Saturday, November 22, 2008

Reasonable Doubt and Christianity; Reasonable Doubt and Guantanamo; Reasonable Doubt and Torture; Reasonable Doubt and Confessions

In late January of 2009 -- on January 23 -- the Cardozo Journal of International and Comparative Law will host a symposium on "proof beyond a reasonable doubt." One focus of the symposium will be the relationship between the reasonable doubt standard and the history of Christian theology. Another focus will be on the relationship between the reasonable doubt standard, confessions, and torture (and here it is expected there will be some talk about Guantanamo -- just a few days after Barack Obama becomes President of the United States). Perhaps President Obama will take notice?

The following people may participate as panelists or moderators:

Professor James Whitman (Yale)
Professor Barbara Shapiro (UCLA, Berkeley)
Milbert Shin (Deputy, US Department of State, Office of War Crimes Issues)
Professor Ronald Allen (Northwestern)
Professor Suzanne Last Stone (moderator) (Cardozo Law School)
Professor David Hamer (University of Queensland)
Professor James Franklin (Department of Mathematics, University of New South Wales)
Professor Mark Denbeaux (Seton Hall)
Professor Kim Lane Scheppele (Princeton) OR Professor Barry Scheck (Cardozo Law School)
Peter Tillers (moderator)

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Inference from Signs

I recently decided, more firmly than I had before, that inference from evidence is almost inexplicable unless one supposes some sort of consonance between the cosmos and the human organism. See P. Tillers, "Are There Universal Principles or Forms of Evidential Inference?," in Crime, Procedure, and Evidence in a Comparative and International Context (Oxford: Hart, 2008). As Albert Einstein said of the intelligibility of the cosmos, that evidence should be able to point to something beyond itself is a deep mystery. It is therefore high time, I think, that I pay some serious attention, not only to Peirce's theory of abduction and semiotics, but to the more than thousand-year history in occidental thought of how "signs" work. During a recent semi-random walk through GOOGLE I found a book published in 2001 that looks very promising and interesting: James Allen, Inference from Signs: Ancient Debates about the Nature of Evidence (Oxford University Press, 2001, paperback reprint 2008). The publisher's blurb states:
James Allen presents an original and penetrating investigation of the notion of inference from signs, which played a central role in ancient philosophical and scientific method. Inference from Signs examines an important chapter in ancient epistemology: the debates about the nature of evidence and of the inferences based on it--or signs and sign-inferences as they were called in antiquity.

Special attention is paid to three main issues. Firstly, the relation between sign-inference and explanation. At a minimum, sign-inferences permit us to draw a new conclusion, and they are used in this way in every sphere of life. But inferences must do more than this if they are to play the parts assigned to them by natural philosophers and medical theorists, who appeal to signs to support the theories they put forward to explain the phenomena in their domains. Allen examines the efforts made by Aristotle, the Stoics, the Epicureans, and in medicine to discover what further conditions must be satisfied by inferences if they are to advance explanatory purposes.

To speak of inference from signs presupposes that the use of signs is a form of reasoning from grounds to a conclusion. However, an alternative nonrational conception is explored, according to which the use of signs depends instead on acquired dispositions to be reminded by one thing or another. This view is traced to its probable origin in the Empirical school of medicine, whence it was taken by Pyrrhonian skeptics, who introduced it into philosophy.

Evidence sometimes supports conclusive arguments, but at other times it only makes a conclusion probable. Allen investigates Aristotle's path-breaking attempt to erect standards by which to evaluate non-conclusive but--in Aristotelian terms--reputable inferences.

Inference from Signs fills an important gap in the histories of science and philosophy and provides the first comprehensive treatment of this topic.

Oxford University Press has this to say about the author:
James Allen is professor of philosophy and a fellow of the Center for Philosophy of Science. He has held a visiting appointment at Yale, been a visiting fellow at Clare Hall, Cambridge, and a Stipendiat of the Alexander von Humboldt-Stiftung at the Universitat Hamburg. His principal interests are in ancient Greek and Roman philosophy. He is the author of articles about ancient conceptions of expertise, ancient skepticism, ancient medicine, Aristotelian logic, Epicureanism, Stoicism, and Cicero.

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The Swarm Intelligence of Ants -- and of the Jury?

I was at an academic conference recently at which a couple of eminent speakers questioned (nay, affirmed) the (ir)rationality of trial by jury. However, am generally of a different mind: I am inclined to think that juries generally get it right -- "it" being, among other things, the facts -- more often than a single professional judge does or than would,say, a randomly-selected group of law teachers. So I was interested in the following recent reminder of swarm intelligence in ants, a reminder that set me to musing once again whether such swarm intelligence exists among groups of human beings such as juries and, if so, in what way and about what sorts of matters: Steve Jones, "E pluribus Unum, NYTimes Book Review (Nov. 21, 2008) (review of Bert Hölldobler & Edward O. Wilson, THE SUPERORGANISM: The Beauty, Elegance, and Strangeness of Insect Societies (W. W. Norton & Company, 2008):
A few simple rules produce what appears to be intelligence, but is in fact entirely mindless. Individuals are automatons. An ant stumbles on a tasty item and brings a piece back to the nest, wandering as it does and leaving a trail of scent. A second ant tracks that pathway back to the source, making random swerves of its own. A third, a fourth, and so on do the same, until soon the busy creatures converge on the shortest possible route, marked by a highway of pheromones. This phenomenon has some useful applications for the social animals who study it. Computer scientists fill their machines with virtual ants and task them with finding their way through a maze, leaving a coded signal as they pass until the fastest route emerges. That same logic helps plan efficient phone networks and the best use of the gates at J.F.K. In the phone system each message leaves a digital “pheromone” as it passes through a node, and the fastest track soon emerges. Swarm intelligence does wondrous things.
'Tis a fact, isn't it, that no single person could have constructed the Empire State Building, invented the micro-chip, or, even, have thought of and have assembled a functioning pressurized rubberized automobile tire? Therefore(?) ... a jury of twelve people can assess can assess ...(?)... [e.g., jealousy as motivation for murder?]... better than any single person can?

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Friday, November 21, 2008

The Law of Evidence on Spindle Law

The law of evidence on Spindle Law is coming.

Stay tuned for details -- details about the forthcoming "Evidence Module."

I will want you to contribute.

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Sunday, November 16, 2008

New Mexico Supreme Court: Thoughtful Comments about Character Evidence

State v. Martinez, -- P.3d --, 2008 WL 4892091 (N.M.,Oct9. 2008) (Daniels, J.):
A. Theories Underlying Admissibility of Character Evidence

The admissibility of character testimony is regulated in two separate areas of our New Mexico Rules of Evidence: in the relevancy rules of Article 4 and in the witness rules of Article 6. Both of those areas are implicated in the issues presented in this case, which call on us to address the admissibility of character testimony as circumstantial evidence of relevant conduct under Rule 11-404(A)(1) (providing for admission in a criminal case of "[e]vidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same"), as well as the admissibility of character testimony as circumstantial evidence of credibility of a witness under Rule 11-608(A) (providing that "[t]he credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation ... [regarding] character for truthfulness or untruthfulness ... after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise"). The two inquiries are founded on the same underlying beliefs about the relationship between character and conduct, but their uses involve different policy considerations and different rules of application.

Courts and commentators have observed that these uses of character evidence are often misunderstood in their own applications and are frequently confused with one another. ...

This case is an illustrative example. The record reflects confusion by counsel on both sides, by the district court, and by the Court of Appeals as to the differing purposes and applications of the separate admissibility of character testimony as substantive evidence and as witness credibility evidence. To aid in understanding and clarification, we first review the theories, history, and purposes relating to their admissibility.

A review of the development of character evidence shows that its use extends further back into our legal history than even such fundamental rights as those of an accused to testify or to have the assistance of counsel. The theory underlying the relevance of character evidence is based on our common human experience that "[t]he character ... of the persons we deal with is in daily life always more or less considered by us in estimating the probability of their future conduct." 1A Wigmore, Evidence § 55, at 1159 (Tillers rev.1983). In one of the oldest scraps of papyrus to survive from the days of the ancient Egyptians, a king instructs a young prince that "[a] good character is remembered." 1 Miriam Lichtheim, Ancient Egyptian Literature 107 (1973).

Modern scientific research now confirms what human beings have always observed in their own family and community relationships, that the average person is able to explain, and even predict, a subject's behavior with a significant degree of accuracy. Susan Marlene Davies, Evidence of Character to Prove Conduct: A Reassessment of Relevancy, 27 Crim. L. Bull. 504, 517 (1991); see Thomas J. Reed, The Character Evidence Defense: Acquittal Based on Good Character, 45 Clev. St. L.Rev. 345, 356 (1997) ("According to the best available psychological data, character or personality trait theory has a scientific basis. Human beings do behave more or less consistently across a multitude of similar situations."). One of the predictive tools by which those determinations are made is the consideration of one's character traits based on patterns of past conduct. See, e.g., Walter Mischel & Yuichi Shoda, A Cognitive-Affective System Theory of Personality: Reconceptualizing Situations, Dispositions, Dynamics, and Invariance in Personality Structure, 102 Psychol. Rev. 246, 246 (1995) (summarizing "recent empirical data demonstrating that individuals are characterized not only by stable individual differences in their overall levels of behavior, but also by distinctive and stable patterns of behavior variability across situations"). Because conduct reflects character, knowledge of character is necessarily helpful in predicting conduct.


The State successfully argued in the district court the same position that it has maintained throughout the appellate process, that "there is no pertinent character trait that has been put in issue" because there is no character trait pertinent to a person's propensity to commit any crime of solicitation, including the crime of solicitation to commit burglary charged in this case. In response, defense counsel has argued that "evidence whether he is honest, he's the type of person that commits dishonest acts of robbery and burglary is pertinent."

In this case, Defendant proffered that his character witnesses would testify that he was both an honest and a truthful person. Throughout this litigation, the parties have made no efforts to distinguish honesty and truthfulness as traits having differing relevance or applicability. Honesty and truthfulness, if indeed they can be considered separate traits in other contexts, have been treated as interchangeable in New Mexico case law involving analogous character trait relevance. See Melendrez, 91 N.M. at 261, 572 P.2d at 1269 (holding that offenses of "deceit, fraud, cheating, or stealing" are relevant to both honesty and veracity for purposes of Rule 609 impeachment). The district court determined that evidence of neither was admissible in a prosecution for solicitation to commit burglary. The Court of Appeals, relying in part on the analogous Melendrez opinion construing relevance for Rule 609 purposes, concluded that evidence of both was admissible. The State asks us to hold that neither trait was admissible, and Defendant asks us to hold that both were admissible. Although the parties did not articulate any distinction between the two, our research reflects that we must address whether we should recognize any such distinction for the purposes of deciding this case.

A few courts in other jurisdictions have taken the view that honesty and truthfulness should be given separate evidentiary application under Rule 404(A)(1), on the theory that "one who is honest must also be truthful because honesty subsumes truthfulness," while "one may be truthful but not be honest." Wiggins v. State, 778 S.W.2d 877, 889 (Tex.Ct.App.1989). Our research, however, has found no psychological, sociological, or other scientific or empirical research to support what appear to be only ipse dixit theoretical distinctions. ... There is simply no persuasive authority to support a theory that psychologists or ordinary citizens would draw any realistic distinctions between the likely behaviors of an "Honest Abe" and a "Truthful Abe."


In this case, the State makes no argument that evidence of honest and truthful character would have been inadmissible if Defendant had been charged with personally committing a burglary. Instead, it argues that a character trait that is pertinent to a charge of burglary is not pertinent to a charge of soliciting someone else to carry out the same burglary.


The State's theory seems to focus on an accused's particular physical role in the planned crime, instead of the presence or absence of his criminal intent, in determining which character traits are pertinent to a consideration of the likelihood of his participation in the crime. This misapprehends why the law considers character to be relevant in determining guilt or innocence. Criminal intent is the essence of what distinguishes criminal from non-criminal conduct.

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. Morissette v. United States, 342 U.S. 246, 250 (1952) (quoting William Blackstone, 4 Commentaries *22); see also State v. Yarborough, 1996-NMSC-068, ¶ 9, 122 N.M. 596, 930 P.2d 131 ("We must be sure that the penalties associated with a felony conviction are imposed only in response to an act done with at least the minimum culpable state of mind."). In the more colorful phrasing of Justice Oliver Wendell Holmes, "even a dog distinguishes between being stumbled over and being kicked." Oliver Wendell Holmes, Jr., The Common Law 3 (Little, Brown & Co.1938) (1881).

The fallacy of focusing on an accused's physical participation, instead of the relationship between his intent and the commission of a crime, is demonstrated by a few hypothetical differences in how one could intentionally assist in the commission of a burglary. The State has never argued with the proposition that an honest person would be less likely than a dishonest person to enter a home with the intent to steal. Would honesty be any less relevant where a person is accused of reaching through a window to accomplish the same theft, without getting his whole body inside? Or where a defendant allegedly used a pair of tongs to reach inside without any part of his own body crossing the threshold? Or where a defendant is charged with having used a remote control robotic device to make the entry and theft? Or where the defendant, as in this case, allegedly used a human agent instead of a mechanical device to accomplish the very same theft? It is obvious to us that the character inquiry goes to whether a person would be likely to participate intentionally in a crime of theft and not on the physical means of accomplishing that dishonest result.

This little gem of an opinion is only seven pages long.

American legal scholars increasingly ignore judicial opinions. Martinez illustrates the folly of such a cleavage between the academic world and the judiciary: apart from the non-trivial fact that judges make much law, Martinez is a forceful reminder that there is much intelligence on the bench.

On the merits: if the legal process were able to digest a multitude of character details with the same subtlety and discrimination that ordinary people do in their ordinary lives, it might make sense to allow the prosecution to introduce details about the character of the accused during the prosecution's case in chief. But I think it is wildly unrealistic to think that this could be done at reasonable cost in an ordinary hum-drum criminal trial or that nuanced evidence about the details of the behavior of an accused over a period of years could be accurately reconstituted in the resource-starved hothouse of an ordinary party-dominated American criminal trial. Indeed, there is reason to wonder how well any system of criminal adjudication could reproduce such information in the detail that is necessary to make such information predictive of human behavior. So we're in a pickle, aren't we?

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