goinainiclica.ml/contemporary-political-concepts-a-critical-introduction.php This is somewhat of a misnomer: In our earlier example, the relevance of the fact that the accused has type A blood depends obviously on the state of the world.
The law distinguishes between questions of law and questions of fact. An issue of relevance poses a question of law that is for the judge to decide and not the jury, and so far as relevance is defined in legal sources for example, in Federal Rule of Evidence mentioned above , the judge must pay heed to the legal definition. But legal definitions of relevance are invariably very broad. Relevance is said to be a logical, and non-legal, concept in the sense that in answering a question of relevance and in applying the definition of relevance, the judge has necessarily to rely on extra-legal resources and is not bound by legal precedents.
In deciding whether the evidence sought to be adduced does have this tendency, the judge has to look outside the law. Thayer was most insistent on this. Wigmore adopts a different position. He argues, against Thayer, that relevance is a legal concept. There are two strands to his contention. Each single piece of evidence must have a plus value.
Opponents of Wigmore acknowledge that there may be sound policy reasons for excluding evidence of low probative value. Receiving the evidence at the trial might raise a multiplicity of issues, take too much time and expense, confuse the jurors or produce undue prejudice in their mind. When the judge excludes evidence for any of these reasons, and the judge has the discretion to do so in many countries, the evidence is excluded despite it being relevant e.
Relevance is a relation between facts and the aforesaid reasons for exclusion are extrinsic to that relation; they are grounded in considerations such as limitation of judicial resources and jury psychology. So long as Courts continue to declare…what their notions of logic are, just so long will there be rules of law which must be observed. Wigmore cites in support the judgment of Cushing C.
More importantly, the second strand of his argument also does not sit well with the first strand. If, as Wigmore contends, evidence must have a plus value to make it legally relevant, the court has to consider the probative value of the evidence and to weigh it against the amount of time and expense likely to be incurred in receiving the evidence, the availability of other evidence, the risk of the evidence misleading or confusing the trier of fact and so forth.
Given that the assessment of plus value and, hence, legal relevance is so heavily contextual, it is difficult to see how a judicial precedent can be of much value in another case in determining a point of legal relevance James We have just considered the first condition of receivability, namely, relevance. That fact A is relevant to fact B is not sufficient to make evidence of fact A receivable in court.
The materiality of facts in a particular case is determined by the law applicable to that case. In a criminal prosecution, it depends on the law which defines the offence with which the accused is charged and at a civil trial, the law which sets out the elements of the legal claim that is being brought against the defendant Wigmore a, 15—19; Montrose On the probabilistic theory of relevance that we have considered, A is relevant to B.
Now suppose that the alleged victim is a minor. Under criminal law, it does not matter whether she had consented to the sexual intercourse. If B is of no legal consequence, the court will not allow evidence of A to be adduced for the purpose of proving B: Not all material facts are necessarily in dispute.
Suppose the plaintiff sues the defendant for breach of contract. Under the law of contract, to succeed in this action, the plaintiff must prove the following three elements: The defendant may concede that there was a contract and that he was in breach of it but deny that the plaintiff had suffered any loss as a result of that breach. In such a situation, only the last of the material facts is disputed. The law does not allow evidence to be adduced to prove facts that are immaterial or that are not in issue.
A further condition must be satisfied for evidence to be received in legal proceedings. There are legal rules that prohibit evidence from being presented at a trial even though it is relevant to a factual proposition that is material and in issue. Two prominent examples of such rules of admissibility or rules of exclusion are the rule against hearsay evidence and the rule against character evidence. This section considers the relation between the concept of relevance and the concept of admissibility.
A study in reported that male undergraduates in the US denied animal suffering to justify eating meat. Meeting the Needs of the Poor. He acknowledged that a policeman or a lawyer engaged in preparing a case would be negligent if he were to shut his ears to hearsay. Carlson bluntly tells Dulaney that her sexual prowess is how she is able to make men do anything. But, importantly, the court also excludes evidence for reasons other than irrelevance and immateriality. The trial begins in Portland, Oregon , and it is not long before Carlson and Dulaney enter a sadomasochistic sexual relationship behind the back of Dulaney's unsuspecting wife. National Academy of Sciences, the British Royal Society, and every other respected organization that has examined the evidence has come to the same conclusion:
The next section section 2. Here, again, the terminology is imprecise. Admissibility and receivability are not clearly distinguished.
What this means is that the court will refuse to receive evidence if it is irrelevant or immaterial. But, importantly, the court also excludes evidence for reasons other than irrelevance and immateriality. If evidence is rejected on the ground of irrelevance, it is, as Thayer The concepts of admissibility and materiality should also be kept apart. This is because admissibility or exclusionary rules serve purposes and rationales that are distinct from the law defining the crime or civil claim that is before the court and it is this law that determines the materiality of facts in the dispute.
If the evidence is logically irrelevant, it must for that reason be excluded. If the evidence is logically relevant, it will be received by the court unless the law—in the form of an exclusionary or admissibility rule—requires its exclusion. In this scheme, the concept of relevance and the concept of admissibility are distinct: Stephen appears to hold a different view, one in which the concept of admissibility is apparently absorbed by the concept of relevance.
As a general rule, no evidence may be given of hearsay because the law prohibits it. The question then arises as to the rationale for this prohibition. His critics point out that hearsay has or can have probative value and evidence of hearsay is excluded despite or regardless of its relevance. On the generalisation that there is no smoke without fire, the fact that a person claimed that p in a statement made out-of-court does or can have a bearing on the probability that p , and p may be logically relevant to a material fact in the dispute.
Interestingly, Stephen seemed to have conceded as much. He acknowledged that a policeman or a lawyer engaged in preparing a case would be negligent if he were to shut his ears to hearsay. In claiming that hearsay is irrelevant, Stephen appears to be merely stating the effect of the law: He offered a variety of justifications for excluding hearsay evidence: For his detractors, these are reasons of policy and fairness and it disserves clarity to sneak such considerations into the concept of relevance.
Although there is force to the criticism that Stephen had unhelpfully conflated admissibility and relevance understood as logical relevance , something can perhaps be said in his defence. Exclusionary rules or rules of admissibility—at any rate, many of them—are more accurately seen as excluding forms of reasoning rather than prohibiting proof of certain types of facts McNamara This is certainly true of the hearsay rule. On one authoritative definition of the rule decision of the Privy Council in Subramaniam v PP , 1 Weekly Law Reports , what it prohibits is the use of a hearsay statement to prove the truth of the facts asserted therein.
Body of Evidence is a American erotic thriller film produced by Dino De Laurentiis and Dulaney initially plays it off as if she is paranoid, but when she reveals telltale evidence, it is clear he can no longer deny it. She storms off. Dulaney. In the psychology of human behavior, denialism is a person's choice to deny reality, as a way to overwhelming evidence and the generation of political controversy with attempts to deny the existence of consensus. . to Holocaust denial since it is a form of pseudoscience that "contradicts an immense body of research".
For instance, it may be relevant as to the state of mind of the person hearing the statement, and his state of mind may be material to his defence of having acted under duress. Other admissibility rules are also more accurately seen as targeted at forms of reasoning and not types of facts. Even so, there may be policy, moral or other reasons for the law to prohibit certain uses of character evidence. In declaring a fact as irrelevant for a particular purpose, we are not necessarily saying or implying anything about probability.
We may be expressing a normative judgment. If we take a normative conception of relevance instead of a logical or probabilistic one, it is not an abuse of language to describe inadmissible evidence as irrelevant if what is meant is that the evidence ought not to be taken into account in a certain way. On one historical account, admissibility or exclusionary rules are the product of the jury system where citizens untrained in assessing evidence sit as judges of fact.
These rules came about because it was thought necessary to keep away from inexperienced jurors certain types of evidence that may mislead or be mishandled by them—for instance, evidence to which they are likely to give too much weight or that carries the risk of creating unfair prejudice in their minds Thayer ; Wigmore Epistemic paternalism is supposedly at play Leiter Subscription to this theory has generated pressure for the abolition of exclusionary rules with the decline of the jury system and the replacement of lay persons with professional judges as triers of fact.
There is doubt as to the historical accuracy of this account; at any rate, it does not appear capable of explaining the growth of all exclusionary rules Morgan —37; Nance Even if the theory is right, it does not necessarily follow that exclusionary rules should be abolished once the jury system is removed.
Judges may be as susceptible to the same cognitive and other failings as the jury and there may be the additional risk that judges may over-estimate their own cognitive and intellectual abilities in their professional domain. Hence, there remains a need for the constraints of legal rules Schauer But the efficacy of these rules in a non-jury system is questionable.
The procedural reality is that judges will have to be exposed to the evidence in order to decide on its admissibility. Bentham was a strong critic of exclusionary rules. The exclusion of relevant evidence—evidence capable of casting light on the truth—is detrimental to this end. Hence, no relevant evidence should be excluded; the only exceptions he would allow are where the evidence is superfluous or its production would involve preponderant delay, expense or vexation Bentham Book IX; Bentham Book VII; Twining It is said that he overvalued the pursuit of truth, undervalued procedural fairness and procedural rights, and placed too much faith in officials, underestimating the risk of abuse when they are given discretion unfettered by rules Twining Even if we agree with Bentham that rectitude of decision is the aim of legal procedure and that achieving accuracy in fact-finding is necessary to attain this aim, it is not obvious that a rule-based approach to admissibility will undermine this aim in the long run.
Schauer has defended exclusionary rules of evidence along a rule-consequentialist line. Having the triers of fact follow rules on certain matters instead of allowing them the discretion to exercise judgment on a case-by-case basis may produce the greatest number of favourable outcomes in the aggregate. It is in the nature of a formal rule that it has to be followed even when doing so might not serve the background reason for the rule.
If hearsay evidence is thought to be generally unreliable, the interest of accuracy may be better served overall to require such evidence to be excluded without regard to its reliability in individual cases. Given the imperfection of human reason and our suspicion about the reasoning ability of the fact-finder, allowing decisions to be taken individually on the reliability and admissibility of hearsay evidence might over time produce a larger proportion of misjudgements than on the rule-based approach Schauer However, this argument is based on a large assumption about the likely effects of having exclusionary rules and not having them, and there is no strong empirical basis for thinking that the consequences are or will be as alleged Goldman Other supporters of exclusionary rules build their arguments on a wide range of different considerations.
The literature is too vast to enter into details. Here is a brief mention of some arguments. On one theory, some exclusionary rules are devices that serve as incentives for lawyers to produce the epistemically best evidence that is reasonably available Nance For example, if lawyers are not allowed to rely on second-hand hearsay evidence, they will be forced to seek out better first-hand evidence.
On another theory, exclusionary rules allocate the risks of error.
The problem with allowing a party to rely on hearsay evidence is that the opponent has no opportunity to cross-examine the original maker of the statement and is thus deprived of an important means of attacking the reliability of the evidence. Exclusionary rules in general insulate the party against whom the evidence is sought to be adduced from the risks of error that the evidence, if admitted, would have introduced.
The distribution of such risks is said to be a political decision that should not be left to the discretion of individual fact-finders Stein ; cf. Redmayne and Nance a: It has also been argued that the hearsay rule and the accompanying right to confront witnesses promote the public acceptance and stability of legal verdicts.
Park ; Goldman Suppose the judge decides to let the evidence be presented at the trial. Having heard or seen the evidence, the fact-finder now has to weigh it in reaching the verdict. Weight can refer to any of the following three properties of evidence: The first two aspects of weight are familiar to legal practitioners but the third has been confined to academic discussions. These three ideas are discussed in the same order below. In reaching the verdict, the trier of fact has to assess the probative value of the individual items of evidence which have been received at the trial.
The concept of probative value can also play a role at the prior stage which was the focus in section 2 where the judge has to make a ruling on whether to receive the evidence in the first place. In many legal systems, if the judge finds the probative value of a proposed item of evidence to be low and substantially outweighed by countervailing considerations, such as the risk of causing unfair prejudice or confusion, the judge can refuse to let the jury hear or see the evidence see, e.
The concept of probative value or, as it is also called, probative force is related to the concept of relevance. To recapitulate, the likelihood of an item of evidence, E in our previous example, the likelihood of a blood type match given a hypothesis H that the accused is in fact guilty is compared with the likelihood of E given the negation of H that the accused is in fact innocent.
Prior to the introduction of E , one may have formed some belief about H based on other evidence that one already has. This prior belief does not affect the likelihood ratio since its computation is based on the alternative assumptions that H is true and that H is false Kaye a; Kaye and Koehler ; cf. Davis and Follette and Rulings on relevance are typically made in the course of the trial as and when an objection is raised to the introduction of evidence.
The relevance of an item of evidence is supposedly assessed on its own, without consideration of other evidence Mnookin Probative value, as with relevance, has been explained in terms of the likelihood ratio for detailed examples, see Nance and Morris and Finkelstein and Levin It was noted earlier that evidence is either relevant or not, and, on the prevailing understanding, it is relevant so long as the likelihood ratio deviates from 1: But evidence can be more or less probative depending on the value of the likelihood ratio.
In our earlier example, the probative value of a blood type match was 1. The probative value of the evidence is now 1. In both cases, the evidence is relevant; but the probative value is greater in the latter than in the former scenario.
It is tempting to describe probative value as the degree of relevance but this would be misleading as relevance in law is a binary concept. There is a second way of thinking about probative value. On the second view, but not on the first, the probative value of an item of evidence is assessed contextually. The probative value of E may be low given one state of the other evidence and substantial given a different body of other evidence Friedman ; Friedman and Park ; cf. Davis and Follette , But where the other evidence shows that the wife had died of injuries in the matrimonial home, and the question is whether the injuries were sustained from an accidental fall from the stairs or inflicted by the husband, the same evidence of spousal battery will now have significant probative value.
On the second view, the probative value of an item of evidence E is not measured simply by the likelihood ratio as it is on the first view. Probative value is understood as the degree to which E increases or decreases the probability of the proposition or hypothesis H in support of or against which E is led. The probative value of E is measured by the difference between the probability of H given E the posterior probability and the probability of H absent E the prior probability Friedman ; James On the present view, while the likelihood ratio does not itself measure the probative value of E , it is nevertheless a crucial component in the assessment.
A major difficulty with both of the mathematical conceptions of probative value that we have just examined is that for most evidence, obtaining the figures necessary for computing the likelihood ratio is problematic Allen Exceptionally, quantitative base rates data exist, as in our blood type example. Where objective data is unavailable, the fact-finder has to draw on background experience and knowledge to come up with subjective values.
Should we look at the population of the country as a whole or of the town or the street where the alleged murder occurred? What if it occurred at an international airport where most the people around are foreign visitors? Or what if it is shown that both the accused and the victim were at the time of the alleged murder inmates of the same prison? Should we then take the prison population as the reference class? The distribution of blood types may differ according to which reference class is selected.
Sceptics of mathematical modelling of probative value emphasize that data from different reference classes will have different explanatory power and the choice of the reference class is open to—and should be subjected to—contextual argument and requires the exercise of judgment; there is no a priori way of determining the correct reference class.
On the reference class problem in legal fact finding, see, in addition to references cited in the rest of this section, Colyvan, Regan and Ferson ; Tillers ; Allen and Roberts Some writers have proposed quantifiable ways of selecting, or assisting in the selection, of the appropriate reference class. On one suggestion, the court does not have to search for the optimal reference class. A general characteristic of an adversarial system of trial is that the judge plays a passive role; it is up to the parties to come up with the arguments on which they want to rely and to produce evidence in support of their respective arguments.
This adversarial setting makes the reference class problem more manageable as the court need only to decide which of the reference classes relied upon by the parties is to be preferred. And this can be done by applying one of a variety of technical criteria that statisticians have developed for comparing and selecting statistical models Cheng The ideal reference class is defined by the intersection of all relevant features of the case, and a feature is relevant if it is correlated to the matter under enquiry Franklin , It insists its operations were proportionate responses targeting Rohingya militants.
But the violence written on the bodies of refugees speaks otherwise. Ahmed was shot in his shoulder in September in Myanmar while he was crossing the border into Bangladesh. Minara was shot in the leg while she was sleeping at home in Myanmar on August 31, Photo by AFP Mohammad Haroon, 28, has a gash at the top of his spine where a bullet hit him as he was trying to cross the border. Haroon was shot in his back by the military as he was crossing the border in October , and has been unable to breathe properly since.
By AFP Aid group Doctors without Borders says it has treated more than 2, patients for injuries from bullets, knives, and burns. The main suspect is the woman who has sex with Marsh in the film, Rebecca Carlson, who after being charged with murder is represented by lawyer Frank Dulaney. The trial begins in Portland, Oregon , and it is not long before Carlson and Dulaney enter a sadomasochistic sexual relationship behind the back of Dulaney's unsuspecting wife. During their first sexual encounter, Dulaney, overcome by lust, notices too late that Carlson is tying his arms behind his back using his own belt.
Carlson pushes him onto the bed, removes his underwear, and while he is restrained, she humiliates him by pouring hot candle wax on his chest, stomach, and genitals, amused by the frustration and increasingly desperate reactions she is eliciting from Dulaney. The two then have sex with Carlson in complete control, an obvious counterpoint to their relationship in the courtroom, where Dulaney is the one in control. The testimony of Marsh's private secretary, Joanne Braslow, reveals that he had a sexual relationship with her that could have contributed to his death, casting a reasonable doubt as to Carlson's guilt.
Dulaney can not resist Carlson sexually but does not trust her. He maligns Carlson with accusations of her withholding information from him. She plays off timid and upset while he gets angry at her. He makes it clear their affair needs to end and implies he may drop her as a client. That night he goes to the restaurant where his wife works, and she appears clearly upset. She tells him Carlson called her and accuses him of sleeping with her. Dulaney initially plays it off as if she is paranoid, but when she reveals telltale evidence, it is clear he can no longer deny it.
Dulaney goes to Carlson's home and angrily demands she tell him what she told his wife. At first she acts innocent, but then she taunts and teases him, which angers him even more, and he throws her to the ground. They stare angrily at each other, but it quickly turns to excitement. The two have rough sex again.