Picturing Inference

I have been doing some more thinking about devices for picturing problems of evidence and inference in legal settings. Please see Picturing Inference. Am I on the right track?

Gulfstream Witnesses

At one point during today's oral arguments Justice Scalia asked if a Gulfstream jet ought to be sent to Aghanistan to retrieve witnesses for possible hearings on the legality of the detention of persons alleged to be enemy combatants.

I was under the impression that the US. military still has some transport aircraft of its own. Be that as it may, do you agree with J. Scalia that the thought that aircraft should be used to procure the attendance of witnesses at hearings in which human liberty is at stake is absurd? (The answer depends on your priorities, I suppose.)

Evidence -- What An Inconvenience!

I think I heard one of the counsel for the U.S. government suggest today (in oral argument) that one proper reason for the President's right to funnel "enemy combatants" (including U.S. citizens) into some form of military or executive detention rather than into the criminal justice system was "evidentiary concerns." Do you think we can generalize this principle -- so that the government can imprison American citizens who are suspected of wrongdoing whenever the government concludes that it does not have sufficient evidence to convict the suspected miscreants?

P.S. I can see the Statue of Liberty from my apartment building in Jersey City. As I said in a message some months ago, the Statute of Liberty was the very first thing I saw in America when the Liberty Ship in which I was traveling brought me to these shores. I naturally keep thinking of Lady Liberty.

If we can shoot 'em, we can hold 'em?

Did I hear Justice Scalia embrace the following proposition during oral argument before the Court today?:

If the executive branch can shoot enemy combatants, it can detain them (as long as it wants and in any fashion it deems fit).

Justice Scalia and I went to different law schools -- or we got a different legal education. I was taught that the following sort of argument is not a valid syllogism:

The government can do X; therefore, it can do Y.

Stated less formally: The considerations that suggest that the military should be able to kill enemy combatants on the battlefield do not necessarily demonstrate that the government should be able to detain alleged combatants indefinitely or under any circumstances.

***

I think I also heard Justice Scalia suggest that the President could take any steps that he deems necessary and proper during this time of war(s).

Question 1: If so, could the President abolish the Roman Catholic Church in the U.S. -- if he thought that doing so would promote the conduct of the war(s)?

1A. If so, would Justice Scalia resign?

Question 2:Could the President seize steel mills (or computer companies) if the President thought that doing so is necessary for successful prosecution of the war(s)?

More questions: Mosques in Detroit? Harvard Law School? The Supreme Court? (A wag might suggest that successive Presidents -- liberal and consrevative -- have largely accomplished the last objective.)

O.W. Holmes, Jr., Made Modern on Matters of Gender

The same article I mentioned on the 14th (of this month) rendered one of the most famous passages in American law thus:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with [others], have had a good deal more to do than the syllogism in determining the rules by which [all] should be governed.

I wonder: Did it occur to the author or the editors that Holmes, by modern standards, was a "sexist" and that the reformulation of his (poetic) passage distorts an important item in the historical record?

Straightening Out King James

What is person that thou are art mindful of it?

Language Purification

Yesterday morning I saw the following footnote in a law journal:

n78. Cardozo, supra note 40, at 141 (edited for gender neutrality …).

Is this sort of linguistic cleansing (“reconstruction”?, “language purification”?) of source material common?

To give the student editors their due: they did not quote Cardozo’s “sexist” language; they paraphrased the portion of the statement by J. Cardozo that they found offensive. I am still troubled. Are you?

What would the editors of this law journal do with statements made by judges, treatise writers., etc., before, say, the 18th 0r 19th century, statements in which long-dead authors or judges use male pronouns to refer to human beings or to male judges? Would such statements also be edited to achieve “gender neutrality”?

Would Shakespeare’s language also be restated to conform to 21st century norms at the law journal in question?

O'Keefe's Short-Sighted View of the Importance of Seeing Ultra-Deep Fields

If NASA administrator O'Keefe shuts off the Hubble, you may not see the likes of this again in your lifetime:

The Ultra Deep Field

Yes, my child, each one of those little oval blips probably contains more than 100 billion stars, very probably several hundred billion stars -- and also many planetary systems. So, yes, you may be looking at a part of the universe in which someone was also looking outward and upward.

Save the Hubble!

Glorious Universe

Surely you never even imagined (until now) that anything this glorious exists in our universe: Variable star V838 Monocerotis

If so, you are obliged to help Save the Hubble!

Natural Order in the Solar System

Being wedded to the base 10 numerical system -- not having much choice about it, really -- I have always thought that our solar system should have ten planets, and not nine. Well, astronomers have finally put things right: there are -- some astronomers say -- 10 planets. See http://www.smh.com.au/articles/2004/03/15/1079199151404.html.

If you appreciate (our new knowledge of) our planetary order, you should really join the call to Save the Hubble!

SIDS & Homicide in Australia

The Australian Broadcasting Corporation is broadcasting a show, "Of Woman Born," about the Kathleen Folbigg case. See http://www.abc.net.au/austory/

ABC's blurb about the two-part show – to be aired on the program “Australia Story” Monday, March 15, and March 22, at 8:00 p.m. “Australian time” (but which Australian time zone?) –, the blurb states:

This is the first of a special two-part program, revealing the untold story of the investigation that brought Kathleen Folbigg to justice.

Last year Folbigg was sentenced to 40 years jail for killing all four of her children, one by one, over a 10-year period.

The conviction made the 36-year-old New South Wales woman Australia's worst female serial killer.

But Kathleen Folbigg might very well have escaped justice had it not been for the dogged determination of a country detective and the unlikely alliance he slowly forged with Folbigg's doting sister, Lea Bown.

Using many hours of previously unseen home movie footage, Australian Story charts Kathleen's own fractured childhood from her arrival, as a three year old foster child, into the home of Lea Bown's parents, the Marlboroughs. Lea, who was 17 at the time of Kathleen's arrival, "idolised" the youngster and regarded her as a blood sister.

When Kathleen is 16 she learns the truth about her past - that her natural father stabbed her mother to death in a burst of rage.

Compelling home movie footage, along with personal letters, reveals Kathleen's subsequent journey through marriage to motherhood. The short lives of all four of her children are vividly captured on videotape. One after the other, there is a sudden death and then a new baby, and then another death. All the children die between the ages of 19 days and 19 months.

The first three deaths are all deemed to be from natural causes. But when Kathleen's fourth child, 19-month-old Laura, is admitted to Singleton Hospital on March 1, 1999 Detective Sergeant Bernie Ryan just happens to be on duty.

Ryan says "It was a very dark day... it was the day that changed my life."

It was just the start of a harrowing four-year battle for Ryan – and an emotional roller coaster for Lea Bown.

See also the account of the case at http://www.crimelibrary.com/notorious_murders/women/folbigg/.

At Kathleen Folbigg's trial for homicide one expert testified that the probability that all four deaths were sudden infant deaths was one in a trillion.

What are we to make of Kathleen Folbigg's family history -- that her father had murdered her mother? Note that Kathleen Folbigg was not raised by her homicidal father.

Kathleen Folbigg's diaries were admitted into evidence. Would you prefer that they have been treated as sacrosanct and inadmissible at her trial?

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.