New Issue of International Journal of Evidence and Proof

Hat tip to Robert Richards for his alert to the following new issue of the

International Journal of Evidence and Proof

 

Volume 16 Number 1 2012
ISSN: 1365-7127  eISSN: 1740-5572

ARTICLE

The likelihood-ratio framework and forensic evidence in court: a response to R v T
Keywords: Bayesian; Bayes; Admissibility; Validity; Reliability
Geoffrey Stewart Morrison DOI: doi:10.1350/ijep.2012.16.1.390
(2012) 16 E & P 1
 ABSTRACT: In R v T the Court of Appeal concluded that the likelihood-ratio framework should not be used for the evaluation of evidence except 'where there is a firm statistical base'. The present article argues that the court's opinion is based on misunderstandings of statistics and of the likelihood-ratio framework for the evaluation of evidence. The likelihood-ratio framework is a logical framework and not itself dependent on the use of objective measurements, databases and statistical models. The ruling is analysed from the perspective of the new paradigm for forensic-comparison science: the use of the likelihood-ratio framework for the evaluation of evidence; a strong preference for the use of objective measurements, databases representative of the relevant population, and statistical models; and empirical testing of the validity and reliability of the forensic-comparison system under conditions reflecting those of the case at trial.

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Is reliability sufficient? The Law Commission and expert evidence in international and interdisciplinary perspective (Part 1)
Keywords: Law and science; Forensic science; Expertise; Admissibility; Daubert;Reform; Trial safeguards; Proof; Opinion; Judging
Gary Edmond DOI: doi:10.1350/ijep.2012.16.1.391
(2012) 16 E & P 30
ABSTRACT: This article offers a critical appraisal of the Law Commission's Report, Expert Evidence in Criminal Proceedings in England and Wales (2011), and related proposals for reform. Drawing upon interdisciplinary research and empirical studies from other common law jurisdictions it suggests that the introduction of a reliability-based admissibility standard for expert opinion evidence, even in conjunction with provision for recourse to court-appointed experts, is unlikely to generate the kinds of changes required to improve the quality of incriminating forensic science and medicine evidence or align criminal justice practice with espoused goals and principles.

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Due process and the admission of expert evidence on recovered memory in historic child sexual abuse cases: lessons from America
Keywords: Expert evidence; Recovered memory; Due process; Historic child sexual abuse prosecutions; the United States; Ireland; England and Wales; Law Commission
Sinead Ring DOI: doi:10.1350/ijep.2012.16.1.392
(2012) 16 E & P 66
ABSTRACT: This article reviews the decisions of the US state courts on the admissibility of expert testimony on recovered memory in historic child sexual abuse prosecutions. Unlike their English and Irish counterparts, most US courts scrutinise the reliability of expert evidence on recovered memory. In examining the US decisions the article explores the challenges posed to the criminal process by the contested scientific status of recovered memory theory. It sets out due process arguments why expert evidence on the topic should not be admitted in a criminal trial.

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CASE NOTE

Expert evidence on the reliability of eyewitness identification-some observations on the justifications for exclusion: Gage v HM Advocate
Keywords: Expert evidence; Eyewitness identification; Admissibility; Common knowledge; Probative value
Andrew Roberts      93
DOI: doi:10.1350/ijep.2012.16.1.393

CASE COMMENTARIES

Case Commentaries
Rosemary Pattenden      106
DOI: doi:10.1350/ijep.2012.16.1.394

NOTICEBOARD

Noticeboard
Rosemary Pattenden      128
DOI: doi:10.1350/ijep.2012.16.1.395
 

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Brain Endowments and the Interpretation of Natural Signs

We have known for some time that bits of evidence function as signs, or clues. (Sherlock Holmes knew this.) But we do not have a good sense of what it is in us or in the cosmos that enables us to take little bits of evidence and extract from them, possibilities, conjectures, and, even, conclusions (inferences) that reach far beyond the evidence that seems to inspire or provoke them. Now we may have some further support for a conjecture about part of the answer. The source of that support? Pigeons.

Birds are excellent navigators. Indeed, they are phenomenal navigators. But scientists have not been able to explain very well how birds, with their teeny-weeny brains, manage their navigational feats of derring-do. It has been suspected that the answer lies in the ability of birds to detect earth's magnetic fields. But no one has been able to demonstrate the part of the anatomy of birds that enables them to detect and interpret magnetic fields. Until now. See James Gorman, Study Sheds Light on How Pigeons Navigate by Magnetic Field NYTimes (April 26, 2012). It appears that there are "cells in a pigeon’s brain that record detailed information on the earth’s magnetic field." Id.
Stunning. So is there also reason to believe that human brains are also soft-wired with devices that facilitate the interpretation of tiny "evidentiary clues," sensory signals, or "natural signs"? It must be so, yes? The conscious mind -- explicit human thought -- is not by itself capable of extracting all the things (some of them "true," or, in any event, indicative or suggestive of true propositions) that human beings, like pigeons, manage to extract from the environment.
This may not be "intelligent design." But it is, in a way, a kind of harmony of the spheres, a harmony between the internal mechanisms of organisms -- such as pigeons and human beings -- and their "environment" (the cosmos). The only really peculiar thing about the human animal is that it is able, sometimes, to also deploy conscious thought -- explicit ratiocination -- to interpret eeny-weeny signs, or hints(?), in its environment.
Or so I speculate.

• Cf. the second part of my essay Are There Universal Principles or Forms of Evidential Inference? Of Inference Networks and Onto-Epistemology in J. Jackson, M. Langer & P. Tillers, eds., Crime, Procedure, and Evidence in a Comparative and International Context (Hart Publishing, 2008) & William Twining, Philip Dawid & Dimitra Vasilaki, eds., Evidence, Inference and Enquiry (Oxford & British Academy, 2011).

The mighty pigeon...

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An Interesting Comment on Creative Scholarship

 David Brooks, The Creative Monopoly (April 23, 2012):

"As a young man, Peter Thiel competed to get into Stanford. Then he competed to get into Stanford Law School. Then he competed to become a clerk for a federal judge. Thiel won all those competitions. But then he competed to get a Supreme Court clerkship.

"Thiel lost that one. So instead of being a clerk, he went out and founded PayPal. Then he became an early investor in Facebook and many other celebrated technology firms. Somebody later asked him. 'So, aren’t you glad you didn’t get that Supreme Court clerkship?'"

"The question got Thiel thinking. His thoughts are now incorporated into a course he is teaching in the Stanford Computer Science Department. (A student named Blake Masters posted outstanding notes online, and Thiel has confirmed their accuracy.) 

"One of his core points is that we tend to confuse capitalism with competition. We tend to think that whoever competes best comes out ahead. In the race to be more competitive, we sometimes confuse what is hard with what is valuable. The intensity of competition becomes a proxy for value.

"In fact, Thiel argues, we often shouldn’t seek to be really good competitors. We should seek to be really good monopolists. Instead of being slightly better than everybody else in a crowded and established field, it’s often more valuable to create a new market and totally dominate it. The profit margins are much bigger, and the value to society is often bigger, too."

"Now to be clear: When Thiel is talking about a 'monopoly,' he isn’t talking about the illegal eliminate-your-rivals kind. He’s talking about doing something so creative that you establish a distinct market, niche and identity. 'You’ve established a creative monopoly and everybody has to come to you if they want that service, at least for a time.'

"His lecture points to a provocative possibility: that the competitive spirit capitalism engenders can sometimes inhibit the creativity it requires.

"Think about the traits that creative people possess. Creative people don’t follow the crowds; they seek out the blank spots on the map. Creative people wander through faraway and forgotten traditions and then integrate marginal perspectives back to the mainstream. Instead of being fastest around the tracks everybody knows, creative people move adaptively through wildernesses nobody knows."

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Woes of Law Teachers v. Woes of Scientists

You're a law teacher? You don't like the industrial model of scholarship? You don't like being judged by the quantity of the articles you place in "leading law reviews"? You wish that the originality of your work counted for more? Things could be worse: You could be a scientist:  Carl Zimmer, A Sharp Rise in Retractions Prompts Calls for Reform, NYTimes (April 16, 2012).
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Reminder: Summer School on Law & Logic

Do not neglect to apply to the European University Institute-Harvard Law School (with Cardozo Law School as a co-sponsor) Summer School on Law & Logic.

 

Venue: Florence, Italy

Dates:  July 16-20, 2012

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Videos from Girona (Spain) 2011 Workshop on Standards of Proof and Scientific Evidence

University of Girona Workshop on Standards of Proof and Scientific Evidence, May 2011:

Larry Laudan, The Elementary epistemic arithmetic of the law II: the inadequate resources of moral theory for dealing with the criminal law

Susan Haack, Legal probabilism: An Epistemological Dissent

Michael S. Pardo, Relevance, Standards of Proof, and Evidence Theory

Ronald J. Allen, Standards of Proof and the Limits of Legal Analysis

Andrés Páez, Deciding Whom to Believe: Testimony as Evidence

Michele Taruffo, Applying scientific standards to social science and forensic evidence

Marina Gascón, Scientific Proof. A map of Challenges 

Paul Roberts, Was the baby shaken? Evidence, expertise and legal epistemology in english criminal trials

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The Legal Treatise in Modern America

Angela Fernandez & Markus D. Dubber, "Introduction: Putting the Legal Treatise in its Place,"  http://ssrn.com/abstract=2035134, pp. 19-21 (April 5, 2012) (footnotes omitted) (introduction to Law Books in Action: Essays on the Anglo-American Legal Treatise):

"One question that we do not address in great detail is what happened to the treatise as a form of literature in the twentieth century. Roscoe Pound recounted this evolution in The Formative Era in American Law, where he gave a steppingstone story, casebooks were the ‘necessary forerunner[s] . . . of the great treatises’, the ‘ultimate’ or ‘mega’ treatises. And those ‘great treatises’ paved the way for the American Law Institute Restatement projects.
"How did the United States get from this ‘Age of the Treatise’ to the study of doctrine being seen as passé by the late 1970s and early 1980s? Simpson identified the lack of enthusiasm for doctrine in the United States with the rise and effects of legal realism.
"There is clearly some truth to this observation, although there are many jurisdictions that had significant ‘realist’ or ‘sociological’ movements in which treatises continued to be produced.
"Treatise-writing was not just an outmoded vestige of ‘Langdellian formalism’, or ‘Classical Legal Thought’, if you prefer. Corbin, for instance, saw  his treatise as a Legal Realist alternative to Williston’s formalism, one that drew on inductive case analysis rather than deductive reasoning from higher principles to lower doctrines. Corbin’s treatise, after all, appeared only in 1950, long after Legal Realism had replaced formalism as the orthodoxy in American legal thought. (Even the first edition of Williston was published in 1920, at the very end of the ‘heyday’ of legal formalism.) Karl Llewellyn, who regarded Corbin as his ‘father in the law’, complained bitterly about his fellow Legal Realists’ dismissal of doctrinal analysis, and of treatise and Restatement writing in particular.
"Although no treatise-writer himself, Llewellyn, like Corbin, played a central part in the American Law Institute’s work. His Uniform Commercial Code, more explicitly than Corbin’s Restatement of Contracts, implemented the core Legal Realist claim that it was impossible to deduce the resolution of every issue from a set of principles by leaving space for local legal communities (in this case communities of merchants) to frame and resolve issues based on their experience and expertise.
"Farnsworth’s contracts treatise, first published in 1982, can be seen as a more explicitly normative, if not to say neo-formalist, alternative to Corbin’s Realist project. Prosser’s torts treatise, first published in 1941, too was more intellectually ambitious – and in particular animated by then-dominant Legal Realist thought – than it would appear in hindsight, after a series of editions that, as in all such works, tend to dilute the conceptual clarity of the original vision. That said, few if any legal scholars in the United States today wake up filled with a burning desire to devote their professional lives to the production of a treatise, great or not so great. While short treatlets survive on the margins of the American legal textbook market, neither students nor teachers, not to mention courts or practising lawyers or, for that matter, legislators or their aides, feel the need to bury their noses in heavy tomes of treatise learning. The Great Treatise very much has gone the way of the Great Men of the Law; just as the American Law Institute is not what it once was, and ALI giants like Herbert Wechsler no longer roam the halls of American law schools, so Model Codes or even Restatements no longer demand the attention of the producers or the consumers of legal literature in the United States.
"Other common law countries, such as Canada, however, continue to generate  treatises on the standard range of topics, including – even – in criminal law, a  subject long neglected in its Neighbour to the South. In the Mother Country, too, scholars and practitioners continue to churn out treatises, though the name may have fallen out of favour, perhaps so as not to scare off students and lawyers eager for a quick hit of doctrine. In civil law countries, say Germany, the production of comprehensive – and heavy – tomes of doctrinal analysis continues, both in the form of Lehrbücher and (often multi-volume) treatises-cum-code-commentaries, though here too shorter forms of legal educational literature have found a willing market.
"Given the treatise’s shape-shifting resilience over the past few centuries and its intimate connection with ideas of legal scholarship, legal education, and even of law itself, it would be foolish to count it out, now or in the future, in civil law countries or in the common law world. Perhaps even in an apparently hostile environment such as American legal scholarship, where ‘doctrine’ has for some time been a four-letter word, a fundamental and widespread reassessment of the very project of so-called interdisciplinary (‘law and’) legal scholarship may usher in a renaissance, or at least a reassessment, of the treatise in one form or another, as the disciplinary pendulum swings back from the ‘and’ to the ‘law’ and the analysis of law reasserts itself, both chastened and complicated in the wake of insights gleaned from decades of peering into law from the outside."
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HAL's Error

To err is human and non-human.

Is error in brain circuitry a precondition of imagination and creativity?
The human brain is soft-wired. The brain's wiring is mushy; it is not in the main metallic; if the brain is a machine, it is - in part - a biological machine, a biological mechanism. (The brain is also chemical, electrical, magnetic, etc. Yes?)
Is it the following the case?: The mushiness of the brain's circuitry helps to explain why non-deterministic human reasoning is possible, why human thoughts and reasoning can burst outside preexisting channels?
But to explain fully the possibility of non-deterministic (non-deductive?) human thought processes -- imagination and creativity -- is it also necessary to suppose that thoughts that burst outside of established circuitry produce a kind of somewhat disordered complexity and chaos?
I don't know. But I have a suspicion. (Yes.)

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Shaken Baby Syndrome

Carol J. Williams, Brown commutes sentence of woman convicted of killing grandson, LATimes (April 7, 2012).



In the courts:Cavazos v. Smith, 132 S.Ct. 2 (2011) (per curiam; Ginsburg, Breyer & Sotomayor, dissenting), reversing Smith v.Mitchell, 437 F.3d 884 (9th Cir. 2006). 
It would better if syndrome evidence of every kind were banished from the courtrooms of our land.


See the earlier post:

Tuesday, December 20, 2011

Shaken Baby Syndrome

For an excellent -- but noncommittal -- review of the growing controversy over the "shaken baby syndrome," see Mark Hansen, Unsettling Science: Experts Are Still Debating Whether Shaken Baby Syndrome Exists ABA Journal (Dec. 1, 2011).

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Summer School on Law & Logic

The European University Institute and Harvard Law School are hosting a summer school on law and logic this summer. Cardozo Law School is also a sponsor. The venue of the summer school is Florence, Italy; and the dates are July 16-20. See generally http://lawandlogic2012.wordpress.com/


The registration fee is 200 Euros. Instructions about the simple procedure for applying for admission to the school are at http://lawandlogic2012.wordpress.com/05-application/

The summer school's web site describes the general nature of the summer program this way:

The Summer School on Law and Logic is the first course ever to provide a comprehensive introduction to the uses of logic in the law. It combines an introduction to the basic methods of formal logic, a discussion of their application to the law, and an in-depth analysis of the logical structures of legal knowledge and legal reasoning.

It aims at providing postgraduate law students and legal professionals with knowledge of the methods of formal logic, and the ability to apply those methods to the analysis and critical evaluation of legal sources and legal arguments. We think that a background in formal logic is today an essential prerequisite for engaging in legal theory, and can be very useful also for developing doctrinal legal research, working in legal informatics, and, more generally, in the practice of law.

The Summer School introduces the use of logic in analysing sources of law (including statutes, cases, regulations, constitutional provisions) and legal arguments.

It includes the basics of propositional and predicate logic, as well as the the use of logic for capturing representing deontic and Hohfeldian modalities, analogical reasoning and inference to the best explanation.

It also addresses some aspects of non-deductive reasoning in law, such as defeasible reasoning, argumentation schemes, and inductive reasoning.

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I killed him, and he did it...

"The principal issue at trial was the identity of the person who killed Colleen Richardson-Luciano. The suspects were two, both of whom had equivalent opportunity to do so. Michael Luciano was one. James Cooper was the other. Luciano said it was Cooper. And Cooper could not deny it because Luciano killed him about a day after Colleen had been stabbed to death.

"A person charged with the murder of another is entitled to adduce evidence in response to the charge that shows or tends to show that another person committed the murder: R. v. McMillan  (1975), 7 O.R. (2d) 750  (C.A.), at p. 757, aff'd [1977] 2 S.C.R. 824; IA Wigmore on Evidence (Tillers  Rev.) at para. 139, pp. 1723-724."

R. v. Luciano,  [2011] O.J. No. 399; 2011 ON.C. LEXIS 14996; 273 O.A.C. 273; 267 C.C.C. (3d) 16; 2011 ONCA 89 (Ontario Court of Appeal, Feb. 1, 2011).

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Is a Bicycle a "Vehicle" - in Liberty Park?

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European University Institute-Harvard Law School Summer School on Law and Logic

There will be a summer school in Florence this summer on law and logic. The summer school is sponsored by Harvard Law School and the European University Institute and is meant for law students from the United States, Europe, and other parts of the world. Cardozo School of Law (Yeshiva University) is also supporting this summer school.

No prior expertise in or formal study of logic is assumed or required. You must only have a seriously interest in the topic. The summer school is designed to introduce you to pertinent strands of logic.

Place: Florence

Dates: July 16-20, 2012

Cost: The registration fee for the summer school will probably be approximately 200 Euros.

Accommodations: EUI itself does not provide housing. However, EUI has arrangements with hotels for reduced-cost accommodations in Florence. See http://lawandlogic2012.

The official description of the summer school is as follows:

"The Workshop on Law and Logic will be held in Florence, Italy, at the European University Institute on 16-20 July 2012.

"This summer school is jointly hosted by the European University Institute, and the Harvard Law School (Cambridge, Massachusetts, U.S.A.) It is also supported by the Cardozo Law School (New York, N.Y., U.S.A.), Cirsfid-University (Bologna, Italy), and the University of Groningen (the Netherlands).

"The summer school is the first course ever to provide a comprehensive introduction to the uses of logic in the law. It combines an introduction to the basic methods of formal logic, a discussion of their application to the law, and an in-depth analysis of the logical structures of legal knowledge and legal reasoning.

"It aims at providing postgraduate law students and legal professionals with knowledge of the methods of formal logic, and the ability to apply those methods to the analysis and critical evaluation of legal sources and legal arguments. We think that a background in formal logic is today an essential prerequisite for engaging in legal theory, and can be very useful also for developing doctrinal legal research, working in legal informatics, and, more generally, in the practice of law.

"The program is held annually, during the summer, for a week or more, starting in the Summer of 2012."





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The workshop has a web site. At the time of this post, not all parts of the web site are operational. The web site will be fully operational within ca. five days. But even as it stands now, the web site provides useful information about the workshop. The link for registration will be activated in a few days. Exact descriptions of the workshop sessions will also be available in a few days.

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Premature Judgment; Popular (Mob?) Justice

1. Wouldn't it be advisable to wait until all the evidence comes in before we reach firm conclusions about what happened between Trayvon Martin and Zimmerman? It's hard enough for anyone to make reasoned and supportable inferences from a given body of evidence. It's all the harder for the people passing judgment on the event to do so if they and we know that they have only a portion of the available evidence.

2. I guess we should glad that American no longer has trial travesties and mob justice of the sort Hollywood so ably chronicled as happening in the South in the 1920s and 1930s. Today I'm sure we wouldn't tolerate attempts to influence the course of criminal justice by mass parades and pronouncements by prominent citizens expressing their firm belief in the criminal guilt of the projected defendant. We wouldn't approve of such things today, would we?

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More on the Perils of fMRI Evidence

Jonah Lehrer, Brain Scan Overload, Don't be fooled by pictures of the mind in action Wall Street Journal (Nov. 12, 2011):

In November 1991, a team of researchers at Massachusetts General Hospital described a radical new method for visualizing activity within the human brain. By using giant, superconducting magnets, the scientists were able to peer inside the skull, constructing precise maps of the mind at work. The black box had been flung wide open. 

This experimental technique is known as functional magnetic resonance imaging, or fMRI.

... 

The expensive machine is like a high-tech window into the soul. 

But is it really? While there is little doubt that scientists have learned a tremendous amount from fMRI, it's important to realize that the tool comes with strict limitations, which are often misunderstood. Many of these limitations are rooted in the fact that the scanners are forced to measure brain activity indirectly: Neurons speak in squirts of neurotransmitters and bursts of electricity, but fMRI machines can track only changes in blood flow.
... 

Consider an op-ed piece recently published in the New York Times, which used fMRI results to demonstrate, purportedly, that people "literally love their iPhones." The evidence? When the researchers showed subjects a video of a ringing cellphone, a part of the brain called the insula exhibited a spike in activity. Because previous studies have linked the insula with feelings of love, the authors concluded that the gadget had become a "romantic rival" for husbands and wives. 

But here's the problem: The insula is also activated by feelings of disgust and bodily pain. It plays an important role in coordinating hand movement, maintaining balance and monitoring bodily changes. In fact, activity in the insula has been implicated in nearly a third of all fMRI papers. Because the brain is such a vast knot of connections, it's often impossible to understand what's happening based on local patterns of activity. Perhaps we're disgusted by our iPhones, or maybe the insula is just preparing the fingers to move. The pretty picture can't reveal the answer.

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Time to Reduce Law School Tuition?

David Segal, For 2nd Year, a Sharp Drop in Law School Entrance Tests, NYTimes (March 19, 2002): 

The organization behind the Law School Admission Test reported that the number of tests it administered this year dropped by more than 16 percent, the largest decline in more than a decade. 

The Law School Admission Council reported that the LSAT was given 129,925 times in the 2011-12 academic year. That was well off the 155,050 of the year before and far from the peak of 171,514 in the year before that. In all, the number of test takers has fallen by nearly 25 percent in the last two years.

Fewer decanal lunches and dinners at posh Manhattan restaurants? Horrors!
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Best Sellers

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"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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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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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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