Common Sense and Inference

Evidence scholarship -- the kind of evidence scholarship conducted by legal scholars, I mean -- has a variety of common presuppositions. Two presuppositions -- or are they canards? -- are very common:

P or C #1: factual inference involves common sense.

P or C #2: common sense involves ineffable intuition.

But now consider this: Douglas Lenat is engaged in an audacious effort to "formalize" and "computerize" common sense knowledge and reasoning.

Is this project not only audacious, but also ... quixotic? Absurd? Bizarre?

Perhaps. But first give the man a break -- and consider the following account in Stanford Magazine (March/April 2002):

To become smarter, the former Stanford professor [Lenat] argues, computers don’t need faster chips or bigger memories. They need an infusion of common sense—all those ordinary facts and assumptions about the world that enable people to survive and communicate with each other. ...

The fruit of his work is Cyc, smart software that according to Lenat knows and applies common sense. Cyc’s schooling has consumed $60 million and 600 person-years of effort from programmers, philosophers and others—collectively known as Cyclists—who have been codifying what Lenat calls “consensus reality” and entering it into a massive database.

...

No other AI project comes close to Cyc’s scale and ambition, says Nils Nilsson, MS ’56, PhD ’58, an emeritus professor of computer science at Stanford. Though AI researchers acknowledge that the “common sense problem” has to be cracked, most are trying to solve it part by part, he says. “I don’t know that anyone is trying to master all of common sense, apart from Doug.”

...

After 18 years of painstaking tutorial sessions, Cyc now holds some 1.5 million mostly banal assertions of this kind, all rendered in a formal language developed for the purpose. A few examples:

Water is wet.

Every person has a mother.

When people die, they stay dead.

...

Will his brainchild live up to its billing? Vaughan Pratt ... expresses doubt. ... [Pratt, an emeritus professor of computer science at Stanford,] ... thinks the problem is Cyc’s premise. Instead of stuffing computers full of knowledge to make intelligent machines, he says, we need to focus on improving their ability to reason and manipulate facts.

Lenat derides this approach as the result of physics envy. He says many AI researchers are consumed with finding the “Maxwell’s equation of human thought”—a simple, elegant formulation that “you could put on a T-shirt and that would unlock the secret of intelligence.” Until that happens, Lenat says, his way is the only way to get a computer to learn common sense.

Is Doug Lenat a post-modern Don Quixote? Or does he hold an important key to intelligence, even human intelligence?

To find out, come to my conference on "inference, culture, and ordinary thinking in dispute resolution" in New York City! Doug will deliver his spiel on Monday, April 28, 2003, at 2:15 p.m. et seq.; and then Henry Prakken, Glenn Shafer, other panelists, and, yes, even you Dear Reader!, will have the chance to question Doug and challenge his views and his audacious bodacious project.

Does Posner Say What Simon Says?

A friend -- another knowledgeable observer (who I think wishes to remain anonymous) --, this extremely astute and knowledgeable friend & observer has confirmed my suspicion that (Richard) Posner (in his recent paper on evidence) does not say what (Herbert) Simon says. But in mentioning information theory in my earlier post I was not trying to delve into theories of "bounded rationality," which are now much in fashion. [For one interesting collection of papers about this topic, see G. Gigerenzer & R. Selten, BOUNDED RATIONALITY : THE ADAPTIVE TOOLBOX (MIT, 2001).] I wanted, instead, merely to get a handle on the type of "search" or "value of information" theory that Richard Posner embraces in his recent paper on evidence in litigation.

My knowledgeable friend's comment indirectly supports a hunch that I had had about Posner's theory making rational decisions about gathering evidence: Posner's theory of "search" is an application of EU theory, "expected utility" theory -- or MEU theory, "maximization of expected utility" theory; or, SEU, "subjective expected utility" theory; or, a bit redundantly: MSEU, "maximization of subjective expected utility" theory --, a theory that, in this context, would assert, I would think, that a rational decision maker will or should continue to invest in gathering new evidence or information only as long as the marginal (expected) benefit of gathering new evidence exceeds the marginal (expected) cost of doing so -- or, more precisely, only as long as (S)EMC ([subjectively-] expected marginal cost) of gathering new evidence does not exceed (S)EMB ([subjectively-] expected marginal benefit) of gathering additional evidence. {My notation is both unorthodox and crude, but ... you follow me, right, Dear Reader?}

Dear Reader, is this -- such talk about subjective expectations of marginal benefits and the like -- does such talk capture (roughly) the way Posner thinks about the problem of determining an appropriate individual or institutional "stopping point" for further investment in information or evidence? {N.B. There is the complication that in an institutional context -- e.g., a societal context -- we would need to determine whose (subjective) expectations count. But let's leave this little(?) complication aside.}

Here again is my principal argument about Posner's account of evidence in litigation: if Posner does indeed adhere to a simple and "classic" version of value of information theory, the sort of simple MEU theory that I have just tried to describe, then my original thesis holds: viz., the project of calculating benefits and costs of acquiring additional (unknown) information or evidence becomes more difficult -- and, in extremis, perhaps impossible; or, in any event, rather mysterious, a bit ineffable -- to the extent that new evidence contains "surprises," to the extent that new evidence routinely generates new hypotheses or produces mutations in previous hypotheses.

Glenn Shafer has pointed out that bits of evidence often function as "hints," that bits of evidence suggest previously unimagined hypotheses and refinements of existing hypotheses. [Here I must concede, Dear Reader, that Shafer's emphasis seems to be on the capacity of evidence to produce refinements of existing hypotheses rather than on its capacity or tendency to generate entirely novel hypotheses.] If one thinks that the suggestive, abductive, or hint-like character of evidentiary details is pronounced, very substantial, one must, at a minimum, concede -- yes? no? -- one must then concede the possibility that the ability to calculate -- even intuitively -- the probable costs and benefits of acquiring previously unknown information or evidence is limited, perhaps radically limited.

Consider the converse proposition: if one is able to identify the hypotheses about which there is uncertainty (and about which one would like to improve the quality of one's judgments & guesses), then one may (sometimes) be able to make some good guesses -- if one has some knowledge of the pertinent portion of the cosmos, if one has some pretty good "ontologies" at hand -- then one may be able to make better than random estimates about the knowledge-payoff that will result if one takes the time, trouble, and resources to examine particular sources of evidence and information that one had not hitherto examined. But this sort of calculation becomes more "problematic" if one thinks that the process of examining previously-unexamined sources of evidence and information will generate new hypotheses or cause original hypotheses to mutate. (And if one cannot predict such hypothesis-mutation -- to any extent -- then the project of making guesses and estimates about the value of new information becomes altogether inconceivable, no? -- a fact that suggests that human beings to have, must have, some way of guessing about the value or fruitfulness of the "surprises" that acquisition of new evidence might generate. Right? Or? [The moral of this last hedge: it is not my ambition here to turn us all into radical fact-skeptics. I just want to have a theory of evidence that is adequate to the way the world, the mind, and evidence work. In reality, of course, human beings sometimes do {seem to} have an ability to sense which lines of factual investigation are likely to prove fruitful. This sense, one would think, characterizes both good detectives and great scientists.])

Memory & Metaphysics

After many years of meaning to do so, I finally read Giuseppe di Lampedusa's THE LEOPARD. As an Evidence teacher -- and just as a simple human being -- I was struck by the following passage in the book's last chapter, "Relics":

If Tassoni had told the truth, then the long hours spent in savoring her hatred before her father's picture ... had been stupidity .... From the timeless depth of her being being a black pain came welling to spatter her all over at that revelation of the truth.

But was it the truth? Nowhere has truth so short a life as in Sicily; a fact has scarcely happened five minutes before its genuine kernel has vanished, been camouflaged, embellished, disfigured, squashed, annihilated by imagination and self-interest; shame, fear, generosity, malice, opportunism, charity, all the passions, good as well as evil, fling themselves onto the fact and tear it to pieces; very soon it has vanished altogether. And poor Concetta was hoping to find the truth of feelings that had never been expressed but only glimpsed half a century before! The truth no longer existed. Precarious fact, though, had been replaced by irrefutable pain.

***

Speaking of Charles Peirce (as I did in a recent post) I (once again, finally!) purchased a copy of Louis Menand's book THE METAPHYSICAL CLUB (2001). The book was well reviewed in the New York Times Book Review. I sense that the book will charm, but also edify, partly by making connections between the Americans and broader European intellectual trends. Will my hopes be met? In any event the telling of the story of the main characters -- Oliver Wendell Holmes, William James, Charles Peirce, and John Dewey -- surely cannot entirely disappoint!

Peirce Pronounced; Of Abduction, Seduction, and Deduction

Having mentioned "abduction" several times, I feel obliged to mention Charles Peirce, who, it seems, first gave "abduction" its modern philosophical-epistemological-logical connotation.

Having mentioned Charles Peirce, I feel obliged to remind you, gentle readers, that "Peirce" rhymes with "purse." The reason for this counterintuitive pronunciation, it is said, is that the aforesaid CP's surname is descended from the surname "Pers." See, e.g., 1 Peirce Project Newsletter Nos. 3/4 (December 1994). But, as with all things scholarly, there is some dispute about this explanation for the pronunciation of CP's "Peirce."

Having mentioned Charles Peirce and abduction, I also feel impelled to mention that when Peirce used the word "abduction" he probably generally had "deduction" rather than "seduction" in mind; i.e., he probably was thinking that the formation of possible conclusions by deduction is one thing; and by abduction, another. This hypothesis about CP's mental states, however, might also be disputed: CP was a notorious "womanizer."

A Further Note about Information Theory

Isn't the following proposition true: it is possible to calculate the probable benefits of acquiring unknown evidence only if one can make a judgment in advance that the unknown evidence will (certainly or probably) be pertinent to a hypothesis or hypotheses of interest; and, if so, isn't it true that to the extent newly-acquired evidence causes unanticipated and unforeseeable mutations in hypotheses of interest, to that extent it is difficult ("impossible"?) to calculate -- or, even, intuit -- the probable benefits of evidence and information that one does not yet have?

I wonder if my comments about Posner's theory of "search" should be directed at some version of what is sometimes called "value of information" theory. Can someone enlighten me on this point?

Varieties of Information Theory

There are various species of information theory. I by no means claim (see my prior post) that Richard Posner embraces all varieties of that theory. If Posner embraces information theory ("properly so-called"?) -- if Posner embraces information theory at all, he embraces a particular version of that theory. (A knowledgeable person has told me, for example, that Posner does not use Herbert Simon's version of this theory. Whether or not this is true, I don't know.)

I will do some research and post a further note later -- in a day or two, perhaps.

Law and Economics in Search of Evidence

To the extent that law and economics people think about the law of evidence at all, they tend to focus on the notion of "search." See, e.g., Richard A. Posner, "An Economic Approach to the Law of Evidence." The notion of "search" seems to be rooted in information theory. (Do I have this right? I readily confess to not knowing many curlicues in the law and economics field.)

My second assumption about the argument made by people such as Posner is that the notion of "search" concerns the problem of figuring out a rational strategy for investing in the acquisition of evidence or information when one has some uncertain hypotheses in hand and wants or needs to collect evidence or information that may tend to confirm or disprove those uncertain hypotheses. Posner (and other law and economics people?) seem to think ("assume"?) that the prescriptions of economic theory and information theory for dealing with this problem -- the problem, "When should one stop investing resources in information?" -- can explain much about (at least) a rational version of the law of evidence.

Perhaps information theory does shed some light on the treatment of evidence in litigation; I suspect that it does. But I suspect that information theory does not shed as much light on evidence in litigation as some law & economics scholars and similar people might suppose. That's because one key assumption that Posner and some other law and economics people make about evidence may not be "as true" -- or as often -- as such people suppose. I am referring to the assumption that the decision makers -- the players in litigation -- know what the (factual) issues are. This state of affairs -- i.e., perfect, certain, and complete knowledge of the hypotheses in question; i.e., perfect knowledge of the identity of the uncertain hypotheses that are in play --, this kind of certainty about what the issues are sometimes -- and, very probably, frequently or always -- does not obtain or does not fully obtain.

Any account of evidentiary processes in litigation -- the dynamics of evidence and inference in litigation -- must take into consideration that actors in the process of litigation sometimes -- and perhaps always; indeed, probably always --, actors in litigation are bereft of perfect or certain knowledge of the identity and countours of pertinent (uncertain) hypotheses (e.g., the factual issues "in contention" or "in play" in a particular episode of litigation) and that one of the central purposes for the gathering of evidence and information -- the "search" for evidence -- is the search for information -- evidentiary information -- that generates (suggests, inspires) new hypotheses or refinements of hypotheses (e.g., including, of course, factual hypotheses or issues in litigation). To wit (in fancy but accurate language): evidentiary trifles have "abductive" force.

A recognition that evidentiary trifles have suggestive or abductive force -- that they have the capacity to generate novel and unexpected hypotheses -- does not mean that what economists and information theorists have to say about "search strategies" is useless and pointless. But if evidence does have the capacity to generate novel hypotheses (or novel and typically-unforeseen refinements of hypotheses), it does follow that the search strategy that a decision maker employs -- and the kinds of search strategies that a system of legal rules permits or encourages -- must be much more subtle and supple and complex than the search strategy that might rationally be employed or favored when the hypotheses in play are known. This seems to follow because the premise that evidence has abductive force -- the hypothesis that evidentiary trifles, for example, suggest new hypotheses (and new refinements of hypotheses) --, this premise suggests that as new new evidence accumulates the number of hypotheses in play both can and will both mutate and greatly multiply. See P. Tillers, "Weighing Decisions about Proof in Litigation" (alternative title: "Is Proof in Litigation Predictable?: Some Obstacles to Systematic Assessment of Decisions about Proof in Litigation"); P. Tillers, "The Explosive Dynamic Complexity of Evidentiary Processes" (alternative title: "Can AI Help Resolve Some Fundamental Puzzles of Judicial Proof?: Introductory Comments about the "Explosive Dynamic Complexity" of Evidentiary Processes associated with Litigation"); and P. Tillers, "Spotty Semiotics: Further Notes on the Unpredictability of Investigation & Proof in Litigation."

What say you all? Do I have it (roughly) right? Wrong?

Chirac: Man of Peace

William Drozdiak, "Gulf Crisis [1990] Ends 15 Years Of French-Iraqi Closeness; Paris Was Baghdad's Prime Patron in West," The Washington Post, First Section p. A-13 (October 12, 1990, Friday, Final Edition):

Jacques Chirac, prime minister under president Valery Giscard d'Estaing, launched France's quest for high-stakes contracts with Baghdad and soon cultivated a warm rapport with Saddam. Welcoming the Iraqi leader on a visit to France in September 1975, Chirac surprised even his staff by speaking of his affection for his "personal friend."    

A year later, France began constructing the Osirak nuclear research facility at Tammuz that would be bombed in 1981 by Israeli aircraft. Even though France insisted that sufficient controls would have prevented any misuse of the center, Saddam declared in 1976 that "the accord with France is the first concrete step toward the production of an Arab nuclear weapon."    

The close rapport established by Chirac between Paris and Baghdad persisted through several changes of government, as French politicians from right to left on the ideological spectrum helped sustain the strategic friendship. Even the left-wing Socialist Jean-Pierre Chevenement, the current defense minister, became so enamored of Iraq that he helped found the French-Iraqi Friendship Society in 1985.

***

Douglas Davis, "An explosion of Gallic chutzpah," Jerusalem Post, News p. 14A (February 14, 2003):

"The Americans think they have a monopoly on the truth, and they think they have a right to impose it on us," an outraged French guest told me at a smart dinner party in Paris last weekend. "Well, we don't accept it. We don't accept their imperial ways."    

Even the Picasso figure on the wall behind him, which had remained impervious to this haughty explosion of Gallic chutzpah, seemed to blush slightly when high principle turned to hypocrisy and then to outright opportunism.

***

Joshua Glenn, "The Examined Life; Chirac's Other Iraq Policy," Boston Globe, Section Ideas p. E3 (March 2, 2003, Third Edition):

   JACQUES CHIRAC'S OPPOSITION TO the Bush administration's march to war may have won him the applause of antiwar activists, but others have noted that the French president may have less than principled reasons for his position. After all, France has economic ties to Iraq, and Chirac has millions of Muslim voters to worry about, too. And a photograph which has recently been circulating online offers a mute, though eloquent, J'accuse of its own.

In this 1975 photo, then-Vice President Hussein is seen touring the Cadarache nuclear power station in France, accompanied by a bespectacled Chirac, France's prime minister at the time. Chirac freelanced a deal to sell Saddam two nuclear reactors, and arranged to have French nuclear scientists and engineers train their counterparts in Iraq-most of whom are now on the list of Iraqi scientists and engineers that UN weapons inspectors want to chat with. Not only did Chirac help build Iraq's "Osirak" reactor-the Israelis dubbed it "O-Chirac"-near Baghdad, but he also sought to ship Iraq weapons-grade uranium, even though a safer grade was available. (France's president, Valery Giscard d'Estaing, scotched the plan.) By the end of the Iran-Iraq war, Iraq was France's single largest arms customer; Iranians referred to Chirac as "Shah-Iraq."  In 1981, Israeli fighter pilots-including a 26-year-old Ilan Ramon, who died last month on the space shuttle Columbia-destroyed the Osirak reactor shortly before it was due to deliver nuclear capacity to Iraq. Chirac, echoing the views of many world leaders at the time, described the Israeli raid as "unacceptable."

Does the Character Evidence Rule Exist in Colorado?

The Supreme Court of Colorado says that such a rule does exist in Colorado. But if the reasoning in Colorado v. Rath, 44 P.3d 1033 (Colo. 2002), is followed, when (if ever) would the Colorado character evidence rule require the exclusion of the "other bad acts" of an alleged rapist or similar [alleged] miscreant -- or any alleged criminal miscreant of any kind (e.g., alleged robber, burglar, murderer, thief)?

Of course, irrelevant bad acts would {presumably} still be inadmissible in Colorado. But Colorado trial judges don't need a character evidence rule to figure that out: the familiar maxim that irrelevant evidence is inadmissible should suffice.

If the Colorado Supreme Court wants to do away with the character evidence rule in Colorado, perhaps it should 'fess up and do so openly.

Dogs Have the Wrong Kind of Character

Do dogs have character? Well, yes, perhaps they do. But, it seems, dogs don't have enough character -- or, in any event, they don't have enough of the right kind of character -- to make them subject to the prohibition against "circumstantial" use of character evidence. See Brown v. Eberly, 2002 U.S. Dist. Lexis 22012 (E.D. Pa., filed Nov. 14, 2002). So, dogs, take notice: anything you bark can be used against you!

President Putin Presses for Peace ... in Iraq

"Russian artists condemn war in Chechnya," Agence France Presse, International News Section (Monday, March 17, 2003):

Nearly 50 prominent figures of Russia's artistic elite joined in an appeal to Russia's authorities to halt the war in Chechnya and launch peace talks to end the longstanding conflict.

"The government must make the first step to reconciliation and begin talks. Rational, legal and humane reasons demand this, and Russian culture's humanist traditions must be the basis for state policy," said the appeal's signatories, who include chess master Garry Kasparov and writers Viktor Yerofeyev and Vladimir Voinovich among others.

Meanwhile, "though its condemnation of guerrillas' cruelty is just, Russia must renounce barbaric 'cleansing sweeps', torture, summary executions and other senseless acts that only add to extremist ranks," the statement added.

Call for a Really New Evidence Scholar(ship): A Pressing Need for a Really Good Translator

During the last thirty years there has been an explosion in the systematic study of methods of analyzing and arguing about evidence and evidentiary processes. The depth and variety of the study of such methods have increased enormously. For example, Bayesians are exploring Bayesian logic and methods with a depth & subtlety not seen before. Beyond these novel approaches to old-hat Bayesian theory, non-law scholars in many fields are plumbing matters such as temporal & tense logic; planning theory; artificial or computational intelligence; artificial life; various theories of "argumentation" (including dialogue and the logic of rhetoric); various and numerous methods of making use of networks & graph theory (e.g., David Schum's directed acyclic graphs embedded in ancillary networks, Judea Pearl's causal networks, Howard's or Schachter's version of influence diagrams, social network analysis); connectionist processing; parallel & distributed processing; data mining (including "intelligent" data mining); various theories and methods of abduction or abductive inference (see, e.g., John Josephson, David Schum, Umberto Eco); fuzzy and rough set theory; theories of self-regulating agents; new theories of induction; and on and on and on. Many of these "arcane" methods are now deployed in the "real" world -- some of them, for example, help make Japanese trains run fast and others help Microsoft search engines and software bug diagnosis programs work, and some of these methods help to predict the weather.

Despite the importance of such developments & fields -- developments & fields that hold important keys to the way human beings do or might make sound judgments about the world --, most legal scholars in Evidence are only faintly aware of these disciplines and studies (even though some of our number know a fair amount about a relatively small sample of these disciplines, fields, and studies). This kind of ignorance is practically inevitable: just keeping up with diverse developments in modern logic is a full-time job. And that's why I am issuing this plea.

Legal scholars - Evidence scholars, in particular - need an interpreter: they need the services of scholars who know something about the sorts of matters just mentioned and can explain their meaning to Evidence scholars. Formerly, there were a few scholars did a bit of this sort of thing - this important job of translation - but those erstwhile and occasional translators are now busy with other matters. Therefore I urge you to be on the lookout for enterprising new scholars who can help educate legal scholars in evidence about the new wave of logic and evidence scholarship -- and who can do so well enough so that legal scholarship in evidence has the right to keep the name it claims for itself.

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?

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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.

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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.

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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?