Towards a logical analysis - testimonial evidence epistemic
A proposal to overcome the subjective criteria and awareness of the evidence
César Silva Augusto Higa [1]
Introduction:
1. Testimony and their attributes
2. Attributes to determine the admissibility of the testimony
2.1. Direct observation of the facts to declare
2.2. Understanding of the facts that are subject to declaration
3. Attributes to determine the credibility of a witness
3.1. Veracity of the witness
3.2. Objectivity of the witness
3.3. Witness observation ability
Conclusions Introduction .-
Witnesses are one of the most important sources of evidence that the parties have to prove your case, especially in an adversarial system, which is toward which is being directed Peruvian penal law [2] . Just follow the trial of ex - President Fujimori, and the equally well-known case of the scandal of the soccer team, to realize how powerful are the statements of a person to believe that certain events occurred in reality.
However, the evidence presented major problems for its probative value. For example, in the same process of former President Fujimori, there have been witnesses who contradict each other, others have changed the version of their statements, some have said what others have told, but that they have not observed. However, taking into account the above, how will the Board to determine what the value of evidence that will give each of these statements?
should be added, moreover, that human beings are not very good lie detectors, as empirical studies have been made on this matter. Table No. 1 shows a study that was done in the United States regarding the ability of humans to detect when a person lies. This experiment showed that the ability of judges to detect when a person lies not exceed 60% and, moreover, is not much higher than the average person. The best lie detectors are secret service agents of the United States, but its accuracy rate does not exceed 64% accuracy.
Table No. 1
accuracy of a person to detect a lie
Accuracy Percentage average person 55%
police detectives 55.8%
CIA, FBI and Army experts polygraphs Judges
55.7% 56.7% 57.6%
Psychiatrist
Secret Service agents
64% Source: Human Judges of Truth, Deception, and Credibility: Confident But erroneous [3] .
Prepared by itself.
These statistics show that there would be approximately 40% of cases that can not be detected if a person is lying or not. Faced with this situation: what to do? Convict a person with such low rates to detect if a person says or not, the truth is a huge risk for the protection of the rights of individuals.
For some, the problem would be resolved, leaving no probative value the conflicting testimony, or in any case, subtracting its value near the minimum. For others, the problem would be solved by allowing the judge to assess the evidence with "test of conscience." His conscience will determine which witnesses to believe and which to reject, but I do not see that is special about the conscience of a judge to confide to him the determination of whether an event occurred or not. However, as we have his conscience would be correct only 56.7% of the time.
however, reject the testimony would not solve the problem. This form of evidence is closely linked to other media, such as expert testimony and documentary evidence. The expert is a individual and as such, may be subject to the same weaknesses, prejudices, biases, that affect any person on its analysis of a particular event or aspect of reality. In the case of documentary proof, its design and content is a product of human behavior, which is why, in many cases, must go to the person who ordered or participated in its preparation in order to fully understand its contents, context, etc. These two examples show that it is not so easy to reject the study of oral evidence.
From my point of view, if there is no rational mechanism to assess the credibility of a witness, this form of evidence should not be allowed in the process. One of the requirements for a decision to be fair, is it is proved that the alleged acts occurred in reality, through rational and intersubjective means to allow third parties to verify whether the facts stated proven, in fact, have that quality.
Fortunately, the evidence was not admissible evidence are irrational. In recent decades, the doctrine has been discussing the attributes to be assessed for purposes of determining whether a witness can be used as evidence (direct observation, honesty, objectivity, etc.), the techniques should be used to evaluate these attributes and mechanisms that would establish the degree or probative value to it give the testimony of a witness (Bayesian theories and Bacon).
In this short article, I will concentrate on the first aspect, ie epistemic attributes that must be analyzed to support and assess the credibility of a witness. This article attempts to analyze the testimonial from an analytical perspective and not psychological. Thus, it is to eliminate or at least minimizing the subjective aspects may govern the analysis of testimony.
This article does not make reference to the techniques of direct examination (direct Examination) and cross-examination (cross interrogation) techniques for assessing the admissibility and credibility of the testimony. Nor will discuss the tools that have been created to determine the degree of credibility that may be granted to a witness, after analyzing its attributes and their performance during [4] . Finally, allow the evaluation noted that the attributes of the testimony can be concluded that the classification between direct and indirect evidence does not hold, from an epistemological point of view, however, for reasons of space will not go into that detail.
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full version: Justice and Law Journal. N ° 3. CESAR AUGUSTO HIGA SILVA (PERU)
[1] lawyer from the Pontificia Universidad Catolica del Peru. With studies completed in the Master of Constitutional Law at the Pontificia Universidad Catolica del Peru and graduate studies in Legal Argumentation Theory from the University of Alicante.
This is a short version of a much wider investigation we are carrying out the design of the strategy of a case and the evidence. In that sense, it would welcome comments and criticisms surely be to ask readers to this work, which can lead to the following email: Higa.cesar @ gmail.com.
[2] connection, you can review the following decisions of the Constitutional Court where it takes this position: Judgement relapse 402-2006-PHC/TC File No. (if Luis Enrique Rojas Alvarez), sentence passed in Exp 3390-2005-PHC/TC (if Margarita Toledo), judgment on 005-2006-PHC/TC File No. (if Umberger Manuel Sandoval), sentence passed on the Record 1939-2004-HC/TC (Ricardo Gomez Casafranca case). Also the following judgments: 1296-2007 and RN RN N ° 224-2005.
[3] Kassin, Saul M. Human Judges of Truth, Deception, and Credibility: Confident But erroneous. 23 Cardozo L. Rev. 809 to 816 from 2001 to 2002.
[4] For a complete analysis of the testimony (and, in general, all the evidence) must study the techniques of performance of this test and the way it allocated its probative value. However, due to space considerations and focus of the article, not wanted to address these issues jointly. In future articles will expand these aspects, which will allow a better understanding of the testimonial.
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