A Lesson in Probability by the Massachusetts Supreme Judicial Court

A slight shudder goes over me when I realize that I am about to encounter another judicial disquisition on probability and factual inference.

I will give you the citation first, and I will discuss the opinion in a later post or posts: Commonwealth v. Ferreira, No. SJC-10902, 2011 Mass. LEXIS 977 (Oct. 21, 2011).

But I feel compelled to make very brief comment on two points now:

1. The case involved a pretrial identification. The prosecutor made an off-the-cuff argument about the improbability that the victim would have picked, out of two photo arrays containing a total of 14 people, two suspects who happened to know each other. Whether or not the court got the final result right, the court failed to understand the point of the prosecutor's argument about random selection.

2. Whether or not the court got the final result right, the court -- like practically every other court before it -- parroted vacuous and misleading cliches about the non-mathematical character of the reasonable doubt standard:

The prosecutor also erred in equating proof beyond a reasonable doubt with a numerical percentage of the probability of guilt, in this case, ninety-eight per cent. "[T]o attempt to quantify proof beyond a reasonable doubt changes the nature of the legal concept of 'beyond a reasonable doubt,' which seeks 'abiding conviction' or 'moral certainty' rather than statistical probability." Commonwealth v. Rosa, 422 Mass. 18, 28 (1996). "The idea of reasonable doubt is not susceptible to quantification; it is inherently qualitative." Commonwealth v. Sullivan, 20 Mass. App. Ct. 802, 806 (1985). See Commonwealth v. Mack, 423 Mass. 288, 291 (1996) ("the concept of reasonable doubt is not a mathematical one").

Compare P.Tillers & J. Gottfried, United States v. Copeland: A Collateral Attack on the Legal Maxim that Proof Beyond a Reasonable Doubt Is Unquantifiable?, 5 Law, Probability and Risk 135 (Oxford University Press, 2006).

David Brooks on Daniel Kahneman and Human Irrationality

The New York Times Columnist David Brooks writes in praise of Kahneman & Tversky. He emphasizes the tendency of the work of Kahneman & Tevrsky to show that fhuman beings frequently act irrationally. Fair enough. But what Brooks needs to emphasize a bit more is that subconscious processes have both successes as well as failures -- and it is possible that the rate of success is as striking as or even more striking than the rate of failure. If that weren't the case, we probably would all have been dead a long time ago.

The question of to what extent and under what circumstances "unthinking" human beings make mistakes is pertinent to many debates about evidence in legal cases -- for example, about false eyewitness identifications. The proponents of eyewitness identification reform sometimes exaggerate the relative frequency of incorrect identifications and perhaps underestimate or underplay the capacity of the legal system to correct for such errors (for example, by allowing or insisting on multiple lines of evidence of identity and by allowing adversaries to test the accuracy of eyewitness identifications by using devices such as cross-examination and evidence about witnesses' eyesight and the circumstances under which an identification was made).

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

Spindle Law Interview of Arthur Bryant

See the Spindle Law Interview of Arthur Bryant

MarshalPlan 5.0 in Your Browser (Firefox)

I just discovered, to my pleasure and surprise, that MarshalPlan 5.0, the most recent version of my evidence marshaling software, runs in Firefox 4.0 as well as in Firefox 3.x.  To give the most recent iteration of MarshlPlan a trial spin, using Firefox 3.x or 4.0, click on this link and, when asked, accept the plug-in.

MarshalPlan 5.0, unlike MarshalPlan 4.0, has a stack that facilitates planning for the order of submission of evidence at trial.

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The dynamic evidence page

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

Trial Advocacy at Temple & Pretrial Fact Investigation

What do think of Prof. Herb Kolsby's course (see below) on "speechmaking" by trial lawyers?

1719 N. Broad Street Philadelphia, PA 19122 215-204-1857 law@temple.edu

TRIAL ADVOCACY

Temple Law’s New Certificate in Trial Advocacy and Litigation. Herb Kolsby on Persuasive Speechmaking for Adversaries.

Certificate in Trial Advocacy and Litigation Temple Law proudly announces the launch of our new Certificate in Trial Advocacy and Litigation. Grounded in Temple’s ongoing commitment to legal education that bridges theory and practice, the Certificate in Trial Advocacy and Litigation offers a developmental and experiential curriculum, instruction from faculty and advocates who have proven themselves in the field, and live client clinical experiences. Participate in Temple’s award-winning full-year Integrated Trial Advocacy Program Take a minimum of 4 electives from a robust list of advocacy courses Join licensed attorneys in our path-breaking LL.M. program for instruction in Litigation Strategy and Courtroom Performance Serve as trial lawyers in one of 16 litigation clinical placements Learn about cutting edge issues from leading litigators in our Distinguished Advocates’ Lecture Series Gain insight into the courtroom process by serving as jurors, witnesses, and teaching assistants in mock trials and advanced trial advocacy courses Temple Law has long been a leader in training trial lawyers. Our graduates are courtroom ready and litigation savvy. With the addition of the Certificate in Trial Advocacy and Litigation, Temple Law School formally recognizes this accomplishment. Herb Kolsby on Speechmaking Lawyers do two things in courtrooms: They ask questions and make speeches. Only at Temple Law can students take a class dedicated exclusively to one of these acts – speechmaking – taught by one of the best speech makers at the bar. In Speechmaking, Herb Kolsby takes students through every stage of a trial, from voire dire to closing. Along the way, they learn that there are keys to persuasive speech; that lawyers need to become storytellers because juries decide based on the stories they hear; and that the visual, verbal, and vocal aspects of a speech must support the speaker’s goal in making it. Enrollment is capped at 12, therefore students are required to make a speech in every class and then receive direct feedback both during class and in a private session with Professor Kolsby. Students study the fundamentals of speechmaking by applying Kolsby’s model to formal speeches like eulogies before turning to the range of adversarial speeches, from motions and objections to argument, opening, and closing. By the end of the semester, students understand how to persuade their listeners – every time they rise to speak. Professor Emeritus Herb Kolsby ’51 is the former and founding director of Temple Law’s LL.M. in Trial Advocacy program. He is currently of counsel to Kolsby Gordon in Philadelphia and a fellow of the American College of Trial Lawyers.

I like the idea for the course by Kolsby. But I confess I would like to see more emphasis  on pretrial preparation in the form of informal fact investigation and formal discovery. (To judge by the blurb below, this part of trial lawyering is missing from Kolsby's course.) Trial advocacy without meticulous pretrial preparation is lifeless, it is doomed to fail. But I am probably being unfair: There are other courses in Temple's program in advocacy and some of them probably deal in detail with pretrial fact investigation (which is my favorite shtick, see http://tillers.net/fi-course/fi-home.html).

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The dynamic evidence page

Evidence marshaling software MarshalPlan

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

FBI’s DNA database upgrade plans come under fire

Paul Rincon FBI’s DNA database upgrade plans come under fire BBC News (Oct. 16, 2011):

A major upgrade of the Federal Bureau of Investigation's (FBI) DNA database system has come under fire from members of the forensic science community. The Codis system is used to generate the genetic profiles stored in the US national DNA database. The FBI wants to expand the number of genetic markers used by Codis to classify individual DNA profiles. But a former science chief at the bureau says the plan is not being driven by scientists' needs. Dr Bruce Budowle, along with colleagues Arthur Eisenberg and Jianye Ge, outlined the objections at the Promega 22nd International Symposium on Human Identification (ISHI) in Maryland, US. Another scientist told BBC News the changes were vitally important because they would set down how DNA profiles were recorded in the United States for perhaps "the next 20 years".

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The dynamic evidence page

Evidence marshaling software MarshalPlan

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

Controversy about Law School Data about Students' Employment Prospects Goes (More) National

Mark Hansen, Senators Seek Decade of Detailed Law School Placement, Bar Passage and Student Debt Data ABA Journal (online) (Oct. 14, 2011):

Two U.S. senators have asked federal educational officials to turn over detailed information about law school enrollment, tuition, finances, job placement, bar passage and student debt rates over the past 10 years. In a statement Friday, the two—Sen. Barbara Boxer (D-CA) and Sen. Tom Coburn (R-OK)—said they were acting in response to "serious concerns" that have been raised lately about the accuracy and transparency of information law schools are providing prospective students.

 


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The dynamic evidence page

Evidence marshaling software MarshalPlan

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