Trial Planning & Interview Planning

I have told my Fact Investigation students that planning for a witness interview is often somewhat like planning for trial.

This leaves the question: What does planning for trial involve?

The answer: Many things.

But some of the things one must usually plan for are shown below:

In this trial plan the trial lawyer has struggled mightily to order the calling of the witnesses so that together they tell a story that begins at the beginning, moves to the middle, and ends at the end. As you can see, the lawyer has largely but not entirely succeeded. Such is life -- and such are the vagaries of the evidence that witnesses have in their heads and of the legal rules that govern the calling and re-calling of witness.

Now an interview is not an exact replica of a trial. Indeed, there are many differences between trials and pretrial interviews of witnesses. But the requirements of possible trials sometimes do and should cast a backward shadow on pretrial interviews. (Of course, one might wonder how a thing that does not yet exist and may never exist can cast a shadow on an earlier event. But that is a metaphysical question that I leave for another day.) So one might well decide -- and rationally and sensibly so -- that a pretrial interview should be designed in part to ferret out, if possible, evidence that would or might satisfy the requirements for victory at trial. One possible witness interview plan, thus, might look like this:

A different witness interview plan might look like this:

Of course, neither of the above interview plans is comprehensive. An interviewer might have and almost certainly will have interview objectives in addition to those sketched above. For example, a central objective might be to establish rapport with the witness. Another objective -- sometimes a key objective -- might be to explore the credibility or bias of the interviewee. Yet another objective might be to see if the witness' testimony presents certain themes that may arise during the testimony of other witnesses. And so on. But the multiplicity of the interviewer's objectives should not lead the interviewer to abandon all planning. To to do so is usually fatal.

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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.

Authenticating Photos: How Many Modes of Manipulation Are There (and, Boy, Are They Easy To Do)

There was perhaps a time when the business of authenticating photographs and images didn't attract much attention. With the advent of the digital age, that lack of interest had better stop. See David Pogue, Photoshop and Photography: When Is It Real?, NYTimes (Feb. 25, 2010)

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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.

There Is a Problem of the Complexity of Evidentiary Minutiae in Litigation. What Is the Problem of the Complexity of Evidentiary Minutiae?

It is often said, in different contexts and for different purposes, that the phenomenon of a large amounts of evidentiary details in litigation presents a problem of complexity. But what is complexity?

Complexity is a complex concept. :-) In the the March 2010 edition of The Reasoner Alan Baker of Swarthmore writes:

There is no single, agreed upon definition of what it is to be complex, but rather a cluster of related notions covering both epistemological and ontological aspects of complexity. Of those most relevant to logic are definitions of algorithmic complexity arising from information theory, and applied to strings in some specified formal language. The best-established of this class of definitions is Kolmogorov complexity (KC). The KC of a string of binary digits is measured by the length of its shortest description. Thus the string “101010101010101010101010” can be (fully) described as “12 repetitions of ‘01”’, whereas the most efficient way to describe a disordered string such as “011000101011101101100010” may be to write down the entire string. One implication of the KC measure is that random strings have the highest complexity.

This understanding of the concept of complexity is to some degree (but only to some degree) not applicable to the problem of multitudes of evidentiary minutiae in litigation because what is often wanted is, not a shorthand way to sum up lots of details, but an effective way to bring to mind or keep in mind large amounts of evidentiary minutiae. (There is a good reason why we often want to keep evidentiary details and detailed arguments about such details alive in our minds. I may discuss that point at some other time.) Nonetheless, the information theorist's understanding of complexity is suggestive. It reminds us that a memorable way of classifying -- of quasi-summarizing -- details helps to keep large quantities of details in mind. (Random details are much, much harder to remember.)

Literal visualization of evidentiary details and of arguments from and about evidentiary details sometimes makes a direct attack on the problem of complexity because some types of visualization -- such as Timothy van Gelder's -- are designed to actually keep before the human mind (to some extent) the many details that need to be kept in mind -- to some degree. The emphasis here is in part on modes of representation that are easy to digest -- that are, in that sense, extraordinarily "user-friendly." (In an e-mail message Tim van G once called his method "extrospection." I like his neologism.)

Key point: The mind must be able to flit back and forth, easily and quickly, between different agglomerations of details and different parts (including "evidentiary atoms") of those agglomerations.

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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.

Is Racial or Religious Prejudice a Character Trait or Is It Something Else? And Why Should You Care?

Racial prejudice and religious prejudice are obnoxious weeds. Why does it matter whether they're called character traits or whether they're called something else?

One reason why it matters what they're called is that the American "character rule" bars the use (in a trial) of a person's character to show the person's conduct. The American character rule does not bar the use of a person's characteristics, features, feelings, or thoughts when those characteristics are not -- are not considered to be -- character traits, dispositions, or propensities. See the beginnings of a treatment of this point at Is racial prejudice or a similar prejudice admissible to show conduct? in the evidence module of Spindle Law.

I also discussed this question years ago: many years ago I published some words about the question whether prejudice is or is not character. I did so in my revision of the first volume of Wigmore's Treatise. It is always gratifying to see a court acknowledge this -- as did a California court, albeit in an "unpublished" opinion:

A Question Revisited: Is Racial Prejudice or Animus a Character Trait or a Motive for Purposes of the Character Evidence Rule?

Bryant v. Sara Lee Corp., 2009 WL 378849 (Cal. App. 2009) (opinion not officially published):

African-American Plaintiffs brought a civil action on behalf of themselves and others against their former employer Sara Lee and their former supervisor Wyche for employment discrimination, intentional infliction of emotional distress, and other causes of action. Plaintiffs' claims rested in part on the employer's alleged creation or sufferance of a work environment hostile to African-Americans. Plaintiffs claimed that Wyche created this hostile environment and inflicted emotional distress by racial slurs he made at the workplace.

Leo Bryant (Bryant) and Ronald Amey (Amey) seek reversal of the judgment following the jury trial on their claims for racial harassment and intentional infliction of emotional distress. Their primary claim with respect to the trial is that the court erred in excluding evidence under Evidence Code section 352 of offensive comments by their supervisor, respondent Robert Wyche (Wyche), made at other times, other locations, or about other protected groups."

Note by Tillers: Plaintiffs' claims were apparently based on events that allegedly took place sometime after 2005.

The [trial] court granted the motions to exclude evidence of lawsuits or complaints of racial harassment or discrimination filed by individuals other than the plaintiffs, testimony or references to testimony of the plaintiffs in a different case against Sara Lee and Wyche, references to specific racial slurs and comments made by Wyche in the 1970's and 1990's, statements or testimony by Leo Montoya regarding ethnic slurs by Wyche, statements or testimony by Glen Lefort about a racial comment made by Wyche prior to Bryant's and Amey's employment under Wyche, statements or testimony by employees about interactions with Wyche in depots other than Menlo Park or Redwood City or at times other than when Bryant and Amey worked under Wyche, and statements or testimony about actions or statements by Wyche "that were not shared with [Bryant and Amey] during the period they worked under Wyche."

The excluded evidence fell into three general categories: evidence of racial slurs made by Wyche before Bryant or Amey were employed by Sara Lee; evidence of comments made before Wyche began supervising Bryant or Amey or about which they did not learn during their employment; and evidence of slurs made by Wyche about protected groups other than African-Americans. Sara Lee and Wyche maintain that the excluded evidence was not relevant, was inadmissible character evidence, and was more prejudicial than probative under Evidence Code section 352."

Much of the evidence excluded by the court could be considered "propensity evidence," barred under Evidence Code section 1101. (Evid.Code, § 1101, subds.(a), (b).) "It has long been the rule, of course, that evidence of uncharged misconduct is inadmissible to establish a defendant's propensity to commit the offense charged. The bar on the use of such 'propensity evidence' is not that it lacks relevance. Rather, it is the concern that such evidence may be regarded by the trier of fact as too relevant, 'provoking' ... 'an overstrong tendency to believe defendant guilty' based on the commission of the prior ac[t]...." (People v. Ortiz (2003) 109 Cal.App.4th 104, 111, citing 1A Wigmore on Evidence (Tillers rev.1983) § 194, at p. 1859.) Evidence of a prior act may, however, be admissible "to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident ... other than his or her disposition to commit such an act." (Evid.Code, § 1101, subd. (b), italics added.)

Bryant and Amey maintain that evidence of Wyche's "repeated misconduct" in uttering racial slurs since the 1970's was relevant "[f]or purposes of punitive damages [because] 'a recidivist may be punished more severely ...,' " not for demonstrating propensity. Assuming arguendo that this evidence would have been relevant to the issue of punitive damages, the parties stipulated that trial on the issue of punitive damages would be bifurcated. The jury rendered a defense verdict, and consequently never reached the issue of punitive damages. Accordingly, this evidence was not relevant at the trial of the liability issues.

&&& The appellate court thus apparently concluded that Whyche's racial slurs about other groups -- other African-Americans -- or at other times were inadmissible to show Wyche's conduct on other occasions, his conduct while plaintiffs worked under his supervision.

The appellate court affirmed the judgment for the defendants.

As I (proudly, or vainly) noted earlier, this opinion cites my revision of Wigmore's treatise. But, but, but ... the court's opinion does not mention a different part of my revision, a part that that mentions several California cases holding that under some circumstances racial prejudice is something other than "propensity" or "character."

So it goes.

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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.

Is Legal Education of the Public Bad for Us?

David Benke and two other Colorado middle school teachers tackled and disarmed a gunman who was shooting children. "After being subdued, the shooter 'said he was going to sue us,' Benke recalled." (Jeremy P. Meyer, Hailed as hero, math teacher leapt to stop attack, Denver Post (Feb. 23, 2010))

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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.

A Theory of the Trial by Robert Burns

The book A Theory of the Trial (1999) by Robert Burns really is a very interesting and important book even for -- or especially for -- Evidence specialists.

Burn talks much about narrative. Today even the United States Supreme Court talks -- occasionally -- about the role of narrative in the trial. See Old Chief v. United States, 519 U.S. 172 (1997). But the marriage of the law of evidence and of story-telling remains incomplete. Why? Is it because we do not yet know how to harmonize what Burns calls the "Received View of the Trial" (Chapter 1) with a view that takes into account matters such as the evaluative activities of the jury, the importance of theme at the trial, and so on?

Many of us -- probably most of us, thank goodness -- do wish to preserve the trial's emphasis on the search for the "truth." But it is foolhardy to think that an acceptable search for the truth can be achieved if we ignore, for example, many of the ways the jury thinks about and makes sense of what goes on in the courtroom.

In one very interesting section (in Chapter 5) Burns discusses "Features of the Trial Too Basic to Be Noticed and Preliminary Notes on Their Significance." Sometimes one must be a visitor from Mars to notice the profound impact of the familiar. On a visit to Belfast many years ago I noticed how the barristers in a trial paused for some moments after each one of their questions was answered by a witness. I wondered why. Then I noticed a scrivener who, apparently, was writing everything down, laboriously, by hand. I think (but I am not sure) the barristers paused to give the scrivener time to do his job. This, of course, had a noticeable effect on the pace of examination and cross-examination.

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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.

Books 'n Things

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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.

Can You Quantitate Your Doubts about Jersey City's Officials?

Reform-minded City Councilman Steven Fulop was arguing that a prospective appointee should not be given health benefits because the appointee's job would involve only 12 hours of work a year. This led Ward D Councilman Bill Gaughan to sputter, “You never quantitate anything you say,” he exclaimed, waving his arm angrily towards Fulop. “You make this stuff up." Shane Smith, "Council (Mini)Report: Incinerator Authority Appointment Gets Heated and More," The Jersey City Independent (Feb. 18, 2010).

Now I think I know why Jersey City's expenditures wildly exceed Jersey City' ordinary revenues. It's not because Jersey city officials can't do higher mathematics such as arithmetic. It's because Council members such as Gaughan don't yet have a handle on the concept of counting. They don't know how to quantitate!

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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.

New Book with Bearing on the Debate about Repressed Memory

This recently-published book may have a bearing on the debates over claims of repressed memory due to sexual molestation: Susan A. Clancy, The Trauma Myth: The Truth About the Sexual Abuse of Children--and its Aftermath (Basic Books, Jan. 5, 2010). Susan Clancy is an experimental psychologist who works or worked at Harvard University. See this Wikipedia squib.

I just caught the very tail end of her interview on WNYC's Leonard Lopate show. There are already -- at 1:10 p.m., less than an hour after the interview --, there are already 41 comments about the Clancy interview at the WNYC web site.

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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.

Interview of Timothy van Gelder

The online magazine The Reasoner has an interview with Timothy van Gelder in its February 2010 issue. You should read this interview!

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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.

A Nobel Peace Prize for Nicholas Kristof

Now let's have a Nobel Peace Prize that means something. Let's have one for Nicholas D. Kristof. Reason? See, e.g., "The Grotesque Vocabulary in Congo," NYTimes (Feb. 10, 2010)

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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.

Is This the Beginning of the End for the Jersey City Machine?

Mayor Jerramiah Healy's deputy mayor -- Leona Beldini -- has been convicted on two criminal counts stemming from the money that a cooperating federal witness -- Mr. Solomon Dwek -- liberally distributed to a variety of politicians in northern New Jersey and Jersey City in exchange for official favors for Mr. Dwek, who they mistakenly believed was a real estate developer who wanted their favors. See "Offcial guilty on 2 counts in NJ corruption trial," Daily Record.com (Feb. 11, 2010).

Let me again trumpet the fact that a team of my students in a course in fact investigation at Cardozo School Law undertook an investigation of Mayor Healy's administration about a year ago and found strong indications of possible corruption.

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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.

Encouraging Words for Spindle Law -- and, by Implication, for Its Evidence Module

In a blog post Spindle Law's David Gold observes that David Curle, "a leading analyst of the legal, tax, & regulatory information industry," made some encouraging remarks in the Huffington Post about Spindle Law

A tiny little startup named Spindle Law has an interesting idea. They are building, in a kind of collaborative, Wiki-like way, a database of the legal rules that lawyers find in court decisions and in legislation. Their idea is that it’s pretty inefficient to get to those rules by searching and reading long court opinions. They are extracting and organizing the rules with links to the legal sources. They have a long way to go to prove that the concept works, but I like the way they are trying to turn the research process on its head.

I call David Curle's remarks "encouraging" because I am the editor of Spindle Law's evidence module.

I take this occasion to remind lawyers, law teachers, law students, etc., that I would welcome their comments (in the evidence module) about rules and principles of evidence, their notes and thoughts on interesting new (or old) cases, and the like. Evidence is a large part -- very probably the largest part -- of the work of most litigators and trial judges. The handling of evidence in litigation is also a fundamental pillar of the rule of law. (Without reasonably accurate factual proof, the rule of law means little and is inefficient.) So let's have a national and worldwide conversation about the U.S. system of factual proof. Moreover, don't you have a yen to broadcast your personal views about legal issues and the law of evidence to the legal world and beyond? '

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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.

New Article: Character and Victim Impact Evidence

I just noticed this abstract (Dec. 1, 2009) of Younglove, Nelligan & Reisner, "Victim Character Evidence in Death Penalty Cases, How Many Songs Is Too Many?," 34 Criminal Justice Review 536 (2009):

The U.S. Supreme Court’s Payne decision opening the door to victim impact testimony in capital cases generally, and to victim character evidence particularly, has been controversial. The issue is whether a murder victim’s character is relevant to the moral blameworthiness of the defendant. Several mock jury simulation studies have shown that such evidence does influence jury decisions imposing the death penalty. The current study took a different direction and examined the nature and extent of actual victim character testimony in samples of death penalty cases in three states. Data were derived from 14 transcripts of the penalty phase of trials in each of three states: California, New Jersey, and Texas, states with different political and legal climates. Content analysis revealed that there were numerous references to victims’ character in the form of positive personality traits, in addition to descriptions of the impact the crime had on the victims’ families and friends. Qualitative analysis revealed that many witnesses were allowed to use photos, videotapes, and other personal items to portray the victim’s life. What emerges from this inside view of practices in courtrooms is disturbing in that the evidence allowed seems to exceed Payne’s already meager limitations.

Spindle Law's discussion of character evidence and of relevance and materiality needs to have a discussion of the treatment of victim impact statements and evidence. Why don't you add something there, dear Reader? (Perhaps consideration should be given to the later Supreme Court decision Old Chief v. United States, 519 U.S. 172 (1997).)

Justice Stevens, dissenting in Payne v. Tennessee, 501 U.S. 808 (1991), mentioned my 1983 revision of volume one of the Wigmore treatise. Id. (citing 1 J. Wigmore, Evidence § 13 (P. Tillers rev. 1983)).

One interesting aspect of Old Chief is the way it attenuates or changes -- pick your poison -- the concepts of relevance and materiality, which have been said to be central to the American system of factual proof in trials.

Only in recent years has sustained attention been given to the possibility that emotion can facilitate as well as damage accurate inference. See, e.g., Reid Hastie, "Emotions in jurors’ decisions," 66 Brooklyn Law Review 991 (2001).

I lean to the view that "personality" is a predictor of behavior but that much evidence of personality that is admitted in trials is (a) too coarse to have much predictive value and (b) subject to too much abuse by the adversary process to have much predictive value. (But my generalizations are only generalizations and are themselves too coarse to be of much value for the analysis of -- or guesswork about -- specific character evidence problems.)

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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.

A Freudian-Probabilistic Slip of the Pen?

Some years ago I wrote an introduction to an issue of a law journal. My introduction was called "Three Contributions to Three Important Problems in Evidence Scholarship." But the journal issue contained four articles about evidence, not three. No one noticed the discrepancy (if discrepancy it was). Not even the authors noticed. Or perhaps they noticed, but said nothing. My guess is that if they did notice, they figured there was only a minuscule chance that their own article was not a "contribution." And it is possible that all four authors would have been correct in making that assumption. But who knows? There is a chance the author of the introduction thought that one of the articles was not a "contribution." There is also a chance the author had a semi-senior moment. (Are there other possibilities? What do you think, dear Reader? [My dear Readers never respond to idle questions of this sort.])

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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.

GOOGLE defines "inference" -- and does an interesting & useful job

By entering "define: inference" in the Google search engine, you get:

Definitions of Inference on the Web:

* the reasoning involved in drawing a conclusion or making a logical judgment on the basis of circumstantial evidence and prior conclusions rather ...
wordnetweb.princeton.edu/perl/webwn

* Inference is the act or process of deriving a logical consequence conclusion from premises.
en.wikipedia.org/wiki/Inference

* The act or process of inferring by deduction or induction; That which is inferred; a truth or proposition drawn from another which is admitted ...
en.wiktionary.org/wiki/inference

* a conclusion derived from observations
www.handsontheland.org/lms/mod/glossary/view.php

* A judgement based on reasoning rather than on direct or explicit statement. A conclusion based on facts or circumstances. For example, advised not to travel alone in temperatures exceeding fifty degrees below zero, the man in Jack London's "To Build a Fire" sets out anyway. ...
www.tnellen.com/cybereng/lit_terms/terms/Literary.Terms.2.html

* is a logical guess based on evidence based on evidence in the text.
ridersenglish.edublogs.org/glossary-arranged-by-unit/

* A general conclusion drawn from information that is given.
www.northwestern.k12.oh.us/curriculum/documents/glossary.doc

* a conclusion one can draw from the presented details
kmhs.typepad.com/parrott_ap_english_langua/files/rhetorical_terms.doc

* The skill of using the results of an investigation based on a premise.
dpi.wi.gov/standards/sciglos.html

* In machine learning, inference is the process of deriving conclusions or making predictions based on existing information. See Wikipedia for more.
www.broad.mit.edu/annotation/conrad/glossary.html

* making conclusions about a piece of literature when the connection is not provided in a piece of literature.
www.4classnotes.com/literary%20vocabulary.htm

* is the forming of a conclusion from premises by logical methods. (Intro)
www.logic-classroom.info/glossary.htm

* inferencing - This is the means by which the learner forms hypotheses, through attending to input, or using the situational context to interpret the input.
myopiczeal.blogsome.com/2005/03/17/definitions-of-words-in-our-glossary-of-terms/

* The conclusions that one is able to draw from the data. Sometimes the numbers do not tell the whole story. Please see the section on How to use Canadian Cancer Surveillance On-Line. ...
dsol-smed.phac-aspc.gc.ca/dsol-smed/cancer/glossa_e.html

* the process of reasoning whereby one statement (the conclusion) is derived from one or more other statements (the premises).
www.filosofia.net/materiales/rec/glosaen.htm

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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 Shonubi Problem Reappears: Estimating Drug Quantities

At the center of the Shonubi opinions -- all five(!) of them -- was the problem of using (apparently-)reliable evidence about the amount of illegal narcotics carried by a drug mule on one drug-smuggling trip to estimate the total amount of illegal narcotics carried by the drug mule during a number of other (apparent) drug-smuggling trips (eight trips in all in the Shonubi case). See United States v. Shonubi, 802 F. Supp. 859 (E.D.N.Y., 1992) (Weinstein, J.) ("Shonubi I"); United States v. Shonubi, 998 F.2d 84 (2d Cir, 1993) (Oakes, Newman & Cardamone, JJ.) ("Shonubi II"); United States v. Shonubi, 895 F.Supp. 460 (E.D.N.Y.) (Weinstein, J.) ("Shonubi III"); United States v. Shonubi, 103 F.3d 1085 (2d Cir., 1997) (Newman, Cardamone & Calabresi, JJ.) ("Shonubi IV"); United States v. Shonubi, 962 F. Supp. 370, 375 (E.D.N.Y. 1997) (Weinstein, J.) ("Shonubi V"[!]). See also P. Tillers, United States v. Shonubi: A Statistical Oddity?; "P. Tillers, Introduction: Three Original Contributions to Three Important Problems in the Law of Evidence," 18 Cardozo L. Rev. 1875 (1997); P. Tillers, "If wishes were horses: discursive comments on attempts to prevent individuals from being unfairly burdened by their reference classes," 4 Law, Probability and Risk 33 (2005).

This problem -- and the more general problem of drawing conclusions about a "population" based on a sample of the population -- reappeared (unsurprisingly) in United States v. Krasinski, 545 F.3d 546 (7th Cir. 2008).

In Krasinski the Seventh Circuit distinguished Shonubi II (and some other cases) by saying that in Krasinski, unlike in Shonubi (and in some other cited cases), the maximum and minimum amounts carried on each trip were known (pretty firmly, in any event). Id. at 552.

Otherwise, the Seventh Circuit held that the method used by the trial judge in Krasinski -- which was exactly the method originally used by Judge Weinstein in Shonubi (see Shonubi I) and condemned by the Second Circuit in Shonubi II: using the amount believed to have been carried by the drug mule on one trip to produce an average for all (apparently-)known drug-smuggling trips by the mule -- was not an abuse of discretion. The Seventh Circuit said nothing about the question that so occupied and bothered the mind of the Second Circuit: the use of "indirect" evidence to establish or estimate the total amount of the illegal drugs carried by a drug smuggler on all of the smuggler's drug-smuggling trips (that is, on all trips reasonably believed or reasonably shown to have been drug-smuggling trips). Compare my comment all evidence is circumstantial and indirect.

The Seventh Circuit said:

Krasinski maintains that the district court erred when it found him responsible for the sale of 112,000 pills. He contends he was only responsible for 30,000 pills and that any amount above that lacks sufficient indicia of reliability. A defendant has a due process right to be sentenced on the basis of reliable information, United States v. Bautista, 532 F.3d 667, 672 (7th Cir.2008), and a district court may not base its drug quantity calculation on pure speculation or “nebulous eyeballing,” United States v. Jarrett, 133 F.3d 519, 530 (7th Cir.1998). A seizure of the drugs involved in the offense, of course, provides reliable information regarding drug quantity. See Bautista, 532 F.3d at 672. Admissions in a plea agreement also conclusively establish the admitted facts. United States v. Warneke, 310 F.3d 542, 550 (7th Cir.2002) (“An admission is even better than a jury's finding beyond a reasonable doubt; it removes all contest from the case.”).

A district court may use a reasonable estimate of the quantity of drugs attributable to a defendant for guidelines purposes. United States v. Acosta, 534 F.3d 574, 582 (7th Cir.2008); see also U.S.S.G. § 2D1.1 cmt. n. 12 (“Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of the controlled substance.”). Here, Krasinski admitted in his plea agreement that he delivered between 5,000 and 30,000 Ecstasy pills on approximately eight to ten separate occasions. He also admitted delivering 7,000 pills on March 5, 2003. With these statements in mind, the district court first found that Krasinski delivered Ecstasy pills on seven occasions, a conservative figure in light of Krasinski's admission that he made eight to ten deliveries. The district court then took note of Krasinski's specific admission that he delivered 7,000 pills on one occasion. For the other six deliveries, the district court estimated that he delivered 17,500 pills each time, a figure he calculated by averaging the 5,000-and 30,000-pill figures. The result was a total of 112,000 pills.

As we have recognized before, arriving at sentencing determinations through averaging can be problematic. See United States v. Johnson, 185 F.3d 765, 768-69 (7th Cir.1999). “[A]t some point a court's estimation will seem less like a restrained approximation and more like unsupported conjecture.” United States v. Henderson, 58 F.3d 1145, 1152 (7th Cir.1995). A calculation based on a wide range of endpoints, for example, is cause for concern. Compare United States v. Sepulveda, 15 F.3d 1161, 1197 (1st Cir.1993) (using midpoint between four ounces and one kilogram to determine drug quantity erroneous) with United States v. Webster, 54 F.3d 1, 5-6 (1st Cir.1995) (upholding use of two ounces for circumstances where witness testified that one to three ounces supplied and eight ounces in instances where witness stated six to twelve ounces supplied). Extrapolating from a small number of known quantities also raises a red flag, especially when the maximum and minimum amounts are unknown. See Johnson, 185 F.3d at 769 (vacating sentence where amount carried on fourth trip determined only by looking to amount carried on three others); United States v. Shonubi, 998 F.2d 84, 89-90 (2d Cir.1993) (finding error in assumption that quantity of heroin possessed on one trip represented typical quantity on eight trips).

The calculation employed by the district court in this case was not the most conservative one it could have performed. The district court could have held Krasinski responsible for a one-time delivery of 7,000 pills, one delivery of 30,000 pills, and six deliveries of 5,000 pills, a calculation also consistent with the plea agreement. See Jarrett, 133 F.3d at 530-31 (approving conservative drug quantity approximation based on five months of undercover purchases and defendant's admissions). The result would have been a total of 67,000 pills, and, notably, a lower offense level for Krasinski. See Presentence Report at 6 (deeming Krasinski responsible for 80,000 to 240,000 Ecstasy pills).

Nonetheless, we cannot say that the district court's decision to hold Krasinski responsible for 112,000 pills was clearly erroneous. The district court based the number of deliveries and the range for the quantity of pills in those deliveries on numbers supplied by Krasinski himself. Significantly, unlike in Johnson, we know the maximum and minimum quantities involved. Cf. Johnson, 185 F.3d at 765. Moreover, Krasinski states in his sentencing memorandum that according to Misiolek, Ogonowski said Krasinski was responsible for about 100,000 pills, so a second source supported the decision to hold Krasinski responsible for between 80,000 and 240,000 pills, the range of pills in Krasinski's advisory guidelines range. And although Krasinski claims that Ogonowski would testify that Krasinski supplied only 30,000 pills, Krasinski cites nothing in support of his claim, and Krasinski admitted to supplying more than that in his own plea.

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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.

An Exam Question

Last semester I gave my Evidence students the option of taking a 24-hour open-book take-home exam. This is the problem I gave them:

Problem

Unctuous Uncle, a 50 year-old adult, is charged with the sexual molestation of his niece, a minor child, Nellie Niece. The case is tried in a federal district court before Judge Minimum Wisdom. You are Classy Clerk. You are Judge Wisdom's law clerk.

If permitted to testify, Nellie will be the government's chief witness. Shortly after the trial begins, the prosecutor offers to have Nellie testify that in 2007, when Nellie was four years old, Unctuous stroked her "wee-wee."

In response, the defense requests and the trial judge grants a voir dire hearing. Pike Piker, a social psychologist, then testifies for the defense that (i) he treated Nellie for six weeks in 2008, when Nellie was five years old, (ii) Nellie repeatedly told him that she believes that all men are devils, (iii) Nellie is a social psychopath, and (iv) female social psychopaths tend to be misanthropic and they tend to have sexual delusions.

After this testimony is presented to the trial court, the defense asks the trial court to bar Nellie from testifying at the trial. The defense asks, in the alternative, that Pike Piker be allowed to present to the jury the testimony that he presented to the trial judge. The prosecution opposes the defense motion for an order barring Nellie from testifying at the trial and it moves, in the alternative, for a trial court order barring Piker from presenting his testimony to the jury.

After hearing these motions and responses, the trial judge states, "I'm going to adjourn the trial for a day so that I can think things over.” The trial judge then turns to you and states:

Classy, I want you to write a memo for me. I want your memo in my hands in 24 hours or less. I want you to tell me if I should grant or deny either one or both of the defense motions. And, Classy, I want a classy memo. So don’t forget to do your homework. I mean that I expect to do some legal research; I can’t imagine that you can give me good answers without doing some legal research. So get to work.

Write the memorandum and submit it to Judge Wisdom within 24 hours.

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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.

A Hearsay Question

"JOLIET, Ill. -- A woman who mysteriously drowned in a bathtub will be given a voice as witnesses tell an Illinois judge how she feared the ex-husband now charged in her death." ("Witnesses to say drowned Ill. woman feared ex-cop," AP story (Jan. 21, 2010)).

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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.

Ms. Martha Coakley and the Fells Acres Cases

Dorothy Rabinowitz, the Pulitzer Prize-winning Wall Street Journal editorial page writer, published an interesting article about the role of Ms. Martha Coakley in the Fells Acres and Amirault "day care abuse" cases. (Ms. Coakley is the recently-defeated Senatorial candidate and the current attorney general of the Commonwealth of Massachusetts.) Go here to see what Rabinowitz said.

Dorothy Rabinowitz is the author of No Crueler Tyrannies: Accusation, False Witness, and and Other Terrors of Our Times (2003, paperback 2004). This book should be compulsory reading for every prosecutor and every criminal defense lawyer in the country (and beyond).

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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.