Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, First Amendment, law & theology, and media law. He writes regularly in all of these fields. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Tuesday, September 16, 2014

A Parable on Race, Statistically Rendered

On June 18, 1964, Juanita Brooks was walking home through an alley.  She used a cane and was pulling behind her a wicker carryall that contained her purse and the groceries she had just purchased.  Someone rushed up behind her, knocked her down, and grabbed her purse.  Ms. Brooks saw a young woman running from the scene.  Other witnesses saw a woman running as well, and observed as she jumped into a car that sped off.

This may seem like the most mundane of crimes, but it led to a decision from the Supreme Court of California that appears in major Evidence textbooks.  The fiftieth anniversary of these events offers an appropriate occasion to pause and ponder the case and what it may be able to teach us today.

The case is People v. Collins, 68 Cal. 2d 319 (1968) and finds its way into standard Evidence texts because of the uncommon way in which a prosecutor tried to solve a fairly common problem.  The prosecutor's dilemma was that the witnesses to the crime provided conflicting testimony that made the identification of the defendants as the perpetrators less than certain.  So the prosecutor came up with a strategy he thought might help his case. 

The witnesses seemed to agree that the woman was Caucasian and had blondish hair in a ponytail, the driver of the car was a Black male with a mustache and beard, and the car was medium-to-large and yellow.  The alleged perpetrators had these same characteristics.  Defendant Janet Collins was a white woman with blondish hair that she often wore in a ponytail.  Defendant Malcolm Collins was an African American male and, though he had no beard at the time of trial, he could of course have shaved it off.  They owned a yellow Lincoln.  The prosecutor thought the probabilities were with him: what are the odds, he wondered, that I have the wrong defendants?

To try to convey this to the jury, the prosecutor called an expert statistician to testify.  The statistician explained the "product rule," which holds that the probability of the joint occurrence of a number of mutually independent events is equal to the product of the individual probabilities that each event will occur.  Thus, the probability of rolling two 2's successively on a die is 1/36: that is, 1/6 x 1/6.

The prosecutor then gave the statistician a number of individual probabilities; the odds of an automobile being partly yellow are 1 in 10, the odds that a man has a mustache are 1 in 4, the odds that a woman has blonde hair are 1 in 3, the odds that a woman wears her hair in a ponytail are 1 in 10, and so on.  The statistician multiplied all of these together and arrived at the conclusion that there was only 1 chance in 12 million that any couple possessed the distinctive characteristics of the defendants--whom the jury promptly found guilty.

Unfortunately, there were numerous errors in this methodology.

First, the prosecutor simply made up the individual probabilities that he gave the statistician.  There was no reason to believe that any of them were correct, let alone all of them.

Second, the product rule only applies where the events being multiplied are mutually independent.  But many of the facts used in this calculation overlapped--for example, some blonde women have ponytails.

Based on these and other flaws in the calculation, the Supreme Court of California held that it was error to admit the evidence.

Textbooks include Collins because it provides excellent fodder for a discussion of the ways in which unreliable mathematical evidence can unfairly prejudice a jury.  The California Supreme Court repeatedly notes the persuasive power of mathematics--"a veritable sorcerer in our computerized society" that can "cast a spell" over a jury, a discipline rich in the "mystique" of certainty.  It is easy to understand--and fun to discuss--how the use of such phoney mathematics could have confused and misled the jury in violation of Federal Rule of Evidence 403.

Still, stopping our analysis there seems unsatisfying.  After all, one might reasonably question whether the jury placed much weight on the 1 in 12 million number.  In his closing argument, the prosecutor acknowledged that the individual statistics were just his "estimates" and he invited the jury to substitute their own if they preferred.  It isn't clear that the jury would have been bewitched by the ostensible certainty of a mathematical formula under these circumstances.  In addition, Collins tells us little about how a court would probably approach this issue today.  Most courts today would bar such expert testimony through the swift and simple application of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

In my judgment, Collins was and remains interesting and relevant for a different reason related to a different potential source of jury prejudice.  That issue is revealed by a close look at a footnote in the Collins decision, where the California Supreme Court recounts the various odds that the prosecutor presented to the jury.  In that table, one "probability" clearly stands out, dramatically different from all the others: the odds that you would have an interracial couple in a car, the prosecutor submitted, were 1 in 1000.

Like all the others, this statistic had no foundation in fact.  But it would have left an impression with the jurors that the other statistics did not: these defendants were social outliers; each had done the highly unusual thing of marrying someone from another race; perhaps they felt comfortable breaking other "rules" as well.  In 1964--years before the Supreme Court would, in Loving v. Virginia, 388 U.S. 1 (1967), strike down laws banning interracial marriage--this would have been a subtext at the trial.  The 1 in 1000 statistic would have fed the narrative. 

Indeed, the statistic subtly underscores the message by referring to the odds of an interracial "couple" in a car.  But, of course, the witnesses did not know whether they were seeing a "couple."  They just knew they were seeing a male and a female in the same vehicle.

I think that Collins is moderately interesting, and of limited continuing relevance, as a "statistics-gone-bad" case.  But I think it is profoundly intriguing and persistently important as a case about race.  In Collins, race is wholly invisible, and also completely present.  It is, to appropriate Gilbert Ryle's wonderful phrase, the "ghost in the machine," the primary driver of the potential prejudice of the evidence and the court's anxieties, and yet spectral, sublimated, and suppressed.

Indeed, one of the few references the court makes to race has a stunning irony to it: the court entertains the possibility that eyewitnesses may have been mistaken because the woman in the car might have been a light-skinned "negress."  In other words, it might turn out that this wasn't an interracial couple after all.

In my view, Collins remains engaging and significant not as a case, but as a parable.  As with all parables, it yields more than one lesson.  But, surely, it offers us this lesson if none other: the most troublesome dialogues about race may be those that we will not even see or confess we are having.

Thursday, May 15, 2014

The European Court of Justice, Google, and "Imbalancing Tests"

On Tuesday of this week, the European Court of Justice issued a ruling that has been described as upholding a "right to be forgotten." More specifically, the court held that the operator of a search engine (in this case, Google) qualifies as a data "controller" for purposes of the European Privacy Directive of 1995; that such an operator is therefore subject to European privacy laws like the Directive; and that those laws--at least as they currently stand--require an operator to honor an individual's request to take down a link that violates that individual's right to privacy. In this case, the link connected the complainant with some debt issues that he had encountered many years before and that he claimed had become "irrelevant." A summary of the ruling can be found here.

The court seemed untroubled by the fact that all of the various pieces of data connected by the search engine were publicly available. The court shrugged this off, noting that absent the search engine it would in many cases be substantially more difficult to associate one piece of online data with another.

The court also seemed unmoved by the fact that all of the various pieces of data might be (and, in this case, were) true. This is not inherently inconsistent with United States law--tort claims like public disclosure of embarrassing private facts rest upon the wrongful sharing of truthful information. But our First Amendment jurisprudence recognizes that we need to tread particularly carefully when we engage in the regulation or punishment of the dissemination of accurate facts--a perspective that seems largely, if not entirely, absent from the European Court of Justice opinion.

Perhaps the most troublesome aspect of the court's decision, however, relates to the solution it offers where it does see some potential concerns. Although the court suggests that in most instances an individual's claim of privacy should prevail, it acknowledges that in some cases other considerations--like the public interest in having information about a political figure--will outweigh that claim. In other words, when it comes to worries about the repression of publicly important information, the court consoles itself with the idea that the search engine operator will apply a balancing test to sort things out.

If this is indeed what the court has in mind then it is a dangerous and deeply flawed approach. Among other things, it transforms search engines into censorship engines.

But here is perhaps the greatest failure of this model: it fails to recognize that "balancing test" is a misnomer. Despite the common use of the term, we never reach decisions by "balancing." "Balancing" suggests that everything is weighed equally; the scales are in the same position. That is not a decision. That is indecision. That is not where we end. That is where we begin.

Decisions are made by achieving an imbalance. One thing is given greater weight than another; it wins; and this determines our next steps. In this sense, appeals to a balancing test are a dodge because they fail to answer the critical question: what matters more to us?

Under our First Amendment jurisprudence, what matters more to us is that people have as much information as possible--subject to some necessary and grudging exceptions. We think this makes us better and more informed participants in the democratic process. We think this respects us as individuals and allows us to pursue our interests, passions, and questions of conscience without interference from a higher authority that thinks we're striking the wrong "balance."

"If there is any fixed star in our constitutional constellation," Justice Jackson famously declared in the Barnette case, "it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion ..."

The notion that employees of search engines, high and petty, will decide what is and isn't important for us to know based on the imbalance they strike is a deeply unsettling one and should trouble our sleep.  


Wednesday, May 14, 2014

The Optimistic Experiment

We occasionally gain special insight into an issue when we look at two stories in combination.

Two different cases decided by two different courts on Tuesday of this week give us a powerful lens into competing conceptions of freedom of expression--indeed, into competing conceptions of who human beings are and of how we think and behave.

On Tuesday, Europe's highest court--the European Court of Justice--issued an important ruling in a case brought by one Mario Costeja, a Spanish lawyer. Costeja was upset because a Google search of his name disclosed legal notices published in the online version of a Spanish newspaper that detailed debt problems he had encountered in 1998. Costeja argued that the debt issues had been resolved long ago and were no longer relevant to anything. He contended that Google had an obligation to remove--at his request--the link between his name and these notices.

The European Court of Justice agreed with Costeja and ruled that his privacy interests prevailed, even though Google had done nothing but connect two otherwise publicly available pieces of information--his name and the notices. The breadth and implications of the decision, which has engendered considerable eye rolling and head scratching, are unclear. A New York Times article asked: "Should a businessman be able to expunge a link to his bankruptcy a decade ago? Could a would-be politician get a drunken-driving arrest removed by calling it a youthful folly?"

On that same day, New York State's highest court--its Court of Appeals--struck down a state statute making it a felony to communicate with someone "in a manner likely to cause annoyance or harm." That case involved the conviction of one Raphael Golb, a real estate lawyer with a Ph.D. in comparative literature from Harvard who is the son of Norman Golb, a noted scholar of the Dead Sea Scrolls. In essence, the younger Golb had engaged in an extended campaign of harassment against his father's academic rivals that included accusations of plagiarism.

The Court of Appeals upheld Golb's misdemeanor convictions for criminal impersonation and identity theft (he had opened e-mail accounts in the names of some of his father's rivals and had sent messages confessing wrongdoing that appeared to come from them). But the court struck down his convictions under the "annoyance" statute, finding the law unconstitutionally vague and overly broad. As a New York Times article summarized: "Mere annoying speech, the lingua franca of many New Yorkers, was not enough."

These two rulings obviously reflect different conceptions of free speech, of its importance in the order of things, and of how it fares when it conflicts with claimed privacy interests--or, as Warren and Brandeis put it in a seminal law review article, the "right to be let alone."

But I think that the most interesting aspect of these cases is that they reflect fundamentally different views about the fortitude of human beings and about our ability to process information thoughtfully.

The European Court of Justice takes the pessimistic view.

Having people know about a sixteen-year-old debt problem doesn't seem like any great burden in the grand scheme of things. Nevertheless, the Court of Justice evidently sees us as such frail creatures that it's too much for us to bear. Perhaps the court was influenced by the fact that the complaining party was a lawyer, a species notorious for its delicacy.

Furthermore, it would seem as though most people who learned about the sixteen-year-old debt issue would see it for what it is: a matter of little or no continuing relevance. The assumption that people will make too much of facts is a dark commentary on human nature. It is as though the European Court of Justice declared, in that famous line of Jack Nicholson's, "You can't handle the truth!"

The New York Court of Appeals takes the optimistic view.

The court obviously acknowledged that the conduct in question was annoying. Indeed, compared with Costeja's case, this was Olympic-level annoying. But under our First Amendment jurisprudence that's the beginning--not the end--of the analysis.

Our First Amendment jurisprudence embodies a collection of assumptions: being annoyed goes with living in the world as we find it; we're actually pretty tough and resilient; we can take it; we're better off deciding for ourselves what's relevant and what isn't. The First Amendment has considerable confidence in the proposition that we can handle the truth--indeed, that we can even handle some untruth--and rejects the cynicism of the censor.

Will our experiences always validate the optimistic view? Of course not.

Will we be keenly disappointed from time to time? You can count on it.

Will this approach always yield the best results? Not a chance.

As Justice Holmes declared in his famous dissent in the Abrams case, this "is an experiment, as all life is an experiment." And, as experiments go, it can be loud, unsettling, and annoying.

But, very often, that's how we know the experiment was a success.


Wednesday, May 7, 2014

Interesting Ideas

We can tell that spring has arrived because controversies over university commencement speakers are blossoming. The most recent and conspicuous of these bloomed over this past weekend, when Condoleezza Rice withdrew as the commencement speaker at Rutgers University in response to protests by some students and faculty.

Reflecting on these events brought to mind one of my favorite instructors during my undergraduate years: a small, slender, heavily bearded philosophy teaching assistant named John who had a gift for listening and for making every student feel heard and respected. The course wandered into heady territory and occasionally a student would offer an observation that didn't have much to recommend it. When this happened, John would cock his head, nod, and then say something like: "That's an interesting idea. It deserves more careful thought."

This approach to teaching created a safe space where all concepts, perspectives, arguments, and questions could be aired. As the Supreme Court of the United States declared in the Keyishian case, the "classroom is peculiarly the marketplace of ideas." John's students knew, and appreciated, that his classroom was a free and open market. We believed this environment would help make us better critical thinkers. It did.

This familiar understanding of the mission and culture of universities led some people to cry foul over the resistance to having Ms. Rice speak on the Rutgers campus. After all, they said, it can't be denied that Ms. Rice has ideas or that her ideas have been influential. Sure, some of her ideas may provoke or offend some people and engender debate and disagreement. But isn't that what universities are supposed to do?

Others responded that these protests weren't focused on the fact that Ms. Rice was being allowed to speak but on the fact that she was being feted--receiving a $35,000 fee and an honorary law degree. As Juliet Lapidos wrote in a May 5, 2014 column in The New York Times, "the protestor's message was not: We don't want you to taint our ears with your opinions. It was: We don't want to celebrate your opinions." The same distinction has been made by Rutgers historian Rudy Bell and by University of Michigan historian Juan Cole in his Informed Comment blog.

I do not quarrel with the idea that this may be a useful distinction in some cases. There is, for example, a meaningful difference between asking someone to come to campus so they can be heard and asking them to come to campus so they can receive an honorary degree. Nor do I quarrel with the idea that universities have the right, perhaps even the obligation, to decide against inviting certain speakers to campus for a host of reasons: lack of scholarly distinction, redundancy with other speakers, expense, unmanageable safety and security concerns, and so on.

I worry, however, that the silencing / not honoring distinction could put us on a very steep and slippery slope. Consider: What if Rutgers had not planned to give Ms. Rice an honorary degree? Would the $35,000 fee be enough to declare this an honor rather than an invitation to speak? What if the fee were $5,000? What if there were no fee but it was still a commencement ceremony? What if it were not a commencement ceremony but a keynote address at a major conference? Is there an argument that any high profile speaking engagement at a prominent university inherently celebrates the opinions of the spotlighted speaker?

It may be that the silencing / not honoring distinction raises more questions than it answers.

It's an interesting idea.

It deserves more careful thought.     

Tuesday, April 1, 2014

Confessions and Concoctions ... Continued

In an April, 2014 blog post, I discussed a number of recent criminal trials in which prosecutors had offered into evidence violent rap lyrics that were composed by the defendant. I expressed some skepticism about whether such evidence passed the standards for admissibility in most cases.

A recent decision from the New Jersey Supreme Court has affirmed a lower court ruling that it was error to admit such evidence, at least under the facts of that case.  The court applied a multi-factor test that, among other things, weighs the probative value of the evidence against its potential for unfair prejudice.  In discussing that balance, the court stated:

"That prejudicial effect overwhelms any probative value that these lyrics may have.  In fact, we detect little to no probative value to the lyrics whatsoever.  The difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views.  One would not presume that Bob Marley, who wrote the well-known song 'I Shot the Sheriff,' actually shot a sheriff, or that Edgar Allen Poe buried a man beneath his floorboards, as depicted in his short story 'The Tell-Tale Heart,' simply because of their respective artistic endeavors on those subjects.  Defendant's lyric should receive no different treatment."

I agree with the court--particularly on the specific facts before it--but I believe that its assessment of the potential for prejudice in these circumstances is incomplete.  In my view, it is not just possible that members of the jury will presume that an author has acted in a manner consistent with their writing.  I think it is likely they will do so. 

Indeed, readers often presume that works of fiction reflect the experiences of the author.  This is the bane of the existence of many writers of fiction--particularly salacious fiction--and instances of it are legion.  Because his novel The Sun Also Rises sympathetically depicted a protagonist whose genitalia had been injured in the war, Hemingway had to disabuse readers of the notion that he had sustained similar wounds.  The story goes that he would sometimes drop his trousers to display the "evidence."  Similarly, because her erotic Sleeping Beauty novels focus on sadomasochistic themes, some readers concluded that Anne Rice was a dominatrix in her spare time.  Rice's husband wryly observed that this was all just fiction, and that she was no more a dominatrix than she was a vampire--one of her other favorite literary subjects.

The law of evidence is a psychological discipline and  our evidence rules are shaped by a range of psychological considerations: What drives people to act in certain ways?  What sorts of out-of-court incentives and disincentives do our in-court rules create?  When is someone speaking reliably?  How does a jury process the information we give it?  What does the jury think it knows about human psychology and behavior that is outdated, misinformed, biased, or just plain wrong?  How do we unsettle those misapprehensions? 

In my judgment, most jurors will, for understandable reasons, presume that people write about what they know, that all fiction is autobiographical, and that rap lyrics tell us a lot about the real-world actions of the person who wrote them.  They will treat a fact that is sometimes true as one that is presumptively true.  And they will therefore over-value the evidence--perhaps substantially.

Our application of the evidence rules needs to take this psychological reality into account.

Otherwise, these cases may have some very unhappy endings. 

*          *          *

The April post:

Here's the first scenario:

Smith is accused of the shooting murder of Jones. The prosecutor wants to introduce into evidence a statement that Smith made to a large group of people sometime after Jones had been killed. Smith said: "I shot someone but nobody saw me."

Is the statement admissible? Almost certainly so. Smith doesn't identify the victim, but that doesn't matter for relevancy purposes. The fact that he says he shot someone makes it more likely he did so, and the fact that he shot someone makes it more likely that he shot Jones.

Nor does the evidence give rise to a hearsay problem, even though the prosecutor is tendering it to prove that what Smith said is true. That's because hearsay does not include a statement being offered against the person who made the statement.

Nor does the statement fall into the category of inadmissible character evidence, even though it certainly makes Smith look bad. After all, the prosecutor isn't offering the statement to show that Smith generally has a bad character, but to show that Smith shot Jones. Even if Smith's character is otherwise nonviolent, saintly, and pristine this evidence still helps prove the prosecutor's case.

Here's the second scenario:

Smith is accused of the shooting murder of Jones. The prosecutor wants to introduce into evidence a statement that appears in a best-selling novel written by Smith. In the novel, one of the characters says to another "I shot someone but nobody saw me."

Is this statement admissible? I doubt it, at least on these limited facts. That Smith had a fictional character say he shot someone doesn't seem to make it more likely that Smith himself did so. It's not clear that this evidence even passes the relevance test, forgiving as it is.

Given its limited--perhaps nonexistent--relevance, we might wonder why the prosecutor would want to put the evidence in. Perhaps the prosecutor wants the jury to think of Smith as a person who likes to write about violent criminals and who therefore must himself have violent propensities. If so, then the prosecutor wants to offer this as character evidence--a use the rules condemn.

Why does this matter? Because in dozens of recent cases prosecutors have sought to offer evidence against criminal defendants that might or might not be admissible, depending on whether you think the evidence is closer to scenario number one or scenario number two.

In those cases, prosecutors have tried to put into evidence statements that criminal defendants made in the context of rap songs the defendants composed. A recent New York Times article reports that prosecutors have tendered such evidence in dozens of cases in the past two years. This has sparked a heated debate between prosecutors, criminal defense lawyers, civil libertarians, and legal scholars.

A good deal of the debate seems to turn on some uncertainty about the art form itself. Is a violent lifestyle essential to credibility as a gangster rapper? If so, then, the argument goes, such lyrics do indeed amount to personal confessions.

Or are these artists simply manufacturing a fictionalized persona that helps them sell songs? If so, then, the argument goes, these concoctions are no more confessions than are the narratives we find in the works of Bret Easton Ellis, Fyodor Dostoevsky, or William Shakespeare.

This debate does not lend itself to a binary analysis or a single rule. Consider this example, discussed in the New York Times article: should Johnny Cash be indicted after singing that he "shot a man in Reno, just to watch him die?" Of course not, says the ACLU; it's just a song. Not so fast, replies a prosecutor. Was the Man in Black living in Reno at the time of a mysterious and apparently unmotivated shooting?

Perhaps, to know how that case should be decided, we need more facts. Was a crime committed that  fits the description in the song? How specific is that description? Is there other evidence that links Cash to the crime?

The good news is that judges can sort through the circumstances of each individual prosecution on a case-by-case basis rather than by reference to a comprehensive bright-line principle.

And that is also the bad news.

Concluding that we've arrived in one of those legal spaces that demands case-by-case adjudication is always unsatisfying. Yes, such an approach spares us the injustices of fixed rules. But it is also unpredictable, mushy, and subject to abuses that may prove hard to correct.

Furthermore, our concerns about case-by-case adjudication are particularly high where dire consequences will follow from getting it wrong.

These are such circumstances. Exclude the evidence and an emboldened killer may go free. Let the evidence in and an innocent person may be condemned for an act of imagination--and freedom of expression by all artists may be significantly chilled.

It is a situation ripe for pain, injustice, and tragedy.

It seems like the sort of stuff of which great songs are made.

Sunday, March 16, 2014

Perfect Finish

Every year, I listen to dozens of student moot court arguments and almost as many appellate argument rehearsals by practicing lawyers. The vast majority of them have at least this in common: they close poorly.

It appears that, somewhere along the line, we were all told that we're supposed to close our oral arguments the same way we close a pleading: by telling the court the relief we want. This makes sense in the context of a complaint or motion. But, in the context of an oral argument, it is boring and pointless.

"For all the reasons I've just stated, we ask that this court reverse the decision of the trial court." Good grief. As if we could imagine an appellate judge crying out "Wait a minute! That's what you want?! Who knew?!" or "Wow! Now that I hear what you want I'm persuaded to give it to you!"

Indeed, I've noticed that this phrase is often uttered with a kind of relief or resignation, as though the lawyer is saying, along with the woman in T.S. Eliot's "The Waste Land" whose lover has just departed, "Well now that's done: and I'm glad it's over."

Martial artists recognize a principle they call "zanshin," which is usually translated as "perfect finish" or "remaining spirit." It refers to the ending of a "kata" or form, where the martial artist does a series of choreographed movements as if fighting multiple opponents. To end the kata and simply walk away is to fail. Zanshin means that in the last movement the martial artist does not relax their attention or spirit. Everything that came before is affirmed in the continuing energy of the finish. It is hard to describe, but impossible to miss once you have seen it.

I think that great oral advocates strive for zanshin in their arguments. They do not run away from their argument when it is over. Rather, they maintain the same energy and eye contact at the end that they sustained throughout. And they try to leave the judges with something that will keep them in the place where the advocate brought them: with a point, a phrase, an image that distils their argument in a compelling way.

I once saw my friend Ted Shaw of the NAACP Legal Defense Fund argue that his client should be allowed to intervene in a case involving an important affirmative action issue. He closed his argument with this: "It shouldn't be about us, without us." How good was that closing? More than a decade later, it stays with me.