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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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Friday, November 26, 2004
Causes, Associations & Signs

Theories about the workings of inference from evidence perhaps fall into three groups:

1. probabilistic causality
2. associationism
3. semiotics

The first approach holds that evidence works as evidence only if there is a causal connection between evidence and hypothesis.

The second approach holds that evidence works as evidence when experience shows a regular connection (to some degree or frequency) between evidence and hypothesis.

The third approach holds that matters which work as evidence function as signs of matters (hypotheses) beyond themselves.

The third approach, to be respectable, must be stripped of the turgid nonsense in which "semiotics" has been wrapped by many literary theorists.

Much of the theorizing about evidence in the American legal academy buys into the notion that evidence works as evidence only because of experienced or observed regularities in the occurrence of distinct events or phenomena -- that evidence works as evidence only because of the relative frequencies of distinct events or phenomena. But the law in practice is generally indifferent to the relative plausibility of these three seemingly-divergent accounts of evidence, inference, relevance, and probative value; viz., the law in practice accepts much evidence whose causal connection to hypotheses of interest is not demonstrated or demonstrable; it accepts some evidence whose probative force rests on a causal account rather than on observed association or for any other apparent reason; and judges administering the law of evidence accept much evidence as worthy of consideration even when neither a causal account nor observed regularities seem to provide any apparent reason for doing so.

It is good that the law of evidence does accept any one of these three theories as orthodox and authoritative dogma. There are large grains of truth in all three accounts.

The real question, presently unanswerable, is which account best accommodates all three types of sources of human empirical knowledge.

I suspect that the best foundation for a comprehensive account of evidence and inference is laid by semiotic theory, the approach that emphasizes that evidence is an event or state that indicates or suggests a matter apart from, in addition to, or beyond itself.

The view of evidence as essentially sign, or hint, is most readily compatible with the hypothesis that both the human brain (along with its appurtenances) and the cosmos happen to be wired in such a way that a human actor has the ability to see a glimmer of a new truth based upon one encounter with some event or state of affairs -- based, in other words, on an encounter with a unique event, a singularity. And only semiotic theory explains how evidence manages to prod the human imagination to attack complex problems in quite fruitful ways, in situations that are so complex, that have so many ingredients, that random conceptual walks even over aeons of time could not be expected to yield plausible conjectures.

I will explain the above points in much more detail later -- in my promised book. Stay tuned!

Posted by Peter Tillers at 5:29 PM
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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).