Charting New Territory in Judicial Proof: Beyond Wigmore

Authors

Peter Tillers, Benjamin N. Cardozo School of Law
David Schum, George Mason University

Abstract

In this Article, Professor Tillers and Professor Schum investigate judicial proof in a way that combines three distinct methods of analyzing the probative significance of evidence. They call these three modes of analysis legal structuring, temporal structuring, and relational structuring. Although scholars in various disciplines have recognized the importance of these three types of analysis in the assessment of evidence, no extant theory provides a systematic account of the relationships between legal analysis, temporal analysis, and relational analysis. Professor Tillers and Professor Schum describe some of the matters that a three-dimensional analysis of proof must take into account and they offer tentative suggestions about how the interactions among the three different types of structuring might be portrayed graphically and by other symbolic representations.

The Article begins with a discussion of the importance of rigorous and "scientific" analysis of complex proof processes. Professor Tillers and Professor Schum then examine Wigmore's early and seminal effort to develop a theory of proof. After discussing the relationship of Wigmore's theory of proof to his work on the exclusionary rules, they examine in detail his "chart method" and they demonstrate that his theory of proof has both great power and substantial limitations. While Wigmore's chart method offers an illuminating account of relational analysis, it does not adequately portray the complexity of legal ordering of evidence and it also does not take into account various temporal dimensions of the proof process. The result is that Wigmore's theory of proof works only in a relatively stationary world where facts-in-issue and evidence are held constant. Professor Tillers and Professor Schum sketch the outlines of a model of proof that would better describe decisionmaking about evidence and questions of fact in various stages of litigation.

Keywords

Evidence, Proof, Legal Practice and Procedure, Law Students, Legal Education, Students, Education (General)

Recommended Citation

Peter Tillers & David Schum, Charting New Territory in Judicial Proof: Beyond Wigmore, 9 Cardozo L. Rev. 907 (1988).
https://larc.cardozo.yu.edu/clr/vol9/iss3/2