Preserving Evidence in the F.L.D.S. Case

Here is living proof.

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.

Assault This Revised Definition of Evidence

Please assault the following revised definition of evidence in contemporary American trials:

Except when the term “evidence” is manipulated by the law -- e.g, when a matter generally considered evidence is nevertheless called "not evidence" -- to achieve specific instrumental or policy ends, the term “evidence” in American law generally refers to any matter that may increase knowledge about states of the world whenever the knowledge that may be found in such matter either is not available or is not readily available to the ordinary knowledge and reason of triers of fact; but societal beliefs about the likely knowledge-value of a possible source of knowledge about the world work as a drag or as a draft on the legal characterization of a possible source of knowledge as evidence or non-evidence.

Illustration of the hedge in the last sentence of the above definition: if a large majority of literate persons with a college degree believe that a possible source of knowledge almost certainly has no value because they believe that the knowledge-value of that possible source of knowledge rests on propositions, principles, and methods that are almost certainly invalid, the chances decrease that a legal decision maker (such as a trial judge) will characterize such a possible source of knowledge as "evidence." This sort of social influence also works in reverse. For example, if a large fraction of the same social sector -- literate people with college degrees -- strongly believes that some possible source has great knowledge-value for the kind of question at hand, the chances that a legal decision maker will characterize that possible source as "evidence" are enhanced.

In saying what I say immediately above, I am not saying that people who are not literate or who don't have college degrees don't know nuttin'. I don't believe that's true!

I am suggesting that the epistemic views of legal actors such as judges are likely to be affected and predicted by the epistemic beliefs and attitudes of some sectors of society more than by the beliefs etc. of other sectors of society.

Assault This Definition -- Please!

Please assault the following definition of evidence in contemporary American trials:

Except when the term “evidence” is manipulated by the law to achieve specific instrumental or policy ends, in American law the term “evidence” generally refers to any matter that may increase knowledge about states of the world whenever the knowledge that may be found in such matter either is not available or is not readily available to the ordinary knowledge and reason of triers of fact; but “evidence” does not include any matter whose knowledge-value depends on propositions, principles, or methods that a large majority (e.g., 95%) of literate persons with a college degree view [“views”?] as clearly and incontestably false or invalid.

Possible discussion test case: The evidentiary status of the testimony of an “ethics expert.” Consider various kinds of “ethics experts.” Consider different possible purposes of the testimony of such “experts.”