Wigmore, The Science of the judicial proof.
What is the science of judicial proof? The study of the principles of Evidence, for a lawyer, falls into two parts. One is the test in a general sense - the aspect of the rational process of persuasion-contentious, mind to mind, the lawyer the judge or jury, each side seeking to come to the mind of the court. The other part is admissible - the procedural rules devised by the law, and litigation based on experience and tradition, to safeguard the court (especially the jury) against an erroneous persuasion. So far, Finally it has come further in formal studies, - in fact had monopolized, while previously it has been virtually ignored, left to the chance of a subsequent acquisition, casual and empirical, experience and practice. Here we have been wrong for two reasons.
one hand, there is, and must have a science test - principles of evidence - independent of the artificial rules of procedure, so this can and should be studied. This science is certain, is still imperfectly made. But all you need is there to begin with, "serious," to investigate and develop it. The procedural rules of eligibility are simply a preliminary support for the main activity, viz, the persuasion of the mind of the court for a correct conclusion through safe materials. This is the main target for the jury, and on which the lawyer must concentrate.
And on the other hand, the legal rules of admissibility are intended to decrease in relative importance during the next period of development. The tests assume the important place, and we must therefore prepare for this change of emphasis. We should seek to acquire a scientific understanding of the principles of what could be called evidence "natural" - The process so far left .....
The principles of evidence, then, represent the natural process of mind in dealing with factual evidence after they are admitted to the jury, while eligibility rules represent the artificial legal rules to our Anglo-American jury system. So, this should be studied first [principles of evidence] [1] . They bring into play the reasoning processes that are already in possession of intelligent and educated. To familiarize them with the materials commonly trial presented at trial, and thus prepare them to assume greater artificial rules preparation Eligibility devised by the judicial experience to safeguard the judicial investigation of the facts.
addition, this testing process is after all more important in the trial [2] . The trial ends with that something is missing or not tested. When the evidence already admitted, the lawyer is, himself, in his last and crucial task, ie that is to persuade the jury on the facts that were alleged in the process. To do this, he must reason of course, like all reasonable men as jurors may be shown to understand. He must have been familiar with the process of reasoning that men use naturally, and the overall experience for the class inferences commonly required in the Trials. At this stage, he has to use the artificial rules of admissibility. Those who were treated at the start, by the judge. The evidence is in, and the question now is, what is its purpose? All eligibility rules could be set aside, even the principles of evidence would, as the trials continue as a rational attempt to find the truth in legal disputes ... (Wigmore, Science § 1 and 2).
Translated and adapted from Anderson, Terence, David Schum and William Twining, Analysis of Evidence, 2d ed., 2005, pp. 87 and 88.
[1] Added mine.
[2] Trial I have translated as trial.
What is the science of judicial proof? The study of the principles of Evidence, for a lawyer, falls into two parts. One is the test in a general sense - the aspect of the rational process of persuasion-contentious, mind to mind, the lawyer the judge or jury, each side seeking to come to the mind of the court. The other part is admissible - the procedural rules devised by the law, and litigation based on experience and tradition, to safeguard the court (especially the jury) against an erroneous persuasion. So far, Finally it has come further in formal studies, - in fact had monopolized, while previously it has been virtually ignored, left to the chance of a subsequent acquisition, casual and empirical, experience and practice. Here we have been wrong for two reasons.
one hand, there is, and must have a science test - principles of evidence - independent of the artificial rules of procedure, so this can and should be studied. This science is certain, is still imperfectly made. But all you need is there to begin with, "serious," to investigate and develop it. The procedural rules of eligibility are simply a preliminary support for the main activity, viz, the persuasion of the mind of the court for a correct conclusion through safe materials. This is the main target for the jury, and on which the lawyer must concentrate.
And on the other hand, the legal rules of admissibility are intended to decrease in relative importance during the next period of development. The tests assume the important place, and we must therefore prepare for this change of emphasis. We should seek to acquire a scientific understanding of the principles of what could be called evidence "natural" - The process so far left .....
The principles of evidence, then, represent the natural process of mind in dealing with factual evidence after they are admitted to the jury, while eligibility rules represent the artificial legal rules to our Anglo-American jury system. So, this should be studied first [principles of evidence] [1] . They bring into play the reasoning processes that are already in possession of intelligent and educated. To familiarize them with the materials commonly trial presented at trial, and thus prepare them to assume greater artificial rules preparation Eligibility devised by the judicial experience to safeguard the judicial investigation of the facts.
addition, this testing process is after all more important in the trial [2] . The trial ends with that something is missing or not tested. When the evidence already admitted, the lawyer is, himself, in his last and crucial task, ie that is to persuade the jury on the facts that were alleged in the process. To do this, he must reason of course, like all reasonable men as jurors may be shown to understand. He must have been familiar with the process of reasoning that men use naturally, and the overall experience for the class inferences commonly required in the Trials. At this stage, he has to use the artificial rules of admissibility. Those who were treated at the start, by the judge. The evidence is in, and the question now is, what is its purpose? All eligibility rules could be set aside, even the principles of evidence would, as the trials continue as a rational attempt to find the truth in legal disputes ... (Wigmore, Science § 1 and 2).
Translated and adapted from Anderson, Terence, David Schum and William Twining, Analysis of Evidence, 2d ed., 2005, pp. 87 and 88.
[1] Added mine.
[2] Trial I have translated as trial.
0 comments:
Post a Comment