Save the Hubble

Consider signing a petition to save the Hubble. Go to http://www.savethehubble.org/petition.jsp

A Problem in Relevance, Conditional Relevance, and Dependent Conditional Probability

A crime is committed. The perpetrator leaves behind a shirt. The issue at trial is identity: Did the defendant commit the crime or was it someone else? At the trial the prosecutor offers to show that twenty different dogs at twenty different times were allowed to sniff the shirt left at the scene of the crime and that each of those dogs separately led the dog handlers to the defendant.

Evidence is also presented at the trial about the ability or inability of each of the 20 dogs to follow a scent. The jurors consider each dog and the evidence about each dog separately. They conclude, in each instance, that each dog more probably than not cannot follow a scent.

Should the jurors have been told in this case to disregard evidence about the tracking behavior of the dogs (that each of the twenty dogs led dog handlers to the defendant) if the jurors conclude that it is more probable than not that each dog cannot follow a scent? Alternative statement of the problem: Should the trial judge refuse to admit the dog-tracking evidence if the trial judge concludes that there is insufficient evidence to permit a reasonable jury to conclude that it is more probable than not that each dog is capable of tracking a scent -- if, that is, the trial judge concludes that a reasonable jury would have to find that it is more probable than not that each dog cannot follow a scent?

See Federal Rules of Evidence 104(b), 401 & 402.

What Is Nonlinear Reasoning?

Well, now that we've figured out what Justice Souter meant by linear reasoning, let's figure out what he might have thought that nonlinear reasoning is.

Doesn't nonlinear reasoning have something to do with complexity? Chaos?

Here's a possibility:

Nonlinear reasoning = complex reasoning

Mmm, that doesn't sound quite right. Ah, I have it:

Nonlinear reasoning = chaotic reasoning

Mmm, that doesn't sound quite right either. He couldn't have had that in mind, could he?

Oh, I have it now. How silly of me. Here it is:

Nonlinear reasoning = reasoning about chaotic systems

So evidence and inference in litigation are chaotic?

Mmm ... , can that be?

Well, over time -- in time -- ... perhaps. Cf. P Tillers, The Explosive Dynamic Complexity of Evidentiary Processes Associated with Litigation; Spotty Semiotics.

But wait a minute. What does it mean to say a system is chaotic? Does it mean that the brain of (wo)man cannot decipher it (to some degree)? Does it mean that the mind of (wo)man cannot explicitly decipher it (to any degree)?

Is weather a chaotic system? Does it help to talk about it -- even in the absence of (the computational power of) computers? {Red sky in the morning ..., ....} Mmmm, well, if weather is mind-numbingly chaotic, there must degrees of chaos, no? (The chances that it will be sunny in Seattle on July 1, 2004, are excellent. I will wager [offline] $100 that on July 1, 2004, it will be sunny in Seattle. {We will have to define "sunny." (I am not being cute or hypermodern.)}

What Is Linear Reasoning?

Justice Souter thinks (see my previous two posts) that reasoning about the relevance of evidence does not involve linear reasoning.

What is linear reasoning?

Is it Linear Logic? See, e.g., Trobin Brauener, Preface, INTRODUCTION TO LINEAR LOGIC v (1996):

Linear Logic was introduced by J.-Y. Girard in 1987 and it has attracted much attention from computer scientists, as it is a logical way of coping with resources and resource control.

Does linear reasoning amount to reasoning with linear equations? See, e.g., hyperdictionary at http://www.hyperdictionary.com/dictionary/linear+equation:

[n] a polynomial equation of the first degree

Is linear reasoning, reasoning about spaces defined by two or more rectilinear coordinates? Reasoning with linear differential equations? Is nonlinear reasoning, reasoning about spaces defined by curvilinear coordinates? Does nonlinear reasoning involve equations that generate curved lines in rectilinear space? ...

What, precisely, is a "linear scheme of reasoning"? And is all analysis or argument about evidence linear? What makes Souter (or his law clerks) think so?

Does Souter believe that reason cannot portray (i) exponential increases or (ii) the influence of multiple variables?

Does Souter believe that logic cannot "handle" scenarios?

Decision theory deals with alternative scenarios. Judea Pearl's subtle logic certainly deals with causal scenarios. So does Glenn Shafer's. [Souter said that a syllogism is not a story. This is true. {Did anyone ever assert the contrary?} But even if a syllogism is not a story, does it follow that deliberation about alternative scenarios or about alternative stories lies entirely beyond logic? If so, what makes Souter (or you) think so?]

News Flash: Six Judicial Opinions See Some Merit in Souter's Thesis of Non-Linear Reasoning about Evidence!

Six judicial opinions found that the phrase "linear scheme of reasoning" was not so insensible that it should not be quoted. See

United States v. Becht, 267 F.3d 767 (8th Cir. 2001)

United States v. Hill, 249 F.3d 707 (8th Cir, 2001)

United States v. Pabon-Cruz, 255 F. Supp. 2d 200 (S.DN.Y., 2003)

Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris, Inc., 138 F. Supp. 2d 357 (E.D.NY., 2001)

Briggs v. Dalkon Shield Claimants Trust, 1997 U.S. Dist. LEXIS 17335 (D. Md., 1997)

State v. Alexander, 214 Wis. 2d 628, 571 N.W.2d 662 (1997)

Birth and Death of Postmodern Evidence -- the Rise and Sudden Decline of a New Non-Science of Evidence -- in the Halls of the Supreme Court

Seven years ago Justice Souter proclaimed (on behalf of the Supreme Court), "Evidence ... has force beyond any linear scheme of reasoning." This proclamation, made in Old Chief v. United States, 519 U.S. 172 (1997), was issued in support of the contention that reason cannot reveal all the ways in which evidence may be relevant to factual issues at a trial.

Ever since 1997 I have been telling my students that this eruption of postmodern evidence theory in the halls of the Supreme Court would be brief. I have discovered that Souter's irrationalist, intutionist, or holist perspective on evidential argument apparently did not even have a half a half-life: a LEXIS search (conducted on March 7, 2004) shows that not one single opinion by any court in the United States (from the highest to the lowest, state or federal) has used Souter's dismissive phrase "linear scheme of reasoning."

I have not used variants of "linear" in my search -- variants such as "nonlinear." So it is possible that some judge somewhere has seen merit in Justice Souter's theory that the mind of (wo)man cannot divine or articulate the various ways in which evidence may be relevant.

Postscript: I do not belief that all steps in or features of inference can be made explicit. However, Justice Souter's evidential intuitionism cannot easily co-exist with fundamental assumptions of the administration of the rules of evidence in trials -- with, for example, the rule or principle that an offeror of evidence has an obligation to inform the trial court of the purpose and relevance of the evidence it offers. Furthermore, there is a big (and unwarranted) step from the proposition that not everything can be spelled out to the proposition that nothing can be spelled out.

Further postscript: Nonlinear mathemtical reasoning may be hard to follow, but it is -- contrary to some rumor -- explicit reasoning.

Urgent additional postscript: Whoops! Well, perhaps my LEXIS search was misphrased. I have found one opinion that quotes Justice Souter's phrase. See United States v. Becht, 267 F.3d 767 (8th Cir., August 21, 2001). There may be others. I will report back (but I will not perform revisionist surgery on my original message, I will not delete my mistake).

The Probability and Improbability of Loaded Dice in Manhattan

Several weeks ago I tried to buy loaded dice -- to illustrate some principles of probability for some of my students. The people at the gaming store that I found, however, said they had no loaded dice and did not know where I might procure some. One employee did say that loaded dice (with magnets) are expensive, perhaps $800/a pair. But he promptly added that it is impossible to buy loaded dice in Manhattan and that he could not tell me where I might buy some.

Chance Cancer Clusters: Woburn Redux?

See the article in the Boston Globe.

Direct Inference:Indirect Inference::Direct Perception:Indirect Perception?

Many or most of the 20th century giants of U.S. legal scholarship in the law of evidence in the took the position that there is such a thing as direct or immediate inference; some of them said, for example, that some types of tangible evidence present information directly to the senses and do not require any inference about such information by a human observer. Some legal writers and many philosophers, however, have challenged this view or have taken a different view. I belong in this latter fraternity. In my (two-volume!) 1983 revision of the first volume of Wigmore's classic treatise on the law of evidence I said that "there is no such thing as direct evidence." (Ironically, Wigmore took a quite different position: he coined a phrase -- "autoptic proference" -- to describe how tangible things present themselves immediately to the senses. [Today no one uses Wigmore's neologism except to poke fun at Wigmore.])

I had thought that this disagreement about the existence or nonexistence of direct inference had been put to bed. But perhaps I am wrong. There is today a controversy still among psychologists and other serious students of perception about the existence or non-existence of direct perception. See, e.g., Claire F. Michaels and Claudio Carello, Direct Perception (1981), which is available at http://ione.psy.unconn.edu/~psy254/MC.pdf. (Professors Michaels and Carello call the study of direct perception the "ecological approach.")

What do you think, Gentle Reader?

Consider this question: Even if there is such a thing as direct human perception of the world, is there much or any direct perception or direct inference of or from the evidence presented in legal proceedings such as trials?

My question more precisely stated: Even if direct perception or direct inference occurs in trials, is it ever the case that direct perception or direct inference suffices to establish a legally-material factual proposition in a judicial trial or other legal proceeding?

Er, ..., you can perhaps see which way the wind is blowing in this writer's brain.

Perception as Inference

I just received an announcement of a conference about "visual thought."

Lovely expression!

Here is the announcement:

The depictive space of perception
A conference on visual thought

June, 7-9 2004
Mitteleuropa Foundation, Bolzano, Italy

Perceptual space and depictive space show strong similarities. Both are characterized by a sort of extendedness which unfolds dynamically, and which shows the close analogy between the performance of an act of perception and an act of design. Neither art nor vision are, in fact, veridical copies of the world, rather both seem to be operating on the representational structures of vision. On these premises, a scientific phenomenology, experimentally oriented, seems to be a more appropriate paradigm in vision science, especially in order to understand the dynamics of the ongoing perceiving. The conference has a starting point draws on the results of the artistic and cognitive theories of Klee and Arnheim and Gestalt theory, and explores their application to contemporary research in vision science.

Ample time will be allocated to discussion. If you are interested in attending the conference and/or contributing your own ideas, please send a mail (with a two-page abstract if you intend to give a paper) to Liliana Albertazzi (liliana.albertazzi@unitn.it) before April, 15.

Invited Speakers
1. L. Albertazzi (Trento University), The Depictive Space of the Mind
2. C. E. Connor (John Hopkins University), Shape Representation in Neural Populations
3. T. Economou (Georgia Tech), Studies in Complexity, Ambiguity and Emergence in Design
4. F. Fol Leymarie (Brown University), The Computation of Visual Fields in Arts
5. J. Koenderink (Utrecht University), The Geometry of Pictorial Space
6. M. Leyton (Rutgers University and D.I.M.A.C.S.), A Generative Theory of Shape
7. M. Massironi, (Verona University), The Space of Representation and the Representation of Space
8. G. van Tonder (Kyoto Institute of Technology), Order and Complexity in Naturalistic Landscapes
9. D. Viswanath (UC Berkeley), Perceptual Representation of Surfaces and Objects and the Implications for Design
10. J. Willats (Birmingham University), Some Structural Equivalents Shared by Paul Klee's Paintings and Children's Drawings
11. A. Zimmer (Regensburg University), Visual Art and Visual Perception: An Uneasy Complementarity
12. S. Zucker (Yale University), Visual Computations and Visual Cortex

The conference will be organized by the Mitteleuropa Foundation, Bolzano, Italy (www.mitteleuropafoundation.it <http://www.mitteleuropafoundation.it/> ) Applications should be sent to Liliana Albertazzi (liliana.albertazzi@unitn.it)

Important Dates:
Deadline for abstract submissions: 15 April 2004
Conference: June 7-9, 2004
****************************************************
Dr Roberto Poli, PhD
Editor-in-chief of Axiomathes, Kluwer:
http://www.kluweronline.com/issn/1122-1151
Papers and other information http://www.mitteleuropafoundation.it
preferred e-mail:
roberto.poli@soc.unitn.it
Dynamic ontology conference:
http://www.unitn.it/events/do/

A Legal Mess

Much judicial commentary (and some professorial commentary) on the "doctrine of chances" fails to distinguish between

(i) the probability that a random selection of instances from some appropriate reference class will produce a conjunction of some specified states or values (e.g., "in instance 1 -- random draw number 1 --, event of type X occurs" and "in instance 2, event of type X [again] occurs" );

and

(ii) the probability, given a conjunction of of some specified states [such as in #(i)], that a criminal defendant caused those states of affairs.

Merely because the conjunction of events in situation #(i) above is highly improbable when instances of the reference class are chosen at random does not necessarily mean that some causal explanation -- such as "David Defendant caused such an improbable [i.e., rare] conjunction of events" -- is highly probable.

Why do legal professionals find it so hard to get a handle on the distinction between probabilities of type (i) and probabilities of type (ii)?

BTW: Does the following principle make intuitive sense to you?:

The occurrence of very improbable events and of very improbable combinations of events is highly probable.

Consider a restatement of this principle:

The occurrence of rare events and of rare sets of events is, over the long run [alternatively: "given a sufficiently large number of trials"], highly probable.

Dangerous Learning

A little statistical learning is a very dangerous thing.

Evidence and Holism: Judgments about Wholes and Parts in Evidence Assessment

There is an important new article about the assessment of evidence in litigation: Dan Simon, Chadwick Snow & Stephen Read, "The Redux of Cognitive Consistency Theories: Evidence Judgments by Constraint Satisfaction." The authors' abstract states that "making decisions from multiple pieces of evidence is ... is bi-directional - decisions follow from the evidence, but evaluations of the evidence shift towards coherence with the emerging decision." The paper is not pure speculation: the authors report results from five empirical studies that test and substantiate their hypothesis.

I assume that the authors would honor requests for reprints. Write dsimon@law.usc.edu, csnow@usc.edu, or read@usc.edu.

SIDS, Statistics, Accidents, Genetics, & Criminal Guilt – and, for Connoisseurs of the Law of Evidence, the "Doctrine of Chances"

There are some interesting new reports about another now-notorious UK Sudden Infant Death Syndrome [SIDS] case – the Angela Cannings case – a case in which much was apparently made out of statistics about the relative frequency (and, in particular, about the rarity) of SIDS deaths. See the following BBC reports:

October 28, 2003, BBC Report

BBC:

“The case against Angela was supported by the same experts who got it wrong in the prosecutions of Cheshire Solicitor Sally Clark and pharmacist Trupti Patel.”

Nov. 3, 2003, BBC News Report

BBC:

“When Cannings was convicted in April 2002, the jury had been told that the deaths of three of her children could not have been caused by a genetic defect because there was no evidence of other infant deaths in her close relatives.

“…

“The Real Story team discovered Cannings' paternal great-grandmother suffered one infant death and Angela's paternal grandmother two.

“The issue of how investigations and prosecutions of unexplained deaths of infants are conducted came under the spotlight with the acquittal on appeal of solicitor Sally Clark.

“In that case Professor Roy Meadow told the original trial that two cot deaths in one family were a 'one in 73 million chance' - something disputed by statisticians.

“After upholding Clark's appeal, the Court of Appeal judges said the medical evidence of a 'one in 73 million chance' had been grossly misleading.

“...

“In Cannings' case Professor Meadow told the jury her babies could not have died a normal cot death because they appeared healthy immediately before they died.”

Cf. Wilson v. Maryland, 370 Md. 191, 803 A.2d 1034 (Ct. App., August 5, 2002), wherein the Maryland Court of Appeals – Maryland's highest court – emphasized the importance of considering the possibility of dependencies due to genetics when using the product rule to calculate the probability or improbability multiple [innocent] SIDS deaths [clusters of SIDS deaths] within a single nuclear family. While I think the Maryland court is entirely right about this, I cannot help but wonder if in a case such as the Angela Cannings case, researchers should consider the possibility that the clusters of SIDS deaths in a nuclear family might be attributable in part to "family cultures" that result in intergenerational transmission of infant care practices. (I have no particular reason to think that any such factor was at work in the Cannings case but, as a scholar, I have a hunch that this possible alternative explanation – an alternative to (i) a genetic explanation and (ii) chance as an explanation – should be investigated in a situation such as the one in the Cannings case – where it is known that SIDS deaths have occurred among children of the parents or the grandparents. {Perhaps this possibility has been explored: I don't know if it has been studied or not.})

Latvian Folk Songs

Here is a bit of information about Latvian folk songs.

Please note that Latvia's president, Vaira Vike-Freiberga, is, not only a woman, but also a serious (early) contributor to the scholarly study of Latvian folk songs. Did anyone say Latvians are backward? Unintellectual? Male chauvinists? Well ... er, ...

The web page linked above states that "more than 1.2 million texts and 30,000 melodies have been identified."

Latvians Learn Brazilian Portuguese

Flash! Latvia ties Turkey in second match and moves on to next year's playoffs for the European Cup! (We're talking soccer here. Not American-style football. And that's a good thing -- since both Yale and Ohio State lost on November 22. But watch out for next year! [My university has no U.S.-style football team. So I must root for alien teams.])

Actually: far more exciting (as far as Latvia goes): The quadrennial folk song festival in Riga. Did you know that Lithuania has the world's largest collection of folks songs, and Latvia, the second largest? (Second-largest is good enough for me.)

Latvian was purely a spoken language -- a peasant's spoken language -- until the 19th century. Latvian and Lithuanian are loosely -- but only loosely -- related to the Finno-Ungric (& Estonian) language group.

I will do some fact-checking. If I have made any errors, this page will change -- in a day or two.

Latvia: The New Brazil?

Latvia, having defeated Sweden, defeats Turkey, 1-0, in soccer (aka football), on November 15, 2003. Next match with Turkey: Wednesday, November 19.

Interesting books ...

... recently received or acquired:

Andrew Palmer, Proof and the Preparation of Trials (Sydney: Thomson Lawbook, 2003)

Joseph Halpern, Reasoning about Uncertainty (MIT, 2003)

Paul Kirschner, Simon Shum & Chad Carr, eds., Visualizing Argumentation: Software Tools for Collaborative and Educational Sense-Making (Springer, 2003)

Henry E. Kyburg, Jr. & Choh Man Teng, Uncertain Inference (Cambridge U. Press, 2001)

Alva Noë & Evan Thompson, eds., Vision and Mind: Selected Readings in the Philosophy of Perception (MIT, 2002)

Lorenzo Magnani, Abduction, Reason, and Science: Processes of Discovery and Explanation (2001)

Dov M. Gabbay, C. J. Hogger & J. A. Robinson, eds., Epistemic and Temporal Reasoning (Clarendon-Oxford, 1995) (Vol. 4 of HANDBOOK OF LOGIC IN ARTIFICIAL INTELLIGENCE AND LOGIC PROGRAMMING)

Douglas Walton, Legal Argumentation and Evidence (Pennsylvania State University, 2002)

Two Interesting Books Generally Ignored, Unjustifiably, by Legal Scholars in Evidence:

J.S. Covington, Jr., The Structure of Legal Argument and Proof (John Marshall Pub. Co., 1993) (perhaps a victim of insufficient marketing)

Peter Oehrstroem & Per F. V. Hasle, Temporal Logic: From Ancient Ideas to Artificial Intelligence (Kluwer, 1995)

Another Interesting Book:

Anne Applebaum, Gulag: A History (Doubleday, 2003)

The Authority of History for the Modern Law of Proof and Evidence

Question: Should the ancient history of Anglo-American judicial treatment of evidence have substantial authority for the interpretation or formation of 21st century rules governing factual adjudication in litigation?

By "ancient history of Anglo-American judicial treatment of evidence" I am inventing my own terminology for this particular occasion: I am referring to the history of evidentiary practices in English and Colonial courts before ca. 1800.

Written records about legal treatment of evidence in English and Colonial courts before 1800 are fragmentary. Legal historians sometimes believe that a single documentary source or a single set of documentary sources about historical legal practice is decisive. See, e.g., John Langbein's discussion of the "Ryder sources," Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources, 50 U. Chi. L. Rev. 1 (1983) (Langbein extracts some fairly firm conclusions from the Ryder sources).

Despite the seemingly fragmentary nature of the historical record before ca. 1800, there are occasional suggestions that centuries-old English historical practice explains some or many features of the contemporary law of evidence. See, e.g., George Fisher, The Jury's Rise as Lie Detector, 107 Yale L.J. 575 (1997) (there is no suggestion in this article that modern evidence law should revert to past historical practice, but there is an intimation in the article that the history that Fisher recounts or propounds should have inverse power: it should serve to debunk some evidentiary practices that persist [if only in a fragmentary way] to this very day in the courtrooms of our land; to make his impressive argument, Fisher relies on some very old legal history).

I wonder if "ancient" legal history (in the realm of the law of evidence) should have such power (whether affirmative or negative). My expertise in legal history is limited or non-existent. But some of the statements that I have heard legal historians make suggest to me that the historical record about the legal treatment of evidence before 1800 is, as I have said, extraordinarily fragmentary. True, we now have some astute legal historians among us -- including, especially, grand figures such as Mirjan Damaska, John Langbein, and, now, George Fisher; and perhaps some or all of these eminent scholars have now got the legal history right (although -- it should be noted -- Langbein and Damaska seem to disagree a bit on some important details). But even if the current generation of legal historians is more talented, more skilled, and better educated than was the prededing generation of legal historians, would it be prudent to resolve important questions of policy and knowledge in the law of evidence today by seeking authoritative answers in the "historical record"?

I wonder.

Just a generation or so ago the conventional understanding of the origins of the privilege against self-incrimination was quite different from the account that Langbein now purveys with considerable success. So perhaps Langbein now has the better argument. But it seems entirely possible to me -- indeed, knowing the ways of academia, it seems more probable than not -- that soon some bold young scholar will arrive on the scene and provide us with a well-argued and well-supported reinterpretation of matters such as the origins and causes of the use of rules of evidence in English criminal trials before 1800. (Indeed, perhaps this process of reinterpretation is already under way.)

The question I am raising is not just (or even primarily) a question about the wisdom of trying to perpetuate or preserve past practice. The question I am raising is about the way that we should use the past to gain insights into contemporary issues in the law of proof and evidence.

The question I mean to raise is this: Is there good reason to think that "ancient" history is of much use when the ancient legal history of legal treatment of evidence is used to try to demonstrate that there are certain general verities about the logic or illogic of certain kinds of attempts to use law to get at the truth of matters such as propositions about the world?

I suspect that the answer to my question is "no."

There are more modest uses of history than the one I am questioning. Some of these more modest uses are extraordinarily valuable. History, for example, certainly serves to liberate or inspire thought: it serves to suggest previously-unimagined possibilities. But the question that interests me here is whether or not legal history can serve as a kind of empirical test -- a very long-running empirical test -- of the validity or invalidity of particular possible modern approaches to evidence and the legal regulation of evidence and proof.

I am skeptical -- for a variety of reasons (methodological as well as inferential) -- of the idea that history can serve as a kind of analogue to the principle of empirical verification in science.

In this post I do not even attempt to address issues such as (i) the potential conflict between the democratic ideal and the authority of the dead and (ii) the possibility that emphasis on Anglo-American legal history now amounts to a kind of gratuitous cultural chauvinism.

Modern human beings are not more stupid than their predecessors. In certain respects we even know more than our ancestors did. It is even possible (though far from certain) that modern advances in the understanding of the mind and of cognate matters such as information, perception, semantics, uncertainty, and probability now enable us to understand just a little bit better than our precursors did how evidence works, how inference works, how evidence and inference work in time, how evidence and inference relate to values and norms, and how "best practices" can improve the ability of societies to get the facts right in a humane fashion.

Given the fragility of the historical record, given the possibility that we have learned something about evidence over the centuries, and given the near-certainty that we are not less intelligent than our forbears, I vote against according (our momentary understanding of) the ancient history of the law of evidence any very substantial influence in debate and argument today about the future of legal regulation of proof and evidence in litigation (or, for that matter, in most other societal contexts and institutions).

N.B. This is my second or third manifesto within the last month or two. But my manifestos, it seems, are not strong enough to provoke a storm of comment and controversy. Is this because I am right?!?

War Crimes

There is a widespread, longstanding, and disturbing indifference to the horrors in Chechnya.

Do you agree?

N.B. This thought was spurred by C-Span and the book The Oath by Khassan Baiev, with contributions by Ruth and Nicholas Daniloff.