Installment #2 of Preliminary Ruminations for Book "General Principles of Evidence and Proof":
Notes on Inference, Culture, and Evidence

Factual inference is, perhaps, an essential or necessary property of proof in litigation.

But there is more to proof in litigation ("judicial proof" for short) than unadorned factual inference.

For example, culture -- or something akin to culture -- influences the shape of factual adjudication.

Moreover, culture or received beliefs influence proof in litigation by influencing inference.

For example, in a lawsuit involving a life insurance policy, a juror might reason, "A stable married person like the insured would be unlikely to suddenly run off to the wilds of Alaska. The explanation for the insured's disappearance is probably death, not an unannounced and secretive flight to Alaska."

A different juror or jury might reason, "A person with marital responsibilities is occasionally likely to find the marital burdens too heavy and thus might well decide to run off into the Alaskan wilderness in an attempt to start life afresh."

The beliefs of my two hypothetical jurors might be characterized as [diverse] "received belief."

If so, the following chain of influence is both possible and likely:

received belief ---> inference ---> workings of judicial proof

But the foregoing influence chain does not rule out the following chain of influence:

workings of judicial proof

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inference < ------------------ evidence

^
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received belief

Ergo: it is possible that evidence as well as received belief (or culturally-transmitted beliefs or background beliefs or whatnot) is a determinant of the workings of proof in litigation.

Isn't that right?

Furthermore: although inference is influenced by both evidence and received belief, isn't it possible -- and probable -- that inference itself influences the workings of proof in litigation?

Warning!: To say that received belief and evidence influence inference is not to say -- necessarily -- that inference is reducible to evidence and received belief. Inference, many of us think, involves in part an act of judgment -- the drawing of a conclusion -- by the human organism, an act that may, of course, be influenced by evidence and received belief -- and by a wide variety of other matters [such as emotions and memory].

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Your thoughts?

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A plug: some of the above matters may be discussed at a forthcoming conference, "Inference, Culture, and Ordinary Thinking in Dispute Resolution," April 27-29, 2003.

Evidence in General and Evidence in Particular

The book that I am writing will be called, perhaps, GENERAL PRINCIPLES OF EVIDENCE AND PROOF.

But, as a subtitle will reveal, my book is not just about "abstract" principles of evidence and proof. I want to write a book that says something useful about the workings of a particular system or systems of proof at a particular time and in a particular society: I want to write a book that says something useful about the workings of the law of evidence and proof in the United States in the early part of the 21st century.

It is possible that the "general nature of judicial proof" cannot possibly generate or support any useful statements about particular (and actually-existing) systems of judicial proof. I reject this possibility. Suppose I am entitled to do so.

But suppose, further, that I have no "theory of everything" that identifies the variables that make particular actual systems of proof operate and look the way that they actually do; i.e., suppose that I believe -- as I do -- that, insofar as my eye can tell, only "accident" -- i.e., matters other than the general attributes of proof -- can explain many of the workings and features of particular actually-existing systems of proof. Under these circumstances -- given the limits of my knowledge -- am I in a position to say -- am I conceivably in a position to say -- anything useful about the relationship between the general nature of proof and the particular characteristics of particular actually-existing systems of proof in litigation?

My tentative answer -- my tentative hypothesis -- runs a bit like this: proof in litigation has certain necessary attributes (and these necessary attributes are the "general" attributes of proof in litigation); but these necessary attributes do not (wholly) determine, or produce, the particular mix of characteristics, features, and workings that characterize any particular actually-existing system of proof -- each society is free to give its own "twist" to the necessary attributes of judicial proof; but it is possible that each essential attribute of judicial proof has some "causal potency," some influence on the shape and workings of any particular actually-existing system of judicial proof; and perhaps "thick" description of a particular actually-existing system of proof will illustrate how such causal potency might work and perhaps -- if nothing else -- such thick, close description will provide useful fodder for further ruminations about the real-world implications and effects of the necessary attributes of proof.

For example:

Hypothesis #1: proof in litigation occurs in space and time.

Hypothesis #2: proof in litigation is about events in space and time.

Hypothesis #3: proof in litigation is an irreversible process (see hypothesis #1).

Hypothesis #4: inference (in litigation) takes place in a limited amount of time (cf. hypothesis #1).

Hypothesis #5: steps in proof (inference, investigation, etc.) effect irreversible changes (see hypothesis #3).

Are we in agreement so far?

If so, do any of these propositions shed any useful light on the American law of evidence today and, more generally, on the process of proof in litigation in the U.S. today?

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Stay tuned for further ruminations.

Do you have any thoughts about my musings so far?

Evidence Awake

Writers quaver before criticism. Writers quaver even more before premature criticism. This is one reason why some writers develop writer's block: their work is never ready for public viewing.

Writing has one other disadvantage: writing is generally a solitary occupation. And when writing is done by writers who fear criticism, writing is an extraordinarily solitary occupation.

Solitary is no fun.

This is why, in the months ahead, I am going to experiment with putting on public display small inchoate portions of a book -- a book on evidence -- that I am writing. My embarrassment quotient and the degree of my folly and recklessness -- and the amount of my vanity? -- will determine how much material I decide to display.

Stay tuned. The first installment may appear in 2-3 weeks.