Tuesday, December 17, 2002

Rough notes on the slowly-budding book GENERAL PRINCIPLES OF EVIDENCE AND PROOF: Installment #4: General principles of evidence and the legal prohibition against the use of "character" to show conduct

In American legal treatises and casebooks, discussions of "relevance" and "character evidence" are usually in close physical proximity. This is typically explained by the claim that the topics of "relevance" and "character" are closely related. But recently I wondered if the topic of character evidence belongs in my book, a book that aims to discuss general principles of evidence and proof (see my blog Evidence in General and Evidence in Particular, 12/13/2002), and not just the characteristics that 21st century proof in American litigation happens to have.

Although I don't believe that character evidence has an unusually close connection to the topic and principle of relevance, I have tentatively concluded that the topic of character evidence perhaps does belong in my book -- or, at least, that this topic would not be out of place in a book such as mine -- because

(i) proof in litigation always or almost always involves judgments about human action;

(ii) judgments about human conduct may be singular because human beings are, quite possibly, distinctive entities in this cosmos of ours; and

(iii) the prohibition against "circumstantial" use of character (a/k/a disposition a/k/a propensity) to show conduct invites and possibly requires careful consideration of the attributes of human beings and the distinctive patterns of inference that those distinctive attributes may generate or invite.

Cf. What Is Wrong with Character Evidence?

But perhaps my thinking has been unduly influenced by my sense of what my publisher would like to see in my book. What do you think? Do you think that my book should or should not consider the character evidence rule? (Is it the case that the sort of justification I have given above would serve as a justification for discussion of any feature of modern American proof in litigation?)


Given what I have just said (above), isn't it the case that I must also say that one of the essential attributes of proof is the making of judgments about human action? Cf. blog "Installment #3," 12/15/2002.

Sunday, December 15, 2002

Further crude notes on the incipient book GENERAL PRINCIPLES OF EVIDENCE AND PROOF: Installment #3: Attributes, Apples, Context, and Oranges

Suppose that good reasons allow me to say that proof in litigation has certain necessary or essential features.

Suppose, further, that good reasons – general ontological considerations, for example – allow me to say that proof in litigation necessarily involves space, time, human action, human interaction, law, inference, uncertainty, persuasion, (social & individual) choice (decision), scarce resources, social formation (a/k/a social engineering), symbolic social expression, and other such matters.

Put aside the question of whether the matters I have just listed are truly “necessary” – assume that they are necessary – and consider this question: What shall I call matters such as those that I have listed above?

Shall I call such matters attributes (or “properties”) of proof in litigation?

A large part of me likes this sort of nomenclature – the nomenclature of “attributes” and “properties.” This is because systems of proof in litigation vary and different systems of proof give a different “twist” to matters such as “persuasion” and “social symbolic expression.” I find it congenial to refer to “persuasion” and similar matters as “attributes” because popular usage, it seems to me, gives the term “attributes” something of the smell of variables: ordinary linguistic usage suggests that “attributes” or “properties” are general things that are capable of taking on different values or weights.

But I remain troubled: I worry that I am mixing apples and oranges. For example, can I really refer to “space” or “time” as attributes of proof? Should I instead characterize such matters – matters such as space, time, scarce resources – as part of the necessary context (background? domain?) of judicial proof?

But does it really matter whether I call such things attributes or context? Does it matter whether I refer to the space-time continuum a necessary property of proof in litigation or whether I call it a necessary part of the background of proof in litigation?

In some fields, I notice, great importance is attached to the distinction between “attributes” and “context.” Do I have to be equally concerned about this possible distinction in the preliminary & introductory portions of a book on evidence and proof, in a book that is meant mainly for a legal audience?

I do not know the answer to my question. What do you think?


It is possible that the source of my difficulty about terminology here is a residual tendency on my part – a tendency for which my professional training may be partly responsible –, it is possible that I have a residual tendency to approach phenomena such as judicial proof inductively (or, more accurately stated, abductively) rather than from a predetermined systematic theoretical perspective: I perhaps still incline to leave some general questions unresolved, with the expectation that examination of particular examples instances or episodes of judicial proof will shed light on certain general theoretical questions, but without fully resolving them. So this is an apologia of sorts. I nevertheless worry that I am “copping out” on an important theoretical question and that I will pay the price later for my “theory-avoidance behavior” in the early part of my book (and in the early part of the writing of my book). Do you have any advice for me? Do you think I have reason to worry?