James H. Chadbourn, LYNCHING AND THE LAW (1933)

I just discovered, rather serendipitously, that James H. Chadbourn's Lynching and the Law (University of North Carolina Press, 1933) is being reprinted at the end of this month - on December 30, 2008 - by the Lawbook Exchange, Ltd. (There is a new introduction by Paul Finkelman.)

Chadbourn was an assistant professor at the University of North Carolina when he published this book. It is easy to be tolerant and liberal when you have lots of company. It took great courage for Chadbourn to write and publish this book when and where he did.

Chadbourn went on to have a distinguished career. He taught at various universities, including the University of Pennsylvania, University of California at Los Angeles, and Harvard University. He died of cancer on October 1, 1982. To the very end, Chadbourn had no patience with cant or abuse of power. He also never lost his inimitable sense of humor. I still miss him.

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Sexual Predators -- Do They Always, Almost Always, Often, Ordinarily, or Rarely Do It Again?

Charles H. Rose III, "Caging the Beast: Formulating Effective Evidentiary Rules to Deal with Sexual Offenders," 34 American Journal of Criminal Law 1, 2-3 (2006) (footnotes omitted):

Media coverage of heinous acts of barbarism by sexual predators creates a sense within the public eye that uncontrollable predators lurk around every corner, waiting to prey upon our children through tools of technology that we do not quite understand and therefore fear. Our society believes that once an individual commits an act constituting a sexual offense crime under our statutory provisions, [he or she is] lost.

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Most Americans believe that it is not a question of if, but when, a sexual predator will commit another sexual crime. That belief is warranted for a small minority of sexual offenders, but the vast majority do not fall under that umbrella.

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coming soon: the law of evidence on Spindle Law

A Strange Kind of Genius

If Bernard Madoff ran a Ponzi scheme, he ran the scheme on a scale and for an amount of time (and for an amount of money) that far outstripped anything that had been done before. See Diana Henriques, "Madoff Scheme Kept Rippling Outward, Across Borders," NYTImes (Dec. 20, 2008) :

But whatever else Mr. Madoff’s game was, it was certainly this: The first worldwide Ponzi scheme — a fraud that lasted longer, reached wider and cut deeper than any similar scheme in history, entirely eclipsing the puny regional ambitions of Charles Ponzi, the Boston swindler who gave his name to the scheme nearly a century ago.

It takes a strange kind of genius -- but genius nonetheless -- to do that.

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coming soon: the law of evidence on Spindle Law

consulting

Universities and Law Schools Are Not Exempt from Financial Catastrophes -- or Scandals

Bernard Madoff, who allegedly lost $50 billion of his clients' money, was the treasurer of the board of trustees of Yeshiva University, the parent of Cardozo School of Law. Before this scandal erupted Yeshiva University had already lost about 1/3 of its endowment because of the turmoil in the financial markets. An estimate in one newspaper is that Yeshiva University lost an additional $100-110 million as a result of Mr Madoff's alleged misdeeds. See Stephanie Strom, "Giant Wall St. Fraud Leaves Charities Reeling," NYTimes (Dec. 15, 2008). There are rumors of greater losses. The Jerusalem Post paints an almost apocalyptic picture of the implications for Jewish charities and non-profits, including Yeshiva University. See Haviv Rettig Gur & Allison Hoffman, "Jewish community braces for calamity in wake of Madoff fraud," international.jpost.com (The Jerusalem Post) (Dec. 15, 2008). And I thought that the academic life would be peaceful -- and stable. Boy was I wrong.

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coming: the law of evidence on Spindle Law

consulting

Bunk Forensic Science and Due Process

It takes a long time for courts to recognize bunk forensic science as bunk. The experience with the now-discredited paraffin test is just one of many examples. Will the day soon arrive when courts will generally acknowledge that the "theory" of wholesale repressed memory has so little probative value -- probative value akin to that of astrology -- that courts will decide (i) "expert" evidence about repressed memory evidence cannot support a claim of an excusable failure to discover a cause of action for purposes of calculating limitations periods on civil actions for sexual wrongs and (ii) the use of repressed memory evidence against a defendant in a criminal trial is a violation of due process?

Sympathy for victims of child molestation or for victims of sexual assault does not excuse or justify the use of nearly-worthless evidence.

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coming: the law of evidence on Spindle Law

consulting

Witness with Repressed Memory Has Photographic Memory

In a trial in which an alleged victim of child molestation claimed to have repressed and then recovered memory of sexual molestation, this happened:

During the initial trial, trial counsel asked B. how he could remember the television program he was watching at the cabin in Lake Arrowhead. B. replied that the program was “Fox Family because, like I said I'm very intelligent. I have a photographic memory.” When trial counsel said, “You do?” B. replied, “Somewhat photographic.”

People v. Bradley, Cal.App. 2 Dist., November 06, 2008 (NO. B198577)

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coming soon: the law of evidence on Spindle Law

consulting

New Article on Repressed Memory: Review of Recent Research

The following new article calls for your attention if your case or cases involve claims of repressed and recovered memory: August Piper, Linda Lillevik & Roxanne Kritzer, "What's Wrong with Believing in Repression?: A Review for Legal Professionals,"14 Psych. Pub. Pol. & L. 223 (2008).

It may be time to permanently repress repressed memory.

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coming soon: the law of evidence on Spindle Law

consulting

Academic Law and Real Law

Academics greeted United States v. Old Chief, 519 U.S. 172 (1997), with considerable fanfare. The decision, it was said, embraced the notion of "narrative relevance." And so it did. But a search in LEXIS and WESTLAW reveals nary a single post-Old Chief judicial decision that uses the phrase "narrative relevance." So is Old Chief's beatification of narrative relevance real law?

A significant chunk of the law school world has been interested in "narrative" for quite some time. But has this academic enchantment with narrative clouded academics' assessment of Old Chief, has it led academics to exaggerate the importance of Old Chief? That's entirely possible.

N.B. I still insist that scenario-formation and scenario-assessment (versus "narrative") are central to fact finding. I believe that these processes are necessary ingredients of almost all fact finding and inference -- no matter what judges might or might not say. (I think the role of narrative in fact finding and evidential inference is a different story -- so to speak).

Caveat: I have not done the sort of exhaustive search and study of the case law that would be necessary to show that narrative relevance does not exist in judicial opinions under some other name. So at this point I can only raise a question. Nonetheless, the utter absence of "narrative relevance" from the language of judicial opinions raises a strong suspicion, no?

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coming soon: the law of evidence on Spindle Law

consulting

A numbers game: 3, 2,...?

On the doctrine of chances again:

Three prior "accidental" drownings are enough to show or suggest that the latest drowning was no accident.

Two prior drownings are also enough to show or suggest that the latest drowning was no accident.

So one prior drowning is also sometimes enough? (If not, why not?)

And, of course, no prior bathtub drownings are necessary and evidence of the putatively accidental but possibly murderous drowning for which accused is on trial is admissible to show that the drowning was no accident.

In short: if it's all about the numbers, there is a sense in which the numbers don't really matter. In any case, what does the number of prior drownings -- one, two, or more -- have to do with the question of whether an inference from propensity is necessary? The answer, I think, is nothing -- unless, that is, you think -- incorrectly -- that the character evidence rule is rooted in nothing except judgments (or beliefs) about the probative value of evidence about human behavior.

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coming soon: the law of evidence on Spindle Law

consulting

Is the Doctrine of Chances Good Law -- Really?

It is often said that the "doctrine of chances" -- think Brides in the Bath -- is good law, if only implicitly so. But my research reveals or suggests that during roughly the last 18 years only a small handful of federal courts -- perhaps only two -- have expressly endorsed the doctrine of chances. In view of this can it reasonably be argued that the doctrine of chances is good law in the federal system? I wonder. I seriously wonder.

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consulting

coming: the law of evidence on Spindle Law

Exculpatory Polygraph Result Admitted in State Criminal Trial

Debra Cassens Weiss, "Law Grad Acquitted, Relies on Polygraph," ABA Journal online (Sept. 5, 2007):

Judge Judy Hunter of Akron, Ohio, acquitted Sharma in a bench trial. She allowed Sharma to introduce the polygraph exam, the first time such evidence was used in an Ohio criminal trial in 30 years, according to a press release issued for the examiner, Louis Rovner.

Prosecutors had appealed Hunter’s decision to admit the test, but an Ohio appeals court said the issue was not ripe for review.

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consulting

coming: the law of evidence on Spindle Law

Lay Judges in Japan -- Expected Rate of Participation

Japan Times Online (Dec. 1, 2008):

Under the lay judge system to be introduced in May, roughly half the people nationwide registered on the list of candidates will likely be summoned by district courts for interviews as possible candidates, according to an estimate released Sunday.

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The Supreme Court sent letters Friday to 295,027 people to notify them that they have been selected as initial candidates for lay judges and may take part in trials for serious crimes in the next year.

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The Law of Evidence on Spindle Law Is Coming Ever Closer

The law of evidence on Spindle Law is coming. Indeed, it's coming closer than ever.

Stay tuned for details -- details about the forthcoming "Evidence Module."

I will want you to contribute. And I may have something to show you in January or so--something to which you might want to contribute (or so I hope).

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consulting

Rationale(s) for Rules of Evidence

"The" reason for rules of evidence has been discussed (though usually cursorily) many times. Many but not all of those discussions have been simplistic, and many of them (though not all) have said "the" reason for rules of evidence is the need to control jury decision making. There is a refreshing new article about the rationale(s) for rules of evidence in the English common law style (which the English themselves seem to be in the process of abandoning): Lisa Dufraimont, "Evidence Law and the Jury: A Reassessment," 53 McGill L.J. 199 (2008).

Here is the article's abstract:

The common law of evidence is counterintuitive because it seeks to facilitate the search for truth by regulating fact-finders' access to and evaluation of evidence. Since truth seems most likely to emerge when adjudicators reason freely from all available information, this puzzling strategy of seeking truth through evidentiary regulation demands some explanation. The orthodox explanation is that evidentiary regulation functions as a form of judicial control over the jury. Because juries arc untrained, non-professional adjudicators, they are said to lack the competence to evaluate evidence. On this view, evidence rules arc primarily directed at constraining jury decision making and preventing jury error. This jury-centred view has been criticized, and scholars have advanced other explanations for truth-seeking evidence rules. Some suggest that evidence law operates chiefly to promote the search for truth within the context of the adversary system, while others contend that evidence rules are primarily directed at managing the risk of witness dishonesty.

This article examines the claim that evidence law represents a form of jury control, and also considers some competing explanations for evidence rules. The author argues that no single principle explains the law of evidence. A complex set of explanations is needed to account for the historical origins of the rules and to justify them analytically. Moreover, the salience of these various explanations can only be judged in particular doctrinal contexts. Jury-related rationales are most persuasive where there are solid reasons to believe that juries have trouble evaluating the particular form of evidence at issue. Social-scientific research does not support the conclusion that juries are generally incompetent adjudicators, but it does indicate that juries struggle with specific types of evidence. Consequently, the question whether a particular evidence rule can be justified on jury-control grounds depends, first, on the specific competencies required to evaluate the evidence and, second, on what is known about jury psychology and behaviour.

Here is a statement of the article's (refreshing) thesis (which, to my eyes, runs in the tradition of American legal realism), the thesis that no single principle or rationale animates the existence and contours of rules of evidence in the common law style:

The debate over the explanatory principles of evidence law is largely a debate about whom to mistrust. Is our fear that juries may misconstrue the evidence, that adversaries may obscure the truth, or that witnesses may perjure themselves? Of whom are we afraid, and whom are we trying to control? It seems doubtful that these questions can ever be answered in any decisive way.

Certainly some authors identify one explanatory principle as the primary, underlying principle of evidence law. Thayer, among others, focused on the jury, while recently evidence scholars have suggested that the central rationale for evidence law lies elsewhere. Nance argues that the best evidence principle, which is concerned with advocate control, constitutes a superior explanatory principle to the traditional jury-centred rationale for evidence law. According to Imwinkelried, both of those explanatory principles are inferior to the dishonesty-control rationale, which he claims constitutes "the best explanatory hypothesis for the logical structure of Evidence law." [FN236] The modern theorists admit forthrightly that no one principle explains the totality of evidence law, an admission that militates in favour of interpreting their claims modestly. [FN237] But beyond arguing the explanatory power of the various rationales for evidence law, these scholars purport to choose the best, unifying theories, or even to explain the law's "logical structure". [FN238] Such ambitious claims are difficult to defend.

The search for an "organizing principle" [FN239] of evidence law is vain because evidence law is not organized around a principle. Given the ad hoc nature of evidentiary regulation, there is no reason to believe that the various possible rationales for evidence rules are mutually exclusive. A more tenable position is to recognize that various factors, including the trial features under consideration, play a role in explaining evidence law. [FN240] The origins and justifications of evidentiary rules are best uncovered in specific doctrinal contexts. And one could easily add yet more layers of complexity to the picture. Issues that cannot entirely be disentangled from the explanatory principles include extrinsic policy considerations like fairness and due process, as well as concerns about the efficient conduct of the trial process, such as affordability, speed, and finality.

It seems to me that it is no accident that two of the mentors of the author of this delightful article are Steven Duke and Mirjan Damaska of Yale Law School.

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Reasonable Doubt and Christianity; Reasonable Doubt and Guantanamo; Reasonable Doubt and Torture; Reasonable Doubt and Confessions

In late January of 2009 -- on January 23 -- the Cardozo Journal of International and Comparative Law will host a symposium on "proof beyond a reasonable doubt." One focus of the symposium will be the relationship between the reasonable doubt standard and the history of Christian theology. Another focus will be on the relationship between the reasonable doubt standard, confessions, and torture (and here it is expected there will be some talk about Guantanamo -- just a few days after Barack Obama becomes President of the United States). Perhaps President Obama will take notice?

The following people may participate as panelists or moderators:

Professor James Whitman (Yale)
Professor Barbara Shapiro (UCLA, Berkeley)
Milbert Shin (Deputy, US Department of State, Office of War Crimes Issues)
Professor Ronald Allen (Northwestern)
Professor Suzanne Last Stone (moderator) (Cardozo Law School)
Professor David Hamer (University of Queensland)
Professor James Franklin (Department of Mathematics, University of New South Wales)
Professor Mark Denbeaux (Seton Hall)
Professor Kim Lane Scheppele (Princeton) OR Professor Barry Scheck (Cardozo Law School)
Peter Tillers (moderator)

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consulting

Inference from Signs

I recently decided, more firmly than I had before, that inference from evidence is almost inexplicable unless one supposes some sort of consonance between the cosmos and the human organism. See P. Tillers, "Are There Universal Principles or Forms of Evidential Inference?," in Crime, Procedure, and Evidence in a Comparative and International Context (Oxford: Hart, 2008). As Albert Einstein said of the intelligibility of the cosmos, that evidence should be able to point to something beyond itself is a deep mystery. It is therefore high time, I think, that I pay some serious attention, not only to Peirce's theory of abduction and semiotics, but to the more than thousand-year history in occidental thought of how "signs" work. During a recent semi-random walk through GOOGLE I found a book published in 2001 that looks very promising and interesting: James Allen, Inference from Signs: Ancient Debates about the Nature of Evidence (Oxford University Press, 2001, paperback reprint 2008). The publisher's blurb states:

James Allen presents an original and penetrating investigation of the notion of inference from signs, which played a central role in ancient philosophical and scientific method. Inference from Signs examines an important chapter in ancient epistemology: the debates about the nature of evidence and of the inferences based on it--or signs and sign-inferences as they were called in antiquity.

Special attention is paid to three main issues. Firstly, the relation between sign-inference and explanation. At a minimum, sign-inferences permit us to draw a new conclusion, and they are used in this way in every sphere of life. But inferences must do more than this if they are to play the parts assigned to them by natural philosophers and medical theorists, who appeal to signs to support the theories they put forward to explain the phenomena in their domains. Allen examines the efforts made by Aristotle, the Stoics, the Epicureans, and in medicine to discover what further conditions must be satisfied by inferences if they are to advance explanatory purposes.

To speak of inference from signs presupposes that the use of signs is a form of reasoning from grounds to a conclusion. However, an alternative nonrational conception is explored, according to which the use of signs depends instead on acquired dispositions to be reminded by one thing or another. This view is traced to its probable origin in the Empirical school of medicine, whence it was taken by Pyrrhonian skeptics, who introduced it into philosophy.

Evidence sometimes supports conclusive arguments, but at other times it only makes a conclusion probable. Allen investigates Aristotle's path-breaking attempt to erect standards by which to evaluate non-conclusive but--in Aristotelian terms--reputable inferences.

Inference from Signs fills an important gap in the histories of science and philosophy and provides the first comprehensive treatment of this topic.

Oxford University Press has this to say about the author:

James Allen is professor of philosophy and a fellow of the Center for Philosophy of Science. He has held a visiting appointment at Yale, been a visiting fellow at Clare Hall, Cambridge, and a Stipendiat of the Alexander von Humboldt-Stiftung at the Universitat Hamburg. His principal interests are in ancient Greek and Roman philosophy. He is the author of articles about ancient conceptions of expertise, ancient skepticism, ancient medicine, Aristotelian logic, Epicureanism, Stoicism, and Cicero.

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consulting

The Swarm Intelligence of Ants -- and of the Jury?

I was at an academic conference recently at which a couple of eminent speakers questioned (nay, affirmed) the (ir)rationality of trial by jury. However, am generally of a different mind: I am inclined to think that juries generally get it right -- "it" being, among other things, the facts -- more often than a single professional judge does or than would,say, a randomly-selected group of law teachers. So I was interested in the following recent reminder of swarm intelligence in ants, a reminder that set me to musing once again whether such swarm intelligence exists among groups of human beings such as juries and, if so, in what way and about what sorts of matters: Steve Jones, "E pluribus Unum, NYTimes Book Review (Nov. 21, 2008) (review of Bert Hölldobler & Edward O. Wilson, THE SUPERORGANISM: The Beauty, Elegance, and Strangeness of Insect Societies (W. W. Norton & Company, 2008):

A few simple rules produce what appears to be intelligence, but is in fact entirely mindless. Individuals are automatons. An ant stumbles on a tasty item and brings a piece back to the nest, wandering as it does and leaving a trail of scent. A second ant tracks that pathway back to the source, making random swerves of its own. A third, a fourth, and so on do the same, until soon the busy creatures converge on the shortest possible route, marked by a highway of pheromones. This phenomenon has some useful applications for the social animals who study it. Computer scientists fill their machines with virtual ants and task them with finding their way through a maze, leaving a coded signal as they pass until the fastest route emerges. That same logic helps plan efficient phone networks and the best use of the gates at J.F.K. In the phone system each message leaves a digital “pheromone” as it passes through a node, and the fastest track soon emerges. Swarm intelligence does wondrous things.

'Tis a fact, isn't it, that no single person could have constructed the Empire State Building, invented the micro-chip, or, even, have thought of and have assembled a functioning pressurized rubberized automobile tire? Therefore(?) ... a jury of twelve people can assess can assess ...(?)... [e.g., jealousy as motivation for murder?]... better than any single person can?

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The Law of Evidence on Spindle Law

The law of evidence on Spindle Law is coming.

Stay tuned for details -- details about the forthcoming "Evidence Module."

I will want you to contribute.

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consulting

New Mexico Supreme Court: Thoughtful Comments about Character Evidence

State v. Martinez, -- P.3d --, 2008 WL 4892091 (N.M.,Oct9. 2008) (Daniels, J.):

A. Theories Underlying Admissibility of Character Evidence

The admissibility of character testimony is regulated in two separate areas of our New Mexico Rules of Evidence: in the relevancy rules of Article 4 and in the witness rules of Article 6. Both of those areas are implicated in the issues presented in this case, which call on us to address the admissibility of character testimony as circumstantial evidence of relevant conduct under Rule 11-404(A)(1) (providing for admission in a criminal case of "[e]vidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same"), as well as the admissibility of character testimony as circumstantial evidence of credibility of a witness under Rule 11-608(A) (providing that "[t]he credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation ... [regarding] character for truthfulness or untruthfulness ... after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise"). The two inquiries are founded on the same underlying beliefs about the relationship between character and conduct, but their uses involve different policy considerations and different rules of application.

Courts and commentators have observed that these uses of character evidence are often misunderstood in their own applications and are frequently confused with one another. ...

This case is an illustrative example. The record reflects confusion by counsel on both sides, by the district court, and by the Court of Appeals as to the differing purposes and applications of the separate admissibility of character testimony as substantive evidence and as witness credibility evidence. To aid in understanding and clarification, we first review the theories, history, and purposes relating to their admissibility.

A review of the development of character evidence shows that its use extends further back into our legal history than even such fundamental rights as those of an accused to testify or to have the assistance of counsel. The theory underlying the relevance of character evidence is based on our common human experience that "[t]he character ... of the persons we deal with is in daily life always more or less considered by us in estimating the probability of their future conduct." 1A Wigmore, Evidence § 55, at 1159 (Tillers rev.1983). In one of the oldest scraps of papyrus to survive from the days of the ancient Egyptians, a king instructs a young prince that "[a] good character is remembered." 1 Miriam Lichtheim, Ancient Egyptian Literature 107 (1973).

Modern scientific research now confirms what human beings have always observed in their own family and community relationships, that the average person is able to explain, and even predict, a subject's behavior with a significant degree of accuracy. Susan Marlene Davies, Evidence of Character to Prove Conduct: A Reassessment of Relevancy, 27 Crim. L. Bull. 504, 517 (1991); see Thomas J. Reed, The Character Evidence Defense: Acquittal Based on Good Character, 45 Clev. St. L.Rev. 345, 356 (1997) ("According to the best available psychological data, character or personality trait theory has a scientific basis. Human beings do behave more or less consistently across a multitude of similar situations."). One of the predictive tools by which those determinations are made is the consideration of one's character traits based on patterns of past conduct. See, e.g., Walter Mischel & Yuichi Shoda, A Cognitive-Affective System Theory of Personality: Reconceptualizing Situations, Dispositions, Dynamics, and Invariance in Personality Structure, 102 Psychol. Rev. 246, 246 (1995) (summarizing "recent empirical data demonstrating that individuals are characterized not only by stable individual differences in their overall levels of behavior, but also by distinctive and stable patterns of behavior variability across situations"). Because conduct reflects character, knowledge of character is necessarily helpful in predicting conduct.

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The State successfully argued in the district court the same position that it has maintained throughout the appellate process, that "there is no pertinent character trait that has been put in issue" because there is no character trait pertinent to a person's propensity to commit any crime of solicitation, including the crime of solicitation to commit burglary charged in this case. In response, defense counsel has argued that "evidence whether he is honest, he's the type of person that commits dishonest acts of robbery and burglary is pertinent."

In this case, Defendant proffered that his character witnesses would testify that he was both an honest and a truthful person. Throughout this litigation, the parties have made no efforts to distinguish honesty and truthfulness as traits having differing relevance or applicability. Honesty and truthfulness, if indeed they can be considered separate traits in other contexts, have been treated as interchangeable in New Mexico case law involving analogous character trait relevance. See Melendrez, 91 N.M. at 261, 572 P.2d at 1269 (holding that offenses of "deceit, fraud, cheating, or stealing" are relevant to both honesty and veracity for purposes of Rule 609 impeachment). The district court determined that evidence of neither was admissible in a prosecution for solicitation to commit burglary. The Court of Appeals, relying in part on the analogous Melendrez opinion construing relevance for Rule 609 purposes, concluded that evidence of both was admissible. The State asks us to hold that neither trait was admissible, and Defendant asks us to hold that both were admissible. Although the parties did not articulate any distinction between the two, our research reflects that we must address whether we should recognize any such distinction for the purposes of deciding this case.

A few courts in other jurisdictions have taken the view that honesty and truthfulness should be given separate evidentiary application under Rule 404(A)(1), on the theory that "one who is honest must also be truthful because honesty subsumes truthfulness," while "one may be truthful but not be honest." Wiggins v. State, 778 S.W.2d 877, 889 (Tex.Ct.App.1989). Our research, however, has found no psychological, sociological, or other scientific or empirical research to support what appear to be only ipse dixit theoretical distinctions. ... There is simply no persuasive authority to support a theory that psychologists or ordinary citizens would draw any realistic distinctions between the likely behaviors of an "Honest Abe" and a "Truthful Abe."

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In this case, the State makes no argument that evidence of honest and truthful character would have been inadmissible if Defendant had been charged with personally committing a burglary. Instead, it argues that a character trait that is pertinent to a charge of burglary is not pertinent to a charge of soliciting someone else to carry out the same burglary.

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The State's theory seems to focus on an accused's particular physical role in the planned crime, instead of the presence or absence of his criminal intent, in determining which character traits are pertinent to a consideration of the likelihood of his participation in the crime. This misapprehends why the law considers character to be relevant in determining guilt or innocence. Criminal intent is the essence of what distinguishes criminal from non-criminal conduct.

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. Morissette v. United States, 342 U.S. 246, 250 (1952) (quoting William Blackstone, 4 Commentaries *22); see also State v. Yarborough, 1996-NMSC-068, ¶ 9, 122 N.M. 596, 930 P.2d 131 ("We must be sure that the penalties associated with a felony conviction are imposed only in response to an act done with at least the minimum culpable state of mind."). In the more colorful phrasing of Justice Oliver Wendell Holmes, "even a dog distinguishes between being stumbled over and being kicked." Oliver Wendell Holmes, Jr., The Common Law 3 (Little, Brown & Co.1938) (1881).

The fallacy of focusing on an accused's physical participation, instead of the relationship between his intent and the commission of a crime, is demonstrated by a few hypothetical differences in how one could intentionally assist in the commission of a burglary. The State has never argued with the proposition that an honest person would be less likely than a dishonest person to enter a home with the intent to steal. Would honesty be any less relevant where a person is accused of reaching through a window to accomplish the same theft, without getting his whole body inside? Or where a defendant allegedly used a pair of tongs to reach inside without any part of his own body crossing the threshold? Or where a defendant is charged with having used a remote control robotic device to make the entry and theft? Or where the defendant, as in this case, allegedly used a human agent instead of a mechanical device to accomplish the very same theft? It is obvious to us that the character inquiry goes to whether a person would be likely to participate intentionally in a crime of theft and not on the physical means of accomplishing that dishonest result.

This little gem of an opinion is only seven pages long.

American legal scholars increasingly ignore judicial opinions. Martinez illustrates the folly of such a cleavage between the academic world and the judiciary: apart from the non-trivial fact that judges make much law, Martinez is a forceful reminder that there is much intelligence on the bench.

On the merits: if the legal process were able to digest a multitude of character details with the same subtlety and discrimination that ordinary people do in their ordinary lives, it might make sense to allow the prosecution to introduce details about the character of the accused during the prosecution's case in chief. But I think it is wildly unrealistic to think that this could be done at reasonable cost in an ordinary hum-drum criminal trial or that nuanced evidence about the details of the behavior of an accused over a period of years could be accurately reconstituted in the resource-starved hothouse of an ordinary party-dominated American criminal trial. Indeed, there is reason to wonder how well any system of criminal adjudication could reproduce such information in the detail that is necessary to make such information predictive of human behavior. So we're in a pickle, aren't we?

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consulting

Videos, Victim Impact Statements & Johnny Lynn Old Chief

The Supreme Court denied cert yesterday in two victim impact statement cases. See Kelly v. California, 07-11703 & Zamudio v. California. The Supreme Court's website actually has a link to the video that was used in the capital sentencing proceeding in Kelly v. California. Go here. This video, together with Justice Stevens's opinion explaining his dissent from the denial of cert, id., must give pause to almost any reasonable person about the role of victim impact statements. And don't the video in Kelly and J. Stevens's dissent raise important and interesting questions about the reach of Old Chief v. United States, 519 U.S. 172 (1997)(wherein the Supreme Court embraced what was later dubbed "narrative relevance")?

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consulting

Rules of Evidence -- They Are Unavoidable

I have long been of the view that rules governing the admissibility of evidence in adjudication are inevitable in any organized system of adjudication -- in any system of adjudication that is part of a procedural system that reflects and embodies societal preferences for certain modes of procedure rather than some other preferences. Any such system of procedure and adjudication, I have long thought, must filter evidence in some fashion. Now I can cite and quote an interesting article that offers some support for my general hypothesis. See Jacqueline Ross, "Do Rules of Evidence Apply (Only) in the Courtroom? Deceptive Interrogation in the United States and Germany," 28 Oxford Journal of Legal Studies 443, 444 (2008):

Scholars who downplay the importance of continental rules of evidence implicitly assume that these rules govern courtroom procedure. But evidentiary rules can shape the ways in which evidence is acquired through investigations as well as ways in which it is ultimately presented at trial. By focusing on courtroom procedure, existing misses the important role that continental evidentiary rules play in sifting information at its source. Constraints on investigators become evidentiary rules when they significantly affect how investigators, such as police and undercover agents, obtain information about criminals, sort it and pass it on to prosecutors. In short, investigative rules function as evidentiary rules to the extent that they filter and shape the information that reaches the trier of fact.

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Facts in Constitutional Law

Buy this book!

More than 25 years ago William Twining held a conference to proclaim the importance of "fact in law." Now David Faigman has turned Twining's proclamation -- and lament -- into reality. Faigman does so by demonstrating the importance of facts in constitutional adjudication. Of course, facts were always important in constitutional adjudication. The problem is that judges and legal scholars in constitutional law have been extraordinarily cavalier in their treatment of factual inference in constitutional adjudication. Faigman's book should make judges and constitutional law scholars sit up and take notice.

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consulting on investigation strategy and the law of evidence

Fact-Sceptics, Take Heed!

Post-modernists and all ye other fact-skeptics take heed: sometimes evidential inference works rather well. Consider this news item:

2008 TC3 [an asteroid in space] was discovered on 6 October by astronomers using the Mt. Lemmon telescope in Arizona.... At 01:45 UTC, JPL scientist Paul Chodas announced, "We estimate that this [asteroid] will enter the Earth's atmosphere at around 2:45:28 UTC [October 7] and reach maximum deceleration around 2:45:54 UTC at an altitude of about 14 km. These times are uncertain by +/-15 seconds or so."

Question: The actual time of entry in the earth's atmosphere?

Answer: The flash accompanying the asteroid's entry into the atmosphere was photographed by satellite at 02:45:47 UTC [October 7]. This was very probably close to the time of maximum deceleration. That's a difference of seven (7) seconds, which is within the +/-15 seconds uncertainty given by JPL scientist Chodas.

Not bad, eh?

Credit: Mohamed Elhassan Abdelatif Mahir (Noub NGO), Dr. Muawia H. Shaddad (Univ. Khartoum), Dr. Peter Jenniskens (SETI Institute/NASA Ames)

Rules of Evidence in the United States and in Germany

Jacqueline E. Ross, "Do Rules of Evidence Apply (Only) in the Courtroom? Deceptive Interrogation in the United States and Germany," 28 Oxford Journal of Legal Studies 443 (2008), abstract:

Scholars who compare common law and civil law countries have long argued that civil law legal systems such as Germany do not employ formal rules of evidence comparable to those which govern American courtrooms. Civil law systems that commit fact-finding to mixed panels of lay and professional judges are said to have less need for formal rules of evidence that withhold information from decision makers. This article challenges this widely held view. Scholars have failed to recognize that evidentiary rules can restrict not only the presentation of evidence at trial but also the manner of its acquisition during the pre-trial investigation. For this reason, existing scholarship overlooks a rich source of evidentiary norms in the criminal process of civil law countries such as Germany. I argue that German regulation of police interrogation particularly its prohibition of deceptive stratagems plays an important role in shaping the factual record on which the legal system assesses guilt or innocence. The article identifies a number of institutional factors on which this system of pre-trial evidentiary regulation depends.

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Forms of Justice: The Tango and the Rumba

Professor Elisabetta Grande suggests that for comparative study of some procedural systems we should replace the distinction between adversarial and non-adversarial systems with the distinction between procedural systems that resemble the tango and those that resemble the rumba. See E. Grande, "Dances of Criminal Justice: Thoughts on Systemic Differences and the Search for the Truth," in J. Jackson, M. Langer & P. Tillers, eds., Crime, Procedure, and Evidence in a Comparative and International Context: Essays in Honour of Professor Mirjan Damaska.

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Visitors at Yale's Mirjan Damaska Conference

Michael Risinger & Paul Roberts

Paul Roberts & Michele Taruffo

John Jackson, Craig Callen & Michael Risinger

What Happens at Yale Does Not Stay at Yale

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Music of the Spheres -- and a (Pedestrian) Moral about Factual Inference

Astronomers now use the sounds -- or, in any event, I presume, the sounds extracted from electromagnetic radiation (the sound waves that humans hear with their ears do not travel well through space) -- emanating from stars to decipher the innards of stars. See this BBC story.

This is a nifty example of just how complicated -- and surprising -- "factual inference" can be.

N.B. Human ingenuity seems to know no limits.

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Should the Law of Evidence Be Abolished?

The provocative title of Professor Jeans's article -- "A Modest Proposal: Scrap the Rules of Evidence" -- provokes me to comment on the age-old question of whether the law of evidence should be abolished.

The question of whether the law of evidence should be abolished is reminscent of the question of whether taxation should be abolished.

The law of evidence does not consist solely of the hearsay rule.

The law of evidence does not consist solely of rules whose main aim is to enhance the accuracy of fact finding.

The law of evidence does not consist solely of rules that govern the admissibility of evidence.

Broadly conceived, the law of evidence -- Continentals call it the "law of proof" -- includes all legal rules that regulate evidence and fact finding in adjudication.

It is possible that society can realize its purposes -- epistemic and social -- if it leaves evidence-gathering, evidence-assessment, and fact finding completely unregulated, if we say to judges, lawyers, witnesses, and clients, "Go at it -- collecting evidence etc. -- as best you can, and we wish you luck in resolving your disputes about evidence." But it is not very probable that society can best achieve its purposes by abolishing all legal rules that regulate the gathering of evidence, the assessment of evidence, and the drawing of conclusions from evidence. The real battleground is about how evidence-gathering etc. should be regulated, and not whether the law of evidence should be "abolished."

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The late Professor James W. Jeans, Sr., makes a modest proposal

And what was Professor Jeans's modest proposal? It was to "scrap the the rules of evidence." See his posthumously-published article at 2 Liberty University L. Rev. 1 (2007).

If one reads the article, one finds that his proposal is less radical than the title of his article suggests: he mainly wanted a make-over of the Federal Rules of Evidence -- particularly their overall structure -- rather than the complete abolition of the law of evidence. (In an appendix Jeans laid out his proposed revised rules of evidence.)

The law of evidence is a sturdy plant -- or, if you prefer, a hardy weed. Why is that, dear Reader?

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Yale Law School Conference in Honor of Mirjan Damaska

See announcement here and view program here.

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Story - Fable? - of Academic Merit and (Non)Reward

See Kenneth Chang, "Man Who Set Stage for a Nobel Now Lives a Life Outside Science," NYTimes Online (October 16, 2008).

How often does this sort of thing happen?

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Bone Marrow Transplants and DNA

Medical researchers in Munich discovered that a man's corpse had both male and female DNA markers. The explanation? The dead man had had a bone marrow transplant shortly before his death and the bone marrow donor was a woman. See Spiegel Online (October 19 2008) Rough English translation:

"We have never seen anything like this before," said DNA expert Katja Anslinger of the Institute for Legal Medicine, University of Munich. "This case should sensitize investigators and investigative officials to examine genetic traces more critically." Anslinger said that false identifications or false accusations can result if police officers who are seeking to identify a corpse or are conducting a crime investigation do not know there has been a bone marrow transplant.

My thanks to Prof. Lothar Phillips for pointing me to this news item.

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New Book

The following book was recently published:

J. Jackson, M. Langer & P. Tillers, eds., Crime, Procedure, and Evidence in a Comparative and International Context: Essays in Honour of Professor Mirjan Damaska (Hart Publishing, 2008).

Details are available here.

A flyer with a table of contents is available here.

Is pro bono litigation wasteful? Antisocial? If so, compared to what?

Curmudgeons are often useful: they often make one think. But -- being curmudgeons -- they often oversimplify. I do not know if Judge Dennis Jacobs -- Chief Judge -- of the United States Court of Appeals for the Second Circuit is a curmudgeon; I do not know him personally. But if some reports -- see, e.g., here -- are accurate, it is not unfair to say that he made some curmudgeonly remarks recently.

One of his curmudgeonly complaints -- the least important of his complaints in that vein -- rings true. He seems to complain that people who do pro bono work scratch each others' backs by honoring each other with awards and other such things. (One naturally wonders if Judge Jacobs had some particular honoree in mind.) Of course, this sort of sycophantic and narcissistic group self-promotion is not limited to luminaries in the field of legal pro bono work. One finds the same sort of thing in the law school world. (But one wonders if excessive Kantian or Calvinistic agonizing about the purity of one's motivations might lead to honors not being bestowed when honors are due.) Sycophantic self-admiration is also painfully apparent at events hosted by the White House. Is it possible that social self-preening and group self-advancement even infect the judiciary? (Having made the suggestion, I must rush to withdraw it. Surely judges are beyond all that: surely they care only about the public good -- or the law or ... whatever.)

Judge Jacobs's other complaint is more substantive. He asserts that pro bono litigation is anti-social. Why so? Well, in part because, he argues, the people who control such litigation do not have to bear the adverse consequences of the results of their ostensibly public-spirited activities.

Hmm, ..., well, there's a thought for you.

Caveat: I am relying only a fragmentary account of Judge Jacobs's comments. I have no doubt he also asked whether litigation motivated by profit is more pro-social than pro bono litigation. It might be hard to demonstrate that the motivations of lawyers and clients who not purport to act for the public good are more pro-social than those people who do profess to litigate for the public good. So I assume -- I have to assume -- that in the case of private non-pro-bono litigation Judge Jacobs carefully analyzed and explained why the decision makers - corporate counsel, CEOs, hired legal help, etc. -- do realize that if their litigation activities harm the public good they, these self-interested actors, will personally suffer the socially-harmful consequences of their litigation decisions. (We know that self-interest works in financial markets: greed is good [except, of course, under very special circumstances such as the present financial crisis].)

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The Lowly but Powerful Timeline

A timeline is a simple but powerful device for marshaling evidence for and in litigation and trials. For example, it can be used to depict the possible sequence of events in issue and thereby identify (i) hypothesized events that have little or no evidential support and (ii) possible causal connections between events. It can also be used for other purposes - for example, (iii) to trace the behavior of a witness or prospective witness over time, (iv) to show the order of submission of evidence at trial, and (v) to develop a story-based opening statement or closing argument.

The construction of a timeline, however, is often a laborious process because of (a) the many events that sometimes go into a timeline and (b) the need to revise timelines as events are added. I am happy to report that SmartDraw 2009 makes the business of creating and updating timelines vastly simpler. For example, new events can be added to a timeline with a click of the mouse and -- voila -- the scale of timeline will automatically adjust to accommodate the added event or events. Moreover, SmartDraw 2009 makes it easy to zoom in and out on segments of timelines. The new SmartDraw timeline tool has other useful features. The new timeline tool is a big advance.

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Ye Shall Judge Their Deeds, Not Their Souls -- Justice Cardozo

After students carefully study the American character evidence rule -- a/k/a the propensity rule -- a/k/a the prohibition against "circumstantial" use of character -- they are impressed, and appropriately so -- by the rule's porousness. They are so impressed that some of them incline toward the view -- and understandably so -- that in a garden variety case of robbery or murder, another robbery or murder (respectively) committed by accused at some other time is admissible, without further ado, during the prosecution's case in chief to show the accused's intent for the crime for which he or she is on trial. The logic of the character evidence rule does in fact push toward that conclusion. (The reasoning so pushing involves the acknowledged right of the prosecution to negative a claim of accident or mistake by accused and the fact that intent is an an essential element of crimes such as robbery and murder.) However, if prosecutors were allowed -- without more -- to introduce other murders in a murder case, other robberies... etc., a large hole would be carved out of the heart of the character evidence rule. (Abolishing the character evidence rule might or might not be a good thing. But American law professes to have a character evidence rule.) If you (along with others) find it hard to understand the character evidence rule -- and there is good reason why you should have this difficulty -- you might find it useful to begin by bringing to mind the basic sentiment underlying the character evidence rule, a sentiment that Justice Cardozo (then chief judge of the New York Court of Appeals) eloquently stated 78 years ago in People v. Zackowitz, 254 N.Y. 192 (1930):

At the trial the vital question was the defendant's state of mind at the moment of the homicide. Did he shoot with a deliberate and premeditated design to kill? Was he so inflamed by drink or by anger or by both combined that, though he knew the nature of his act, he was the prey to sudden impulse, the fury of the fleeting moment? .... If he went forth from his apartment with a preconceived design to kill, how is it that he failed to shoot at once? How reconcile such a design with the drawing of the pistol later in the heat and rage of an affray? These and like questions the jurors were to ask themselves and answer before measuring the defendant's guilt. Answers consistent with guilt in its highest grade can reasonably be made. Even so, the line between impulse and deliberation is too narrow and elusive to make the answers wholly clear. The sphygmograph records with graphic certainty the fluctuations of the pulse. There is no instrument yet invented that records with equal certainty the fluctuations of the mind. At least, if such an instrument exists, it was not working at midnight in the Brooklyn street when Coppola and the defendant came together in a chance affray. With only the rough and ready tests supplied by their experience of life, the jurors were to look into the workings of another's mind, and discover its capacities and disabilities, its urges and inhibitions, in moments of intense excitement. Delicate enough and subtle is the inquiry, even in the most favorable conditions, with every warping influence excluded. There must be no blurring of the issues by evidence illegally admitted and carrying with it in its admission an appeal to prejudice and passion.

Evidence charged with that appeal was, we think, admitted here. Not only was it admitted, and this under objection and exception, but the changes were rung upon it by prosecutor and judge. Almost at the opening of the trial the People began the endeavor to load the defendant down with the burden of an evil character. He was to be put before the jury as a man of murderous disposition. To that end they were allowed to prove that at the time of the encounter and at that of his arrest he had in his apartment, kept there in a radio box, three pistols and a tear-gas gun. There was no claim that he had brought these weapons out at the time of the affray, no claim that with any of them he had discharged the fatal shot. He could not have done so, for they were all of different calibre. The end to be served by laying the weapons before the jury was something very different. The end was to bring persuasion that here was a man of vicious and dangerous propensities, who because of those propensities was more likely to kill with deliberate and premeditated design than a man of irreproachable life and amiable manners. Indeed, this is the very ground on which the introduction of the evidence is now explained and defended. The District Attorney tells us in his brief that the possession of the weapons characterized the defendant as "a desperate type of criminal," a "person criminally inclined." The dissenting opinion, if it puts the argument less bluntly, leaves the substance of the thought unchanged. "Defendant was presented to the jury as a man having dangerous weapons in his possession, making a selection therefrom and going forth to put into execution his threats to kill." The weapons were not brought by the defendant to the scene of the encounter. They were left in his apartment where they were incapable of harm. In such circumstances, ownership of the weapons, if it has any relevance at all, has relevance only as indicating a general disposition to make use of them thereafter, and a general disposition to make use of them thereafter is without relevance except as indicating a "desperate type of criminal," a criminal affected with a murderous propensity.

We are asked to extenuate the error by calling it an incident: what was proved may have an air of innocence if it is styled the history of the crime. The virus of the ruling is not so easily extracted. Here was no passing reference to something casually brought out in the narrative of the killing, as if an admission had been proved against the defendant that he had picked one weapon out of several. Here in the forefront of the trial, immediately following the statement of the medical examiner, testimony was admitted that weapons, not the instruments of the killing, had been discovered by the police in the apartment of the killer; and the weapons with great display were laid before the jury, marked as exhibits, and thereafter made the subject of animated argument. Room for doubt there is none that in the thought of the jury, as in that of the District Attorney, the tendency of the whole performance was to characterize the defendant as a man murderously inclined. The purpose was not disguised. From the opening to the verdict, it was flaunted and avowed.

If a murderous propensity may be proved against a defendant as one of the tokens of his guilt, a rule of criminal evidence, long believed to be of fundamental importance for the protection of the innocent, must be first declared away. Fundamental hitherto has been the rule that character is never an issue in a criminal prosecution unless the defendant chooses to make it one (Wigmore, Evidence, vol. 1, §§ 55, 192). In a very real sense a defendant starts his life afresh when he stands before a jury, a prisoner at the bar. There has been a homicide in a public place. The killer admits the killing, but urges self-defense and sudden impulse. Inflexibly the law has set its face against the endeavor to fasten guilt upon him by proof of character or experience predisposing to an act of crime (Wigmore, Evidence, vol. 1, §§ 57, 192; People v. Molineux, 168 N. Y. 264). The endeavor has been often made, but always it has failed. At times, when the issue has been self-defense, testimony has been admitted as to the murderous propensity of the deceased, the victim of the homicide (People v. Druse, 103 N. Y. 655; People v. Rodawald, 177 N. Y. 408; Wigmore, Evidence, vol. 1, §§ 63, 246), but never of such a propensity on the part of the killer. The principle back of the exclusion is one, not of logic, but of policy (Wigmore, vol. 1, §§ 57, 194; People v. Richardson, 222 N. Y. 103, 109, 110). There may be cogency in the argument that a quarrelsome defendant is more likely to start a quarrel than one of milder type, a man of dangerous mode of life more likely than a shy recluse. The law is not blind to this, but equally it is not blind to the peril to the innocent if character is accepted as probative of crime. "The natural and inevitable tendency of the tribunal — whether judge or jury — is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge" (Wigmore, Evidence, vol. 1, § 194, and cases cited).

The workmanlike and non-poetic dissenting opinion, written by Judge Pound, presents the problem of the character rule's porousness practically at the birth of the modern character evidence rule -- and is also perhaps a harbinger of the future of the rule:

The People may not prove against a defendant crimes not alleged in the indictment committed on other occasions than the crime charged as aiding the proofs that he is guilty of the crime charged unless such proof tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial. These exceptions are stated generally and not with categorical precision and may not be all-inclusive. (People v. Molineux, 168 N. Y. 264; People v. Pettanza, 207 N. Y. 560; People v. Moran, 246 N. Y. 100, 106.) None of them apply here nor were the weapons offered under an exception to the general rule. They were offered as a part of the transaction itself. The accused was tried only for the crime charged. The real question is whether the matter relied on has such a connection with the crime charged as to be admissible on any ground. If so, the fact that it constitutes another distinct crime does not render it inadmissible. (Commonwealth v. Snell, 189 Mass. 12, 21.) The rule laid down in the Molineux case has never been applied to prevent the People from proving all the elements of the offense charged, although separate crimes are included in such proof. Thus in this case no question is made as to the separate crime of illegal possession of the weapon with which the killing was done. It was "a part of the history of the case" having a distinct relation to and bearing upon the facts connected with the killing. (People v. Governale, 193 N. Y. 581; People v. Rogers, 192 N. Y. 331; People v. Hill, 198 N. Y. 64; People v. Rodawald, 177 N. Y. 408.)

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Proof

The stock market fell yesterday. This proves we need a government bailout.

The stock market rose today. This proves we need a government bailout.

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Book Publication Announcement

The following book has just been published:

J. Jackson, M. Langer & P. Tillers, eds., Crime, Procedure, and Evidence in a Comparative and International Context: Essays in Honour of Professor Mirjan Damaska (Hart Publishing, 2008).

Details are available here.

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The Philosophy Teacher

Jonathan Mahler, "The Thinker," NYTimes (Sept. 19, 2008):

After class, [Professor Kelly] Jolley and I walked across Auburn’s mostly deserted campus and into town for lunch. It was oppressively hot and humid; Jolley wore a fraying straw boater to keep the sun off his face. Over pizza and iced tea, I asked him if he ever wondered whether his style of teaching might be inappropriate for a large state school like Auburn — if the cost of his approach is that he’s teaching to the few rather than the many. “My view is that you really fall into a trap when you start allowing what you believe about your students to dictate how you teach your discipline,” he answered. “Too often these days we end up setting up our courses in light of what we believe about our students and we end up not teaching them. At best, we end up housebreaking them.”

[snip, snip]

In Jolley’s ideal world, every student would catch the philosophy flame, but he knows this will never happen. He says that philosophy requires a certain rare and innate ability — the ability to step outside yourself and observe your own mind in the act of thinking. In this respect, Jolley recognizes that his detractors have a point when they criticize his approach to teaching. “It’s aristocratic in the sense that any selection based on talent is aristocratic,” he told me. “I know it offends everyone’s sense of democracy, this idea that everyone’s equal, but we all know that’s just not true.”

Perhaps the dispute between Jolley and his critics boils down to how you define great teachers. You typically think about them as being devoted, above all, to their students. Jolley says his first priority is to philosophy itself. “I care about the discipline of philosophy more than the academic fate of any individual student — and I think I should,” he said. “Otherwise I’m just a baby sitter who occasionally breaks into syllogism.”

Jolley's notion that his philosophical endeavors in the classroom ought to be pitched to the best students rather than to average students is perhaps questionable. But his commitment to rigor is admirable. I, any event, admire his courage and his quite-literal idealism.

One has the sense or hope that Prof. Jolley thinks the "best" students are the most inquisitive. And with that thesis it is hard to disagree.

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Expert Handwriting Identification--Is It a Black Art, Is It Junk Science?

Prof. Roger Park of Hastings has published a very thoughtful reply to people (e.g., Prof. D. Michael Risinger) who argue that "forensic document examiners" aren't very good at determining whether two separate signatures were or were not made by the same person. See R. Park, "Signature Identification in the Light of Science and Experience," 59 Hastings Law Journal 1101 (2008).

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Michael Nguyen: Fuzzy Logic in Patent Law

Michael T. Nguyen recently published a very interesting law journal note proposing the use of fuzzy logic in trials of certain kinds of patent cases. See "The Myth of 'Lucky' Patent Verdicts: Improving the Quality of Appellate Review by Incorporating Fuzzy Logic in Jury Verdicts," 59 Hastings L.J. 1257 (2008). Mr. Nguyen provides a nifty summary of how fuzzy logic can control one kind of process (footnotes omitted):

"Fuzzy logic" is reasoning with fuzzy sets. Bart Kosko refers to the "fuzzy principle" in stating that "everything is a matter of degree." Instead of using the crisp truth values "1" and "0," fuzzy logic uses truth values as fractions from 0 to 1. Thus, the statement "John is tall" can be 66% true, and John would have a membership value of 0.66 in the fuzzy set of tall people. When using these percentages, fuzzy logicians do not imply that probability or chance is involved. It would not make sense to say that John has a 66% chance of being tall or that my lawn has an 89% probability of being green.

To illustrate a fuzzy set further, let us look again at the green lawn example. Few lawns are 100% green. Often, a lawn contains a few brown or yellow patches. Thus, the word "green," in the context of lawns, stands for a fuzzy set of colors that constitute green. "We think in fuzzy sets and we each define our fuzzy boundaries in different ways and with different examples." While the definition of these boundaries may differ from person to person, "the very looseness of the fuzzy set enhances its expressiveness." So, while I may make the statement, "My lawn is green," in reality, my lawn might be 89% green, or may have a membership value of 0.89 in the fuzzy set of green lawns, because of a few yellow and brown spots. Most people round up to 100% as a matter of convenience.

Fuzzy reasoning requires the creation of fuzzy rules in the form of "if-then" statements. The fuzzy "if-then" rules express the relation between fuzzy sets. By combining fuzzy rules, we can create a fuzzy system that automatically converts inputs into outputs. Building a fuzzy system can be done in three steps: first, select the inputs and outputs of the system; second, pick the fuzzy sets; and third, choose the fuzzy rules.

My favorite illustration of a fuzzy system of fuzzy rules is the washing machine example. Suppose we want to construct a machine that ""knows' to wash dirtier clothes for a longer duration than clothes which are relatively clean." The "input is the degree of dirtiness and [the] output is the duration of the wash." The fuzzy inputs would be: almost completely clean, relatively clean, slightly dirty, dirty, and very dirty. The fuzzy outputs would be: rinse, wash lightly, wash, wash thoroughly, and wash vigorously. Finally, we choose the fuzzy rules: (1) if the clothes are almost completely clean, then only rinse them; (2) if the clothes are relatively clean, then they are lightly washed; (3) if the clothes are slightly dirty, then they are washed; (4) if the clothes are dirty, then they are washed thoroughly; (5) if the clothes are very dirty, then they are washed vigorously.

This fuzzy system can be "defuzzified" by attaching specific numbers to the vague concepts. Fuzzy concepts can be defuzzified by averaging or finding the centroid (i.e., center of mass) of the output numbers. Defining dirtiness as a range of particles of dirt from 10 to 100 and duration of the wash from 10 to 100 minutes, we can assign certain values to our fuzzy sets. Thus, the washing machine will literally think for itself and determine how long to wash laundry based on how dirty it is. Such products have been developed in Japan "to raise the machine IQ of camcorders and transmissions and vacuum sweepers and hundreds of other devices and systems."

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Frederick Schauer's Defense of General Rules (Maxims?) about the Epistemic Worth of Categories of Evidence

There is an interesting new paper by Frederick Schauer: "In Defense of Rule-Based Evidence Law - And Rule-Based Epistemology Too".

The thesis is, in general, good: It is epistemologically possible and sound to have (some) general rules about the probative worth of (some) classes of evidence.

Schauer's general thesis is, thus, sensible. But more arguments in favor of his general thesis must be made. For example, one might consider how it would be possible to learn from experience if one could not extract (whether implicitly or explicitly) from experience any general principles about the workings of the world and the relationship of events in the world to phenomena that seem to serve as indicators or signs of events; complete "individuation" of judgments about probative value (a/k/a evidentiary value or force) would seem to bar the possibility of knowledge based on experience.

A separate (and important) question is whether the the particular generalizations that are or may be embedded in the American law of evidence about the probative value (or lack of probative value) of certain categories of evidence (e.g., hearsay) are warranted. The mere fact that there must be some generalizations does not mean that American law has identified the correct ones. Still, the argument made by Schauer is refreshing. It is the beginning of a sensible attack on the ludicrous (so I would say) hypothesis that the probative value of evidence depends entirely on individual circumstances and details.

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How Youths and Drunkards Sometimes Die and How You Can Sometimes Prove It in New Jersey (and Perhaps Elsewhere)

The full text of the following essay is now available (gratis) via SSRN: P. Tillers, "The Death of a Youth and of a Drunkard: A Remarkable Story of Habit and Character in New Jersey."

To retrieve this essay (and story) go here.

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Ho Hock Lai's New Book

A new book on evidence and the law of evidence landed on my desk yesterday (courtesy of amazon.com). A scan of the book's contents suggests the book is worth a very careful read. See Ho Hock Lai, A Philosophy of Evidence Law (Oxford 2008). See the blurb (and more) here.

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Visual Evidence

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The Story of a Signature Crime

I am usually wary of claims that a crime committed with a particular m.o. is a "signature crime." Such claims usually strike me as urban myths or as the products of self-aggrandizing "experts." However, when the Litvinenko business first broke, it struck me (see, e.g., here) that the poisoning and eventual killing of Litvinenko with a highly toxic and barely detectable poison, Polonium 210, was indeed the signature -- the likely hallmark -- of a crime committed by the present-day successors to the KGB. Well, it turns out that my suspicions (and those of many others) were probably correct. See this NYTimes book review by Simon Sebag Montefiore. (How can one doubt the credibility of a person with such a magnificent name?) But, dyed in the wool academic that I am, the interesting part of this story for me is why my notions about how the KGB committed crimes turned out to be correct. Part of the explanation is that the newspaper stories that reported on the Litvinenko business also reported other cases in which the KGB and FSB had supposedly used a similar m.o. But even before I read those relatively recent newspaper accounts I had the impression that the Russian secret police were in the habit of doing their dirty work with furtively-administered poisons. So I was the captive of an urban myth. But it was a myth that turned out to be very probably true. Isn't that interesting?

N.B. Didn't Ian Fleming use furtive poisoning as one of the tactics of his SMERSH in at least one of his James Bond novels?

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Evidence Codification and Non-Codification in Connecticut

Evidence codification has an unusual status in Connecticut. In a case said [in Westlaw's text] to be decided on August 19, 2008 -- in State v. DeJesus --- A.2d ----, 2008 WL 3290164 (2008) -- the Supreme Court of Connecticut writes [will write?]:

"With respect to the defendant's appeal, we conclude that, despite the adoption of the code [of evidence] by the judges of the Superior Court, the appellate courts of this state retain the authority to develop and change the rules of evidence through case-by-case common-law adjudication."

&&&

"We agree with the defendant that the adoption of the code did not divest this court of its inherent common-law adjudicative authority to develop and change the rules of evidence on a case-by-case basis. We further agree with the defendant that, in light of our recent clarification of the nature and scope of the common scheme or plan exception in State v. Randolph, supra, 284 Conn. at 328, evidence of uncharged misconduct admitted under the liberal standard ordinarily does not reflect the existence of a genuine plan in the defendant's mind. Nonetheless, given the highly secretive, aberrant and frequently compulsive nature of sex crimes, we conclude that the admission of uncharged misconduct evidence under the liberal standard is warranted and, therefore, we adopt this standard as a limited exception to § 4-5(a) of the code, which prohibits the admission of "[e]vidence of other crimes, wrongs or acts of a person ... to prove the bad character or criminal tendencies of that person."

&&&

"The foregoing history [of the adoption of the code of evidence by the judges of Connecticut's Superior Courts] does not support the conclusion, however, that the code was intended to divest this court of its inherent authority to change and develop the law of evidence through case-by-case common-law adjudication."

&&&

"There was no discussion of the effect, if any, that adoption of the code would have upon this court's common-law adjudicative authority to change and develop evidentiary law on a case-by-case basis, an inherent authority that it has enjoyed since the seventeenth century.

...

"In the absence of any discussion at the meeting of the judges of the Superior Court concerning the impact that adoption of the code would have on the future development of evidentiary law, it is illogical to conclude that, by adopting the code for the purposes of ease and convenience, the judges intended to divest this court of its long-standing inherent common-law adjudicative authority over evidentiary law." &&&

In a footnote the Supreme Court dealt with the question whether Connecticut's code of evidence prevents Connecticut's trial judges from changing rules of evidence in case-by-case adjudication:

"FN24. Because the code merely restated the prevailing common-law evidentiary rules, which the judges of the Superior Court already were bound to apply, and was intended to expedite and streamline judicial proceedings by serving as a shorthand reference to those rules, the code clearly was intended to be binding authority in the Superior Court. Section 1-1(b) of the code specifically states that '[t]he [c]ode applies to all proceedings in the superior court in which facts in dispute are found, except as otherwise provided by the [c]ode, the General Statutes or the Practice Book.' The code therefore differs fundamentally from a treatise or handbook, which has persuasive value only. The question presented in this appeal, however, is not whether the code is binding authority in the Superior Court, but, rather, whether it is binding authority in this court such that we are precluded from reconsidering our own prior precedent codified in the code. For the reasons explained in the body of this opinion, we conclude that the judges of the Superior Court did not intend their adoption of the code to divest this court of its inherent authority to change and develop the law of evidence via case-by-case common-law adjudication."

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Questions about the Bruce Ivins Anthrax Case

Dr. Gerry Andrews, a professor of microbiology, raises some interesting questions about the evidence against his former colleague, Dr. Bruce Ivins, the suspected "anthrax killer" who recently committed suicide. See Gerry Andrews, "Open Questions on a Closed Case" (Op-Ed), NYTimes Online (August 9, 2008). Of particular interest to me are several questions that Dr. Andrews raises about the scientific evidence in the case.

The US attorney supervising the investigation and other government agents spoke about the "match" between the anthrax that killed the five victims and the anthrax that had been in Ivins' possession. One government agent -- I believe it was the the US attorney who held the news conference about the impending closing of the case -- even said that the government had located the "murder weapon," the flask containing the lethal anthrax that, it was said, killed the five victims.

Although I have no reason to doubt that the federal government has (finally) fingered the right (dead) man, one must always be suspicious when there is talk about a "match." The word "match" implies evidence that uniquely identifies the thing (or, worse yet) person who left some trace at the crime scene. Dr. Andrews points out several circumstances and considerations that raise questions about the government hypothesis that the scientific evidence in the case points uniquely to Bruce Ivins as the culprit. He makes his point this way:

As a scientist, ... I feel compelled to comment on what should have been the Federal Bureau of Investigation’s strongest link between Dr. Ivins and the terrible crime — deadly anthrax spores. In the summary of its findings, the F.B.I. states that investigators used four different genetic techniques to match the anthrax-laced attack letters to a unique DNA footprint of a single anthrax spore preparation in one flask that had been in Dr. Ivins’s custody.

Sounds reasonable. Yet the investigators present no details on the scientific methods they used to make this match or how they employed them. That’s a problem, because without such detail it is hard to tell if they specifically ruled out a similar match between the anthrax in the letters and anthrax preparations with the same DNA footprint kept at a number of other labs around the country.

For good measure, Dr. Andrews points out how "non-scientific" questions about the custody of the "murder weapon" raise additional doubts about the strength of the scientific evidence against Ivins. Andrews begins by noting that "Dr. Ivins was an investigator in the case before he was a suspect. After the anthrax attack, Dr. Ivins himself worked directly with the evidence. The F.B.I. asked Dr. Ivins to help them with the forensics in the case by analyzing the contents of suspicious letters. And he did so for years, until the authorities began to suspect that the anthrax spores used in the mailings might have originated from his lab." Dr. Andrews argues that the lab at which Ivins worked did not have the capacity to produce the "refined weapons-grade anthrax" that had been used to kill the five victims. Dr. Andrews then adds:

But even leaving that aside, there are important questions left unanswered. First, isn’t it possible that the manipulation of the contents of the anthrax letters in Dr. Ivins’s laboratory might have contaminated the work environment enough to potentially jeopardize the integrity of subsequent samples taken from the lab? Might that perhaps explain why the anthrax powder used in the attacks was later found to have the same DNA footprint as the other anthrax preparations in Dr. Ivins’s lab? At the very least, wouldn’t this call his guilt into doubt?

These are the sorts of questions -- e.g., the degree to which the DNA of the physical sample found at the scene of the crime together with the DNA of a specimen found elsewhere is a distinctive identifier of the physical source of the crime scene specimen, the possibility of contamination of the physical evidence found either at the scene of the crime or elsewhere, the availability of the possible instrumentality of the crime (in this case the "murder weapon") to persons other than a specific suspect, -- these are the sorts of questions that have emerged in innumerable "humdrum" murder and rape cases. Despite the new scientific techniques that are said to have been developed during the investigation of the anthrax case, these sorts of issues are pertinent in the Ivins anthrax case as well in humdrum murder and rape cases. We should avoid being unduly dazzled by novel scientific methods or technology. We must always keep in mind what sorts of questions a powerful scientific method can answer and what sorts of questions it cannot answer.

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Truly Demonstrative Evidence

Martha Neil, "Gov’t. Puts Car in Court in Murder Trial," ABA Journal Online (August 7, 2008):

In an unusual effort to prove a murder case, prosecutors in Washington state have persuaded a judge to let them bring a car into the courtroom. The 2000 Ford Mustang in which victim Ronald Whitehead, 61, allegedly was shot to death "was hauled into the King County courtroom of Judge Steven Gonzalez in three bundles Wednesday night and assembled in time for when defendant Jon Ogden, the dead man's 20-year-old stepson, walked into trial Thursday morning," reports the Seattle Times. The government wants to show the jury how they believe Whitehead was shot four times by someone hiding in the vehicle.

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How Do Fingerprints Point?

Kenneth Chang, "Fingerprint Test Shows Not Only Who but What," NYTimes (August 7, 2008)

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Peter Tillers on Evidence: legal consulting on evidence, investigation strategy, and evidence planning

When Will They Ever Learn -- about Circumstantial Evidence etc.

The byline in today's NYTimes reads "Anthrax Evidence Is Called Circumstantial." (The story is by Scott Shane.) The implication of the byline is that the evidence against the suspected (and now-dead) malefactor is therefore weak. The NYTimes should know better. There is weak circumstantial evidence. But there is also strong circumstantial evidence. The same holds true for "direct" evidence given by a putative eyewitness. The same holds true for scientific evidence. The same holds true for confessions.

"When will they ever learn?" Folk Song, the version by Pete Seeger and The Weavers still being the best known

N.B. The above post does not reflect -- and it is not meant to reflect -- my personal opinion (if I have one) about the guilt or innocence of Bruce E. Ivins.

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A Merger of Subjective and Objective Factors in Factual Inference: Understanding a Bee's Vision

It is possible to make inferences about how bees are likely to view their world by carefully conducting experiments and inspecting the physiological and psychophysics data. We know that bees can see ultraviolet wavelengths of light. Many flowers have evolved flower patterns that suit the visual capabilities of bees, for example, some flowers have patterns that can only be seen with ultraviolet sensitive vision.

"Interview [of Dr. Adrian Dwyer]: Through the eyes of a bee," Alexander von Humboldt-Stiftung Newsletter 2/2008

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Aleksandr Solzhenitsyn, Dead

See Aleksandr Solzhenitsyn Is Dead at 89," NY Times (Aug. 6, 2008).

This sad news has something to do with evidence. Before Solzhenitsyn's appearance many people in the West -- I am old enough to remember this -- were dismissive of claims that Stalinism led to the deaths of millions of people. But the evidence of death on such a massive scale was publicly available long before Solzhenitsyn burst on the international scene.

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Narrative and Factual Inference

In recent years it has become fashionable -- almost de rigeur -- to talk about "narrative" when talking about factual inference in legal settings. This habit of mind has even percolated into the halls of the Supreme Court. (I assume that the Supreme Court building has halls.) See Old Chief v. United States, 519 U.S. 172 (1997) (Souter, J., for the Court). This shift in interest is, on the whole, a good thing, I think. But it is also worth asking why it this development is a good thing. Yes, (some) stories have rhetorical and persuasive force. Yes, (many) stories serve as powerful mnemonic devices. But if the question is whether we should be interested in stories if our ultimate interest is accurate (as well as entertaining or advantageous etc.) factual inference in settings such as trials, the answer is less obvious. We must begin, I think, by distinguishing between two types of "stories." One type of story is a scenario, which, in the parlance of social scientists and other such folks, is a causal hypothesis-a hypothesis about the connections between specified events over time. Another type of story is broader: this broader type of story is an account that has, not only causal explanatory force, but also ingredients such as dramatic appeal, emotional punch, human actors, and the like. A strong case can be made that either all factual issues or almost all factual issues are effectively scenarios -- this on the ground that all, almost all, or many factual hypotheses in legal settings are effectively hypotheses about some possible sequence of connected events in time. However, it may be less clear that epistemic considerations--i.e., truthseeking considerations--make stories in the sense of narrative necessary. But perhaps "necessity" is too strong a requirement here. Perhaps it is enough if we show (if we can) that stories with emotional wallop etc., generally promote [under some circumstances] the search for the truth, generally advance [under some circumstances] accurate fact finding. (This thesis is a variant of the sensible notion that practical epistemic maxims should take the human animal as we find him [or her].)

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