On the recording of confessions

See Jennifer Mnookin's Op-Ed  on the recording of confessions.


Extract:
Supporters of the practice present recordings as a solution for a host of problems, from police misconduct to false confessions. But while there are lots of good reasons to require them, they are hardly a panacea; in fact, the very same qualities that make them useful — their seeming vividness and objectivity — also risk making them misleading, and possibly even an inadvertent tool for injustice. &&& The dynamic evidence page

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Period. Full Stop?

Jennifer Schuessler, If Only Thomas Jefferson Could Settle the Issue NYTimes (July 2, 2014)

Extract:

Every Fourth of July, some Americans sit down to read the Declaration of Independence, reacquainting themselves with the nation’s founding charter exactly as it was signed by the Second Continental Congress in 1776.

Or almost exactly? A scholar is now saying that the official transcript of the document produced by the National Archives and Records Administration contains a significant error — smack in the middle of the sentence beginning “We hold these truths to be self-evident,” no less.

The error, according to Danielle Allen, a professor at the Institute for Advanced Study in Princeton, N.J., concerns a period that appears right after the phrase “life, liberty and the pursuit of happiness” in the transcript, but almost certainly not, she maintains, on the badly faded parchment original.

That errant spot of ink, she believes, makes a difference, contributing to what she calls a “routine but serious misunderstanding” of the document.

The period creates the impression that the list of self-evident truths ends with the right to “life, liberty and the pursuit of happiness,” she says. ...

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Tillers: It has often been said that in the 18th century and before English-speaking peoples were remarkably lackadaisical about punctuation. If this is true, whether or not the period was there in the original Declaration of Independence was less significant than it would be to a 21st Century mind – and 18th-century "sloppiness" about punctuation suggests that "close textual analysis" to ascertain the meaning or intent of 18th-century documents will go badly wrong if the text being studied is studied in isolation. Are you listening, original intent theorists?

 
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Keeping things in perspective…

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Larry Laudan on seriatim versus v. contemporaneous eyewitness identifications

Larry Laudan, Eyewitness Identifications: One More Lesson on the Costs of Excluding Relevant Evidence SSRN Archive (March 15, 2012):

Abstract:      

Recent research has revealed that sequential lineup eyewitness identifications are less likely to falsely identify an innocent suspect as the culprit than are traditional simultaneous lineups. This has led numerous reformers to advocate (and many jurisdictions to accept) that the latter procedure should be replaced by the former. Clark has rightly pointed out that mis-identification data has another twist that almost everyone else has ignored; to wit, sequential lineups are much more likely to lead to false negatives than are simultaneous lineups. 

If, as we have every reason to believe, both types of lineups are more likely to include a guilty party than to include only innocent suspects, there are powerful reasons to say, as Clark does, that sequential lineups are apt to have higher aggregate error rates than simultaneous lineups do. That should give pause to the growing movement to replace the latter by the former.

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How is fuzzy logic doing? Is it passé?

Professor Lotfi Zadeh sent the following message today to his discussion list (BISC):

How is fuzzy logic doing? A significant measure is the number of publications with "fuzzy" in title (annually). My administrative assistant, Ixel Chavez, has compiled the information which follows. Comments are welcome.

    Regards,

    Lotfi

 Annual number of publications with "fuzzy" in title (Google Scholar)1993: 5,030
1994: 5,700
1995: 6,340
1996: 6,620
1997: 6,810
1998: 7,130
1999: 7,650
2000: 7,620
2001: 8,260
2002: 8,650
2003: 9,240
2004: 10,900
2005: 12,300
2006: 13,900
2007: 14,800
2008: 16,000
2009: 17,900
2010: 18,700
2011: 18,900
2012: 18,700
2013: 17,000

Total: 238,150 (20 year total)

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Web site for Stanford conference on trials and mathematics

Web site for May 30, 2014 Stanford conference on Trial With and Without Mathematics: Legal, Philosophical and Computational Perspectives


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Trial With and Without Mathematics (conference)

An  important conference at Stanford University:
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American Justice at Work: What is a photocopy machine?

Brett Weiner, What is a photocopier? New York Times (April 27, 2014) (video reenactment of a portion of a deposition).
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Michigan - Sufficiency of Evidence; Inference on Inference

People v. LaFountain, 495 Mich. 968 (March 28, 2014):

In this case, defendant only disputes whether there was sufficient evidence to support the jury's finding that her operation of a methamphetamine laboratory “involve[d] the possession, placement, or use of a firearm.” ... Contrary to the dissent's suggestion, there is absolutely nothing wrong with “conviction[s] built on inferences derived from circumstantial evidence ....” People v. Hardiman, 466 Mich. 417, 430, 646 N.W.2d 158 (2002). Indeed, it is important for appellate courts to remember that “[i]t is for the trier of fact, not the appellate court, to determine what inferences may be fairly drawn from the evidence and to determine the weight to be accorded those inferences.” Id. at 428, 646 N.W.2d 15.

Judge Viviano, joined by Cavanah and McCormack, dissenting:

I believe the jury's conclusion that the firearms were involved in the drug activity simply because they were nearby and could have been useful was, at best, speculation.Speculation, even based on the reasonable observation that defendant could have used the firearms for defense, is not sufficient to sustain a criminal conviction. For the due process right described in Jackson v. Virginia20 to be meaningful, there must be some point above which the evidence presented at a trial must rise in order to justify rational inferences of guilt beyond a reasonable doubt.21[21. To be clear, I do not believe that this Court should resurrect the “no inferences upon inferences” rule that it wisely rejected in People v. Hardiman, 466 Mich. 417, 646 N.W.2d 158 (2002). In that case, we relied heavily on the analysis provided by Professor John Henry Wigmore, and as noted in Wigmore's treatise, the proper question concerning the sufficiency of evidence “is always whether, in view of all patterns of corroborating and contradicting evidence at all levels of all inferential chains, the final [fact to be proved] has been shown to the degree of likelihood required by the applicable standard of persuasion, whatever that may be.” 1A Wigmore, Evidence (Tillers rev.), § 41, p. 1138. In a criminal trial, in which the standard of persuasion is proof beyond a reasonable doubt and an individual's liberty is usually at stake, it is of the utmost importance that reviewing courts enforce the rule that “[j]uries are not permitted to convict a defendant based on speculation or mere suspicion.” United States v. Michel, 446 F.3d 1122, 1127 (C.A.10, 2006).]

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PASSING OF JOHN H. MANSFIELD

John H. Mansfield, obituary, Boston Globe (April 13, 2014):

MANSFIELD, John Howard Of Brookline, MA, died on April 10, 2014 at the age of 85. He was the John Watson Professor of Law (Emeritus) at Harvard Law School. Beloved husband of Maria Luisa Fernandez y Espinosa and loving brother of Charlotte Mansfield Murphy, Mary Elinor "Polly" Mansfield Post, and Diana Mansfield Russell. Son of the late Lewis Mansfield and Elinor Perkins of Boston. John was spiritual and intellectually active Roman Catholic, for fifty years he attended Saint Paul Church in Cambridge. Since 2012 he attended Saint Mary of the Assumption Parish in Brookline. John H. Mansfield earned his A.B. from Harvard College and his L.L.B. from Harvard Law School. He then served as clerk for Justice Royer Traynor of the Supreme Court of California and Justice Felix Frankfurter. He joined the faculty of Harvard Law School in 1958, retiring in 2008. He was completely dedicated to the Harvard Law School, where he worked for a half-century. He left a profound mark on the school, as well as on every student he taught and advised. Many of his much-loved foreign students have kept in touch with him and his wife over many years. He was, indeed, a member of the last great generation, together with his friends and colleagues Mark Howe, Philip Areeda and David Westfall. To be well prepared, on time, and appropriately dressed for class came naturally to John. His work in comparative and interdisciplinary areas put him in the avant-garde of legal thought. Professor Mansfield was known for his brilliant courses in constitutional law, evidence, and issues of church and state. As James A. Sonne wrote in The Harvard Law School Bulletin (Fall 2008): In his scholarship, he has written landmark works on the jury system, scientific evidence, law and religion, and legal history, and has written extensively on the law of India. All his work shows the dexterity of mind and clarity of thought of a true teacher-scholar. Funeral Mass at 10 a.m. on Wednesday, April 16 at St. Mary of the Assumption Church at 3 Linden Place in Brookline, 02445. A Novena at St. Mary will follow: May: Monday 26 at 9 a.m.; Tuesday 27 at 12:10 p.m.; Wednesday 28 at 12:10 p.m.; Thursday 29 at 12:10 p.m.; Friday 30 at 12:10 p.m.; Saturday 31 at 8 a.m. June: Sunday 1 at 10:30 a.m.; Monday 2 at 12:10 p.m.; Tuesday 3 at 12:10 p.m. In lieu of flowers, donations may be made to: *Holy Land Christian Ecumenical Foundation. www.hcef.org which is dedicated to helping Christians concerned about Christianity's survival in the Holy Land. *Saint Boniface Haiti Foundation. www.haithealth.org which provides healthcare to the poor in the rural area of Fond Des Blancs in Haiti through Saint Boniface Hospital. */Medecins Sans frontiers.www.doctorswithoutborders.org which is an international medical humanitarian organization treating people where the need is greatest

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Time to mobilize

It is time for Estonians, Latvians, and Lithuanians in the United States to mobilize. Mr. Putin probably wants to expand westward next. And Obama and Merkel cannot yet be counted on.
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Gangsta Rap Lyrics as Evidence

Lorne Manley, Legal Debate on Using Boastful Rap Lyrics as a Smoking Gun NY Times (March 26, 2014).

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McMartin Case; Margaret Kelly Michaels

The Trial That Unleashed Hysteria Over Child Abuse NYTimes (March 9, 2014) (link to video)

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Inference from Evidence: Joseph Laronge on DCIT

Joseph Laronge just wrote to say he "finally posted online training videos for [his] DCIT inference approach. They are posted on udemy.com. There are 31 lectures over about four hours along with supporting documents. … The following is a free coupon link for 100 participants that lasts until the end of this month:

https://www.udemy.com/a-clear-logical-argument-guaranteed/?couponCode=Tillers0

Tillers: I very much think you should take a gander at this material!

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A Challenge to Constitutionality of NSA Surveillance

Keith Coffman, Colorado defendant is first to challenge expanded U.S. surveillance effort Reuters (January 30, 2014)

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Cues for Cross-Examination

Elizabeth Bernstein, Why Verbal Tee-Ups Like 'To Be Honest' Often Signal Insincerity WSJ (January 21, 2014)

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The Predominance of Part-Time Faculty in American Higher Education

Ella Delany, Part-Timers Crowd Academic Hiring NYTimes (December 22, 2013)

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Interpretations of Quantum Theory

Fuzzy logic and quantum theory may be the two most important philosophical (as well as logical and scientific) developments of the twentieth century. Wikipedia has a comprehensive summary of interpretations of quantum theory. Much of the summary is highly technical but I think the reader can catch the drift of the various interpretations even if he or she does not have deep knowledge of quantum theory or mathematics.

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A Constipated View of What the Law Is

Liptak & Schmidt, Judge Upholds N.S.A.’s Bulk Collection of Data on Calls NYTimes (December 27, 2013):

Judge Pauley also said it was not for him to say where the law was heading, but for a different reason. “The Supreme Court,” he said, “has instructed lower courts not to predict whether it would overrule a precedent even if its reasoning has been supplanted by later cases.”
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Hanoch Dagan on Law's "Structural" Pluralism

Amit Pundik, Interview with Hanoch Dagan, 8 The Reasoner 2 (January[sic], 2014):

HD: ... I criticize the pretence of monist theories of Property (or Contract, for that matter) to o ffer one regulative principle—the most prevalent suggestion revolves around Blackstone’s formula of “sole and despotic dominion”,which stands for an owner’s right to exclude—that is supposed to account for this entire field, or at least for its core.So let’s indeed take property. My critique begins with a straightforward descriptive observation:Property law as both lawyers and citizens experience it is quite complex; and this complexity is at odds with the Blackstonian straightjacket. Thus we can find side by side doctrines that by and large comply with a libertarian commitment to negative liberty (think fee simple absolute, which is the technical legal term for full-blown ownership of land) alongside other doctrines in which ownership is a locus of communitarian sharing (as in marital property) or of utilitarian welfare maximization (as with patents), as well as many other doctrines vindicating various types of balances among these (and other) property values (such as copyright which both vindicates the unique significance of creative resources to authors’ identity and encourages creative activity which is conducive to human flourishing and to democratic governance). I do not deny that all these di fferent institutions share a common denominator; indeed, every property right involves some power to exclude others from doing something. But I insist that this common denominator is not robust enough to illuminate the existing doctrines or determinative enough to provide significant guidance as per their evaluation or development.The normative deficiency of Property and Contract monism is at least as troubling as the descriptive deficiency, and in a somewhat paradoxical way. Monist theorists of these fields tend to be liberals, and their suggested animating principles—exclusion for property; will (or consent) for contracts—stand for the ultimate liberal value of individual autonomy. But if Law had taken these theories seriously (which, as I’ve just said, it fortunately hasn’t), it would have erased or marginalized all these “nonconforming” forms, leaving people to their own devices if they wish to tailor-make them for themselves. Such a hands-o ff policy, even if accompanied by a hospitable attitude to freedom of contract, would have been detrimental to our autonomy. The reason for this is that property forms (and contract types) rely heavily on active legal (or law-like) facilitation,both for overcoming the various types of transaction costs involved and as sources (particularly in modern times) of our cultural conventions. Because Law is a major player in making options viable for us—maybe even imaginable to us—anautonomy-enhancing law must proactively participate in providing us with a multiplicity of options for interpersonal relationships:a diverse menu of property institutions and contract types. Monism undermines this liberal obligation and is thus,in my view, not only descriptively misleading but also normatively disappointing.

AP: How would you explain your pluralist theory of Legal Institutions to non-lawyers?

HD: The best way may be to first contrast it with the type of pluralist theories you mentioned in your introduction and then see how it nicely (I think. . . ) emerges from the descriptive and normative critique of monism I’ve just mentioned. I call my theory structural pluralism in order to highlight that its main distinctive feature is a commitment to multiplicity of legal options with respect to each major form of human interaction (regarding resources, broadly defined). Unlike certain “mixed” theories, I do not argue for foundational pluralism,which denies that there is one ultimate value (private) law should vindicate; indeed, as I’ve just hinted, I think that there is one such ultimate value: individual autonomy properly understood, namely our right to self-determination or self-authorship,which requires not only independence from others,but also a robust set of su fficiently diverse viable options from which we can choose. ...

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