January 4

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Contents

Introduction

  • Necker cube; problem in point of view. Metaphor for dispute; facts take their meaning from context.
    • Dispute resolution is at the core of legal strategy. Its methodology = seeing dispute from both sides, in an organized fashion.
    • Dispute understood as narrative; the legal process is structuring the creation of narrative.
  • Wiki is a radical idea. Open to everyone.
    • The community stays open and resists the vandals by modeling and being stronger.
    • The power of narrative, telling our own stories and amplifying others

Jamaica

  • An armed garrison.
  • No hangings from 1980 on because they were protected by the bosses
  • The british ruled that it was a violation of human rights to keep someone on death row for longer than 5 years. Led to a huge release of people into the general populations.
  • Prison worker; once you become aware of yourself, then you become aware of other.
  • Singing groups formed that performed at chuches. People could take furloughs, would leave on Friday and come back on Monday. The guards hated this. Went on strike demanding that he be fired. But the inmates kept order by themselves. The guards struck for 18 months.
  • The guards come back, they use violence, some inmates escape, then the previous order is reestablished.
  • But a computer lab was left. It stuck around until a new commissioner came in who supported it.
  • Prison dude now supporting a system of restorative justice
  • Jah cure. Famous since being in prison. Highly controversial video, in the middle of which he asserts his innocence. This has spawned the free jah cure movement, putting huge pressure on the victim to recant.
    • Huge controversy
    • Several radio stations have ceased playing jah cure music
    • Kevin has decided to look through the facts. Has made a radio program of the reading of the transcript.
    • This has a Necker cube aspect

Point of view

  • Is there a third point of view for the necker cube? Yes, can make another shape that will generate that same image. ‡
  • Two kinds of truths
    • correspondence with reality
    • coherence
  • from the evidence, we coalesce a point, a belief. It’s truth to us. If we say what the law is doing, the law is structuring the dispute, and attempting through its process to create a coherent body of evidence that generates a narrative that is asserted to be the point that prevails (‘here is where you are standing)

Sufficiency

  • Alcock trial
  • At the conclusion of the direct case, can do a motion to dismiss 12(b)(6)
  • Sufficiency appears at a variety of different levels of the process of structuring the way evidenece comes together.
    • First: when evidence is introduced
  • You start from an assumption that D is innocent. The question becomes, has your assumption been displaced by sufficient evidence from P to warrant a guilty conclusion

The Rim

  • ford hits chevy. Rim found 200 ft from the point of impact.
  • The expert will testify that the speed at impact must have been 70 mph
  • Process of introduction
    • P: call investigator
      • Investigator says where and when he found the rim.
      • “i show you plaintiff’s exhibit 1 for identification”
      • take him back in time to the point of whatever the event is that happened
      • the investigator draws a diagram
    • P: offers the exhibit into evidence
    • Defense: objection (without objection, it’s gone)
    • Judge: grounds?
    • Defense: lack of foundation
    • Judge: sustained
    • P: investigator, was the ford missing a rim?
    • Investigator: yes
    • P: offers the exhibit into evidence again
    • Judge: grounds?
    • D: wants to ask investigator questions before the rim is admitted
    • Judge: the question is whether there is evidence to support the conclusion that this is what it purports to be. All this cross examination would do is add to what the jury should consider when deciding whether to believe it. my question is whether jurors could believe it. so the cross is irrelevant.
    • D: renews objection on lack of foundation. Our investigator looked the day before, and there was nothing.
      • But reasonable jurors could believe one investigator over the other
  • objection: stops the focal point of attention from your opponent and allows you to seize control

Back to sufficiency and relevance

  • the investigator judges relevance by reference to an undefined world of backstories
  • This is the business of making stories. The decomposition of narrative.
  • question for the judge on sufficiency: has the witness offered testimony which, if believed, could support the conclusion? If so, then it’s relevant.
    • It’s not up to the judge to say whether it’s believed, but rather, could reasonable people believe it?
    • A separation of function being established between judge and jury.
    • The judge = a gatekeeper
  • So D doesn’t get to cross examine on admittance, since that would only add to what the jury should consider… whereas the judge is only concerned about whether the jury could believe it.
  • The jury then makes the ultimate ruling on relevance

Defendant’s goals in challenging

  • The defendant also has to come up with a back-story, wherein the investigator is telling the truth but the rim is still irrelevant.
  • A lack of foundation is to exclude likely stories of irrelevant.
    • A foundation is evidence that on a coherence theory of truth offers that the point is true
  • Possible backstories:
    • Another investigator the day before found nothing… not going to work
    • Could say that there’s a junkyard right there
    • Could say that the ford owner was missing a rim before the accident

Prosecutor's goals in challenging

  • Eliminate backstories which are inconsistent with this rim being relevant
    • If D brings in the junkyard, P then asks whether investigator saw any other rims in the field and investigator says no
    • If D argues that the rim was missing before, investigator says he has a photo from the day before where it was not missing a rim

Foundation

  • Evidence is a set of information bits, from which we are going to abstract a conclusion. The idea of laying a foundation is building a lot of bits under the conclusion. Once you’ve built enough bits that the mind has to reach for a story of irrelevance, you cross the point at which a reasonable person could credit that this rim came from the ford, and the judge says overruled.
  • Must recognize that any piece of evidence can be put in a zillion contexts. Look fro the narratives that make it relevant, and look for those that make it irrelevant.
  • Job is to offer enough evidence that the path to relevance looks pretty good.

Opinion

  • P may not ask the investigator his opinion about whether the rim came from the car. Remember the two kinds of truth:
  • The typical witness is asked to testify about what they perceived, what part of reality they absorbed, which they believed corresponded to the actual reality. We don’t want the witness to draw conclusions, since that’s the jury’s job.
    • Percipient witnesses
  • The expert witnesses, on the other hand, draw conclusions based on coherence. We do that only when the capacities of lay people to come to that conclusion are limited.
  • It’s not a hard and fast rule. Asking whether someone is drunk – if normal people draw conclusions about whether someone is drunk, then it can come in. but if it takes special knowledge or experience, then you need an expert.

Experts

  • The rim has been admitted. Now move to the expert stage
  • plaintiff:
    • mr. Expert, can you state your qualifications for the court?
    • have you dealt with rims before?
    • have you observed this rim?
    • can you tell what car it came from?
    • can you identify what car this rim came from?
  • Defense: Objection: conclusory. He’s not an expert.
  • Judge: sustained. Time to take evidence.
    • The determination between lay and expert witnesses is not left to the jury.
  • in some jurisdictions, after completing questions about expertise, the expert is proffered to the judge, and the other side can cross
  • in other jurisdictions, you only get to object when an objectionable question has been asked. Here, you object when the witness answers a question that’s only appropriate if he’s an expert. So then you have a platform to assess whether he’s an expert.
    • The judge doesn’t treat the expert like the rim, which was about whether there were facts sufficient to support a conclusion
    • But here, the whole point is that reasonable people can’t conclude these things

Rule 104. Preliminary Questions

  • (a) Questions of admissibility generally.
    • Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court (expert standard), subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
  • (b) Relevancy conditioned on fact.
    • When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. (rim standard)

Judge vs. Jury determinations

  • Two categories
    • those resolved by the judge, by the rim standard
    • those resolved by the judge, by the expert standard
  • So the statement that questions of fact are for the jury and law for the judge is misleading, since in deciding questions of law, judges must decide facts. They just don’t decide the facts that control the relevance of the evidence.
  • A judge decides all questions other than relevance

Jackson v. Denno

  • D convicted based on a coerced confession
    • Case was tried under a rule structure which permitted the approach as applied to the constitutional question that we have applied to the rim: the question of whether the confession was coerced was left to the jury (like the rim).
    • When defense objects, the judge said, that’s for cross-examination. I find that there are facts sufficient to support a finding that the confession was not coerced
    • Judge to the jury: if you believe that the confession was coerced, then you must ignore it, but if you decide that it wasn’t coerced, then you may consider it along with the rest
  • The appellate court said, we presume that the jury did its work. While we can’t look into the jury room, we know that they were properly instructed to ignore it, whereby you would be entitled to reversal, only if the other evidence was insufficient.
  • Supreme court says no. That procedure never crystallizes the question of whether the confession was coerced in a way that gives a definitive decision. Where const questions are concerned, it is the judge’s responsibility to see that the constitution is respected. Whereby the judge must find the facts on which const questions turn.
    • So he uses the expert procedure, whereby the judge allows cross examination when the defense objects.
    • Where constitutional questions are concerned, the judge decides outright
    • Underlying question: is a coerced confession relevant as to whether D is to be found guilty?
      • Yes its relevant but not admissible. Excluded for reasons of policy.
      • There are numbers of categories of evidence which is relevant but nonetheless excluded by some policy backed by the law. In those cases, the judge does the factfinding to determine whether it’s excluded.
  • Privilege
  • Hearsay
    • the question of whether it’s coerced is not one that the jury can consider, since it’s a guarantee of the law, and the enforcer is the judge.

Lego v. Twomey

  • on all matters where the judge decides the law, he does so based on a preponderance

Narrative

  • This is about generating a system for building narrative
  • we’re starting to see the architecture of a machine for generating narrative under a rule structure that ensures that the jury sees relevant evidence, but also which excludes from the pile that evidence too prejudicial under some legal policy.
  • The trial process is a machine that sees coherence evidence and comes to a point conclusion that is like a correspondence truth (where your believe corresponds to reality)
  • Converting coherence into correspondence
  • After the fact, you can’t directly observe a correspondence. You only look at evidence and perhaps come to the conclusion that some statement did in fact correspond to reality.
    • Think about how you come to conclusions, and think about the structure that the trial system is trying to replicate at an institutional level
    • We all try and make sense of the reality around us. One way of being crazy is the inability to create a coherent narrative about the reality you’re inhabiting. There’s a process we go through, a history we make, that is based on a ton of evidence, but we abstract from that some story that happened, and we treat that as our reality.
    • A distinction exists between a story that someone actually perceived himself, and a story that he took from others. Here we are building the sum of these things.
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