Saturday, December 14, 2002

Installment #2 of Preliminary Ruminations for Book "General Principles of Evidence and Proof":
Notes on Inference, Culture, and Evidence

Factual inference is, perhaps, an essential or necessary property of proof in litigation.

But there is more to proof in litigation ("judicial proof" for short) than unadorned factual inference.

For example, culture -- or something akin to culture -- influences the shape of factual adjudication.

Moreover, culture or received beliefs influence proof in litigation by influencing inference.

For example, in a lawsuit involving a life insurance policy, a juror might reason, "A stable married person like the insured would be unlikely to suddenly run off to the wilds of Alaska. The explanation for the insured's disappearance is probably death, not an unannounced and secretive flight to Alaska."

A different juror or jury might reason, "A person with marital responsibilities is occasionally likely to find the marital burdens too heavy and thus might well decide to run off into the Alaskan wilderness in an attempt to start life afresh."

The beliefs of my two hypothetical jurors might be characterized as [diverse] "received belief."

If so, the following chain of influence is both possible and likely:

received belief ---> inference ---> workings of judicial proof

But the foregoing influence chain does not rule out the following chain of influence:

workings of judicial proof

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inference < ------------------ evidence

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received belief

Ergo: it is possible that evidence as well as received belief (or culturally-transmitted beliefs or background beliefs or whatnot) is a determinant of the workings of proof in litigation.

Isn't that right?

Furthermore: although inference is influenced by both evidence and received belief, isn't it possible -- and probable -- that inference itself influences the workings of proof in litigation?

Warning!: To say that received belief and evidence influence inference is not to say -- necessarily -- that inference is reducible to evidence and received belief. Inference, many of us think, involves in part an act of judgment -- the drawing of a conclusion -- by the human organism, an act that may, of course, be influenced by evidence and received belief -- and by a wide variety of other matters [such as emotions and memory].

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Your thoughts?

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A plug: some of the above matters may be discussed at a forthcoming conference, "Inference, Culture, and Ordinary Thinking in Dispute Resolution," April 27-29, 2003.

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