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Law, Probability and Risk (2003) 2, 117–130

Epistemology and legal regulation of proof


M IRJAN DAMA S̆KA
Sterling Professor of Law, Yale University, USA
[Received on 29 May 2003; revised and accepted on 25 June 2003]

In the legal process, there are fewer ubiquitous cognitive problems than is often thought.
Optimal fact-finding arrangements depend on a variety of factors, so that those intent on
improving these arrangements face different problems in different procedural settings. In
examining factors with a bearing on best fact-finding practices, the author focuses first on
factors that are internal to legal culture, such as the varying profile of decision-makers,
the type of proceedings, and the objectives of justice. He then explores the influence
of extra-legal factors, such as the role of political ideology, governmental structure,
and the general cultural context on adjudicative fact-finding. Special attention is given
to the question of whether radically different cultural environments render their proof-
technologies discontinuous, or incommensurable. The paper ends on a cautionary note,
suggesting that the absence of a suitable taxonomy of facts subject to proof makes it very
difficult to apply the insights of cognitive science to factual inquiries in adjudication.

Keywords: adjudicative fact-finding; adversary process; courts; culture and proof;


inquisitorial process; probability; legal proof.

1. Introduction
It is generally accepted that the desirability of fact-finding arrangements in the legal process
cannot be measured solely in terms of their capacity to generate accurate outcomes. The
interest of those who seek cognitively optimal practices are not identical with the interest
of those who seek best fact-finding arrangements in adjudication. Why is this so? The most
obvious reason is that pursuit of the truth is only one component of adjudicative activity,
and that truth enhancing values must be balanced against other countervailing needs of
the legal process, such as social peace, human dignity, stability of decisions, or cost. An
included, but less frequently noted reason stems from the intertwining of legal and factual
issues in Western legal systems. Despite considerable similarities between guessing about
facts and guessing about law, the best method for achieving fact-finding accuracy is not
always identical with the best method for reaching legally appropriate outcomes. A sub-
optimal method for finding facts may in some situations be better suited for attaining the
overall objectives of adjudication than a method that is superior in terms of its accuracy-
generating potential.1 In short, legal regulation of proof is influenced by both epistemic
and extra-epistemic factors.
1 Questions of domestic law can be resolved by the court on the basis of its own research. This is true even in
adversarial common law procedure, which relies on the litigants to marshal evidence. It is true that questions of
foreign law are sometimes treated on the analogy with ordinary issues of fact. But even in jurisdictions that apply
this analogy to the greatest degree, factual and legal issues are not tried exactly alike. For the full implications of
the fact analogy, see S CHLESINGER et al. 1988 Comparative Law, 5th edn, Mineola, NY, pp. 81–88.


c Oxford University Press 2003, all rights reserved
118 M . DAMA S̆KA

To tell these two factors apart is often very difficult. The greatest difficulty is caused
by factors that promote, or appear to promote, both truth-enhancing and collateral values.
The ban on coercive methods of interrogation is a good illustration. It can be justified not
only by humanitarian concerns, but also on the ground that it protects the trier of fact from
dubious information. Or consider the attorney–client privilege. It can plausibly be justified
not only on privacy rationales but also for truth promoting reasons. Without the privilege, it
can be argued, witnesses would hold back from their attorney information that is important
for the attainment of accurate factual findings. The immediate loss of information in a
particular case, caused by recognizing the privilege, may thus be justified by the long-range
gain in truth-conducing values. While difficult to make, the distinction between epistemic
and extra-epistemic factors is not without considerable practical importance.2 For if truth
values are to be properly balanced against their competitors, factors capable of promoting
fact-finding precision ought to be kept apart from those that serve other goals. Failing
this prerequisite, double-counting and other distortions could mar the balancing process,
obscuring the tension between a justice system’s aspiration to achieve accurate fact-finding
and various constraints on this aspiration.
In this paper I shall confine my remarks to only those contextual factors that lead
seekers of cognitively optimal strategies in different directions, prompting them to confront
distinct problems. They can induce cognitive scientists, intent on maximizing the fact-
finding accuracy of real-life procedures, to forsake what to them seem ideal arrangements,
and concentrate instead on the improvement of those that have been accepted by an
adjudicative system. If, for whatever reason, a system mandates the use of live testimony
(for example), a realistically minded scientist would take this form of testimony as given,
and devote himself to minimizing its drawbacks, even if it appears to him that transcripts
of witness testimony would provide a more reliable basis for adjudication.
When lawyers discuss contextual factors of this genre, their professional bias leads
them naturally to focus on matters internal to legal culture. The varying apparatus of justice,
procedural design and the aims of legal process receive the lion’s share of attention, while
factors related to the broader cultural context recede into the background. I shall begin
by taking the lawyers’ path, and examine factors internal to legal culture first, confining
myself to those that can be discerned in Western procedural systems. It is only thereafter
that I shall succumb to the charm of exotica, confront the diffusive clouds haunting the
concept of general culture, and venture a few remarks on factors of importance to the
choice of fact-finding practices in radically different societies.
2 The analysis of truly bivalent factors is complicated by the widespread tendency to exaggerate the importance
of truth-finding considerations in institutions and doctrines that are primarily of humanistic inspiration. The
rejection of coerced confessions is again a good example. It is not really true, albeit often stated, that coerced
confessions are without probative value. A confession of murder, for example, can lead to the discovery of
the victim’s corpse, and many other confessions can also be confirmed by subsequent evidence. The primary
and most important reasons for the rejection of coercive interrogation methods are humanistic concerns. The
exaggeration of truth-finding components of the ban may largely be an attempt to exert a positive influence on
law-enforcement agencies. They may, in fact, be more hospitable to arguments concerning the prevention of
factual error than arguments extolling the dignity of the individual, or similar values. See DAMA ŠKA, M. 1998
Truth in adjudication. Hastings L. J., 49, 306–307.
EPISTEMOLOGY AND LEGAL REGULATION OF PROOF 119

2. The machinery of justice

Turning to contextual factors internal to legal culture, let us first consider those that
relate to the varying features of the machinery of justice, including the varying profile
of decision-makers. Probably the most frequently asked question in this connection is
whether professional and lay judges approach decision-making in the same way. If this
is not the case, then optimal fact-finding arrangements for these two types of adjudicators
need not be identical. Despite scant empirical evidence on this subject, it seems plausible
to expect that subtly different approaches to decision-making do in fact exist. Suffice it to
invoke the different impact of routinized and non-routinized activity on cognitive agents.
In a felicitous phrase, the defining characteristic of a profession has been said to be the
tendency of its members to treat as routine what to others is a crisis.3 The more a person
is involved in the business of adjudicating, the more case-hardened she becomes: matters
to be decided appear to her as mere representatives of general classes, and she gradually
begins to approach fact-finding as a relatively dispassionate performance of a routine task.
Occasional decision-makers, on the other hand, are not subject to this attitudinal change:
they retain the morning freshness of the capacity to perceive each case as a unique human
drama. These diverging attitudes of professional and lay judges, if indeed they exist,
could have a bearing on the choice of cognitively optimal fact-finding arrangements. Lay
people may require different, or differently structured, evidence than their professional
counterparts. For criminal cases, there is, in fact, some empirical evidence that the former
need more incriminating evidence for conviction than the latter.4
Another factor related to the composition of the court is less frequently observed,
although it is also of importance for the choice of optimal fact-finding arrangements. It
involves the contrast between decision-making by a single judge and by a panel of judges.
Whether they are lay or professional is largely irrelevant. The contrast is important because
individual and social learning processes are not identical: decision-making in the quiet of
internal soliloquy and amidst the clamor of contending voices do not raise the same issues.
In a collective setting, special regulation is needed for group deliberations, a regulation
that should be based on a variety of sui generis considerations, including matters such as
disparate individual and group proclivities to risk. It is also possible that psychological
processes of individual belief-formation are not exactly alike in the situation where a
person decides alone, and in the situation when she decides as a member of a small group
of adjudicators. In the latter setting, the tension between intuitively and argumentatively
defensible positions might be more pronounced: bringing feeling and knowledge into
concert could be more difficult. It is symptomatic that actual (as opposed to proclaimed)
standards for decision-making diverge in individual and collective environments. Standards
addressed to group decision-makers tend to be more external, or inter-subjective, than
standards addressed to individual adjudicators.5
The contrast between unitary and divided courts also has an influence on the choice
of cognitively optimal fact-finding arrangements. In the paradigmatic common law court,
3 See H UGHES , E. 1953 Men and Their Work, Glencoe, IL, p. 84.
4 See K ALVEN , H. & Z EISEL , H. 1966 The American Jury, Boston, MA, pp. 182–190.
5 Many differences between individual and social epistemology have been explored with great insight in
G OLDMAN , A. 1986 Epistemology and Cognition, Cambridge, MA and 1999 Knowledge in the Social World,
Oxford.
120 M . DAMA S̆KA

fact-finding tasks are divided between judge and jury, and this division creates problems
that have no counterpart in unitary court environments. The dilemma arises, for example,
whether it is more conducive to accurate factual results to have the judge eliminate from
jury consideration evidence with a potential for overvaluation, or whether is it better to
admit such evidence, and require him only to alert the jury to the evidence’s potentially
misleading character.

3. The design of the legal process


The variation in the overall design of the legal process is another factor with an impact on
epistemological questions. Most prominent is the familiar, albeit differently articulated,
opposition between the adversarial and the non-adversarial model. In the fact-finding
sphere, this opposition is usually expressed by juxtaposing two fixed procedural structures:
in one structure, the collection and development of evidence are in the hands of the
parties, and in the other (non-adversarial) these tasks are an official responsibility. The
juxtaposition implies a variation in the adjudicator’s stance. In the officially dominated
model, the adjudicator is an active searcher for the truth, whereas in the model dominated
by the parties, he assumes a passive posture. It is best to imagine these two contrary
procedural structures as termini of a continuum, with real-life procedures as hybrid
mixtures gravitating toward one or the other terminus, and passing at a certain point
from the adversarial into the non-adversarial zone.6 Which of these two structures is more
likely to generate accurate factual outcomes is a hotly debated and unresolved empirical
question—a great challenge to cognitive scientists. But we need not speculate on the
subject. It is enough for present purposes to illustrate how the adversarial setting and its
antipode generate distinct cognitive problems.
Where the parties play a large role in fact-finding, it becomes important to develop
proper incentives to counteract, or minimize, their temptation to engage in truth-distorting
behaviour. It is unrealistic to expect that their pursuit of self-interest will regularly result
in desirable factual outcomes: litigants should not be equated with self-interested profit
seekers in markets, who can be led by an invisible hand to produce overall benefits. As a
result, practices such as the failure of a party to disclose information to her opponent, or
her inclination to use cognitively inferior but tactically useful evidence, become objects of
legitimate concern.7 The litigants’ ways of preparing their witnesses for in-court testimony
can also be troublesome. It is normal for them (or their counsel) to ask question that suggest
answers favourable to their cause. But as psychologists have noted, such queries have a
truth-endangering potential: they may distort memory images.8 Nor can those interested
in the accuracy-generating capacity of the adversarial system ignore the possibility that
6 I have attempted to locate this point by distinguishing transformative from non-transformative reforms of
continental criminal procedure. See DAMA ŠKA , M. 2001 Models of Criminal Procedure, (Collected Papers of
Zagreb Law School, vol. 51), pp. 477, 485–487.
7 The rejection of probative information may in some situations be warranted to induce the litigants to present
the best evidence available. See NANCE , D. 1991 Missing evidence, Cardozo L. Rev., 13, 831, 836.
8 Compare L OTFUS , E., M ILLER , D & B URNS , H. 1978 Semantic integration of verbal information into
a visual memory. J. Experimental Psychology: Human Learning and Memory, 4, 19–31. I leave aside the
controversial question whether assigning a role to witnesses can breed bias in them, making them feel like
members of the team assembled by the party calling them to the stand.
EPISTEMOLOGY AND LEGAL REGULATION OF PROOF 121

interviews of forensic adversaries with prospective witnesses may turn into a dry-run for
trial and produce contrived testimony. The adjudicators’ passive posture is also not without
its problems from the epistemic point of view. While this posture certainly promotes
neutrality, it can negatively affect the search for the truth. People have disparate learning
needs about which outsiders can only make more or less educated guesses. As in their
ordinary affairs, adjudicators are likely to aspire to an active part in obtaining knowledge
on which their decisions turn.
Officially dominated fact-finding processes have, of course, their own truth-
endangering potential. Proactive adjudicators require advance knowledge of a case—as
well as the roles of witnesses in them—in order to be effective as interrogators. But
from the epistemic perspective the decision-makers’ advance knowledge is a serious
shortcoming. It leads them early on to form hypotheses about what happened, and makes
them more receptive to information conforming to their tentative hypotheses than to
information departing from them. Aside from the danger of this ‘sampling error’, a serious
challenge to officially dominated systems is the development of adequate institutional
incentives against the powerful drive of partisan self-interest to unearth and develop
evidence. In sum then, party- and officially dominated fact-finding styles have different
epistemic weaknesses, and efforts to improve their fact-finding accuracy must necessarily
encounter disparate problems. What is truly intriguing about both styles is not how perfect
or imperfect they are, but why they operate tolerably well, despite numerous departures
from cognitively optimal arrangements.
Can a superior fact-finding system be created by a suitable mixture of officially
and party- dominated elements? International criminal tribunals and several jurisdictions
in the civil-law tradition have lately begun to experiment with an amalgam in which
the development of evidence is the primary responsibility of the parties, but decision-
makers are empowered to intervene in the development of evidence.9 Along similar lines,
some common-law jurisdictions are testing schemes in which jurors are permitted to ask
questions.10 Unfortunately, as demonstrated by the experience with amalgams created so
far, it is difficult to find a virtuous equilibrium between officially and party-dominated fact-
finding practices. In their natural habitat, each set of practices is part of a larger procedural
whole, with its own internal coherence, layers of motivational horizons, and ingrained
habits of principal actors. Creating a successful mixture is not like shopping in a boutique
of detachable procedural forms, in which one is free to purchase some and reject others.
An example of this melancholy fact is the attempt in some common-law jurisdictions
to activate jurors.11 This reform can be an improvement over presently prevailing practice
only on condition that the involvement of jurors in the development of evidence is kept
within narrow bounds. A more encompassing participation can play havoc with incentives
9 The movement for reform in civil law jurisdictions was pioneered by the 1988 Italian Code of Criminal
Procedure. See G RANDE , E. 2000 Italian criminal justice: borrowing and resistance. Am. J. Comp L., 28, 227–
260. On the procedural hybrid developed in international criminal justice, see O RIE , A. 2002 Accusatorial
and inquisitorial approach in international criminal proceedings prior to the Establishment of the ICC and in
proceedings before the ICC. (Cassesse et al. eds), The Rome Statute of the International Criminal Court: A
Commentary, Vol. 2, Oxford, p. 95.
10 See e.g. S CHWARZER , W. 1990 Reforming jury trials. U. Chicago L. Forum, 119, 139.
11 On the question of activating the judge, see DAMA S̆KA , M. 1997 The uncertain fate of evidentiary
transplants: Anglo-American and Continental experiments. Am. J. Comp. L., 55, 839, 849.
122 M . DAMA S̆KA

that inhere in party-controlled fact-finding processes. They generate a bi-polar tension field
in which there is little room for a third actor. Why would litigants, or their counsel, invest
time and money in preparing the scenario of their evidentiary cases, when a juror’s single
question can spoil their carefully drawn plans on how to present testimony in an effective
way? Even with prior knowledge of the case, activated jurors can easily become ‘uninvited
guests to a party’12 —blundering intruders in the interaction of the parties. All this is not to
say that the search for a successful amalgam is futile. On the contrary, it is a great challenge
for procedural architects and cognitive scientists. A satisfying hybrid can someday emerge,
most likely from experiences provided by the practice of those tribunals in which judges
and lawyers from different legal traditions interact. What is needed, however, is greater
caution than that displayed so far by would-be reformers. It should not be forgotten that a
hybrid can be created that produces less satisfactory outcomes than its component parts in
their unadulterated form. As in ordinary life, so in the sphere of justice, there exist many
undesirable middle positions. One can deprive a person of solitude without providing him
real company.

4. The objectives of the legal process

Few would be prepared to deny that the final aim of the legal process has a bearing on the
shape of fact-finding practices. But while the cultivation of truth values remains important
for all adjudication, there is very little that can be bracketed out as an objective cutting
across the whole spectrum of legal proceedings in the Western world. Contrary to what is
often assumed, even their instrumental function is not constant: not all proceedings have
served, or serve, as a vehicle for the application of substantive law to the same degree. Only
in some cases can adjudication plausibly be imagined as the application of predetermined
norms to a constellation of facts.13 And even where this is possible, the aims of real-life
proceedings remain unstable, oscillating between conflict-resolution as the paramount goal
and the administratively suffused urge to implement specific state policies.
In the face of this variety of goals, it seems unlikely that a single fact-finding style can
be optimal in all legal proceedings. Consider a lawsuit springing from a private dispute
whose resolution imposes no negative externalities on third parties, or on society. Since
issues of public policy (other than that of conflict resolution) are in this case absent, courts
in most Western jurisdictions are prepared to give judgment on facts agreed by the litigants.
The conduct or event leading to litigation is seldom independently examined, even if the
adjudicators are sceptical about the veracity of stipulated facts. Ultimately, truth is valued
12 The phrase was used by Judge Patricia Wald in connection with her experience in an international criminal
tribunal whose rules permit judges to intervene in the partisan presentation of evidence. WALD , P. 2001 The
international tribunal for the former Yugoslavia comes of age. Wash. U. J. of Law & Pol., 5, 87, 90–91.
13 Some proceedings acquire a law-making intensity to such a degree that they begin to compete seriously
with the law-applying function. An example are American civil law suits in the public interest, and proceedings
in which the constitutionality of a prima facie applicable law is challenged. It is true that fact-finding
accuracy remains pertinent even in these proceedings. Decision-makers, even when they engage in interstitial
jurisgenerative activity, wish to know whether facts exist that prompted them to legislate. Cf. T ILLERS , P. 1988
The Value of Evidence in Law. No. Ire. Leg. Q., 39, 167. Nevertheless, their impulse to shape a desirable norm can
be so strong that the fact of the case that raised the ‘legislative’ issue tend to be neglected. A concrete constellation
of facts in this case may turn into the mere pretext for adjudicative lawmaking.
EPISTEMOLOGY AND LEGAL REGULATION OF PROOF 123

only to the degree allowed by the over-arching conflict-resolving objective of the lawsuit.14
Can this attitude affect the selection of optimal fact-finding arrangements? A positive
answer is suggested by the possibility that a fact-finding practice, desirable because of
its truth generating properties, could become counter-productive in lawsuits of this genre.
The practice’s potential for vigorous probing, while favorable to uncovering the true facts,
could intensify rather than absorb the underlying controversy. Public exposure of true facts
can in some situations revive a dispute that was losing steam.
Consider also that optimal fact-finding methods need not be identical in lawsuits
involving disputes over a right and disputes calling for the elucidation of preconditions for
the application of some state policy. Matters to be determined in the latter type of lawsuits
cannot easily be reduced to the juxtaposition of two contrary hypotheses. The issue of
defendant’s guilt, for example, is amenable to this polarization, but the question of his
optimal sentence is not. Facts bearing on the desirability of legislative changes (‘legislative
facts’) also resist polarization.15 This suggests the possibility that the organization of
the fact-finding process in the form of two contrary cases is not equally suitable across
the whole range of legal proceedings. It is telling in this regard that even common-law
jurisdictions in some cases relax the bi-polarity of proof-taking practices.16

5. The influence of political factors


Let us move now from factors internal to legal culture to those from the political sphere.
In the discourse about connections between political factors and fact-finding practices,
the role of political ideology commands the greatest attention. Numerous writers have
contended that fact-finding arrangements are sensitive to shifts in prevailing ideology,
especially to oscillations between individualistic and collectivistic, classically liberal and
authoritarian orientations. Usually emphasized is the influence of these factors on the way
in which truth values are balanced against other values and needs of a procedural system.
Liberal governments, for example, are found to be more willing to protect individuals
against the state than authoritarian regimes, even when the protective impulse complicates
the elucidation of truth.17 We shall leave this influence of political ideology to one
side, because its impact on fact-finding arrangements overlaps with the impact of the
opposition between party- and officially controlled proceedings. A government whose
principal role is to provide an unobtrusive framework for private activities is more ready
to entrust adjudicative fact-finding to litigants than an interventionist government with an
encompassing policy-implementing agenda.
Less frequently noticed are connections between the structure of the governmental
apparatus and fact-finding practices. A good entree into the study of these connections
14 I shall later consider this issue in legal cultures where conflict-resolution is divorced from the emphasis upon
conduct, and where forensic disputes involve matters other than the settlement of conflicting claims of individual
rights.
15 Along similar lines, Lon Fuller has tried to distinguish between ‘bipolar’ and ‘polycentric’ issues. See
F ULLER , L. 1978 The forms and limits of adjudication. Harv. L. Rev., 92, 353.
16 Public interest litigation, for example, often involves so many parties and amici curiae that it begins to
resemble a ‘mini-legislative’ body.
17 In the comparative context, this theme has most notably been developed by C APPELLETTI , M. 1970
Processo e Ideologie, Bologna, pp. 11–20. See also G RIFFITHS , J. 1970 Ideology and criminal procedure.
Yale L. J., 79, 359.
124 M . DAMA S̆KA

is to stylize two different attitudes toward authority. They are useful, inter alia, for
understanding certain aspects of the discrepant Anglo-American and continental European
fact-finding styles. For a variety of reasons, continental European societies developed a
hierarchical tradition of authority that has manifested itself in a variety of areas, including
the administration of justice.18 In this latter area, hierarchical authority has begotten a
multi-level legal process that unfolds before several echelons of officials. The Anglo-
American tradition early on manifested antipathy to concentrated state power, and a
preference for its fragmentation, or horizontal distribution. The legal process congenial
to this distribution normally took place before a single level of decision-makers, who were
themselves ‘fragmented’ into two separate bodies—judge and jury.
Multi-level and single-level procedures generate different fact-finding practices. In
the multi-level process, written documentation of prior official activity is an essential
prerequisite for its operation: the traces of what transpired at the lower level must be
preserved for subsequent superior audits. Records of prior activity thus become the
most important source of information. The legal process unfolds in temporally discrete
installments, with the file of the case providing the necessary connection or lifeline between
them. By contrast, the single-level procedure does not depend on documents of prior
official action to integrate its segments into a meaningful whole. Oral communication and
live testimony compete with and may overshadow written evidence. Nor must proceedings
in this setting assume an episodic character: they can be organized as a temporally
continuous event.
Considering these differences, it is easy to understand why efforts to improve the
fact-finding accuracy of multi- and single-level proceedings face disparate problems.
In the hierarchical environment, the most salient task is to maximize the accuracy of
documentation, and minimize the shortcomings of the episodic style of decision-making. In
its antipode, the most urgent task is to reduce the potential drawbacks of decision-making
under the impact of volatile oral testimony, presented in the course of a single forensic
episode.19
The unequal distance of hierarchical and non-hierarchical adjudicators from original
sources of information generates another, more subtle discrepancy. In hierarchical systems,
adjudicators are shielded from intensive personal interactions involved in developing
testimony: the records of prior activities on which they rely filter many of life’s
complexities to which their confreres in non-hierarchical systems are regularly exposed.
The more remote decision-makers are from the fullness of life, or from ‘thick’ reality, the
easier it is for them to conceive their function as to establish isolated facts which are legally
germane in a case sub judice. The capacity to maintain this narrow focus is especially
pronounced in decision-makers at higher echelons of authority. Their elevated position
makes them feel impelled to assure cross-case consistency with decision-making at lower
levels—a supervisory task that can be realized only by reducing the number of relevant
variables. Non-hierarchical adjudicators, on the other hand, who are closer to messy social
reality, and exposed to more diffuse factual constellation, find it harder to reduce the facts of
18 On the influence these two traditions have exerted on criminal punishments, see W HITMAN , J. Q. 2003
Harsh Justice, passim, Oxford, pp. 206-207.
19 I have traced further affinities of ‘hierarchically’ and ‘coordinately’ organized authority and procedural
arrangements in my book DAMA S̆KA , M. 1986 Faces of Justice and State Authority, New Haven, pp. 47–56.
EPISTEMOLOGY AND LEGAL REGULATION OF PROOF 125

cases to their legally relevant shadows. Less concerned with consistency within the system,
they acquire a taste for the concrete and the particular. If the sharp focus of hierarchical
officials on legally relevant facts can be likened to the stoop of a hawk, the attitude of
non-hierarchical is more like the flight of a bumblebee.
These subtle differences in the adjudicative temperament produce discrepancies in the
probandum—that is, facts that are subject to proof in hierarchical and non-hierarchical
systems. The factual foundations of hierarchical decisions are more distant from the
‘thickness’ of life, closely edited, as it were, to fit the artificial world of the legally
material. Adjudication can in this setting be approximated with some plausibility to the
enterprise of joining an empirical situation to a jural principle. The factual foundations
of non-hierarchical decisions, on the other hand, remain closer to social reality in which
the empirical and the evaluative, the factual and the legal, mesh. The search for the facts
and the quest for the law can thus be separated less readily in a non-hierarchical than in a
hierarchically organized apparatus of justice. Other things remaining equal, then, it makes
more sense in the latter than in the former to consider optimal fact-finding methods apart
from the best methods for the resolution of legal issues. In other words, there is more room
in the latter than in the former for an independent study of the accuracy-generating capacity
of procedural systems.

6. The influence of general cultural context


The extent to which general culture, aside from its legal and political aspects, can
influence fact-finding practices is subject to controversy in several disciplines. Some
anthropologists, whose interests extend to radically different societies, find this influence
so strong as to make the search for the truth in different cultural milieus discontinuous
and incommensurable. Differing cultures, they maintain, are enclosed in impenetrable
epistemic bubbles: people can be prisoners of their particular way of being in the world,
unreflectively acting out their cultural code. Others believe in a pan-human capacity to
confront fact-finding tasks with simple practicality, so that reasoning about the validity
of proof is not thoroughly incommensurable across cultural divides. Cognitive universals,
they claim, can be identified.20 At least so far as adjudication is concerned, an intermediate
position between these two views—but closer to the second—seems most appropriate:
interacting in complicated ways, both nature and culture play a role in shaping fact-finding
practices.
The sensitivity of adjudicative fact-finding to cultural context can best be thrown
into relief by observing the most conspicuous means of proof in societies that hold
radically different views of how the world works. Where the world view posits an ongoing
penetration of everyday experience by sacred forces, methods such as trials by ordeal
are quintessential instruments for ascertaining the truth. The air breathed by members
of these societies vibrates with the tonality of magical imaginings: the belief prevails
20 For the thesis that different cultures breed different epistemologies, see S AHLINS , M. 1981 Historical
Metaphors and Mythical Realities, Ann Arbor, MI; O BEYESEKERE , G. 1990 The Work of Culture: Symbolic
Transformation in Psychoanalysis and Anthropology, Chicago; takes a contrary position. In an influential article
a thoughtful lawyer has more recently argued that there exist ways of entering culturally distant worlds: bridges
can be built to traverse the chasm between cultures; dominant beliefs and sentiments can be ‘excavated’. See
E WALD , W. 1891 Comparative jurisprudence: what was it like to try a rat? U. Pa. L. Rev., 143, 1891, 1941–1942.
126 M . DAMA S̆KA

that supernatural forces, ever present in this world, can be induced to intervene in the
legal process and dispel nagging uncertainties. But where the continuity between the
human world and the supernatural is broken, and transcendent religion takes the place
of magic, the routine intervention of sacred forces in human affairs ceases to be part of
the societal belief system.21 Ordeals fall from grace, and are replaced by devices such as
oaths, predicated on the belief that divinity, unwilling to involve itself in quotidian life, will
intervene and punish perjurers in the hereafter. So long as this belief persists, oath-taking
can indeed be effective as a verity-inducing device. With the still further separation of the
sacred from the profane, however, or with the complete loss of belief in the former, reliance
on the testimony of witnesses becomes the centrepiece of proof technology. Fact-finding
inquiries are now made mainly by testing the credibility of persons who supply information
to the adjudicator, and the probative value of their information. Deus absconditus, the role
of the oath recedes in the background, or completely disappears. In our own time, science
and technology have sucked almost all numinousness out of the world. As they continue
to penetrate political and civil society, an ever increasing number of facts of importance to
the legal process is established by the operation of sophisticated technical instruments, and
by the use of experts as interpreters of their ‘silent testimony’. Another shift in dominant
means of proof may thus be in the making, of which we could be as unaware as people in
early stages of prior dramatic changes in fact-finding technology. Or, perhaps, we close our
eyes to symptoms of the shift because of the challenges which further advances of science
and technology might pose for the operation of a democratic state. Can it properly function
if its citizenry increasingly depends on knowledge available only to a tiny group, whose
interest may represent only a narrow sector of society?22
But we need not dwell on radically different cultures to realize how sensitive fact-
finding is to cultural context. It is carrying coal to Newcastle to suggest that our
adjudicators, in assessing the probative force of testimonial messages and the credibility of
their carriers, draw on inventories of social and personal experience, available stereotypes,
the fabric of inherited beliefs, and similar culturally related factors.23 Even the manner in
which shared means of proof are employed in similar cultures can be affected by cultural
factors. Confrontational and aggressive methods of developing testimonial evidence, for
example, appear less desirable in societies in which social harmony is highly prized, than
in those in which the virtues of harmony are less elevated on the totem pole of values. The
lesser desirability of contentious methods in the former is attributable, at least in part, to
epistemic arguments.24
21 See B ROWN , P. 1975 Society and the supernatural, Daedalus, Spring, pp. 133, 140. For a useful discussion
of the relationship between magic and religion, see M ALINOWSKI , B. 1948 Magic, Science and Religion, Garden
City, NY.
22 Whether the sketched shifts in proof technology represent a form of progressivist evolutionism, in which
lower and simpler forms beget higher ones, is an issue of vertiginous complexity on which I cannot take a position.
23 Consider an example involving the evaluation of demeanour evidence. Central American peasants,
interacting with a person in authority, do not look into her eyes. In their culture, eye-contact with such a person is
viewed as a sign of defiance or lack of respect. A fact-finder from another culture could interpret this behaviour
as an indication of falsity, not respect.
24 It is believed, for example, that a witness who is subject to hostile cross-examination may become less
credible—out of spite, frustration, or some other reason. For a similar example, see G OLDMAN , A. op. cit. supra,
note 5, pp. 147–148.
EPISTEMOLOGY AND LEGAL REGULATION OF PROOF 127

7. Continuities and discontinuities of fact-finding practices

Despite the obvious and strong dependence of fact-finding practices on cultural factors,
discontinuities among these practices are not so sharp, nor contrasts among them so
incommensurable, as to make inter-cultural bridging operations a hopeless, Sisyphian
task. The claim requires considerable substantiation because of the proclivity in some
intellectual circles to emphasize ‘the different’, and dramatize its inscrutability to outsiders.
The discussion here will be limited, however, to the discontinuities between pre-modern
and modern attitudes to adjudicative fact-finding in Western societies. Like denizens of
the ‘triste tropique’, medieval Westerners are now often imagined as having been so
thoroughly affected by their peculiar mentality that their fact-finding practices cannot
meaningfully be related to ours.
It should be noted at the outset that some differences in Western fact-finding
arrangements that are commonly attributed to epistemic variation have more to do with
different foci of concern in adjudication. For reasons that need not detain us here, the fact-
finding apparatus of modern procedural systems in the West is geared to inquiries into
discrete conduct, or sequences of events, with the view of deciding a conflict over rights.
But for long periods of Western history—and in some non-Western societies to the present
day—isolated conduct was only a triggering event for proceedings whose main purpose
was to re-establish social harmony disrupted by the event.25 Loosely defied ‘wrongs’ had
to be ‘righted’, and in that process the character of a person, or her standing in society,
assumed decisive importance. Borrowing Mao’s metaphor, the adjudicators’ eye was on
the sea rather than on a wave. This orientation resulted in a mode of adjudication in which
factual and legal issues could not be separated at all. To the extent that it makes sense in
this context to single out fact-finding for separate examination at all, one should bear in
mind that cognitive agents in these societies were sensitized to a much broader and more
diffuse constellation of facts than their counterparts in contemporary Western systems.
More than discrepant perceptions of cognitive agents, it is the discrepant range of facts
they considered that accounts for many reported differences.
In addition to perception, it is also easy to exaggerate the extent to which fact-
finding arrangements of medieval societies were based on reasoning processes different
from our own. One may be tempted to think, for example, that pragmatic approaches to
these arrangements were absent from societies whose world views were permeated by
firmly held religious beliefs. Available historical sources reveal, however, that pragmatic
approaches, no matter how bizarre they appear to us, were not unknown in the West as
early as the High Middle Ages. A piquant example are justifications for judicial torture by
early Roman-canon jurists. As religion lay so close below the surface of thirteenth century
institutions, it provided the foundation for the following argument: if a confession can save
a sinning defendant from eternal torments in hell, is it not appropriate to immerse him for a
while in the absolving sea of pain? Within the framework of the then existing belief system,
this argument represents a primitive form of cost-benefit analysis, no less rational than the
seventeenth century Pascal’s wager.26
25 For an interesting discussion, see S HOEMAKER , K. B. 1999 Criminal procedure in medieval European law,
Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, 116, 174.
26 A related example are contemporaneous discussions of legal authorities on whether judicial torture is
superior to the use of oath-helpers. Whereas perjurers are destined for hell, it was argued, confessing criminals
128 M . DAMA S̆KA

Or, consider the example of trials by ordeal, which many regard as completely
discontinuous with our present ways of resolving factual uncertainties. Those who share
this view overlook that in medieval society the prospect of impending divine intervention
generated powerful psychological pressure on the litigants. Those who knew they were
wrong felt impelled to desist from pursuing a claim, or to confess. Even if they failed to
make any admissions, the solemn preparation for ordeals produced agony in the guilty,
and serenity in the innocent. The resulting demeanour evidence was then assessed by the
ordeal’s administrators, influencing the calibration of its severity, or the interpretation of
its result.27 Nor should it be forgotten that appeals to divinity were employed only when
truth-revealing methods, closer to our understanding of rational inquiry, failed to resolve
persistent uncertainties. In other words, divine intervention was treated as a means of last
resort for hard cases, that is, in situations in which even our current responses to insufficient
knowledge are not without their epistemic difficulties. Instead of addressing divinity, we
now appeal to scientific expertise. But how can our fact-finders, unsure of basic concepts of
a discipline, penetrate its complexities, let alone arbitrate disputes between its high priests?
Reliance on the demeanour of experts or on their credentials is cognitively suspect, and
comes close to leaving the outcome of difficult cases to chance.28
Discontinuities in the understanding of probability are also sometimes exaggerated.
Some scholars claim that, in the early modern period, people thought a proposition
probable if it met with the approval of the wise and the honest. Alien to them, we are
told, was reasoning from the empirical frequencies on which our present understanding
of probability rests. On the telling of these scholars, then, early modern invocations of
probability were but a prelude to the invocation of a rich brew of authority.29 This view is in
some respects false, and in others no more than a caricature of pre-modern thinking. While
it is true that arguments ex autoritate occupied pride of place in the schemes of scholastic
philosophers, they were not blind to the frequencies with which events occur. Thomas
Aquinas, the most influential philosopher of the High Middle Ages, clearly distinguished
between propositions supported by authoritative confirmation, and propositions supported
by the fact that they happen in the majority of cases (probabiliter et ut in pluribus).30
What separated his understanding of frequency from our own is mainly the missing link
to a statistical basis. Nor is the Angelic Doctor’s distinction between two types of support

can avoid this fate. It is therefore better to subject a ‘sinner’ to torments than to tempt oath-helpers to ‘lose their
soul’ by perjuring themselves. On the fringes of Western culture, in countries such as Hungary, this argument was
used as late as the seventeenth century. See K ITONICH , J. 1619 Directio Methodica Processus Consueudinarii
Inclyti Regni Hungariae, Cap. 6, qu.10, Nagyszombat.
27 See C OLMAN , R. V. 1974 Reason and unreason in early medieval law. J. Interdisc. Hist., 4, 571, 589.
28 Which does not mean that reliance on means that resemble a coin’s toss is in all situations wrong. As Kant
argued in his critique of ‘pure’ reason, the first task of reason is to recognize its own limitations, and draw the
boundaries within which it may operate. See E LSTER , J. 1989 Solomonic Judgments: Studies in the Limitations
of Rationality, p. 17. For a penetrating discussion of cognitive problems raised by the employment of scientific
experts, see B REWER , S. 1998 Scientific testimony and intellectual due process. Yale L. J., 107, 1535, 1616–1625.
29 See e.g. H ACKING , I. 1975 The Emergence of Probability, London, pp. 22–23, 41; C OHEN , L. J. 1983 The
freedom of proof. (W. Twining ed.), Facts in Law.
30 See e.g. S UMMA T HEOLOGIAE, Pars. I, Qu. 115, art. 6 (Ottawa, 1942). For a good discussion of this proto-
statistical understanding of probability, see B YRNE , E. F. 1968 Probability and Opinion, The Hague, pp. 192,
222, 302. The thirteenth century Thomistic understanding of probability as frequency has been widely adopted by
lawyers. It can be found in the voluminous and celebrated book by M ENOCHIOUS , I. 1670 De Praesumptionibus,
Coniecturis, Signis et Indiciis, Tomus I, Lib. I, Qu. 7, no. 36, Geneva.
EPISTEMOLOGY AND LEGAL REGULATION OF PROOF 129

for a proposition without counterparts in modern thought. It flashes up toward the view
many still share that the frequency of events does not equal the degree of belief. It is still
respectable, or is it not, to distinguish between probability as the degree of confirmation,
and probability as the relative frequency of events?31
More interesting for our purposes than the speculations of scholastic philosophers are
views of twelfth and thirteenth century founders of the Roman-canon proof system.32 It is
a matter of historical record that sensory experience was in their opinion the surest road to
the truth, more valuable than rhetorical arguments and reliance on authority.33 It is true that
these lawyers developed a maze of rules about the quantity and quality of evidence needed
for fact determinations. But it is a mistake to believe that these rules turned adjudicators
into automatons, who made factual determination on the authority of rules, independently
of their beliefs. Strewn through the advisory opinions (consilia) of the greatest lawyers of
the period are references to cases in which seemingly rigid ‘numerical’ rules of evidence
were relaxed or entirely bypassed.34 Contrary to what is often maintained, in criminal
cases, judges were seldom, if ever, compelled to make positive findings of guilt contrary to
their better judgment.
A related opinion can be encountered that adjudicators began to draw conclusions from
data provided by direct investigation only in the mid-seventeenth century. Before that time,
traces left by an event were not yet a basis of inference. ‘Things did not testify, the world
did not show signs.’35 From the perspective of our scientific age, there is a measure of
truth in this opinion. Traces of past events, routinely utilized at present, remained largely
unobserved; scientific knowledge and instruments capable of expanding our sensory reach
and detecting these traces were still unavailable. But within then-existing limits inferences
from observed sensory data were drawn. Quite unsurprisingly, medieval people did not
fail to realize that ashes indicate fire, or thunder an approaching storm.36 As early as the
thirteenth century, experts (periti) were used to establish whether a wound was mortal,
a marriage consummated, anal tissue broken, and even whether a person was insane.37
31 See C ARNAP, R. 1950 Logical Foundations of Probability, Chicago, IL, pp. 47–50.
32 Faced with practical concern, lawyers of the period were not awed by the authority of scholastic
philosophers and occasionally lampooned philosophical ponderings with gusto. An amusing example is the
lawyers’ disagreement with philosophers over the possibility of proving the negative. (‘That the bridge is not
large is known to donkeys as well as men.’) Compare H ORN , N. 1967 Philosophie in der Jurisprudenz der
Kommentatoren. (Helmut Coing ed.), Ius Commune, Vol. 1, Frankfurt, pp. 104, 138.
33 On the influence of Aristotelian views regarding sensory perception on the founders of the Roman-canon
proof system, see P H . L ÉVY, J. 1939 La Hiérarchie des Preuves dans le Droit Savant du Moyen Age, Paris, pp. 30,
44; H ORN , N. Philosophie in der jurisprudenz der kommentatoren, in op. cit. supra, n. 32. See also DAMA ŠKA ,
M. 1994 Hearsay in cinquecento Italy. Studi in Onore di Vittorio Denti, Vol. 2, pp. 61–63.
34 See U LLMANN , W. 1946 Medieval principles of evidence. L. Q. Rev., 62, pp. 77, 83. One of the greatest
fourteenth century’s authorities on Roman-canon evidence advised judges to ‘follow their own conscience’ in
evaluating conflicting evidence. DE U BALDIS , B. 1590 Consilia, Vol. 4, cons. 455, no. 2, Venice. I have elsewhere
tried to dispel the mistaken belief in the rigidity of the original Roman-canon scheme of proof. DAMA ŠKA , D.
1987 The death of legal torture. Yale L. J., 87, 860.
35 See H ACKING , I. op. cit. supra, note 28, pp. 22–23, 41.
36 The two examples were used by Menochious to illustrate the meaning of traces, or signs. See M ENOCHIOUS
op. cit. supra, n. 30, Tomus I, Lib.I, Qu. 7, no. 42. (‘A sign is whatever is subject to sensory perception and from
which arguments can be drawn).
37 As early as 1209, a decretal (decision) of Pope Innocent III demanded that an expert (peritus) determine
whether a particular blow was the cause of death. The Latin text of this decretal can be found in F LORIAN , E. 1961
Delle Prove Penali 3rd edn, Varese-Milano, p. 520. The thirteenth century’s greatest expert on procedural matters,
130 M . DAMA S̆KA

Demeanour evidence (the blushing of a witness for example) was greatly appreciated,
noted in a special dossier, and used to evaluate the probative value of testimony. Reliance on
traces was crucial in witchcraft prosecutions. As understood by Roman-canon authorities
of the fifteenth century, conviction for crimen magiae required that a contract with the
devil be established, a contract in terms of which a person obtained supernatural powers by
agreeing to have sexual intercourse with the devil. The proof of this contract prompted the
elaboration of numerous rules about outward signs from which imaginary dealings with
the underworld could be inferred.38 Even in the domain of this imaginary crime, the world
did show signs. It is only that the inference from them was tainted by social illusions.

8. The diverse character of facts


The possibility that imaginary facts may be objects of proof in litigation leads to a final
observation. The preceding discussion of factors that influence fact-finding in litigation
has ignored complexities stemming from the multifarious character of facts subject to
proof. Rather than being an invariable mass, they are an omnium gatherum of matters
of unequal accessibility to the cognitive apparatus. Some are self-standing empirical
phenomena in regard to whose existence a member of a tribe from the Amazon rain
forests and a philosopher of post-modern persuasion are capable of reaching agreement.
Most others facts are products of social construction of varying complexity, so that their
accessibility to knowledge inevitably depends on the enveloping cultural context. While
some of them can be severed from value judgments with relative ease, others call for
intricate social evaluations. Most of them lie in the past, but some exist at the time of
inquiry, or constitute predictions of future occurrences. Some relate to the question whether
something happened, others to the question why something happened.
It stands to reason that not all components of this factual potpourri raise the same
cognitive issues. Where the factual problem in a lawsuit is that of predicting the probability
of a future event, for example, decision-making performed on the basis of ‘nude’ statistics
seems to us much more acceptable than in a lawsuit where the factual problem is one
of reconstructing a past event. It thus seems unlikely that a single fact-finding method
could possess the same accuracy-generating capacity—even within a single homogeneous
culture. Identification of a cognitively optimal fact-finding arrangement would be greatly
facilitated if a scale existed in which the facts of various nature could be arranged into an
intelligible whole. Unfortunately, a taxonomy of facts, useful for this purpose, is presently
unavailable. After it emerges, it will become easier to examine cultural dependencies
of fact-finding in greater depth, and apply with greater confidence the insights of other
disciplines to factual inquiries in adjudication.

Guillelmus Durantis, devoted whole passages of his book to the need for reliance on persons with knowledge and
experience: D URANTIS , G. 1612 Durandi Speculum Juris, Liber II, particula II, De Requisitione Consilii, passim,
Francoforti. This encyclopedic work went through some 40 printings down to the late seventeenth century. On
medical expertise in the early Roman-canon procedure, see also A SCHERI , M. 1980 Consilium sapientis, perizia
medica e res judicata. Monumenta Juris Canonici, Vol. 6, Series C: Subsidia, Vatican, pp. 533, 535.
38 Special precautions were required to detect ‘false tears’ in the witch or sorcerer. For a fifteenth
century prosecutorial handbook dealing with such signs, see I NSTITORIS , H. & S PRENGER , J. 1971 Malleus
Malificarum, Part 3, question 15, New York.