Teaching Scientific (and Unscientific) Evidence

I have been assigned (at my request) to teach "Scientific (and Unscientific) Evidence" in the fall semester of this year. I have not taught such a course in many years. If you were teaching this two-credit course, would you:

1. Begin by discussing the "scientific method" and matters such as the "epistemology of science." (Is there such a thing? Are are there only epistemologies of sciences? And do practicing scientists as a practical matter worry about their epistemology or epistemologies? Does it matter what they worry about and what they don't?)

2. Discuss social sciences as well as the hard sciences. (If so, would you talk about the "really soft" social sciences and fields -- such as Freudian psychotherapy?)

3. Present students with courtroom simulations of introducing expert evidence at trial or cross-examining an expert witness.

4. Teach the students (and yourself) a little bit about statistics and statistical inference.

5. Teach the students a bit of probability theory.

6. Show a lot of films and video clips.

7. Invite a lot of visiting speakers and hope they agree to come and talk (at great length).

8. Run the course as a "problems" course -- leaving it to the students in the seminar to choose the topics for discussion and let them educate the rest of the class and you about their chosen topics.

9. Throw up your hands and say that the terrain of science is so vast and that our ignorance -- the ignorance of most of us in the law school world -- about "science" is so enormous that it is in principle impossible to teach "scientific (and unscientific) evidence" and tell the appropriate decanal superior you made a mistake and want to teach a different course.

And what should I assign for reading? Surely not a collection of judicial opinions that usually rest on profound misunderstanding of what science is all about! (Oh wait, that recent book by Jim Franklin may be just the ticket. I don't want to assign Rudolf Carnap, do I? Or do I? Perhaps I should have them read, not only Carnap, but also Popper, Wittgenstein, Bacon, Aristotle, Einstein, etc., etc..... But how much of that can they take? {At this point my soliloquy descends into incoherent mutterings and mumbo-jumbo.})

&&&

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

The New York Times and the Roman Catholic Church

The New York Times has the Pope in its cross-hairs. See Rachel Donadio, Pope May Be at Crossroads on Abuse, Forced to Reconcile Policy and Words, New York Times (March 26, 2010). The Times plainly has little use for the Pope.

I doubt that the Times' "revelations" -- in the past and most assuredly in the future -- will garner a Nobel Peace Prize for the paper. But I suspect that the Times does have a Pulitzer Prize in mind. Perhaps it has even grander things in mind: Perhaps it wants to discredit a religion that it sees as misogynous, homophobic, and reactionary. (I wonder: Is the Times aware of the Roman Catholic Church's vast array of social services for the poor and the downtrodden?)

I suppose I'm a curmudgeon. I don't believe that the unfolding campaign of the New York Times or the 2002 campaign of its junior sister -- the Boston Globe -- against [Catholic] "clergy sex abuse" are exemplars of investigative journalism. Both the Times and the Globe seem to swallow every morsel thrown their way by plaintiffs' tort lawyers. These news organs do not look at the evidence or reports of abuse with any significant degree of skepticism. For example, almost no claim of "long-repressed but recovered" (and financially-rewarding) memories of sexual abuse by priests seemed to be sufficiently outlandish to make the Globe wonder, "Could that really be?"

A footnote: On January 15, 2010, the Massachusetts Supreme Judicial Court rejected the appeal of the defrocked priest Paul Shanley, a former priest whose conviction for abuse rested at least in part on "repressed but recovered memories." Shanley was at the epicenter of the clergy abuse scandal that exploded in Boston in 2002. An interesting and revealing footnote to this sad story is that back in the 1970s and 1980s both the Boston Globe and the New York Times criticized as homophobic the Boston Archdiocese's efforts to reign in the activities of Shanley, the "street priest" (as he, the Globe, and the Times then characterized him). The Catholic hierarchy, it seems, is damned if it doesn't and damned if it does.

I think someone ought to write a book called The Scandal of the Clergy Sex Abuse Scandal. This book -- if someone had the courage to write it -- would tell the scandalous story of shoddy and systematically-biased reporting by Amertican news media about actual and alleged sex abuse by Roman Catholic clergy members.

Sometimes I genuinely fear for freedom of religion in this country. I think it's time for Catholics -- but not just Catholics -- to fight back at the current assault on the Catholic Church. I tend not to be an alarmist but I'm beginning to think (now & then) that the future of Catholicism in America really is at stake. And, as I said before, b'gosh, I'm not even Catholic! (Perhaps I'll convert to Catholicism just to show my sympathy and support.)

But when I reflect on matters, I think the Catholic Church will survive this assault. It has survived harsher assaults. I think it will do so again -- because, whether the New York Times knows it or not, the Roman Catholic Church is populated with millions of people who not only mean well, but also do well. That the Church's members and leaders sometimes fall down and do terrible things is, of course, undeniable. But I don't know any serious-minded person -- whether inside or outside of the Church -- who has said or thought that all of the members of the Roman Catholic Church are without fault or sin. I suppose the same could and must be said of any organization or association run by human beings -- including, yes, even the New York Times.

&&&

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Nice Words about Spindle Law and the Evidence Module

Simon Fodden of Slaw has some nice words to say about Spindle Law and its evidence module. He refers to Spindle Law as a "treatise by crowd."

Fodden gets it exactly right: the modus operandi of Spindle Law and its parts is legally knowledgeable swarm intelligence.

So, folks, get to it and contribute! I would love to have a discussion with you.

Should I say provocative and outrageous things just to arouse your ire and get you to pass on your insights?

No, I won't do that -- wittingly. There are enough real outrages in litigation to last several lifetimes of talk. For example, I think repressed and recovered memory is pure hokum that has contributed to many miscarriages of civil and criminal justice. Do you agree? Challenge me by making a comment or two in Spindle Law or by citing cases or literature that shows or suggests otherwise. (If you do that, I won't even argue with you -- at least not in a contentious or aggressive way. I promise! We will instead have -- or, better yet, start -- a discussion with bunches of interesting & engaged people.)

&&&

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

News Flash: The BBC and the New York Times Discover Sexual Sinners in the Roman Catholic Church!

Child sexual abuse is a horrible, grievous crime. Homosexual child abuse by priests is a terrible wrong.

But this non-Catholic (Lutheran) & heterosexual has a few questions:

1. Is it true that the Roman Catholic Church is "Benedict's church"? Is it true that the Roman Catholic Church is "fragile"? See Peter Schneider, Benedict's Fragile Church, New York Times (March 22, 2010).

Hasn't the Roman Catholic Church been around for at least 1,500 years? Doesn't it have more than 1,000,000,000 nominal members (some of whom are possibly more than "nominal")? Has it suffered from scandals before (e.g., the Italian Renaissance; see also "Martin Luther-Indulgences, Reformation")? Is it possible that the Catholic Church will outlast Peter Schneider, the BBC, and other such entities -- and that it will survive the clergy sex abuse scandal and, even thrive (if not necessarily in Western Europe)?

2. Do 60 or so discovered cases of possible child abuse by Catholic priests in Switzerland (during the past five or so decades?) constitute a "wave"? See Deutsche Welle story -- also carried by the New York Times -- reporting that the "wave" of child abuse cases had reached Switzerland.

How many Catholic priests have there been in Switzerland during the last five decades or so? Thousands? How many thousands?

3. Is the Roman Catholic clergy just a den of vipers, consisting of homosexual predators of children? Cf. comment by David Clohessy, National Director, SNAP ("Picture 5 priests in a rectory. One's caught masturbating, another's caught cruising gay bars, another's caught seducing congregants, another's caught viewing porn, and one's caught bringing kids to his bed room. None are apt to tell on the other. So more abuse happens and is concealed in Catholic settings.")

So are teachers in our high schools, junior high schools, and elementary schools nothing more than a collection of vipers & sexual predators?

Isn't it true -- is it true -- that child sexual abuse by secondary & primary school teachers is more common than among the Catholic clergy? Therefore, doesn't it follow that the teachers of our children are nothing more than sexual predators?

4. If a large number of cases of child sexual abuse by Catholic clergy have not been discovered somewhere -- such as Guam --, doesn't it follow that one must look again and look very carefully (and encourage victims to come forward and announce themselves to SNAP [and SNAP's tort lawyers?]) because -- after all -- there must have been large numbers of sex abuse by clergy in such a place. See SNAP Holding Meetings With [Alleged and Apparently Not-Yet-Discovered] Victims of Sexual Abuse In The Catholic Church [in Guam] Pacific News Letter (March 24, 2010).

Of course, there is no risk, is there, that actively encouraging people to come forward with charges of decades-old sexual misconduct -- and perhaps reap substantial financial rewards through civil litigation -- might induce some people to misremember the past? People are never as vile or as self-deceiving as that, are they? What a ridiculous thought!

5. To judge from the silence of the major media organs such as the BBC and the New York Times, there has been no "wave" of child sexual abuse by Protestant clergy.

What else could possibly explain the almost-complete silence of the media, tort lawyers, and some victims' organizations about child sexual abuse by Protestant clergy?

Was Sinclair Lewis wrong in suggesting that Protestant clergy sometimes commit sexual abuse? See his novel Elmer Gantry. See also Daniel Burke, "Study: 3 Percent of Women Victims of Clergy Sexual Advances,"Ethicsdaily.com (September 11, 2009)

.

6. It is often suggested that clerical celibacy is the root of the problem among the Catholic clergy. SNAP seems to think that celibacy is the root of the problem. See Comment of David Clohessy, National Director, SNAP ("Sometimes, sexually troubled young Catholic men will turn to the priesthood, hoping and praying that if they promise to be celibate, God will give them the gift of celibacy, and help them overcome the troubling sexual urges they feel. Obviously, often that doesn't happen.") Cf. Clifford J. Levy, A Flock Grows Right at Home for a Priest in Ukraine, New York Times (March 23, 2010).

But question: If celibacy of the Catholic clergy were abolished, would the problem of child sexual abuse go away or diminish? Or would the phenomenon just migrate?

Was I mistaken in believing that the most common instances of child sexual abuse are those committed by parents on their children?

Perhaps the rule should be: sex by clergy: OK; having children: not OK? Is this the idea here?

Is child sexual abuse by married adults less common than child sexual abuse by unmarried adults?

Should celibacy by Tibetan monks also be done away with? Or should we embrace celibacy there on the ground that celibacy in Tibet is quaint & admirable -- and an effective form of birth control in a part of the world that very much needs effective birth control, perhaps even more effective than the PRC's one child policy?

7. Am I missing the boat here? I think I must be missing something. Is the nub of the perceived problem homosexual child abuse? Is this what leads the BBC, Deutsche Welle, and the New York Times to focus on child abuse by Catholic clergy? If that's what they and SNAP think, why don't they say so?

I wonder what would happen to those homosexuals who would presumably no longer be interested (or as interested) in becoming Catholic clergy? What would they do? Stop being homosexuals? Would they become public school teachers? College teachers? Fitness instructors? Newspaper reporters? Members of Congress? Well, then, our children would be safer, yes? Institutions such as Congress can surely be counted on to make sure that their members do not engage in homosexual sexual misconduct; there is surely no sexual predation in Congress and other similarly venerated institutions against minors.

Or do SNAP, the New York Times, the BBC, etc., believe that homosexuals should be barred from being teachers, members of Congress, and so on?

A Modest Proposal

What a dimwit I have been! I apologize. A light has dawned in my foggy noggin. I now realize what the solution to the problem is. (You do know what the problem is, don't you, dear Reader?)

The solution to the problem is this:

All organizations that harbor any sexual predators must be done away with.

This of course includes, not just the Roman Catholic Church, but also Protestant churches, Jewish synagogues, high schools, middle schools, junior high schools (and, of course, elementary schools), universities, research institutes, newspapers, TV and radio stations, courts, police departments, large corporations, all large associations & organizations of any description whatever, any small association or organization in which there has been child abuse (as a prophylactic measure, the institution of the family should be abolished since it is in the family that child abuse happens most often), Congress, and so on.

Yes, I know: the destruction of such organizations & associations is a high price to pay. But at least we could all go to sleep at night knowing that our children are safe. (They would be sleeping safely in schools run by the government. They would be safe there.)

Would hanging or shooting the leaders of such organizations and associations be an even more effective remedy? Perhaps such capital remedial measures should be considered (along with, in the U.S., an amendment to the Constitution). Monetary penalties may not be enough. Prison may not be not enough. Even flogging may not be enough.

In any event, it is clear, isn't it, that if the Catholic Church, Protestant churches, schools, universities, newspapers, etc, were abolished, we would be rid of the pestilence of child sexual abuse, yes?

Well, OK. Perhaps I am getting carried away just a bit: I acknowledge that abolition or destruction of such organizations or institutions might be a bit extreme in some cases. I see a possible alternative:

Organizations should be required to make sure that their members regularly engage in gratifying sexual intercourse or other satisfying sexual activity with other freely-consenting adults.

For example, perhaps organizations should be required to levy fines against any of their members who choose to remain celibate. This way we would know that the people who come into contact with our children are sexually gratified and have no reason to seek further gratification by molesting our children.

Short of this sensible remedy (i.e., the imposition of fines against sexually inactive people for being sexually inactive), organizations & associations of every stripe should be liable in spades (i.e., many dollars) for every sexual misdeed -- known or not, foreseen or not -- of every one of its members. That's clearly necessary. And, of course, such monetary penalties fall far short of lynching or shooting -- even though it must be admitted that in some instances monetary penalties could destroy or severely damage institutions such as schools, churches, and hospitals.

We can & should invert Kant's dictum about the horror of punishing the innocent thus:

It is better for the world to perish than for any institution (particularly a religious one) that harbors & succors -- whether wittingly or unwittingly -- even a single sexual miscreant to escape severe punishment.

This reformulated maxim is a fitting tribute to our modern sense of justice and proportion; it reflects the enlightened temper of our times. See Editorial, The Pope and the Pedophilia Scandal New York Times (March 24, 2010).

&&&

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Can You Succeed if You Know Nuttin' about the Law of Evidence?

Under certain conditions ignorance of the law of evidence does not prevent a lawyer from succeeding at trial.

I exaggerate a bit. But there is more than a grain of truth in what I say -- and this reveals something important about the purpose of the rules governing the making of offers and objections at trial.

What the hard-nosed workings of the rules about objections and offers reveal is that these rules are designed solely for the convenience of the trial court and that the trial court has almost unfettered discretion to decide which party will bear the burden of providing the information that the trial court believes it needs to rule on an offer of evidence or an objection to evidence.

&&&

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

A Radio Show: Contextual Semantic Inference (or Something of the Sort)

This morning I heard a fragment of a conversation on the radio. A telephone caller was saying, "...and the guy said that for $700.." when the radio host broke in and said "he would fix the ducts" and the caller replied, "Exactly."

Interesting.

The host drew an inference.

Immediately.

And the host was correct.

The host drew the correct inference partly because he knew something about about the subject matter -- about some car, auto mechanics, whatever.

And the host's interjected conclusion was inference.

What shall we call this kind of inference without using ungainly language?

Contextual inference?

That's not pretty.

Domain-dependent inference?

More descriptive -- but a bit pretentious.

It was inference importantly based on knowledge of how some things work.

There's a lesson there for legal academics who theorize about inference.

The lesson has been known to AI people for quite a long time. Some of them like to talk about "ontologies."

They would make Aristotle proud. Sort of.

A theory of being perhaps should reach beyond and below things such as tables.

Still, the AI people are onto something. And they are wonderfully unabashed: they don't worry much about whether it's possible to have a theory of being.

&&&

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Strongly Recommended for Students of Fact Investigation

You simply must buy the second edition of Andrew Palmer's Proof, How to analyse evidence in preparation for trial (Lawbook Co., Thompson Reuters Australia, 2d ed., 2010).

The book is unique, it's right on the mark, it's relatively inexpensive, and it uses Timothy van Gelder's brilliant scheme for visualizing argument about almost anything -- including, it is now evident, argument from and about evidence.

&&&

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Framing a Question to Skew the Answer

"Witnesses to a car wreck, asked how fast the vehicles were going when they “smashed” into each other, will produce memories of faster speeds than witnesses asked to remember how fast they were going when they 'hit.'[n6] Note 6. Daniel L. Schacter, Searching for Memory 105 (Basic Books, 1996)." (Wallace, "The Puzzle of Memory: Reflections on the Divergence of Truth and Accuracy, 93 Judicature 50 (2009).)

&&&

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Are There Any Meaningful Constitutional Limitations on Legislatively-Mandated Use of Junk Science in Civil Litigation?

The question in the header is provoked by the enactment of state statutes requiring that state courts extend statutes of limitations in those cases in which an alleged victim of child sexual abuse allegedly "discovers" sexual abuse by "recovering" his or her "repressed" memory of the abuse.

By now it is fairly clear that claims of instantaneous "repression" of memories of sex abuse are hokum. But constitutional guarantees generally offer victims of alleged sexual abuse victims little protection against civil claims based on scientific hokum. And legislators seem to care little about the rights of -- or about the guilt or innocence of -- falsely accused sexual wrongdoers. It's a shameful picture all around.

&&&

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Thesis: Traumatic Events Are Generally Memorable

Susan A. Clancey, The Trauma Myth (2009) (footnote omitted):

...[M]ost research shows that the more traumatic an event is, the more likely it is to be remembered. Further, there is no clear neurobiological evidence that repression (the mind immediately and automatically erasing a memory) is even possible.

&&&

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

The Trauma of Researching Sexual Trauma

Susan A. Clancey, Ph.D., who believes both that child sexual abuse is widespread and that it does great harm, writes:

When I first began my graduate work at Harvard, a respected psychiatrist at Harvard Medical School gave me some addvice. He told me that I should avoid studying sexual abuse. It was just too controversial, too sensitive, and too politicized. He said that advocacy would always outweigh truth, and emotions would always override data. At the time I nodded solemnly, wondering what he was getting at. Once I published my research, it made perfect sense.

All hell broke loose. I was bombarded with accusations that I was hurting victims even more than they had been and that I was a friend of pedophiles.

Susan A. Clancey, The Trauma Myth (2009).

&&&

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Can You Remember Something That Didn't Happen?

I am referring to false recovered memories, not to a logic puzzle.

Stephen Porter, John C. Yuille, and Darrin R. Lehman, The Nature of Real, Implanted, and Fabricated Memories for Emotional Childhood Events: Implications for the Recovered Memory Debate 23 Law and Human Behavior 517 (1999):

Abstract

A central issue in the recovered memory debate is whether it is possible to "remember" a highly emotional incident which never occurred. The present study provided an in-depth investigation of real, implanted, and fabricated (deceptive) memories for stressful childhood events. We examined whether false memories for emotional events could be implanted and, if so, whether real, implanted, and fabricated memories had distinctive features. A questionnaire was sent to participants' parents asking about six highly emotional, stressful events (e.g., serious animal attack) which the participant may have experienced in childhood. Next, across three sessions, interviewers encouraged participants (N = 77) to "recover" a memory for a false event using guided imagery and repeated retrieval attempts. In the first interview, they were asked about one real and one false event, both introduced as true according to their parents. In two subsequent interviews, they were reinterviewed about the false event. Finally, after the third inquiry about the false event, participants were asked to fabricate a memory report. Results indicated that 26% of participants "recovered" a complete memory for the false experience and another 30% recalled aspects of the false experience. Real, implanted, and fabricated memories differed on several dimensions (e.g., confidence, vividness, details, repeated details, coherence, stress). These findings have important implications for the debate over recovered and false memories.

&&&

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

What Makes a University Great?

Jonathan R. Cole, The Great American University: Its Rise to Preeminence, Its Indispensable National Role, Why It Must Be Protected 11-12 (2010):

What has made our universities so distinguished is not the quality of our undergraduate education. Other systems of higher learning, including our own liberal arts colleges, compete well against our great universities in transmitting knowledge to undergraduates. At its best, undergraduate education in the United States is exceptionally good, and at its worst it is very poor, but this is simply not what distinguishes our great universities from lesser ones. Nor is it our training of professional graduate students that makes our universities the greatest in the world, although we do that very well in comparison with many other nations. In short, although the transmission of knowledge is a core mission of our universities, it is not what makes them the best institutions of higher learning in the world.

We are the greatest because our universities are able to produce a very high proportion of the most important fundamental knowledge and practical research discoveries in the world.

&&&

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Trial Planning & Interview Planning

I have told my Fact Investigation students that planning for a witness interview is often somewhat like planning for trial.

This leaves the question: What does planning for trial involve?

The answer: Many things.

But some of the things one must usually plan for are shown below:

In this trial plan the trial lawyer has struggled mightily to order the calling of the witnesses so that together they tell a story that begins at the beginning, moves to the middle, and ends at the end. As you can see, the lawyer has largely but not entirely succeeded. Such is life -- and such are the vagaries of the evidence that witnesses have in their heads and of the legal rules that govern the calling and re-calling of witness.

Now an interview is not an exact replica of a trial. Indeed, there are many differences between trials and pretrial interviews of witnesses. But the requirements of possible trials sometimes do and should cast a backward shadow on pretrial interviews. (Of course, one might wonder how a thing that does not yet exist and may never exist can cast a shadow on an earlier event. But that is a metaphysical question that I leave for another day.) So one might well decide -- and rationally and sensibly so -- that a pretrial interview should be designed in part to ferret out, if possible, evidence that would or might satisfy the requirements for victory at trial. One possible witness interview plan, thus, might look like this:

A different witness interview plan might look like this:

Of course, neither of the above interview plans is comprehensive. An interviewer might have and almost certainly will have interview objectives in addition to those sketched above. For example, a central objective might be to establish rapport with the witness. Another objective -- sometimes a key objective -- might be to explore the credibility or bias of the interviewee. Yet another objective might be to see if the witness' testimony presents certain themes that may arise during the testimony of other witnesses. And so on. But the multiplicity of the interviewer's objectives should not lead the interviewer to abandon all planning. To to do so is usually fatal.

&&&

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Authenticating Photos: How Many Modes of Manipulation Are There (and, Boy, Are They Easy To Do)

There was perhaps a time when the business of authenticating photographs and images didn't attract much attention. With the advent of the digital age, that lack of interest had better stop. See David Pogue, Photoshop and Photography: When Is It Real?, NYTimes (Feb. 25, 2010)

&&&

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

There Is a Problem of the Complexity of Evidentiary Minutiae in Litigation. What Is the Problem of the Complexity of Evidentiary Minutiae?

It is often said, in different contexts and for different purposes, that the phenomenon of a large amounts of evidentiary details in litigation presents a problem of complexity. But what is complexity?

Complexity is a complex concept. :-) In the the March 2010 edition of The Reasoner Alan Baker of Swarthmore writes:

There is no single, agreed upon definition of what it is to be complex, but rather a cluster of related notions covering both epistemological and ontological aspects of complexity. Of those most relevant to logic are definitions of algorithmic complexity arising from information theory, and applied to strings in some specified formal language. The best-established of this class of definitions is Kolmogorov complexity (KC). The KC of a string of binary digits is measured by the length of its shortest description. Thus the string “101010101010101010101010” can be (fully) described as “12 repetitions of ‘01”’, whereas the most efficient way to describe a disordered string such as “011000101011101101100010” may be to write down the entire string. One implication of the KC measure is that random strings have the highest complexity.

This understanding of the concept of complexity is to some degree (but only to some degree) not applicable to the problem of multitudes of evidentiary minutiae in litigation because what is often wanted is, not a shorthand way to sum up lots of details, but an effective way to bring to mind or keep in mind large amounts of evidentiary minutiae. (There is a good reason why we often want to keep evidentiary details and detailed arguments about such details alive in our minds. I may discuss that point at some other time.) Nonetheless, the information theorist's understanding of complexity is suggestive. It reminds us that a memorable way of classifying -- of quasi-summarizing -- details helps to keep large quantities of details in mind. (Random details are much, much harder to remember.)

Literal visualization of evidentiary details and of arguments from and about evidentiary details sometimes makes a direct attack on the problem of complexity because some types of visualization -- such as Timothy van Gelder's -- are designed to actually keep before the human mind (to some extent) the many details that need to be kept in mind -- to some degree. The emphasis here is in part on modes of representation that are easy to digest -- that are, in that sense, extraordinarily "user-friendly." (In an e-mail message Tim van G once called his method "extrospection." I like his neologism.)

Key point: The mind must be able to flit back and forth, easily and quickly, between different agglomerations of details and different parts (including "evidentiary atoms") of those agglomerations.

&&&

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Is Racial or Religious Prejudice a Character Trait or Is It Something Else? And Why Should You Care?

Racial prejudice and religious prejudice are obnoxious weeds. Why does it matter whether they're called character traits or whether they're called something else?

One reason why it matters what they're called is that the American "character rule" bars the use (in a trial) of a person's character to show the person's conduct. The American character rule does not bar the use of a person's characteristics, features, feelings, or thoughts when those characteristics are not -- are not considered to be -- character traits, dispositions, or propensities. See the beginnings of a treatment of this point at Is racial prejudice or a similar prejudice admissible to show conduct? in the evidence module of Spindle Law.

I also discussed this question years ago: many years ago I published some words about the question whether prejudice is or is not character. I did so in my revision of the first volume of Wigmore's Treatise. It is always gratifying to see a court acknowledge this -- as did a California court, albeit in an "unpublished" opinion:

A Question Revisited: Is Racial Prejudice or Animus a Character Trait or a Motive for Purposes of the Character Evidence Rule?

Bryant v. Sara Lee Corp., 2009 WL 378849 (Cal. App. 2009) (opinion not officially published):

African-American Plaintiffs brought a civil action on behalf of themselves and others against their former employer Sara Lee and their former supervisor Wyche for employment discrimination, intentional infliction of emotional distress, and other causes of action. Plaintiffs' claims rested in part on the employer's alleged creation or sufferance of a work environment hostile to African-Americans. Plaintiffs claimed that Wyche created this hostile environment and inflicted emotional distress by racial slurs he made at the workplace.

Leo Bryant (Bryant) and Ronald Amey (Amey) seek reversal of the judgment following the jury trial on their claims for racial harassment and intentional infliction of emotional distress. Their primary claim with respect to the trial is that the court erred in excluding evidence under Evidence Code section 352 of offensive comments by their supervisor, respondent Robert Wyche (Wyche), made at other times, other locations, or about other protected groups."

Note by Tillers: Plaintiffs' claims were apparently based on events that allegedly took place sometime after 2005.

The [trial] court granted the motions to exclude evidence of lawsuits or complaints of racial harassment or discrimination filed by individuals other than the plaintiffs, testimony or references to testimony of the plaintiffs in a different case against Sara Lee and Wyche, references to specific racial slurs and comments made by Wyche in the 1970's and 1990's, statements or testimony by Leo Montoya regarding ethnic slurs by Wyche, statements or testimony by Glen Lefort about a racial comment made by Wyche prior to Bryant's and Amey's employment under Wyche, statements or testimony by employees about interactions with Wyche in depots other than Menlo Park or Redwood City or at times other than when Bryant and Amey worked under Wyche, and statements or testimony about actions or statements by Wyche "that were not shared with [Bryant and Amey] during the period they worked under Wyche."

The excluded evidence fell into three general categories: evidence of racial slurs made by Wyche before Bryant or Amey were employed by Sara Lee; evidence of comments made before Wyche began supervising Bryant or Amey or about which they did not learn during their employment; and evidence of slurs made by Wyche about protected groups other than African-Americans. Sara Lee and Wyche maintain that the excluded evidence was not relevant, was inadmissible character evidence, and was more prejudicial than probative under Evidence Code section 352."

Much of the evidence excluded by the court could be considered "propensity evidence," barred under Evidence Code section 1101. (Evid.Code, § 1101, subds.(a), (b).) "It has long been the rule, of course, that evidence of uncharged misconduct is inadmissible to establish a defendant's propensity to commit the offense charged. The bar on the use of such 'propensity evidence' is not that it lacks relevance. Rather, it is the concern that such evidence may be regarded by the trier of fact as too relevant, 'provoking' ... 'an overstrong tendency to believe defendant guilty' based on the commission of the prior ac[t]...." (People v. Ortiz (2003) 109 Cal.App.4th 104, 111, citing 1A Wigmore on Evidence (Tillers rev.1983) § 194, at p. 1859.) Evidence of a prior act may, however, be admissible "to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident ... other than his or her disposition to commit such an act." (Evid.Code, § 1101, subd. (b), italics added.)

Bryant and Amey maintain that evidence of Wyche's "repeated misconduct" in uttering racial slurs since the 1970's was relevant "[f]or purposes of punitive damages [because] 'a recidivist may be punished more severely ...,' " not for demonstrating propensity. Assuming arguendo that this evidence would have been relevant to the issue of punitive damages, the parties stipulated that trial on the issue of punitive damages would be bifurcated. The jury rendered a defense verdict, and consequently never reached the issue of punitive damages. Accordingly, this evidence was not relevant at the trial of the liability issues.

&&& The appellate court thus apparently concluded that Whyche's racial slurs about other groups -- other African-Americans -- or at other times were inadmissible to show Wyche's conduct on other occasions, his conduct while plaintiffs worked under his supervision.

The appellate court affirmed the judgment for the defendants.

As I (proudly, or vainly) noted earlier, this opinion cites my revision of Wigmore's treatise. But, but, but ... the court's opinion does not mention a different part of my revision, a part that that mentions several California cases holding that under some circumstances racial prejudice is something other than "propensity" or "character."

So it goes.

&&&

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Is Legal Education of the Public Bad for Us?

David Benke and two other Colorado middle school teachers tackled and disarmed a gunman who was shooting children. "After being subdued, the shooter 'said he was going to sue us,' Benke recalled." (Jeremy P. Meyer, Hailed as hero, math teacher leapt to stop attack, Denver Post (Feb. 23, 2010))

&&&

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

A Theory of the Trial by Robert Burns

The book A Theory of the Trial (1999) by Robert Burns really is a very interesting and important book even for -- or especially for -- Evidence specialists.

Burn talks much about narrative. Today even the United States Supreme Court talks -- occasionally -- about the role of narrative in the trial. See Old Chief v. United States, 519 U.S. 172 (1997). But the marriage of the law of evidence and of story-telling remains incomplete. Why? Is it because we do not yet know how to harmonize what Burns calls the "Received View of the Trial" (Chapter 1) with a view that takes into account matters such as the evaluative activities of the jury, the importance of theme at the trial, and so on?

Many of us -- probably most of us, thank goodness -- do wish to preserve the trial's emphasis on the search for the "truth." But it is foolhardy to think that an acceptable search for the truth can be achieved if we ignore, for example, many of the ways the jury thinks about and makes sense of what goes on in the courtroom.

In one very interesting section (in Chapter 5) Burns discusses "Features of the Trial Too Basic to Be Noticed and Preliminary Notes on Their Significance." Sometimes one must be a visitor from Mars to notice the profound impact of the familiar. On a visit to Belfast many years ago I noticed how the barristers in a trial paused for some moments after each one of their questions was answered by a witness. I wondered why. Then I noticed a scrivener who, apparently, was writing everything down, laboriously, by hand. I think (but I am not sure) the barristers paused to give the scrivener time to do his job. This, of course, had a noticeable effect on the pace of examination and cross-examination.

&&&

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Books 'n Things

&&&

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.