0.20 An application of the theory: evidence part 2

THE LAW OF EVIDENCE

The decision whether or not to admit the evidence was within the sound discretion of the trial court and we will not upset it. --- a learned appellate court

The foregoing pronouncement from a learned appellate court who shall remain anonymous sounds eminently judicial. But it is defective. Does your 'theory of a law' expose the defect? Does your 'theory of a law' tell you why this seemingly reasonable appellate pronouncement is nothing more than gobbledygook whose introduction into our minds gums up the spinning gears of legal thinking and brings them to an awkward halt?

Evidence and censorship go hand in hand. Not all information goes to the jury. When it comes to evidence, a trial judge serves as a Censor admitting and excluding evidence. Because in America we respect the rule of law. we deem it wise to wrap our politicians judicial and otherwise within a web of laws. The idea is to suppress arbitrariness and the abuse of power. In the context of evidence, the rule of law is called the law of evidence.

In thinking about evidence it is easier on the head to start with the arguments of the proponent and opponent of an item of evidence. The arguments are very simple and invariably assume the following pattern.

Table #1

This pattern of thinking has been around since the days of Aristotle and is known as a syllogism. It is a thinking technique that most of us have in our repertoire of thinking techniques whether we realize it or not. A syllogism is akin to a path and a destination. The path, however, is not geographical but logical. We travel on the path and it takes us to a destination. The path consists of a series of steps called premises. The destination is called a conclusion. Sometimes the path leads us to the destination we expected. At other times, the path leads elsewhere. An important corollary to the foregoing is the axiom that taking same path will always you lead to the same destination. To go to a different destination, a different path must be taken. In other words, given the same legal premise and the same factual premise, the ruling of any trial judge must necessarily be the same. To reach a different conclusion, one of the two premises must change. This is simple and ineluctable logic.

Whether a legal thinker uses a theory of a law or just flies by the seat of his pants without a theory of a law, it becomes necessary in the normal course of doing law to formulate the facts. Formulating the facts is another well-defined technique in the tool kit that comes with A Unified Theory of a Law. A Unified Theory of a Law teaches that it is best to formulate the facts as a flow of conduct from Source to Recipient in circumstances. This is its factual mantra. ( Repeat it over and over again until it easily flows from your lips) .