The Logic of ... Investigation ... Inference ... This & That

Some old riddles just refuse to go away. I was reminded of this on seeing the lovely NYTimes article by Dennis Overbye, The Remembrance of Things Future: The Mystery of Time (June 28, 2005). I have been interested for quite some time in ... well ... er ... the logic or ... well ... er ... the structure of fact investigation (and, also, of factual inference).

Well, but which is it, Tillers: logic or structure?

Well, that's the problem, you see. I'm not entirely sure which word I should use to characterize my subject: (i) logic or (ii) structure.

"Logic" is a strong word -- perhaps too strong. "Structure" is a warm and flexible word -- perhaps too comfortable and flexible, too ... cheap and easy.

There is a lot of awful talk around about the role of stories in proof and inference; it is said that (i) a good story has an actor (or that a story [good or bad] does not necessarily have an actor), (ii) a good story has a beginning, a middle, and an end (or not); (iii) a good story has a theme (or not necessarily); and (iv) so on.

In response to such assertions (of either kind), one often wants to scream: Who or what sez so?!?

The answer might be: well, (i) most people do; (ii) my intuition sez so; (iii) respectable thinkers think so; and (iv) so on.

But -- one again (perhaps) wants to yell, "That's not good enough! Prove to me -- demonstrate -- that what you say is true -- and don't just tell me that you think it's true or that many people do ... and so on."

But then the tables are turned on me: "Do you really think, Tillers, that logic alone can prove the importance of stories -- and of a specific kind of story?"

My honest answer: "Well, I'm not sure it can. Granted, I can (and should) tell you that there is now a logic that goes by the name (sometimes) temporal logic. But I must 'fess up: I can't prove or demonstrate -- I am probably just intellectually and logically weak --, I can't prove that temporal logic (and all that it implies) tells us necessary things about human existence and (less grandiosely) about matters such as factual inference or fact investigation."

Sensing the weakness of my "logical" position, but sensing (and believing) that some kind of "story" is a fundamental feature of human existence and (less grandiosely) of any rational argument about any question of fact, my instinct is to turn to "ontology" -- a theory of being, a theory of the way the world (the cosmos) is made -- and say, "You see, time and space are fundamental and unavoidable features of human existence and, thus, they must be part of any argument from evidence about what happened, is happening, or will happen in the world!"

Well, this ontological turn is all well and good. The trouble is that the people who know a few things about the cosmos, the "space-time continuum," and all that sort of thing -- I mean modern physicists -- they would (if asked) almost invariably say, "Well, Tillers, you're wrong! You really don't understand our best understanding of nature, the world or cosmos in which human beings live and act. There is nothing in physics that shows that time runs only in one direction and that it cannot run backward. Au contraire! The direction of time means nothing for the kinds of puzzles physics works with!"

I am left in despair.

But now a ray of hope (see the NYTimes article): some physicists who are smart enough to be invited to take part in a conference at MIT say that physics must do better: it must develop an account of the kind of time that human beings experience - unidirectional time - and (perhaps) this new account must be one that acknowledges that for human beings time really does run only forward, and not backward.

So I am reassured; my ontological intuition is not necessarily hogwash, not even in the eyes of (some) reputable physicists.

But I am still left in a bit of a pickle, nicht wahr? For even if time runs forwards (for many purposes), accounts of how events are connected to each other can still vary a lot.

But perhaps once the temporal character of existence (in some sense) is admitted, temporal logic can take over and drive us to some conclusions? I have some hope that this is the case -- although I strongly suspect that it will turn out to be the case that we will have to feed experience back into our logic -- now our temporal logic -- and the difficulty here (as always!) will be that our experience will fall short of a strict proof of telling us which variant of temporal logic best explains the world in which we live.

Conclusion: You must forgive these sophomoric ruminations. But in my defense I say: problems such as this one -- the role of time in human existence -- are very old. If problems such as these do not plague us and weigh on us, it is usually only because we have decided that we just shall not dwell on them. Don't you agree?

Perhaps Narcissistic People Can Take Heart

UK lawyers representing a youth who killed his parents sought to have the charges against the youth reduced on the ground that the youth had been afflicted with the malady of narcissistic personality disorder. See Guardian Unlimited (June 29, 2005). The strategy may have worked; the youth was allowed to plead guilty to manslaughter.

Dead Man's Violent Disposition Helps Harvard Student -- at Least Temporarily

A Massachusetts trial judge, applying a (wise) ruling (in another case) by the Massachusetts Supreme Judicial Court last March, Commonwealth v. Adjutant, 443 Mass. 649; 824 N.E.2d 1 (March 14, 2005), vacated the conviction of a Harvard student -- Pring-Wilson -- who had been found guilty of stabbing and killing a man on a Cambridge street late at night. See Boston Globe (online) (June 25, 2005). Defendant claimed that he had killed the dead man in self-defense. Forty witnesses had been prepared to testify to the dead man's violent behavior and propensities but the trial court refused -- under the law applicable at the time, correctly refused -- to admit any of that evidence. (Before Adjutant evidence about the alleged victim's violent nature was admissible only if there was evidence that defendant knew of the alleged victim's violent nature.)

Under Adjutant, whether or not defendant knew of the alleged victim's propensity for violence, evidence about an alleged victim's propensity for violence is now admissible in prosecutions for criminal homicide in Massachusetts courts -- and possibly also in prosecutions for other crimes such in which defendant relies on self-defense or claims mitigation as a result of a physical attack by the alleged victim. (It will be interesting to see if the Massachusetts Supreme Judicial Court extends the rule of Adjutant to non-violent crimes and thus allows, for example, a defendant in criminal fraud case to offer evidence of the alleged victim's fraudulent propensity and acts to show that the alleged victim engaged in fraud in the transaction on which the prosecution for fraud rests. [But question: Can there ever be a fraud case in which a defendant's fraud is a legally-legitimate defensive measure to an attempt by the alleged victim to defraud the defendant?])

Eight of the jurors who returned a verdict of guilty in the original trial of Pring-Wilson were polled and said that their votes for a verdict of guilty would not have been different had they heard evidence of the dead man's violent propensities.

Under the Massachusetts Supreme Court decision -- Adjutant -- not only is evidence of the alleged victim's propensity toward violence now admissible to show self-defense even though a defendant in a criminal homicide case was unaware at the time of the killing of the victim's propensity, but specific instances of violent acts by the alleged victim are also admissible to show the victim's propensity toward violence.

Legalities aside, one thing impeding the chances for an acquittal if there is a retrial is the fact that defendant was carrying a concealed knife when the fracas that lead to alleged victim's death began.

Despite the results of the newspaper poll of the eight jurors from Pring-Wilson's trial, I predict an acquittal if Pring-Wilson is tried again. It's one thing for a juror to hear a newspaper account of evidence, and it's another to hear the evidence in full-bodied form (and at length) in a courtroom. If even just twenty witness testify to nastily violent behavior by the dead man, an acquittal is more probable than not.

Law school exam question: Could a trial judge exclude the testimony of 20 of the 40 defense witnesses about the violent acts of the dead man on the ground that the testimony of the second set of twenty witness is unduly cumulative -- or on the ground that once the first twenty witnesses have testified about the violent behavior of the dead man, testimony to the same effect from 20 more witnesses is irrelevant?

N.B. The favorable opinion I have of Adjutant is not in the slightest degree due to the Massachusetts Supreme Judicial Court's mention in that case of some written text that I authored. I am a scholar and worldly repute matters not one whit to me! (If you believe what I have just said, I would like to talk to you about a bridge in Brooklyn that might well be for sale -- at a quite reasonable price.)

Disagreeable Opinions; Anti-Religious Tests for Academic Employment at Cardozo?

If I understand him aright, the dean of my law school proclaims that opinions rooted only in religious faith are divisive. See my prior post today.

A divisive opinion is ...

... a disagreeable opinion.

A disagreeable opinion is ...

... an opinion that I disagree with.

Now, let me see, if I have this right, ...

... a divisive opinion is an opinion that I disagree with.

&&&&

My venerable dean apparently thinks that opinions about controversial issues such as abortion should not be influenced by religious beliefs, but only by non-religious reasoned debate.

Does Dean Rudenstine actually believe that controversies about matters such as abortion can be resolved exclusively and satisfactorily by the application only of the sweet light of reason -- non-religious reason, that is?

Mmmm ...

I say:

Give me your premises, and I will give you your conclusions.

Give me my premises, I will make you yield to my conclusions.

How will we resolve differences of opinion about our premises? Shall we flip coins or throw dice?

And how will the sweet light of reason resolve questions that are not decidable by evidence?

Will the sweet light of (non-religious) reason tell us whether or not we should kill elderly people because ... well, er ... just because they're too old? What non-religious evidence will tell us that this is the wrong thing to do?

Legal education is incompatible with faith, Dean Rudenstine informs us. He can't mean all religious faith, can he? That would be taking things pretty far.

Mmmm... [... Tillers thinking ...] Rudenstine suggests that only some religious faith is obnoxious. He suggests that faith unsupported by evidence is obnoxious. Yes, that's it: he only objects to dogmatic religious faith in the law -- and in law schools.

Well, that's not so bad, is it? But does it follow that Cardozo Law School will have a religious test (an anti-religious test?) for employment as a law teacher? Will the Cardozo appointments committee henceforth be required to scrutinize the religious beliefs of job applicants to see if their religious beliefs are supported by evidence? I can imagine the questions:

1. You say, Ms. Jones, you believe in the Resurrection. What leads you to think ...

2. You say, Mr. Smith, you believe in Nirvana. Or is it Karma? In any event, Mr. Smith, what leads you to think ...

No, no, no! That's too troublesome. Surely henceforth Cardozo can only hire non-believers!

Mmm... Do you suppose you suppose Dean Rudenstine was just trying to twit us ... and all of those college counselors who visited Cardozo Law School on June 9th? Yes, that must be it! (I can only hope that those guidance counselors did not take him seriously.)

Religious Faith and Legal Education

If I understood him correctly -- and if he was correctly quoted -- my dean -- the dean of Cardozo School of Law, a law school that is part of Yeshiva University --, the dean of my law school said that religious faith is incompatible with legal education. Last Friday's issue (June 17, 2005) of the New York Law Journal reported:

Mr. [David] Rudenstine [dean of Cardozo Law School] said that America's law schools have a social responsibility, especially at a time of religious fundamentalism, to foster reasoned debate over the facts and science of such controversial matters. To shirk this role, he suggested, would be to leave the way clear for faith-based organizations to impose "divisive" views.

"Faith challenges the underpinnings of legal education," Mr. Rudenstine declared. "Faith is a willingness to accept belief in things for which we have no evidence, or which runs counter to evidence we have."

He added, "Faith does not tolerate opposing views, does not acknowledge inconvenient facts. Law schools stand in fundamental opposition to this."

Well, that's interesting. But I suppose St. Augustine was not a scholar. Neither was Newton. Nor Maimonides. Perhaps not even A. Einstein.

The Trial Is the Punishment

The Milosevic trial has been going for ... how many years?

Sometimes Less Is More; Reality Trials

California has not yet learned the rudimentary lesson that sometimes less information (evidence) is better than more.

Or perhaps the explanation for megatrials is simply venality or egomania or cowardice or the adversarial spirit run amok?

Sometimes institutions cannot cure their ailments even when the existence such ailments is palpable to almost everyone. Institutional dysfunctionality. (There's a mouthful for you! Translated: The system has a serious defect. )

But we don't need a reincarnation of the earlier Jerry Brown, who once derided the rule of law as "legalism." (He left California with a Chief Justice who was not much wedded to legalism.) We need "legalism"; i.e., we need the rule of law. We just need remedies for megamaladies such as sex megatrials.

Ah, now I have it! California does believe in soap operas; it cannot resist them; it wants unreal reality trials. The real thing -- a Real.Ordinary.Trial -- apparently just isn't good enough for Californians.

Three Days versus Three Months or Three Years

The trial of Edgar Ray Killen took three days. In California it would have taken three months or three years. Who would venture to say that the quality of justice is better in California than in Mississippi (today)?

What explains the phenomenon of California megatrials?

Not a Reenactment

Yesterday C-Span carried chunks of the 2005 trial Mississippi v. Edgar Ray Killen. I have watched some of these broadcasts. They were fascinating.

Killen is on trial for the 1964 murders of three civil rights workers in Philadelphia, Mississippi.

Killen was not at the scene of the killings. The prosecution's theory is that Killen was the mastermind of the plot to kill the civil rights workers. The defense theory is that though Killen may have been at a Klan meeting where the "elimination" of the civil rights workers was discussed, Killen was a "loudmouth" and not a ringleader.

Despite changing times, there were many references to religion. Of course, that was partly -- but only partly -- because Killen himself was a preacher.

Last night's news reports said that the jurors had reported that they were evenly divided, 6-6, on guilt or innocence. Jury deliberations resume today.

The Chain Saw Did Not Speak Clearly

Dean Wigmore wrote that "autoptic proference, for the tribunal's self-inspection, is to be distinguished from the use of testimonial and circumstantial evidence as the basis of an inference." He said that "[a]utoptic proference calls for no inference from the thing perceived to some other thing." IV John H. Wigmore, WIGMORE ON EVIDENCE §1150 (James H. Chadbourn rev., 1972).

"Autoptic proference" is just one of Wigmore's many neologisms, even if though it is one of his most famous or infamous ones. "Autoptic proference" means, Wigmore said, roughly the same thing that res ipsa loquitur does: it means that the thing "speaks for itself." Id. "Autoptic proference," Wigmore said, is a source of belief that "proceed[s] by direct self-perception, or autopsy."

In Morse v. State, 10 Ga. App. 61, 61-62, 72 S.E. 534, 534-535 (1911), Judge Powell, speaking for the court, said of an assignment of error that had charged the jury that "evidence may be autoptic proference":

As to the other objection -- that the language is abstractly incorrect -- if incorrectness from a legal standpoint is intended, the objection may be disposed of by citing Wigmore on Evidence, §1150 et seq. If philological incorrectness is referred to, the objection is more tenable; for, while "autoptic" is a good word, with pride of ancestry, though perhaps without hope of posterity, the word "proference" is a glossological illegitimate, a neological love-child, of which a great law writer confesses himself to be the father (see Wigmore on Evidence, § 1150, note 1). Despite all this, we cannot brand the statement as reversible error. This Court is rather liberal in allowing the judges on the trial benches the privilege of big words.

Wigmore deserves due respect. (How could I say otherwise?) But in one recent instance although a thing -- a chain saw -- may have spoken for itself or directly, it spoke ambiguously. I refer to the situation in which a "[m]an with stained chain saw [was] let into the United States." This is the byline for an AP story by Michael Kunzelman. See The Star-Ledger p. 2 (June 8, 2005). The story recounts that on April 25, 2005, a man "arrived at the U.S. Canadian border ... carrying a home-made sword, a hatchet, a knife, brass knuckles and a chain saw stained with what appeared to be blood." A day later the decapitated head of the man's neighbor was found on the floor of the neighbor's home kitchen. The U.S. Customs Service was pressed to explain why it admitted the chain saw-bearing man into the United States. But a spokesman did a pretty good job of it. He said, "Our people don't have a crime lab up there [at the border station]. They can't look at a chain saw and decide if it's blood or rust or paint."

Having been given the opportunity to comment on Wigmore's theory of autoptic proference, or direct inference, I couldn't resist doing so. I wrote:

For our own part, we incline to the view that there is no such thing as "direct apprehension" of any matter that may in some way directly and conclusively resolve any question as to the existence or nonexistence of some matter of fact and we therefore believe that Wigmore erred in claiming that there is such a thing as autoptic proference that involves neither a logical nor an inferential process. We are not alone in our view. Today there are few respectable students of empirical knowledge who would be willing to venture the opinion that there is anything like "immediate perception" or "immediate apprehension" of the existence or nonexistence of some thing. There are still observers who still insist that sense data or perceptions (somehow given to the human organism) are the basis of all reliable human knowledge of matters of fact, but there are few observers who would be willing to say, in the fashion of Wigmore, that the question of the existence or nonexistence of a thing is somehow automatically and decisively proved by the thing itself. There is a general consensus that the statement "there is a brown chair before me" is not a report of an object directly apprehended by the senses but is an inferred conclusion. This latter view seems to rest on at least two premises. There is, first of all, the widespread conviction that our senses can err and thus deceive us. There is no such thing as certainty with respect to things we observe in the world; there are, at best, degrees of probability. There is, second, another conviction, less frequently articulated, that the observing organism always, in principle, organizes the information it collects and assembles it in some particular way; it is never the case that an object outside the observer simply imprints its character on the observer. The observer has a character or makeup that transforms or constitutes sense impressions in some fashion. See Langer, Philosophy in a New Key 89-91 (3d ed. 1957) ("Our merest sense-experience is a process of formulation [original emphasis]. The world that actually meets our senses is not a world of `things,' about which we are invited to discover facts as soon as we have codified the necessary language to do so; the world of pure sensation is so complex, so fluid and full, that sheer sensitivity to stimuli would only encounter . . . `a blooming, buzzing confusion'"); Northrop, Epistemic Correlations and Operational Definitions, in The Logic of the Sciences and the Humanities 119 (1971; reprint of first edition of 1947) (our knowledge that a chair stands before us is the product of an "epistemic correlation" by which we are led from our perception of a two-dimensional patch of color to the conclusion that a three-dimensional chair stands before us; the epistemic correlations are not themselves directly observed; we cannot see a thing such as a chair directly); Piaget, Psychology and Epistemology ch. 4 (Rosin trans. 1971) (chapter entitled The Myth of the Sensorial Origin of Scientific Knowledge; "knowledge never stems from sensation alone but from what actions adds to this fact"; "we no longer believe in . . . `elementary' and preliminary sensations"; further: "When I perceive a house, I do not first see the color of a tile, the height of a chimney and the rest, and finally the house! I immediately see the house as gestalt and then analyze it in detail"; "perception never acts alone"; "perception itself does not consist in a mere recording of sensorial data but includes an active organization in which decisions and preinferences intervene"; the "fundamental vice" of an empirical interpretation of knowledge is "to forget the activity of the subject"); Damaska, Presentation of Evidence and Factfinding Precision, 123 U. Pa. L. Rev. 1083, 1085 & n. 3 (1975) (though recognizing generally the existence of objective facts, the author states that "an element of subjectivity suffuses even such psychological activities as perception. The latter has been shown to be far from a passive registration of stimuli: it depends on interests, previous habits, even on the creative act of grasping structures, thus implying a degree of inferential construction"); Quine, Two Dogmas of Empiricism, in From a Logical Point of View 38 (3d ed. 1980) ("The most naive view of the relation [between a statement and the experiences that contribute to or detract from its confirmation] is that it is one of direct report. This is called radical reductionism. Every meaningful statement is held to be translatable into a statement (true or false) about immediate experience. Radical reductionism, in one form or another, well antedates the verification theory of meaning explicitly so called. Thus Locke and Hume held that every idea must either originate directly in sense experience or else be compounded of ideas thus originating"). (original emphasis). Cf. Morgan, Basic Problems of Evidence 190 (1961) ("[S]o-called real evidence is conclusive as to its own existence. . . . But it is not to say that the real evidence is ordinarily conclusive proof of an ultimate issue"); Steinbruner, The Cybernetic Theory of Decision 94 (1974) ("even in the simplest of operations, such as the perception of speech, the full mental apparatus is brought to bear," and "even the simplest of perceptions do apparently require memory capacity and the capacity to perform inductive inferences"). But cf. Steinbruner, The Cybernetic Theory of Decision 101 (1974) (speaking of Freud's reality principle, Steinbruner opines: "[The reality principle] quite simply asserts that the human mind is in contact with its environment, that stable, important features of the environment impose themselves quite reliably on the mind. In other words, the operations of the mind are in important ways constrained by reality. This thesis has very complicated philosophical overtones; for, as the history of epistemology makes clear, it is very difficult to give a coherent logical account of this proposition. But however difficult it might be to analyze the notion of reality and the process by which it is recorded, it is quite clear that it happens. The human mind does perceive things and in many instances gets it right. . . . The reality principle is certainly not all one needs to know about the mind, but it is an indispensable element of any analysis").

I John H. Wigmore, WIGMORE ON EVIDENCE Section 24 n. 5 (P. Tillers rev., 1983).

But Wigmore was nobody's fool. When saying that the formation of a belief based on inspection of a tangible thing involves no inference, he said that this process involves no conscious inference. IV WIGMORE ON EVIDENCE Section 1150 ("This source differs from [testimonialcircumstantialntial sources of persuasion] in omitting any step of conscious inference or reasoning...). Furthermore, Wigmore was not alone in thinking that it makes sense to say that in some important or relevant sense human beings directly apprehend or perceive some elements of their environment. In my revision of the first volume of his treatise I wrote:

As the analysis by Michael and Adler illustrates, there are respectable twentieth century theorists who maintain that immediate sense perception is in some way the necessary foundation of all reliable human knowledge of matters of fact. (A. J. Ayer and Bertrand Russell are two additional examples of subscribers to this general view). In all cases, however, proponents of this sort of view recognize (as Wigmore -- who was, after all, primarily a law professor -- did not) that an object such as a chair or a bloodstain does not constitute the sort of primitive sense datum or perception that forms the ultimate and secure foundation upon which reliable human knowledge rests and that complex logical and inferential processes (though often implicit rather than explicit) are involved in the seemingly simple conclusion that a thing such as a chair exists (or does not exist). Wigmore seems to maintain that a thing such as a chair simply presents itself to our senses, permitting us to determine directly and immediately whether that chair does exist. A more subtle form of empiricist epistemology maintains that sensations present themselves directly to the senses and that the proposition "there exists a chair before me" is not something that is directly verified by those sensations. See, e.g., Ayer, Language, Truth and Logic 93 (Dover Books 1952) (first published 1946) ("A sensation is not the sort of thing which can be doubtful or not doubtful. A sensation simply occurs. What are doubtful are the propositions which refer to our sensations, including the propositions which describe the qualities of a presented sense-content, or assert that a certain sense-content has occurred. To identify a proposition of this sort with the sensation itself would clearly be a gross logical blunder"). See also ibid. at 121, 122-123 ("there are no objects whose existence is indubitable"; "when one says that a sense-experience, or a sense-content, exists, one is making a different type of statement from that which one makes when one says that a material thing exists").

I WIGMORE ON EVIDENCE Section 24 n. 5 (P. Tillers rev., 1983).

But, in the end, the empiricist defense of the existence of immediate sense perceptions availeth not:

Wigmore regarded the sort of inference under discussion here as "a distinction of psychology which need not be accepted in the law of evidence" because the factfinder, as a practical matter, does not recognize any such inference "and takes the results of its senses as immediate and full knowledge." See note 6 infra. However, even as a "practical matter" this claim is surely wrong in relation to the question of the existence or nonexistence of matters such as bloodstains. Most of us realize that what appears to be a bloodstain may not be a bloodstain but rather may be something else and that the question often cannot and should not be resolved by some sort of simple inspection of the thing in question. Thus, it will not often happen that the thing -- purportedly a bloodstain -- will simply and directly "prove itself." And brief reflection will show that the inability of things to satisfactorily prove themselves or show their true character is not peculiar to matters such as bloodstains but constantly recurs, at least potentially. Is what I see grass or a weed? Is what I feel and see leather, or is it a synthetic substitute? In all of these cases, our certainty that we know what stands before us may in fact become problematic and our certainty that we know what we grasp in our hands may be shaken by scientific evidence that demonstrates otherwise. The fact that in many cases we do not doubt that what is before us is what we think we see before us does not demonstrate that our belief exists apart from any "inference"; it only demonstrates that we have a high level of confidence in a particular belief. Wittgenstein, On Certainty ¶ 2 (Anscombe & Wright eds., Paul & Anscombe trans. 1972; reprint of 1969 edition) ("From its seeming to me or to everyone to be so, it doesn't follow that it is so" (original emphasis)).

Id.!

Corpi Delicti?

The citizens of New Jersey seem to have a decided preference for corpi delicti rather than just a singular, paltry corpus delicti. See Suleman Din & Rick Hepp, Chesapeake discovery stymied police for a year, The Star-Ledger p. 1 (June 3, 2005)("More than a year after the dismembered body of a Middlesex County [New Jersey] man was found floating in Chesapeake Bay in three matching suitcases, his wife was charged yesterday with the murder.") The case is reminiscent of the one I reported in the post Corpus Delicti in Plures Partes Divisa Est in My Home Town (March 19, 2005) Of course whether what we have here is one corpus delicti or several depends on how you slice things (mentally, I mean). In any event, perhaps we can avoid the logical, metaphysical, and legal problem of whether we have one body of a crime or several bodies (or several bodies of several crimes?) if we do as rigorous legal thinkers counsel us to do and think of corpus delicti as equivalent to nothing more than "the metaphorical body of the wrong: the acts that constitute the wrong." But doing this would spoil the fun. In any event, logical and legal and inferential problems would still plague us -- because sometimes (as in this Chesapeake Bay case) authorities will still have to figure out answers to questions such as, "Where was the body of this wrong located, in New Jersey or in, say, Virginia (where the suitcases surfaced, so to speak)?"

The Virginia authorities washed their hands of this salty case. Apparently they decided that the victim (the husband, the ex-husband, of the accused) was sliced up into tres partes while his physical corpus was still in New Jersey.

Trial as Theater

Show trials were once something to be ashamed of. But "trial as theater" -- trial as "storytelling" -- well, that's different!?! Well, yes. But in some ways nonetheless worrisome. See the mawkish video clip at "Tom Kline on Trial as Theatre." The performer (Kline, apparently) is effective in a way. But I wonder: Do such mawkish performances really work in the courtroom? I confess: I am skeptical.

N.B. I do not mean to deny that rhetoric (of a kind) plays a legitimate role in promoting accurate fact finding in trials. The necessary role of rhetoric for this purpose is hard to deny if one concedes, assumes, or believes that judgments about factual questions necessarily depend on "subjective judgment" (as well as on other matters). But it does not follow that mawkish storytelling is effective in the courtroom or that lawyers ought to be trained in mawkish storytelling. (One trouble with mawkish storytelling is that it appears insincere, which, from an advocate's point of view, defeats its purpose. [There are other reasons to worry about mawkish storytelling.])

I really must study Robert Burns' stuff more thoroughly. Could or should a basic course in the law of evidence be combined with the topic of trial rhetoric (cf. "trial advocacy"). Issue: How is it even possible to study the process of factual inference and proof in trials without studying trial rhetoric (and trial advocacy)?

Jury Trial in Russia

See legalaffairs (archive, July-August, 2004).

The Death Penalty in Japan

"The last time a death row inmate was granted a retrial [in Japan] was in 1986."

Source: Masami Ito, Retrial a tall order in quests to prove innocence, The Japan Times (online), May 26, 2005. [If you are wondering about the date of this article, keep in mind (i) Japan's location and mine, and (ii) timekeeping conventions.]

Lacey's Biography of HLA Hart -- Redux

I have completed reading A Life of H.L.A. Hart: The Nightmare and the Noble Dream (Oxford 2004), Nicola Lacey's biography of HLA Hart.

The reviews of the book I have found on the web are very laudatory. But I am unsatisfied. I am not entirely sure why.

What are your sentiments?

I am a latecomer to this book. I found one interesting item: correspondence about Thomas Nagel's review of the book. See correspondence. (To get the original book review, you must, alas, subscribe to the London Review of Books -- which I just did, and thus discovered that the key to my password will arrive in 4-6 weeks. Egads, only the British!)

There is a generous obituary for Jenifer Hart, HLA Hart's spouse, at The Guardian's Obituary

One definition of "nightmare": To be male and have Nicola Lacey as your biographer.

Try this 24-hour take-home examination in the law of evidence!

Paula Pan and Harry Hanker are married on March 2, 1988.

Paula Pan gives birth to a son, Boy Pan Hanker, on July 1, 1989.

Paula and Harry are divorced on September 3, 2003. Custody of Boy is awarded to Paula.

The State of Blackacre indicts Paula on October 1, 2004. The indictment charges that Paula sexually molested her son Boy on July 1, 1992.

Temporary custody of Boy Pan Hanker is awarded to Harry Hanker on October 15, 2004.

Boy commits suicide on November 1, 2004.

The executor of Boy's estate commences a wrongful death action against Harry on December 1, 2004. The complaint in this civil action avers that Harry's negligence was the cause of Boy's death. In his answer, however, Harry denies negligence, and he avers that Paula's sexual mistreatment of Boy caused Boy to commit suicide.

In February 2005 Harry's counsel in the wrongful death action serves Carr Counselor with a subpoena duces tecum. Carr is a guidance counselor at the school that Boy attended until his death. The subpoena orders Carr to surrender his personal diary at the taking of Carr's deposition in the civil action for wrongful death. During the deposition Carr hands Harry's counsel a small book and states, "Here's the diary you asked for."

In May 2005 the sexual molestation charge against Paula 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.

The trial begins. After the opening statements, the prosecutor makes an offer of evidence at the bench (outside of the hearing of the jury). He announces that he intends to have Carr Counselor give the following testimony:

My name is Carr Counselor. I am the guidance counselor at St. Anselm's School, which is a Catholic parochial school. I had a counseling session with Boy Pan Hanker on May 24, 2004. He told me that it had "recently come back" to him that on his third birthday his mother had abused him. Specifically, he told me that after a birthday party for his third birthday his mother had taken him to her bed and had touched him "down there."

Paula's defense counsel makes the following response to the prosecutor's offer:

Your Honor, I object in the strongest possible terms to the proffered testimony. Carr has no right to testify about a private conversation with Boy. Furthermore, your Honor, anything that Boy may have told Carr is hearsay of the worst kind and it has absolutely no probative value. And I want to say one more thing, your Honor: even if Boy were alive and here in this courtroom, you would not and could not allow him to testify!

I am sure you will rule in my favor, your Honor. However, if for some inexplicable reason you do allow Carr to testify about the statements that Boy allegedly made on May 24, 2004, I respectfully request an advance ruling on evidence that I must use to counter Carr's testimony. I have in my hand Carr's diary. Carr gave his diary to Harry's counsel during a deposition, and Harry's counsel gave it to me. I ask the court to rule that I can use the diary entries -- I will recite them in a moment, your Honor --, I ask that the court rule, first, that I can to use those diary entries during my cross-examination of Carr and, second, that I can give those diary entries to the jury for its consideration.

These are the diary entries that I want to use, your Honor -- they are made in Carr's own hand; you will be able to read them for yourself, your Honor -- these are the diary entries I want to use if Carr testifies:

January 5, 2004. Lousy, depressing time of year. Boy Pan Hanker came to my office. He was upset. His parents are divorced. The divorce was bitter. I have the sense that one of them did something to him. That's always the story: parents.

January 12, 2004. Boy Pan Hanker came by again. Again he said he was upset. I asked him why. He said he didn't know. I told him that he should come back the next week and that in the meantime I would think about how I could help him. I need the time to think about this. I'm just a guidance counselor. I've been at this job for 20 yrs and I know my job. But I'm a guidance counselor, not a doctor. I don't even have a college degree.

January 19, 2004. Boy came again. I told him I had an idea. I had watched a show on Discovery Channel or some such show. But I didn't tell him that. What I did say is that he and I would do psychodynamic therapy. We would work backwards through his life until we got to the root of his problem. I would use guided imagery: I would show him pictures to make his deep-rooted memories surface into his consciousness. I told him this would not be easy or fun. We would be digging for his most shameful memories. I said it might work. He agreed to try.

February 16, 2004. We had our first dynamic imagery session a few days ago. I took him back to age 10. He lay down on the couch. I told him to relax. He did: he almost fell asleep. I showed him pictures. He reminisced. Nothing interesting.

April 12, 2004. Boy and I have been at this imagery therapy business for several weeks now. What a trip! I've taken him back to age five. He feels something terrible happened to him at age three. I think it has to do with sex. Shame almost always does. We'll dig it out. This is exciting and interesting. This kid is obsessed with sex. He dreams about sex all the time. He thinks about it all the time. I think there's something wrong with him. The root of his problem is a sexual encounter. But the root of his problem now is that he is obsessed with sex. He can't distinguish fact and fancy. Now I've got to get him to give me the true story.

May 24, 2004. Today was the bombshell, the payoff! I said, "Now take yourself back to your third birthday." I then showed him a picture of a birthday party with a bunch of smiling kids gathered around a table and a smiling mother lighting a candle on a birthday cake. He then said, "Mr. Counselor, I didn't see it before but I see it now. It's all in front of me. My third birthday party. The kids leave the party. My mother takes me to her bed, hugs me, and touches me down there. I feel ashamed; I feel awful." That's pretty much what he said. Then he ran out of my office crying. I had the sense that it would eventually come down to this -- to sex. Do I have to report to this to the police? I guess so.

The prosecutor replies:

Your Honor, Carr is plainly a competent witness. I would just like to add that I'm not sure that you can look at Carr's diary, if that's what it is. Let me make my point more emphatically, your Honor: with all due respect, neither you nor the jury can consider Carr's diary.

Judge Wisdom turns to you and whispers:

Diligent, this is all too complicated for me. I think we had better get this business straightened out now. I want to know if I should or can let Carr testify. I am willing to make an advance ruling on the other question or questions defense counsel has raised -- the question of how defense counsel can use Carr's diary if Carr does testify. You've got to help me out here as well.

Diligent, you have to put the issues into some sort of sensible order for me and then you've got to resolve those issues for me. I'm going to adjourn the trial for a day. Diligent, I want you to write a memorandum for me. I want your memo in my hands in 24 hours or less.

Where is that diary anyway? Has it been marked as an exhibit? Does he want to offer the whole thing? I guess not. I hope not. In any event, do that memo. Thanks, Diligent. Oh yes, Diligent: don't forget to do your homework. I'm sure you?'ll have to do some legal research.

Write the memorandum and submit it within 24 hours.

End of Examination Problem

Was it Dworkin who said that in law there is -- in principle -- always a right answer? Now what on earth could he have possibly meant by that?

Should Courts Use Numbers to Describe Standards of Persuasion in Legal Proceedings?

This judge is Judge Jack B. Weinstein.

The opinion is United States v. Copeland, 2005 WL 1109441 (E.D. N.Y., May 4, 2005).

Defendant was indicted for illegally re-entering the United States. Defendant had been previously deported. The issue was whether the indictment was valid or should be dismissed.

Defendant had been denied due process in the deportation proceedings that resulted in his deportation. The Second Circuit instructed the trial judge (Weinstein) that the indictment against defendant for defendant’s subsequent illegal (re)entry into the United States should be dismissed only if the trial court found that defendant was prejudiced by the due process defect in the deportation proceedings.

Judge Weinstein held that the Second Circuit’s prejudice requirement requires a determination of the probability that the result in the deportation proceedings would have been different had there been no denial of due process in the deportation proceedings that actually resulted in deportation. Judge Weinstein held that defendant did not have to show that defendant was required to show by a preponderance of the evidence that the result would have been “no deportation order” in the absence of the due process error; defendant’s burden was less than that.

Judge Weinstein summarized the situation this way:

The rule of law adopted by the United States Court of Appeals for the Second Circuit requires the district court to undertake the highly speculative task of determining whether, absent the constitutional violation, the immigration judge would have ordered the defendant deported. In effect, this enterprise necessitates a present reconstruction of a hypothetical deportation hearing in 1996. It requires the court to accurately predict, in the deportation context, what would have happened at another time, in another place, with different lawyers, and before another unknown judge, using variable and subjective factors.

An indictment charging Richard Copeland with illegal reentry into the United States was dismissed by this court based on a finding that the underlying prior ordered deportation was not consistent with due process. See United States v. Copeland, 228 F.Supp.2d 267 (E.D.N.Y.2002). Though the United States Court of Appeals for the Second Circuit was in agreement that due process had been denied, it nevertheless vacated dismissal of the indictment. See United States v. Copeland, 376 F.3d 61, 75 (2d Cir.2004). Concluding that the law required both denial of due process and a showing of prejudice before the dismissal of an illegal re-entry indictment, the Court of Appeals remanded the case to the district court for an evidentiary hearing and findings on the question of whether the fundamental procedural error in the defendant's deportation hearing had been prejudicial.

As I have already noted, Judge Weinstein concluded that defendant did not have to show that it was more probable than not that he would not have been deported. But if defendant was not required to show by a preponderance of the evidence or to show that it was more probable than not that the result of the deportation proceedings would have been different in the absence of the due process defect, how much less of a burden did defendant have? And how is that burden to be described?

Judge Weinstein’s answer was nothing if not forthright. Judge Weinstein held defendant had to show that there was a probability of at least .2 (20%) that his deportation would not have been ordered (by another immigration judge?) if there had been no denial of due process.

The result under this liberal standard was that defendant still lost. Judge Weinstein wrote:

The [trial] court [i.e., Judge Weinstein] conducted a full evidentiary hearing. It finds that the defendant was not "prejudiced." The decision is based on a determination, by a standard of clear, unequivocal and convincing evidence--80% or more probability--that had the section 212(c) hearing and administrative appeal before deportation been properly conducted by an immigration judge, the defendant would have been ordered deported. Accordingly, the indictment is reinstated.

And how did Judge Weinstein explain his choice to use digits (80%; 20%) to describe the burden of persuasion on the issue of “prejudice”?

Judge Weinstein wrote:

Prejudice is shown where "defects in the deportation proceedings may well have resulted in a deportation that would not otherwise have occurred." Id. …

The [Second Circuit] Court of Appeals did not say what degree of "likelihood," i.e. what probability, must be established. …

It concluded that prejudice is shown where there is a "reasonable probability" that the deportation at issue would not have been ordered absent the error complained of.

…

2. Quantifying Prejudice

Typically, courts have not quantified burdens of proof. See J. MAGUIRE, J. CHADBOURN, J. MANSFIELD, ET AL., CASES AND MATERIALS ON EVIDENCE 871-73 (6th ed.1973) (collecting literature on quantification of burdens of proof); RICHARD H. GASKINS, BURDENS OF PROOF IN MODERN DISCOURSE 20 (1992) (discussing implications of burdens of proof); TERENCE ANDERSON & WILLIAM TWINING, ANALYSIS OF EVIDENCE 338 (1991) (correlating verbal and mathematical measures of certainty and doubt).

The term "reasonable probability" should be quantified to the extent possible, given the difficulty of assessing what another adjudicator would have done when applying complex and subjective criteria. One of the most astute observers of problems of proof has emphasized the importance of attempting to set standards of probability in deciding whether fact-finding burdens have been met. He wrote:

The possible frailty of the fact-finding process in adjudication is an important and complex problem. It threatens to corrode public confidence in a vital part of the legal system; it raises significant moral, ethical, and legal issues ...; it raises the possibility that legal rules cannot be efficiently or effectively administered and implemented; and it raises broader questions about the fairness, morality, acceptability, and efficiency of matters such as the legislative process and administrative rule-making proceedings. The problem of evidence and uncertainty is not simply a "technical" or "abstract" one. However one proposes to deal with the problem of uncertain inference--whether by "abstract" models, by "common sense" reasoning, by dismissing it as unmanageable by rational analysis, or in some other way--what one thinks about probability and inference in [adjudication] profoundly affects what one thinks about the "rule of law."

Peter Tillers, Introduction to the Boston University School of Law Symposium on Probability and Inference in the Law of Evidence, 66 B.U. L. REV. 381, 381-82 (1986). Agreement on quantification, while not a solution, does help move beyond the mere anecdotal to at least a rough consensus in application.

Quantification requires analysis in terms of probability. Cf. Anne W. Martin & David A. Schum, Quantifying Burdens of Proof: A Likelihood Ratio Approach, 27 JURIMETRICS J. 383 (1987); Peter Tillers & David A. Schum, Charting New Territory in Judicial Proof: Beyond Wigmore, 9 CARDOZO L. REV. 907, 910 (1988) ("The primary motivation for the use of most mathematical models of proof is to facilitate consistent thinking about very complex problems.").

While "reasonable probability," the term of art selected by the Court of Appeals, seems deliberately designed to be fuzzy in concept and articulation, it is suggested that a probability of 20%--the approximate inverse of "clear, unequivocal and convincing evidence"--represents a sensible and enforceable standard, considering that deportation often has such serious consequences for the deportee and his or her family.

It has been said that,

[t]ime is irreversible, events unique, and any reconstruction of the past at best an approximation. As a result of this lack of certainty about what happened, it is inescapable that the trier's conclusions be based on probabilities.

J. MAGUIRE, J. CHADBOURN, J. MANSFIELD, ET AL., CASES AND MATERIALS ON EVIDENCE 1 (6th ed.1973). See also United States v. Fatico, 458 F.Supp. 388 (E.D.N.Y.1978). In Fatico, the court noted: "Quantified, the preponderance standard would be 50% probable.... [T]he probabilities might be in the order of above 70% under a clear and convincing evidence burden.... In terms of percentages, the probabilities for clear, unequivocal and convincing evidence might be in the order of 80% under this standard." 458 F.Supp. at 405. Id. at 411 (concluding that "clear, unequivocal and convincing evidence" means a probability of "about 80%"). Cf. United States v. Shonubi, 895 F.Supp. 460, 514 (E.D.N.Y.1995) ("[Non-statistical] evidence offers nothing more than a basis for conclusions about a perceived balance of probabilities."), rev'd, 103 F.3d 1085, 1092 (2d Cir.1997) ("Though [the district court's] comprehensive opinion is a valuable addition to the legal literature on the subject of evidence in particular and judicial decision-making in general, we conclude that he relied on evidence beyond the category of 'specific evidence' that our prior opinion ruled was required for determination of a "relevant conduct" drug quantity for purposes of imposing a criminal sentence ."); Peter Tillers, Introduction: Three Contributions to Three Important Problems in Evidence Scholarship, 18 CARDOZO L. REV. 1875, 1884 (1997) ("One possible way to make sense out of [the opinion of the Court of Appeals in Shonubi ] is to view it as a condemnation of statistical evidence in general.... But there are ... problems with the view that [the opinion] is, at bottom, a repudiation of statistical evidence and statistical methods. [For instance, the Court of Appeals for the Second Circuit] seems to accept the use of statistics and statistical methods for [related] purposes ....").

When, as here, a relatively "simple fact"--what happened in the real world of defendant's life--is combined with what an unknown administrative judge would have done in evaluating the evidence supporting that finding of "fact," and analyzing the "fact" in the context of a "legal rule," the problem of determining how the judge would have decided the "law-fact" issue is complex. It is compounded by many factors--among them the egocentricity of the judge. At most a band of probabilities is all that we can expect. Since the defendant's constitutional rights have been violated he is entitled, it is submitted, to the most favorable band border--here, it is proposed, 20%. An attempt to quantify in order to provide some uniformity in application of the rule is justified even though it must be conceded that the percentage chosen is based on public policy favoring enforcement of constitutional rights and somewhat arbitrary.

&&&

Do you think Judge Weinstein’s ruling will stand? Or do you think the Second Circuit Court of Appeals will again slap down Judge Weinstein, perhaps on the ground that Judge Weinstein is again improperly trying to expressly quantify, or grade numerically, things that cannot be or ought not be quantified, measured, or graded numerically?

Even though I see force in the argument that standards of persuasion such as the reasonable doubt standard should be couched in numerical terms, cf. Questions about Winship, I routinely tell my students there is not a snowball’s chance in %$^& that this will happen. But seeing a judge who has the great courage of his very determined convictions makes me wonder if I am being too timid. Perhaps the sort of “mathematical” approach that J. Weinstein favors will someday prevail, at least in some sectors of the law.

More about Biography of H.L.A. Hart

Update: As Nicola Lacey's biography of H.L.A. Hart progresses, there is increasing detail about the intellectual currents at Oxford and elsewhere. This largely answers one of the concerns I voiced earlier. See my post dated May 13, 2005.

Edinburgh Seminars on Law, Probability, and Risk

Professor Colin Aitken and the University of Edinburgh are hosting additional seminars on law, probability, and risk. See http://www.lprseminars.org.

One seminar is slated for October 14-15, 2005. The general topic topic is criminology and the organizer is Sarah Armstrong.

A second seminar is scheduled for December 2-3, 2005. The general topic is evidence evaluation and the organizer is Colin Aitken.

The seminars are free but participation is by invitation. For details about the seminars get in touch with either Sarah Armstrong or Colin Aitken at:

Sarah Armstrong: sarmstro at staffmail.ed.ac.uk

C.G.G. Aitken
School of Mathematics
The King's Building
The University of Edinburgh, EH9 3JZ
Scotland

E-mail: cgga at maths.ed.ac.uk
http://www.maths.ed.ac.uk/~cgga
Phone: (0)131 650 4877
Fax: (0)131 650 6553

Forename, Surname

In her biography of H.L.A. Hart Nicola Lacey refers to Hart as "Herbert." This does not feel quite right to me. Perhaps this is because I want the biographer to distance herself from her formidable subject.

I have reached p. 118. There is a lot of personal detail here. Not all of the details about Hart's life to this point are clearly tied to Hart's intellectual interests. Without that connection, some of the details seem a bit tedious.

I still don't see much tragedy in Hart's life. (He has now gone through WWII and he is contemplating going "up" to Oxford to be a don.) But perhaps the tragedy lies in the future? Further reading will tell. (Or perhaps my benchmark for "tragedy" is different than Lacey's?)

The book jacket states: "To generations of lawyers, H.L.A. Hart is known as the twentieth century's greatest legal philosopher." Question: Does she mean English lawyers? Commonwealth lawyers? U.K., Commonwealth, and American Lawyers? In any event, there are other pretenders to the throne of 20th century legal philosophy. Hans Kelsen is one.

As Lacey recounts the details of Hart's life, she mentions numerous individuals who played a role in Hart's life. I am familiar with many but not all of the names she mentions. I wonder if Lacey gives the reader -- particularly the reader without much knowledge of those times and the intellectual currents in the U.K. and at Oxford --, I wonder if Lacey gives the reader a sufficiently good feel for those times and currents. Thus far my sense is that Lacey gives us (many) hints of what the world was like in those times and places but that her account should have been, in certain respects, more sweeping, and in other respects, more focused. Some of the individuals Lacey mentions are not interesting in their own right and it does not appear that all of them influenced Hart in significant ways. But my judgments here are thoroughly and unforgivably provisional: I have not yet seen the denouement of the very interesting story that Lacey tells.