Those who do not know history ...: The Importance of Keeping Centripetal Forces in Check?

New York Times Section A; Page 8; Column 4; Foreign Desk (Aug. 2, 1991):

Following are excerpts from President [George H.] Bush's speech today to the Ukrainian Parliament:

In Ukraine, in Russia, in Armenia and the Baltics, the spirit of liberty thrives. But freedom cannot survive if we let despots flourish or permit seemingly minor restrictions multiply until they form chains, until they form shackles...

And yet freedom is not the same as independence. Americans will not support those who seek freedom in order to replace a far-off tyranny with a local despotism. They will not aid those who promote a suicidal nationalism based upon ethnic hatred.

***

BLACK FAMINE IN UKRAINE 1932-33: A STRUGGLE FOR EXISTENCE by Andrew Gregorovich:

UKRAINE, "the breadbasket of Europe" is a land famous for its fertile black earth and its golden wheat. Yet, only forty years ago seven million Ukrainians starved to death although no natural catastrophe had visited the land. Forty years ago the people starved while the Soviet Union exported butter and grain. While Moscow banqueted, Ukraine hungered.

Stark, cold, statistics, the accounts of thousands of Ukrainian survivors and German; English and American eyewitnesses, as well as confessions of Moscow's agents and the admission of Stalin himself: All these have slowly seeped out of the Iron Curtain and have been piled into a tremendous mountain of facts. The whole story, pieced together like a jig-saw puzzle, ends with the biggest puzzle of all: Why did Moscow decide to starve to death seven million Ukrainians?

***

William Safire, "Victory in the Baltics," New York Times Section A; Page 37; Column 1; Editorial Desk (Late edition, Nov. 21, 2002):

In those days, the breakup of the powerful Soviet Union was not so inevitable. But because of their unique diplomatic status, the Baltic States -- Latvia, Estonia and Lithuania -- were seen by U.S. hard-liners as the path to the end of the hollowed-out Soviet empire.

The elder President Bush was blind to this opportunity. On the contrary, on a visit to Kiev he urged Ukrainians to stay with Moscow. (He was furious when his talk was labeled the "Chicken Kiev" speech in this space, and has not spoken to me since.)

...

With freedom comes opportunity: In no-longer-occupied Latvia today, the average age of ministers is 38, and the president, foreign minister and speaker of Parliament are all women.

So is the crusading editor of Diena, Latvia's most influential newspaper. Those were hard but exciting times, says Sarmite Elerte in Riga, remembering the heady days of rising resistance to tyranny. Now we are a happily boring Western country..)

***

So what say you all: should the Kurds in Iraq be trusted to exercise the autonomy - not independence, for this they have forsworn -, can and should the Kurds in northern Iraq be trusted to exercise responsibly the autonomy within Iraq that they already have and that they want to preserve? Or must the United States betray the Kurds - again -, this time for the purpose of persuading the Turks to collaborate with the coalition of the willing in the armed struggle against Saddam Hussein? Do we face a tragic choice? Or is this - the [possible] breaking of Kurdish eggs - just another example of countless instances of the callousness of the powerful toward powerless ethnic and national groups? (I wonder: if the Russians continue to offer resistance to American suasion in the Security Council, will the State Department be moved, now, to complain, loudly, about Russian atrocities in Chechnya?)

Kurds, Eggs & Omelettes

Is it true that a President Bush is about to betray the Kurds -- again? See Nicholas D. Kristof, "Torture, Beyond Saddam," New York Times (online) (March 14, 2003).

Readin', Writin' & -- yes -- 'Rithmetic Too

I almost forgot: if you want to write about evidence, you should also read about it. A good place to start -- and finish? -- your reading is M. MacCrimmon & P. Tillers, eds., THE DYNAMICS OF JUDICIAL PROOF: COMPUTATION, LOGIC, AND COMMON SENSE (Physica- & Springer-Verlag, 2002) (vol. 94 in series STUDIES IN FUZZINESS AND SOFT COMPUTING, Janusz Kacprzyk, editor).

table of contents

There is a bit of 'rithmetic in this readin' material. But there is also common sense there. You can't ask for more than that!

Achieve Knowledge and Renown: Study Evidence and Write about It Too!

Begin by attending the conference on "Inference, Culture, and Ordinary Thinking in Dispute Resolution" -- see conference home page; conference program ; and registration page and information -- and see and hear notables such as the [literal] inventor of [the phrase] "artificial intelligence," John McCarthy (see his home page).

Follow up by composing an article relating to law, probability, and risk; and then publish your article in a pioneering -- "pathbreaking"? -- Oxford University Press journal, "Law, Probability and Risk: a journal of reasoning under uncertainty."

Famous Lost Words: Looking Forward to War with Iraq

Gary Hart, "The Military's New Myths," New York Times, Section A p. 23 (January 30, 1991):

[T]he real combat -- on land -- has yet to begin. There we face a numerically equal, reasonably well-armed opponent defensively deployed. The Iraqi Army has 28,000 Milan antitank weapons, 2,000 Hot airborne antitank weapons, 700 Exocet air-to-surface missiles and 60 Roland mobile antiaircraft missiles. All make the Scuds primitive by comparison.

They will do great damage to allied armored columns and cause considerable inconvenience to supporting air and sea assets.

The Ancestral French Spirit: Flora Lewis, "Mitterrand's Cynical Gaullist Posturing," New York Times, Section A p. 23 (January 16, 1991):

Domestically, Mr. Mitterrand is affected by a new wave of anti-Americanism emanating from an unusual combination of the left, and not only the Communists, and part of the right. Both have decried the prospect of war and what they consider weak-kneed submission to America's will. Some critics make President Bush and Saddam Hussein equivalent, and some argue that Mr. Bush is mainly to blame. France, they say, should show its "difference."

...

France has long claimed "privileged relations" with Iraq, earned by massive supplies of advanced arms and credits for some 15 years. The press still likes to quote Baghdad bazaar merchants saying, "We trust France more than anybody." Whatever Mr. Hussein does to the French and everybody else, the French believe this because they feel they ought to be liked best.

... [T]here have been no political polemics and little public reminder of the French role -- second only to Moscow's -- in building Iraq's arsenal. That is because all governments have sustained the policy, established by Premier Jacques Chirac [emphasis added] under President Valery Giscard d'Estaing, of shoveling weapons to Iraq.

From the beginning of the crisis, France dithered, making appropriate noises of shocked disapproval and suggesting ways of "saving face" for Saddam Hussein. The first French gesture of armed participation was to send the carrier Clemenceau with a great departure ceremony--and no planes, only helicopters.

Meanwhile, Mr. Mitterrand's Defense Minister, Jean-Louis Chevenement, made clear his disagreement about acting against Mr. Hussein. He had been a leader of the Franco-Iraqi friendship society and told people he admired Mr. Hussein because he "is secular and a socialist." Anyplace else, he would have been fired. He was only quietly reminded of his duty and kept on, free to say a week ago that war could be avoided if Mr. Bush would make "a very little gesture" of promising a conference on Israel.

Richard H. Ullman, professor of international affairs at Princeton University, "Flunking World Order 101," New York Times, Section 1 p. 25 (January 12, 1991):

The President has declared that his patience with Iraq is wearing thin. But patience is just what is needed for this one or two or even three year experiment to succeed. If Mr. Bush decides to attack, the experiment will be ruined. The world will not learn whether strong economic sanctions, imposed by a nearly united international community, are sufficient to reverse an act of armed aggression.

New York Times, "CONFRONTATION IN THE GULF; War and Peace: A Sampling From the Debate on Capitol Hill," Section A p. 8 (January 11, 1991):

Senator George Mitchell

Despite the fact that his own policy of international economic sanctions was having a significant effect upon the Iraqi economy, the President, without explanation, abandoned that approach and instead adopted a policy based first and foremost upon the use of American military force. As a result, this country has been placed on a course toward war. This has upset the balance of the President's initial policy, the balance between resources and responsibility, between interest and risk, between patience and strength.

. . .

Senator Edward Kennedy:

War is not the only option left to us in the Persian Gulf. The President may have set Jan. 15 as his deadline, but the American people have not. Sanctions and diplomacy may still achieve our objectives, and Congress has the responsibility to insure that all peaceful options are exhausted before resort to war. Unless we reach that stage, Congress ought not to authorize the President to use force.

At this historic moment, it may well be that only Congress can stop this senseless march toward war.

It may become necessary to use force to expel Iraq from Kuwait, but because war is such a grave undertaking, with such serious consequences, we must make certain that war is employed only as a last resort.

...

... Most military experts tell us that a war with Iraq would not be quick and decisive, as President Bush suggests; it'll be brutal, and costly. It'll take weeks, even months, and will quickly turn from an air war to a ground war, with thousands, perhaps even tens of thousands, of American casualties.

The Death Penalty and the Risk of Judicial Error: An Irreverent Question from an Opponent of Capital Punishment

For the record: subject to an "Adolf Eichmann exception" -- i.e., subject to an exception for mass murderers --, I oppose capital punishment. Nonetheless, I have a question.

Ex-Governor Cuomo was fond of saying -- in his inimitably-condescending way -- that life in prison without the possibility of parole is a punishment that is worse than death.

Suppose that ex-Governor Cuomo was right. If now-ex-Governor Ryan was right in saying that the risk of error in the Illinois criminal justice system is sufficiently great to make the imposition of the death penalty unjust, does it follow that it is also unjust for Illinois to imprison people for life?

Where do we draw the line?

Or perhaps we should not agree with Mr. Cuomo's thesis that imprisonment for life is as bad as death?

I applaud the conviction and imprisonment of murderers, rapists, robbers, and sexual predators. Nonetheless, I wonder: does anyone who is reasonably familiar with the workings of the U.S. criminal justice system seriously believe that a system of criminal justice as starved of money as ours does not produce many more errors (of two kinds: (i) conviction of the innocent and (ii) acquittal of the guilty) than any civilized society should tolerate?

***

An Irreverent Question of a Different Kind

Perhaps New York State did the right the right thing in vacating the convictions of the (former) youths for mauling the "Central Park jogger." But is it appropriate to celebrate this result -- given that it seems reasonably clear -- so reputable newspapers say -- that at least some of those "children" were "up to no good" in other parts of Central Park that same night? Not all victims of legal wrongs deserve beatification.

***

Yes, I admit it: I am a curmudgeon. But I like to think that I just detest cant.

Try Your Hand at Another Exam Question?

If you found my exam question (see post on 12/23/2002) too easy, you might want to try your hand at another take-home exam question that I gave recently. As before, I absolutely promise not to grade any of your answers. I won't even comment on your answers!

This is the question:

Question 1

Our story takes place in the Lincoln Estates neighborhood of Gotham City. Gotham City is much like New York City: Gotham, which lies in the State of Steelacre, is a city on the Eastern seaboard of the United States; it is a large city; it is – by North American standards – an old city; and Gotham is a flourishing city. Lincoln Estates is a densely-settled neighborhood of Gotham City. The populations of both Lincoln Estates and Gotham City are ethnically and racially varied. The socio-economic status of Lincoln Estates, however, is substantially lower than the socio-economic status of Gotham City. Rates of violent crime (such as homicide, assault, and armed robbery), drug trafficking, and auto theft are substantially higher in Lincoln Estates than they are in the Gotham City as a whole. Until recently, however, the burglary rates in Lincoln Estates and in Gotham as a whole were approximately the same.

In January, 2002, the number of nighttime residential burglaries in Lincoln Estates spiked sharply upward. Several local newspaper articles and a number of TV broadcasts characterized this sudden increase in the burglary rate in Lincoln Estates as a “crime wave.” Leading police officials speculated that the rise in the burglary rate in Lincoln Estates was attributable to attempts by desperate narcotics addicts to find new sources of revenue to purchase certain narcotics whose street price had sharply escalated during the last several months of 2001. In February, 2002, the Gotham City police department greatly intensified its anti-burglary law enforcement measures in Lincoln Estates. The number of burglaries in Lincoln Estates in February, 2002, was nevertheless about the same as in January, 2002.

Relations between Gotham City police officers and residents of Lincoln Estates are generally thought to be deeply troubled. Newspapers and TV stations in Gotham City often characterize the relationship between police officers and the public in Lincoln Estates as “appalling” or “terrible.” Two mayoral commissions have investigated the Gotham City police department in recent years. Both commissions concluded – the first commission, in 1992; the second, in 1995 – that the Gotham City police department was infected with a “culture of lawlessness and violence.” The second of the two commissions also concluded that racial animus toward minorities – particularly toward African-Americans – was “endemic in many sectors of the Gotham City police department.” (Police officials, however, vehemently denied such accusations of police lawlessness, excessive violence, and prejudice.) Police enforcement activity in Lincoln Estates has led to a number of deaths of both police officers and members of the public. From 1991 through 2001 a total of four police officers and twelve members of the public were killed in Lincoln Estates as a result of shootouts involving on-duty Gotham City police officers. Ten of the twelve members of the public killed in such shootouts in Lincoln Estates were male African-American teenagers. While almost all of these African-American teenagers were involved in some form of criminal activity when they were shot and killed, three of the shootouts in which the ten African-American teenagers were killed eventuated in successful wrongful death actions against the Gotham City police department and Gotham city police officers: those three wrongful death actions went to trial and the juries in those three trials apparently accepted the plaintiffs’ contentions that police officers in those instances had used deadly force without reasonable justification. Those three wrongful death trials received an enormous amount of media attention – and so did several civil actions that involved allegations of non-lethal police misconduct toward inhabitants of Lincoln Estates.

Late in the evening of March 1, 2002, one or more persons broke into a private residence at 237th Street and 4th Avenue in the Lincoln Estates neighborhood of Gotham City. The culprit or culprits who broke into that residence also unlawfully took and carried away several expensive laptop computers that the culprit or culprits found in the residence. On March 5, 2002, an alert Gotham City police officer – Officer Keith Kelly – noticed that David Delta, who was walking near 237th Street and 1st Avenue, was carrying several laptop computers that were quite similar to the laptop computers that had been reported stolen by the owner of the residence at 237th Street and 4th Avenue. After a brief investigation Officer Kelly arrested Delta.

[*At this point students were told, "The question of lawfulness or unlawfulness of Delta’s arrest is not in issue in this examination. Hence, do not discuss questions such as whether the police had probable cause to arrest Delta. Please see 'Important note,' below, at the end of Question 1."]

In April of 2002 the State of Steelacre indicts David Delta for burglary. The indictment charges that Delta broke and entered into the residence at 237th Street and 4th Avenue with the intent of committing a felony – grand theft – therein; the indictment charges that Delta broke into the dwelling with the intent of stealing laptop computers. Steelacre, however, does not indict Delta for grand theft.

Delta pleads not guilty. He also elects to be tried by a jury. The twelve-member jury selected for Delta’s trial seems fairly diverse. For example, five of the jurors are male, five of the jurors are African-American, three of the jurors are Hispanic, and five of the jurors are 18-25 years old.

At trial the prosecutor irrefutably establishes – without objection – that the laptop computers that Delta was carrying at the time of his arrest on March 5, 2002, were the computers that had been unlawfully taken on March 1, 2002, at 11:00 p.m., from the residence at 237th Street and 4th Avenue. (It is possible that Delta’s counsel will try to suggest or show that Delta innocently purchased laptop computers that happened to be stolen.)

After introducing evidence that tends to show that someone – one or more culprits – did commit burglary at 237th Street and 4th Avenue at 11:00 p.m. on the night of March 1, 2002, the prosecutor offers to have Carlo Donato give the following testimony:

"My name is Carlo Donato. I am a Gotham City police officer. I guess I’m 'White.' Or perhaps I’m 'Caucasian.' I’m really not sure what the proper terminology is. I only know that I’m Italian-American. In any event, in the very early morning of March 2, 2002, I was on plainclothes patrol with Gotham City police officers John Carter and Jane Martinez. They were also in plainclothes. Officer Carter is African-American. Officer Martinez is Hispanic. We were in an unmarked patrol car, a 1997 Chevrolet Impala. I was driving. Carter and Martinez were sitting in the back seat. They were trying to be unobtrusive."

"At about 1:00 a.m. I came to a stop at a red light at the intersection of 238th Street and 5th Avenue in Lincoln Estates. I glanced to my left. I saw a sleek new BMW directly next to me, just a few feet away. It apparently had also stopped at the red light. I saw two African-American male teenagers in the BMW. One of them was Albert Alpha. The other was David Delta. I didn’t know their names at the time but I later identified them from a photo array. Alpha was in the driver’s seat of the BMW. Delta was to the right of Alpha; Delta was sitting next to the front passenger-side window of the BMW. So Delta was to my left; he was sitting about two feet away from me, directly to my left."

"You will remember that I said that I glanced to my left and noticed Albert and Delta in the adjacent BMW. Immediately after I did that, Delta bent down and disappeared from my view. Alpha then abruptly did the same thing. I blurted out, 'Stop! Police! What are you guys doing out here in the middle of the night? What are you hiding?' Alpha quickly sat up again and glanced at me and at the patrol car I was driving, the Chevrolet Impala. A fraction of a second later the BMW’s tires started squealing furiously and the BMW lurched through the intersection. The car went through a red light; the light at the intersection was still red. The BMW then sped away. It was going very fast. I gave chase in my Impala, but I was unable to catch up."

"That’s what happened. Carter and Martinez will back me up."

Please describe and evaluate David Delta’s probable objection or objections to this offer of evidence.

Important note: You have been told (above) that Delta was arrested on March 5, 2002. Furthermore, an argument might be made that the proffered testimony by Officer Donato shows or suggests that Alpha and Delta were arrested, detained, or stopped on March 2, 2002. It might even be argued that the proffered testimony by Officer Donato shows or suggests that a search or some other significant police intrusion took place on March 2, 2002. For purposes of this examination, however, the question of the lawfulness or unlawfulness of any arrests, stops, searches, or other police intrusions is not in issue. The only question you are to consider here is whether the evidence offered by the prosecution is admissible at trial on the question of Delta’s guilt or innocence of the crime of burglary. Do not discuss issues such as the existence or non-existence of probable cause or reasonable grounds for any arrest, custodial detention, stop, search, or any other police intrusion that may have taken place during the scenario recounted in Question 1.

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

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

Question

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

Albert pleads not guilty.

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

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

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

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

Albert’s counsel objects to these offers of evidence.

Please evaluate the prosecution’s offers of evidence.

***

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

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

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

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

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

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

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

Cf. What Is Wrong with Character Evidence?

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

***

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

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

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

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

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

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

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

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

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

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

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

***

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

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

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

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

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

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

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

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

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

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

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

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

workings of judicial proof

^
|
|
|

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

^
|
|
|

received belief

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

Isn't that right?

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

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

***

Your thoughts?

***

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

Evidence in General and Evidence in Particular

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

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

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

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

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

For example:

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

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

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

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

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

Are we in agreement so far?

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

***

Stay tuned for further ruminations.

Do you have any thoughts about my musings so far?

Evidence Awake

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

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

Solitary is no fun.

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

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

Evidence Asleep

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

But I shall return!

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

President George W. Bush!?!?

So Yale Law School Professor Jack Balkin asserts!

Hyperbole?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Post-9/11 Reflections on Immigration and Liberty

A Post-9/11 View of Liberty

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

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

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

Liberty as Vehicle

Liberty brought me to the United States.

Literally.

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

The Priority of Liberty

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

Literally.

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

***

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

Rethinking Relevance

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

A. What does this high-sounding principle mean?

1. Does it mean that irrelevant evidence is inadmissible?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

***

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

The Character of Habit & The Character of Character

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

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

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

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

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

How pious we sometimes are about what the law does!

Is the character evidence prohibition an example of societal hypocrisy?

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

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

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

The same question in different dress:

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

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

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

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

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

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

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

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

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

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

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

***

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

Evidence of a Real Law School

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

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

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

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

Veridical & evidentially-supported veritas to you all!

DNA & the Central Park Jogger Case

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

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

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

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

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

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

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

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

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

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

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