Videos, Victim Impact Statements & Johnny Lynn Old Chief

The Supreme Court denied cert yesterday in two victim impact statement cases. See Kelly v. California, 07-11703 & Zamudio v. California. The Supreme Court's website actually has a link to the video that was used in the capital sentencing proceeding in Kelly v. California. Go here. This video, together with Justice Stevens's opinion explaining his dissent from the denial of cert, id., must give pause to almost any reasonable person about the role of victim impact statements. And don't the video in Kelly and J. Stevens's dissent raise important and interesting questions about the reach of Old Chief v. United States, 519 U.S. 172 (1997)(wherein the Supreme Court embraced what was later dubbed "narrative relevance")?

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Rules of Evidence -- They Are Unavoidable

I have long been of the view that rules governing the admissibility of evidence in adjudication are inevitable in any organized system of adjudication -- in any system of adjudication that is part of a procedural system that reflects and embodies societal preferences for certain modes of procedure rather than some other preferences. Any such system of procedure and adjudication, I have long thought, must filter evidence in some fashion. Now I can cite and quote an interesting article that offers some support for my general hypothesis. See Jacqueline Ross, "Do Rules of Evidence Apply (Only) in the Courtroom? Deceptive Interrogation in the United States and Germany," 28 Oxford Journal of Legal Studies 443, 444 (2008):

Scholars who downplay the importance of continental rules of evidence implicitly assume that these rules govern courtroom procedure. But evidentiary rules can shape the ways in which evidence is acquired through investigations as well as ways in which it is ultimately presented at trial. By focusing on courtroom procedure, existing misses the important role that continental evidentiary rules play in sifting information at its source. Constraints on investigators become evidentiary rules when they significantly affect how investigators, such as police and undercover agents, obtain information about criminals, sort it and pass it on to prosecutors. In short, investigative rules function as evidentiary rules to the extent that they filter and shape the information that reaches the trier of fact.

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Facts in Constitutional Law

Buy this book!

More than 25 years ago William Twining held a conference to proclaim the importance of "fact in law." Now David Faigman has turned Twining's proclamation -- and lament -- into reality. Faigman does so by demonstrating the importance of facts in constitutional adjudication. Of course, facts were always important in constitutional adjudication. The problem is that judges and legal scholars in constitutional law have been extraordinarily cavalier in their treatment of factual inference in constitutional adjudication. Faigman's book should make judges and constitutional law scholars sit up and take notice.

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Fact-Sceptics, Take Heed!

Post-modernists and all ye other fact-skeptics take heed: sometimes evidential inference works rather well. Consider this news item:

2008 TC3 [an asteroid in space] was discovered on 6 October by astronomers using the Mt. Lemmon telescope in Arizona.... At 01:45 UTC, JPL scientist Paul Chodas announced, "We estimate that this [asteroid] will enter the Earth's atmosphere at around 2:45:28 UTC [October 7] and reach maximum deceleration around 2:45:54 UTC at an altitude of about 14 km. These times are uncertain by +/-15 seconds or so."

Question: The actual time of entry in the earth's atmosphere?

Answer: The flash accompanying the asteroid's entry into the atmosphere was photographed by satellite at 02:45:47 UTC [October 7]. This was very probably close to the time of maximum deceleration. That's a difference of seven (7) seconds, which is within the +/-15 seconds uncertainty given by JPL scientist Chodas.

Not bad, eh?

Credit: Mohamed Elhassan Abdelatif Mahir (Noub NGO), Dr. Muawia H. Shaddad (Univ. Khartoum), Dr. Peter Jenniskens (SETI Institute/NASA Ames)

Rules of Evidence in the United States and in Germany

Jacqueline E. Ross, "Do Rules of Evidence Apply (Only) in the Courtroom? Deceptive Interrogation in the United States and Germany," 28 Oxford Journal of Legal Studies 443 (2008), abstract:

Scholars who compare common law and civil law countries have long argued that civil law legal systems such as Germany do not employ formal rules of evidence comparable to those which govern American courtrooms. Civil law systems that commit fact-finding to mixed panels of lay and professional judges are said to have less need for formal rules of evidence that withhold information from decision makers. This article challenges this widely held view. Scholars have failed to recognize that evidentiary rules can restrict not only the presentation of evidence at trial but also the manner of its acquisition during the pre-trial investigation. For this reason, existing scholarship overlooks a rich source of evidentiary norms in the criminal process of civil law countries such as Germany. I argue that German regulation of police interrogation particularly its prohibition of deceptive stratagems plays an important role in shaping the factual record on which the legal system assesses guilt or innocence. The article identifies a number of institutional factors on which this system of pre-trial evidentiary regulation depends.

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Forms of Justice: The Tango and the Rumba

Professor Elisabetta Grande suggests that for comparative study of some procedural systems we should replace the distinction between adversarial and non-adversarial systems with the distinction between procedural systems that resemble the tango and those that resemble the rumba. See E. Grande, "Dances of Criminal Justice: Thoughts on Systemic Differences and the Search for the Truth," in J. Jackson, M. Langer & P. Tillers, eds., Crime, Procedure, and Evidence in a Comparative and International Context: Essays in Honour of Professor Mirjan Damaska.

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Visitors at Yale's Mirjan Damaska Conference

Michael Risinger & Paul Roberts

Paul Roberts & Michele Taruffo

John Jackson, Craig Callen & Michael Risinger

What Happens at Yale Does Not Stay at Yale

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Music of the Spheres -- and a (Pedestrian) Moral about Factual Inference

Astronomers now use the sounds -- or, in any event, I presume, the sounds extracted from electromagnetic radiation (the sound waves that humans hear with their ears do not travel well through space) -- emanating from stars to decipher the innards of stars. See this BBC story.

This is a nifty example of just how complicated -- and surprising -- "factual inference" can be.

N.B. Human ingenuity seems to know no limits.

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Should the Law of Evidence Be Abolished?

The provocative title of Professor Jeans's article -- "A Modest Proposal: Scrap the Rules of Evidence" -- provokes me to comment on the age-old question of whether the law of evidence should be abolished.

The question of whether the law of evidence should be abolished is reminscent of the question of whether taxation should be abolished.

The law of evidence does not consist solely of the hearsay rule.

The law of evidence does not consist solely of rules whose main aim is to enhance the accuracy of fact finding.

The law of evidence does not consist solely of rules that govern the admissibility of evidence.

Broadly conceived, the law of evidence -- Continentals call it the "law of proof" -- includes all legal rules that regulate evidence and fact finding in adjudication.

It is possible that society can realize its purposes -- epistemic and social -- if it leaves evidence-gathering, evidence-assessment, and fact finding completely unregulated, if we say to judges, lawyers, witnesses, and clients, "Go at it -- collecting evidence etc. -- as best you can, and we wish you luck in resolving your disputes about evidence." But it is not very probable that society can best achieve its purposes by abolishing all legal rules that regulate the gathering of evidence, the assessment of evidence, and the drawing of conclusions from evidence. The real battleground is about how evidence-gathering etc. should be regulated, and not whether the law of evidence should be "abolished."

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The late Professor James W. Jeans, Sr., makes a modest proposal

And what was Professor Jeans's modest proposal? It was to "scrap the the rules of evidence." See his posthumously-published article at 2 Liberty University L. Rev. 1 (2007).

If one reads the article, one finds that his proposal is less radical than the title of his article suggests: he mainly wanted a make-over of the Federal Rules of Evidence -- particularly their overall structure -- rather than the complete abolition of the law of evidence. (In an appendix Jeans laid out his proposed revised rules of evidence.)

The law of evidence is a sturdy plant -- or, if you prefer, a hardy weed. Why is that, dear Reader?

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Yale Law School Conference in Honor of Mirjan Damaska

See announcement here and view program here.

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Story - Fable? - of Academic Merit and (Non)Reward

See Kenneth Chang, "Man Who Set Stage for a Nobel Now Lives a Life Outside Science," NYTimes Online (October 16, 2008).

How often does this sort of thing happen?

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Bone Marrow Transplants and DNA

Medical researchers in Munich discovered that a man's corpse had both male and female DNA markers. The explanation? The dead man had had a bone marrow transplant shortly before his death and the bone marrow donor was a woman. See Spiegel Online (October 19 2008) Rough English translation:

"We have never seen anything like this before," said DNA expert Katja Anslinger of the Institute for Legal Medicine, University of Munich. "This case should sensitize investigators and investigative officials to examine genetic traces more critically." Anslinger said that false identifications or false accusations can result if police officers who are seeking to identify a corpse or are conducting a crime investigation do not know there has been a bone marrow transplant.

My thanks to Prof. Lothar Phillips for pointing me to this news item.

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New Book

The following book was recently published:

J. Jackson, M. Langer & P. Tillers, eds., Crime, Procedure, and Evidence in a Comparative and International Context: Essays in Honour of Professor Mirjan Damaska (Hart Publishing, 2008).

Details are available here.

A flyer with a table of contents is available here.

Is pro bono litigation wasteful? Antisocial? If so, compared to what?

Curmudgeons are often useful: they often make one think. But -- being curmudgeons -- they often oversimplify. I do not know if Judge Dennis Jacobs -- Chief Judge -- of the United States Court of Appeals for the Second Circuit is a curmudgeon; I do not know him personally. But if some reports -- see, e.g., here -- are accurate, it is not unfair to say that he made some curmudgeonly remarks recently.

One of his curmudgeonly complaints -- the least important of his complaints in that vein -- rings true. He seems to complain that people who do pro bono work scratch each others' backs by honoring each other with awards and other such things. (One naturally wonders if Judge Jacobs had some particular honoree in mind.) Of course, this sort of sycophantic and narcissistic group self-promotion is not limited to luminaries in the field of legal pro bono work. One finds the same sort of thing in the law school world. (But one wonders if excessive Kantian or Calvinistic agonizing about the purity of one's motivations might lead to honors not being bestowed when honors are due.) Sycophantic self-admiration is also painfully apparent at events hosted by the White House. Is it possible that social self-preening and group self-advancement even infect the judiciary? (Having made the suggestion, I must rush to withdraw it. Surely judges are beyond all that: surely they care only about the public good -- or the law or ... whatever.)

Judge Jacobs's other complaint is more substantive. He asserts that pro bono litigation is anti-social. Why so? Well, in part because, he argues, the people who control such litigation do not have to bear the adverse consequences of the results of their ostensibly public-spirited activities.

Hmm, ..., well, there's a thought for you.

Caveat: I am relying only a fragmentary account of Judge Jacobs's comments. I have no doubt he also asked whether litigation motivated by profit is more pro-social than pro bono litigation. It might be hard to demonstrate that the motivations of lawyers and clients who not purport to act for the public good are more pro-social than those people who do profess to litigate for the public good. So I assume -- I have to assume -- that in the case of private non-pro-bono litigation Judge Jacobs carefully analyzed and explained why the decision makers - corporate counsel, CEOs, hired legal help, etc. -- do realize that if their litigation activities harm the public good they, these self-interested actors, will personally suffer the socially-harmful consequences of their litigation decisions. (We know that self-interest works in financial markets: greed is good [except, of course, under very special circumstances such as the present financial crisis].)

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The Lowly but Powerful Timeline

A timeline is a simple but powerful device for marshaling evidence for and in litigation and trials. For example, it can be used to depict the possible sequence of events in issue and thereby identify (i) hypothesized events that have little or no evidential support and (ii) possible causal connections between events. It can also be used for other purposes - for example, (iii) to trace the behavior of a witness or prospective witness over time, (iv) to show the order of submission of evidence at trial, and (v) to develop a story-based opening statement or closing argument.

The construction of a timeline, however, is often a laborious process because of (a) the many events that sometimes go into a timeline and (b) the need to revise timelines as events are added. I am happy to report that SmartDraw 2009 makes the business of creating and updating timelines vastly simpler. For example, new events can be added to a timeline with a click of the mouse and -- voila -- the scale of timeline will automatically adjust to accommodate the added event or events. Moreover, SmartDraw 2009 makes it easy to zoom in and out on segments of timelines. The new SmartDraw timeline tool has other useful features. The new timeline tool is a big advance.

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Ye Shall Judge Their Deeds, Not Their Souls -- Justice Cardozo

After students carefully study the American character evidence rule -- a/k/a the propensity rule -- a/k/a the prohibition against "circumstantial" use of character -- they are impressed, and appropriately so -- by the rule's porousness. They are so impressed that some of them incline toward the view -- and understandably so -- that in a garden variety case of robbery or murder, another robbery or murder (respectively) committed by accused at some other time is admissible, without further ado, during the prosecution's case in chief to show the accused's intent for the crime for which he or she is on trial. The logic of the character evidence rule does in fact push toward that conclusion. (The reasoning so pushing involves the acknowledged right of the prosecution to negative a claim of accident or mistake by accused and the fact that intent is an an essential element of crimes such as robbery and murder.) However, if prosecutors were allowed -- without more -- to introduce other murders in a murder case, other robberies... etc., a large hole would be carved out of the heart of the character evidence rule. (Abolishing the character evidence rule might or might not be a good thing. But American law professes to have a character evidence rule.) If you (along with others) find it hard to understand the character evidence rule -- and there is good reason why you should have this difficulty -- you might find it useful to begin by bringing to mind the basic sentiment underlying the character evidence rule, a sentiment that Justice Cardozo (then chief judge of the New York Court of Appeals) eloquently stated 78 years ago in People v. Zackowitz, 254 N.Y. 192 (1930):

At the trial the vital question was the defendant's state of mind at the moment of the homicide. Did he shoot with a deliberate and premeditated design to kill? Was he so inflamed by drink or by anger or by both combined that, though he knew the nature of his act, he was the prey to sudden impulse, the fury of the fleeting moment? .... If he went forth from his apartment with a preconceived design to kill, how is it that he failed to shoot at once? How reconcile such a design with the drawing of the pistol later in the heat and rage of an affray? These and like questions the jurors were to ask themselves and answer before measuring the defendant's guilt. Answers consistent with guilt in its highest grade can reasonably be made. Even so, the line between impulse and deliberation is too narrow and elusive to make the answers wholly clear. The sphygmograph records with graphic certainty the fluctuations of the pulse. There is no instrument yet invented that records with equal certainty the fluctuations of the mind. At least, if such an instrument exists, it was not working at midnight in the Brooklyn street when Coppola and the defendant came together in a chance affray. With only the rough and ready tests supplied by their experience of life, the jurors were to look into the workings of another's mind, and discover its capacities and disabilities, its urges and inhibitions, in moments of intense excitement. Delicate enough and subtle is the inquiry, even in the most favorable conditions, with every warping influence excluded. There must be no blurring of the issues by evidence illegally admitted and carrying with it in its admission an appeal to prejudice and passion.

Evidence charged with that appeal was, we think, admitted here. Not only was it admitted, and this under objection and exception, but the changes were rung upon it by prosecutor and judge. Almost at the opening of the trial the People began the endeavor to load the defendant down with the burden of an evil character. He was to be put before the jury as a man of murderous disposition. To that end they were allowed to prove that at the time of the encounter and at that of his arrest he had in his apartment, kept there in a radio box, three pistols and a tear-gas gun. There was no claim that he had brought these weapons out at the time of the affray, no claim that with any of them he had discharged the fatal shot. He could not have done so, for they were all of different calibre. The end to be served by laying the weapons before the jury was something very different. The end was to bring persuasion that here was a man of vicious and dangerous propensities, who because of those propensities was more likely to kill with deliberate and premeditated design than a man of irreproachable life and amiable manners. Indeed, this is the very ground on which the introduction of the evidence is now explained and defended. The District Attorney tells us in his brief that the possession of the weapons characterized the defendant as "a desperate type of criminal," a "person criminally inclined." The dissenting opinion, if it puts the argument less bluntly, leaves the substance of the thought unchanged. "Defendant was presented to the jury as a man having dangerous weapons in his possession, making a selection therefrom and going forth to put into execution his threats to kill." The weapons were not brought by the defendant to the scene of the encounter. They were left in his apartment where they were incapable of harm. In such circumstances, ownership of the weapons, if it has any relevance at all, has relevance only as indicating a general disposition to make use of them thereafter, and a general disposition to make use of them thereafter is without relevance except as indicating a "desperate type of criminal," a criminal affected with a murderous propensity.

We are asked to extenuate the error by calling it an incident: what was proved may have an air of innocence if it is styled the history of the crime. The virus of the ruling is not so easily extracted. Here was no passing reference to something casually brought out in the narrative of the killing, as if an admission had been proved against the defendant that he had picked one weapon out of several. Here in the forefront of the trial, immediately following the statement of the medical examiner, testimony was admitted that weapons, not the instruments of the killing, had been discovered by the police in the apartment of the killer; and the weapons with great display were laid before the jury, marked as exhibits, and thereafter made the subject of animated argument. Room for doubt there is none that in the thought of the jury, as in that of the District Attorney, the tendency of the whole performance was to characterize the defendant as a man murderously inclined. The purpose was not disguised. From the opening to the verdict, it was flaunted and avowed.

If a murderous propensity may be proved against a defendant as one of the tokens of his guilt, a rule of criminal evidence, long believed to be of fundamental importance for the protection of the innocent, must be first declared away. Fundamental hitherto has been the rule that character is never an issue in a criminal prosecution unless the defendant chooses to make it one (Wigmore, Evidence, vol. 1, §§ 55, 192). In a very real sense a defendant starts his life afresh when he stands before a jury, a prisoner at the bar. There has been a homicide in a public place. The killer admits the killing, but urges self-defense and sudden impulse. Inflexibly the law has set its face against the endeavor to fasten guilt upon him by proof of character or experience predisposing to an act of crime (Wigmore, Evidence, vol. 1, §§ 57, 192; People v. Molineux, 168 N. Y. 264). The endeavor has been often made, but always it has failed. At times, when the issue has been self-defense, testimony has been admitted as to the murderous propensity of the deceased, the victim of the homicide (People v. Druse, 103 N. Y. 655; People v. Rodawald, 177 N. Y. 408; Wigmore, Evidence, vol. 1, §§ 63, 246), but never of such a propensity on the part of the killer. The principle back of the exclusion is one, not of logic, but of policy (Wigmore, vol. 1, §§ 57, 194; People v. Richardson, 222 N. Y. 103, 109, 110). There may be cogency in the argument that a quarrelsome defendant is more likely to start a quarrel than one of milder type, a man of dangerous mode of life more likely than a shy recluse. The law is not blind to this, but equally it is not blind to the peril to the innocent if character is accepted as probative of crime. "The natural and inevitable tendency of the tribunal — whether judge or jury — is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge" (Wigmore, Evidence, vol. 1, § 194, and cases cited).

The workmanlike and non-poetic dissenting opinion, written by Judge Pound, presents the problem of the character rule's porousness practically at the birth of the modern character evidence rule -- and is also perhaps a harbinger of the future of the rule:

The People may not prove against a defendant crimes not alleged in the indictment committed on other occasions than the crime charged as aiding the proofs that he is guilty of the crime charged unless such proof tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial. These exceptions are stated generally and not with categorical precision and may not be all-inclusive. (People v. Molineux, 168 N. Y. 264; People v. Pettanza, 207 N. Y. 560; People v. Moran, 246 N. Y. 100, 106.) None of them apply here nor were the weapons offered under an exception to the general rule. They were offered as a part of the transaction itself. The accused was tried only for the crime charged. The real question is whether the matter relied on has such a connection with the crime charged as to be admissible on any ground. If so, the fact that it constitutes another distinct crime does not render it inadmissible. (Commonwealth v. Snell, 189 Mass. 12, 21.) The rule laid down in the Molineux case has never been applied to prevent the People from proving all the elements of the offense charged, although separate crimes are included in such proof. Thus in this case no question is made as to the separate crime of illegal possession of the weapon with which the killing was done. It was "a part of the history of the case" having a distinct relation to and bearing upon the facts connected with the killing. (People v. Governale, 193 N. Y. 581; People v. Rogers, 192 N. Y. 331; People v. Hill, 198 N. Y. 64; People v. Rodawald, 177 N. Y. 408.)

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Proof

The stock market fell yesterday. This proves we need a government bailout.

The stock market rose today. This proves we need a government bailout.

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Book Publication Announcement

The following book has just been published:

J. Jackson, M. Langer & P. Tillers, eds., Crime, Procedure, and Evidence in a Comparative and International Context: Essays in Honour of Professor Mirjan Damaska (Hart Publishing, 2008).

Details are available here.

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The Philosophy Teacher

Jonathan Mahler, "The Thinker," NYTimes (Sept. 19, 2008):

After class, [Professor Kelly] Jolley and I walked across Auburn’s mostly deserted campus and into town for lunch. It was oppressively hot and humid; Jolley wore a fraying straw boater to keep the sun off his face. Over pizza and iced tea, I asked him if he ever wondered whether his style of teaching might be inappropriate for a large state school like Auburn — if the cost of his approach is that he’s teaching to the few rather than the many. “My view is that you really fall into a trap when you start allowing what you believe about your students to dictate how you teach your discipline,” he answered. “Too often these days we end up setting up our courses in light of what we believe about our students and we end up not teaching them. At best, we end up housebreaking them.”

[snip, snip]

In Jolley’s ideal world, every student would catch the philosophy flame, but he knows this will never happen. He says that philosophy requires a certain rare and innate ability — the ability to step outside yourself and observe your own mind in the act of thinking. In this respect, Jolley recognizes that his detractors have a point when they criticize his approach to teaching. “It’s aristocratic in the sense that any selection based on talent is aristocratic,” he told me. “I know it offends everyone’s sense of democracy, this idea that everyone’s equal, but we all know that’s just not true.”

Perhaps the dispute between Jolley and his critics boils down to how you define great teachers. You typically think about them as being devoted, above all, to their students. Jolley says his first priority is to philosophy itself. “I care about the discipline of philosophy more than the academic fate of any individual student — and I think I should,” he said. “Otherwise I’m just a baby sitter who occasionally breaks into syllogism.”

Jolley's notion that his philosophical endeavors in the classroom ought to be pitched to the best students rather than to average students is perhaps questionable. But his commitment to rigor is admirable. I, any event, admire his courage and his quite-literal idealism.

One has the sense or hope that Prof. Jolley thinks the "best" students are the most inquisitive. And with that thesis it is hard to disagree.

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