53 research outputs found
Spotting a Preponderance of the Evidence in the Wild: Inference to the Best Explanation and Sufficiency of the Evidence
Hearsay and Informal Reasoning
The Federal Rules of Evidence define hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. \u27 A statement, in turn, is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. Hearsay is inadmissible unless it falls within an exception to the rule or an exclusion from the definition. Courts and commentators often write as if the distinctions they make between hearsay and nonhearsay are consistent with informal reasoning, the inferential methods based on common experience that human beings employ in litigation as well as everyday life. There is certainly good reason to take account of informal reasoning in conceptualizing hearsay. Interpretation of terms such as assertion and assert to reflect the process people use to make everyday judgments takes maximum advantage of human experience, and is therefore easy for courts and lawyers to learn and apply. But courts, rulemakers, and scholars have failed to develop a workable and accurate model of informal reasoning on which a clear understanding of hearsay could rest. One result of that failure is the debate over the proper ambit of the hearsay rule that has recurred since the Exchequer Chamber decided Wright v. Doe d. Tatham over a century and a half ago. Conventional attempts to distinguish hearsay from nonhearsay produce baffling results. Consider one understanding of the hearsay definition, which might be called the literalist heuristic. Literalist analysis holds that, for hearsay purposes, a communication ordinarily asserts only those propositions that it literally, expressly, or directly articulates
Foreword to the First Virtual Forum: Wallace Stevens, Blackbirds and the Hearsay Rule
Symposium - Hearsay and Implied Assertions: How Would (or Should) the Supreme Court Decide the Kearley Case: Forewor
The Juridical Management of Factual Uncertainty
Civil presumption doctrine in the United States is unnecessarily complex and essentially unnecessary. Evidence law affords a number of evidentiary devices for managing uncertainty, which civil presumptions, at best, merely replicate, but in a different vocabulary with the attendant unnecessary complexity. We survey the critical similarities of evidentiary devices, which can save time and expense, but seldom affect the final outcome of litigation, and demonstrate the manner in which civil presumptions are mere substitutes for other well known evidentiary devices. We further show the unnecessary complexity introduced by instructions on presumptions. The potential that presumption instructions have for harmful effects on jurors, and the effort required to master the intricate formalities of presumptions, suggest that the main reason for their continued existence is distrust of jurors, and perhaps appellate court distrust of trial courts, and that an appreciation of the extent to which presumptions duplicate other evidentiary devices can be the key to sorely needed reform
Confrontation and the Utility of Rules
There is a good reason why evidence scholars continue to be fascinated and perplexed, and some courts continue at least to be perplexed, by the types of evidence that tend to be lumped together misleadingly under the headings nonassertive conduct or implied assertions. Evidence of this sort highlights a paradox of the prevailing law of hearsay. I believe that this paradox cannot be resolved without fundamentally transforming the structure of that law. Thus, while I agree - within the current framework - with many of the insights so ably stated in this Symposium, I think evidence scholars must devote their efforts to construction of a better structure
Falsification Of The Atmospheric CO2 Greenhouse Effects Within The Frame Of Physics
The atmospheric greenhouse effect, an idea that many authors trace back to
the traditional works of Fourier (1824), Tyndall (1861), and Arrhenius (1896),
and which is still supported in global climatology, essentially describes a
fictitious mechanism, in which a planetary atmosphere acts as a heat pump
driven by an environment that is radiatively interacting with but radiatively
equilibrated to the atmospheric system. According to the second law of
thermodynamics such a planetary machine can never exist. Nevertheless, in
almost all texts of global climatology and in a widespread secondary literature
it is taken for granted that such mechanism is real and stands on a firm
scientific foundation. In this paper the popular conjecture is analyzed and the
underlying physical principles are clarified. By showing that (a) there are no
common physical laws between the warming phenomenon in glass houses and the
fictitious atmospheric greenhouse effects, (b) there are no calculations to
determine an average surface temperature of a planet, (c) the frequently
mentioned difference of 33 degrees Celsius is a meaningless number calculated
wrongly, (d) the formulas of cavity radiation are used inappropriately, (e) the
assumption of a radiative balance is unphysical, (f) thermal conductivity and
friction must not be set to zero, the atmospheric greenhouse conjecture is
falsified.Comment: 115 pages, 32 figures, 13 tables (some typos corrected
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