In Defense of Rule-Based Evidence Law–and Epistemology Too

Episteme ◽  
2008 ◽  
Vol 5 (3) ◽  
pp. 295-305 ◽  
Author(s):  
Frederick Schauer
Keyword(s):  
Jeremy Bentham ◽  
Rule Based ◽  
Legal Rules ◽  
Relevant Evidence ◽  
Moral Theories ◽  
Rules Of Evidence ◽  
Evidence Law ◽  
Law Of Evidence ◽  
Epistemic Appraisal ◽  
Formal Rules

ABSTRACTEver since Jeremy Bentham wrote his scathing critique of the law of evidence, both philosophers and legal scholars have criticized the exclusionary rules of evidence, arguing that formal rules excluding entire classes of evidence for alleged unreliability violate basic epistemological maxims mandating that all relevant evidence be considered. Although particular pieces of evidence might be excluded as unreliable, they argue, it is a mistake to make such judgments for entire categories, as opposed to making them only in the context of particular pieces of evidence offered for specific purposes. This paper challenges these claims, arguing that rule-based exclusions serve similar purposes to those served by rules in rule-consequentialist moral theories, and that, even more importantly, they are entirely consistent with the exclusionary nature of legal rules in general. Indeed, once we see the role that exclusionary rules might serve in legal epistemology, we can see that they might have a role to play in epistemic appraisal more generally.

scholarly journals Em defesa do Direito Probatório fundado em regras- e da Epistemologia também

2017 ◽  
Vol 1 (2) ◽  
pp. 319
Author(s):  
Frederick Schauer
Keyword(s):  
Jeremy Bentham ◽  
Rule Based ◽  
Legal Rules ◽  
Relevant Evidence ◽  
Moral Theories ◽  
Rules Of Evidence ◽  
The Law ◽  
Law Of Evidence ◽  
Epistemic Appraisal ◽  
Formal Rules

<p><strong>RESUMO:</strong></p><p>Desde que Jeremy Bentham escreveu a sua severa crítca ao Direito Probatório, filósofos e juristas têm critcado as regras probatórias excludentes argumentando que as regras formais que excluem classes inteiras de provas em razão da sua alegada infabilidade violam máximas epistemológicas fundamentais que exigem que toda prova pertinente seja levada em consideração. Embora algumas partes da prova possam ser excluídas por falta de fabilidade – argumentam eles – seria um erro fazer tais juízos em relação a categorias inteiras, em oposição a fazê-los somente em relação à provas específcas apresentadas para propósitos específicos. Este artgo põe em causa essas alegações, argumentando que exclusões fundadas em regras servem a propósitos similares àqueles desempenhados pelas regras nas teorias morais consequencialistas de regras, e que, de maneira ainda mais importante, elas são totalmente consistentes com a natureza excludente das regras jurídicas em geral. Na verdade, uma vez visto o papel que as regras excludentes podem desempenhar na Epistemologia Jurídica, se torna possível ver que elas poderiam ter um papel a desempenhar na avaliação epistêmica em geral.</p><p><strong>ABSTRACT:</strong> </p><p>Ever since Jeremy Bentham wrote his scathing critque of the law of evidence, both philosophers and legal scholars have criticized the exclusionary rules of evidence, arguing that formal rules excluding entre classes of evidence for alleged unreliability violate basic epistemological maxims mandating that all relevant evidence be considered. Although particular pieces of evidence might be excluded as unreliable, they argue, it is a mistake to make such judgments for entire categories, as opposed to making only in the context of partcular pieces of evidence ofered for specifc purposes. This paper challenges these claims, arguing that rule-based exclusions serve similar purposes to those served by rules in rule-consequentalist moral theories, and that, even more importantly, they are entrely consistent with the exclusionary nature of legal rules in general. Indeed, once we see the role that exclusionary rules might serve in legal epistemology, we can see that they might have a role to play in epistemic appraisal more generally.</p>

Addressing the Adversarial Deficit in Non-Jury Criminal Trials

1997 ◽  
Vol 31 (1-3) ◽  
pp. 645-689 ◽  
Author(s):  
John D. Jackson ◽  
Sean Doran
Keyword(s):  
Legal Profession ◽  
Criminal Trials ◽  
Legal Scholarship ◽  
Legal Proceedings ◽  
American Scholar ◽  
Rules Of Evidence ◽  
Evidence Law ◽  
The Law ◽  
Law Of Evidence ◽  
The Way

It is a curious quirk of legal scholarship that so much attention has been devoted to the rules and procedures that operate injury trials and so little to the way in which these rules and procedures operate in the vast majority of trials which are conducted without a jury. This “jury-centredness” as it has been called was noted almost thirty years ago by the American scholar Kenneth Culp Davis when he urged scholars and the legal profession to escape from the deep-seated habit of allowing all thinking about evidence law to be dominated by the needs of the 3% of trials that involve juries and to think instead about the needs of the remaining 97% of trials that are tried without a jury. It is certainly true that the withdrawal of the jury from many categories of cases throughout this century in many jurisdictions has not been accompanied by any instant changes in the law of evidence. Certain commentators have noted that in spite of Thayer's claim that the rules are the “child of the jury”, the rules of evidence have proved remarkably resilient in outlasting the demise of the jury. The parent may have ceased to exist in many legal proceedings but the child has lived on.

1. Introduction

2020 ◽  
pp. 1-7
Author(s):  
Adrian Keane ◽  
Paul McKeown
Keyword(s):  
Adversarial System ◽  
Differences Of Opinion ◽  
Rules Of Evidence ◽  
History Of ◽  
The Law ◽  
Fact Finding ◽  
Law Of Evidence ◽  
Practical Constraints

Evidence is information by which facts tend to be proved, and the law of evidence is that body of law and discretion regulating the means by which facts may be proved in both courts of law and tribunals and arbitrations in which the strict rules of evidence apply. This introductory chapter discusses truth and the fact-finding process and explains how getting to the truth in court is hampered by practical constraints, the adversarial system, the rules of evidence themselves, and the fact that litigation is a human endeavour that necessarily provides scope for differences of opinion, error, deceit, and lies. The chapter also contains a brief history of the development of the law to date.

scholarly journals Redefining Relevancy and Exclusionary Discretion in Sir James Fitzjames Stephen’s Indian Evidence Act of 1872: The Singapore Experiment and Lessons for Other Indian Evidence Act Jurisdictions

2012 ◽  
Vol 10 (1) ◽  
pp. 1-53
Author(s):  
Siyuan Chen
Keyword(s):  
Sri Lanka ◽  
Common Law ◽  
Case Law ◽  
The World ◽  
Rules Of Evidence ◽  
Evidence Law ◽  
The Law

AbstractIn many jurisdictions, the rules of evidence can often be instrumental in determining the outcome of a dispute. But to what extent can evidence law be controlled by codification, or is it better to leave its regulation and development to the judges via common law? In an attempt to bridge the gap between the rules of an antiquated evidence statute and the modern realities of practice, Singapore’s Evidence Act was amended in 2012. Certain relevancy provisions were amended to allow greater admissibility of evidence, while new provisions were introduced to act as a check against abuse. However, it will be argued that these amendments have changed the paradigm of the admissibility of evidence under the statute and have also done little to clarify existing ambiguities in the law. This paper explains why and, given the near-complete absence of case law that has interpreted the amendments, offers a few tentative suggestions on possible ways forward. To the extent that Singapore’s Evidence Act was largely modelled after Stephen’s Indian Evidence Act of 1872, Singapore’s 2012 amendments may be of comparative interest to readers in a number of jurisdictions around the world particularly those in Asia such as Bangladesh, Brunei, Burma, Malaysia and Sri Lanka – these countries had adopted the iconic statute to varying degrees – and of course, to India itself. Many of these jurisdictions have also not made major amendments to their evidence legislation, and therefore there may be something to learn ahead of time from Singapore’s experiment.

The Role of Rules in the Law of Evidence

2021 ◽  
pp. 69-82
Author(s):  
Frederick Schauer
Keyword(s):  
Common Law ◽  
Legal Systems ◽  
Legal Rules ◽  
European Approach ◽  
The Subject ◽  
The Law ◽  
Law Of Evidence

This chapter starts out with Bentham’s antinomian thesis that rejected the very idea of setting up rules for selecting and evaluating evidence. Bentham believed that factfinding should be governed by epistemically good reasons as a process unconstrained by artificial legal rules. The author observes that most legal systems took up this approach by softening the hard edges of rules (as in common law jurisdictions) and by following the basically free-proof model of factfinding (as in countries that adopted the continental European approach). Yet, he claims that the law of evidence still remains substantially an affair of rules. Why this is the case and whether it should be the case, is the subject of this chapter.

IV. The functions of the judge and jury

2018 ◽  
pp. 176-226
Author(s):  
Roderick Munday
Keyword(s):  
General Rule ◽  
Direct Methods ◽  
Third Party ◽  
Judicial Control ◽  
Jury Deliberations ◽  
Rules Of Evidence ◽  
Basic Functions ◽  
The Law ◽  
Law Of Evidence ◽  
Reliable Methods

This chapter discusses the basic functions of judge and jury. It begins with the general rule of separation of functions of judge and jury, before turning to some of the more direct methods of judicial control. The chapter also considers the extent to which the average jury understands the directions that the law requires the judge to give, and whether jurors are as imperceptive, ignorant, or prejudiced as some of the rules of evidence suppose. Secret monitoring of jury deliberations is one way of resolving these issues, but such monitoring would amount to contempt of court. Moreover, any discussion with a third party before verdict is liable to result in a conviction being quashed. Recourse must, at present, be had to simulations and generally less reliable methods of obtaining the information needed to provide a basis for understanding and improving the law of evidence.

The Contextualised Court: Litigating ‘Culture’ in Canada

2005 ◽  
Vol 9 (2) ◽  
pp. 73-109 ◽  
Author(s):  
Robert J. Currie
Keyword(s):  
Decision Making ◽  
Multicultural Society ◽  
Rules Of Evidence ◽  
The Law ◽  
Law Of Evidence ◽  
Relevant Material

This article surveys the manner in which the courts of Canada have treated the concept of ‘culture’ as a justiciable matter in litigation. It starts from the premise that a constitutionally ‘multicultural’ society has manifest impetus to factor cultural realities into court-based decision-making, and acknowledges that judicial use of ‘contextualism’ appears to have provided the framework for reception of cultural evidence. Using the rules of evidence as a lens, the article: surveys how courts have found culture to be relevant, material and admissible in various kinds of legal disputes; analyses the trends; and offers some preliminary thoughts as to how the law of evidence should continue to adapt in order to accommodate culture in a principled manner.

Are institutional transplants viable? An examination in light of the proposals by Jeremy Bentham

2012 ◽  
Vol 8 (4) ◽  
pp. 489-509 ◽  
Author(s):  
JUAN PABLO COUYOUMDJIAN
Keyword(s):  
Institutional Design ◽  
Informal Institutions ◽  
Point Of View ◽  
Jeremy Bentham ◽  
Practical Point ◽  
The Core ◽  
Institutional Transplantation ◽  
Formal Rules

Abstract:The problem of institutional transplantation is an important issue. In Jeremy Bentham's work, we find practical as well as theoretical proposals regarding this problem. Here, we view his work as an invitation to reflect on the overall nature of the question of institutional design and transplantation. The transfer of institutions requires knowledge of ‘place and time’ that will allow for an accommodation of the transferred institutions to their new soil. However, an awareness of this type of knowledge and thus relying on its actually being available is not viable from a practical point of view. This is due to the fact that the core of informal institutions is tacit, which imposes a fundamental constraint on the process of institutional transplantation; informal norms must co-exist with formal rules, and such merging requires some accommodation of both types of rules.

scholarly journals Less Evidence, Better Knowledge

2015 ◽  
Vol 60 (2) ◽  
pp. 173-214
Author(s):  
Kenneth M. Ehrenberg
Keyword(s):  
Epistemic Contextualism ◽  
Juror Bias ◽  
Jeremy Bentham ◽  
Knowledge Attributions ◽  
Standard Of Proof ◽  
Relevant Evidence ◽  
Epistemic Context ◽  
Epistemic Standards ◽  
High Standards

In his 1827 work Rationale of Judicial Evidence, Jeremy Bentham famously argued against exclusionary rules such as hearsay, preferring a policy of “universal admissibility” unless the declarant is easily available. Bentham’s claim that all relevant evidence should be considered with appropriate instructions to fact finders has been particularly influential among judges, culminating in the “principled approach” to hearsay in Canada articulated in R. v. Khelawon. Furthermore, many scholars attack Bentham’s argument only for ignoring the realities of juror bias, admitting universal admissibility would be the best policy for an ideal jury. This article uses the theory of epistemic contextualism to justify the exclusion of otherwise relevant evidence, and even reliable hearsay, on the basis of preventing shifts in the epistemic context. Epistemic contextualism holds that the justification standards of knowledge attributions change according to the contexts in which the attributions are made. Hearsay and other kinds of information the assessment of which rely upon fact finders’ more common epistemic capabilities push the epistemic context of the trial toward one of more relaxed epistemic standards. The exclusion of hearsay helps to maintain a relatively high standards context hitched to the standard of proof for the case and to prevent shifts that threaten to try defendants with inconsistent standards.

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