Now I think I know why Jersey City's expenditures wildly exceed Jersey City' ordinary revenues. It's not because Jersey city officials can't do higher mathematics such as arithmetic. It's because Council members such as Gaughan don't yet have a handle on the concept of counting. They don't know how to quantitate!
It's here: the law of evidence on Spindle Law. See also this post and this post.
I just caught the very tail end of her interview on WNYC's Leonard Lopate show. There are already -- at 1:10 p.m., less than an hour after the interview --, there are already 41 comments about the Clancy interview at the WNYC web site.
It's here: the law of evidence on Spindle Law. See also this post and this post.
The online magazine The Reasoner has an interview with Timothy van Gelder in its February 2010 issue. You should read this interview!
It's here: the law of evidence on Spindle Law. See also this post and this post.
It's here: the law of evidence on Spindle Law. See also this post and this post.
Let me again trumpet the fact that a team of my students in a course in fact investigation at Cardozo School Law undertook an investigation of Mayor Healy's administration about a year ago and found strong indications of possible corruption.
It's here: the law of evidence on Spindle Law. See also this post and this post.
A tiny little startup named Spindle Law has an interesting idea. They are building, in a kind of collaborative, Wiki-like way, a database of the legal rules that lawyers find in court decisions and in legislation. Their idea is that it’s pretty inefficient to get to those rules by searching and reading long court opinions. They are extracting and organizing the rules with links to the legal sources. They have a long way to go to prove that the concept works, but I like the way they are trying to turn the research process on its head.I call David Curle's remarks "encouraging" because I am the editor of Spindle Law's evidence module.
I take this occasion to remind lawyers, law teachers, law students, etc., that I would welcome their comments (in the evidence module) about rules and principles of evidence, their notes and thoughts on interesting new (or old) cases, and the like. Evidence is a large part -- very probably the largest part -- of the work of most litigators and trial judges. The handling of evidence in litigation is also a fundamental pillar of the rule of law. (Without reasonably accurate factual proof, the rule of law means little and is inefficient.) So let's have a national and worldwide conversation about the U.S. system of factual proof. Moreover, don't you have a yen to broadcast your personal views about legal issues and the law of evidence to the legal world and beyond? '
It's here: the law of evidence on Spindle Law. See also this post and this post.
The U.S. Supreme Court’s Payne decision opening the door to victim impact testimony in capital cases generally, and to victim character evidence particularly, has been controversial. The issue is whether a murder victim’s character is relevant to the moral blameworthiness of the defendant. Several mock jury simulation studies have shown that such evidence does influence jury decisions imposing the death penalty. The current study took a different direction and examined the nature and extent of actual victim character testimony in samples of death penalty cases in three states. Data were derived from 14 transcripts of the penalty phase of trials in each of three states: California, New Jersey, and Texas, states with different political and legal climates. Content analysis revealed that there were numerous references to victims’ character in the form of positive personality traits, in addition to descriptions of the impact the crime had on the victims’ families and friends. Qualitative analysis revealed that many witnesses were allowed to use photos, videotapes, and other personal items to portray the victim’s life. What emerges from this inside view of practices in courtrooms is disturbing in that the evidence allowed seems to exceed Payne’s already meager limitations.Spindle Law's discussion of character evidence and of relevance and materiality needs to have a discussion of the treatment of victim impact statements and evidence. Why don't you add something there, dear Reader? (Perhaps consideration should be given to the later Supreme Court decision Old Chief v. United States, 519 U.S. 172 (1997).)
Justice Stevens, dissenting in Payne v. Tennessee, 501 U.S. 808 (1991), mentioned my 1983 revision of volume one of the Wigmore treatise. Id. (citing 1 J. Wigmore, Evidence § 13 (P. Tillers rev. 1983)).
One interesting aspect of Old Chief is the way it attenuates or changes -- pick your poison -- the concepts of relevance and materiality, which have been said to be central to the American system of factual proof in trials.
Only in recent years has sustained attention been given to the possibility that emotion can facilitate as well as damage accurate inference. See, e.g., Reid Hastie, "Emotions in jurors’ decisions," 66 Brooklyn Law Review 991 (2001).
I lean to the view that "personality" is a predictor of behavior but that much evidence of personality that is admitted in trials is (a) too coarse to have much predictive value and (b) subject to too much abuse by the adversary process to have much predictive value. (But my generalizations are only generalizations and are themselves too coarse to be of much value for the analysis of -- or guesswork about -- specific character evidence problems.)
It's here: the law of evidence on Spindle Law. See also this post and this post.
It's here: the law of evidence on Spindle Law. See also this post and this post.
Definitions of Inference on the Web:
* the reasoning involved in drawing a conclusion or making a logical judgment on the basis of circumstantial evidence and prior conclusions rather ...
wordnetweb.princeton.edu/perl/webwn* Inference is the act or process of deriving a logical consequence conclusion from premises.
en.wikipedia.org/wiki/Inference* The act or process of inferring by deduction or induction; That which is inferred; a truth or proposition drawn from another which is admitted ...
en.wiktionary.org/wiki/inference* a conclusion derived from observations
www.handsontheland.org/lms/mod/glossary/view.php* A judgement based on reasoning rather than on direct or explicit statement. A conclusion based on facts or circumstances. For example, advised not to travel alone in temperatures exceeding fifty degrees below zero, the man in Jack London's "To Build a Fire" sets out anyway. ...
www.tnellen.com/cybereng/lit_terms/terms/Literary.Terms.2.html* is a logical guess based on evidence based on evidence in the text.
ridersenglish.edublogs.org/glossary-arranged-by-unit/* A general conclusion drawn from information that is given.
www.northwestern.k12.oh.us/curriculum/documents/glossary.doc* a conclusion one can draw from the presented details
kmhs.typepad.com/parrott_ap_english_langua/files/rhetorical_terms.doc* The skill of using the results of an investigation based on a premise.
dpi.wi.gov/standards/sciglos.html* In machine learning, inference is the process of deriving conclusions or making predictions based on existing information. See Wikipedia for more.
www.broad.mit.edu/annotation/conrad/glossary.html* making conclusions about a piece of literature when the connection is not provided in a piece of literature.
www.4classnotes.com/literary%20vocabulary.htm* is the forming of a conclusion from premises by logical methods. (Intro)
www.logic-classroom.info/glossary.htm* inferencing - This is the means by which the learner forms hypotheses, through attending to input, or using the situational context to interpret the input.
myopiczeal.blogsome.com/2005/03/17/definitions-of-words-in-our-glossary-of-terms/* The conclusions that one is able to draw from the data. Sometimes the numbers do not tell the whole story. Please see the section on How to use Canadian Cancer Surveillance On-Line. ...
dsol-smed.phac-aspc.gc.ca/dsol-smed/cancer/glossa_e.html* the process of reasoning whereby one statement (the conclusion) is derived from one or more other statements (the premises).
www.filosofia.net/materiales/rec/glosaen.htm
It's here: the law of evidence on Spindle Law. See also this post and this post.
This problem -- and the more general problem of drawing conclusions about a "population" based on a sample of the population -- reappeared (unsurprisingly) in United States v. Krasinski, 545 F.3d 546 (7th Cir. 2008).
In Krasinski the Seventh Circuit distinguished Shonubi II (and some other cases) by saying that in Krasinski, unlike in Shonubi (and in some other cited cases), the maximum and minimum amounts carried on each trip were known (pretty firmly, in any event). Id. at 552.
Otherwise, the Seventh Circuit held that the method used by the trial judge in Krasinski -- which was exactly the method originally used by Judge Weinstein in Shonubi (see Shonubi I) and condemned by the Second Circuit in Shonubi II: using the amount believed to have been carried by the drug mule on one trip to produce an average for all (apparently-)known drug-smuggling trips by the mule -- was not an abuse of discretion. The Seventh Circuit said nothing about the question that so occupied and bothered the mind of the Second Circuit: the use of "indirect" evidence to establish or estimate the total amount of the illegal drugs carried by a drug smuggler on all of the smuggler's drug-smuggling trips (that is, on all trips reasonably believed or reasonably shown to have been drug-smuggling trips). Compare my comment all evidence is circumstantial and indirect.
The Seventh Circuit said:
Krasinski maintains that the district court erred when it found him responsible for the sale of 112,000 pills. He contends he was only responsible for 30,000 pills and that any amount above that lacks sufficient indicia of reliability. A defendant has a due process right to be sentenced on the basis of reliable information, United States v. Bautista, 532 F.3d 667, 672 (7th Cir.2008), and a district court may not base its drug quantity calculation on pure speculation or “nebulous eyeballing,” United States v. Jarrett, 133 F.3d 519, 530 (7th Cir.1998). A seizure of the drugs involved in the offense, of course, provides reliable information regarding drug quantity. See Bautista, 532 F.3d at 672. Admissions in a plea agreement also conclusively establish the admitted facts. United States v. Warneke, 310 F.3d 542, 550 (7th Cir.2002) (“An admission is even better than a jury's finding beyond a reasonable doubt; it removes all contest from the case.”).
A district court may use a reasonable estimate of the quantity of drugs attributable to a defendant for guidelines purposes. United States v. Acosta, 534 F.3d 574, 582 (7th Cir.2008); see also U.S.S.G. § 2D1.1 cmt. n. 12 (“Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of the controlled substance.”). Here, Krasinski admitted in his plea agreement that he delivered between 5,000 and 30,000 Ecstasy pills on approximately eight to ten separate occasions. He also admitted delivering 7,000 pills on March 5, 2003. With these statements in mind, the district court first found that Krasinski delivered Ecstasy pills on seven occasions, a conservative figure in light of Krasinski's admission that he made eight to ten deliveries. The district court then took note of Krasinski's specific admission that he delivered 7,000 pills on one occasion. For the other six deliveries, the district court estimated that he delivered 17,500 pills each time, a figure he calculated by averaging the 5,000-and 30,000-pill figures. The result was a total of 112,000 pills.
As we have recognized before, arriving at sentencing determinations through averaging can be problematic. See United States v. Johnson, 185 F.3d 765, 768-69 (7th Cir.1999). “[A]t some point a court's estimation will seem less like a restrained approximation and more like unsupported conjecture.” United States v. Henderson, 58 F.3d 1145, 1152 (7th Cir.1995). A calculation based on a wide range of endpoints, for example, is cause for concern. Compare United States v. Sepulveda, 15 F.3d 1161, 1197 (1st Cir.1993) (using midpoint between four ounces and one kilogram to determine drug quantity erroneous) with United States v. Webster, 54 F.3d 1, 5-6 (1st Cir.1995) (upholding use of two ounces for circumstances where witness testified that one to three ounces supplied and eight ounces in instances where witness stated six to twelve ounces supplied). Extrapolating from a small number of known quantities also raises a red flag, especially when the maximum and minimum amounts are unknown. See Johnson, 185 F.3d at 769 (vacating sentence where amount carried on fourth trip determined only by looking to amount carried on three others); United States v. Shonubi, 998 F.2d 84, 89-90 (2d Cir.1993) (finding error in assumption that quantity of heroin possessed on one trip represented typical quantity on eight trips).
The calculation employed by the district court in this case was not the most conservative one it could have performed. The district court could have held Krasinski responsible for a one-time delivery of 7,000 pills, one delivery of 30,000 pills, and six deliveries of 5,000 pills, a calculation also consistent with the plea agreement. See Jarrett, 133 F.3d at 530-31 (approving conservative drug quantity approximation based on five months of undercover purchases and defendant's admissions). The result would have been a total of 67,000 pills, and, notably, a lower offense level for Krasinski. See Presentence Report at 6 (deeming Krasinski responsible for 80,000 to 240,000 Ecstasy pills).
Nonetheless, we cannot say that the district court's decision to hold Krasinski responsible for 112,000 pills was clearly erroneous. The district court based the number of deliveries and the range for the quantity of pills in those deliveries on numbers supplied by Krasinski himself. Significantly, unlike in Johnson, we know the maximum and minimum quantities involved. Cf. Johnson, 185 F.3d at 765. Moreover, Krasinski states in his sentencing memorandum that according to Misiolek, Ogonowski said Krasinski was responsible for about 100,000 pills, so a second source supported the decision to hold Krasinski responsible for between 80,000 and 240,000 pills, the range of pills in Krasinski's advisory guidelines range. And although Krasinski claims that Ogonowski would testify that Krasinski supplied only 30,000 pills, Krasinski cites nothing in support of his claim, and Krasinski admitted to supplying more than that in his own plea.
It's here: the law of evidence on Spindle Law. See also this post and this post.
Unctuous Uncle, a 50 year-old adult, is charged with the sexual molestation of his niece, a minor child, Nellie Niece. The case is tried in a federal district court before Judge Minimum Wisdom. You are Classy Clerk. You are Judge Wisdom's law clerk.
If permitted to testify, Nellie will be the government's chief witness. Shortly after the trial begins, the prosecutor offers to have Nellie testify that in 2007, when Nellie was four years old, Unctuous stroked her "wee-wee."
In response, the defense requests and the trial judge grants a voir dire hearing. Pike Piker, a social psychologist, then testifies for the defense that (i) he treated Nellie for six weeks in 2008, when Nellie was five years old, (ii) Nellie repeatedly told him that she believes that all men are devils, (iii) Nellie is a social psychopath, and (iv) female social psychopaths tend to be misanthropic and they tend to have sexual delusions.
After this testimony is presented to the trial court, the defense asks the trial court to bar Nellie from testifying at the trial. The defense asks, in the alternative, that Pike Piker be allowed to present to the jury the testimony that he presented to the trial judge. The prosecution opposes the defense motion for an order barring Nellie from testifying at the trial and it moves, in the alternative, for a trial court order barring Piker from presenting his testimony to the jury.
After hearing these motions and responses, the trial judge states, "I'm going to adjourn the trial for a day so that I can think things over.” The trial judge then turns to you and states:
Classy, I want you to write a memo for me. I want your memo in my hands in 24 hours or less. I want you to tell me if I should grant or deny either one or both of the defense motions. And, Classy, I want a classy memo. So don’t forget to do your homework. I mean that I expect to do some legal research; I can’t imagine that you can give me good answers without doing some legal research. So get to work.Write the memorandum and submit it to Judge Wisdom within 24 hours.
It's here: the law of evidence on Spindle Law. See also this post and this post.
It's here: the law of evidence on Spindle Law. See also this post and this post.
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.
It's here: the law of evidence on Spindle Law. See also this post and this post.
It's here: the law of evidence on Spindle Law. See also this post and this post.
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.
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.
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.
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.
It's here: the law of evidence on Spindle Law. See also this post and this post.
