Japanese "Lay Judge System" Starts on May 21

See this article in the Japan Times Online.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Exculpatory Polygraph Test Results Found Unreliable and Inadmissible by Federal Trial Court

United States v. Moultrie, 552 F. Supp. 2d 598, 599-600 & 602 (N.D. Miss. 2008) (criminal defendant sought to introduce exculpatory results of privately-administered polygraph tests; "In U.S. v. Posado, the Fifth Circuit overturned the per se inadmissibility of polygraph evidence. 57 F.3d 428 (5th Cir. 1995). In making this determination, the Fifth Circuit reviewed the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) analysis of Fed. R. Evid. 702, which governs the admissibility of expert testimony. The Posado panel stated that Rule 702 requires that the 'trial judge make initial determinations under Rule 104(a) that the preferred evidence possesses sufficient evidentiary reliability to be admissible as scientific, technical, or other specialized knowledge and that the proffered evidence is relevant in the sense that it will assist the trier of fact to understand the evidence or to determine a fact in issue.' 57 F.3d at 432."; "This court has thoroughly considered all of the testimony and scientific evidence presented by Moultrie. However, the court finds more persuasive the study performed by the National Academy of Sciences. This study is the most comprehensive study on the subject and the scholars involved actually reviewed some of the very studies discussed by Dr. Raskin during his direct examination. Notably, the Academy's 2003 conclusion that polygraphs work at a rate above chance, but below perfection has not moved far from the Office of Technology Assessment's conclusion twenty years earlier that polygraph examinations work better than chance, but with a rate of significant error. The court finds that the defendant has not established that the science behind polygraph examinations is sufficiently reliable to be deemed admissible. Accordingly, Moultrie's motion to admit the results of his polygraph examinations must be DENIED."

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

A Failure of Imagination and Intellectual Rigor: Hearsay before the Rejuvenated Commissions

The workings of civil and criminal justice generally depend less on high-level legal abstractions than on nitty-gritty rules that regulate proceedings such as adjudication. This is one hard lesson of the military commissions experiment; many observers belatedly discovered that a key variable in the workings of this system was the treatment of hearsay.

That lesson has not been fully learned, however. The New York Times reports that the Obama administration plans to keep the military commission system. The Obama administration also apparently recognizes that the treatment of hearsay is a key ingredient in this commission system. However, lamentably, the best that the Obama administration can do, apparently, is to shift the burden on the question of the admissibility of hearsay:

Hearsay, for example, is generally not allowed in American courts. In Mr. Bush’s military commission system, it was allowed unless the defendant could prove it was unreliable. Mr. Obama’s plan would shift the burden, allowing its use only if the prosecution can prove its reliability. (Id.)

This solution appears "liberal," I suppose. However, it does nothing to resolve the hard questions -- such as (i) How many resources and how much effort must the government expend to locate and produce "unavailable" hearsay declarants and have them testify at a commission proceedings? ["Billions for Guantanamo, but not a (metaphorical) farthing for the defense?"], (ii) To what extent should a detainee have the right to inquire into the character, motivations, etc., of an absent hearsay declarant?, (iii) Precisely what sorts of security considerations justify the government's refusal to produce a witness or provide evidence about an absent hearsay declarant?, and (iv) How are commission judges to assess the reliability, trustworthiness, or credibility of an absent hearsay declarant and any incriminating statement such a declarant allegedly made and to what extent are military commission judges capable of making such a determination given whatever evidence is available to them (if not to detainees or counsel for detainees)?

N.B. It has been noted that one of the great weaknesses of the Supreme Court of the United States as presently constituted is that only one of the Justices has any significant experience with trials and pre-trial investigation. Perhaps the same weakness afflicts President Obama's legal advisers. Rules of evidence are just not very "sexy," it seems. If that's what the leaders of our society think, they have learned nothing from legal realism.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Piety and Hypocrisy about the Prospective Supreme Court Nominee

There will be much talk about the alleged qualifications and brilliance of the Supreme Court nominee, whoever she is. (There is little doubt it will be a she.)

Let's stop this folderol.

President Obama will pick a nominee who he thinks will embrace the attitude toward constitutional interpretation that he happens to favor and who he thinks will be acceptable to major interest groups in the Democratic party (my guess: left-leaning women, left-leaning Hispanics, in that order) without unduly raising the hackles of political moderates.

My own hope is that President Obama picks a person from the lower economic orders who has not forgotten what life is like in the lower economic orders.

This is why, if I had a vote, I would cast my vote for

Sonia Sotomayor

and against

Elana Kagan.

We don't need another rich white male on the Court. We also don't need another rich woman (of any color) on the Court. To wit: we need a woman who has known poverty and who remembers what it's like to be poor.

If Elana Kagan hails from the lower economic orders, I will reconsider my position. But since identity politics is in play, I would still favor Sotomayor; Sotmayor has a life story that has to warm the cockles of any immigrant's heart. (I confess to being an immigrant -- but not one with a presently-fashionable national origin.)

As far as I'm concerned, Dawn Johnsen is out because she's a zealot. Zealots of any stripe make me uncomfortable. We don't need a left wing equivalent of Dick Cheney's former counsel David Addington on the Court.

The hooker in this scenario, methinks, is that President Obama -- for all of his undeniable talents -- does not seem to have a clear constitutional philosophy. (Given that he has taught constitutional law, this is a bit odd.)

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Perhaps an Interesting Hearsay Problem in the Astor Case

This murky statement of facts in the "Astor trial" [the Marshall trial, actually] suggests that an interesting hearsay problem lurks.

According to the aforesaid murky statement of facts the trial judge excluded the offered evidence as irrelevant. It is rather unusual for evidence to be excluded solely because of irrelevance. One observer (Tillers) wonders if the trial judge was trying to avoid a difficult hearsay problem.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Ruminations in Honor of Marvin Minsky: The Foundations and Meaning of a Rube Goldberg Account of Evidence Marshaling

If one is a believer in (the prospect of) artificial intelligence, one might go down two different paths. On the one hand, one might emphasize the importance of designing devices that can engage in formal reasoning, in some kind of symbol manipulation. Let us us call this thrust in AI "logicist."

On the other hand, one might try to design a device that has many of the ingredients or components that the human neurobiological system has. One might call this approach "biological engineering."

Sometimes, it seems to me, the logicist approach has predominated in AI. But I have the impression that at other times there has been considerable stress on the study of the architecture of the human brain (and connected biological matter).

These two approaches are not necessarily in conflict with each other. For example, if one takes a biological engineering approach to AI, one might emphasize the notion that the brain (or the neural system or what have you) either is or must be understood as a "physical symbol system." In this event, it might not be long before a researcher's preoccupation with the physical architecture of the brain becomes largely supplanted by an interest in a type of formal reasoning (albeit a particular type of formal reasoning).

So what? Is that a bad thing? Isn't it true that there must be, ultimately, some kind of logic (or set of operations) that ties the parts of the brain together and allows them to cooperate, work together?

It's a fair guess that there must be some such underlying logic. But the hooker in the hypothesis is the word "ultimately."

There is a reason why it might make sense for AI researchers to study the different components of the brain with great care and postpone the search for the brain's underlying logic. That reason is: ignorance.

It will likely be a long time before the logic that ties the different parts of the brain together is reasonably well understood. A necessary prelude would seem to be an understanding of the logic of different parts of the brain. When that understanding is in hand, perhaps human beings can finally grasp the metalogic of the logics of the various parts of the brain. Or perhaps progress in these two arenas must and will proceed contemporaneously (more or less). In either case, it will probably be a very long time before the brain's underlying metalogic comes close to being understood.

For years, I have been fiddling with a procedure that I call MarshalPlan. See A Theory of Preliminary Fact Investigation and MarshalPlan 2.5. But from a certain vantage point, MarshalPlan looks more like an ensemble of procedures than "a procedure." For example, I argue that a person who reasons about evidence in legal settings often should or might use operations or procedures such as the development of time lines (of various kinds), the development of scenarios (of various kinds), the marshaling of evidence on the basis of legal rules (of various kinds), and legal reasoning (of various kinds). These various forms of reasoning or thinking and others do seem different from each other and they are not reducible to some single form of reasoning or cognitive operation. So the spirit of MarshalPlan seem closer to the spirit of AI biological engineering than to the spirit of AI logicism.

It is indeed true that many of procedures identified by MarshalPlan were inspired by what people thought they saw when they peered into their own heads in an attempt to see how the thinking in their heads actually works when they ponder problems of evidence, inference, persuasion, and proof in legal settings.

Of course, there is one very striking difference between AI biological engineering and MarshalPlan: the ingredients of MarshalPlan do not purport to be the processes that regulate particular physical parts or sectors of the human brain. (I know next to nothing about, for example, the "logic" regulating the hypothalamus -- or even if there is such a logic.) Nonetheless, there is an interesting analogy between MarshalPlan and the biological engineering approach to "artificial intelligence."

Ultimately there may be -- and, I suppose, there must be - some underlying logic that connects the different parts of MarshalPlan, the different mental operations that human beings use or should use when they reason or deliberate about evidence in legal settings. But, as before, the hooker is the word "ultimately." Perhaps there is some such underlying logic. Perhaps, for example, it is some kind of Bayesian logic. Or perhaps it is some form of fuzzy logic. Or perhaps the underlying logic will prove to be of yet a different kind. But we do not yet know what that underlying logic is. Nor are we close to discovering it, much less to identifying its properties. So here again a large measure of ignorance is our lot.

But it does not follow that this general perspective on reasoning about evidence -- a perspective that emphasizes the ignorance about the underlying cause or ground of mental "phenomena" about evidence -- is useless. First, this perspective perhaps explains and justifies why the "network" of evidence marshaling strategies in MarshalPlan is not a true network. The collection of mental operations in MarshalPlan is not and cannot be a true network because we do not yet know what sort of logic ties those individual evidence marshaling strategies together and what sort of metalogic makes it possible for them to "cooperate" and influence each other. Second, our awareness that an actual, real-world actor -- the human organism -- uses the various strategies in MarshalPlan helps to explain why it is sensible to believe or hypothesize that the individual evidence marshaling strategies in an account such as MarshalPlan, while not forming a strict or true network, nevertheless must form a quasi-network -- why, that is, it is sensible and perhaps even necessary to believe that separate evidence marshaling strategies do, in some presently-ineffable way, influence each other and feed into each other. Reason: if a human organism is doing the thinking, there probably must be -- ultimately -- some underlying logic -- some sort of a metalogic -- that the human organism or brain uses to combine the various mental operations that the human animal or brain sometimes uses when thinking about evidence problems in legal settings.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

The Intelligence of Litigators

Lawyers and some other people may not be aware that some of the most esoteric theorizing about "artificial intelligence" -- about computer tools for the support of argument, inference, decision, and planning -- sprang from reflections about the activities of litigators and trial lawyers -- about the methods that litigators use to organize, investigate, and prepare possible cases for trial. These methods include (i) the development of time lines, (ii) the development of scenarios, (iii) the development of narratives, (iv) the marshaling of evidence on the basis of legal theories and their ingredients (including (v) the marshaling of evidence on the basis of affirmative defenses and their ingredients, or elements), (vi) analysis of attributes that bear on the credibility of witness, (vii) "intelligent" methods of preserving evidence and information, (viii) brainstorming, (ix) collaborative, or "distributed," work on cases, and a host of other procedures, practices, and routines.

I want trial lawyers everywhere to take a moment to pat themselves on the back -- before they return to the battlefield.

Caveat: Lawyers can't take all the credit for work on intelligence: many sophisticated contemporary students of artificial intelligence and related matters are blissfully ignorant of lawyers' work (as are, it seems, an increasing number of law teachers).

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Hackneyed Thinking about the Hearsay Rule

The New York Times reports that the Obama administration is considering preserving the military commissions in some form. Part of the motivation for that, it is said, is this: "Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies."

It is unfortunate that we have not yet drawn the right lessons from the Guantanamo-Military Commission experience. One of the notions held by the Bush administration people who set up the commissions was that judges, courts, lawmakers, etc., are naive in their treatment and distrust of hearsay evidence. Like first year law students (and many of their teachers blissfully unburdened by any on-the-ground experience in law enforcement or criminal justice), these "reformers" were bold and believed that any rational dummy knows that hearsay evidence is often worth quite a lot.

What our experience with the commissions should teach us is that hearsay evidence is often worth very little and that its use in adjudication presents serious problems. Any dummy who has just a bit of experience in investigation and litigation should know that. It is not easy to figure out how to sort hearsay wheat from hearsay chaff. But it is important to make the effort. Otherwise we will continue to have imprisonment for years on end on the word of the legendary Afghan goat herder resentful of his neighbor and eager for economic self-advancement.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

MarshalPlan 2.5

How many lives does a cat have?

I have tweaked MarshalPlan once again. There is now a better chance than ever that the user will not get stuck in a "stack" with no way to navigate through the stack. (But now and then you will still have to utter an expletive and just exit the stack. You have my sympathy in advance, and I, I trust, your forgiveness [in advance].)

Oh yes: I am indeed talking about my evidence marshaling software.

Below is some general information about MarshalPlan and instructions for downloading the software.

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Years ago David Schum and I developed the notion of an evidence marshaling system. We laid out the underlying theory of this evidence marshaling system in A Theory of Preliminary Fact Investigation. We developed a kind of computer embodiment, or computer-based expression, of our idea of an evidence marshaling system. Eventually we decided to call our system "MarshalPlan".

More than one year ago I released MarshalPlan 2.2. This moniker -- MarshalPlan 2.2 (now 2.5) -- amounts to a bit of self-mockery: MarshalPlan 2.x is not a prototype of a working application suitable for "real-time" use. Far from it! However, MarshalPlan 2.2, 2.3, 2.4, and 2.5 are more than mere scratchings on a page that state in words (text) how a MarshalPlan application might work.

MarshalPlan 2.5 is a software application based on the user-friendly programming language Revolution Enterprise(tm). This application -- MarshalPlan 2.5 -- illustrates -- with images, fields, buttons (links), and so on -- how a computer program to support the marshaling and assessment of evidence in preparation for possible trials and also for the conduct of trials, might work.

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To retrieve MarshalPlan 2.5 click on this link. Download all of the Revolution stacks into a single folder on your computer. These stacks all have the suffix "rev". To make these stacks run properly you need a "Revolution Player." To get this free player go here and download the version of the player (either Windows or Mac OSX) that you need. Then drag-drop the "network.rev" icon onto the "Revolution Player" icon or open the Revolution Player icon and then open the Network.rev stack, or file. You should be in business now: the buttons, or links, in the various stacks should allow you to navigate between the stacks as well as within the stacks. (However, it is possible you will have to drag-drop all of the stacks onto the Revolution Player icon if you wish to navigate between the stacks. Please let me know if this turns out to be the case.)

Alternatively, if your computer uses Windows, go to this link and download and run this standalone program.

If your computer has a different operating system (e.g., Linux or one of the Macintosh/Apple operating systems) go to this link, open the appropriate folder, and download and run the file "Network".

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SOME VERY IMPORTANT CAVEATS: There are numerous very serious flaws in the software application that you will retrieve by clicking on the links found above, and the application that you will retrieve has numerous gaps and limitations, including the following:

1. In the application itself there is very little explanation of the theory underlying the evidence marshaling strategies that are embedded in MarshalPlan 2.5.

To get that some of that theory and those explanations (but not all of it) you will have to (i) read the article I mentioned earlier, A Theory of Preliminary Fact Investigation, and (ii) wander about my personal web site. If you want a truly comprehensive theory-laden explanation of MarshalPlan, you will have to invite me to give a leisurely talk (preferably on a tropical island or some other attractive venue).

2. Some buttons and links don't work. When that happens, try other buttons and links. (Otherwise resort to expletives. You have my permission.)

3. Some important stacks are entirely missing. E.g., the "Narratives" stack. The most important missing stacks are those having to do with the development of evidential argument from evidence to factual propositions and with the assessment of the probative value of the evidence. For a discussion of the methods that might be used for this purpose, see Special Issue on Graphic and Visual Representations of Evidence and Inference in Legal Settings, 6 Law, Probability and Risk Nos. 1-4 (Oxford University Press, 2007).

4. MarshalPlan 2.5 is not set up to be linked to a database. This is a most serious deficiency.

But -- in my defense -- I repeat: MarshalPlan 2.5 is NOT a prototype of a working software application, suitable for use in real-time contexts.

MarshalPlan is, instead, an elaborate visual illustration of some of the directions that development of software for marshaling evidence in legal settings should take.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

An Indirect Comment on the Cognitive Capacities of Jurors?

Adele Conover, "To Fathom a Colony’s Talk and Toil, Studying Insects One by One," NY Times (April 28, 2009):

"'It’s fascinating that many cognitive functions — learning, planning, using tools — can be solved by brains several orders of magnitude smaller than ours,' Dr. [Anna] Dornhaus said. 'It shows that we should never underestimate an animal because it is small.'"

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Release of MarshalPlan 2.4 -- A System for Marshaling Evidence in Legal Settings

I have further tweaked the "stacks" (files) in my evidence marshaling software MarshalPlan: I have added brief spoken explanations about the purposes of some of the stacks.

I call my slightly-revised software MarshalPlan 2.4 (as opposed to MarshalPlan 2.3).

Below find general information about MarshalPlan and instructions for downloading the software.

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Years ago David Schum and I developed the notion of an evidence marshaling system. We laid out the underlying theory of this evidence marshaling system in A Theory of Preliminary Fact Investigation. We developed a kind of computer embodiment, or computer-based expression, of our idea of an evidence marshaling system. Eventually we decided to call our system "MarshalPlan".

More than one year ago I released MarshalPlan 2.2. This moniker -- MarshalPlan 2.2 (now 2.4) -- amounts to a bit of self-mockery: MarshalPlan 2.x is not a prototype of a working application suitable for "real-time" use. Far from it! However, MarshalPlan 2.2, 2.3, and 2.4 are more than mere scratchings on a page that state in words (text) how a MarshalPlan application might work.

MarshalPlan 2.4 is a software application based on the user-friendly programming language Revolution Enterprise(tm). This application -- MarshalPlan 2.4 -- illustrates -- with images, fields, buttons (links), and so on -- how a computer program to support the marshaling and assessment of evidence in preparation for possible trials and also for the conduct of trials, might work.

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To retrieve MarshalPlan 2.4 click on this link. Download all of the Revolution stacks into a single folder on your computer. These stacks all have the suffix "rev". To make these stacks run properly you need a "Revolution Player." To get this free player go here and download the version of the player (either Windows or Mac OSX) that you need. Then drag-drop the "Network.rev" icon onto the "Revolution Player" icon or open the Revolution Player icon and then open the Network.rev stack, or file. You should be in business now: the buttons, or links, in the various stacks should allow you to navigate between the stacks as well as within the stacks. (However, it is possible you will have to drag-drop all of the stacks onto the Revolution Player icon if you wish to navigate between the stacks. Please let me know if this turns out to be the case.)

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SOME VERY IMPORTANT CAVEATS: There are numerous very serious flaws in the software application that you will retrieve by clicking on the links found above, and the application that you will retrieve has numerous gaps and limitations, including the following:

1. In the application itself there is very little explanation of the theory underlying the evidence marshaling strategies that are embedded in MarshalPlan 2.4.

To get that theory and those explanations you will have to (i) read the article I mentioned earlier, A Theory of Preliminary Fact Investigation, and (ii) wander about my personal web site. If you want a comprehensive theory-laden explanation of MarshalPlan, you will have to invite me to give a leisurely talk (preferably on a tropical island or some other attractive venue).

2. Some buttons and links don't work. When that happens, try other buttons and links.

3. Some important stacks are entirely missing. E.g., the "Narratives" stack. The most important missing stacks are those having to do with the development of evidential argument from evidence to factual propositions and with the assessment of the probative value of the evidence. For a discussion of the methods that might be used for this purpose, see Special Issue on Graphic and Visual Representations of Evidence and Inference in Legal Settings, 6 Law, Probability and Risk Nos. 1-4 (Oxford University Press, 2007).

4. MarshalPlan 2.4 is not set up to be linked to a database. This is a most serious deficiency.

But -- in my defense -- I repeat: MarshalPlan 2.4 is NOT a prototype of a working software application, suitable for use in real-time contexts.

MarshalPlan is, instead, an elaborate visual illustration of some of the directions that development of software for marshaling evidence in legal settings should take.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Visual Aids & Visual Sketches during Closing Argument

Question 1: How often do trial lawyers, during closing argument, use visual aids -- diagrams, charts, models, digital images, and the like -- that were not admitted into evidence during the submission of evidence at trial?

Question 2: How often do trial lawyers, again during closing argument, use sketches or other visual aids to depict their arguments about the evidence in the case?

If anyone out there has any anecdotes or other information, I would very much like to hear from you.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Kudos to International Commentary on Evidence on Its 10th Anniversary -- and Kudos to Its Editors, Craig Callen, Sean Doran & John Jackson

A new special issue has just been published in International Commentary on Evidence

The special issue celebrates the 10th Anniversary of ICE by featuring a number of essays on important evidentiary developments from a comparative perspective in the period since ICE was established. The Table of Contents and brief descriptions of the articles are below.

Readers can access all the articles at no charge.

International Commentary on Evidence

Introduction
• Founding editors Craig R. Callen, Sean Doran, and John D. Jackson reflect briefly upon the establishment of ICE and how it has developed in the previous ten years. "Evidence during the Ten Years of ICE"

Articles

• Erica Beecher-Monas of Wayne State University discusses the increasingly antithetical approach to expert testimony by courts, and how this is imposing unacceptable costs on the entire justice system. "Paradoxical Validity Determinations: A Decade of Antithetical Approaches to Admissibility of Expert Evidence”

• Andrew Roberts of University of Warwick provides a critical analysis of some of the more notable procedural developments relating to eyewitness identification evidence over the past decade. "Eyewitness Identification Evidence: Procedural Developments and the Ends of Adjudicative Accuracy"

• Pamela J. Schwikkard of University of Cape Town looks at the status and application of the right to remain silent in a number of common law jurisdictions, favoring the rationale that this right assists in preventing the abuse of public power. “The Muddle of Silence”

• Roger W. Kirst of University of Nebraska College of Law describes how confrontation doctrine was changed in the last decade by Crawford and the Court's subsequent decisions in Davis v. Washington and Giles v. California. He goes on to discuss other confrontation issues the Supreme Court will face in future cases. “A Decade of Change in Sixth Amendment Confrontation Doctrine”

• Myrna S. Raeder of Southwestern Law School reviews the history of advocacy on behalf of adult and child female victims of rape and other sexual assaults, focusing on both long term and short term trends. “Litigating Sex Crimes in the United States: Has the Last Decade Made Any Difference?”

• Johannes F. Nijboer of University of Leiden discusses three dimensions of generality in evidence and procedure. He examines the trend across disciplines and professions, national boundaries, and with respect to specific crimes. “Current Issues in Evidence and Procedure - Comparative Comments from a Continental Perspective”

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PT: In this blog I have occasionally sermonized about the importance of imaginative and entrepreneurial legal scholarship. International Commentary on Evidence is a perfect example of what I have in mind.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Additional Scattered Thoughts on "Inbred" Inference, Tacit Inference, Explicit Inference, and One or Two Possibly-Related Matters

Some knowledge is tacit. But that does not mean all tacit knowledge is inborn, inherited. Some tacit knowledge is surely learned. But all learned knowledge (including learned tacit knowledge) may depend, not only on the lessons of experience (and, sometimes, on self-conscious efforts at learning), but also on some inborn tacit knowledge, some inbred and inherited brain wiring; i.e., perhaps the acquisition of knowledge cannot begin ex nihilo. [But this last supposition creates an infinite regress problem, no?].

Some knowledge involves explicit knowledge. But it does not necessarily follow that a given body of developed explicit knowledge (even esoteric explicit knowledge -- e.g., mathematically-formulated knowledge about the world) altogether avoids reliance on tacit knowledge. For example, perhaps the predictions of a physicist, some other learned person, or artillery officer about the trajectory of a projectile fired from a cannon ordinarily depend on a certain amount (perhaps a large amount) of tacit knowledge as well as on explicit calculations involving Newtonian mechanics, friction coefficients, and other such matters. (But it is possible -- is it possible? -- that some explicit human knowledge can be fully automated by being deposited into an autonomous non-human device -- i.e., that such knowledge may take the form of a fully autonomous robot whose intended operations never require or depend on human intervention.)

Can expressly-formulated principles improve the inferential performance of a device -- be that device mechanical or biological -- whose inferential processes are imperfectly, only partially, understood?

Consider recipes for batters in baseball games. Can expressly-formulated recipes, maxims, or precepts for batters "work"? (Plainly such recipes -- "Keep your eye on the ball!", "Watch the pitcher's grip!", etc. -- do not fully capture or express the way a batter's brain, eyes, etc., work to lead the batter to draw certain inferences -- very quickly! -- about the velocity and trajectory of the ball that he or she hopes to hit out of the ballpark.)

Consider, alternatively, rules built into thermostats -- e.g., "Thermostat, turn on switch X when sensor B shows t-1 or less; but turn on switch Y when sensor B shows t +1 or more." Can such a rule work if the physical processes by which the thermostat's sensors detect signals are not perfectly understood? (The answer would seem to be "yes." What are the implications of that?!)

I realize my ruminations here are primitive, probably even sophomoric. So forgive me for that. I am taking the liberty of doing some exploratory thinking "out loud." Later (probably only much later) I will make an effort to be more systematic.

N.B. The scholarship of Nancy Cartwright and the fuzzy logic-based science of Lotfi Zadeh have an important bearing, I think, on the questions I am raising here. And so does, of course, the vast body of learning now being produced by that vast army of scholars who are carefully studying the neurobiological, neurochemical, neuroelectrical [and neuromagnetic?] computational processes of the human animal. The next generation will be much better equipped than this one to tackle some of the epistemological and inferential puzzles that have bedeviled logicians, philosophers, epistemologists, psychologists, and legal scholars for many, many years.

A further N.B.: I have been talking here, once again, about the phenomenon and puzzle of partial knowledge. I also think I have also been viewing -- have I not? -- the human creature as an organism. These ways of thinking about the human situation have implications for attempts at conscious regulation of inference.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Brief Reflections on Association, Causation, and Inference

In 1988 Professor Richard Wright published an important article: Richard W. Wright, "Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof: Pruning the Bramble Bush by Clarifying the Concepts," 73 Iowa Law Review 1001 (1988). See also Richard W. Wright, "Once More into the Bramble Bush: Duty, Causal Contribution, and the Extent of Legal Responsibility," 54 Vanderbilt Law Review 1071 (2001). Although the prose in Wright's 1988 article was dense and difficult, one of Wright's general ideas was clear, interesting, and important: There is no valid statistical inference without causal reasoning. In recent decades this position has also been taken by the prominent computer science theorist Judea Pearl. See, e.g., Judea Pearl, The Art and Science of Cause and Effect (lecture [with slides], October 29, 1996).

If one has a certain ontology -- that is, if one entertains certain basic beliefs about the underlying structure of the world -- there is something irresistible about the idea of a necessary link between causality and inference. However, the demand for a link between inference and causality can also have a paralyzing effect -- because more often than not the knowledge that human beings have of causes is imperfect and often that sort of knowledge seems destined to remain imperfect.

Yet, it seems hard to resist the conclusion that without some tenable theory of the way one or more things are connected to another thing or things, no probative or inferential weight can be given to any observed associations of events in the world (and that this is so whether or not statistical language and concepts are used to describe those associations).

So how are we (theorists of evidence and inference) to wrestle our way out of this conundrum? I am not sure. But my strong guess is that we have to focus on the notion of what used to be called tacit knowledge, on subconscious perceptual and cognitive processes. The general idea is this: Our brains know more than we do. That is to say: Human knowledge does not consist only of conscious knowledge, or knowledge that human beings have been able to express explicitly.

It must or might be the case, I think, that the brain (i.e., the human neurobiological system) somehow comes to have embedded within it some pretty good working hypotheses about the causal structure of (some parts of) the world and that when the human organism observes certain patterns of events, these embedded tacit hypotheses are brought into play and channel (or influence) the conscious judgments that human beings make about whether some pattern of events or association of events does or does not "validly" matter to the inferences human beings should draw, or can "validly" ("logically") draw, on the basis of their observations of events in the world.

That's the general direction in which my thinking is moving. However, if that's the way inference generally works, numerous puzzles remain. One of the biggest ones is what role conscious reasoning can play if much or most of human knowledge is "tacit," literally subconscious. Another problem (related to the first) is to explain how some human beings have managed to make darned good predictions in some domains by deploying complex conceptual constructs and operations (e.g., quantum theory, calculus, and the like), explicit constructs and operations that did not come into those human beings' brains with their mothers' milk (or milk bottles).

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

fMRI No Lie Is No Go in Southern California Case

The Stanford Center for Law & the Biosciences Blog reports (March 25, 2009) that fMRI No Lie's request to introduce brain scan evidence to show a client's non-lying has been withdrawn.

Good. It is good that this bogus lie detection method won't see the inside of a courtroom for the time being. See my earlier comments and questions about fMRI lie detection here and here.

Brain research is good. The ability of a scientifically-outlandish use of brain research to command widespread public attention is not good.

But in this instance at least both intelligence and common sense overcame faddishness and gee-whiz popular science. Will Homeland Security exhibit similar caution, intelligence, and common sense in the use of such pseudo-scientific lie detection methods? Given the widespread use of the polygraph in the halls of government, there is reason to wonder.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

The Law and Principles of Evidence in Cyberspace

Work continues apace on Spindle Law's evidence module. The worker bees on the evidence module are, at present, Peter Tillers and Joannes Vinarao-Pilapil.
In the event you forgot: The "evidence module" is akin, in varying degrees, to the following:

a mini-treatise on the law of evidence (mainly the U.S. federal law of evidence)

a taxonomy of the law of evidence

an outline of the law of evidence

a budding intelligent data base about the law of evidence

a platform for collaborative development -- via the astonishing thing called the internet -- of an intelligent (and free) storehouse of knowledge, analysis, and argument about the law of evidence.

Of all of the above categories, the last probably best captures the spirit of the evidence module. (But in time -- as the evidence module grows -- the evidence module should become wider and deeper in certain respects than any existing treatise on the law of evidence.)

Joannes and I have been diligently working on various parts of the evidence module, including those parts relating to proof procedure, relevance, undue prejudice, hearsay, impeachment, and privileges. But much remains to be done.

Our work on the propensity rule (including "other crimes evidence"), evidence of habit and routine practice, and related matters is most nearly ready for a public beta release. The Spindle Law web site has recently been upgraded. Before releasing this part of the module, we and David Gold and his colleagues need to work out some issues about matters such as the handling of (i) exceptions to rules and (ii) case parentheticals and case summaries. In addition, Joannes and I want to be sure there is enough commentary in the initial beta material to whet the appetite of those of you out there -- those creative souls in the legal community -- who might enjoy taking part in public discussion, debate, and development of a storehouse of professionally-informed knowledge about the law of evidence in the United States.

I am excited by this experiment with an evidence module, an experiment made possible by Spindle Law. While the evidence module may not cure the world's ills -- or even the ills of the legal system --, I think it may, in a small way, contribute to the welfare of our society and to knowledge of an important part of the American legal system. Less grandiosely, I hope and I believe that the evidence module will be useful to "legal professionals" such as judges, lawyers, law students, and law professors.

So stay tuned. I will be asking for your thoughts, your advice, and your contributions. And please note: Should you want that to happen, your name will be attached to your contributions (however large or small) to the evidence module, and thus -- should you wish to accept it -- you have a chance to gain more than just a paltry 15 minutes of fame.

Book

the dynamic evidence page

coming soon: the law of evidence on Spindle Law

Spring 2009

the dynamic evidence page

coming soon: the law of evidence on Spindle Law

Partial Knowledge of Boxes with Partial Self-Knowledge

Imagine a box.

The box sometimes hoists an umbrella. Sometimes it does not.

I wonder: Can I use the box's umbrella hoist to determine whether it is raining? (I am too lazy to go outside and put my finger in the air.) So I interrogate the box (an intelligent box):

Q. Box, when do you hoist an umbrella?
A. When it rains.
Q. How do you determine if it is raining?
A. When I hear raindrops splatter.
Q. How do you tell the difference between raindrop-splatters and other sounds?
A. I'm not sure. But there are some signs I think I use -- for example, the sounds come frequently but not with invariable regularity, they create an echoing or pinging sound within me (I'm made out of metal), that sort of thing. I'm not sure I can tell you all the clues I use. But I'm sure I can distinguish rain-drop sounds from other sounds. Why do you ask?
Q. Oh, I'm just curious. Do you hoist an umbrella when it is not raining?
A. No, not usually. Why would I?
Q. Thank you, Box.
A. You're most welcome.

Later, looking down from the fourth floor of a building, I cannot see if it is raining but I see Mr. Box hoist an umbrella. I notice some people nearby also have hoisted their umbrellas. But I notice that some people are carrying umbrellas but have not opened or raised them. I wonder to myself: Is it raining?

I decide to focus on the behavior of Mr. Box. I decide, first, that it was trying to be truthful when it told me what leads it to hoist an umbrella. (So, to that extent, I think I can see inside the unusually-articulate and -intelligent box.) N.B. I need to keep in mind that Box might have bad sound sensors. But I decide to ignore this complication for now.

I recall that Box itself said it could not list all of the factors (sounds) that lead it to conclude that it is raining. So Box itself, if it is being honest, cannot clearly identify the factors that make it think (about rain or not-rain) what it thinks and do (hoist or not-hoist) what it does. But I think: with some effort perhaps both the box and I could imagine the factors that influence the box's decision or belief about whether it is raining.)

I then think: "Mr. Box was trying to be truthful. But is it possible Box uses clues and signals other than sound to determine whether it it is raining? Yes, I think that's possible, even unbeknownst to Box. For example, perhaps umbrella-hoisting by people influences what Box thinks about rain or not-rain. Or perhaps, unbeknownst to Box, it senses increases in moisture levels in the air." However, I caution myself: "It does not necessarily follow, of course, that Box's beliefs are uninfluenced by the clues it listed."

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This box metaphor or parable (as ungainly as it is) highlights some factors that may have to be taken into account when we attempt to assess the accuracy of the reports of, say, people who claim they are "bite-mark experts" or, say, "fingerprint identification experts" or, say, "polygraph experts." (One interesting potential lesson is that even bogus experts who may nevertheless be good detectors [of, e.g., rain or not-rain] may be influenced by their bogus methods even if those bogus experts have little self-understanding, little understanding, that is, of what leads them to reach the conclusions and make the reports that they do. [Consider, for example, a polygraph expert who has good hunches about the people she tests with her fancy-looking polygraph equipment.])

But my ungainly parable also has a very broad moral: the possible omnipresence of genuine but partial knowledge and the frightening difficulties (both practical and theoretical) this sort of knowledge presents.

One illustration of partial but genuine knowledge: without knowing everything about the box but by having or making some pretty good explicit or tacit guesses about the workings of the box, I may be able to make pretty good guesses about rain or not-rain if I see the box hoist an umbrella. Of course, it is also possible -- particularly if I am dealing with a strange metal box -- that my guesses based on the box's umbrella-hoisting will be almost entirely worthless.

An important hypothesis: Sometimes we know -- whether tacitly or explicitly -- much but not everything about people who know much or something but not everything about themselves.

Question: Suppose we have such fragmentary but real knowledge. What steps (if any) can we take to improve it? And what steps (if any) can we take to increase the accuracy of judgments that other people (e.g., jurors) make about the reports of yet other people (e.g., witnesses) about still other people (e.g., a defendant who is, say, related to the witness who professes to be reporting and explaining that defendant's behavior)?

the dynamic evidence page

coming soon: the law of evidence on Spindle Law