Saturday, January 17, 2004

Direct Inference:Indirect Inference::Direct Perception:Indirect Perception?

Many or most of the 20th century giants of U.S. legal scholarship in the law of evidence in the took the position that there is such a thing as direct or immediate inference; some of them said, for example, that some types of tangible evidence present information directly to the senses and do not require any inference about such information by a human observer. Some legal writers and many philosophers, however, have challenged this view or have taken a different view. I belong in this latter fraternity. In my (two-volume!) 1983 revision of the first volume of Wigmore's classic treatise on the law of evidence I said that "there is no such thing as direct evidence." (Ironically, Wigmore took a quite different position: he coined a phrase -- "autoptic proference" -- to describe how tangible things present themselves immediately to the senses. [Today no one uses Wigmore's neologism except to poke fun at Wigmore.])

I had thought that this disagreement about the existence or nonexistence of direct inference had been put to bed. But perhaps I am wrong. There is today a controversy still among psychologists and other serious students of perception about the existence or non-existence of direct perception. See, e.g., Claire F. Michaels and Claudio Carello, Direct Perception (1981), which is available at http://ione.psy.unconn.edu/~psy254/MC.pdf. (Professors Michaels and Carello call the study of direct perception the "ecological approach.")

What do you think, Gentle Reader?

Consider this question: Even if there is such a thing as direct human perception of the world, is there much or any direct perception or direct inference of or from the evidence presented in legal proceedings such as trials?

  • My question more precisely stated: Even if direct perception or direct inference occurs in trials, is it ever the case that direct perception or direct inference suffices to establish a legally-material factual proposition in a judicial trial or other legal proceeding?
  • Er, ..., you can perhaps see which way the wind is blowing in this writer's brain.
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