Back to Basics: Wrongdoers, Victims, and Procedural Rules -- and Alleged Wrongdoers and Alleged Victims

Recently a law professor, while referring to a debate about statutes of limitations for civil actions based on claims of sexual wrongdoing, reportedly said that whether you should favor the elimination of limitations periods for such cases depends on whether you favor sexual predators or whether you favor the victims of sexual predators.

This is pure humbug. Moreover, it is dangerous humbug.

Let's begin with a moral reductio ad absurdum:

The argument made by the law professor might be made about any rule of procedure or evidence in a case involving a claim or charge of sexual misconduct. If the law professor's argument were valid, we would have to conclude that rules of procedure, rules of evidence, and trials are unnecessary in cases involving claims or charges of sexual misconduct.

The law professor's benchmark -- Who are you for: victims or vermin? -- neglects the utterly, completely, wholly, absolutely basic point -- a point taught, one hopes, in the first day of any law student's legal education, if not long before (e.g., in kindergarten) -- that part of what trials are for is to determine whether sexual misconduct took place.

A procedural rule -- a rule such as a statute of limitations -- might serve to reduce the frequency of certain kinds of erroneous outcomes (false positives, erroneous assignments of legal liability when they are factually unwarranted). To be sure, such a procedural rule (like almost rule of procedure or evidence) also creates a risk of error -- in this case, a certainty in certain classes of cases -- of a different kind: that legal liability will not be imposed when legal liability is factually warranted. But the debate about whether a rule of procedure (or any other evidentiary or procedural rule) should or should not be used should depend on the comparative magnitude and frequency of these two types of risks and the amount of harm thought to be done by these two kinds of errors (and by other considerations) -- and not by the question of whether one prefers victims or malefactors.

The argument that your view of a debate about a procedural right or rule such as the statutes of limitations should depend on whether you prefer sexual predators to victims or whether, instead, you prefer victims to predators ignores the existence of two groups of people: (1) alleged victims who are not in fact victims, and (2) alleged sexual wrongdoers who are not in fact wrongdoers. The law professor's argument would have more meat if mistaken claims and charges of sexual wrongdoing were never made and if innocent people were never charged with sexual wrongdoing. Alas, alleged victims are not always actual victims and alleged sexual wrongdoers are not always actual sexual malefactors. See, e.g., State of New Jersey v. Michaels, 136 N.J. 299, 642 A.2d 1372 (1994)(young female day care worker falsely accused and wrongly convicted of sexually abusing her young charges 174 times). See generally Dorothy Rabinowitz, No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of Our Times (2004)

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coming soon: the law of evidence on Spindle Law

consulting

An Improved Deductive Argument

An extraordinarily astute observer -- an anonymous Cardozo colleague (who very probably wishes to avoid the embarrassment of being associated with my blogs) -- points out that the proposed inference in the below argument is valid only if it is assumed that Hs must prefer either L or ~L; Hs cannot be in the position of having no preferences about L.

For your convenience, the argument in issue is:

Stipulation: All Hs prefer P or ~P [Hs prefer P or ~P but not both]
Premise 1: if H prefers P --> H prefers L
Premise 2: if H prefers ~P --> H prefers ~L
Premise 3: (H prefers L) is True
[Therefore]: The inference, or conclusion, [(H prefers P) is True] is valid

So let's restate the argument this way:

Stipulation 1: All Hs prefer P or ~P [Hs prefer P or ~P but not both]
Stpulation 2: All Hs prefer L or ~L [Hs prefer L or ~L but not both]
Premise 1: if H prefers P --> H prefers L
Premise 2: if H prefers ~P --> H prefers ~L
Premise 3: (H prefers L) is True
[Therefore]: The inference, or conclusion, [(H prefers P) is True] is valid

So now we have a better deductive argument, apparently an ironclad one. But this will just go to prove that a perfectly good deductive argument can get you into a lot of trouble.

&&&

Flash!: My astute colleague makes the further point:

If you are going to add the assumption that either H prefers L or H prefers -L but not both, I think you can drop premise 1. You just need H prefers -P to imply H prefers -L.

I think my colleague is correct. But at the moment I will proceed on the assumption that logical overkill is not always a bad thing. Besides, since I want to get his basic point out in a hurry and since I am slow on the uptake, I will leave the modified argument (above) unchanged for the moment.

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coming soon: the law of evidence on Spindle Law

A Little Help with Some Deductive Reasoning, Please

I need a little help with a deductive argument. Please tell me if the last proposition in the below argument is true or false:

Stipulation: All Hs prefer P or ~P [Hs prefer P or ~P but not both]
Premise 1: if H prefers P --> H prefers L
Premise 2: if H prefers ~P --> H prefers ~L
Premise 3: (H prefers L) is True
[Therefore]: The inference, or conclusion, [(H prefers P) is True] is valid

N.B. In the above argument the symbol "~" means "not" or "negation."

&&& "Why do I ask?," you ask.

That's a fair question. So I'll answer it.

Answer: The above argument may become part of a broader argument; it may become embedded in a broader argument.

I may post the broader argument later. Or maybe I won't. (Now there's deductive logic for you!)

If I do post the broader argument, I won't hold you responsible for the broader argument. And you won't in fact be responsible for it -- and that's a fact.

So, someone in the silent majority, you help out. If you do, your reward will be the knowledge that you have contributed to knowledge -- and to the assessment of you-are-for-us-or-against-us reasoning.

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coming soon: the law of evidence on Spindle Law

Who Are You For? And Once I Have Your Answer I Will Know What Rights Certain Kinds of Criminal Defendants Ought to Have. Isn't That Correct?

A student newspaper recently reported that a law professor recently said:

You are either for sexual predators or you are for their victims.

Well now, what do you think of that?

In asking ths question, I am not alluding to Biblical or Presidential statements asserting that "you" are either for something or against something.

The law professor's statement made me think of slogans that were tossed about in the 1960s during the Warren Court controversies:

Either you are for criminals or you're for their victims [or law & order, or whatnot].

However fractured our debates and opinions might still be about the rights of criminal defendants, I thought we had gotten beyond such slogans.

I'm astonished. And I shudder. The law professor's statement, taken literally, implies that alleged(!) sexual predators have no rights. (Indeed, one wonders whether the law professor thinks it is worth bothering to have a trial for [alleged] sexual predators. After all, they're sexual predators, so why bother? Isn't that the logic of the position?)

Next Monday I will find a copy of that newspaper and I will quote it exactly. I don't want to be accused of exaggeration.

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coming soon: the law of evidence on Spindle Law

Voodoo Science in Some Putative Lie Detection Technologies?

See Voodoo science in fMRI and voice analysis to detect deception: compare and contrast. See also Legal threat for criticising neurobabble 'lie detector', which reports the use of threat of legal action to silence a putative debunker's challenge to a putative lie detection technology using voice analysis.

Perhaps the most depressing news from these blogs is that research into some or many of these technologies has been heavily funded by government money.

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coming soon: the law of evidence on Spindle Law

Some Matters That Influence the Law of Evidence and the Workings of Proof

The following general matters (among many others) influence the shape of the law of evidence:

Ignorance (incomplete knowledge of the world)
Uncertainty (inconclusive evidence & uncertain evidential inference)
Time (proof as temporal process, pretrial investigation, and the like)
Rhetoric (persuasion, advocacy, similar matters)
Scarcity (scarcity of resources, efficiency concerns)
Social values (culture [including, e.g., the value attached to "freedom"], similar matters)
Political concerns
Historical practice
Accident

Other variables might be listed in addition to or within the above classes of variables, constraints, purposes, "interests," etc. For example:

Religious beliefs
Social harmony
Crime reduction
Market efficiency
Family stability
Human mortality
Patriotism (nationalism, ethnocentrism, etc.)
etc.

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coming soon: the law of evidence on Spindle Law

Legal Scholarship & the Purpose(s) of the Law of Evidence

It has been said (in effect) that the law of evidence is shaped by a congeries of interests.

That's a half truth.

It has also been said that the purpose of the law of evidence is to promote the search for the truth about facts.

The truth-value of this proposition is much less -- perhaps, say, 1/20th.

The American legal realists (including John Henry Wigmore) recognized (and argued) that all branches of law (including the law of evidence) serve a variety of interests and purposes. Hence, evidence scholars with a "realist" cast of mind acknowledged and argued that the law of evidence is shaped by a variety of factors other than the desire to determine the truth or falsity of propositions about legally-material factual hypotheses.

But the characterization of evidence law's non-epistemic purposes as "interests" stultifies thought and analysis.

The "interests" that shape the law of evidence may have their own logic or structure. One may have to understand the structure of each such interest or purpose if one is to understand the workings of the law of evidence in a given society at a particular point in history.

It is true that the law's purposes -- including the purposes of the law of evidence -- cannot be pulled out of heaven; different societies have different characteristics, interests, and purposes. But these historically-contingent purposes, or "interests" -- which in many or most societies do include a yearning for "truth" -- do have a structure. For example, "confrontation" (in adversary legal proceedings) may be an "interest" but it very probably has a certain connotation in the minds (and hearts) of some people in a society such as ours, and it may be possible to get a sense of what such an "interest," or value, means. Similarly, with notions such as "closure," "dignity," and the like.

A coherent effort to construct a systematic exposition of historically-contingent proof regimes should probably attempt to (i) identify the congeries of "interests," purposes, and values (and also non-historically-contingent constraints or variables) that shape or might the law of evidence at a particular point in space and time, (ii) put those interests, values, and variables into something resembling a matrix, and (iii) then -- to mix mathematical analogies -- describe how such interests, etc., interact to produce the vector that is the law of evidence in a particular society at a given point in history.

It would be extraordinarily difficult, of course, to provide such a systematic description of the law of evidence. But such a description is the one to which systematic scholarship ("theoretical scholarship") about the law of evidence should probably aspire.

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coming soon: the law of evidence on Spindle Law