Rules of Evidence Are Important to the Supreme Court and to the United States Even in Times of Military Conflict

In Hamdan v. Rumsfeld, 2006 U.S. LEXIS 5185 (June 29, 2006) Justice Stevens, speaking for the Court, wrote (most footnotes omitted):

Whether or not the Government has charged Hamdan with an offense against the law of war cognizable by military commission, the commission lacks power to proceed. The UCMJ conditions the President's use of military commissions on compliance not only with the American common law of war, but also with the rest of the UCMJ itself, insofar as applicable, and with the "rules and precepts of the law of nations," Quirin, 317 U.S., at 28 -- including, inter alia, the four Geneva Conventions signed in 1949. See Yamashita, 327 U.S., at 20-21, 23-24. The procedures that the Government has decreed will govern Hamdan's trial by commission violate these laws.

...

Another striking feature of the rules governing Hamdan's commission is that they permit the admission of any evidence that, in the opinion of the presiding officer, "would have probative value to a reasonable person." § 6(D)(1). Under this test, not only is testimonial hearsay and evidence obtained through coercion fully admissible, but neither live testimony nor witnesses' written statements need be sworn. See §§ 6(D)(2)(b), (3). Moreover, the accused and his civilian counsel may be denied access to evidence in the form of "protected information" (which includes classified information as well as "information protected by law or rule from unauthorized disclosure" and "information concerning other national security interests," §§ 6(B)(3), 6(D)(5)(a)(v)), so long as the presiding officer concludes that the evidence is "probative" under § 6(D)(1) and that its admission without the accused's knowledge would not "result in the denial of a full and fair trial." § 6(D)(5)(b). n43 Finally, a presiding officer's determination that evidence "would not have probative value to a reasonable person" may be overridden by a majority of the other commission members. § 6(D)(1).

- - - - - - - - - - - - - - Footnote - - - - - - - - - - - - - - -

n43 As the District Court observed, this section apparently permits reception of testimony from a confidential informant in circumstances where "Hamdan will not be permitted to hear the testimony, see the witness's face, or learn his name. If the government has information developed by interrogation of witnesses in Afghanistan or elsewhere, it can offer such evidence in transcript form, or even as summaries of transcripts." 344 F. Supp. 2d 152, 168 (DC 2004).

- - - - - - - - - - - - End Footnote- - - - - - - - - - - - - -

Once all the evidence is in, the commission members (not including the presiding officer) must vote on the accused's guilt. A two-thirds vote will suffice for both a verdict of guilty and for imposition of any sentence not including death (the imposition of which requires a unanimous vote). § 6(F). Any appeal is taken to a three-member review panel composed of military officers and designated by the Secretary of Defense, only one member of which need have experience as a judge. § 6(H)(4). The review panel is directed to "disregard any variance from procedures specified in this Order or elsewhere that would not materially have affected the outcome of the trial before the Commission." Ibid. Once the panel makes its recommendation to the Secretary of Defense, the Secretary can either remand for further proceedings or forward the record to the President with his recommendation as to final disposition. § 6(H)(5). The President then, unless he has delegated the task to the Secretary, makes the "final decision." § 6(H)(6). He may change the commission's findings or sentence only in a manner favorable to the accused. Ibid.

...

... Chief among [Hamdan's] particular objections are that he may, under the Commission Order, be convicted based on evidence he has not seen or heard, and that any evidence admitted against him need not comply with the admissibility or relevance rules typically applicable in criminal trials and court-martial proceedings.

...

In part because the difference between military commissions and courts-martial originally was a difference of jurisdiction alone, and in part to protect against abuse and ensure evenhandedness under the pressures of war, the procedures governing trials by military commission historically have been the same as those governing courts-martial. ...

...

There is a glaring historical exception to this general rule. The procedures and evidentiary rules used to try General Yamashita near the end of World War II deviated in significant respects from those then governing courts-martial. See 327 U.S. 1. The force of that precedent, however, has been seriously undermined by post-World War II developments.

Yamashita, from late 1944 until September 1945, was Commanding General of the Fourteenth Army Group of the Imperial Japanese Army, which had exercised control over the Philippine Islands. On September 3, 1945, after American forces regained control of the Philippines, Yamashita surrendered. Three weeks later, he was charged with violations of the law of war. A few weeks after that, he was arraigned before a military commission convened in the Philippines. He pleaded not guilty, and his trial lasted for two months. On December 7, 1945, Yamashita was convicted and sentenced to hang. ... This Court upheld the denial of his petition for a writ of habeas corpus.

The procedures and rules of evidence employed during Yamashita's trial departed so far from those used in courts-martial that they generated an unusually long and vociferous critique from two Members of this Court. See id., at 41-81 (Rutledge, J., joined by Murphy, J., dissenting). n46 Among the dissenters' primary concerns was that the commission had free rein to consider all evidence "which in the commission's opinion 'would be of assistance in proving or disproving the charge,' without any of the usual modes of authentication." Id., at 49 (Rutledge, J.).

- - - - - - - - - - - - - - Footnote - - - - - - - - - - - - - - -

n46 The dissenters' views are summarized in the following passage:

"It is outside our basic scheme to condemn men without giving reasonable opportunity for preparing defense; in capital or other serious crimes to convict on 'official documents . . .; affidavits; . . . documents or translations thereof; diaries . . ., photographs, motion picture films, and . . . newspapers" or on hearsay, once, twice or thrice removed, more particularly when the documentary evidence or some of it is prepared ex parte by the prosecuting authority and includes not only opinion but conclusions of guilt. Nor in such cases do we deny the rights of confrontation of witnesses and cross-examination." Yamashita, 327 U.S., at 44 (footnotes omitted).

- - - - - - - - - - - - End Footnote- - - - - - - - - - - - - -

The majority, however, did not pass on the merits of Yamashita's procedural challenges....

At least partially in response to subsequent criticism of General Yamashita's trial, the UCMJ's codification of the Articles of War after World War II expanded the category of persons subject thereto to include defendants in Yamashita's (and Hamdan's) position, n47 and the Third Geneva Convention of 1949 extended prisoner-of-war protections to individuals tried for crimes committed before their capture. See 3 Int'l Comm. of Red Cross, n48 Commentary: Geneva Convention Relative to the Treatment of Prisoners of War 413 (1960) (hereinafter GCIII Commentary) (explaining that Article 85, which extends the Convention's protections to "prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture," was adopted in response to judicial interpretations of the 1929 Convention, including this Court's decision in Yamashita). The most notorious exception to the principle of uniformity, then, has been stripped of its precedential value.

...

The uniformity principle is not an inflexible one; it does not preclude all departures from the procedures dictated for use by courts-martial. But any departure must be tailored to the exigency that necessitates it. See Winthrop 835, n. 81. That understanding is reflected in Article 36 of the UCMJ, which provides:

"(a) The procedure, including modes of proof, in cases before courts-martial, courts of inquiry, military commissions, and other military tribunals may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.

"(b) All rules and regulations made under this article shall be uniform insofar as practicable and shall be reported to Congress." 70A Stat. 50.

Article 36 places two restrictions on the President's power to promulgate rules of procedure for courts-martial and military commissions alike. First, no procedural rule he adopts may be "contrary to or inconsistent with" the UCMJ -- however practical it may seem. Second, the rules adopted must be "uniform insofar as practicable." That is, the rules applied to military commissions must be the same as those applied to courts-martial unless such uniformity proves impracticable.

Hamdan argues that Commission Order No. 1 violates both of these restrictions; he maintains that the procedures described in the Commission Order are inconsistent with the UCMJ and that the Government has offered no explanation for their deviation from the procedures governing courts-martial, which are set forth in the Manual for Courts-Martial, United States (2005 ed.) (Manual for Courts-Martial). Among the inconsistencies Hamdan identifies is that between § 6 of the Commission Order, which permits exclusion of the accused from proceedings and denial of his access to evidence in certain circumstances, and the UCMJ's requirement that "all . . . proceedings" other than votes and deliberations by courts-martial "shall be made a part of the record and shall be in the presence of the accused." 10 U.S.C. A. § 839(c) (Supp. 2006). Hamdan also observes that the Commission Order dispenses with virtually all evidentiary rules applicable in courts-martial.

... Without reaching the question whether any provision of Commission Order No. 1 is strictly "contrary to or inconsistent with" other provisions of the UCMJ, we conclude that the "practicability" determination the President has made is insufficient to justify variances from the procedures governing courts-martial. Subsection (b) of Article 36 was added after World War II, and requires a different showing of impracticability from the one required by subsection (a). Subsection (a) requires that the rules the President promulgates for courts-martial, provost courts, and military commissions alike conform to those that govern procedures in Article III courts, "so far as he considers practicable." 10 U.S.C. § 836(a) (emphasis added). Subsection (b), by contrast, demands that the rules applied in courts-martial, provost courts, and military commissions -- whether or not they conform with the Federal Rules of Evidence -- be "uniform insofar as practicable." § 836(b) (emphasis added). Under the latter provision, then, the rules set forth in the Manual for Courts-Martial must apply to military commissions unless impracticable. n50

...

The President here has determined, pursuant to subsection (a), that it is impracticable to apply the rules and principles of law that govern "the trial of criminal cases in the United States district courts," § 836(a), to Hamdan's commission. We assume that complete deference is owed that determination. The President has not, however, made a similar official determination that it is impracticable to apply the rules for courts-martial. n51 And even if subsection (b)'s requirements may be satisfied without such an official determination, the requirements of that subsection are not satisfied here.

...

Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. Assuming arguendo that the reasons articulated in the President's Article 36(a) determination ought to be considered in evaluating the impracticability of applying court-martial rules, the only reason offered in support of that determination is the danger posed by international terrorism. n52 Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan's trial, any variance from the rules that govern courts-martial. ...

The absence of any showing of impracticability is particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: the right to be present. See 10 U.S.C. A. § 839(c) (Supp. 2006). Whether or not that departure technically is "contrary to or inconsistent with" the terms of the UCMJ, 10 U.S.C. § 836(a), the jettisoning of so basic a right cannot lightly be excused as "practicable."

Under the circumstances, then, the rules applicable in courts-martial must apply. Since it is undisputed that Commission Order No. 1 deviates in many significant respects from those rules, it necessarily violates Article 36(b).

The Government's objection that requiring compliance with the court-martial rules imposes an undue burden both ignores the plain meaning of Article 36(b) and misunderstands the purpose and the history of military commissions. The military commission was not born of a desire to dispense a more summary form of justice than is afforded by courts-martial; it developed, rather, as a tribunal of necessity to be employed when courts-martial lacked jurisdiction over either the accused or the subject matter. See Winthrop 831. Exigency lent the commission its legitimacy, but did not further justify the wholesale jettisoning of procedural protections. That history explains why the military commission's procedures typically have been the ones used by courts-martial. That the jurisdiction of the two tribunals today may sometimes overlap, see Madsen, 343 U.S., at 354, does not detract from the force of this history; n53 Article 21 did not transform the military commission from a tribunal of true exigency into a more convenient adjudicatory tool. Article 36, confirming as much, strikes a careful balance between uniform procedure and the need to accommodate exigencies that may sometimes arise in a theater of war. That Article not having been complied with here, the rules specified for Hamdan's trial are illegal. n54

Being in the Classroom Intentionally

About two weeks ago the Association of American Law Schools held an extended workshop (in Canada) called "Teaching Intentionally."

The title of the workshop reflects the precision with which law teachers characteristically use language.

P.S. One year I actually tried teaching unintentionally. It didn't work. I usually ended up in some neighborhood cafe or in the Bahamas rather than at my law school. So there's no doubt about it: being intentional is good.

A Familiar but Unresolved(?) Puzzle: Substantive Definitions of Crimes versus Proof Beyond Reasonable Doubt

A very recent Supreme Court decision -- Dixon v. United States, No. 05-7503 (June 22, 2006) -- serves as a reminder that three principles are well-entrenched in U.S. constitutional jurisprudence:

1. The prosecution must prove all essential elements of the crime charged beyond a reasonable doubt. This is required by due process.

2. It is constitutionally permissible for a State or the U.S. Government to make a criminal defendant bear the burden of proving that an affirmative defense applies: due process does not require that the government prove beyond a reasonable doubt that an affirmative defense to a criminal charge does not apply.

3. Legislative bodies (including Congress) have the authority to define crimes. Legislative bodies are therefore free to decide which elements are essential elements of a given crime. Similarly, legislative bodies are free to proclaim that the truth or falsity of a given element -- a given type of fact -- is part of an affirmative defense rather than part of the definition of a given crime.

Propositions #2 and #3 perhaps reflect the notion that legislative bodies are free to choose how a concern for public security and the concern for the role of blame in criminal justice are to be balanced. But if legislative bodies are to have this prerogative, why are they not also free to proclaim that conviction of crime can be had even if the essential elements of crimes -- crimes that those same legislative bodies have defined -- have not been established beyond a reasonable doubt? If the constitution recognizes that legislative bodies are entities that have the constitutional authority to balance the concern for public safety and the concern for protection of the innocent, why aren't those same legislative bodies free to decide how much proof there must be of the essential elements that those legislative bodies have decided should be part of the definition of the crime in question?

I doubt that legislative authority over legal definitions of criminal culpability is compatible with the principle or rule that criminal guilt must be established beyond a reasonable doubt. (In Dixon the Court seems to assume that an accused's mere [pre-existing] knowledge of the illegality of the conduct undertaken ["perpetrated"?] by the accused is sufficient to establish whatever degree of criminal culpability the constitution may demand. But I cannot imagine that even the most hard-hearted member of the Supreme Court will adhere to this harsh principle when push comes to shove -- when, for example, the knowledge of the accused is accompanied by extreme extenuating circumstances such as duress on the accused in the form of extreme physical torture.)

The riddle I have sketched above remains fundamentally unchanged if courts (as well as legislative bodies) are thought to have authority to define crimes and affirmative defenses.

The tension between the reasonable doubt principle and legislative power to define crimes reawakens in my mind the suspicion that the reasonable doubt principle is more show than substance. I have the suspicion that the reasonable doubt standard is more show than substance because I simply do not understand why the reasonable doubt standard does not itself imply or generate a constitutional obligation on the part of government to structure the entire criminal process (including police investigation) in a way that provides reasonable assurance that convictions will be had only when there is a very high probability of guilt.

Bayesian Spam

The cleverness of spammers knows no bounds. Today I received an e-mail message from the following sender:

Bays H. Network

P.S. I regret to say that the message did not contain a network. What a fraud!

What Does That Darned Picture Mean?

Is the following statement true or (better yet!) when is it true (and not true)?:

If a mental picture is used to represent a thought, it needs to be accompanied by a caption, by a set of instructions for how to interpret the picture--what to pay attention to and ignore.

Steven Pinker, How the Mind Works pp. 297 (1997).

It is the case, of course, that instructions for use can be remembered and that people can learn to recall almost instantaneously -- very quickly -- the intended use or meaning of at least some images. Consider (some) highway signs containing pictures. Or, chess players, consider a diagram of a chess position (with icons representing the King, Bishop, etc.).

Indeed, my friends, are physical chess pieces different in any pertinent way from "immaterial" icons representing chess pieces? "Real" chess pieces and "real" chess boards also don't usually carry captions describing how chess pieces can be played.

Pictures and Thinking

"My computer screen is festooned with little cartoons that do various things when selected by a click of the mouse. For the life of me I can't remember what the tiny binoculars, eyedropper, and silver platter are supposed to do. A picture is worth a thousand words, but that is not always such a good thing. At some point between gazing and thinking, images must give way to ideas." Steven Pinker, Chapter 4 ("The Mind's Eye"), How the Mind Works p. 298 (1997).

This thought has many implications for visualizing evidence. One implication is the following:

The mental labor required by a method of picturing evidence and inference ordinarily should not outweigh the cognitive benefits of using such that method.

Compare the following lead balloon produced by the ordinarily-superlative John Henry Wigmore: Even though Wigmore's method of picturing inference was far from user-friendly, it is good that Wigmore created his leaden method of charting evidence and inference. For example, his effort helped to get some legal professionals to start thinking about inference networks and it eventually helped to get probabilists to think more carefully about cascaded probabilistic inference and about the peculiar and interesting properties of complex evidential inference.

Once Again: What Is "Visualization" of Evidence and Inference?

Oliver Sacks, A Neurologist's Notebook: To See and Not See, THE NEW YORKER (May 10, 1993, posted online June 12, 2006):

The seventeenth-century philosopher William Molyneux, whose wife was blind, posed the following question to his friend John Locke: “Suppose a man born blind, and now adult, and taught by his touch to distinguish between a cube and a sphere [be] made to see: [could he now] by his sight, before he touched them . . . distinguish and tell which was the globe and which the cube?” Locke considers this in his “Essay Concerning Human Understanding” (1690) and decides that the answer is no. In 1709, examining the problem in more detail, and the whole relation between sight and touch, in “A New Theory of Vision,” George Berkeley concluded that there was no necessary connection between a tactile world and a sight world—that a connection between them could be established only on the basis of experience.

Barely twenty years elapsed before these considerations were put to the test—when, in 1728, an English surgeon named William Cheselden removed the cataracts from the eyes of a thirteen-year-old boy born blind. Despite his high intelligence and youth, the boy encountered profound difficulties with the simplest visual perceptions. He had no idea of distance. He had no idea of space or size. And he was bizarrely confused by drawings and paintings, by the idea of a two-dimensional representation of reality. As Berkeley had anticipated, he was able to make sense of what he saw only gradually, and insofar as he was able to connect visual experiences with tactile ones. It had been similar with many other patients in the two hundred and fifty years since Cheselden’s operation: nearly all had experienced the most profound, Lockean confusion and bewilderment.

And yet, I was informed, as soon as the bandages were removed from Virgil’s eye he saw his doctor and his fiancée, and laughed. Doubtless he saw something—but what did he see? What did “seeing” for this previously not-seeing man mean? What sort of world had he been launched into?

This tale has implications for the conference on Graphic and Visual Representations of Evidence and Inference in Legal Settings.

Deporting the Evidence

John P. Martin, Judge wants 11 deported Hundurans back in N.J., The Star-Ledger p. 1 (June 14, 2006):

A federal [trial] judge [Joel Pisano] took the unusual step of ordering the government to locate 11 Hundurans it deported last year and arrange for their return, ruling they should not have been expelled because they might vindicate a Hudson County bar owner accused of running a human trafficking ring. ...

...

"There is no question that had the agents focused on their obligations to preserve evidence in the case, it might have been advisable for them to invoke the material witness statute, and we wouldn't be in the situation we are today," Pisano said.

...

The ... detainees from the raids -- eight women and three men -- ... told agents Medrano [the accused] did not arrange their smuggling and never pressured anyone, and that the women voluntarily lived and worked together.

Those witnesses were deported.

Quirky Behavior Frustrates Rational Inference

Steve Coll, Citizens, The New Yorker p. 27 (June 5, 2006):

On that summer morning [of June 7, 2005], three young Muslim men blew themselves up on Underground cars, and a fourth immolated himself on a double-decker bus....

The four men depicted in the report are in some respects unfathomable. When Shezad Tanweer, a talented athlete who was twenty-two years old, bought snacks at a highway convenience store four hours before his death, he haggled over the change. ...

What Is "Visualization" of Evidence and Inference?

Premise: Visualization can facilitate the comprehension, memorization, and analysis of evidence. See Conference Announcement: Graphic and Visual Representations of Evidence and Inference in Legal Settings. But what is "visualization"? (Can blind people visualize evidence?) And when and why do visual representations of evidence and inference impede rather than facilitate understanding? Do successful visual (or graphic) representations of complex problems simplify them? How do they do that? Can representations built out of simple elements become complex? (Yes.) Unintelligible? (Yes.)

For interesting notes about these and other questions -- including the relationship between (i) "artistic" representations and (ii) representations using "logical" elements such as arcs and nodes -- see Priit Parmakson, When Does Non-Visual Become Visual?.

Buy This Gem

Be sure to place an advance order for your copy of the following sparkler: the second edition of The Structure of Legal Argument and Proof: Cases, Materials, and Analyses by J.S. Covington, Jr. You will find no better introduction to legal reasoning and other kinds of uncertain reasoning in law. This little book has much to offer old war horses as well as young stallions and fillies.

The book will be available in August from William S. Hein & Co., Inc., Buffalo, New York.

Poor or non-existent marketing by the publisher of the first edition doomed the author's first effort to obscurity. You should help see to it that such an injustice does not happen again. If it does, you will be the poorer for it.

Covington is Professor of Law Emeritus at the University of Houston.

What Is Information?

See Priit Parmakson's authoritative answer!

Character & Criminality: Some Crime Really Runs in Families

Several years ago an interesting article appeared in the NYTimes but, as far as I can tell, the article got little attention in the Evidence community. The article was about Rooster Bogle and his family. It was written by Fox Butterfield and appeared in the New York Times on August 21, 2002. A fellow blogger, Dr. Jim Eckman, has this interesting summary of the story of Rooster Bogle and his family:

THE LEGACY OF A FATHER

The Old Testament talks about the sins of the fathers being visited on the four or five generations that follow. This has always been a difficult concept to understand. At the very least, it gives focus to the truth that fathers have an enormous influence on their children. How a father lives will influence his children, who will then influence their children, etc. The case of Rooster Bogle of Salem, Oregon illustrates this truth.

Dale Vincent Bogle, known as Rooster Bogle, taught his children well. He was in and out of prisons all of his life. He regularly beat his wife and taught his children to steal.

By the time his sons were 10, they were breaking into liquor stores for their dad or stealing tractor-trailer trucks, hundreds of them. His girls turned to petty crimes to support their drug addiction. In time, everybody in the family was in jail. By official count, 28 in the Bogle clan have been arrested and convicted, including several of Rooster’s grandchildren. One of Rooster’s children stated, “Rooster raised us to be outlaws. There is a domino effect in a family like ours. What you’re raised with, you grow to become. You don’t escape.”

Prison officials are now concluding that the Bogle clan is an extreme example of the reality that crime runs in families. Justice department figures demonstrate that 47% of inmates in state prisons have a parent or other close relative who has also been incarcerated. Similarly, the link between the generations is so powerful that half of all juveniles in custody have a father, mother or other close relative who has been in jail or prison. Incredibly, until recently, few states have paid attention to this obvious cycle of crime. The cost to society is enormous. The cost, for example, of incarcerating just 5 of the 28 Bogle clan is $3 million, not counting the cost of their trials.

What social science is now showing us is that the fundamental cause of crime is not primarily poverty, abuse, neglect or drug use, all of which do contribute to criminal behavior. Perhaps the critical reason for criminal behavior is that children learn to imitate their parents. Instead of learning appropriate behavior, they learn to steal, cheat, lie and manipulate. The point is that parents play a tremendous role in shaping the behavior of their children. What they do is often modeled by their children. That is why Moses argued in Deuteronomy 6 that parents are to formally teach the truth about God and to model that same truth through the daily routines of life. There is therefore both a formal and an informal means for communicating truth. If parents like Rooster Bogle formally and informally teach rebellion, dishonesty and violence, the children will grow up doing the same thing. What social science is now telling us is what the Bible has been saying for thousands of years.

Worrisome Details in Case Involving Fantastic Claims

Until today I had not heard about the trial (and, now, conviction) of the Toledo priest charged with a satanic killing of a nun -- 26 years ago. See, e.g., "Priest convicted of killing nun," UPI Online (Toledo, Ohio; May 11, 2006).

The victim, Margaret Ann, a nun, was murdered in a hospital chapel. "She was murdered on Holy Saturday, the day before Easter, as she prepared the chapel for holiday services. The killer attacked her in the chapel sacristy where the Eucharist was held, strangling her and then stabbing her 31 times, including nine times through an altar cloth. Those wounds [the prosecutor argued] formed the shape of an inverted cross." Harriet Ryan, "Catholic priest convicted of nun's 1980 murder," courttvnews [online] (May 11, 2006). The defendant, a priest, was the chaplain at the chapel.

The jury convicted the defendant, Gerald Robinson, of murder. The jury was apparently convinced that Robinson used a letter opener that he owned to kill Harriet Ryan. However, there are some troubling details about case against Robinson:

1. The reopening of the case against the priest was precipitated by an anonymous person who accused various priests in the Toledo area, including the defendant, of having molested that person years earlier. However, no action has been taken on that complaint.

2. A local member of SNAP -- Survivors Network for Those Abused by Priests --, it appears, played a large role in getting the prosecutor to reopen the case and to investigate the possibility that Robinson was the culprit. SNAP has rarely if ever encountered an abuse charge against a priest that it disbelieves. Why was this member of SNAP interested in a murder charge against Robinson? Did this member of SNAP have a connection to the anonymous sex abuse complainant or to some other alleged victim or victims of Robinson's sexual molestation and, if so, was this member of SNAP trying to use the murder charge as leverage for possible civil actions against Robinson? What precisely was this SNAP member's role in the murder case?

3. Evidence purporting to show some sort of satanic practices by the defendant Robinson was submitted at the trial. But in his closing argument the prosecutor said "that the murder was not a satanic or ritualized killing" but that, nevertheless, "Robinson performed a 'bastardized version of last rites' on Sr. Margaret Ann.'" Id. I'm not sure there is much of a difference between these two types of alleged religious misconduct. But if there is a difference, why did the prosecutor apparently try to run away from the charge of satanic practices? And if satanic practices were not part of the prosecutor's theory of the case, why did the prosecutor offer evidence of satanic practices at trial?

4. "During the three-week trial, an expert in the occult testified that only a member of the clergy would have the specialized knowledge of Catholic rituals evidenced in the killing." Id. Are you as suspicious as I am about thus supposed expert in the occult? Is it your guess that this "expert" spouted hokum? And why is it that the prosecutor used this "expert in the occult" to testify to Catholic religious rituals instead of an expert in Catholic religious rituals, a person such as a Catholic bishop or a member of the faculty at a Catholic seminary?

5. The evidence that the killing was done in conformity with some distorted religious ritual is highly suspicious. For example, the prosecutor argued that the 31 wounds on the nun's formed an upside down cross. Was that impression -- the impression that the wounds formed a cross -- something akin to a Rorschach test? (Do you recall the highway overpass on which, it appeared -- to some believers -- that an image of the Virgin Mary appeared, at least at times? [Some people, try as they might, could not discern the image of a woman on the overpass. Other people thought they saw streaks created by rain flowing down over grainy concrete.] In these situation much depends on the imagination of the beholder.) And if the killer did make a cross, he must have been fairly clever and persistent and strong and fearless to take the time to kill the victim by precisely landing 31 stab stabs in the pattern of a cross, don't you think?

6. And what evidence was there that Robinson rather than someone else was the guy who stabbed Margaret Ann? Well, it wasn't DNA: DNA tests on Margaret Ann's clothing revealed the DNA of some third person. This, of course, doesn't prove Robinson's innocence. It is entirely possible that after Margaret Ann was killed but before her body was removed, some intruder, a third person, molested the dead body of Margaret Ann and deposited his DNA on her underpants.

7. Well, if DNA didn't identify Robinson, what did? The answer, some news reports tell us, is some creative forensic science, some of it provided by the estimable Dr. Henry Lee. But was this forensic science perhaps too creative for its own good? Consider item 1: Blood spatter evidence -- the pattern of blood spatter from Mary Ann's wounds -- was used, we are told, to help establish that the weapon used to kill Margaret Ann was a letter opener rather than a weapon such as scissors or an ordinary knife. Proposition: The pattern of spatter from a wound can discriminate between letter openers and scissors or ordinary knives. Do you believe that? Consider item 2: There was, we are told, a faint blood stain on cloth that was draped over the altar, an altar that was close to the location of the murder. A part of this faint blood stain -- which would have to have been 20 years old and might have been dry-cleaned a few times -- "bore a striking resemblance to a medallion on the priest's letter opener." Id. What do we have here -- another Rorschach test?

Based on the little I know, this is a very troubling case.

John Silber Reaps the Rewards of Scholarship

"John Silber, who was one of the most handsomely paid university presidents in the nation, has received about $7 million in deferred compensation and other benefits from Boston University since he stepped down as chancellor in 2003." Marcella Bombardieri, Rich rewards outlast Silber's reign, Boston Globe Online (May 10, 2006)

Conference Announcement: Graphic and Visual Representations of Evidence and Inference in Legal Settings

Cardozo School of Law will host a conference on

Graphic and Visual Representations of Evidence and Inference in Legal Settings

Dates: January 28-29, 2007.

Venue: Cardozo Law School, Yeshiva University, 55 Fifth Avenue (5th Ave. & 12th St.), New York (Manhattan), New York
 

Description of conference:

One of the largest problems faced by crime investigators, litigators, paralegals, judges, triers of fact, and other actors interested in disputes about factual questions in legal settings is the sheer mass of available evidence in many cases. It is often difficult to remember, retrieve, and interpret evidential information, so that patterns, relations, and inconsistencies often go unnoticed. Tools that support the storage, retrieval, and interpretation of masses of evidence could therefore be of great use.

Psychological studies have shown that people's ability to remember, retrieve, and interpret information is greatly enhanced if they organize information in a way that is meaningful to them. Scholars of the law of evidence have long suggested that graphical representations of evidential arguments and inferences could support humans in making sense of masses of evidence. As early as 1913, John Henry Wigmore claimed that his charting method promoted rational thinking about legal evidence. While Wigmore had only pencil and paper to draw his cumbersome graphs, today the computer could make his ideas practically feasible for everyone. Software could be used to draw graphical representations of arguments and inferences about masses of evidence. Moreover, such software could be combined with existing database, document management, and search technology so that collections of evidentiary documents could be stored and retrieved in terms of the user's thinking about a case. Such software would also facilitate transfer of case files to others by increasing the transparency of the files, so that subsequent investigators, prosecutors, and fact finders could gain a quicker and better understanding of the case.

Such software is currently being investigated for use in various domains. Argument visualization software has been designed, for instance, to support the teaching of scientific reasoning or critical thinking skills (Belvedere, Reasonable, Araucaria, Convince Me), to support intelligence analysis, and to facilitate individual or collaborative problem solving (Questmap, SEAS). Moreover, current artificial intelligence research offers precise accounts of evidential reasoning and thus provides a clear semantics of graphical notations as well as ways to compute with them.

In the legal domain, fact investigators and litigators increasingly use software that supports the storage and retrieval of information in terms of conceptual and relational networks (Holmes 2, Analyst's Notebook). However, as yet, such tools offer little or no support for the structuring of human thinking about thus stored information. This software allows users to store evidentiary data in terms of events, objects, actors, and the relations among these things, but it does not allow users to represent how such data support or undermine hypotheses about what has happened.

This interdisciplinary conference brings together scholars and practitioners from such fields as law, philosophy, computer science, artificial intelligence, cognitive psychology, and linguistics who are interested in the graphic visualization of legal evidentiary inference and its support by software tools. The following issues will be addressed:

Current and new graphical means to visualize factual inference and proof

Semantics of such graphical notations: what are the underlying theories of evidential reasoning? (jurisprudential, philosophical, psychological, rhetorical, logical, or mathematical)

Which software tools for graphical representations of factual inference and proof are currently available or being developed?

What are the potential contexts for the use of such software and what are the potential benefits of such software? (crime investigation, litigation, trial, law teaching, etc.)

To what extent can graphic representation of evidential arguments support the automatic evaluation of hypotheses?

How can current insights about human-computer interaction be exploited to increase the usefulness of such software? (e.g., how can visual complexity created by the size of the available mass of evidence be managed?)

Are empirical results available on usability and effects of use of charting methods (whether manual or digital) in legal or other contexts?

What are the practical constraints faced by crime investigators or legal professionals who want to use such software?

Conference officials:
Peter Tillers (Cardozo Law School): Conference chair e-mail address: peter@tillers.net
Henry Prakken (Universiteit Utrecht / University of Groningen): Program chair e-mail address: henry@cs.uu.nl
Thomas D. Cobb (University of Washington, Seattle): Deputy program chair e-mail address: tomcobb@u.washington.edu

Panelists:

Thomas D. Cobb (University of Washington School of Law)

Philip Dawid (U. College London)

Neal Feigenson (Quinnipiac University School of Law)

Branden Fitelson (U. of California at Berkeley)

Tim van Gelder (U. of Melbourne)

Thomas F. Gordon (FOKUS [Frauenhofer Institut fuer Offene Kommunikationssysteme]); web log

John Josephson (Ohio State University)

Marc Lauritsen (CEO, Capstone Practice Systems)

Richard Lempert (U. of Michigan Law School & National Science Foundation)

Ronald P. Loui (Washington University, St. Louis; Computer Science)

John D. Lowrance (Program Director, Artificial Intelligence Center, SRI International)

Jennifer Mnookin (UCLA School of Law)

Dale Nance (Case School of Law)

Andrew Palmer (U. of Melbourne, Law)(unconfirmed)

Priit Parmakson (Tallinn University, Tallinn, Estonia)

John L. Pollock (U. of Arizona)

Henry Prakken (Utrecht University & U. Groningen)

Chris Reed (U. of Dundee)

Burkhard Schafer (U. of Edinburgh, Law School)

David Schum (George Mason U.)

Richard Sherwin (New York Law School)

Samuel Solomon (CEO of DOAR, Inc.)

Peter Tillers (Cardozo Law School, Yeshiva University)

William Twining (U. College London, Law Faculty & U. of Miami, School of Law)

Bart Verheij (U. Groningen, Dept. of Artificial Intelligence; ALICE Institute)

Vern Walker (Hofstra U. School of Law)

Douglas Walton (U. of Winnipeg)

The public is invited. There is no registration fee. (However, there will be a modest charge for any lunches or dinners that attendees elect to take at the site of the conference, at Cardozo Law School.)

Program details will be provided later.

Intellectual History, Probability, and the Law of Evidence

Here is a readable copy of my essay Intellectual History, Probability, and the Law of Evidence.

Intellectual History, Probability, and the Law of Evidence

The review essay Intellectual History, Probability, and the Law of Evidence is now available on SSRN.

Judicial Prudence: Does the Supreme Court Always Fail Us Precisely When We Need It the Most?

The Supreme Court of the United States has chosen not to review the Padilla case, the case in which a U.S. citizen was seized in Chicago and held for three years as an "enemy combatant" -- all without a showing of probable cause before a judicial officer and without any other form of judicial review of the merits of the seizure and detention.Bruce Ackerman has it right: this sort of "judicial restraint" leaves open the possibility that this President or another will unilaterally seize and imprison (and execute?) greater numbers of U.S. citizens in the name of the "war" on terror.

The Supreme Court failed us during the Vietnam War: it successfully avoided having to decide the illegality or illegality of that war. Today's edition of the Supreme Court may fail us again: this Court may successfully avoid deciding whether a President can or cannot unilaterally seize and imprison a U.S. citizen. This sort of "restraint" is contemptible judicial behavior; it is a mockery of the ideal of the rule of law; and it is a crude violation of the fundamental principle that the life and liberty of citizens may not be taken away by the whim or the pleasure of the executive.

Of course, it is possible that the Supreme Court secretly harbors the intention of someday rendering an opinion about the legality of the government's treatment of Padilla. If so, I say: What harm can a few more years or decades do? After all, unlike Milosevic, Padilla probably won't die of a heart attack during his first decade of imprisonment.

The Evidence Eliminator

A sure sign of a guilty conscience? See Erica Taub, Deleting May Be Easy, but Your Hard Drive Still Tells All, NYTimes Online (April 5, 2006):

Various software programs can be used to overwrite data. One popular product, Evidence Eliminator, draws a red flag in legal circles.

"I'm still puzzled why someone would use a product of that name," said Michael A. Gold, a senior partner with the law firm Jeffer, Mangels, Butler & Marmaro in Century City, Calif., and a chairman of the firm's Discovery Technology Group.