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Strongly Recommended for Students of Fact Investigation
You simply must buy the second edition of Andrew Palmer's Proof, How to analyse evidence in preparation for trial (Lawbook Co., Thompson Reuters Australia, 2d ed., 2010).
The book is unique, it's right on the mark, it's relatively inexpensive, and it uses Timothy van Gelder's brilliant scheme for visualizing argument about almost anything -- including, it is now evident, argument from and about evidence.
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It's here: the law of evidence on Spindle Law. See also this post and this post.
Categories: Factual Investigation / Evidence
Framing a Question to Skew the Answer
"Witnesses to a car wreck, asked how fast the vehicles were going when they “smashed” into each other, will produce memories of faster speeds than witnesses asked to remember how fast they were going when they 'hit.'[n6] Note 6. Daniel L. Schacter, Searching for Memory 105 (Basic Books, 1996)." (Wallace, "The Puzzle of Memory: Reflections on the Divergence of Truth and Accuracy, 93 Judicature 50 (2009).)
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It's here: the law of evidence on Spindle Law. See also this post and this post.
Categories: Factual Investigation / Evidence
Are There Any Meaningful Constitutional Limitations on Legislatively-Mandated Use of Junk Science in Civil Litigation?
The question in the header is provoked by the enactment of state statutes requiring that state courts extend statutes of limitations in those cases in which an alleged victim of child sexual abuse allegedly "discovers" sexual abuse by "recovering" his or her "repressed" memory of the abuse.
By now it is fairly clear that claims of instantaneous "repression" of memories of sex abuse are hokum. But constitutional guarantees generally offer victims of alleged sexual abuse victims little protection against civil claims based on scientific hokum. And legislators seem to care little about the rights of -- or about the guilt or innocence of -- falsely accused sexual wrongdoers. It's a shameful picture all around.
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It's here: the law of evidence on Spindle Law. See also this post and this post.
Categories: Factual Investigation / Evidence
Thesis: Traumatic Events Are Generally Memorable
Susan A. Clancey, The Trauma Myth (2009) (footnote omitted):...[M]ost research shows that the more traumatic an event is, the more likely it is to be remembered. Further, there is no clear neurobiological evidence that repression (the mind immediately and automatically erasing a memory) is even possible.
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It's here: the law of evidence on Spindle Law. See also this post and this post.
Categories: Factual Investigation / Evidence
The Trauma of Researching Sexual Trauma
Susan A. Clancey, Ph.D., who believes both that child sexual abuse is widespread and that it does great harm, writes:When I first began my graduate work at Harvard, a respected psychiatrist at Harvard Medical School gave me some addvice. He told me that I should avoid studying sexual abuse. It was just too controversial, too sensitive, and too politicized. He said that advocacy would always outweigh truth, and emotions would always override data. At the time I nodded solemnly, wondering what he was getting at. Once I published my research, it made perfect sense.
All hell broke loose. I was bombarded with accusations that I was hurting victims even more than they had been and that I was a friend of pedophiles.Susan A. Clancey, The Trauma Myth (2009).
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It's here: the law of evidence on Spindle Law. See also this post and this post.
Categories: Factual Investigation / Evidence
Can You Remember Something That Didn't Happen?
I am referring to false recovered memories, not to a logic puzzle.
Stephen Porter, John C. Yuille, and Darrin R. Lehman, The Nature of Real, Implanted, and Fabricated Memories for Emotional Childhood Events: Implications for the Recovered Memory Debate 23 Law and Human Behavior 517 (1999):
Abstract
A central issue in the recovered memory debate is whether it is possible to "remember" a highly emotional incident which never occurred. The present study provided an in-depth investigation of real, implanted, and fabricated (deceptive) memories for stressful childhood events. We examined whether false memories for emotional events could be implanted and, if so, whether real, implanted, and fabricated memories had distinctive features. A questionnaire was sent to participants' parents asking about six highly emotional, stressful events (e.g., serious animal attack) which the participant may have experienced in childhood. Next, across three sessions, interviewers encouraged participants (N = 77) to "recover" a memory for a false event using guided imagery and repeated retrieval attempts. In the first interview, they were asked about one real and one false event, both introduced as true according to their parents. In two subsequent interviews, they were reinterviewed about the false event. Finally, after the third inquiry about the false event, participants were asked to fabricate a memory report. Results indicated that 26% of participants "recovered" a complete memory for the false experience and another 30% recalled aspects of the false experience. Real, implanted, and fabricated memories differed on several dimensions (e.g., confidence, vividness, details, repeated details, coherence, stress). These findings have important implications for the debate over recovered and false memories.
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It's here: the law of evidence on Spindle Law. See also this post and this post.
Categories: Factual Investigation / Evidence
What Makes a University Great?
Jonathan R. Cole, The Great American University: Its Rise to Preeminence, Its Indispensable National Role, Why It Must Be Protected 11-12 (2010):
What has made our universities so distinguished is not the quality of our undergraduate education. Other systems of higher learning, including our own liberal arts colleges, compete well against our great universities in transmitting knowledge to undergraduates. At its best, undergraduate education in the United States is exceptionally good, and at its worst it is very poor, but this is simply not what distinguishes our great universities from lesser ones. Nor is it our training of professional graduate students that makes our universities the greatest in the world, although we do that very well in comparison with many other nations. In short, although the transmission of knowledge is a core mission of our universities, it is not what makes them the best institutions of higher learning in the world.
We are the greatest because our universities are able to produce a very high proportion of the most important fundamental knowledge and practical research discoveries in the world.
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It's here: the law of evidence on Spindle Law. See also this post and this post.
Categories: Factual Investigation / Evidence
Trial Planning & Interview Planning
I have told my Fact Investigation students that planning for a witness interview is often somewhat like planning for trial.
This leaves the question: What does planning for trial involve?
The answer: Many things.
But some of the things one must usually plan for are shown below:
In this trial plan the trial lawyer has struggled mightily to order the calling of the witnesses so that together they tell a story that begins at the beginning, moves to the middle, and ends at the end. As you can see, the lawyer has largely but not entirely succeeded. Such is life -- and such are the vagaries of the evidence that witnesses have in their heads and of the legal rules that govern the calling and re-calling of witness.
Now an interview is not an exact replica of a trial. Indeed, there are many differences between trials and pretrial interviews of witnesses. But the requirements of possible trials sometimes do and should cast a backward shadow on pretrial interviews. (Of course, one might wonder how a thing that does not yet exist and may never exist can cast a shadow on an earlier event. But that is a metaphysical question that I leave for another day.) So one might well decide -- and rationally and sensibly so -- that a pretrial interview should be designed in part to ferret out, if possible, evidence that would or might satisfy the requirements for victory at trial. One possible witness interview plan, thus, might look like this:
A different witness interview plan might look like this:
Of course, neither of the above interview plans is comprehensive. An interviewer might have and almost certainly will have interview objectives in addition to those sketched above. For example, a central objective might be to establish rapport with the witness. Another objective -- sometimes a key objective -- might be to explore the credibility or bias of the interviewee. Yet another objective might be to see if the witness' testimony presents certain themes that may arise during the testimony of other witnesses. And so on. But the multiplicity of the interviewer's objectives should not lead the interviewer to abandon all planning. To to do is usually fatal.
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It's here: the law of evidence on Spindle Law. See also this post and this post.
Categories: Factual Investigation / Evidence
Authenticating Photos: How Many Modes of Manipulation Are There (and, Boy, Are They Easy To Do)
There was perhaps a time when the business of authenticating photographs and images didn't attract much attention. With the advent of the digital age, that lack of interest had better stop. See David Pogue, Photoshop and Photography: When Is It Real?, NYTimes (Feb. 25, 2010)
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It's here: the law of evidence on Spindle Law. See also this post and this post.
Categories: Factual Investigation / Evidence
There Is a Problem of the Complexity of Evidentiary Minutiae in Litigation. What Is the Problem of the Complexity of Evidentiary Minutiae?
It is often said, in different contexts and for different purposes, that the phenomenon of a large amounts of evidentiary details in litigation presents a problem of complexity. But what is complexity?
Complexity is a complex concept. :-) In the the March 2010 edition of The Reasoner Alan Baker of Swarthmore writes: There is no single, agreed upon definition of what it is to be complex, but rather a cluster of related notions covering both epistemological and ontological aspects of complexity. Of those most relevant to logic are definitions of algorithmic complexity arising from information theory, and applied to strings in some specified formal language. The best-established of this class of definitions is Kolmogorov complexity (KC). The KC of a string of binary digits is measured by the length of its shortest description. Thus the string “101010101010101010101010” can be (fully) described as “12 repetitions of ‘01”’, whereas the most efficient way to describe a disordered string such as “011000101011101101100010” may be to write down the entire string. One implication of the KC measure is that random strings have the highest complexity. This understanding of the concept of complexity is to some degree (but only to some degree) not applicable to the problem of multitudes of evidentiary minutiae in litigation because what is often wanted is, not a shorthand way to sum up lots of details, but an effective way to bring to mind or keep in mind large amounts of evidentiary minutiae. (There is a good reason why we often want to keep evidentiary details and detailed arguments about such details alive in our minds. I may discuss that point at some other time.) Nonetheless, the information theorist's understanding of complexity is suggestive. It reminds us that a memorable way of classifying -- of quasi-summarizing -- details helps to keep large quantities of details in mind. (Random details are much, much harder to remember.)
Literal visualization of evidentiary details and of arguments from and about evidentiary details sometimes makes a direct attack on the problem of complexity because some types of visualization -- such as Timothy van Gelder's -- are designed to actually keep before the human mind (to some extent) the many details that need to be kept in mind -- to some degree. The emphasis here is in part on modes of representation that are easy to digest -- that are, in that sense, extraordinarily "user-friendly." (In an e-mail message Tim van G once called his method "extrospection." I like his neologism.)
Key point: The mind must be able to flit back and forth, easily and quickly, between different agglomerations of details and different parts (including "evidentiary atoms") of those agglomerations.
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It's here: the law of evidence on Spindle Law. See also this post and this post.
Categories: Factual Investigation / Evidence
Is Racial or Religious Prejudice a Character Trait or Is It Something Else? And Why Should You Care?
Racial prejudice and religious prejudice are obnoxious weeds. Why does it matter whether they're called character traits or whether they're called something else?Note by Tillers: Plaintiffs' claims were apparently based on events that allegedly took place sometime after 2005.
The [trial] court granted the motions to exclude evidence of lawsuits or complaints of racial harassment or discrimination filed by individuals other than the plaintiffs, testimony or references to testimony of the plaintiffs in a different case against Sara Lee and Wyche, references to specific racial slurs and comments made by Wyche in the 1970's and 1990's, statements or testimony by Leo Montoya regarding ethnic slurs by Wyche, statements or testimony by Glen Lefort about a racial comment made by Wyche prior to Bryant's and Amey's employment under Wyche, statements or testimony by employees about interactions with Wyche in depots other than Menlo Park or Redwood City or at times other than when Bryant and Amey worked under Wyche, and statements or testimony about actions or statements by Wyche "that were not shared with [Bryant and Amey] during the period they worked under Wyche."
One reason why it matters what they're called is that the American "character rule" bars the use (in a trial) of a person's character to show the person's conduct. The American character rule does not bar the use of a person's characteristics, features, feelings, or thoughts when those characteristics are not -- are not considered to be -- character traits, dispositions, or propensities. See the beginnings of a treatment of this point at Is racial prejudice or a similar prejudice admissible to show conduct? in the evidence module of Spindle Law.
I also discussed this question years ago: many years ago I published some words about the question whether prejudice is or is not character. I did so in my revision of the first volume of Wigmore's Treatise. It is always gratifying to see a court acknowledge this -- as did a California court, albeit in an "unpublished" opinion:
A Question Revisited: Is Racial Prejudice or Animus a Character Trait or a Motive for Purposes of the Character Evidence Rule?
Bryant v. Sara Lee Corp., 2009 WL 378849 (Cal. App. 2009) (opinion not officially published): African-American Plaintiffs brought a civil action on behalf of themselves and others against their former employer Sara Lee and their former supervisor Wyche for employment discrimination, intentional infliction of emotional distress, and other causes of action. Plaintiffs' claims rested in part on the employer's alleged creation or sufferance of a work environment hostile to African-Americans. Plaintiffs claimed that Wyche created this hostile environment and inflicted emotional distress by racial slurs he made at the workplace.
Leo Bryant (Bryant) and Ronald Amey (Amey) seek reversal of the judgment following the jury trial on their claims for racial harassment and intentional infliction of emotional distress. Their primary claim with respect to the trial is that the court erred in excluding evidence under Evidence Code section 352 of offensive comments by their supervisor, respondent Robert Wyche (Wyche), made at other times, other locations, or about other protected groups."
The excluded evidence fell into three general categories: evidence of racial slurs made by Wyche before Bryant or Amey were employed by Sara Lee; evidence of comments made before Wyche began supervising Bryant or Amey or about which they did not learn during their employment; and evidence of slurs made by Wyche about protected groups other than African-Americans. Sara Lee and Wyche maintain that the excluded evidence was not relevant, was inadmissible character evidence, and was more prejudicial than probative under Evidence Code section 352."
Much of the evidence excluded by the court could be considered "propensity evidence," barred under Evidence Code section 1101. (Evid.Code, § 1101, subds.(a), (b).) "It has long been the rule, of course, that evidence of uncharged misconduct is inadmissible to establish a defendant's propensity to commit the offense charged. The bar on the use of such 'propensity evidence' is not that it lacks relevance. Rather, it is the concern that such evidence may be regarded by the trier of fact as too relevant, 'provoking' ... 'an overstrong tendency to believe defendant guilty' based on the commission of the prior ac[t]...." (People v. Ortiz (2003) 109 Cal.App.4th 104, 111, citing 1A Wigmore on Evidence (Tillers rev.1983) § 194, at p. 1859.) Evidence of a prior act may, however, be admissible "to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident ... other than his or her disposition to commit such an act." (Evid.Code, § 1101, subd. (b), italics added.)
Bryant and Amey maintain that evidence of Wyche's "repeated misconduct" in uttering racial slurs since the 1970's was relevant "[f]or purposes of punitive damages [because] 'a recidivist may be punished more severely ...,' " not for demonstrating propensity. Assuming arguendo that this evidence would have been relevant to the issue of punitive damages, the parties stipulated that trial on the issue of punitive damages would be bifurcated. The jury rendered a defense verdict, and consequently never reached the issue of punitive damages. Accordingly, this evidence was not relevant at the trial of the liability issues. &&& The appellate court thus apparently concluded that Whyche's racial slurs about other groups -- other African-Americans -- or at other times were inadmissible to show Wyche's conduct on other occasions, his conduct while plaintiffs worked under his supervision.
The appellate court affirmed the judgment for the defendants.
As I (proudly, or vainly) noted earlier, this opinion cites my revision of Wigmore's treatise. But, but, but ... the court's opinion does not mention a different part of my revision, a part that that mentions several California cases holding that under some circumstances racial prejudice is something other than "propensity" or "character."
So it goes.
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It's here: the law of evidence on Spindle Law. See also this post and this post.
Categories: Factual Investigation / Evidence
Is Legal Education of the Public Bad for Us?
David Benke and two other Colorado middle school teachers tackled and disarmed a gunman who was shooting children. "After being subdued, the shooter 'said he was going to sue us,' Benke recalled." (Jeremy P. Meyer, Hailed as hero, math teacher leapt to stop attack, Denver Post (Feb. 23, 2010))
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It's here: the law of evidence on Spindle Law. See also this post and this post.
Categories: Factual Investigation / Evidence
A Theory of the Trial by Robert Burns
The book A Theory of the Trial (1999) by Robert Burns really is a very interesting and important book even for -- or especially for -- Evidence specialists.
Burn talks much about narrative. Today even the United States Supreme Court talks -- occasionally -- about the role of narrative in the trial. See Old Chief v. United States, 519 U.S. 172 (1997). But the marriage of the law of evidence and of story-telling remains incomplete. Why? Is it because we do not yet know how to harmonize what Burns calls the "Received View of the Trial" (Chapter 1) with a view that takes into account matters such as the evaluative activities of the jury, the importance of theme at the trial, and so on?
Many of us -- probably most of us, thank goodness -- do wish to preserve the trial's emphasis on the search for the "truth." But it is foolhardy to think that an acceptable search for the truth can be achieved if we ignore, for example, many of the ways the jury thinks about and makes sense of what goes on in the courtroom.
In one very interesting section (in Chapter 5) Burns discusses "Features of the Trial Too Basic to Be Noticed and Preliminary Notes on Their Significance." Sometimes one must be a visitor from Mars to notice the profound impact of the familiar. On a visit to Belfast many years ago I noticed how the barristers in a trial paused for some moments after each one of their questions was answered by a witness. I wondered why. Then I noticed a scrivener who, apparently, was writing everything down, laboriously, by hand. I think (but I am not sure) the barristers paused to give the scrivener time to do his job. This, of course, had a noticeable effect on the pace of examination and cross-examination.
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It's here: the law of evidence on Spindle Law. See also this post and this post.
Categories: Factual Investigation / Evidence
Books 'n Things
Categories: Factual Investigation / Evidence
Can You Quantitate Your Doubts about Jersey City's Officials?
Reform-minded City Councilman Steven Fulop was arguing that a prospective appointee should not be given health benefits because the appointee's job would involve only 12 hours of work a year. This led Ward D Councilman Bill Gaughan to sputter, “You never quantitate anything you say,” he exclaimed, waving his arm angrily towards Fulop. “You make this stuff up." Shane Smith, "Council (Mini)Report: Incinerator Authority Appointment Gets Heated and More," The Jersey City Independent (Feb. 18, 2010).
Now I think I know why Jersey City's expenditures wildly exceed Jersey City' ordinary revenues. It's not because Jersey city officials can't do higher mathematics such as arithmetic. It's because Council members such as Gaughan don't yet have a handle on the concept of counting. They don't know how to quantitate!
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It's here: the law of evidence on Spindle Law. See also this post and this post.
Categories: Factual Investigation / Evidence
New Book with Bearing on the Debate about Repressed Memory
This recently-published book may have a bearing on the debates over claims of repressed memory due to sexual molestation: Susan A. Clancy, The Trauma Myth: The Truth About the Sexual Abuse of Children--and its Aftermath (Basic Books, Jan. 5, 2010). Susan Clancy is an experimental psychologist who works or worked at Harvard University. See this Wikipedia squib.
I just caught the very tail end of her interview on WNYC's Leonard Lopate show. There are already -- at 1:10 p.m., less than an hour after the interview --, there are already 41 comments about the Clancy interview at the WNYC web site.
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It's here: the law of evidence on Spindle Law. See also this post and this post.
Categories: Factual Investigation / Evidence
Interview of Timothy van Gelder
The online magazine The Reasoner has an interview with Timothy van Gelder in its February 2010 issue. You should read this interview!
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It's here: the law of evidence on Spindle Law. See also this post and this post.
Categories: Factual Investigation / Evidence
A Nobel Peace Prize for Nicholas Kristof
Now let's have a Nobel Peace Prize that means something. Let's have one for Nicholas D. Kristof. Reason? See, e.g., "The Grotesque Vocabulary in Congo," NYTimes (Feb. 10, 2010)
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It's here: the law of evidence on Spindle Law. See also this post and this post.
Categories: Factual Investigation / Evidence
Is This the Beginning of the End for the Jersey City Machine?
Mayor Jerramiah Healy's deputy mayor -- Leona Beldini -- has been convicted on two criminal counts stemming from the money that a cooperating federal witness -- Mr. Solomon Dwek -- liberally distributed to a variety of politicians in northern New Jersey and Jersey City in exchange for official favors for Mr. Dwek, who they mistakenly believed was a real estate developer who wanted their favors. See "Offcial guilty on 2 counts in NJ corruption trial," Daily Record.com (Feb. 11, 2010).
Let me again trumpet the fact that a team of my students in a course in fact investigation at Cardozo School Law undertook an investigation of Mayor Healy's administration about a year ago and found strong indications of possible corruption.
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It's here: the law of evidence on Spindle Law. See also this post and this post.
Categories: Factual Investigation / Evidence
Encouraging Words for Spindle Law -- and, by Implication, for Its Evidence Module
In a blog post Spindle Law's David Gold observes that David Curle, "a leading analyst of the legal, tax, & regulatory information industry," made some encouraging remarks in the Huffington Post about Spindle LawA tiny little startup named Spindle Law has an interesting idea. They are building, in a kind of collaborative, Wiki-like way, a database of the legal rules that lawyers find in court decisions and in legislation. Their idea is that it’s pretty inefficient to get to those rules by searching and reading long court opinions. They are extracting and organizing the rules with links to the legal sources. They have a long way to go to prove that the concept works, but I like the way they are trying to turn the research process on its head.
I call David Curle's remarks "encouraging" because I am the editor of Spindle Law's evidence module.
I take this occasion to remind lawyers, law teachers, law students, etc., that I would welcome their comments (in the evidence module) about rules and principles of evidence, their notes and thoughts on interesting new (or old) cases, and the like. Evidence is a large part -- very probably the largest part -- of the work of most litigators and trial judges. The handling of evidence in litigation is also a fundamental pillar of the rule of law. (Without reasonably accurate factual proof, the rule of law means little and is inefficient.) So let's have a national and worldwide conversation about the U.S. system of factual proof. Moreover, don't you have a yen to broadcast your personal views about legal issues and the law of evidence to the legal world and beyond? '
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It's here: the law of evidence on Spindle Law. See also this post and this post.
Categories: Factual Investigation / Evidence
