Sunday, November 06, 2011

Some more remarks on "implicit content"; is the idea of "null hypothesis" useful in the law?

At times, on both this blog and my main blog, I’ve discussed the subtle issue of “implicit content”, which imputes a “purpose” or legal “intent” behind self-distribution of writings or content without obvious conventional commercial gain. It came up in 2006 during the COPA trial.

In my case, I was thought to have suggested that I was capable of committing a particular crime, with respect to a fictitious screenplay I had posted and that was later discovered by school system officials (in 2005) while I was substitute teaching.

But in the screenplay, there was an introductory circumstance (a heart cardiac arrest and subsequent defibrillation by a student) that was totally fictitious, and moreover, improbable on its face.  (On the other hand, that could be one reason people write and publish fiction, to show what “could” happen.) However, the mere improbability of the chain of events in the screenplay would seem to mean it couldn’t have been my “purpose” in writing and self-publishing the work, to induce someone else to assist me to commit illegal behavior later occurring in the screenplay.

A “null hypothesis” in this sort of situation would be that promotion of illegal behavior in others was not likely to occur because of the publication of the screenplay.  Analysis of the fact pattern would not lead to rejection of the null hypothesis.  It seems to me that this sort of analysis could occur in cases where prosecution wants to prove “intent” or “purpose.” 

The "null hypothesis" concept and its use in investigation appears in the recent indie film "The Double" (reviewed on the movies blog Nov. 5). 

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