The most conspicuous difference between the law’s problems in determining historical facts and those of other disciplines lies in the procedure of decision. Other disciplines rely primarily on the method of inquiry, reflection, and report by trained investigators. In other disciplines the final conclusions as to key facts are drawn by experts, and the conclusions may be changed if they are found later — after further inquiry and reflection — to be wrong. The law, in contrast, depends in most formal proceedings upon presentation by the disputants in public hearing before an impartial tribunal, a tribunal previously uniformed about the matters in dispute. And findings of fact by the tribunal are usually final so far as the law is concerned. – Hart and McNaughton, Evidence and Inference in the Law
The rules and practices of evidence in United States law provide a rich substance to examine from a dialectical perspective. Evidence is a current running through all areas and subjects of the law: varying in importance and proliferation, but nonetheless a key component even when they are supposed to matter less, namely in appeals. While the Federal Rules of Evidence (FRE) provides much of the infrastructure, the common law and trends of practice within different courts also provides a significant amount of the practices and procedures around evidence. Furthermore, the judge stands as the gatekeeper of evidence, the final word not only on what evidence is allowed but the way in which it is allowed. It is one of the most powerful means by which judges control our legal system, a deeply undemocratic governance full of bigotry and contradiction. One of the few checks on the behavior of individual judges is risk of having their decision overturned on appeal.
Peter Schmidt of Prison Legal News put this check to the test:
And so we went beyond a macro review of appellate dispositions and examined the reversal rates of every Second Circuit judge on every panel for all 1,985 cases that fell within the survey period. The results were eye-opening. Reversal rates of current Second Circuit judges who sat on at least 50 panels reviewing convictions after trial ranged from 0 percent, .8 percent and 1.6 percent (Judges Lynch, Livingston and Raggi), to 6.6 percent, 7.7 percent and 8.8 percent (Judges Jacobs, Calabresi and Parker). That’s quite a difference. If you draw a panel of judges with the lowest reversal rates, your odds of prevailing, even with an arguably meritorious issue, are vanishingly small. Draw a panel of judges with the highest reversal rates and your chances increase almost ten-fold.
There is plenty of additional evidence showing the same phenomenon: that the particular judge’s individual characteristic has an incredibly profound effect on how a legal proceeding occurs. The recent case of Brock Turner is just one anecdotal example, and also an example of one of the other checks on judges’ behavior: concerted, well-organized public outrage. Unfortunately these more egregious and obvious examples of judges abusing their discretionary power overshadow the little, daily ways that they do, so I wanted to shed light on one particular component: the relevancy requirement and standard of evidence.
The test for relevancy is provided by FRE 401, which reads:
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
The dialectic of relevancy can thus be expressed as follows: (1) probability is the thesis, (2) connection to the action is the antithesis, and (3) relevancy, or as it is called in application probative value, is the synthesis.
Another dialectical property, the effect of quantity on quality, emerges when we delve into the probability element. The test for probability can be expressed in two functions: (1) P(H¦E)<P(H) or P(H¦E)>P(H); (2) P(E¦H), where P=probability, H=hypothesis, E=evidence (and yes, I was pleased that my Evidence readings looked like a passage out of Capital). The first method contrasts the hypothesis pre-evidence with the hypothesis post-evidence. The second method takes the hypothesis as given and examines the likelihood of the evidence with the assumption made. The fascinating part about these tests are that they are an epistemological fiction: by definition, any evidence in some miniscule way makes a fact more less probable, at least in a ‘butterfly effect’ sense, and vica versa. And of course in practice, a lawyer is far more likely to introduce evidence stronger than a butterfly flapping its wings. So how does this test get applied?
In looking at the case of Knapp v. State, Knapp was alleged to have killed a marshal. Knapp testified that he would not have in anyway confronted the marshal because he had heard from some people around town that the marshal had recently brutalized an old man, resulting in his death. In response the State introduced evidence that the old man had died of alcoholism and old age. Knapp’s counsel argued that the evidence was not relevant because the fact was not of consequence as to whether or not Knapp had been told that the marshal had killed the man. The Court disagreed, allowing the evidence as connected to the rumor Knapp had heard because of the propensity for people to tell the truth. The court reasoned that proving the rumor false demonstrates that people were less likely to have spread it and that therefore the probability that Knapp was lying was higher. In the case the evidence was not considered in a vacuum: the Court particularly notes that their finding is based on Knapp “den[ying] that he can remember who gave him the information.” So in this case the Court used the second function, assuming that Knapp was lying and finding that with the assumption made it was more likely that the rumor would be false.
But conversely, and rather tellingly, in the case of Sherrod v. Berry, the situation was reversed: a police officer was accused of wrongfully murdering a man. The officer claimed he shot Sherrod because of his “quick movement with his hand into his count…[as if] he was going to reach for a weapon.” The plaintiff in this civil rights action introduced into evidence a search of Sherrod made after he was murdered wherein no weapon was found on his person. Applying the same logic as before, assuming that the police officer was lying, we’d expect the Court to find that with the assumption made it was more likely that Sherrod did not have a weapon on his possession. The Court not only ruled to the contrary, it did in a very firm manner: “the reception of evidence or any information beyond that which Officer Berry had and reasonably believed at the time he fired his revolver is improper, irrelevant, and prejudicial to the determination of whether Officer Berry acted reasonably ‘under the circumstances.'”
Let’s pick apart this difference. First, let’s try to apply the first function and see if we reach the same result as the court. The probability that Officer Berry shot Sherrod because he was or seemed to be reaching for a weapon would certainly be increased by evidence showing that Sherrod did not have a weapon. Not only does it make it highly unlikely that Sherrod was actually reaching for a weapon, it also makes it less likely, even if Officer Berry was telling the truth, that he was reasonable in his belief that he was reaching for a weapon. Perhaps then it was not the probability element but rather the connection. But of course even a cursory consideration of this is enough to show the Court’s ruling still departs from the rule: in a civil rights action dealing with the killing of a man by a police officer, evidence that goes to the motive is paramount to establishing the preponderance of the evidence needed in the lawsuit. And speaking of, the fact that this was a civil trial and that Sherrod faced a far smaller burden of proof than the State in Knapp v. State underlines that the Court’s reasoning is, at best, suspect.
One could conclude that courts simply rule in favor of state actors (and that isn’t untrue) but let’s look at this difference through a dialectical perspective. The difference seems to be reducible to the following: that the possibility of a layperson lying is relevant enough whereas the possibility of a police officer lying is irrelevant. For while the court makes the claim that the issue is what was reasonable for Officer Berry to believe when firing his weapon, as outlined above Sherrod not having a weapon goes to precisely that element. We will apply some of Lenin’s elements of dialectics:
- Objectivity: We know that Officer Berry as a thing unto himself is different than Knapp, primarily by his role as an actor of the State.
- Relations: We know that the Courts tend to protect police officers because of their relationship within the system of law.
- Development: We know that Officer Berry is facing the lawsuit because of his murder of Sherrod. What is not known, what is the significant gap in this element, is how his decision to murder Sherrod developed: whether it was from a reasonable belief that Sherrod was reaching for a weapon or another reason.
- Contradiction: To enforce the law, judges must not enforce the law on police officers to preserve their relationship.
- Sum and Unity of Opposites: Probability and connection at first may not seem like opposites, but their application makes them such. Probability is the element of low-threshold: as previously stated, by technicality it is always met. Connection is the element of high-threshold, at least relatively: the parts of the action that can be connected to are definitively limited whereas the range of probability is endless. The synthesis gives us relevancy, a concept that is the sum and unity of low- and high-threshold elements. It is worth noting that FRE 401 was originally written as a single element with two parts and only in 2011 was it split into the two elements for clarity of purpose.
- Negation of the Negation: The sum and unity of low- and high-threshold elements is a negation of each of the other’s significance: the test cannot be low-threshold because of the high-threshold elements and conversely the test cannot be high-threshold because of the low-threshold component. But as the test is applied we have the negation of this negation: Knapp becomes low-threshold and Sherrod becomes high-threshold. It is not of consequence that the court’s explanation is a negation based on legal fiction: the low-threshold component was still negated, allowing the court to limit the connection to the moment Officer Berry pulled the trigger.
- The Connection of Everything: A synthesis like relevancy, and the negation of the negation it contains, is essential for upholding the previously stated contradiction. Like the necessity of quantum states to allow particles to function, there is a range of possible negations that can to a certain degree be predicted, or at the very least measured as a probability (so yes, one could call it a probability of relevancy’s probability). Like quantum mechanics (though with more variables but less complex functions), knowing certain factors about a case and a piece of evidence can lead us to deduce the likely finding of relevancy.
But this becomes even more complicated when one considers the connection between the relevancy test and whether evidence is prejudicial, which in turn synthesizes into a balancing test that results in the negation of the negation between the relevancy test and the test for prejudice.
However, to bring us full circle to our conclusion, one predominant factor makes such calculations far easier: the judge. The judge has primary sway over how the negation of negations in the numerous tests of evidence, as well as a number of other legal issues, operates. By dissecting the nature of evidence law, the dialectics of components like relevancy, it becomes clear just how much power judges wield.