It's here: the law of evidence on Spindle Law. See also this post and this post.
Thursday, January 21, 2010
A Hearsay Question
"JOLIET, Ill. -- A woman who mysteriously drowned in a bathtub will be given a voice as witnesses tell an Illinois judge how she feared the ex-husband now charged in her death." ("Witnesses to say drowned Ill. woman feared ex-cop," AP story (Jan. 21, 2010)).
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Ms. Martha Coakley and the Fells Acres Cases
Dorothy Rabinowitz, the Pulitzer Prize-winning Wall Street Journal editorial page writer, published an interesting article about the role of Ms. Martha Coakley in the Fells Acres and Amirault "day care abuse" cases. (Ms. Coakley is the recently-defeated Senatorial candidate and the current attorney general of the Commonwealth of Massachusetts.) Go here to see what Rabinowitz said.&&&
Dorothy Rabinowitz is the author of No Crueler Tyrannies: Accusation, False Witness, and and Other Terrors of Our Times (2003, paperback 2004). This book should be compulsory reading for every prosecutor and every criminal defense lawyer in the country (and beyond).
It's here: the law of evidence on Spindle Law. See also this post and this post.
Sunday, January 17, 2010
Correction: only 1,670,000 hits
I must have omitted a quotation mark the last time I conducted a narcissistic search (which happened a few hours ago). A more recent Google search yields only 1,670,000 hits for this blog:&&&
It's here: the law of evidence on Spindle Law. See also this post and this post.
This Blog's Google Hit Tally: 13,800,000?
I like to be popular (I think) -- but the following count strikes me as very odd:&&&
It's here: the law of evidence on Spindle Law. See also this post and this post.
Thursday, January 14, 2010
Tools for the Study and Management of Evidence
In some recent posts I have talked about the importance of conceptual tools. I have been riding this hobby horse for quite some time. Years ago I wrote:One last word, Brother Lash. I am pleased that the procedures described in The Hypercard(tm)-based Spiritual Exercises of Saint David of Virginia45 [n. 45. For a discussion of this system see Peter Tillers & David Schum, A Theory of Preliminary Fact Investigation, 24 U.C. Davis L. Rev. 931, 944-48 (1991).] strike you as simple and familiar. Since those exercises were intended for the ordinary pilgrim, we wanted them to be user-friendly. Moreover, the spiritual exercises we describe are really only tools. The best tools, of course, are easy to use. It is certainly interesting and reassuring to hear that other pilgrims have made use of exercises like those in our software prototypes. (We have also heard such reports.) Needless to say, we did not invent the methods that pilgrims have used since days of yore to discipline and purify the mind that seeks the bliss of Knowledge; these methods, we believe, are natural to practically Everywoman and Everyman. Thus, if our computer-based network of possible spiritual exercises performs a service, it does so mainly by making it easier for the pilgrim to bring familiar spiritual methods more clearly to mind and to decide how to arrange and combine them to best effect for her particular spiritual situation. Thus, the computer can make even spiritual labor more productive and efficient.A Curious Document Recently Discovered in the Archives, 14 Cardozo Law Review 149, 162-163 (1992)I must admit I am pleased you know what the Prophet (and Saint) David and I are about; unlike some other people, you do not make the mistake of thinking that our spiritual exercises are rituals or rites. As you know, Brother Lash, some Believers hold that ritual has an intelligence of its own and that the mindless repetition of ritual can produce Knowledge. We are grateful that you did not accuse us of pursuing or purveying that sort of unnatural and artificial intelligence. However, I fear you may have made a mistake of the opposite sort. I sense that the simplicity of the procedures and methods in The Hypercard(tm)-based Spiritual Exercises of Saint David of Virginia disturbs as well as charms you; you seem to hint that our exercises lack sophistication. If that was your subtextual intimation, Brother Lash, I fear you have lost sight of the distinction between spiritual exercises and theology. While our tool for organizing the movement of the inner spirit flows from our theology, the tool we have developed is not itself theology or theoria. (It's just a tool.) By the same token, the simplicity of our method of organizing spiritual exercises does not mean that the theoria that produced it is simple or simplistic. I am sure that you will agree that it takes a subtle theology to produce an efficient user-friendly computer-embedded Hypercard(tm)-based network of reciprocally interactive spiritual exercises.
Yours truly,/s/Peter Pilgrim,
Doctor of Facts
It's here: the law of evidence on Spindle Law. See also this post and this post.
Monday, January 11, 2010
Solomonoff, Artificial Intelligence & Probability
Obituary in the New York Times (Jan. 9, 2010):&&&
Mr. Solomonoff [widely regarded, along with Marvin Minsky and John McCarthy, as one of the principal founders of Artificial Intelligence] went on to pioneer the application of probability theory to solving artificial intelligence problems. But in the 1960s and 1970s he was ahead of his time, and the approach initially had little impact on the field. More recently, probability theory has caught on among artificial intelligence researchers; it is now the dominant approach.
It's here: the law of evidence on Spindle Law. See also this post and this post.
Hegel Empiricized: A Lens on Modern American Proof?
When I was in college, varieties of positivism were all the rage. So I took it as gospel (so to speak) that "ought" cannot be derived from "is." Then I went to law school. There I found law teachers who regularly seemed to extract legal oughts from (legal) facts (i.e., legal precedents & the like).&&&
Those law teachers of mine generally seemed to be rather intelligent fellows. And most of them didn't seem to be troubled by the "conflation" (as we say today) of "is" and "ought" in, say, tort law or in the law of property.
Well, then: How are we -- how am I -- to discern and describe the "structure of proof in modern American trials"? (I have said I would write about this topic someday. So I need to answer this question.)
Years ago I swore off Hegel. (I am in distinguished company. For example, Bertrand Russell did so, so did Friedrich Nietzsche, so did Charles Saunders Peirce -- and so did many other 19th and early-20th century luminaries -- after being immersed in the Hegel-Geist.) But -- nonetheless -- I think this: One cannot explain the "structure" of society or law without identifying and discussing the "purposes" of parts of a society or of parts of a legal system.
But where are such purposes to come from?
Am I to take them out of my own solipsistic, narcissistic head?
No. That won't do. (After all, Hegel's rationalistic [effective] solipsism is why I renounced Hegel and people like Hegel. [Beyond that, his logic stinks.])
Purposes must come from facts in the world.
But how do facts -- even social facts -- generate oughts - even social oughts?
Here is a sort of solution: Hegel must be empiricized. Or perhaps re-Aristotelianized.
That is to say: Perhaps by observing some things as they are, we can see some of their functions -- and, having done that, perhaps it is not inappropriate -- or at least not wildly irrational -- for us (some of us) to regard some such functions as admirable functions, our functions, viz., our (social and perhaps even individual) purposes.
There are functions everywhere. Natural organisms are full of functions. (Aristotle noticed this a very long time ago. [I am not, of course, speaking of mathematical functions.])
Societies (it has often been said) are analogous to organisms. Be that as it may, different parts of society seem to have some functions. Perhaps, by close observation, one can identify some of the functions of at least some parts of some societies -- and perhaps one can call some of those functions "purposes."
Perhaps -- furthermore -- there are some relatively invariant functions. For example: Perhaps some human electro-neuro-biological processes have pretty much the same functions everywhere on the current version of our planet earth.
And perhaps there are some constraints -- e.g., time -- that are with us at all times (so to speak).
But contingency is there too, no? For example, some legislator has a bad day and her staff puts clumsily-drafted language into a bill that neither she nor any other legislator actually reads. Voila: a rape shield law has been amended.
Furthermore, social purposes are fuzzy determinants of social and legal phenomena.
So what do we have? This: a mixture of fact, accident, necessity, function, and purpose.
But this abstract conclusion really doesn't tell us very much, does it, about "the structure of proof in modern American trials"? It only provides a rough framework for a way of trying to study the structure of proof in modern American trials. Isn't that right, Dear Reader?
But this framework -- as little as it is -- is -- in any event -- what it is: a framework. And perhaps that's good for something.
Enough! It's time to get on (again) with the treatise on proof. I'll report on my progress (or lack thereof) later.
It's here: the law of evidence on Spindle Law. See also this post and this post.
Sunday, January 10, 2010
Richard Dawkins: Darwin's Rottweiler
"If T.H. Huxley was ‘Darwin’s bulldog’, the Oxford emeritus professor for the public understanding of science, Richard Dawkins, has been called his unmuzzled rottweiler..." (Steven Shapin, The Darwin Show London Review of Books (Jan. 7, 2010).)&&&
Shapin observes that some of Darwin's admirers say that Darwin's theory of evolution "explains everything" in biology. Shapin comments, "That is, however, a step too far for some otherwise sympathetic scientists. As the geneticist Steve Jones put it, Darwin Year has encouraged ‘vulgar Darwinists’ in their already souped up tendency misleadingly to treat evolutionary biology as ‘a universal solvent that can sort out the most recalcitrant problems of society, consciousness, politics, literature and more’."
It's here: the law of evidence on Spindle Law. See also this post and this post.
Disappearing Corpses and Statistical Method
In Stanislaw Lem's The Investigation (Adele Milch, trans., 1992; first Polish ed., 1959) corpses mysteriously begin disappearing from mortuaries in and near London. A statistician is brought in to help with the investigation. The statistician concludes that the solution to the riddle of the disappearing corpses lies in the fact that the product of the time and distance between any two consecutive incidents multiplied by the difference in temperature at any two sites of consecutive incidents of disappearing corpses yields a constant.&&&
It's here: the law of evidence on Spindle Law. See also this post and this post.
Thursday, January 07, 2010
Why the conditional relevance doctrine may be dangerous
Much academic discussion of the conditional relevance doctrine (of the sort found in Federal Rule of Evidence 104(b)) must seem hopelessly ethereal. However, a recent decision (2006) by Washington State's Supreme Court is a nice example of how the doctrine can subvert standard notions about how the process of proof should work. In State v. Dixon, 147 P. 3d 991 (Wash. 2006) the Washington State Supreme Court upheld the trial court's ruling rejecting the attempt by a criminal defendant charged with sexual molestation to impeach the alleged victim with a statement in which she may or may not have recanted her charge of molestation and admitted she had been lying and the Washington Supreme Court did so on the ground that the relevance of the child's statement depended on whether she was or was not referring to her father and the defendant, it ruled, had offered insufficient evidence to support a finding that the child was indeed referring to her father rather than someone else:&&&
¶ 26 Here, the relevancy of the defense's proffered impeachment evidence (Hansen's testimony concerning N.D.'s alleged question about lying) was dependent upon the establishment of fact B (that N.D. was referring to lies she had told about the molestation allegations). In other words, under ER 104(b), the defense's desire to prove fact A (that N.D. was asking Hansen what she should do if she had lied about the molestation allegations) was dependent on proof of fact B (that N.D.'s question pertained to the molestation allegations). Consistent with the comment to ER 104(b), the trial court exercised its discretion and determined that evidence of fact B should precede evidence of fact A.There is a strong argument that the child's statement, though cryptic, was relevant and that it should have been left to the jury to decide whether the alleged victim was or was not saying that she had lied. Justice Madsen, concurring, wrote:¶ 27 Regarding fact B, the trial court's proper inquiry under ER 104(b) is "whether the evidence is sufficient to support a finding of the needed fact." State v. Karpenski, 94 Wash.App. 80, 102, 971 P.2d 553 (1999) (emphasis added). As to the applicable standard of review, the Karpenski court stated that "[w]hen a trial judge's function is to decide whether the evidence is sufficient to support a finding, a reviewing court's function will be the same." Id. at 104, 971 P.2d 553. We conclude, as did the trial court, that the defense provided no "evidence . . . sufficient to support . . . the needed fact." Id. at 102, 971 P.2d 553. Hansen's testimony proved nothing more than that N.D. had possibly lied about something. Hansen's speculation remained the only support for "the needed fact" that N.D.'s comments to Hansen pertained to the molestation allegations. Id. Given the failure of the defense to provide sufficient support, the trial court determined that Hansen's testimony was too speculative and therefore not relevant under ER 104(b) and ER 402. Contrary to Dixon's contention, the trial court's relevancy determination under ER 104(b) was not an abuse of discretion. Because the defense failed to establish the relevancy of N.D.'s cryptic remark to Hansen, the trial court properly precluded the defense from using Hansen's testimony for impeachment purposes as a prior inconsistent statement pursuant to ER 613(b).
¶ 30 I agree with the dissent in State v. Dixon, noted at 118 Wash.App. 1005, 2003 WL 21916401 at *6, 2003 Wash.App. LEXIS, at *16 (unpublished opinion) (Bridgewater, J., dissenting), wherein Judge Bridgewater noted that the question presented to the trial court was one of conditional relevance. As he correctly concluded, the trial court erred when it failed to evaluate the evidence in the light most favorable to the defendant, as proponent of the evidence. State v. Karpenski, 94 Wash.App. 80, 103 n. 101, 971 P.2d 553 (1999) (judge may not reject inferences favorable to the proponent when determining sufficiency of evidence under ER 104). As Judge Bridgewater stated, N.D.'s statements to Amber Hansen about lying were relevant if the jury believed those statements concerned Dixon.The dissenting opinion reads this way:¶ 31 The evidence offered by Arthur Dixon showed that just prior to N.D.'s unsolicited statement to her aunt about lying, N.D. had overheard her mother and Hansen talking about Dixon and the charges that were filed as a result of N.D.'s accusations against Dixon. And, during the same time period, N.D. had discussed with her counselor whether the abuse she complained of was real or a dream. Viewed in the light most favorable to Dixon, the statements are at least minimally relevant as prior inconsistent statements. This is so because N.D. had testified that the abuse occurred, but these prior statements, and the inferences therefrom, imply that she was lying about the abuse. State v. Dickenson, 48 Wash.App. 457, 467, 999 740 P.2d 312 (1987) (inconsistency is determined not by specific statements alone but by the effect or impression conveyed). For the reasons articulated by Justice Sanders in his dissent, Dixon should have been allowed to pursue this area of inquiry. The State could then have attempted to demonstrate that the earlier statement was not made or that it did not refer to Dixon.
¶ 34 The majority holds Arthur Dixon failed to provide evidence "`sufficient to support'" the fact that N.D. had been discussing Dixon's molestation charges when she asked her aunt, Amber Hansen, "[W]hat do I do if I'm lying[?]" Majority at 997 (quoting State v. Karpenski, 94 Wash.App. 80, 102, 971 P.2d 553 (1999)); 4 Report of Proceedings (RP) at 489. Accordingly, the majority upheld the trial court's determination that Hansen's testimony was "too speculative and therefore not relevant" under ER 104(b). Majority at 997-98. I disagree.¶ 35 Hansen's testimony is not irrelevant because viewed in a light most favorable to Dixon it is entirely plausible for the jury to infer N.D.'s statement "[W]hat do I do if I'm lying[?]" referenced Dixon's alleged molestation. And when considering preliminary questions related to relevance, the trial court may not reject evidence or inferences favorable to the proponent. Karpenski, 94 Wash. App. at 103 n. 101, 971 P.2d 553.
¶ 36 Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401 (emphasis added). The threshold for relevancy is low. Bell v. State, 147 Wash.2d 166, 182, 52 P.3d 503 (2002). "When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." ER 104(b).[3] In other words "`[t]he judge requires the proponent to bring forward evidence from which the jury could find the existence of the preliminary fact. The opposing party may 1000 then bring in disputing evidence. If on all the evidence the judge determines that the jury could not find the existence of the preliminary fact, he excludes the evidence. Otherwise, the question is for the jury.'" Kosmas v. State, 316 Md. 587, 601, 560 A.2d 1137 (1989) (quoting McCormick on Evidence § 53, at 137) (Edward W. Cleary ed., 3d ed. (1984)). See also Kosmas, 316 Md. at 601, 560 A.2d 1137 ("`The judge must determine that a reasonable jury could make the requisite factual determination based on the evidence before it.'" (quoting 1 Jack B. Weinstein and Margaret A. Berger, Weinstein's Evidence § 104[09] (1988))).
¶ 37 N.D.'s aunt who witnessed the question believed N.D. was discussing her father. It is therefore plausible a jury could reach the same conclusion.
Q: (Defense counsel) And what was [N.D.] talking about?4 RP at 489.A: (Hansen) She was talking about her dad or at least that's what I got out of it.
Q: Had you been talking about her father?
A: Yes.
¶ 38 Judge Bridgewater's dissent from the Court of Appeals decision below correctly determines a reasonable jury could reach such a conclusion after inferring from N.D.'s statement,
"1. A lie had been told.State v. Dixon, noted at 118 Wash.App. 1005, 2003 WL 21916401 at *6, 2003 Wash.App. LEXIS 1770, at *17 (2003) (unpublished opinion) (Bridgewater, J., dissenting). N.D.'s use of the first person suggests she was talking about herself as having told the lie. Her comment, "phrased in the past tense, that it had `gone too far' suggests both that N.D. was talking about an actual, past lie and that the lie was about a serious matter capable of `go[ing] too far.'" Id. at *6, 2003 Wash.App. LEXIS 1770 at *17 (alteration in original) (quoting 4 RP at 489). Furthermore, N.D. posed the question shortly after Hansen and N.D.'s mother discussed Dixon in N.D.'s presence. 4 RP at 489. In a light most favorable to Dixon, this evidence and resulting inferences reasonably connect N.D.'s lie to Dixon's alleged molestation. Id. at *6-7, 2003 Wash.App. LEXIS 1770 at *17-18."2. By [N.D.] (she was asking about herself, and not asking for another).
"3. The lie related to whether the molestation occurred, not to lies about breaking things."
¶ 39 In support of its position, the majority states "the trial court concluded that [Hansen] had failed to confirm that N.D.'s question about lying concerned the molestation allegations." Majority at 997. But the trial court's analysis was incorrect; Hansen did not need to confirm N.D's question about lying concerned the molestation allegations; the court needed merely to find "evidence sufficient to support a finding of the fulfillment of the condition." ER 104(b) (emphasis added).[4] And here, the evidence was sufficient to support such a finding.[5]
¶ 40 Even after "conditionally relevant" evidence is admitted, a jury must weigh its value and probative force to determine the 1001 ultimate question: whether Dixon molested N.D. See State v. Reil, 409 N.W.2d 99, 106 (N.D.1987) ("Once the evidence is admitted the question becomes one of credibility and probative force and the trier may ultimately disbelieve the proponent's proof and entirely disregard or substantially discount the persuasive impact of the evidence admitted. [ER 104(b)] requires only that the court admit evidence if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification. The rest is up to the jury.'" (quoting 1 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence ¶ 901(a) [01], at 901-16 to -18 (1983))). In the end, the jury may find the evidence so overwhelmingly indicative of abuse that N.D.'s question could not have been referencing the molestation charges. But this is a question for the jury and not for the courts.
¶ 41 Dixon was precluded from using Hansen's testimony for impeachment purposes under ER 613(b). Criminal defendants have a constitutional right to impeach prosecution witnesses with prior statements that are inconsistent with the witness's trial testimony. See State v. Dickenson, 48 Wash.App. 457, 470, 740 P.2d 312 (1987) (constitutional harmless error test applies to the erroneous refusal to allow a defendant to impeach a witness with a prior inconsistent statement). And reversal is required unless no rational jury could have a reasonable doubt about the defendant's guilt absent the error. State v. Spencer, 111 Wash.App. 401, 408, 45 P.3d 209 (2002). Contrary to the majority's determination that "`the untainted evidence is so overwhelming it necessarily leads to a finding of guilt' beyond a reasonable doubt," the court's error is not harmless as the entire case rests upon N.D.'s credibility, and evidence "poking holes" in her credibility would doubtless affect the outcome of the trial. Majority at 998 (quoting State v. Easter, 130 Wash.2d 228, 242, 922 P.2d 1285 (1996)). See State v. Neal, 144 Wash.2d 600, 611, 30 P.3d 1255 (2001) ("An error is prejudicial if, `within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.' State v. Smith, 106 Wash.2d 772, 780, 725 P.2d 951 (1986). Improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the evidence as a whole.").
¶ 42 The case should be reversed and remanded for a new trial.
It's here: the law of evidence on Spindle Law. See also this post and this post.
Wednesday, January 06, 2010
Admissibility Rules and Closing Argument: Parallel Worlds?
In Spindle Law's evidence module, I comment:&&&
There is some tension between the closing argument and admissibility rules. See, e.g., Samuel Gross, "Make-Believe: The Rules Excluding Evidence of Character and Liability Insurance," 49 Hastings L.J. 843 (1997). One of the recognized functions of the closing argument (or summation) is storytelling. In general, however, the rules regulating the admissibility of evidence at trial pay scant attention to storytelling. But cf. Old Chief v. United States, 519 U.S. 172 (1997). One of the recognized functions of storytelling, or narrative, in closing argument is to tell a persuasive story -- or even a gripping one -- and in this way (as well as in other ways) arouse and appeal to the sentiments and passions of the trier of fact (particularly a jury). But the language of the admissibility rules as well as the language that courts usually use to explain and interpret them usually characterizes "passion," "sentiment," and "emotion" as dangerous. See, e.g., Evidence Advisory Committee's Note on Federal Rule of Evidence 403 ("The case law recognizes that certain circumstances call for the exclusion of evidence which is of unquestioned relevance. These circumstances entail risks which range all the way from inducing decision on a purely emotional basis, at one extreme, to nothing more harmful than merely wasting time, at the other extreme."; "'Unfair prejudice' within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.") Sometimes it seems that the law of evidence and "effective trial advocacy" [live in] parallel worlds. Cf. P. Tillers, at A Sickening Closing Argument (blog post) (August 21, 2009)....There is a large body of literature (much of it in bar journals) on the art of the closing argument and on the role of appeals to emotion for effective oral advocacy in the closing argument. See, e.g., Ronald J. Matlon, Opening Statements - Closing Arguments (2009); Robert P, Burns, A Theory of the Trial 67-72 (1999, paperback 2001); Jacob A. Stein, Closing Argument: The Art and the Law (1969).
It's here: the law of evidence on Spindle Law. See also this post and this post.
Monday, January 04, 2010
The Importance of Checklists
I sometimes think of my theory of evidence marshaling in legal settings as doing little more than laying out different kinds of checklists that are important in pretrial fact investigation and for trials. This is why I have just ordered the new book by Atul Gawande, The Checklist Manifesto: How to Get Things Right (2009). (Gawande is a surgeon.)
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It's here: the law of evidence on Spindle Law. See also this post and this post.
History of Forensic Entomology
See Mark Benecke's A Brief History of Forensic Entomology.&&&
On forensic entomology in general see Education through Entomology.
A hat tip to Mary Thompson!
It's here: the law of evidence on Spindle Law. See also this post and this post.
Sunday, January 03, 2010
victim's specific acts --> victim's character --> victim's conduct ?
In State v. Fish, 213 P.3d 258, 263-272 (Ariz. Ct. App. 2009) the Arizona Court of Appeals refuses to follow Commonwealth v. Adjutant, 443 Mass. 649, 824 N.E.2d 1 (2005), and abandon the prevailing rule that when character, or disposition, is admissible in a criminal trial to show an alleged victim's conduct, the victim's conduct may be shown only by opinion or reputation and not with victim's specific acts. See the node Character of victim may be shown only by reputation or opinion in the evidence module of Spindle Law. The court distinguishes the use of a person's specific acts when (i) a victim's specific acts are known to a party such as a criminal defendant and the specific acts are introduced to show a legally-material fact such a defendant's fear of victim to support a defense such as self-defense and (ii) the character, or propensity, of a person is an essential element of a claim, charge, or defense.&&& The dynamic evidence page
Arizona's court of appeals graciously cites my revision of vol. 1 of Wigmore's monumental treatise on the law of evidence -- and I am appropriately grateful. However, I personally now favor the approach now taken in Massachusetts. Cf. Character Traits as Reference Classes and A Constitutional Right to Offer Character Evidence?.
Wednesday, December 30, 2009
Tuesday, December 29, 2009
Three Generations of the New Evidence Scholarship
The first generation of the New Evidence Scholarship emphasized the heuristic uses of mathematical analysis of evidence; it emphasized that numbers (especially as used in probability theory) could illuminate the logic and structure of factual inference in general and of particular problems of factual inference.Created with Rationale(tm)
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The second generation of the New Evidence Scholarship focused on mathematically-laden problems of scientific evidence (e.g., DNA evidence) and on problems of factual inference that seem tractable to statistical analysis.
The third generation of the New Evidence Scholarship (NES) also uses mathematical argument and analysis. But this variant of NES does not require or expect consumers of mathematical analysis to do computations. Instead, NES-3rd uses mathematics and computations to develop tools for deliberation about inference, tools that do not require or expect the user of the tool to do computations.
A key premise of this third generation of NES is this: rigorous analysis (including mathematical analysis) is required to design a tool that promotes or supports or facilitates logical inference by ordinary people about ordinary [non-scientific] problems but the tool thus produced must not require such ordinary people to do mathematical computations.Two major practitioners of NES-3rd are Douglas Walton and Tim van Gelder. (There are others.) Of course, the third approach to factual inference was, so to speak, there all along, at least in a germinal form: Wigmore's charting method (which appeared in print in 1937) anticipated key ingredients of the third approach. William Twining refurbished and modernized Wigmore's charting notations (and was among the very first to defend the importance of Wigmorean-style charting of evidential inference). David Schum married Wigmorean charting with mathematics and produced probabilistic inference networks. Working from left field (i.e., not starting within NES-1st or NES-2nd), Tim van Gelder is now effectively taking this progression to the final and critical stage. He is doing so by emphasizing how important it is that math- and logic-generated charts, diagrams, pictures, images, and, in general, conceptual tools present and portray problems of inference in a way that is intuitive and natural and intelligible to "ordinary" human beings (whose reasoning capacities are in fact extraordinary).
The most exciting and revolutionary developments in NES are yet to come. And some of the most exciting of these exciting developments are bubbling up from down under.
It's here: the law of evidence on Spindle Law. See also this post and this post.
The Brilliance of False Memories
Salvador Dali in THE COLUMBIA WORLD OF QUOTATIONS (Robert Andrews et al. eds., 1996), as quoted in Allison J. Garton, Comment: Reconciling the Incongruous Demands of Therapist-Patient Confidentiality and Falsely Accused Third-Parties, 2006 Cumberland Law Review 77, 77:&&&
The difference between false memories and true ones is the same as for jewels: it is always the false ones that look the most real, the most brilliant.
It's here: the law of evidence on Spindle Law. See also this post and this post.
Thursday, December 24, 2009
What are the purposes of the law of evidence and proof?
An opinion I read today (see below) got me to thinking (again) about the purposes of the law of evidence and proof and the constraints to which is it is subject. What are those purposes and constraints? How are they related to each other? Can questions about such purposes and constraints even be addressed without a theory of society? How can a lowly scholar of evidence and the law of evidence hope to develop such a theory (or even a theory of the workings of a particular society)? But can judges avoid matters such as "fairness," "truth-finding," "efficiency," "dignity of witnesses," and so on? If not, is it better for courts to talk explicitly about such considerations than to remain silent about such matters? If so, must not the lowly Evidence scholar do his or her best to explain the role that such matters play and should play in judicial proof (or in specific parts of it)? Or not?&&& &&& I &&&
See the node on the purposes of the law of evidence (and the material under it) in the evidence module of Spindle Law.
State v. Guinn, 114 Idaho 30, 39 at 39-41 (Idaho Ct. App. 1988) (Burnett, J., concurring):
I join the Court in setting aside the judgment of conviction and in remanding the case for a new trial. For guidance on remand, the Court has discussed the defendant's attempt to discredit a prosecution witness by showing that the witness used marijuana. The discussion focuses on I.R.E. 608(b). I write separately to offer a critical evaluation of Rule 608(b) and to comment on its application, together with other rules, in the present case.
Impeachment is a vexatious subject because it brings into conflict several objectives of our judicial system. On one hand, we seek to ascertain the truth in factual disputes. If there is reason to doubt the credibility of a witness, the triers of fact should be so informed in order to make an intelligent assessment of the testimony. On the other hand, we also strive for judicial efficiency. If challenges to the credibility of witnesses are not regulated in some fashion, trials may become sidetracked by the pursuit of collateral issues. In addition, we seek to uphold the integrity of judicial processes and to protect the dignity of persons who participate in them. If attacks on witnesses are unrestrained, citizen respect for -- and cooperation with -- the courts may be impaired.
Before the Idaho Rules of Evidence were adopted, the scope of impeachment was tightly confined. It reflected a dominant concern for efficiency, court decorum and witness protection. Impeachment was regulated by Rule 43(b)(6), I.R.C.P. This civil rule prohibited impeachment of a witness "by evidence of particular wrongful acts, except . . . [by] prior conviction of a felony . . . relevant to his credibility . . . ." Thus, it was impermissible to attack the credibility of a witness by attempting to show that he had engaged in bad acts, other than felony convictions, which called his character for truthfulness into question. Of course, if evidence of such bad acts was relevant to another issue in the case, it could be admitted -- but only for that limited purpose. E.g., State v. Dayley, 96 Idaho 527, 531 P.2d 1172 (1975); see generally REPORT OF THE IDAHO STATE BAR EVIDENCE COMMITTEE at C 608, p. 3 (December 16, 1983).
Today the Idaho Rules of Evidence and the similar federal rules reflect an increased concern for the truth-seeking objective of a trial. They broaden the opportunity to challenge the credibility of a witness on the basis of his prior misconduct. Rule 608(b) authorizes the trial judge, in the exercise of discretion, to allow inquiry upon cross-examination into any specific acts which are probative of the witness's character for untruthfulness.
The rule must be read carefully. It is important not only for what it says but also for what it does not say. It says that impeachment to show character for untruthfulness is limited to an inquiry upon cross-examination. The impeaching party may not introduce extrinsic evidence of prior bad acts for this purpose. However, the rule is silent regarding impeachment by specific acts to challenge credibility on other grounds. The rule says nothing, for example, about impeachment to show bias or improper motive for testifying. Commentators on the federal rule have treated this silence as pregnant -- that is, as an indication that extrinsic evidence can be used to show bias or improper motive on the part of a witness. See, e.g., 1 G. JOSEPH & S. SALTZBURG, EVIDENCE IN AMERICA Section 42.3 (1987). Indeed, some jurisdictions have added language to their rules of evidence explicitly distinguishing between impeachment to show character for untruthfulness and impeachment to show bias or improper motive. See, e.g., Rule 609.1, Hawaii Rules of Evidence.
The distinction, simply restated, is between a propensity to lie and a reason to lie. The witness with a character for untruthfulness has a propensity to lie; the witness with a bias or improper motive has a reason to lie. By allowing the issue of untruthful character to be raised only in cross-examination, but allowing bias or improper motive to be shown by extrinsic evidence, Rule 608(b) reveals an hidden hypothesis. The hypothesis is that the truthseeking objective of a trial is threatened less by a propensity to lie than by a reason to lie.
This hypothesis is grounded in the conventional wisdom that a propensity to lie is a general trait; it may or may not be exhibited on a particular occasion or on a particular subject. In contrast, a reason to lie is specific; it may be triggered by the occasion and subject matter of the trial itself. Accordingly, it is thought to be a more direct threat to the truth-seeking process.
Such conventional wisdom is valid in the abstract; but it breaks down when a propensity to lie actually manifests itself in the courtroom. If a witness on cross-examination denies a prior bad act which indicated a character for untruthfulness, and if it can be shown that the denial is false, the witness's lack of credibility is confirmed. He has demonstrated his willingness to lie under oath during the trial itself. The triers of fact would have strong reason to doubt his testimony on any issue. Their skepticism would be no less abiding than if the impeaching party had presented facts from which a possible bias or improper motive might be inferred. Nevertheless, Rule 608(b) prevents the triers of fact from learning that the witness has testified falsely about a fact relating to his character for untruthfulness. Extrinsic evidence to contradict the false testimony may not be presented. The cross-examiner must accept the witness's answer.
The anomaly is obvious, yet the limitation persists. One reason, perhaps, is that a crafty lawyer may be able to impugn a witness's character on cross-examination, without resorting to extrinsic evidence. As a distinguished federal judge has noted:
[T]he very question itself can convey the theoretically barred information to the jury. A skillful but unscrupulous cross-examiner can, with a great flourish of impressive-looking papers, ask the witness about incidents in his life in such detail as to time and place as to render his denials completely suspect.3 J. WEINSTEIN, WEINSTEIN'S EVIDENCE (1984), at 608-25 and 608-26. But if Rule 608(b) is intended, at least in part, to uphold the decorum of the court and to protect the dignity of witnesses, then Judge Weinstein's observation tells us that the rule is not working. It would be a strange logic that justifies a rule-imposed limitation on the ground that the rule can be circumvented anyway.
The other rationale for Rule 608(b) is judicial efficiency. The rule shortens a trial by avoiding a dispute over extrinsic facts relating to a witness's character for untruthfulness. Efficiency is a valid purpose. However, an absolute bar on extrinsic evidence accomplishes this purpose at a cost. It withholds from the triers of fact evidence that the witness has lied on cross-examination. Of course, this cost may be insignificant where the cross-examiner has succeeded in casting aspersions upon the witness by the use of thespian techniques. But in many cases the cross-examiner is neither so skillful nor so unscrupulous. In those cases the cost of an absolute rule is high.
Do we need the rigid restriction imposed by Rule 608(b) in order to achieve judicial efficiency? I think not. Elsewhere in the Idaho Rules of Evidence are provisions granting judges discretionary authority to prevent trials from becoming embroiled in collateral matters. Rule 403 authorizes a judge to exclude evidence, although relevant, "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." In addition, Rule 611(a) empowers the judge to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment."
Both of these rules authorize the judge to limit questions or presentations of evidence where the probative value is outweighed by other considerations. In my view, these rules are sufficient to serve the objective of judicial efficiency. There is no persuasive reason to add the narrow and absolute prohibition against extrinsic evidence of untruthful character now found in Rule 608(b). Although this prohibition has an historical lineage, and exists in the rules of many other jurisdictions, we should consider abolishing it in Idaho. It does not serve well the purposes ascribed to it, and it is not consistent with the flexible tenor of the Idaho Rules of Evidence, taken as a whole.
It's here (more or less): the law of evidence on Spindle Law. See also this post.
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Saturday, December 19, 2009
Friday, December 18, 2009
Bogus Science of Repressed Memory Also Lives Elsewhere (other than in Illinois)
See, e.g., Lacava v. Lacava, 907 N.E.2d 154 (Ind. App. 2009); Logerquist v. McVey, 196 Ariz. 470, 1 P.3d 113 (Ariz. 2000).&&&
But the junk science of repressed memory may finally be dead in some states. See generally cases on repressed memory evidence gathered in Spindle Law's evidence module.
It's here (more or less): the law of evidence on Spindle Law. See also this post.
Browser-based evidence marshaling: MarshalPlan in your browser
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