Obama's Order

The NYTimes reports today that President Obama said:

We’ve also ordered BP to pay economic injury claims, and we will make sure they pay every single dime owed to the people along the Gulf Coast.

Is it impertinent to ask whether President Obama has the authority to order BP "to pay economic injury claims"? Is it possible that only the judiciary has the authority to issue such an order? (I will have to brush up on Constitutional Law. [Didn't President Obama claim that he taught Constitutional Law at Chicago?])

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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.

Another (Probable) International Workshop (Conference)

Cardozo School of Law and the Technical University of Munich are planning (hoping) to hold an international workshop or conference in February of 2011.

Theme: On Proportionality and Justice – Quantitative Aspects of Justice and Fairness

Venue: Cardozo School of Law, Yeshiva University, New York, New York 10003

The forthcoming workshop is the successor to the workshop held in Munich on January 6 & 7, 2010. (The January 2010 workshop was sponsored by TUM and Ludwig-Maximilians-Universität München [University of Munich].)

For details about the (forthcoming) 2011 workshop or conference please get in touch with me or with

Dr. dr. (UBL) Rainhard Z. ("Zvi") Bengez
Department of Philosophy of Science
Technology, and Engineering
Carl von Linde Academy
Technische Universitaet Muenchen
Arcisstrasse 21
D-80333 Muenchen
Germany
Telephone: +49.(0)89.289.25367
Fax: +49.(0)89.289.25362
E-mail: bengez@cvl-a.tum.de

More details about the 2011 workshop -- this interdisciplinary workshop -- will be posted soon. We hope to see you there!

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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.

International Evidence Conference

The University of Sydney (Australia) will hold an international evidence conference on September 24 & 25, 2010.

The conference's theme: 21st Century Challenges in Evidence Law: International and Comparative Perspectives

For details contact

David Hamer
Associate Professor (Evidence and Proof)
Faculty of Law
The University of Sydney
Rm No 516, New Law Building, The University of Sydney NSW 2006
T +61 2 9351 0242 | F +61 2 9351 0200
david.hamer@sydney.edu.au

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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 Law of Large Numbers

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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.

Slate on Elizabeth Loftus, Memory & the Myth of Repressed & Recovered Memory

Slate is publishing a fascinating series of articles on Professor Elizabeth Loftus and her studies of memory and repressed and recovered memory. The series starts here. If you claim to be a well-educated person, you should read these articles.

But the articles overdo the praise for Loftus: she cannot be given sole credit for debunking "repressed and recovered memory." (In any event, U.S. States and jurisdictions have not yet reached a consensus that "repressed and recovered memory" is junk science. Social psychoanalysis suggests that the political and social pressures for the opposite conclusion remain strong -- too strong. For example, in Massachusetts the careers of a number of prominent politicians were partially built on the zealous pursuit of some cases based substantially on "repressed and recovered memories.")

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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 Great Judge: The Hon. Jack B. Weinstein

Today's online New York Times has an article about Judge Jack B. Weinstein. The article describes (how accurately or inaccurately, I do not know) Judge Weinstein's efforts to avoid imposing a harsh sentence on a man accused and convicted of downloading pornographic images of children; the article describes Judge Weinstein's efforts to avoid the efforts of his superiors on the Second Circuit Court of Appeals to force Weinstein to impose the harsh sentence that Weinstein is apparently so determined not to impose.

As the article states, this is "quintessential Weinstein." His former colleague John S. Martin reportedly said, "Jack is somebody who will step out and do what he thinks is right and take his chances of being overturned by an appeals court. ... He sees the injustice in these things and he tries to do something about it."

I would not have had the courage to do what Judge Weinstein routinely does. This is one reason why I decided long ago I never wanted to be a judge.

Judge Weinstein is one of the great judges of the 20th and 21st centuries. This is not just because this 88 year-old man voluntarily carries a full caseload, continues to author many speeches and articles, and has an original and powerful perspective on evidentiary processes, including a willingness to consider the bearing of formal statistical evidence and probabilistic argument in forensic proof. Judge Weinstein is a great judge also because he has never lost sight of the idea that law is or ought to be about justice and that law ought to be humane.

Now it is true that many injustices have been committed in the name of justice. But it is also true that many crimes have been committed in the name of law bereft of justice. (Think, e.g., of Nazi or Stalinist judges.) This is an instance in which I have to say that I know a just man when a see one: in Weinstein I see a just, humane, and wise man and judge.

It is almost literally a crime that our society could not bring itself to make Judge Jack B. Weinstein a member of our society's supposedly most-elevated legal institution, the Supreme Court of the United States. Instead we generally (but, thankfully, not always) elevate technocrats and bureaucrats to that high bench. May God forgive us.

N.B. I do not know if Pres. Obama's nominees have empathy. However, I do know that "empathy" is not a dirty word.

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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.

But This Book May Be Interesting

See Lorraine Daston & Peter Galison, Objectivity (2007).

Laorraine Daston has written some fascinating books.

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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.

Do Not Read This Book

I have vowed not to read any book with the subtitle "A Life."

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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.

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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.

Book Review

Bernard Robertson, "Comparative Criminal Process", [2010] New Zealand Law Journal 122 (book review):

[Mirjan Damaska's] career is celebrated in a collection of essays edited by John Jackson, Maximo Langer and Peter Tillers Crime, Procedure and Evidence in a Comparative and International Context (Hart Publishing, 2008).

Like all such books of essays, the book covers a range of subject matter, not all of which may be of interest to all readers. It is, however, quite common for evidence to be taught by academics also interested in criminal law and procedure and even criminal justice issues, since the boundaries between these subjects can be porous. All such academics will want access to this book, at least in their libraries.

[snip, snip]

It can readily be seen, then, that this book contains much that touches on current debates in New Zealand and in particular will be of interest to those engaged in reviewing the performance of the Evidence Act 2006. That Act is causing fundamental questions to do with the meaning of relevance and prejudice to appear in court in a way that they did not when these principles were unstated. Each of the papers also serves as a good signpost to other writing in the same area. Honours and Masters students studying evidence or criminal procedure should be reading the relevant papers in this book. Likewise, advanced level comparative law students should be contemplating whether comparative method is useful in these areas of law, rather than just in the traditional subjects of contract and property law.

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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.

Scott Turow on the Hazards of Improved Forensic Technology: Or: a Reminder that DNA May Be Gold but It Ain't Platinum

In a NYTimes podcast Scott Turow discusses his new novel Innocent, which is a sequel to his novel Presumed Innocent. Almost eight minutes into the podcast Turow comments on the changes in the handling of evidence in criminal cases, the foremost of which, he says, is the use of DNA evidence. Turow says, "[H]ad Rusty Sabich [the "hero" of Presumed Innocent] been tried a couple of years later than 1986 ..., his goose would have been cooked because of DNA because of course it is Rusty's DNA that was found in the victim, Carolyn Polhemus."

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The dynamic evidence page

What Genius Is at Harvard Law School

"[Professor Charles Fried] also credits her [Elana Kagan] with arranging a faculty lounge so it offered free lunch and large tables, where faculty could sit and get to know one another. 'It was an absolute stroke of genius,' Mr. Fried said." (Wall Street Journal (May 12, 2010))

And I always thought that one had to write a great article or a good book. Silly me.

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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.

Proof as Temporal Process

It is important to think of the law of evidence as part of a temporal process ("evidentiary processes associated with litigation"), and not just as a body of rules that regulate the admissibility of evidence at trial and a few other questions that arise at trial. Litigators, of course, know that the law of evidence is part of a temporal process. Many law teachers have also acknowledged or affirmed that the law of evidence is part of a process. However, most courses in the law of evidence still treat the law of evidence mainly as a body of rules about the admissibility of evidence and about the standards the trier of fact should use to evaluate the evidence that is presented to it at trial. Of course, bar exams, which view the law of evidence in traditional academic terms, make it hard for teachers of the law of evidence to adopt a radically different perspective: Law students rightly expect to learn the legal rules they need to know to pass the bar exam.

It is also important to view the law of evidence from the perspective of epistemology. But that's another (important) matter.

It is also important to view the law of evidence from the perspective of social values. But that is, again, another (important) matter.

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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.

Dodo Justice

For a (legal) fight about the "[allegedly] wrongful exhumation and cremation of Dodo, a mixed breed dog who emigrated with plaintiff from China to the United States," see Man Hung Lee v. Hartsdale Canine Cemetery, Inc., --- N.Y.S.2d ----, 2010 WL 1704846, N.Y.City Ct., Apr 26, 2010. The trial judge observed that "[p]laintiff's affection for Dodo and her commitment to spend money for the care and well-being of her dog was further shown by proof that in the past she had expended ten-thousand dollars for the surgical implant of a pacemaker inside Dodo." Id. n. 1. The trial judge further noted that the New York legislature (not having had more important business to attend to at the time) had solemnly declared:

The legislature hereby finds and declares that the relationships that humans develop with other members of the animal kingdom that are taken into our homes and kept as pets are unique and special. These relationships can enrich our lives and increase our happiness. Even after the death of a pet, human attachment to the memory of the pet often remains very strong and many people feel the need to memorialize their love for their animal by burying their pet in a pet cemetery. Pet cemeteries, their managers and owners have a special responsibility to their customers who have entrusted their pets' remains with them. These pet cemeteries have a duty to act in an ethical and lawful manner to prevent grieving pet owners from experiencing further any emotional pain or financial manipulation. Perpetrations of fraud against grieving pet owners are unconscionable.

The legislature further finds and declares that the people of this State have a vital interest in the establishment, maintenance and preservation of pet cemeteries and pet crematoriums and the proper operation of the businesses and individuals which own and manage same. This article is determined an exercise of the police powers of this State to protect the well-being of our citizens, to promote the public welfare, to promote the health of the public and to prevent pet cemeteries and pet crematoriums from falling into disrepair and dilapidation and becoming a burden on the community."

Wigmore's wisdom (and mine) -- about the probative force of circumstantial evidence -- was enlisted by the trial judge to help resolve the dispute.

The pet cemetery counterclaimed for breach of contract.

Sadly, Dodo -- or, in any event, her former owner -- lost. The pet cemetery prevailed on its counterclaim: "[D]efendant has established by a preponderance of the evidence the existence of an enforceable agreement to pay a yearly charge for the annual care of Dodo's plot and plaintiff's breach thereof. Judgment awarded on defendant's counterclaim in the sum of one-hundred and forty-five dollars, this amount representing unpaid fees for annual care between 2001-2004."

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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 Mini-History of Police Officer Gang Experts -- Courtesy of the Second Circuit

United States v. Meija, 545 F.3d 179, 189-190 (2d Cir. 2008):

In the 1980s, a new type of “skilled witness” began emerging: the law enforcement officer. In criminal cases, the Government began calling law enforcement officers to testify as experts on what we referred to as “the nature and structure of organized crime families.” United States v. Daly, 842 F.2d 1380, 1388 (2d Cir.1988). This Court first reviewed a challenge to the use of such an expert in United States v. Ardito, 782 F.2d 358 (2d Cir.1986). The Government had called an FBI agent to testify as an expert about terms such as “captain,” “capo,” “regime,” and “crew.” Id. at 363. We upheld the admission of that expert testimony because it “aided the jury in its understanding of” recorded conversations between the two defendants. Id. Furthermore, we noted, the district court had reminded the jury that the defendants there had not been charged with any conduct relating to organized crime. Id.

One year later, we upheld the admission of expert testimony by a law enforcement officer on the related matter of the meaning of messages written in code. United States v. Levasseur, 816 F.2d 37, 45 (2d Cir.1987). Upholding such testimony was consistent with pre- Ardito cases where we and other Circuits had allowed law enforcement officers to testify as experts about the meaning of jargon relating to narcotics trafficking. E.g., United States v. Borrone-Iglar, 468 F.2d 419, 421 (2d Cir.1972) (upholding a law enforcement officer's testimony “concerning the narcotics vernacular used in [recorded] telephone conversations”); see also United States v. Theodoropoulos, 866 F.2d 587, 590-91 (3d Cir.1989) (describing testimony “concerning the meaning of ... coded conversations” as “the paradigm situation for expert testimony under Rule 702”) (overruled on other grounds).

In subsequent years, we have encountered novel uses of these “officer experts” and approved of their testifying on a broader range of issues. For example, in United States v. Daly, 842 F.2d 1380 (2d Cir.1988), where the defendants were charged with “various crimes arising out of activities of the Gambino crime family,” we upheld the expert testimony of an FBI agent who “identified the five organized crime families that operate in the New York area” and “described their requirements for membership, their rules of conduct and code of silence, and the meaning of certain jargon.” Id. at 1383, 1388. After the Government had played surveillance tapes for the jury, the agent interpreted the jargon the speakers had used. Id. at 1384. This Court upheld the district court's decision to admit the agent's testimony, finding that the agent had testified about “much that was outside the expectable realm of knowledge of the average juror.” Id. at 1388. The district court's judgment that the agent's testimony would be helpful to the juror “was not unreasonable.” Id. Finally, the agent had not testified about the defendants or any of the charged offenses. Id. The only offense element to which the agent had testified “was the existence of a RICO enterprise, as he gave his understanding of the existence of organized crime and the Gambino family.” Id.

Since Daly, we have repeatedly upheld the admission of similar testimony. See, e.g., United States v. Locascio, 6 F.3d 924, 936 (2d Cir.1993) (upholding an FBI agent's expert testimony about the internal operating rules of organized crime families, the meaning of recorded conversations, and the identification of members of the Gambino crime family); United States v. Feliciano, 223 F.3d 102, 109 (2d Cir.2000) (upholding an FBI agent's expert testimony about “the structure, leadership, practices, terminology, and operations of [a street gang, Los Solidos]”); United States v. Matera, 489 F.3d 115, 121 (2d Cir.2007) (upholding the admission of an officer's expert testimony “about the composition and structure of New York organized crime families” and observing that the district court had limited the expert's testimony to general information rather than information about the defendants themselves). Our decision to permit such expert testimony reflects our understanding that, just as an anthropologist might be equipped by education and fieldwork to testify to the cultural mores of a particular social group, see Dang Vang v. Toyed, 944 F.2d 476, 481-82 (9th Cir.1991) (upholding the district court's admission of expert testimony on Hmong culture), law enforcement officers may be equipped by experience and training to speak to the operation, symbols, jargon, and internal structure of criminal organizations. Officers interact with members of the organization, study its operations, and exchange information with other officers. As a result, they are able to break through the group's antipathy toward outsiders and gain valuable knowledge about its parochial practices and insular lexicon. Allowing law enforcement officers to act as experts in cases involving these oft-impenetrable criminal organizations thus responds to the same concerns that animated the enactment of the criminal laws that such organizations (and their members) are typically charged with violating, such as the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68, and the more recent Violent Crimes in Aid of Racketeering Act, id. § 1959. See Organized Crime Control Act of 1970, Pub.L. 91-452 pmbl., 84 Stat. 922, 923 (1970) (“[O]rganized crime continues to grow because of defects in the evidence-gathering process of the law inhibiting the development of the legally admissible evidence necessary to bring criminal ... sanctions ... to bear on the unlawful activities of those engaged in organized crime....”).

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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 Limits of Gang Expert Testimony

In State v. McDaniel, --- P.3d ----, 2010 WL 1694522 (Wash.App. 2010), a certain Miller -- a Tacoma police department detective -- listened to over 70 hours of tapes of telephone conversations that alluded to various nefarious plans and activities. One the actors mentioned in the conversation was "Tony Guns." The trial court in one of the two cases consolidated for appeal allowed Miller to testify as a gang expert. Miller testified that "Tony Guns" was in fact the defendant in the case (whose real name was not Tony Guns, but McDaniel). Miller's opinion (he testified) was based in part on the 70+ hours of tapes of telephone conversations he listened to and in part on interviews Miller conducted with various people during his investigation. The issue of the basis of this gang expert's testimony about the defendant's nickname came up on appeal as a Confrontation Clause issue. Washington State's Court of Appeals (division 2) wrote:

Miller's testimony about McDaniel's nickname underscores the tension between the designation of an expert under ER 702, allowing the expert to testify to opinions and inferences, and the protections of the confrontation clause. In ruling that Miller had personal knowledge of McDaniel's nickname, the trial court apparently understood Miller's testimony to fall within the ambit of ER 705-that is, expert testimony regarding inferences made in reliance on information learned during an investigation.

¶ 30 The Second Circuit recently addressed this issue in United States v. Mejia, 545 F.3d 179 (2d Cir.2008). There, a police officer testified as a gang expert, not only about the structure and activities of the gang to which the defendants allegedly belonged, but about particular facts relating to the defendants' crimes. Mejia, 545 F.3d at 186-87. The officer testified to some information that he learned during custodial interrogation of other members of the same gang. Mejia, 545 F.3d at 188 n. 3, 199.

¶ 31 On appeal, the Second Circuit reversed the convictions because the gang expert's testimony “addressed matters that the average juror could have understood had such factual evidence been introduced” and held that it was not “acceptable to substitute expert testimony for factual evidence of murder in the first instance.” Mejia, 545 F.3d at 195. We excerpt only part of the court's thorough explanation of this problem:

Yet despite the utility of, and need for, [police gang] expertise of this sort, its use must be limited to those issues where sociological knowledge is appropriate. An increasingly thinning line separates the legitimate use of an officer expert to translate esoteric terminology or to explicate an organization's hierarchical structure from the illegitimate and impermissible substitution of expert opinion for factual evidence. If the officer expert strays beyond the bounds of appropriately “expert” matters, that officer becomes, rather than a sociologist describing the inner workings of a closed community, a chronicler of the recent past whose pronouncements on elements of the charged offense serve as shortcuts to proving guilt. As the officer's purported expertise narrows from “organized crime” to “this particular gang,” from the meaning of “capo” [FN15] [FN15. The organized crime slang word “capo”-a captain in a Mafia family-is an example of what an expert officer might properly explain for the jury. Mejia, 545 F.3d at 189.] to the criminality of the defendant, the officer's testimony becomes more central to the case, more corroborative of the fact witnesses, and thus more like a summary of the facts than an aide in understanding them. The officer expert transforms into the hub of the case, displacing the jury by connecting and combining all other testimony and physical evidence into a coherent, discernible, internally consistent picture of the defendant's guilt.

In such instances, it is a little too convenient that the Government has found an individual who is expert on precisely those facts that the Government must prove to secure a guilty verdict-even more so when that expert happens to be one of the Government's own investigators.

Mejia, 545 F.3d at 190-91. Because the officer in Mejia repeated what he heard from others instead of piecing together and analyzing relevant information for himself, the court held that he based part of his expert testimony on inadmissible hearsay and violated the confrontation clause. 545 F.3d at 198-99.

¶ 32 Here, Miller testified in pretrial hearings that he learned information that led him to believe that McDaniel used the name “Tony Guns” by questioning unidentified people, including, but not limited to, Yarbrough's former girl friend and a fellow incarcerated gang member. At trial, none of the people who identified McDaniel as “Tony Guns” testified. Miller simply identified “Tony Guns” as McDaniel. Based on the way Miller obtained the information, his testimony did not require gang expertise. None of the people with firsthand knowledge of this factual evidence testified at trial and none were subject to defense cross-examination.

I'm not so sure there is a good line to be drawn -- either for constitutional purposes or for purposes of the nonconstitutional rules of evidence -- between a gang expert's testimony about the nicknames used by members of a gang and a gang expert's "sociological" testimony about matters such as the command structure of a gang. In what pertinent sense is testimony about matters such as the command structure of some gang not "factual"? (It's no explanation to say that such testimony is about a bigger gang than the gang that is involved in the trial of some specific individual. Presumably testimony about the command structure of "organized crime," the "Sicilian mafia," or whatnot is admissible in such cases only if the trial court believes the testimony may shed light on the activities of the particular gang involved in the case [and on the activities of the specific gang member who is on trial].)

Mush, mush! It's all mush!

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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.

Gang Behavior as Evidence of an Individual's Behavior

I have been skimming judicial opinions involving gangs and evidence of gang behavior. Many of these cases -- most of them -- seem to originate in California.

When gang behavior is offered to show an individual's behavior, these cases raise many issues. Among them are:

1. Is a particular set of people a gang or not a gang? By what criteria (if any are explicit) is this classification or judgment made?

2. Is some gang at time T-1 the same or substantially the same as at time T-2? (How does the gang expert know?)

3. Is a branch of some gang in place 1 the same as the branch of the gang in place 2?

3A. Are there substantial variations in the behavior or characteristics of the chapters or subparts of this or that gang?

4. Does a gang in place 1 belong to the same gang that a gang in place 2 does?

5. Is the behavior of members of some gang uniform or substantially uniform? If not, is the behavior of individuals who take the part of particular types of members of the gang -- e.g., the "gang clown" -- uniform or substantially uniform?

6. What evidentiary basis does a "gang expert" (typically a police officer) typically have for saying that such and such a group is a gang or that such-and-such a gang in place 1 and a gang in place 2 are part of the same gang or that members of such and such a gang -- or gangs in general? -- adhere to such and such rituals or have such and such attitudes or have such and such beliefs? Personal observation of gang behavior? Statements made by apparent gang members? Statements made by instructors in police academies? Statements made on the internet (which are or are not vetted for accuracy?)?

The "knowledge base" that is often available to "gang experts" seems to leave a lot of opportunities for urban myths to flourish there. This is not to say that police officers never know nuttin' useful about gang behavior in the neighborhoods in which the police officers prowl. It is to say that it is awfully hard to evaluate the typical gang expert's claim that he or she knows the behavior of such and such a gang and how some individual members of that gang behave, feel, or think.

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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 Seminar in Scientific & Expert Evidence: Tentative Syllabus

A Seminar in Scientific & Expert Evidence
Fall Semester, 2010
Professor Peter Tillers
Cardozo School of Law
[very rough & incipient draft of syllabus]

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How This Course Works

This course attempts to combine (i) consideration of fundamental epistemological & inferential issues, (ii) examination of the relationship between expert and scientific evidence, on the one hand, and the design or structure of a system of adjudication, on the other hand; and (iii) careful dissection of some specific types of expert and scientific evidence.

Your principal job in this seminar is to (i) study at least two substantial books or other literature with differing or opposing views about one of the problems listed below, (ii) lead a class discussion of that problem, and (ii) write a paper that discusses that problem.

In your class discussion and in your paper you must carefully describe the differing or opposing views and you must evaluate the differing views critically.

One week before the scheduled class discussion of your problem, you must distribute (by e-mail) some background reading that will prepare the class for your class presentation. All members of the seminar must read those handouts in advance.

Unless you have my permission, you must pick one of the topics listed below, and the literature you choose to study and discuss must include at least two starred pieces of literature shown below. (The two pieces of literature must take different positions, though not necessarily directly opposing positions.) Of course, you are encouraged to mention literature in addition to the two pieces of literature that will be the focus of your discussion and your paper.

If you wish to do so, you can pair up with another member of the course so that one of you presents one view of the problem in question and the other presents the differing or opposing view. If you do this, you will have a debate. Such a debate would be entertaining and interesting for the rest of us. But perhaps not for you. It's your choice.

During the first seven weeks of the semester I will try to introduce you to the topic of scientific and expert evidence. (See below.) There are assigned readings for that introduction. (Sometimes you will think you're back in college. That's good!)

I look forward to seeing you in the fall.

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Required books:

E.D. Klemke, Robert Hollinger & David Rudge with A, David Kline, Introductory Readings in the Philosophy of Science (Prometheus 3d ed., 1998) (cited here as "Introductory Readings")

Andre Moenssens, Carol Henderson & Sharon Portwood, Scientific Evidence in Civil and Crminal Cases (Foundation 5th ed. 2007) (cited here as "Moennssens Scientific")

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I. General Introduction to Expert & Scientific Evidence

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A

Review of Principal American Rules & Leading Cases on Expert and Scientific Evidence

Frye v. United States (1923)
Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)
Kumho Tire Company, Ltd v. Carmichael (1999)
Federal Rule of Evidence 702 & Legislative history of 2000 amendment

 

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The Nature of Science: The Standard Model; Science Relativized; Science Rehabilitated?
(two weeks)

Aristotelian & Medieval Methods & Errors

Christopher Shields, Aristotle on Science in Aristotle, Stanford Encyclopedia of Philosophy (2008)

Skim Sections 5-9 of Ralph McInerny, "Saint Thomas Aquinas," Stanford Encyclopedia of Philosophy (1999, rev. 2009)

Skim Sections 2-5 of Juergen Klein, "Francis Bacon," Stanford Encyclopedia of Philosophy (2003)

The Standard Model (from mid-19th century? - ca. 1960s)

Editors' Notes on Carl Hempel in E.D. Klemke, Robert Hollinger & David Rudge with A, David Kline, Introductory Readings in the Philosophy of Science pp. 199-205 (Prometheus 3d ed., 1998)

Carl G. Hempel, "Studies in the Logic of Explanation," Introductory Readings at pp. 206-234

Karl Popper, "Science: Conjectures and Refutations," Introductory Readings at pp. 38-47

Wesley Salmon, "Scientific Explanation: How We Got from There to Here," Introductory Readings at pp. 241-263

Science Relativized

John Ziman, "What Is Science?," Introductory Readings at pp. 48-53

Paul Feyerabend, "How to Defend Society against Science," Introductory Readings at pp. 54-65

N.R. Hanson, "Observation," Introductory Readings at pp. 339-351

Thomas S. Kuhn, "Objectvity, Value Judgment, and Theory Choice," Introductory Readings at pp. 435-450

Science Rehabilitated?

Carl G. Hempel, "Scientific Rationality: Analytic vs. Pragmatic Perspectives," Introductory Readings at pp. 451-464

Jean Bricmont & Alan Sokal, Defense of a Modest Scientific Realism (2001)

 

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C

Science, Logic, Laws, Generalizations, Mathematics & Probability
(two weeks)

Deduction

Introductory Paragraph, Section 1 & Section 2 in J.C. Beall, Logical Consequence Stanford Encyclopedia of Philosophy (2005)

Induction

Introductory Paragraph & Sections 1.2 - 4 in John Vickers, The Problem of Induction Stanford Encyclopedia of Philosophy (2006, revised 2010)

Abduction

Section 3 in Robert Burch, Charles Sanders [Saunders] Peirce Stanford Encyclopedia of Philosophy (2009)

Classification: Subsumption, Similarity & Analogy, Fuzzy & Rough Sets, Metaphor, or Impenetrable Perceptual & Brain Wiring?

[assignment forthcoming]

Science, Mathematics, Probability & Statistics

[other readings to be determined]

Simulated dice games that illustrate the product rule (assuming independence):

1, 2, 6, or 9 dice; 1,10, 20, or 100 rolls

two dice; results

1 or 2 dice thrown up to 500x

More material on probabilities

The centrality of h/f in avant garde forensic theory

Lempert, "Modeling Relevance"

Tillers, "Making (Inverted) Bayesian Thinking More Intuitive"

Optional reading: A more elaborate (i.e., more rigorous & more comprehensive) intuitive explanation of Bayesian logic: Eliezer Yudkowsky, "An Intuitive Explanation of Bayesian Reasoning"

 

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D

Tacit & Subconscious Knowledge & Inference; Intuition in Inference -- in Science?

File from Wikimedia Commons. Created by Edward H. Adelson

Review Kumho
Hermann von Helmholtz
Peter Tillers, Unconscious -- and Remarkably Complex! -- Inference (Nov. 15, 2007) (blog post)
Peter Tillers, Perceptual Errors (July 24, 2007) (blog post)
United States v. Llera Plaza, 179 F. Supp. 2d 492 (E.D.Pa. 2002), vacated United States v. Llera Plaza, 188 F. Supp. 2d 549 (E.D. Pa., 2002)

 

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E

Science in an Adversary System

John Langbein, "The Criminal Trial before the Lawyers," 45 University of Chicago Law Review 263 (1978); John Langbein, "The German Advantage in Civil Procedure," 52 U. Chi. L. Rev. 823, 826-27 (1985); Ronald J. Allen et al., "The German Advantage in Civil Procedure: A Plea for More Details and Fewer Generalities in Comparative Scholarship," 82 Nw. U. L. Rev. 705 (1988); Online Ads; Transcript of Expert's Pretrial Questioning in the Michaels Case; The Many Incarnations of Dr. Death; Federal Rule of Evidence 706

 

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II. Possible Discussion & Paper Topics:

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Ian Hacking once said that science involves(sometimes?
always?) "speculation, calculation, and experiment."
Represening and Intervening at p. 215.

Daubert's Definition of Science

*Karl R. Popper, The Logic of Scientific Discovery (Routledge 1959, 1968, 172, 1980)
*Karl R. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge (Routledge & Kegan 1963, 1965, 1969; reprinted 1974, 1976, 1978, 1984. and 1985; 1989, reprinted 1991 & 1992)
*Karl R. Popper, Realism and the Aim of Science (Routledge 1983, paperback 1985; reprinted 1992 & 1994)
*Thomas Kuhn, The Structure of Scientific Revolutions (Chicago, 2nd ed. 1969; 3rd ed. 1996)
*Paul Feyerabend, Against Method (3d edn. 1993)
*Susan Haack, Defending Science -- within Reason: Bteween Scientism and Cynicism (Prometheus 2003)
*Ian Hacking, Representing and Intervening: Introductory Topics in the Philosophy of Science (Cambridge 1983)
*David Stove, Scientific Irrationalism: Origins of a Postmodern Cult (Transaction Publishers 2001, paperback 2007)
*Alan Sokal & Jean Bricmont, Fashionable Nonsense: Postmodern Intellectuals' Abuse of Science (Picador 1998)
*James Franklin, What Science Knows and How It Knows It (Encounter Books 2009)
*Matteo Motterlini, ed., For and Against Method: Imre Lakatos and Paul Feyerabend (Chicago 1999) (a delightful book!)
*Michael Friedman, Dynamics of Reason (CSLI 2001)
*Nancy Cartwright, The Dappled World: A Study of the Boundaries of Science (Cambridge 1999, reprinted 2001 & 2003)
*Lorenzo Mangnani, Abduction, Reason, and Science: Processes of Discovery and Explanation (Kluwer 2001)

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Scientific Evidence in an Adversary System: (Corrupt) Expertise & Experts for Sale?

*Peter W. Huber, Galileo's Revenge: Junk Science in the Courtroom (1991 & BasicBooks 1993)
*David L. Faigman, Legal Alchemy: The Use and Misuse of Science in the Law (W.H. Freeman & Co. 2009, 2000)
*Mike Redmayne, Expert Evidence and Criminal Justice Chapter 7 (Oxford 2001)
*Deidre Dwyer, The Judicial Assessment of Expert Evidence (Cambridge 2008)
*National Academies of Sciences, Strengthening Forensic Science in the United States: A Path Forward (National Academies Press 2009) (online & free) (selected parts of book; you choose the selections). See also Special Issue: Forensic Science For The 21st Century: The ASU Conference, 9 Law, Probability and Risk (April 2010)
*Elisabetta Grande, "Dances of Criminal Justice: Thoughts on Systemic Differences and the Search for the Truth," in Johhn Jackson, Maximo Langer & Peter Tillers, eds., Crime, Procedure and Evidence in a Comparative and International Context 146 (Hart 2008)

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Hard Science versus Soft Science versus Nonscientific Expert Knowledge versus Ordinary Knowledge:
Is There a Difference between between Hard Science and Soft science
and, if so,
What Is that Difference?
and
How Can You Tell (i) Whether a Soft Science Is a Good Science or Just Junk or (ii) Whether a Nonscientist Expert Is an Expert or Just a Charlatan?
And How Ordinary Is Ordinary Knowledge Anyway?

Review Kumho
"The Natural & Social Sciences," in E.D. Klemke, Robert Hollinger & David Rudge with A, David Kline, Introductory Readings in the Philosophy of Science pp. 103-189 (Prometheus 3d ed., 1998)
*Alexander Rosenberg, Philosophy of Social Science (Westview 3d ed., 2008)

*Is Double-Blind Proficiency Testing the Answer?

Do Astrologers Qualify as Experts? Are There Dumb Barometers That Work? See *Paul R, Thagard, "Why Astrology Is a Pseudoscience," Introductory Readings 66
*Testing the performance of black boxes
*Roger Park, "Signature Identification in the Light of Science and Experience," 59 Hastings Law Journal 1101 (2008).

*Ian Hacking, The Social Construction of What? (Harvard 1999)
*Nancy Cartwright, Hunting Causes and Using Them: Approaches in Philosophy and Economics (Cambridge 2007)

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Racial Profiling

*Frederick Schauer, Profiles, Probabilities and Stereotypes (Harvard 2003)

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Fingerprint Evidence

Introduction & Preparation: Moenssens Scientific Chapter 10 p. 615 (paper presenter will assign specific material)

Mark Twain, The Tragedy of Pudd'nhead Wilson and the Comedy of Those Extraordinary Twins (1894) (available in numerous reprints)
*Lyn Haber & Ralph Norman Haber, "Scientific Validation of Fingerprint Evidence Under Daubert," 7 Law Probability & Risk 87 (2008)
*Jennifer Mnookin, "The validity of latent fingerprint identification: confessions of a fingerprinting moderate," 7 Law Probablity and Risk 127 (2008)
*Jennifer L, Mnookin, "Of Black Boxes, Intruments, and Experts: Testing the Validity of Forensic Experts," 5 Episteme 343 (2008)
*Michael D. Risinger, et al., “The Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectation and Suggestion,” 90 California Law Review 1 (2002)
*United States v. Havvard, 117 F. Supp. 2d 848, 855 (2000); United States v. Plaza, 179 F. Supp. 2d 492 (E.D.Pa. 2002), vacated United States v. Llera Plaza, 188 F. Supp. 2d 549 (E.D. Pa., 2002); United States v. Crisp, 324 F.3d 261 (4th Cir. 2003) (challenge to both handwriting identification evidence and fingerprint evidence rejected); State v. Langill, Docket No 05-S-1129 (N.H. 2007); Brandon Mayfield Case

See also 7 Law, Probability and Risk No. 2

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Handwriting Identification

Introduction & Preparation: Moenssens Scientific Chapter 7 p. 358 (focus on material on handwriting) (paper presenter will assign specific material)

The Dreyfus Case

*United States v. Hines, 55 F. Supp. 2d 62(D.Mass. 1999) (Gertner, J.); United States v. Mooney, 315 F.3d 54 (1st Cir. 2002); cf. United States v. Green, 405 F. Supp. 2d 104(D.Mass. 2005) (Gertner, J.) (ballistics); United States v. Crisp, 324 F.3d 261 (4th Cir. 2003) (challenge to both handwriting identification evidence and fingerprint evidence rejected)

*D. Michael Risinger, Mark Denbeaux & Michael J. Saks, "Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting Identification Expertise," 137 University of Pennsylvania Law Review 731 (1989); Andre A. Moenssens, "Handwriting Identification Evidence In The Post-Daubert World," 66 University of Missouri at Kansas City 251 (1997)

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Are Gang Experts Experts?

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Memory; Repressed & Recovered Memories; Hypnotism; Guided Imagery; Similar Matters

*Ellen Bass & Laura Davis, The Courage to Heal: A Guide for Women Survivors of Child Sexual Abuse (1988); Ellen Bass & Laura Davis, The Courage to Heal: A Guide for Women Survivors of Child Sexual Abuse (4th ed., 2008); Wikipedia Article
*Dorothy Rabinowitz, No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of Our Times (Wall Street Journal Book, Free Press 2003)

Commonwealth v. Shanley, 455 Mass. 752, 766, 919 N.E.2d 1254, 1266 (Jan. 15, 2010)
Quattrocchi 1; Quattrocchi 2; Quattrocchi 3
Logerquist v. McVey
State v. Hungerford
Paul Ingram
State of New Jersey v. Michaels

*Martin A. Conway, Recovered Memories and False Memories (Oxford 1997)
*Elizabeth Loftus & Katherine Ketcham, The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse (1994, paperback 1996)
*Daniel L. Schachter, The Seven Sins of Memory: How the Mind Forgets and Remembers (Mariner Books, 2002)
*Ian Hacking, Rewriting the Soul: Multiple Personality and the Sciences of Memory (Princeton 1995)
*August Piper, Linda Lillevik & Roxanne Kritzer, What's Wrong with Believing in Repression?: A Review for Legal Professionals, 14 Psychology, Public Policy & Law 223 (2008)

Other material:

Wikipedia on memory 
Skeptic's Dictionary (by Robert Todd Carroll) on memory
Stanford Encyclopedia of Philosophy on memory

Hypnosis (legal issues)

People v. Shirley (1982)
People v. Hughes (1983)
Rock v. Arkansas (1987)

For the U.S. Supreme Court's later (re-)interpretation of Rock, see United States v. Scheffer (1998).

American federal constitutional limits on retroactive extensions of statutes of limitations periods for criminal prosecutions:

Stogner v. California, 539 U.S. 607 (2003) (this case involved extension of limitations period for "sex-related child abuse crimes"; the extension was held unconstitutional)

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Syndromes

Sexual Abuse Accommodation Syndrome; Child Sexual Abuse Accommodation Syndrome; Rape Trauma Syndrome; Battered Spouse Syndrome; Death Row Syndrome; Munchausen Syndrome by Proxy; Battered Child Syndrome;  Battered Patient Syndrome; Justice Obsession Syndrome; Organic Delusional Syndrome

Introduction & Preparation: Moenssens Scientific Section 21.08 p. 1342, Section 21.09.3-4 pp. 1352-1357, Section 23.05 p. 1436, Section 23.10 p. 1441

Estelle v. McGuire, 502 U.S. 62 (1991) (battered child syndrome)
People v. Bledsoe, 681 P.2d 291 (Cal. 1984) (rape trauma syndrome)
Cal. Evidence Code Section 1107

*David L. Faigman, "The Battered Woman Syndrome and Self-Defense: A Legal and Empirical Dissent," 72 Virginia Law Review 619 (1986); David L. Faigman & Amy J. Wright, "The Battered Woman Syndrome in the Age of Science," 39 Arizona Law Review 67 (1997)
*Robert P. Mosteller, "Syndromes and Politics in Criminal Trials and Evidence Law," 46 Duke Law Journal 461 (1996)
*John Monahan, Laurens Walker & Gregory Mitchell, "Contextual Evidence of Gender Discrimination: The Ascendance of 'Social Frameworks,'" 94 Virginia Law Review 1715 (2008)

Note: selected cases on syndrome evidence

 

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Insanity & Mental Disorder: Fact or Social Construct?

 

Introduction & Preparation: Moenssens Scientific Chapter 20 Part III pp. 1278-1291, Part IV pp. 1291-1306, Chapter 21 Parts I & II pp. 1321-1342 (paper presenter will assign specific material)

*Ian Hacking, The Social Construction of What? (Harvard 1999) (esp. Chapter 4) & *Ian Hacking, Rewriting the Soul: Multiple Personality and the Sciences of Memory (Princeton 1995)
*Allan v. Horwitz, Creating Mental Illness (Chicago 2002)

 

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The New Language of Science: Probability and Statistics

Induction, Statistics, Generalizations & Individualized Justice

In Life and Fate, c. 19, p. 94 (1980, translated by Robert Chandler, 1985), Vasily Grossman wrote:

There is a terrible similarity between the principles of Fascism and those of contemporary physics.

Fascism has rejected the concept of a separate individuality, the concept of ‘a man’, and operates only with vast aggregates. Contemporary physics speaks of the greater or lesser probability of occurrences within this or that aggregate of individual particles. And are not the terrible mechanics of Fascism founded on the principle of quantum mechanics, of political probability?

Fascism arrived at the idea of the liquidation of entire strata of the population, of entire nations and races, on the grounds that there was a greater probability of overt or covert opposition among these groupings than among others: the mechanics of probabilities and of human aggregates.

The Case of SIDS (Sudden Infant Death Syndrome)

*Wilson v. Maryland

Material on probability theory:

Simulated dice games that illustrate the product rule (assuming independence):

1, 2, 6, or 9 dice; 1,10, 20, or 100 rolls

two dice; results

1 or 2 dice thrown up to 500x

More Material on Probabilities

Prosecutor's Fallacy (which mathematicians view as an example of the more general fallacy of transposing probabilities)

*The Sally Clark Case:

Sally Clark - victim of a miscarriage of justice

Blog, July 14, 2005: SIDS a/k/a Cot Death & the Doctrine of Chances in the UK: The Sally Clark Case

Blog, Dec. 3, 2003: SIDS, Statistics, Accidents, Genetics, & Criminal Guilt – and, for Connoisseurs of the Law of Evidence, the "Doctrine of Chances"

Helen Joyce, Beyond Reasonable Doubt

Compilation of Well-Reasoned Newspaper Articles about Sally Clark Case

"Sally Clark Doctor Wins GMC case" -- BBC Feb. 17, 2006

Wikipedia: Prosecutor's Fallacy and the Sally Clark Case

Cf. Evaluating Legal Evidence

N.B. Sally Clark apparently committed suicide on March 15, 2007. See this Wikipedia entry

The Shonubi Case & The Reference Class Problem

*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"); Joint Report (Testimony) of Schum & Tillers (Dec. 21, 1994) in United States v. Shonubi; United States v. Shonubi, 895 F.Supp. 460 (E.D.N.Y.) ("Shonubi III") (Weinstein, J.); United States v. Shonubi ("Shonubi IV"); United States v. Shonubi, 962 F. Supp. 370, 375 (E.D.N.Y. 1997) ("Shonubi V"(!)); Peter Tillers, "Introduction: Three Contributions to Three Important Problems in Evidence Scholarship," 18 Cardozo Law Review 1875 (1997) (draft of pertinent part of article, bereft of footnotes, available here); Mark Colyvan, Helen M. Regan & Scott Ferson, "Is It a Crime to Belong to a Reference Class?," in Henry E. Kyburg, Jr. & Maraiam Thalos, eds., Probability Is the Very Guide of Life 331 (2003); Peter 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).

The Reference Class Problem and the Problem of Induction

Carl Hempel (maximal specificity)
*Nelson Goodman, Fact, Fiction, and Forecast (2d ed., 1965)
*Alan Hájek, The reference class problem is your problem too 156 Synthese 563 (2007)
*D.C. Stove, The Rationality of Induction (1986)

Fuzzy or Rough Reference Classes? Analogy? Metaphor? Brain Wiring?

*Bart Kosko, Fuzzy Thinking: The New Science of Fuzzy Logic (1993)
*Susan Haack, Deviant Logic, Fuzzy Logic: Beyond the Formalism (Chicago 1974, 1996)
*Timothy Williamson, Vagueness (Routledge 1994)
*Scott Brewer, Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument By Analogy, 109 Harv. L. Rev. 923-1028 (1996)

Cf. Edward Levi, Introduction to Legal Reasoning (Chicago 1949 & revised 1962); H.L.A. Hart, The Concept of Law (1961, 2d ed. 1997)

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Can Scientific and Expert Evidence Be (Made) Understandable to Triers of Fact in Legal Proceedings?

*Mike Redmayne, Expert Evidence and Criminal Justice Chapter 4 (Oxford 2001)
*Deidre Dwyer, The Judicial Assessment of Expert Evidence (Cambridge 2008)

J. Weinstein's experiments (e.g., glossaries); Nance on DNA

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Is There a "Gold Standard" in Forensic Evidence (or in Evidence Pure and Simple)? Is DNA Evidence the Gold Standard?

Introduction & Preparation: Moenssens Scientific Chapter 17 p. 1082 (paper presenter will assign specific material)

NYTimes quotations aplenty: 1/quadrillion etc.; sub-populations; source uncertainties; operator (lab) error; 1/quadrillion if done right (have you heard this before?; cf. cold fusion experiments); Wisconsin case

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Mechanical Detection of Deception

 

Introduction & Preparation to Polygraph Evidence: Moenssens Scientific Sections 20.12-20.20 pp. 1389-1408

Frye
United States v. Scheffer
*National Academies of Sciences Report on Polygraphy (2003)

fMRI

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Mr. Astronomer, "What does that galaxy really look like? What is its true color?"

Science & Visual Images

Photos; Movies; Day-in-the-Life Films; Simulations; Virtual Reality Films; Mind Maps

 

Introduction & Preparation: Moenssens Scientific Chapter 2 p. 112 (paper presenter will assign specific material)

Federal Rules of Evidence 401-402; Federal Rule of Evidence 403; Federal Rule of Evidence 702; Federal Rule of Evidence 901
*Stuart K. Card, Jock D. Mackinlay & Ben Shneiderman, Readings in Information Visualization: Using Vision to Think (Academic Press 1999)
Alva Noe & Evan Thompson, eds., Vision and Mind: Selected Readings in the Philosophy of Perception (MIT 2002)
*Sidney Perkowitz, Empire of Light: A History of Discovery in Science and Art (Joseph Henry Press 1996) (esp. but not only chapter 2, "Seeing Light")

File from Wikimedia Commons. Created by Edward H. Adelson
Are squares A and B different colors? Or are they the same color? See Wikipedia article. See Proof.
Why does the illusion work? See Explanation.
What is the moral of this story?
*Timothy van Gelder, What Is Argument Mapping? (Feb. 17, 2009)
Peter Tillers, Picturing Inference (2004 & 2005)
*Irwin Rock, The Logic of Perception (MIT 1985)
*Gerald Edelman, Second Nature: Brain Science amd Human Knowledge (Yale 2006)

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Literature

*Ellen Bass & Laura Davis, The Courage to Heal: A Guide for Women Survivors of Child Sexual Abuse (1988); Ellen Bass & Laura Davis, The Courage to Heal: A Guide for Women Survivors of Child Sexual Abuse (4th ed., 2008); Wikipedia Article

*Erica Beecher-Monas, Evaluating Scientific Evidence: An Interdisciplinary Framework for Intellectual Due Process (Cambridge 2007)

*Scott Brewer, "Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument By Analogy," 109 Harv. L. Rev. 923-1028 (1996)

*Scott Brewer, "Scientific Expert Testimony and Intellectual Due Process, 107 Yale L.J. 1535

*Nancy Cartwright, The Dappled World: A Study of the Boundaries of Science (Cambridge 1999, reprinted 2001 & 2003)

*Susan A. Clancy, The Trauma Myth (Basic Books 2009)

*Mark Colyvan, Helen M. Regan & Scott Ferson, "Is It a Crime to Belong to a Reference Class?," in Henry E. Kyburg, Jr. & Maraiam Thalos, eds., Probability Is the Very Guide of Life 331 (2003)

*Martin A. Conway, Recovered Memories and False Memories (Oxford 1997)

*Deidre Dwyer, The Judicial Assessment of Expert Evidence (Cambridge 2008)

**Gerald Edelman, Second Nature: Brain Science amd Human Knowledge (Yale 2006)

*David L. Faigman, Legal Alchemy: The Use and Misuse of Science in the Law (W.H. Freeman & Co. 2009, 2000)

*David L. Faigman, "The Battered Woman Syndrome and Self-Defense: A Legal and Empirical Dissent," 72 Virginia Law Review 619 (1986); David L. Faigman & Amy J. Wright, "The Battered Woman Syndrome in the Age of Science," 39 Arizona Law Review 67 (1997)

*Paul Feyerabend, Against Method (3d edn. 1993)

*James Franklin, What Science Knows and How It Knows It (Encounter Books 2009)

*Michael Friedman, Dynamics of Reason (CSLI 2001)

*Timothy van Gelder, What Is Argument Mapping? (Feb. 17, 2009)

*Alvin I. Goldman, Knowledge in a Social World (Oxford 1999)

*Nelson Goodman, Fact, Fiction, and Forecast (2d ed., 1965)

*Elisabetta Grande, "Dances of Criminal Justice: Thoughts on Systemic Differences and the Search for the Truth," in Johhn Jackson, Maximo Langer & Peter Tillers, eds., Crime, Procedure and Evidence in a Comparative and International Context 146 (Hart 2008)

*Susan Haack, Defending Science -- within Reason: Bteween Scientism and Cynicism (Prometheus 2003)

*Susan Haack, Deviant Logic, Fuzzy Logic: Beyond the Formalism (Chicago 1974, 1996)

*Ian Hacking, Logic of Statistical Inference (Cambridge 1965, reprinted numerous times)

*Ian Hacking, Representing and Intervening (Cambridge 1983)

*Ian Hacking, Rewriting the Soul: Multiple Personality and the Sciences of Memory (Princeton 1995)

*Ian Hacking, The Social Construction of What? (Harvard 1999)

*Alan Hájek, The reference class problem is your problem too 156 Synthese 563 (2007)

Hanson, Is There Logic of Scientific Discovery? 38 The Australasian Journal of Philosophy 91 (1960)

*Hanson, Patterns of Discovery: An Inquiry Into the Conceptual Foundations of Science (Cambridge 1958)

*Peter W. Huber, Galileo's Revenge: Junk Science in the Courtroom (1991 & BasicBooks 1993)

*E.T. Jaynes, Probability Theory: The Logic of Science (Cambridge 2003) (only for people with considerable proficiency in mathematics and probability theory)

Philip Jenkins, Pedophiles and Priests: Anatomy of a Contemporary Crisis (Oxford 1996)

**E.D. Klemke, Robert Hollinger & David Rudge with A, David Kline, Introductory Readings in the Philosophy of Science (Prometheus 3d ed., 1998) (required book)

Arthur Koestler, The Act of Creation (1964, reprinted 1989)

*Bart Kosko, Fuzzy Thinking: The New Science of Fuzzy Logic (1993)

*Thomas Kuhn, The Structure of Scientific Revolutions (Chicago, 2nd ed. 1969; 3rd ed. 1996)

Imre Lakatos, Proofs and Refutations: The Logic of Mathematical Discovery (Cambridge 1976)

*John Langbein, "The German Advantage in Civil Procedure," .....; Ronald J. Allen, ...

*Elizabeth Loftus & Katherine Ketcham, The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse (1994, paperback 1996)

*Lorenzo Mangnani, Abduction, Reason, and Science: Processes of Discovery and Explanation (Kluwer 2001)

Grover Maxwell & Robert M. Anderson, Jr., eds., Induction, Probability and Confirmation (University of Minnesota 1975) (vol. VI Minnesota Studies in the Philosophy of Science)

*Andre A. Moenssens, "Handwriting Identification Evidence In The Post-Daubert World," 66 University of Missouri at Kansas City 251 (1997)

**Andre Moenssens, Carol Henderson & Sharon Portwood, Scientific Evidence in Civil and Crminal Cases (Foundation 5th ed. 2007) (cited as "Moennssens Scientific") (required book)

*John Monahan, Laurens Walker & Gregory Mitchell, "Contextual Evidence of Gender Discrimination: The Ascendance of 'Social Frameworks,'" 94 Virginia Law Review 1715 (2008)

*Matteo Motterlini, ed., For and Against Method: Imre Lakatos and Paul Feyerabend (Chicago 1999)

*Robert P. Mosteller, "Syndromes and Politics in Criminal Trials and Evidence Law," 46 Duke Law Journal 461 (1996)

*National Academies of Sciences, Strengthening Forensic Science in the United States: A Path Forward (National Academies Press 2009) (online & free)

*Roger Park, "Signature Identification in the Light of Science and Experience," 59 Hastings Law Journal 1101 (2008)

*Sidney Perkowitz, Empire of Light: A History of Discovery in Science and Art Chapter 2 (Joseph Henry Press 1996) ("Seeing Light")

*August Piper, Linda Lillevik & Roxanne Kritzer, What's Wrong with Believing in Repression?: A Review for Legal Professionals, 14 Psychology, Public Policy & Law 223 (2008)

*Michael Polanyi, Personal Knowledge: Towards a Post-Critical Philosophy (Chicago 1958, 1962)

*Karl R. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge (Routledge & Kegan 1963, 1965, 1969; reprinted 1974, 1976, 1978, 1984. and 1985; 1989, reprinted 1991 & 1992)

*Karl R. Popper, The Logic of Scientific Discovery (Routledge 1959, 1968, 1972, 1980)

*Karl R. Popper, Realism and the Aim of Science (Routledge 1983, paperback 1985; reprinted 1992 & 1994)

*Dorothy Rabinowitz, No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of Our Times (Wall Street Journal Book, Free Press 2003)

*Mike Redmayne, Expert Evidence and Criminal Justice (Oxford 2001)

*D. Michael Risinger, Mark Denbeaux & Michael J. Saks, "Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting Identification Expertise," 137 University of Pennsylvania Law Review 731 (1989)

*Daniel L. Schachter, The Seven Sins of Memory: How the Mind Forgets and Remembers (Houghton Mifflin 2001)

*Frederick Schauer, Profiles, Probabilities and Stereotypes (Harvard 2003)

Tom Siegfried, Odds Are, It's Wrong: Science fails to face the shortcomings of statistics Science News (March 27, 2010)

*Alan Sokal & Jean Bricmont, Fashionable Nonsense: Postmodern Intellectuals' Abuse of Science (Picador 1998)

*David Stove, Scientific Irrationalism: Origins of a Postmodern Cult (Transaction Publishers 2001, paperback 2007)

*D.C. Stove, The Rationality of Induction (1986)

*Peter 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)

*Peter Tillers, "Introduction: Three Contributions to Three Important Problems in Evidence Scholarship," 18 Cardozo Law Review 1875 (1997) (draft of pertinent part of article, bereft of footnotes, available here)

*Peter Tillers, Picturing Inference (2004 & 2005)

*Peter Tillers, Unconscious -- and Remarkably Complex! -- Inference (Nov. 15, 2007) (blog post)

Mark Twain, The Tragedy of Pudd'nhead Wilson and the Comedy of Those Extraordinary Twins (1894) (available in numerous reprints)

*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"); Joint Report (Testimony) of Schum & Tillers (Dec. 21, 1994) in United States v. Shonubi; United States v. Shonubi, 895 F.Supp. 460 (E.D.N.Y.) ("Shonubi III") (Weinstein, J.); United States v. Shonubi ("Shonubi IV"); United States v. Shonubi, 962 F. Supp. 370, 375 (E.D.N.Y. 1997) ("Shonubi V"(!)); Peter Tillers, "Introduction: Three Contributions to Three Important Problems in Evidence Scholarship," 18 Cardozo Law Review 1875 (1997) (draft of pertinent part of article available here); Mark Colyvan, Helen M. Regan & Scott Ferson, "Is It a Crime to Belong to a Reference Class?," in Henry E. Kyburg, Jr. & Maraiam Thalos, eds., Probability Is the Very Guide of Life 331 (2003); Peter 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).

*Timothy Williamson, Vagueness (Routledge 1994)

Cf. Edward Levi, Introduction to Legal Reasoning (Chicago 1949 & revised 1962); H.L.A. Hart, The Concept of Law (1961, 2d ed. 1997)

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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.

What Is Science?

Ian Hacking, who has been interested in the nature and role of experiment in science, once said that science involves (sometimes? always?) "speculation, calculation, and experiment." Representing and Intervening: Introductory Topics in the Philosophy of Natural Science 215 (1983). Ian Hacking has been a student of the history of science, and he has been influenced by the relativizing tendencies of theorists such as Thomas Kuhn. But, he says, he, Hacking, is not a relativist. He might be called -- he has called himself -- a "pragmatic realist."

&&&

The dynamic evidence page

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

Progress(?) in Developing New Course in Scientific & Expert Evidence

Having received a flood of responses :-) to my plea for suggestions about the design of my fall semester course in scientific evidence, I am happy to report I have made some progress -- I think I have made some progress -- in designing the course.

My course is a seminar (I think, but I await word from the administration). My course will cover some of the usual topics -- such as fingerprint evidence, mechanical lie detectors, syndrome evidence, and the like. But my course will not focus on the "technical" aspects of these topics (though it won't ignore them). I will focus on the basic epistemological issues raised by the use of hard science, soft science, and nonscientific expert evidence. (These questions cannot be avoided.)

I have told my students they must pick and discuss two major pieces of literature with different views on some topic. I am suggesting they pick asterisked literature from the following list:

*Ellen Bass & Laura Davis, The Courage to Heal: A Guide for Women Survivors of Child Sexual Abuse (1988); Ellen Bass & Laura Davis, The Courage to Heal: A Guide for Women Survivors of Child Sexual Abuse (4th ed., 2008); Wikipedia Article

*Erica Beecher-Monas, Evaluating Scientific Evidence: An Interdisciplinary Framework for Intellectual Due Process (Cambridge 2007)

*Scott Brewer, "Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument By Analogy," 109 Harv. L. Rev. 923-1028 (1996)

*Scott Brewer, "Scientific Expert Testimony and Intellectual Due Process, 107 Yale L.J. 1535

*Nancy Cartwright, The Dappled World: A Study of the Boundaries of Science (Cambridge 1999, reprinted 2001 & 2003)

*Susan A. Clancy, The Trauma Myth (Basic Books 2009)

*Martin A. Conway, Recovered Memories and False Memories (Oxford 1997)

*Deidre Dwyer, The Judicial Assessment of Expert Evidence (Cambridge 2008)

*Gerald Edelman, Second Nature: Brain Science amd Human Knowledge (Yale 2006)

*David L. Faigman, Legal Alchemy: The Use and Misuse of Science in the Law (W.H. Freeman & Co. 2009, 2000)

*David L. Faigman, "The Battered Woman Syndrome and Self-Defense: A Legal and Empirical Dissent," 72 Virginia Law Review 619 (1986); David L. Faigman & Amy J. Wright, "The Battered Woman Syndrome in the Age of Science," 39 Arizona Law Review 67 (1997)

*Paul Feyerabend, Against Method (3d edn. 1993)

*James Franklin, What Science Knows and How It Knows It (Encounter Books 2009)

*Michael Friedman, Dynamics of Reason (CSLI 2001)

*Timothy van Gelder, What Is Argument Mapping? (Feb. 17, 2009)

*Alvin I. Goldman, Knowledge in a Social World (Oxford 1999)

*Goodman, Fact, Fiction, and Forecast

*Susan Haack, Defending Science -- within Reason: Bteween Scientism and Cynicism (Prometheus 2003)

*Susan Haack, Deviant Logic, Fuzzy Logic: Beyond the Formalism (Chicago 1974, 1996)

*Ian Hacking, Logic of Statistical Inference (Cambridge 1965, reprinted numerous times)

*Ian Hacking, Representing and Intervening (Cambridge 1983)

*Ian Hacking, Rewriting the Soul: Multiple Personality and the Sciences of Memory (Princeton 1995)

*Ian Hacking, The Social Construction of What? (Harvard 1999)

*Alan Hájek, The reference class problem is your problem too 156 Synthese 563 (2007)

Hanson, Is There Logic of Scientific Discovery? 38 The Australasian Journal of Philosophy 91 (1960)

Hanson, Patterns of Discovery: An Inquiry Into the Conceptual Foundations of Science (Cambridge 1958)

*Peter W. Huber, Galileo's Revenge: Junk Science in the Courtroom (1991 & BasicBooks 1993)

*E.T. Jaynes, Probability Theory: The Logic of Science (Cambridge 2003) (only for people with considerable proficiency in mathematics and probability theory)

Philip Jenkins, Pedophiles and Priests: Anatomy of a Contemporary Crisis (Oxford 1996)

E.D. Klemke, Robert Hollinger & David Rudge with A, David Kline, Introductory Readings in the Philosophy of Science (Prometheus 3d ed., 1998)

Arthur Koestler, The Act of Creation (1964, reprinted 1989)

*Bart Kosko, Fuzzy Thinking: The New Science of Fuzzy Logic (1993)

*Thomas Kuhn, The Structure of Scientific Revolutions (Chicago, 2nd ed. 1969; 3rd ed. 1996)

Imre Lakatos, Proofs and Refutations: The Logic of Mathematical Discovery (Cambridge 1976)

*John Langbein, "The German Advantage in Civil Procedure," .....; Ronald J. Allen, ...

*Elizabeth Loftus & Katherine Ketcham, The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse (1994, paperback 1996)

*Lorenzo Mangnani, Abduction, Reason, and Science: Processes of Discovery and Explanation (Kluwer 2001)

Grover Maxwell & Robert M. Anderson, Jr., eds., Induction, Probability and Confirmation (University of Minnesota 1975) (vol. VI Minnesota Studies in the Philosophy of Science)

*John Monahan, Laurens Walker & Gregory Mitchell, "Contextual Evidence of Gender Discrimination: The Ascendance of 'Social Frameworks,'" 94 Virginia Law Review 1715 (2008)

*Robert P. Mosteller, "Syndromes and Politics in Criminal Trials and Evidence Law," 46 Duke Law Journal 461 (1996)

*Matteo Motterlini, ed., For and Against Method: Imre Lakatos and Paul Feyerabend (Chicago 1999)

*National Academies of Sciences, Strengthening Forensic Science in the United States: A Path Forward (National Academies Press 2009) (online & free)

*Sidney Perkowitz, Empire of Light: A History of Discovery in Science and Art Chapter 2 (Joseph Henry Press 1996) ("Seeing Light")

*August Piper, Linda Lillevik & Roxanne Kritzer, What's Wrong with Believing in Repression?: A Review for Legal Professionals, 14 Psychology, Public Policy & Law 223 (2008)

*Michael Polanyi, Personal Knowledge: Towards a Post-Critical Philosophy (Chicago 1958, 1962)

*Karl R. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge (Routledge & Kegan 1963, 1965, 1969; reprinted 1974, 1976, 1978, 1984. and 1985; 1989, reprinted 1991 & 1992)

*Karl R. Popper, The Logic of Scientific Discovery (Routledge 1959, 1968, 1972, 1980)

*Karl R. Popper, Realism and the Aim of Science (Routledge 1983, paperback 1985; reprinted 1992 & 1994)

*Dorothy Rabinowitz, No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of Our Times (Wall Street Journal Book, Free Press 2003)

*Mike Redmayne, Expert Evidence and Criminal Justice (Oxford 2001)

*Daniel L. Schachter, The Seven Sins of Memory: How the Mind Forgets and Remembers (Houghton Mifflin 2001)

Tom Siegfried, Odds Are, It's Wrong: Science fails to face the shortcomings of statistics Science News (March 27, 2010)

*Alan Sokal & Jean Bricmont, Fashionable Nonsense: Postmodern Intellectuals' Abuse of Science (Picador 1998)

*David Stove, Scientific Irrationalism: Origins of a Postmodern Cult (Transaction Publishers 2001, paperback 2007)

*D.C. Stove, The Rationality of Induction (1986)

*Peter Tillers, Picturing Infference (2004 & 2005)

Mark Twain, The Tragedy of Pudd'nhead Wilson and the Comedy of Those Extraordinary Twins (1894) (available in numerous reprints)

*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"); Joint Report (Testimony) of Schum & Tillers (Dec. 21, 1994) in United States v. Shonubi; United States v. Shonubi, 895 F.Supp. 460 (E.D.N.Y.) ("Shonubi III") (Weinstein, J.); United States v. Shonubi ("Shonubi IV"); United States v. Shonubi, 962 F. Supp. 370, 375 (E.D.N.Y. 1997) ("Shonubi V"(!)); Peter Tillers, "Introduction: Three Contributions to Three Important Problems in Evidence Scholarship," 18 Cardozo Law Review 1875 (1997) (draft of pertinent part of article available here); Mark Colyvan, Helen M. Regan & Scott Ferson, "Is It a Crime to Belong to a Reference Class?," in Henry E. Kyburg, Jr. & Maraiam Thalos, eds., Probability Is the Very Guide of Life 331 (2003); Peter 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).

*Timothy Williamson, Vagueness (Routledge 1994)

Cf. Edward Levi, Introduction to Legal Reasoning (Chicago 1949 & revised 1962); H.L.A. Hart, The Concept of Law (1961, 2d ed. 1997)

&&&

The dynamic evidence page

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