Saturday, July 12, 2003

Elvis and Wigmore Sightings

Elvis Presley is reported to have died in 1977; John Henry Wigmore reportedly died in 1943. There are persistent reports, however, of post-1977 sightings of a living and breathing Elvis. There are almost as many reports of post-1943 sightings, if not ordinarily of a living Wigmore himself, then of Wigmore's post-1943 handiwork.

It is not easy to discount all of the reports of (allegedly!) posthumous appearances of Wigmore's handiwork. For one thing, many of these sightings are by estimable and knowledgeable judges and courts. For another thing, there have been many, many post-1943-Wigmore-handiwork sightings: numerous courts and judges -- one cannot treat them all as cranks! --, numerous judges and courts have reported seeing statements penned by Wigmore that appear to have been written after 1943. For example, very recently a judge of the Florida Supreme Court reported that Wigmore had stated that
single inferences, though weak when taken individually, may be substantial and powerful when added together . . . . The probative strength of an underlying inference is a factor that affects the strength of the final factum probandum, but . . . no mechanical rule can be laid down concerning how strong any underlying inference must be. The question is not whether any given inference in a chain is too weak but is always whether, in view of all patterns of corroborating and contradicting evidence at all levels of all inferential chains, the final factum probandum has been shown to the degree of likelihood required by the applicable standard of persuasion . . .
Castillo v. E.I. du Pont de Nemours & Co., 2003 Fla. LEXIS 1159, 52*-53* (July 10, 2003) (Pariente, J., concurring, joined by Anstead, C.J.).

Judge Pariente traces the quoted language to the 4th edition of Wigmore's massive treatise on the law of evidence; the source of the quotation was said to be 1A John Henry Wigmore, Evidence in Trials at Common Law, § 41, at 1138 (4th ed., 1983).

While it is true that volume 1A first appeared in 1983, it is of course possible that the language quoted by Judge Pariente is indeed Wigmore's handiwork. Volume 1A is a part of a revision of the third edition of volume 1. The third edition of volume 1 of the Treatise appeared in print in 1940, well before Wigmore's death.

I am compelled to report, however, that I took a gander at the third edition of Wigmore's Treatise and I regret to report that the language quoted by Judge Pariente does not appear in the 1940 edition. But by itself this possible fact again proves nothing. (Not for nothing am I a professor of Evidence!) It is possible that Wigmore wrote the quoted passage and left it for a reviser to insert it into a subsequent revision of his Treatise. Furthermore, it is also possible that Wigmore lives!

Being puzzled by this puzzle of possible post-mortem scholarly activity, I resolved to speak directly, not with Wigmore himself, but, at least, with the reviser ("revisor"?) of volume 1. He assured me that he, and not Dean Wigmore, had penned (typed, to be precise) the passage quoted by Judge Pariente.

Now I happen to know the reviser well; I am personally acquainted with him. Nevertheless, the question of whether Wigmore is still alive cannot be seen as having been conclusively resolved. Despite my personal friendship with the reviser, I cannot claim that I have an ironclad guarantee of the reviser's credibility. (I trust that a scholar's privilege will protect me from any defamation action.) Furthermore, the quoted passage is so penetrating, so intelligent, so persuasive, and, ...well, ... so dogmatic (dare I say), that a reasonable person would have to conclude that only a person of Wigmore's stature and character could have crafted it!

What say you, Gentle-but-Critical Reader?

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