33rd / 424th District Courts

However, there are not just two levels of awareness, the conscious and the unconscious. There are degrees of awareness; awareness is a continuum.

Furthermore, the status of some awareness of something is not always fixed or static; awareness that is relatively subterranean in the human mind can become more explicit, more conscious -- and, presumably, the reverse can happen.

These facts must be taken into consideration when we contemplate the role of reason and explicit argument in inference in legal contexts such as trials. For example, some devices can perhaps help jurors or judges become more aware of some of their thoughts, to spell out more what lies darkly in half-consciousness; and, if this can be done (or already is done), it is possible -- just possible -- that better inferences will be drawn. But don't ask me to prove that this expectation or hope is a reality!

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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.

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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.

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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.

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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.

Phil and I teach Fact Investigation together.

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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.

The structure of proof in modern trials cannot be ascertained solely by reference to logic, epistemology, and ontology; timeless logical, epistemological, and ontological principles alone cannot explain the features and workings of forensic proof at a particular time in a particular place. It is necessary to consider empirical fact and historical contingency. But a meaningful description of modern forensic proof – a description or account that amounts to more than a stultifying and largely-useless catalogue of contingent facts – cannot be constructed without reference to (valid) principles of logic, epistemology, and ontology. A meaningful account of proof in modern trials must rest on the interplay of timeless necessity and historical contingency – on the interplay of logic, epistemology, and ontology, on the one hand, and historical contingency, on the other hand.

In some instances the interplay of historically contingent matters and timeless necessities generates almost ineluctable implications for any system of forensic proof. For example, if a society or legal system values truthfinding to some degree, it is practically certain that (i) truthfinding cannot be the only objective of a trial (or any other legal proceeding) and (ii) the amount of time and resources that can devoted to truthfinding is limited rather than unlimited. Given the modern understanding of the character of human factual knowledge, it is almost equally certain that forensic proof can only aspire to produce probable knowledge. Furthermore, given the modern understanding of human cognition, it is practically certain that a society or legal system cannot and will not provide any legal actor (e.g., a judge, juror, or investigator) with an exhaustive set of explicit principles or rules for arriving at an optimal assessment of the probability of the truth or falsity of a factual hypothesis. (No one should expect that any legal system, whether in the near or distant future, will or can use a fully-autonomous robot or procedure to assess evidence.)

The interplay of historical contingency and timeless necessity generates further implications, many of which are little more than hints but are nevertheless useful and important. For example, the American system of forensic proof has the following striking features (among others): (i) extensive pretrial and prelitigation gathering, marshaling, and preparation of evidence; (ii) the gathering and submission of large quantities of small slivers of evidence; (iii) party domination of pretrial and trial evidentiary processes; (iv) extensive argument about evidence; and (v) the use of stories in argument about evidence. These features of American proof suggest (but do not prove) that American society or its legal system embraces the following plausible propositions – and these features of American proof suggest that the following propositions have considerable merit: (i) the deliberate search for and acquisition of relevant evidence generally improves the quality of decision making about the truth or falsity of uncertain facts; (ii) the quality of factfinding is better if there are collections of relevant fine-grained evidence than if the only available evidence is relatively coarse and undifferentiated; (iii) the quality of factfinding in adjudication depends on the quality of preadjudication evidentiary processes, and the quality of preadjudication evidentiary processes in turn depends on exploration of an “adequate” number of factual possibilities; (iv) rational argument about evidence is both possible and helpful; and (v) rational assessment of evidence requires synthesis – “holistic” thinking – as well as “analysis,” the dissection of clusters of evidence into parts. (If these last five propositions about the workings of inference seem self-evident to you, this may show that you have good sense – or that you have become acculturated into certain ways of thinking. In either case, such a reaction to the five propositions shows or suggests that the bramble-bush of real-world evidentiary processes is a good or essential source of insights into factual inference.)

The argument sketched above rests in part on the following two premises (for which support is available and some is adduced): (i) the human animal is an evolving intelligent organism and (ii) the human animal uses, should use, and must use both explicit and tacit methods of calculation and deliberation.

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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.

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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.

The institutional sponsors of the conference are the Technical University of Munich, the University of Munich, the European University Institute, and Yeshiva University (Cardozo Law School).

The program committee consists of Rainhard Z. BENGEZ (chair), TU Muenchen, Germany; Giovanni SARTOR, European University Institute; Lothar PHILIPPS, University of Munich, Germany; Alessandro SERPE, Federico II University of Naples, Italy; New University of Lisbon, Portugal; Peter TILLERS, Cardozo School of Law, Yeshiva University, USA; Fu Ching WANG, National Yunlin University of Science & Technology, Taiwan.

Depending on the willingness or unwillingness of certain donors and sponsors to contribute money for food, there may or may not be a modest registration fee to help pay for refreshments, lunches, and a dinner. Inexpensive hotel accommodations are available close to EUI.

If you are interested in taking part in this conference, please get in touch with me at peter@tillers.net or Rainhard Bengez at bengez@cvl-a.tum.de

A more formal call for papers will be distributed later.

_____________________________________________________ Draft conference description largely prepared by Rainhard Bengez: 2nd International Conference on
On Proportionality and Justice – Quantitative Aspects of Justice and Fairness

Objectives:

The conference aims to develop a road map and interdisciplinary discussion for social action concerning ethical, legal, and social demands in a multicultural and globalized society characterized by accelerating technological development. Consideration will be given to national and global societal spheres (e.g., aging populations in and mass migrations to highly developed countries) and to the needs of and necessary challenges for law. Furthermore, we wish to explore and narrow the gap between the special role of individuals and quantification in complex and dynamic social systems.

Key words: justice; quantification; probability; international law; compensation; proportionality; deduction; individual dignity, decision making, and responsibility

Conference duration and venue: two days (February 2011), European University Institute, Florence, Italy

Intention:

Institutions and rules are without doubt important social instruments for the standardization of the action options of a community, to regulate living together in a community, and ensure a community's existence and prosperity. But in societies experiencing dramatic demographic change (on the one hand, aging populations in industrial nations combined with accelerating inflows of migrants with diverse cultural background; on the other hand, rapid population growth in developing countries and the increasing role of transitional economies in the structure of the globalization), it is questionable whether existing institutional arrangements and incremental (over)adjustments alone can stabilize and secure social security systems.

As a result of the increasing degree of mechanization and international linkage, various dependencies arise. They lead to more varied and complex (nonlinear) social systems in the form of pluralistic, multi-ethnic, and multi-cultural communities. Nobody knows how to meet the coming challenges of such social systems with fixed rules or rigid institutions. Tensions arising from scarcity of water, scarcity of territory (especially arable land), competition for raw materials, and the risk of environmental harms and catastrophes magnify the potential for conflict. In today's world such tensions cannot be adequately addressed with fixed rules or with slow-acting institutions because in today's world the matters that produce such tensions no longer have an exclusively linear character.

There is a need for an increased emphasis on the individual as a relevant factor and actor – an individual that can act and intervene according its origin, its education, and its own perceptions. In the end, the individual is the entity that is responsible for interpretation and implementation, and the individual is thus a relevant and crucial factor and actor in each human community. Trite but true: rules and institutions do nothing by themselves!

There is also a need for a jurisprudence that accompanies, regulates, and makes possible the living together of most different humans in a cultural and a society system. Historically seen, our culture coined its beginning in Mesopotamia and in the Greek city states. We observe, not only in the Codex Hammurabi and its successors, but also in religious writings, a substitution of the measure of punishment by material compensation – and thus an improvement in the understanding of the meaning of human soundness and of the meaning of life. (Of course, there were backward steps, but the forward tendency is clear.) Over time different quantitative moral benchmarks (e.g., Aristotelian tradition vs. Jewish tradition) emerged for the valuation of fractional shares of inheritances, gifts, real property, and similar matters. It can be shown however, that all of these methods conform to a common minimum system. This minimum system is recognized in a variety of cultures as a necessary basis for fairness. This minimum system can be formalized and then be used to address a variety of contemporary problems.

Jurisprudence has dealt with quantities since time immemorial. A formal (minimum) similarity can be worked out not only between the Jewish and Greek legal traditions, but also between the approaches in Greek and the Indian cultures. I think here of the parallel development of the beginnings of the formal (grammatical) logic from the right figure of the Tetraktis, and the Buddhist catushkoti (Nagarjuna).

Today‘s problems often require the use of complex stochastic analysis, which goes far beyond intuitive thinking. Examples of two such problems are genetic tests and the pricing of stock options. What contemporary problems arise from the increasing use of autonomous or semi-autonomous systems (e.g., questions of debt and appreciation), which problems involve consideration of the possibilities of the biotechnology, and which problems confront us with new global economic stakeholders and options? How can we map these problems and questions into our society to ensure their appropriate continuous development? A large challenge, particularly for jurisprudence.

This conference aims not only to raise issues and to increase sensitivity to certain problems, but also to identify pertinent tendencies, to work out their meaning, and to recognize and honor the role of the individual in the context of social decisions and actions. Thus we see ourselves in the tradition of the enlightenment and pragmatism.

Quantification promotes not only comprehensibility, but also communication between cultures and states (i.e., between social systems) and between disciplines.

The involvement of technical disciplines in this conference is designed not only to increase mutual sensitivity, but also to show where specialized knowledge and technical sciences are already assumed in myths and traditions.

The first conference in January 2010 was directed against the trend toward institutionalization in society and it accentuated the role of the individual and the meaning of quantification. It also stressed the different ways in which “justice” and “fairness” are used in argument. That conference was sponsored by TU München and the Ludwig-Maximilians-Universität Munich. Both are among Germany’s “excellence universities.” The TUM is Germany’s best university according to QA World University ranking.

The conference participants will address questions such as the following:

Gosh, those new diagnostic guidelines had better not be adopted! We don't want to double or treble the number of people who have Alzheimer's, do we?

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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.

Is a time line illustrative evidence? Walter Witness testifies, "I have drawn a little chart to illustrate my testimony about the order in which things happened between David and the clerk."

Is a time line simply testimonial evidence? Walter Witness, in response to a question about the order of events between David and the clerk, testifies, "I'm not very good with words. But I was there and I can draw you a picture or sketch of the order in which things happened. Do you want to see my little sketch?"

Is a time line scientific evidence? Expert Knowledge testifies, "I subjected the videotape to microscopic analysis; I literally used a microscope -- and a sound amplifier -- to study the videotape. This chart shows what the clerk said and what David said and the order in which they spoke."

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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.

"Spindle Law is unlike any research method you learned in school. To me, it is a backwards (read: totally intuitive) way of drilling into legal rules and finding the authorities to support them."

So writes Laura Bergus on July 13, 2010.

Go here to read the rest of the review at Lawyerist.com.

More important: Get creative and boost your career by posting to Spindle Law.

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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.

P. Tillers in 1A Wigmore on Evidence Section 54.1 (P. Tillers rev. 1983):

The prohibition against "character evidence" is one of the great enigmas of the law of evidence. The practical implications of the rule are complex and convoluted. The theoretical underpinnings of the rule are obscure. The historical origins of the rule are poorly understood.

A variety of explanations have been given for the ban against character evidence. They include: (1) Character evidence has little probative value; (2) character evidence diverts the jury's attention from the merits of the case by inducing it to punish or reward a party for being good or bad in general; (3) in legal proceedings, adverse character evidence saddles a person with disabilities because of prior misconduct; (4) character evidence violates a social commitment to the thesis that each person remains mentally free and autonomous at every point in his life; and (5) the ban against character evidence is a (senseless) product of history.

As an explanation for the existence of the rule against character evidence as a real social phenomenon, all of these reasons for the rule are probably pertinent. However, these reasons are not entirely adequate if one supposes that there is a rational basis for the prohibition against character evidence. Some of the reasons seem palpably false in some situations. (Thus, for example, most observers think that the prior criminal activity of an accused may have significant probative value in a criminal prosecution.) Some of the reasons given seem insufficient to describe the present scope of the rule. (Thus, for example, the danger of prejudice to the parties does not explain the use of the character evidence rule in relation to the conduct of nonparties.) Other explanations seem inconsistent with the settled limitations on the scope of the rule. (Thus, for example, it is difficult to reconcile the admissibility of habit evidence with the premise that the rule generally affirms the principle of autonomy.) In the light of these problems, the effort to explain the justification for the ban on character evidence seems to require a multivariate explanation; different policies or reasons are invoked to explain and justify different aspects of the ban on character evidence, and the search for a comprehensive justificatory theory is abandoned. However, this course of action also presents various perils. Thus, for example, an emphasis on the importance of the reliability of evidence often seems to conflict with the emphasis on affirming human autonomy. Furthermore, if the justifications for the rule are regarded as purposes that must inform the interpretation of the rule, the fixity of the rule itself tends to dissolve and to become replaced by the purposive analysis. The problem of rule fluidity is aggravated because there is no consensus on the amount of weight to be assigned to the various reasons that function as interpretive devices.

The usual black-letter description of the character evidence rule found in the literature and in codes today does not expressly reflect any ofthese various purposes but simply asserts that it is improper for a trier of fact to determine what a person did on a particular occasion by asking and answering the question of whether that person has the sort of disposition that would incline him toward the doing or not-doing of that act. Phrased in this way, the rule seems at first sight to have a wide ambit.

Modern analysis, however, gives the character evidence rule a relatively restricted meaning. It is generally said that the propensity rule does not forbid any use of evidence that reflects badly on the character of a person, and there is no such prohibition even when it happens that the acts of the person shown are not those that are our ultimate concern in the lawsuit in question but serve only as a basis for ascertaining some other matter of fact that does happen to be of more immediate concern. The rule against character evidence, it is thought, prohibits the use of evidence that reflects on the character of a person when and only when that evidence is offered in order to show that the person acted in a certain way on a particular occasion because he had a propensity or inclination to act that way. If the evidence that reflects badly on the character of a person is offered for any other purpose, it does not offend the prohibition against the use of character evidence.

It is difficult, in the abstract, to quibble with this interpretation of the meaning of the rule against character evidence. In practice, however, this interpretation of the scope of the rule offers many opportunities for its evisceration. The first opportunity arises because of the principle of multiple admissibility (see § 13 supra). To the extent that cautionary instructions are not effective in guarding against improper use by a jury of evidence offered for a limited purpose, the ban on the use of character evidence is not complete as a practical matter. The issue then becomes what sort of balance should be used to weigh the legitimate probative importance of the evidence against the danger of its improper use by the jury and how effectively trial judges use their authority to exclude for undue prejudice to regulate the danger of prejudice when persistent advocates do their utmost to find a legitimate basis for the admission of evidence reflecting badly on character and to persuade the court that the dangers of prejudice are outweighed by the legitimate benefits of the evidence.

Whether the principle of multiple admissibility and the manner of its application result in an effective subversion of the ban on character evidence is not a question that can be addressed usefully in these preliminary remarks. That problem requires attention to the specific workings of the rule in particular contexts. Matters stand quite differently, however, with respect to the second major path to the evasion of the ban against character evidence; this is because the second type of method of evisceration involves the question of whether or not, as an abstract matter, the uses of evidence for certain express purposes are analytically equivalent to improper use of character evidence. We briefly discuss this question next.

The character evidence rule, as now understood, prohibits any effort to introduce evidence of the propensity of a person to show a doing or not-doing of an act in accord with that propensity. The ban does not apply, however, when that same evidence is offered for another purpose. In reliance on this theory, it is often said that there is no violation of the propensity rule when evidence is offered to show matters such as intent and accident because such facta probanda do not amount to acts by the person involved. This type of theorizing, however, may emasculate the rule because it is possible that some of these entities or things ("intent," "accident," and the like) in effect amount to acts of a person (in some circumstances) and hence it is possible that in these situations evidence of propensity is indeed being admitted to show an act in conformity with that propensity.[fn1] In short, in some instances we may disguise character evidence as noncharacter evidence by arbitrarily calling what is really an act by some other name. Another analytical maneuver, similar in nature, attacks the character evidence rule at the other end by denying that disposition is disposition but is something else, such as habit. If done, this maneuver is equally potent, though perhaps not equal in its capacity to disguise and deceive.

The extent to which the analytical maneuvers described above do indeed take place — viz., the extent to which the character evidence rule is eviscerated by such deceptive naming — is discussed in detail in the various portions of this volume of the Treatise that deal with various aspects of that rule. Those discussions and reflections have led the reviser to conclude that the sort of analytical evisceration suggested here does indeed occur on a large scale. Why? In our discussions of detailed aspects of the character evidence rule, we survey various efforts to make the necessary distinctions in terms of relevancy and reliability rationales, but on the whole we find such explanations inadequate. In our own view, the windings and twistings of the character evidence rule and its various exceptions are largely without rational explanation because those windings and twistings reflect a halfhearted and unprincipled compromise between an interest in truthseeking and a belief that we should not judge people or their acts by their character.

The compromise the law makes is unprincipled because the degree to which we depart from the prohibition on evidence of character for the sake of truthseeking is not explicable in terms of truthseeking. (Refusal by some courts to even acknowledge the extent of the effective repudiation of the character evidence rule is surely the most unprincipled compromise of all; this compromise may be fairly described as hypocritical.) The official hypocrisy in which we engage as a society may be powerfully assisted, to be sure, by a dawning but still dim awareness that the distinction we ordinarily draw between character, on the one hand, and other qualities of human beings (shortness, left-handedness, mental agility), on the other hand, lacks intellectual coherence when viewed in a broad perspective since it is possible that we can no longer draw a meaningful moral or ethical distinction between the influence of each of these two types of factors on the probability of an act by a person.(Arguably, either type of evidence is equally offensive — or inoffensive — to human dignity because such evidence implies that a person does not in each situation stand as an entirely free actor.) However, if this is the intellectual difficulty that generates the largely senseless meanderings of the character evidence rule, we should openly confront the question and resolve it as best we can. Otherwise, the courts are doomed to continue their often inadvertently hypocritical efforts to make sense out of nonsense.[fn2]

[fn1] The most notable example of the effective evasion of the rule against character evidence is the exception made when evidence that is otherwise character evidence is offered to establish the actor's "intent." Not infrequently, evidence of a criminal defendant's prior wrongful propensities, at times and on occasions unrelated to the crime with which the defendant is charged, is offered to show that the defendant probably had the legally required wrongful intent at the time of the commission of the crime. See §§ 300 through 373 infra. It is often most difficult to understand in what sense it may be said that the use of this type of evidence does not constitute the use of a propensity to show that the defendant probably committed the crime charged. See, e.g., Marshall v. Commonwealth, 482 S.W.2d 765 (Ky.Ct.App. 1972) (court struck down attempt of prosecutor to justify use of defendants' prior criminal record on theory that record showed defendants' intent to commit the burglary charged; court viewed prosecutor's action as an attempt to show that defendants were the types of persons who are inclined to commit burglary).

In Vanlue v. State, 87 Wis. 2d 455, 275 N.W.2d 115 (Wis.Ct.App. 1978), reversed, 96 Wis. 2d 81, 291 N.W.2d 467 (1980), involving the charge of possession of burglarious tools, the Wisconsin Court of Appeals said:

"The State contends that the evidence of two prior burglary convictions was relevant to show intent and therefore admissible under sec. 904.04(2). The State's theory is that since the defendant has previously been convicted of burglary, he had knowledge of what tools were necessary or could be used in a burglary. This knowledge, the State claims, tends to show that the defendant had the intent to possess tools to be used in a burglary. The State further contends that the probative value of this evidence was not outweighed by its prejudicial effect. Therefore, it was not excludable under sec. 904.03, Stats. We disagree with the State's position.

"Section 904.04(2), Stats., provides:

'(2) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.'

"Essentially, the State is arguing that the burglary convictions were relevant because they tended to prove that the defendant was acting in conformity with past behavior. This is precisely the type of evidence which is inadmissible under sec. 904.04(2). The State's claim that the evidence was admitted for the purpose of showing intent, not character, is fiction. The only relevance this evidence had was to show that he was guilty of possession of burglarious tools because he had committed burglary before and was about to do it again. This evidence in no way shows intent but only character as defined in sec. 904.04(2). To rule that this evidence is admissible under sec. 904.04(2) would essentially nullify the language in that section which provides that '[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.' When the Supreme Court adopted sec. 904.04(2), they intended it to have some meaning. If evidence of the nature of the crimes in this case is admissible, sec. 904.04(2) has no meaning.

"Since we hold that the evidence of the nature of prior convictions in this case was inadmissible, we need not determine whether its probative value was outweighed by its prejudicial effect" (275 N.W.2d at 117-118).

The Supreme Court of Wisconsin reversed the judgment of the Wisconsin Court of Appeals and ordered reinstatement of Vanlue's conviction. Vanlue v. State, 96 Wis. 2d 81, 291 N.W.2d 467 (1980). In doing so, it said:

"The evidence in question bears directly on one of the elements of the crime of possession of burglarious tools — intent. Mere possession of a crowbar and a pocket knife, along with a pillow case and a pair of gloves, is not a violation of sec. 943.12, Stats. Before possession of such tools is a crime under the provisions of sec. 943.12, it must be proven that the possession was `with intent to use such device or instrumentality to break into a depository, building or room.' Evidence that the defendant had been convicted of burglaries in the past is relevant to the intent element, when supported by the time and place of his arrest, because it makes it more probable than it would be without the evidence that the defendant possessed the tools with the requisite intent to use them to commit a burglary. Because the defendant had previously been convicted of burglary, he had knowledge of what tools were necessary or could be used in a burglary.

"Because evidence of prior burglary convictions was relevant to intent and was not sought to be introduced as proof of the character of the defendant in order to show that he acted in conformity therewith, it was admissible under sec. 904.04(2), Stats. . . .

"This court has held that other crimes evidence is admissible as proof of intent under the provisions of sec. 904.04(2), Stats. See: Simpson v. State, 83 Wis. 2d 494, 510, 266 N.W.2d 270 (1978); Peasley v. State, 83 Wis. 2d 224, 233, 265 N.W.2d 506 (1978); King v. State, 75 Wis. 2d 26, 43-45, 248 N.W.2d 458 (1977). In Peasley v. State, supra, this court held in a prosecution for delivery of LSD and possession with intent to deliver cocaine, that evidence relating to the defendant's prior drug sales activities was admissible as evidence of his intent to deliver cocaine.

"It has been held in other jurisdictions that in a prosecution for possession of burglarious tools, in order to prove the general burglarious intent of the defendant, evidence is admissible which shows the defendant's prior convictions of burglary and larceny, State v. Caldrone, 202 Kan. 651, 451 P.2d 205 (1969); State v. Caldrone, 205 Kan. 828, 473 P.2d 66 (1970), cert. den. 401 U.S. 916, 91 S. Ct. 896, 27 L. Ed. 2d 817 (1971); defendant's prior convictions of burglary, State v. Young, 425 S.W.2d 177 (Mo. 1968); defendant's prior convictions for automobile theft and grand larceny, State v. Medley, 360 Mo. 1032, 232 S.W.2d 519 (1950), cert. den. 340 U.S. 956, 71 S. Ct. 568, 95 L. Ed. 689 (1951); defendant's prior conviction of bank robbery, State v. Watson, 386 S.W.2d 24 (Mo. 1964); defendant's prior conviction of attempted larceny. State v. Jerrel, 200 Kan. 415, 436 P.2d 973 (1968); defendant's commission of recent burglaries, State v. Olsen, 43 Wash. 2d 726, 263 P.2d 824 (1958); Fennen v. Commonwealth, 240 Ky. 530, 42 S.W.2d 744 (1931); that the defendant is a burglar, State v. Watson, supra; People v. Jefferson, 161 Mich. 621, 126 N.W. 829 (1910); and that the defendant associated with burglars, State v. Lorts, 269 S.W.2d 88 (Mo. 1954). See also: State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938 (1935), and 1 Op. Atty. Gen. 174 (1912), where the attorney general stated that in the trial of a defendant for possession of burglarious tools, it could be shown that the defendant committed and was convicted of burglary once before, to show his knowledge of the nature of the tools and his intent to use them.

"In Hansen v. State, 64 Wis. 2d 541, 546, 219 N.W.2d 246, 249 (1974), this court considered the elements that must be proven in order to convict a person of a violation of sec. 943.12, Stats, In considering the element of intent this court stated:

"`. . . It has been recognized by this court that: "`"Intent is a state of mind existing at the time a person commits an offense. If intent required definite and substantive proof, it would be almost impossible to convict, absent facts disclosing a culmination of the intent. The mind of an alleged offender, however, may be read from his acts, conduct, and inferences fairly deducible from all the circumstances"'"'" (291 N.W.2d at 469-470).

Justice Abrahamson, dissenting from the judgment of the Wisconsin Supreme Court in Vanlue, said:

"I am persuaded, as was the court of appeals, that the use of the evidence of prior convictions in the case at bar tended to prove character, not intent. . . .

"In the other cases from four states cited by the majority on page 470 of its opinion as allowing evidence of prior conviction, the convictions were based on more evidence than the possession of tools and a prior conviction. In most of the cases, either the defendant was connected with a robbery or burglary which occurred shortly before his arrest on the charge of possession of burglarious tools or the defendant had in his possession recently stolen goods.

"In the case at bar, there is no such `other evidence.' There was no reported burglary in the vicinity in which the defendants were arrested. The defendants were not found under circumstances that made it appear that they were about to break into a building. The testimony of the police was that they were called to the scene not to investigate a possible burglary or other similar suspicious circumstances but to investigate the source of loud noises. A police officer testified that it was highly unusual for a burglar to make loud noises before committing the crime. When the defendant and his companion were stopped by the police, they did not attempt to resist arrest, or flee from the scene; they answered the officer's questions, although apparently not always truthfully. Although a fact-finder might have reached a guilty verdict on the basis of these circumstances (compare Hansen v. State, 64 Wis. 2d 541, 219 N.W.2d 246 (1974)) the admission of the evidence of the prior convictions tainted the trial and was prejudicial error. Hart v. State, 75 Wis. 2d 371, 395, 249 N.W.2d 810 (1976)" (291 N.W.2d at 474).

The various exceptions to the character rule used by the courts cause the rule to operate as a barrier to admissibility to approximately the same extent that wire mesh operates as a barrier to the flow of water. See, e.g., Smith v. State, 587 S.W.2d 50, 53 (Ark.Ct.App. 1979) (conviction for violation of Arkansas Securities Act):

"Appellant next claims the trial court erred in allowing testimony covering prior dealings involving stock transactions defendant had with other individuals. In admitting testimony of this kind, the court has two criteria as a guide. The previous conduct must not be too remote from the offense charged and it must be similar in nature to the offense charged. When such evidence is admitted it must be accompanied by a limiting instruction which the court in this case gave. Appellant does not question the instruction given and does not raise the question of the similarity of acts, but does claim that the other similar acts were too remote. He contends that in Carter v. United States, 8 Cir., 549 F.2d 77 (1977) the court held the only evidence of other crimes permissible under Rule 404(b) is where they are in immediate context or res gestae of the offense on trial. While the court in Carter did recognize the res gestae rule, it did so by expanding Rule 404, not limiting it. See 41 ALR Fed. 515. The case of Gary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976) made it clear the matter of remoteness is addressed to the sound judicial discretion of a trial judge, which will be interfered with by a reviewing court only when it is clear the questioned evidence has no connection with the case. Caton v. State, 252 Ark. 420, 479 S.W.2d 537 (1972). The court in People v. Dunn, 40 Cal. App. 2d 6, 104 P.2d 119 cert. den. 311 U.S. 701, 61 S. Ct. 139, 85 L. Ed. 454 (1940), found that five years between acts was not too remote.

"Evidence of similar offenses has been admitted in violations of state security laws in other jurisdictions for the purpose of showing a common scheme or plan. People v. Dutton, 41 Cal. App. 2d 866, 107 P.2d 937 (1940).

"We hold the evidence of other prior similar transactions involving the offer and sale of securities by appellant was properly admitted to show habit and practice of Smith and Memphis Mobile Telephone, operated by Smith, in the normal course of business. Tolbert v. State, 244 Ark. 1067, 428 S.W.2d 264 (1968); Wilson v. State, 184 Ark. 119, 41 S.W.2d 764 (1931); and McGhee v. State, 214 Ark. 221, 215 S.W.2d 135 (1948). It was also properly admitted to show a common scheme, plan and course of dealing by appellant. Kerby v. State, 233 Ark. 8, 342 S.W.2d 412 (1961)."

Additional examples of questionable decisions of this sort may be found in § 57, note 3, infra as well as in §§ 300 through 373 infra.

This is not the place for an extended excursus on the intent exception to the character evidence rule (such a discussion may be found in §§ 300 through 373), but it may be noted that the judicial decisions construing the intent exception are plagued by a misunderstanding that seems to afflict much of the interpretation of other exceptions to the character evidence rule. Many courts seem to take the view that "intent" and "conduct" are mutually exclusive categories. They reason: The evidence is offered to show intent; therefore, it is not offered to show conduct; and therefore the use of the evidence does not violate the character evidence rule (because the character evidence rule only extends to the use of character to show conduct on a particular occasion in conformity with the character shown). In fact, however, it must be questioned whether intent and conduct are always mutually exclusive categories, and it must be said that some forms of intent amount to conduct. (In many instances, for example, the mens rea necessary for conviction of a particular crime does not merely refer to a state of awareness or state of mind at the time of the crime but refers also to a particular type of decision by the actor charged with crime. Thus, for example, in most jurisdictions a person may be convicted of first degree murder only if he made a decision to kill at some time before he actually did the killing, and criminal liability for first degree murder, and probably also for intent-to-kill murder of the second degree, probably presupposes that the actor's decision to kill precipitated a chain of events that resulted in the death charged.)

It is difficult to understand what the character evidence rule may possibly mean if it does not apply to "mental acts," for the character evidence rule, in its paradigmatic form, reaches facta probanda that are voluntary acts rather than involuntary ones, viz., it is designed to prohibit proof that a person voluntarily and deliberately decided to do an act charged because he had a disposition to do that act. The character evidence rule may reach other types of acts as well, although this remains a matter of debate. But it has always been assumed that the character evidence rule applies most clearly when the effort is made to use propensity evidence to prove the doing of a deliberate act on a specific occasion, for the precise point of the rule may well be that we should assume that acts on specific occasions are based on a specific and unique decision to act in a particular way in particular circumstances and that we should not assume that such acts are instead the result of proclivities, tendencies, dispositions, or character traits. See, e.g., State v. Rives, 193 La. 186, 190 So. 374, 378 (1939) (theft of cows; evidence concerning prior theft of cows admitted at trial; held, reversible error): "[O]rdinarily, as an independent proposition in prosecutions of such offenses, the State must stand or fall upon facts and circumstances surrounding the particular case under investigation.

"As to the suggestion that the testimony was admissible in order to show that defendant `had a mind bent on doing mischief,' no further comment is necessary than to say that it is an elementary rule of criminal procedure that the State is not permitted to introduce in evidence the character of an accused unless and until the accused puts in evidence his character and thereby opens the door. At the time this testimony was introduced, the accused had not taken the stand and had offered no testimony at all. At that stage of the trial the State had no right to show by any kind of testimony that the accused `had a mind bent on doing mischief.'

"As stated by Wharton in his work on Criminal Evidence: `A man cannot be convicted of crime because he is a bad man generally or has committed other crimes for which he has not been punished.'"

The type of problem presented by the intent exception to the character evidence rule is not unique. The exceptions made for matters such as motive often have equally severe, if less palpable, corrosive effects. How this evisceration of the rule against propensity evidence happens is examined in the discussion of the various exceptions to the propensity rule and is not set forth further here.

[fn2] A valiant effort to make general sense out of general nonsense is found in an unlikely place — a Nutshell. See Rothstein, Evidence: State and Federal Rules 351-372 (1981). In the course of his explanation, Professor Rothstein places considerable emphasis on the sense in which the ban on character evidence is designed (at least in some cases) largely to prevent the admission of character evidence that casts imputations of bad character on the individual in question. This emphasis, while not sufficient to explain all of the workings of the rule, has considerable merit as an explanatory device, notwithstanding the fact that the character evidence rule as now generally codified and described does not expressly restrict the scope of the ban on character evidence to cases in which the disposition shown has an adverse social or moral connotation. See rules and statutes gathered in § 57, note 3, infra. In the end, however, Professor Rothstein rather openly acknowledges that many so-called exceptions to the character evidence rule cannot be regarded as anything other than a limited repudiation of the rule. He seems to take the view that such repudiation generally occurs when the probative value of the character evidence happens to be the greatest. While we are inclined to agree that the interest in truth places pressure on adherence to the character evidence rule, we do not believe that the manner of its repudiation is clearly explained by reference to degrees of probative value; we take the view that the character evidence rule, quite haphazardly, leads to the exclusion of much evidence whose probative value equals or exceeds the probative value of various types of character evidence that is admitted by means of a number of conceptual stratagems.

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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.

It's time to celebrate my 1,000th blog post. I have been blogging since 2002. So I have some bragging rights -- among legal academics in any event (who, admittedly, are weak-kneed competitors). So I boastfully report my 5,000,000+ Google hits (see above). But I admit that this number is quite meaningless; some quirk in the way that Google reports hits accounts for it. Which just goes to prove that just because you use numbers doesn't prove that you've proved anything at all.

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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.

Credit: European Space Agency: C Carreau

Awesome is the only word to describe Rosetta's journey to an asteroid 500,000 kilometers away. (Rosetta is, to use old-fashioned locution, a rocket-ship.) Apart from the thought of a remote speck in the solar system, think of the astounding inferential ability it took to make Rosetta pass within 2,000 miles of the asteroid that is imaginatively pictured above. (The photo images, we are told, will come later. They have to be processed.) Who was it that said that inference is just a shell game, entirely a matter of subjective conceptual prejudice? Ask such folks to explain how Rosetta got to where it did -- and is managing to send back pictures to earth.

The choice of "Rosetta" as the name of the rocket-ship was inspired -- even though it is not yet clear that Rosetta will unlock a significant amount of basic information about our universe. But who really cares? Ah, the romance of it all!

Photo credit: ESA/Max Planck Institute for Solar System Research for OSIRIS Team MPS/UPD/LAM/IAA/RSSD/INTA/UPM/DASP/IDA

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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.

Now suppose those who wrote in to me had been asked when they were young if they were satisfied with the instruction they were receiving? Were they getting their money’s worth? Would they recommend the renewal of their teachers’ contracts? I suspect the answers would have been "no," "no," and “no,” and if their answers had been taken seriously and the curriculum they felt oppressed by had been altered accordingly, they would not have had the rich intellectual lives they now happily report, or acquired some of the skills that have stood them in good stead all these years.

The relationship between present action and the judgment of value is different in other contexts. If a waiter asks me, "Was everything to your taste, sir?", I am in a position to answer him authoritatively (if I choose to). When I pick up my shirt from the dry cleaner, I immediately know whether the offending spot has been removed. But when, as a student, I exit from a class or even from an entire course, it may be years before I know whether I got my money’s worth, and that goes both ways. A course I absolutely loved may turn out be worthless because the instructor substituted wit and showmanship for an explanation of basic concepts. And a course that left me feeling confused and convinced I had learned very little might turn out to have planted seeds that later grew into mighty trees of understanding.

"Deferred judgment" or "judgment in the fullness of time" seems to be appropriate to the evaluation of teaching.

And that is why student evaluations (against which I have inveighed since I first saw them in the ’60s) are all wrong as a way of assessing teaching performance: they measure present satisfaction in relation to a set of expectations that may have little to do with the deep efficacy of learning. Students tend to like everything neatly laid out; they want to know exactly where they are; they don’t welcome the introduction of multiple perspectives, especially when no master perspective reconciles them; they want the answers.

But sometimes (although not always) effective teaching involves the deliberate inducing of confusion, the withholding of clarity, the refusal to provide answers; sometimes a class or an entire semester is spent being taken down various garden paths leading to dead ends that require inquiry to begin all over again, with the same discombobulating result; sometimes your expectations have been systematically disappointed. And sometimes that disappointment, while extremely annoying at the moment, is the sign that you’ve just been the beneficiary of a great course, although you may not realize it for decades.When I was an undergraduate law student at Harvard, many students complained about Lon Fuller: They said he was a bad teacher. I suspect he was a great teacher.

I had more than 40 students in my seminar in fact investigation last semester. Does that prove I am a great teacher of fact investigation? No. (But I have other reasons for thinking I'm not bad at it.)&&&

The dynamic evidence page

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

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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.

[T]he ... question "Is x a crime?" reflects a fairly Western view of the law as a well-defined set of rules, the parameters of which people can know in advance in order to conduct themselves accordingly. However, there is a Confucian saying that is sometimes interpreted as "The people do not need to know the law, but they should be made to obey it." This adage was a watchword of the Tokugawa Shogunate, whose philosophy of government was based in part on neo-Confucian principles.

It is also a saying that could provide some insights into why it sometimes seems difficult to get a clear answer about what exactly the law is in modern Japan. I am not suggesting that Japanese police and prosecutors have Confucian platitudes hanging framed over their desks, but knowing the law is a source of power. Being able to say what the law means is an even greater one, particularly if you can do so without being challenged. In a way, clearly defined criminal laws bind authority as much as they bind the people, by limiting the situations in which authorities can act. Since law enforcement in Japan often seems directed primarily at "keeping the peace," laws that are flexible are more likely to serve this goal.

For example, on the subject of abduction of a minor, Article 224 of Japan's Penal Code says simply that: "A person who kidnaps a minor by force or enticement shall be punished by imprisonment with work for not less than 3 months but not more than 7 years." Article 226, a human trafficking statute that has been used to convict foreigners for abducting their own children, just says: "A person who kidnaps another by force or enticement for the purpose of transporting another from one country to another country shall be punished by imprisonment with work for a definite term of not less than 2 years."

Since neither of these is very specific, an American lawyer would probably try to learn how the terms "kidnap," "force" and "enticement" had been interpreted in prior cases. However, in Japan there is a significant hurdle to doing so: Except for those cases published in official court reporter volumes or otherwise circulated, the judgments and other records of criminal cases are by law a type of state secret, maintained by the prosecutors (not the courts!) and unavailable to the public. "Protection of privacy" is the given reason, but it also has the effect of making it very difficult for scholars or other legal system outsiders to understand the criminal law with greater specificity.

[snip, snip]

Japan, like other countries, has any number of laws that are unknown, unenforced or otherwise subverted. ...

The authorities and the people alike can probably live with this state of affairs if it preserves some sort of order. Yet it creates an environment in which people may habitually engage in behavior they think is perfectly normal (because everyone else is doing it) but which is actually a crime, for which they can be arrested and prosecuted if the authorities need a reason to do so.

Ever had a beer then hopped on your bicycle? You are drunk driving — a criminal offense. ... What is a fair interpretation of the law is irrelevant once the issue becomes one of you vs. authority, because authority must win.

Foreign visitors to Japan often comment on how polite the Japanese people are, but little do they know that it is actually against the law to be rude. Under Article 231 of the Penal Code it is a crime to "insult another person in public." It would be tempting to dismiss this as a quaint remnant of the Code's Meiji roots (it was enacted in 1907 and written in classical Japanese until 1995). However, several years ago a man was arrested for calling a woman "fat" in a bar. He was also detained for 29 days for this infraction. ...

Examples of seemingly strained applications of criminal statutes abound. There is the man who was prosecuted for "dangerous driving resulting in death" when two high school cyclists plowed into his illegally parked, unoccupied car; .... Another man was arrested for trademark infringement for creating a T-shirt design featuring a man holding a gun to a silhouette of the National Police Agency mascot. ...

A common theme in most of the above cases is that police or prosecutors may have had an institutional reason for wanting to make an arrest. The man prosecuted for dangerously driving a car he was not even in had parked in an area where the police had been making a show of enforcing parking regulations. The man arrested for calling someone "fat" was a local politician, so who knows what issues he might have had with the local constabulary. ...

[snip, snip]

That law enforcement officials use the law to their own advantage — interpreted creatively if necessary — is hardly unique to Japan. Where Japan may differ from other countries, however, is that the legal system seems to lack institutions that act as a significant check on such usage. In the United States, for example, federal prosecutors have to convince a grand jury before they can indict anybody. The trial jury system in the United States and other common-law countries provides another opportunity for the citizenry to reject an unreasonable application of the law, or even an unreasonable law itself. In contrast, Japan's prosecutorial review commissions only work in one direction — they cannot stop a prosecution. As for the country's new lay judge system, almost none of the cases discussed above would be serious enough to be eligible for trial by lay judges.

As for the courts themselves, Japan's famously high conviction rate — above 99 percent — is derived in part from judges ratifying virtually all prosecutorial decisions. Almost all of the cases discussed above resulted in guilty verdicts, at least at the initial trial. The insult conviction was ratified by the Supreme Court in 2006. ...

[snip, snip]

While it easy to be critical, other countries arguably have something to learn from Japan's approach to law enforcement and its famously low rate of reported crime. One factor in this equation may be the respect the people have for the authorities that wield the law, as opposed to the black letter of the law itself. At the same time, however, according to Montesquieu, "liberty is the right to do what the law permits." What does it mean, then, when what the law permits — whether it is taking your own children somewhere, rudeness or anything else — is unclear?

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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.

But I am not so sure that the hearsay rule deserves all the scorn that Professor Sklansky heaps upon it. I keep thinking of prisoners in Guantanamo who may be held there on the strength of an absent U.S. soldier's statement that some village elder in Afghanistan told the soldier, through an absent interpreter, that some member of the village had brought the detainee, a goatherd, to the elder after the village member heard, he said, the goatherd say, "I have killed Americans in this holy war." Confrontation aside, is there reason to think that such evidence is likely to be so unreliable that not even a military commission should consider it?But to give Sklansky his due, he does seem to think that a hearsay rule that works largely as a rule of preference makes some sense. But suppose the village elder, the translator, the member of the village, and the goatherd are now all dead -- as a result of the war in Afghanistan.But perhaps Sklansky would approach the goatherd problem by analyzing whether the Guantanamo detainee has an adequate opportunity to challenge the evidence against him. I'm not sure how Sklansky would attack the goatherd problem. Perhaps I will re-read the article in an attempt to find out. (I only skimmed his article and perhaps he addresses my question.)

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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.