What Is Evidence?

1
Is legal evidence that which is legally accepted as evidence?

Perhaps.

But this definition is not helpful if one is a judge or lawyer who is attempting to determine whether some matter is or is not evidence and wishes to have a criterion for resolving the question. Furthermore, is not the yearning for a definition of evidence a yearning for an understanding of the law's view of the sorts of matters that properly increase human knowledge about possible fact?

Wigmore's definition of evidence, though not wholly vacuous, has a largely question-begging character for the judge or lawyer who wants a standard that distinguishes evidence from other matters affecting judgment about factual possibilities and hypotheses. Wigmore said that legal evidence is

Any knowable fact or group of facts, not a legal or a logical principle, considered with a view to its being offered before a legal tribunal for the purpose of producing a persuasion, positive or negative, on the part of the tribunal, as to the truth of a proposition, not of law or of logic, on which the determination of the tribunal is to be asked.

Wigmore TREATISE Section 1(c) (P. Tillers rev., 1983).

2

Is legal evidence anything that offers some support for the truth or falsity of a legally-material factual hypothesis?

Perhaps.

But this definition seems to mix up -- "conflate" -- the distinct notions of evidence and relevance. Relevant evidence is evidence that increases or decreases the probability of a materially-legal fact. See, e.g., Federal Rule of Evidence 401. This definition presupposes that some evidence may be irrelevant. Hence, once cannot easily say that evidence is evidence only if it is (to some slight degree) relevant or probative.

3

Does legal evidence encompass any matter that can affect the probability of a legally-material factual hypothesis?

Perhaps.

But this definition turns argument into evidence. Conventional dogma holds that argument is not evidence.

A nice question is whether testimony about mathematical principles is genuine testimony and whether the information conveyed by such "testimony" is "evidence." See I Bentham, RATIONALE OF JUDICIAL EVIDENCE 19-20 (Mill ed. 1827) (Bentham had the notion that questions "even in mathematics are questions of evidence"; "[t]he facts, the evidentiary facts, are feigned; but the question concerning the inference to be drawn in each instance from the feigned existence of the evidentiary facts to the existence of the facts sought - the question whether, in the way of analogy, the supposed evidentiary facts afford a sufficient ground for being persuaded of the corresponding existence of the principal facts is not the less a question of evidence"). Compare Stoebuck, Relevancy and the Theory of Probability, 51 Iowa L. Rev. 849, 851 (1966) (discussing People v. Risley, 214 N.Y. 75, 108 N.E. 200 147 N.Y.S. 1132 (1915) (in which mathematician testified as to probability that letters typed on typewriter in question would have eleven specific peculiarities).

4

As can be seen from the quotation in paragraph 1 above, Wigmore attempted to exclude matters that function as argument, persuasion, and logic from the definition of legal evidence.

Perhaps.

But this approach also presents difficulties. For example, the law speaks of and sanctions the use of "expert evidence." Yet some expert evidence concerns the principles a trier of fact should or might use to draw conclusions, or inferences, from other evidence.

5

One might try to limit "evidence" to matters that can be apprehended by the senses -- by eyesight, hearing, and so on.

But this approach also presents difficulties.

The principal difficulty is that almost all evidence presented in the courtroom is at least one step removed from "direct" sensory perception. For example, almost all evidence is presented by witnesses who testify about matters that they may have perceived. Yet such testimony is often considered "evidence."

It will not do to say that the trier of fact at trial perceives the words and demeanor of witnesses. If this were sufficient reason to call a person a witness and the information that (s)he conveys "evidence," all pronouncements and demeanor of all authorized actors in the courtroom should count as evidence. But many of the statements that, e.g., trial counsel and court reporters make do not qualify as "evidence."

The theory that true witnesses report their sensory perceptions, and other courtroom actors do not also does not work seamlessly: Many actors who are counted as witnesses report their own inferences, or conclusions, from either their own perceptions -- or from the perceptions or conclusions of yet other actors.

***

So,gentle Reader, WHAT IS LEGAL EVIDENCE?

I have a guess. My guess is as good as any other. And it may be better than any other guess.

***

My guess begins with an observation. The observation is that most of the modern (occidental) world lacks an ontology. To wit: much or most of the modern world does not have a theory about the fundamental nature of being. This is an important observation or premise.

Bereft of an ontology - a theory about the underlying structure of the world -- modern (wo)man cannot identify privileged sources of information about the world. So (wo)man is left only with a negative concept of evidence: evidence is any matter that can point beyond itself to some other matter.

In the heyday of British empiricism -- which in fact was fairly recent in some quarters of the American academic world -- it was possible to restrict "evidence" to the material perceptible sources of sensory data. But the widespread collapse of rigorous empiricism -- or, in any event, the collapse of an authoritative consensus about the theory of being and knowledge known as empircism -- even this restriction is no longer possible; many people now believe that matters such as wiring in the brain are potential sources of information and evidence.

The net effect of these developments is that it is practically impossible to define evidence. What can be said about "evidence" is that it has an intimate association with "inference." "Inference" is the drawing of a proposition about the world from some other proposition about the world. "Evidence" is any matter -- and "evidence" can be practically any matter -- "evidence" is any matter that can serve as a basis for an inference about some other, or separate, matter. The modern concept of "evidence" is the byproduct of the theory of being and knowledge that supports the modern notion of "inference." And "inference" is no longer limited to the extraction of conclusions from a sensory or material foundation -- although it must be supposed that the premises of any inference must somehow exist in or be compatible with the material foundations or dimensions of the world.

It is true, of course, that the law refuses to characterize some information as "evidence" and it refuses to characterize some human sources of information as "witnesses." For example, trial counsel are not ordinarily "witnesses" and their statements are not normally "evidence." But the reasons for these characterizations are very probably rooted in institutional considerations (about the appropriate design of the adversary system) rather than in beliefs or theories about the nature of the sources and foundations of human knowledge of the world. The same sort of explanation probably holds for other exclusions from the concept of evidence -- for the exclusion, for example, of sources of information about (uncertain) legal norms. Cf. P. Tillers, The Value of Evidence in Law, 39 Northern Ireland Quarterly Law Review No. 2 (1988)

The Relativity of Proof: Your Stinking Inferences Depend on Where (and How) You Stand and Sit

Recent news reports have it that Sandy Berger removed classified documents without having the authority to do so. Other news reports have it that Berger drew suspicion on himself during an earlier visit when he stuffed classified documents into his pants and socks.Even if true, the reports of such odd activity are hardly conclusive:

Hypothesis 1: Berger was trying to keep his feet warm and his underpants dry.

Hypothesis 2: Berger took leave of his senses.

Hypothesis 3: He suffers from early-stage Alzheimer's.

Hypothesis 4: Arrogance of habitual lawful power.

Hypothesis 5: His elusive manservant did it.

Hypotheses 6 - n: All other hypotheses or inferences inconsistent with the hypothesis of Berger's intent to conceal wrongdoing and Berger's belief in the wrongfulness his actions.

.

Are Law Teachers Overpaid?

Are U.S. law teachers overpaid? Should they be paid more than professors of mathematics? Physics teachers? Chemistry professors? Theologians? Should legal professionals pay universities for the privilege of teaching law?

Are You Burdened by Your Reference Classes?

Is it a crime to belong to a reference class? This provocative (and amusing) question is asked by Mark Colyvan. See Is it a Crime to Belong to a Reference Class? The allusion is to a case involving Charles O. Shonubi. See, inter alia, United States v. Shonubi ("Shonubi IV").

Poor Mr. Shonubi! He went to prison for quite some time. But -- just to keep the record straight -- Judge Jack B. Weinstein did not propose to refer to a statistical reference class to determine whether or not Mr. Shonubi committed a crime. Judge Weinstein proposed to use statistics about other smugglers to determine the appropriate punishment (under the federal sentencing guidelines) for Mr. Shonubi. Mr. Shonubi had already been found guilty of narcotics trafficking. For details see P. Tillers A Statistical Oddity.

But the question Mr. Colyvan asks is, in truth, not inappropriate -- if it is rephrased. One might put the question Colyvan asks this way: Should people's membership in reference classes -- particularly involuntary membership -- affect the allocation or incidence of social burdens, particularly severe burdens such as those imposed by the criminal justice system?

To avoid reducing this question to a technicality (i.e., to a question about statistics and statistical inference), one can restate the riddle this way: Is it just, appropriate, or necessary to allocate social burdens (e.g., criminal punishment)on the basis of inherited (or, perhaps, more simply, "non-criminal") attributes such as race, class, gender, height, and national origin?

The question so stated obviously has a connection with current controversies about racial "profiling." So the question about the criminality of belonging to a reference class is related to controversies about matters such as DWB -- the "crime" of driving while Black.

While I certainly do not propose to criminalize being Black (or, for that matter, being Latvian), driving by Black people, etc., I do wish to note that the question of whether it is possible to draw inferences about individuals without burdening individuals with adverse inferences that result at least in part from such individuals' inherited (or, just, non-criminal) attributes is both an old question and a hard one. See, e.g., Adrian Zuckerman's PRINCIPLES OF CRIMINAL EVIDENCE (1989), which both identified this general question and addressed it directly and at length.

Zuckerman's answer: it is improper to burden individuals with inferences that arise from individuals' membership in reference classes, and it is possible to avoid this evil.

I am not persuaded that it is possible, even in the "practical" activity of inference, to avoid saddling people with disabilities resulting from the situations that individuals happen to find themselves in, through no fault of their own; I believe even in this sphere there is more than a grain of truth in the old adage that life is unfair.

I suspect that the correct general answer to this puzzle -- the puzzle of the extent to which society can burden individuals for conditions that they are not responsible for creating -- must have a Kantian aroma: principles are principles if and only if we ("society") are prepared to pay a price for adhering to principles, and this benchmark of morality and justice applies to the social activity of social inference as well as to other social activities -- and thus it is the case that sometimes we (society) will & should forego certain inferences -- simply because in some circumstances we (society) don't like the social consequences that ensue if we draw some inferences on the basis of matters such race, age, height, weight, wealth, and so on.

It is of course true that many inferences that rest on matters such as race, age, and so on, are just rotten inferences, epistemically-unwarranted inferences -- but the potential of such weakness, while it must always be carefully considered (since many inferences really are just inferentially lousy), the evil of socially unfair or unjust inferences -- e.g., methods of social inference & proof that result in unfair or unjust allocations of benefits and burdens -- is different from the evil that can occur when untrue inferences are drawn. (But it is also the case that it is hard -- it is intrinsically hard -- to maintain a separation in inference between questions of truth and questions of value: we are generally happier if the inferences that generate consequences that are distasteful to us also happen to be false. [There is much more to be said about the relationship between preferences and truth in uncertain inference -- but I have learned -- but only recently! -- that it is never possible to say everything at once. So, Gentle Reader, forgive me!])

I should not end this post without noting that Colyvan's principal focus is on epistemological, inferential, and statistical questions rather than on questions of morality, legality, and justice. But the title of Colyvan's paper invites ruminations of the sort that I have recorded here. (Perhaps Colyvan's comments deserve a more extended response? What say you, dear Reader?)

Intellectual Orthodoxy and Heresy in the University

At one university incoming undergraduate students are invited or expected to take part in discussions about the relationship between consumption and poverty. The tone of the invitation issued to the incoming students makes it fairly clear (to me) that the students who participate in these discussions will be led to question the uprightness of modern American consumerist society.

I am all in favor of ethical analysis in the university. But I'm much less in favor of hortatory ethical instruction in the university. I am also opposed to prejudging answers to (ostensible) questions that do not have a self-evident answers.

Value-free analysis of political, social, legal, ethical, and moral questions may well be impossible. But doesn't it still make sense to try to create an academic atmosphere that encourages free inquiry, an atmosphere that does not frown on heretical conclusions?

Organic v. Inorganic Support

Seen in Seattle:

This park is maintained organically.

I can imagine that some indivuduals would say:

This body is maintained inorganically.

Rights and Facts

Good rights and good facts go together: rights depend on facts.

People who care about rights must pay attention to facts.

People who care about facts must pay attention to evidence.

Therefore:

Legal theorists must dirty their hands with evidence.

Consolation for the legal ivory tower:

There is nothing more mysterious -- and nothing more magnificent -- than factual inference, and there is nothing more theoretical than epistemology.

***

... early summer thoughts ...

Free Proof Is Impossible

If a legal system regulates adjudication (or investigation), free proof is impossible.

Proof is constrained even in the absence of legal rules.

There are constraints on evidence, inference, and proof. The only question is, "What are those constraints?"

Ill-Considered Massachusetts Reasoning about the Death Penalty in Massachusetts

Today's NYTimes reports that a gubernatorial commission in Massachusetts has recommended that Massachusetts establish capital punishment along with a set of procedures that the commission thinks will eliminate any chance of an erroneous imposition of the death penalty. See http://www.nytimes.com/2004/05/03/national/03DEAT.html.

Methinks the commission got off on the wrong foot. There is no procedure known to humankind that can altogether eliminate any chance of error in any (human or non-human) decision making procedure -- unless, of course, the proposed procedure rules out the possibility of a false positive (unwarranted imposition of the death penalty) by ruling out the possibility of a positive, the possibility of capital punishment -- which, it appears, is not what the commission had in mind.

But put aside this false start -- and consider two other missteps made by the gubernatorial commission:

1. The commission proposes that juries be required to find that there is no doubt of the defendant's guilt. This is reminiscent of Prof. Laurence Tribe's suggestion some decades ago (in 1972) that juries be told (in all criminal cases) that they must be "sure" of the defendant's guilt. The trouble is that any such requirement is either patronizing or unworkable: either the jury must be told to find that which we smart people know is impossible -- certainty about factual questions -- or the jury must be told to arrive at a level of probability (certainty) that at least some jurors will understand is impossible to achieve -- and these jurors will thus have the job of making sense of a nonsensical, or incoherent, legal requirement. This is progress?

2. Another troublesome suggestion is the proposed requirement that juries be warned that "nonscientific evidence, like testimony and witness identification, can be unreliable." The trouble here is that scientific evidence -- regardless of how carefully it is is scrutinized and reviewed -- can also be unreliable. Consistency requires that juries be warned that all evidence can be unreliable. But any such admonition about the fallibility of all evidence would be inconsistent -- no? -- with the requirement that juries be told they must be sure of the defendant's guilt.

Folks, let's just admit that if human beings ever use the death penalty, there is always a chance that a mistake will be made. If you are a believer in the death penalty, the proper question about errors in capital cases is how big the chance of a mistake (false positive) can be. My plea: let's be honest with ourselves about what human beings and societies are capable and incapable of doing. The human condition rules out the possibility of certainty about criminal guilt. (We can get close, but we can't get all the way there.)

Picturing Inference

I have been doing some more thinking about devices for picturing problems of evidence and inference in legal settings. Please see Picturing Inference. Am I on the right track?

Gulfstream Witnesses

At one point during today's oral arguments Justice Scalia asked if a Gulfstream jet ought to be sent to Aghanistan to retrieve witnesses for possible hearings on the legality of the detention of persons alleged to be enemy combatants.

I was under the impression that the US. military still has some transport aircraft of its own. Be that as it may, do you agree with J. Scalia that the thought that aircraft should be used to procure the attendance of witnesses at hearings in which human liberty is at stake is absurd? (The answer depends on your priorities, I suppose.)

Evidence -- What An Inconvenience!

I think I heard one of the counsel for the U.S. government suggest today (in oral argument) that one proper reason for the President's right to funnel "enemy combatants" (including U.S. citizens) into some form of military or executive detention rather than into the criminal justice system was "evidentiary concerns." Do you think we can generalize this principle -- so that the government can imprison American citizens who are suspected of wrongdoing whenever the government concludes that it does not have sufficient evidence to convict the suspected miscreants?

P.S. I can see the Statue of Liberty from my apartment building in Jersey City. As I said in a message some months ago, the Statute of Liberty was the very first thing I saw in America when the Liberty Ship in which I was traveling brought me to these shores. I naturally keep thinking of Lady Liberty.

If we can shoot 'em, we can hold 'em?

Did I hear Justice Scalia embrace the following proposition during oral argument before the Court today?:

If the executive branch can shoot enemy combatants, it can detain them (as long as it wants and in any fashion it deems fit).

Justice Scalia and I went to different law schools -- or we got a different legal education. I was taught that the following sort of argument is not a valid syllogism:

The government can do X; therefore, it can do Y.

Stated less formally: The considerations that suggest that the military should be able to kill enemy combatants on the battlefield do not necessarily demonstrate that the government should be able to detain alleged combatants indefinitely or under any circumstances.

***

I think I also heard Justice Scalia suggest that the President could take any steps that he deems necessary and proper during this time of war(s).

Question 1: If so, could the President abolish the Roman Catholic Church in the U.S. -- if he thought that doing so would promote the conduct of the war(s)?

1A. If so, would Justice Scalia resign?

Question 2:Could the President seize steel mills (or computer companies) if the President thought that doing so is necessary for successful prosecution of the war(s)?

More questions: Mosques in Detroit? Harvard Law School? The Supreme Court? (A wag might suggest that successive Presidents -- liberal and consrevative -- have largely accomplished the last objective.)

O.W. Holmes, Jr., Made Modern on Matters of Gender

The same article I mentioned on the 14th (of this month) rendered one of the most famous passages in American law thus:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with [others], have had a good deal more to do than the syllogism in determining the rules by which [all] should be governed.

I wonder: Did it occur to the author or the editors that Holmes, by modern standards, was a "sexist" and that the reformulation of his (poetic) passage distorts an important item in the historical record?

Straightening Out King James

What is person that thou are art mindful of it?

Language Purification

Yesterday morning I saw the following footnote in a law journal:

n78. Cardozo, supra note 40, at 141 (edited for gender neutrality …).

Is this sort of linguistic cleansing (“reconstruction”?, “language purification”?) of source material common?

To give the student editors their due: they did not quote Cardozo’s “sexist” language; they paraphrased the portion of the statement by J. Cardozo that they found offensive. I am still troubled. Are you?

What would the editors of this law journal do with statements made by judges, treatise writers., etc., before, say, the 18th 0r 19th century, statements in which long-dead authors or judges use male pronouns to refer to human beings or to male judges? Would such statements also be edited to achieve “gender neutrality”?

Would Shakespeare’s language also be restated to conform to 21st century norms at the law journal in question?

O'Keefe's Short-Sighted View of the Importance of Seeing Ultra-Deep Fields

If NASA administrator O'Keefe shuts off the Hubble, you may not see the likes of this again in your lifetime:

The Ultra Deep Field

Yes, my child, each one of those little oval blips probably contains more than 100 billion stars, very probably several hundred billion stars -- and also many planetary systems. So, yes, you may be looking at a part of the universe in which someone was also looking outward and upward.

Save the Hubble!

Glorious Universe

Surely you never even imagined (until now) that anything this glorious exists in our universe: Variable star V838 Monocerotis

If so, you are obliged to help Save the Hubble!

Natural Order in the Solar System

Being wedded to the base 10 numerical system -- not having much choice about it, really -- I have always thought that our solar system should have ten planets, and not nine. Well, astronomers have finally put things right: there are -- some astronomers say -- 10 planets. See http://www.smh.com.au/articles/2004/03/15/1079199151404.html.

If you appreciate (our new knowledge of) our planetary order, you should really join the call to Save the Hubble!

SIDS & Homicide in Australia

The Australian Broadcasting Corporation is broadcasting a show, "Of Woman Born," about the Kathleen Folbigg case. See http://www.abc.net.au/austory/

ABC's blurb about the two-part show – to be aired on the program “Australia Story” Monday, March 15, and March 22, at 8:00 p.m. “Australian time” (but which Australian time zone?) –, the blurb states:

This is the first of a special two-part program, revealing the untold story of the investigation that brought Kathleen Folbigg to justice.

Last year Folbigg was sentenced to 40 years jail for killing all four of her children, one by one, over a 10-year period.

The conviction made the 36-year-old New South Wales woman Australia's worst female serial killer.

But Kathleen Folbigg might very well have escaped justice had it not been for the dogged determination of a country detective and the unlikely alliance he slowly forged with Folbigg's doting sister, Lea Bown.

Using many hours of previously unseen home movie footage, Australian Story charts Kathleen's own fractured childhood from her arrival, as a three year old foster child, into the home of Lea Bown's parents, the Marlboroughs. Lea, who was 17 at the time of Kathleen's arrival, "idolised" the youngster and regarded her as a blood sister.

When Kathleen is 16 she learns the truth about her past - that her natural father stabbed her mother to death in a burst of rage.

Compelling home movie footage, along with personal letters, reveals Kathleen's subsequent journey through marriage to motherhood. The short lives of all four of her children are vividly captured on videotape. One after the other, there is a sudden death and then a new baby, and then another death. All the children die between the ages of 19 days and 19 months.

The first three deaths are all deemed to be from natural causes. But when Kathleen's fourth child, 19-month-old Laura, is admitted to Singleton Hospital on March 1, 1999 Detective Sergeant Bernie Ryan just happens to be on duty.

Ryan says "It was a very dark day... it was the day that changed my life."

It was just the start of a harrowing four-year battle for Ryan – and an emotional roller coaster for Lea Bown.

See also the account of the case at http://www.crimelibrary.com/notorious_murders/women/folbigg/.

At Kathleen Folbigg's trial for homicide one expert testified that the probability that all four deaths were sudden infant deaths was one in a trillion.

What are we to make of Kathleen Folbigg's family history -- that her father had murdered her mother? Note that Kathleen Folbigg was not raised by her homicidal father.

Kathleen Folbigg's diaries were admitted into evidence. Would you prefer that they have been treated as sacrosanct and inadmissible at her trial?