Rational Investigation; Fair Investigation; Due Process

You are an American trial lawyer or a police detective. You believe that Vila Victim is dead. You have five hypotheses -- H-1, H-2, H-3, H-4, and H-5 -- about how her death might have happened. Hypotheses H-3 and H-5, though quite different from another, involve wrongdoing by David Darling. Conjectures H-1, H-2, and H-4 do not involve any wrongdoing by David Darling. If you are a trial lawyer, David Darling is your client; and if you are instead a police detective, David Darling is on of your suspects in the possibly-criminal death of Victim. But whether you are a trial lawyer or whether you are a police detective, given the evidence known to you, you believe that the probabilities of conjectures H-1 through H-5 are roughly as follows:

P(H-1) = .1
P(H-2) = .05
P(H-3) = .4
P(H-4) = .2
P(H-5) = .05

Question 1. If you are a rational trial lawyer or police detective, which of your five conjectures should you investigate?

Question 1A. If you are a rational trial lawyer or detective, does it follow that it is irrational for you to investigate hypothesis H-2? On what assumptions?

Question 2. If David Darling was convicted of killing David Darling and police detectives investigated only hypothesis H-3, have Darling's due process rights been violated?

Cf. Arizona v. Youngblood, 488 U.S. 51 (1988).

Note: Larry Youngblood was released in the year 2000 -- after new technology -- a new type of DNA test -- convincingly demonstrated that Youngblood had not in fact committed the child molestation crimes for which he was convicted. See Barbara Whitaker, DNA Frees Inmate Years after Justices Rejected Plea, New York Times, August 11, 2000, Friday, Late Edition - Final, Section A; Page 12; Column 1; National Desk. Larry Youngblood spent roughly 17 years in prison for crimes that he very probably did not commit.

Gripping Story about Repressed Memory

See http://williamcalvin.com/2002/OrangeCtyRegister.htm. Be sure to read the last sentence.

Precision and Imprecision: Uncertainty, Probability & Proof

Aristotle, Nichomachean Ethics (trans. W.D. Ross, revised J. Urmson; Princeton U. Press, 1984) 1094b lines 24-27:

[I]t is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits: it is evidently equally foolish to accept probable reasoning from a mathematician and to demand from a rhetorician demonstrative proofs.

Notes:

1. The quoted language may be a bit jarring [in postmodernist jargon: "orthogonal"; in German: "quer"] to participants in contemporary debates about the relationship between probability and (forensic) proof. But, of course, Aristotle's world is different from ours and "probability" in the quoted statement (above) does not mean what it means today.

2. Despite Aristotle's insistence that in certain realms rough or imprecise reasoning is the best that we can do, can we agree that Aristotle was trying to describe precisely how rough reasoning about certain matters works? [Can we speak precisely about imprecise reasoning?]

3. Are Zadeh and Pawlak modern-day Aristotelians?

A Witness, Two Lawyers, and a Trial Judge Form Some Beliefs, Make Some Statements, and Shape a Lawsuit

Two Lawyers and a Judge Shape a Lawsuit

The Role of Decision Makers' Epistemic States (Inferences) & Speech Acts in the Formation of an Episode of a Legal Process such as Litigation

The Difficulty of Pretrial or Prelitigation Investigation and Planning

Question: Why is the investigation of and planning for a possible lawsuit and trial more difficult than planning and preparation in the somewhat-but-not-precisely comparable settings & situations mentioned (see below) by David B. Leake in Artificial Intelligence?

In real-world situations, it is seldom possible to generate a complete plan in advance and then execute it without changes. The state of the world may be imperfectly-known, the effects of actions may be uncertain, the world may change while the plan is being generated or executed, and the plan may require the coordination of multiple cooperating agents, or counterplanning to neutralize the interference of agents with opposing goals. Determining the state of the world and guiding action requires the ability to gather information about the world, though sensors such as sonar or cameras, and to interpret that information to draw conclusions (See MACHINE VISION). In addition, carrying out actions in a messy and changing world may require rapid responses to important events (e.g., for a robot-guided vehicle to correct a skid), or an ongoing process of rapidly selecting actions based on the current context (for example, when a basketball player must avoid an opponent). Such problems have led to research on reactive planning, as well as on how to integrate reactive methods with the deliberative methods providing long-term guidance (See ROBOTICS). The RoboCup Federation sponsors an annual series of competitions between robot soccer teams as a testbed for demonstrating new methods and extending the state of the art in robotics (www.robocup.org).

Wishes, Horses, and Group-to-Individual Inference

Take a gander at this -- if you wish: If Wishes Were Horses: Discursive Comments on Attempts to Prevent Individuals from Being Unfairly Burdened by their Reference Classes

The 72-witness rule

James Franklin reports (at pp. 13-14 in his book The Science of Conjecture: Evidence and Probability before Pascal (2001)) that the False Decretals, a mish-mash of things compiled ca. 850 A.D., contain a passage asserting that a "bishop should not be condemned except with seventy-two witnesses." About this and some similar rules for defendants of lesser stature Franklin writes:

It is the world's first quantitative theory of probability. Which shows why being quantitative about probability is not necessarily a good thing.

Evidence and Discretion in Booker

I have not yet studied the opinions in Booker v. United States, 2005 LEXIS 628 (Jan. 12, 2005), but based on the holding in Booker as I now understand it (i.e., before actually reading the opinions), I already know that this Evidence person will have one nagging question in his brain as he tries to decipher Booker.

Although Booker arguably strikes a blow for liberty (see my post of January 12, 2005), second-hand accounts (and my quick skim of small portions) of Booker suggest that Court embraced a proposition that strikes me as extraordinarily odd:

A trial judge violates the constitution (the Sixth Amendment right to trial by jury) if she enhances the sentence of a criminal defendant beyond the normal statutory maximum if a jury has not found that the evidence presented to it shows beyond a reasonable doubt that the factor or factors justifying such enhancement do in fact exist; but a trial judge can impose a harsher than normal sentence (i.e., enhance a sentence beyond the normal statutory maximum) without jury adjudication of the existence or nonexistence of factors that the trial judge believes warrant the imposition of a harsher than normal sentence -- as long as the trial judge is not required by a legislative command to impose a harsher than normal sentence under specified circumstances.

If this is the Court's conclusion, the conclusion is odd. Does the Court's conclusion rest on the proposition that evidence is immaterial if a trial judge (or the judiciary) is free to decide which circumstances warrant the imposition of a harsher than normal sentence? Why should the decision to enhance a sentence be free from the constitutional requirement of proof beyond a reasonable doubt merely because the trial judge (or the judiciary) is left with the freedom to decide which circumstances warrant a harsher than normal sentence? Does the Court's position rest on the fallacy that evidence is immaterial if decision involves discretion? See P. Tillers, The Value of Evidence in Law (1988).

A Coalition for Liberty?

Federal Sentencing Rules Are Wrongly Applied, Court Rules by The Associated Press in NYTimes Online (January 12, 2005):

The high court's vote to require more jury participation was 5-4 and included the same odd right-left combination of justices as those who had held sway in June. Justices Antonin Scalia and Clarence Thomas are the court's most conservative members. Justices John Paul Stevens, David H. Souter, and Ruth Bader Ginsburg are in the liberal wing.

Refreshing! -- on a number of counts.

Footnote: Perhaps the UK will reconsider its current skepticism about the value of lay participation in ajudication?

How Long Did the Typical English Criminal Trial before the Lawyers Last?

In a recent book review, "Though the Heavens May Fall'" and "Bury the Chains": Freed, NYTimes Sunday Book Review (Jan. 9, 2005), Marilynne Robinson wrote:

More insight into the actual operations of the law would have been useful -- some discussion, for example, of the yawning gulf between the principle of the right to trial and the fact that in early-19th-century England, an average felony trial lasted less than nine minutes, sometimes ending so quickly that the accused did not know he had been tried.

Does someone in cyberland have documentation for this point, please? I am interested in the point because I am skeptical of the praises that Prof. John Langbein sings for the English criminal trial before lawyers began representing defendants in felony cases.

Thank you!

Evidence Exam: Try Your Hand?

Question

Peter Plaintiff is a prison inmate. Della Defendant is a prison guard. Peter brings a civil action against Della in the State of Blackacre. The action is for assault and sexual assault. The first count of Peter’s complaint avers that at 2:00 a.m. on June 1, 2002, Della shot Peter in the leg with a revolver as he lay sleeping on his bed in his cell. The second count of the complaint avers that Della climbed into bed with Peter after shooting him and attempted to have sexual intercourse with him. Della’s responsive pleading to the complaint contains an answer and a counterclaim. The answer avers that Della shot Peter to ward off Peter’s attempt to rape her. The counterclaim states a claim against Peter for assault.

The case proceeds to trial in a court of the State of Blackacre. Judge Major Wisdom is the presiding judge. You are Judge Wisdom’s law clerk. Your name is Diligent Clerk.

At the trial Peter testifies that Della assaulted and sexually assaulted him in the manner described in the complaint. On cross-examination Peter states, “I have never belonged to a gang.”

Della’s counsel then offers to have Buddy Cellman testify that he (Buddy) and Peter were cellmates and that on September 1, 2004, Peter said to him:

You know, I belong to Prison Misprision. That’s a prison gang. It’s got a chapter right here in our joint. It’s got chapters in lots of joints. Prison Misprision has got lots of mumbo-jumbo. When people are initiated into Misprision, they swear to maim prison guards and rape women. That’s done in candlelight. That’s the way it’s done in all of the gang’s chapters. Buddy, you should consider joining Misprision. If you don’t join a gang, the guards will get you even if your fellow inmates don’t. I know what I’m talking about. In this joint ya gotta get your enemies before they get you.

Peter’s counsel objects to this proposed testimony.

Judge Wisdom responds, “We need to adjourn the trial for a day so that I can consider the admissibility of Mr. Cellman’s testimony.” Judge Wisdom then turns to you and says, “Diligent, I want you to write a memo for me. I want your memo in my hands in 24 hours or less. I want you to tell me if Buddy’s testimony about his conversation with Peter is admissible or inadmissible. Consider and evaluate all plausible objections to Buddy’s testimony. Hit the books!”

Write the memorandum and submit it within 24 hours.

On a Comment by Senator Brownback in the Confirmation Hearing on the Nomination of Alberto Gonzales for Attorney General

Dear Senator Brownback:

The department that the U.S. Attorney General heads is called the "Department of Justice," and not the "Department of Security."

***

Senator Brownback said that the first priority of the Attorney General is protection of the security of the United States.

***

The Attorney General is in part a prosecutor. But the Attorney General also has the duty to see that justice is done. The precise manner in which these two duties should be combined is subject to disagreement. But few informed observers (other than Senator Brownback) believe that the duty of the Attorney General to promote security takes absolute precedence over every other duty.

Death of a Scholar

Visiting adjunct professors (and many visiting professors) are the Willie Lomans of the twenty-first century.

Science in Legal Education

David L. Faigman, Legal Alchemy: The Use and Misuse of Science in the Law xi-xii (2nd Paperback Printing, 1999, 2000):

... The average lawyer is not merely ignorant of science, he or she has an affirmative aversion to it. ...

...[L]aw students feel no sense of urgency in learning about science. It is not tested on state bar exams. ... From [the students'] vantage point, science is not a necessary part of legal education.

Most of the fault for this misperception lies with the law schools. ... Law students have no sense of urgency about science because their professors do not. ...

...

Without question, law schools will eventually respond to the overwhelming presence of science in the legal process. They have no choice. For now, however, an entire generation of lawyers is being trained without the critical or practical skills to understand what is and what will continue to be an essential part of the lawyer's job description.

Christmas Eve, 2004

There was a time in my life when 1984 lay far in the future. It was George Orwell's 1984. But 1984 came and went. And now it is 2004. And things aren't half-bad.

Merry Chistmas, Season's Greetings, or -- Whatever!

Have a very good new year, y'all.

And remember: always keep the evidence before you. That's the key to the truth.

Facial Profiling

I recently submitted a paper that deals in part with "facial profiling" -- or so I said in my paper.

Now there's a novel law journal topic for you!

Evidentiary Burdens

It is an error to think that an individual can escape being subjected to inferences that depend on observations and judgments about the behavior and attributes of other human beings. Not in a pig's eye! No one can altogether avoid being saddled with signs, signposts, and evidentiary hints that the operations of the world and other people have created.

A Great Leap Forward

"Google, the operator of the world's most popular Internet search service, announced today that it had entered into agreements with some of the nation's leading research libraries and Oxford University to begin converting their holdings into digital files that would be freely searchable over the Web." John Markoff & Edward Wyatt, Google Is Adding Major Libraries to Its Database, New York Times (online), Dec. 14, 2004.

I propose that Google be designated an eleemosynary institution and that Congress mandate that donations to Google be made tax-deductible.

This is truly a great leap forward. Think of all the people in remote corners of the world -- in Columbus, Ohio, for example -- who will be able to access Stanford University's library materials -- and Stanford's reputation, by reason of its generosity, will soon outpace Harvard's. (Harvard is making only 40,000 volumes available online -- "initially." [Harvard, I suppose, is hedging its bets.])