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Professor Peter Tillers of Cardozo Law School in New York blogs for JURIST on the latest evidence issues...
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Saturday, January 17, 2004
Direct Inference:Indirect Inference::Direct Perception:Indirect Perception?

Many or most of the 20th century giants of U.S. legal scholarship in the law of evidence in the took the position that there is such a thing as direct or immediate inference; some of them said, for example, that some types of tangible evidence present information directly to the senses and do not require any inference about such information by a human observer. Some legal writers and many philosophers, however, have challenged this view or have taken a different view. I belong in this latter fraternity. In my (two-volume!) 1983 revision of the first volume of Wigmore's classic treatise on the law of evidence I said that "there is no such thing as direct evidence." (Ironically, Wigmore took a quite different position: he coined a phrase -- "autoptic proference" -- to describe how tangible things present themselves immediately to the senses. [Today no one uses Wigmore's neologism except to poke fun at Wigmore.])

I had thought that this disagreement about the existence or nonexistence of direct inference had been put to bed. But perhaps I am wrong. There is today a controversy still among psychologists and other serious students of perception about the existence or non-existence of direct perception. See, e.g., Claire F. Michaels and Claudio Carello, Direct Perception (1981), which is available at http://ione.psy.unconn.edu/~psy254/MC.pdf. (Professors Michaels and Carello call the study of direct perception the "ecological approach.")

What do you think, Gentle Reader?

Consider this question: Even if there is such a thing as direct human perception of the world, is there much or any direct perception or direct inference of or from the evidence presented in legal proceedings such as trials?

My question more precisely stated: Even if direct perception or direct inference occurs in trials, is it ever the case that direct perception or direct inference suffices to establish a legally-material factual proposition in a judicial trial or other legal proceeding?
Er, ..., you can perhaps see which way the wind is blowing in this writer's brain.

Posted by Peter Tillers at 8:10 AM
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Professor Peter Tillers

"I have practiced a little bit of law -- I worked as a litigator, once in California and once in Texas -- but for most of my professional life I have studied and taught law.

In the early part of my academic career I dabbled in philosophy, particularly the philosophies of Kant and Hegel. But as I matured, I came to my senses. This explains why during the last 15 years I have devoted much more attention to evidence, inference, and proof in litigation than to German Idealism and similar matters. However, I did not succeed in completely obliterating the influence of philosophy and epistemology on my thinking. Thus, in my effort to understand and explain the process of proof in litigation, I have devoted a great deal of attention to matters such as probability theory and theories of evidence, inference, induction, and proof.

Peter Tillers is Professor of Law at Cardozo Law School, Yeshiva University. He revised volumes 1 &1A of Wigmore on Evidence (1983) and is the author of Probability and Inference in the Law of Evidence (1988; with E. Green).