Evidence:

      California Evidence Code §351.1 provides that "the results of any polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take or taking of a polygraph examination shall not be admitted into evidence in any criminal proceeding . . . unless all parties stipulate to the admission of such results."  In 1994, Nicole Brown and her friend Ronald Goldman were stabbed to death.  Brown's ex-husband, former football star O.J. Simpson, was charged with the murders.  [Click here for more about the case.]  The prosecution sought to have Simpson's friend Ronald Shipp testify about remarks Simpson allegedly had made to Shipp the day after the murders.  According to Shipp, Simpson had said that the police wanted him to take a lie detector test, but that Simpson was unsure whether to agree.  Shipp said that Simpson had explained his reluctance by admitting, with a "kind of chuckle[]," that he "had a lot of dreams about killing her."  The trial judge ruled that Shipp could recount what Simpson had said about his dreams, but that §351.1 required redaction of the reference to a lie detector test.  Shipp then testified that Simpson had said "jokingly" that he had "had some dreams of killing her"; no mention was made of the request to take a lie detector test.  At the conclusion of the trial, the judge instructed the jurors that they should disregard Shipp's testimony about Simpson's statement if they concluded "that the statement referred to subconscious thoughts while asleep," but should give the testimony "the weight to which you feel it is entitled" if they concluded that Simpson had made the statement and that "the statement referred to an expression of a desire or an expectation."  See Gerald F. Uelmen, The O.J. Files: Evidentiary Issues in a Tactical Context 12-13, 20-21, 24-25 (1998).  Did the judge handle this matter properly?  (Simpson was acquitted of the murders but later found liable for the killings in a civil action for wrongful death.)

      A century before People v. Collins, the most famous mathematician in the United States, Benjamin Peirce, testified as an expert in Robinson v. Mandell, a federal diversity lawsuit over a disputed will.  Sylvia Ann Howland died in 1865 with an estate worth more than $2 million.  In a will dated 1863, Howland left roughly half her wealth to various individuals and institutions, and directed that the remainder should be held in trust for the benefit of her niece, Hetty Robinson, with the principal distributed at Robinson's death to certain distant relatives.  Robinson came forward with an earlier will leaving the entire estate to her and—on a second, separately signed page—invalidating all subsequent wills.  The executor, Thomas Mandell, rejected the second page as a forgery.  Robinson sued.  Peirce and his son, the logician Charles Sanders Peirce, testified for the estate.

      At his father's direction, Charles had compared 42 known signatures of Howland, superimposing two at a time and counting how many of the 30 downstrokes in each signature overlapped.  He testified that, on average, six of the downstrokes—one out of five—matched up.  But when the signature on the first page of the earlier will, which both sides agreed was genuine, was compared with the signature on the second page, which the estate suggested Robinson had simply traced, all 30 of the downstrokes coincided.  Following his son to the stand, Benjamin Peirce testified that the probability that all 30 downstrokes would coincide in two signatures by Howland was (1/5)³⁰, or 1 divided by 2,666,000,000,000,000,000,000.  "So vast improbability," he added, "is practically an impossibility.  Such evanescent shadows of probability cannot belong to actual life.  They are unimaginably less than those least things which the law cares not for."  Accordingly, Peirce concluded, "the coincidence which has occurred here must have had its origin in an intention to produce it.  It is utterly repugnant to sound reason to attribute this coincidence to any cause but design."  See Louis Menand, The Metaphysical Club 163-176 (2001); Paul Meier & Sandy Zabell, Benjamin Peirce and the Howland Will, 75 J. Am. Stat. Assn. 497 (1980); The Howland Will Case, 4 Am. L. Rev. 625 (1870).  (Ultimately, the court ruled for the estate without reaching the allegations of forgery.  No one other than Robinson had seen Howland sign the second page, and a federal "dead man" statute made parties to a suit over a will incompetent unless called by the other side or ordered by the court to testify.  So there was a simple failure of proof.  See Robinson v. Mandell, 20 F. Cas. 1027 (C.C.D. Mass. 1868) (No. 11,959).)

      Would Benjamin Peirce's testimony be admissible today in federal court?  He appears to have made an arithmetic error: (1/5)³⁰ is actually 1 divided by 9.313 x 10²⁰, not 1 divided by 2.666 x 10²¹.  Would the mistake affect the admissibility of his testimony?

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