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Assignments
(tentative & evolving syllabus)

Seminar: Theories of Evidence
Fall Semester, 2008
Cardozo Law School
Professor Peter Tillers



General Plan

In roughly the first 2/3 of the semester the leader of the seminar (P. Tillers) will (i) survey several approaches to the study of evidence and inference in legal proceedings and (ii) examine two or three problems of evidence that raise fundamental questions about the nature of inference and proof in legal settings. 

In the remaining 1/3 of the semester the other members of the seminar will orally present their research and their draft papers. (For details about these oral  presentations, please go here.)

 

 

Assignment 1

Assignment 2

Assignment 3

Assignment 4

Assignment 5

Assignment 6

Assignment 7

Assignment 8

Assignment 9

Assignment 10

Assignment 11

The vagaries of the academic calendar mean that this seminar will meet only 11 (rather than 14) times this semester. However, the law school has extended the length of each weekly seminar session to compensate for this truncation of the number of seminar sessions.


Assignments
Seminar in Theories of Evidence
Cardozo Law School
Fall Semester, 2008
Professor Peter Tillers


Assignment for Week 1

General Introduction


Peter Murphy, EVIDENCE, PROOF, AND FACTS (Oxford, 2003) [hereafter "EVIDENCE, PROOF, AND FACTS"], pp. 1-10 & 15-22 (omit section "The Problem of Probability," pp. 10-15), in "Evidence, Proof, and Facts: An Introductory Essay")
Note: This introductory essay assumes a fair amount of knowledge of intellectual history. It is also highly condensed; it takes, in a few sentences, definite positions about some extraordinarily complex issues. Although these qualities of the essay do not make it a bad piece of work -- (i) I think the essay is in fact very useful, and (ii) one of the functions of the course book, a book of readings, is to provide you with the necessary background & details --, it remains true that parts of the "introductory" essay are likely to be rather inaccessible to people who are just beginning their study of evidential inference. In the first class I will try to clarify a few aspects of Murphy's penetrating essay and I will resurrect some of the issues that he answered in a specific way. (But the mere fact that I plan to resurrect such "resolved" issues does not necessarily mean that the essayist gave the wrong answers or that I think he did.)




Assignment for Week 2



What Is Evidence?


EVIDENCE, PROOF, AND FACTS, pp. 25-26 (Jeremy Bentham, "On Evidence")

EVIDENCE, PROOF, AND FACTS, pp. 27-30 (David Schum, "What Is Evidence?")

 

Blogs on the definition or concept of evidence:

See http://tillerstillers.blogspot.com/2004/07/what-is-evidence.htm#comments

See http://tillerstillers.blogspot.com/2004/08/what-is-evidence-part-2.htm

See http://tillerstillers.blogspot.com/2004/10/what-is-what-is-evidence.html

See http://tillerstillers.blogspot.com/2004/10/support-for-proposition-that-values.html

See http://tillerstillers.blogspot.com/2004/11/causes-associations-signs.html

See http://tillers.net/course-advance/evidence-fact-law.html

See http://tillerstillers.blogspot.com/2005_03_27_tillerstillers_archive.html

See http://tillerstillers.blogspot.com/2008/04/assault-this-definition-please.html

See http://tillerstillers.blogspot.com/2008/04/assault-this-revised-definition-of.html

See http://tillerstillers.blogspot.com/2008/04/what-is-evidence-in-american-trials.html





Assignment for Week 3


What Is Inference?: An Introduction to Forms of Factual Inference


On deduction: EVIDENCE, PROOF, AND FACTS, pp. 78-90 (Chapter 2, Section 1).

On induction:  EVIDENCE, PROOF, AND FACTS, pp. 92-101 (Chapter 2, Section 2).

More on deduction & induction: EVIDENCE, PROOF, AND FACTS, pp. 103-139 (Chapter 2, Section 3).

On intuition: Old Chief v. United States, 519 U.S. 172 (1997) (assessment of evidence involves more than "linear reasoning"); Hermann Helmholtz, "The Facts of Perception" (1878)

On abduction:  Charles Saunders Peirce on Inference, Deduction, Induction, and Abduction (in some circumstances a/k/a retroduction)



Assignment for Week 4


One Approach to Uncertainty in Inference and Proof: Conventional Probability Theory

EVIDENCE, PROOF, AND FACTS, pp. 459-468 (People v. Collins, 68 Cal. 2d 319, 438 P.2d 33, 66 Cal. Rptr. 497 (1968))

EVIDENCE, PROOF, AND FACTS, pp. 507-528 (Laurence Tribe, "Trial by Mathematics")

Background: George Fisher, in EVIDENCE STORIES 7 (Foundation Press: Richard Lempert, ed., 2006)
Extract from Richard Lempert's "Modeling Relevance," at http://tillers.net/ev-course/materials/lempert.html

Peter Tillers, "Making Bayesian Thinking (More) Intuitive," at http://tillers.net/ev-course/materials/tillersbayes.html

For a more elaborate (but more rigorous) intuitive explanation of Bayesian logic, see Eliezer Yudkowsky, An Intuitive Explanation of Bayesian Reasoning

Background Material: "Interpretations of Probability," in the Stanford Encyclopedia of Philosophy

  • Unless you have a background in mathematics and probability, I suggest that you merely scan this background material or read it lightly. You should not feel bad if you cannot follow some or most of the discussion. This material is difficult. However, if you do decide to struggle with the material from the Stanford Encylopedia, you will find the effort rewarding.

    •  

     

    Assignment for Week 5

     An Alternative Approach to Uncertainty in Inference and Proof:  "Baconian" Induction with Generalizations

    EVIDENCE, PROOF, AND FACTS, pp. 424-431 (L.J. Cohen, "Introduction")

    EVIDENCE, PROOF, AND FACTS,  pp. 342-344 (L.J. Cohen, "The Difficulty about Proof beyond Reasonable Doubt")

    EVIDENCE, PROOF, AND FACTS, pp. 495-505 (L.J. Cohen, "The Grading of Inductive Probability")

    The last of the above three passages is the most important. However, you may find the prose there impenetrable. I will try to clarify matters a bit in class.

     


    Assignment for Week 6

    Inference Networks and Alternatives to Inference Networks

     

    P. Tillers, "Webs of Things in the Mind: A New Science of Evidence," (review essay), 87 Michigan Law Review 1225 (1989)

    P. Tillers, Notes on Probability and Uncertainty in Law (skim)

    Review Old Chief v. United States, 519 U.S. 172 (1997)

    P. Tillers, "Are There Universal Principles or Forms of Evidential Inference?"


     

    Background Material

    Michael S. Pardo, "Comment: Juridical Proof, Evidence, and Pragmatic Meaning: Toward Evidentiary Holism," 95 Nw. U.L. Rev. 399 (2000)

    Jennifer Mnookin, Atomism, Holism and the Law of Evidence

    United States v. Shonubi, 895 F.Supp. 460 (E.D.N.Y. 1995) (Weinstein, J.; a lengthy and interesting opinion that includes discussion of role of judicial judgment and discretion in the assessment of evidence)

     

    Assignment for Week 7

     

    Exploratory Discovery & Evidence Marshaling for Pretrial Investigation and Preparation: Theory and Technology


    P. Tillers & D. Schum, A Theory of Preliminary Fact Investigation, 24 U.C. Davis L. Rev. 931 (1991)

    Play with MarshalPlan 2.2

    Cf. the visually and technically snazzy software Rationale. You can download a trial version of the software here. If you do so, consider how Rationale differs from MarshalPlan.

     

    Assignment for Week 8

    Reference Classes, Generalizations, Drug Smugglers & Group-to-Individual Inference
    EVIDENCE, PROOF, AND FACTS, pp. 216-231 (Chapter 3 Section 5)

    United States v. Shonubi ("Shonubi IV"), 103 F.3d 1085 (2d Cir., 1997) (Nigerian swallowers of balloons stuffed with heroin-larded paste who were arrested for drug trafficking at JFK airport during a ca. two-year period)

    P. Tillers, United States v. Shonubi: A Statistical Oddity?

    Colyvan, Ferson & Regan, Is It a Crime to Belong to a Reference Class?

    If Wishes Were Horses

  • Although Shonubi -- the case that prompted the writing of the three essays found above -- involved a question about the use of statistics, the question of the validity of group-to-individual inference is much more than just a problem in statistical inference. The problem of group-to-individual inference arises in a wide variety of settings -- e.g., racial "profiling" on the New Jersey Turnpike, use of gang behavior and creeds to show behavior or mental acts of individual gang members, use of religious or political beliefs to show behavior. Cf. Blog: Rap Expert; the Social Mores of Rappers


    •  

    Background Material

    Problem: Prison Yard

    Commonwealth v. Tirado (1977) (Puerto Rican machismo?)

    United States v. Abel (1984) (Aryan Brotherhood)

    Dawson v. Delaware (1992) (Aryan Brotherhood)

    Wisconsin v. Mitchell (1993)

    United States v. Thomas (1996) (Mafia Lords)

    Barnes v. City of New York (2002) (Five Percenters)

    United States v. Shonubi ("Shonubi V"), 962 F. Supp. 370 (E.D.N.Y. 1997) (Weinstein, J., chides Second Circuit for prescribing an analogue to medieval quantitative valuation of different forms of evidence; the irony is perfect and was probably intended)

    Blog: Blog: Are You Burdened by Your Reference Classes? (July 10, 2004)

    Blog: Groups (of People) and Inferences about Individual Members of Groups (of People): Thoughts Provoked by Professor Sharon Davies – but through absolutely no fault of hers! (Aug. 29, 2002).


     

    Assignment for Week 9


    Sudden Infant Death Syndrome & Wilson: Did Lightning Strike Twice or Was It Murder?


    Wilson v. Maryland

    Simulated dice games that illustrate the product rule (assuming independence):
    1, 2, 6, or 9 dice; 1,10, 20, or 100 rolls

    two dice; results

    1 or 2 dice thrown up to 500x
    Prosecutor's Fallacy (which mathematicians view as an example of the more general fallacy of transposing probabilities)





    Background Mateial


    The Sally Clark Case:

    Sally Clark - victim of a miscarriage of justice

    Blog, July 14, 2005: SIDS a/k/a Cot Death & the Doctrine of Chances in the UK: The Sally Clark Case

    Blog, Dec. 3, 2003: SIDS, Statistics, Accidents, Genetics, & Criminal Guilt – and, for Connoisseurs of the Law of Evidence, the "Doctrine of Chances"

    Helen Joyce, Beyond Reasonable Doubt

    Compilation of Well-Reasoned Newspaper Articles about Sally Clark Case

    "Sally Clark Doctor Wins GMC case" -- BBC Feb. 17, 2006

    Wikipedia: Prosecutor's Fallacy and the Sally Clark Case
    Cf. Evaluating Legal Evidence

    Probability Studies & Exercises for Problems such as "Multiple SIDS Deaths & Murder": Dice & Similar Devices
    Illustrations of the Workings of the Basic Product Rule (assuming independence):
    1, 2, 6, or 9 dice; 1,10, 20, or 100 rolls

    two dice; results

    1 or 2 dice thrown up to 500x
    Adding probabilities (dice examples):
    fallacy of 100%
    Relative frequency = probability?:
    see left-hand side of chart
    Standard and non-standard dice:
    standard dice; charts illustrate distributions for different numbers of dice

    http://www.dice.co.uk/fs_edu.htm
    Non-standard non-Platonic solids but fair dice (isohedrons; symmetrical):
    non-standard but fair
    Loaded dice:
    http://www.dice.co.uk/fs_other.htm
    How fair are real fair dice?:
    http://www.americanmusicscene.com/site/46828-loaded-dice.html
    Coincidence(?) (bridge hands):
    http://www.maa.org/features/mathchat/mathchat_9_7_00.html
    Hypergeometric: lottery game:
    http://www.math.csusb.edu/faculty/stanton/probstat/lotto.html






    Assignment for Week 10


    Oral Presentations




     


    Assignment for Week 11

    Oral Presentations






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