Jurisprudential Cipher

Harriet Miers.

Abe Fortas.

Loyalty.

The Death of Innocence

The Supreme Court recently agreed to review the decision of the South Carolina Supreme Court in a capital case, State v. Holmes, 605 S.E.2d 19 (2004). The Court agreed to consider the following question:

Whether South Carolina's rule governing the admissibility of third-party guilt evidence violates a criminal defendant's constitutional right to present a complete defense grounded in the Due Process Confrontation, and Compulsory Process Clauses?

See Holmes v. State, 2005 WL 770655 (March 31, 2005)(petition for writ of certiorari) and Holmes v. South Carolina, -- S.Ct. --, 2005 WL 770216 (Sept. 27, 2005)(granting petition for question stated above).

Holmes raises a variety of issues. Some of the issues in the case involve the razzle dazzle of forensic science, including DNA evidence and palmprint evidence. But such razzle dazzle is peripheral to the main issues presented by Holmes' successful petition for Supreme Court review; the important issues are quite traditional and have little or nothing to do with technology.

Try as it might -- and try it probably will -- the Supreme Court will not be able to entirely avoid two broad questions:

1. What is the relationship between the due process guarantee of fair trial -- which, the Court has said or suggested, encompasses a guarantee of trial rules and procedures that are likely to produce a high degree of factual accuracy in criminal trials -- and nonconstitutional rules of evidence. (Some members of the Court may fall prey to the temptation to refer with scorn to the proposition [advanced by whom?] that the due process clause constitutes a code of evidence.)

2. Does the due process guarantee of proof beyond a reasonable doubt have any meaning in the absence of constitutional rules guaranteeing that an accused will have an opportunity to submit evidence of innocence if such evidence meets some threshold of probative value? (Some members of the Court may fall prey to the temptation to rely again on the hypertechnical argument that the due process guarantee of proof beyond a reasonable doubt standard speaks only to the way that the trier of fact should evaluate admissible evidence, and not to the question of the kinds of exculpatory evidence that must be admitted in a criminal trial. [The theory here is: The scales are heavily tilted against the prosecution but the reasonable doubt requirement does not prohibit the prosecution from preventing the accused from placing some of his heavy stones on the scales of justice.])

Other grand issues -- even broader than the two I have just mentioned -- are presented by Holmes. But I will restrain myself and I will not mention them now. But I feel compelled to mention one additional question. Holmes does arouse (in my breast) one nagging suspicion or question:

What is the true reason for the persistent tendency to impose sharp limitations on attempts by criminal defendants to show their innocence by introducing evidence of the guilt of third persons? Are these limitations imposed to avoid the waste of time and resources? Or do the restrictions on such evidence grow out of the fear that juries will often -- too often -- find such evidence persuasive?

But if the last reason is the true motivation for restrictions of third-person guilt, is the fear justified? Why should jurors have any more difficulty assessing this sort of evidence than they have assessing any other sort of exculpatory evidence?

The suspicion that juries will fall prey to manufactured evidence of third-person guilt is puzzling: juries as well as judges can and will use their common sense and their ingrained skepticism when they evaluate "admissions" of guilt by jailbirds and other suspicious characters. So what accounts for the unusually stringent limitations on such exculpatory evidence?

Is the persistent suspicion of evidence of third-person guilt somehow rooted in an unspoken belief that assessment of such evidence normally involves after-the-fact assessments of failure to investigate and that such post hoc assessments of whether an investigative road not taken should have been taken are very, very difficult, so difficult that triers such as jurors will make too many mistakes about such questions?

No Mindless Legalisms Here!

It has often been said that private associations such as law schools are not required to apply rules of evidence or rules of procedure that apply in proceedings such as trials. It has also been said that it does not make sense for private associations to apply trial rules and trial formalities; doing so, it has been suggested, would constitute just another instance of mindless legalism. As the following announcements show, one law school has taken these two precepts very much to heart:

I

E-Mailed University Announcement, September 16, 2005

University President XXXXXX announced on September 14, 2005 that Dean YYYYYYY has been reappointed as dean.

II

E-Mail Message from Law School Administrator
to Law School Faculty, September 23, 2005

I quote two provisions from our rules:

In the fall of the fifth year of a Dean's original appointment, the faculty shall consider whether to recommend to the President that the Dean be reappointed. Reappointment shall be recommended if a majority of all faculty member eligible to vote on original appointments to the faculty vote to recommend reappointment. The Dean shall be recused for the purpose of this vote...

A meeting to consider reappointment shall be scheduled for 4:00 PM on the second academic Tuesday in October of each year in which the faculty is required to consider the Dean's reappointment. The chairperson of the faculty appointments committee shall chair the meeting and shall inform the President of the faculty's recommendations.

This is indeed the fall of the fifth year of YYYY's appointment as Dean. We have a faculty meeting already noticed for Tuesday, October 11, and this matter will be put on the agenda for that meeting.

END OF UNIVERSITY AND LAW SCHOOL MESSAGES

There are various possible explanations for the above sequence but, whatever they are, it is probably safe to assume that the vote of the law faculty on October 11 on the reappointment of Dean YYYYY will be a formality. In any event, why should the trial precede the judgment? What a silly idea.

Visualization of Evidence and Inference for Legal Settings

Visualization is a hot topic in scholarship about evidence and information in a large variety of settings (e.g., military, weather, traffic control). Visualization is also fast becoming a hot topic in the study of evidence and inference in legal settings.

It is time for a conference on the visualization of evidence and inference in and for legal settings such as trials, pretrial investigation, and prelitigation investigation. Yes? No?

Visualization is important for a great variety of purposes. It is important, for example, for effective effective persuasion (lawyers tend to call this "advocacy"). It is also important for the intelligibility of complex evidential argument (and little if any real-world evidential argument, or factual inference, is simple). Visualization also facilitates the ability of people to recall large quantities of evidence. Visualization may also be a good window into the workings of the mind.

N.B. Sightless people are capable of certain forms of visualization, no? A good question then is, "What, precisely, is (are) this (these) thing (things) called 'Visualization'?"

Willy Lomanhood (again)

I see that one law school is now recruiting applicants for the position of Assistant Associate Professor of Law. My gosh! This position is almost as good as the position of Chief Bottle Washer.

Witness Credibility: Humans and Other Animals Are Natural-Born Liars

David Livingstone Smith, Natural-Born Liars. Why do we lie, and why are we so good at it? Because it works Scientific American Mind (online) June 2005:

... Why do we lie so readily? The answer: because it works. The Homo sapiens who are best able to lie have an edge over their counterparts in a relentless struggle for the reproductive success that drives the engine of evolution. As humans, we must fit into a close-knit social system to succeed, yet our primary aim is still to look out for ourselves above all others. Lying helps. And lying to ourselves--a talent built into our brains--helps us accept our fraudulent behavior.

Passport to Success

If this bald truth makes any one of us feel uncomfortable, we can take some solace in knowing we are not the only species to exploit the lie. Plants and animals communicate with one another by sounds, ritualistic displays, colors, airborne chemicals and other methods, and biologists once naively assumed that the sole function of these communication systems was to transmit accurate information. But the more we have learned, the more obvious it has become that nonhuman species put a lot of effort into sending inaccurate messages.

...

... [But] our talent for dissembling dwarfs that of our nearest relatives by several orders of magnitude.

NYTimes on Destruction of Evidence

See Peter Applebome & Jonathan D. Slater, In New Orleans, a Legal System Is in Shambles, NYTimes Online (Sept. 9, 2005)(story dated Sept. 8).

How to Think about Massive Destruction of Evidence

Massive amounts of evidence were lost as a result of the Gulf Coast disaster. I find it interesting -- and distressing -- that I don't know how to begin to think about this macrocosmic evidentiary event. My work on evidence is almost always on a microscopic scale. This may be why my mind is frozen. (No wisecracks please!)

If anyone out there reads this blog, please tell me: What are some of the major evidentiary issues or issues of evidentiary policy that will arise from the widespread loss of judicial records, case files, interview notes, reams of documents, the death of witnesses, and the like?

Widespread and long-lasting

If anyone deserves blame for the catastrophe on the Gulf Coast, is it not the case that

(i) many people and organizations share the blame for the bungled evacuation and rescue efforts, and

(ii) the failure to bolster the infrastructure of New Orleans against possible flooding was the result of literally decades of neglect?

Unpredictable Disaster

Larry O'Hanson, The furious storm: one wild hurricane could drown a major American City. Can scientist prevent the disaster in time, Scholastic, Inc., Science World (October 18, 2002):

Here's a tip from the experts: If you're in New Orleans when the "Big One" hits, have a lifeboat handy. Some scientist[s] warn that the right hurricane--a tropical cyclone with at least 74-mile-per-hour winds--could strike the Gulf Coast in a way that would hurl millions of gallons of water to turn the city known as the Big Easy into the Big Soup Bowl....

A major flood could submerge much of central New Orleans beneath 20 feet of water, leaving many of the metropolitan area's 1.3 million residents clinging to rooftops--a prospect that has engineers and city planners scrambling for defensive strategies. "It's the luck of the draw," says hurricane expect Hugh Willoughby at the National Oceanic and Atmospheric Administration (NDAA). He thinks it's a matter of when--not if--the Big One will pound New Orleans During some annual hurricane season between June and November.

...

The perfect storm could ... strike New Orleans east of the city, with gale-force winds blowing south, shoveling water from Lake Pontchartrain over the lake levees ....

Anticipate that these statements will be made during the next 100,000 or 1,000,000,000 years

1. "No one anticipated that an asteroid would hit the earth."

2. "No one anticipated that the sun would swell thousands of times."

3. "No one could have anticipated that a volcanic eruption would take place directly below Gotham City."

4. "No one could have anticipated that the fusion reactor would go awry."

5. "No one could have anticipated that a massive hurricane would hit New York City."

6. "No one could have anticipated that a cluster of rapidly-moving neutron stars would rip the planets out of their orbits around the Sun."

7. "No one could have anticipated that rebels would commandeer a star ship and steer it into our country's capital city."

8. "No one could have anticipated that glaciers would start to grow at a rapid rate."

9. "No one could have anticipated that the sun would begin to cool at a rapid rate."

10. "We can anticipate that many public officials will say in years to come that colossal disasters were not anticipated and could not have been anticipated."

Natural Disasters & Price Gouging

Mark P. Gergen, A Priest Responds to the Bean Counters: Leo Katz on Evasion, Blackmail, Fraud, and Kindred Puzzles of the Law (review essay), 22 Law & Soc. Inquiry 879, 890-891 (1997)(footnote omitted):

Consider the case of price gouging for food, water, or other essentials during an emergency. Price gouging is not blackmail (or even common law duress), no matter how extreme the price demand or desperate the needs of the victim. This is a difficult case for [Leo] Katz, for the price gouger can be made to seem a swine if we make the facts extreme enough. On the other hand, the case of the price gouger is an easy one to explain under some other theories. James Lindgren would explain that the price gouger is not a blackmailer because he is bargaining with his own rights. Robert Nozick would explain that price gouging is not blackmail because, on balance, the victim is better off for having the opportunity to buy necessities from the price gouger. But Katz's theory better describes our feelings about the price gouger than do these other two theories because it expresses our unease about the price gouger's behavior. Katz tells us that the question finally turns on whether the price gouger is committing a sufficiently grave immorality, and while from some moral perspectives he is not acting immorally (Lindgren's and Nozick's theories are evocative of some of the reasons), from other moral perspectives he is.

See also Gregory R. Kirsch, Hurricanes and Windfalls: Takings and Price Controls in Emergencies (Note), 79 Va. L. Rev. 1235, 1236-1237 (1993)(footnotes omitted):

... Hurricane Andrew provides a "disaster context" for this Note's inquiry into the rules of price controls, emergency takings, and just compensation, and whether the rules encourage and facilitate effective disaster relief. Andrew struck South Florida on August 24, 1992, with 150 mph winds, destroying more than 60,000 homes and leaving as many as a quarter of a million people homeless. The victims' need for food, water, home-repair materials, and other necessities exceeded available supplies. The destruction of much of the public and private infrastructure exacerbated the shortages. As microeconomic price theory predicts, established merchants and opportunistic entrepreneurs began charging sharply higher prices. For example, sheets of plywood, each priced at eight or nine dollars before the hurricane, were selling for as much as sixty dollars per sheet after the hurricane and milk was selling for up to six dollars per gallon. To combat this "price gouging," state and local officials enacted emergency laws prohibiting sellers from charging more than prehurricane prices. Four days after Andrew passed over South Florida, the federal government sent in troops to provide food and shelter.

When disasters such as hurricanes strike, most Americans expect the government to intervene where markets fail to provide basic necessities. In this century, the federal government has enacted emergency price controls during three wars, during a period of high inflation, and during periods of turmoil in the petroleum markets. The federal government also conducted major takings programs during both World Wars to obtain the materiel necessary for the prosecution of war.

When prices rise quickly, price controls are an appealing "quick fix." But it is well known that price controls are likely to result in shortages, queues, and black markets. Because price controls may not be an effective solution to market failures, the government may choose instead to buy or take (i.e., requisition) needed goods and distribute them to the public (or, as in wartime, consume them itself). Thus, takings and price controls are alternative modes of emergency market intervention.

Famous Last Words

Commenting on the release of Larry Peterson, one of Peterson's attorneys told a television reporter that witnesses lie but that DNA doesn't.

Do you suppose the attorney will say the same thing when the prosecution offers DNA evidence against a client represented by that attorney?

The statement is a nice example of rhetoric that trades on its literal accuracy but misleads. To wit: It is literally true that DNA cannot (as far as we know) intend to affirm the truth of a statement that it believes to be false -- or vice versa; but it is not true that DNA evidence is incapable of falsely pointing to innocence -- or, for that matter, guilt. See, e.g., Tillers on Evidence and Inference August 27, 2005.

An Example of Source Uncertainty

NYTimes Online, Associated Press (August 27, 2005):

Hundreds of cases dating back a decade or more may hang in the balance if investigators confirm that a civilian forensic examiner at the Army Criminal Investigation Laboratory falsified DNA test results.

The examiner on June 2 admitted making a false entry on a control sample used during one DNA examination, the Army Criminal Investigation Command, or CID, disclosed Friday.

The lab, at Fort Gillem, Ga., is now reviewing 479 or more cases the accused examiner has worked on since he began in 1995, the CID said.

Colgate Clock

brought to you by fuzzy (and digital) logic

Jersey City 2005

brought to you by fuzzy logic

Soft Computing and the Purposes of Formal Analysis of Uncertainty in Law

Abstract of Forthcoming Paper
Forms of Uncertainty in Legal Reasoning
by Peter Tillers
for
BISC Special Event in Honor of Prof. Lotfi A. Zadeh There have been relatively few attempts to use fuzzy set theory or soft computing methods to dissect or portray inconclusive reasoning in law. From the perspective of a legal professional who is interested in rigorous study of uncertainty in law, this gap in research in fuzzy logic and soft computing is lamentable. Notions such as fuzzy and rough sets and logical procedures such as those described by fuzzy inference rules are extraordinarily evocative of notions and procedures that are routinely found in argument in legal contexts such as litigation. It seems obvious that a major research project on soft computing and uncertain legal argument should be launched. However, recent experience with attempts to use the standard probability calculus to dissect uncertain reasoning in law about factual questions suggests that before a major research project on soft computing and law is begun, interested soft computing researchers and interested legal professionals should try to reach agreement about the possible distinct purposes that any given mathematical or logical analysis of inconclusive legal argument might serve. Putting aside the special (and comparatively uninteresting) case of mathematical methods, or formal methods, that make their appearance in legal settings because they are part of admissible forensic scientific evidence, mathematical or logical analysis of inconclusive argument in law could have any one (or more) of the following distinct purposes (but research could and should explore the extent to the realization of any one of the purposes of formal analysis enumerated below might advance one or more of the other purposes enumerated below):

1. To predict how judges and jurors will resolve issues in litigation.
2. To devise methods that can replace existing methods of argument and deliberation in legal settings.
3. To devise methods that mimic conventional methods of argument in legal settings.
4. To devise methods that support or facilitate existing, or ordinary, argument and deliberation in legal settings by mathematically illiterate actors such judges, lawyers, and jurors.
5. To devise methods that would capture some but not all ingredients of argument in legal settings about factual questions or legal questions.
6. To devise methods that perfect – that better express, that improve the transparency of – the logic or logics that are immanent, or present, in existing ordinary inconclusive reasoning about uncertain hypotheses that arise in legal settings.
7. To devise methods that have no practical purpose – and whose validity cannot be empirically tested – but that (ostensibly) serve to advance understanding of the nature of inconclusive argument about uncertain hypotheses in legal settings.

The paper discusses the distinctive characteristics of these various purposes from a legal perspective.

The Confrontation Process

This morning I think I heard a PBS announcer say that by gaining the endorsement of the American Bar Association, Paul Roberts (Pres. Bush's nominee to the Supreme Court) had "surmounted a mjaor hurdle in the confrontation process."

Announcement: Old Scholars Law Abstracts (OSLA)

Announcing Old Scholars Law Abstracts (OSLA)

The Social Science Research Network is pleased to announce the establishment of a new Legal Scholarship Network journal devoted to showcasing the work of scholars who have been in teaching for forty years or more. Edited by Professors Greer Griench and Gary Giezer, the Old Scholars Law Abstracts provides a forum for posting both completed works and works in progress on any subject relating to law.

This Journal provides aging law teachers an avenue for locating decrepit peers working in the same substantive area of scholarship. We hope that this Journal will also be of interest to dis-appointments committees and junior scholars in Venice.

To subscribe to Old Scholars Law Abstracts, please go to http://hq.ssrn.com, where you will find a short registration process. If you have any problems with this process, please consult your personal medical assistant.

Sincerely,

Wesley White
Director emeritus (h.c.), Legal Scholarship Network

* * * * * * * * * * * * * * * * * * * * * * * * *

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The Tenth Circuit Makes Pretty Good Sense of the Inference-upon-Inference Rule

Famously -- "famously," in any event, to those of us who are interested in multistage inference -- , famously, Abraham Lincoln called one set of multistage inferences -- those of his debate opponent Stephen Douglas --, Lincoln called Douglas' pyramided inferences "as thin as the homeopathic soup that was made by boiling the shadow of a pigeon that had starved to death." See Passantino v. Board of Education, 52 A.D.2d 935, 383 N.Y.S.2d 639 (1976)(comment made at Lincoln-Douglas debate at Quincy, Illinois, Oct. 13, 1858). As hard as it is to resist such a lovely metaphor or the word of America's most beloved President, most American Evidence scholars have done so in this instance: they have roundly condemned the supposed prohibition against piling an inference upon an inference. Now, however, the 10th Circuit has suggested that the inference-upon-inference rule is not a prohibition but a signpost that should warn courts, particularly in criminal cases, against allowing juries (or, presumably, judges) from reaching factual conclusions that are too weakly supported by evidence. In United States v. Summers, 2005 U.S. App. LEXIS 14823, 9*-11* (July 21, 2005)(footnotes omitted) the 10th Circuit Court of Appeals said:

In the civil context, the import of the "inference upon inference" rule has largely been eroded. See Salter v. Westra, 904 F.2d 1517, 1525 (11th Cir. 1990); Cora Pub, Inc. v. Cont'l Cas. Co., 619 F.2d 482, 485-86 (5th Cir. 1980); see also N.Y. Life Ins. Co. v. McNeely, 52 Ariz. 181, 79 P.2d 948, 955 (Ariz. 1938) (setting forth a construction of the rule that has been adopted in numerous jurisdictions); 1A John Henry Wigmore, Evidence in Trials at Common Law Section 41 (Tillers rev. 1983) (criticizing the rule in both contexts as "fallacious and impracticable"). In criminal cases, however, its common-sense dictate continues to bear currency. While some courts have rejected a mechanistic interpretation of the rule, n3 we find its underpinnings to be sound, arising as they do from the requirement that the government bears the burden to prove its case beyond a reasonable doubt. The government may satisfy this burden, in whole or in part, through the use of circumstantial evidence open to interpretation by the jury. Inferences are necessary and indeed proper in a criminal trial, and "a jury has wide latitude to determine factual issues and to draw reasonable inferences from circumstantial evidence." United States v. McCarrick, 294 F.3d 1286, 1293 (11th Cir. 2002). An inference is reasonable if it "flows from logical and probabilistic reasoning," i.e., with experience serving as the touchstone, a jury's inference is permissible where there is a reasonable probability that the conclusion flows from the facts in evidence. n4 Jones, 44 F.3d at 865. The rule that prohibits the stacking of inference upon inference merely indicates that at some point along a rational continuum, inferences may become so attenuated from underlying evidence as to cast doubt on the trier of fact's ultimate conclusion. In other words, "the chance of error or speculation increases in proportion to the width of the gap between underlying fact and ultimate conclusion where the gap is bridged by a succession of inferences, each based upon the preceding one." United States v. Shahane, 517 F.2d 1173, 1178 (8th Cir. 1975).

While preserving the "inference upon inference" rule in this circuit, we see little tension between our understanding of its import and that espoused in the cases noted above. Nor have our previous cases employed a formalistic approach to the operation of the rule. ...

Like many courts that have addressed the issue, we do not foreclose the possibility that a reasonable inference built on yet another reasonable inference may in some cases sustain a conviction. However, we believe the "inference upon inference" rule serves as an appropriate signpost, cautioning reviewing courts to measure the "gap" between fact and conclusion before acquiescing in the jury's leap.

Although the 10th Circuit didn't get absolutely everything right -- the strength of an inference based on a series of inferences is not as dependent on the number of inferences as the 10th Circuit imagines -- there is much to be said for the approach that the 10th Circuit takes. The 10th Circuit's approach tells judges that when evaluating the strength or sufficiency of evidence (at least in criminal cases) they must decompose the foundation of a final inference into a series of inferences upon which such a final inference rests and judges must then assess the strength or force of the entire chain (I would say "complex") of inferences. There is wisdom -- and valuable inferential discipline -- in this approach; the existence of pyramided inferences is not a myth.