Document Type

Article

Publication Date

1992

Abstract

David Schum has long been one of our keenest commentators on questions of inference and proof. He has been particularly interested in, and illuminating on, the subject of "cascaded," or multi-step, inference.' This is a subject of importance to lawyers, because most evidence at trial can be analyzed in terms of cascaded inference. Usually, the proposition that the fact finder2 might immediately infer from the evidence is not itself an element of a crime, claim, or defense. Most often, an extra inference would be required to jump from that proposition to a proposition that the law deems material. Thus, inference is complex even when the witness in court testifies to a proposition that the proponent of the evidence asks the fact finder to accept as truthful. Another layer of complexity is added when the in-court evidence is hearsay-that is, evidence that at a prior time some declarant asserted the proposition that the fact finder is asked to accept.3 Hearsay is therefore a natural subject of inquiry for Schum, on which he now focuses what he calls his "conceptual microscope." 4 Part I of this Comment compares Schum's breakdown of the testimonial process, which may lead to a hearsay declaration, with the breakdown traditionally offered by evidence scholars.' Part II examines Schum's model of fact-finding as a backward-looking chain of inferences, and offers a simplified version of another model that integrates forward-looking story lines with Bayesian logic, in a way that might be useful for dealing with evidentiary questions. Part III adds some complexities to this model and examines its workings in the context of a hearsay declaration. Part IV discusses the broader applicability of the model in other evidentiary contexts. Part V is a brief conclusion suggesting directions for further research related to hearsay.


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