Ho Hock Lai's New Book

A new book on evidence and the law of evidence landed on my desk yesterday (courtesy of amazon.com). A scan of the book's contents suggests the book is worth a very careful read. See Ho Hock Lai, A Philosophy of Evidence Law (Oxford 2008). See the blurb (and more) here.

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Visual Evidence

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consulting on investigation strategy and the law of evidence

The Story of a Signature Crime

I am usually wary of claims that a crime committed with a particular m.o. is a "signature crime." Such claims usually strike me as urban myths or as the products of self-aggrandizing "experts." However, when the Litvinenko business first broke, it struck me (see, e.g., here) that the poisoning and eventual killing of Litvinenko with a highly toxic and barely detectable poison, Polonium 210, was indeed the signature -- the likely hallmark -- of a crime committed by the present-day successors to the KGB. Well, it turns out that my suspicions (and those of many others) were probably correct. See this NYTimes book review by Simon Sebag Montefiore. (How can one doubt the credibility of a person with such a magnificent name?) But, dyed in the wool academic that I am, the interesting part of this story for me is why my notions about how the KGB committed crimes turned out to be correct. Part of the explanation is that the newspaper stories that reported on the Litvinenko business also reported other cases in which the KGB and FSB had supposedly used a similar m.o. But even before I read those relatively recent newspaper accounts I had the impression that the Russian secret police were in the habit of doing their dirty work with furtively-administered poisons. So I was the captive of an urban myth. But it was a myth that turned out to be very probably true. Isn't that interesting?

N.B. Didn't Ian Fleming use furtive poisoning as one of the tactics of his SMERSH in at least one of his James Bond novels?

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Evidence Codification and Non-Codification in Connecticut

Evidence codification has an unusual status in Connecticut. In a case said [in Westlaw's text] to be decided on August 19, 2008 -- in State v. DeJesus --- A.2d ----, 2008 WL 3290164 (2008) -- the Supreme Court of Connecticut writes [will write?]:

"With respect to the defendant's appeal, we conclude that, despite the adoption of the code [of evidence] by the judges of the Superior Court, the appellate courts of this state retain the authority to develop and change the rules of evidence through case-by-case common-law adjudication."

&&&

"We agree with the defendant that the adoption of the code did not divest this court of its inherent common-law adjudicative authority to develop and change the rules of evidence on a case-by-case basis. We further agree with the defendant that, in light of our recent clarification of the nature and scope of the common scheme or plan exception in State v. Randolph, supra, 284 Conn. at 328, evidence of uncharged misconduct admitted under the liberal standard ordinarily does not reflect the existence of a genuine plan in the defendant's mind. Nonetheless, given the highly secretive, aberrant and frequently compulsive nature of sex crimes, we conclude that the admission of uncharged misconduct evidence under the liberal standard is warranted and, therefore, we adopt this standard as a limited exception to § 4-5(a) of the code, which prohibits the admission of "[e]vidence of other crimes, wrongs or acts of a person ... to prove the bad character or criminal tendencies of that person."

&&&

"The foregoing history [of the adoption of the code of evidence by the judges of Connecticut's Superior Courts] does not support the conclusion, however, that the code was intended to divest this court of its inherent authority to change and develop the law of evidence through case-by-case common-law adjudication."

&&&

"There was no discussion of the effect, if any, that adoption of the code would have upon this court's common-law adjudicative authority to change and develop evidentiary law on a case-by-case basis, an inherent authority that it has enjoyed since the seventeenth century.

...

"In the absence of any discussion at the meeting of the judges of the Superior Court concerning the impact that adoption of the code would have on the future development of evidentiary law, it is illogical to conclude that, by adopting the code for the purposes of ease and convenience, the judges intended to divest this court of its long-standing inherent common-law adjudicative authority over evidentiary law." &&&

In a footnote the Supreme Court dealt with the question whether Connecticut's code of evidence prevents Connecticut's trial judges from changing rules of evidence in case-by-case adjudication:

"FN24. Because the code merely restated the prevailing common-law evidentiary rules, which the judges of the Superior Court already were bound to apply, and was intended to expedite and streamline judicial proceedings by serving as a shorthand reference to those rules, the code clearly was intended to be binding authority in the Superior Court. Section 1-1(b) of the code specifically states that '[t]he [c]ode applies to all proceedings in the superior court in which facts in dispute are found, except as otherwise provided by the [c]ode, the General Statutes or the Practice Book.' The code therefore differs fundamentally from a treatise or handbook, which has persuasive value only. The question presented in this appeal, however, is not whether the code is binding authority in the Superior Court, but, rather, whether it is binding authority in this court such that we are precluded from reconsidering our own prior precedent codified in the code. For the reasons explained in the body of this opinion, we conclude that the judges of the Superior Court did not intend their adoption of the code to divest this court of its inherent authority to change and develop the law of evidence via case-by-case common-law adjudication."

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Questions about the Bruce Ivins Anthrax Case

Dr. Gerry Andrews, a professor of microbiology, raises some interesting questions about the evidence against his former colleague, Dr. Bruce Ivins, the suspected "anthrax killer" who recently committed suicide. See Gerry Andrews, "Open Questions on a Closed Case" (Op-Ed), NYTimes Online (August 9, 2008). Of particular interest to me are several questions that Dr. Andrews raises about the scientific evidence in the case.

The US attorney supervising the investigation and other government agents spoke about the "match" between the anthrax that killed the five victims and the anthrax that had been in Ivins' possession. One government agent -- I believe it was the the US attorney who held the news conference about the impending closing of the case -- even said that the government had located the "murder weapon," the flask containing the lethal anthrax that, it was said, killed the five victims.

Although I have no reason to doubt that the federal government has (finally) fingered the right (dead) man, one must always be suspicious when there is talk about a "match." The word "match" implies evidence that uniquely identifies the thing (or, worse yet) person who left some trace at the crime scene. Dr. Andrews points out several circumstances and considerations that raise questions about the government hypothesis that the scientific evidence in the case points uniquely to Bruce Ivins as the culprit. He makes his point this way:

As a scientist, ... I feel compelled to comment on what should have been the Federal Bureau of Investigation’s strongest link between Dr. Ivins and the terrible crime — deadly anthrax spores. In the summary of its findings, the F.B.I. states that investigators used four different genetic techniques to match the anthrax-laced attack letters to a unique DNA footprint of a single anthrax spore preparation in one flask that had been in Dr. Ivins’s custody.

Sounds reasonable. Yet the investigators present no details on the scientific methods they used to make this match or how they employed them. That’s a problem, because without such detail it is hard to tell if they specifically ruled out a similar match between the anthrax in the letters and anthrax preparations with the same DNA footprint kept at a number of other labs around the country.

For good measure, Dr. Andrews points out how "non-scientific" questions about the custody of the "murder weapon" raise additional doubts about the strength of the scientific evidence against Ivins. Andrews begins by noting that "Dr. Ivins was an investigator in the case before he was a suspect. After the anthrax attack, Dr. Ivins himself worked directly with the evidence. The F.B.I. asked Dr. Ivins to help them with the forensics in the case by analyzing the contents of suspicious letters. And he did so for years, until the authorities began to suspect that the anthrax spores used in the mailings might have originated from his lab." Dr. Andrews argues that the lab at which Ivins worked did not have the capacity to produce the "refined weapons-grade anthrax" that had been used to kill the five victims. Dr. Andrews then adds:

But even leaving that aside, there are important questions left unanswered. First, isn’t it possible that the manipulation of the contents of the anthrax letters in Dr. Ivins’s laboratory might have contaminated the work environment enough to potentially jeopardize the integrity of subsequent samples taken from the lab? Might that perhaps explain why the anthrax powder used in the attacks was later found to have the same DNA footprint as the other anthrax preparations in Dr. Ivins’s lab? At the very least, wouldn’t this call his guilt into doubt?

These are the sorts of questions -- e.g., the degree to which the DNA of the physical sample found at the scene of the crime together with the DNA of a specimen found elsewhere is a distinctive identifier of the physical source of the crime scene specimen, the possibility of contamination of the physical evidence found either at the scene of the crime or elsewhere, the availability of the possible instrumentality of the crime (in this case the "murder weapon") to persons other than a specific suspect, -- these are the sorts of questions that have emerged in innumerable "humdrum" murder and rape cases. Despite the new scientific techniques that are said to have been developed during the investigation of the anthrax case, these sorts of issues are pertinent in the Ivins anthrax case as well in humdrum murder and rape cases. We should avoid being unduly dazzled by novel scientific methods or technology. We must always keep in mind what sorts of questions a powerful scientific method can answer and what sorts of questions it cannot answer.

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Truly Demonstrative Evidence

Martha Neil, "Gov’t. Puts Car in Court in Murder Trial," ABA Journal Online (August 7, 2008):

In an unusual effort to prove a murder case, prosecutors in Washington state have persuaded a judge to let them bring a car into the courtroom. The 2000 Ford Mustang in which victim Ronald Whitehead, 61, allegedly was shot to death "was hauled into the King County courtroom of Judge Steven Gonzalez in three bundles Wednesday night and assembled in time for when defendant Jon Ogden, the dead man's 20-year-old stepson, walked into trial Thursday morning," reports the Seattle Times. The government wants to show the jury how they believe Whitehead was shot four times by someone hiding in the vehicle.

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How Do Fingerprints Point?

Kenneth Chang, "Fingerprint Test Shows Not Only Who but What," NYTimes (August 7, 2008)

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Peter Tillers on Evidence: legal consulting on evidence, investigation strategy, and evidence planning

When Will They Ever Learn -- about Circumstantial Evidence etc.

The byline in today's NYTimes reads "Anthrax Evidence Is Called Circumstantial." (The story is by Scott Shane.) The implication of the byline is that the evidence against the suspected (and now-dead) malefactor is therefore weak. The NYTimes should know better. There is weak circumstantial evidence. But there is also strong circumstantial evidence. The same holds true for "direct" evidence given by a putative eyewitness. The same holds true for scientific evidence. The same holds true for confessions.

"When will they ever learn?" Folk Song, the version by Pete Seeger and The Weavers still being the best known

N.B. The above post does not reflect -- and it is not meant to reflect -- my personal opinion (if I have one) about the guilt or innocence of Bruce E. Ivins.

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A Merger of Subjective and Objective Factors in Factual Inference: Understanding a Bee's Vision

It is possible to make inferences about how bees are likely to view their world by carefully conducting experiments and inspecting the physiological and psychophysics data. We know that bees can see ultraviolet wavelengths of light. Many flowers have evolved flower patterns that suit the visual capabilities of bees, for example, some flowers have patterns that can only be seen with ultraviolet sensitive vision.

"Interview [of Dr. Adrian Dwyer]: Through the eyes of a bee," Alexander von Humboldt-Stiftung Newsletter 2/2008

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Aleksandr Solzhenitsyn, Dead

See Aleksandr Solzhenitsyn Is Dead at 89," NY Times (Aug. 6, 2008).

This sad news has something to do with evidence. Before Solzhenitsyn's appearance many people in the West -- I am old enough to remember this -- were dismissive of claims that Stalinism led to the deaths of millions of people. But the evidence of death on such a massive scale was publicly available long before Solzhenitsyn burst on the international scene.

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Narrative and Factual Inference

In recent years it has become fashionable -- almost de rigeur -- to talk about "narrative" when talking about factual inference in legal settings. This habit of mind has even percolated into the halls of the Supreme Court. (I assume that the Supreme Court building has halls.) See Old Chief v. United States, 519 U.S. 172 (1997) (Souter, J., for the Court). This shift in interest is, on the whole, a good thing, I think. But it is also worth asking why it this development is a good thing. Yes, (some) stories have rhetorical and persuasive force. Yes, (many) stories serve as powerful mnemonic devices. But if the question is whether we should be interested in stories if our ultimate interest is accurate (as well as entertaining or advantageous etc.) factual inference in settings such as trials, the answer is less obvious. We must begin, I think, by distinguishing between two types of "stories." One type of story is a scenario, which, in the parlance of social scientists and other such folks, is a causal hypothesis-a hypothesis about the connections between specified events over time. Another type of story is broader: this broader type of story is an account that has, not only causal explanatory force, but also ingredients such as dramatic appeal, emotional punch, human actors, and the like. A strong case can be made that either all factual issues or almost all factual issues are effectively scenarios -- this on the ground that all, almost all, or many factual hypotheses in legal settings are effectively hypotheses about some possible sequence of connected events in time. However, it may be less clear that epistemic considerations--i.e., truthseeking considerations--make stories in the sense of narrative necessary. But perhaps "necessity" is too strong a requirement here. Perhaps it is enough if we show (if we can) that stories with emotional wallop etc., generally promote [under some circumstances] the search for the truth, generally advance [under some circumstances] accurate fact finding. (This thesis is a variant of the sensible notion that practical epistemic maxims should take the human animal as we find him [or her].)

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The Indeterminacy and Elasticity of Legal Language

I have come to detest the indeterminate word "indeterminate." But for present purposes no other word seems to do the trick I want to do.

For decades American legal theorists have talked about the indeterminacy of legal language. Probability theorists prefer to talk about the uncertainty of legal terms. But in a recent message to a discussion list Lotfi Zadeh once again noted that it is important to distinguish between uncertainty about the meaning of words (language) and the elasticity, or plasticity, of words (language). The distinction that Zadeh makes between uncertain meaning and elastic language is, think, very important for an understanding of the nature of legal reasoning and interpretation. Although elastic words (I would say) produce uncertainty, it is important to remember that words themselves are elastic, i.e., that words exhibit elastic "behavior." Note: it is possible, in principle, to know fairly precisely how elastic words behave under various circumstances. When we have such knowledge about a word, we are not really very uncertain about the meaning of the word but we still can say and must say that the meaning of the word in question varies, or stretches, depending (for example)on the context. (In such a situation there is only a very loose -- and possibly misleading -- sense in which it can be said that the meaning of the word is indeterminate.)

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Potemkin Trials?

[B]ehind the judicial routine at the first trial for a Guantánamo detainee lies a parallel universe of law and lawyers. Secret evidence held in red folders is not revealed in open court. The gallery is mostly empty, because there are no members of the public. In what would be the jury box, every occupant wears a military uniform.

William Glaberson, "A U.S. Trial by Its Looks, but Only So," NYTimes (July 29, 2008)

Question: If some detainees are acquitted, will this prove that the Guantanamo somewhat-trial-like proceedings are just?

Answer: It may just prove that some military jurors are good-hearted -- or, alternatively, that some of the military actors are concerned about public relations or other such matters.

A system of adjudication can be distorted if it produces an unacceptable number false negatives as well as if it produces too many false positives. One thing seems reasonably sure about the proceedings at Guantánamo: much of the important evidence will not be subjected to adversarial testing. There is good reason to wonder if it will be subjected to an adequate degree and quality of nonadversarial evaluation.

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As much as he is hated by some people, George W. Bush deserves credit ...

...for proposing and supporting expenditure of large sums of money to combat AIDS/HIV, malaria, and other diseases in Africa and in other parts of the world. See, e.g., the AP story "Bush eager to sign bill tripling AIDS assistance". Such health programs were not on the American agenda until Bush proposed them in his State of the Union address in 2003.

How much of a difference have such aid programs made? Consider just one piece of data from the story cited above:

The current $15 billion act, which expires at the end of September, has helped bring lifesaving anti-retroviral drugs to some 1.7 million people and supported care for nearly 7 million.

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Trial by Ordeal Lives -- and Apparently Works

See the following YouTube clip of a National Geographic program.

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Vagueness and Fuzziness

Probability theorists tend to think that everything that fuzzy logic can do it (probability theory) can do better. But probability theory is a procedure for dealing with uncertainty. Perhaps some things are vague -- legal language, for example -- without being uncertain. So perhaps the question of the legitimacy of fuzzy logic boils down to the question of the existence or non-existence of vague objects that are not necessarily uncertain.

But perhaps fuzzy logic also legitimately applies to reasoning about uncertain propositions -- because perhaps some or much reasoning about uncertain propositions involves vague objects (concepts). Be that as it may, perhaps it is true that fuzzy logic will gain a greater measure of respectability among standard probability theorists if the distinction between uncertainty and vagueness is solidified.

N.B. It may be true that vague concepts -- e.g., vague legal concepts -- work in ways that are uncertain to some degree. But does it follow that such (vague) legal concepts are "uncertain" to some degree? This is perhaps a nice test question for logicians and legal theorists.

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Henceforth Criminal Defendants in Japan Will Be Allowed to Wear (Clip-On) Ties and (Fake) Shoes at Their Trials

Japan Times Online reports that criminal defendants will now be allowed to wear clip-on neckties and "and open-back slippers that look like leather shoes." These changes were precipitated by the advent of a new trial system in which lay judges as well as professional judges will preside in trials of serious criminal charges.

Thought is also being given to removing shackles and handcuffs from the accused before the accused enters the courtroom. In addition, under certain circumstances, the accused will be allowed to sit next to counsel, and not, as at present, between two police officers, with defense counsel sitting behind this trio. However, one of the police officers will plant a leg between the feet of the accused and defense counsel. In Japan justice may not be swift but it does have long and sturdy legs.

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Fuzzy Logic -- Once Again

I keep returning to fuzzy logic. I do so plainly in part because I think fuzzy logic is an important key to human understanding of the world. But I also continue to revisit fuzzy logic because I firmly sense that the proper use of fuzzy logic in law remains to be worked out. (Indeed, I think this work has barely begun.)

When thinking about the implications of fuzzy logic for legal theory -- and for law in action --, I find it useful to consider, from time to time, the reception that has been given to fuzzy logic and how it has been used thus far. The following summary by Phil Serchuk in his 2005 honors thesis is quite useful in this regard:

Fuzzy logic is unique because it is a source of controversy not only in philosophy but in computer science as well, where it has been used in many successful applications. Yet despite its successes there are many compelling criticisms that fuzzy logic has yet to overcome. Both proponents and opponents of fuzzy logic tend to take extremist positions, a situation that makes fair accounts and criticisms of fuzzy logic difficult to come by. Engineers and computer scientists who use fuzzy logic vigorously defend their work and charge that their critics are conservatives who cannot see the fuzziness inherent to a given domain, a strong charge given the longstanding relationships many of the sciences have had with classical logic. Critics of fuzzy logic tend to take extreme positions as well: fuzzy logic has been described by Berkeley mathematician William Kahan as ‘the cocaine of science’ and as ‘pornography’ by Carnegie Mellon logician Dana Scott [Haa96, p. 230].

While the merits of infinitely-valued logics were being debated by philosophers, computer scientists had began building actual systems that used fuzzy logic. Early fuzzy expert systems and controllers were developed in the 1970’s and fuzzy logic’s ability to use linguistic rules were being explored and put into practice: steam generators and cement kilns were among the earliest applications of fuzzy control. Decision support systems were also being developed and one of the first commercial decision support systems to use fuzzy logic was developed by the INFORM Corporation in 1986 [vA95, p. 279]. Over the 1970’s and 1980’s Japanese researchers had begun to embrace fuzzy logic and by 1989 the Japanese government partnered with 49 companies to found the Laboratory for International Fuzzy Engineering Research (LIFE) [Ter95, p. 1]. LIFE’s six-year mandate was to develop new fuzzy technologies and applications in ‘human-friendly’ fields like robotics and expert systems. By 1990 fuzzy rice cookers, vacuum cleaners, refrigerators, and other electronics were yielding large profits for Japanese companies [LY99, p. 7]. The last part of the 1990’s saw many more concrete applications of fuzzy logic, particularly in computer systems designed to help humans make difficult and complex decisions. In addition to traditional applications in business and engineering, these applications were developed for many disciplines across the natural and social sciences as researchers in these fields slowly began to see the phenomenon of vagueness as being inherent to certain aspects of their work.

Like many other observers who are sympathetic to fuzzy logic, Serchuk stresses that it is important to distinguish uncertainty and vagueness.

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Douglas Walton on Character Evidence

Douglas Walton's new book -- Character Evidence: An Abductive Theory (Springer 2008) -- looks very interesting.

I look forward to seeing what Doug has to say about abduction. In the late 1980s David Schum introduced me to the concept of abduction. That concept, abduction, played an important part in one or two of our joint papers about investigation, evidence, and inference. See, e.g., P. Tillers & D. Schum, "A Theory of Preliminary Fact Investigation," 24 University of California at Davis Law Review 931 (1991).

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Words, Their Purposes, and Their Meanings

In Giles v. California, 554 U.S. __ (2008), decided today, Justice Scalia, speaking on behalf of the Court (but see below), wrote:

It is not the role of courts to extrapolate from the words of the Sixth Amendment to the values behind it ....

It is not my office in this blog to debate the fine points of constitutional interpretation. But, question, dear Reader, is it not insensible, nonsensical, strange, anti-commonsensical, etc., to postulate a disjunction, never to be bridged, between a search for the meaning of language and the purpose or purposes of the language whose meaning one wishes to decipher? For example, if I say, "You're a bad fellow, Jonah," might it not be useful to inquire into what I was trying to say and do when I said what I did? If I say to John, "You've got a right to the same share that every man here does" would it not be useful, in determining the meaning of "man," to inquire whether I intended to split the prize (or whatever) only among males or also among women? And how would you decide whether "man" in my statement does or does not include male human beings who are 13 years old? By staring at the word "man"? Only by inquiring how I used the word in other situations? Suppose you discovered that I occasionally said in church, "Man is by nature an evil beast." Would that settle the question of what I meant when I used the word "man" in talking about the prize (or whatever) that was to be divided equally? (By the way, when I said "same," what leads you to interpret that word as "equal"?) Might it be said that Justice Scalia's understanding of semantics is primitive (in an unfavorable sense)?

N.B. In case you were wondering: I approve of the Court's holding in Giles.

P.S. The above-quoted words by Scalia fall in Part II-d-2 of his opinon. I haven't yet tabulated the confusing array of partial concurrences, the dissents, etc., to determine if that part of the opinion got the endorsement of a majority of the Court's Justices; perhaps Scalia spoke only for a plurality there. If so, good.

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