Abstract
We first consider computer help for organising tasks relevant for managing the evidence. We consider the Lund procedure, as well as a few tools: CaseNote, MarshalPlan, and from Italy’s judiciary, Daedalus. We develop in particular a discussion of the latter, which is a tool for the examining magistrate and then the prosecution. We then turn to criminal justice information systems, and discuss prosecutorial vs. judiciary discretion. We discuss facets of evaluating costs and benefits, beginning with the costs and benefits while preparing a case (discussing, in turn, the rules of evidence in terms of economic rationality, Alvin Goldman’s concept of epistemic paternalism, the Litigation Risk Analysis method, and bargaining in relation to game theory). We then turn to evaluating the effects of obtaining or renouncing a piece of evidence, then to the benefits, costs, and dangers of argumentation, and finally to the costs and benefits of digital forensic investigations. Next, we discuss Bromby’s ADVOKATE, a tool for assessing eyewitness suitability and reliability (we also consider the Turnbull rules, and further elaborate on taxonomies of factors). In the section about policing, we consider organisational aspects of intelligence, and the handling of suspects, and deal in turn with organisational problems of police intelligence systems, with handling the suspects (equipment, techniques, and crucial problems), with polygraph tests and their controversial status, with the evidentiary value of self-incriminating confessions being culture-bound rather than universal in juridical cultures, and with computerised identity parades (lineups) and concerns about identity parades. This chapter concludes with a section (by Jonathan Yovel) on relevance, in relation to legal formalism as well as to logic formalism and artificial intelligence. A refutation is proposed, of the argument from the distinction between relevance and admissibility.
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Notes
- 1.
The information technology aspects of the preparation of the Digesto Jurídico Argentino were supervised by Antonio Martino, a well-known scholar in AI & Law. A consortium carried out two tasks, namely, the reduction of a Legislative Technical Manual (this was coordinated by Martino, and was completed in 2001), and the revision of every normative texts emanated since the 1853 Constitution (this was directed by Atilio Alterini).
At http://www.sp.unipi.it/dsp/didattica/Digesto/manual.html (hosted by the website of the University of Pisa in Italy) it is possible to access a virtual reading room of all the laws, as well as an exemplificative method of law writing assisted by the computer.
- 2.
- 3.
http://tillerstillers.blogspot.com/2009/07/release-of-marshalplan-30.html (accessed in 2011). At another webpage, http://tillerstillers.blogspot.com/2009/09/theoretical-underpinnings-and-purposes_22.html one can access theoretical notes on MarshalPlan.
- 4.
http://tillers.net/MarshalPlan.4.0/Web/MarshalPlan.html “Evidence marshaling software on the web: MarshalPlan 4.0 (for the time being use Firefox 3.x; Chrome and Internet Explorer won’t work for some reason)”.
- 5.
Up to 2000, Italy had the following kinds of judges and courts: Giudice di pace (Justice of Peace), without criminal jurisdiction; Pretura (Magistrate’s Court), which has been abolished since, and used to be a court of first instance, with a civil and criminal jurisdiction; Tribunale, being a court of first instance for more serious civil and criminal cases (moreover, it used to hear appeals from the pretura); Giudice di sorveglianza, responsible for the enforcement of sentences; Tribunale per i minorenni (Juvenile Court); Corte di appello (Court of Appeal); Corte di cassazione (Court of Cassation: the highest court of appeal). Special courts included: the Corte di assise (Court of Assizes, only for criminal prosecutions); the Commissario per la liquidazione degli usi civici (Commissioner for easements and rights of use), and the Tribunale superiore delle acque (High Court of Waters).
In June 1999, a reform of the system started to be implemented, intended to gradually modify the tasks and functions of the judicial offices firstly in the civil and then (from January 2000) in the criminal sector. Through the institution of a giudice unico di primo grado (single-judge court of first instance), aimed at making trials more rapid and procedures easier, the jurisdictions of the preture (magistrates’ courts) and tribunali (courts) have been merged and the pretore office (i.e., the judge sitting in the pretura) abolished.
- 6.
Hearsay testimony especially in the context of the Italian jurisdiction was discussed in a book by Balsamo and Lo Piparo (2004). An interesting different subject is the status of the testimony given by somebody at a related trial or a trial for a related crime; this was discussed in a book by Bargis (1994), in the Italian context. This is also treated in Ferrua (2010, section 15). The relevant act is Italy’s art. 192 c.p.p. (according to the new Codice di Procedura Penale), paragraphs 3 and 4. The law makes such testimony admissible, on a par with the testimony of a co-defendant at the same trial. Such testimony can be evaluated, but more caution is need than with other witnesses: it can only become proof if there is independent corroboration.
- 7.
The kinds of prosecutions in Italy around 2000 (at a time when magistrate’s courts, the preture, hadn’t been abolished as yet) included the following. Prosecutions were carried out by: the Procuratore della Repubblica presso la Pretura (Public Prosecutor attached to the Magistrate’s Court); the Procuratore della Repubblica presso il Tribunale (Public Prosecutor attached to the County or Assizes courts); the Procuratore della Repubblica presso il Tribunale per i minorenni (Public Prosecutor attached to the Juvenile Court); the Procuratore generale della Repubblica presso la Corte di appello (State Prosecutor General attached to the Court of Appeal); the Procuratore generale della Repubblica presso la Corte di cassazione (State Prosecutor General attached to the Court of Cassation). There also are special public prosecutors: the Procuratore nazionale antimafia (State Anti-Mafia Prosecutor), and the Procuratore distrettuale antimafia (District Anti-Mafia Prosecutor).
- 8.
Wiretapping has been much debated in Italy in 2010, and is likely to undergo changes: this is not because of use by law enforcement, but because of widespread use on the part of journalists, and these sometimes publish confidential documents of the judiciary. One supporter of change has claimed that six million persons (out of a population of sixty million) have been wiretapped in just one year.
- 9.
The right to silence and alternative self-protective choices for a person who is a suspect (indagato) in an inquiry, in an Italian context, are the subject of a book by Marafioti (2000).
- 10.
The case being investigated is being istruito: this Italian participle for ‘investigated’ (only applied to the case, not to a person) is derived like the noun istruttoria and the nominal compound fase istruttoria, which also refer to the indagini [preliminari], i.e., the inquiry.
- 11.
In Italian, a fine is also called ammenda or, informally, multa.
- 12.
Arno Lodder and John Zeleznikow provided an overview of computer-assisted dispute resolution (as being an alternative to litigation) in a book (Lodder & Zeleznikow, 2010). Plea bargaining is the subject of section 5.9 in that book.
- 13.
Already an Italian book by Gambini (1985) discussed plea bargaining.
- 14.
- 15.
“[…] ll progetto Daedalus riguarda un applicativo ideato e scritto dal suddetto dr. Asaro, concepito per l’assistenza al Pubblico Ministero nel corso delle indagini preliminari e sino alla citazione a giudizio dell’imputato. Il software realizzato non si limita a mettere a disposizione del magistrato un formulario per la redazione di atti o la selezione di capi di imputazione, ma fornisce un sistema esperto di assistenza integrata; l’idea centrale di Daedalus è che il programma informatico nello stesso momento in cui mette a disposizione un ambiente per la redazione dei provvedimenti, li registra e fornisce tale conoscenza per validare il successivo corso dell’indagine. Particolarmente interessanti sono il controllo di legalità — reazione del programma con specifici messaggi tutte le volte che si intenda adottare un provvedimento non consentito — ed il controllo di sufficienza, con specifico riferimento alle fonti di prova raccolte. […]”.
- 16.
Social psychologist Anthony N. Doob has also researched Canadian jurors (Doob, 1978), as well as Canadian justices of the peace (Doob, Baranek, & Addario, 1991); thus his are not just ad hoc explanations as may be provided by an information technologist. The psychology of judicial sentencing is the subject of Fitzmaurice and Pease (1986).
- 17.
- 18.
Note that in social science, Michael A. Redmond and Cynthia Blackburn (2003) described an application of case-based reasoning (CBR) and other methods for predicting repeat criminal victimisation. Theirs was an empirical analysis. Also see Janet L. Lauritsen’s (2010) ‘Advances and Challenges in Empirical Studies of Victimization’. Cf. Lauritsen (2005), Ybarra and Lohr (2002), and Planty and Strom (2007). Redmond and Blackburn (2003) explained: “some criminologists are interested in studying crime victims who are victims of multiple crime incidents. However, research progress has been slow, in part due to limitations in the statistical methods generally used in the field. We show that CBR provides a useful alternative, allowing better prediction than via other methods, and generating hypotheses as to what features are important predictors of repeat victimization. This paper details a systematic sequence of experiments with variations on CBR and comparisons to other related, competing methods. The research uses data from the United States’ National Crime Victimization Survey. CBR, with advance filtering of variables, was the best predictor in comparison to other machine learning methods” (ibid., from the abstract).
- 19.
This kind of application of statistics has nothing to do with, and is definitely not as controversial as, probative weight and the use of probabilities to determine whether to convict in a given case, for which, see e.g. Allen and Redmayne (1997).
- 20.
“Association rules represent relationships between items in very large databases. […] An example would be ‘given a marker database, it was found that 80% of customers who bought the book ‘XML for beginners’ and ‘internet programming’ also bought a book on ‘Java programming’.’ If X and Y are two sets of disjoint terms, then an association rule can be expressed as conditional implication X ⇒ Y i.e. the occurrence of the set of items X in the market basket implies that the set of items Y will occur in this market basket. Two important aspects of an association rule are confidence and support […]. The confidence of an association rule r: X ⇒ Y is the conditional probability that a transaction contains Y given that it contains X, i.e. confidence\(\left({\textrm{X}} \Rightarrow {\textrm{Y}}\right) = {\textrm{P}}\left({\textrm{X,}}\;{\textrm{Y}}\right)/{\textrm{P}\left(X\right)}\). The support of an association rule is the percentage of transactions in the database that contains both X and Y, i.e., Support\(\left({\textrm{X}} \Rightarrow {\textrm{Y}}\right) = {\textrm{P}\left(X,Y\right)}\). The problem of mining association rules can be stated simply as follows: Given predefined values for minimum support and minimum confidence, find all association rules which hold with more than minimum support and minimum confidence.” (Chan, Lee, Dillon, & Chang, 2001, p. 278, citing Agrawal & Srikant, 1994 for the definition of confidence and support).
- 21.
One also speaks of normative ability. See, e.g., Wooldridge and van der Hoek (2005).
- 22.
In philosophy and in logic, the adjective doxastic means “of or relating to belief”. Doxastic logic is the branch of modal logic that studies the concept of belief. More broadly, doxastic may refer not only to something pertaining to belief, but alternatively also to something pertaining to states sufficiently like beliefs, namely: thoughts, judgments, opinions, desires, wishes, or fears. But usually, in a doxastic attitude what one holds is a belief. In epistemology (the philosophy of knowledge), evidentialism is generally applied to justified beliefs distinct from unjustified beliefs one may hold in a doxastic attitude. Evidentialism in epistemology is defined by the following thesis about epistemic justification:
(EVI) Person S is justified in believing proposition p at time t if and only if S’s evidence for p at time t supports believing p.
Daniel Mittag (2004) explains:
As evidentialism is a thesis about epistemic justification, it is a thesis about what it takes for one to believe justifiably, or reasonably, in the sense thought to be necessary for knowledge. Particular versions of evidentialism can diverge in virtue of their providing different claims about what sorts of things count as evidence, what it is for one to have evidence, and what it is for one’s evidence to support believing a proposition. Thus, while (EVI) is often referred to as the theory of epistemic justification known as evidentialism, it is more accurately conceived as a kind of epistemic theory. In this light, (EVI) can be seen as the central, guiding thesis of evidentialism. All evidentialist theories conform to (EVI), but various divergent theories of evidentialism can be formulated.
- 23.
In view of this, it is somewhat ironic that in an article on computerised sentencing information for judges, Doob and Park (1987–1988) began by stating: “There are few, these days, who would not argue that those making important judgments should have access to relevant information. The difficulty usually is not only having the information, but having it reasonably accessible and produced in a usable form”. In their case, they were seeking “to provide judges with some of the information that is relevant to the passing of sentences”. Clearly, the context was very different of that of exclusionary rules of evidence. Rather, Anthony Doob and Norman Park had assumed that judges would be very interested in learning about current sentencing. Developing their computerised system intended to aid judges in sentencing required that those developing the computer system would figure out beforehand what kind of information would be useful: “The history of this project illustrates the difficulties in knowing a priori what information will be most useful and illustrates the necessity of working closely with the eventual information user” (ibid., p. 54). See Section 4.2.3 above.
- 24.
- 25.
The debate about Bayesianism in judicial context is complex. In a sense, concrete misgivings, apart from mathematical niceties and whether they do model the world reliably, boil down to this: that the problems of Bayesianism cannot be solved by mere computational powers, and that all it takes, to cause the calculations go wrong, is for some supposedly expert and honest witness (e.g., some physician specialised in serving insurance companies) to say whatever suits those instructing them, and then Bayesianism could not possibly put that right. The real danger is overly relying on a formalism, when it is the adjudicator’s common sense (however flawed) that should stay alert, in acute awareness that there is no safety net. Reliance on formalisms may give raise to a delusion that things are being taken care for, whereas they actually are not.
Allen and Pardo stated (2007b, p. 308): “[W]e are not uncompromising sceptics, and we even concede that the formal models may be useful in evaluating evidence and that it may not be unreasonable for parties to argue, or fact-finders to evaluate evidence, along the lines suggested by such models. To say that such models may be useful is not, however, to accept them as the sole or even a particularly reliable method of discovering the truth. Our objection is to scholarship arguing just that such models establish the correct or accurate probative value of evidence, and thus implying that any deviations from such models lead to inaccurate or irrational outcomes”.
- 26.
Karunatillake (2006), a doctoral dissertation, provides further details.
- 27.
This is not to say that algorithmic and complexity issues relating to computational models of argument have not been researched. Quite on the contrary, there is such a flourishing direction of research (e.g., Ben-Capon & Dunne, 2007). “However, in this case, the preoccupation is with the tractability of a given argumentation framework, whereas our concerns here are on a completely different scale: even assuming that a given argumentation framework is tractable, the individual agent still has to make a strategic decision on whether arguing is rational or not, given current goals, available resources and relevant context. Obviously, the tractability of the underlying argumentation framework impacts on the strategic considerations of the agent. If the framework makes argumentation intractable or typically very costly for the agent, the likelihood of considering such practice worthwhile is either non-existent or comparatively low. But the crucial point is that, even when argumentation is tractable and its costs are in principle affordable, it does not immediately follow that arguing is the best option for the agent. It is this crucial decision problem that so far has been largely overlooked in argumentation theories, both within and outside AI: our aim now is to move some preliminary steps to explore the issue” (Paglieri & Castelfranchi, 2010, p. 73).
- 28.
A Bayesian network is a directed acyclic graph (i.e., a graph without loops, and with nodes and arrows rather than direction-less edges), such that the nodes represent propositions or variables, the arcs represent the existence of direct causal influences between the linked propositions, and the strengths of these influences are quantified by conditional probabilities. Whereas in an inference network the arrow is from a node standing for evidence to a node standing for a hypothesis, in a Bayesian network instead the arrow is from the hypothesis to the evidence. In an inference network, an arrow represents a relation of support. In a Bayesian network, an arrow represents a causal influence, and the arrow is from a cause to its effect.
- 29.
Bromby et al. (2007, p. 303) discussed, in relation to eyewitness identification in Commonwealth jurisdictions, criminal jury directions, i.e., such judicial directions to the jury that are intended “to guard against wrongful convictions based upon erroneous eyewitness identification evidence. Factors known as the Turnbull Rules, derived from the English case R v. Turnbull, are of significance within many common law jurisdictions when considering the accuracy of eyewitness identifications and the practice of jury directions or mandatory warnings. The influence of these rules, together with variations in the approach taken by Commonwealth jurisdictions, illustrates that while the factors identified in Turnbull are to be found in the approaches adopted across the various jurisdictions studied, there is diversity in terms of whether or not such directions are mandatory and also as to their form and scope.”
- 30.
Delay has an effect upon the accuracy of identification by eyewitness, but also age has an impact. For example, cf. Memon, Bartlett, Rose, and Gray (2003) “The aging eyewitness: The effects of face-age and delay upon younger and older observers”, whereas Memon and Gabbert (2003b) tried to find up such arrangements at lineups that would affect the identification accuracy of old witnesses. Dysart, Lindsay, MacDonald, and Wicke (2002) considered the effects of alcohol on eyewitness accuracy. Caputo and Dunning (2006) discussed post factum indicators of eyewitness accuracy, so that accurate identifications could be distinguished from erroneous ones. Horry and Wright (2008) found that viewing other-race faces may an impairing effect on context memory, in the sense that the eyewitness may recall having seen that face, but not be quite accurate or sure about where he or she saw that face of that person from a race other than one’s own. This may be because of which faces one is more used to see, under the assumption that people are more used to see faces of people from one’s own race. Arguably (as a research hypothesis we suggest here) experimenting with eyewitness who have been other-race adopted children and were raised in an environment where almost everybody is from the same race as their adoptive parents could show that their context memory is more accurate when having to identify individuals (and the time of viewing) such that their faces are racially akin to those of the environment in which they were raised, rather than their own. Cf. Chance and Goldstein (1995); whereas Meissner and Brigham (2001) are concerned with the own-race bias in memory for faces.
- 31.
The ADVOKATE software was made available at http://advokate.bromby.vze.com/ This browser-accessible application was developed by using an expert system shell, WebShell.
- 32.
Michael Bromby first graduated in molecular and cell biology, and then earned a LLM, specialising in medical jurisprudence, intellectual property and artificial intelligence & legal reasoning. He also holds a diploma in forensic medical sciences. He co-developed ADVOKATE while a research fellow with the Joseph Bell Centre for Forensic Statistics and Legal Reasoning of the University of Edinburgh. He was for a while a technical consultant for a company specialising in police software solutions and facial composite systems, and then took up an academic position at the Law Department at Glasgow Caledonian University. According to his website at Glasgow Caledonian, “Michael’s main research areas lie in facial recognition; his LLM dissertation examined the reliability and accuracy of automatic facial recognition systems as a tool for identification via CCTV cameras, and his DipFMS dissertation concentrated on Expert Evidence in the UK. As a biochemist, he also carries an interest in DNA profiling, blood typing and other biological and forensic methods of identification for both civil and criminal systems.” Identification via closed-circuit TV cameras (CCTV) is the subject of Bromby (2002, 2003).
- 33.
Various categories of persons hold beliefs about factors affecting the reliability of eyewitness testimony: Magnussen, Melinder, Stridbeck, and Raja (2010) has drawn a comparison, in that respect, of judges, jurors and the general public. Brigham (1981) discussed how lawyers see the accuracy of eyewitness evidence.
- 34.
Also see the website of Gary Wells: http://www.psychology.iastate.edu/~glwells/
- 35.
Examination-in-chief is when a lawyer asks questions of his own witness, as opposed to cross-examination by the lawyer of the other party, to the lawyer asking more questions of his own party’s witness following the cross-examination, and to questions being asked by the judge.
- 36.
- 37.
See http://www.popcenter.org/about-SARA.htm concerning the SARA model.
- 38.
For example, Boba (2005) is concerned with crime mapping for the purposes of crime analysis.
- 39.
Cf. Allen and Pardo (2007b, p. 308): “[W]e are not uncompromising sceptics, and we even concede that the formal models may be useful in evaluating evidence and that it may not be unreasonable for parties to argue, or fact-finders to evaluate evidence, along the lines suggested by such models. To say that such models may be useful is not, however, to accept them as the sole or even a particularly reliable method of discovering the truth. Our objection is to scholarship arguing just that such models establish the correct or accurate probative value of evidence, and thus implying that any deviations from such models lead to inaccurate or irrational outcomes”.
- 40.
False confessions are the subject of Gudjonsson (2001, 2006), Gudjonsson, Sigurdsson, Asgeirsdottir, and Sigfusdottir (2006) Gudjonsson, Sigurdsson, Asgeirsdottir, and Sigfusdottir (2007), Steingrimsdottir, Hreinsdottir, Gudjonsson, Sigurdsson, and Nielsen (2007), Sigurdsson and Gudjonsson (1996, 2001), Gudjonsson and Sigurdsson (1994), Gudjonsson and MacKeith (1982). Gisli Gudjonsson’s team conducted that kind of research on, e.g., adolescents in places like Iceland or Denmark. Also see Levine, Kim, and Blair (2010), Blair (2005). Important research on false confessions was carried out in the U.S. by psychologist Saul Kassin and his team. See Kassin (2004, 2005), Kassin, Meissner, and Norwick (2005), Russano, Meissner, Narchet, and Kassin (2005), Kassin and Kiechel (1996). False confessions are also the subject of Redlich and Goodman (2003). Other works on false confessions include Leo, Drizin, Neufeld, Hall, and Vatner (2006), Leo and Ofshe (1998), Ofshe and Leo (1997a, 1997b), Santtila, Alkiora, Ekholm, and Niemi (1999) and Horsenlenberg, Merckelbach, and Josephs (2003). The concern of White (1997) is primarily with law, rather than psychology, concerning false confessions. Bem (1966) was concerned with inducing belief in false confessions.
Kassin and Norwick (2004) considered the relation between being innocent, and reasons why individuals sometimes waive their statutory right to remain silent during interrogation. In Miranda v Arizona [384 U.S. 436 (1966)], the United States Supreme Court ruled (384 U.S. 436 (1966)) that prior to any custodial interrogation the accused must be warned: (1) That he has a right to remain silent; (2) That any statement he does make may be used in evidence against him; (3) That he has the right to the presence of an attorney; (4) That if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires. According to that ruling, unless and until these warnings or a waiver of these rights are demonstrated at the trial, no evidence obtained in the interrogation may be used against the accused.
- 41.
Memon, et al. (1998) are concerned with assessing the truthfulness of testimony, including of statements made by suspects during investigation. Also see Gisli Gudjonsson’s (1992, revised 2003) The Psychology of Interrogations, Confessions and Testimony, as well as Aldert Vrij’s (2000) Detecting Lies and Deceit: The Psychology of Lying and Implications for Professional Practice; cf. Vrij (1998b). Memon and Bull (1999) is a Handbook of the Psychology of Interviewing. Gudjonsson and Clark (1986) proposed a social psychological model of suggestibility in police interrogation. Police interrogations is the subject of Kassin (2006), Kassin et al. (2007), Kassin and Fong (1999), and Kassin and McNall (1991). Investigative interviewing is also the subject of Milne and Bull (1999) and of Gudjonsson (2007). White (1989) was concerned, from a legal viewpoint, with police trickery in inducing confessions. Police interrogations and confessions are the subject of Inbau, Reid, Buckley, and Jayne (2001). Daniel Lassiter edited the volume (2004) Interrogations, Confessions and Entrapment. Concerning entrapment, the term denotes such circumstances of obtainment of evidence that the perpetrator was deceived, by being allowed or even enabled or incited to commit an offence, with law enforcement personnel present or even participating. Osborne (1997, p. 298) remarked that in England, some cases
clearly established that, even when policemen acting in plain clothes and participating in a crime go too far and incite criminals to commit offences which would otherwise not have been committed, the law of evidence will not be used to discipline the police. There is no defence of ‘entrapment’ known to English law and the law of evidence could not be used to create such a defence by the device of excluding otherwise admissible evidence. Where police had gone too far, the question of their misconduct will be dealt with in police disciplinary proceedings; but insofar the accused was concerned, entrapment would only be relevant to mitigate the sentence imposed, not to the question of admissibility.
Concerning police interrogations, also see Leo’s book (2008) Police Interrogation and American Justice. Out-of-court witness statements are the subject of Heaton-Armstrong, Wolchover, and Maxwell-Scott (2006). The psychology of confession evidence is the subject of Williamson (2007), Kassin and Gudjonsson (2004), Kassin and Wrightsman (1985), Kassin (1997), Kassin and Neumann (1997), Kassin and McNall (1991), Gudjonsson (1992). Confirmationism, which tends to confirm expectations of guilt, is the subject of Kassin, Goldstein, and Savitsky (2003). See Home Office (2003) for the codes of practice for the police in England and Wales.
- 42.
Suffice it to cite here Lindsay, Ross, Read, and Toglia (2006), Cutler and Penrod (1995), or Levine and Tapp (1982), Wells (2000), Wells, Memon, and Penrod (2006), Behrman and Davey (2001), Behrman and Richards (2005). Elsewhere in this book we have cited more specific literature from eyewitness research. By Gary Wells, see e.g. Wells (1978, 1984, 1985, 1988, 2000, 2006), Wells and Bradfield (1998, 1999), Wells and Charman (2005), Wells and Hryciw (1984), Wells and Leippe (1981), Wells and Loftus (1991), Wells and Murray (1983), Wells and Quinlivan (2009), Bradfield and Wells (2000), Bradfield, Wells, and Olson (2002), Clark and Wells (2007), Lindsay and Wells (1980), Luus and Wells (1994), Hasel and Wells (2006), Wells, Leippe, and Ostrom (1979a), and Wells, Lindsay, and Ferugson (1979b), Wells, Ferguson, and Lindsay (1981), Wells, Rydell, and Seelau (1993), Wells et al. (1998), Wells, et al. (2000), Wells, Olson, and Charman (2003), Wells, Memon, and Penrod (2006).
Bull (1979) was concerned with the effect of stereotypes on person identification, whereas Chance and Goldstein (1995) discussed, to say it with the title of their article, “The Other-Race Effect and Eyewitness Identification”. Cf. Horry and Wright (2008), also on memory and other-race faces. Meissner and Brigham (2001) are concerned with concerned with the own-race bias in memory for faces.
Various categories of persons hold beliefs about factors affecting the reliability of eyewitness testimony: Magnussen, Melinder, Stridbeck, and Raja (2010) drew a comparison, in that respect, of judges, jurors and the general public.
- 43.
- 44.
By Lykken, see his book (1998) A Tremor in the Blood: Uses and Abuses of the Lie Detector.
- 45.
Apart from the already mentioned Ekman (1985), other works by Ekman about the detection of deception include Ekman and O’Sullivan (1989, 1991a, 1991b, 2006), Tsiamyrtzis et al. (2005), Bugental, Shennum, Frank, and Ekman (2000), Ecoff, Ekman, Mage, and Frank (2000), Ekman, Friesen, and O’Sullivan (1988), Ekman, O’Sullivan, Friesen, and Scherer (1991), Ekman, O’Sullivan, and Frank (1999), Ekman (1981, 1988a, 1988b, 1989, 1996, 1997a, 1997b), Frank and Ekman (1997), Ekman and Frank (1993), O’Sullivan, Ekman, and Friesen (1988), and Ekman and Friesen (1969, 1974). Also see the book by Frank and Ekman (2003). In particular, Feinbert, Blascovich, Cacioppo, Davidson, and Ekman (2002) is a report about polygraph tests.
- 46.
Concerning differences among jurisdiction in regard to the right to remain silent, Schwikkard (2008) pointed out: “At the pre-trial stage the right to remain silent gives the accused immunity for his or her refusal to answer questions. And if he or she does make any admission or confession the prosecution must establish that such a statement was made voluntarily before it will be admitted into evidence — or phrased negatively without compulsion. These general principles are shared by most common-law countries with functioning democracies. The right to remain silent at trial grants the accused immunity from testifying. This too is a common feature of the Anglo-American jurisdictions surveyed. But nowhere is it an absolute right and depending on the circumstances there may be consequences for remaining silent. However, most of the jurisdictions surveyed do not tolerate imprisonment being imposed for the exercise of the right to silence. Although this cannot be said to be true of all common law jurisdictions it would appear that in respect of those falling under the jurisdiction of the European Court of Human Rights that imprisonment as a sanction for silence will not be tolerated.” Nevertheless (ibid., fn. 7): “Ireland for example has a number of legislative provisions authorising imprisonment consequent upon the withholding of information”. There also is some variation in North America; for example: “In Canada the courts have held that drawing adverse inferences from silence at both the pre-trial and trial stages is unconstitutional. Nevertheless there are also exceptions to this prohibition, for example, an adverse inference may be drawn from the pre-trial failure to disclose an alibi defence.” Importantly, in the United States the right to silence is not recognised to corporations: “The United States Supreme Court has also held that the Fifth Amendment does not apply to corporate entities.”
- 47.
“Probative value is a relational concept that expresses the strength with which evidence supports an inference to a given conclusion. It is a crucial concept for determining admissibility (see Fed[eral] R[ules of] Evid[ence] 403, which instructs judges to exclude evidence when its probative value is substantially outweighted by its prejudicial, confusing, or duplicative effect) and for determining whether parties have satisfied their burdens of proof” (Allen & Pardo, 2007a, p. 108, fn. 2).
- 48.
- 49.
- 50.
Hinz and Pezdek (2001) discussed the effect of exposure to multiple lineups on face identification accuracy.
- 51.
Besides, e.g. Valentine, Darling, and Memon (2007) researched whether strict rules and moving images increase the reliability of sequential identification procedures. In Darling, Valentine, and Memon (2008), those same authors discussed the selection of lineup foils in operational contexts. Valentine, Darling, and Memon (2006) were concerned with how to enhance the effectiveness of identification procedures. Memon and Gabbert (2003a) discussed the effects of a sequential lineup. Kneller, Memon, and Stevenage (2002) contrasted the decision processes of accurate and inaccurate witnesses, when viewing simultaneous vs. sequential lineups. Valentine, Pickering, and Darling (2003) tried to identify predictors of the outcome of real lineups. Garrioch and Brimacombe (2001) discussed the impact of lineup administrators’ expectations on eyewitness confidence. The effects of post-identification feedback on eyewitnesses was also discussed in the literature (the risk is forced confabulation: witnesses will be influenced into remembering differently, by making inferences, and this may be an effect of their having been discussing their recollections). See, e.g., Wells and Bradfield (1998), Bradfield et al. (2002), Wright and Skagerberg (2007), Hafstad, Memon, and Logie (2004), and Hanba and Zaragoza (2007). Memon and Gabbert (2003b) tried to find up such arrangements at lineups that would enhance the identification accuracy of old witnesses.
Journals where papers at the interface of psychology, law and criminology are published include the Journal of Applied Psychology; the Journal of Experimental Psychology: Applied; the journal Law and Human Behaviour; the journal Applied Cognitive Psychology; the Journal of Personality and Social Psychology; the journal Legal and Criminological Psychology; the journal Memory and Cognition; as well as the Psychonomic Bulletin & Review; and the journals Psychology, Public Policy and Law; and Memory.
- 52.
Of course, psychologists have researched the effects of mugshot viewing on eyewitness accuracy (e.g., Memon, Hope, Bartlett, & Bull, 2002).
- 53.
For example, Lindsay and Malpass (1999) guest-edited a special issue of the journal Applied Cognitive Psychology about measuring lineup fairness.
- 54.
One of the points made by Wells and Quinlivan (2009) is as follows (ibid., p. 20): “The current approach in Manson is one in which the defense must request a hearing on the identification and attempt to show that the identification was not reliable. The burden clearly rests with the defense to show that the identification was not reliable and failure to do so results in admission of the identification evidence. But, it is unclear why the burden rests with the defense to show unreliability rather than with the prosecution to show reliability. It is unlikely that a shift in burden would matter much to the prosecution, of course, as long as the prosecution was able to continue to use the current Manson criteria in the context of trumping suggestive procedures. Under the shift-of-burden notion, the prosecution would have to make the case that the identification was reliable regardless of whether a suggestive procedure was necessary or unnecessary. The irrelevance of the ‘necessity’ aspect of suggestive procedures seems to us to comport better with the Court’s own reasoning on these matters that ‘reliability is the linchpin in determining the admissibility of identification testimony’ along with our observation that the power of suggestive procedures is not moderated by whether the suggestiveness was necessary.”
- 55.
This is Sir James Fitzjames Stephen (1829–1894). His A General View of the Criminal Law in England was published in London by McMillan (i.e., the present-day Macmillan) in 1863 (the first edition), and then in 1890 (the second edition). The second edition was reprinted in Littleton, Colorado, by F. B. Rothman in 1985. As to Stephen’s A Digest of the Law of Evidence, the 12th edition is a revision by Sir Harry Lushington Stephen and Lewis Frederick Sturge. It was published in London by McMillan and Co. Ltd. in 1948. This was a reprint, with additions, of the 1936 edition. Clearly, Stephen’s Digest was long-lived. Analytical Tables of the Law of Evidence for Use with Stephen’s Digest of the Law of Evidence, by George Mifflin Dallas and Henry Wolf Bikle, was published in Philadelphia by T. & J. W. Johnson in 1903 (the notes referred to Stephen’s Digest’s Second American Edition, itself based on the sixth English edition). The Analytical Tables were made available as an online resource accessible by licensing agreements, as a reproduction of an original copy from Harvard Law School Library, by Thomson Gale in Farmington Hills, Michigan, in 2004.
- 56.
By the American jurist John Henry Wigmore (1863–1943).
- 57.
Available online at http://www.utd.uscourts.gov/forms/evid2009.pdf (May 2011).
- 58.
“Minimal relevance” echoes the Bayesian treatment of Hempel’s so-called “Ravens paradox” (Good, 1960). Let E stand for some information, H for a narrative hypothesis, and O for all other information. E is “minimally relevant” to H if and only if the probability of H, given E and O, is different from the probability of H, given O alone (in Hempel’s original, the proposition P “All ravens are black” is ostensibly strengthened by an observation O of a white dove (since P is logically equivalent to “anything that is not black is not a raven”), although no “meaning connection” exists between the two. The Bayesian approach is to acknowledge such minimal relevance yet consider the relation as typically weak and only marginally significant to decision-making processes. See Crump (1997).
- 59.
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). See on it, e.g., Cole (2009), responding to a thematic issue on the U.S. Supreme Court’s very important expert evidence decision in Daubert – a Symposium Issue published by the Tulsa Law Review, vol. 43 (2007), as its Winter Issue, p. 229 ff.
- 60.
As seminally explored in Habermas (1981).
- 61.
- 62.
Even when not empirical, legal positivism grounds normativity in facticity: N is a legal norm due to a set of social and historical facts that rendered it so (order of the sovereign, recognition by courts or their mere “habit”, etc.). Neo-Kantian jurisprudence differs from empiricist jurisprudence precisely on the same grounds that Neo-Kantianism differs from empiricism generally: thus in Kelsen’s “pure” theory of law the logical (rather than ontological) status of the Grundnorm, the basic norm that necessarily anchors any given legal system, is axiomatic, a “fiction” rather than a social fact. See Kelsen (1967).
- 63.
Among speech acts, perlocution is when a person tells another, e.g., “It’s so hot, in this room”, and intends the effect that the recipient should open the window. This is a hint.
- 64.
A “classical” formulation frequently referred to as a model of formalist construction is Langdell (1880). See Grey (1983). My suspicion, that American pragmatism could not have wholly yielded to Langdellian formalism even during that era, is to an extent vindicated by Ernst (1998). Following Grey, Pildes (1999) identifies three characteristics of American legal formalism that to significant degrees do not overlap: 1. Formalism as aconsequential morality in law (i.e., a commitment to deontological ethics – of which Kantian ethics is the accepted paradigm – whereby the ethical evaluation of any rule is innate and does not stem from the consequences of its application in the world); 2. As apurposive rule-following (i.e., construction and application of rules that do not hinge upon their purposes – which in turn are seen as external to the rules themselves – such as literal or originalist construction); 3. As an overall efficiency-enhancing regulatory architecture (in contrast with (1) and possibly with (2)).
- 65.
- 66.
At http://www.referenceforbusiness.com/encyclopedia/Mor-Off/Negotiable-Instruments.html one can find, for negotiable instruments, the following definition from The Encyclopedia of Business, 2nd edition, in the entry for “Negotiable instruments” by David P. Bianco:
Negotiable instruments are written orders or unconditional promises to pay a fixed sum of money on demand or at a certain time. Promissory notes, bills of exchange, checks, drafts, and certificates of deposit are all examples of negotiable instruments. Negotiable instruments may be transferred from one person to another, who is known as a holder in due course. Upon transfer, also called negotiation of the instrument, the holder in due course obtains full legal title to the instrument. Negotiable instruments may be transferred by delivery or by endorsement and delivery. One type of negotiable instrument, called a promissory note, involves only two parties, the maker of the note and the payee, or the party to whom the note is payable. […]
- 67.
- 68.
I owe this insight, like many others – including the intimate relation between law and sports – to Neil Cohen. Under the relational approach, contracts are not distinct legal instruments that exist independently of relations between the parties, but the aggregate of these relations, only some of which are articulated. While relational contract theorists supplied insights into understanding long-term and complex contractual relations, they also drew away from the view of contract as such being merely a mechanism for the rational allocation of risks. Reliance and future relations are important parameters of relational contracts. See Ian Macneil’s book (1980) The New Social Contract.
- 69.
See Duncan Kennedy’s (2001) encyclopedia entry on ‘Legal Formalism’. Anthony Kronman (1988) offered a powerful and succinct critique. American jurisprudence has been almost obsessed with the question of formalism, especially in view of legal realist critiques. In its most offensive – for realists – manifestation, formalistic jurisprudence is a “science for the sake of science” absorbed exclusively with “the niceties of [law’s] internal structure and the beauty of its logical processes”, according to Roscoe Pound’s (1908, p. 605) ‘Mechanical Jurisprudence’ (for which, see s.v. Mechanical jurisprudence in the Glossary of this book).
But that kind of “old formalism” seems to have all but disappeared, as (“new”) formalism today bases its legitimacy on functional grounds, mainly those of economic efficiency. A more lingering critique is that of Felix Cohen’s (1935) ‘Transcendental Nonsense and the Functional Approach’, according to which formalism (or “conceptualism”) supplies the philosophical basis for “objectifying” legal concepts or assuming that they stand for objects in the real world, namely normative entities, rather than artifacts or constructions, or ways of talk. For a rich reference, see Dagan (2007). See also Morton White’s (1957) Social Thought in America: The Revolt Against Formalism.
- 70.
- 71.
This is no typo: Parol Evidence Rule is archaic spelling used by design, and it is found for example in the United States’ Uniform Commercial Code, §2-202. See in the next note.
- 72.
In contract law, a Parol Evidence Rule restricts recourse to extra-textual sources (such as preliminary negotiations or the parties’ behaviour) when a written contract governs the parties’ relations. An example is the American Uniform Commercial Code (UCC), § 2-202.
- 73.
Short for “Federal Rules of Evidence, Rule 401”. What appears in double quotes (“more probable or less probable”) is the language of the Rule 401 of the U.S. Federal Rules of Evidence, that introduces the notion of relevance to this code of evidence law.
- 74.
This is the case of Daubert v. Merrell Dow Pharmaceuticals, the leading 1993 U.S. case on the legal admissibility of expert testimony on the grounds of relevance. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
- 75.
Lam Chi-Ming v R (1991), [1991] 2 App. Cas. 212 (P.C. 1991) (Hong Kong).
- 76.
The particulars are odd enough to merit a short description. The defendants were sentenced to death for the murder of a man who raped their sister. They used a knife that they subsequently disposed of in the sea. During the police investigation, the defendants confessed to the crime and reconstructed it on video, whereupon divers were successful in recovering the knife. At the trial, it was established that the confessions were extracted by police brutality and therefore were inadmissible. The question was how to deal with the video tapes and the knife. The trial judge found this original solution: he ruled that although all that was said by the defendants was inadmissible, the visual recordings of the re-enactments were not; and the video tapes were subsequently admitted without sound. The knife was considered material evidence, independent of its mode of discovery. The Court of Appeals was not amused, and disallowed the derivative evidence as well as the confession.
- 77.
Grice (1975, pp. 45–46).
- 78.
I.e.: true, false, true, true. The only position in which the material implication does not hold is when the antecedent is true and consequent is false.
- 79.
I use “force” here mainly in deference to J. L. Austin’s terminology in discussion illocutionary, locutionary and perlocutionary forces.
- 80.
K. F. Hauber offered to define as a “closed system” any n statements of the form p→q that satisfied the requirement that the antecedents exhaust all possible cases and the consequents exclude each other. The advantages of such a system for decision-making are clear: for every true assertion p→q it is also true that ∼p→∼q. (By ∼ the proposition is negated.) All necessary conditions are also sufficient ones and vice versa. Hauber’s system marginalizes “implication paradoxes” but is not conducive toward forming a relevance requirement for entailment, as Anderson and Belnap demand.
- 81.
According to the law of excluded middle. Note that in this and other parts this study I neglect to examine intuitionistic treatments of relevance that do not accept this postulate.
- 82.
Relevance logic is briefly explained in Section 4.6.3 below.
- 83.
See above, text to note 58.
- 84.
Federal Rules of Evidence, Rule 401.
- 85.
Generally speaking, so-called “legal proceduralists” or (in this context) “formalists” emphasize the institutional and structural aspects of decision-making processes independently of context, outcome, or “substantive” normative considerations.
- 86.
See, e.g., an overview in Mares and Meyer (2001), in Mares (2006), and in Dunn and Restall (2002), the latter being a rewritten version of Dunn (1986). An in-depth treatment is provided in Anderson and Belnap (1975), in Anderson and Dunn (1992), as well as, e.g., in a book by Stephen Read (1988, revised 2010).
- 87.
Apparently more frequently so in Australian logicians, and also in Britain. The French name is logique pertinente. Practitioners of relevant logic have been referred to as relevant logicians. More often, one finds theme referred to as Relevantists, but usually in opposition to the Classicists, in the context of the controversy between advocates of relevance logic and advocates of classical logic.
- 88.
The quotation is from http://en.wikipedia.org/wiki/Relevance_logic Concerning the history of relevance logic (ibid.): “Relevance logic was proposed in 1928 by Soviet (Russian) philosopher Ivan E. Orlov (1886–circa 1936) in his strictly mathematical paper ‘The Logic of Compatibility of Propositions’ published in Matematicheskii Sbornik. The basic idea of relevant implication appears in medieval logic, and some pioneering work was done by [Wilhelm] Ackermann [(1956)], [Shaw-Kwei] Moh [(1950)], and [Alonzo] Church [(1951)] in the 1950s. Drawing on them, Nuel Belnap and Alan Ross Anderson (with others) wrote the magnum opus of the subject, Entailment: The Logic of Relevance and Necessity in the 1970s (the second volume being published in the nineties). They focused on both systems of entailment and systems of relevance, where implications of the former kinds are supposed to be both relevant and necessary.”
The history as related by Stephen Read (1988, but in the revised edn., 2010, section 3.5, p. 44) is as follows: “In 1958, Anderson and Belnap took up ideas from Church and Ackermann, and started a research program into what in time became ‘relevance (now often called, ‘relevant’) logic’. Their chosen name picked up an informal use before that time of the epithet ‘relevant’ to characterise a consequence relation, and an implication, which was not paradoxical in the way material and strict implication were […]”.
- 89.
- 90.
“The material conditional, also known as material implication, is a binary truth function → such that the compound sentence p→q (typically read ‘if p then q’ or ‘p implies q’) is logically equivalent to the negative compound: not(p and not q). A material conditional compound itself is often simply called a conditional. By definition of ‘→’, the compound p→q is false if and only if both p is true and q is false. That is to say that p→q is true if and only if either p is false or q is true (or both)” (http://en.wikipedia.org/wiki/Material_conditional).
- 91.
See http://en.wikipedia.org/wiki/Paradoxes_of_material_implication
Paradoxes of material implication include:
where ␕ is negation, (like ∼ in Yovel’s Sec. 4.6.2). Paradoxes of strict implication include:
- 92.
Also this quotation is from http://en.wikipedia.org/wiki/Relevance_logic
- 93.
“In logic and proof theory, natural deduction is a kind of proof calculus in which logical reasoning is expressed by inference rules closely related to the ‘natural’ way of reasoning. This contrasts with the axiomatic systems which instead use axioms as much as possible to express the logical laws of deductive reasoning” (http://en.wikipedia.org/wiki/Natural_deduction)
- 94.
“In proof theory, a sequent is a formalized statement of provability that is frequently used when specifying calculi for deduction. In the sequent calculus, the name sequent is used for the construct which can be regarded as a specific kind of judgment, characteristic to this deduction system” (http://en.wikipedia.org/wiki/Sequent). “In proof theory and mathematical logic, sequent calculus is a family of formal systems sharing a certain style of inference and certain formal properties. The first sequent calculi, systems LK and LJ, were introduced by Gerhard Gentzen in 1934 as a tool for studying natural deduction in first-order logic (in classical and intuitionistic versions, respectively)” (http://en.wikipedia.org/wiki/Sequent_calculus).
- 95.
Also this quotation is from http://en.wikipedia.org/wiki/Relevance_logic
- 96.
See note 94.
- 97.
- 98.
- 99.
If A causes B and A causes C, then B and C are correlated. By contrast, A and B are related, and A and C are related. See, e.g., Papineau’s (1991) ‘Correlations and Causes’.
- 100.
Hidden relevance is sometimes the key in a joke. For example, Richard Whitely (1993) tells a joke about a visitor passing in the countryside. The visitor stops and asks a farmer for the time. Crouching down beside a cow in the pasture, the farmer lifts her udder, and tells his interlocutor that it’s ten to one. Astounded, the visitor asks him: “How can you tell time by feeling a cow’s udder?” The farmer explains that by lifting up the udder, one can see the church clock across the valley. Clearly, here presentation matters, as the punchline (revealing that lifting the udder is relevant indeed) comes at the end of the narration. Lifting the cow’s udder is relevant in the given context, because it was an obstacle to seeing the clock. The visitor is astonished because his expectation is violated, that it cannot possibly be relevant, for telling the time, that a person would feel a cow’s udder. The general rule that if you feel a cow’s udder, you become able to tell the time, is a false rule, because the premise and the conclusion are not relevant to each other. It is only in the given context – namely, that the cow’s udder, as being an opaque object, cannot be looked through, and that behind it, in a straight line, the clock would be visible were it not for the obstacle – that lifting the udder is quite relevant for being able to tell the time.
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Nissan, E. (2012). Computer Assistance for, or Insights into, Organisational Aspects. In: Computer Applications for Handling Legal Evidence, Police Investigation and Case Argumentation. Law, Governance and Technology Series, vol 5. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-8990-8_4
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