Rethinking the Probative Value of Evidence: Base Rates,Intuitive Profiling,and the “Postdiction” of Behavior

It is argued that American courts may be routinely admitting evidence with little to no probative value and great potential for prejudicial impact. This may be particularly likely with regard to what is essentially intuitive profiling or stereotype related evidence, defined herein as evidence suggesting that the defendant (or other party), or his (her) behavior, fits intuitive profiles (or stereotypes) of the type of person likely to commit the crime or behavior in question. In other words, intuitive profiling evidence is admitted to postdict behavior. Formal empirically based profiling evidence (testimony regarding the fit of a defendant's characteristics or behaviors to formal or scientific profiles of the typical perpetrator of the crime in question for use to prove guilt is inadmissible in American courts. However, we suggest that everyday use of informal intuitive profiles underlies both judicial determinations of probative value diagnosticity, and thus admissibility, of evidence, and jurors' use of the evidence in determining guilt. Demonstrations of the use of base rate information to evaluate the probative value of such intuitive profiling evidence both as evidence of guilt and as evidence of innocence are provided. Demonstrations of both how to evaluate the actual probative value of evidence (when all necessary values are known), and the theoretical limit of its probative value (in circumstances where some values are not known) are provided. It is argued that such evaluations may provide the basis for (1) support of motions to either admit or to exclude evidence, (2) testimony to the jury to help them weigh or interpret evidence, (3) exculpatory profiling (profiling evidence of innocence), (4) pretrial research to establish probative versus prejudicial value of evidence, and (5) sufficiency analyses to determine maximum likelihood of guilt, given multiple items of evidence. Among these, the first two are considered most important, as it can be demonstrated that many profiling characteristics currently admitted in trial (such as evidence of battery to support a murder charge) are not probative of guilt.     

The Myth of Personal Security: Criminal Gangs, Dispute Resolution, and Identity in Rio de Janeiro's Favelas

This article examines the politics of how drug traffickers resolve disputes and maintain order in the favelas of Rio de Janeiro. Much popular discourse and some scholarly studies argue that drug traffickers play a major role in controlling crime and minimizing conflicts there. This article shows that traffickers enforce community norms under a variable political calculus in which well-connected and respected residents are less likely to be punished for rule violations than are individuals who are marginal to the life of the community. This allows many favela residents who conform to local norms to feel a degree of control over their own safety, a "myth of personal security" in otherwise violent neighborhoods.     

Struggling through the web of impunity—The Jorge Carpio Nicolle case

Through the lens of Guatemala’s Jorge Carpio Nicolle case I analyze the mechanisms that preserve impunity in Latin American nations struggling to emerge from violent conflict and embrace, the rule of law. I reveal how the infective influence of parallel powers, the ineffectiveness of the judicial process, and obstructive legal doctrine destroy domestic efforts to prosecute those responsible for human rights violations. The Carpio case exposes the role of international courts in providing justice when domestic courts fail to do so, and it demonstrates the importance of human rights groups in pursuing this justice. The author would like to thank Roxanna Altholz, Adriana Beltran, and Soraya Long for their invaluable assitance in conducting this research.     

Mapping Public Participation in Policy Choices

In an era of democratic discontent, more and better participation in policy making has become a standard expectation. Yet it is rarely clear what counts as participation, and how the many practices loosely bundled under the label should be understood. This paper has a modest undergrowth‐clearing objective: to examine assumptions behind competing typologies of participation, and to propose a classification framework less laden by idealist notions of democracy.     

A review of crane deaths in Jefferson County, Alabama

Cranes are machines used to move heavy objects. Cranes are operated by crane operators, usually working in conjunction with an assistant guiding the movements of the crane from his vantage point outside the crane. Few jurisdictions require that crane operators be either licensed or certified. We conducted a retrospective study of those dying of crane-related injuries in our jurisdiction during the 16 years from 1981 to 1996. All ten decedents were male, and the manner of each death was accidental. Neither ethanol nor drugs of abuse were detected in any case. Eight of the ten decedents died due to blunt force injuries, one due to mechanical asphyxia, and one due to thermal burns. Investigation by the Occupational Safety and Health Administration (OSHA) led to fines ranging from $80 to $2700 in six of the ten cases. Nationwide, electrocution is the most common cause of crane-related death, but no crane-related death in Jefferson County was caused by electrocution in our study. The absence of electrocutions was due to the planned, routine suspension of power to electrical lines in the vicinity of a crane during the crane's operation, a practice saving an estimated seven lives. Nevertheless, human error or lack of planning was still responsible for most of the deaths in our study. In addition to careful planning and adherence to safety standards established by planning, we recommend the mandatory licensure and certification of professional crane operators and the assessment of larger fines by OSHA for safety standard violations.