New Published Papers in Law, Probability and Risk

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Tattoo Evidence: The New - the Old? - Gold Standard?

Curtis Krueger, Police say tattoo evidence ... helps catch more crooks Tampa Bay Times (Sept. 3, 2012):

Many Floridians have learned to their dismay that their unique ink can help police catch them — and persuade juries to convict them.

Tattoo evidence isn't as high-tech as DNA evidence, or as new. And a tattoo alone probably won't send anyone to prison without additional evidence to support it.

But tattoos have exploded in popularity, and police agencies increasingly photograph, catalogue and distribute them. ...

[snip, snip]

A few tattoos figure into "dumb criminal" stories from the Tampa Bay area and beyond. Take Sean Eric Roberts, accused in 2009 of breaking into a home in Riverview. He was identified by the outline of the state of Florida, helpfully inked onto his face.

And, in what may be the most bizarre example of body art imitating life, a California man named Anthony Garcia was convicted of murdering a man outside a liquor store. The case had gone unsolved until a Los Angeles County sheriff's sergeant was sorting through photos and saw one of Garcia's chest. It was covered with a tattoo depicting the murder scene.
But not every tattoo is helpful, said Mike Puetz, a St. Petersburg police spokesman and former homicide sergeant. All kinds of people seem to have inscribed themselves with crosses, hearts and skulls, so those don't exactly separate anyone from the crowd. But when a guy tattoos his girlfriend's name in cursive on his neck, that's a different story.
[snip, snip]
Police have checked out tattoos for decades, but computers now make the job easier. Many police agencies enter descriptions of tattoos into computer databases whenever people get arrested.
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More Slouches, More Drunkards, but More Innovators?

Michael Powell,  A Redoubt of Learning Holds Firm NYTimes (Sept. 3, 2012) (quoting Paul Nurse, President, The Royal Society of London for Improving Natural Knowledge a/k/a the Royal Society):
"'The U.S.A. has a very strong work ethic, and you keep a very close eye to the cutting edge,' he says. 'We are a bit lazier. We drink more. But sometimes the science we produce is rather quirkier and more innovative.'”
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Harvard College

Richard Perz-Pena, Harvard Students in Cheating Scandal Say Collaboration Was Accepted (August 31, 2012) (snippets):

In years past, the course, Introduction to Congress, had a reputation as one of the easiest at Harvard College. Some of the 279 students who took it in the spring semester said that the teacher, Matthew B. Platt, an assistant professor of government, told them at the outset that he gave high grades and that neither attending his lectures nor the discussion sessions with graduate teaching fellows was [sic] mandatory.

“He said, ‘I gave out 120 A’s last year, and I’ll give out 120 more,’ ” one accused student said.

[snip, snip]

Harvard University revealed on Wednesday that nearly half of the undergraduates in the spring class were under investigation for suspected cheating, for working together or for plagiarizing on a take-home final exam. Jay Harris, the dean of undergraduate education, called the episode “unprecedented in its scope and magnitude.” 

[snip, snip]

An accused sophomore said that in working on exams, “everybody went to the T.F.’s and begged for help. Some of the T.F.’s really laid it out for you, as explicit as you need, so of course the answers were the same.”

He said that he also discussed test questions with other students, which he acknowledged was prohibited, but he maintained that the practice was widespread and accepted.

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But they're all above average, aren't they? Don't they all deserve As?

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Ranking Heterogeneous Entities - such as Universities and Law Schools

Malcolm Gladwell, The Order of Things, New Yorker (Feb. 14, 2011). 

Gladwell discusses, inter alia, the difficulty of ranking Penn State and Yeshiva University with a single set of criteria. (In 2011 US News ranked Penn State 47th and Yeshiva University 50th.)

Are even faculty members "heterogeneous entities"? I suppose they are.
Would you rank Einstein above Beethoven or vice-versa? Which of the two is better or higher than the other?


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Jury Foreman in Samsung-Apple Trial Has a Smartphone-Related Patent!

Can the result in the Apple-Samsung patent trial stand?

The foreman said "that the intent was to send a message to Samsung that 'patent infringing is not the right thing to do.'"

But it turns out that the jury foreman "has a patent that could be used in smartphones."

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Roger Fisher Dies

New York Times Obituary: Roger Fisher
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Justices of the Australia High Court on Relevance & Sexual Propensity Evidence

In BBH v R, B76/2010, 2012 HCA 9 (High Court of Australia, 28 March 2012), Chief Justice French, dissenting, wrote (footnotes omitted):

On 25 January 2006 an indictment was presented against the applicant in the District Court of Queensland alleging a number of sexual offences against the Criminal Code (Q) (''the Code'') in relation to his daughter (''the complainant''). The complainant was born on 5 July 1983. The offences were alleged to have been committed at different times between 1987 and 1999. The indictment contained 12 counts. The first count charged that, between 3 July 1989 and 31 March 1999, the applicant had maintained an unlawful sexual relationship with the complainant contrary to s 229B of the Code. There were six counts of unlawful and indecent dealing when the complainant was under 14 and under 16 years of age. In four counts it was alleged that the applicant had sodomised the complainant. On another count it was alleged that he unlawfully procured the complainant to do an indecent act when the complainant was under 12 years of age.
[snip, snip]
The application was concerned with the reception at trial of evidence, given by the applicant's youngest son, concerning an uncharged incident involving the applicant and the complainant, which the son said he had observed in 1994 or 1995. The son, who was 10 or 11 years of age at the time of the incident, said that while on a farm holiday with the applicant, the complainant and his older brother, he had observed the applicant and the complainant together at the caravan in which they were all staying. The complainant was undressed from the waist down and bending over. The applicant had his hand on her waist and his face close to her bottom. After making a statement to the police in 2005, the son volunteered to the applicant's partner that what he saw was consistent with the applicant looking for an ant bite or a bee sting. He gave evidence to that effect and said he saw nothing untoward about the incident. The complainant did not recall the incident, which did not follow the pattern of conduct of which she gave evidence. The applicant denied it ever occurred.
The son's evidence was admitted, over objection, as propensity evidence tending to show ''a guilty passion between the accused and the complainant.'' It should not have been admitted. It was equivocal. It could achieve relevance only by a process of reasoning conferring probative significance upon it by reference to direct evidence of the conduct it was adduced to prove. Its prejudicial effect was the invitation it offered to circular logic.
[snip, snip]
The question of relevance

The evidence of the complainant's brother was admitted on the basis that it was propensity evidence. That term includes, but is not limited to, what has been called ''similar fact evidence'', ''relationship evidence'' and ''identity evidence''. In the context of sexual offences it extends to evidence said to demonstrate ''guilty passion'' or sexual interest or feeling towards another. In so saying, I agree with the cautionary remarks of Hayne J that the adoption of classificatory labels can obscure the proper identification of applicable principle. In this case the key principle is relevance. All evidence must pass the threshold test of relevance which is the necessary condition of admissibility. As was said in Smith v R :

"Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received."

Relevance is determined by reference to the content of the proposed evidence and the issues at trial, including the elements of the offences with which the accused is charged, issues about the facts constituting those elements and issues about facts relevant to facts in issue. There being no applicable statutory test of relevance under the Evidence Act 1977 (Q), the court is in the realm of the common law.

[James Bradley] Thayer wrote that ''[t]he law furnishes no test of relevancy. For this, it tacitly refers to logic and general experience''.  According to Stephen's Digest, in a definition adopted in the eighth Australian edition of Cross on Evidence, ''relevant'' means that:

"[A]ny two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present or future existence or non-existence of the other."

Logical relevance is a precondition of admissibility. It is not itself a rule of law. It does not incorporate questions of sufficiency. As Tillers stated in his revision of Wigmore:

There is a basic distinction between the relevancy of evidence and its sufficiency. In the immortal words of Professor McCormick, ''A brick is not a wall.'' (citations omitted)

In the context of sexual offences, the logical relevance of propensity evidence said to demonstrate ''guilty passion'' was simply explained in the 1979 [James H.] Chadbourn revision of Wigmore's Evidence in Trials at Common Law:

The evidence as offered ... consists in conduct, and from this the first inference is to the then emotion, from this next to the emotion at the time charged, and from this to the act charged.

In this case the acts in question were those alleged in the substantive counts of sodomy and unlawful and indecent dealing and the acts, charged or uncharged, which might be relied upon to constitute the offence, alleged in count 1, of maintaining an unlawful relationship of a sexual nature contrary to s 229B(1).

Typically the cases about the admissibility of propensity evidence in relation to sexual offences have been decided on the premise that logical relevance has been established. The species of propensity evidence designated ''similar fact evidence'' has been admitted or excluded by reference to whether or not the probative force of the evidence outweighs its merely prejudicial effect. Evidence excluded by this criterion is excluded because of:

the concern of the law about the prejudicial effect of such evidence and ''the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused''. (citation omitted)

In Director of Public Prosecutions v Boardman , which is said to have marked a shift from admissibility conditioned upon accepted categories of uses of propensity evidence to admissibility conditioned upon cogency, Lord Wilberforce said:

The basic principle must be that the admission of similar fact evidence ... is exceptional and requires a strong degree of probative force. This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence.

That passage was quoted with approval by Mason CJ, Wilson and Gaudron JJ in Hoch v R . Their Honours' reasons left open the possibility that a question of admissibility might collapse into a question of logical relevance if the tendered evidence lacked any probative force. Their Honours posited the case in which the existence of a rational view of similar fact evidence inconsistent with the guilt of the accused ''destroys the probative value of the evidence which is a condition precedent to its admissibility.'' In that limiting case, the evidence would be capable of proving nothing about any fact in issue. In Phillips v R the court observed that:

On one view, the problems presented by the tender of similar fact evidence are merely problems of relevance. On another view, evidence tendered as similar fact evidence must first be assessed for relevance, and, if that hurdle is overcome, must satisfy some additional test based on probative force. (citations omitted)

Although there was reference to the exclusionary rule for propensity evidence enunciated in Pfennig v R , the problem presented by the complainant's brother's evidence in this case was one of relevance. It was a limiting case of the kind adverted to in Hoch. To subject it to the Pfennigcalculus is to do no more in this case than to take a path that leads, in any event, to a conclusion of logical irrelevance.

The evidence was irrelevant because it was equivocal. As counsel for the applicant said, all the complainant's brother was able to give was a snapshot of an incident. The brother offered, in retrospect, an innocuous explanation for what had occurred. Whatever arguments might be constructed to support the proposition that, for reasons to do with the potential consequences of his testimony for his father, he was stating a theory in which he did not believe, the explanation he gave was rationally open. His evidence was not admitted as evidence of an uncharged act although, as noted earlier, the trial judge's directions may have left the jury with the belief that they could treat it as such. Despite being admitted as evidence of ''guilty passion'' it was not probative of a sexual act. In the circumstances, if it was not probative of a sexual act, it was not probative of guilty passion.

END OF EXTRACT FROM OPINION OF CJ FRENCH

Tillers:

French's bottom line conclusion that the evidence was irrelevant may or may not make sense. But the notion that evidence is irrelevant because it is "equivocal" does not make sense if one accepts that evidence is relevant (in the eyes of the law) if the evidence increases or decreases the probability of a legally-material fact to the slightest degree. But perhaps Chief Justice French was being just a bit careless with the language he(?) chose to use. Perhaps French's rationale really has to do with the notion of conditional relevance, which, as commonly explained in the United States, goes beyond the principle, or requirement, of relevance. That this is the explanation for French's conclusion about the irrelevance of the evidence is suggested by the following comment by French, a comment that buys into the "bootstrapping" objection (an objection now generally rejected in the United States): "The jury were effectively invited to engage in circular reasoning. The evidence itself could only be characterised as evidence of guilty passion if some additional element of conduct at the farm, not observed by the brother, was to be inferred. Alternatively, the jury were invited to characterise the incident as indicative of sexual interest. Neither of those inferences was open without reference to evidence which the brother's testimony was adduced to support. The only way in which the brother's evidence gained probative force was by a process of circular inference. It invited reasoning from conclusion to conclusion. That it indicated guilty passion could only be inferred by referring to the very evidence which it was adduced to support. The testimony should not have been admitted. It carried with it its own rational explanation consistent with the absence of any guilty passion."

See the separate opinion of Justice Gammow, also dissenting. Gammow discusses the harmful effects of the use of bad labels, or classifications, such as "relationship evidence" in sex crime cases. In the course of that opinion, Justice Gammow wrote (footnotes omited), "This court's decision in Pfennig, especially in the light of its earlier decisions in Markby v R , Sutton v R , Hoch v R and Harriman v R  and the decision of the House of Lords in R v Boardman , must be read as recognising that the supposed categories of exception [to the inadmissibility of similar fact evidence] are derived from a more fundamental principle: that the evidence of other discreditable conduct of an accused is admissible only if the evidence has particular probative value (or 'cogency' or 'particular relevance' or 'strength'). And Pfennig requires that this more fundamental principle be applied to determine whether evidence of an accused's other conduct may be admitted. That is, Pfennig decided that other discreditable conduct by the accused is admissible -- has sufficient probative value -- only where the evidence, if accepted, bears no reasonable explanation other than the inculpation of the accused in the offence charged. This, not whether the evidence falls into some supposed category of subject matter, is the question for decision."

The opinions of several Justice in the majority on the question of the relevance of the admitted evidence differed markedly from French's opinion. For example, Justice Heydon wrote:

In assessing questions of relevance in relation to admissibility, it is not for judges to speculate about possible constructions of the evidence which are adverse to the interests of the tendering party. It is necessary to assess relevance by taking the proposed evidence at the highest level it can reasonably be put at from the tendering party's point of view. It is not correct for judges in jury trials to assess the probative value of the evidence for themselves and reject it as irrelevant if they identify aspects of it which may make it unconvincing or not probative in the fashion which the tendering party alleges. The possibility or likelihood, even, that evidence is fabricated does not make it irrelevant. When it is said that judges in jury trials in determining the admissibility of evidence have regard to the weight of the evidence, what is meant is not that they determine for themselves whether it is to be or may be believed, but that they determine what weight it would have in the case as a whole if it were believed.

Justice Bell, who was also in the majority, wrote (footnotes omitted):

The suggested character of the camping incident as equivocal is pertinent to the determination of admissibility under the Pfennig test, but it does not deprive the evidence of its relevance. It is the distinction drawn by Hayne J with respect to the evidence of the purchase of the underwear in HML. All evidence having anyprobative value is admissible, subject to any rule of exclusion. W's evidence was tendered as an item of circumstantial evidence to prove the applicant's sexual interest in the complainant. Its capacity to prove that fact is not to be assessed without regard to the other evidence in the trial. Proof of what W saw was capable of supporting an inference that the applicant was, on that occasion, indecently dealing with the complainant.

W's evidence was relevant. However, because it was tendered as evidence of sexual misconduct for the purpose of proving propensity, the trial judge was required to exclude it unless she was satisfied that it was not susceptible of a rational explanation consistent with the applicant's innocence. Pfennig was a wholly circumstantial case in which the propensity evidence was not disputed. The application of the ''no rational view'' test, formulated in the Pfennig context, to the admission of disputed propensity evidence to prove motive or sexual interest in the prosecution of sexual offences, is explained in Phillips v R and HML. The propensity evidence must be viewed in the context of the prosecution case, upon the assumptions that the propensity evidence would be accepted as true and that the prosecution case (as revealed in the evidence or in the statements or depositions of witnesses to be called) may be accepted by the jury. The trial judge is not required to conclude that the propensity evidence standing alone would establish guilt of the offence or offences with which the accused is charged. If, viewed in this way and upon these assumptions, there exists a reasonable view of the propensity evidence that is consistent with the accused's innocence, the evidence must be excluded.

The only innocent explanation for a father making a close visual examination of the naked bottom of his pubescent or pre-pubescent daughter that was suggested on the hearing of the application was the explanation offered by W. To the possibilities of looking for a bee sting or an ant bite may be added other ''quasi-medical'' investigations, such as inspecting a rash or the like. It is convenient to refer compendiously to these as ''the sting or bite explanation''. The applicant placed considerable emphasis on the circumstance that W had himself volunteered the sting or bite explanation for what he had seen. The circumstance that W offered an innocent explanation on an occasion when he was challenged to explain why he was ''doing this to [his] father'' does not make the suggestion a rational explanation for what it was that he saw. W's account of the incident does not suggest that, at the time of the incident, it occurred to him that he had chanced upon his father examining his sister to detect a sting or a bite. W turned around and left the campsite without making his presence known. In the result, he did not collect the pocket knife that had been his object in returning to the campsite. W did not ask the complainant later that day or in the days thereafter about what misadventure had led to their father inspecting her bottom. The inference from W's conduct is that his reticence reflected his instinctive understanding that he was witnessing something that was not intended for his eyes.

The reasonableness of the inferences to be drawn from the camping incident involves the assessment of probabilities. It is an assessment that must take into account the other evidence in the prosecution case. In the light of the whole of the evidence, a possible explanation may cease to be a rational one. The circumstance that the complainant alleges that the applicant sexually molested her and that incidents of abuse occurred on camping trips is relevant to the assessment of whether the sting or bite explanation is a rational one for what W saw. This is not to engage in unacceptable circular reasoning. It may involve, as Crennan and Kiefel JJ explain, a legitimate consideration of the improbability of events occurring by coincidence.

In the ordinary course of events, the occasions calling for a father to examine his 11 or 12-year-old daughter's naked bottom are likely to be few. When they occur, they are likely to be memorable to the father and the daughter. In considering whether the sting or bite explanation is a reasonable view of the camping incident, it is appropriate to have regard to the circumstance that neither the complainant nor the applicant have any recall of such an event. A reasonable explanation for the complainant's lack of recall of an occasion on the camping trip when the applicant inspected her naked bottom is that she was accustomed to being indecently dealt with by him and, until she was 13 years old, individual incidents of abuse were a blur. On the other hand, it is improbable, had there been an occasion when the complainant sought her father's assistance following a sting or a bite to her bottom, that the fact of being stung or bitten would not have impressed itself on her memory. A further improbability is that the occasion calling for the inspection of the complainant's bottom should occur at a time when all of the other members of the party were believed to be absent.

The admissibility of W's evidence fell to be determined after the complainant's evidence was completed. The question of whether there was a rational view of the camping incident consistent with the applicant's innocence did not depend upon the applicant advancing an innocent explanation for the incident. However, it was apparent from the cross-examination that the occurrence of the incident was in issue. In determining whether the sting or bite explanation was a rational one, it was appropriate to consider the improbability of that explanation being true, in circumstances in which it appeared the applicant had no recall of such an event.

In the context of the prosecution case as revealed by the complainant's evidence (and foreshadowed in the statements of witnesses to be called), the sting or bite explanation was not a rational view of what W had witnessed.

The complainant gave direct evidence of the acts that were the subject of the charges. The jury might have assessed her evidence as credible but considered as a reasonable possibility that, in the emotional atmosphere of her parents' separation, the complainant had sided with her mother and made up her account of abuse. In such an event, proof of the camping incident was capable of resolving that doubt in favour of a conclusion of the applicant's guilt.  W's evidence was rightly admitted. Proof of the applicant's unnatural sexual interest in the complainant did not support acceptance of the reliability of the complainant's account of the acts particularised in each count. Appropriate directions respecting the need to consider each count separately were given. The discrimination of the verdicts shows that those directions were understood.

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Tillers: Debates and disagreements about the meaning of "relevance" never end!

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Judge Jack B. Weinstein on Chance and Skill in Poker

Alexandra Berzon, U.S. Judge Gives Poker a Break (Aug. 23, 2012):

"Is poker more a game of skill or of chance?

"A federal judge in New York concluded this week that skill plays the bigger role in determining who wins a poker game, in a ruling that could strengthen the hand of the companies seeking to get online poker legalized in the U.S.

"They range from social-games maker Zynga Inc. to casino giant Caesars Entertainment Corp. to Internet poker giant PokerStars, who all view online poker as a potentially rich source of revenue.

"U.S. District Judge Jack Weinstein ruled Tuesday that a New York electronics dealer hadn't violated a key federal gambling law by running Texas Hold 'Em poker games out of his Staten Island warehouse because, unlike roulette or slot machines, poker isn't 'predominated by chance,' a common legal definition of gambling."

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Warrantless Electronic Surveillance without Judicial Review or Probable Cause

What is the extent of warrantless federal electronic surveillance of U.S. citizens without judicial review or probable cause? For some views see

http://www.nytimes.com/2012/08/23/opinion/whos-watching-the-nsa-watchers.html?ref=surveillanceofcitizensbygovernment

http://www.nytimes.com/2012/08/23/opinion/the-national-security-agencys-domestic-spying-program.html?ref=surveillanceofcitizensbygovernment 

  http://www.nytimes.com/2012/07/24/us/politics/sidebar-public-in-the-dark-about-surveillance-orders.html?ref=surveillanceofcitizensbygovernment   

Cf. http://www.nytimes.com/2012/05/22/us/justices-agree-to-hear-surveillance-challenge.html?ref=surveillanceofcitizensbygovernment

Has 9/11 deprived us and our government of a sense of proportion? Has 9/11 created a widespread feeling of hyper-paranoia? (What comes to my mind are recent reports that a years-long surveillance of mosques, Muslims, and other such groups and people by the New York Police Department's "Demographics Unit" failed - it is said - to uncover a single terrorism lead. See    http://www.northjersey.com/news/opinions/167000126_The_Record__Spying_for_nothing.html)   &&& The dynamic evidence page

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Is Fuzzy Logic Passé?

About ten years ago, I mentioned to a colleague that I was wrestling, in a fuzzy way, with some question about fuzzy logic. He replied (whimsically?). "Isn't fuzzy logic passé?"
Well, I now have an answer for him. Professor Lotfi Zadeh today issued the following report to subscribers to his discussion list BISC (to join BISC send message to sympa@lists.EECS.Berkeley.EDU with the following command in the body of his/her email message: subscribe bisc-group; or from another account, subscribe bisc-group your_email_address): Report on the Impact of Fuzzy Logic   PATENTS  Number of fuzzy-logic-related patents applied for or issued in Japan: 22,541 (not  updated) Number of fuzzy-logic-related patents (containing the word “fuzzy”) applied for or issued in the US: 33,022
JOURNALS Fuzzy in title
Fuzzy Sets and Systems  IEEE Transactions on Fuzzy Systems  Fuzzy Optimization and Decision Making  Journal of Intelligent & Fuzzy Systems  Fuzzy Economic Review  International Journal of Uncertainty, Fuzziness and Knowledge-Based Systems Journal of Japan Society for Fuzzy Theory and Systems  International Journal of Fuzzy Systems International Review of Fuzzy Mathematics  Fuzzy Systems and Soft Computing Turkish Journal of Fuzzy Systems Annals of Fuzzy Sets, Fuzzy Logic and Fuzzy Systems Iranian Journal of Fuzzy Systems Fuzzy Information and Engineering Advances in Fuzzy Systems  International Journal of Fuzzy System Applications  Advances in Fuzzy Sets and Systems  International Journal of Fuzzy Systems and Rough Systems  International Journal of Fuzzy Logic Systems  Journal of Biomedical Fuzzy Systems Association  Advances in Fuzzy Mathematics Journal of Fuzzy Mathematics Journal of Advanced Research in Fuzzy and Uncertain Fuzzy Systems & AI—Reports & Letters Neural and Fuzzy Modeling Technology in Economics Soft  Computing in title 1.     Soft Computing2.     Applied Soft Computing3.     Mathware & Soft Computing4.     Journal of Multiple-Valued Logic and Soft Computing5.     Applied Computational Intelligence and Soft Computing6.     Autosoft Journal. Intelligent Automation & Soft Computing7.     International Journal of Advances in Soft Computing and Its Applications8.     International Journal of Artificial Intelligence and Soft Computing9.     International Journal of Soft Computing Applications10.  International Journal on Soft Computing11.  International Journal of Soft Computing12.  International Journal of Mathematics and Soft Computing13.  International Journal of Soft Computing Simulation and Software Engineering14.  International Journal of Soft Computing and Bioinformatics15.  Journal of Artificial Intelligence and Soft Computing Research16.  International Journal of Soft Computing and Engineering17.  Fuzzy Systems and Soft Computing18.  International Journal of Research and Reviews in Soft and Intelligent Computing19.  International Journal of Factory Automation, Robotics and Soft Computing20.  International Journal of Biomedical Soft Computing and Human Sciences  
COUNT of PUBLICATIONS   Count of publications containing the word “fuzzy” in the title, as cited in INSPEC and MATH.SCI.NET          databases. Compiled on August 13, 2012. INSPEC Database
1970-1979:   567 1980-1989:   2,375 1990-1999:   21,555 2000-2009: 44,615 2010-present:  16,247 Total:   85,359   MathSciNet Database   1970-1979:   446 1980-1989:   2,474 1990-1999:   5,526 2000-2009: 10,281 2010-present: 2895 Total:   21,622   Total number of papers with “fuzzy” in title (Google Scholar): 281,000 Number of citations/results of papers by L. Zadeh (Google Scholar): 101,802 Number of citations of L. Zadeh’s paper “Fuzzy sets,” Information and Control, 1965 (Google Scholar): 36,933 Number of members of the BISC Group (subscribers on BISC mailing list) worldwide: 1010 --  Lotfi A. Zadeh  Professor Emeritus Director, Berkeley Initiative in Soft Computing (BISC)  Address:  729 Soda Hall #1776 Computer Science Division Department of Electrical Engineering and Computer Sciences University of California  Berkeley, CA 94720-1776  zadeh@eecs.berkeley.edu  Tel.(office): (510) 642-4959  Fax (office): (510) 642-1712  Tel.(home): (510) 526-2569  Fax (home): (510) 526-2433  URL: http://www.cs.berkeley.edu/~zadeh/ BISC Homepage URLs URL: http://zadeh.cs.berkeley.edu/ &&& The dynamic evidence page

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Generous Compensation for NESL's Dean

A Paul Campos post:

Monday, June 18, 2012

Man paid $867,000 to run fourth-tier law school says law school is a good investment

Not An Onion Story:

But others view [Brian Tamanaha's Failing Law Schools] as just the latest overly dire prediction about the fate of law graduates and misplaced finger-pointing over tuition costs.

"Most people in the profession were already concerned about what it costs to get a law degree," said John O'Brien, dean of the New England School of Law and chairman of the ABA's Council of the Section of Legal Education and Admissions to the Bar. "Nobody feels good that tuitions have gone up. But the claim that a law degree is a bad investment doesn't hold water."

O'Brien currently heads the ABA's Council of the Section of Legal Education, whose regulatory mission is to decide whether it's a good idea for John O'Brien to get paid nearly $800,000 per year  $867,000 per year to run a law school with these outcomes for its graduates.  (Just found the 2011 IRS Form 990 for NESL. I apologize to Dean O'Brien for seriously understating what he earned last year for his charitable endeavors).

posted by LawProf at 8:52 AM 

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New Evidence Casebook Supplement

Videotaping of Confessions

Sean Gardiner, NYPD Videotaping in Virtual Pause WSJ (Aug. 12, 2012):

"When New York Police Commissioner Raymond Kelly announced in February 2010 that his agency would begin to video record some interrogations in their entirety, defense lawyers and civil-liberties groups were guardedly optimistic: The test suggested the NYPD may eventually embrace a practice already used by the majority of police forces in the state.

"Some 2 ½ years later, that is not the case. The department now is expanding the pilot program, but minimally: to five precincts from two.

...


"The NYPD has videotaped some confessions for years. But it has been slow to agree to record a messier aspect of policing: the precarious and confrontational nature of interrogations. Supporters say the practice protects both defendants and investigators, acting as a shield against coercion techniques that can lead to false confessions, and later, against untrue claims that suspects were pressured into admitting guilt.

"A taped confession is 'worthless' to a jury without the run-up, said veteran New York defense attorney Robert Gottlieb. Jurors who see the interrogation can judge the value of a confession and the methods used to get it, he said.

"Currently, 341 of the state's 509 police agencies are recording suspect interviews in some crimes, typically in at least murder and rape investigations, according to the state Division of Criminal Justice Services. By virtue of its pilot program, the NYPD is included among them.

"Nationwide, 18 states and Washington, D.C., mandate the complete recording of interrogations for some crimes, said Rebecca Brown, director of state policy reform for the Innocence Project. A bill requiring either audio or video taping of interrogations in New York has passed the state Assembly but not the Senate."

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Are Human Beings Inferential Idiots?

For decades psychologists have done research to demonstrate that the human animal is not omniscient and makes mistakes -- or, in fancier language, that human beings are subject to "cognitive limitations." This type of research achieved the status of a high art and wide public renown with the publication of  Judgment Under Uncertainty: Heuristics and Biases (1982) by Daniel Kahneman, Pail Slovic & Amos Tversky. Research on human cognitive limitations has accelerated since then. Entire fields -- e.g., behavioral economics --  take human cognitive limitations as their central premise and problem. Legal scholars now routinely cite this type of research, which is now beginning to have a significant influence on the law of evidence. (The prime example of such influence on the law of evidence is the legal treatment of eyewitness identification.)


Research on human cognitive limitations is plainly interesting and informative and some of it should influence the law of evidence. But there are several reason why this sort of research needs to be kept in perspective. One reason is that the general thesis that human beings make inferential errors and have limited cognitive capacity is not exactly new; people have recognized this for thousands of years. But modern research has gone beyond this general hypothesis and has explored how (but less often why) human beings make inferential and deliberative mistakes in specific types of situations and such research has perhaps shown that human beings are more error-prone than they think they are. Nonetheless, we should all be cautious about such research and findings. That is because ordinary human beings are endowed with truly remarkable and sophisticated cognitive equipment and inferential ability. This is suggested and, I think, effectively established, ironically enough, by cutting-edge contemporary research in fields such as neuroscience and artificial intelligence on the electro-physio-magneto-neuro-equipment that we commonly call "the brain." Consider, for example, the following snippet from the post Low Power Chips to Model a Billion Neurons (August 8, 2012) on the blog Next Big Future (original source:  here):
"The average human brain packs a hundred billion or so neurons—connected by a quadrillion (10^15) constantly changing synapses—into a space the size of a cantaloupe. It consumes a paltry 20 watts, much less than a typical incandescent lightbulb. But simulating this mess of wetware with traditional digital circuits would require a supercomputer that’s a good 1000 times as powerful as the best ones we have available today. And we’d need the output of an entire nuclear power plant to run it."
I submit that we should not begin with the (default) assumption that the human animal is dim-witted. The ordinary person has remarkably extraordinary cognitive equipment. This is true even though the human animal is not infallible.

• A hat tip to Markus Sagebiel for calling our attention to the above blog post.

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A Common and Exasperating Fallacy about Eyewitness Identifications

"Inaccurate eyewitness identifications are involved in (80%, 90%, pick your percentage poison) of wrongful convictions. This demonstrates that eyewitness identification evidence is very unreliable and that it is the primary cause of wrongful convictions."


I have protested against this kind of reasoning before. See, e.g., this post and this post. But my protests haven't stopped people -- defense lawyers, newspaper reporters, judges, and even academics -- from making this kind of argument. I find this extremely exasperating.
It may be true that eyewitness identifications are frequently or very frequently inaccurate. But the sort of statistic quoted above does not show (A) that they are such (i.e., frequently or very frequently inaccurate), or (B) even if they are frequently inaccurate, that inaccurate eyewitness identifications are the primary cause of wrongful convictions of innocent people.
Why not?
1. It is not enough to know the number of cases in which eyewitness identifications are inaccurate. It is necessary (but not sufficient) to know the number of cases in which eyewitness identifications are accurate. If eyewitness identifications are accurate far more often than they are inaccurate, the discovery that a "large" number of eyewitness identifications are inaccurate does not demonstrate that eyewitness identifications are frequently or very frequently inaccurate.
2. The fact (if it is a fact) that incorrect eyewitness identifications were "involved" in wrongful conviction of innocent people in a high percentage of cases does not demonstrate that inaccurate eyewitness identifications are the primary cause of wrongful conviction of the innocent.

• I'll bet that courtrooms and judges and jurors and defense counsel and oxygen were "involved" in the vast majority of the cases in which defendants were tried and wrongfully convicted of a crime. It doesn't follow that either courtrooms, judges, jurors, or oxygen molecules are the primary cause of wrongful convictions of innocent defendants. For example, it would be useful -- and probably essential -- to know how often other inaccurate evidence of guilt -- evidence other than eyewitness identifications -- was used in trials that ended with the conviction of the innocent and how much the use of such other evidence accounted for the wrongful convictions that have been observed.

• It is often said, almost in the same breath, that inaccurate eyewitness identifications and false confessions are each involved in, say, 80% [or some other such number] of wrongful convictions of innocent people. Does it follow that (A) the primary cause of wrongful conviction of the innocent is inaccurate eyewitness identifications and (B) the primary cause of wrongful conviction of the innocent is false confessions? No: the two propositions are inconsistent.

Of course, it is possible that (B) eyewitness identifications are very frequently inaccurate and that (C) they are the primary cause of wrongful convictions of innocent people. But the statistic that (A) "inaccurate eyewitness identifications are involved in X% of cases in which innocent people have been shown to be innocent" doesn't get you from A either to B or to C.

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Curiosity

I hope I will never again hear some politician ask,

"Why space travel?"

 

Just answer:

"Curiosity!"

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Experimental statistical evidence about eyewitness identification, intersecting reference classes, and trial by jury

On a list today I said the following on the topic of "experimental statistical evidence about eyewitness identification, intersecting reference classes, and trial by jury":
The problem [XXX] points to is [an example of] the familiar problem of intersecting reference classes -- which occurs in this context because every eyewitness and every eyewitness situation are (at least) always "slightly" different and there will always be some features about an eyewitness or an eyewitness situation whose significance or non-significance [has] not been empirically tested.

Does this mean that generalizations about [] eyewitnesses and eyewitness situations are irrelevant, or useless? No, not necessarily. What it means is that until better evidence comes along, "subjective human judgment" must determine whether this or that empirically-untested feature matters. This is the way it always is - there will always be such features - even though we fans of the rule of law and rational inference feel uncomfortable about this inevitable situation. Perhaps this problem (of the inevitable presence of empirically untested features) is one very good reason for trial by jury [of 12 or more persons].

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The Myth of the Myth of Memory as Tape Recorder

Over and over memory researchers (e.g., Elizabeth Loftus) and proponents of reforms of the legal treatment of eyewitness evidence assert that the mind or the brain is not like a tape recorder or a camera -- and newspapers and TV reporters are fond of repeating such pronouncements. These memory researchers and legal reformers mean to debunk, they say (over and over) the popular misconception that the brain is like a tape recorder. I have been puzzled about such anti-memory-as-tape-recorder pronouncements. How many members of the public actually believe that human memory is nearly perfect because the human organism and its brain and its sensory organs etc. work like a perfectly well-oiled and well-calibrated machine? How many serious scholars said anything like that? I have done a bit of Google research. My conclusion: IT IS AN URBAN MYTH THAT MEMBERS OF THE PUBLIC OR SCHOLARS SUCH AS PSYCHOLOGISTS GENERALLY BELIEVE OR EVER GENERALLY BELIEVED THAT THE HUMAN ANIMAL AND ITS PERCEPTIONS AND ITS MEMORY WORK LIKE AN ALMOST PERFECT TAPE RECORDER OR CAMERA.  (I may eventually marshal and present some of my evidence here, but, frankly, I'm not sure I need to.) Did Proust subscribe to this memory-as-camera memory-as-perfect-machine myth? Shakespeare? Immanuel Kant? Jung? Hegel? Helmholtz? John Dewey? Are members of the public unaware that they sometimes or often forget where they put their keys or their children, or that they often cannot remember the names of some or many of their high school classmates? Is it really the case that jurors need to be told that the human mind, sense organs, etc. do not operate like (well-maintained and perfectly-calibrated) tape recorders or cameras?

• I suppose that an occasional person believes or believed that the human animal's perceptions are machine-like, always accurate, and permanent even for practical purposes. So what? Some people probably believe that the moon is made of green cheese and that they died yesterday. It doesn't follow that many or most people believe such things.

Fuzzy Logic, 1965

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