[lit-ideas] Re: Can a lawyer be a conceptual analyst?
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Tue, 10 Nov 2015 12:15:49 +0000 (UTC)
All this talk of witness reminds me of what Americans call 'material'
witness -- where 'material' is possibly legalese.>
Or possibly Americanese.
The terminology of "material" is not used in England in this way. All evidence
is subject to a rule of relevance, and so all testimony must be relevant, and
in this sense all witnesses must be "relevant" witnesses and so "material".
In the US, as I understand it from Wiki, a material witness belongs to the set
of witnesses with relevant evidence in the English sense, but it is unclear to
me whether (and, if so, to what extent) the US "material witness" is a subset
of witnesses with relevant evidence. The term material is explained in Wiki as
follows
"An item of evidence is said to be material if it has some logical connection
to a fact of consequence to the outcome of a case. Materiality, along with
probative value, is one of the two characteristics which makes a given item of
evidence relevant.[2]"
This claims to be based on 'Rule 401 of the Federal Rules of Evidence.'
This is not backed up by a cursory look at Rule 401 which avoids the use of
"material". As the Notes to 401 states, "The language is that of California
Evidence Code §210; it has the advantage of avoiding the loosely used and
ambiguous word “material.”"
From an English perspective the Wiki entry is here confused as well as not
being backed up by '401'. In English terms the definition of relevance is the
same as material - "if it has some logical connection to a fact of consequence
to the outcome of a case."
The language of "logical connection" is used in England too but it is something
of a misnomer strictly speaking (belonging in that large category where
"logical" is used beyond its strict "logical" meaning):- for there is no
probative connection between facts as a matter of strict logic alone but only
when we are additionally supplied with copious amounts of background knowledge
of a sort not derivable from strict logic alone [in other words, the expression
"logical connection" is a misnomer that may be a hangover from belief in some
sort of inductive logic]. However, this misnomer may be mostly harmless. In
practice, relevance is not further defined or analysed but is established by
making a judgment as to probative [not "logical"] connection i.e. does it have
sufficient probative effect to be deemed relevant? This cannot be answered by
mere logic and where disputed it is answered after argument.
Be that as it may, the Wiki entry then confuses matters further by stating that
what is material is added to probative value to give relevance. In English
terms what is material is the same as what is relevant and both these notions
are distinct from "probative value", which is about the worth of
relevant/material evidence. These distinctions become important because a
standard kind of decision made by a judge in a criminal trial is weighing
'probative value against prejudicial effect', and this is a very different test
to weighing mere 'relevance' against prejudicial effect.
We can leave this aside and note that the important of material witnesses has
arisen recently in connection with powers of detention. According to Wiki:
"After September 11, 2001, the United States government announced a campaign of
aggressive detention, by whatever means possible, of those potentially involved
in the attacks on the United States.[1] This included the use of the material
witness statute to detain suspects, as opposed to witnesses. Many of those
detained as material witnesses were detained as witnesses to grand jury
proceedings.[2]This caused controversy for several reasons. Primarily, critics
believed that the government's use of the material witness statute to detain
suspects was an evasion of the Fourth Amendment, which provides some
protections to criminal suspects that were seemingly ignored in the arrests of
the material witness detainees post-September 11. Secondarily, legal critics
took issue with the application of the material witness statute to grand jury
proceedings."
The gist of this seems to be that the US Govt sought to use witness-detention
laws to detain suspects. Now that's another kind of 'problem-solving' approach.
DL
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