Friday, December 13, 2002

Evidence in General and Evidence in Particular

The book that I am writing will be called, perhaps, GENERAL PRINCIPLES OF EVIDENCE AND PROOF.

But, as a subtitle will reveal, my book is not just about "abstract" principles of evidence and proof. I want to write a book that says something useful about the workings of a particular system or systems of proof at a particular time and in a particular society: I want to write a book that says something useful about the workings of the law of evidence and proof in the United States in the early part of the 21st century.

It is possible that the "general nature of judicial proof" cannot possibly generate or support any useful statements about particular (and actually-existing) systems of judicial proof. I reject this possibility. Suppose I am entitled to do so.

But suppose, further, that I have no "theory of everything" that identifies the variables that make particular actual systems of proof operate and look the way that they actually do; i.e., suppose that I believe -- as I do -- that, insofar as my eye can tell, only "accident" -- i.e., matters other than the general attributes of proof -- can explain many of the workings and features of particular actually-existing systems of proof. Under these circumstances -- given the limits of my knowledge -- am I in a position to say -- am I conceivably in a position to say -- anything useful about the relationship between the general nature of proof and the particular characteristics of particular actually-existing systems of proof in litigation?

My tentative answer -- my tentative hypothesis -- runs a bit like this: proof in litigation has certain necessary attributes (and these necessary attributes are the "general" attributes of proof in litigation); but these necessary attributes do not (wholly) determine, or produce, the particular mix of characteristics, features, and workings that characterize any particular actually-existing system of proof -- each society is free to give its own "twist" to the necessary attributes of judicial proof; but it is possible that each essential attribute of judicial proof has some "causal potency," some influence on the shape and workings of any particular actually-existing system of judicial proof; and perhaps "thick" description of a particular actually-existing system of proof will illustrate how such causal potency might work and perhaps -- if nothing else -- such thick, close description will provide useful fodder for further ruminations about the real-world implications and effects of the necessary attributes of proof.

For example:

Hypothesis #1: proof in litigation occurs in space and time.

Hypothesis #2: proof in litigation is about events in space and time.

Hypothesis #3: proof in litigation is an irreversible process (see hypothesis #1).

Hypothesis #4: inference (in litigation) takes place in a limited amount of time (cf. hypothesis #1).

Hypothesis #5: steps in proof (inference, investigation, etc.) effect irreversible changes (see hypothesis #3).

Are we in agreement so far?

If so, do any of these propositions shed any useful light on the American law of evidence today and, more generally, on the process of proof in litigation in the U.S. today?

***

Stay tuned for further ruminations.

Do you have any thoughts about my musings so far?

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