3 - Principles of proof

Summary

Introduction: evidence in legal contexts

Within the common law tradition there has been a tendency to equate the subject of evidence with the law of evidence and to marginalize or neglect other dimensions such as the logic of proof, witness psychology, the evidentiary significance of forensic science, and the role of statistics and of narrative in arguing about and deciding contested issues of fact in legal contexts. In Part B, we first describe the shared assumptions upon which evidence scholars have based their work for two centuries – the Rationalist Tradition – and its importance in contemporary practice and then describe and illustrate the principles that form the basis for the logic of proof.

Part C begins with Wigmore's explanation for his view that mastery of the principles of proof is at least as important as mastery of the rules regulating the admissibility and use of evidence. Part D introduces some terminology basic to understanding those principles. The probative processes and logical principles necessary for analyzing evidence and marshaling arguments in legal contexts are presented and developed in Part E.

The Rationalist Tradition

The common law model of adjudication reflects some basic assumptions – assumptions about the nature and proper ends of adjudication, assumptions about the nature of knowledge and the possibility of making accurate present judgments about past events, and assumptions about what is involved in reasoning about disputed questions of fact in forensic contexts. The assumptions underlying contemporary theory and practice, at least as reflected in the writings of those who have specialized in the field of evidence, have persisted with little apparent change since the eighteenth century.