Friday, October 24, 2008

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.

the dynamic evidence page

consulting on investigation strategy and the law of evidence

Wednesday, October 22, 2008

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."

the dynamic evidence page

consulting on investigation strategy and the law of evidence

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?

the dynamic evidence page

consulting on investigation strategy and the law of evidence

Sunday, October 19, 2008

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.

the dynamic evidence page

consulting on investigation strategy and the law of evidence