Relevancy – A Dialectic Of Evidence

495396317_5950049586_b

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.

Continue reading