Another (Painful) Example of the Importance of Evidence Marshaling

See Marc Mazzetti & Eric Lipton, "Spy Agencies Failed to Collate Clues on Terror," NYTimes (Dec. 30 2009)

MarshalPlan 3.0

Three Generations of the New Evidence Scholarship

The first generation of the New Evidence Scholarship emphasized the heuristic uses of mathematical analysis of evidence; it emphasized that numbers (especially as used in probability theory) could illuminate the logic and structure of factual inference in general and of particular problems of factual inference.

The second generation of the New Evidence Scholarship focused on mathematically-laden problems of scientific evidence (e.g., DNA evidence) and on problems of factual inference that seem tractable to statistical analysis.

The third generation of the New Evidence Scholarship (NES) also uses mathematical argument and analysis. But this variant of NES does not require or expect consumers of mathematical analysis to do computations. Instead, NES-3rd uses mathematics and computations to develop tools for deliberation about inference, tools that do not require or expect the user of the tool to do computations.

A key premise of this third generation of NES is this: rigorous analysis (including mathematical analysis) is required to design a tool that promotes or supports or facilitates logical inference by ordinary people about ordinary [non-scientific] problems but the tool thus produced must not require such ordinary people to do mathematical computations.

Two major practitioners of NES-3rd are Douglas Walton and Tim van Gelder. (There are others.) Of course, the third approach to factual inference was, so to speak, there all along, at least in a germinal form: Wigmore's charting method (which appeared in print in 1937) anticipated key ingredients of the third approach. William Twining refurbished and modernized Wigmore's charting notations (and was among the very first to defend the importance of Wigmorean-style charting of evidential inference). David Schum married Wigmorean charting with mathematics and produced probabilistic inference networks. Working from left field (i.e., not starting within NES-1st or NES-2nd), Tim van Gelder is now effectively taking this progression to the final and critical stage. He is doing so by emphasizing how important it is that math- and logic-generated charts, diagrams, pictures, images, and, in general, conceptual tools present and portray problems of inference in a way that is intuitive and natural and intelligible to "ordinary" human beings (whose reasoning capacities are in fact extraordinary).

The most exciting and revolutionary developments in NES are yet to come. And some of the most exciting of these exciting developments are bubbling up from down under.

Created with Rationale(tm)

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The dynamic evidence page

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

The Brilliance of False Memories

Salvador Dali in THE COLUMBIA WORLD OF QUOTATIONS (Robert Andrews et al. eds., 1996), as quoted in Allison J. Garton, Comment: Reconciling the Incongruous Demands of Therapist-Patient Confidentiality and Falsely Accused Third-Parties, 2006 Cumberland Law Review 77, 77:

The difference between false memories and true ones is the same as for jewels: it is always the false ones that look the most real, the most brilliant.

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The dynamic evidence page

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

What are the purposes of the law of evidence and proof?

An opinion I read today (see below) got me to thinking (again) about the purposes of the law of evidence and proof and the constraints to which is it is subject. What are those purposes and constraints? How are they related to each other? Can questions about such purposes and constraints even be addressed without a theory of society? How can a lowly scholar of evidence and the law of evidence hope to develop such a theory (or even a theory of the workings of a particular society)? But can judges avoid matters such as "fairness," "truth-finding," "efficiency," "dignity of witnesses," and so on? If not, is it better for courts to talk explicitly about such considerations than to remain silent about such matters? If so, must not the lowly Evidence scholar do his or her best to explain the role that such matters play and should play in judicial proof (or in specific parts of it)? Or not?

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See the node on the purposes of the law of evidence (and the material under it) in the evidence module of Spindle Law.

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State v. Guinn, 114 Idaho 30, 39 at 39-41 (Idaho Ct. App. 1988) (Burnett, J., concurring):

I join the Court in setting aside the judgment of conviction and in remanding the case for a new trial. For guidance on remand, the Court has discussed the defendant's attempt to discredit a prosecution witness by showing that the witness used marijuana. The discussion focuses on I.R.E. 608(b). I write separately to offer a critical evaluation of Rule 608(b) and to comment on its application, together with other rules, in the present case.

I

Impeachment is a vexatious subject because it brings into conflict several objectives of our judicial system. On one hand, we seek to ascertain the truth in factual disputes. If there is reason to doubt the credibility of a witness, the triers of fact should be so informed in order to make an intelligent assessment of the testimony. On the other hand, we also strive for judicial efficiency. If challenges to the credibility of witnesses are not regulated in some fashion, trials may become sidetracked by the pursuit of collateral issues. In addition, we seek to uphold the integrity of judicial processes and to protect the dignity of persons who participate in them. If attacks on witnesses are unrestrained, citizen respect for -- and cooperation with -- the courts may be impaired.

Before the Idaho Rules of Evidence were adopted, the scope of impeachment was tightly confined. It reflected a dominant concern for efficiency, court decorum and witness protection. Impeachment was regulated by Rule 43(b)(6), I.R.C.P. This civil rule prohibited impeachment of a witness "by evidence of particular wrongful acts, except . . . [by] prior conviction of a felony . . . relevant to his credibility . . . ." Thus, it was impermissible to attack the credibility of a witness by attempting to show that he had engaged in bad acts, other than felony convictions, which called his character for truthfulness into question. Of course, if evidence of such bad acts was relevant to another issue in the case, it could be admitted -- but only for that limited purpose. E.g., State v. Dayley, 96 Idaho 527, 531 P.2d 1172 (1975); see generally REPORT OF THE IDAHO STATE BAR EVIDENCE COMMITTEE at C 608, p. 3 (December 16, 1983).

Today the Idaho Rules of Evidence and the similar federal rules reflect an increased concern for the truth-seeking objective of a trial. They broaden the opportunity to challenge the credibility of a witness on the basis of his prior misconduct. Rule 608(b) authorizes the trial judge, in the exercise of discretion, to allow inquiry upon cross-examination into any specific acts which are probative of the witness's character for untruthfulness.

The rule must be read carefully. It is important not only for what it says but also for what it does not say. It says that impeachment to show character for untruthfulness is limited to an inquiry upon cross-examination. The impeaching party may not introduce extrinsic evidence of prior bad acts for this purpose. However, the rule is silent regarding impeachment by specific acts to challenge credibility on other grounds. The rule says nothing, for example, about impeachment to show bias or improper motive for testifying. Commentators on the federal rule have treated this silence as pregnant -- that is, as an indication that extrinsic evidence can be used to show bias or improper motive on the part of a witness. See, e.g., 1 G. JOSEPH & S. SALTZBURG, EVIDENCE IN AMERICA Section 42.3 (1987). Indeed, some jurisdictions have added language to their rules of evidence explicitly distinguishing between impeachment to show character for untruthfulness and impeachment to show bias or improper motive. See, e.g., Rule 609.1, Hawaii Rules of Evidence.

The distinction, simply restated, is between a propensity to lie and a reason to lie. The witness with a character for untruthfulness has a propensity to lie; the witness with a bias or improper motive has a reason to lie. By allowing the issue of untruthful character to be raised only in cross-examination, but allowing bias or improper motive to be shown by extrinsic evidence, Rule 608(b) reveals an hidden hypothesis. The hypothesis is that the truthseeking objective of a trial is threatened less by a propensity to lie than by a reason to lie.

This hypothesis is grounded in the conventional wisdom that a propensity to lie is a general trait; it may or may not be exhibited on a particular occasion or on a particular subject. In contrast, a reason to lie is specific; it may be triggered by the occasion and subject matter of the trial itself. Accordingly, it is thought to be a more direct threat to the truth-seeking process.

Such conventional wisdom is valid in the abstract; but it breaks down when a propensity to lie actually manifests itself in the courtroom. If a witness on cross-examination denies a prior bad act which indicated a character for untruthfulness, and if it can be shown that the denial is false, the witness's lack of credibility is confirmed. He has demonstrated his willingness to lie under oath during the trial itself. The triers of fact would have strong reason to doubt his testimony on any issue. Their skepticism would be no less abiding than if the impeaching party had presented facts from which a possible bias or improper motive might be inferred. Nevertheless, Rule 608(b) prevents the triers of fact from learning that the witness has testified falsely about a fact relating to his character for untruthfulness. Extrinsic evidence to contradict the false testimony may not be presented. The cross-examiner must accept the witness's answer.

The anomaly is obvious, yet the limitation persists. One reason, perhaps, is that a crafty lawyer may be able to impugn a witness's character on cross-examination, without resorting to extrinsic evidence. As a distinguished federal judge has noted:

[T]he very question itself can convey the theoretically barred information to the jury. A skillful but unscrupulous cross-examiner can, with a great flourish of impressive-looking papers, ask the witness about incidents in his life in such detail as to time and place as to render his denials completely suspect.

3 J. WEINSTEIN, WEINSTEIN'S EVIDENCE (1984), at 608-25 and 608-26. But if Rule 608(b) is intended, at least in part, to uphold the decorum of the court and to protect the dignity of witnesses, then Judge Weinstein's observation tells us that the rule is not working. It would be a strange logic that justifies a rule-imposed limitation on the ground that the rule can be circumvented anyway.

The other rationale for Rule 608(b) is judicial efficiency. The rule shortens a trial by avoiding a dispute over extrinsic facts relating to a witness's character for untruthfulness. Efficiency is a valid purpose. However, an absolute bar on extrinsic evidence accomplishes this purpose at a cost. It withholds from the triers of fact evidence that the witness has lied on cross-examination. Of course, this cost may be insignificant where the cross-examiner has succeeded in casting aspersions upon the witness by the use of thespian techniques. But in many cases the cross-examiner is neither so skillful nor so unscrupulous. In those cases the cost of an absolute rule is high.

Do we need the rigid restriction imposed by Rule 608(b) in order to achieve judicial efficiency? I think not. Elsewhere in the Idaho Rules of Evidence are provisions granting judges discretionary authority to prevent trials from becoming embroiled in collateral matters. Rule 403 authorizes a judge to exclude evidence, although relevant, "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." In addition, Rule 611(a) empowers the judge to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment."

Both of these rules authorize the judge to limit questions or presentations of evidence where the probative value is outweighed by other considerations. In my view, these rules are sufficient to serve the objective of judicial efficiency. There is no persuasive reason to add the narrow and absolute prohibition against extrinsic evidence of untruthful character now found in Rule 608(b). Although this prohibition has an historical lineage, and exists in the rules of many other jurisdictions, we should consider abolishing it in Idaho. It does not serve well the purposes ascribed to it, and it is not consistent with the flexible tenor of the Idaho Rules of Evidence, taken as a whole.

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The dynamic evidence page

It's here (more or less): the law of evidence on Spindle Law. See also this post.

Browser-based evidence marshaling: MarshalPlan in your browser

December 2009

Bogus Science of Repressed Memory Also Lives Elsewhere (other than in Illinois)

See, e.g., Lacava v. Lacava, 907 N.E.2d 154 (Ind. App. 2009); Logerquist v. McVey, 196 Ariz. 470, 1 P.3d 113 (Ariz. 2000).

But the junk science of repressed memory may finally be dead in some states. See generally cases on repressed memory evidence gathered in Spindle Law's evidence module.

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The dynamic evidence page

It's here (more or less): the law of evidence on Spindle Law. See also this post.

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The Junk Science of Repressed and Recovered Memory Still Lives in Illinois

M.K. v. L.C. and N.G., Holy Family Catholic Church, formerly known as St. Mary's Catholic Church, and St. Patrick's Catholic Church and Daniel R. Jenky, Bishop of the Catholic Diocese of Peoria, a Religious Corporation, and the Catholic Diocese of Peoria, a Religious Corporation, Defendants, 387 Ill. App. 3d 1077, 901 N.E.2d 468, 477-478 (2009):

In this case the nature of the claim is one which "by its very nature [is] subject to long-repressed memories." Diocese of Dallas, 379 Ill. App. 3d at 793, 885 N.E.2d at 385, citing Pedigo v. Pedigo, 292 Ill. App. 3d 831, 839, 686 N.E.2d at 1185 (1997). Any statute of repose applicable to incidents of childhood sexual abuse inherently fails to recognize that the nature of the claim is subject to long-repressed memories. Applying the repeal of the statute of repose retroactively to allow plaintiffs to bring suit long after the alleged abuse occurred would correct that problem and bring the current application of the law into line with the nature of the claim.

This opinion, by itself, leaves a theoretical possibility that in a sexual abuse case that is considered on the merits, a trial judge might condemn expert evidence to support a claim of allegedly long-repressed memories as irrelevant, unscientific, unreliable, or, more simply put, as junk science. Let's hope that this possibility materializes (or has materialized) in the courts of the State of Illinois.

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The dynamic evidence page

It's here (more or less): the law of evidence on Spindle Law. See also this post.

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My Debts to (i) Lotfi Zadeh and (ii) Tim van Gelder...

...but my numerous intellectual failings are entirely my own.

In an address I am giving in early January -- in a talk or lecture called "Trial by Mathematics - Reconsidered" -- at a conference in Munich I will make roughly the following comments at the end of my address:

My thoughts about the possible purposes of formal analysis of factual inference and proof have a variety of causes and sources. But among the most important influences on my thinking about the purposes of formal theorizing about factual inference were my (feeble) efforts to discern the possible implications of fuzzy probability for uncertainty in law. Lotfi Zadeh's revolutionary way of looking at uncertainty struck me as both a powerful window and an inadequate one. In trying to puzzle out the reason for these opposing sentiments, I realized that fuzzy probability (to the extent that I understand it) addresses some types of uncertainty in law in an extremely enlightening way but that it does not address some other types of uncertainty in a way that I find useful or enlightening. For example, I found that I could imagine that fuzzy logic, with the appropriate semantic data, might someday usefully describe and predict -- to some degree -- the behavior of some legal concepts and words in the real judicial world, but I had a much harder time imagining -- and I still do -- how fuzzy logic could serve as a reasonably complete guide to argument directed at a court about the appropriate interpretation of some legal word or concept.1 [1. However, the distinction between predicting the behavior of legal concepts and making arguments about legal concepts in forum such as a courtroom is neither sharp nor simple. For example, there is the simple fact that predictions about the behavior of legal concepts are usually an important part of legal argument addressed to a legal decision maker such as a judge.] This awareness (though quite possibly rooted in a mistaken premise) made me more acutely aware of the variousness of the ways in which the standard probability calculus (and other types of formal theory) might be used to deal with uncertain inference in law.

Another matter has strongly influenced my thinking about "trial by mathematics." Although in this talk [this paper] I have not said which of the possible purposes of formal analysis that I previously mentioned are most likely "viable," I do wish to suggest that it may be very fruitful to develop conceptual tools that combine the function of inference support with the function of increasing the transparency of inference. There is a reasonable chance that human beings can use formal analysis to (i) make more transparent to themselves some of their own cognitive or mental processes and (ii) thereby improve (at least occasionally) the workings of "the logic or logics that are immanent, or present, in existing ordinary inconclusive reasoning about uncertain factual hypotheses that arise in legal settings." If one shares my view that much human reasoning is subconscious but that there are degrees of awareness (rather than a crisp disjunction between awareness and non-awareness),2 [2. The important work of Timothy van Gelder draws on this insight. See his web site (with references and discussion) at http://timvangelder.com/] there is some reason to believe or hope that some formal conceptual tools (such as diagrams of arguments) can lead human beings to better understand what they think subliminally (to some degree) and thereby put them in a position to evaluate, critique, and improve some reasoning of theirs that was previously largely subliminal. Of course, even if we have such tools, there is no guarantee that "facilitated human awareness" will improve the accuracy of human inference in legal proceedings such as trials. That's in part because some human mental processes will forever -- or at least for the foreseeable future -- remain inaccessible to introspection. Nonetheless, human progress in the sciences (and in some other "intellectual fields"?) suggests that a hope that rigorous introspection can and will improve the accuracy of human factual inferences is not irrational. And with such a rational hope, I think, we can and should be content.

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The dynamic evidence page

It's here (more or less): the law of evidence on Spindle Law. See also this post.

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Visual Persuasion in Trials

This may prove to be a good book about a topic whose newly-augmented importance many Evidence teachers may not yet appreciate:

Law on Display: The Digital Transformation of Legal Persuasion and Judgment (2009)

Neal Feigenson and Christina Spiesel

“This is a widely informed, wisely reasoned, accessible analysis of how, for good or for evil, digital visual technology is transforming the conduct of trials and the very meaning of truth in the courtroom. It is essential reading alike for litigators and for everyone concerned with the legal fall-out of our culture’s accelerating shift from verbal to multimedia communication and comprehension.”
- Anthony G. Amsterdam, NYU School of Law

“Feigenson and Spiesel combine their impressive talents in law and visual persuasion to provide us with an insightful account of how new media are transforming legal advocacy in powerful new directions. Their critical analyses of fascinating case studies illustrate how cutting-edge lawyers are employing visual and digital media. The authors alert us to the new media's transformative capacity yet also its manipulative potential, and cogently discuss the ethical and legal quandaries that new media present for the courts. Highly recommended.”
- Valerie P. Hans

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The dynamic evidence page

It's here (more or less): the law of evidence on Spindle Law. See also this post.

Browser-based evidence marshaling: MarshalPlan in your browser

Sociobiology & Law

Professor James Franklin does not believe that the prospects for sociobiology (or, I assume, for sociobiology and law) are stellar. He writes, "[I]t is not very important to the credibility of the core theory of evolution whether or not there is anything in the theories of sociobiology. There have been many justified complaints about the 'Darwinian fairytales' dreamed up to 'explain' many aspects of human social reality, but an evolutionist could well agree that sociobiology is an embarrassment without needing to give up any core part of evolutionary theory." James Franklin, What Does Science Know and How It Knows It 220 (Encounter Books, 2009) (footnote omitted).

I normally have a charitable intellectual attitude toward many modern but possibly-quixotic intellectual endeavors. For example, although I think the explicit (crude) materialism of some versions of Artificial Intelligence is incorrect (and naive & oxymoronic), I believe much can be learned through the study of the work of AI scholars who say they embrace (crude) materialism. However, the (few) examples of research in law & sociobiology (L & S) I have seen leave me, at last, with the firm impression that L & S is little more than warmed-over social Darwinism. (One prominent L & S theorist has moved into neuroscience and law. If past performance predicts future performance, there is reason to doubt the prospects for this new gambit.)

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The dynamic evidence page

It's here (more or less): the law of evidence on Spindle Law. See also this post.

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Hizzoner Jerramiah Healy on the Vices of Bicycle Riding

Ricardo Kaulessar, "Not just spinning their wheels," Hudson Reporter (Dec. 13, 2009):

Bicycling enthusiast Chris Bray, a Bergen-Lafayette resident for the past five years, recalled at the meeting a conversation with Mayor Jerramiah Healy about making Jersey City more amenable to bicycle riding.

According to Bray, “[Healy] said, and this is a direct quote, ‘You bike around here, are you crazy? I want people to use public transportation.’ ”

A Minor Modern Analogue to the Destruction of the Ancient Library of Alexandria

"BOSTON — Harvard announced Thursday that it would indefinitely suspend construction on a high-tech science complex in the Allston neighborhood of Boston because of money problems." Abby Goodnough, NYTimes (Dec. 10, 2009)

(Alleged) Destruction of the Fabled Ancient Library of Alexandria

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The dynamic evidence page

It's here (more or less): the law of evidence on Spindle Law. See also this post.

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What Does the Rule of Law Mean in New Jersey? (It Means that Ms. Lopez Gets to Keep Her Public Office.)

As I understand it, according to New Jersey law, Jersey City Councilwoman Nidia Lopez can be a council member of Jersey City only if she was a resident of Jersey City when she was elected (and was a resident for some time before that). At the time Ms. Lopez was elected she had claimed Florida as her domicile and had thereby avoided paying taxes on her self-declared homestead there. In addition, she had not paid New Jersey income taxes (or business taxes) for some years. (Florida has no income taxes.) On her federal income tax return Ms. Lopez had declared that Florida was her residence. Nonetheless, an esteemed New Jersey trial judge ruled that Ms. Lopez was a resident of New Jersey. I guess the eminent trial judge peered into Ms. Lopez's soul and saw that no matter what Ms. Lopez might have said and done, New Jersey was, in Ms. Lopez's inner heart, her real residence, that that's where she intended to reside. You cynics you! Behold! Here you see a judge with ... er ... uh ... ah ... oh yes ... courage, no?

In the meantime Jersey City is governed by the Hon. Jerramiah Healy, Public Official 1 or 4 (so identified in indictments and criminal complaints), that fervent admirer of the presumption of innocence (for his appointed and indicted deputy mayor and former treasurer of his election campaign, in any event). Mr. Healy of course had utterly no idea that the fake bribes his deputy mayor took from the remarkable Mr. Solomon Dwek for the mayor's election campaign committee were illegal (even though Mr. Mayor was present on two occasions when Mr. Dwek offered the money to the deputy mayor in exchange for some help with a fake real estate development).

Oh yes, the indicted president of the Jersey City council also remains in office -- and votes on real estate tax abatement proposals for major developers and on other such unimportant matters. That's heartening too -- for it shows that he too believes in the presumption of innocence.

Well, let's see. I wonder how many unindicted Jersey City council members are left. One, two, ....

Mr. Putin should come to New Jersey and see how the rule of law works. He would find much to emulate here.

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The dynamic evidence page

It's here (more or less): the law of evidence on Spindle Law. See also this post.

Browser-based evidence marshaling: MarshalPlan in your browser

Skeptic's Dictionary on Repressed Memory

Skeptic's Dictionary:

Psychologist Lenore Terr, a defender of repressed memory therapy, argues that repression occurs for repeated or multiple traumas, such as a repeatedly abused child. Schacter notes that "hundreds of studies have shown that repetition of information leads to improved memory, not loss of memory, for that information." He also notes that people who have experienced repeated traumas in war, even children, generally remember their experiences. A person who suffers a great trauma often finds that she cannot get the event out of her mind or dreams. Terr's theory is that the child becomes practiced at repression to banish the awful events from awareness, and forgetting might aid in the child's survival. Her dissociative theory, however, is based on speculation rather than scientific evidence.

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See the still-sparse authority on repressed memory in the node on repressed memory in Spindle Law's evidence module.

See also cases collected in the Advanced Evidence web site.

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The dynamic evidence page

It's here (more or less): the law of evidence on Spindle Law. See also this post.

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Latest Legal Developments about Repressed Memory etc.?

What is the latest law on the admissibility of repressed & recovered memory? Is there any genuine distinction between -- one the one hand -- standard(?) "memory recovery" and -- on the other hand -- the use of devices such as guided imagery (as it's sometimes called) or hypnosis to reawaken lost or suppressed memories?

Enter your thoughts & news here and, please, in the evidence module of Spindle Law. Go in particular to this node (reliable vel non?) of the evidence module. (I am interested in legal developments abroad as well as domestic legal developments.)

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The dynamic evidence page

It's here (more or less): the law of evidence on Spindle Law. See also this post.

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New York Times & The Bishop

The New York Times castigates Cardinal (formerly Bishop) Egan for uttering these words:

It’s marvelous ... when you think of the hundreds and hundreds of priests and how very few have even been accused, and how very few have even come close to having anyone prove anything.

The NYTimes apparently thinks that Cardinal Egan's own words condemn him.

But what if what cardinal Egan said was true?

In the Middle Ages it took a lot of witnesses to overcome the testimony of a single bishop (or so it is sometimes said, perhaps by the same people who say that folks in the Middle Ages thought that the earth is flat). Today -- as the New York Times would apparently have it -- not even the testimony of a hundred or a thousand bishops can overcome the testimony of even a single money-bedazzled plaintiff.

I am tired of anti-religious bigotry. It is time to attack this sort of bigotry. Perhaps the power of the "new media" can overcome the power of the "old media" in this arena? I surely hope so. Ye believers in religious freedom, unite!

P.S. I am against sexual predators. However, I do not favor the idea that every accuser of a priest should be believed -- and paid off. (Yes, Virginia, there are some liars out there.)

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The dynamic evidence page

It's here (more or less): the law of evidence on Spindle Law. See also this post.

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Something's in the Offing, Is It?

Some passages are too delicious not to quote (do you catch my meaning?):

There are obvious difficulties with presenting the arguments in the original works of Derrida or Lacan, or Baudrillard. They do not write in any natural language, they do not put the premises before the conclusion, the conclusion is distributed over the text rather than appearing in any one sentence, positions are assumed to have been established outside the texts one is actually reading, in previous texts, or perhaps future ones, and so on.

James Franklin, What Science Knows and How It knows It 42 (Encounter Books 2009).

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For some unknown reason, Franklin's comments about postmodern folk put me in mind of a different kind of strange philosophy -- J.L. Austin's. Austin's "ordinary language" philosophy is still thought of as having been a respectable sort of thing. But some of Austin's extraordinary ordinary language can make one wonder why:

Are cans constitutionally iffy? Whenever, that is, we say that we can do something, or could do something, or could have done something, is there an if in the offing—suppressed, it may be, but due nevertheless to appear when we set out our sentence in full or when we give an explanation of its meaning?

J.L. Austin, “Ifs and Cans,” Proceedings of the British Academy (1956), in Philosophical Papers, p. 205 (Oxford: 2nd ed., 1970)

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Sometimes I'm quite glad I decided to become a law professor rather than a modern (or, worse yet, postmodern) philosopher.

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The dynamic evidence page

It's here (more or less): the law of evidence on Spindle Law. See also this post.

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Trial by Mathematics - Reconsidered

Abstract

Trial by Mathematics - Reconsidered
by Peter Tillers

In 1970 Michael O. Finkelstein (with William B. Fairley) proposed that under some circumstances a jury in a criminal trial might be invited to use Bayes' Theorem to address the issue of the identity of the criminal perpetrator. In 1971 Laurence Tribe responded to this proposal with a rhetorically-powerful and wide-ranging attack on what he called "trial by mathematics." Finkelstein responded to Tribe's attack by further explaining, refining, and defending his proposal. After a brief rejoinder, Tribe fell silent – forever – on the issue of the use of mathematical and formal methods to dissect or regulate uncertain factual proof in legal proceedings. However, Tribe's silence did not end the debate about "trial by mathematics." Tribe's attack on "trial by mathematics" had exactly the opposite effect: Tribe's attack precipitated a decades-long debate about mathematical analysis of factual inference and proof. However, that debate, which continues to this day, became generally (but not uniformly) unproductive, sterile, and repetitive long ago. Although surely a variety of factors led to this unfortunate condition, the debate about "trial by mathematics" was doomed to die with a whimper rather than a bang because two misunderstandings plagued much of the debate from the very beginning. The first misunderstanding was a widespread failure to appreciate that mathematics (including the probability calculus and Bayes' Theorem) is part of a broader family, or class, of rigorous methods of reasoning, a family of methods that is often called "formal." The second misunderstanding was a widespread failure to appreciate that mathematical and formal analyses (including but not only analyses that use numbers) can have a large variety of purposes. However, it is not too late to right this upended ship. Before any further major research project on "trial by mathematics" is begun, interested researchers in mathematics, probability, logic, and related fields, on the one hand, and interested legal professionals, on the other hand, should try to reach agreement about the possible distinct purposes that any given mathematical or formal analysis of inconclusive argument about uncertain factual hypotheses might serve. Putting aside the special (and comparatively trivial) case of mathematical and formal methods that make their appearance in legal settings because they are accoutrements of admissible forensic scientific evidence, I propose that discussants, researchers, and scholars of every stripe begin by carefully considering the possibility that mathematical and formal analysis of inconclusive argument about uncertain factual questions in legal proceedings could have any one (or more) of the following distinct purposes:

1. To predict how judges and jurors will resolve factual issues in litigation.

2. To devise methods that can replace existing methods of argument and deliberation in legal settings about factual issues.

3. To devise methods that mimic conventional methods of argument about factual issues in legal settings.

4. To devise methods that would capture some but not all ingredients of argument in legal settings about factual questions questions.

5. To devise methods that support or facilitate existing, or ordinary, argument and deliberation about factual issues in legal settings by legal actors (such as judges, lawyers, and jurors) who are generally illiterate in mathematical and formal analysis and argument.

6. To devise methods that clarify – that better express and increase the transparency of – the logic or logics that are immanent, or already present, in existing ordinary human inconclusive reasoning about uncertain factual hypotheses that arise in legal settings.

7. To devise methods that have no practical purpose – and whose validity cannot be empirically tested – but that serve only to advance understanding – possibly contemplative understanding – of the nature of inconclusive argument about uncertain factual hypotheses in legal settings.

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The dynamic evidence page

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Floris Bex, Evidence for a Good Story (2009)

Yesterday the mail brought me the published doctoral dissertation Floris Bex, Evidence for a Good Story: A Hybrid Theory of Arguments, Stories and Criminal Evidence (2009), ISBN/EAN 978-90-5335-212-0. I have only skimmed the book at this point but I can already tell that this is a very important book. Bex's effort to effect a systematic marriage between scenarios & stories, on the one hand, and inference networks & evidential argument, on the other, gets at the root of the matter. This is because scenarios and evidential arguments are two of the fundamental methods human creatures should use and often do use to make good guesses, or inferences, about many uncertain factual hypotheses.

My congratulations to Henry Prakken, Bart Verheij, and Floris Bex, who have collaborated in meticulous and pathbreaking research on the the nature of factual inference and proof. Their work will dictate many research agendas for decades to come.

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The dynamic evidence page

It's here (more or less): the law of evidence on Spindle Law. See also this post.

Browser-based evidence marshaling: MarshalPlan in your browser

Listen to the Lullaby "Aijā žūžū lāča bērni"

Aijā žūžū lāča bērni