Japan is that it misses a simple, basic fact — that the average Japanese person may not regard the legal system as a useful tool for solving problems. If you are arrested and prosecuted for a crime you will be found guilty over 99 percent of the time. If you get divorced and lose contact with your children, going to court probably won't change a thing. Lawsuits against the national government are shown to be losing propositions almost daily in the news. Small wonder then that Japanese people are averse to litigation, when it is so often proven to be futile."

Editor of Durham Newspaper (belatedly?) Admits Mistakes in Duke Lacrosse Case

"Executive Editor Bob Ashley of the Durham (N.C.) Herald-Sun, which has been criticized by some for its coverage of the Duke University lacrosse case, said the newspaper should have realized sooner the charges were false." Joe Strupp, "Herald-Sun Editor Admits Paper Erred On Duke Lacrosse Case," Editor & Publisher (April 10, 2008)

The Proceedings of the Old Bailey, 1674-1913 -- ONLINE

A treasure trove: The Proceedings of the Old Bailey, 1674-1913

The online blurb states:

A fully searchable edition of the largest body of texts detailing the lives of non-elite people ever published, containing 197,745 criminal trials held at London's central criminal court.

Truth and Science in Litigation

For a nuanced and refreshingly compact discussion of the sources of persistent barriers to the ideal of the use, in litigation, of science to determine the true facts, see J. Mnookin, "EXPERT EVIDENCE, PARTISANSHIP AND EPISTEMIC COMPETENCE"

Use of "Low-Template" DNA (Use of Tiny Samples of DNA)

See Robert Booth, "Regulator backs use of DNA technique in court cases," The Guardian (April 11, 2008)

N.B. The article notes that low-template DNA is "also known as 'touch DNA' because investigators can extract samples from just four or five cells deposited by suspects only briefly holding objects such as a gun, a door handle or a glass. The technique was used in the Peter Falconio murder trial in Australia as well as the conviction of the rapist Antoni Imiela, who struck several times in south-east England."

Hearsay Evidence in State University's Proceeding to Revoke Privileges of Fraternity

ALPHA ETA CHAPTER OF PI KAPPA ALPHA FRATERNITY v. UNIVERSITY OF FLORIDA, No. 1D07-2596, Florida District Court of Appeal (April 14, 2008):

It is unnecessary to recite in detail the evidence presented at the formal hearing held before the Greek Judicial Board. Suffice it to say that all of the evidence offered in support of the charges consisted of inadmissible hearsay. The fraternity objected each time such evidence was offered. Each objection was overruled. In its appeal to the Assistant Vice President of the Division of Student Affairs of the Dean of Students’ decision, the fraternity argued that the decision and consequent sanctions could not stand because all of the evidence presented consisted of hearsay. This argument was rejected without comment. Following rejection by the Assistant Vice President of the Division of Student Affairs of the fraternity’s appeal, the fraternity sought review in this court pursuant to section 120.68, Florida Statutes (2007).

In its rules, the University has expressly provided that, at formal hearings such as that held before the Greek Judicial Board, the respondent "shall be accorded the right to . . . [q]uestion adverse witnesses." Fla. Admin. Code R. 6C1-4.016(5)(b)2b.

The fraternity argues that it was denied this right because all of the evidence presented consisted of inadmissible hearsay, in the form of either videotaped interviews or testimony provided by two investigating police officers who summarized the results of their investigations, including statements purportedly made by individuals who had been present at the party from which the charges allegedly arose. We agree.

The pertinent facts of this case are substantively indistinguishable from those in Morfit v. University of South Florida, 794 So. 2d 655 (Fla. 2d DCA 2001). In that case, a student who had been suspended from classes following a formal hearing appealed, complaining that the university had denied him his right, set forth in the Student Code of Conduct, to question adverse witnesses because the complaining witnesses were never called to testify. In reversing the suspension, the court said:

The complaining witnesses were never called. In fact, the only statements from the alleged victims were contained in the investigation report written by an officer who talked with them. Morfit was entitled to have the witnesses make their statements directly to the hearing officer, and he was entitled to question them. This is a fundamental ingredient of due process in any judicial or quasi-judicial proceeding. It is recognized that in school suspension cases, a relaxed due process standard is followed. . . . However, the school’s own code guaranteed Morfit this right.

Id. at 656 (citation omitted). We agree with the Second District’s conclusion that denial by a public university of a right accorded by its own conduct code to question adverse witnesses requires reversal in a case such as this.

In this case, without the improperly admitted hearsay evidence, there was no evidence presented that might support the Greek Judicial Board’s findings, a point which the fraternity argued forcefully, albeit unsuccessfully, in its appeal to the Assistant Vice President of the Division of Student Affairs. Accordingly, we must reverse. See § 120.68(7)(b), Fla. Stat. (2007) (requiring reversal when agency action depends upon findings of fact "not supported by competent, substantial evidence in the record"); Pasco County Sch. Bd. v. Fla. Pub. Employees Relations Comm’n, 353 So. 2d 108, 120 (Fla. 1st DCA 1977) (agency action must be set aside if based exclusively upon inadmissible hearsay evidence). Moreover, because the fraternity correctly argued below that the evidence presented by the University was insufficient as a matter of law to sustain any of the charges, on remand we direct the University to reinstate the fraternity.

REVERSED and REMANDED, with directions.

&&&

This court's willingness to insist that the university adhere to its own procedural rules is refreshing. Yes, the court might be faulted for not making its rationale entirely clear -- e.g., did the the court think that university did wrong because the university did not follow the rules the university itself chose to adopt or did the university do wrong because hearsay cannot constitute "substantial" or "competent" evidence? But the last time I looked -- and that was a long time ago -- this sort of vagueness about the rationale for making a state university (or other state agency) adhere to certain procedural rules and rules of evidence in nonjudicial adjudicative proceedings that have a serious impact on persons such as students is common rather than atypical. And it is refreshing to see that at least some courts still find merit in requiring procedural regularity or evidentiary reliability or both in disciplinary proceedings of the sort found here. (Alas, it is unlikely, is it not, that this court would reach the same result were the university in question private rather than public.)

Preserving Evidence in the F.L.D.S. Case

Here is living proof.

What Is Evidence (in American Trials)?

I have ventured a couple of definitions of "evidence" in contemporary American trials. See this recent post and this even more recent post. However, thus far my definitions seem to have ignored the fact that American law distinguishes questions of law and questions of fact. Legal questions are addressed by the judge and (supposedly) not by the jury. However, this distinction is not and never has been a clean one; juries often address issues that have a normative character. Moreover, it can be argued -- and I have argued -- that when judges consider legal questions, judges ordinarily do consider evidence. See P. Tillers, "The Value of Evidence in Law," 39 Northern Ireland Legal Quarterly 167 (1988). I don't think it can safely be said that legal interpretation does not involve or require evidence and inference. But perhaps it can be said that the relationship between propositions and evidence is different when the choice of valid propositions rests heavily on the preference of the assessor or decision maker than when the choice of valid propositions rests heavily on the assessor's or decision maker's judgment of the truth or falsity of propositions. However, the line between these two kinds of judgments is, I think, not clean, and not as sharp as academics sometimes suppose. People's preferences are often shaped by people's judgments about the shape of the world -- and vice-versa.

You may wonder why I am going to the bother of trying to define evidence in contemporary American trials. The cheap and easy answer is that my effort has something to do with a book I am writing. But this answer is a cheap answer -- because you can and should ask why I am bothering to talk about the definition of "evidence" in the book that I am writing. I'll try to say something about this question later -- sometime later.

Assault This Revised Definition of Evidence

Please assault the following revised definition of evidence in contemporary American trials:

Except when the term “evidence” is manipulated by the law -- e.g, when a matter generally considered evidence is nevertheless called "not evidence" -- to achieve specific instrumental or policy ends, the term “evidence” in American law generally refers to any matter that may increase knowledge about states of the world whenever the knowledge that may be found in such matter either is not available or is not readily available to the ordinary knowledge and reason of triers of fact; but societal beliefs about the likely knowledge-value of a possible source of knowledge about the world work as a drag or as a draft on the legal characterization of a possible source of knowledge as evidence or non-evidence.

Illustration of the hedge in the last sentence of the above definition: if a large majority of literate persons with a college degree believe that a possible source of knowledge almost certainly has no value because they believe that the knowledge-value of that possible source of knowledge rests on propositions, principles, and methods that are almost certainly invalid, the chances decrease that a legal decision maker (such as a trial judge) will characterize such a possible source of knowledge as "evidence." This sort of social influence also works in reverse. For example, if a large fraction of the same social sector -- literate people with college degrees -- strongly believes that some possible source has great knowledge-value for the kind of question at hand, the chances that a legal decision maker will characterize that possible source as "evidence" are enhanced.

In saying what I say immediately above, I am not saying that people who are not literate or who don't have college degrees don't know nuttin'. I don't believe that's true!

I am suggesting that the epistemic views of legal actors such as judges are likely to be affected and predicted by the epistemic beliefs and attitudes of some sectors of society more than by the beliefs etc. of other sectors of society.

Assault This Definition -- Please!

Please assault the following definition of evidence in contemporary American trials:

Except when the term “evidence” is manipulated by the law to achieve specific instrumental or policy ends, in American law the term “evidence” generally refers to any matter that may increase knowledge about states of the world whenever the knowledge that may be found in such matter either is not available or is not readily available to the ordinary knowledge and reason of triers of fact; but “evidence” does not include any matter whose knowledge-value depends on propositions, principles, or methods that a large majority (e.g., 95%) of literate persons with a college degree view [“views”?] as clearly and incontestably false or invalid.

Possible discussion test case: The evidentiary status of the testimony of an “ethics expert.” Consider various kinds of “ethics experts.” Consider different possible purposes of the testimony of such “experts.”

Back to Basics in the Law of Evidence - but How?

Systematic treatises on the law of evidence -- the few that exist -- generally begin with (an attempt at) a definition of "evidence." The definitions I have seen -- I have often complained -- are unsatisfactory. Well, OK, so they are. But how does one do better? Perhaps one way to make a start at doing better is to be more clear about the definition of "definition": What makes a definition good and what makes a definition defective? A post by Lawrence Solum (April 11, 2008) on his blog led me to the Stanford Encyclopedia of Philosophy: Prof. Solum had noted that Anil Gupta had posted new entry (April 10, 2008) in the online Stanford Encyclopedia of Philosophy on "definitions."

Reading Gupta's entry, however, was a bracing experience. Although I have no degree in philosophy, I have been interested in philosophy, logic, epistemology, and similar matters for quite some time. Even so, Gupta's entry was plainly not written for the likes of me. I could -- with considerable labor --, I could make some sense -- a little bit of sense -- out of what he said; i.e., I could get the general drift of some of his arguments and analyses. (As far as I could tell, Gupta was in fact saying sensible and intelligent things.) But I could not follow the details of the arguments.

I have some modest familiarity with symbolic logic. But the notation Gupta uses goes beyond my ken. Perhaps this is because I never knew my symbolic logic well enough to begin with. Perhaps it is partly because symbolic notation keeps changing and an autodidact cannot hope to keep up with such changes. Whatever. I am left with a problem, a question: Where (dear Reader) can I find an intelligent, modern, philosophically-sophisticated, and "accessible" discussion of the nature of definition? Or, dear Reader, would you advise me to avoid the problem of defining defining and talk instead (simply?) about the "concept" (rather than "definition") of evidence? If I did that (in a treatise, let us say), would I really have accomplished (or avoided) anything? I humbly await your opinion, dear Reader.

N.B. If one is in a philosophical mood -- and I often am -- one good place to start might be Peter Achinstein's The Book of Evidence (2001). But Achinstein pays little attention to law or to the role or nature of evidence outside of the hard sciences. So perhaps it would be more advisable for me to get my bearings by reading and studying further James Franklin's The Science of Conjecture (2002).

Lethal Injection: Scientific Evidence and the Federal Courts

In Baze v. Rees, 553 U.S. -- (No. 07–5439, April 16, 2008), which considered a constitutional challenge to the use of lethal injections according to a certain protocol in the execution of death sentences, some members of the Court had some things to say about the ability or inability of federal judges or courts to assess expert and scientific evidence. In theory such judicial sentiments about judicial capacity to assess scientific evidence cannot by themselves change non-constitutional federal law regarding judicial treatment of scientific evidence (unless of course nonconstitutional rules such as Daubert-Kumho or Federal Rule of Evidence 702 manage to violate some constitutional mandate in some set of circumstances). Nonetheless, sometimes the right hand of the federal judiciary may notice what the left hand of the federal judiciary is saying and doing.

The "opinion of the Court" -- the plurality opinion -- in Baze v. Rees states in part:

Much of petitioners’ case rests on the contention that they have identified a significant risk of harm that can be eliminated by adopting alternative procedures....

Permitting an Eighth Amendment violation to be established on such a showing would threaten to transform courts into boards of inquiry charged with determining “best practices” for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology. Such an approach finds no support in our cases, would embroil the courts in ongoing scientific controversies beyond their expertise [emphasis added], and would substantially intrude on the role of state legislatures... .

Thus spake Justice Roberts. Justice Kennedy and Justice Alito joined in this opinion. See also n. 4 of the plurality opinion, which uses a real-world scientific dispute about lethal injection to support the proposition that assessment of the relative risks of different types of lethal injection "would involve the courts in debatable matters far exceeding their expertise."

Justice Alito, who concurred in Justice Roberts' plurality opinion, wrote a separate concurring opinion in which he said:

Showing merely that a modificationwould result in some reduction in risk is insufficient. Moreover, an inmate should be required to do more than simply offer the testimony of a few experts or a few studies. Instead, an inmate challenging a method of execution should point to a well-established scientific consensus. Only if a State refused to change its method in the face of such evidence would the State’s conduct be comparable to circumstances that the Court has previously held to be in violation of the Eighth Amendment.

Daubert, by contrast, dramatically decreased -- ostensibly, in any event -- consensus of scientific opinion as a benchmark for determining the admissibility of scientific evidence in federal trials. (But, again, it must be noted that Daubert involved only -- ostensibly, in any event -- the Court's interpretation of a nonconstitutional rule of evidence, Federal Rule of Evidence 702.)

In a concurring opinion, in which Justice Scalia joined, Justice Thomas stated:

We have neither the authority nor the expertise to micromanage the States’ administration of the death penalty in this manner. There is simply no reason to believe that "unelected" judges without scientific, medical, or penological training are any better suited to resolve the delicate issues surrounding the administration of the death penalty than are state administrative personnel specifically charged with the task.

Software to Protect Attorney-Client Communications and Other Confidential Material?

See Tom Foremski, A Lawyer Inside Your PC (April 14, 2008) (describing and discussing UK software "Autonomy Information Governance" (AIG); see announcement here).

The software reportedly serves other purposes as well -- e.g., identification and retrieval of records in response to discovery requests and orders.

Distributed Parallel Processing, Digital Processing, and Assessment in Legal Proceedings of Human Mental States and Operations

Among certain students of the mind, there is a disagreement about whether human thinking is fundamentally connectionist, digital (a/k/a symbolic), or some combination of the two. See generally Gary F. Marcus, The Algebraic Mind: Integrating Connectionism and Cognitive Science (MIT Press, 2003). Does the answer to this riddle have any implications for how adjudicators should assess human mental states and operations such as "sanity," "intentionality," and "recklessness"? If not, why not?

Verdict before Public Trial -- in China in 2004

Amnesty International, People’s Republic of China Executed "according to law"? - The death penalty in China (22 March 2004):

Capital cases are most usually heard initially by intermediate-level courts in China. Appeals are heard by provincial-level High People’s Courts - the court of second instance.

Article 14(1) of the ICCPR states: In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal [...]

Principle 1 of the Basic Principles on the Independence of the Judiciary states: The independence of the judiciary shall be guaranteed by the state and enshrined in the constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

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A trial of first instance held at an Intermediate People’s Court is heard by a collegial panel of three judges, who pass verdict by majority decision based upon evidence and testimonies presented in court. However, it is often the case that a verdict has been approved by a court before a defendant even appears in front of the judges. Each court in China has an adjudication committee, which according to Article 149 of the Criminal Procedure Law is established to decide "[...] difficult, complicated and major cases" which includes cases "[...] when a death sentence may be imposed".(75) Adjudication committees are composed of CCP officials including at least one judge, who sit in private to examine a case file without ever actually hearing statements or meeting defendants or their lawyers. The adjudication committee’s decision on a case is binding on the collegial panel of judges.

Defendants in capital cases are therefore likely to stand trial in a court which has already decided a verdict and possibly even a sentence. This is a probable explanation for the very short duration of trials: it is common for people to be sentenced to death following a trial of first instance lasting no more than one hour.(76) (It should also be repeated in this context that between 1998 and 2002, 99.1% of all trials of first instance ended with a guilty verdict.(77))