Some free thoughts on McEvoy's interesting post on "Law and Implicature".
The Criminal Justice Act 2003 includes the concept of"[any] matter stated"
in the 'analysans' of the concept of "hearsay": x is "hearsay" is,
roughly, iff
-- PHILOSOPHICALESE has "iff" (short for 'if and only if'; LEGALESE has
"if, but only if" (cf. Grice on the contrast between "She was poor and she was
honest" and "She was poor but she was honest -- and her parents were the
same/till she met a city fellar/and she lost her honest name") --
x is
(a) a statement "not made in oral evidence in the proceedings"
(b) is used "as evidence of any matter stated".
http://www.legislation.gov.uk/ukpga/2003/44/section/114,
pertaining to "admissibility of hearsay evidence" notes:
(1) In criminal proceedings a statement NOT made in oral evidence
in the proceedings is admissible as
EVIDENCE OF ANY MATTER STATED
if, but only if—
(a) any provision of this Chapter or any other statutory provision makes
it admissible,
(b) any rule of law preserved by section 118 makes it admissible,
(c) all parties to the proceedings agree to it being admissible, or
(d) the court is satisfied that it is in the interests of justice for it
to be admissible.
(2) In deciding whether a statement not made in oral evidence should be
admitted under subsection (1)(d), the court must have regard to the following
factors (and to any others it considers relevant)—
(a) how much probative value the statement has (assuming it to be true) in
relation to a matter in issue in the proceedings, or how valuable it is
for the understanding of other evidence in the case;
(b) what other evidence has been, or can be, given on the matter or
evidence mentioned in paragraph (a);
(c) how important the matter or evidence mentioned in paragraph (a) is in
the context of the case as a whole;
(d) the circumstances in which the statement was made;
(e) how reliable the maker of the statement appears to be;
(f) how reliable the evidence of the making of the statement appears to be;
(g) whether oral evidence of the matter stated can be given and, if not,
why it cannot;
(h) the amount of difficulty involved in challenging the statement;
(i) the extent to which that difficulty would be likely to prejudice the
party facing it.
(3) Nothing in this Chapter affects the exclusion of evidence of a
statement on grounds other than the fact that it is a statement not made in
oral
evidence in the proceedings.
---- So our focus will be on the 'stated' in "any matter stated" used in
the elucidation of the concept of "hearsay".
Is "stated" always philosophicalese, or can it be merely legalese? (We know
'matter' is philosopicalese-cum-legalese).
The combination of Frege's Urteilsstrich, judgement stroke [ | ], and
Inhaltsstrich, content stroke [—], came to be called the assertion sign" -- as
when we say, to use an example by McEvoy:
⊦ Snow is black.
It may be argued that 'to state' is 'to assert'. Grice was careful about
this. Indeed, he wanted to distinguish his 'implicature' from Moore's
entailment (as in "Moore's paradox", "Snow is black, but I don't believe
it").
For Grice, the 'indicative mode', ceteris paribus, EXPRESSES a belief, and
it is associated with 'stating'.
Strawson had made a bit of fuss about Russell (in "On denoting") not
distinguishing between a statement, an utterance of a statement, and the act
of
stating (but we have to grant that Russell was never convinced by
Strawson's criticism, vide: "Mr. Strawson on ordinary language", in Mind).
Now, the legalese -- versus philosophicalese -- we may want to provide a
conceptual analysis for is 'matter stated'. The bibliographical references
are almost endless. They include:
"Hearsay Evidence in Criminal Proceedings", p. 323, J R Spencer: "And
there may, of course, be occasions where what he seeks to prove is that a
matter
stated in the communications is..."
"The Modern Law of Evidence", p. 293, Adrian Keane and Paul McKeown: "The
hearsay statement was nevertheless admissible under an exception
contained
in the Ceylon Evidence Ordinance 1895 ... hearsay is a statement not made
in oral evidence in the proceedings ... "admissible as evidence of ANY
MATTER STATED."
"Blackstone's Criminal Practice", D. Ormerod : "Hearsay and Conduct
Whereas most hearsay statements are made (whether orally or in writing) in
words,
the CJA 2003, s. 115, confirms that a ... evidence in court. PROOF OF THE
TRUTH OF *A* MATTER STATED. Evidence is hearsay under the CJA 2003 ..."
Raeder, Raeder and Crump, "Evidence in a Nutshell", Paul Rothstein,
Myrna
Raeder, David Crump: "For the belief is then THE MATTER STATED and is
also the matter sought to be proved. ... “external matter” (like a car
accident or a shooting), as opposed to an internal or mental matter, the
conclusion this is hearsay is inescapable under the Rule."
"Unlocking Evidence", p. 224, Jay Landa, Mohamed Ramjohn: CHAPTERS
HEARSAY: ADMISSIBILITY IN CRIMINAL CASES. Let us start with the basics.
Hearsay
is defined by ss 114(1), 115(2) and (3) and 134 of the C]A 2003. Section
...
MATTER STATED if one of the four exceptions applies'. Under s ..."
"Murphy on Evidence", p. 241, Richard Glover: "7.1.2.2 Criminal Justice
Act 2003. As we have noted, the common law prohibition on the admission
of
hearsay evidence in ... a statement not made in oral evidence in the
proceedings is admissible as evidence of ANY MATTER STATED if, but only
if."
"Evidence", p. 183, James Griffiths, The City Law School,, Paul
McKeown. "The definition of the hearsay rule in criminal proceedings is
to be
found in the Criminal Justice Act 2003, s 114: (1) In criminal
proceedings a
statement not made in oral evidence in the proceedings is admissible as
evidence of ANY MATTER STATED ..."
"Evidence: Cases, Materials, and Problems", Paul F. Rothstein, Myrna S.
Raeder, David Crump: "We saw that, at least superficially, this is not
hearsay because it was not offered FOR THE TRUTH OF THE MATTER STATED
(i.e., to
show that he is indeed King [592/593]Tut). We also saw, however, that
some
courts (at least under some rules or rulings) ..."
"Evidence: Text & Materials", p. 241, Gregory Durston "... calls been
relevant (something they doubted), they would have been hearsay, as the
only
reason that the prosecution could ... The Commission's suggestions were
enacted by s 115(3) of the CJA 2003, which declares that: 'A MATTER
STATED is
..."
"Federal Register": "The word "statement" means not only an oral or
written expression but also non-verbal conduct of a person intended by
him as a
substitute for words in expressing THE MATTER STATED. Hearsay may not be
recited or otherwise introduced in ..."
And there are more.
****
And it may be worth considering and assessing each occurrence, in order to
provide the best 'conceptual analysis' available under the circumstances.
It could be argued that, as Grice conceives it, 'conceptual analysis' has
ONE guideline: to reconstruct 'ordinary usage' -- he was, after all, an
'ordinary language philosopher', and Oxonian at that ("The Oxford School of
Ordinary Language Philosophy" he sometimes mocked -- "No such thing!"). And
'matter stated' is not a concept of ordinary language.
Consider 'indicative'. Grice is saying that if you state, you use the
'indicative' mode. But Peirce, and the Romans and the Greeks, used
'indicative'
differently (Latin 'indicative' is cognate with Greek 'deixis' and
'deictic'). So an utterance may be "INDICATIVE" of this or that. To use
McEvoy's
examples: in some scenarios, x is indicative (or probative) of the _truth_ of
a proposition; in others it isn't. If Grice uses the dialect of old Brum
as he says, "Snow is black", his accent may be indicative not of the fact
that he believes that snow is white, but of the fact that he comes from Brum
(and that while this may be expressed propositionally, 'Grice comes from
Brum', the way "Snow is white", as uttered by Grice with a Brum accent, does
not quite touch the proposition 'snow is white' or its truth-value.
But the conceptual analysis of this piece of legalese should focus on what
legalese and philosophicalese has for 'stated', as in 'any matter stated'.
So one has to be careful.
In a message dated 12/7/2015 7:22:12 A.M. Eastern Standard Time,
donalmcevoyuk@xxxxxxxxxxx writes in "Law and Implicature": "[Speranza,
calling
himself a Griceian] wants to insist that ‘conceptual analysis’ [‘CA’]
plays a
role, even a vital role, in deciding what form of "hearsay rule" we
adopt.
My case is that CA plays next to no role: when it might look like some
form of CA is playing a role, what is really going is an attempt to solve
problems using W3 contents. Admittedly we can express whatever we decide
about
"hearsay" in terms of "changed definitions of concepts" (just as we can
render all knowledge as a series of conventionalist stratagems). This
means CA
can always be used a framework within which to frame what is being
decided.
But this approach fails to explain WHY we prefer to adopt one definition,
or one series of conventions, as against another."
Not necessarily: CA after all does not refudiate Darwin, and one adopts
the conceptual analyses that have 'evolutionary' value, as it were. I
mean,
one can provide a conceptual analysis of 'phlogiston', but to what
effect?
Grice is more liberal: he says that you can count on him to rally to
defense
of anyone wishing an analysis of ANY concept. "The philosopher does not
have to COMMIT himself to the truth of the conceptual analysis he
provides."
One can analyse erroneous or ill-'conceived' concepts. But in general,
philosophers who are engaged in conceptual analysis care for concepts
that are
believed to have a hold on what I think McEvoy later calls 'the real
world'.
McEvoy: "This explanatory failure is the central weakness of CA-based ‘
conventionalism’ as a philosophy of science (a la Poincare) and it is the
central weakness of CA-based ‘conventionalism’ as a philosophy of law.
The
reality of legal decision-making is rather different to how it might
appear if
we are wedded to CA: we are adopting rules or policies with practical
effects. It is these “real world” effects, assessed in terms of problems
and
their solutions (and not “concepts” except as instruments for framing
problems and solutions), that explains the evolution of the "hearsay
rule"."
If evolution it was. It may be rather hasty, legal positivism being what
it is, to speak of _evolution_ simpliciter here. A legal concept may be
proved adequate at S1 but inadequate at S2 and back to adequate in S3.
(I'm not sure how a Popperian approach deals with the conventional side
to 'legal positivism' of the sort, qua legal philosophy, Hart endorsed.)
The case in point: I don't think for the majority of the K case! ("What
do you think of the new concept of hearsay?" "It sucks," one lord said --
"and hereby I'm definitely NOT endorsing it!").
McEvoy: "As indicated by Zuckerman in his “Introduction to the Law of
Evidence”, the "hearsay rule" is less a single rule and more a compendium
of
disparate but overlapping policies, with its limits the products of
counter-policies. This explains why Cross On Evidence in its many
editions, had to
impose a structure to help clarify different policy-aspects of the rule
[oral vs. documentary hearsay; by words vs. by conduct etc.] that are not
expressed in the standard definition that "hearsay" is
[not just expressed by the mere concept of]
‘any out-of-court statement adduced to prove the truth of its contents’.
McEvoy: "We can take this problem-solving vs. CA dispute right back to
the
origins of the "hearsay rule"."
And we are using 'rule' just because Hart abused the term. As Grice says,
there are rules for games like cricket, and college rules!
McEvoy: "The exact origins of the "hearsay rule" are murky and disputed
but no one seriously suggests that the "hearsay rule" arose as a result
of
someone’s CA."
Well, Grice was proud that his surname is Anglo-Norman, so I _can_
imagine some ancestor of Grice providing some conceptual analysis for some
law
manual, lexicon, or what have you, back in those ancient days of good old
merry old England!
McEvoy:
"[I]nstead the "hearsay rule" emerged as a way of excluding evidence that
was considered, for various reasons, insufficiently helpful or reliable –
and so time-wasting or worse. The problem, as often arises, is that any
attempt to exclude evidence in terms of a general rule will exclude
helpful and
reliable evidence as well as much unhelpful and unreliable evidence. It
will even exclude evidence that may be essential and where commonsense
would
see its exclusion as “absurd” [see Myers v DPP, where the House of Lords
nevertheless refused to create an exception to avoid the “absurd” result
in
that case]."
We are getting close to ONE example of a correct use of 'rule' as when
this Oxford college ruled a dog to be a cat!
McEvoy:
"Therefore the "hearsay rule", like all or nearly all rules, creates
dilemmas from the POV of achieving perfect justice. To address these
dilemmas we
have various options, but these options cannot be determined by CA or
resolved by them. We could abandon the rule: but this could be throwing
out the
baby with the bathwater."
That's why Grice restricted the use of 'rule' to games and Oxford
colleges. You take away the rules of cricket, and it ain't cricket nomore!
(Grice
once asked Warnock if he would make a distinction between "He played
cricket correctly" and "He played cricket properly."
(Grice was opposed to Searle's liberal use of 'rule' -- constitutive vs.
regulative -- in Searle's analysis of conversation, in "Assertions and
aberrations", and I like to see the whole of Grice's "Logic and Conversation"
as
a reponse to Searle on this misuse of 'rule' -- Grice prefers 'procedure'.
On the other hand, a previous generation to Grice of conceptual-analytic
philosophers of ordinary language were wedded to the concept of 'rule' --
vide Oscar Wood in The Aristotelian Society on 'rules' and meaning and use,
and the troubles he gets into!)
McEvoy:
"We could leave everything to the discretion of the judge: but this might
raise uncertainty, inconsistency and also costs (as discretions give rise
to longer arguments in court). We could define exceptions: but their
terms
will also still raise dilemmas. We could use a combination of defined
exceptions and both exclusionary and inclusionary discretions to create
our
model."
I think this is the philosophical policy of R. Hall in his famous
"Excluders", now repr. in Chappell, "Philosophy and ordinary language". Other
keyword may be 'defeater', but I seem to prefer 'excluder'.
McEvoy:
"Whatever we do, there will always be dilemmas or problems even if there
may be better or worse solutions. None of this can be understood properly
in
terms of CA but only in terms of the need to address practical problems
and the advantages and disadvantages of any methods we might use. My post
raised Kearley, which concerns that aspect of the "hearsay rule" that
depends
on drawing a line between what is, and what is not, part of hearsay “
contents”. My impression is that JLS severely underestimates the depth of
problems thrown up by the "hearsay rule", the dilemmas presented and how
these are
not resolvable by CA. If my raffle ticket has a number “0123”, this “0123”
is not true or false as a proposition but may merely identify which
number is on the ticket."
I don't think we, qua conceptual-analytic philosophers, may need to be so
strict. Surely this is linked to the proposition:
i. The raffle ticket bears the number 0123.
But more on this below, because, conceptual-analytic philosophers are
interested in the psychological attitudes related to this or that utterance,
not
'propositions', which are deemed dangerously abstract entities per se.
McEvoy:
"[A]n eyewitness to the number does not later testify to it as hearsay
because there is no truth to its content but merely a fact of its
content."
I thought that the analysis of the K case dismissed all this, where 'all'
is hyperbolic. "Have you got any charley?" PRESUPPOSES that the intended
addressee had a good reason to understand what the utterer making the
question was asking. The idea that there was an 'implied assertion' here
was found
otiose in that the maker or utterer of the question could not possibly be
trying to convince the addressee about the logical possibility that the
addressee had got any charley. The implicature was "Have you got any
charley
AVAILABLE FOR ME NOW?". So, those who opposed the idea of 'implied
assertion' were saying that in most cases, the alleged implied assertion
just
informs the 'basis of the conversation', which is very Griceian in nature.
McEvoy: "If my raffle ticket were identified by a proposition like “Snow
is black” that is also not hearsay where we are relying only on the fact
the
proposition identifies the ticket (as against other objects) and not its
truth."
Point taken. Perhaps we SHOULD examine in further detail the conceptual
link between truth-conditions and implicature. Why does
ii. p v q
LOGICALESE for 'p or q' (Grice's example, "My wife, since you ask, is
either in the garden or in the kitchen") triggers the implicature it does ("I
have no idea as to whether she is in the garden or the kitchen; for all I
know she can be in either, if not both" (The Grices house had a door that
connected the kitchen and the garden, so this is NOT a logical
impossibility).
There is a conceptual link between the truth-conditions of an utterance
and the implicatures one can draw from them. And I grant that the
truth-conditions of
iii. Snow is black.
play no role in the identificatory power of the utterance.
But the connection between 'truth-condition' and 'implicature' -- never
mind "any matter stated" is subtle. Grice's example
iii. He has beautiful handwriting.
iv. He is hopeless as a philosopher.
By uttering (iii) one may implicate (iv). But the truth-conditions of the
"matter stated" in (iii) have only a very weak, indeterminate, cancellable,
link with the truth-conditions of (iv). (The example comes from his "Causal
theory of perception").
McEvoy:
"But what if my air-line ticket says “Flight AB2”? Can we use this to
prove I had a ticket for a certain flight, namely the flight that can be
identified or stated to be “Flight AB2”, without entering the area of
hearsay?
Now we are using “Flight AB2” for a purpose beyond identifying the
ticket
itself (as against, say, other tickets). We are using the ticket as part
of
a wider story where the ticket is evidence that I had a ticket for a
certain flight – but (arguably) this can only be valid evidentially if “
Flight
AB2” on the ticket is taken as akin to the proposition"
iv. This ticket carries an entitlement for its bearer to board the flight
designated as ‘Flight AB2’.
Right.
McEvoy:
"As that express proposition would be hearsay, we may argue using “Flight
AB2” to prove entitlement to board that flight is also using “Flight AB2”
for a hearsay purpose, and that it would be disingenuous to pretend we
are
relying only on the fact “Flight AB2” is on the ticket when the purpose
is
to validate a wider story so that “Flight AB2” functions as
propositional
content and not just an identifying mark. It being “disingenuous” may
explain why the House of Lords in Myers v DPP effectively overruled the
Court
of Appeal in the airline ticket case, Rice]."
Good point. McEvoy goes on:
"The Kearley approach puts the prosecution on the horns of a dilemma.
Either (a) the queries merely reflect the state of mind of their sources
or
their sources’ personal opinion or belief, in which case they are
irrelevant,
or (b) if they are relevant it is only because they are being used to
prove
the truth of a proposition like
v. K's is a drug dealing den.
that would be hearsay if it were expressly stated."
And lawyers and philosophers were debating whether the opposite view would
be to hold that
vi. Have you got any charley?
carries any 'implied assertion', where apparently the expression contains
two misuses: of the adjective 'implied' and of the noun 'assertion'! --
while "any matter stated" possibly carries no misuses with it.
McEvoy:
"Thus Kearley finds the queries are either (a) irrelevant or (b) hearsay
because they are adduced to prove a proposition that would be hearsay if
expressly stated and they are not relevant short of proving that
proposition.
Though not a perfect outcome, there are sound reasons for this approach:
it
focuses on the effect of the evidence on the proceedings and treats the
evidence as being hearsay (by implication)"
-- if not via implied assertion. For 'imply' has various uses and Grice's
own is not necessarily the only correct one! Cfr. "implied assertion" and
"implied statement" and "any matter explicitly stated", "any matter merely
implicated."
McEvoy:
"where it is being used to the same effect as would be inadmissible
hearsay were it expressed. Second, it avoids the unavoidable ‘
hypothesising’
involved in the alternative ‘assertoric-intention’ approach that focuses
on
what the source intended to assert."
Well, apparently, it IS granted that there was no assertoric assertion;
but the new concept of 'hearsay' does seem to include, as per part of the
analysans, 'any stated matter', which sort of recapitulates the 'problem'
in terms of 'intention to state'? Unless we consider 'state' in
philosophicalese and legalese as having little overlap!
McEvoy:
"In a previous post (re witness orders for Gatting and Emburey), I
suggested that the ruling given in a case may be importantly affected by
how that
case ‘presents’. An important factor in a Kearley-type situation is the
risk of manufactured evidence: it would be all-too-easy for the police to
falsely claim there were queries from unidentified and untraceable
persons or
even identified persons who nevertheless would not make viable witnesses
for the defence. The Police and Criminal Evidence Act 1984 and subsequent
cases [n.b. Canale] were part of large-scale reform that sought to shut
the
front door on the police fabricating admissions by the accused."
That's why Grice used the example, in his analysis of Tarski's theory of
truth (ironically, Grice is working with an example analogous to McEvoy's
"Snow is black", to wit: "Monkeys can talk").
vii. What the policeman said was true.
Because
viii. Policemen, by definition, never lie.
(If 'policeman' is a 'value-oriented' word, and defined in terms of the
verb 'to police', a Platonic ideal policeman should NOT and could NOT lie
without ceasing to be an ideal Platonic policeman, of course -- that is of
course what we _deem_ a policeman to be). ("If the policeman said that monkeys
can talk we should at least believe that's what HE believed to be true.")
McEvoy:
"Kearley was decided in a climate where the majority of the Supreme Court
may have been reluctant to open a backdoor to the police fabricating
incriminating evidence from putative associates of the accused. In other
words,
Kearley ‘presents’ as a case where the risk of manufactured evidence is
high; and this may have affected the outcome, as allowing admissibility
could
not be compensated for by cross-examination as a check on manufactured
evidence. Contrast Kearley with cases where the police seize the phone of
the
accused and on it are many texts from putative associates of the accused:
these texts have a computer-based record on the phone as to date and
time,
and they may be from a time before the police seized the phone and where
the
possibility of their manufacture by police may be discounted. The rise of
texting, and the widespread giving and receiving of texts by suspects,
gives
rise to cases that ‘present’ as ones where there is negligible risk of
manufactured evidence and where the interests of justice strongly favour
admissibility. The switch to the new legislation is partly due to the
strong
practical case for having a "rule" that readily permits ‘texts’ received
on
suspects’ phones to be admissible, and the new legislation addresses this
by
restricting hearsay to “matters stated”."
-- And I was wondering if the use of 'state' does not repeat the problems
that 'assert' (as in 'implied assertion', or 'assertoric intention')
raise.
Since, like, to 'assert' (even impliedly) is like 'to state', no?
Never mind 'matter'! (which I prefer to content, in that, while
PHILOSOPHICALESE in origin -- Aristotle's _hyle_ -- is blatantly metaphorical
and
opposed to 'immaterial'.
Consider: "Oh, he said a lot of things -- a LOAD of things, I would add
-- but there was not any matter stated."
One example that may prove relevant is Grice's analysis of things which
are NOT 'statements' -- so it may be argued that there is not 'any matter
stated':
ix. Arrest the intruder!
Is there any "matter stated"? Grice thinks not. There may be an
implicature (formerly 'presupposition' -- this is from Grice's essay in "Way
of
Words, "Presupposition and Conversational Implicature" -- Grice's attempt to
find Strawson's concept of presupposition "totally otiose" and more
importantly definable in terms of conversational implicature) to the effect
that the
utterer displays a psychological attitude that Grice symbolised with
ψ
of belief -- in other scenarios the attitude may be desire, which may also
be said to be 'implicated' by "Arrest the intruder" on the existence --
"(Ex)", as PHILOSOPHICALESE goes -- of an intruder -- cfr. "Arrest the
present Queen of France and behead her")
McEvoy:
"A suspected drug-dealer whose phone had many texts saying “Bring a
quarter hashish” (etc.) could now NOT use Kearley to say these were
inadmissible
"hearsay", as under the new legislation the “matter stated” is NOT
adduced
to prove its truth (by way of an implied assertion) but is an instruction
(lacking true or false propositional content) the relevance of which is
that it shows the accused was in the habit of receiving instructions from
persons seeking drugs."
Yet, the new concept of 'hearsay' trades on 'matter stated' since it is
included as part of the 'analysans' of 'hearsay'.
McEvoy:
"This explanation, for the shift from Kearley to the new legislation, is
not tied to CA but to a shift from how the problem ‘presents’ or is
characterised case by case and in the light of which alternative
solutions are
sought to established ones (i.e. here a new solution that addresses the
practical need for texts on an accused’s phone to be generally
admissible). So my
suggestion remains: knowledge, including legal knowledge, is
problem-solving all the way down. Cf. Popper’s “All Life Is Problem
Solving”".
Point taken. I should elaborate on how a view that a new analysis of the
concept of 'hearsay' (which includes 'any matter stated' in the analysans --
as per the hearsay rule -- may be motivated by an intention to solve
a problem, too, though, thanks!
Cheers,
Speranza
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