Discussion paper: The structure and the logic of proof in trials

Law, Probability and Risk

Volumn 10, Issue 1, 2011, Pages 1-6

  Tillers, Peter ^a  

^a YESHIVA UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84855231498     PISSN: 14708396     EISSN: 1470840X     Source Type: Journal    
DOI: 10.1093/lpr/mgq014     Document Type: Note

References (13)

1. I did not get the job. But I had the good sense to withdraw my candidacy before the school had a chance to reject me.
2. 1 & 1A Wigmore on Evidence (Little Brown & Co.: Peter Tillers rev. 1983).
3. See, e.g. Edmund Morgan, Basic Problems of Evidence 183-188 (Joint Committee on Continuing Legal Education, ALI & ABA: 2d ed., 1962).
4. In Criminal Evidence (Oxford: 2004), Paul Roberts and Adrian Zuckerman use invoke five central principles to explain, they say, the main features of the law of criminal evidence in England. Id. at pp. 18-22.
5. In Rethinking Evidence: Exploratory Essays (2nd ed., 2006) (as well as elsewhere), William L. Twining describes what he calls the 'rationalist' tradition of evidence scholarship.
6. At page 76 of that book, he even provides a helpful table that summarizes the properties that scholarly tradition ascribes to the methods of inference and proof used in trials following the common law tradition. (But he views these attributes of inference and proof as forming an 'ideal type' rather than an actual and precise characterization of any actually existing system of juridical proof.)
7. In various works, William Twining advocates the use of neo-Wigmorean analytical methods to advance what he presumably views as 'rational' methods for lawyers to participate in the process of juridical proof. See, e.g. Terence Anderson, David Schum and William Twining, Analysis of Evidence (2nd ed., 2005).
8. However, Twining has relatively little to say about the rationality or irrationality of specific rules of evidence such as the hearsay rule and the best evidence rule
9. Quoting D.A. Norman, Things That Make Us Smart: Defending Human Attributes in the Age of the Machine (Reading, MA: Addison Wesley, 1994).
10. In an abstract of another paper (a still-unwritten paper that prompted the argument sketched in this paper), I offer three examples of the possible epistemological lessons of actual human social-legal practices. For example, I suggest that American proof practices, if viewed as resting on truthfinding considerations, harbour some possibly very important epistemological lessons about the relationship between truthfinding, multiple investigative hypotheses and resource constraints.
11. See Abstract, http://tillers.net/abstract.html (July 19, 2010).
12. Cf. Peter Tillers, 'The Fabrication of Facts in Investigation and Adjudication' (1995, 1998 and 2007) (see especially '§5. Implications of Interpersonal Variability in the Formation of Conjectures and Hypotheses: Let a Hundred (Discordant?) Flowers Bloom in Investigation and Proof?') at http://tillers.net/fabrication.html.
13. Earlier in this paper, I spoke of my yearning to extract 'timeless' lessons-relatively timeless lessons-from ontology. One possible (relatively) timeless lesson from the evolving nature of human creatures and societies may be that different individuals and societies can and will entertain different ideas about how to best find the truth about facts and about how best to reconcile the search for the truth with other objectives, preferences and aspirations. Compare my concluding comments here about the question of the eventual convergence or nonconvergence of individual or sociolegal methods for getting at the truth about facts. Simply stated, I am agnostic on the question of where all of us are headed.