Talk:Evidence (law)

Odd things, especially last sentence in "Authentication" section

looking something up quickly, notice there are some rather odd things going on in the actual article. Notably the last sense [sentence] of the section Authentication. I am sorry I have not got the time to go through the changes as the moment and find out what might have been removed and added. -- 02:04, August 7, 2010‎ MithrandirAgain

This comment was unsigned. I gave it attribution and time stamp, made a title and put "sentence" in brackets after "sense", which I believe was used in error. -- Kjkolb (talk) 07:45, 13 November 2015 (UTC)

Organization of the Discussion of the Topic

The overall organization of this topic is inconsistent.

Point A. The table of contents as it now stands (15 October 2007) is:

1 Relevance and social policy
2 Presence or absence of a jury
3 Exclusion of evidence
3.1 Relevance
3.2 Unfairness
4 Authentication
5 Witnesses
6 Hearsay
7 Circumstantial evidence
Etc.

Topic #3 is not parallel to Topic #1. (The relevance rule is one ground for exclusion of evidence.) Moreover, Topic #3 largely duplicates Topic #1.)

Point B. Throughout the short discussions there is an indiscriminate passing back and forth between the laws of different countries, mainly between, on the one hand, the law of evidence in the United States and, on the other hand, the law of evidence in the UK. The discussion of the "law of evidence" will not work if large national differences in some areas are not mentioned and discussed. And if countries such as Australia, Canda, Malaysia, Germany, etc., etc., are not to be discussed, this should be noted in the title.

It might make sense -- it would make sense -- to break down the topic "law of evidence" into "the law of evidence [or proof, as the case may be] of [jurisdiction or country in question -- such as Australia]".

Point C. This complaint -- Point C -- is a complaint about a lack of depth as well about poor organization. The law of evidence in the US has lots of topic, subtopics, and curlicues that are not even mentioned in this entry. For example, there is an elaborate set of rules about the impeachment and rehabilitation of witness, but there is no mention or discussion of this in the entry.

&&&

This Wikipedia entry on the "law of evidence" hasn't changed or improved much during the last two years. Bluntly put, this entry is almost a complete failure.

Relevance and Mr. Wilson

Someone has an undue amount of affection for Mr. Wilson. His views are surely interesting to an intellectual historian, and they may even be interesting in their own right. But it is extremely doubtful that the views of an 18th century figure are a useful key for an understanding of the law of evidence in the twenty-first century. I suggest that a separate section be created and that it be called, perhaps, "Intellectual History of the Law of Evidence." Mr. Wilson's views can be described and discussed there.

In any event, if Mr. Wilson's views are to be discussed in connection with the topic of relevance, there is no excuse for not discussing the views on relevance of, e.g., James Bradley Thayer, John Henry Wigmore, Blackstone, David Hume, all of whom had an enormous amount of influence on the development of the law of evidence in the United States and in other countries influenced by the English and Scottish legal and intellectual traditions. (Other than Wigmore and Thayer, I have not even mentioned numerous 20th century figures who influenced the law of evidence in the United States -- e.g., Charles McCormick, Edmund Morgan, Judge Jack Weinstein, and many others. There simply is no justification for reaching back into the 18th century and ignoring all legal and intellectual developments that happened "in between.")

Authentication

The text as it now stands discusses the best evidence rule. But the best evidence rule has nothing to do with the authentication requirement. The authentication rule requires only that an offeror of tangible evidence introduce sufficient evidence to show that the item offered is what its proponent claims it is. The best evidence rule requires that a certain types of evidence -- the original document -- be used to show the contents of a document. The authentication and best evidence rules are distinct rules, and the best evidence principle is not a backhanded version of the requirement of authentication. (The best evidence rules is a rule that reflects the judgment that certain types of evidence are sometimes more trustworthy than other types of evidence.)

Overemphasis of relevance of Bayesian theorem to evidence law

Why the hell is over a fourth of the article dedicated to this subject? I took Evidence with one of the most famous law professors in the United States (his books are in nearly every public library in the nation) and this was not covered. It is not part of the case law---yet---and has little relevance to how evidence law is actually applied at present in American litigation. Also, this concept was not discussed in my BarBri course, and it was not covered on the bar exam. I think this topic is interesting and should be mentioned, but I also feel it does not need to be explained in such detail. This is an encyclopedia, not a law review! --Coolcaesar 06:37, 6 September 2005 (UTC)

Hearsay

I assume the "Federal Rules of Evidence" in the section on Hearsay refers to a U.S. code (e.g., is of interest to people wanting to know about evidence in U.S. law rather than common law more broadly), but I don't feel competent to change the statement to reflect this. Eric 18:21, 9 November 2005 (UTC)

The Federal Rules of Evidence are, yes, a federal codification of the rules of evidence that are now applicable in federal trials and in some other federal proceedings. These Rules are ordinarily cited simply as the "Federal Rules of Evidence." One good place to find these Rules is at http://www.law.cornell.edu/rules/fre/index.html

In the United States almost every State and Territory has codified its law of evidence. Almost all of these codifications are patterned after the Federal Rules of Evidence. California's codification, however, is substantially different from the Federal Rules of Evidence. The California Evidence Code was enacted into law in the late 1960s, almost a decade before the Federal Rules of Evidence codified the federal rules of evidence. Indeed, the drafters of the Federal Rules of Evidence borrowed extensively from the California Evidence Code -- but, on the whole, the Federal Rules of Evidence are a much more compact and general evidence codification.

Only a small handful of US States still use predominantly common law rules of evidence. The most important State to reject comprehensive codification of the law of evidence is New York State.

Even in the UK and in Commnwealth countries, common law rules of evidence theoretically no longer exist. There are Evidence Acts in the UK, Canada, etc., and the "common law" figures only to the extent that these judicial interpretations of the Evidence Acts are themselves viewed as a kind of as common law and, more broadly, to the extent that judicial interpretations of Evidence Acts are influenced by and conform to "unwritten" evidence rules that predated the Evidence Acts. But the official theory is that the Evidence Acts are legislation like any other legislation and that, by virtue of legislative supremacy, the Acts supersede common law rules of evidence to the extent that the Acts are in conflict with common law rules. This theory is more than mere rhetoric. For example, in recent years -- during the Blair years -- legislative amendments to the Evidence Acts have brought about dramatic changes in the law of evidence in the UK.

(by an anonymous law teacher)

&&&

I edited the version of the hearsay paragraph that said that a pretrial statement is hearsay if a party attempts to prove the _contents_ of the pretrial statement. It is not sufficient that a party is trying to show what the contents of a pretrial statement are. To turn a pretrial statement into hearsay, a party must be trying to show that the the assertion (if any) made in the pretrial statement is _true_. The best evidence rule is different; it does prohibit (as a general matter) proof of the _contents_ of a document by any means other than the document. But the hearsay rule does not make decisive whether someone is trying to show the contents of a pretrial statement (whether written or not); a party must be trying to use the pretrial statement to show that the assertion found in that statement is true. There is no violation of the hearsay rule if a party tries to show the contents of a pretrial statement without trying to show that an assertion in a pretrial statement is true. For example, a party does not run afoul of the hearsay rule if it offers the statement "Watch out!" to show that another person had been warned.

The Question of the Proper Role of Bayesianism (Probability Theory) in the Law School Classroom

Perhaps the reason why Coolcaesar does not see the relevance of Bayesianism is his self-confessed (but proud) ignorance of Bayesianism?

Some law teachers hesitate to mention probability theory in class because they think their students are philistines in matters of mathematics and fear student retribution via student course evaluations. Such law teachers might cite Coolcaesar's comment as evidence that this fear is warranted.

&&&

One should consider that when any work (such as a treatise or an encyclopdeia entry) is in its incipiency some topics will get relatively more attention than they deserve (or will ultimately get). If such disparities were not permissible, how would one (or a community) ever get a book or an encyclopedia started? (Answer: It would not be possible.)

&&&

Bayesian logic is wily; it is a Trojan Horse. Scientific and expert evidence (e.g., genetics) is frequently admitted into courtrooms. Much of today's science (e.g., quantum theory, meteorology, weather forecasting, evolutionary biology, neuroscience, economics) has probabilistic components: probability theory is part and parcel of many of today's sciences. Some of the probability theory used in some sciences has a Bayesian flavor; i.e., some sciences now make use of conditional probabilities and likelihood ratios to update, or revise, the prior probabilities of hypotheses (or to extract likelihood ratios from "posterior" probabilities). Hence, even though many (but not all) lawyers and judges have a deep aversion to "trial by mathemctics," Bayesian logic is deep in the belly of some sciences and thus insinuates itself into the courtroom whether lawyers or judges are comfortable with mathematics or not. This is one reason why it might be important for law students to know a little bit about probability theory and Bayesian logic.

Another reason for putting the Rev. Thomas Bayes into law school courses about the law of evidence is the possibility that Bayesian logic reveals the fundamental structure (or part of the fundamental structure) of factual inference. The law of evidence can make no sense either in the classroom or in practice if it does not rest on some coherent view about how human beings use evidence to reach conclusions about the world.

&&&

Coolcaesar does not consider the possibility that law students and lawyers are not the only people who may want to know something about the law of evidence and proof of facts in litigation. Students of society and everyday citizens may want to know how legal mechanisms for resolving factual disagreements work or fail to work.

---
How about a) signing your contributions and b) reading WP:POL, especially WP:NOR and WP:NPA -- Jibal 01:16, 3 April 2007 (UTC)

Civil Law

This article focuses on evidence concepts taught in American schools. Thus, there is a lot of emphasis on Common Law and American Law peculiarities.

Since the article is titled “Evidence” and not “Evidence in American Law” or “Evidence in Common Law”, I would like to know what others think about the insertion of Civil Law concepts in each section as well. Or should separate articles be created?

I want to hear some opinions before I start editing. Personally, I’m in favor of keeping everything in a single article. Sparks1979 14:16, 9 October 2006 (UTC)

The world believes that most USians are only vaguely aware there are countries other than the United States. We are happy with that - we are less likely to get bombed. The article should be named “Evidence in United States Law” (unless it presents a comparative study), just as the many history books on Amazon entitled "The Civil War" should be "The United States Civil War", etc.

Kjb 03:09, 2 December 2006 (UTC)

I disagree that the article needs to be renamed. However, if the article should be renamed, it seems to me that the more appropriate title is Evidence (United States law). Keep in mind that Wikipedia title/heading style is always sentence case (as the Brits and many Commonwealth countries prefer). --Coolcaesar 05:26, 2 December 2006 (UTC)

More evidence (Sources and Bibliography) required for the Evidence page!

As per user:GridEpsilon, who recently place the corresponding template, this article needs more sources. ie: The Laws of Evidence by a prof. Donald Po... at Ottawa U. (I forget his last name) or many other resources that are currently available. Merry Christmas and good luck! Here are a couple wiki regulations you may also want to take a look prior to adding more information to this article WP:OR, WP:V and WP:CITE --CyclePat 05:11, 27 December 2006 (UTC)

Also WP:POV -- this article reads like an essay, not an encyclopedia entry. -- Jibal 01:19, 3 April 2007 (UTC)

What's the difference of the word "Evidence and Proof"

It bothers me on the differences on the two, first and foremost, Evidences in crimes turn out to be also the proof in ones case. An example of this is a murder case, police officials find evidences on where and when including the actions of the killer, but it doesn't prove the suspect that is present in the setting to be totally the murderer of the victim, for one reason is that there is only one person in the setting and it is the suspect without him knowing what happen. You don't know if he is telling the truth or not, You don't know that the evidence is thoroughly related to the proof on the suspect to be the murderer of the victim.

Question:

    -Can it be proven even if the evidence isn't enough to prove that the killer with so much of an evidence can also be determined without full proof?

vahn_dinio 11:46,June 4, 2008 (UTC)

Disclosure

This part seems to be missing. Although TV law shows hardly provide "reliable source" there seems to be a case that if the defendant's party has not been made aware of a witness the prosecution wishes to call or an object they wish to use as an exhibit within due time (Period being what?) then the defense can ask for an adjournment or to have the evidence/exhibit dismissed. If I didn't get that wrong then there should be s.th. about that in this article. If it doesn't go here there should be some mention in Criminal proceedings. Plse. verify and edit accordingly. THKS. 71.236.26.74 (talk) 05:58, 31 July 2009 (UTC)

"Incriminating evidence" listed at Redirects for discussion

The redirect Incriminating evidence has been listed at redirects for discussion to determine whether its use and function meets the redirect guidelines. Readers of this page are welcome to comment on this redirect at Wikipedia:Redirects for discussion/Log/2023 August 20 § Incriminating evidence until a consensus is reached. Jay 💬 06:43, 20 August 2023 (UTC)