Friday, April 25, 2008

What Is Evidence (in American Trials)?

I have ventured a couple of definitions of "evidence" in contemporary American trials. See this recent post and this even more recent post. However, thus far my definitions seem to have ignored the fact that American law distinguishes questions of law and questions of fact. Legal questions are addressed by the judge and (supposedly) not by the jury. However, this distinction is not and never has been a clean one; juries often address issues that have a normative character. Moreover, it can be argued -- and I have argued -- that when judges consider legal questions, judges ordinarily do consider evidence. See P. Tillers, "The Value of Evidence in Law," 39 Northern Ireland Legal Quarterly 167 (1988). I don't think it can safely be said that legal interpretation does not involve or require evidence and inference. But perhaps it can be said that the relationship between propositions and evidence is different when the choice of valid propositions rests heavily on the preference of the assessor or decision maker than when the choice of valid propositions rests heavily on the assessor's or decision maker's judgment of the truth or falsity of propositions. However, the line between these two kinds of judgments is, I think, not clean, and not as sharp as academics sometimes suppose. People's preferences are often shaped by people's judgments about the shape of the world -- and vice-versa.

You may wonder why I am going to the bother of trying to define evidence in contemporary American trials. The cheap and easy answer is that my effort has something to do with a book I am writing. But this answer is a cheap answer -- because you can and should ask why I am bothering to talk about the definition of "evidence" in the book that I am writing. I'll try to say something about this question later -- sometime later.

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