Facts in Constitutional Law

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More than 25 years ago William Twining held a conference to proclaim the importance of "fact in law." Now David Faigman has turned Twining's proclamation -- and lament -- into reality. Faigman does so by demonstrating the importance of facts in constitutional adjudication. Of course, facts were always important in constitutional adjudication. The problem is that judges and legal scholars in constitutional law have been extraordinarily cavalier in their treatment of factual inference in constitutional adjudication. Faigman's book should make judges and constitutional law scholars sit up and take notice.

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consulting on investigation strategy and the law of evidence

Fact-Sceptics, Take Heed!

Post-modernists and all ye other fact-skeptics take heed: sometimes evidential inference works rather well. Consider this news item:

2008 TC3 [an asteroid in space] was discovered on 6 October by astronomers using the Mt. Lemmon telescope in Arizona.... At 01:45 UTC, JPL scientist Paul Chodas announced, "We estimate that this [asteroid] will enter the Earth's atmosphere at around 2:45:28 UTC [October 7] and reach maximum deceleration around 2:45:54 UTC at an altitude of about 14 km. These times are uncertain by +/-15 seconds or so."

Question: The actual time of entry in the earth's atmosphere?

Answer: The flash accompanying the asteroid's entry into the atmosphere was photographed by satellite at 02:45:47 UTC [October 7]. This was very probably close to the time of maximum deceleration. That's a difference of seven (7) seconds, which is within the +/-15 seconds uncertainty given by JPL scientist Chodas.

Not bad, eh?

Credit: Mohamed Elhassan Abdelatif Mahir (Noub NGO), Dr. Muawia H. Shaddad (Univ. Khartoum), Dr. Peter Jenniskens (SETI Institute/NASA Ames)

Rules of Evidence in the United States and in Germany

Jacqueline E. Ross, "Do Rules of Evidence Apply (Only) in the Courtroom? Deceptive Interrogation in the United States and Germany," 28 Oxford Journal of Legal Studies 443 (2008), abstract:

Scholars who compare common law and civil law countries have long argued that civil law legal systems such as Germany do not employ formal rules of evidence comparable to those which govern American courtrooms. Civil law systems that commit fact-finding to mixed panels of lay and professional judges are said to have less need for formal rules of evidence that withhold information from decision makers. This article challenges this widely held view. Scholars have failed to recognize that evidentiary rules can restrict not only the presentation of evidence at trial but also the manner of its acquisition during the pre-trial investigation. For this reason, existing scholarship overlooks a rich source of evidentiary norms in the criminal process of civil law countries such as Germany. I argue that German regulation of police interrogation particularly its prohibition of deceptive stratagems plays an important role in shaping the factual record on which the legal system assesses guilt or innocence. The article identifies a number of institutional factors on which this system of pre-trial evidentiary regulation depends.

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consulting on investigation strategy and the law of evidence

Forms of Justice: The Tango and the Rumba

Professor Elisabetta Grande suggests that for comparative study of some procedural systems we should replace the distinction between adversarial and non-adversarial systems with the distinction between procedural systems that resemble the tango and those that resemble the rumba. See E. Grande, "Dances of Criminal Justice: Thoughts on Systemic Differences and the Search for the Truth," in J. Jackson, M. Langer & P. Tillers, eds., Crime, Procedure, and Evidence in a Comparative and International Context: Essays in Honour of Professor Mirjan Damaska.

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consulting on investigation strategy and the law of evidence

Visitors at Yale's Mirjan Damaska Conference

Michael Risinger & Paul Roberts

Paul Roberts & Michele Taruffo

John Jackson, Craig Callen & Michael Risinger

What Happens at Yale Does Not Stay at Yale

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