Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

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B. Inference and Speculation- ~"What is the Difference Between "Reasoning" and "Guessing"? (1028)


All of the problems in this section are designed to make one point. The legal concept of "reasoning," as distinguished from "guessing" or "speculating," is a functional concept which describes the making of inferences by factfmders to which persons who were not party to the factfinder's deliberations can defer. An inference which has this character is called "reasonable" or "rational." An inference which lacks this character is called "speculative."

There are two major categories of inference on which deference can be expected. First, there are inferences which involve the assessment of the credibility of witnesses. The litigation process is structured so that the factfinder is placed in an ideal position to assess the credibility of witnesses. The factfmder sees the witnesses at close range under testing circumstances telling the story with respect to which the witness's credibility must be assessed. The factfinder pays close attention, and then deliberates. Those who have not had such a good opportunity are not in a good position to second-guess credibility assessments made by the factfinder. Therefore, it is reasonable (and it is the strategy of the system) to expect deference to determinations by the factfinder which depend on the assessment of the credibility of the witnesses.

Second, there are inferences which involve the assessment of the significance of circumstantial evidence. This category is much trickier because all that is needed to prevent deference to the factfmdei s verdict s a competing plausible explanation for the circumstantial evidence which is inconsistent with the verdict. Such a plausible explanation undermines deference because the factfinder had no way (to which someone not a party to the factfindei s deliberations would defer) to eliminate the plausible inconsistent explanation. This problem tends to abate the more complicated the circumstantial detail, the greater the variance of possible assessments of the significance of the evidence. While more numerous explanations may exist, none of them are as likely to be strong enough to compete with the fact finders' verdict. This increases the likelihood of deference to the factfinder s verdict: the more evidence to sift, the more one is likely to defer the sifting and evaluation of the factfinder. Statistical evidence, in its pure form and unaided by any circumstantial evidence (see problem X-3, for example) suggests a highly plausible (even certain) competing explanation in an express number of cases.

Other aspects of the litigation process enhance the tendency toward deference, and have been discussed elsewhere; e.g., the secrecy of the factfinder's deliberations, the generality of most verdicts, the hearsay and confrontation rules.

Problem - Big Time Charlie (1028)

Answer and Analysis:

The prosecution's only proof of D's knowledge is his act of lighting his cigar with a $20. The act of bravado strongly suggests that D (whom we already know possessed at least one counterfeit $20) knew that the bill was phony and was showing off on the cheap. But there is unmistakably a plausible hypothesis inconsistent with the defendant's guilt, namely that he did not know and thought he was burning a real $20. Could a jury eliminate that possibility in a manner to which those outside the process could defer? If presented only the information as presented in the problem, then probably not. But if presented with detail about who the friends were that were with D and background about D, then deference would be much more likely.

The problem is drawn from United States v Litbere, 175 F.2d 20 (7th Cir. 1949). The court refused to allow the conviction to stand because the circumstantial evidence did not support a conviction beyond a reasonable doubt.

Problem - Prison Yard (1028)

Answer and Analysis:

In the prosecution of Prisoner #1 when the only evidence is that of the distant witness, the best that we can say is that the odds that the defendant is guilty are 24 in 25. There remains a clear plausible hypothesis consistent with innocence which the factfinder cannot eliminate either by making credibility judgments or by making reasonable assessments of the significance of the circumstantial evidence. Therefore, the defendant is entitled to a directed verdict.

If Prisoner #2 testifies that it was he who hid in the shed, then the defendant is no longer entitled to a directed verdict. The case goes to the factfinder because it is possible for the factfinder to make assessments of credibility that eliminate the hypothesis of innocence.


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