## Monday, May 28, 2007

### Time Lines and Probabilities in German Courtrooms

In a controversial case in Germany a court of the first instance acquitted a man (Alfred B.) charged with committing a bank robbery. The evidence against the man included (forgive the following attempt at a translation of the article from Der Spiegel (May 21, 2007):
Alfred B. is arrested on the basis of statements made by the only two eyetwitnesses, and indications of guilt surface immediately: The police discover 14,970 Euros in the rear panel of an old refrigerator [at Alfred B.'s residence]. {Furthermore,] Alred B. had 10,000 Euros [in his possession] on the day of the crime, and a day later [a day after the day of the crime] he deposited 4,970 Euros in [a bank in a neighboring village]. Taken together, therefore, [Alfred B. had] almost as much as the approximately 33,500 Euros that were taken during the robbery. In addition, there were fourteen 500 Euro notes in the money found in Alfred B's possession. [At the behest of the perpetrator] the bank clerk put fifteen such notes in sacks during the robbery.
The two surviving eyewitnesses to the robbery identified Alfred B. as the perpetrator.

Furthermore, according to expert witnesses (the robber shot two people at the bank that he robbed), the perpetrator used a "Walther PP, caliber 7.65 cm." Alfred B. was the owner of precisely the same model revolver (which, however, he reported was stolen years earlier).

So why was Alfred B. acquitted?

One problem, it appears, was with the reported sequence of events (id.):

One of the principal witnesses, the farmer Bauer B., has an ironclad belief that he saw Alfred B. to the east of the scene of the crime at the time of th crime.
A higher-instance court reversed the lower court's acquittal and ordered a new trial.

What is the moral of this (unfinished) story?

The attorney for the family of one of the victims said this:

The big error in the [lower court's] opinion is that indications of guilt were hacked away [by the court] because doubts remained. But one must consider the larger picture: The probability that there was a doppelgaenger with such a gun, with similar rubber boots, and with almost exactly the same amount of money is close to zero."
• My thanks to Prof. Lothar Philipps for alerting me to this case.
• ### Dogs Threaten To Invade the Province of the German Judiciary: Olfactory and Dog Tracking Evidence in Germany

The editors of Der Spiegel plainly do not approve of "dog-tracking evidence." See The Scent of Terror, Spiegel Online International (English) (May 23, 2007).

But there is more to this story.

First, I note that Professor Andrew Taslitz's views of dog-tracking evidence have caught the attention of our friends(?) in Germany (id.):

Even in the US, where the rule of law is currently being dismantled in the war on terror, there are qualms about trusting dogs to search for the truth. "Does the Cold Nose Know?" is the title of a critical study by the US academic lawyer Andrew Taslitz, who is demanding that man's four-legged friends be banned from the courtroom altogether.
Second, Der Spiegel notes an interesting experiment that has the air of a parlor trick:
... [T]here has never been an internationally recognized scientific study that proves dogs' infallibility when it comes to odor identification.

Nevertheless, German investigators rely on a strictly defined scent identification procedure, one that has been put to the test thousands of times. Six tubes are placed on a podium, including the sample belonging to the suspect. The dog has to sniff an object that has been handled by someone other than the suspect and then has to find their sample.

In the final test, six samples are laid out, but not the one from the first test. Now the dog has to sniff the real evidence, maybe a tool used for a break in. If three dogs come up with the same results in the preliminary and main tests, then the failure rate is one in every 1.2 million. That at least is what a researcher at the University of Paderborn has calculated.

Sunny, Skip and Zoey have noses that seem to be infallible. The samples are mixed up and even the dog handler doesn't know which one is which.

Third, a West German defense attorney fears that dogs will invade the province of the judiciary and leave us with K-9s in judicial robes:
Hamburg defense lawyer Gerhard Strate, who has been researching the use of olfactory proof, also finds it hard to believe in the infallibility of animals. "Then we could just replace the judges with dogs wagging their tails."
Fourth, Der Spiegel, ever alert to the prospect of 1984 or of a reversion to the Stasi-State notes that the evidentiary uses of olfactory material may be in their infancy (the subtitle of the Spiegel article is "STASI METHODS USED TO TRACK G8 OPPONENTS"):
US scientists are currently working on digitally upgrading the controversial dog tests, so that the scents could also be used in the war on terror. The Pentagon is financing research at Darpa -- Defense Advanced Research Projects Agency -- to develop a detector that can pick up the scent of foreign combatants.

The researchers in Philadelphia have already discovered that scent is inseparable from the genetic fingerprint and in particular the immune system. "Every person has their own unique, individual smell," says Gary Beauchamp, the director of the Monell Chemical Senses Center, who is working on the Darpa project.

People carry so much information in their scent it would make every data protector's hair stand on end. Beauchamp is convinced that it should be possible to "recognize how old someone is, what their gender is, and what illnesses they have."

### Evidence Examination Spring Semester 2007

Evidence Spring Term 2007 Prof. Peter Tillers

Instructions

This examination has one question.

This is an "open book" "take home" examination.

You have 24 hours to prepare and submit an answer.

You are free to consult any written material of any kind, including library materials, LEXIS, and WESTLAW. [further exam instructions omitted]

Problem

Vila Victim was stabbed to death on June 1, 2006.

Sam Sidekick was also stabbed during the attack on Vila. However, Sidekick did not die on June 1, 2006. Sidekick died in a hospice on September 1, 2006.

The State of Blackacre indicts Albert Accused for the murder of Vila Victim on June 1, 2006. Accused pleads not guilty.

The case against Accused proceeds to trial. The presiding judge is Judge Obscure Wisdom. You are Wisdom’s law clerk. Your name is Diligent Clerk.

The prosecution’s theory is that (i) Albert Accused tried to rape Vila Victim while Sam Sidekick held Victim from behind, (ii) Victim resisted the attempted rape, (iii) Victim’s resistance enraged Accused, Accused pulled a knife out of his pocket, and Accused began stabbing Victim, (iv) Victim fought furiously to fend off the knife attack, and (v) during the ensuing struggle between Vila Victim and Albert Accused, Accused inadvertently stabbed Sidekick as well as Victim.

The defense theory is that Albert Accused stabbed Sam Sidekick to prevent Sidekick from raping Vila Victim and that Accused accidentally stabbed Victim while trying to prevent Sidekick from raping Victim.

At the trial the prosecution offers to have Caring Caretaker give the following testimony:

I work at Hopeful Hospice. I first saw Sam Sidekick there on June 15, 2006. He was in pretty bad shape. I was assigned to be his main caretaker. Of course, all the people who come to Hopeful Hospice are in a bad way; they’re there precisely because they’re dying. But Sam was in a bad way psychically as well as physically, and something other than the prospect of death was troubling his soul.

I decided to do something about that. I decided to subject Sam to guided visual imagery and guided auditory stimuli. The aim of my therapy is both to clear the mind and calm the soul in preparation for death. No one taught me how to do the sort of therapy I do. I’m an autodidact; I taught myself. I got the idea of doing what I do by reading about guided imagery on the web and in books. But no one taught me how to do the sort of therapy I do. My therapy is unique. As I said before, my job is to keep patients comfortable and to bring them peace of mind in any way I can. I can’t tell you why or how my therapy works. All I know is that it works. I know this from trial and error. I’ve used it on many patients, and many patients have come to feel better spiritually as a result. I know that this is so because I’ve seen it happen with my own eyes.

I did my thing with Sam over a period of weeks. For a long time the therapy didn’t seem to work; for the most part Sam just mumbled and jumbled, and he generally spoke in incoherent phrases. If he said anything at all, he said only that he didn’t remember a thing. But then it worked; something clicked. One day – it was August 31, 2006 – after I showed Sam a series of images and had him listen to a series of soothing sounds, Sam went into a trance. It was a deep trance. It was a frenzied trance; he was semi-conscious but excited. That’s precisely the state I seek to induce by the regimen of guided visual imagery and guided auditory stimuli that I use. My regimen has almost always worked in the past. I think it worked this time as well. When Sam came out of the trance, he was lucid and coherent. He told me that his mind was clear, that his soul was at peace, and that he remembered every last detail in his life. And he thanked me.

The very next day – September 1 – two police officers came by. They said they were investigating a case and they wanted to interview Sam. I told them they were free to try. We went to Sam’s room. They set up a digital video disk recorder; they said they wanted to record their interview. They then proceeded to ask Sam questions about someone they called "Albert Accused" and someone else they called "Vila Victim." They asked Sam all kinds of questions. But Sam just rolled around in the bed and moaned. After about ten minutes, they turned to me and said, "Can you get him to talk? We can’t get anything out of him." I told them I could make no promises but that I could subject him to some guided imagery and stimuli to see what if anything would happen. So I did my shtick.

When I do my sort of therapy, I use all kinds of images and sounds. In Sam’s case, I usually used the sound of rippling water and religious imagery such as pictures of St. Francis of Assisi. This time I played the sound of a running waterfall and I showed Sam an image of Joan of Arc, one in which Joan is shown being burned at the stake. This had an immediate effect. Sam seemed to go into a frenzied trance. He rolled back and forth and he moaned loudly. He then shouted, "Albert, did you get her in the chest? But you didn’t mean to stab Vila in the head, did you?" This was all recorded on the videodisk that the police made with their digital recorder.

But things ended badly. Immediately after Sam blurted out his odd question about Albert and Vila, Sam rolled over and went into cardiac arrest. I shouldn’t have agreed to help the cops; I realized that even then. But I made no effort to revive Sam or to get medical help. After all, Sam was at a hospice, not a hospital. It was my job to keep Sam comfortable, not to keep him alive. A few hours later Sam died. It was all very sad.

Albert Accused’s counsel states, "Your Honor, I object to this testimony. Caretaker’s testimony is clearly hearsay. Furthermore, …" Before defense counsel can say anything more, Judge Wisdom interrupts by stating, "Counsel, I don’t want to hear anything more. I’m going to adjourn the trial so that I can consider the admissibility of Caretaker’s testimony." Judge Wisdom turns to you and says:
Diligent, I want you to write a memo for me. I want your memo in my hands in 24 hours or less. I want you to tell me if Caring Caretaker’s testimony or any part of it is admissible or inadmissible. Consider and evaluate all plausible objections to Caretaker’s testimony. But keep your perspective. Focus on the important issues. Don’t discuss every conceivable evidence issue. Moreover, emphasize the nettlesome evidence issues. You’ll have to discuss black letter law, of course. But I don’t need or want an extended lecture on black-letter principles of evidence. I want you to grapple with the hard questions. Oh yes, I almost forgot: Diligent, don’t forget to do your homework. What I mean is this: I’m sure you’ll have to do some legal research. I can’t imagine that you can give me a good analysis of this Caretaker problem without doing some legal research. So get to work.
Write the memorandum and submit it within 24 hours.