"Cultivating Deliberation for Democracy"

One of the most imaginative thinkers of the modern age is Tim van Gelder.  He chronicles some of his recent work in 

Cultivating Deliberation for Democracy

(March 12, 2012)

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The dynamic evidence page

Evidence marshaling software MarshalPlan

It's here: the law of evidence on Spindle Law.

See also this post and this post.

Challenge to Admissibility of Handwriting Evidence Rejected by D.C. Court of Appeals

In United States v. Pettus No. 08-CF-1361 (Feb. 9, 2012) the District of Columbia Court of Appeals rejected a challenge to the admissibility of handwriting evidence in a criminal trial for felony-murder, sexual assault, and other charges. The court stated:

The principal issue on appeal is whether the trial judge erroneously admitted the expert opinion of an FBI forensic document examiner that a piece of handwriting left on the body of the murder victim had been written by appellant.   Specifically, we must decide whether opinion evidence of this kind based on comparison of “known” and “questioned” handwritings, resulting in the opinion that the same individual wrote both documents, meets the test of “general acceptance of a particular scientific methodology,” Ibn–Tamas v. United States, 407 A.2d 626, 638 (D.C.1979);  see Frye v. United States, 54 App. D.C. 46, 47, 293 F. 1013, 1014 (1923), required by this jurisdiction for the admission of forensic science evidence.   Although appellant, joined by the Public Defender Service as amicus curiae, makes a spirited attack on the general acceptance of all such “pattern-matching” analysis in the light of a recent National Research Council Committee Report, we hold that forensic handwriting comparison and expert opinions based thereon satisfy the bedrock admissibility standard of Frye and Ibn–Tamas and may be put before a jury, where remaining issues of reliability may be argued, after cross-examination and any counter-expert testimony, as affecting the weight of the opinions.

Hat tip to Convicting the Innocent and IfrahLaw
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It's here: the law of evidence on Spindle Law.

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The Curious Properties of Hierarchical Inference

Finally!
An in-depth treatment of David A. Schum's most penetrating and extraordinarily subtle theory of the curious properties of hiearchical inference:

Juchli, Biedermann & Taroni

Graphical probabilistic analysis of the combination of items of evidence

11 Law, Probabilioty and Risk 51 (2012)
N.B. But I think the authors are wrong to assert (as they do) that the really important part of any model of inference is the computational part. (They characterize Schum diagrams as "mere representations.")
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The dynamic evidence page
Evidence marshaling software MarshalPlan
It's here: the law of evidence on Spindle Law.


See also this post and this post.

BISC Online Panel on Uncertainty (BPU)

From: Lotfi A. Zadeh <zadeh@eecs.berkeley.edu>
Date: Fri, Mar 9, 2012 at 8:53 PM
Subject: [bisc-group] BISC Online Panel on Uncertainty (BPU)

*********************************************************************
Berkeley Initiative in Soft Computing (BISC)
*********************************************************************

Dear Panelists and Members of the BISC Group:

Round 1 of BPU has been completed, minus a summary by Gert de Cooman on imprecise probabilities which will be posted a little later. The summaries are attached. Following is a list of the panelists and titles of their summaries. 

G. Coletti "A general model to handle uncertainty, based on coherent conditional probabilities."
G. de Cooman "Imprecise probabilities"
D. Dubois and H. Prade "A unified view of uncertainty theories"
G. Klir "Generalized information theory: A summary"
S. Li "Some nonlinear mathematical methods for uncertainty"
B. Liu "Randomness, fuzziness and uncertainty"
S. Liu, J. Forrest and Y. Yingjie "A brief introduction to grey systems theory"
H. Nguyen "On modeling and analyzing uncertainty for decision-making"
A. Skowron "Rough sets"
L. Zadeh "Generalized theory of uncertainty (GTU)"

Round 2 of BPU begins today. The posted summaries are open for questions and comments by the panelists, members of the BISC Group and others who may be interested. Please take a look at the summaries and post your questions and/or comments to the BISC Group <bisc-group@lists.EECS.Berkeley.EDU>. Please note that if you are not a member of the BISC Group you will not receive the comments and questions which are posted. To receive them, you can either become a member of the BISC Group by sending mail to sympa@lists.EECS.Berkeley.EDU with the following command in the body of your email message: subscribe bisc-group or from another account, subscribe bisc-group your_email_address or send a request to Ixel Chavez. At this point, the deadline for receiving your comments and questions is approximately March 23, 2012. Please note that your message should not exceed 700 words, for non-panelists, and 1200 words, for panelists. Round 2 will be followed by Round 3. In Round 3, the panelists will respond to comments and questions. After Round 3 is completed, preparation will begin to publish the Proceedings of BPU as a special issue of a journal or as a book, depending on the length of the Proceedings. 

In putting together the summaries, no attempt was made to achieve uniformity. The summaries are unedited. Please [bear] in mind that so far as I know, there is no precedent for BPU. Presumably, quite a bit will be learned from how BPU works out. I hope that BPU will have Hans Kuijper's blessing. It was his campaign to organize a World Conference on Uncertainty that motivated BPU. My feeling is that an online panel a la BPU is far more effective and far more useful than traditional panels. An important feature of BPU is that it will lead to a permanent record that is likely to be used by a world-wide audience. You are most welcome to post your comments and questions. 

Regards to all.

Lotfi-- Lotfi A. Zadeh Professor in the Graduate School Director, Berkeley Initiative in Soft Computing (BISC) Address: 729 Soda Hall #1776 Computer Science Division Department of Electrical Engineering and Computer Sciences University of California Berkeley, CA 94720-1776 zadeh@eecs.berkeley.edu Tel.(office): (510) 642-4959 Fax (office): (510) 642-1712 Tel.(home): (510) 526-2569 Fax (home): (510) 526-2433 URL: http://www.cs.berkeley.edu/~zadeh/ BISC Homepage URLs URL: http://zadeh.cs.berkeley.edu/

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It's here: the law of evidence on Spindle Law.

See also this post and this post.

A Better Way of Teaching and Learning?

A legal blogger -- Roya Behnia -- calls a Harvard physics professor's method of teaching "peer instruction."

She thinks his method may also be important for dealing with clients:

What a Physics Professor Can Teach Us About Collaborating with Clients

 See also:

Thursday, February 23, 2012

Popularity Contests, Teaching, and Learning

Craig Lambert, The Twilight of the Lecture, Harvard Magazine (March-April, 2012):

For his part, [Eric] Mazur has collected reams of data on his students’ results. (He says most scholars, even scientists, rely on anecdotal evidence instead.) End-of-semester course evaluations he dismisses as nothing more than “popularity contests” that ought to be abolished. “There is zero correlation between course evaluations and the amount learned,” he says. “Award-winning teachers with the highest evaluations can produce the same results as teachers who are getting fired.”

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It's here: the law of evidence on Spindle Law.

See also this post and this post.

The Right to Confront an Evil Genie

Charge (against a Saudi judge): Corruption.

Defense: An evil genie (jinn) made me to do it.

Background: The court ordered a genie (jinn) expert -- a cleric and an exorcist -- to question the genie (jinn) and make a report.

Issue: Defense counsel asked the court to summon the genie (jinn) to testify in court. “'If what the accused judge said about the jinn, then this jinn could be bad and blasphemous…this jinn could have been sent by a bad sorcerer because witchcraft is bad and non-Islamic.' Okaz quoted the lawyer as saying he had made that demand on the grounds any sentence must not be based on 'jinn’s allegations', presented by an exorcist. 'This Raqi ( Koran reciter and exorcist) has not presented any real evidence that the accused judge has been possessed by jinn,' the lawyer said."

Lawyer wants jinn to testify in court: Says court should summon genie in corrupt judge case Emirates 24/7 News (Oct. 23, 2010).

Hat tip to Ann Murphy and Lowering the Bar.



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The dynamic evidence page
Evidence marshaling software MarshalPlan
It's here: the law of evidence on Spindle Law.

See also this post and this post.

Popularity Contests, Teaching, and Learning

Craig Lambert, The Twilight of the Lecture, Harvard Magazine (March-April, 2012):

For his part, [Eric] Mazur has collected reams of data on his students’ results. (He says most scholars, even scientists, rely on anecdotal evidence instead.) End-of-semester course evaluations he dismisses as nothing more than “popularity contests” that ought to be abolished. “There is zero correlation between course evaluations and the amount learned,” he says. “Award-winning teachers with the highest evaluations can produce the same results as teachers who are getting fired.”

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

A Long Goodbye to American Law Reviews

The following post from my (obscure) sister blog belongs here as well:

Thursday, March 19, 2009

Academic Law Reviews and Legal Scholarship in the Age of Cyberspace

It would have been hard to imagine just a decade ago: major U.S. newspapers are going out of business. (Quixotically enough, I recently renewed my subscription to hard copies of the New York Times.) The same fate has not yet befallen U.S. law reviews.

But most American law reviews are not, and perhaps never were, subject to normal market forces; most of these student-edited law journals were and are subsidized by law schools.

Subscriptions to major law reviews have fallen dramatically in the last couple of decades. Is the demise of student-edited law reviews at hand?

Well, even if we ignore the nebulousness of the notion of "demise," it's not yet clear that Armageddon for law reviews is at hand. This is because law schools have non-economic reasons for wanting to keep law journals alive.

It may be true -- though demonstrating this would be tricky -- that most "major" American student-edited law reviews are kept alive in significant part because "major" law schools want to maintain some control over access to the halls of legal academe and over the kinds of scholarship that secure access to U.S. legal academe. But there are signs that the gatekeeper role of these law reviews is on the wane.

That's probably a good thing.

The market, she is tricky, fickle, and often downright stupid. But the market is also often relatively democratic and open to innovation.

In the age of cyberspace budding legal scholars have some serious alternatives to student-edited "major" law reviews.

It is true that law schools will very probably still use "major" hard-copy student-edited law reviews as gatekeepers. But cyberspace and other developments are gradually creating alternatives to "major" law schools themselves. As California's Bernard Witkin demonstrated decades ago, such alternatives always existed. But in the age of cyberspace the prospects for market-oriented legal scholarship have grown and multiplied.



&&& I confess that personal history motivates this post. Decades ago, I swore not to submit my stuff to "major" American law reviews. I departed from my populist anti-establishmentarian line generally only when law journals invited me to submit a paper. Otherwise I have published in other venues. I took this anti-establishmentarian tack when, shortly after graduation, I tried to publish a study of Hegel's theory of the "duty to die for the state." I submitted my paper to about five "major" law reviews. They rejected my paper (but, in fairness to them, usually only by close votes).

I later realized I was literally ahead of my time: Hegel was not yet in vogue in American law schools. Had I tried publishing the paper a couple of decades later, I would have met with success. But by then I had completely repudiated Hegel and I had little taste for talking about things Hegelian. (The rejected paper was an excellent piece of work. [I concluded that Hegel's argument for the alleged duty to die for the state fails.])

This experience led me to swear off law reviews. I instead worked at redoing part of Wigmore's treatise.

Of course, by swearing off law reviews (for the most part) I figuratively shot myself in my figurative academic foot. But I don't regret what I did. I think my scholarship was more interesting as a result. I discovered, to my pleasure if not entirely to my surprise, that there are lots of inquisitive, creative, serious, and thoughtful people out there in the legal profession and in the wider world. Conclusion: publishing for the "market" and for the "world" has its compensations, very substantial compensations.

Postscript: Bernard Witkin's model of legal scholarship is not the model to which I aspire. But that's another question. My point here is that Witkin succeeded in doing legal scholarship on his own.

 

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Third-Party Financing of Litigation: Report of Ethical Qualms in Australia

See Joe Palazzolo, Australia: A Cautionary Tale of Litigation Financing? WSJ Blogs (Feb. 10, 2012):

"Since Australia’s high court in 2006 gave litigation funding its stamp of approval, the industry has grown significantly. In a new report sponsored by the U.S. Chamber Institute for Legal Reform, an Australian law professor [Michael Legg of the University of New South {Wales}] takes a look at how the practice — where businesses invest in high-stakes legal disputes, sharing the risks and potential rewards — creates conflicts of interest.

The conflict argument has been made in the U.S., which is still feeling its way in the field, but Australia’s track record is longer. And the report concludes that the country’s experience should be a lesson to the legal community here [in the U.S.]."

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

Canada Deals with Question of Competence of Severely Disabled Witnness

The decision is R. v. D.A.I., 2012 Supreme Court of Canada 5 (Feb. 19, 2012).

The case was a criminal trial for sexual assault.


The alleged victim was a 26 year-old woman, 22 at the time of the trial, with a mental age of a three- to six-year old child.
The trial judge barred the victim from testifying.
Defendant was acquitted. The Crown (the prosecution) appealed from the acquittal.
The Supreme Court of Candada reversed by 6-3 and ordered a new trial.
Chief Justice McLachlin, speaking for six members of the Court, said:

The issue of K.B.’s testimonial capacity was raised at trial, and the trial judge held a voir dire to determine whether she could be allowed to testify. K.B. and Dr. K., the defense’s expert witness, were the only ones to testify during the voir dire on competence. The Crown’s examination of K.B. demonstrated that she understood the difference between telling the truth and lying in concrete situations. However, the trial judge went beyond this to question K.B. on her understanding of the nature of truth and falsity, of moral and religious duties, and of the legal consequences of lying in court. K.B. was unable to respond adequately to these more abstract questions, to which she frequently answered “I don’t know” (A.R., vol. I, at pp. 117-19). Dr. K., a psychiatrist, testified for the defense. Dr. K’s opinion was formed without personal contact with K.B. It was based on school and medical records, as well as on K.B.’s behavior in her videotaped statement and during the voir dire. Dr. K. expressed the view that K.B. had “serious difficulty in differentiating the concept of truth and lie”, noted her low tolerance for frustration, and said, “I don’t think she had the ability to think what you’re asking and come up with an answer” (ibid., at pp. 159 and 161).

[snip,snip]

A second voir dire was held to decide on the Crown’s application for admitting K.B.’s out-of-court statements to the police and to her teacher, Ms. W. The teacher testified that K.B. would not intentionally lie, but that her ability to understand was more developed than her ability to express herself: “[t]his causes a lot of frustration for [K.B.], she frequently responds to questions by saying ‘I don’t know’” (ibid., at p. 176; see also pp. 184-85). Also, evidence was led corroborating K.B.’s allegations. A family friend testified that, while he was in D.A.I.’s room for another purpose, he found a Polaroid photo of K.B. with her breasts exposed and another photo of two unidentified people having sex. D.A.I.’s explanation of the first photo was that K.B. had flashed him while he was taking a photo of her. K.B.’s sister also testified that she had found such photos. However, she did not report it to her mother and the photos were not available at trial. K.B.’s sister also said she once saw D.A.I. touch K.B.’s breasts while she was lying on her bed.

The voir dire on hearsay admissibility was concluded by the trial judge’s dismissal of the Crown’s application. The trial judge rejected K.B.’s out-of-court statements to Ms. W. and to the police, holding that K.B.’s hearsay evidence was inadmissible because it was “unreliable, and its admission would seriously compromise the accused’s right to a fair trial” (2008 CarswellOnt 2638, at para. 57).

At trial, the judge concluded that while the remainder of the evidence raised “some serious suspicions” about D.A.I.’s conduct, it was too scant to support a conviction ((2008) CanLII 21725 (Ont. S.C.J.), at para. 11). The case essentially collapsed because of the trial judge’s ruling that K.B. was not competent to testify.

[snip, snip]

The first concept, and the one most relevant to this appeal, is the principle of competence to testify.  Competence addresses the question of whether a proposed witness has the capacity to provide evidence in a court of law.  The purpose of this principle is to exclude at the outset worthless testimony, on the ground that the witness lacks the basic capacity to communicate evidence to the court.  Competence is a threshold requirement. As a matter of course, witnesses are presumed to possess the basic “capacity” to testify. However, in the case of children or adults with mental disabilities, the party challenging the competence of a witness may be called on to show that there is an issue as to the capacity of the proposed witness. 

[snip, snip]

...I come to the provision at issue in this case, s. 16(3) of the Canada Evidence Act, which governs the capacity to testify of adults with mental disabilities. Section 16 provides:

16. (1) [Witness whose capacity is in question] If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine

(a) whether the person understands the nature of an oath or a solemn affirmation; and

(b) whether the person is able to communicate the evidence.

[Testimony under oath or solemn affirmation] A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation.

[Testimony on promise to tell truth] A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may, notwithstanding any provision of any Act requiring an oath or a solemn affirmation, testify on promising to tell the truth.

[Inability to testify] A person referred to in subsection (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify.

[Burden as to capacity of witness] A party who challenges the mental capacity of a proposed witness of fourteen years of age or more has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to testify under an oath or a solemn affirmation.

Section 16(1) sets out what a judge must do when a challenge is raised.  First, the judge must determine “whether the person understands the nature of an oath or a solemn declaration” and “whether the person is able to communicate the evidence”: s. 16(1). If these requirements are met, the witness testifies under oath or affirmation, as other witnesses do: s. 16(2). If these requirements are not met, the judge moves on to s. 16(3). Section 16(3) provides that “[a] person hellip; who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may hellip; testify on promising to tell the truth.”

Section 16(1) sets out what a judge must do when a challenge is raised.  First, the judge must determine “whether the person understands the nature of an oath or a solemn declaration” and “whether the person is able to communicate the evidence”: s. 16(1). If these requirements are met, the witness testifies under oath or affirmation, as other witnesses do: s. 16(2). If these requirements are not met, the judge moves on to s. 16(3). Section 16(3) provides that “[a] person hellip; who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may hellip; testify on promising to tell the truth."

In brief, s. 16(1) provides that an adult witness whose competence to testify is challenged should testify under oath or affirmation, if the witness “understands the nature of an oath or a solemn affirmation” and can “communicate the evidence”. Here K.B. did not meet the first requirement. The inquiry therefore moved to s. 16(3), which states that if an adult witness cannot take the oath or affirm under s. 16(1), then she must be permitted to testify if she is “able to communicate the evidence” and promises to tell the truth. 

On its face, s. 16 says that in a case such as this where the witness cannot take the oath or affirm, the judge has only one further issue to consider - whether the witness can communicate the evidence.  If the answer to that question is yes, the judge must then ask the witness whether she promises to tell the truth.  If she does, she is competent to testify.  It is not necessary to inquire into whether the witness understands the duty to tell the truth. 

The respondent argues, however, that the plain words of s. 16(3) do not suffice.  They must be supplemented, it says, by the requirement that an adult witness with mental disabilities who cannot take an oath or affirm must not only be able to communicate the evidence and promise to tell the truth, but must also understand the nature of a promise to tell the truth.

I cannot accept this submission. ... 

First, as already mentioned, this interpretation goes beyond the words used by Parliament. ... The first and cardinal principle of statutory interpretation is that one must look to the plain words of the provision.  Where ambiguity arises, it may be necessary to resort to external factors to resolve the ambiguity: .... However, Parliament has clearly stated the requirements for finding adult witnesses with mental disabilities to be competent. Section 16 shows no ambiguity. 

Second, the history of s. 16 supports the view that Parliament intended to remove barriers that had prevented adults with mental disabilities from testifying prior to the 1987 amendments. ...

Justice McLachlin goes on in this vein at some length. Along the way she states:

The common law, upon which our current rules of evidence are founded, recognized a variety of rules governing the capacity to testify in different circumstances.  The golden thread uniting these varying and different rules is the principle that the evidence must meet a minimal threshold or reliability as a condition of being heard by a judge or jury.  Generally speaking, this threshold of reliability is met by establishing that the witness has the capacity to understand and answer the questions put to her capacity, and by bringing home to the witness the need to tell the truth by securing an oath, affirmation or promise.  There is no guarantee that any witness - even those of normal intelligence who can take the oath or affirm - will in fact tell the truth, all the truth, or nothing but the truth.  What the trial process seeks is merely a basic indication of reliability.

The Chief Justice's opinion is certainly work(wo)manlike.


Justice Binnie, speaking for three dissenters, said:

I agree with the Chief Justice that, in this case, “[t]wo potentially conflicting policies are in play”, the first being to “bring to justice” those accused of sexual abuse and the second being “to ensure a fair trial for the accused and to prevent wrongful convictions” (para. 65). In my view, by turning Parliament’s direction permitting a person “whose mental capacity is challenged” to testify only “on promising to tell the truth” into an empty formality, a mere mouthing of the words “I promise” without any inquiry as to whether the promise has any significance to the potential witness the majority judgment unacceptably dilutes the protection Parliament intended to provide to accused persons.

Chief Justice McLachlin quoted portions of the Crown's and the trial judge's questioning of the alleged victim during voir dire:

During the voir dire on K.B.’s testimonial capacity, the Crown posed a line of questions going to whether she could tell the difference between true and false factual statements in concrete circumstances. These were relevant to K.B.’s basic ability to communicate the evidence:

MR. SEMENOFF:

How old are you now, [K.B.]?

A: I’m 22, you know that.

Q: 22? When’s your birthday?

A: [Birth date].

Q: [Birth date].

Are you going to school now or are you done with school?

A: I’m not done in school yet.

Q: What school do you go to, [K.B.]?

A: [Name of school].

Q: How long -- do you know how long you’ve been going to [name of

school]?

A: I don’t know.

Q: Did you go to any school before you went to [name of school]?

A: From [name of previous school].

Q: From [name of previous school]. Okay.

Did you have a teacher from that school, a [Ms. W.]?

A: Ms. [R.].

Q: Oh, [R.]. And I call her [Ms. W.], do you know what her name is, is it [R.] or is it [Ms. W.]?

A: [R.].

Q: Okay.

hellip; [K.B.], if I were to tell you that the room that we’re in that the walls in the room are black, would that be a truth or a lie, [K.B.]?

A: A lie.  

Q: Why would it be a lie?  

A: It’s different colours in here.  

Q: There are different colours in here. What colour are the walls?  

A: Purple.  

Q: Purple.

Okay. If I were to tell you that the gown that I’m wearing that that is black, would that be a truth or a lie?  

A: The truth.  

Q: And why is that?  

A: I don’t know.  

Q: You don’t know.

Is it a good thing or a bad thing to tell the truth?  

A: Good thing.  

Q: Is it a good thing or a bad thing to tell a lie?  

A: Bad thing.

(A.R., vol. I, at pp. 111-13)

However, the trial judge went on to question K.B. on her understanding of what the meaning of truth, religious concepts, and the consequences of lying.

THE COURT:

hellip;Do you go to church, [K.B.]?

A: No.  

Q: No. Have you ever been taught about God or anything like that?  

A: No.  

Q: No? All right.

What happens if you steal something?  

A: I don’t know.  

Q: You don’t know. If you steal something and no one sees it, will anything happen to you? Nothing will happen. Why won’t anything happen?  

A: I don’t know.  

Q: You don’t know.

Tell me what you think about the truth.  

A: I don’t know.  

Q: You don’t know. All right. Is it important to tell the truth?  

A: I don’t know.  

Q: You don’t know. Tell me what a promise is when you make a --

A: I don’t know.  

Q: -- promise. What’s a promise?  

A: I don’t know.  

Q: You don’t know what a promise is.

Okay. Have you ever been in court before?  

A: Once.  

Q: Once? And do you think it’s an important thing to be in court?  

A: I don’t know.  

Q: You don’t know. All right.

Do you know what an oath is, to take an oath?  

A: I don’t know.  

Q: No.

Do you have any idea what it means to tell the truth?  

A: I don’t know.  

Q: You don’t know.’

If you tell a lie does anything happen to you? Nothing happens.  

A: No.

hellip;

THE COURT:

. . . Do you know why you’re here today?

A: I don’t know. To talk about [D.A.I.].

Q: Yes, and do you think that’s really important?  

A: Maybe yeah.  

Q: Maybe yeah?

Remember earlier I was asking you about a promise?  

A: No.  

Q: Have you ever made a promise to anybody?  

A: I don’t know.  

Q: That you promised you’ll be good, did you ever say that? Have you ever heard that expression “I promise to be good, mommy”?  

A: Okay.  

Q: All right. So you know what a promise is, that you’re going to do something the right way? Do you understand that?  

A: Okay.  

Q: Can you tell me whether you understand that, [K.B.]?  

A: I don’t know.  

Q: Does anything happen if you break a promise?  

A: I don’t know.  

Q: You told me you don’t go to church, right?  

A: Right.  

Q: And no one has ever told you about God; is that correct? No one has ever told you about God?  

A: No.  

Q: Has anyone ever told you that if you tell big lies you’ll go to jail?  

A: Right.  

Q: If you tell big lies will you go to jail? 

A: No.

I don't think the Chief Justice liked it very much that the trial judge questioned the witness about her religious beliefs. But that's just my conjecture.






&&&

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Flash: Trial Judge Apparently Murdered Unauthenticated MySpace Page!

"[[T]trial judge] Bortner granted a motion to suppress concerning a page on the MySpace social networking site. There is no proof that defendant Jordan Wallick of York created or maintained the web page, which contains photos of  [murder defendant] Wallick, the judge said in a Friday ruling."

Source: Martha Neil,  Judge OKs Law Student's Dying Decalaration as Evidence, [b]ut Nixes MySpace Page Related to Defendant ABAJournal.com (Oct. 24, 2011).

&&& 
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Charles Dickens' Jaundiced View of Lawyers

 "TUESDAY is the bicentenary of the birth, in Portsmouth, England, of Charles Dickens, literature’s greatest humanist. We can rejoice that so many of the evils he assailed with his beautiful, ferocious quill — dismal debtors’ prisons, barefoot urchin labor, an indifferent nobility — have happily been reformed into oblivion. But one form of wickedness he decried haunts us still, proud and unrepentant: the lawyer.

"Lawyers appear in 11 of his 15 novels. Some of them even resemble humans. Uriah Heep ('David Copperfield') is a red-eyed cadaver whose 'lank forefinger,' while he reads, makes 'clammy tracks along the page ... like a snail.' Mr. Vholes ('Bleak House'), 'so eager, so bloodless and gaunt,' is 'always looking at the client, as if he were making a lingering meal of him with his eyes.' Most lawyers infest dimly lighted, moldy offices 'like maggots in nuts.' ... "

Source:Joseph Tartakovsky, Dickens v. Lawyers (Op-Ed), NYTimes (Feb. 6, 2012).

I belong to a noble profession.

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Bogus "Repressed Memory" Theory Still Lives in Some Places

As I was reading online newspaper articles this morning, an item about David Clohessy, national director of SNAP -- Survivors Network of those Abused by Priests -- caught my attention. It seems that he and SNAP are resisting a court order that he and SNAP disclose communications they may have had, in violation of a gag order, about communications with the press and alleged victims of sexual abuse. This court order, of course, raises First Amendment issues. However, what caught my attention is that the controversy arose out of a civil action in which the plaintiff is apparently relying on the theory of "repressed memory." This is most distressing -- inasmuch it is fairly obvious to any halfway rational person that the theory of repressed & recovered memory is bogus. See, e.g., this article in the Skeptic's Dictionary.

In the underlying civil action the John Doe plaintiff apparently alleges he was abused "in the 1970s." So he allegedly forgot about the sexual abuse for roughly 40 years. Who really believes this sort of stuff? (Well, the Massachusetts Supreme Judicial Court apparently does. Compare this post.)

N.B. SNAP still holds national conventions. (The 2012 convention, SNAP reports, will be in Chicago.) A major focus of such conventions seems to be to encourage victims to come forward. It is possible SNAP's encouragement is a bit too brisk. (One wonders whether in 2020 some person at a SNAP national convention will suddenly remember being abused by a priest in the 1970s. I suppose so!)

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

A New Project - in the Footsteps of James Bradley Thayer and Judge Jack B. Weinstein

I have accepted an invitation to serve as one of the editors of the next edition - the 10th edition - of Jack B Weinstein, John H Mansfield, Margaret A Berger (deceased) & Norman Abrams Evidence: Cases and Materials (University Casebook Series) (West Publishing & Foundation Press, updated 9th ed., 1997). This casebook has a distinguished lineage: it is a descendant of the evidence casebook published by James Bradley Thayer in 1892.

I will continue to work with Scott Brewer and Joannes Vinarao-Pilapil on the projected treatise The Structure of Proof in Modern American Trials (Aspen Publishers) (for multivolume set The New Wigmore).

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

Are Entering Law Students Less Well Educated Today?

Like probably every law professor in the U.S., I sometimes wonder if today's entering law students are less well educated than their predecessors were. I think that's why the following item caught my attention:

Professor [Philip] Babcock has written extensively about college students’ evolving study habits (or lack thereof) over the last 50 years. He found that in 1961, full-time students spent about 40 hours each week in class and studying. By 2003, they were investing about 27 hours a week.

Catherine Rampell, Why Students Leave the Engineering Track, New York Times (online) (Jan. 21, 2012).

This posting might lead you to wonder if Peter Tillers was always an industrious and diligent student in college and law school. Tillers told me he refuses to answer this question here (mainly  because, he said, a full answer answer would have to be nuanced -- and, hence, lengthy). But he did say he believes in redemption and he did tell me he thinks it is impossible to learn how to write, how to do higher mathematics, how to reason about evidence, and so on, without doing a lot of work. He also said to me, "Wisdom does not come easily."

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

Important Eyewitness Identification Ruling: Perry v. New Hampshire

In Perry v. New Hampshire No. 10-8974 (Jan. 11, 2012) (8-1; Sotomayor, J., dissenting) the Supreme Court of the United States held that a pretrial identification not conducted by police officers or state agents is not - at least as a general matter - subject to due process scrutiny. This basis for the decision was not  unexpected, even if it was unfortunate.

The Court wrote (footnote omitted):

We have not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers. Petitioner requests that we do so because of the grave risk that mistaken identification will yield a miscarriage of justice.Our decisions, however, turn on the presence of state action and aim to deter police from rigging identification procedures, for example,at a lineup, showup, or photograph array. When no improper law enforcement activity is involved, we hold, it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.

More welcome (as a conceptual or analytical matter) than the Court's flawed view of the requirement of state action was the Court's seeming awareness that the question of reliable or unreliable eyewitness identifications (in criminal cases) cannot readily be distinguished from the question of the reliability or unreliability of other types of evidence. (Such awareness - and perhaps acknowledgment - can be inferred from the Court's brief comparison of eyewitness identifications and testimony by "jailhouse snitches.")

• I think the question of the reliability of eyewitness identifications cannot and should not be separated from the even more general and decisive question of the reliability or unreliability of factual adjudication in criminal cases. 

The ruling in the case leaves open precisely how the Court and lower courts will use the federal due process guarantee to assure a minimum level of fact finding reliability in criminal cases. Although the Court did not speak as clearly as it might have - but when does it or anyone ever do that? - at least the Court made it tolerably clear, if only by means of a negative pregnant, that the guarantee of due process puts some sort of a ceiling on the risk of erroneous factual adjudication in criminal cases:

Only when evidence "is so extremely unfair that its admission violates fundamental conceptions of justice," Dowling v. United States, 493 U. S. 342, 352 (1990) (internal quotation marks omitted), have we imposed a constraint tied to the Due Process Clause. See, e.g., Napue v. Illinois, 360 U. S. 264, 269 (1959) (Due process prohibits the State’s 'knowin[g] use [of] false evidence,' because such use violates "any concept of ordered liberty.")

What is not clear from this statement and the Court's other pronouncements in the opinion is whether the Court will, in the near future, embrace the proposition that when the risk of fact finding error is so severe as to "shock the conscience" or offend "fundamental conceptions of justice," the due process guarantee can mandate remedies other than the (mere) exclusion of evidence - whether, for example, a criminal trial can be condemned as constitutionally defective because the accused had insufficient resources to mount a defense.

• Statements in the opinion such as the following suggest that support for such an approach will be forthcoming only grudgingly in the near future:

The Constitution, our decisions indicate, protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit.

• Cf.  Justice Thomas' concurring opinion. He would plainly reject the approach I favor.

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The dynamic evidence page
Evidence marshaling software MarshalPlan
It's here: the law of evidence on Spindle Law. See also this post and this post.