Thursday, June 09, 2005

The Chain Saw Did Not Speak Clearly

Dean Wigmore wrote that "autoptic proference, for the tribunal's self-inspection, is to be distinguished from the use of testimonial and circumstantial evidence as the basis of an inference." He said that "[a]utoptic proference calls for no inference from the thing perceived to some other thing." IV John H. Wigmore, WIGMORE ON EVIDENCE §1150 (James H. Chadbourn rev., 1972).

"Autoptic proference" is just one of Wigmore's many neologisms, even if though it is one of his most famous or infamous ones. "Autoptic proference" means, Wigmore said, roughly the same thing that res ipsa loquitur does: it means that the thing "speaks for itself." Id. "Autoptic proference," Wigmore said, is a source of belief that "proceed[s] by direct self-perception, or autopsy."

In Morse v. State, 10 Ga. App. 61, 61-62, 72 S.E. 534, 534-535 (1911), Judge Powell, speaking for the court, said of an assignment of error that had charged the jury that "evidence may be autoptic proference":

As to the other objection -- that the language is abstractly incorrect -- if incorrectness from a legal standpoint is intended, the objection may be disposed of by citing Wigmore on Evidence, §1150 et seq. If philological incorrectness is referred to, the objection is more tenable; for, while "autoptic" is a good word, with pride of ancestry, though perhaps without hope of posterity, the word "proference" is a glossological illegitimate, a neological love-child, of which a great law writer confesses himself to be the father (see Wigmore on Evidence, § 1150, note 1). Despite all this, we cannot brand the statement as reversible error. This Court is rather liberal in allowing the judges on the trial benches the privilege of big words.
Wigmore deserves due respect. (How could I say otherwise?) But in one recent instance although a thing -- a chain saw -- may have spoken for itself or directly, it spoke ambiguously. I refer to the situation in which a "[m]an with stained chain saw [was] let into the United States." This is the byline for an AP story by Michael Kunzelman. See The Star-Ledger p. 2 (June 8, 2005). The story recounts that on April 25, 2005, a man "arrived at the U.S. Canadian border ... carrying a home-made sword, a hatchet, a knife, brass knuckles and a chain saw stained with what appeared to be blood." A day later the decapitated head of the man's neighbor was found on the floor of the neighbor's home kitchen. The U.S. Customs Service was pressed to explain why it admitted the chain saw-bearing man into the United States. But a spokesman did a pretty good job of it. He said, "Our people don't have a crime lab up there [at the border station]. They can't look at a chain saw and decide if it's blood or rust or paint."

Having been given the opportunity to comment on Wigmore's theory of autoptic proference, or direct inference, I couldn't resist doing so. I wrote:

For our own part, we incline to the view that there is no such thing as "direct apprehension" of any matter that may in some way directly and conclusively resolve any question as to the existence or nonexistence of some matter of fact and we therefore believe that Wigmore erred in claiming that there is such a thing as autoptic proference that involves neither a logical nor an inferential process. We are not alone in our view. Today there are few respectable students of empirical knowledge who would be willing to venture the opinion that there is anything like "immediate perception" or "immediate apprehension" of the existence or nonexistence of some thing. There are still observers who still insist that sense data or perceptions (somehow given to the human organism) are the basis of all reliable human knowledge of matters of fact, but there are few observers who would be willing to say, in the fashion of Wigmore, that the question of the existence or nonexistence of a thing is somehow automatically and decisively proved by the thing itself. There is a general consensus that the statement "there is a brown chair before me" is not a report of an object directly apprehended by the senses but is an inferred conclusion. This latter view seems to rest on at least two premises. There is, first of all, the widespread conviction that our senses can err and thus deceive us. There is no such thing as certainty with respect to things we observe in the world; there are, at best, degrees of probability. There is, second, another conviction, less frequently articulated, that the observing organism always, in principle, organizes the information it collects and assembles it in some particular way; it is never the case that an object outside the observer simply imprints its character on the observer. The observer has a character or makeup that transforms or constitutes sense impressions in some fashion. See Langer, Philosophy in a New Key 89-91 (3d ed. 1957) ("Our merest sense-experience is a process of formulation [original emphasis]. The world that actually meets our senses is not a world of `things,' about which we are invited to discover facts as soon as we have codified the necessary language to do so; the world of pure sensation is so complex, so fluid and full, that sheer sensitivity to stimuli would only encounter . . . `a blooming, buzzing confusion'"); Northrop, Epistemic Correlations and Operational Definitions, in The Logic of the Sciences and the Humanities 119 (1971; reprint of first edition of 1947) (our knowledge that a chair stands before us is the product of an "epistemic correlation" by which we are led from our perception of a two-dimensional patch of color to the conclusion that a three-dimensional chair stands before us; the epistemic correlations are not themselves directly observed; we cannot see a thing such as a chair directly); Piaget, Psychology and Epistemology ch. 4 (Rosin trans. 1971) (chapter entitled The Myth of the Sensorial Origin of Scientific Knowledge; "knowledge never stems from sensation alone but from what actions adds to this fact"; "we no longer believe in . . . `elementary' and preliminary sensations"; further: "When I perceive a house, I do not first see the color of a tile, the height of a chimney and the rest, and finally the house! I immediately see the house as gestalt and then analyze it in detail"; "perception never acts alone"; "perception itself does not consist in a mere recording of sensorial data but includes an active organization in which decisions and preinferences intervene"; the "fundamental vice" of an empirical interpretation of knowledge is "to forget the activity of the subject"); Damaska, Presentation of Evidence and Factfinding Precision, 123 U. Pa. L. Rev. 1083, 1085 & n. 3 (1975) (though recognizing generally the existence of objective facts, the author states that "an element of subjectivity suffuses even such psychological activities as perception. The latter has been shown to be far from a passive registration of stimuli: it depends on interests, previous habits, even on the creative act of grasping structures, thus implying a degree of inferential construction"); Quine, Two Dogmas of Empiricism, in From a Logical Point of View 38 (3d ed. 1980) ("The most naive view of the relation [between a statement and the experiences that contribute to or detract from its confirmation] is that it is one of direct report. This is called radical reductionism. Every meaningful statement is held to be translatable into a statement (true or false) about immediate experience. Radical reductionism, in one form or another, well antedates the verification theory of meaning explicitly so called. Thus Locke and Hume held that every idea must either originate directly in sense experience or else be compounded of ideas thus originating"). (original emphasis). Cf. Morgan, Basic Problems of Evidence 190 (1961) ("[S]o-called real evidence is conclusive as to its own existence. . . . But it is not to say that the real evidence is ordinarily conclusive proof of an ultimate issue"); Steinbruner, The Cybernetic Theory of Decision 94 (1974) ("even in the simplest of operations, such as the perception of speech, the full mental apparatus is brought to bear," and "even the simplest of perceptions do apparently require memory capacity and the capacity to perform inductive inferences"). But cf. Steinbruner, The Cybernetic Theory of Decision 101 (1974) (speaking of Freud's reality principle, Steinbruner opines: "[The reality principle] quite simply asserts that the human mind is in contact with its environment, that stable, important features of the environment impose themselves quite reliably on the mind. In other words, the operations of the mind are in important ways constrained by reality. This thesis has very complicated philosophical overtones; for, as the history of epistemology makes clear, it is very difficult to give a coherent logical account of this proposition. But however difficult it might be to analyze the notion of reality and the process by which it is recorded, it is quite clear that it happens. The human mind does perceive things and in many instances gets it right. . . . The reality principle is certainly not all one needs to know about the mind, but it is an indispensable element of any analysis").
I John H. Wigmore, WIGMORE ON EVIDENCE Section 24 n. 5 (P. Tillers rev., 1983).

But Wigmore was nobody's fool. When saying that the formation of a belief based on inspection of a tangible thing involves no inference, he said that this process involves no conscious inference. IV WIGMORE ON EVIDENCE Section 1150 ("This source differs from [testimonialcircumstantialntial sources of persuasion] in omitting any step of conscious inference or reasoning...). Furthermore, Wigmore was not alone in thinking that it makes sense to say that in some important or relevant sense human beings directly apprehend or perceive some elements of their environment. In my revision of the first volume of his treatise I wrote:

As the analysis by Michael and Adler illustrates, there are respectable twentieth century theorists who maintain that immediate sense perception is in some way the necessary foundation of all reliable human knowledge of matters of fact. (A. J. Ayer and Bertrand Russell are two additional examples of subscribers to this general view). In all cases, however, proponents of this sort of view recognize (as Wigmore -- who was, after all, primarily a law professor -- did not) that an object such as a chair or a bloodstain does not constitute the sort of primitive sense datum or perception that forms the ultimate and secure foundation upon which reliable human knowledge rests and that complex logical and inferential processes (though often implicit rather than explicit) are involved in the seemingly simple conclusion that a thing such as a chair exists (or does not exist). Wigmore seems to maintain that a thing such as a chair simply presents itself to our senses, permitting us to determine directly and immediately whether that chair does exist. A more subtle form of empiricist epistemology maintains that sensations present themselves directly to the senses and that the proposition "there exists a chair before me" is not something that is directly verified by those sensations. See, e.g., Ayer, Language, Truth and Logic 93 (Dover Books 1952) (first published 1946) ("A sensation is not the sort of thing which can be doubtful or not doubtful. A sensation simply occurs. What are doubtful are the propositions which refer to our sensations, including the propositions which describe the qualities of a presented sense-content, or assert that a certain sense-content has occurred. To identify a proposition of this sort with the sensation itself would clearly be a gross logical blunder"). See also ibid. at 121, 122-123 ("there are no objects whose existence is indubitable"; "when one says that a sense-experience, or a sense-content, exists, one is making a different type of statement from that which one makes when one says that a material thing exists").
I WIGMORE ON EVIDENCE Section 24 n. 5 (P. Tillers rev., 1983).

But, in the end, the empiricist defense of the existence of immediate sense perceptions availeth not:

Wigmore regarded the sort of inference under discussion here as "a distinction of psychology which need not be accepted in the law of evidence" because the factfinder, as a practical matter, does not recognize any such inference "and takes the results of its senses as immediate and full knowledge." See note 6 infra. However, even as a "practical matter" this claim is surely wrong in relation to the question of the existence or nonexistence of matters such as bloodstains. Most of us realize that what appears to be a bloodstain may not be a bloodstain but rather may be something else and that the question often cannot and should not be resolved by some sort of simple inspection of the thing in question. Thus, it will not often happen that the thing -- purportedly a bloodstain -- will simply and directly "prove itself." And brief reflection will show that the inability of things to satisfactorily prove themselves or show their true character is not peculiar to matters such as bloodstains but constantly recurs, at least potentially. Is what I see grass or a weed? Is what I feel and see leather, or is it a synthetic substitute? In all of these cases, our certainty that we know what stands before us may in fact become problematic and our certainty that we know what we grasp in our hands may be shaken by scientific evidence that demonstrates otherwise. The fact that in many cases we do not doubt that what is before us is what we think we see before us does not demonstrate that our belief exists apart from any "inference"; it only demonstrates that we have a high level of confidence in a particular belief. Wittgenstein, On Certainty ¶ 2 (Anscombe & Wright eds., Paul & Anscombe trans. 1972; reprint of 1969 edition) ("From its seeming to me or to everyone to be so, it doesn't follow that it is so" (original emphasis)).