Join Dr. Cain Elliot, Alex Pearson, and Professor Fred Schauer as they discuss the finer points of Fred Schauer's latest book, The Proof: Uses of Evidence in Law, Politics, and Everything Else.
Frederick Schauer is an American legal scholar who serves as David and Mary Harrison Distinguished Professor of Law at the University of Virginia School of Law. He is also the Frank Stanton Professor emeritus of the First Amendment at Harvard University's Kennedy School of Government. He is well known for his work on American constitutional law, especially free speech, and on legal reasoning, especially the nature and value of legal formalism.
Frederick has authored over ten books with subjects ranging from Constitutional Law, the uses of proof in legal cases, legal philosophy, and more.
Full Transcript
Dr. Cain Elliot:
So, first of all, I want to welcome everyone to another episode of Filevine Fireside. I'm Dr. Cain Elliot, the host for today, I serve as the head legal futurist and an SVP over at file line. I'm joined likewise by my colleague, Alex Pearson, our GC Alex. Thank you for joining us today.
Alex Pearson:
Thank you for inviting me.
Dr. Cain Elliot:
And we're very, very excited about our guests today. We're joined by Professor Frederick Schauer here. We're going to discuss a little bit from his new book. Uh, the proof uses of evidence in law politics and everything else from 2022. Um, Professor Schauer serves as the David and Mary Harrison distinguished Professor of Law at the University of Virginia ,was previously at Harvard and the University of Michigan. My heart is very much with the University of Michigan, where my sister finished her doctor in sociology. So I love that institution.
Um, Professor Schauer is the author of numerous works and my favorites personally are “Profiles, Probabilities and Stereotypes”. And I really did like “The Force of Law”. So before this book came out, I had it on pre-order right when it came out, I tell Professor Schauer, I've got a hold of it on day one. I'm ready to go and talk to you about this whenever you want. So I've been looking to talk with you for a while about this. I wanted to get started by first mentioning whenever I read a new work and whenever I look at something new, this is probably something you're used to with other people's spend too much of their life in grad school or libraries. I first go to the references and the bibliography and citations and look through and see everything there. But I'm always looking for new things.
I have to say in this book, the first thing that caught my eye, where I thought I've never heard of this was about chicken sexing. So just in a line hearted note, Professor Schauer, I want to know from all my colleagues here at work, since the GCs on with me, don't worry, I didn't Google this topic while I was at work and see what came up in the search results. But Professor Schauer, I was wondering as a lighthearted topic on which to gets started, um, chilcken sex. And can we explain to the audience what that's about and what that might have to do with evidence? I thought it was fascinating.
Professor Fred Schauer:
So, it turns out it's not quite as obscure as it used to be. There's a recent movie whose name I forget, about, I think it is a Vietnamese immigrant family somewhere in the US the patriarch of the family turns out to be a chicken sexer. I don't claim to be an expert in the chicken or, or poultry industries, but it turns out that the nature of the industry is such that it is really important. Almost immediately to be able to identify a young chick, a newborn chick or a new hatch chick as either male or female. The technicalities of that are not so important, but the economics, turn out to be very important. The reason that it's of interest to me as a matter of evidence is that chicken sex apparently are very good at identifying whether a, newborn chick is a male or female, but most of them cannot tell you exactly what it is that they use to make that determination. That is, this is an area of expertise. That's hard to explain. It is an area of expertise that comes from experience rather than from rules, protocols systems or anything of that sort. So in the book, I use this as an example, just to indicate that there are lots of different forms of expertise and lots of experts don't have PhDs. But it is nevertheless a good idea in numerous areas to take the opinions of experts as evidence.
Alex Pearson:
Professor. I haven't read any of your books that came mentioned. However, I, now that my grade doesn't depend on it, I like reading books about the law, and I know that I'm not going to have a final exam after I finish. And, so I'm a first time reader, but I quite enjoy the topic and, the writing style and, and really you use a lot of great applicable examples that a lay person can understand. What inspired you, to take on this project and to write this book?
Professor Fred Schauer:
Okay. So, a long time ago more than 40 years ago, I was for about three years, a trial lawyer in Boston. First job out of law school. I've been an academic now and a full-time academic for more than 40 years, but I was a trial lawyer and dealt with the law of evidence on a pretty regular basis. So when I became an academic, it was natural that one of the things that I would teach, and eventually write about, was evidence as a legal matter. So, I did that for some years, and then the last few years came around, that is the last few years with controversies about evidence of election fraud, or evidence of a whole bunch of other things that people were arguing about on the front page of the newspapers. And indeed, as I say, in the beginning of the book, I found it interesting that some number of senators from both parties and other political figures from both parties, faced with claims by former president Trump, about election fraud and the election having been stolen and everything else, said, “We want to see evidence. Where's the evidence?”
And that prompted me to try to write something about evidence, not just about the law of evidence, evidence in politics, evidence in art authentication, evidence in medicine. It’s not just a bunch of silly lawyer’s rules about objecting in court. It's about how we know what we know. So that was the impetus for the book.
Dr. Cain Elliot:
Yeah. Taking up that thread, you know, one of the things you say at the outset that I thought was really interesting is, you know, you're talking about the fact that you're looking at something from what my background in training and philosophy as you reference is, is a work that's more on something that's epistemology rather than anology of facts; not ‘what is the state of affairs’ or what there is, but how we come to know what there is, but I, I like the way you pose this in terms of not how we know what we know, but also asking why we want to know it. And when we want to know it, right. And these circumstantial factors that become really important. And you break this down later in the book, into these stages or steps we could call it, or let's say functions that kind of funnel together and work together, right.
Where you talk about the fact that there's the motivated production of evidence, right? So how the evidence, comes together, that's a motivated transmission of evidence, how it gets passed around motivated retrieval of evidence. So what evidence we look at then, even to the level of motivated processing or evaluation, which is probably the one that everybody's closest to, when they think of a larger phrase, that's well known about motivated reasoning that people have. I think when you're talking about how you came to write this, it's pretty clear in reading it, that circumstances, of the surrounding world and how people are talking about evidence and what constitutes a fact or what motivates people to find truth has really been pressing on that front. Thinking back to that initial kind of, you know, seemingly unimportant example, though, about this area of, or domain of expertise, where it's hard to transfer, you go through pretty difficult process in this work.
I would say of trying to make this transmissible, like Alex said to a larger, broader audience. What do you think in terms of, as someone who's workedin law, practicing, been in academia for a long time, and you're looking surrounded by this public discourse that's going on about what constitutes the truth. I know you wrote this as an attempt to contribute to that, but I guess I'm wondering, because your conclusion at the end goes to something I would call maybe your dark conclusion in a certain way. Right. Which <laugh> yes, I think is that fair? Right? I mean, I just opened it for everybody. I'm going to read it. If you haven't read the book, there's nothing to spoil here, but essentially your point is that this book is really for people who do care about the evidence. But is there something more that the rest of us could be doing in our domains of expertise to allow others to see the way that we transmit evidence, retrieve it, produce it. Are there things you're thinking about others who are domain specialists in areas like yourself? What’s your reaction to that or thoughts about that?
Professor Fred Schauer:
So I think part of it, as you say, it is a, somewhat dark conclusion. I do worry, as do lots of people worry these days, about the fact that people don't care about evidence, and caring about evidence is the precursor to being able to evaluate it. If you were to ask me for a recommendation and it's not a recommendation in the book, I would hope that caring about evidence is something that is part of the educational process from a very early stage. So, like many of us, I took science in high school and then a little bit of it in colleg: biology and physics and a whole bunch of things. And I took a whole bunch of history in high school, and then a little bit in college. In all of this, there was a lot of emphasis on facts and conclusions and almost none on how people would reach those conclusions.
I don't remember from any of my high school or even college history, although it might be dealt with in an advanced level, how do we make historical determinations when different people say different things? How do we make scientific determinations when different people say different things? It seems to me it ought to be part of primary and secondary education, even before we get to the college or graduate level. So, I’m hardly an expert on primary and secondary education, but I would hope that at least more of it would be methodologically related and evidence related than it was when I was in high school and an undergraduate and decades and decades ago.
Dr. Cain Elliot:
So my follow : one thing I want to ask, cause I was wondering if this isn't a contradiction you've got here in your book, that seems kind of deeply embedded to me in a really fun way. I don't think it's problematic, but it's interesting because early on in the book you say that we don't value evidence for its own sake, right? It's for the purpose of other things, but I have this abiding feeling, reading this work and your others, you do care about evidence for its own sake though, right? I mean, I have that impression that it matters deeply and especially the way you're talking about it in terms of pedagogy, but also just having a value in its own sake to discuss and work with. Is that a fair statement to make?
Professor Fred Schauer:
That is a fair statement, but let me say a little bit why I don't think it's a contradiction. When I talk about how evidence matters and why it should matter, and everything else, what I'm really talking about, is what decision theorists might call expected value. That is what I'm really talking about is what kind of evidence we want and how much evidence we want, and how much conviction we want. Depends on what turns on it. It is appropriate that the legal system says that we shouldn't put people in jail unless there is proof beyond a reasonable doubt of their guilt. I don't have any children, but I would suspect that somebody would want, would be satisfied with much less evidence than that before hiring an accused child molester, there is a babysitter, to take an offensive, but I think, a vivid example, , in lots of different circumstances, what evidence we want and how much evidence we want depends a lot on what turns on it, what are the stakes?
And really, that's what I'm talking about. When I talk about evaluating evidence, which is, I think not inconsistent with, being interested in evidence for its own sake, but when I make decisions, I want to know what turns on the decision. What are the consequences before I decide if the evidence I have one way or another enough? I'll give another example that I just thought of on the spur of the moment. I live in a reasonably, small community, and there tends to be as there are in other small communities, gossip about where the police are setting up speed traps. Don't drive on such and such a road because the police have radar there. When I hear this from some number of friends and colleagues, it might be true and it might not be true. But in most circumstances, I would be perfectly happy with not very much evidence because basically, the consequences to me of getting stopped are great. The consequences, to me, of being a minute late are not so great. And that goes into my calculation of do I believe what people tell me about some fact about the world.
Dr. Cain Elliot:
And by the way, I want to real quick, Alex, any potential readers out there among our audience, there is a whole section on heard it through the grapevine and gossip as evidence in the book, which maybe of interest of many listening, sorry, Alex.
Professor Fred Schauer:
I think the warning to the readers is in order, which is this book will cause you to question things that you've believed for a long time because of the inferences that we make in our daily lives. And, you know, it will cause you to think a lot harder about these topics. At least it did for me. My favorite professor in both undergraduate and law school was my evidence professor. He's a fellow Bostonian and his name's Daniel MEDW. And, he also taught a class, a very small class that I took, called Wrongful Convictions. And we learned that some forms of evidence are becoming, finally recognized as really unreliable. How do you view, you know, for example, eyewitness testimony, things like that, right. How do you view those changing in the courtroom in the next 10 to 20 years? I mean, they have changed in the last 10 to 20 years. I think how we view those and how helpful they are to a case. But how do you view, I guess, the rules of evidence and the evidence that is presented in a courtroom to a jury changing in the next couple of decades?
Professor Fred Schaeur:
I think one area is that it's not so much the evidence, the evaluation of evidence that's changing, but the production of evidence that's changing that is, some number of recent concerns and some number of very high level government reports, about wrongful convictions have changed the practice of producing evidence on the part of forensic scientist and others. When people question eyewitness testimony, when they question even fingerprint testimony, when they question bite marks and tool marks ,and all of this, one of the things that does is it makes the people who do these tests do it better. So that, it seems to me is the biggest change that we are now seeing better fingerprint technology, better handwriting analysis technology, better lie detection technology, and all of these other things that we've seen in the past, somewhat more concretely.
I think lie detection is a particularly interesting area, with the exception of New Mexico, most, jurisdictions basically don't allow it, modern lie detection technology mostly by, functional magnetic re residents imaging, brain scans is a lot better than the crud polygraphs of 70 or 80 or 90 years ago. But the legal system, again with New Mexico is an exception and there are a few federal courts that make exceptions remains very skeptical. But so much turns on. Do we believe somebody, or do we not believe somebody? That I think 20 years from now, we are going to find both courts and others more receptive to the best of lie detection technology than we have now. If we assume, and this is not too far off, that the best of lie detection technology now might be to oversimplify 80 to 85% reliable. That's clearly not enough to convict somebody by proof beyond the reasonable doubt, but it might very well be enough to acquit somebody who says I was 300 miles away and passes a lie detector test, defeating proof beyond the reasonable doubt. And we can also imagine lots of instances in civil litigation and others in which this would be important. So I think we're going to see a big change in this area, but it hasn't happened yet.
Dr. Cain Elliot:
And on that note, Professor Schauer, that's a topic that's really fascinating, interesting for me working in legal tech and the kind of work that Alex and I do at our organization. I wonder, what do you think? Sometimes I'm, you know, I'm very intrigued by the topic deeply interested in, but also worried when there are mechanisms and processes that are happening and what I sometimes would call like the ‘black box of technology’. So if somebody thinks about artificial intelligence, machine learning, that's being utilized now in some companies, you know, where it's been turned on and off in settings like this, where we are in a Zoom, and someone's watching someone speaking with someone else, and you could imagine a scenario using machine learning to, interrogate their voice, what they're talking about, different effects that they may show, or that may appear and using a technical apparatus like that to say, you know, you can make some kind of determination like that. And I worry about those things. If they're happening in a kind of black box in a sense, there's not a lot of insight into what's going into making that determination. What are your thoughts or responses?
Professor Fred Schaeur:
About? So, yeah, I share some of your worry about the black box idea of this, but again, I think in most of social science, and in many other areas of inquiry, the most important question to ask is, compared to what? So let's go back to lie detection for a moment. Lots of people don't understand lie detection, lots of people are worried about the black box of lie detection. But it turns out that if technological lie detection is not used, people tend to rely on their own conventional and folk wisdom about the ability to determine who's lying. And who's telling the truth. A fair amount of serious research. A lot of it done by a psychologist named Bella Z Apollo, in Santa Barbara, who used to be here at the University of Virginia, indicates that people, even well trained people, are really awful at distinguishing liars from truth tellers. So if it turns out that the ability of ordinary people and even trained professionals to distinguish liars from truth tellers is barely better than random. I think I'd probably prefer to rely on the scientists, the developers of artificial intelligence and the like, even if I don't understand what's going on, I probably am more willing to rely on them than people's totally unjustified confidence in their own abilities to determine who's lying and their confidence in other people's abilities to determine who’s lying. So again, compared to what?
Dr. Cain Elliot:
There's one other thing I wanted to ask you about in the time we have remaining. So there are a lot of different themes that come up in this book and you raise them in a lot of different directions. And I do appreciate that all the citations would allow you to take what's in there in many different directions. And you could go on a lot of different research rabbit holes from what's in the text. But for me, one of them is, you know, one of these hidden kind of thematics that's going throughout the book is the place the public in common spaces and shared spaces. I mean, both in the sense of shared spaces that we construct together as publics, that where we come to some kind of agreement about things, also shared acts that we have, there was thinking in particular, in the chapter on testimony where you're talking about oaths, right?
It seems to matter fundamentally that these are things that are said in, let's say, publicized settings or surroundings, right? Somewhere where someone else is able to potentially see them, hear them. What do you think about shared spaces today? I know it's kind of a preoccupation that all of us have about whether shared spaces are expanding or disintegrating with new technologies and how they're appearing seems really relevant to the notion of evidence. When you talk about the fact that, you know, evidence, the one thing we'll all agree on, no matter what we think we disagree on is that there's a hell of a lot more of it and it's everywhere. Yeah. But what does it mean with so many kinds of multiplying spaces? And how does that relate, to the general theme you're taking up in the book, if you have any?
Professor Fred Schauer:
Right. I think it's a profound question. I think it does suggest the necessity of, let's call it evidentiary translation across these spaces. And one of the reasons that I wrote this book, and one of the things that I keep stressing throughout the book is trying to make sense about what other people in different spaces say about evidence. Sne of the things that gets my dander up to use perhaps an expression of a hundred years ago, is the frequency with which we read in the newspapers about, ‘there’s no concrete evidence. There's no solid evidence. There's no definitive evidence’. All of these adjectives. I want people when they hear that to have their ears perk up and say, when you say there's no definitive evidence, do you mean that there's some evidence, but it's not good enough for you?
Do you accept that there's some evidence, but it's not good enough for some purpose? The phrase, definitive evidence, conclusive evidence, direct evidence, and so on. These are phrases that tend to be used by lawyers for guilty defendants who want to denigrate the evidence that there is against their client, but we see it in a lot of policy settings as well. So if I can make the reader of the book more attuned, more alert, more sensitive to how people talk about evidence, what the background agendas might be and what the consequences are, I will have considered this a success.
Dr. Cain Elliot:
I can think of no better thematic on which to wrap up, having started perhaps with your dark conclusion Professor Schauer. On behalf of all of us here Filevine, and myself and Alex, I, I want to thank you for giving us some time today and speaking with us. Alex, thank you for joining us. Really a pleasure to have you on, and to get to speak with you directly. I very much appreciate it.
Professor Schauer:
Thank you very much. The pleasure was mine. I enjoyed it.