Book Review

Bernard Robertson, "Comparative Criminal Process", [2010] New Zealand Law Journal 122 (book review):

[Mirjan Damaska's] career is celebrated in a collection of essays edited by John Jackson, Maximo Langer and Peter Tillers Crime, Procedure and Evidence in a Comparative and International Context (Hart Publishing, 2008).

Like all such books of essays, the book covers a range of subject matter, not all of which may be of interest to all readers. It is, however, quite common for evidence to be taught by academics also interested in criminal law and procedure and even criminal justice issues, since the boundaries between these subjects can be porous. All such academics will want access to this book, at least in their libraries.

[snip, snip]

It can readily be seen, then, that this book contains much that touches on current debates in New Zealand and in particular will be of interest to those engaged in reviewing the performance of the Evidence Act 2006. That Act is causing fundamental questions to do with the meaning of relevance and prejudice to appear in court in a way that they did not when these principles were unstated. Each of the papers also serves as a good signpost to other writing in the same area. Honours and Masters students studying evidence or criminal procedure should be reading the relevant papers in this book. Likewise, advanced level comparative law students should be contemplating whether comparative method is useful in these areas of law, rather than just in the traditional subjects of contract and property law.

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The dynamic evidence page

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

On Radical Holism

It has been said I am a holist. And I am -- to some degree. But I am not an unadulterated holist. I am a modulated holist, a quasi-holist, or, as I prefer to think of it, a sophisticated fellow who believes that both synthesis and dissection play an important role in inference.

A partial proof that what I have just said is true:

P. Tillers, "Webs of Things in the Mind: A New Science of Evidence," 87 Michigan Law Review 1225, 1251-1252 (1989):

V. ATOMISM AND HOLISM IN INFERENCE

[David] Schum sees inference as a network and he believes that networks of inference are extremely intricate. Hence, the webs that Schum weaves around problems of evidence and inference typically consist of many delicate threads, which crisscross in various ways. These threads are sometimes difficult to keep in mind and almost seem to vanish from sight.

Schum's microscopic analyses of evidence and inference may seem unduly intricate; it is natural to wonder whether an entirely different approach to evidence and inference might work better. There has been discussion (although not quite a debate) about the value of fine-woven analyses of evidence. I myself have sometimes wondered if people might do a better job of drawing inferences if, instead of analyzing or dissecting evidence, they would just look at a mass of evidence ‘as a whole,’ try not to think too much about it, and then grunt out a response from somewhere within themselves to the undifferentiated mass of stuff they see in front of them.

This kind of ‘holistic’ alternative to microscopic analysis is practically its own refutation. It is hard even to imagine what it means to take evidence ‘as a whole.’ We perceive slices and various features in almost everything we see—and if we don't, perhaps we can't see anything at all. Moreover, it is hard to imagine how we can imbibe the evidence we ‘see’ without performing some sort of mental analysis, which by definition seems to involve some sort of dissection. In short, it is hard to imagine how we can think holistically even if we want to do so. The admonition not to analyze and dissect almost seems tantamount to advice not to think too carefully about the way you think. One might as well advise you not to think about elephants. You may not have been thinking about elephants before, but once you are told not to do so, you cannot stop thinking about them. Hence, if we are to believe that holistic assessments play a part in inference, we must have a more subtle concept of ‘holism.’ Any theory that assumes an absolute dichotomy between holistic thinking and nonholistic thinking is thoroughly implausible and any theory that admonishes people to think globally rather than locally is vacuous.

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Cf. P. Tillers, Are There Universal Principles or Forms of Evidential Inference?, in J. Jackson, M. Langer & P. Tillers, eds., Crime, Procedure, and Evidence in a Comparative and International Context (2008).

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The dynamic evidence page

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