Monday, June 29, 2009

Was Mr. Ricci Treated Like a Statistic?

In an interview broadcast by NPR, Mr. Ricci, the lead plaintiff in the New Haven firefighters' case, said that New Haven did him a wrong because it treated him like a statistic. Mr. Ricci may have gotten things backwards:
If Ricci had been treated like a statistic, he (probably) would not have been treated like a statistic.
That's because statistical analysis, properly done, might have shown that it was no great surprise that only White firefighters were eligible for a promotion to the vacant positions.

If we assume that New Haven was acting in good faith, New Haven was unduly impressed by the statistic that only White firefighters were eligible for a promotion. So if Mr. Ricci was a victim of statistical argument, the problem was perhaps that he was victimized by very bad statistical argument.

However, the Supreme Court of the United States did not do any better than New Haven did.

Just as you can't show that some set of results is suspicious just by eyeballing the statistics, you can't show that the results are non-suspicious just by eyeballing the statistics.

But that's what the Supreme Court effectively did when it rejected New Haven's characterization of the test results as "raw racial results."

The question comes down to this: Whose (statistical) ignorance do you prefer, New Haven's or the Court's?

  • The Court gave its own ignorance the preferred position, by putting the burden on New Haven to show that the results of the test were racially discriminatory or suspect.
  • The above are off-the-cuff reactions based on a partial reading of the opinion. So I may yet end up retracting, or eating, my off-the-cuff sentiments.

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    The dynamic evidence page

    Coming soon: the law of evidence on Spindle Law

    Waiting for Ricci...

    Will the Supreme Court's announcement of its decision (in about an hour) in Ricci v. DeStefano disappoint both supporters and critics of of the Second Circuit's decision in that case? It's not impossible: the Supreme Court's opinion may consist of one or two lines -- announcing, e.g., a summary remand.

    N.B. For what it's worth: I remain a strong supporter of Judge Sotomayor. Her perspective would be good for the Court. I would also emphasize that her experience includes experience as a prosecutor and as a commercial litigator. She has worked (in that hackneyed but apt phrase) in the trenches. This gives her an understanding of "procedure in action" that the other Justices (with all due respect) lack.

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    The dynamic evidence page

    Coming soon: the law of evidence on Spindle Law

    Sunday, June 28, 2009

    Explanatory Notes in MarshalPlan 2.8 about Role of Personal Attributes for Credibility Assessment

    Announcement: Now there are brief notes in the "Credibility" stack and its substacks in MarshalPlan 2.8 that explain the role of personal attributes for the assessment of credibility of witness reports.
    Note: The third card of the downloaded credibility stack of MarshalPlan 2.8 seems to be distorted. Try using "Revolution Player" rather than the standalone stack "Network.exe" to run the credibility stack. In the meantime, I will try to correct the problem. Thanks for your patience. But even with the distortion, you can push buttons on the third card of the main credibility stack to get to the substacks, which explain what's what in credibility assessment.

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    The dynamic evidence page

    Coming soon: the law of evidence on Spindle Law

    MarshalPlan 2.8 Now Has a Witness Credibility Stack

    MarshalPlan, my evidence marshaling software, now has a stack that provides support for the development of arguments and analyses about the credibility of witnesses. Hence, MarshalPlan has a new moniker: MarshalPlan 2.8.

    The new credibility stack and its substacks are relatively primitive. But I believe they may nevertheless be useful for teaching purposes, and a few addled trial lawyers may also find them interesting. (I will add detailed commentary later. Most of the spadework has already been done by David Schum.)

    To retrieve the new version of MarshalPlan just follow the instructions given below. Many thanks.

    &&&

    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 2.8) -- 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, 2.6, 2.7, and 2.8 are more than mere scratchings on a page that state in words (text) how a MarshalPlan application might work.

    MarshalPlan 2.8 is a software application based on the user-friendly programming language Revolution Enterprise(tm). This application -- MarshalPlan 2.8 -- 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.

    &&&

    To retrieve MarshalPlan 2.8 click on this link. Download all of the Revolution stacks, including the "Revolution Player," 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." If your computer doesn't use a Windows operating system, go here and download the version of the player (Mac OSX or other) that you need.) Open the Revolution Player and then drag-drop the "Network.rev" icon and all other "rev" stacks onto the "Revolution Player" icon; or run the Revolution Player and, using the Player, open all of the "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.

    &&&

    I am very pleased to report that MarshalPlan will be available this fall as an application that runs directly on the web, in your browser. This will make it much easier for you (and my Fact Investigation students) to try out the software; you will only need to download a plug-in.

    &&&

    SOME IMPORTANT CAVEATS: The software application that you will retrieve by clicking on the links found above has serious gaps and limitations, including the following:

    1. In the application itself there is little explanation of the theory underlying the evidence marshaling strategies that are embedded in MarshalPlan 2.8.
    To get that some of that theory and those explanations (but not all of them) 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. A few buttons and links don't work. When that happens, try other buttons and links. (Otherwise resort to expletives. You have my permission.)

    3. One or two important stacks are missing. The most important missing stack is the one that would deal with evidential argument from evidence to factual propositions and with the assessment of the probative value of the evidence -- in particular, an "Evidential Argument & Probative Value" stack. 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 2.8 is not set up to be linked to a database. This is a most serious deficiency.

    But -- in my defense -- I repeat: MarshalPlan 2.8 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. (Having said that, I will now add that MarshalPlan is creeping ever closer to being something akin to a genuine software prototype suitable for real-world and real-time use. The biggest bridge will be crossed when I manage to make the forthcoming "web-resident" version of MarshalPlan database-friendly. I must also find a way to standardize many of the fields in which users are invited and expected to add "data" such as dates and names. Give me about six months.)

    &&&

    The dynamic evidence page

    Coming soon: the law of evidence on Spindle Law

    Friday, June 26, 2009

    MarshalPlan 2.7 Now Has a Narrative Stack (a Story-Telling Stack)

    I have uploaded a "Narrative" stack and have made it part of MarshalPlan, my evidence marshaling system. Hence the new moniker: MarshalPlan 2.7

    &&&&

    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 2.7) -- 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, 2.6, and 2.7 are more than mere scratchings on a page that state in words (text) how a MarshalPlan application might work.

    MarshalPlan 2.7 is a software application based on the user-friendly programming language Revolution Enterprise(tm). This application -- MarshalPlan 2.7 -- 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.

    &&&

    To retrieve MarshalPlan click on this link. Download all of the Revolution stacks, including the "Revolution Player," 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." If your computer doesn't use a Windows operating system, go here and download the version of the player (Mac OSX or other) that you need.) Open the Revolution Player and then drag-drop the "Network.rev" icon and all other "rev" stacks onto the "Revolution Player" icon; or run the Revolution Player and, using the Player, open all of the "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.

    &&&

    I am very pleased to report that MarshalPlan will be available this fall as an application that runs directly on the web, in your browser. This will make it much easier for you (and my Fact Investigation students) to try out the software; you will only need to download a plug-in.

    &&&

    SOME IMPORTANT CAVEATS: The software application that you will retrieve by clicking on the links found above has serious gaps and limitations, including the following:

    1. In the application itself there is little explanation of the theory underlying the evidence marshaling strategies that are embedded in MarshalPlan 2.7.
    To get that some of that theory and those explanations (but not all of them) 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. A few 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. 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 -- in particular, the "Witness Credibility" and "Probative Value" stacks. 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 2.7 is not set up to be linked to a database. This is a most serious deficiency.

    But -- in my defense -- I repeat: MarshalPlan 2.7 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.

    &&&

    The dynamic evidence page

    Coming soon: the law of evidence on Spindle Law

    Wednesday, June 24, 2009

    MarshalPlan 2.7 (an evidence marshaling system)

    I have uploaded a "Narrative" stack and have made it part of MarshalPlan, my evidence marshaling system. Hence the new moniker: MarshalPlan 2.7

    &&&&

    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 2.7) -- 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, 2.6, and 2.7 are more than mere scratchings on a page that state in words (text) how a MarshalPlan application might work.

    MarshalPlan 2.7 is a software application based on the user-friendly programming language Revolution Enterprise(tm). This application -- MarshalPlan 2.7 -- 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.

    &&&

    To retrieve MarshalPlan click on this link. Download all of the Revolution stacks, including the "Revolution Player," 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." If your computer doesn't use a Windows operating system, go here and download the version of the player (Mac OSX or other) that you need.) Open the Revolution Player and then drag-drop the "Network.rev" icon and all other "rev" stacks onto the "Revolution Player" icon; or run the Revolution Player and, using the Player, open all of the "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.

    &&&

    I am very pleased to report that MarshalPlan will be available this fall as an application that runs directly on the web, in your browser. This will make it much easier for you (and my Fact Investigation students) to try out the software; you will only need to download a plug-in.

    &&&

    SOME VERY IMPORTANT CAVEATS: The software application that you will retrieve by clicking on the links found above has serious gaps and limitations, including the following:

    1. In the application itself there is little explanation of the theory underlying the evidence marshaling strategies that are embedded in MarshalPlan 2.7.
    To get that some of that theory and those explanations (but not all of them) 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. 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 -- in particular, the "Witness Credibility" and "Probative Value" stacks. 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 2.7 is not set up to be linked to a database. This is a most serious deficiency.

    But -- in my defense -- I repeat: MarshalPlan 2.7 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.

    &&&

    The dynamic evidence page

    Coming soon: the law of evidence on Spindle Law

    Help Me Construct a Stack for Narrative, or Story-Telling, for Litigation and Similar Situations

    I have long delayed developing a "stack" (in my MarshalPlan software) that can support the development of narratives, or stories, for litigation -- or, at a minimum, remind budding trial lawyers and others of the importance of story-telling in litigation and trials (and in investigation?). This is partly because it is unclear -- as least to me -- how narratives, or stories, relate to the search for the truth about facts. (MarshalPlan began as a system to support investigation and I have implicitly assumed that the purpose of good investigation is to produce accurate judgments about factual questions.) However, I can no longer postpone the important chore of supporting the formation of productive stories and narratives. So I have begun developing a stack called "Narrative."

    I have put the following blurb, or explanation, on the "Narrative" stack:

    Narrative has an uneasy and complicated relationship to the search for truth about fact and law. (I wonder if Aristotle might not be the best guide on this.)

    This stack invites you to construct one or more narratives for a case. A narrative normally involves actors. A narrative often involves a theme that runs through all or many events in the narrative. A narrative may have more than one theme. A theme may involve actors' motivations and their character.

    A narrative involves settings in which events happen. These settings include an initial setting, intermediate settings, and a concluding setting, or denouement. A narrative involves a temporal series of events (including actions) in a series of settings. An effective narrative also involves a conjecture and an argument about how some or all of the temporal events in a case are connected with each other. But a narrative does not necessarily recount possible events in chronological order. Nonetheless, effective narratives rest on time lines and scenarios; narratives bereft of such temporal foundations are incoherent and unintelligible. (The purpose of a narrative in a legal context is to persuade the audience of the truth of factual hypotheses, and not merely to entertain.)

    A narrative that seek to persuade an audience of the truth of the story recounted is effective only to the extent that the audience believes that the story advanced by the narrator is adequately supported by the available evidence and probable facts. This is so unless the narrator is able to confuse the audience about the apparent evidence and the apparent facts or induce the audience to ignore what it believes to be the evidence and the facts. But the willingness of an audience to accept the narrator's story may be affected by the apparent logical force of the inferences generated by the available evidence.

    A narrative ordinarily involves the use of drama or other devices to engage the emotion, attention, and interest of the audience. A narrative may be designed -- and it very often is designed -- to serve partisan purposes rather than or other than the discovery of the truth about factual questions. But narrative -- whether wittingly or unwittingly -- can promote the search for the truth. This is because the drawing of good inferences by an audience in part requires that (i) the audience pay attention to the issues and the questions before it and (ii) the audience care how those issues and questions are answered. Narrative engages the emotion of the audience and it thereby engages the attention of the audience and the audience's appreciation of the importance of arriving at the right answers.

    By the way: analysis of narrative can also help a person, party, or a trier of fact to assess the strengths and weaknesses of another party's or person's narrative.

    Well, that's a start.

    On the next card in the stack I have created fields with the following labels (designating what kind of text is to go into those fields):

    name of case:

    setting:

    time of event or action:

    actor or actors:

    general theme (e.g., character of person, fate, accident, desire for vengeance, malicious recklessness):

    theme of this specific event or act and relationship to general theme (e.g., motivation or purpose of action; or motivation or character of actor or actors, and relationship to general theme [such as the dangerousness and fragility of everyday life or the greedy character of large corporations]):

    Below the above fields I plan to put buttons that link to (existing) stacks such as "case time line", "actors", and "case scenarios".

    OK. Is the stuff above helpful? What next?

    &&&

    The dynamic evidence page

    Coming soon: the law of evidence on Spindle Law

    Tuesday, June 23, 2009

    Constitutional Law -- Is That All There Is?

    I got the latest e-mail message notifying me of the contents of the latest issue of Harvard Law Review: Vol. 122 · June 2009 · No. 8. All three headlined articles -- correction, two of the three headlined articles are about constitutional law. (The third paper is not much better: it's an abstract review of an abstract discussion of statutory interpretation.) What's the matter with those people (yes, "those people")? Don't they realize there is more to law than constitutional law (or theories of legal interpretation and reasoning)?

    I can understand the impulse to flee courses such as those about the Uniform Commercial Code or bankruptcy; I zealously avoided taking such courses when I was in law school. And I can understand people who find themselves in law school and wondering why they are there. I had similar sentiments when I was a student in law school. But I cannot understand people putatively learned in the law who think that only constitutional law matters.

    I rather think that nonconstitutional law -- contracts, environmental law, labor law, corporate and securities law, property law, local government law, and all that -- has a bigger effect on daily life than constitutional law does. In any case, such nonconstitutional legal fields are not unimportant. So suck it up, you law review editors, and decide that if you're in law school, you're going to study all the law that matters -- including, of course, the law of evidence.

    &&&

    The dynamic evidence page

    Coming soon: the law of evidence on Spindle Law

    Sunday, June 21, 2009

    Tim van Gelder on Argument Mapping

    Those of you who are interesting in charting, or mapping, argument about and from evidence for trials or in anticipation of possible trials should keep your eye on Tim van Gelder's work on mapping argument of various kinds and in various contexts. He has recently written a nifty summary of research and work on argument mapping. TvG's summary will eventually be published as an encyclopedia entry.
  • Indeed, legal professionals should keep an eye on TvG's work (and software) even if they are not interested in argument mapping as such; they should consider his work even if they are (they think) just interested in careful (but "ordinary" or "commonsense") argument about (or "analysis" of) evidence in or for litigation.
  • &&&

    The dynamic evidence page

    Coming soon: the law of evidence on Spindle Law

    Leibniz on Age

    "‘I have never,’ [Leibniz] reflected, ‘been so old as I am now.’" (Jonathan Rée, "Dispersed and Distracted," London Review of Books(June 25, 2009)

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    The dynamic evidence page

    Coming soon: the law of evidence on Spindle Law

    Thursday, June 18, 2009

    The Latest Intimations from on High about the (Lack of) Implications of Due Process for Pretrial Investigation

    In District Attorney's Office for the Third Judicial District v. Osborne, No. 08–6. (June 18, 2009), the Court, dealing with and rejecting a claim of a due process violation for denial of post-conviction access to DNA evidence, said (5-4):
    Establishing a freestanding right to access DNA evidence for testing would force us to act as policymakers, and our substantive-due-process rulemaking authority would not only have to cover the right of access but a myriad of other issues. We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. Cf. Arizona v. Youngblood, 488 U. S. 51, 56–58 (1988). If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when? No doubt there would be a miscellany of other minor directives. See, e.g., Harvey v. Horan, 285 F. 3d 298, 300–301 (CA4 2002) (Wilkinson, C. J., concurring in denial of rehearing).
    I cannot think of a single significantly-new interpretation of the Constitution that did not require federal courts to issue a "miscellany of minor directives" that give flesh to the new Constitutional principle laid down by the Court. Consider, for example, the multitude of questions that were left unanswered by this very Court in Crawford v. Washington, 541 U.S. 36 (2004). An army of legal scholars, trial lawyers, and judges has been hard at work trying to divine what Crawford requires in a myriad of situations.
    On the merits: Arizona v. Youngblood is a lamentable decision that should be overruled. Reason: factfinding accuracy in the criminal process depends on effective pretrial investigation more than on any other single factor except perhaps money.


    &&&

    The dynamic evidence page
    Coming soon: the law of evidence on Spindle Law

    Wednesday, June 17, 2009

    Some Japanese Legal Professionals Have Great Expectations for Japan's New "Lay Judge" System

    Japan Times Online reports that some Japanese legal observers believe that the participation of lay people in criminal trials will reduce the frequency of factfinding errors. An extract from the article:
    Toshikazu Sugaya spent 17 years in prison after being convicted of kidnapping and murdering a 4-year-old girl in Ashikaga, Tochigi Prefecture, in 1990 but was freed this month after recent tests indicated his DNA did not match traces found on the victim's clothing. Initial tests had led to his getting a life sentence.

    But having lay judges, or "saibanin," participate in the criminal trial to weigh the evidence and reach a verdict should lead to fewer miscarriages of justice, because the fresh eyes of the public will be involved in the trial process and they will try to do the right thing, the lawyers said.

    "I can't say firmly that lay judges could have prevented Sugaya's conviction, because forensic evidence and a confession were submitted, and there is no proof the lay judges would not have been swayed into believing them," Makoto Miyazaki, president of the Japan Federation of Bar Associations, said at the Foreign Correspondents' Club of Japan in Tokyo.

    [snip,snip]

    Satoru Shinomiya, a lawyer and professor at Kokugakuin University law school, said the courts failed to listen to Sugaya's attorneys, who argued that the accuracy of the early DNA tests were problematic because the sample was collected long after the crime and was not properly stored.

    "If the lay judges had been there, at least they would have listened to the argument carefully," Shinomiya said.

    &&&

    The dynamic evidence page

    Coming soon: the law of evidence on Spindle Law

    Wednesday, June 10, 2009

    On Detecting Movements of the Mind and the Heart by Observing Events in the Brain

    Inferences from Observed Events in the Brain, Perhaps to Show "Deception":
    Of fMRI and Similar Tools for Observing and Inferring the Activities of the Brain and the Mind

    Suppose that the levels (Level 1, etc.) shown in Figure 1 below are levels of the physical or material structure of the human brain.

    Suppose that the small italicized letters below (f, g, etc.) represent events at a particular physical level of the brain; e.g., f may represent an electrical signal at a synapse.

    Suppose that events of type f are observed at Level 1 and observations done to date shows that the pattern of f events at Level 1 occurs (or: has occurred, has been observed to occur) when deception occurs (or: has occurred, has been observed to occur, has been thought to occur).

    What can one infer from those observations?


    Figure 1

    Suppose further that events at Level 1 in Figure 1 are determined by events at Level 2.

    Does it matter for inferences about deception that events at Level 2 have not been observed in relationship to instances of deception?

    Possibly.

    It is logically possible that more that one pattern of events at Level 2 can produce the pattern of events at Level 1 but that only one pattern of events at Level 2 is related to observed instances of deception.

    But the same relationship may hold between (i) events at any level and events at a lower level and (ii) events at any lower level and instances of deception. Thus, while only some patterns of events at Level 2 are associated with deception, the probative force of those patterns can in their turn fall victim to the (possible) fact that only one pattern of events at Level 3 is associated with instances of deception. These relationships may be repeated down to the "bottom," which in the above table are quantum processes and events. If so, invariant connections between events and instances of deception cannot be established unless and until observations of quantum level events have been observed.

    But it is possible -- is it possible? -- that the structure of the workings of the brain is more complicated (and, perhaps, also less bottom-up driven than is the case with Figure 1). It is possible -- is it possible? -- there are interactions between different Levels of the brain, interactions that affect the pattern of events at each Level of the brain. For example:


    Figure 2
  • The interaction hypothesized in Figure 2 assumes that the processes at each level are not "deterministic" within each level. However, the logic of Figure 2 does not preclude the possibility that all the processes in Figure 1, taken together, are "deterministic" (even if only probabilistically so).
  • And then, of course, it is possible (is it possible?) there are interactions among different parts of the brain (which I will assume, for the sake of convenience, have four levels [though it is practically certain that each part of the brain has more than four levels of "existence"]):


    Figure 3

    If the sort of interaction shown in Figure 3 happens, inferences drawn from any pattern of events at Level 1 of Figure 1 cannot be drawn with certainty or, probably, even with near-certainty. (However, it does not necessarily follow that we learn nothing from observing events at Level 1 in Figure 1. Whether that's the case or not depends -- on many things.)

    &&&

    The dynamic evidence page

    Coming soon: the law of evidence on Spindle Law

    Saturday, June 06, 2009

    Abstract of an Unwritten Paper: Whither and Wherefore Formal Representations of Evidence and Inference?

    Forms of Uncertainty in Legal Reasoning

    Peter Tillers (c) 2005

    for

    BISC Special Event in Honor of Prof. Lotfi A. Zadeh

    There have been relatively few attempts to use fuzzy set theory or soft computing methods to dissect or portray inconclusive reasoning in law. From the perspective of a legal professional who is interested in rigorous study of uncertainty in law, this gap in research in fuzzy logic and soft computing is lamentable. Notions such as fuzzy and rough sets and logical procedures such as those described by fuzzy inference rules are extraordinarily evocative of notions and procedures that are routinely found in argument in legal contexts such as litigation. It seems obvious that a major research project on soft computing and uncertain legal argument should be launched. However, recent experience with attempts to use the standard probability calculus to dissect uncertain reasoning in law about factual questions suggests that before a major research project on soft computing and law is begun, interested soft computing researchers and interested legal professionals should try to reach agreement about the possible distinct purposes that any given mathematical or logical analysis of inconclusive legal argument might serve. Putting aside the special (and comparatively uninteresting) case of mathematical methods, or formal methods, that make their appearance in legal settings because they are part of admissible forensic scientific evidence, mathematical or logical analysis of inconclusive argument in law could have any one (or more) of the following distinct purposes (but research could and should explore the extent to the realization of any one of the purposes of formal analysis enumerated below might advance one or more of the other purposes enumerated below):

    1. To predict how judges and jurors will resolve issues in litigation.

    2. To devise methods that can replace existing methods of argument and deliberation in legal settings.

    3. To devise methods that mimic conventional methods of argument in legal settings.

    4. To devise methods that support or facilitate existing, or ordinary, argument and deliberation in legal settings by mathematically illiterate actors such judges, lawyers, and jurors.

    5. To devise methods that would capture some but not all ingredients of argument in legal settings about factual questions or legal questions.

    6. To devise methods that perfect – that better express, that improve the transparency of – the logic or logics that are immanent, or present, in existing ordinary inconclusive reasoning about uncertain hypotheses that arise in legal settings.

    7. To devise methods that have no practical purpose – and whose validity cannot be empirically tested – but that (ostensibly) serve to advance understanding of the nature of inconclusive argument about uncertain hypotheses in legal settings.

    The [non-existent] paper discusses the distinctive characteristics of these various purposes from a legal perspective.

    &&&

    The dynamic evidence page

    Coming soon: the law of evidence on Spindle Law

    Federal Rules of Evidence 413-415: Looking Backward and Forward: A Sea Change or a Historical Footnote?

    While tidying up some matters in Spindle Law's evidence module, I had this thought, which I posted (as comment) in the evidence module:
    In 1994 Congress enacted Federal Rules of Evidence 413-415 into law. (These Rules went into effect in 1995.) Rules 413-415 openly proclaimed that some criminal conduct of a person on another occasion (criminal conduct of a sexual nature) could be used by the trier of fact to determine whether or not the person had engaged in some sexual wrong that is at issue in some trial. Although the workings and wrinkles of the preexisting character evidence rule, the traditional prohibition against "circumstantial" use of "uncharged" crimes and wrongs, was often more pretense than reality -- particularly in cases involving charges of criminal sexual wrongdoing against children -- Rules 413-415 were, at an important level, a major break with the traditional body of evidence law and principles in criminal cases -- precisely because these Rules openly sanctioned a major breach in the traditional character evidence rule, whose gist is effectively if somewhat misleadingly conveyed by the saying that a person must be tried for what the person did, not for what the person is.

    The enactment of Rules 413-415 was preceded, accompanied, and followed by much controversy: the U.S. legal academic community -- that part of it that spoke out, in any event -- stood virtually unanimously in opposition. This opposition raised a number of fundamental questions, questions about the workings of the American adversary criminal justice system, the capacities and limits of the jury, the basic purposes of nonconstitutional exclusionary rules in general and the character or propensity rule in particular, the empirical underpinnings and assumptions underlying both the traditional character evidence prohibition and Rules 413-415, and, finally, the extent or nature of constitutional constraints on rules of evidence in criminal cases.

    The multi-pronged academic assault on Rules 413-415 failed. After the Rules were enacted, the only effective practical form of opposition to the Rules was by an assault on the constitutionality of the Rules. (Repeal of the Rules was and is a political impossibility.) Courts, however, uniformly rejected the claim that Rules 413-415 violate the federal constitutional due process guarantee or other federal constitutional rights. See, e.g., United States v. Meacham, 115 F.3d 1488 (10th Cir. 1997). (It may be sobering -- to academics, in any event -- to see how cursory judicial discussions of this constitutional question were and are in comparison with the typical academic treatment of the matter in law journals.)

    One important lingering question (there are others) is whether Federal Rules of Evidence 413-415 did or did not portend a major shift in the direction of the law of evidence in general or in the character evidence prohibition (and related legal principles such as relevance and undue prejudice) in particular. Or will it turn out, in the very long run, that Rule 413-415 were an eruption born of a particular political constellation in Congress at a particular time and largely limited to a particular sector of the America legal process, to federal trials involving claims of sexual wrongdoing? What is relatively clear is that Rules 413-415, despite their importance in their own domain, did not usher in a quick, sweeping, and widespread change in the law of evidence or in the way that civil and criminal wrongs and rights are tried in the United States. But did Rules 413-415 leave a mark on the way the legal profession thinks about evidentiary processes in adversary adjudication?

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    The dynamic evidence page

    Coming soon: the law of evidence on Spindle Law

    Tuesday, June 02, 2009

    Old News Is Important News

    In Brown v. Perlman, 2008 U.S. Dist. LEXIS 37546 at n. 41 (May 8, 2008), Judge Magistrate Peck said:
    A prosecutor's failure to conduct forensic tests does not violate a federal constitutional right. See, e.g., Arizona v. Youngblood, 488 U.S. 51, 58-59, 109 S. Ct. 333, 338, 102 L. Ed. 2d 281 (1988).41

    41 See also, e.g., Venticinque v. Burge, No. CV-04-3411, 2005 U.S. Dist. LEXIS 32109, 2005 WL 3369093 at *5 (E.D.N.Y. Dec. 12, 2005) (Rejecting petitioner's claim that he was denied due process "because the prosecutor failed to conduct DNA or other forensic analyses on the knife that was used in the underlying assault," since "the prosecutor's failure to conduct forensic tests does not violate a federal right," citing Arizona v. Youngblood)); Johnson v. New York, No. 02-CV-3752, 03-Misc.-0066, 2003 U.S. Dist. LEXIS 24384, 2003 WL 23198785 at * 14 (E.D.N.Y. Nov. 5, 2003) (Weinstein, D.J.) ("The People were not constitutionally mandated to perform additional forensic tests on the evidence in this case. . . ."); Smith v. Edwards, 98 Civ. 7962, 2000 WL 709005 at *6 (S.D.N.Y. May 31, 2000) ("[T]here is no due process requirement that the government use any particular investigatory tool, including quantitative testing [such as DNA testing], to secure exculpatory evidence.").

    The judge magistrate's recommended finding were approved by a United States District Court. See Brown v. Perlman, 2008 U.S. Dist. LEXIS 108387 (S.D.N.Y., June 23, 2008).

    My hope is that a reconstituted United States Supreme Court will someday reexamine Youngblood and will study how the judiciary, under a due process umbrella, can oversee pretrial investigation in criminal cases to enhance the accuracy of criminal adjudication.

  • Lest ye forget: Youngblood was the case in which the prisoner, denied a constitutional remedy by the Supreme Court, was eventually exonerated -- after 18 or so years in the slammer -- by a new DNA test.
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    The dynamic evidence page

    Coming soon: the law of evidence on Spindle Law