The Law Meets the Philosophy of Science
I. Scientific Evidence in the Courts – a History Pre-Primer.
The leading legal authority on scientific evidence for as long as I have been practicing law1 – and well before that – has been Edward J. Imwinkelreid. For those who like a little help on name pronunciations, it’s ED-WORD. Psych! Jes’ kidding, it’s IM-winkle (rhymes with “tinkle”, tee-hee)-REED. So that I am not burying the lede, here is a snippet from Mr. Imwinkelreid’s biography page on UC Davis’ website linked above:
Edward Imwinkelried could easily be a model for a character in crime fiction. News stories quoting him have included “Probers Use DNA Tests to Find Killer in Florida,” “Love-Triangle Killing: Defense Questions Police,” and “Will High-Tech Sleuthing Hold Up in Court?” To the country’s prosecutors and defense attorneys, he is the one to consult about the admissibility of scientific evidence and evidence of uncharged crimes.
“These are two very specialized areas of evidence,” said Imwinkelried. “They also happen to be the two areas that place a premium on creativity and imagination.”
I could probably write a book length treatment on this statement alone, but I’ll leave it for the moment, stopping only to bring it to the reader’s attention and tie it in with something else below. Now for the pull quote:
Imwinkelried wrote the book on scientific evidence, literally and figuratively. The Supreme Court itself cited the book in its landmark 1993 case, Daubert v Merrell Dow Pharmaceuticals on expert testimony. Now in a forthcoming seventh edition, Scientific Evidence treats such subjects as DNA typing, forensic psychiatry, and laser techniques for fingerprint detection.
So – just to recap: Edward J. Imwinkelreid is the lawyer whose book, Scientific Evidence, the Supreme Court quoted and relied upon on in its landmark ruling about expert testimony and – in some sense – “scientific evidence” in Daubert v. Merrell Dow Pharmaceuticals. Now… we’re gonna get to that. But, as ever, I need to provide some context by bringing you the reader up to speed on some legal context surrounding “scientific evidence” vis à vis Mr. Imwinkelreid – because he is as much a product of his time as anyone.
II. How the Criminal Legal Sausage Gets Made.
Continuing Imwinkelreid’s biography page:
The admission of evidence of uncharged crimes, the topic of another of his books, is the “single most litigated issue on the criminal side of the law,” he said. Such evidence often looms large in cases of mass murderers. Before the O.J. Simpson trial, the Trial of the 20th Century was the prosecution of Wayne Williams for the Atlanta child killings. “Wayne Williams, for instance, was charged on two counts, but the hair and fiber evidence showed a pattern that pulled together 10 other killings,” said Imwinkelried. “Once a jury is allowed to hear that, the whole atmosphere of the trial changes and the likelihood of a conviction increases dramatically.”
Notice what Mr. Imwinkelreid the lawyer just told you: juries who hear about uncharged misconduct about an accused are much more likely to convict an accused. This is also stark proof of Holmes’ famous quote from “The Common Law” that “[t]he Life of the Law has not been logic; it has been experience” and why some rules of evidence are rules of exclusion, rather than inclusion: it’s not because the proferred evidence isn’t relevant and material, but rather because the experience of the common law (over time) has been that juries can be inflamed or confused by certain kinds of evidence, resulting (more often than perhaps elsewhere in the law) in miscarriages of justice on appeal such that these kinds of evidence – uncharged misconduct under Rule 404b, or other kinds of propensity evidence, under Rules 413 and 414 – get more scrutiny and their own special sets of standards.
Uncharged misconduct in criminal cases refers to evidence against an accused that is separate from the charged misconduct, which shows criminal behavior by the accused, but it hasn’t been charged or proven anywhere yet is relevant to proving the current specifically-charged misconduct. Suppose an accused is charged with “possession of illicit narcotics” AND the frequently co-charged “possession w/ intent to distribute” because the cops caught him with over a certain presumptive “user amount” of drugs. (Gon’ be hard to claim the 20 lb of weed all bagged and taped shut were all for personal use, aight). Part of the evidence against the accused might include witness testimony from one of his alleged former mules-turned-snitch who is going to describe other criminal activity by the accused, such as unlawful possession of a firearm, anda couple of instances of assault, or of theft, none of which have ever been charged or proven anywhere. The Court, therefore, will sometimes limit the witness testimony to omit details that aren’t directly relevant to proving the current charge, or (as frequently happens), give the jury a limiting instruction on the use to which they can put the uncharged misconduct – so that the jury doesn’t decide to just convict this criminal SOB on all of the uncharged stuff, rather than actually having the government prove the crime with which he’s actually been charged.
This is a VERY common prosecution technique used to slime up the accused (what we used to call it), or purposefully overcharge in order to “exaggerate the accused’s criminality.” Some other observations and background on how the criminal justice sausage gets made: having served both as a criminal defense attorney and prosecutor at various times in my career, let me start by telling you the obvious one – the deck is f**king stacked in the government’s favor in both civil and criminal litigation. At every stage of the process, the rules are tilted the government’s way: the govt automatically gets more time to Respond to any complaint or motion; it has defenses available to it that ordinary citizens or corporations do not; the rules are written with procedural mechanisms carved out for government appeals not available to other litigants, etc. And perhaps most importantly from a systemic view while also being the least mentioned aspect of the system is that Judges are nearly always former prosecutors, and almost never former criminal defense attorneys.
III. Tale as Old as Time: More Crime Leads to Less Liberty.
This is also in no small part why the ratchet always turns in the direction of fewer rights, and narrower interpretations of the existing rights, for the citizenry. Part of this is our own fault: most Right-leaning politicians successfully campaign for elected office – whether as a sheriff, district attorney, judge, or even national office – on a platform of being “Tough on Crime!!’” – with the number of exclamation points being the sole distinguishing feature of the campaign of how tough they’re going to be!(!!!). Conversely, politicians who do campaign for the same elected offices on the platform of “More Rights for the Accused!” in our current political climate, post-Covid-19 and George Floyd riots, have revealed beyond all argument that this slogan is political code-speech for “more rights for our criminals than for you, citizen.”2 Abolishing bail entirely (for our guys), even if they’re violent, repeat offenders (or illegal immigrants), non-prosecution for more and more property crimes or drug-related offenses (for similar preferred groups), even if they involve violence, and other “social justice” initiatives have loosed criminals on our populace and caused mayhem in our cities.
And it should not be surprising that these kinds of cycles always result in the (very predictable) pendulum swing back the other direction. New York City of the mid-1980s (I lived there in 85-86 as a high school junior) was beset by horrible crime rates as a result of rather lackadaisical policing and enforcement strategies of Mayor Ed Koch through the 1980s and then David Dinkins in the early-1990s. And I don’t care what people say about “optics” or how they torture numbers, Rudy Giuliani’s rise in political fortune and immense popularity as Mayor of New York through the 1990s and into 9/11/2001 was the counter-reformation to the Koch-Dinkins policies. “Stop and frisk” and other such “broken windows” policing strategies – whatever damage they may have done to the Fourth Amendment Constitutional rights of Americans – led to noticeably lower levels of crime, better lives for ordinary citizens, and a boom for the Big Apple in the 1990s. And these are the only two menu options: ever more invasive police powers to government from the Right to counter the ever more lax social justice policing strategies of the Left when they get in power.
Okay – so what the hell does this all have to do with scientific evidence in the courts à la Imwinkelreid and the frequentist statistics I’ve been discussing for the prior three chapters? Well, hold that question for just a moment while we catch up on a hundred years of legal history.
IV. The Frye Standard for Scientific Evidence.
It’s shortly after The War to End All Wars (WW I) when James Alonzo Frye is charged with second degree murder. At his trial in the District of Columbia, his defense attorney attempted to introduce the results of a lie detector test through an “expert” who would presumably demonstrate to the jury how a lie detector works and how Mr. Frye (presumably) had passed the examination with flying colors, answering “No” with no reaction at all to some question that was tantamount to “did you commit the murder?” The judge would not allow the lie detector test into the trial as evidence, and Frye was subsequently convicted of murder by the jury. On appeal to the Court of Appeals for D.C., his single claim of error was that the judge below erred by keeping out his scientific lie-detector evidence. It’s important to note that at this point in time, there were no federal rules of evidence, only individual state rules and the common law of evidence.
The Court appears to quote the appellant’s brief regarding the general rule in D.C. regarding expert testimony, which I note is not very different from the later federal Rule of Evidence 702, but that wasn’t codified until the 1970s.
‘The rule is that the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject-matter so far partakes of a science, art, or trade as to require a previous habit or experience or study in it, in order to acquire a knowledge of it. When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence.’
Numerous cases are cited in support of this rule. Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well- recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.
Frye v. U.S., 54 App.D.C. 46, 47 (1923)(emphasis added).
This case’s rule came to be known as the “general acceptance” test for admitting scientific evidence or expert testimony in a case. I’ll let Professor Imwinkelreid explain how we got from Frye to Daubert.
Until the mid 1970s, most American jurisdictions followed the standard for scientific evidence’s validity in a court announced in the 1923 case Frye v. United States, 293 F. 1013 (D.C. Ct. Apps. 1923). Under that “traditional” standard, a scientific methodology – that is, a theory or technique – could serve as a basis for admissible testimony only if its proponent could show that the methodology had gained general acceptance within the relevant scientific circles. However, in 1975, the Federal Rules of Evidence (FRE) took effect. The Rules – particularly Rule 702 regarding expert testimony – made no mention of the “general acceptance” test. In a line of cases, including Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), General Electric Co. v. Joiner (1997), Kumho Tire Co., Ltd. v. Carmichael (1999), and Weisgram v. Marley Co. (2000), the Supreme Court abandoned the test enunciated in Frye and substituted an empirical validation/reliability standard derived from the text of Federal Rule 702.
Imwinkelreid, Syr. L. Rev., Vol. 70: 817-849, “The Admissibility of Scientific Evidence: Exploring the Significance Between Foundational Validity and Validity as Applied,” p. 818.
Well enough – and Professor Imwinkelreid and I agree on that brief legal history regarding what prompted the Supreme Court to examine the Frye “general acceptance” test in light of the adoption of the federal rules of evidence (FRE).
The current version of Rule 702 reads as follows:3
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
A few observations on Rule 702: first, the word “reliable” is doing a LOT of work in those last two sub-paragraphs. Second, the Rule isn’t solely about the contemporary “expert,” on everything from pharmaceuticals to back injuries, his confident opinions, or the effect of same on juries. The Rule is supposed to encompass anyone with sufficient “specialized knowledge” to offer something useful to the jury, whether that knowledge is a recognized university major (or not), but is instead as arcane as detailed knowledge about the baseball card collecting industry (think, for example, of OJ’s conviction in Las Vegas over his own collectibles), or tree-logging practices in the Pacific Northwest (in the context of the tree-spiking cases by environmental activists that killed some loggers), or… ahem… military aviation crashes. Third, “experts” also don’t need to be (and logically can’t be) world renowned or the best person to ever opine on the subject – that helps for sure, but it’s not a requisite for meeting the Rule’s requirements for specialized knowledge that can aid a factfinder in understanding either side’s theory of just what the hell happened. Fourth, finally and perhaps most often ignored while most-often-used, experts can be very helpful solely in negation… the “My Cousin Vinny” defense, as it were. What’s the My Cousin Vinny expert defense, you ask? Well, I’ve had experts who don’t come in to testify to any positive point of science at all, but rather simply to show that the prosecution’s your-client-did-it-’cuz-science expert is full of mountains of crapola.4 4
V. What’s Going on with Daubert and the federal rules?
Which is a nice way to bring us back ‘round again to why these rules – and in fact all government rules – this rule being no exception to the general premise, which is that rules made by government bodies, no matter how august and well-considered… are developed by a committee… and maybe that’s all that needs to be said about them by way of criticism. (Okay, okay, you know I’m not stopping there, so let’s just move along). The Supreme Court – through its advisory committee – proposed the rules and then Congress acted upon (and amended) them. And from this link – scroll quickly to the bottom – and there’s a final paragraph starts with “The Rules have been amended…” and this is what you see:
The Rules have been amended Oct. 16, 1975, Pub. L. 94–113, §1, 89 Stat. 576, eff. Oct. 31, 1975; Dec. 12, 1975, Pub. L. 94–149, §1, 89 Stat. 805; Oct. 28, 1978, Pub. L. 95–540, §2, 92 Stat. 2046; Nov. 6, 1978, Pub. L. 95–598, title II, §251, 92 Stat. 2673, eff. Oct. 1, 1979; Apr. 30, 1979, eff. Dec. 1, 1980; Apr. 2, 1982, Pub. L. 97–164, title I, §142, title IV, §402, 96 Stat. 45, 57, eff. Oct. 1, 1982; Oct. 12, 1984, Pub. L. 98–473, title IV, §406, 98 Stat. 2067; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Nov. 18, 1988, Pub. L. 100–690, title VII, §§7046, 7075, 102 Stat. 4400, 4405; Jan. 26, 1990, eff. Dec. 1, 1990; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994; Sept. 13, 1994, Pub. L. 103–322, title IV, §40141, title XXXII, §320935, 108 Stat. 1918, 2135; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 17, 2000, eff. Dec. 1, 2000; Mar. 27, 2003, eff. Dec. 1, 2003; Apr. 12, 2006, eff. Dec. 1, 2006; Sept. 19, 2008, Pub. L. 110–322, §1(a), 122 Stat. 3537; Apr. 28, 2010, eff. Dec. 1, 2010; Apr. 26, 2011, eff. Dec. 1, 2011; Apr. 16, 2013, eff. Dec. 1, 2013; Apr. 25, 2014, eff. Dec. 1, 2014; Apr. 25, 2019, eff. Dec. 1, 2019., Dec. 1, 2020
Now, does anyone reading this believe that in the nearly four centuries of America – early-1600s to 1975 that preceded without federal rules of evidence – that America and its 50 states had an obviously substandard system of justice? And I’m not comparing against perfect justice in the Kingdom of Heaven; I’m only comparing against everything else extant in human societies elsewhere or historically. The answer for most readers will be obvious because most people – including you, admit it – had no idea at all that there were no FREs prior to 1975, or that there was a judicial committee with Congress involved in amending the rules of evidence in federal courts. It needs saying that if Congress is involved it means that lobbyists are involved; and if they’re involved it means that what gets in the rules is influenced by people who have both a driving ideology and sufficient money, time, and energy to get it codified into the rules of evidence.
Just what does this have to do with Professor Imwinkelreid, frequentists, and science in Courts? It means that when the rules of evidence get tweaked (as above), you might not be surprised to find out that they never seem to get tweaked to (a) help plaintiffs more effectively and efficiently sue large corporate entities, OR (b) protect the presumed innocence of men facing criminal charges by the State. Rather quite the opposite, in fact.
As I noted with many, many examples in an early chapter, some of the most famous (or infamous if you’re a criminal defense attorney) cases of reversed convictions, at least by number, includes “science” and “scientific evidence” admitted under this same Rule 702 that could charitably, at best, be called horseshit in a suit. As a reminder:
U.S. Navy sailor Keith Allen Harward, 60, who spent 33 years in prison after his conviction for the murder of a Virginia man and the rape of the man’s wife a few blocks from the Newport News naval shipyard in 1982. Key to his conviction was the testimony of so-called forensic bite mark experts. [ed. note: that is, bullshit artists.] Lowell J. Levine told a jury that there was “a very, very, very high degree of probability” that Harward’s teeth left a bite mark on the wife’s leg. Another expert, Alvin G. Kagey, also linked the bite mark to Harward, testifying “with all medical certainty” that “there is just not anyone else that would have this unique dentition.” That testimony and the fact that the wife had noticed her assailant was wearing a military uniform were enough to convict Harward.
It turns out that someone else did have the “unique dentition” left on the victim’s leg. DNA evidence not only exonerated Harward, but it also revealed the actual perpetrator was Jerry Crotty. He died in an Ohio prison in 2006 while serving time for an abduction. Crotty served aboard the U.S.S. Carl Vinson with Harward in 1982. On April 7, 2016, the Virginia Supreme Court issued a writ of actual innocence declaring Harward innocent of the crimes.
“Mr. Harward is at least the 25th person to have been wrongly convicted or indicted based on discredited bite mark evidence,” according to Chris Fabricant, Director of Strategic Litigation for the Innocence Project, an organization affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University.
On February 2, 2016, a Massachusetts court vacated the conviction of George Perrot for a 1992 rape and burglary after finding the conviction was based upon an FBI expert’s erroneously overstated hair analysis. The 79-page opinion marked the first time a court conducted a thorough review of the science [ed. note: “science”] of microscopic hair comparison. The court conducted a two-day hearing during which it heard testimony from multiple defense and prosecution experts…
By comparison, here is Professor Imwinkelreid’s read on what Daubert is about:
In Daubert, the Court explained that the statutory reference to “scientific knowledge” requires that the proponent present enough empirical data and reasoning to persuade the trial judge that the expert’s methodology is reliable in the sense that it is “supported by appropriate [scientific] validation.” A 2000 amendment to Rule 702 imposed the additional requirement that the proponent demonstrate that the expert “reliably applied” the methodology to the specific facts of the instant case.
In 2016, the President’s Council of Advisors on Science and Technology (PCAST) released a highly publicized report entitled Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature – Comparison Methods. Chapter three of the report is devoted to “The Role of Scientific Validity in the Courts.” The chapter distinguishes between “foundational validity” and “validity as applied.” Foundational validity corresponds to Rule 702(a)’s requirement that the proponent establish the general reliability of the expert’s methodology, while validity as applied is equivalent to Rule 702(d)’s mandate that the proponent demonstrate that the expert has properly applied the methodology in the pending case. Like the 2000 amendment to Rule 702, the PCAST report highlighted the distinction between the question of the general “reliability” of an expert methodology and the propriety of its application in the pending case. That distinction is an important one; in many of the studies of forensic laboratory performance, researchers have found that although the expert employed a trustworthy methodology, the expert erred because he or she misapplied the methodology.
Imwinkelreid, Syr. L. Rev., Vol. 70: 817-849, “The Admissibility of Scientific Evidence: Exploring the Significance Between Foundational Validity and Validity as Applied,” p. 818.
But the critical question of Daubert is, at bottom, what did the justices think science is?
Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested.
Seems fine so far.
“Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.” Green 645.
Oh no. A falsificationist. The mere “ability” of a proposition to be falsified separates science from non-science? No, that is NOT the demarcation between science and non-science. Incorrect. It gets worse:
See also C. Hempel, Philosophy of Natural Science 49 (1966) (“[T]he statements constituting a scientific explanation must be capable of empirical test”); K. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989) (“[T]he criterion of the scientific status of a theory is its falsifiability, or refutability, or testability”) (emphasis deleted).
Oh, no, no, no. David Stove’s ghost weeps. They adopted Popper’s definition of science – he, the admitted and demonstrated irrationalist.
Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, see S. Jasanoff, The Fifth Branch: Science Advisors as Policymakers 61-76 (1990), and in some instances well-grounded but innovative theories will not have been published, see Horrobin, The Philosophical Basis of Peer Review and the Suppression of Innovation, 263 JAMA 1438 (1990). Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of “good science,” in part because it increases the likelihood that substantive flaws in methodology will be detected. See J. Ziman, Reliable Knowledge: An Exploration of the Grounds for Belief in Science 130-133 (1978); ReIman & Angell, How Good Is Peer Review?, 321 New Eng. J. Med. 827 (1989). The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.
And there we go, there’s peer review – voting as proxy for truth, with the people voting being the editors of a few publishing giants.
According to Google’s AI:
The three largest science journal publishers by the number of articles published in 2020 are:
- Elsevier: 18.1% of published articles.
- Springer Nature: 13% of published articles.
- Wiley: 9.5% of published articles.
Market Control:
These three publishers, along with SAGE and Taylor & Francis, form the “big five in academic publishing, collectively responsible for roughly 50% of all research output.
Don’t you just f**ing love, $CIENCE?
- I passed my first state bar exam and was sworn in October 1999 – so for more than 25 years now. ↩︎
- In other words, we’ve very much reached the “[f]or my friends, everything; for my enemies, the law” stage of the Republic. See General Oscar Benavides, President of Peru from 1933-39. ↩︎
- Interestingly, at least for evidence nerds like me, is that the rule has a new addition (since I last looked, anyway) at the end of the second line, starting with “if the proponent…” That addition sets forth the standard of proof that a person has to meet; the legislative notes cite to Bourjaily v. U.S, which I used to explain ad nauseum in an early evidence lecture to new lawyers at NJS, who had never heard that (even having taken the Bar because it wasn’t explicitly set forth in the rule like it is now. ↩︎
- And no, you don’t get the clip of Marisa Tomei on the stand at her absolute smokin’-est as Miss Mona Lisa Vito, expert in general awtahmotif (that’s cahhh) knawledge. Great? Yes! Oscar worthy? Ehhhhhh. ↩︎
I love this site, TPTB, I love you all, but boy do I hate WordPress.
I just think it is the fucking Microsoft of online publishing platforms.
But which Microsoft? Vista, ME, Bob, …?
Which would you say was the worst of all of them?
“It looks like you’re trying to write a Manifesto, would you like assistance?”
The worst? Mac.
Ozzy is going to get us all put on a list when he snaps? Is that what you’re saying?
“I’m sorry, Ozzy, I’m afraid I can’t do that.”
– Basically every online publishing platform
Hey, not me…
I used the new editor a few weeks ago and found it quite unpleasant as well.
Some autistic programmer weeps that you don’t find his shiny new interface, intuitive.
WP sucks ass in spades.
I don’t have any comments of substance to make, other than to raise a figurative glass to you, Oz, for your writing. Really enjoy it, so thanks.
Here, here, Mister Tree. Thanks for reading.
Much appreciated!
My Cousin Vinny
Parts of the movie were shot in Greensboro, Covington, and Monticello, GA.
In Monticello the best place to eat is the Mexican place on the square….Mesquite next door to the Jasper Courthouse in question, NOT la Eskina opposite.
nearby, this is neat: I don’t know if this works, but it’s too hydraulic ramps, each capable of lifting an entire tractor-trailer to sufficient angle as to dump the trailer’s entire contents out in just a few seconds.
It worked – and is pretty cool.
I wondered where it was shot. The hotel with the train next door is fucking hilarious.
I was surprised this was not mentioned in the article or another one in this series:
https://en.wikipedia.org/wiki/People_v._Collins
***
After a mathematics instructor testified about the multiplication rule for probability, though ignoring conditional probability, the prosecutor invited the jury to consider the probability that the accused (who fit a witness’s description of a black male with a beard and mustache and a Caucasian female with a blond ponytail, fleeing in a yellow car) were not the robbers, suggesting that they estimated the probabilities as:
Black man with beard 1 in 10
Man with mustache 1 in 4
White woman with pony tail 1 in 10
White woman with blond hair 1 in 3
Yellow motor car 1 in 10
Interracial couple in car 1 in 1,000
The jury returned a guilty verdict.
***
Derpy – I knew of the case, someone had specifically told me about it, but I couldn’t find the name or cite and didn’t have time to run down that lead.
Yes, it is the perfect example of what I was trying to say in regards to the prosecutor’s fallacy.
Sally Clark’s is a very similar kind of mistake.
There are no such “odds” like that – at all.
It’s times like this when I wonder if I should have gotten a job doing legal research. My favorite bit of criminal trivia- the case of the Mad Gasser of Mattoon:
https://en.wikipedia.org/wiki/Mad_Gasser_of_Mattoon
***
The Mad Gasser of Mattoon (also known as the “Anesthetic Prowler”, the “Phantom Anesthetist”, or simply the “Mad Gasser”) was the name given to an event of mass hysteria in which a person or people allegedly committed a series of apparent gas attacks in Mattoon, Illinois, during the mid-1940s. More than two dozen separate cases of gassings were reported to police over the span of two weeks, in addition to many more reported sightings of the suspected assailant. The gasser’s supposed victims reported smelling strange odors in their homes which were soon followed by symptoms such as paralysis of the legs, coughing, nausea and vomiting. No one died or had serious medical consequences as a result of the gas attacks.
***
It’s like Monster a Go-Go!, but in real life.
***
Monster a Go-Go! is a 1965 American science-fiction horror film directed by Bill Rebane and Herschell Gordon Lewis (who remained uncredited in association with this film). The film is considered to be one of the worst films ever made.
***
Apropos of nothing… been watching a lot of Bones lately – it was unknown to me a year ago.
The most notable thing so far is that it seems like every character literally fucked every other character over the course of 12 seasons.
Arrrgh!
What does the finale of the Silo season 2 mean?
🫣😳
No idea and I’m not paying Apple to find out.
I have read the books, though.
“…there’s peer review – voting as proxy for truth, with the people voting being the editors of a few publishing giants.”
Who seek funding. The circle with govt funding, meddling, goes on.
As usual a concise well-written very informative piece of writing. Thank you very much.
“whatever damage they may have done to the Fourth Amendment Constitutional rights”
Was it permanently damaged? I would only agree if the LEOs continued to perform the claimed violations in defiance of a ruling from the SC.
I’ve gotten an education here and elsewhere in your writings on why you dislike Popper.
The two Karls – Popper and Marx – both with completely batshit ideas in economics and philosophy of science.
David Stove provides all the receipts anyone needs of how completely irrational Popper and his intellectual heirs were.
But because they got popular in academics – along about the same time that Fisher showed up with his mathematics of eugenics, and of course that became the dominant paradigm.
Guys like Harold Jeffries, who knew Fisher was full of shit, were hectored and laughed at and marginalized. Popper and Fisher were also both bullies and loudmouths, not surprisingly.
The problem isn’s that the practice stops – it’s that in the interim the combo of copsuckers and govt bootlickers on the Supreme Court will find 5 votes for to justify virtually any Fourth Amendment violations in order to catch “criminals.” So it doesn’t matter if the practice stops, the law has ratified it and now if it stops it’s only by Grace of our Lords. i.e. They see not citizens going about their business with rights, but only criminals in potentiae who must be watched. See, e.g. DUI stops as “administrative searches.”
“criminals in potentiae”
I like that phrase! It has a ring to it!
But seriously, a government that views its subjects as pre-criminals is in Minority Report territory.
Unfortunately Larry Ellison wants to implement that kind of society.
https://www.msn.com/en-us/autos/news/billionaire-larry-ellison-says-a-vast-ai-fueled-surveillance-system-can-ensure-citizens-will-be-on-their-best-behavior/ar-AA1qCbNJ?ocid=BingNewsSerp
Larry Ellison has always been a tremendous piece of shit.
Much worse than Bill Gates, if you can believe that.
I can’t believe that.
lol E has also been removed from my cable. After I noticed SyFy was removed.
Whee!
Oh that’s in this new more expensive bundle we’ll sign you up for!
Why yes, it is.
Which I won’t do because I pay a flat 75 bucks for very good internet and whatever cable they feel like giving me that month via a deal with my landlord. I don’t want to fuck it up by negotiating some higher tier that I know will inevitably fuck me in the ass.
Oh, it’s in a bundle that is only available as an add on to extended service. You only have basic.
Before he went insane, Balko did great work at TOS covering the bullshit of bite ‘analysis’ in court. Dress anything up, make it sound fancy and official, the fancier the more officialer it *feels.* Humans be human and they’ll lay the bait, and humans being human will vote for conviction, or a person /party, as long as they feel they’re on The Right Side. Plenty of Dutch were intimidated into turning in Jews, and plenty were willing to do it for whatever reason they had, and plenty just demurely nodded along.
Humans be human and we haven’t magically evolved. Sigh. (In my hopeful side, my bigger streak, we live in by far the most peaceful time in world history, with more being more prosperous than ever before, and this all despite our species kinda being predictable dicks about shit. We do remarkably well, all things considered. We really do. Important to remember, methinks.)
I learned long ago that most politicians (and voters) are lying idiots, but they could at least try a little harder not to get caught:
https://www.youtube.com/watch?v=pBzpICAphCo
Why? Because they pay such a heavy price?
“We won, didnt we?” – Harry Reid on getting caught telling bald-faced whoppers
It needs saying that if Congress is involved it means we’re doomed.
It means that when the rules of evidence get tweaked (as above), you might not be surprised to find out that they never seem to get tweaked to (a) help plaintiffs more effectively and efficiently sue large corporate entities, OR (b) protect the presumed innocence of men facing criminal charges by the State. Rather quite the opposite, in fact.
Is there any path to correction short of revolution?
I know of no case in history in which a government that took away rights for a century eventually reversed course and said, “Whoops! Sorry about that! Here’s your freedom back.”
Amendments 13 to 15?
But it took a war to get those, so…
That’s a good place to end for the night.
Oh, and it also took a war to get amendments 1 through 12, so…
I meant to include either the qualifying adverb “peacefully” or the words “without bloodshed.”
But thank you for correcting the thought for me, Derpy!
Watching Gutfeld! and amused that his batwings are worse than mine.
Long sleeves, dude.
The existence of his career should be inspiration to mediocre comedians everywhere. His books are OK. Comedy writing and stand-up are separate skills in my opinion. You can be good at both, but it’s more common to be a lot stronger with one than the other.
Not interested in stand-up so whatevz.
I’d say the bottom tier of comedy is improv. It’s mostly people who want to be actors. Mimes and clowns are more respectable.
I enjoyed that show(s) where the points don’t matter a lot more than any clown or mime show I’ve ever seen so I dunno…. ¯\_(ツ)_/¯
OK, Whose Line had some real gems over the years, but most improv is not nearly as good. Same goes for sketch comedy. It’s Sturgeon’s Law writ large.
Mimes and clowns are more respectable.
“Whose Mime Is It Anyway?” wouldn’t be as good.
I’m with you, Derpy. I think Gutfeld is “meh” but he stands out in a field of retards.
I have another tournament this weekend which is a great escape from the cares of the world, cheers!
OTOH my hip is collapsing and Im not sure if I can finish the season and may have to quit the game, Not Cool
Someone I never read about in school:
https://en.wikipedia.org/wiki/James_Wilkinson#Spanish_secret_agent
I kinda laugh at climate/weather beat reporters who probably never lived in areas that are prone to flash flooding writing on flash flooding.
Been in the desert for 20 years and like living in an area with lakes or oceans, we taught our boys that low lying areas around these parts become rivers in seconds.
Preach on!
I grew up in Tucson and learned early on about the dangers of flashfloods.
When I was older I used to backpack and climb in the slickrock country of the Four Corners. One clearish afternoon in August waterfalls started coming down drainages along the north wall of the canyon we were walking in. We immediately scrambled up the closest big talus slope we had because we were sure the entire canyon would flood. There was a flood, but not as big as we feared. Two hours later the only sign of the passage of water was damp sand and some oddly placed pieces of wood.
another reminder of marxist watermelon (environmentalist) hypocrisy:
Captain Planet says “keep your family small”:
https://www.youtube.com/watch?v=tZCg9HsDntY
Ted Turner, founder of CNN and producer of Captain Planet has 5 kids. Al Gore has 4 kids.
the same message, ibidem
https://www.youtube.com/watch?v=Lie_NfdzRf4
amusing that the white guy says “because I definitely don’t want more than two”.
I’d prefer to have two, but I’m flexible with that number. At my age, I’ll take anything over zero.
The best articles are published after I go to bed. To be fair, I go to bed around 5pm. Dammit.
My take: “Ozymandias explains how they polish the crystal ball”
There is a lot that jumps out to me. Wow.
My other take: “Most of the time everyone knows what they did and who did it”
I just saw a snippet on the news of Bondi stomping her feet and telling us “There is nothing to see here!”
*Sigh* Draws curtains and locks doors
“Bondi”
Yep, nothing to see there bud. Besides, we’re supposed to be tongueing Trump’s balls for his passing his Big Beautiful Bill and how dare you bring it up because Texas.
Yup. When they do shit like this I think that little voice in the back of my head is wrong; It is actually worse than I thought it was.
Most of the time they do indeed know whodunit – that’s why most cases do not go to court.
Of the remaining 10-15% of cases in which they don’t know whodunit, the government does everything it can to create bullshit science that stands as a proxy for “THAT guy that we don’t like did it.”
Hair samples, DNA evidence, fingerprints, bite marks, lie detectors, shaken baby syndrome, (and a lot more) are all quasi-scientific technologies that govt uses to claim knowledge it doesn’t have.
Enjoy your wacky Wednesday Glibizens.
🐪⛺️🥓
https://www.youtube.com/watch?v=OMaycNcPsHI
🎶🎶
Good morning, Sean, Suthen, Ted’S., and Stinky!
Morning, GT.
Sorry I’m late, I overslept. Had to get to the office before coming by.
Good morning, U! Hope you made it to work on time (or close enough!) How are you today?
Angry at myself. I A: set my alarm, and B: went to bed earlier than normal, yet I must have C: turned it off and fell back asleep. As a result I was fifteen minutes late reaching my cube. Of course since I was behind schedule getting on the road, there was more traffic than normal, which had further slowed me down.
I’m sorry your day got off to a bad start. Hope it gets better from here! 🙂
Here’s hoping 🤞.
After having looked back at some of my older work, I’m tempted to ressurect the borrowed plot for a dinner table detective story (I borrowed the idea of a roundtable of characters reviewing the facts and working out the solution.) Though I’m thinking of changing the role of “Welsh Eddie”/”The Ginger Weasel”/”The Nominal Doppelganger” to participant. This would be the third promotion the character got as in the first incarnation, he was the corpse. In the second, he kidnapped the narrator…
I dont know why we have to go through all of this. One can easily buy a boxed set of all of the Perry Mason episodes. In reality what happ[ens is the accused was observed standing over the body after discovering it, tried to take the knife out or picked up the gun after the fact and they didnt even know they were in the victim’s will. They totally didn’t do it.
What jumps out at me:
Imwinkelreid <—- That is a made up name. About as believable as an Obama press secretary named 'Earnest'
“These are two very specialized areas of evidence,” said Imwinkelried. “They also happen to be the two areas that place a premium on creativity and imagination.” Just stop right there goddammit,
I remember the Wayne Williams case well. I think they screwed the pooch there. There is still a shadow of doubt in my mind yet reading over the case again I think "He did it". Despite that the conviction is suspect to me.
More so now than then fibers that are observably the same can come from a wide variety of sources. Using imagination and creativity they are attempting to brand 'likelihood' as 'certainty'; i.e. voodoo evidence.
Incidentally Williams maintains he is innocent to this day.
Imwinkelreid <—- That is a made up name.
How dare anyone have an “ethnic” surname!
About as believable as an Obama press secretary named ‘Earnest’
Oscar Wilde would like a word with you
Dont you mean Dickens?
https://en.m.wikipedia.org/wiki/The_Importance_of_Being_Earnest
Thank you Ted. I had completely forgotten about that.
LOL. It is a crazy name.
I take the opposite view that no one would have willingly taken that name, so it must be real.
https://www.cbsnews.com/philadelphia/news/philadelphia-strike-ended-over-afscme-dc33-union/
Looks like it’s over.
How badly are the taxpayers getting raped?
the new deal is 3 years and, when finished, will total 14% in raises for the union’s members
Is that before or after compounding? Our recent contract was the most generous I’ve seen (pissed me right off) with three years of 3%, which came out to 9.2727% total increase after three years.
OFFS 🙄
The only people hurting are those beat up by union thugs.
You lost me a bit on the falsifiable /unfasifiable thing.
This is a callback to an earlier post about Popper’s claim that science is falsifiability.
Falsifiability is a requirement for a meaningful hypothesis, but it is not – ALONE – the demarcation between science and non-science. It’s a requirement for a hypothesis that it is capable of admitting under what conditions it can be deemed to have satisfied its conditions or faled to satisfy its conditions in measurable terms.
If you use the criterion of falsifiability alone for science then Popper’s own example of astronomy v. astrology doesn’t work. (I think it was Kuhn who took Popper to task for this obvious error).
The distinction between reading goat entrails and science is – and has always been – predictive power. Validation in science comes from the predictive strength of its hypotheses, not because your colleagues like and agree with your work. Popper was wrong, wronger, wrongest about what science is, so of course the academe adopted his views as gospel.
Wait a minute…what? No Marissa Tomei? That is some bullshit right there Ozzy.
I said she was at her absolute smokin’-est!
…Just not sure that was worth the Oscar that year, but as I recall, there weren’t that many great female performances.
Notwithstanding this, I also do like to see comedic roles get more love.
Just not sure that was worth the Oscar that year
She won for playing an Italian girl from Brooklyn, and she is an Italian girl from Brooklyn, so not really much of a stretch.
True – but OTOH, she wasn’t up against anything that makes me think, “Oh, that was fixed.” Not that there weren’t good performances, but nothing crazy jumps out at me from her comp that year:
Judy Davis (“Husbands and Wives”), Joan Plowright (“Enchanted April”), Vanessa Redgrave (“Howards End”), and Miranda Richardson (“Damage”).
I might have mentioned yesterday that my memory is sometimes not perfect, didn’t I?
Someone made a comment about a black guy that was associated with MLK and something he was saying something something. The commenter did not know the guy’s name but from what he was saying I was fairly sure I knew who he was talking about but could not remember his name either.
Just now, completely out of the blue his name popped in my head.
Bob Woodson.
Ok, now I remember his name but cannot remember what the comment was about. Shit.
This is the story of getting old.
Today in morons painting themselves into a corner:
Some guy on the teevee just now – “They cant ever give Trump credit for anything because that would be admitting they were wrong with all of the hysterical TDS”
So much for non-intervention:
https://www.msn.com/en-us/news/world/donald-trump-threatened-putin-and-xi-he-would-bomb-moscow-beijing-audio/ar-AA1IfdE3
***
Donald Trump said he had separately warned both Russian President Vladimir Putin and Chinese President Xi Jinping that he would bomb their respective capitals if either of them invaded their neighbors, newly released audio broadcast by CNN shows.
The U.S. president was recorded speaking at a private fundraiser in 2024 about his conversations with Putin and Xi.
“With Putin I said, ‘If you go into Ukraine, I’m gonna bomb the s*** out of Moscow,'” Trump is heard saying, recounting his version of their conversation. He also said with Xi he also threatened to “bomb the s*** out of Beijing” if it invaded Taiwan, the self-governing island that China claims as its own.
Newsweek has contacted the Russian and Chinese foreign ministries for comment, as well as the White House outside of regular office hours.
***
the audio (starts around 1 minute mark): https://www.youtube.com/watch?v=_tLmZShwxDs
I don’t think he actually said it, just trying to get credit for preventing things that didn’t happen: “They didn’t do that thing they didn’t do because of me.” His typical empty braggadocio bullshit.
Yeah, not buying it either.
That sounds accurate. Like a retarded child forever surprised by the same old magic trick the left goes apeshit every time he baits them.
Coupled with his reaction to a question about the recently released Epstein video (“Are you *still* talking about that guy??”) makes me think Trump was replaced with a body double.
Check his ears against past photos.
Named Dave?
Mornin’, reprobates!
Going into the Big Apple to hang out with my cousin. I sure do hope the Russians and Chinese don’t bomb the shit out of NYC. Been nice knowing y’all.
Good morning, ‘patzie! You be careful out there!
***
“Socialism 2025” was held in Chicago Thursday through Sunday, where activists promoted “radicalizing” high school students, overthrowing the U.S. government and how to perform a “DIY” abortion and required all attendees to wear N95 or K95 while indoors, in addition to common rhetoric slamming capitalism.
***
Nice to have even more evidence masking was all about politics. More subtle than an armband, a red book, or a Kim badge at least. Also comes in handy for rioting.
https://www.msn.com/en-us/news/opinion/mamdani-camp-silent-when-confronted-with-calls-to-radicalize-high-schoolers-dismantle-us/ar-AA1IdANa
For some reason, any reference to MSN goes to the front page instead of the desired article. I blame this on the evils of communism.
I blame your browser.
(I don’t have that issue.)
Communists are the worst
Archangel with Daniel Craig is an interesting movie and worth a watch if anyone gets a chance. It portrays the slavish devotion that people have towards communism even after being victims of it. Also, cult of personality.
As a species we are very much herd animals and very much not civilized.
I have my cabin in the woods. Sadly I keep having to go out and interact with people.
Relevant: https://m.imdb.com/title/tt0065439/
suh’ fam
whats goody
The entire jury system is about “voting on truth.” In what possible universe would officers of the court treat science any differently?
That’s disregarding the fact that a trial isn’t about finding facts, but pacifying people who might otherwise react in a disorderly fashion. That’s been the case in every legal system in every culture in all of history ever.
It’s not about voting on the truth, it’s about voting on whether the government has shown sufficient evidence to punish this particular individual. They really shouldn’t use the “Guilty”/”Not Guilty” terminology since it has nothing to do with the question actually before the jurors.
Sorry, but I’ll pick some nits here.
The jury system is about voting on the quality of the evidence that the govt has put forth to prove its claim that some person from the community committed some crime. If the quantum of evidence doesn’t get across the reasonable doubt line, then the duty is to vote “not guilty.” THAT, however, is not a finding of innocence, nor does the Court go out to determine who actually done it.
Let me add to it that I’ve had cases as a prosecutor where the evidence strongly implicated an accused, and I was pretty certain of two things: (1) that I could convict him in front of a jury, BUT (2) that he probably didn’t do it.
In those (admittedly rare) cases, I would dismiss the charges because I didn’t care about conviction rates as much as I did getting the right person.
All of which is to say that jury trials are a limited opportunity for the govt to prove its claim about whodunit. But I would be careful about saying things like “voting on truth” about jury trials or science. Truth is what *is* – science and jury trials are about our models for approximating that as best we can (but no one should mistake those for the real mccoy).