Monday, December 23, 2002

Interregnum for an Evidence Examination -- Do You Want to Try Your Hand at an Answer?

Just a few weeks ago this blogger began a daring(!?) experiment: he began soliciting opinions from blog-folk about his projected book on general principles of evidence and proof. For the next several weeks, however, this blogspace will be bereft of new blogs about this book-writing project. This blogger -- this treatise writer! -- must grade examination answers instead. But grading exam answers is generally an extraordinarily stultifying activity. It occurred to this temporarily-stultified exam-grading blogger that some spice might be added to his life if some folks in blogland could be persuaded to submit some of their thoughts -- and possibly even some of their research -- about a question that the aforesaid blogger put to his students in an open-book take-home examination in the law of evidence:


The State of Blackacre indicts Albert for murder. The indictment charges that Albert deliberately killed Vila, his one-year old daughter, on January 5, 2002.

Albert pleads not guilty.

In her opening statement the prosecutor states that the evidence will show that Albert strangled or suffocated Vila.

In his opening statement, Albert’s counsel states that the evidence will show that Vila died of sudden infant death syndrome, a largely-unexplained tendency of infants to die spontaneously of asphyxiation.

The prosecution opens its case-in-chief by submitting evidence that establishes that (i) Vila died of asphyxiation; (ii) Vila died at home at approximately 2:00 a.m. on January 5, 2002; (iii) Albert was in the home at the time of Vila’s death and for at least several hours before and thereafter; and (iv) Vila’s dead body was discovered by Albert’s spouse Fidelia at 8:15 a.m. on January 5, 2002, upon Fidelia’s return home from a business trip.

The prosecution then – during its case-in-chief – offers to show that on three separate occasions prior to January 5, 2002, Vila, while in the sole care and custody of Albert, was rushed to the hospital, showed signs of asphyxiation, but, in each instance, was revived before any permanent harm was done. The prosecution also offers to show that on April 3, 1997, Cuddly, who was Albert’s eight-month old son, died of unexplained asphyxiation in his crib at home. Albert was home at the time. Fidelia was on a business trip away from home.

Albert’s counsel objects to these offers of evidence.

Please evaluate the prosecution’s offers of evidence.


That's the question. I freely, absolutely, utterly, and irrevocably promise not to grade your thoughts, analyses, and answers. I have enough such work on my plate already! Nonetheless, I really would like to hear your thoughts. Are there any takers?

Tuesday, December 17, 2002

Rough notes on the slowly-budding book GENERAL PRINCIPLES OF EVIDENCE AND PROOF: Installment #4: General principles of evidence and the legal prohibition against the use of "character" to show conduct

In American legal treatises and casebooks, discussions of "relevance" and "character evidence" are usually in close physical proximity. This is typically explained by the claim that the topics of "relevance" and "character" are closely related. But recently I wondered if the topic of character evidence belongs in my book, a book that aims to discuss general principles of evidence and proof (see my blog Evidence in General and Evidence in Particular, 12/13/2002), and not just the characteristics that 21st century proof in American litigation happens to have.

Although I don't believe that character evidence has an unusually close connection to the topic and principle of relevance, I have tentatively concluded that the topic of character evidence perhaps does belong in my book -- or, at least, that this topic would not be out of place in a book such as mine -- because

(i) proof in litigation always or almost always involves judgments about human action;

(ii) judgments about human conduct may be singular because human beings are, quite possibly, distinctive entities in this cosmos of ours; and

(iii) the prohibition against "circumstantial" use of character (a/k/a disposition a/k/a propensity) to show conduct invites and possibly requires careful consideration of the attributes of human beings and the distinctive patterns of inference that those distinctive attributes may generate or invite.

Cf. What Is Wrong with Character Evidence?

But perhaps my thinking has been unduly influenced by my sense of what my publisher would like to see in my book. What do you think? Do you think that my book should or should not consider the character evidence rule? (Is it the case that the sort of justification I have given above would serve as a justification for discussion of any feature of modern American proof in litigation?)


Given what I have just said (above), isn't it the case that I must also say that one of the essential attributes of proof is the making of judgments about human action? Cf. blog "Installment #3," 12/15/2002.

Sunday, December 15, 2002

Further crude notes on the incipient book GENERAL PRINCIPLES OF EVIDENCE AND PROOF: Installment #3: Attributes, Apples, Context, and Oranges

Suppose that good reasons allow me to say that proof in litigation has certain necessary or essential features.

Suppose, further, that good reasons – general ontological considerations, for example – allow me to say that proof in litigation necessarily involves space, time, human action, human interaction, law, inference, uncertainty, persuasion, (social & individual) choice (decision), scarce resources, social formation (a/k/a social engineering), symbolic social expression, and other such matters.

Put aside the question of whether the matters I have just listed are truly “necessary” – assume that they are necessary – and consider this question: What shall I call matters such as those that I have listed above?

Shall I call such matters attributes (or “properties”) of proof in litigation?

A large part of me likes this sort of nomenclature – the nomenclature of “attributes” and “properties.” This is because systems of proof in litigation vary and different systems of proof give a different “twist” to matters such as “persuasion” and “social symbolic expression.” I find it congenial to refer to “persuasion” and similar matters as “attributes” because popular usage, it seems to me, gives the term “attributes” something of the smell of variables: ordinary linguistic usage suggests that “attributes” or “properties” are general things that are capable of taking on different values or weights.

But I remain troubled: I worry that I am mixing apples and oranges. For example, can I really refer to “space” or “time” as attributes of proof? Should I instead characterize such matters – matters such as space, time, scarce resources – as part of the necessary context (background? domain?) of judicial proof?

But does it really matter whether I call such things attributes or context? Does it matter whether I refer to the space-time continuum a necessary property of proof in litigation or whether I call it a necessary part of the background of proof in litigation?

In some fields, I notice, great importance is attached to the distinction between “attributes” and “context.” Do I have to be equally concerned about this possible distinction in the preliminary & introductory portions of a book on evidence and proof, in a book that is meant mainly for a legal audience?

I do not know the answer to my question. What do you think?


It is possible that the source of my difficulty about terminology here is a residual tendency on my part – a tendency for which my professional training may be partly responsible –, it is possible that I have a residual tendency to approach phenomena such as judicial proof inductively (or, more accurately stated, abductively) rather than from a predetermined systematic theoretical perspective: I perhaps still incline to leave some general questions unresolved, with the expectation that examination of particular examples instances or episodes of judicial proof will shed light on certain general theoretical questions, but without fully resolving them. So this is an apologia of sorts. I nevertheless worry that I am “copping out” on an important theoretical question and that I will pay the price later for my “theory-avoidance behavior” in the early part of my book (and in the early part of the writing of my book). Do you have any advice for me? Do you think I have reason to worry?

Saturday, December 14, 2002

Installment #2 of Preliminary Ruminations for Book "General Principles of Evidence and Proof":
Notes on Inference, Culture, and Evidence

Factual inference is, perhaps, an essential or necessary property of proof in litigation.

But there is more to proof in litigation ("judicial proof" for short) than unadorned factual inference.

For example, culture -- or something akin to culture -- influences the shape of factual adjudication.

Moreover, culture or received beliefs influence proof in litigation by influencing inference.

For example, in a lawsuit involving a life insurance policy, a juror might reason, "A stable married person like the insured would be unlikely to suddenly run off to the wilds of Alaska. The explanation for the insured's disappearance is probably death, not an unannounced and secretive flight to Alaska."

A different juror or jury might reason, "A person with marital responsibilities is occasionally likely to find the marital burdens too heavy and thus might well decide to run off into the Alaskan wilderness in an attempt to start life afresh."

The beliefs of my two hypothetical jurors might be characterized as [diverse] "received belief."

If so, the following chain of influence is both possible and likely:

received belief ---> inference ---> workings of judicial proof

But the foregoing influence chain does not rule out the following chain of influence:

workings of judicial proof


inference < ------------------ evidence


received belief

Ergo: it is possible that evidence as well as received belief (or culturally-transmitted beliefs or background beliefs or whatnot) is a determinant of the workings of proof in litigation.

Isn't that right?

Furthermore: although inference is influenced by both evidence and received belief, isn't it possible -- and probable -- that inference itself influences the workings of proof in litigation?

Warning!: To say that received belief and evidence influence inference is not to say -- necessarily -- that inference is reducible to evidence and received belief. Inference, many of us think, involves in part an act of judgment -- the drawing of a conclusion -- by the human organism, an act that may, of course, be influenced by evidence and received belief -- and by a wide variety of other matters [such as emotions and memory].


Your thoughts?


A plug: some of the above matters may be discussed at a forthcoming conference, "Inference, Culture, and Ordinary Thinking in Dispute Resolution," April 27-29, 2003.

Friday, December 13, 2002

Evidence in General and Evidence in Particular

The book that I am writing will be called, perhaps, GENERAL PRINCIPLES OF EVIDENCE AND PROOF.

But, as a subtitle will reveal, my book is not just about "abstract" principles of evidence and proof. I want to write a book that says something useful about the workings of a particular system or systems of proof at a particular time and in a particular society: I want to write a book that says something useful about the workings of the law of evidence and proof in the United States in the early part of the 21st century.

It is possible that the "general nature of judicial proof" cannot possibly generate or support any useful statements about particular (and actually-existing) systems of judicial proof. I reject this possibility. Suppose I am entitled to do so.

But suppose, further, that I have no "theory of everything" that identifies the variables that make particular actual systems of proof operate and look the way that they actually do; i.e., suppose that I believe -- as I do -- that, insofar as my eye can tell, only "accident" -- i.e., matters other than the general attributes of proof -- can explain many of the workings and features of particular actually-existing systems of proof. Under these circumstances -- given the limits of my knowledge -- am I in a position to say -- am I conceivably in a position to say -- anything useful about the relationship between the general nature of proof and the particular characteristics of particular actually-existing systems of proof in litigation?

My tentative answer -- my tentative hypothesis -- runs a bit like this: proof in litigation has certain necessary attributes (and these necessary attributes are the "general" attributes of proof in litigation); but these necessary attributes do not (wholly) determine, or produce, the particular mix of characteristics, features, and workings that characterize any particular actually-existing system of proof -- each society is free to give its own "twist" to the necessary attributes of judicial proof; but it is possible that each essential attribute of judicial proof has some "causal potency," some influence on the shape and workings of any particular actually-existing system of judicial proof; and perhaps "thick" description of a particular actually-existing system of proof will illustrate how such causal potency might work and perhaps -- if nothing else -- such thick, close description will provide useful fodder for further ruminations about the real-world implications and effects of the necessary attributes of proof.

For example:

Hypothesis #1: proof in litigation occurs in space and time.

Hypothesis #2: proof in litigation is about events in space and time.

Hypothesis #3: proof in litigation is an irreversible process (see hypothesis #1).

Hypothesis #4: inference (in litigation) takes place in a limited amount of time (cf. hypothesis #1).

Hypothesis #5: steps in proof (inference, investigation, etc.) effect irreversible changes (see hypothesis #3).

Are we in agreement so far?

If so, do any of these propositions shed any useful light on the American law of evidence today and, more generally, on the process of proof in litigation in the U.S. today?


Stay tuned for further ruminations.

Do you have any thoughts about my musings so far?

Wednesday, December 11, 2002

Evidence Awake

Writers quaver before criticism. Writers quaver even more before premature criticism. This is one reason why some writers develop writer's block: their work is never ready for public viewing.

Writing has one other disadvantage: writing is generally a solitary occupation. And when writing is done by writers who fear criticism, writing is an extraordinarily solitary occupation.

Solitary is no fun.

This is why, in the months ahead, I am going to experiment with putting on public display small inchoate portions of a book -- a book on evidence -- that I am writing. My embarrassment quotient and the degree of my folly and recklessness -- and the amount of my vanity? -- will determine how much material I decide to display.

Stay tuned. The first installment may appear in 2-3 weeks.

Tuesday, October 01, 2002

Evidence Asleep

"Tillers on Evidence" must go into hibernation for a bit; other duties call.

But I shall return!

Tuesday, September 24, 2002

Mirror, Mirror on the Wall, Who Is the Most Dangerous of All?

President George W. Bush!?!?

So Yale Law School Professor Jack Balkin asserts!


Question 1: Is a judgment about the question of "most dangerous" rooted in part in judgments about responsibility for danger? (If I remember my torts and criminal law courses correctly, the answer may well be "yes." We would not blame the spherical earth for the trajectory of an intercontinental ballistic missile that incinerates a million or so people. And we might not blame the stupid person was ordered to push the launch button without realizing that (s)he was pushing a button that would result in the incineration of a million or so bodies and souls. And so on with the hypotheticals & analogies, until they become less extreme & more persuasive for present purposes.)

Question 2: Does Saddam Hussein bear any responsibility for any war that the U.S. may launch against Iraq?

Question 2A: If so, does Hussein bear more responsibility for any such war than Bush does?

Question 3: Is it pertinent that Saddam Hussein -- by at least one reputable account -- very much wants to be another Stalin?

Note: Most Russians know, even if many Americans do not, that Stalin was, by any measure, responsible for the deaths of many millions of people. (This is why informed people feel free to say that Stalin "killed" millions of people.)

Question 3A: Is it pertinent that Saddam Hussein apparently (i) murdered members of his immediate family, (ii) gassed dissident Kurds (including dissident infant Kurds), and (iii) started a war -- the Iran-Iraq war -- in which hundreds of thousands of people -- over a million people, I believe -- died?

Mirror, mirror on the wall, the question is not who is good or the best of them all, but perhaps who -- would y'all say -- is the worst of them all?

Hitler? Stalin? Pol Pot? Saddam Hussein? Or would you say: Bush?????

BTW: Roosevelt was to blame for a good part of World War II. Isn't that right? He did have the temerity to lead the U.S. into war against Hitler (and Germany).

Well, I'm naive, I know. I suppose I should not assign the lion's share of the blame for a possible war against Iraq to Mr. Saddam Hussein just because this Mr. Hussein is a tyrant and a torturer and a murderer. Isn't that right? The world, after all, is full of torturers and tyrants and murderers.

But wait! Have I not taken leave of my senses? Am I not free to celebrate the demise of a tyrant and torturer -- even if (i) the deposer of that tyrant acts more rashly than I or some other observers might like and (ii) the world remains riddled with tyrants and torturers? Am I not free to celebrate incremental victories over tyranny, torture, and murder?

Postscript: I do not believe that anything I say in this post forces me to embrace the proposition that war against Iraq is the best course to take in the near future. I really don't know what the best course of action is; I fear the possible consequences of an American-led war against Iraq in the near future. But I do know this: I have good reason to believe that Saddam Hussein has a close spiritual kinship with Stalin and Pol Pot. I also know -- I also believe -- that it is therefore inappropriate to say that Bush bears more of the blame than Hussein does for any deaths that may result from Bush's use of arms to attempt a "regime change" in Iraq.

Mirror, mirror on the wall, who is the worst and the most dangerous of them all?

(I recognize that the thin air at Yale may prevent people there from giving a plausible answer to this last question. Yale Law professors are not expected to have a great deal of comon sense. They are meant to think. Indeed, we expect Yale Law professors to think and utter provocative thoughts. Professor Balkin, I readily admit, has performed the last-mentioned service.)

Tuesday, September 17, 2002

Post-9/11 Reflections on Immigration and Liberty

A Post-9/11 View of Liberty

Late yesterday afternoon -- in the early evening -- I rode my bicycle through Battery Park City and near the site of the World Trade Center. I rode on the walkway (and bikeway) that lies along the Hudson River. When I came to the lower end of Battery Park City -- this is an area that lies near Battery Park itself --, I brought my bike to a halt. I wanted to take a good look around.

The vista was grand. Although the day had been blustery, the sky to the west was clearing -- just as the sun was setting. The dense post-9/11 ferry traffic made the Hudson's ever-churning waters even more turbulent. Looking across the Hudson, in a southerly or southwesterly direction, I could see the Statue of Liberty.

While the vista was grand, the Statue of Liberty did not look monumental; the large office towers behind me (in lower Manhattan) and the new office towers springing up on the other side of the Hudson (in New Jersey) made one of the world's largest statues look a bit shrunken. Despite this, the statue, which was caught now and then in the rays of the setting sun, made a very pleasant impression. Furthermore, even in its diminished form, the Statue of Liberty brought to my mind some events that took place half a century ago, at a time when my perspective was rather different.

Liberty as Vehicle

Liberty brought me to the United States.


A "Liberty Ship" brought me to the United States. Liberty Ships were troop carriers during World War II. They were used to transport refugees to the United States after WW II.

The Priority of Liberty

The first thing I saw in the United States was Liberty.


At dawn on a day in May of 1950 I was six years old, I was awake, and I was on the deck of the Liberty Ship that had brought my family and me (all three of us) -- and many other "Displaced Persons" -- across the Atlantic. The sun was literally rising out of the ocean in the east -- it was a rosy-fingered dawn --, the sun was just breaking above the eastern horizon when an announcement was made and somehow communicated (I spoke no English) --, an announcement was somehow communicated that our ship was nearing the harbor of New York City. I peered toward the west and saw nothing. (It was a misty morning, I think.) I looked again and I saw a large golden statute (holding a beacon) standing on the ocean water. It was the Statue of Liberty, I later learned. Moreover, this statue -- the Statue of Liberty -- was the very first thing I saw in America. And, as I have already said, the Statue of Liberty that I saw before me was -- apparently because of the rising sun behind me --, the physical symbol of liberty that I saw that day was thoroughly and brilliantly golden. (I had not been told that in America all the streets are paved in gold.)


The Moral of my Little Memoir of Liberty: It's a pretty good country over here. Let's keep it free.

Sunday, September 15, 2002

Rethinking Relevance

Perhaps you have heard it said that relevance is the first principle of the law of evidence.

A. What does this high-sounding principle mean?

1. Does it mean that irrelevant evidence is inadmissible?

2. If so, why is irrelevant background evidence -- background evidence that neither decreases or increases the probability of a fact in issue --, why is such evidence admissible?

3. And how often can it safely be said that evidence is irrelevant?

B. You may have heard it said that (i) there is a difference between relevance and weight and (ii) the weight of evidence is a question for the jury rather than the (trial) judge.

1. If the trial judge does not have the authority to weigh the probative force of evidence, how is the trial judge to determine whether an alleged risk connected with relevant evidence substantially outweighs the probative value of the allegedly prejudicial but relevant evidence?

2. If the trial judge does not have the authority to weigh evidence, how can the trial judge determine whether or not the factual conditions for the application of a privilege have been satisfied?

3. If the trial judge cannot weigh evidence, how can the trial judge determine that the evidence in a case is insufficient to support a verdict?

C. You may have heard it said that when a trial judge assesses the relevance of proffered evidence, the trial judge must assess the chain of inferences upon which the relevance of the proffered evidence depends.

1. Is the judge to assess the net force of such a chain of inferences? If so, must the trial judge assess the probative force of the proffered evidence in such circumstances in order to determine the relevance of the proffered evidence in such circumstances? But isn't it supposedly the job of the jury to weigh evidence?

1A. Don't both the relevance and the weight of evidence always depend on a multitude of ancillary inferences and assumptions and judgments?

2. If neither the offeror nor the trial judge can articulate the inferences upon which the relevance of proffered evidence depends, does it follow that the proffered evidence must be considered irrelevant? Are some sound evidentiary judgments beyond analysis or explanation?

D. You may have heard it said that proof of facts in trials is a matter of probabilities and you may have heard it said that probability determines whether or not evidence is relevant.

1. Does it follow that only probability theory can describe how factual proof works?

2. Does it follow that the law should be honest with jurors and tell jurors precisely what probabilities are necessary for various kinds of verdicts in various kinds of cases or situations?

3. Is it the case that sometimes we speak most imprecisely when we (attempt to) speak with precise numbers?

4. Are numbers (necessarily) dehumanizing? Mechanical? Inappropriately objective? Is their use emblematic of scientism? What is scientism? Is talk about scientism bunk? Philistine? Cf. James Franklin, The Sokal Hoax .

5. Do most jurors suffer from the malady of mathematical or numerical illiteracy, from "innumeracy"? Most judges? Lawyers? If so, is it possible that innumeracy -- particularly the innumeracy of legal professionals -- is the real reason why the law refuses to express burdens of proof and persuasion in numerical terms? Or is there a better reason for the seeming antipathy to numbers in this part of our law?

E. Should our system of factual proof be cleansed of the pretense(?) that the quality and quantity of proof of facts are amenable to rational analysis? Should we expressly tell judges and jurors that their intuitions about evidence and facts should be their sole guide in their efforts to determine the facts?

1. Does it follow that we should prohibit all expert testimony?

2. Does it follow that we should prohibit all mathematical evidence (including, e.g., statistical evidence in employment discrimination litigation)?


All sorts of edibles and inedibles are mushed up in the pottage of "relevance." See Rethinking Relevancy.

Saturday, September 14, 2002

The Character of Habit & The Character of Character

The American law of evidence purports to prohibit attempts to show what a person does by showing what a person is.

In other words: the law of evidence purports to prohibit attempts to prove a person's conduct on a particular occasion by showing that same person's character or disposition. See, e.g., Federal Rule of Evidence 404(a).

Courts have frequently held that this prohibition against "circumstantial character evidence" -- but when is evidence ever anything but "circumstantial"? --, courts have often held that the character evidence rule bars the use of a person's drinking habits or practices to show that that person was or was not intoxicated on a particular occasion -- at the time of an automobile accident, for example. See Advisory Committee Note to Federal Rule of Evidence 406 ("evidence of intemperate 'habits' is generally excluded when offered as proof of drunkenness in accident cases"). And courts have often reached this conclusion even though the law of evidence in every U.S. jurisdiction provides that evidence of "habit" is admissible. See, e.g., California Evidence Code Section 1105 (habit admissible).

But there are cases to the contrary. For example, consider State v. Radziwil, 235 N.J. Super. 557, 563 A.2d 856 (1989). There a New Jersey court held that a criminal defendant's drinking practices were admissible to show that the defendant had been intoxicated at the time of an autombile accident and -- furthermore -- that evidence of the defendant's drinking practices was sufficient, by itself, to support a jury verdict that the defendant had been intoxicated at the time of the accident.

The circumstances of Radziwil made the evidence of the defendant's drinking proclivities particularly probative. But is that all there is to the character evidence rule: does the prohibition against character evidence only amount to the injunction "Thou shalt not use character evidence -- unless, of course, the character evidence happens to be particularly juicy, unless it's darned good character evidence, unless, that is, the character evidence has a lot of evidentiary & inferential ooomph!"?

How pious we sometimes are about what the law does!

Is the character evidence prohibition an example of societal hypocrisy?

We -- courts, lawyers, law teachers, legislators -- claim (occasionally) that the law does not use a person's attributes, a person's character, to show a person's conduct, a person's behavior. But what on earth is the law doing when it allows the use of a criminal defendant's resentment or hatred of a victim of a murder to show that the defendant rather than someone else was probably the killer? What on earth is the law of evidence doing when it allows the use of a criminal defendant's fascination with witchcraft or voodoo to show that the defendant killed the victim of a homicide during a witchcraft or voodoo ceremony?

The evidence that happens to be barred by the rule against circumstantial character evidence is a tiny island in an ocean of admissible evidence about people's physical attributes, psychic makeup, emotional dispositions, intellectual inclinations, and world-views. It is only in some Alice-in-Wonderland that we can say that American law generally prohibits the use of human character, human dispositions, human proclivities, to show human conduct.

So what? So what if our law doesn't really --, so what if U.S. law in reality does not generally bar the use of character to show conduct?

The same question in different dress:

Putting to one side some limitations on the use of certain types of dispositions in certain kinds of situations -- limitations, for example, on the use of sexual dispositions to show certain types of sexual conduct by people in certain kinds of situations, limitations that could be preserved by carefully-tailored rules --, what would we lose if we abolished the character evidence rule?

Only some hypocrisy? Or would we lose something of value? If so, what -- precisely?

If we got rid of the character evidence rule, would we lose the presumption of innocence in criminal cases and would we effectively abandon the rule that guilt must be show beyond a reasonable doubt?

If we abolished the character evidence rule, could not the jury still be told that it can convict a defendant only if it is convinced beyond a reasonable doubt of the defendant's guilt -- and aren't juries intelligent enough to understand that it is not necessarily, very probably, or probably true that "if (s)he did it before, (s)he did it again"?

If we got rid of the character evidence rule, would law enforcement personnel abandon careful investigation and simply round up the usual suspects?

This risk -- the risk of sloppy law enforcement -- assumes, does it not, a certain amount of inferential stupidity on the jury's part -- and a considerable amount of incompetence on the part of criminal defense counsel, incompetence resulting from counsel's failure to point out at the relevant hearing or trial how law enforcement personnel conducted its investigation? (Well, o.k., given the impecunious condition of most criminal defendants, perhaps fears about incompetent representation are not baseless. But aren't there measures short of exclusion of probative evidence that will lead law enforcement personnel to conduct proper investigations?)

I can't survey all of the possible justifications for the character evidence rule. I have already done that elsewhere -- What Is Wrong with Character Evidence? -- and, besides, you wouldn't -- I assure you! --, you wouldn't want me to do that (again) here.

So, Gentle Reader(s), I leave you with these two questions:

1. Does anyone believe that character evidence was not used to prove the guilt of Timothy McVeigh or Charles Manson?

2. If not -- if you think character was indeed used to show both McVeigh's and Manson's guilt --, do you really wish that the prosecution had been barred from using evidence of McVeigh's twisted political beliefs or the Manson clan's theory of helter-skelter?

(Yes, I know, I know: these are rhetorical questions, and answers to these two questions may not prove much except the fact of your horror at McVeigh's and Manson's vile crimes. But you get my point, don't you? {'Fess up!})


But we do need a rule -- don't we? -- that would bar governments from attempting -- or that would at least limit government attempts -- to peer deeply into our souls, to look into the inner recesses of our psyches. Isn't that right? But cf. Searching for Evil: An Examination of Evil and Its Persistence in the American Legal System.

Wednesday, September 11, 2002

Evidence of a Real Law School

Many graduates of Harvard Law School who have affectionate memories of their alma matter -- and even some graduates whose memories of HLS have a somewhat different tinge -- are in the habit of referring to their alma matter as THE LAW SCHOOL.

It recently came to our attention that the alumni/ae magazine of the New York University School of Law bears the title THE LAW SCHOOL.

The thought that one of these two law schools might have exclusive ownership of the nomenclature "THE LAW SCHOOL" naturally crossed our minds. But this inchoate suspicion that the principle of non-contradiction was somehow being called into question quickly passed from our minds when the tendency of people affiliated with Harvard Law School and New York University School of Law to use self-referential, self-aggrandizing, and self-promoting nomenclature caused a rather different and more important thought to become energized in our brain coils.

While readily and rapidly recognizing that perfect justice is an impossibility on earth, scholars and administrators at the Cardozo School of Law came to appreciate that the moral and legal imperative of non-deceptive marketing makes it essential for Cardozo (the law school) to abandon prior semantic practice and choose a new title for its alumni/ae magazine, a title that recognizes Cardozo's distinctive place in legal education. After extensive deliberation, it was decided that the new title of Cardozo's alumni/ae magazine would have to be none other than "THE REAL LAW SCHOOL." We came to appreciate that only this nomenclature can circumspectly but clearly communicate to the world (and to potential tuition-paying students) the message that at Cardozo, which is a true community of scholars --, the message that at Cardozo matters such as political proclivities and wealth are not what (generally) count but that only matters such as intellectual creativity and scholarly substance (generally) do. [The word "generally" is inserted occasionally in the preceding sentence -- twice, to be precise -- in recognition of the previously-mentioned impossibility of perfect terrestrial justice. Like Immanuel Kant, Cardozo's community of scholars recognizes that human perfection lies in the struggle for perfection. {And if anything is clear, it is clear that the eminent and enlightened legal scholars at Cardozo struggle a lot -- over money, for example.}]

Veridical & evidentially-supported veritas to you all!

Sunday, September 08, 2002

DNA & the Central Park Jogger Case

DNA Redux to the Fourth Power: Thoughts Inspired by -- but Not necessarily Faithful to the Facts and Recent Developments in the Central Park Jogger "Wilding" Case

Main Scenario: Three men -- A, B & C -- are charged with collaborating in the aggravated sexual assault -- the rape -- of Vila Victim.

Question 1: If a DNA test almost conclusively shows that the semen found in Vila Victim's vagina several hours after the rape was not either A's, B's or C's, does this test show that A, B & C are not guilty of the crime charged?

Question 2: Is the analysis of Question 1 influenced by whether A, B & C can be held guilty of the crime charged -- collaboration in aggravated sexual assault (assume for now = "collaboration in rape") -- only if one of the three -- A, B or C -- raped Vila Victim?

Question 3: If the criminal liability of A, B & C requires a finding that at least one of the three defendants -- A, B or C -- must have raped Vila Victim, does it follow the DNA test in the Main Scenario (above) proves that A, B and C are not guilty of the crime charged?

Question 4: If your answer to Question 3 is yes, would your answer remain the same if you knew that the source of the supposedly exculpatory DNA is semen that was recovered from Vila Victim's vagina 24 hours after the possible rape of Vila Victim by A, B or C?

Question 5: If your answer to Question 4 is yes, would you be tempted to change your answer if the DNA test shows that it is very probable that (i) D was the source of the semen found in Vila Victim's vagina, (ii) D was Vila Victim's close male companion, and (iii) Vila Victim went home to her apartment immediately after her possible rape and spoke on the telephone with D?

Question 6: Revert to the following assumptions: (i) if A, B, and C are to be found criminally liable, one of them must have raped Vila Victim and (ii) semen is extracted from Vila Victim's vagina shortly after the (possible) rape, and (iii) a DNA test shows that the source of this semen is not A, B or C, but, rather, D, a close male companion of Vila Victim. Under these circumstances are we compelled to conclude that A, B & C are not guilty of the crime charged? Does the answer to the last question depend on whether the extraction of semen from a vagina necessarily or very probably leads to the extraction of all kinds of semen present in a vagina?

Question 7: Does the answer to Question 6 also depend on whether ejaculation and the ejection of sperm are necessary for the commission of the crime of "rape"? (But would we want to know whether extraction of fluids from a vagina by medical personnel will necessarily or very probably extract all foreign bodily fluids, skin particles, cells etc. and would we want to know whether penetration of a vagina by a penis necessarily or ordinarily leaves traces of such foreign substances even in the absence of ejaculation? {Forgive me for using this sort of language. But to pose some questions, I cannot avoid using such language.})

Question 8: Further consideration of the effect of substantive law: Does the analysis of the effect of the DNA evidence on the liability of A, B, and C depend on whether "aggravated sexual assault" can be committed without "penetration"?

The Moral of this Story: Even if we assume that DNA technology and laboratory procedures have improved so much that when a DNA test shows a "match" or "exclusion" we are effectively compelled to conclude, respectively, (i) that two samples containing DNA have a common source or (ii) that two such samples do not have a common source -- even if we assume that DNA evidence and laboratory procedures have gotten this good, the probative force of DNA evidence on a question such as criminal guilt or innocence always depends on a swarm of surrounding assumptions, evidence, and facts. Bottom line: DNA by itself never establishes a proposition such as "guilty" or "innocent."

Friday, September 06, 2002

Clever Compliment(?)

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

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

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

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

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

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

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

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

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

Wednesday, September 04, 2002

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

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

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

Tuesday, September 03, 2002

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

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

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

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

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

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

Shall we read this book together and talk about it?

Monday, September 02, 2002

Evidence News:
Academic Stuff

I. New Conference

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

II. New Book:

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

Thursday, August 29, 2002

Group-to-Individual Inference

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

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

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

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


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

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


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

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

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

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


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


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


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

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

Wednesday, August 28, 2002

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

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

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

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

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

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

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

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

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

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

Tuesday, August 27, 2002

DNA in the News: Imperfect Evidence and Imperfect Justice

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

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

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

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

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

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

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

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

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

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

Questions, questions! What about answers?

Well, consider these (limited) points:

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

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

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

Monday, August 26, 2002

Current Events

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

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

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

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

Sunday, August 25, 2002

On Doing Non-Bovine Blogging

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

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

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

Time and Justice in Massachusetts

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

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

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