Kaptein, Prakken & Verheij: Legal Evidence and Proof: Statistics, Stories, Logic

Professor Hendrik Kaptein of Leiden University, and Professor Henry Prakken and Professor Bart Verheij, both of the University of Groningen, have published an article collection entitled Legal Evidence and Proof: Statistics, Stories, Logic (2009). Here is the abstract:

“As a result of recent scandals concerning evidence and proof in the administration of criminal justice – ranging from innocent people on death row in the United States to misuse of statistics leading to wrongful convictions in The Netherlands and elsewhere – inquiries into the logic of evidence and proof have taken on a new urgency both in an academic and practical sense.

“This study presents a broad perspective on logic by focusing on inference not just in isolation but as embedded in contexts of procedure and investigation. With special attention being paid to recent developments in Artificial Intelligence and the Law, specifically related to evidentiary reasoning, this book provides clarification of problems of logic and argumentation in relation to evidence and proof.

“As the vast majority of legal conflicts relate to contested facts, rather than contested law, this volume concerning facts as prime determinants of legal decisions presents an important contribution to the field for both scholars and practitioners.”

Here is the table of contents:

• Burdens of evidence and proof: why bear them? A plea for principled opportunism in (leaving) legal fact-finding (alone), Hendrik Kaptein;
• The fabrication of facts: the lure of the credible coincidence, Ton Derksen and Monica Meijsing;
• Decision-making in the forensic arena, Ton Broeders;
• Analysing stories using schemes, Floris Bex;
• The evaluation of evidence: differences between legal systems, Marijke Malsch and Ian Freckelton;
• Inference to the best legal explanation, Amalia Amaya;
• Accepting the truth of a story about the facts of a criminal case, Bart Verheij and Floris Bex;
• Rigid anarchic principles of evidence and proof: anomist panaceas against legal pathologies of proceduralism, Hendrik Kaptein;
• A logical analysis of burdens of proof, Henry Prakken and Giovanni Sartor;
• 12 angry men or one good woman? Asymmetric relations in evidentiary reasoning, Burkhard Schafer.

Professor Douglas Walton of the University of Windsor Centre for Research in Reasoning, Argumentation and Rhetoric has published a review of this book, forthcoming in Artificial Intelligence & Law.

Facciola & Redgrave on Asserting and Challenging Privilege Claims in Modern Litigation

The Honorable John M. Facciola, United States Magistrate Judge for the United States District Court for the District of Columbia, and Jonathan M. Redgrave, Esq., of Nixon Peabody LLP, have published Asserting and Challenging Privilege Claims in Modern Litigation: The Facciola-Redgrave Framework, 4 Federal Courts Law Review 19 (2009). Here is the abstract:

The volume of information produced by electronic discovery has made the process of reviewing that information, to ascertain whether any of it is privileged from disclosure, so expensive that the result of the lawsuit may be a function of who can afford it. The volume also threatens the ability to accurately identify and describe relevant and privileged documents so that the system of claims and adjudication teeters on the brink of effective failure.

The authors submit that the majority of cases should reject the traditional document-by-document privilege log in favor of a new approach that is premised on counsel’s cooperation supervised by early, careful, and rigorous judicial involvement. That cooperation, having first led to an agreement as to what categories of information will be eliminated from any privilege review because the information is so clearly not privileged or so clearly privileged, will then focus on categorization of the information that must be reviewed. Claims of privilege will then be made and, if challenged, initially assessed by the judge on a categorical basis where what is true of a sample from the category is true of the category. This process involves the formal and informal exchange of information to substantiate the categories, with the goal of eliminating many potential disputes. They then propose a requirement of a detailed description for the information withheld as privileged which remains subject to dispute so that the necessity of in camera review is reduced to a minimum. The preparation of this more detailed log for a narrowly targeted population will be more useful and, in effect, much less burdensome because the number of documents which must be logged has been reduced to a minimum.

The authors consistently emphasize the necessity for counsels’ cooperation, enforced by strong judicial control and how Federal Rule of Evidence (FRE) 502 can be used to craft a sound agreement— incorporated in a court order—that should provide protection against any loss of privilege through waiver.

Finally, conceding that their approach requires good faith and cooperation, they insist that firm judicial punishment of cheating and gamesmanship will, in the long run, create a new regime of asserting privilege that makes much more sense than the old one, which may soon collapse, in light of the ever-increasing amount of information that the modern technological workplace is producing.

HT @complexd.

Legal Information Programs at NCA 2009

Several programs on legal information, sponsored by the National Communication Association (NCA) Communication and Law Division, will be offered at the NCA 95th Annual Convention, to be held November 12-15, 2009 in Chicago, Illinois, USA:

• Communicating and Enacting Universal Constructions of the Law, Nov. 14, 2:00 p.m.:
• Beth Goering (Indiana University-Purdue University, Indianapolis), Andrea Krause (Indiana University-Purdue University, Indianapolis), What’s ‘Justice for All’? A Thematic Analysis of Legal Discourse in Popular Television Programs in the U.S. and Germany
• Abstract: ‘“Reality” judge shows have emerged as a favorite genre of daytime television programming around the world. While these programs entertain us, they also serve a didactic function, shaping expectations about legal discourse. This project, situated at the confluence of intercultural communication, communication and the law, and media criticism, provides a comparative analysis of the values related to justice and the “rules” governing courtroom interaction presented on popular television programming in the United States and Germany.’
• Sanna Ala-Kortesmaa (University of Tampere), Tuula Valikoski (University of Tampere), Finnish Prosecutors and Listening: Focus on Facts, Forget Emotions?
• Abstract: ‘The reform of judicial proceedings altered the communicational role of Finnish prosecutors. Therefore this study examines what kind of meanings Finnish prosecutors perceive to be related to the concepts of listening, which have been indicated to predict the listening behavior.The study was conducted using the Listening Concepts Inventory (LCI).The participant sample consisted of 96 prosecutors. Data were analyzed using SPSS. The findings differed somewhat from the findings of previous studies using the LCI.’
• Diana Winkelman (University of Southern California), Perelman’s Universal Audience and the International Criminal Court: A Rhetorical Analysis of US Opposition to the ICC
• Abstract: ‘This paper examines United States congressional opposition to the International Criminal Court in 2000, using Perelman’s universal audience as an analytical framework. Globalization exposes the complexities of establishing normative standards of justice as traditionally bounded national, political and legal systems intersect and conflict with one another; meanwhile a growing global legal-public sphere continues to develop. Debates over the ICC discursively negotiate collective values, seek legitimacy, and reflexively generate international legal procedures, policies and rhetorics.’
• Theresa Donofrio (University of Maryland), Jackson’s Moral Drama: Synecdochic Logic and Abstraction in the Opening Statement at the Nuremberg Trial
• Abstract: ‘This paper examines Justice Robert H. Jackson’s opening statement at the Nuremberg Trial for the insight it provides into America’s understanding of World War II and its vision for a post-war order. I argue that Jackson employed a rhetoric of abstraction that encouraged the elision of the features of the trial that challenged its legitimacy, reduced individuals to emblems, and most insidiously, erased the thumbprint of American involvement on the trial.’
• Communicative Innovations and Evolutions Concerning Law and Technology, Nov. 12, 2:00 p.m.:
• Debra Worthington (Auburn University), Paper vs. ‘Clickers’: A Test of the Biasing Effects of Electronic Data Collection
• Abstract: ‘Litigation consultants are increasingly turning to new technologies to enhance the efficiency and accuracy of their data collection. However, few studies have addressed the potential effect that these methods may have on how mock jurors respond to and process information. Using student-subjects, the primary goal of this study was to test for differential effects between data collection using traditional paper surveys and “Clickers” (radio frequency touch pads).’
• Sandra Braman (University of Wisconsin, Milwaukee), Internet RFCs as Social Policy: Network Design from a Regulatory Perspective
• Abstract: ‘Internet architecture can either support or counter laws and policy. This paper reports on research mining the Internet design discourse for ways in which technical decision-makers deal with legal and policy issues. It provides a conceptual framework for and exemplars of the variety of interactions between technical and legal decision-making and explores interactions between the discourse and the evolution of formal policy-making processes for the Internet.’
• Renee Hobbs (Temple University), How Media Literacy Educators Understand Copyright and Fair Use
  • Abstract: ‘This paper describes the development of the Code of Best Practices for Fair Use in Media Literacy Education, which was created to articulate the consensus that exists among educators about the application of fair use to the practice of media literacy education.’
• Contested Constructions of Constitutional Law, Nov. 12, 3:30 p.m.:
  • Joshua Gonzalez (Wake Forest University), Expressive Theories of Law: Un-Persuasive
    • Abstract: ‘This paper seeks to analyze the potential strengths and weaknesses of expressive theories of law, as well as their potential applicability to the communication discipline. Using Elizabeth Anderson and Richard Pildes’ “Expressive Theories of Law: A General Restatement” as a representative example of contemporary expressive theories, I conclude that, while useful as a means of explaining harmful expressions, the lack of an adequate account of persuasion makes expressive theories largely deficient.’
  • Kevin Garner (William Jewell College), Prairie Endres (Texas Tech University), Queering the Courts: Bisexual and Transgender Exclusion in Judicial Opinions
    • Abstract: ‘The cases of Lawrence v. Texas (1998) and Rowland v. Mad River Local School District (1984) are examined to explicate the ways in which the language of the United States court system frames sexual preference and sexual orientation in favor of heteronormativity. The language of the Supreme Court, as well as the language of local courts, excludes the sexual orientations of gays, lesbians, bisexuals, transgender, and queer persons (GLBTQ) while giving preference to homosexual persons.’
  • Christopher Seaman (University of California, Santa Barbara), The problems with Miller v. California: A theoretical examination of the assumptions of obscenity law
    • Abstract: ‘The current work is a theoretical examination of the issues in both obscenity law and its application, through the use of three communication theories: the spiral of silence, the elaboration likelihood model, and structuration theory. The overall goal is to show how each theory can reveal part of the picture of how juries come to assess community standards in obscenity trials, address the underlying problems of obscenity law, and explore potential solutions.’
• Forensic Communication: Application of Communication Research to Courtroom Litigation, Nov. 14, 3:30 p.m.:
  • Abstract for This Program: ‘Virtually every discipline has a Forensic sub-area – forensics being the application of knowledge to courtroom litigation. We have forensic linguistics, forensic psychology, forensic anthropology, forensic entomology, and so on. Forensic communication is not a recognized sub-area of our discipline, however. Yet several scholars in the discipline perform expert-witness work applying communication research to legal issues in court. This panel presents examples in hopes of stimulating interest in a new sub-area of forensic communication.’
  • Michael Motley (University of California, Davis), Clarity and Connotations of Warning Labels and Instructions
    • Abstract: ‘Many lawsuits take this form: Someone gets hurt using a product; they sue; the defendant responds, in part, by claiming that the warning and/or instructions accompanying the product, if heeded, would have precluded the accident; and the clarity or likely interpretation of the warning or instructions becomes an issue. This talk will discuss how certain principles of semantics and communication can be applied to questions of message clarity.’
  • Debra Worthington (Auburn University), Bridging Disciplines: Psychology, Communication, and Hindsight De-biasing
    • Abstract: ‘The belief in a jury’s ability to render a fair and impartial verdict is a foundation of the judicial system. However, because the legal system asks jurors to render a verdict with knowledge of the original outcome of events, jurors can become susceptible to the human judgment phenomenon known as hindsight bias. This presentation explores the intersection of psychology and communication as it applies to this common cognitive heuristic identifying communicative strategies for reducing the bias.’
  • Charles Wesley Kim, Jr. (Yelman & Associates), Brian Spitzberg (San Diego State Univ), The Jurisprudence of Imprudent Behavior: Communication Challenges in Seeking Stalking Justice
    • Abstract: ‘Stalking is still a relatively new legal concept, and given that it often reflects an ongoing but unwanted relationship, it presents challenges in understanding how communication may be applied to its jurisprudential management. This presentation seeks to summarize three sets of work at the intersection between stalking research and applied communication. After a brief overview of basic stalking issues, including legal definitions and context, emphasis will focus on two complimentary lines of analysis. First, we examine the primary issues at stake in a stalking case, such communicating to judge and/or jury about issues such as intent, threat, pattern, coercion (i.e., the unwanted nature of the harassment), as well as the ‘reasonable person’ standard. Second, we explore potential communication strategies that perpetrators or victims may engage in that pose risks and opportunities for their courtroom outcomes, such as is implied by being a “bad witness” or failing evidence tests due to a lack of records of communication between the parties. Third, some of the more troublesome courtroom issues are explored, such as false victimization, abuse of judicial options as a means of harassment or counter-harassment, and the somewhat ironic implications of stalking as a ‘victim-defined’ crime.’
  • Frank Boster (Michigan State University), A Review of the Effect of Direct, Non-Physical Evidence on Trial Outcomes: Confessions and Eyewitness Testimony
    • Abstract: ‘There is a substantial literature examining confessions. One line of research considers their persuasive impact. Another considers the manner in which false confessions may be coerced. There is a parallel literature on the impact of eyewitness testimony. Because eyewitnesses have been found to be incorrect so frequently, the reasons for false identifications have been studied thoroughly as well. These studies are done primarily by psychologists. In this presentation I will summarize this literature with the purpose of making them familiar to communication scholars who, I believe, would have additional insights on these processes.’
  • Daniel Linz (University of California, Santa Barbara), Effects of Sexually Oriented Messages on Individuals and Communities
    • Abstract: ‘It is common these days to have legal conflicts between “adult entertainment” establishments (bookstores, dance clubs, etc.) and the communities in which the establishment wants to operate. This talk will discuss ways in which such litigation may be informed by research on the actual effects of these kinds of establishments on individuals and communities.’
• Top Papers in Communication and the Law, Nov. 13, 5:00 p.m.:
  • Ryan Malphurs (Texas A&M University), Could You Hear Me above the Laughter? The Role of Laughter at the U.S. Supreme Court
    • Abstract: ‘This paper expands previous studies of humor at the Court by questioning the communicative function of laughter in Supreme Court oral arguments. Using observations of nearly 40 Supreme Court arguments, audio files of 71 argument cases, and 2006-2007 transcripts of Court arguments, I argue that laughter enables lawyers and justices to negotiate the complex institutional, social, and intellectual barriers, which assists in stabilizing an argument to reach an understanding and fostering change in their decision.’
  • John Reinard (California State University, Fullerton), An Experimental Study of the Use of Voir Dire Questions to Preview Case Elements and Promote Positive Attitudes Toward Defendants
    • Abstract: ‘The influence of three types of voir dire questions was examined to test effects on ratings of defendant guilt, defendant credibility, defense attorney credibility, and prosecutor credibility. Results indicated that the use of strategic voir dire questions influenced decisions and ratings of trial participants. In particular, a main effect was produced by the use of questions requesting jurors to show empathy by reciprocating positively to the defense expressions of trust in them.’
  • Jeremiah Hickey (St. John’s University), Visions of Democracy: Partisanship, Race, Self-Government, and the Rhetoric of Reconciliation
    • Abstract: ‘This paper seeks to examine how competing assumptions concerning the nature of the communication process and competing ideological interpretations of the law contribute to the enactment of constitutional law and the development of political structure that this law supports. In this paper, I examine how the Supreme Court Justices employ competing rhetorical strategies in the “analytically distinct” cases of redistricting and reapportionment law to address the issue of racial reconciliation.’
  • Jennifer Andrus (Carnegie Mellon Univ), From Event to Text: The Effects of Entextualization in/on the Excited Utterance Exception to Hearsay
    • Abstract: ‘In this paper, I argue that assumptions about language circulated in US evidence law minimize the rhetoricity of some utterance and the actual differences between texts and events (Scheppele). I analyze trial and appellate language in which the excited utterance exception to hearsay is used, to argue that such utterances are actually entextualized–made into a recognizable “excited utterance.” Further, such practices ultimately affect the agency of the speaker of the “excited utterance utterance.”’
• What Can We Learn from the California Gay Marriage Debates?
  • Abstract for This Program: ‘This panel is the result of a research collaboration that took place in spring 2009 that compares and contrasts the legal and political arguments that took place in California in 2007/2008 that produced contrary decisions about how to define “marriage.” Two goals motivate the proposal: 1) To improve our scholarly understanding of how “reasonableness” was performed differently in the technical and public settings of the California debate; 2) To consider what role argumentation critics might play as the national debate over gay marriage continues.’
  • Justin Killian (University of Minnesota, Twin Cities), Public Arguments Supporting Proposition 8
    • Abstract: ‘This presentation reviews the four major arguments in print and video made in favor of Prop 8: Marriage is correctly defined as between a man and a woman, the people should define rather than the courts, the California Supreme Court decision will lead to bad consequences, and gay couples are already protected by California’s Domestic Partnership Act.’
  • Emily Berg (University of Minnesota, Twin Cities), How to Secularize a Religious Argument: An Examination of Selected Amici Briefs Filed in In re Marriage Cases
    • Abstract: ‘Amici Curiae briefs are an underappreciated source for understanding legal argumentation. This presentation is based on a review of all 45 amici briefs filed for In re Marriage Cases and will focus in particular on how advocates attempted to “secularized” otherwise religious arguments opposed to gay marriage in order to be “reasonable” according to the norms and practices of constitutional argument.’
  • Jon Hoffman (University of Minnesota, Twin Cities), Public Arguments Opposing Proposition 8
    • Abstract: ‘This presentation reviews the major arguments opposing Prop 8: That Prop 8 is discriminatory, the Courts should decide civil rights rather than popular vote, the bad consequences predicted by proponents are not true, and marriage should be about love and commitment. Limitations of the arguments deployed by Prop 8 opponents are noted.’
  • Edward Schiappa (University of Minnesota, Twin Cities), Lost in Translation: Considering the Role of Argument Critics in the Gay Marriage Debate
  • Abstract: ‘This presentation notes the very different performances of “reasonableness” that took place in the technical sphere of constitutional argument and the public sphere of the Prop 8 debate leading up to the election. The role of argument critics as “translators” of the technical sphere is offered as an appropriate role for argument critics interested in civic engagement.’

If you know of other legal information programs at NCA 2009, please identify them in the comments.

Additional conference programs are searchable here. For more information, please see the conference Website.

Schauer on Lie Detection, Neuroscience, Legal and Scientific Norms

[NOTE: Updated on 15 November 2009 to link to videos of Prof. Schauer's presentation at the University of Buffalo's Baldy Center HT Jim Milles.]

Professor Frederick Schauer of the University of Virginia School of Law has published a revised draft version of Can Bad Science Be Good Evidence? Lie Detection, Neuroscience, and the Mistaken Conflation of Legal and Scientific Norms, forthcoming in Cornell Law Review, and will present this paper at The Baldy Center for Law & Social Policy, at the University of Buffalo Law School, on November 12, 2009. (Videos of that presentation are available here. HT Jim Milles.) Here is the abstract:

“As the capabilities of cognitive neuroscience, in particular functional magnetic resonance imaging (fMRI) ‘brain scans,’ have become more advanced, some have claimed that fMRI-based lie-detection can and should be used at trials and for other forensic purposes to determine whether witnesses and others are telling the truth. Although some neuroscientists have promoted such claims, most aggressively resist them, and arguing that the research on neuroscience-based lie-detection is deeply flawed in numerous ways. And so these neuroscientists have resisted any attempt to use such methods in litigation, insisting that poor science has no place in the law. But although the existing studies have serious problems of validity when measured by the standards of science, and [although it is] true as well that the reliability of such methods is significantly lower than their advocates claim, it is nevertheless an error to assume that the distinction between good and bad science, whether as a matter of validity or of reliability, is dispositive for law. Law is not only about putting criminals in jail, and numerous uses of evidence in various contexts in the legal system require a degree of probative value far short of proof beyond a reasonable doubt. And because legal and scientific norms, standards, and goals are different, good science may still not be good enough for some legal purposes, and, conversely, some examples of bad science my, in some contexts, still be good enough for law. Indeed, the exclusion of substandard science, when measured by scientific standards, may have the perverse effect of lowering the accuracy and rigor of legal fact-finding, because the exclusion of flawed science will only increase the importance of the even more flawed non-science that now dominates legal fact-finding. And thus the example of neuroscience-based lie detection, while timely and important in its own right, is even more valuable as a case study suggesting that Daubert v. Merrill-Dow Pharmaceuticals may have sent the legal system down a false path. By inappropriately importing scientific standards into legal decision-making with little modification, Daubert confused the goals of science with those of law, a mistake that it is not too late for the courts to correct.”

Roitblat et al. on Document Categorization in Legal Electronic Discovery

Herbert L. Roitblat, Anne Kershaw, & Patrick Oot, all of the Electronic Discovery Institute, have published Document Categorization in Legal Electronic Discovery: Computer Classification vs. Manual Review, forthcoming in Journal of the American Society for Information Science and Technology. Here is the abstract:

“In litigation in the US, the parties are obligated to produce to one another, when requested, those documents that are potentially relevant to issues and facts of the litigation (called discovery). As the volume of electronic documents continues to grow, the expense of dealing with this obligation threatens to surpass the amounts at issue and the time to identify these relevant documents can delay a case for months or years. The same holds true for government investigations and third-parties served with subpoenas. As a result, litigants are looking for ways to reduce the time and expense of discovery. One approach is to supplant or reduce the traditional means of having people, usually attorneys, read each document, with automated procedures that use information retrieval and machine categorization to identify the relevant documents. This study compared an original categorization, obtained as part of a response to a Department of Justice Request and produced by having one or more of 225 attorneys review each document with automated categorization systems provided by two legal service providers. The goal was to determine whether the automated systems could categorize documents at least as well as human reviewers could, thereby saving time and expense. The results support the idea that machine categorization is no less accurate at identifying relevant/responsive documents than employing a team of reviewers. Based on these results, it would appear that using machine categorization can be a reasonable substitute for human review.”

Background information about this study is available here.

eDiscovery Developments in US Federal Courts

Two recent developments respecting electronic discovery in U.S. federal courts may be of interest.

First, the Federal Judicial Center has published National, Case-Based Civil Rules Survey: Preliminary Report to the Judicial Conference Advisory Committee on Civil Rules (October 2009). Here is the abstract:

“This report presents preliminary findings from a survey of attorneys in recenty closed civil cases which the Federal Judicial Center conducted in May and June 2009. Nearly half of the attorneys invited to participate responded. The report covers discovery activities and case management in the closed cases; electronic discovery activities in the closed cases; atorney evaluations of discovery in the closed cases; the costs of litigation and discovery; and attitudes toward specific reform proposals and, more generally, the Federal Rules of Civil Procedure.”

Second, this month the United States Court of Appeals for the Seventh Circuit launched an Electronic Discovery Pilot Program, and published a Statement of Purpose and Preparation of Principles (Oct. 1, 2009) respecting that program.

Both the FJC report and the 7th Circuit program will be discussed at two upcoming conferences:

• The Annual Meeting & Judicial Conference of the Seventh Circuit Bar Association, to be held May 2-4, 2010, in Chicago (details about the conference will be announced on the bar association’s Website);
• Conference of the Judicial Conference of the United States, Advisory Committee on Civil Rules, to be held May 10-11, 2010, at Duke University (for details, see the Nixon Peabody announcement (please scroll down)).

HT @PosseList & Nixon Peabody LLP.

Fordham on Empirical Juror Research in Western Australia

Professor Judith Fordham of Murdoch University’s School of Biological Sciences and Biotechnology, has given a paper entitled Bad Press: Does the Jury Deserve It?, at the 36th Australian Legal Convention, held September 17-19, 2009, in Perth. The paper describes results of three empirical studies utilizing semi-structured interviews with jurors following criminal trials. The studies concerned “Jurors, Juries, and Expert Evidence”, “Jury Intimidation,” and “Jury Experience.” Final reports on the studies were submitted to the Attorney General of Western Australia, and do not appear to have been made public.

Professor Fordham summarized the major findings of the research as follows:

• “[M]ost jurors identify prejudice within themselves, and direct themselves to put their prejudices aside and concentrate on the facts”;
• Most jurors “take … very seriously” the court’s instructions to put aside prejudices and to decide on the basis of the evidence;
• Some jurors conducted their own investigations of evidence, notwithstanding courts’ prohibiting such investigations;
• 51% of juror respondents “indicated the verdict [in their case] was the right one” because they believed that the verdict was “based on evidence”;
• 28% of juror respondents “indicated the verdict [in their case] was not the right one” “based on evidence”;
• The researchers “found almost no evidence of any media influence” on verdicts;
• Many jurors reported that deliberations were influenced by jurors’ desire simply “to go home”;
• Jurors reported wishing they had had clearer instructions from the court respecting law and facts early in the trial;
• Jurors help each other understand complicated evidence, but many jurors nonetheless have difficulty understanding complicated evidence;
• Jurors are aware of the possibility that relevant evidence has been kept from them;
• Respecting expert evidence, jurors appeared to understand the potential for bias in expert evidence, and considered the consistency of such evidence. Jurors gave more weight to evidence of experts considered to be independent, but jurors also generally gave expert evidence more weight than lay evidence;
• Professor Fordham concludes that the results “support[] the existence of [the] ‘tech effect’” described by the Hon. Donald E. Shelton et al. in A Study of Juror Expectations and Demands Concerning Scientific Evidence: Does the “CSI Effect” Exist? as the phenomenon that “jurors [] significantly expect that prosecutors will use the advantages of modern science and technology to help meet their burden of proving guilt beyond a reasonable doubt. … [T]he origins of those expectations lie in the broader permeation of the changes in our popular culture brought about by the confluence of rapid advances in science and information technology and the increased use of crime stories as a vehicle to dramatize those advances.”

On the basis of the research results, Professor Fordham recommends the following:

• Juries should be provided with “a jury facilitator and/or a deliberation guidebook”;
• Improvements should be made “in modes of presentation of evidence” and in “the technical and scientific knowledge of all ‘players’ in the system: judges, counsel, courtroom architects, and prosecuting agencies”.

Professor Fordham’s paper is cited in a new report by the Law Reform Commission of Western Australia, entitled Selection, Eligibility and Exemption of Jurors: Discussion Paper (September 2009).

An initial report on the research was published as Muddying the Waters with Red Herrings: Jurors, Juries, and Expert Evidence, in Law and Psychology (Freeman and Brooks-Gordon eds. 2006) (Current Legal Issues ; v. 9).

Here is a news article from The Australian describing the paper.

HT @TheJuryExpert.

Atzenbeck et al. on Linking & Organising Information in Law Enforcement Investigations

Dr. Claus Atzenbeck, of the German University in Cairo, Faculty of Media Engineering and Technology; Fatih Ozgul, of the University of Sunderland, Department of Computing & Technology, & Professor David L. Hicks, of the Aalborg University, Department of Electronic Systems, have published Linking and Organising Information in Law Enforcement Investigations, in Information Visualisation, 2009 13th International Conference, 15-17 July 2009, pages 443 – 449. Here is the abstract:

“Law enforcement officers deal with various challenges regarding the management of information during an investigation. New information comes in frequently, some of it is uncertain, incorrect, or incomplete. Officers should be supported in developing interpretations of the provided information. Furthermore, it is beneficial (and demanded by some investigation methodologies) to record the progression of the analysis. In order to fulfill these requirements, we propose a spatial hypertext-based application, as part of an open framework. This enhances collaborative work on uncertain, incomplete, and frequently changing information structures and provides access to other applications used in investigations.”

Schauer on Lie Detection, Neuroscience, and Legal and Scientific Norms

Prof. Frederick Schauer of the University of Virginia School of Law has published a draft version of Can Bad Science Be Good Evidence: Lie Detection, Neuroscience, and the Mistaken Conflation of Legal and Scientific Norms, a paper delivered at the Cuarto Foro Sobre Epistemología Jurídica = Mini-Foro on Proof and Truth in the Law, held on September 4-5, 2009, in Mexico City, at the Instituto de Investigaciones Filosóficas (IIFs) = Institute for Philosophical Research, Universidad Nacional Autonoma de México (UNAM). Here is the abstract:

“As the capabilities of cognitive neuroscience, in particular functional magnetic resonance imaging (fMRI) ‘brain scans,’ have become more advanced, some have claimed that fMRI-based lie-detection can and should be used at trials and for other forensic purposes to determine whether witnesses and others are telling the truth. Although some neuroscientists have been at the forefront of promoting such claim, most neuroscientists aggressively resist them, and have argued that the existing research on neuroscience-based lie-detection is deeply flawed in numerous ways. And so these neuroscientists have resisted any attempt to use such methods in litigation, arguing, in effect, that they are the product, so far, of poor science. But although it is probably true that the existing studies have serious problems of validity when measured by the standards of science, and true as well that the reliability of such methods is significantly lower than their advocates claim, it is nevertheless an error to assume that the distinction between good and bad science, whether as a matter of validity or a matter of reliability, should be dispositive for law. Law is not only about putting criminals in jail, and once we understand that numerous uses of evidence in various contexts in the legal system require a degree of probative value far short of proof beyond a reasonable doubt, we can understand the larger point that legal and scientific norms and standards are different. Some examples of good science may still not be good enough for some legal purposes, and, conversely, some examples of bad science my, in some contexts, still be good enough for some legal purposes.”

HT @TheJuryExpert.