Sunday, March 07, 2004

Birth and Death of Postmodern Evidence -- the Rise and Sudden Decline of a New Non-Science of Evidence -- in the Halls of the Supreme Court

Seven years ago Justice Souter proclaimed (on behalf of the Supreme Court), "Evidence ... has force beyond any linear scheme of reasoning." This proclamation, made in Old Chief v. United States, 519 U.S. 172 (1997), was issued in support of the contention that reason cannot reveal all the ways in which evidence may be relevant to factual issues at a trial.

Ever since 1997 I have been telling my students that this eruption of postmodern evidence theory in the halls of the Supreme Court would be brief. I have discovered that Souter's irrationalist, intutionist, or holist perspective on evidential argument apparently did not even have a half a half-life: a LEXIS search (conducted on March 7, 2004) shows that not one single opinion by any court in the United States (from the highest to the lowest, state or federal) has used Souter's dismissive phrase "linear scheme of reasoning."

  • I have not used variants of "linear" in my search -- variants such as "nonlinear." So it is possible that some judge somewhere has seen merit in Justice Souter's theory that the mind of (wo)man cannot divine or articulate the various ways in which evidence may be relevant.
  • Postscript: I do not belief that all steps in or features of inference can be made explicit. However, Justice Souter's evidential intuitionism cannot easily co-exist with fundamental assumptions of the administration of the rules of evidence in trials -- with, for example, the rule or principle that an offeror of evidence has an obligation to inform the trial court of the purpose and relevance of the evidence it offers. Furthermore, there is a big (and unwarranted) step from the proposition that not everything can be spelled out to the proposition that nothing can be spelled out.

    Further postscript: Nonlinear mathemtical reasoning may be hard to follow, but it is -- contrary to some rumor -- explicit reasoning.

    Urgent additional postscript: Whoops! Well, perhaps my LEXIS search was misphrased. I have found one opinion that quotes Justice Souter's phrase. See United States v. Becht, 267 F.3d 767 (8th Cir., August 21, 2001). There may be others. I will report back (but I will not perform revisionist surgery on my original message, I will not delete my mistake).

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