Saturday, May 28, 2011

The Logic of Fact Investigation versus the Logic of Factual Proof?

In philosophical discourse there is some talk about the difference (or the supposed difference) between the "logic of discovery" and the "logic of justification." Is there a parallel or analogous difference between the discovery of facts and the proof of facts in legal settings? Does one type of logic govern the investigation of factual questions and another type of logic govern the proof of factual hypotheses in legal settings such as trials?

I think the answer is both yes and no: Although the forms of mental structuring that play a role in settings such as the process of proof at trial also influence fact investigation that is conducted with an eye to the possibility of a legal event such as a trial -- for example, substantive legal rules influence pretrial investigation as well as proof at trial, and investigators as well as trial lawyers sometimes have to think about the credibility of witnesses --, some forms of mental structuring (or evidence marshaling) tend to be more prominent in later phases of proof (broadly understood) than in earlier phases of proof. This is the way that I formulated this thesis in the most recent iteration of the syllabus for my course Fact Investigation I:
Fact Investigation II, offered in the spring semester, is a continuation of Fact Investigation I, which is given in the fall semester. In the spring semester, teams of students attempt to bring to a conclusion one or more of the investigations they began the previous semester. Although the fall semester course and the spring semester course have some of the same objectives and themes, the spring semester course differs in important ways from its predecessor. In the spring semester there is more emphasis on sources of evidence beyond databases and public records; for example, there is a greater emphasis on witness interviews. More generally, in the spring semester there is less emphasis on exploratory investigation and there is more emphasis on bringing an investigation to a successful conclusion. For this reason, in the spring semester substantially more attention is devoted to the relationship between the steps taken during investigation and matters such as (a) the legal requirements governing the admissibility of evidence in settings such as trials; (b) the extent and the range of the evidence bearing on legally-material factual issues and hypotheses; (c) assessment of the probative value of evidence and the credibility of witnesses; and (d) the persuasiveness of the evidence that may be submitted to a trier of fact or audience such as a judge, a jury, a legislative committee, a corporate executive, or the public.
See The General Nature, Purposes & Scope of the Course in Fact Investigation


The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

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