Evidence and Holism: Judgments about Wholes and Parts in Evidence Assessment

There is an important new article about the assessment of evidence in litigation: Dan Simon, Chadwick Snow & Stephen Read, "The Redux of Cognitive Consistency Theories: Evidence Judgments by Constraint Satisfaction." The authors' abstract states that "making decisions from multiple pieces of evidence is ... is bi-directional - decisions follow from the evidence, but evaluations of the evidence shift towards coherence with the emerging decision." The paper is not pure speculation: the authors report results from five empirical studies that test and substantiate their hypothesis.

I assume that the authors would honor requests for reprints. Write dsimon@law.usc.edu, csnow@usc.edu, or read@usc.edu.

SIDS, Statistics, Accidents, Genetics, & Criminal Guilt – and, for Connoisseurs of the Law of Evidence, the "Doctrine of Chances"

There are some interesting new reports about another now-notorious UK Sudden Infant Death Syndrome [SIDS] case – the Angela Cannings case – a case in which much was apparently made out of statistics about the relative frequency (and, in particular, about the rarity) of SIDS deaths. See the following BBC reports:

October 28, 2003, BBC Report

BBC:

“The case against Angela was supported by the same experts who got it wrong in the prosecutions of Cheshire Solicitor Sally Clark and pharmacist Trupti Patel.”

Nov. 3, 2003, BBC News Report

BBC:

“When Cannings was convicted in April 2002, the jury had been told that the deaths of three of her children could not have been caused by a genetic defect because there was no evidence of other infant deaths in her close relatives.

“…

“The Real Story team discovered Cannings' paternal great-grandmother suffered one infant death and Angela's paternal grandmother two.

“The issue of how investigations and prosecutions of unexplained deaths of infants are conducted came under the spotlight with the acquittal on appeal of solicitor Sally Clark.

“In that case Professor Roy Meadow told the original trial that two cot deaths in one family were a 'one in 73 million chance' - something disputed by statisticians.

“After upholding Clark's appeal, the Court of Appeal judges said the medical evidence of a 'one in 73 million chance' had been grossly misleading.

“...

“In Cannings' case Professor Meadow told the jury her babies could not have died a normal cot death because they appeared healthy immediately before they died.”

Cf. Wilson v. Maryland, 370 Md. 191, 803 A.2d 1034 (Ct. App., August 5, 2002), wherein the Maryland Court of Appeals – Maryland's highest court – emphasized the importance of considering the possibility of dependencies due to genetics when using the product rule to calculate the probability or improbability multiple [innocent] SIDS deaths [clusters of SIDS deaths] within a single nuclear family. While I think the Maryland court is entirely right about this, I cannot help but wonder if in a case such as the Angela Cannings case, researchers should consider the possibility that the clusters of SIDS deaths in a nuclear family might be attributable in part to "family cultures" that result in intergenerational transmission of infant care practices. (I have no particular reason to think that any such factor was at work in the Cannings case but, as a scholar, I have a hunch that this possible alternative explanation – an alternative to (i) a genetic explanation and (ii) chance as an explanation – should be investigated in a situation such as the one in the Cannings case – where it is known that SIDS deaths have occurred among children of the parents or the grandparents. {Perhaps this possibility has been explored: I don't know if it has been studied or not.})

Latvian Folk Songs

Here is a bit of information about Latvian folk songs.

Please note that Latvia's president, Vaira Vike-Freiberga, is, not only a woman, but also a serious (early) contributor to the scholarly study of Latvian folk songs. Did anyone say Latvians are backward? Unintellectual? Male chauvinists? Well ... er, ...

The web page linked above states that "more than 1.2 million texts and 30,000 melodies have been identified."

Latvians Learn Brazilian Portuguese

Flash! Latvia ties Turkey in second match and moves on to next year's playoffs for the European Cup! (We're talking soccer here. Not American-style football. And that's a good thing -- since both Yale and Ohio State lost on November 22. But watch out for next year! [My university has no U.S.-style football team. So I must root for alien teams.])

Actually: far more exciting (as far as Latvia goes): The quadrennial folk song festival in Riga. Did you know that Lithuania has the world's largest collection of folks songs, and Latvia, the second largest? (Second-largest is good enough for me.)

Latvian was purely a spoken language -- a peasant's spoken language -- until the 19th century. Latvian and Lithuanian are loosely -- but only loosely -- related to the Finno-Ungric (& Estonian) language group.

I will do some fact-checking. If I have made any errors, this page will change -- in a day or two.

Latvia: The New Brazil?

Latvia, having defeated Sweden, defeats Turkey, 1-0, in soccer (aka football), on November 15, 2003. Next match with Turkey: Wednesday, November 19.

Interesting books ...

... recently received or acquired:

Andrew Palmer, Proof and the Preparation of Trials (Sydney: Thomson Lawbook, 2003)

Joseph Halpern, Reasoning about Uncertainty (MIT, 2003)

Paul Kirschner, Simon Shum & Chad Carr, eds., Visualizing Argumentation: Software Tools for Collaborative and Educational Sense-Making (Springer, 2003)

Henry E. Kyburg, Jr. & Choh Man Teng, Uncertain Inference (Cambridge U. Press, 2001)

Alva Noë & Evan Thompson, eds., Vision and Mind: Selected Readings in the Philosophy of Perception (MIT, 2002)

Lorenzo Magnani, Abduction, Reason, and Science: Processes of Discovery and Explanation (2001)

Dov M. Gabbay, C. J. Hogger & J. A. Robinson, eds., Epistemic and Temporal Reasoning (Clarendon-Oxford, 1995) (Vol. 4 of HANDBOOK OF LOGIC IN ARTIFICIAL INTELLIGENCE AND LOGIC PROGRAMMING)

Douglas Walton, Legal Argumentation and Evidence (Pennsylvania State University, 2002)

Two Interesting Books Generally Ignored, Unjustifiably, by Legal Scholars in Evidence:

J.S. Covington, Jr., The Structure of Legal Argument and Proof (John Marshall Pub. Co., 1993) (perhaps a victim of insufficient marketing)

Peter Oehrstroem & Per F. V. Hasle, Temporal Logic: From Ancient Ideas to Artificial Intelligence (Kluwer, 1995)

Another Interesting Book:

Anne Applebaum, Gulag: A History (Doubleday, 2003)

The Authority of History for the Modern Law of Proof and Evidence

Question: Should the ancient history of Anglo-American judicial treatment of evidence have substantial authority for the interpretation or formation of 21st century rules governing factual adjudication in litigation?

By "ancient history of Anglo-American judicial treatment of evidence" I am inventing my own terminology for this particular occasion: I am referring to the history of evidentiary practices in English and Colonial courts before ca. 1800.

Written records about legal treatment of evidence in English and Colonial courts before 1800 are fragmentary. Legal historians sometimes believe that a single documentary source or a single set of documentary sources about historical legal practice is decisive. See, e.g., John Langbein's discussion of the "Ryder sources," Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources, 50 U. Chi. L. Rev. 1 (1983) (Langbein extracts some fairly firm conclusions from the Ryder sources).

Despite the seemingly fragmentary nature of the historical record before ca. 1800, there are occasional suggestions that centuries-old English historical practice explains some or many features of the contemporary law of evidence. See, e.g., George Fisher, The Jury's Rise as Lie Detector, 107 Yale L.J. 575 (1997) (there is no suggestion in this article that modern evidence law should revert to past historical practice, but there is an intimation in the article that the history that Fisher recounts or propounds should have inverse power: it should serve to debunk some evidentiary practices that persist [if only in a fragmentary way] to this very day in the courtrooms of our land; to make his impressive argument, Fisher relies on some very old legal history).

I wonder if "ancient" legal history (in the realm of the law of evidence) should have such power (whether affirmative or negative). My expertise in legal history is limited or non-existent. But some of the statements that I have heard legal historians make suggest to me that the historical record about the legal treatment of evidence before 1800 is, as I have said, extraordinarily fragmentary. True, we now have some astute legal historians among us -- including, especially, grand figures such as Mirjan Damaska, John Langbein, and, now, George Fisher; and perhaps some or all of these eminent scholars have now got the legal history right (although -- it should be noted -- Langbein and Damaska seem to disagree a bit on some important details). But even if the current generation of legal historians is more talented, more skilled, and better educated than was the prededing generation of legal historians, would it be prudent to resolve important questions of policy and knowledge in the law of evidence today by seeking authoritative answers in the "historical record"?

I wonder.

Just a generation or so ago the conventional understanding of the origins of the privilege against self-incrimination was quite different from the account that Langbein now purveys with considerable success. So perhaps Langbein now has the better argument. But it seems entirely possible to me -- indeed, knowing the ways of academia, it seems more probable than not -- that soon some bold young scholar will arrive on the scene and provide us with a well-argued and well-supported reinterpretation of matters such as the origins and causes of the use of rules of evidence in English criminal trials before 1800. (Indeed, perhaps this process of reinterpretation is already under way.)

The question I am raising is not just (or even primarily) a question about the wisdom of trying to perpetuate or preserve past practice. The question I am raising is about the way that we should use the past to gain insights into contemporary issues in the law of proof and evidence.

The question I mean to raise is this: Is there good reason to think that "ancient" history is of much use when the ancient legal history of legal treatment of evidence is used to try to demonstrate that there are certain general verities about the logic or illogic of certain kinds of attempts to use law to get at the truth of matters such as propositions about the world?

I suspect that the answer to my question is "no."

There are more modest uses of history than the one I am questioning. Some of these more modest uses are extraordinarily valuable. History, for example, certainly serves to liberate or inspire thought: it serves to suggest previously-unimagined possibilities. But the question that interests me here is whether or not legal history can serve as a kind of empirical test -- a very long-running empirical test -- of the validity or invalidity of particular possible modern approaches to evidence and the legal regulation of evidence and proof.

I am skeptical -- for a variety of reasons (methodological as well as inferential) -- of the idea that history can serve as a kind of analogue to the principle of empirical verification in science.

In this post I do not even attempt to address issues such as (i) the potential conflict between the democratic ideal and the authority of the dead and (ii) the possibility that emphasis on Anglo-American legal history now amounts to a kind of gratuitous cultural chauvinism.

Modern human beings are not more stupid than their predecessors. In certain respects we even know more than our ancestors did. It is even possible (though far from certain) that modern advances in the understanding of the mind and of cognate matters such as information, perception, semantics, uncertainty, and probability now enable us to understand just a little bit better than our precursors did how evidence works, how inference works, how evidence and inference work in time, how evidence and inference relate to values and norms, and how "best practices" can improve the ability of societies to get the facts right in a humane fashion.

Given the fragility of the historical record, given the possibility that we have learned something about evidence over the centuries, and given the near-certainty that we are not less intelligent than our forbears, I vote against according (our momentary understanding of) the ancient history of the law of evidence any very substantial influence in debate and argument today about the future of legal regulation of proof and evidence in litigation (or, for that matter, in most other societal contexts and institutions).

N.B. This is my second or third manifesto within the last month or two. But my manifestos, it seems, are not strong enough to provoke a storm of comment and controversy. Is this because I am right?!?

War Crimes

There is a widespread, longstanding, and disturbing indifference to the horrors in Chechnya.

Do you agree?

N.B. This thought was spurred by C-Span and the book The Oath by Khassan Baiev, with contributions by Ruth and Nicholas Daniloff.

Legal Theory and Legal Practice: A Manifesto

Decent legal theory follows legal practice.

Bad legal theory ignores legal practice.

Good legal theory improves legal practice.

Legal theory without legal reality is barren.

Legal reality is legal practice.

Legal practice is legal theory in action.

Good legal theory is good legal practice made manifest.

In the spirit of Aristotle ... and the new sciences of the mind.

Trial Planning

Trial lawyers: Does the diagram available at the link below accurately depict some (but certainly not all) of the important jobs that you have to do when you prepare for trial? If so, is the diagram helpful to you -- or might it be helpful to you -- when you go about the job of preparing for trial? (I am assuming that the picture is fairly self-explanatory. If such is not the case, please let me know. Many thanks!)

Trial Planning

Science in the Law School World: An Off-the-Cuff View from the Other Side

My comments about "two cultures" (see post, 9/28/2003) provoked a friend of mine to e-mail me some comments. This friend of mine is a member of the community sometimes known as UAI -- uncertainty in artificial intelligence. After several exchanges, my friend focused on the reception of science and computer science in the law school world. The following is part of what this UAI person said:

1) Regardless of the validity of a "humanities vs. scientific" dichotomy in university curriculums, I believe that there may be another valid and relevant distinction between academic graduate-level disciplines that mostly train professors vice ones that primarily train practitioners. For example, I would bet (meaning that I don't know the facts) that on the average, a much larger percentage of doctorates in physics, biology and pure mathematics become professors than those in chemistry, architecture or any engineering area - e.g. electrical, mechanical, civil, etc. It may still be true that a larger percentage of humanities disciplines such as sociology, political science, english or history, mostly train professors than the corresponding percentage of the scientific, or perhaps more accurately, the technologically-focused disciplines. What I like about this conjecture is that it should be relatively easy to check the facts (if one was willing to take the time and energy).

2) Assuming conjecture (1) above is true, i.e. borne out by the statistics, then I would further conjecture that the primary reason is the societal-economic need for practitioners in industry and other business, e.g. the law profession, medical profession, architecture profession, etc. For example, most graduate study in chemistry is aimed at practical experimentation, not theoretical exploration, because most chemistry grad students want to go and get jobs in industry where they can make useful things. It is not unusual, I believe, for chemistry grad students who get more fascinated with the nature of molecules than how to get them to do stuff, to transfer into a physics curriculum where that is the primary focus of the study of matter. After that, of course, they're not fit for anything but teaching and basic research ;^>. This theory implies that at least one of the reasons law schools don't teach much of the scientific theories of evidence at the state of the art, i.e. including its technological implications and possibilities, is because it's not useful when one goes into practice. If this conjecture was true, then i) it follows that it *should* be practitioners, not professors, who have the greatest interest in shifting how things are done in practice, primarily for financial motivations, and ii) when courts start admitting evidence based on such arguments and techniques, then we ought to see a corresponding major shift in law school curricula.

3) This point is peripheral to the issue of law school curricula, but relevant to your basic argument, I believe, i.e. the cultural dichotomy of "humanity versus technology" or the like. To the extent that thesis holds water, and my gut feeling is that it does or did anyway, I believe we may be in the midst of a paradigm shift wrought by the very progress of technological innovation itself. Innovations such as genetic manipulation, artificial stupidity, er, intelligence I mean, and nanotechnology, for example, raise critical issues in society that come back to basic humanties focused questions - such as the definition of human life and its corresponding protections under governments and their legal and other institutions. And I believe that there is a corresponding shift in technology-focused curricula to incorporate teaching of philosophy and ethics in particular, as a consequence of this phenomena.

Two Cultures: An Update

Forty four years ago C.P. Snow published a book describing a great divide between the sciences and the humanities. See C.P. Snow, The Two Cultures(Cambridge University Press, 1959; reissued, paper, 1993). See also C.P. Snow, The Two Cultures: A Second Look (1963). I wonder if a strong version of this division is now found in the U.S. law school world. Specifically, I wonder: Despite the enormous popularity of "intellectual property" law in the law school world, do computers, computer technology, computer science, and software tools remain, on the whole, an alien beast in the law school world? (Bernard Hibbitts likes to say that law schools are enamored of the law of technology, but not of the technology of law.) Dear Reader, I welcome your thoughts. I particularly welcome the thoughts of those Gentle Readers in Cyberspace who have more than a nodding acquaintance with law schools in these United States.

Who Cares about Human Rights?: Burns (NYTimes Reporter) on Iraq

John Burns, "There Is Corruption in Our Business," Editor and Publisher (September 15, 2003):

Terror, totalitarian states, and their ways are nothing new to me, but I felt from the start that this was in a category by itself, with the possible exception in the present world of North Korea. I felt that that was the central truth that has to be told about this place. It was also the essential truth that was untold by the vast majority of correspondents here. ...

...

Now left with the residue of all of this, I would say there are serious lessons to be learned. Editors of great newspapers, and small newspapers, and editors of great television networks should exact from their correspondents the obligation of telling the truth about these places. ...

We now know that this place was a lot more terrible than even people like me had thought. There is such a thing as absolute evil. I think people just simply didn't recognize it. They rationalized it away. I cannot tell you with what fury I listened to people tell me throughout the autumn that I must be on a kamikaze mission. They said it with a great deal of glee, over the years, that this was not a place like the others.

I did a piece on Uday Hussein and his use of the National Olympic Committee headquarters as a torture site. It's not just journalists who turned a blind eye. Juan Antonio Samaranch of the International Olympic Committee could not have been unaware that Western human rights reports for years had been reporting the National Olympic Committee building had been used as a torture center. I went through its file cabinets and got letter after letter from Juan Antonio Samaranch to Uday Saddam Hussein: "The universal spirit of sport," "My esteemed colleague." The world chose in the main to ignore this.

Kafkaesque Konstitution

Ashen Justice: Charges Dismissed, Arrest Him!

What's going on here? Kafka? Der Prozess? Ja?

I admit it: I am a johnny-come-lately. But this (see below) is really too much.

Flash!: NYTimes, p. 1 September 26, 2003 (as paraphrased & disbelievingly interpreted by Prof. P. Tillers) :

In the unlikely event that the U.S. Court of Appeals for the Fourth Circuit upholds the federal trial court's apparent ruling that the U.S. government's refusal to allow Moussaoui to interview prosecution witnesses violates M's constitutional rights and that this constitutional violation requires dismissal of the criminal charges against him, my government(!) intends to "move[] Moussaoui to a military tribunal."

Can this be? [Hmm... The newspaper in my hands certainly looks like the New York Times ....]

If the story is true -- and I have my doubts that it is: the story is intrinsically implausible --, but if this unlikely story is true, the only principle I can extract from it is the following: You -- i.e., Mr M and other denizens of this great and grand country, -- y'all have constitutional rights, BUT if we [my government] think it's important enough, we'll imprison you anyway, without regard to any such rights. But we have overstated the point here. (We are a bit excited.) Yes, Mr M, you can have your constitutional rights -- at least in a U.S. District Court, perhaps ["perhaps," we say!] -- BUT, in any event, you can't have those rights in our military tribunals, b'gosh!

By what right does anyone call such a military agency or entity a "tribunal"?

You see, Mr M (my government seems to be saying), we won't be denying you any rights if we send you there, to Guantanamo -- because there, you see, you don't have any rights. [Of course, by the grace of the Supreme Commander, we have chosen to confer certain procedural privileges on unlawful combatants, but only those privileges, of course, that suit Our Glorious Supreme Commander, and only as long it suits us to let them have those freely revocable privileges. {You will recall that the operative language is somewhat like the following, which, as you will see, we have borrowed from health club contracts: "Grantor retains unbridled and absolute discretion to revoke, at any time and without notice and without cause, any of the privileges enumerated herein and nothing said anywhere shall be construed to the contrary."}])

Ach, weh! (Forgive me: I occasionally lapse into New Yorkese.) One of my worst fears has come true. A year or so ago I thought I was being a bit paranoid, a bit overwrought, a bit of a Chicken Little. But no, hindsight suggests that's not the case: I wasn't overly anxious 'tall. For my government really, truly, and actually wants to deny criminal defendants (not to speak of "unlawful combatants" waiting in their legal black holes for "trials" -- "hearings"? "events"? -- in military "tribunals") --, my government wants to deny such targets of its prosecutorial activity the right to prepare their cases and defenses prior to trial.

Need I say this?: A right to a trial without a right to pretrial preparation and meaningful pretrial investigation is a paper right, and such a paper right is not worth whatever paper it's written on. Every trial lawyer who knows anything knows this. (Perhaps the Supreme Court does too. We shall see. But some people will probably spend years in prison -- indeed, they already have -- before the Supreme Court deigns to speak to this issue. [But perhaps I'm being unfair: Surely the Supreme Court will act just as decisively and as quickly as it did during the Vietnam War crisis. So I take it back! Really!])

BTW: The government thought that the normal criminal process was good enough for it and for Mr M -- until, of course, the government found that it couldn't have its way with Mr M.

It is a scandal; it is an outrage.

Immanuel Kant once said that it is better for the world to perish than for one innocent person to suffer unjust punishment. Mr. John Ashcroft has his own moral principle: he apparently believes that it is better for most of the U.S. to suffer great pain than for one guilty terrorist to escape punishment.

What price security? And whose security is being purchased? Apparently Mr. Ashcroft's. Perhaps Pres. Bush's. Anyone else's?

Who but Mr. Ashcroft really believes that pretrial interviews of imprisoned terrorists by counsel for Mr M will severely imperil national security?

Well, o.k., o.k., I will grant you that in this grand country of ours -- perhaps particularly in Missouri? -- we can always find some people who will believe any crackpot thesis that you care to name. Furthermore, it is possible that the imprisoned terrorists ["alleged" terrorists?] that Mr M wants to interview --, it is possible that those guys have telepathic powers or electronic transmitters implanted in their shin bones. Or perhaps Mr M, by interviewing them through his craven surrogates, his untrustworthy counsel, -- perhaps Mr M, acting through such devious agents, can manage to supply those imprisoned unlawful combatants with the guts that they need to fend off our government's determined efforts to win their hearts and unlock their mouths: perhaps Mr M, clever fellow that he is, has the magic potion. Who knows? Anything is possible, you know. And we CAN'T TAKE ANY RISKS.)

It's an outrage, I say.

I have an announcement to make: I have made up my mind. Yes, I have. This is my decision: I will not -- I cannot --, I WILL NOT vote for a Presidential candidate who will grant us four more years of Attorney Ashcroft.

Mr A's title, BTW, is not "general" -- as in "General Ashcroft." Mr A -- I am informed -- is an attorney, an attorney general. But he is not a "general." See William Safire, NYTimes, Section 6; p. 20; col. 1 (Late edition, July 20, 2003) (Citing & quoting my Cardozo colleague & office neighbor Prof. Michael Herz). BTW: Did Mr Ashcroft disabuse the interrogators from the media? Did he tell them, "You know, I'm not really a general. I wouldn't want to put on airs or pretend to be what I'm not"? To balance things out, I will not use the word "general" when referring to Mr Ashcroft here. I think "Mister Ashcroft" is sufficiently dignified. [If this displeases him, he is free to call me "mister" rather than "professor."])

As I recall, Mr. Ashcroft's immediate predecessor also seemed to enjoy the title "general." Vanity has no party affiliation.

Are you listening, President Bush? My message: Because of Mr. Ashcroft, I will vote for ANYONE other than you, Mr. President Bush -- and I will do so despite my intense distaste for some of the Democrats who want to take your place. (It's a shame! [Well, o.k., it's not a great shame: because I admit I would like this country to have a decent health care system. But, still, it's a bit of a shame that Pres. Bush has no chance to capture my vote because he wants to have Attorney Ashcroft be the Guardian of this country's security and liberty. {I think Mr A forgot the 2d part -- the "liberty & rights" stuff.}])

Fatal Disease: "Punch those Chads -- but Don't Muss Your Hands with Evidence!"

Yesterday, courtesy of MSNBC, I watched oral arguments before the 9th Circuit's en banc panel about the postponement or non-postponement of the California recall vote. I am only a lowly Evidence teacher, but, with the greatest humility and the utmost diffidence, I would like to make a suggestion to the high-minded counsel -- scholastic counsel, practically -- who do reform litigation about matters such as chads, punch card voting machines, and similar matters. I would like to suggest that sometimes you pay a bit more attention to evidence. Now I realize that mundane matters such as evidence are beneath you; I do appreciate that you feel you should be talking about high constitutional principle, and not about uninteresting stuff such as evidence and facts. But, you see -- if I may be so bold -- even in the noblest crusades constitutional crusaders sometimes just have to muss their hands with earthy [i.e., evidentiary] matter. For example, in the proceedings regarding the California recall, you might just want to make sure that the record amply supports -- that the evidentiary record amply supports the reasonable-sounding but potentially a priori proposition that punch card voting machines are more prone to error than are alternative voting systems, such as the electronic ones that are apparently in use in some other parts of California. (I keep thinking of my Mother, who gets flustered by a TV set, not to speak of an electronic voting machine.) I offer my advice with humility and charity. "Charity?," you might say. I would reply: Yes, well, you see, the sentiment of charity arises in my breast because it was extraordinarily painful to watch you struggle to find some way to assert that punch card machines are less accurate than alternative electronic voting methods without, apparently, actually having any good evidence that what you claimed to be true about punch card voting machines (in comparison to alternative voting systems) is actually true. Your strong aversion to evidence is what apparently accounts for your stratagem of emphasizing that some California official or other had concluded that punch card machines are less accurate than available alternatives. Your difficulty -- the source of which you may not yet realize, which is why I go to the trouble of offering my humble opinion here -- the source of your difficulty in the California oral argument before the 9th Circuit panel was reminiscent of the agonies and embarrassment that your fellow crusaders experienced in Florida, in Bush v. Gore, when, in that lowly Florida trial court, it was finally time for the pro-Gore lawyers to put up or shut up -- i.e., to show, with evidence, that some of the things they had been saying about punch card voting and similar matters were actually true -- and what we got instead, after all of the millions of dollars that had been expended on the pro-Gore legal campaign, were [a mere] four or so pro-Gore witnesses, including one expert on statistical aspects of voting systems who was so badly prepared by the pro-Gore lawyers that today he might well wish that he had never met a lawyer. The point I wish to make, my dear legal brothers and sisters, is that even when it comes to high constitutional principle, evidence and facts do matter. You really must learn this lesson. Otherwise I expect to see further legal shipwrecks -- such as the one I witnessed yesterday.

Mistrial by "Withdrawal" of Juror

The following snippet of oral argument was reported in Sacher v. United States, 343 U.S. 1 (1950):

Mr. Sacher: The point I am making is that in every available means your Honor is conveying to the jury your lack of sympathy if not hostility to the defendants, their counsel's presentation of the case, and in these circumstances I want certainly to note on behalf of my clients a vigorous objection to your Honor's conduct and I wish to join Mr. Gladstein in the motion to declare a mistrial by the withdrawal of a juror.

In Sher v. Stoughton, 666 F.2d 791 (2d Cir., 1981), the U.S. Court of Appeals referred to the following statement made in a New York State murder trial:

Defense counsel then moved for the withdrawal of a juror and for a mistrial ....

In United States v. Russel Means, 513 F.2d 1329 (8th Cir., 1975), the court stated (footnote omitted):

In 1815 Justice Story, sitting as a Circuit Justice, in United States v. Coolidge, 25 F. Cas. 622 (No. 14,858) (C.C.D. Mass. 1815), approved the withdrawal of a juror, creating a technical mistrial in a situation where the jury could not agree on a verdict.

From Wood v. Allstate Ins. Co., 1997 U.S. Dist. LEXIS 14663 (E.D. Pa. 1997):

In response, the [federal trial] Court gave Defendant the option of moving for a recess in the trial so that Defendant could depose Mr. Ashby or moving for the withdrawal of a juror, which would result in a mistrial.

Summers v. State, 2003 Md. App. LEXIS 114 (2003):

Not every trivial act on the part of a juror during the course of the trial amounts to such misconduct as requires the withdrawal of a juror and the continuance of the case. A contrary holding would result in a multiplication of mistrials ....

Third Degree in Oakland

Sam Spade: "Johnny, you can go home once you tell us the truth."

Johnny: "But I've told you the truth. I really have!"

Sam Spade: "Now Johnny, we can sit here as long as you like -- we can sit here until hades freezes over. We'll sit here as long as it takes -- we'll just sit here until we get to the bottom of this."

...[long pause]..

Johnny: "O.k. I'll tell you what you want."

Sam Spade: "Now, Johnny, that's not the way this game is played. We just want the truth, you know. That's all we're after. Do you understand?"

...[long pause] ...

Johnny: "O.k., o.k. I vote guilty. He's guilty. Now can I go home?"

Jury forewoman: "Good work, Sam. Call the bailiff. Tell him the jury has agreed on its verdict. We can all go home now."

Mutiny on the County!

Defense attorneys in the "Riders" case (see earlier posts) said that jurors could become "mutinous." (San Francisco Chronicle, Final Edition, September 20, 2003.)

Free the Alameda Twelve! [or Six, as the Case May Be]

Do you suppose the Alameda County jurors (see first post for 9/21/2003) -- ah yes, I see: there are 12 of them --, do you suppose those jurors have an action for false imprisonment? For intentional infliction of emotional distress? Could they bring a habeas corpus action? In an appropriate case, an action to recover damages for loss of employment? An action for the alienation of the affections of their spouses (if any), children (if any), and friends (if any)? Would they have a good defense -- necessity, for example -- if they simply failed to appear for their next tour of duty? Would a joint juror decision not to appear for further jury duty -- the word "duty" takes on new meaning here -- amount to a conspiracy to obstruct justice?

The situation is rife with possibilities (and immunities and privileges, I suppose)!

In the old days trial judges would achieve a judicially-desired mistrial by ordering the "withdrawal of a juror." I don't know when this quaint and thoroughly non-transparent language disappeared from U.S. courtrooms.

How Hard Is Hard Science?

New York Times, Week in Review p. 2 (September 21, 2003):

"There's a Reason It's Called Hard Science

"Apparently the life of the typical scientist isn't filled with 'Eureka' moments ... 'There are aspects of science ... that sound at best distateful and at worst unbearable,' William Speed writes [in Popular Science].

"High on the list of most-unpalatable professions ... [is] 'dysentery stool-sample analyzer' .... Most of the other jobs are too disgusting to print here."