33rd / 424th District Courts

"[[T]trial judge] Bortner granted a motion to suppress concerning a page on the MySpace social networking site. There is no proof that defendant Jordan Wallick of York created or maintained the web page, which contains photos of  [murder defendant] Wallick, the judge said in a Friday ruling."
Source: Martha Neil,  Judge OKs Law Student's Dying Decalaration as Evidence, [b]ut Mixes MySpace Page Related to Defendant ABAJournal.com (Oct. 24, 2011).



&&& 
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.

 "TUESDAY is the bicentenary of the birth, in Portsmouth, England, of Charles Dickens, literature’s greatest humanist. We can rejoice that so many of the evils he assailed with his beautiful, ferocious quill — dismal debtors’ prisons, barefoot urchin labor, an indifferent nobility — have happily been reformed into oblivion. But one form of wickedness he decried haunts us still, proud and unrepentant: the lawyer.

"Lawyers appear in 11 of his 15 novels. Some of them even resemble humans. Uriah Heep ('David Copperfield') is a red-eyed cadaver whose 'lank forefinger,' while he reads, makes 'clammy tracks along the page ... like a snail.' Mr. Vholes ('Bleak House'), 'so eager, so bloodless and gaunt,' is 'always looking at the client, as if he were making a lingering meal of him with his eyes.' Most lawyers infest dimly lighted, moldy offices 'like maggots in nuts.' ... "

Source:Joseph Tartakovsky, Dickens v. Lawyers (Op-Ed), NYTimes (Feb. 6, 2012).
I belong to a noble profession.  &&& 
The dynamic evidence page

As I was reading online newspaper articles this morning, an item about David Clohessy, national director of SNAP -- Survivors Network of those Abused by Priests -- caught my attention. It seems that he and SNAP are resisting a court order that he and SNAP disclose communications they may have had, in violation of a gag order, about communications with the press and alleged victims of sexual abuse. This court order, of course, raises First Amendment issues. However, what caught my attention is that the controversy arose out of a civil action in which the plaintiff is apparently relying on the theory of "repressed memory." This is most distressing -- inasmuch it is fairly obvious to any halfway rational person that the theory of repressed & recovered memory is bogus. See, e.g., this article in the Skeptic's Dictionary.
In the underlying civil action the John Doe plaintiff apparently alleges he was abused "in the 1970s." So he allegedly forgot about the sexual abuse for roughly 40 years. Who really believes this sort of stuff? (Well, the Massachusetts Supreme Judicial Court apparently does. Compare this post.)
N.B. SNAP still holds national conventions. (The 2012 convention, SNAP reports, will be in Chicago.) A major focus of such conventions seems to be to encourage victims to come forward. It is possible SNAP's encouragement is a bit too brisk. (One wonders whether in 2020 some person at a SNAP national convention will suddenly remember being abused by a priest in the 1970s. I suppose so!)  &&& 
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.

I have accepted an invitation to serve as one of the editors of the next edition - the 10th edition - of Jack B Weinstein, John H Mansfield, Margaret A Berger (deceased) & Norman Abrams Evidence: Cases and Materials (University Casebook Series) (West Publishing & Foundation Press, updated 9th ed., 1997). This casebook has a distinguished lineage: it is a descendant of the evidence casebook written by James Bradley Thayer in 1892.

I will continue to work with Scott Brewer and Joannes Vinarao-Pilapil on the projected treatise The Structure of Proof in Modern American Trials (Aspen Publishers) (for multivolume set The New Wigmore).  &&&

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.

Like probably every law professor in the U.S., I sometimes wonder if today's entering law students are less well educated than their predecessors were. I think that's why the following item caught my attention: Professor [Philip] Babcock has written extensively about college students’ evolving study habits (or lack thereof) over the last 50 years. He found that in 1961, full-time students spent about 40 hours each week in class and studying. By 2003, they were investing about 27 hours a week. Catherine Rampell, Why Students Leave the Engineering Track, New York Times (online) (Jan. 21, 2012).

This posting might lead you to wonder if Peter Tillers was always an industrious and diligent student in college and law school. Tillers told me he refuses to answer this question here (mainly  because, he said, a full answer answer would have to be nuanced -- and, hence, lengthy). But he did say he believes in redemption and he did tell me he thinks it is impossible to learn how to write, how to do higher mathematics, how to reason about evidence, and so on, without doing a lot of work. He also said to me, "Wisdom does not come easily."


 &&&
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.

In Perry v. New Hampshire No. 10-8974 (Jan. 11, 2012) (8-1; Sotomayor, J., dissenting) the Supreme Court of the United States held that a pretrial identification not conducted by police officers or state agents is not - at least as a general matter - subject to due process scrutiny. This basis for the decision was not  unexpected, even if it was unfortunate.
The Court wrote (footnote omitted):

We have not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers. Petitioner requests that we do so because of the grave risk that mistaken identification will yield a miscarriage of justice.Our decisions, however, turn on the presence of state action and aim to deter police from rigging identification procedures, for example,at a lineup, showup, or photograph array. When no improper law enforcement activity is involved, we hold, it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt. More welcome (as a conceptual or analytical matter) than the Court's flawed view of the requirement of state action was the Court's seeming awareness that the question of reliable or unreliable eyewitness identifications (in criminal cases) cannot readily be distinguished from the question of the reliability or unreliability of other types of evidence. (Such awareness - and perhaps acknowledgment - can be inferred from the Court's brief comparison of eyewitness identifications and testimony by "jailhouse snitches.")

• I think the question of the reliability of eyewitness identifications cannot and should not be separated from the even more general and decisive question of the reliability or unreliability of factual adjudication in criminal cases. 

The ruling in the case leaves open precisely how the Court and lower courts will use the federal due process guarantee to assure a minimum level of fact finding reliability in criminal cases. Although the Court did not speak as clearly as it might have - but when does it or anyone ever do that? - at least the Court made it tolerably clear, if only by means of a negative pregnant, that the guarantee of due process puts some sort of a ceiling on the risk of erroneous factual adjudication in criminal cases: Only when evidence "is so extremely unfair that its admission violates fundamental conceptions of justice," Dowling v. United States, 493 U. S. 342, 352 (1990) (internal quotation marks omitted), have we imposed a constraint tied to the Due Process Clause. See, e.g., Napue v. Illinois, 360 U. S. 264, 269 (1959) (Due process prohibits the State’s 'knowin[g] use [of] false evidence,' because such use violates "any concept of ordered liberty.") What is not clear from this statement and the Court's other pronouncements in the opinion is whether the Court will, in the near future, embrace the proposition that when the risk of fact finding error is so severe as to "shock the conscience" or offend "fundamental conceptions of justice," the due process guarantee can mandate remedies other than the (mere) exclusion of evidence - whether, for example, a criminal trial can be condemned as constitutionally defective because the accused had insufficient resources to mount a defense.

• Statements in the opinion such as the following suggest that support for such an approach will be forthcoming only grudgingly in the near future:

The Constitution, our decisions indicate, protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit.

• Cf.  Justice Thomas' concurring opinion. He would plainly reject the approach I favor.

&&&
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.

An ordinance originally enacted in 1921 provides that on Sunday afternoons it is impermissible to take motor vehicles into the park but that it is permissible to take animals (even large and noisy ones) into the park on Sunday afternoons. (This is very probably a German city such as Munich.)


One fine Sunday afternoon I take a robotic cat - a robot that functions, in many ways, like a cat, but also, obviously, in some ways, like some other machines - into the park.
How now brown cow?
Shall we use Bayesian logic? (Unlikely.) Shall we flip a coin? ("Heads, it's a motor vehicle, tails it's an animal. That's a fair way to settle this question.") Delphic oracles? (cf. "I will gaze at the starry heavens - especially Sirius - and seek inspiration there.")  Our unbridled discretion? ("I can and will rule the way I want. There is no applicable rule here. I will make law. Nothing else is left to me - thank God.") Or shall we (or the judge or the jury) use fuzzy logic? ("This thing partakes of an 'animal' to some degree. This thing partakes of a 'motor vehicle' to a substantial degree. ... [missing matter?] ... Therefore ...[?]")
What will or should we (or the judge or jury) do: How will or should we or they think about this problem?
&&&
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.

The important thing about Griswold v. Conecticut 381 U.S. 479 (1965) was not what it said about privacy or sex. The important thing about Griswold v. Connecticut is that in it the Supreme Court of the United States put its constitutional imprimatur on the proposition that sets (classes, categories, concepts), in the constitutional realm, are fuzzy or rough. For example, the Supreme Court said:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U. S. 497, 516-522 (dissenting opinion). Various guarantees create zones of privacy. Lotfi Zadeh's seminal article in fuzzy sets was published in 1965. It is extremely unlikely that any of the Justices had read the article or had even heard of the article or the theory. So there is no direct lineage from Zadeh's theorizing to the Supreme Court's theorizing in Griswold v. Connecticut. Nonetheless, ...





&&&
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.

Words they may regret:
    "Fuzzy theory is wrong, wrong, and pernicious. What we need is more logical thinking, not less. The danger of fuzzy logic is that it will encourage the sort of imprecise thinking that has brought us so much trouble. Fuzzy logic is the cocaine of science." -Professor William Kahan UC Berkeley

    "’Fuzzification’ is a kind of scientific permissiveness. It tends to result in socially appealing slogans unaccompanied by the discipline of hard scientific work and patient observation."
-Professor Rudolf Kalman UFlorida Source:  History and Objections [to fuzzy logic] 
Professor Zadeh particularly enjoys trotting out the statement by Kahan.

&&&

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.

See Milward v. Acuity Specialty Products Group, Inc., 639 F.3d 11 (1st Cir. 2011):



[7] "Unlike a logical inference made by deduction where one proposition can be logically inferred from other known propositions, and unlike induction where a generalized conclusion can be inferred from a range of known particulars, inference to the best explanation—or `abductive inferences'—are drawn about a particular proposition or event by a process of eliminating all other possible conclusions to arrive at the most likely one, the one that best explains the available data." Bitler v. A.O. Smith Corp., 391 F.3d 1114, 1124 n. 5 (10th Cir.2004). [snip, snip]  At times, the court's error in excluding Dr. Smith's testimony derived from a mistake in its understanding of the weight of the evidence methodology employed by Dr. Smith. The court treated the separate evidentiary components of Dr. Smith's analysis atomistically, as though his ultimate opinion was independently supported by each. For example, the court referred to "Dr. Smith's opinion that because benzene metabolites inhibit topo II and because some classes of topo II inhibitors appear to have a causal relationship to APL, therefore benzene has a causal relationship to APL." Milward, 664 F.Supp.2d at 148 (emphasis added). This overstates Dr. Smith's conclusion as to the topo II evidence, and is indicative of an error in the court's understanding of the nature of Dr. Smith's analysis.  In Dr. Smith's weight of the evidence approach, no body of evidence was itself treated as justifying an inference of causation. Rather, each body of evidence was treated as grounds for the subsidiary conclusion that it would, if combined with other evidence, support a causal inference. The district court erred in reasoning that because no one line of evidence supported a reliable inference of causation, an inference of causation based on the totality of the evidence was unreliable. Cf. Nutra-Sweet Co. v. X-L Eng'g Co., 227 F.3d 776, 789 (7th Cir.2000) (holding that an expert's reliance on individual pieces of evidence, insufficient in themselves to prove a point, "did not render his opinion speculative").[16] The hallmark of the weight of the evidence approach is reasoning to the best explanation for all of the available evidence. Cf. Dalkon Shield, 156 F.3d at 253 (reversing district court's exclusion of expert testimony as "guesswork" or without "basis" when testimony was based on differential diagnosis and there was no showing that any one of the expert's premises was "so faulty that it could not even be tendered to the jury for its consideration"); see also Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 261 (6th Cir.2001). A hat tip to Phil Segal!
&&&
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.

Go here to see a brief visual summary of the the DNA and fiber evidence in the Dobson and Norris trial in the UK.  &&&
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.

May you have a good new year - assuming, of course, that you follow or recognize the Gregorian calendar.

Let me put it this way: may you have a good new year - perhaps even a dynamic one - when your new year arrives.
And if your new year promises not to be a good one (we know that not every year is filled with blue skies), may the new year at least make sense to you and have some sort of satisfying meaning for you. Peter Tillers
The dynamic evidence page

Ah yes, so there is (unless his homelessness is a hoax). But the fellow seems to prefer being homeless.

• Tip of the hat, I guess, to Steve Simon.

&&&
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.

Ah yes, so it is (unless it's a hoax, of course). But the fellow seems to prefer being homeless.

• Tip of the hat, I guess, to Steve Simon.

&&&
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.

See the interesting article, William D. Henderson & Rachel M. Zahorsky, The Law School Bubble: How Long Will It Last if Law Grads Can’t Pay Bills? ABA Journal (online)(January 1 [sic], 2012).

"A one hour presentation of 'The Theory That Would Not Die' given by the author [Sharon Bertsch McGrayne] at Carnegie Mellon University in October 2011 is available on CMU’s Youtube channel." Hykel Hosni, "What's Hot in ... Uncertain Reasoning," 6 The Reasoner 11 (Jan. 2012).


Go here for a video of a talk by McGrayne on another occasion -- and this video is not marred by distracting background noise.


&&&
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.

John Plotz,Their Noonday Demons, and Ours NYTimes Sunday [sic] Book Review (Dec. 23, 2011):
By some miracle, you set aside a day to tackle that project you can’t seem to finish in the office. You close the door, boot up your laptop, open the right file and . . . five minutes later catch yourself thinking about dinner. By 10 a.m., you’re staring at the wall, even squinting at it between your fingertips. Is this day 50 hours long? Soon, you fall into a light, unsatisfying sleep and awake dizzy or with a pounding headache; all your limbs feel weighed down. At which point, most likely around noon, you commit a fatal error: leaving the room. I’ll just garden for a bit, you tell yourself, or do a little charity work. Hmmm, I wonder if my friend Gregory is around? This probably strikes you as an extremely, even a uniquely, modern problem. Pick up an early medieval monastic text, however, and you will find extensive discussion of all the symptoms listed above, as well as a diagnosis. Acedia, also known as the “noonday demon,” appears again and again in the writings of the Desert Fathers from the fourth and fifth centuries. Wherever monks and nuns retreated into cells to labor and to meditate on matters spiritual, the illness struck. [snip, snip] ...[N]ow that solitary unstructured brainwork has returned with a vengeance, we may be suffering an epidemic of early medieval acedia.
   




  &&&
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.

See Elie Mystal The Evidence Exam at Harvard Law That Requires No Evidence to Pass Above the Law (Dec. 22, 2011).


&&&
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.

For an excellent -- but noncommittal -- review of the growing controversy over the "shaken baby syndrome," see Mark Hansen, Unsettling Science: Experts Are Still Debating Whether Shaken Baby Syndrome Exists ABA Journal (Dec. 1, 2011).  &&&
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.