The Absence of the Appurtenances of a Process of Proof, and the Shell of a System of Adversary Ajudication

Jim Yardley, Desperate Search for Justice: One Man vs. China, NYTimes Online (November 12, 2005):

A quarter century ago, after the chaos of Mao's Cultural Revolution, China essentially had no legal system. In that context, it has made significant strides. The 1996 reforms were intended to shift toward an adversarial trial process, modeled in part after the American system. Instead, the reforms have become most notable for what was left out.

"They didn't put in rules of evidence," said Jonathan Hecht, deputy director of the China Law Center at Yale University. "They didn't put in requirements that witnesses appear at trial. Lawyers weren't given the ability to really prepare a case. They kind of created the shell of an adversarial process, but they didn't create the guts of it."

When Chances Collide; DNA & "Exoneration"; Suggestibility & Gullibility

WORLD & NATION BRIEFS, Newsday (November 12, 2005) p. A17:

A Wisconsin man who spent 18 years in prison for rape until being exonerated by DNA evidence in 2003 will be charged with killing a woman whose vehicle was found near his home, a prosecutor said Friday. Steven Avery's blood was found inside Teresa Halbach's sport utility vehicle, said Calumet County District Attorney Ken Kratz, who plans to charge Avery by Tuesday. Avery has denied involvement in the disappearance of Halbach, 25, who was last seen Oct. 31. The freelance photographer had three appointments that day to take pictures of vehicles for sale, including one at a salvage yard owned by Avery's family in Manitowoc County, about 25 miles south of Green Bay.

Transcript from Nancy Grace Show, "Prosecutors Zero in on Suspect in Murder of Teresa Halbach," (November 11, 2005):

RICHARD HERMAN, DEFENSE ATTORNEY [for Avery]: Well, Harris, I have to pick myself off the floor here because Wendy [Murphy] just blew me away. I got to tell you something. There`s not going to be a new trial in the old case because he was completely vindicated. Vindicated! It was reversed. The conviction was reversed. He was wrongfully imprisoned for 18 years.

The Innocence Projects do wonderful work. But perhaps this case shows (again) that great care should be taken before claims are made that this or that DNA "proves" this or that man's (or woman's) innocence. There is no conclusive proof of innocence (or guilt). See P. Tillers, DNA Redux to the Fourth Power: Thoughts Inspired by -- but Not necessarily Faithful to the Facts and Recent Developments in the Central Park Jogger "Wilding" Case, in Tillers on Evidence and Inference (blog), September 8, 2002.
P.S. Headline: Steven Avery Receives Standing Ovation from Wisconsin's Assembly and Senate Judiciary Committee. Steven Avery and the woman he was (wrongfully?) convicted of raping 20 years ago -- Penny Beerntsen -- testified before the Assembly and Senate Judiciary Committee of the Wisconsin legislature. Avery's case was apparently a kind of cause celebre in Wisconsin and it apparently became a fulcrum for an effort there to pass legislation to improve pretrial identification procedures. After they testified, both Avery and the woman whom he had been (wrongfully?) charged with raping "received standing ovations from the committee members and others in attendance." David Ziemer, Legislature holds hearing on Avery Task Force reforms in Wisconsin, WISCONSIN LAW JOURNAL (September 14, 2005).

I can't help wondering if the truly-unfortunate Ms. Penny Beerntsen still thinks that the lineup identifications used in her case mistakenly led her to identify Avery as the culprit. Ms. Beernsten was apparently persuaded that her initial recollection and belief that Avery was the rapist was wrong. The Wisconsin Law Journal, id., reported, "Yet even though [Ms. Beernsten] knows that Avery was not the one, she still sees his image when she recalls the attack, so suggestive were the identification procedures then in place, and still in place throughout the state." The Avery-Beernsten case may yet demonstrate that suggestive procedures may lead witnesses to incorrect conclusions -- but, if so, the lesson here may be that well-intentioned and passionate reformers are also capable of implanting false thoughts in the minds of witnesses. This case really may prove to be a terrible twist of fate -- and of human gullibility (in many places).

P.P.S. The malefactor who killed Teresa Halbach apparently burned her body in an effort to destroy the evidence. But the effort at evidence destruction was not entirely successful -- burned bone, teeth, and blood were found in Halbach's car -- and the body parts and fluids that remained after the fire were apparently such that at least some DNA testing could be done on them. DNA apparently plays a role in the Avery-Halbach homicide case in another way: DNA testing strongly suggests that Avery was the source of some of the blood found in Teresa Halbach's car. This evidence suggests that sometimes it may be appropriate to say:

If you live by DNA, you may also die by DNA

The Right of Divine Monarchs: The President's Power to Detain, Charge, Prosecute, Create Law, Adjudicate, Sentence, and Execute & Put to Death

This blawg generally sticks to topics in the law of evidence, proof, and fact investigation. But not always. And not now, after my eye was caught by the breathtaking extent of the authority claimed by the President in the name of the "war" on terror. Consider Petition for Writ of Certiorari, Salim Ahmed Hamdan v. Donald H. Rumsfeld et al. (August 8, 2005):

Almost four years ago, Petitioner Hamdan was captured by indigenous forces while attempting to flee Afghanistan and return his family to Yemen. After being turned over to American forces, he was taken in June 2002 to Guantanamo Bay Naval Base, where he was placed with the general detainee population at Camp Delta. ... In July 2003, the President found that Petitioner was eligible for trial by commission. Accordingly, he was placed in solitary confinement from December 2003 until late October 2004 ....

"[The United States District Court for the District of Columbia] ruled that [military] commissions [appointed by the President] may be used only to hear offenses that are triable under the laws of war, including the Geneva Conventions; that the Geneva Convention Relative to the Treatment of Prisoners of War ... is judicially enforceable; and that, as long as [Hamdan's] prisoner-of-war (POW) status is in doubt, Petitioner [Hamdan] must be tried by court-martial. ...

...

... [T]he court of appeals reversed the district court in an opinion written by Judge Randolph and joined by Judge Roberts [now Chief Justice of the Supreme Court of the United States] in full and Judge Williams (in part). [footnote omitted] ...

....

...[T]he court of appeals largely based its ruling on [the Supreme Court's] Eisentrager decision, accepting the President's claim of power to convene a commission to try most any offense, against any offender (including a United States citizen or nationals of any country in the world), in any place (including the United States). The President was allowed that power not for a fixed time, such as a war declared against a specific nation-state, but rather for perpetuity against an amorphous enemy that could include nationals of every country in the world. In these tribunals, the President was given the power to disregard not only American common-law and military law, but international law--despite the fact that the raison d'etre of commissions is to enforce international law.

...

In the end, the court of appeals held that the President has the power to decide how a detainee is classified ..., how he is treated, what criminal process he will face, what rights he will have, who will judge him, how he will be judged, upon what crimes he will be sentenced, and how the sentence will be carried out. The President is [allegedly] entitled to "pas[s] sentences and ... carr[y] out ... executions" through commissions, even if they do not "afford[d] all the judicial guarantees which are recognized as indispensable by a civilized people." ...

This reversal of the district court cannot be correct. The Revolution was fought to ensure that no man, or branch of government, could be so powerful. In a system of checks and balances, there can never be a time when the rule of law does not circumscribe power as fundamental as adjudicating culpability and punishment. Our forefathers paid a heavy price in blood to establish these principles, and it is our duty to defend them from all threats, foreign or domestic.

The Brennan-Warren Court may have made mistakes. But in one respect that Court was not mistaken: We must fear any government that imprisons or executes people without any semblance of due process of law. Public perception that a great public emergency exists is distressingly easy to manufacture. But a bit of perspective is in order. Our times are not more threatening than was the era of the Cold War, a time when the threat of nuclear annihilation loomed. The Presidency did not claim the power then that it does now. There is not more reason to suspend fundamental civil liberties now than there was in the 1950s and 1960s.

Leisurely and Productive Contemplation in ... the U.S. Academic World?

Howard W. French, China Luring Scholars to Make Universities Great, NYTimes Online (October 31, 2005):

Mr. Yang, who leads a small experimental university in Ningbo, also criticized the lack of autonomy given to many Chinese researchers.

"At Princeton one mathematician spent nine years without publishing a paper, and then solved a problem that had been around for 360 years," Mr. Yang said, a reference to Andrew J. Wiles and his solution to Fermat's last theorem in the early 1990's. "No one minded that, because they appreciate the dedication to hard work there. We don't have that spirit yet in China."

This happens at Princeton, you say?

Does it happen anywhere else in these dear United States?

Expertise in Iceland

Editors, Justice in Iceland (Interview with Judge Tomas Magnusson), 8 Green Bag (2d Series) 393, 395 (2005):

Do you have juries?

We have no jury at all. Most cases are heard by one judge, but we can also have three judges. ... In complex civil and criminal cases there are three judges, and two of them can be specialists -- for example, plumbers, engineers, or medical doctors. These expert judges are not lawyers.

These people serve as expert witnesses?

No, they aren't expert witnesses in the American sense -- we have no expert witnesses per se. These specialists are called by the court, and they play almost the same role in the procedure as the full-time judges.

Probabilistic Computational Intelligence: The World Is Gray, Not Black and White

John Markoff, Behind Artificial Intelligence, a Squadron of Bright Real People, NYTimes Online (Oct. 14 2005):

While artificial intelligence technology is already in use in telephone answering systems with speech recognition and in popular household gadgets like the iRobot vacuum cleaner, none of the existing systems have been as ambitious as Darpa's Grand Challenge road race.

This leap was possible, in large part, because researchers are moving from an approach that relied principally on logic and rule-based systems to more probability or statistics-oriented software technologies.

"In the past A.I. has been dominated by symbolic systems and now the world is gray," said Terrence J. Sejnowski, head of the computational neurobiology laboratory at the Salk Institute in La Jolla, Calif. "That's what it's like to deal with the real world."

N.B. Probability theory is essential. But it's not the whole story. And probability theory may not be the only coherent and effective mathematical strategy for dealing with uncertainty and shades of gray.

Canine Personality, Canine Character, Canine Science & Canine Value

Brown v. Eberly, 2002 U.S. Dist. LEXIS 22012 (E.D.Pa. 2002) grew out of a civil action by a couple against a police officer for shooting their dog, a female Rottweiler. The trial judge, Thomas N. O'Neill, considered various motions. His memorandum opinion states in part:

3. Defendant's motion to preclude all testimony and exhibits that seek to attribute human qualities or attributes to plaintiff's dog

The issue to be tried is whether defendant's actions on April 8, 1998, violated plaintiffs' constitutional and state law rights. Evidence that would seek to attribute human characteristics to the dog is not relevant and will be excluded.

The pictures attached to defendant's motion must be examined under a Rule 403 analysis. The first picture, of the parking lot at the location of the incident, is clearly admissible. The picture of the dog and the child on the couch with the child thinking "we're best buddies" is excluded under Rule 403. The third picture attached to the motion shows one of plaintiffs' children leaning on the dog, who is [lying] on the floor. It is admissible because it is evidence of how well behaved the dog was with people and is not unfairly prejudicial to the defendant. The fourth picture shows the dog by herself wearing a large bow around her neck. Unless the dog was wearing this collar when shot on April 8, 1998, the picture is excluded under Rule 403.

4. Defendant's motion in limine to preclude all character testimony related to plaintiff's dog

Plaintiffs seek to introduce testimony establishing the friendly nature of their dog in an attempt to refute defendant's claim that she lunged at him. Defendant argues that such testimony is inadmissible character evidence under Federal Rule of Evidence 404.

We have not found any Pennsylvania or Third Circuit cases addressing whether evidence of past behavior of an animal should be excluded under Rule 404, however, the highest courts of several states have admitted such evidence. See Hood v. Hagler, 1979 OK 163, 606 P.2d 548, 551-52 (Okla. 1979); Forsythe v. Kluckhohn, 161 Iowa 267, 271, 142 N.W. 225 (Iowa 1913); Stone v. Pendleton, 21 R.I. 332, 43 A. 643, 643-44 (R.I. 1899); see also 1A Wigmore, Evidence § 68a (Tillers rev. 1983). I will not exclude evidence concerning Immi's disposition as inadmissible character evidence.

...

8. Defendant's motion in limine to preclude the expert report of Andrew Bensing

Plaintiffs seek to have Andrew Bensing testify as an expert on the behavior of Rottweilers. He would testify to the behavior of female Rottweilers as a breed and the behavior of Immi in particular. Defendant challenges the testimony on three grounds: (1) that it would be inadmissible character evidence; (2) that Mr. Bensing's experience with the dog would be irrelevant because it ended over a year before the shooting; and (3) that it does not satisfy the prong of the Daubert analysis that requires a "fit" between the expert testimony and the facts of the case.

The objection to the testimony as inadmissible character evidence is taken care of by my ruling on character testimony in general. Testimony about Immi's past behavior is admissible.

That Mr. Bensing's frequent contact with the dog ended a year before the incident does not render his testimony irrelevant. Mr. Bensing had extended contact with Immi for over two years and then occasional contact with her until her death. Defendant may point out to the jury that Mr. Bensing's time with the dog was only occasional for a year before her death, but he cannot preclude his testimony entirely.

Defendant's argument about the "fit" step of the Daubert analysis will be considered at a Daubert hearing.

9. Defendant's motion in limine to limit testimony regarding the valuation of plaintiff's dog

Under Pennsylvania law a dog is personal property. 3 P.S. § 459-601 (2002); Desanctis v. Pritchard, 2002 PA Super 221, 803 A.2d 230, 232 (Pa. Super. 2002) 3 P.S. § 459-601 (2002). It is proper as regards the section 1983 claim, therefore, to limit testimony regarding the value of the dog to that addressing its value as a piece of personal property. No testimony regarding the value of Immi to the plaintiffs in particular will be admitted as evidence regarding the valuation of the dog.

Imprecise Language and Imprecise Perceptions

Consider the following statement by Professor Lotfi Zadeh in his recent abstract Computation with Information Described in Natural Language—The Concept of Generalized-Constraint-Based Computation (October 5, 2005):

Computation with information described in natural language cannot be dealt with through the use of machinery of natural language processing. The problem is semantic imprecision of natural languages. More specifically, a natural language is basically a system for describing perceptions. Perceptions are intrinsically imprecise, reflecting the bounded ability of sensory organs, and ultimately the brain, to resolve detail and store information. Semantic imprecision of natural languages is a concomitant of imprecision of perceptions.

Legal theorists, students of legal reasoning, and aficionados of factual inference in legal settings: What say you?

Deprivation of US & NJ Right of Confrontation because Trial Court Barred Defense from Cross-Examining Prosecution Witness about Polygraph Test Results

State v. Castagna, 376 N.J. Super. 323, 870 A.2d 653 (April 12, 2005), cert. granted, 185 N.J. 35, 878 A.2d 852, (July 7, 2005):

Our decision to reverse is based on an erroneous legal ruling that operated to deprive all three defendants of their right to confront the witnesses against them, as guaranteed by the Sixth Amendment of the Constitution of the United States, as applied to the states by the provisions of the Fourteenth Amendment, and as independently embodied in Article I, Paragraph 10 of the New Jersey Constitution. This constitutional deprivation came about when the trial court precluded defense counsel from cross-examining a key prosecution witness on the results of a stipulated polygraph examination, because these defendants were not parties to the stipulation.

We hold that when the State enters into an agreement with a witness, stipulating to the admissibility of the results of that witness's polygraph examination, a defendant has a constitutional right to confront that witness, in cross-examination, with the results of the polygraph, as a means of impeaching that witness's credibility. As a matter of fundamental fairness, we also hold that, under these circumstances, the State is precluded from disavowing the reliability of the polygraph results.

Liberal Politics & Cronyism & Persuasive Legal Interpretation

It is interesting, revealing, discouraging, and, yes, disgraceful to see that even liberal, tub-thumping, and moralizing politicians such as Senator Schumer seem not to mind that Miers is an undistinguished nominee to the Supreme Court. In his initial press conference Schumer effectively said it matters not that Miers is Bush's crony. All that matters to Schumer, it seems, is that Miers vote the "right" way as often as possible.

Fie on both of your houses, on (some of) you Democrats and on Republican Bush-sycophants! Whether we like it or not, in our constitutional scheme a Supreme Court Justice must have some of the qualities of both a philosopher king and a Biblical scholar. The Supreme Court leads not only and not even primarily by reason of its coercive legal authority. The Supreme Court leads in very significant part by reason of the lucidity and the persuasiveness of its pronouncements.

Although Miers cannot be called one of the country's preeminent private lawyers, she did have an impressive record in private practice. But nothing in her record attests to her ability to explain her vision of American constitutional principles to other people, either to lawyers or to the country as a whole. (Indeed, nothing in her record suggests even her ability to divine, or infer, plausible constitutional principles from the text, history, and philosophy of the U.S. Constitution.)

Harriet Miers is not a street cleaner. She is unquestionably intelligent. It also appears that she has been a zealous and effective advocate for her clients. But, my dear Senators, the question now is the composition of the Supreme Court. Not every intelligent person, not every canny person, and not every successful legal practitioner is qualified to prescribe and explain the legal rules that constitute the foundation of the American system of government.

A Small Circle of Friends

The Hon. Harriet Miers once described George Bush as the most intelligent man she had ever met. One presumes that Ms. Miers has a very small circle of friends and acquaintances.

The Judicial Philosophy of the Hon. Harriet Miers

Harriet Miers' judicial philosophy is plain. When introduced by the President, she said she is in favor of strict construction of the law. The meaning of "strict construction" is plain. Isn't it?

Well, perhaps not.

Let's see if we can clarify her position. Let's apply Miers' interpretive strategy to "strict construction." Isn't that fair?

The first step is to take the words "strict" and "construction" as written (or spoken?).

The second step is (isn't it?) to take words in their ordinary sense -- their common sense sense, so to speak.

Well, then, the third step is clear: If judges are to avoid putting themselves into the words of the law -- and they are to follow the words of their law rather than their personal and subjective views of the meanings of those words --, they should turn to dictionaries and thesauruses (thesauri?) to ascertain the ordinary meaning of words. Right?

Well, then, let's use that method now.

[I leaf through my thesaurus.]

Can "strict" mean "harsh" and "construction," "fabrication"? So Miers favors harsh fabrication of the law? Mmm, I don't want to use her private intentions to construe her words, but, still, this -- "harsh fabrication" -- doesn't sound quite right.

[I leaf through my thesaurus again.]

Aha! I have it! By "construction" she means "interpretation" and by "strict," she means "crabbed." So Miers favors a crabbed interpretation of the law. A strict construction of her comments proves this.

&&&&

While blogging here, I just heard President Bush say (in a news conference) that Miers shares his judicial philosophy. I confess I didn't realize that Bush has a judicial philosophy. Is it originalism? Does he favor the Court's use of the evolving standards of civilized nations to interpret the Constitution? Is Bush in favor of a natural law approach to the Bill of Rights? Well, time will tell, more or less. Yes? No?

Miers: Harold Carswell Reincarnate?

Senator Roman Hruska, a Phi Beta Kappa graduate of Creighton University, said:

Even if he [Carswell] was mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises and Cardozos and Frankfurters and stuff like that there.

Warren Weaver, Jr., Carswell Attacked and Defended as Senate Opens Debate on Nomination, N.Y. TIMES, March 17, 1970, at 21.

Jurisprudential Cipher

Harriet Miers.

Abe Fortas.

Loyalty.

The Death of Innocence

The Supreme Court recently agreed to review the decision of the South Carolina Supreme Court in a capital case, State v. Holmes, 605 S.E.2d 19 (2004). The Court agreed to consider the following question:

Whether South Carolina's rule governing the admissibility of third-party guilt evidence violates a criminal defendant's constitutional right to present a complete defense grounded in the Due Process Confrontation, and Compulsory Process Clauses?

See Holmes v. State, 2005 WL 770655 (March 31, 2005)(petition for writ of certiorari) and Holmes v. South Carolina, -- S.Ct. --, 2005 WL 770216 (Sept. 27, 2005)(granting petition for question stated above).

Holmes raises a variety of issues. Some of the issues in the case involve the razzle dazzle of forensic science, including DNA evidence and palmprint evidence. But such razzle dazzle is peripheral to the main issues presented by Holmes' successful petition for Supreme Court review; the important issues are quite traditional and have little or nothing to do with technology.

Try as it might -- and try it probably will -- the Supreme Court will not be able to entirely avoid two broad questions:

1. What is the relationship between the due process guarantee of fair trial -- which, the Court has said or suggested, encompasses a guarantee of trial rules and procedures that are likely to produce a high degree of factual accuracy in criminal trials -- and nonconstitutional rules of evidence. (Some members of the Court may fall prey to the temptation to refer with scorn to the proposition [advanced by whom?] that the due process clause constitutes a code of evidence.)

2. Does the due process guarantee of proof beyond a reasonable doubt have any meaning in the absence of constitutional rules guaranteeing that an accused will have an opportunity to submit evidence of innocence if such evidence meets some threshold of probative value? (Some members of the Court may fall prey to the temptation to rely again on the hypertechnical argument that the due process guarantee of proof beyond a reasonable doubt standard speaks only to the way that the trier of fact should evaluate admissible evidence, and not to the question of the kinds of exculpatory evidence that must be admitted in a criminal trial. [The theory here is: The scales are heavily tilted against the prosecution but the reasonable doubt requirement does not prohibit the prosecution from preventing the accused from placing some of his heavy stones on the scales of justice.])

Other grand issues -- even broader than the two I have just mentioned -- are presented by Holmes. But I will restrain myself and I will not mention them now. But I feel compelled to mention one additional question. Holmes does arouse (in my breast) one nagging suspicion or question:

What is the true reason for the persistent tendency to impose sharp limitations on attempts by criminal defendants to show their innocence by introducing evidence of the guilt of third persons? Are these limitations imposed to avoid the waste of time and resources? Or do the restrictions on such evidence grow out of the fear that juries will often -- too often -- find such evidence persuasive?

But if the last reason is the true motivation for restrictions of third-person guilt, is the fear justified? Why should jurors have any more difficulty assessing this sort of evidence than they have assessing any other sort of exculpatory evidence?

The suspicion that juries will fall prey to manufactured evidence of third-person guilt is puzzling: juries as well as judges can and will use their common sense and their ingrained skepticism when they evaluate "admissions" of guilt by jailbirds and other suspicious characters. So what accounts for the unusually stringent limitations on such exculpatory evidence?

Is the persistent suspicion of evidence of third-person guilt somehow rooted in an unspoken belief that assessment of such evidence normally involves after-the-fact assessments of failure to investigate and that such post hoc assessments of whether an investigative road not taken should have been taken are very, very difficult, so difficult that triers such as jurors will make too many mistakes about such questions?

No Mindless Legalisms Here!

It has often been said that private associations such as law schools are not required to apply rules of evidence or rules of procedure that apply in proceedings such as trials. It has also been said that it does not make sense for private associations to apply trial rules and trial formalities; doing so, it has been suggested, would constitute just another instance of mindless legalism. As the following announcements show, one law school has taken these two precepts very much to heart:

I

E-Mailed University Announcement, September 16, 2005

University President XXXXXX announced on September 14, 2005 that Dean YYYYYYY has been reappointed as dean.

II

E-Mail Message from Law School Administrator
to Law School Faculty, September 23, 2005

I quote two provisions from our rules:

In the fall of the fifth year of a Dean's original appointment, the faculty shall consider whether to recommend to the President that the Dean be reappointed. Reappointment shall be recommended if a majority of all faculty member eligible to vote on original appointments to the faculty vote to recommend reappointment. The Dean shall be recused for the purpose of this vote...

A meeting to consider reappointment shall be scheduled for 4:00 PM on the second academic Tuesday in October of each year in which the faculty is required to consider the Dean's reappointment. The chairperson of the faculty appointments committee shall chair the meeting and shall inform the President of the faculty's recommendations.

This is indeed the fall of the fifth year of YYYY's appointment as Dean. We have a faculty meeting already noticed for Tuesday, October 11, and this matter will be put on the agenda for that meeting.

END OF UNIVERSITY AND LAW SCHOOL MESSAGES

There are various possible explanations for the above sequence but, whatever they are, it is probably safe to assume that the vote of the law faculty on October 11 on the reappointment of Dean YYYYY will be a formality. In any event, why should the trial precede the judgment? What a silly idea.

Visualization of Evidence and Inference for Legal Settings

Visualization is a hot topic in scholarship about evidence and information in a large variety of settings (e.g., military, weather, traffic control). Visualization is also fast becoming a hot topic in the study of evidence and inference in legal settings.

It is time for a conference on the visualization of evidence and inference in and for legal settings such as trials, pretrial investigation, and prelitigation investigation. Yes? No?

Visualization is important for a great variety of purposes. It is important, for example, for effective effective persuasion (lawyers tend to call this "advocacy"). It is also important for the intelligibility of complex evidential argument (and little if any real-world evidential argument, or factual inference, is simple). Visualization also facilitates the ability of people to recall large quantities of evidence. Visualization may also be a good window into the workings of the mind.

N.B. Sightless people are capable of certain forms of visualization, no? A good question then is, "What, precisely, is (are) this (these) thing (things) called 'Visualization'?"

Willy Lomanhood (again)

I see that one law school is now recruiting applicants for the position of Assistant Associate Professor of Law. My gosh! This position is almost as good as the position of Chief Bottle Washer.

Witness Credibility: Humans and Other Animals Are Natural-Born Liars

David Livingstone Smith, Natural-Born Liars. Why do we lie, and why are we so good at it? Because it works Scientific American Mind (online) June 2005:

... Why do we lie so readily? The answer: because it works. The Homo sapiens who are best able to lie have an edge over their counterparts in a relentless struggle for the reproductive success that drives the engine of evolution. As humans, we must fit into a close-knit social system to succeed, yet our primary aim is still to look out for ourselves above all others. Lying helps. And lying to ourselves--a talent built into our brains--helps us accept our fraudulent behavior.

Passport to Success

If this bald truth makes any one of us feel uncomfortable, we can take some solace in knowing we are not the only species to exploit the lie. Plants and animals communicate with one another by sounds, ritualistic displays, colors, airborne chemicals and other methods, and biologists once naively assumed that the sole function of these communication systems was to transmit accurate information. But the more we have learned, the more obvious it has become that nonhuman species put a lot of effort into sending inaccurate messages.

...

... [But] our talent for dissembling dwarfs that of our nearest relatives by several orders of magnitude.

NYTimes on Destruction of Evidence

See Peter Applebome & Jonathan D. Slater, In New Orleans, a Legal System Is in Shambles, NYTimes Online (Sept. 9, 2005)(story dated Sept. 8).