Tuesday, December 27, 2005

The Law of Disorderly Conduct

One of the controversies about the 2000 US Presidential election was over spoiled ballots -- for example, about ballots on which scratches were made but no holes were punched and about ballots that were punched two or three times instead of the one time that the voting instructions mandated. I remember there was much talk about inferring the intentions of the voters in such instances. I also remember that I ventured the opinion (an opinion which achieved no resonance) that in many instances voters probably deliberately diddled and daddled and acted in strange and non-purposive ways -- that, for example, they mutilated ballots just because they felt like mutilating ballots and had no other reason or discernible reason for doing so. Do you think that in fact a substantial number of voters might have acted in such seemingly odd -- or, in any case, inexplicable -- ways when they entered the voting booth? If so, perhaps you will agree with me that there may be at least an allusive connection between it is bit and the drawing of inferences about human behavior. Perhaps one of the hypotheses that ought to be in play when we attempt to infer what a human being did (is doing or will do) is that the possibility that the human behavior in question (whatever it was) was unmotivated by any discernible purpose or principle and was not explicable by reference to any rule of any sort. So perhaps it is possible that human behavior, like events at the quantum level, is to some extent fundamentally inexplicable and unpredictable. Professor Anton Zellinger of Vienna recently said (Dennis Overbye, Quantum Trickery: Testing Einstein's Strangest Theory, NY Times Online (Dec. 27, 2005):
The world is not as real as we think.

My personal opinion is that the world is even weirder than what quantum physics tells us.

Is it possible that human beings are also more weird than most academic observers seem to think?

What Is the Moral, for the Law of Evidence, of "It from Bit"?

Dennis Overbye, Quantum Trickery: Testing Einstein's Strangest Theory, NY Times Online (Dec. 27, 2005):
In an essay recently in Nature, Dr. [Anton] Zeilinger sought to find meaning in the very randomness that plagued Einstein.

"The discovery that individual events are irreducibly random is probably one of the most significant findings of the 20th century," Dr. Zeilinger wrote.

Dr. Zeilinger suggested that reality and information are, in a deep sense, indistinguishable, a concept that Dr. Wheeler, the Princeton physicist, called "it from bit."

In information, the basic unit is the bit, but one bit, he says, is not enough to specify both the spin and the trajectory of a particle. So one quality remains unknown, irreducibly random.

As a result of the finiteness of information, he explained, the universe is fundamentally unpredictable.

"I suggest that this randomness of the individual event is the strongest indication we have of a reality 'out there' existing independently of us," Dr. Zeilinger wrote in Nature.

He added, "Maybe Einstein would have liked this idea after all."

Wednesday, December 21, 2005

An Article of Impeachment against President Richard Nixon: Illegal Electronic Eavesdropping

Article II of the articles of impeachment approved by the Judiciary Committee of the House of Representatives against Richard Nixon related to domestic electronic surveillance that Nixon ordered without judicial authorization or review. And, it might be recalled, the United States of America was very much at war at that time, in 1974.

Yes, Article II of the articles of impeachment against Richard Nixon charged that Nixon's domestic surveillance had been done "for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office." Nixon himself, however, did not see things that way: he (or his counsel) asserted that the electronic surveillance that he had authorized was justified by national security considerations. This is also the claim that the current President makes. Of course, even if one assumes that unilateral executive domestic electronic surveillance is sometimes legally permissible, the secrecy that still surrounds the domestic electronic surveillance unilaterally authorized by President Bush makes it rather difficult to determine if the surveillance unrelated to national security was carried out. In any event, the reaction of the country and Congress to Watergate and Nixon's abuses of power to Watergate effectively rejected Nixon's claim that Article II of the Constitution of the United States confers on the President unilateral and judicially-unreviewable power to conduct any electronic surveillance of U.S. citizens that the President deems to be necessary for national security.

Immanuel Kant wrote a tract called Perpetual Peace. This President should write a screed called Perpetual War. Perhaps he has already done so?

"Judge Reportedly Resigns Over U.S. Spy Program"

NYTimes Online (Associated Press story), December 21, 2005:
A federal judge has resigned from a special court set up to oversee government surveillance, apparently in protest of President Bush's secret authorization of a domestic spying program on people with suspected terrorist ties.

U.S. District Judge James Robertson would not comment Wednesday on his resignation, but The Washington Post reported that it stemmed from deep concern that the surveillance program Bush authorized was legally questionable and may have tainted the work of the court.

Monday, December 19, 2005

Flash! President Bush Nominates Representative Tom Delay ...

... for a federal judgeship and recommends that Delay be chosen as a judge of the FISA court -- Foreign Intelligence Surveillance Act court --, which secretly reviews secret applications for secret electronic eavesdropping and wiretapping in situations in which national security considerations are said to make such secrecy necessary. A classified announcement (leaked to the press) accompanying President Bush's (secret) nomination and recommendation stated that while Representative Delay's qualifications for a federal judgeship might be questioned, Mr. Delay clearly had exhibited the personal integrity and the sensitivity to civil liberties that are expected of a government official empowered to pass on the Executive's applications for permission to spy on American citizens. Defending his recommendation, President Bush stated (off the record), "Ya gotta remember that I don't have to go through FISA anyway. It's war, ya know."

Saturday, December 17, 2005

Picture-Thinking and Word-Thinking in Trials: Neo-Luddites in the Legal Academy

As a group, teachers of the law of evidence and procedure are probably not very knowledgeable about the use of computer-generated images in trials. As a group, law students seem to have more interest about matters of this sort:
Christopher J. Buccafusco, Gaining/Losing Perspective on the Law, or Keeping Visual Evidence in Perspective, 58 U. Miami L. Rev. 609, -- n.8 (2004):
Most of the scholarship in this area [use of digital media as evidence] has come from law students in law review notes. See, e.g., id.; John Selbak, Comment, Digital Litigation: The Prejudicial Effects of Computer-Generated Animation in the Courtroom, 9 High Tech. L. J. 337 (1994); Elan E. Weinreb, Note, 'Counselor, Proceed With Caution': The Use of Integrated Evidence Presentation Systems and Computer-Generated Evidence in the Courtroom, 23 Cardozo L. Rev. 393 (2001); Jill Witkowski, Note, Can Juries Really Believe What They See? New Foundational Requirements for the Authentication of Digital Images, 10 Wash. U. J.L. & Pol'y 267 (2002).
The difference between law teachers and their students may be generational. But law professors' lack of interest in and, sometimes, antipathy to the study of evidentiary use of digital images may reflect a professional academic prejudice (or preference), a prejudice in favor of the word. Many law teachers are interested in digital technology as a form of intellectual property, but this subject is very different from the use of images, whether in the classroom or the courtroom, as a means of communication.

I am skeptical that the legal profession as a whole is hostile to picture-thinking: to judge by actions, practicing lawyers -- including trial lawyers -- stand ready to embrace any technology that serves their self-oriented interests. (A hefty book for trial lawyers about visual evidence has been in the market for decades. See Gregory P. Joseph, MODERN VISUAL EVIDENCE (2003)(perhaps not the most recent edition).) It does not follow that judges are as receptive to digital images as trial lawyers are.

Not all law teachers are uninterested in the use of visual images in trials. Professor Jennifer, Mnookin, now at UCLA Law School, is perhaps the most prominent exception. See, e.g., Jennifer L. Mnookin, The Image of Truth: Photographic Evidence and the Power of Analogy, 10 Yale J. L. & Human. 1, 17 (1998). A more surprising -- and therefore more interesting -- exception is a prominent old-timer: Professor Paul Carrington of Duke University School of Law. See Paul Carrington, Virtual Civil Litigation: A Visit to John Bunyan's Celestial City, 98 Colum. L. Rev. 1516 (1998).

  • A few other law teachers with some interest in the use of visual images in trials are listed at Blog: Picturing Argument from & about Evidence in the 21st Century: A Conference (Dec. 3, 2005).
  • Some law teachers and other observers may be interested in the use of images in trials primarily because they are interested in the cultural significance of this use. However, as a weathered (wizened?) epistemologist and student of the law of evidence, I am mainly interested in the impact of images on the accuracy of factual proof. However, being philosophically inclined, I am acutely aware that it is difficult (and perhaps even unwise) to completely separate questions of knowledge from questions of value. Mainly I just want to announce that this blog does not presage my return to neo-Hegelian jargon or the use of words such as "decentered."

    Sidelight: my course in Advanced Evidence may take a gander at visual evidence and persuasion, but the extent to which this happens depends almost entirely on the preferences of the student members of this seminar. See also the nascent Visual Evidence, Argument & Persuasion Page.

    A merry and joyous Christmas to one and all!

    Saturday, December 03, 2005

    Picturing Argument from & about Evidence in the 21st Century: A Conference

    Well, if pictures of reasoning -- including reasoning from and about evidence -- are so persistent and powerful, why then there ought to be a conference -- about the visualization of evidence and inference. And such a conference will in fact take place -- in New York City (Manhattan) at Cardozo Law School in late January 2007. The conference will be called Graphic and Visual Representations of Evidence and Inference in Legal Settings. Henry Prakken is the chair of the program committee and Tom Cobb is the deputy chair of the program committee. The panelists for this two-day event include:
  • Tim van Gelder (U. of Melbourne)

  • John L. Pollock (U. of Arizona)

  • Philip Dawid (U. College London)

  • Douglas Walton (U. of Winnipeg)

  • Branden Fitelson (U. of California – Berkeley)

  • Priit Parmakson (Tallinn University, Tallinn, Estonia)

  • Dale Nance (Case School of Law)

  • William Twining (U. College London & U. of Miami)

  • Andrew Palmer (U. of Melbourne)

  • David Schum (George Mason U.)

  • Richard Lempert (U. of Michigan & National Science Foundation)

  • Henry Prakken (Utrecht University)

  • Chris Reed (U. of Dundee)

  • Vern Walker (Hofstra U.)

  • John Josephson (Ohio State University)

  • Neal Feigenson (Quinnipiac Law School)

  • Richard Sherwin (New York Law School)

  • Jennifer Mnookin (UCLA))

  • Peter Tillers (Cardozo Law School, Yeshiva University)

  • Ron Loui (Washington University, St. Louis)

  • Samuel Solomon (CEO of DOAR, Inc.)

  • Thomas Cobb (University of Washington School of Law)
  • (The names of several additional panelists will be announced soon.)

    Wigmore's Picture-Thinking

    ... but -- of course -- John Henry Wigmore got started decades ago on the business of "visualizing" complex argument. He gave us the following sorts of pictures of complex argument from evidence:

    Wigmore, however, was not the first person to diagram argument from or about evidence. William Lambarde did so in the seventeenth century -- his handbook for justices of the peace contained a diagram depicting the temporal sequence of events in issue and events that serve as evidence, or indicia, of such events in issue -- and even Lambarde's diagrams apparently drew on diagrams constructed much earlier. See B. Shapiro, INTELLECTUAL HISTORY, PROBABILITY, AND THE LAW OF EVIDENCE: "Beyond Reasonable Doubt" and "Probable Cause": Historical Perspectives on the Anglo-American Law of Evidence 152-154 (1991).

    They Also Do It in the UK: Visualize Argument

    Chris Reed and Glenn Rowe have developed argument visualization software Araucaria -- and it is free.

    Australian Mapping

    No, not mapping of Australia -- but mapping by an Australian -- Tim van Gelder. He is developing a method of argument visualization for lawyers. For details join the Austhink mailing list.

    Are There Preferred Classes of Evidence?

    Yet another court agrees that "direct" evidence is not necessarily more potent than circumstantial evidence:

    Whittington, Sr. v. The Nordham Group, 2005 U.S. App. LEXIS 25685 (10th Cir., Nov. 29, 2005) (civil action for damages under Age Discrimination in Employment Act; plaintiff was 62 years old when terminated; plaintiff relied in part on evidence showing that a similarly-situated employee of age 57 was not terminated):

    Nordam relies on cases from the Sixth, Seventh, and Eighth Circuits in arguing that we should adopt a bright-line rule that five years is an insignificant difference in age as a matter of law. None of those courts, however, applies such a bright-line rule. ...

    In our view, a definitive five-year rule is unjustified. ...

    To the extent that other circuits establish a direct-evidence requirement when the age difference is less than five years, we choose not to follow them. The authorities are legion that circumstantial evidence can be every bit as compelling as direct evidence. See, e.g., Rogers v. Missouri P. R. Co., 352 U.S. 500, 508 n.17, 77 S. Ct. 443, 1 L. Ed. 2d 493 (1957) (citing The Robert Edwards, 19 U.S. (6 Wheat.) 187, 190, 5 L. Ed. 238 (1821)) ("Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence."); United States v. Becker, 62 F.2d 1007, 1010 (2d Cir. 1933) (Hand, J.) ("The requirement [that the jury be separately charged as to circumstantial evidence] seems to us a refinement which only serves to confuse laymen into supposing that they should use circumstantial evidence otherwise than testimonial."); 1A John Henry Wigmore, Evidence 26 (Peter Tillers rev. 1983) ("Wigmore's view that circumstantial evidence may be as persuasive and as compelling as testimonial evidence, and sometimes more so, is now generally accepted."). We decline to set rigid guidelines and will leave to the jury the evaluation of the evidence, subject as always to the oversight of the district court to refuse to permit unreasonable findings.

    Cf., e.g., the recent case McEwen v. Tennessee Dept. of Safety, 173 S.W.3d 815; 2005 Tenn. App. LEXIS 157 (March 22, 2005) (dispute over forfeiture of personal property for illegal sale of controlled substances; Court of Appeals rejected owner's contention that evidence of facts warranting forfeiture was insufficient):
    Direct and circumstantial evidence is equally relevant, NEIL P. COHEN ET AL., TENNESSEE LAW OF EVIDENCE § 4.01[5], at 4-10 (4th ed. 2000), and equally probative. See, e.g., State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct. App. 1999); State v. Marsh, 278 Kan. 520, 102 P.3d 445, 450 (Kan. 2004); State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492, 502 (Ohio 1991); State v. Cherry, 361 S.C. 588, 606 S.E.2d 475, 481 (S.C. 2004); see also 1A JOHN H. WIGMORE, EVIDENCE § 26 (Tillers rev. 1983). Accordingly, litigants may prove any material fact by direct or circumstantial evidence or a combination of both, State v. Phillips, 138 S.W.3d 224 at 230; Brown v. Daly, 83 S.W.3d 153, 160 (Tenn. Ct. App. 2001), and in certain situations, circumstantial evidence may be more convincing than direct evidence. United States v. Robinson, 177 F.3d 643, 648 (7th Cir. 1999); Estate of Brock ex rel. Yadon v. Rist, 63 S.W.3d 729, 731 (Tenn. Ct. App. 2001).

    Wednesday, November 30, 2005

    Death at Night in New Jersey: On Habit and Character

    I have a new paper:

    The Death of a Youth and of a Drunkard:
    A Remarkable Story of Habit and Character in New Jersey

    The paper's abstract reads:

    In many ways the case was unremarkable. It involved a traffic fatality that may have involved drunken driving, a tragic but common occurrence. This unremarkable case -- the criminal action of State of New Jersey v. Petro Radziwil, Indictment No. 1257-8-86 -- is nevertheless noteworthy. Radziwil raises important questions about an important part of the law of evidence: the relationship between habit evidence and character evidence. But the questions that Radziwil presents reach beyond the law of evidence. The criminal justice system is disproportionately populated with unsavory people, unpleasant people, stubborn people, and strong-willed people. Criminal defendants are frequently both unsavory and unpleasant, and many witnesses -- including prosecution witnesses -- share these traits. Prosecutors and criminal defense counsel, although not as a rule unsavory, can be unusually strong-willed and stubborn, and judges who preside in criminal cases may become hardened not just to the suffering of victims but also to the plight of those who cause harm. This combination of character traits has the making of a toxic brew. There is reason to worry about the capacity of strong-willed actors such as police officers and trial judges to make sound judgments about the unpleasant and unsavory people -- criminal defendants and witnesses -- that they routinely encounter while performing their assigned chores in the criminal justice system. The story of Petro Radziwil illustrates how personal likes and dislikes, and the prejudices of actors in the criminal process, can affect the outcomes of criminal proceedings. The story of Petro Radziwil also raises the question of whether much can be done to scrub the criminal process clean of the influence of the biases and emotions of the people who shape that process.

    An Amicus Brief in the Bobby Holmes Case

    Forty law professors -- all teachers of the law of evidence -- have joined in an amicus brief in the Bobby Holmes case. The amicus brief proceeds on the theory that the trial court's exclusion of exculpatory evidence deprived Bobby Holnes of his Sixth Amendment right to have a jury, not a court, decide his factual guilt or innocence.

    Tuesday, November 29, 2005

    J-Blogs: The Next Big Thing!

    We may be entering a new phase in the history of judicial appeals, judicial dissents, judicial arguments, judicial (self-)justification, and judicial loquaciousness. I refer, of course, to judicial blogs -- or, more pithily (for those in the know), to j-blogs or, better yet, j-blawgs. That this -- j-blogging (or j-blawging) -- is the next big thing in the history of the American judicial system is plainly shown by the recent exchange in the New Yorker (October 31, 2005, and December 5, 2005). The first part of this extrajudicial judicial debate began via an intermediary, Jeffrey Toobin. Mr. Toobin interviewed Justice Breyer and reported some of Breyer's views about methods for settling constitutional disputes. See J. Toobin, "Breyer's Big Idea," New Yorker (October 31, 2005). Judge Lawrence K. Karlton, Senior Judge, U.S. District Court, E.D. California, was not pleased by what he saw there. In a letter in the December 5 issue of the same periodical he wrote:
    The Supreme Court Justice Stephen Breyer's response to the quotation from my decision excluding the words "under God" from the Pledge of Allegiance seems to suggest that my complaint over the lack of guidance offered by the Supreme Court was a personal one. ... The intention [presumably J. Karlton's], however, was to note an institutional problem. [There is more. But I refrain from further quotation; buy the issue and read for yourselves.]
    Now this exchange (between a high judicial luminary and one that inhabits the nether regions of the federal judiciary) in a periodical that is sometimes practically funereal may not strike you as revolutionary. But, my fellow bloggers, au contraire: It is only a matter of time before such extrajudicial judicial argument spills over into widely-read periodicals such as New York's Daily News and, ultimately [horrors!?], into the blogosphere. As one eminent poobah recently said, "What's the point of writing something that no one reads?" Well, as all bloggers know, the best way to reach a world-wide audience is via the world wide web. Hence: the phenomenon of the j-blog is nigh.
  • Yes, I know, I know: Judge Richard Posner has been blogging for some time (with his spiritual kith and kin, the Chicago economist Gary Becker). But Judge Posner, I believe, has refrained from using his blog to defend his judicial opinions. (Am I wrong? I haven't read every blog written by Posner. [In my defense: It is beyond any human being's capacity to read everything written by Posner: Posner's pen moves faster than the eye. Posner himself has supra-human eyes and rapidly-moving word-processing fingers; and the electrical impulses in Judge Posner's brain clearly outrun the speed of light. {The existence of Richard Posner disproves Einstein!}])
  • Thursday, November 24, 2005

    When Guilt or Innocence Hangs on a Hair

    Recently I blogged on the disturbing case(s) of Steven Avery: When Chances Collide; DNA & "Exoneration"; Suggestibility & Gullibility (Nov. 12, 2005) and More about Steven Avery (Nov. 13, 2005). Steven Avery is the Wisconsin man who (i) is now charged with the murder of Teresa Halbach in 2005 (just a few weeks ago), (ii) was convicted in 1985 for the rape and attempted murder of Penny Beerntsen earlier that year, and (iii) was officially exonerated in 2003 of the rape and attempted murder of Beernsten in 1985.

    The evidence against Avery for the 2005 murder of Halbach seems very strong. One question raised by the evidence of Avery's complicity in the 2005 murder is whether the exoneration of Avery for the rape and attempted murder of Beernsten was a mistake.

    I cannot answer this question; I do not know the evidence in either case well enough. But it is pertinent to note that Avery's exoneration of the 1985 rape and attempted murder rested -- so newspaper accounts suggest -- on a single hair. See Michelle Kubitz, Avery One Year Later, Herald Times Reporter (September 10, 2004):

    Sept. 10, 2003: State Crime Lab tests on 13 hairs recovered from the victim [Penny Beerntsen] at the crime scene indicates that one [emphasis added by P. Tillers] of them did not match Avery's. That sample of DNA matches that of Wisconsin inmate Gregory Allen, who is serving a 60-year sentence for a different sexual assault in Brown County.
    Question: If Steven Avery did indeed rape and try to kill Beernsten, how did one of Gregory Allen's hairs end up on Penny Beernsten?

    I surely don't know the answer. But, as I suggested in one of my earlier posts, one possibility should be investigated. Newspaper reports suggest that in 1985 Steven Avery and Gregory Allen lived in the same area or neighborhood. If that is the case, it might be useful to know (i) whether Avery and Allen knew each other in 1985; (ii) if they did, whether they spent time together in 1985 or whether they were perhaps even close chums; and (iii) if they did spend time with each other and were acquaintances in 1985, whether they engaged in activities (e.g., touch football games, other physical horseplay with each other, joint hunting trips, sitting on the same couch in Avery's house or Allen's house) that might have resulted in the transfer of one of Allen's hairs to Avery or to Avery's clothing.

    Wednesday, November 23, 2005

    Hypnosis & Witnesses & Subconscious Inference

    There is a considerable body of law, much of it dating from the 1980s, about the question of the admissibility or inadmissibility of the testimony of witnesses who have (allegedly) been hypnotized. A recent article in the New York Times describes recent studies of hypnosis by neuroscientists. See Sandra Blakeslee,This Is Your Brain Under Hypnosis, in SCIENCE, NYTimes Online (Nov. 22, 2005). One of the major conclusions of these recent studies parallels the general conclusion of many earlier studies of human perception and human memory: the mind is not a tabula rasa; the mind constitutes, or creates, perceptions (or conclusions based on perceptions) from the sensory signals that are fed into the human brain and the human organism. But there are important differences in detail between the older and newer studies of perception -- there are differences in theories about precisely how the brain processes sensory data and converts them into perceptions -- and the article describes some of the mechanisms that are, it is now thought, in play.

    Some of the recent studies described in the article involve the study of the brain activity during hypnosis. According to some current neuroscientific theory, "top-down" processing is very important in the brain's interpretation of sensory inputs:

    One area that it may have illuminated is the processing of sensory data. Information from the eyes, ears and body is carried to primary sensory regions in the brain. From there, it is carried to so-called higher regions where interpretation occurs.

    For example, photons bouncing off a flower first reach the eye, where they are turned into a pattern that is sent to the primary visual cortex. There, the rough shape of the flower is recognized. The pattern is next sent to a higher - in terms of function - region, where color is recognized, and then to a higher region, where the flower's identity is encoded along with other knowledge about the particular bloom.

    The same processing stream, from lower to higher regions, exists for sounds, touch and other sensory information. Researchers call this direction of flow feedforward. As raw sensory data is carried to a part of the brain that creates a comprehensible, conscious impression, the data is moving from bottom to top.

    Bundles of nerve cells dedicated to each sense carry sensory information. The surprise is the amount of traffic the other way, from top to bottom, called feedback. There are 10 times as many nerve fibers carrying information down as there are carrying it up.

    These extensive feedback circuits mean that consciousness, what people see, hear, feel and believe, is based on what neuroscientists call "top down processing." What you see is not always what you get, because what you see depends on a framework built by experience that stands ready to interpret the raw information - as a flower or a hammer or a face.

    Some of the studies described in the NYTimes article show that such top-down processing can be so powerful that it can make a human beings "see" the color red when in fact some other color is plainly before the human actor's eyes. This sort of one finding is one reason why students of the law of evidence should be interested in these recent neuroscientific studies. Such studies may have a bearing on controversies about the appropriate treatment of witnesses who have been hypnotized. But the studies may also have implications for the more general question of the "suggestibility" of witnesses and the implantation or development of false memories and beliefs. However, as always, whether such studies have any immediate practical implications depends very much on the details. The mere insight that the human mind is an active participant in perception -- like the insight, or conclusion, that expectations are capable of altering or falsifying perceptions (or conclusions based on perception) -- is not new. One needs to know, for example, under what circumstances various kinds of changes in (conclusions based on) perceptions occur, what the magnitude of such changes is, and so on.

    There is more in the article -- much more. I strongly suggest you read it -- and then dip into further literature in this area.

    AI (Computational Intelligence) and Law -- AI of the Uncertain Variety, That Is -- Should Not Be a Fad

    The meaning of legal rules -- such as rules of evidence -- depends only in part, but in essential part on how such rules work. To wit: You do not know the meaning of a legal rule of evidence unless and until you know how the rule works and the consequences that the rule (in its environment) produces. Given this, law professors should be devoting massive amounts of energy to study of scholarship in artificial intelligence a/k/a computational intelligence.

    I reiterate this preachy conclusion only because a recent UAI list call for papers [CFP] caught my eye and because this CFP, like many other UAI CFPs, reminded me of how little we law teachers (and, very probably, law and economics scholars) know about the meaning and workings of legal rules. [UAI is the acronym for "Uncertainty in Artificial Intelligence."] Take a gander at these extracts from a CFP for a forthcoming (May 8 & 9, 2006) program of CLIMA VII, Seventh International Workshop on Computational Logic in Multi-Agent Systems, at Future University, Hakodate, Japan, http://www.fun.ac.jp/aamas2006/:

    Multi-Agent Systems are communities of problem-solving entities that can perceive and act upon their environment to achieve their individual goals as well as joint goals. ...

    Computational logic provides a well-defined, general, and rigorous framework for studying syntax, semantics and procedures for various tasks by individual agents, as well as interaction amongst agents in multi-agent systems ....

    The process of litigation and proof involves "multiple agents", such agents (lawyers, clients, judges, other actors) are "problem-solving entities", such agents "can perceive and act upon their environment", they can act to "achieve ... individual as well as joint goals."

    Consider for a moment some of kinds of methods that are used to try to decipher multi-agent systems:

    * logical foundations of (multi-)agent systems
    * extensions of logic programming for (multi-)agent systems
    * modal logic approaches to (multi-)agent systems
    * logic-based programming languages for (multi-)agent systems
    * non-monotonic reasoning in (multi-)agent systems
    * decision theory for (multi-)agent systems
    * agent and multi-agent hypothetical reasoning and learning
    * theory and practice of argumentation for agent reasoning and interaction
    * knowledge and belief representation and updates in (multi-)agent systems
    * operational semantics and execution agent models
    * model checking algorithms, tools, and applications for (multi-) agent logics
    * semantics of interaction and agent communication languages
    * distributed constraint satisfaction in multi-agent systems
    * temporal reasoning for (multi-)agent systems
    * distributed theorem proving for multi-agent systems
    * logic-based implementations of (multi-)agent systems
    * specification and verification of formal properties of (multi-) agent systems
    Does the above list of topics suggest that legal scholars have something to learn from their brothers and sisters in computational intelligence and allied fields?

    Interdisciplinary work is hard. Interdisciplinary work is humbling. And interdisciplinary work demands humility. I often think that law teachers would do more and better interdisciplinary work if they (law teachers) were not so determined to show how smart they are. There are many intelligent people on earth, and many of them are in disciplines other than law, and some of those people know things law teachers don't. I have found that confessing ignorance while approaching smart people in other disciplines is a fruitful strategy. Your colleagues in foreign disciplines will be flattered by your interest and they will often take the time to explain things to you. Oh yes, remember this: you know some things they don't know, and you're not as stupid as you may sometimes feel you are.

    BTW, some law & economics literature seems determined to talk about decision but not about inference. Isn't this is a fundamental mistake? If some of the actors or agents in the environment that one wishes to understand and explain have inferential mechanisms or processes in their souls, isn't it clear that the behavior of such agents ordinarily cannot be predicted well if little or no account is taken of the agents' inferential processes? (And please note, you law & economics folk: those inferential mechanism and processes are extraordinarily complicated, and simplifying such processes "for the sake of argument" is often unjustified.)

    Sunday, November 13, 2005

    More about Steven Avery

    I blogged about the Steven Avery cases just a little while ago: When Chances Collide; DNA & "Exoneration"; Suggestibility & Gullibility

    Now I have a bit of additional information and one or two new random thoughts.

    Tom Kertscher, Avery to be charged on DNA, Milwaukee Journal Sentinel (Nov. 12, 2005):
    DNA evidence, which freed Steven Avery after he spent 18 years in prison for a rape he didn't commit, will now be used to charge him with a crime that could return him to prison for the rest of his life.

    Friday's announcement that Avery will be charged with killing Teresa Halbach also means Avery will likely become the first person in the nation charged with a homicide after being exonerated by DNA.
    Halbach's vehicle, spattered with blood, was found a week ago in the Manitowoc County auto salvage yard owned by Avery's family. On Friday, authorities said tests confirmed that Avery's DNA was in the vehicle and on the ignition key, which was found hidden in Avery's home on the property.


    Avery, 43, became the marquee case for the Wisconsin Innocence Project two years ago when the University of Wisconsin Law School program proved with DNA evidence that he did not commit a 1985 sexual assault in Manitowoc County.


    Investigators say Halbach was last seen the afternoon of Oct. 31 when she visited Avery's home to take a photo for Auto Trader of a vehicle he was selling. ...


    Asked about Halbach by the Journal Sentinel on Monday, Avery said she was "not my type" because he liked women who weren't as slim.


    Calumet County District Attorney Ken Kratz, the special prosecutor in the Halbach case [because of Avery's lawsuit against Manitowoc County for wrongful imprisonment on the 20 year-old rape case], said he believes [Halbach] was killed the same day that she visited Avery's home, a trailer that is adjacent to the family's auto salvage yard. ...
    . ... [I]nvestigators said in obtaining search warrants that they believed Halbach was sexually assaulted.

    The investigators searched the auto salvage yard, Avery's trailer, a garage and other parts of the sprawling family property. Court records show they found what appeared to be blood on Avery's home, in his bathroom, in the garage and on "a number" of vehicles in the salvage yard.

    The records also show that the searchers found, on unspecified parts of the property, remains of a woman, remnants of clothing and what appeared to be a cell phone and camera, all of which had been burned, as well as handcuffs, leg irons, sexual devices and pornographic materials.

    Avery's mother, Dolores Avery, maintained that her son is innocent.

    "I don't know why the hell they do that stuff," she said of the plan to charge Avery with killing Halbach. "They must like wrecking people's lives."


    Sheriff's Department records show that shortly after a woman was sexually assaulted on a beach in July 1985, Manitowoc police raised Gregory Allen as a potential suspect. It was Allen's DNA that was found in 2003 in testing of evidence found on the victim.


    Findley, of the Wisconsin Innocence Project, said Avery's being charged with Halbach's killing, while tragic, does not change the fact that a judge declared him innocent of the sexual assault. ...


    Gregory Allen's DNA was found on the 1985 rape victim. In 1985 Allen, who was later imprisoned for sexual offenses against other women, lived in the same area that Steven Avery did. I wonder if Allen and Avery knew each other. If so, I wonder if they spent time together. If so, I wonder ....
    Gregory Allen was not tried for the 1985 rape of Penny Beerntsen because, a prosecutor said, Ms. Beernsten did not want to press charges against Allen. In 2003, when Avery was released from prison, Allen was still in imprisoned; he had been sentenced to prison for 60 years for sex crimes against other women. I wonder if Allen and Avery met while they were both imprisoned in Wisconsin.


    Do you agree that Steven Avery's 2003 exoneration is not placed in doubt even if it is established (to your satisfaction) that Steven Avery murdered and raped Halbach in 2005?

    I greatly admire the work of the various Innocence Projects around the country. What troubles me is the occasional proclivity of participants in such Projects to assert that the DNA evidence they have unearthed conclusively establishes the innocence of the clients that they say they have "exonerated." This is dangerously hyperbolic talk -- and this sort of hyperbolic talk has the ability to bite back.

    Saturday, November 12, 2005

    The Absence of the Appurtenances of a Process of Proof, and the Shell of a System of Adversary Ajudication

    Jim Yardley, Desperate Search for Justice: One Man vs. China, NYTimes Online (November 12, 2005):

    A quarter century ago, after the chaos of Mao's Cultural Revolution, China essentially had no legal system. In that context, it has made significant strides. The 1996 reforms were intended to shift toward an adversarial trial process, modeled in part after the American system. Instead, the reforms have become most notable for what was left out.

    "They didn't put in rules of evidence," said Jonathan Hecht, deputy director of the China Law Center at Yale University. "They didn't put in requirements that witnesses appear at trial. Lawyers weren't given the ability to really prepare a case. They kind of created the shell of an adversarial process, but they didn't create the guts of it."

    When Chances Collide; DNA & "Exoneration"; Suggestibility & Gullibility

    WORLD & NATION BRIEFS, Newsday (November 12, 2005) p. A17:
    A Wisconsin man who spent 18 years in prison for rape until being exonerated by DNA evidence in 2003 will be charged with killing a woman whose vehicle was found near his home, a prosecutor said Friday. Steven Avery's blood was found inside Teresa Halbach's sport utility vehicle, said Calumet County District Attorney Ken Kratz, who plans to charge Avery by Tuesday. Avery has denied involvement in the disappearance of Halbach, 25, who was last seen Oct. 31. The freelance photographer had three appointments that day to take pictures of vehicles for sale, including one at a salvage yard owned by Avery's family in Manitowoc County, about 25 miles south of Green Bay.
    Transcript from Nancy Grace Show, "Prosecutors Zero in on Suspect in Murder of Teresa Halbach," (November 11, 2005):
    RICHARD HERMAN, DEFENSE ATTORNEY [for Avery]: Well, Harris, I have to pick myself off the floor here because Wendy [Murphy] just blew me away. I got to tell you something. There`s not going to be a new trial in the old case because he was completely vindicated. Vindicated! It was reversed. The conviction was reversed. He was wrongfully imprisoned for 18 years.
    The Innocence Projects do wonderful work. But perhaps this case shows (again) that great care should be taken before claims are made that this or that DNA "proves" this or that man's (or woman's) innocence. There is no conclusive proof of innocence (or guilt). See P. Tillers, 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, in Tillers on Evidence and Inference (blog), September 8, 2002.
    P.S. Headline: Steven Avery Receives Standing Ovation from Wisconsin's Assembly and Senate Judiciary Committee. Steven Avery and the woman he was (wrongfully?) convicted of raping 20 years ago -- Penny Beerntsen -- testified before the Assembly and Senate Judiciary Committee of the Wisconsin legislature. Avery's case was apparently a kind of cause celebre in Wisconsin and it apparently became a fulcrum for an effort there to pass legislation to improve pretrial identification procedures. After they testified, both Avery and the woman whom he had been (wrongfully?) charged with raping "received standing ovations from the committee members and others in attendance." David Ziemer, Legislature holds hearing on Avery Task Force reforms in Wisconsin, WISCONSIN LAW JOURNAL (September 14, 2005).

  • I can't help wondering if the truly-unfortunate Ms. Penny Beerntsen still thinks that the lineup identifications used in her case mistakenly led her to identify Avery as the culprit. Ms. Beernsten was apparently persuaded that her initial recollection and belief that Avery was the rapist was wrong. The Wisconsin Law Journal, id., reported, "Yet even though [Ms. Beernsten] knows that Avery was not the one, she still sees his image when she recalls the attack, so suggestive were the identification procedures then in place, and still in place throughout the state." The Avery-Beernsten case may yet demonstrate that suggestive procedures may lead witnesses to incorrect conclusions -- but, if so, the lesson here may be that well-intentioned and passionate reformers are also capable of implanting false thoughts in the minds of witnesses. This case really may prove to be a terrible twist of fate -- and of human gullibility (in many places).
  • P.P.S. The malefactor who killed Teresa Halbach apparently burned her body in an effort to destroy the evidence. But the effort at evidence destruction was not entirely successful -- burned bone, teeth, and blood were found in Halbach's car -- and the body parts and fluids that remained after the fire were apparently such that at least some DNA testing could be done on them. DNA apparently plays a role in the Avery-Halbach homicide case in another way: DNA testing strongly suggests that Avery was the source of some of the blood found in Teresa Halbach's car. This evidence suggests that sometimes it may be appropriate to say:

    If you live by DNA, you may also die by DNA

    Wednesday, November 09, 2005

    The Right of Divine Monarchs: The President's Power to Detain, Charge, Prosecute, Create Law, Adjudicate, Sentence, and Execute & Put to Death

    This blawg generally sticks to topics in the law of evidence, proof, and fact investigation. But not always. And not now, after my eye was caught by the breathtaking extent of the authority claimed by the President in the name of the "war" on terror. Consider Petition for Writ of Certiorari, Salim Ahmed Hamdan v. Donald H. Rumsfeld et al. (August 8, 2005):
    Almost four years ago, Petitioner Hamdan was captured by indigenous forces while attempting to flee Afghanistan and return his family to Yemen. After being turned over to American forces, he was taken in June 2002 to Guantanamo Bay Naval Base, where he was placed with the general detainee population at Camp Delta. ... In July 2003, the President found that Petitioner was eligible for trial by commission. Accordingly, he was placed in solitary confinement from December 2003 until late October 2004 ....

    "[The United States District Court for the District of Columbia] ruled that [military] commissions [appointed by the President] may be used only to hear offenses that are triable under the laws of war, including the Geneva Conventions; that the Geneva Convention Relative to the Treatment of Prisoners of War ... is judicially enforceable; and that, as long as [Hamdan's] prisoner-of-war (POW) status is in doubt, Petitioner [Hamdan] must be tried by court-martial. ...


    ... [T]he court of appeals reversed the district court in an opinion written by Judge Randolph and joined by Judge Roberts [now Chief Justice of the Supreme Court of the United States] in full and Judge Williams (in part). [footnote omitted] ...


    ...[T]he court of appeals largely based its ruling on [the Supreme Court's] Eisentrager decision, accepting the President's claim of power to convene a commission to try most any offense, against any offender (including a United States citizen or nationals of any country in the world), in any place (including the United States). The President was allowed that power not for a fixed time, such as a war declared against a specific nation-state, but rather for perpetuity against an amorphous enemy that could include nationals of every country in the world. In these tribunals, the President was given the power to disregard not only American common-law and military law, but international law--despite the fact that the raison d'etre of commissions is to enforce international law.


    In the end, the court of appeals held that the President has the power to decide how a detainee is classified ..., how he is treated, what criminal process he will face, what rights he will have, who will judge him, how he will be judged, upon what crimes he will be sentenced, and how the sentence will be carried out. The President is [allegedly] entitled to "pas[s] sentences and ... carr[y] out ... executions" through commissions, even if they do not "afford[d] all the judicial guarantees which are recognized as indispensable by a civilized people." ...

    This reversal of the district court cannot be correct. The Revolution was fought to ensure that no man, or branch of government, could be so powerful. In a system of checks and balances, there can never be a time when the rule of law does not circumscribe power as fundamental as adjudicating culpability and punishment. Our forefathers paid a heavy price in blood to establish these principles, and it is our duty to defend them from all threats, foreign or domestic.

    The Brennan-Warren Court may have made mistakes. But in one respect that Court was not mistaken: We must fear any government that imprisons or executes people without any semblance of due process of law. Public perception that a great public emergency exists is distressingly easy to manufacture. But a bit of perspective is in order. Our times are not more threatening than was the era of the Cold War, a time when the threat of nuclear annihilation loomed. The Presidency did not claim the power then that it does now. There is not more reason to suspend fundamental civil liberties now than there was in the 1950s and 1960s.

    Tuesday, November 01, 2005

    Leisurely and Productive Contemplation in ... the U.S. Academic World?

    Howard W. French, China Luring Scholars to Make Universities Great, NYTimes Online (October 31, 2005):
    Mr. Yang, who leads a small experimental university in Ningbo, also criticized the lack of autonomy given to many Chinese researchers.

    "At Princeton one mathematician spent nine years without publishing a paper, and then solved a problem that had been around for 360 years," Mr. Yang said, a reference to Andrew J. Wiles and his solution to Fermat's last theorem in the early 1990's. "No one minded that, because they appreciate the dedication to hard work there. We don't have that spirit yet in China."

    This happens at Princeton, you say?

    Does it happen anywhere else in these dear United States?

    Thursday, October 20, 2005

    Expertise in Iceland

    Editors, Justice in Iceland (Interview with Judge Tomas Magnusson), 8 Green Bag (2d Series) 393, 395 (2005):
    Do you have juries?

    We have no jury at all. Most cases are heard by one judge, but we can also have three judges. ... In complex civil and criminal cases there are three judges, and two of them can be specialists -- for example, plumbers, engineers, or medical doctors. These expert judges are not lawyers.

    These people serve as expert witnesses?

    No, they aren't expert witnesses in the American sense -- we have no expert witnesses per se. These specialists are called by the court, and they play almost the same role in the procedure as the full-time judges.

    Friday, October 14, 2005

    Probabilistic Computational Intelligence: The World Is Gray, Not Black and White

    John Markoff, Behind Artificial Intelligence, a Squadron of Bright Real People, NYTimes Online (Oct. 14 2005):
    While artificial intelligence technology is already in use in telephone answering systems with speech recognition and in popular household gadgets like the iRobot vacuum cleaner, none of the existing systems have been as ambitious as Darpa's Grand Challenge road race.

    This leap was possible, in large part, because researchers are moving from an approach that relied principally on logic and rule-based systems to more probability or statistics-oriented software technologies.

    "In the past A.I. has been dominated by symbolic systems and now the world is gray," said Terrence J. Sejnowski, head of the computational neurobiology laboratory at the Salk Institute in La Jolla, Calif. "That's what it's like to deal with the real world."

    N.B. Probability theory is essential. But it's not the whole story. And probability theory may not be the only coherent and effective mathematical strategy for dealing with uncertainty and shades of gray.

    Wednesday, October 12, 2005

    Canine Personality, Canine Character, Canine Science & Canine Value

    Brown v. Eberly, 2002 U.S. Dist. LEXIS 22012 (E.D.Pa. 2002) grew out of a civil action by a couple against a police officer for shooting their dog, a female Rottweiler. The trial judge, Thomas N. O'Neill, considered various motions. His memorandum opinion states in part:
    3. Defendant's motion to preclude all testimony and exhibits that seek to attribute human qualities or attributes to plaintiff's dog

    The issue to be tried is whether defendant's actions on April 8, 1998, violated plaintiffs' constitutional and state law rights. Evidence that would seek to attribute human characteristics to the dog is not relevant and will be excluded.

    The pictures attached to defendant's motion must be examined under a Rule 403 analysis. The first picture, of the parking lot at the location of the incident, is clearly admissible. The picture of the dog and the child on the couch with the child thinking "we're best buddies" is excluded under Rule 403. The third picture attached to the motion shows one of plaintiffs' children leaning on the dog, who is [lying] on the floor. It is admissible because it is evidence of how well behaved the dog was with people and is not unfairly prejudicial to the defendant. The fourth picture shows the dog by herself wearing a large bow around her neck. Unless the dog was wearing this collar when shot on April 8, 1998, the picture is excluded under Rule 403.

    4. Defendant's motion in limine to preclude all character testimony related to plaintiff's dog

    Plaintiffs seek to introduce testimony establishing the friendly nature of their dog in an attempt to refute defendant's claim that she lunged at him. Defendant argues that such testimony is inadmissible character evidence under Federal Rule of Evidence 404.

    We have not found any Pennsylvania or Third Circuit cases addressing whether evidence of past behavior of an animal should be excluded under Rule 404, however, the highest courts of several states have admitted such evidence. See Hood v. Hagler, 1979 OK 163, 606 P.2d 548, 551-52 (Okla. 1979); Forsythe v. Kluckhohn, 161 Iowa 267, 271, 142 N.W. 225 (Iowa 1913); Stone v. Pendleton, 21 R.I. 332, 43 A. 643, 643-44 (R.I. 1899); see also 1A Wigmore, Evidence § 68a (Tillers rev. 1983). I will not exclude evidence concerning Immi's disposition as inadmissible character evidence.


    8. Defendant's motion in limine to preclude the expert report of Andrew Bensing

    Plaintiffs seek to have Andrew Bensing testify as an expert on the behavior of Rottweilers. He would testify to the behavior of female Rottweilers as a breed and the behavior of Immi in particular. Defendant challenges the testimony on three grounds: (1) that it would be inadmissible character evidence; (2) that Mr. Bensing's experience with the dog would be irrelevant because it ended over a year before the shooting; and (3) that it does not satisfy the prong of the Daubert analysis that requires a "fit" between the expert testimony and the facts of the case.

    The objection to the testimony as inadmissible character evidence is taken care of by my ruling on character testimony in general. Testimony about Immi's past behavior is admissible.

    That Mr. Bensing's frequent contact with the dog ended a year before the incident does not render his testimony irrelevant. Mr. Bensing had extended contact with Immi for over two years and then occasional contact with her until her death. Defendant may point out to the jury that Mr. Bensing's time with the dog was only occasional for a year before her death, but he cannot preclude his testimony entirely.

    Defendant's argument about the "fit" step of the Daubert analysis will be considered at a Daubert hearing.

    9. Defendant's motion in limine to limit testimony regarding the valuation of plaintiff's dog

    Under Pennsylvania law a dog is personal property. 3 P.S. § 459-601 (2002); Desanctis v. Pritchard, 2002 PA Super 221, 803 A.2d 230, 232 (Pa. Super. 2002) 3 P.S. § 459-601 (2002). It is proper as regards the section 1983 claim, therefore, to limit testimony regarding the value of the dog to that addressing its value as a piece of personal property. No testimony regarding the value of Immi to the plaintiffs in particular will be admitted as evidence regarding the valuation of the dog.

    Sunday, October 09, 2005

    Imprecise Language and Imprecise Perceptions

    Consider the following statement by Professor Lotfi Zadeh in his recent abstract Computation with Information Described in Natural Language—The Concept of Generalized-Constraint-Based Computation (October 5, 2005):
    Computation with information described in natural language cannot be dealt with through the use of machinery of natural language processing. The problem is semantic imprecision of natural languages. More specifically, a natural language is basically a system for describing perceptions. Perceptions are intrinsically imprecise, reflecting the bounded ability of sensory organs, and ultimately the brain, to resolve detail and store information. Semantic imprecision of natural languages is a concomitant of imprecision of perceptions.
    Legal theorists, students of legal reasoning, and aficionados of factual inference in legal settings: What say you?

    Deprivation of US & NJ Right of Confrontation because Trial Court Barred Defense from Cross-Examining Prosecution Witness about Polygraph Test Results

    State v. Castagna, 376 N.J. Super. 323, 870 A.2d 653 (April 12, 2005), cert. granted, 185 N.J. 35, 878 A.2d 852, (July 7, 2005):
    Our decision to reverse is based on an erroneous legal ruling that operated to deprive all three defendants of their right to confront the witnesses against them, as guaranteed by the Sixth Amendment of the Constitution of the United States, as applied to the states by the provisions of the Fourteenth Amendment, and as independently embodied in Article I, Paragraph 10 of the New Jersey Constitution. This constitutional deprivation came about when the trial court precluded defense counsel from cross-examining a key prosecution witness on the results of a stipulated polygraph examination, because these defendants were not parties to the stipulation.

    We hold that when the State enters into an agreement with a witness, stipulating to the admissibility of the results of that witness's polygraph examination, a defendant has a constitutional right to confront that witness, in cross-examination, with the results of the polygraph, as a means of impeaching that witness's credibility. As a matter of fundamental fairness, we also hold that, under these circumstances, the State is precluded from disavowing the reliability of the polygraph results.

    Wednesday, October 05, 2005

    Liberal Politics & Cronyism & Persuasive Legal Interpretation

    It is interesting, revealing, discouraging, and, yes, disgraceful to see that even liberal, tub-thumping, and moralizing politicians such as Senator Schumer seem not to mind that Miers is an undistinguished nominee to the Supreme Court. In his initial press conference Schumer effectively said it matters not that Miers is Bush's crony. All that matters to Schumer, it seems, is that Miers vote the "right" way as often as possible.

    Fie on both of your houses, on (some of) you Democrats and on Republican Bush-sycophants! Whether we like it or not, in our constitutional scheme a Supreme Court Justice must have some of the qualities of both a philosopher king and a Biblical scholar. The Supreme Court leads not only and not even primarily by reason of its coercive legal authority. The Supreme Court leads in very significant part by reason of the lucidity and the persuasiveness of its pronouncements.

    Although Miers cannot be called one of the country's preeminent private lawyers, she did have an impressive record in private practice. But nothing in her record attests to her ability to explain her vision of American constitutional principles to other people, either to lawyers or to the country as a whole. (Indeed, nothing in her record suggests even her ability to divine, or infer, plausible constitutional principles from the text, history, and philosophy of the U.S. Constitution.)

    Harriet Miers is not a street cleaner. She is unquestionably intelligent. It also appears that she has been a zealous and effective advocate for her clients. But, my dear Senators, the question now is the composition of the Supreme Court. Not every intelligent person, not every canny person, and not every successful legal practitioner is qualified to prescribe and explain the legal rules that constitute the foundation of the American system of government.

    Tuesday, October 04, 2005

    A Small Circle of Friends

    The Hon. Harriet Miers once described George Bush as the most intelligent man she had ever met. One presumes that Ms. Miers has a very small circle of friends and acquaintances.

    The Judicial Philosophy of the Hon. Harriet Miers

    Harriet Miers' judicial philosophy is plain. When introduced by the President, she said she is in favor of strict construction of the law. The meaning of "strict construction" is plain. Isn't it?

    Well, perhaps not.

    Let's see if we can clarify her position. Let's apply Miers' interpretive strategy to "strict construction." Isn't that fair?

    The first step is to take the words "strict" and "construction" as written (or spoken?).

    The second step is (isn't it?) to take words in their ordinary sense -- their common sense sense, so to speak.

    Well, then, the third step is clear: If judges are to avoid putting themselves into the words of the law -- and they are to follow the words of their law rather than their personal and subjective views of the meanings of those words --, they should turn to dictionaries and thesauruses (thesauri?) to ascertain the ordinary meaning of words. Right?

    Well, then, let's use that method now.

    [I leaf through my thesaurus.]

    Can "strict" mean "harsh" and "construction," "fabrication"? So Miers favors harsh fabrication of the law? Mmm, I don't want to use her private intentions to construe her words, but, still, this -- "harsh fabrication" -- doesn't sound quite right.

    [I leaf through my thesaurus again.]

    Aha! I have it! By "construction" she means "interpretation" and by "strict," she means "crabbed." So Miers favors a crabbed interpretation of the law. A strict construction of her comments proves this.


    While blogging here, I just heard President Bush say (in a news conference) that Miers shares his judicial philosophy. I confess I didn't realize that Bush has a judicial philosophy. Is it originalism? Does he favor the Court's use of the evolving standards of civilized nations to interpret the Constitution? Is Bush in favor of a natural law approach to the Bill of Rights? Well, time will tell, more or less. Yes? No?

    Miers: Harold Carswell Reincarnate?

    Senator Roman Hruska, a Phi Beta Kappa graduate of Creighton University, said:
    Even if he [Carswell] was mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises and Cardozos and Frankfurters and stuff like that there.
    Warren Weaver, Jr., Carswell Attacked and Defended as Senate Opens Debate on Nomination, N.Y. TIMES, March 17, 1970, at 21.

    Sunday, October 02, 2005

    The Death of Innocence

    The Supreme Court recently agreed to review the decision of the South Carolina Supreme Court in a capital case, State v. Holmes, 605 S.E.2d 19 (2004). The Court agreed to consider the following question:
    Whether South Carolina's rule governing the admissibility of third-party guilt evidence violates a criminal defendant's constitutional right to present a complete defense grounded in the Due Process Confrontation, and Compulsory Process Clauses?
    See Holmes v. State, 2005 WL 770655 (March 31, 2005)(petition for writ of certiorari) and Holmes v. South Carolina, -- S.Ct. --, 2005 WL 770216 (Sept. 27, 2005)(granting petition for question stated above).

    Holmes raises a variety of issues. Some of the issues in the case involve the razzle dazzle of forensic science, including DNA evidence and palmprint evidence. But such razzle dazzle is peripheral to the main issues presented by Holmes' successful petition for Supreme Court review; the important issues are quite traditional and have little or nothing to do with technology.

    Try as it might -- and try it probably will -- the Supreme Court will not be able to entirely avoid two broad questions:

    1. What is the relationship between the due process guarantee of fair trial -- which, the Court has said or suggested, encompasses a guarantee of trial rules and procedures that are likely to produce a high degree of factual accuracy in criminal trials -- and nonconstitutional rules of evidence. (Some members of the Court may fall prey to the temptation to refer with scorn to the proposition [advanced by whom?] that the due process clause constitutes a code of evidence.)

    2. Does the due process guarantee of proof beyond a reasonable doubt have any meaning in the absence of constitutional rules guaranteeing that an accused will have an opportunity to submit evidence of innocence if such evidence meets some threshold of probative value? (Some members of the Court may fall prey to the temptation to rely again on the hypertechnical argument that the due process guarantee of proof beyond a reasonable doubt standard speaks only to the way that the trier of fact should evaluate admissible evidence, and not to the question of the kinds of exculpatory evidence that must be admitted in a criminal trial. [The theory here is: The scales are heavily tilted against the prosecution but the reasonable doubt requirement does not prohibit the prosecution from preventing the accused from placing some of his heavy stones on the scales of justice.])

    Other grand issues -- even broader than the two I have just mentioned -- are presented by Holmes. But I will restrain myself and I will not mention them now. But I feel compelled to mention one additional question. Holmes does arouse (in my breast) one nagging suspicion or question:
    What is the true reason for the persistent tendency to impose sharp limitations on attempts by criminal defendants to show their innocence by introducing evidence of the guilt of third persons? Are these limitations imposed to avoid the waste of time and resources? Or do the restrictions on such evidence grow out of the fear that juries will often -- too often -- find such evidence persuasive?
    But if the last reason is the true motivation for restrictions of third-person guilt, is the fear justified? Why should jurors have any more difficulty assessing this sort of evidence than they have assessing any other sort of exculpatory evidence?

    The suspicion that juries will fall prey to manufactured evidence of third-person guilt is puzzling: juries as well as judges can and will use their common sense and their ingrained skepticism when they evaluate "admissions" of guilt by jailbirds and other suspicious characters. So what accounts for the unusually stringent limitations on such exculpatory evidence?

    Is the persistent suspicion of evidence of third-person guilt somehow rooted in an unspoken belief that assessment of such evidence normally involves after-the-fact assessments of failure to investigate and that such post hoc assessments of whether an investigative road not taken should have been taken are very, very difficult, so difficult that triers such as jurors will make too many mistakes about such questions?

    Friday, September 23, 2005

    No Mindless Legalisms Here!

    It has often been said that private associations such as law schools are not required to apply rules of evidence or rules of procedure that apply in proceedings such as trials. It has also been said that it does not make sense for private associations to apply trial rules and trial formalities; doing so, it has been suggested, would constitute just another instance of mindless legalism. As the following announcements show, one law school has taken these two precepts very much to heart:


    E-Mailed University Announcement, September 16, 2005

    University President XXXXXX announced on September 14, 2005 that Dean YYYYYYY has been reappointed as dean.


    E-Mail Message from Law School Administrator
    to Law School Faculty, September 23, 2005

    I quote two provisions from our rules:

    In the fall of the fifth year of a Dean's original appointment, the faculty shall consider whether to recommend to the President that the Dean be reappointed. Reappointment shall be recommended if a majority of all faculty member eligible to vote on original appointments to the faculty vote to recommend reappointment. The Dean shall be recused for the purpose of this vote...

    A meeting to consider reappointment shall be scheduled for 4:00 PM on the second academic Tuesday in October of each year in which the faculty is required to consider the Dean's reappointment. The chairperson of the faculty appointments committee shall chair the meeting and shall inform the President of the faculty's recommendations.

    This is indeed the fall of the fifth year of YYYY's appointment as Dean. We have a faculty meeting already noticed for Tuesday, October 11, and this matter will be put on the agenda for that meeting.


    There are various possible explanations for the above sequence but, whatever they are, it is probably safe to assume that the vote of the law faculty on October 11 on the reappointment of Dean YYYYY will be a formality. In any event, why should the trial precede the judgment? What a silly idea.

    Friday, September 16, 2005

    Visualization of Evidence and Inference for Legal Settings

    Visualization is a hot topic in scholarship about evidence and information in a large variety of settings (e.g., military, weather, traffic control). Visualization is also fast becoming a hot topic in the study of evidence and inference in legal settings.

    It is time for a conference on the visualization of evidence and inference in and for legal settings such as trials, pretrial investigation, and prelitigation investigation. Yes? No?

    Visualization is important for a great variety of purposes. It is important, for example, for effective effective persuasion (lawyers tend to call this "advocacy"). It is also important for the intelligibility of complex evidential argument (and little if any real-world evidential argument, or factual inference, is simple). Visualization also facilitates the ability of people to recall large quantities of evidence. Visualization may also be a good window into the workings of the mind.

    N.B. Sightless people are capable of certain forms of visualization, no? A good question then is, "What, precisely, is (are) this (these) thing (things) called 'Visualization'?"

    Wednesday, September 14, 2005

    Willy Lomanhood (again)

    I see that one law school is now recruiting applicants for the position of Assistant Associate Professor of Law. My gosh! This position is almost as good as the position of Chief Bottle Washer.

    Sunday, September 11, 2005

    Witness Credibility: Humans and Other Animals Are Natural-Born Liars

    David Livingstone Smith, Natural-Born Liars. Why do we lie, and why are we so good at it? Because it works Scientific American Mind (online) June 2005:
    ... Why do we lie so readily? The answer: because it works. The Homo sapiens who are best able to lie have an edge over their counterparts in a relentless struggle for the reproductive success that drives the engine of evolution. As humans, we must fit into a close-knit social system to succeed, yet our primary aim is still to look out for ourselves above all others. Lying helps. And lying to ourselves--a talent built into our brains--helps us accept our fraudulent behavior.

    Passport to Success

    If this bald truth makes any one of us feel uncomfortable, we can take some solace in knowing we are not the only species to exploit the lie. Plants and animals communicate with one another by sounds, ritualistic displays, colors, airborne chemicals and other methods, and biologists once naively assumed that the sole function of these communication systems was to transmit accurate information. But the more we have learned, the more obvious it has become that nonhuman species put a lot of effort into sending inaccurate messages.


    ... [But] our talent for dissembling dwarfs that of our nearest relatives by several orders of magnitude.

    Sunday, September 04, 2005

    How to Think about Massive Destruction of Evidence

    Massive amounts of evidence were lost as a result of the Gulf Coast disaster. I find it interesting -- and distressing -- that I don't know how to begin to think about this macrocosmic evidentiary event. My work on evidence is almost always on a microscopic scale. This may be why my mind is frozen. (No wisecracks please!)

    If anyone out there reads this blog, please tell me: What are some of the major evidentiary issues or issues of evidentiary policy that will arise from the widespread loss of judicial records, case files, interview notes, reams of documents, the death of witnesses, and the like?

    Widespread and long-lasting

    If anyone deserves blame for the catastrophe on the Gulf Coast, is it not the case that
    (i) many people and organizations share the blame for the bungled evacuation and rescue efforts, and

    (ii) the failure to bolster the infrastructure of New Orleans against possible flooding was the result of literally decades of neglect?

    Saturday, September 03, 2005

    Unpredictable Disaster

    Larry O'Hanson, The furious storm: one wild hurricane could drown a major American City. Can scientist prevent the disaster in time, Scholastic, Inc., Science World (October 18, 2002):
    Here's a tip from the experts: If you're in New Orleans when the "Big One" hits, have a lifeboat handy. Some scientist[s] warn that the right hurricane--a tropical cyclone with at least 74-mile-per-hour winds--could strike the Gulf Coast in a way that would hurl millions of gallons of water to turn the city known as the Big Easy into the Big Soup Bowl....

    A major flood could submerge much of central New Orleans beneath 20 feet of water, leaving many of the metropolitan area's 1.3 million residents clinging to rooftops--a prospect that has engineers and city planners scrambling for defensive strategies. "It's the luck of the draw," says hurricane expect Hugh Willoughby at the National Oceanic and Atmospheric Administration (NDAA). He thinks it's a matter of when--not if--the Big One will pound New Orleans During some annual hurricane season between June and November.


    The perfect storm could ... strike New Orleans east of the city, with gale-force winds blowing south, shoveling water from Lake Pontchartrain over the lake levees ....

    Anticipate that these statements will be made during the next 100,000 or 1,000,000,000 years

    1. "No one anticipated that an asteroid would hit the earth."

    2. "No one anticipated that the sun would swell thousands of times."

    3. "No one could have anticipated that a volcanic eruption would take place directly below Gotham City."

    4. "No one could have anticipated that the fusion reactor would go awry."

    5. "No one could have anticipated that a massive hurricane would hit New York City."

    6. "No one could have anticipated that a cluster of rapidly-moving neutron stars would rip the planets out of their orbits around the Sun."

    7. "No one could have anticipated that rebels would commandeer a star ship and steer it into our country's capital city."

    8. "No one could have anticipated that glaciers would start to grow at a rapid rate."

    9. "No one could have anticipated that the sun would begin to cool at a rapid rate."

    10. "We can anticipate that many public officials will say in years to come that colossal disasters were not anticipated and could not have been anticipated."

    Friday, September 02, 2005

    Natural Disasters & Price Gouging

    Mark P. Gergen, A Priest Responds to the Bean Counters: Leo Katz on Evasion, Blackmail, Fraud, and Kindred Puzzles of the Law (review essay), 22 Law & Soc. Inquiry 879, 890-891 (1997)(footnote omitted):
    Consider the case of price gouging for food, water, or other essentials during an emergency. Price gouging is not blackmail (or even common law duress), no matter how extreme the price demand or desperate the needs of the victim. This is a difficult case for [Leo] Katz, for the price gouger can be made to seem a swine if we make the facts extreme enough. On the other hand, the case of the price gouger is an easy one to explain under some other theories. James Lindgren would explain that the price gouger is not a blackmailer because he is bargaining with his own rights. Robert Nozick would explain that price gouging is not blackmail because, on balance, the victim is better off for having the opportunity to buy necessities from the price gouger. But Katz's theory better describes our feelings about the price gouger than do these other two theories because it expresses our unease about the price gouger's behavior. Katz tells us that the question finally turns on whether the price gouger is committing a sufficiently grave immorality, and while from some moral perspectives he is not acting immorally (Lindgren's and Nozick's theories are evocative of some of the reasons), from other moral perspectives he is.
    See also Gregory R. Kirsch, Hurricanes and Windfalls: Takings and Price Controls in Emergencies (Note), 79 Va. L. Rev. 1235, 1236-1237 (1993)(footnotes omitted):
    ... Hurricane Andrew provides a "disaster context" for this Note's inquiry into the rules of price controls, emergency takings, and just compensation, and whether the rules encourage and facilitate effective disaster relief. Andrew struck South Florida on August 24, 1992, with 150 mph winds, destroying more than 60,000 homes and leaving as many as a quarter of a million people homeless. The victims' need for food, water, home-repair materials, and other necessities exceeded available supplies. The destruction of much of the public and private infrastructure exacerbated the shortages. As microeconomic price theory predicts, established merchants and opportunistic entrepreneurs began charging sharply higher prices. For example, sheets of plywood, each priced at eight or nine dollars before the hurricane, were selling for as much as sixty dollars per sheet after the hurricane and milk was selling for up to six dollars per gallon. To combat this "price gouging," state and local officials enacted emergency laws prohibiting sellers from charging more than prehurricane prices. Four days after Andrew passed over South Florida, the federal government sent in troops to provide food and shelter.

    When disasters such as hurricanes strike, most Americans expect the government to intervene where markets fail to provide basic necessities. In this century, the federal government has enacted emergency price controls during three wars, during a period of high inflation, and during periods of turmoil in the petroleum markets. The federal government also conducted major takings programs during both World Wars to obtain the materiel necessary for the prosecution of war.

    When prices rise quickly, price controls are an appealing "quick fix." But it is well known that price controls are likely to result in shortages, queues, and black markets. Because price controls may not be an effective solution to market failures, the government may choose instead to buy or take (i.e., requisition) needed goods and distribute them to the public (or, as in wartime, consume them itself). Thus, takings and price controls are alternative modes of emergency market intervention.

    Sunday, August 28, 2005

    Famous Last Words

    Commenting on the release of Larry Peterson, one of Peterson's attorneys told a television reporter that witnesses lie but that DNA doesn't.

    Do you suppose the attorney will say the same thing when the prosecution offers DNA evidence against a client represented by that attorney?

    The statement is a nice example of rhetoric that trades on its literal accuracy but misleads. To wit: It is literally true that DNA cannot (as far as we know) intend to affirm the truth of a statement that it believes to be false -- or vice versa; but it is not true that DNA evidence is incapable of falsely pointing to innocence -- or, for that matter, guilt. See, e.g., Tillers on Evidence and Inference August 27, 2005.

    Saturday, August 27, 2005

    An Example of Source Uncertainty

    NYTimes Online, Associated Press (August 27, 2005):
    Hundreds of cases dating back a decade or more may hang in the balance if investigators confirm that a civilian forensic examiner at the Army Criminal Investigation Laboratory falsified DNA test results.

    The examiner on June 2 admitted making a false entry on a control sample used during one DNA examination, the Army Criminal Investigation Command, or CID, disclosed Friday.

    The lab, at Fort Gillem, Ga., is now reviewing 479 or more cases the accused examiner has worked on since he began in 1995, the CID said.

    Thursday, August 25, 2005

    Colgate Clock

  • brought to you by fuzzy (and digital) logic
  • Jersey City 2005

  • brought to you by fuzzy logic
  • Soft Computing and the Purposes of Formal Analysis of Uncertainty in Law

    Abstract of Forthcoming Paper
    Forms of Uncertainty in Legal Reasoning
    by Peter Tillers
    BISC Special Event in Honor of Prof. Lotfi A. Zadeh
    There have been relatively few attempts to use fuzzy set theory or soft computing methods to dissect or portray inconclusive reasoning in law. From the perspective of a legal professional who is interested in rigorous study of uncertainty in law, this gap in research in fuzzy logic and soft computing is lamentable. Notions such as fuzzy and rough sets and logical procedures such as those described by fuzzy inference rules are extraordinarily evocative of notions and procedures that are routinely found in argument in legal contexts such as litigation. It seems obvious that a major research project on soft computing and uncertain legal argument should be launched. However, recent experience with attempts to use the standard probability calculus to dissect uncertain reasoning in law about factual questions suggests that before a major research project on soft computing and law is begun, interested soft computing researchers and interested legal professionals should try to reach agreement about the possible distinct purposes that any given mathematical or logical analysis of inconclusive legal argument might serve. Putting aside the special (and comparatively uninteresting) case of mathematical methods, or formal methods, that make their appearance in legal settings because they are part of admissible forensic scientific evidence, mathematical or logical analysis of inconclusive argument in law could have any one (or more) of the following distinct purposes (but research could and should explore the extent to the realization of any one of the purposes of formal analysis enumerated below might advance one or more of the other purposes enumerated below):
    1. To predict how judges and jurors will resolve issues in litigation.
    2. To devise methods that can replace existing methods of argument and deliberation in legal settings.
    3. To devise methods that mimic conventional methods of argument in legal settings.
    4. To devise methods that support or facilitate existing, or ordinary, argument and deliberation in legal settings by mathematically illiterate actors such judges, lawyers, and jurors.
    5. To devise methods that would capture some but not all ingredients of argument in legal settings about factual questions or legal questions.
    6. To devise methods that perfect – that better express, that improve the transparency of – the logic or logics that are immanent, or present, in existing ordinary inconclusive reasoning about uncertain hypotheses that arise in legal settings.
    7. To devise methods that have no practical purpose – and whose validity cannot be empirically tested – but that (ostensibly) serve to advance understanding of the nature of inconclusive argument about uncertain hypotheses in legal settings.
    The paper discusses the distinctive characteristics of these various purposes from a legal perspective.

    Thursday, August 18, 2005

    The Confrontation Process

    This morning I think I heard a PBS announcer say that by gaining the endorsement of the American Bar Association, Paul Roberts (Pres. Bush's nominee to the Supreme Court) had "surmounted a mjaor hurdle in the confrontation process."

    Tuesday, August 09, 2005

    Announcement: Old Scholars Law Abstracts (OSLA)

    Announcing Old Scholars Law Abstracts (OSLA)

    The Social Science Research Network is pleased to announce the establishment of a new Legal Scholarship Network journal devoted to showcasing the work of scholars who have been in teaching for forty years or more. Edited by Professors Greer Griench and Gary Giezer, the Old Scholars Law Abstracts provides a forum for posting both completed works and works in progress on any subject relating to law.

    This Journal provides aging law teachers an avenue for locating decrepit peers working in the same substantive area of scholarship. We hope that this Journal will also be of interest to dis-appointments committees and junior scholars in Venice.

    To subscribe to Old Scholars Law Abstracts, please go to http://hq.ssrn.com, where you will find a short registration process. If you have any problems with this process, please consult your personal medical assistant.


    Wesley White
    Director emeritus (h.c.), Legal Scholarship Network

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    Sunday, July 31, 2005

    The Tenth Circuit Makes Pretty Good Sense of the Inference-upon-Inference Rule

    Famously -- "famously," in any event, to those of us who are interested in multistage inference -- , famously, Abraham Lincoln called one set of multistage inferences -- those of his debate opponent Stephen Douglas --, Lincoln called Douglas' pyramided inferences "as thin as the homeopathic soup that was made by boiling the shadow of a pigeon that had starved to death." See Passantino v. Board of Education, 52 A.D.2d 935, 383 N.Y.S.2d 639 (1976)(comment made at Lincoln-Douglas debate at Quincy, Illinois, Oct. 13, 1858). As hard as it is to resist such a lovely metaphor or the word of America's most beloved President, most American Evidence scholars have done so in this instance: they have roundly condemned the supposed prohibition against piling an inference upon an inference. Now, however, the 10th Circuit has suggested that the inference-upon-inference rule is not a prohibition but a signpost that should warn courts, particularly in criminal cases, against allowing juries (or, presumably, judges) from reaching factual conclusions that are too weakly supported by evidence. In United States v. Summers, 2005 U.S. App. LEXIS 14823, 9*-11* (July 21, 2005)(footnotes omitted) the 10th Circuit Court of Appeals said:
    In the civil context, the import of the "inference upon inference" rule has largely been eroded. See Salter v. Westra, 904 F.2d 1517, 1525 (11th Cir. 1990); Cora Pub, Inc. v. Cont'l Cas. Co., 619 F.2d 482, 485-86 (5th Cir. 1980); see also N.Y. Life Ins. Co. v. McNeely, 52 Ariz. 181, 79 P.2d 948, 955 (Ariz. 1938) (setting forth a construction of the rule that has been adopted in numerous jurisdictions); 1A John Henry Wigmore, Evidence in Trials at Common Law Section 41 (Tillers rev. 1983) (criticizing the rule in both contexts as "fallacious and impracticable"). In criminal cases, however, its common-sense dictate continues to bear currency. While some courts have rejected a mechanistic interpretation of the rule, n3 we find its underpinnings to be sound, arising as they do from the requirement that the government bears the burden to prove its case beyond a reasonable doubt. The government may satisfy this burden, in whole or in part, through the use of circumstantial evidence open to interpretation by the jury. Inferences are necessary and indeed proper in a criminal trial, and "a jury has wide latitude to determine factual issues and to draw reasonable inferences from circumstantial evidence." United States v. McCarrick, 294 F.3d 1286, 1293 (11th Cir. 2002). An inference is reasonable if it "flows from logical and probabilistic reasoning," i.e., with experience serving as the touchstone, a jury's inference is permissible where there is a reasonable probability that the conclusion flows from the facts in evidence. n4 Jones, 44 F.3d at 865. The rule that prohibits the stacking of inference upon inference merely indicates that at some point along a rational continuum, inferences may become so attenuated from underlying evidence as to cast doubt on the trier of fact's ultimate conclusion. In other words, "the chance of error or speculation increases in proportion to the width of the gap between underlying fact and ultimate conclusion where the gap is bridged by a succession of inferences, each based upon the preceding one." United States v. Shahane, 517 F.2d 1173, 1178 (8th Cir. 1975).

    While preserving the "inference upon inference" rule in this circuit, we see little tension between our understanding of its import and that espoused in the cases noted above. Nor have our previous cases employed a formalistic approach to the operation of the rule. ...

    Like many courts that have addressed the issue, we do not foreclose the possibility that a reasonable inference built on yet another reasonable inference may in some cases sustain a conviction. However, we believe the "inference upon inference" rule serves as an appropriate signpost, cautioning reviewing courts to measure the "gap" between fact and conclusion before acquiescing in the jury's leap.

    Although the 10th Circuit didn't get absolutely everything right -- the strength of an inference based on a series of inferences is not as dependent on the number of inferences as the 10th Circuit imagines -- there is much to be said for the approach that the 10th Circuit takes. The 10th Circuit's approach tells judges that when evaluating the strength or sufficiency of evidence (at least in criminal cases) they must decompose the foundation of a final inference into a series of inferences upon which such a final inference rests and judges must then assess the strength or force of the entire chain (I would say "complex") of inferences. There is wisdom -- and valuable inferential discipline -- in this approach; the existence of pyramided inferences is not a myth.