A New Time Line for MarshalPlan: Investigation & Proof Time Line

MarshalPlan has quite a few time lines already -- for example, a case time line (for events at issue chronologically arranged), a tangible evidence time line (to show changes over time in the condition of tangible evidence), a witness time line (similar; what happens to a witness over time). Now there are the beginnings of a new time line: an investigation and proof time line -- showing decisions over time by legal actors (e.g., investigators, lawyers) about or in investigation and proof. Cf. The Many Faces of Time in Organizing Evidence (May 24, 2009).

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

All the World's Knowledge

At first sight Wolfram/Alpha is a type of database and search service akin to GOOGLE SEARCH. But Wolfram states (in an e-mail), "The launch of Wolfram|Alpha is just the beginning of our endeavor to make all of the world's systematic knowledge immediately computable...." Is this hype? More than hype? Is all [systematic] knowledge "in principle" computable? In the short or medium run? Does "all the world's [systematic] knowledge" include your knowledge that your Aunt Betty wanted to go to the supermarket last Wednesday but didn't make it because she forgot? Does it include some long-dead person's knowledge of what Alexander the Great said as he lay dying? Does it include knowledge of what was in John Wilkes Booth's heart as he shot Lincoln? Is inferred knowledge knowledge? If so, will all trials someday be conducted on Wolfram/Alpha? Probability theorists have done a pretty good job (in the academy) of monopolizing "probability." Are you prepared to let Wolfram or Google do the same to "knowledge"?

This and this too are a couple of newspaper articles about Wolfram/Alpha that Wolfram thinks are quite nifty.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

In (Further) Praise of Sonia Sotomayor

Judge Sonia Sotomayor is plainly "qualified" to sit on the Supreme Court. Her academic record is exemplary. Her experiences as a litigator and as a trial judge are also worth mentioning: with the exception of Souter, no member of the Supreme Court has experience in the litigation trenches. Without personal experience with the pretrial and trial process, it is very hard to understand how litigation works. It is important for a Supreme Court Justice to understand how litigation works.

Some observers have suggested that Sotomayor's consciousness of her own life story disqualifies her from joining the Supreme Court. The suggestion is ridiculous. Today no serious legal scholar or honest judge believes that law is a system of rules and principles that can be administered "mechanically," uninfluenced by personal judgment. Every judge has personal experiences that influence the way the judge reads the law. In this respect, Sotomayor is no different from any other judge. Moreover, Sotomayor's personal experience with relative poverty is a perspective the Court needs: it may offset to some degree the influence of the greater personal familiarity that almost all other members of the Court (except for Justice Clarence Thomas) have with wealth and economic privilege.

The "discovery" that law cannot be an autonomous system that is entirely independent of subjective judicial judgment of course raises a theoretical question (an important one) about the meaning and nature of the rule of law. However, until that broad theoretical question is settled, there is every reason to believe that Judge Sotomayor will act in the fashion that our society thinks judges ought to act: she pays close attention to statutes, precedents, constitutional language, the arguments of advocates, etc., when she wrestles with the legal puzzles that confront her; Judge Sotomayor does exactly the sorts of things we expect and want judges to do.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Sonia Sotomayor

Hon. Sonia Sotomayor: a great choice.

See also this interesting article.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

The Many Faces of Time in Organizing Evidence for Litigation and Possible Litigation

The concept of a time line is a simple one. But as I have noted earlier, the time line is a protean tool. It is also an essential one:

1. Events in issue can be arranged in the order they may have occurred. This is an event timeline.

2. Events in issue can be arranged in the order which they are arranged when presented to a trier of fact such as a judge or a jury. This type of arrangement -- one in which chronology is sometimes shuffled to some extent -- is involved in narrative.

3. The states and events connected to sources of evidence can be chronologically arranged. This is the history of sources of evidence (such as witnesses).

4. Evidence can be arranged chronologically to show when it was collected. This might be called a history of evidence collection.

5. Evidence can be arranged to show the chronological order in which it is presented to a decision maker. This might be called proof history or proof chronology.

Further variations on the time line are possible, useful, and important. For example, time lines can be developed on the basis of:

1. Actors in the events at issue

2. Actors and decision makers in the legal process of investigation and proof

3. Persons who may be sources of evidence, or witnesses

4. Tangible things that may be sources of evidence.

N.B. Here I have not even touched on the role of time in formation and deployment of a scenario or "causal hypothesis," which involves conjectures or hypotheses about the way events are connected in time.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

MarshalPlan 2.6

I have tweaked MarshalPlan enough to justify awarding it a bigger number: MarshalPlan 2.6.

Below please find the still-applicable (and very slightly-modified) instructions and caveats.

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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 2.6) -- 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, 2.5, and 2.6 are more than mere scratchings on a page that state in words (text) how a MarshalPlan application might work.

MarshalPlan 2.6 is a software application based on the user-friendly programming language Revolution Enterprise(tm). This application -- MarshalPlan 2.6 -- 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 2.8 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 or other) 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, and then, using the Revolution Player, open the remaining "rev" stacks. 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.

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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 2.6.

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 2.6 is not set up to be linked to a database. This is a most serious deficiency.

But -- in my defense -- I repeat: MarshalPlan 2.6 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

A Lucky Recipient of an Unsolicited European Union Grant

I just received the following announcement by e-mail:

European Commission Enterprise and Industry DG
Communication and Information Unit/R4
BREY 13/ 092
B - 1049 Brussels (Belgium)

Released: May 2009.

We bring to your notice the decision by the board of trustees of The European Union to choose you as one of the final recipients of a cash grant/donation for your own personal, educational, and business development (SME funding).

To promote growth and creating new jobs in the European economy, we are giving out a yearly donation of £402,000.00 (four hundred and two thousand pounds) to 10 lucky recipients who have been selected from over 25,000 websites all over the globe, as funding/aid from the European Union, European Commission, and the United Nations in accordance with enabling acts of Parliament.

Please contact Dominic Brett
Claims Department.

Name: Dominic Brett
E-mail: ec_claims_department02@live.com

Remember to quote your identification numbers. Find your identification numbers below:

BATCH NUMBER: EC-078419XN
UNIQUE NUMBER: SME48153

Note that these numbers fall within your location file.

Thank you and accept my congratulations once again!

Janet Williamson
Information Officer and Coordinator,
Scottish European Resources Network

========
+++++CONFIDENTIALITY NOTICE+++++
the information in this e-mail may be confidential and/or privileged. If you are not the intended recipient or an authorized representative of the intended recipient, you are hereby notified that any review, dissemination or copying of this e-mail and its attachments, if any, or the information contained herein is prohibited. If you have received this e-mail in error, please immediately notify the sender by return e-mail and delete this e-mail from your computer system. Thank you.

Well, this announcement apparently didn't originate from Nigeria.

But does the EU have a board of trustees?

Would the EU pass out grants in British pounds?

And, notwithstanding my high opinion of myself, I wonder if the EU and other governments and entities would decide to give me the equivalent of hundreds of thousands of dollars (more?) without even forcing me to go through the indignity of asking for the money?

Naaah!

Darn!

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

New Haven Firefighter Case (Ricci)

Law, Probability and Risk will publish a statistical analysis by Professors Joseph Gastwirth (Statistics, George Washington University) and Weiwen Miao (Mathematics, Haverford College) of some of the issues in Ricci, the New Haven Firefighter Case, the "reverse discrimination" case. This is the abstract:

Many countries have fair employment laws to protect racial, gender, religious, or ethnic minorities from discrimination and courts in the United States can order remedies such as one out of every three new hires should be a member of a protected group after finding an employer discriminated. What steps can an employer undertake to ensure its employment practices do not disadvantage minorities when it does not need to comply with a court order? This issue arose in Ricci v. DeStephano, a “reverse discrimination” case under review by the U.S. Supreme Court. Seventeen Whites and one Hispanic who achieved sufficiently high scores qualifying them for promotion to lieutenant or captain of the New Haven Fire Department sued the city because it canceled the exams after seeing that no African-American could be appointed to an existing vacancy. The City of New Haven justified its action on the basis that both exams had a disparate impact on African-Americans and Hispanics because the ratios of their pass rates to that of Whites were less than 80%, contrary to a “rule of thumb” in the government’s Uniform Guidelines. The city did not conduct statistical tests, which are referred to in the Guidelines.

The lower courts accepted New Haven’s explanation and granted summary judgment to it. A statistical study of the various criteria considered by the city and lower courts in their review of the data demonstrates that nearly 70% of the time a fair non-discriminatory test for either position will fail the government’s “80% rule” and at least 60% of the time both fair tests would fail this “four-fifths rule”. Since the city created a new criterion after seeing the results it is difficult to formulate precisely the other “rare” or “unusual” outcomes that would lead to cancelation of the exam. Would New Haven reject a list with no Hispanics or no Whites eligible for an immediate promotion? Would it require that all three groups be represented in the pool eligible for advancement to each position? From the viewpoint of statistical theory, the hypothesis being tested and the definition of pass or selection rates that will be compared should be decided before examining the data. Formal statistical tests on several relevant pass rates show that the lieutenant exam had a disparate impact on minority applicants, but the differences in the pass rates on the captain exam were not close to statistical significance. Furthermore, when the city canceled both exams, it only focused on the demographic mix of the high scorers who could receive an immediately promotion and ignored the two-year life cycle of the list. Neither likely retirements nor job turnover during the two-year life cycle of the results were considered. If this had been done, the city might have realized that two or three African-Americans were likely to be appointed lieutenants.

Keywords: disparate impact, equal employment, “four-fifths” rule, numerical disparity, reverse discrimination, tests of statistical significance.

The full paper is available on SSRN.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Pondering the Implications of the Wikipedia Experiment for the Spindle Law Experiment

Spindle Law is undertaking a grand experiment with the development of online legal material for legal professionals.

Will the experiment work?

The story of an analogous (yet different) experiment must be considered:

David Runciman, "Like Boiling a Frog," London Review of Books (May 28, 2009):

That’s how [Wikipedia] works. The puzzle is why it works, given that this way of compiling an encyclopedia seems to have a flaw so obvious it is hardly worth stating: if no entry is ever nailed down, how do you know when you are reading an entry that someone hasn’t just interfered with it, making it thoroughly unreliable? The early years of Wikipedia were dogged by this suspicion, and many people – including a lot of schoolteachers and university lecturers who could remember the distant days before 2002 when books were books and editors actually edited – were openly derisive of a work of reference that appeared to make no effort to discriminate between good information and bad. It is easy to assume that some version of Gresham’s Law, which states that bad money will always drive out good, must apply to the circulation of facts as well. Why would anyone with good information want to put it in a place where bad information could contaminate it at the touch of a button? Wouldn’t they choose to keep it to themselves, or at the very least give it to someone who could recognise its true value, leaving open-access encyclopedias to the mercies of all the flakes and grudge-bearers who want to use its veneer of objectivity to force their craziness down other people’s throats? Well, the answer is apparently not. One of the remarkable achievements of Wikipedia is to show that on the internet Gresham’s Law can work in reverse: Wikipedia has turned into a relatively reliable source of information on the widest possible range of subjects because, on the whole, the good drives out the bad. When someone sabotages or messes with an otherwise sound entry, there are plenty of people out there who see it as their job to undo the damage, often within seconds of its happening. It turns out that the people who believe in truth and objectivity are at least as numerous as all the crazies, pranksters and time-wasters, and they are often considerably more tenacious, ruthless and monomaniacal. On Wikipedia, it’s the good guys who will hunt you down.

I recommend you read the entire Runciman article. He considers some interesting issues. For example, Runciman discusses the apparently now-common suggestion in the sciences that academic works be published in draft form and that readers of such draft works be allowed to discuss, critique, and edit the draft works. This sort of suggestion is not far removed from the sort of collaborative, or "distributed," yet professional process of development that Spindle Law contemplates. (However, Spindle Law may be even a mite more radical -- because it is possible that the collaboration of many legal professionals will lead to statements of legal rules and principles that are far different from the initial foundation that an editor [such as P. Tillers] provides to get the work underway. [Lawyers, after all, are a contentious lot: contention is a major part of the reason for their existence.] Spindle Law's founders and this Spindle Law editor do not expect that the initial foundation for a particular area of the law will undergo a radical transformation. But Spindle Law is a new kind of enterprise and only time will tell precisely how the experiment plays out.)

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

Criminal Lawyer?

See Joe Ryan, "Attorney to the stars is accused of murder," Star-Ledger (May 21, 2009)

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law

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