Abstract of an Unwritten Paper: Whither and Wherefore Formal Representations of Evidence and Inference?

Forms of Uncertainty in Legal Reasoning

Peter Tillers (c) 2005

for

BISC Special Event in Honor of Prof. Lotfi A. Zadeh

There have been relatively few attempts to use fuzzy set theory or soft computing methods to dissect or portray inconclusive reasoning in law. From the perspective of a legal professional who is interested in rigorous study of uncertainty in law, this gap in research in fuzzy logic and soft computing is lamentable. Notions such as fuzzy and rough sets and logical procedures such as those described by fuzzy inference rules are extraordinarily evocative of notions and procedures that are routinely found in argument in legal contexts such as litigation. It seems obvious that a major research project on soft computing and uncertain legal argument should be launched. However, recent experience with attempts to use the standard probability calculus to dissect uncertain reasoning in law about factual questions suggests that before a major research project on soft computing and law is begun, interested soft computing researchers and interested legal professionals should try to reach agreement about the possible distinct purposes that any given mathematical or logical analysis of inconclusive legal argument might serve. Putting aside the special (and comparatively uninteresting) case of mathematical methods, or formal methods, that make their appearance in legal settings because they are part of admissible forensic scientific evidence, mathematical or logical analysis of inconclusive argument in law could have any one (or more) of the following distinct purposes (but research could and should explore the extent to the realization of any one of the purposes of formal analysis enumerated below might advance one or more of the other purposes enumerated below):

1. To predict how judges and jurors will resolve issues in litigation.

2. To devise methods that can replace existing methods of argument and deliberation in legal settings.

3. To devise methods that mimic conventional methods of argument in legal settings.

4. To devise methods that support or facilitate existing, or ordinary, argument and deliberation in legal settings by mathematically illiterate actors such judges, lawyers, and jurors.

5. To devise methods that would capture some but not all ingredients of argument in legal settings about factual questions or legal questions.

6. To devise methods that perfect – that better express, that improve the transparency of – the logic or logics that are immanent, or present, in existing ordinary inconclusive reasoning about uncertain hypotheses that arise in legal settings.

7. To devise methods that have no practical purpose – and whose validity cannot be empirically tested – but that (ostensibly) serve to advance understanding of the nature of inconclusive argument about uncertain hypotheses in legal settings.

The [non-existent] paper discusses the distinctive characteristics of these various purposes from a legal perspective.

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Federal Rules of Evidence 413-415: Looking Backward and Forward: A Sea Change or a Historical Footnote?

While tidying up some matters in Spindle Law's evidence module, I had this thought, which I posted (as comment) in the evidence module:

In 1994 Congress enacted Federal Rules of Evidence 413-415 into law. (These Rules went into effect in 1995.) Rules 413-415 openly proclaimed that some criminal conduct of a person on another occasion (criminal conduct of a sexual nature) could be used by the trier of fact to determine whether or not the person had engaged in some sexual wrong that is at issue in some trial. Although the workings and wrinkles of the preexisting character evidence rule, the traditional prohibition against "circumstantial" use of "uncharged" crimes and wrongs, was often more pretense than reality -- particularly in cases involving charges of criminal sexual wrongdoing against children -- Rules 413-415 were, at an important level, a major break with the traditional body of evidence law and principles in criminal cases -- precisely because these Rules openly sanctioned a major breach in the traditional character evidence rule, whose gist is effectively if somewhat misleadingly conveyed by the saying that a person must be tried for what the person did, not for what the person is.

The enactment of Rules 413-415 was preceded, accompanied, and followed by much controversy: the U.S. legal academic community -- that part of it that spoke out, in any event -- stood virtually unanimously in opposition. This opposition raised a number of fundamental questions, questions about the workings of the American adversary criminal justice system, the capacities and limits of the jury, the basic purposes of nonconstitutional exclusionary rules in general and the character or propensity rule in particular, the empirical underpinnings and assumptions underlying both the traditional character evidence prohibition and Rules 413-415, and, finally, the extent or nature of constitutional constraints on rules of evidence in criminal cases.

The multi-pronged academic assault on Rules 413-415 failed. After the Rules were enacted, the only effective practical form of opposition to the Rules was by an assault on the constitutionality of the Rules. (Repeal of the Rules was and is a political impossibility.) Courts, however, uniformly rejected the claim that Rules 413-415 violate the federal constitutional due process guarantee or other federal constitutional rights. See, e.g., United States v. Meacham, 115 F.3d 1488 (10th Cir. 1997). (It may be sobering -- to academics, in any event -- to see how cursory judicial discussions of this constitutional question were and are in comparison with the typical academic treatment of the matter in law journals.)

One important lingering question (there are others) is whether Federal Rules of Evidence 413-415 did or did not portend a major shift in the direction of the law of evidence in general or in the character evidence prohibition (and related legal principles such as relevance and undue prejudice) in particular. Or will it turn out, in the very long run, that Rule 413-415 were an eruption born of a particular political constellation in Congress at a particular time and largely limited to a particular sector of the America legal process, to federal trials involving claims of sexual wrongdoing? What is relatively clear is that Rules 413-415, despite their importance in their own domain, did not usher in a quick, sweeping, and widespread change in the law of evidence or in the way that civil and criminal wrongs and rights are tried in the United States. But did Rules 413-415 leave a mark on the way the legal profession thinks about evidentiary processes in adversary adjudication?

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The Course of Legal Evidential Discovery

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Interaction among Evidence, Hunch, Hypothesis, Retroduction, New Evidence, Hunch, ...

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Real Dynamic Evidence

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evpsychstates

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Old News Is Important News

In Brown v. Perlman, 2008 U.S. Dist. LEXIS 37546 at n. 41 (May 8, 2008), Judge Magistrate Peck said:

A prosecutor's failure to conduct forensic tests does not violate a federal constitutional right. See, e.g., Arizona v. Youngblood, 488 U.S. 51, 58-59, 109 S. Ct. 333, 338, 102 L. Ed. 2d 281 (1988).41

41 See also, e.g., Venticinque v. Burge, No. CV-04-3411, 2005 U.S. Dist. LEXIS 32109, 2005 WL 3369093 at *5 (E.D.N.Y. Dec. 12, 2005) (Rejecting petitioner's claim that he was denied due process "because the prosecutor failed to conduct DNA or other forensic analyses on the knife that was used in the underlying assault," since "the prosecutor's failure to conduct forensic tests does not violate a federal right," citing Arizona v. Youngblood)); Johnson v. New York, No. 02-CV-3752, 03-Misc.-0066, 2003 U.S. Dist. LEXIS 24384, 2003 WL 23198785 at * 14 (E.D.N.Y. Nov. 5, 2003) (Weinstein, D.J.) ("The People were not constitutionally mandated to perform additional forensic tests on the evidence in this case. . . ."); Smith v. Edwards, 98 Civ. 7962, 2000 WL 709005 at *6 (S.D.N.Y. May 31, 2000) ("[T]here is no due process requirement that the government use any particular investigatory tool, including quantitative testing [such as DNA testing], to secure exculpatory evidence.").

The judge magistrate's recommended finding were approved by a United States District Court. See Brown v. Perlman, 2008 U.S. Dist. LEXIS 108387 (S.D.N.Y., June 23, 2008).

My hope is that a reconstituted United States Supreme Court will someday reexamine Youngblood and will study how the judiciary, under a due process umbrella, can oversee pretrial investigation in criminal cases to enhance the accuracy of criminal adjudication.

Lest ye forget: Youngblood was the case in which the prisoner, denied a constitutional remedy by the Supreme Court, was eventually exonerated -- after 18 or so years in the slammer -- by a new DNA test.

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A New Time Line for MarshalPlan: Investigation & Proof Time Line

MarshalPlan has quite a few time lines already -- for example, a case time line (for events at issue chronologically arranged), a tangible evidence time line (to show changes over time in the condition of tangible evidence), a witness time line (similar; what happens to a witness over time). Now there are the beginnings of a new time line: an investigation and proof time line -- showing decisions over time by legal actors (e.g., investigators, lawyers) about or in investigation and proof. Cf. The Many Faces of Time in Organizing Evidence (May 24, 2009).

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All the World's Knowledge

At first sight Wolfram/Alpha is a type of database and search service akin to GOOGLE SEARCH. But Wolfram states (in an e-mail), "The launch of Wolfram|Alpha is just the beginning of our endeavor to make all of the world's systematic knowledge immediately computable...." Is this hype? More than hype? Is all [systematic] knowledge "in principle" computable? In the short or medium run? Does "all the world's [systematic] knowledge" include your knowledge that your Aunt Betty wanted to go to the supermarket last Wednesday but didn't make it because she forgot? Does it include some long-dead person's knowledge of what Alexander the Great said as he lay dying? Does it include knowledge of what was in John Wilkes Booth's heart as he shot Lincoln? Is inferred knowledge knowledge? If so, will all trials someday be conducted on Wolfram/Alpha? Probability theorists have done a pretty good job (in the academy) of monopolizing "probability." Are you prepared to let Wolfram or Google do the same to "knowledge"?

This and this too are a couple of newspaper articles about Wolfram/Alpha that Wolfram thinks are quite nifty.

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In (Further) Praise of Sonia Sotomayor

Judge Sonia Sotomayor is plainly "qualified" to sit on the Supreme Court. Her academic record is exemplary. Her experiences as a litigator and as a trial judge are also worth mentioning: with the exception of Souter, no member of the Supreme Court has experience in the litigation trenches. Without personal experience with the pretrial and trial process, it is very hard to understand how litigation works. It is important for a Supreme Court Justice to understand how litigation works.

Some observers have suggested that Sotomayor's consciousness of her own life story disqualifies her from joining the Supreme Court. The suggestion is ridiculous. Today no serious legal scholar or honest judge believes that law is a system of rules and principles that can be administered "mechanically," uninfluenced by personal judgment. Every judge has personal experiences that influence the way the judge reads the law. In this respect, Sotomayor is no different from any other judge. Moreover, Sotomayor's personal experience with relative poverty is a perspective the Court needs: it may offset to some degree the influence of the greater personal familiarity that almost all other members of the Court (except for Justice Clarence Thomas) have with wealth and economic privilege.

The "discovery" that law cannot be an autonomous system that is entirely independent of subjective judicial judgment of course raises a theoretical question (an important one) about the meaning and nature of the rule of law. However, until that broad theoretical question is settled, there is every reason to believe that Judge Sotomayor will act in the fashion that our society thinks judges ought to act: she pays close attention to statutes, precedents, constitutional language, the arguments of advocates, etc., when she wrestles with the legal puzzles that confront her; Judge Sotomayor does exactly the sorts of things we expect and want judges to do.

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Sonia Sotomayor

Hon. Sonia Sotomayor: a great choice.

See also this interesting article.

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The Many Faces of Time in Organizing Evidence for Litigation and Possible Litigation

The concept of a time line is a simple one. But as I have noted earlier, the time line is a protean tool. It is also an essential one:

1. Events in issue can be arranged in the order they may have occurred. This is an event timeline.

2. Events in issue can be arranged in the order which they are arranged when presented to a trier of fact such as a judge or a jury. This type of arrangement -- one in which chronology is sometimes shuffled to some extent -- is involved in narrative.

3. The states and events connected to sources of evidence can be chronologically arranged. This is the history of sources of evidence (such as witnesses).

4. Evidence can be arranged chronologically to show when it was collected. This might be called a history of evidence collection.

5. Evidence can be arranged to show the chronological order in which it is presented to a decision maker. This might be called proof history or proof chronology.

Further variations on the time line are possible, useful, and important. For example, time lines can be developed on the basis of:

1. Actors in the events at issue

2. Actors and decision makers in the legal process of investigation and proof

3. Persons who may be sources of evidence, or witnesses

4. Tangible things that may be sources of evidence.

N.B. Here I have not even touched on the role of time in formation and deployment of a scenario or "causal hypothesis," which involves conjectures or hypotheses about the way events are connected in time.

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MarshalPlan 2.6

I have tweaked MarshalPlan enough to justify awarding it a bigger number: MarshalPlan 2.6.

Below please find the still-applicable (and very slightly-modified) instructions and caveats.

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How many lives does a cat have?

I have tweaked MarshalPlan once again. There is now a better chance than ever that the user will not get stuck in a "stack" with no way to navigate through the stack. (But now and then you will still have to utter an expletive and just exit the stack. You have my sympathy in advance, and I, I trust, your forgiveness [in advance].)

Oh yes: I am indeed talking about my evidence marshaling software.

Below is some general information about MarshalPlan and instructions for downloading the software.

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

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

MarshalPlan 2.6 is a software application based on the user-friendly programming language Revolution Enterprise(tm). This application -- MarshalPlan 2.6 -- illustrates -- with images, fields, buttons (links), and so on -- how a computer program to support the marshaling and assessment of evidence in preparation for possible trials and also for the conduct of trials, might work.

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To retrieve MarshalPlan 2.8 click on this link. Download all of the Revolution stacks into a single folder on your computer. These stacks all have the suffix "rev". To make these stacks run properly you need a "Revolution Player." To get this free player, go here and download the version of the player (either Windows or Mac OSX or other) that you need. Then drag-drop the "Network.rev" icon onto the "Revolution Player" icon or open the Revolution Player icon and then open the Network.rev stack, or file, and then, using the Revolution Player, open the remaining "rev" stacks. You should be in business now: the buttons, or links, in the various stacks should allow you to navigate between the stacks as well as within the stacks.

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SOME VERY IMPORTANT CAVEATS: There are numerous very serious flaws in the software application that you will retrieve by clicking on the links found above, and the application that you will retrieve has numerous gaps and limitations, including the following:

1. In the application itself there is very little explanation of the theory underlying the evidence marshaling strategies that are embedded in MarshalPlan 2.6.

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

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

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

4. MarshalPlan 2.6 is not set up to be linked to a database. This is a most serious deficiency.

But -- in my defense -- I repeat: MarshalPlan 2.6 is NOT a prototype of a working software application, suitable for use in real-time contexts.

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

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

A Lucky Recipient of an Unsolicited European Union Grant

I just received the following announcement by e-mail:

European Commission Enterprise and Industry DG
Communication and Information Unit/R4
BREY 13/ 092
B - 1049 Brussels (Belgium)

Released: May 2009.

We bring to your notice the decision by the board of trustees of The European Union to choose you as one of the final recipients of a cash grant/donation for your own personal, educational, and business development (SME funding).

To promote growth and creating new jobs in the European economy, we are giving out a yearly donation of £402,000.00 (four hundred and two thousand pounds) to 10 lucky recipients who have been selected from over 25,000 websites all over the globe, as funding/aid from the European Union, European Commission, and the United Nations in accordance with enabling acts of Parliament.

Please contact Dominic Brett
Claims Department.

Name: Dominic Brett
E-mail: ec_claims_department02@live.com

Remember to quote your identification numbers. Find your identification numbers below:

BATCH NUMBER: EC-078419XN
UNIQUE NUMBER: SME48153

Note that these numbers fall within your location file.

Thank you and accept my congratulations once again!

Janet Williamson
Information Officer and Coordinator,
Scottish European Resources Network

========
+++++CONFIDENTIALITY NOTICE+++++
the information in this e-mail may be confidential and/or privileged. If you are not the intended recipient or an authorized representative of the intended recipient, you are hereby notified that any review, dissemination or copying of this e-mail and its attachments, if any, or the information contained herein is prohibited. If you have received this e-mail in error, please immediately notify the sender by return e-mail and delete this e-mail from your computer system. Thank you.

Well, this announcement apparently didn't originate from Nigeria.

But does the EU have a board of trustees?

Would the EU pass out grants in British pounds?

And, notwithstanding my high opinion of myself, I wonder if the EU and other governments and entities would decide to give me the equivalent of hundreds of thousands of dollars (more?) without even forcing me to go through the indignity of asking for the money?

Naaah!

Darn!

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Coming soon: the law of evidence on Spindle Law

New Haven Firefighter Case (Ricci)

Law, Probability and Risk will publish a statistical analysis by Professors Joseph Gastwirth (Statistics, George Washington University) and Weiwen Miao (Mathematics, Haverford College) of some of the issues in Ricci, the New Haven Firefighter Case, the "reverse discrimination" case. This is the abstract:

Many countries have fair employment laws to protect racial, gender, religious, or ethnic minorities from discrimination and courts in the United States can order remedies such as one out of every three new hires should be a member of a protected group after finding an employer discriminated. What steps can an employer undertake to ensure its employment practices do not disadvantage minorities when it does not need to comply with a court order? This issue arose in Ricci v. DeStephano, a “reverse discrimination” case under review by the U.S. Supreme Court. Seventeen Whites and one Hispanic who achieved sufficiently high scores qualifying them for promotion to lieutenant or captain of the New Haven Fire Department sued the city because it canceled the exams after seeing that no African-American could be appointed to an existing vacancy. The City of New Haven justified its action on the basis that both exams had a disparate impact on African-Americans and Hispanics because the ratios of their pass rates to that of Whites were less than 80%, contrary to a “rule of thumb” in the government’s Uniform Guidelines. The city did not conduct statistical tests, which are referred to in the Guidelines.

The lower courts accepted New Haven’s explanation and granted summary judgment to it. A statistical study of the various criteria considered by the city and lower courts in their review of the data demonstrates that nearly 70% of the time a fair non-discriminatory test for either position will fail the government’s “80% rule” and at least 60% of the time both fair tests would fail this “four-fifths rule”. Since the city created a new criterion after seeing the results it is difficult to formulate precisely the other “rare” or “unusual” outcomes that would lead to cancelation of the exam. Would New Haven reject a list with no Hispanics or no Whites eligible for an immediate promotion? Would it require that all three groups be represented in the pool eligible for advancement to each position? From the viewpoint of statistical theory, the hypothesis being tested and the definition of pass or selection rates that will be compared should be decided before examining the data. Formal statistical tests on several relevant pass rates show that the lieutenant exam had a disparate impact on minority applicants, but the differences in the pass rates on the captain exam were not close to statistical significance. Furthermore, when the city canceled both exams, it only focused on the demographic mix of the high scorers who could receive an immediately promotion and ignored the two-year life cycle of the list. Neither likely retirements nor job turnover during the two-year life cycle of the results were considered. If this had been done, the city might have realized that two or three African-Americans were likely to be appointed lieutenants.

Keywords: disparate impact, equal employment, “four-fifths” rule, numerical disparity, reverse discrimination, tests of statistical significance.

The full paper is available on SSRN.

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Pondering the Implications of the Wikipedia Experiment for the Spindle Law Experiment

Spindle Law is undertaking a grand experiment with the development of online legal material for legal professionals.

Will the experiment work?

The story of an analogous (yet different) experiment must be considered:

David Runciman, "Like Boiling a Frog," London Review of Books (May 28, 2009):

That’s how [Wikipedia] works. The puzzle is why it works, given that this way of compiling an encyclopedia seems to have a flaw so obvious it is hardly worth stating: if no entry is ever nailed down, how do you know when you are reading an entry that someone hasn’t just interfered with it, making it thoroughly unreliable? The early years of Wikipedia were dogged by this suspicion, and many people – including a lot of schoolteachers and university lecturers who could remember the distant days before 2002 when books were books and editors actually edited – were openly derisive of a work of reference that appeared to make no effort to discriminate between good information and bad. It is easy to assume that some version of Gresham’s Law, which states that bad money will always drive out good, must apply to the circulation of facts as well. Why would anyone with good information want to put it in a place where bad information could contaminate it at the touch of a button? Wouldn’t they choose to keep it to themselves, or at the very least give it to someone who could recognise its true value, leaving open-access encyclopedias to the mercies of all the flakes and grudge-bearers who want to use its veneer of objectivity to force their craziness down other people’s throats? Well, the answer is apparently not. One of the remarkable achievements of Wikipedia is to show that on the internet Gresham’s Law can work in reverse: Wikipedia has turned into a relatively reliable source of information on the widest possible range of subjects because, on the whole, the good drives out the bad. When someone sabotages or messes with an otherwise sound entry, there are plenty of people out there who see it as their job to undo the damage, often within seconds of its happening. It turns out that the people who believe in truth and objectivity are at least as numerous as all the crazies, pranksters and time-wasters, and they are often considerably more tenacious, ruthless and monomaniacal. On Wikipedia, it’s the good guys who will hunt you down.

I recommend you read the entire Runciman article. He considers some interesting issues. For example, Runciman discusses the apparently now-common suggestion in the sciences that academic works be published in draft form and that readers of such draft works be allowed to discuss, critique, and edit the draft works. This sort of suggestion is not far removed from the sort of collaborative, or "distributed," yet professional process of development that Spindle Law contemplates. (However, Spindle Law may be even a mite more radical -- because it is possible that the collaboration of many legal professionals will lead to statements of legal rules and principles that are far different from the initial foundation that an editor [such as P. Tillers] provides to get the work underway. [Lawyers, after all, are a contentious lot: contention is a major part of the reason for their existence.] Spindle Law's founders and this Spindle Law editor do not expect that the initial foundation for a particular area of the law will undergo a radical transformation. But Spindle Law is a new kind of enterprise and only time will tell precisely how the experiment plays out.)

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Criminal Lawyer?

See Joe Ryan, "Attorney to the stars is accused of murder," Star-Ledger (May 21, 2009)

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Japanese "Lay Judge System" Starts on May 21

See this article in the Japan Times Online.

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Exculpatory Polygraph Test Results Found Unreliable and Inadmissible by Federal Trial Court

United States v. Moultrie, 552 F. Supp. 2d 598, 599-600 & 602 (N.D. Miss. 2008) (criminal defendant sought to introduce exculpatory results of privately-administered polygraph tests; "In U.S. v. Posado, the Fifth Circuit overturned the per se inadmissibility of polygraph evidence. 57 F.3d 428 (5th Cir. 1995). In making this determination, the Fifth Circuit reviewed the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) analysis of Fed. R. Evid. 702, which governs the admissibility of expert testimony. The Posado panel stated that Rule 702 requires that the 'trial judge make initial determinations under Rule 104(a) that the preferred evidence possesses sufficient evidentiary reliability to be admissible as scientific, technical, or other specialized knowledge and that the proffered evidence is relevant in the sense that it will assist the trier of fact to understand the evidence or to determine a fact in issue.' 57 F.3d at 432."; "This court has thoroughly considered all of the testimony and scientific evidence presented by Moultrie. However, the court finds more persuasive the study performed by the National Academy of Sciences. This study is the most comprehensive study on the subject and the scholars involved actually reviewed some of the very studies discussed by Dr. Raskin during his direct examination. Notably, the Academy's 2003 conclusion that polygraphs work at a rate above chance, but below perfection has not moved far from the Office of Technology Assessment's conclusion twenty years earlier that polygraph examinations work better than chance, but with a rate of significant error. The court finds that the defendant has not established that the science behind polygraph examinations is sufficiently reliable to be deemed admissible. Accordingly, Moultrie's motion to admit the results of his polygraph examinations must be DENIED."

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A Failure of Imagination and Intellectual Rigor: Hearsay before the Rejuvenated Commissions

The workings of civil and criminal justice generally depend less on high-level legal abstractions than on nitty-gritty rules that regulate proceedings such as adjudication. This is one hard lesson of the military commissions experiment; many observers belatedly discovered that a key variable in the workings of this system was the treatment of hearsay.

That lesson has not been fully learned, however. The New York Times reports that the Obama administration plans to keep the military commission system. The Obama administration also apparently recognizes that the treatment of hearsay is a key ingredient in this commission system. However, lamentably, the best that the Obama administration can do, apparently, is to shift the burden on the question of the admissibility of hearsay:

Hearsay, for example, is generally not allowed in American courts. In Mr. Bush’s military commission system, it was allowed unless the defendant could prove it was unreliable. Mr. Obama’s plan would shift the burden, allowing its use only if the prosecution can prove its reliability. (Id.)

This solution appears "liberal," I suppose. However, it does nothing to resolve the hard questions -- such as (i) How many resources and how much effort must the government expend to locate and produce "unavailable" hearsay declarants and have them testify at a commission proceedings? ["Billions for Guantanamo, but not a (metaphorical) farthing for the defense?"], (ii) To what extent should a detainee have the right to inquire into the character, motivations, etc., of an absent hearsay declarant?, (iii) Precisely what sorts of security considerations justify the government's refusal to produce a witness or provide evidence about an absent hearsay declarant?, and (iv) How are commission judges to assess the reliability, trustworthiness, or credibility of an absent hearsay declarant and any incriminating statement such a declarant allegedly made and to what extent are military commission judges capable of making such a determination given whatever evidence is available to them (if not to detainees or counsel for detainees)?

N.B. It has been noted that one of the great weaknesses of the Supreme Court of the United States as presently constituted is that only one of the Justices has any significant experience with trials and pre-trial investigation. Perhaps the same weakness afflicts President Obama's legal advisers. Rules of evidence are just not very "sexy," it seems. If that's what the leaders of our society think, they have learned nothing from legal realism.

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