The United States is perhaps unique among the developed world in that under law, some hate speech is protected. (more) The United States has a very complicated system of evidentiary rules; for example, John Wigmore’s celebrated treatise on it filled ten volumes. James Bradley Thayer reported in 1898 that even English lawyers were surprised by the complexity of American evidence law. (
The general assumption behind the US court system is (in theory, according to the founders) that it is better to let ten guilty people go free then one innocent person be wrongfully convicted.
Why do you feel it is so important for the US to strip away further rights from it's citizens? Despite a minor recent spike, violent crime rates are still at historic lows, and yet the US has the world's highest prison population. It seems like you are advocating a solution in need of a problem.
Why do you generally feel citizens need less protection from the state?
It is very important thing which will help you to prove that truth, is this happen was right or wrong. So evidence is important to prove it anything. You can also know best dating app 2019
But nonetheless there isn't any kind of general ban on circumstantial evidence (with a list of exceptions) in law. The weight of such evidence is just evaluated by the judge or jury.
(Direct evidence can often be quiet weak as well. Witnesses can have a faulty memory but be overconfident of their ability of recollection or just outright lie.)
"a potential problem with one line of evidence doesn't mean the concern should be ignored with other types of evidence that carry a greater risk of such."
I'm not sure lawmakers can better address any such risk than a judge or a jury. How do you know if the list of exceptions is comprehensive enough?
"Circumstantial evidence is a completely different thing and it's not by definition weaker than direct evidence anyway."
But it generally is.
"Would a judge not be able to tell if something is just a rumor?" How would this be determined without some principle of determination?
"And why the list of exceptions (like the statement being e.g. "an exited utterance) couldn't allow for rumors as well?"
It could, but a potential problem with one line of evidence doesn't mean the concern should be ignored with other types of evidence that carry a greater risk of such.
I couldn't disagree more. Honestly, I think the inferential distance between our a priori ethics is so large that we don't have enough common ground to have a meaningful exchange of ideas.
It's nothing personal, and I think you have been conversing in good faith.
But I am of an anarchist/libertarian bent, whereas you seem to be very much a "progressive" in the sense that you think more judician by force to regulate speech and determine truth will lead to a better society.
Obviously my perspective is completely at odds with this.
"And this is in fact what they do. There is not an absolute ban on hearsay, as you point out, it is contextual and the judge instructs the jury to weigh the quality of the evidence."
It's not quite what they do, since any hearsay needs to be among list of exceptions decided by lawmakers, not by the judge.
"Regarding hearsay, it is also to prevent a lawyer from building a case based on rumor and circumstantial evidence."
Would a judge not be able to tell if something is just a rumor? And why the list of exceptions (like the statement being e.g. "an exited utterance) couldn't allow for rumors as well?
Circumstantial evidence is a completely different thing and it's not by definition weaker than direct evidence anyway.
Rules exist, arbitrators exit, processes exist, all are subject to social and political forces. The question isn't what process is best, but what is better than what we have. Fundamentally we only have these, even if we would be better off with less of them, and we have to decide what rules work best and how they can be improved to work better, a tough slough when many do not want them to work at all. The problem is leaving these to individuals is not removing them from politics, but making them more political. Politics begins with the individual. It is everyone for themselves. It is only through a political process that we can restrain the worst of this.
Norms exist, violation of them lead to rules, violation of them lead to laws, so the natural tendency is towards more law. The difference between countries is less one of norms and more of how much of these have required formalization. The weakness of larger states is such formalization becomes more difficult to achieve, yet we can expect more of it in the future. So expect more law and more judges, more judicial rules and more independent bodies, more criteria and more experts..
If you've read the excellent SSC post "I can tolerate anything but the Outgroup" there is a section on how real "outgroups" are formed by proximity and small differences.
I don't doubt that politicians and others play up tribal division and tribal narratives to their favor.
That's what I was partially saying in my post.
Rather, I think it is an "organic" process, where you have tribal differences and conflicts that then get codified by politics or economic or other factors.
I think in the current era where the media and big data and the brain hacking ability of social media has so much power to see and implement what works and knowledge of relevant psychology, it's much easier to create and foster tribal narratives.
And this is in fact what they do. There is not an absolute ban on hearsay, as you point out, it is contextual and the judge instructs the jury to weigh the quality of the evidence.
I think a slight problem is that jurors are average citizens without training in critical thinking. A judge may instruct a jury to give certain weight to certain evidence, but the juror's individual cognitive and emotional biases are likely to weight those differently, even if on a subconscious level.
This is a large part of the reason for why trial rules have become so strict- discovery of all evidence must happen before the trial so there is no "surprise evidence" whose presentation might have more of an emotional impact on the jurors because of the way it was presented then the substance of the evidence.
Regarding hearsay, it is also to prevent a lawyer from building a case based on rumor and circumstantial evidence.
In the case of hearsay, what might be some weak evidence could be magnified to be a lot of evidence if these rules weren't followed.
I.e., one person heard something from x witness. If x witness repeated that statement to 20 people, it would superficially seem that the evidence is stronger (20 elements of hearsay evidence) when really it's just the same type of hearsay evidence.
I have my own experience with this when I was running a music venue and a band was booked that people wanted to be not allowed to perform on the basis they were nazis. I could find nothing in their lyrics, no articles, etc, and a denial from the band. The evidence people gave to me was "everybody knows" or "my friend saw them doing nazi salutes at a show" Of course, when I asked the person if I could speak to his friend directly, it turned out it wasn't his friend, but his friend's friend, who on good authority.. and so on."
In many cases where there is a public opinion on the matter, we don't want to convict people based on rumors.
( I did eventually get a picture of what was up with the nazi claims after I let them play. Too long to go into detail here, but while i don't think they were nazis, they were probably "fence sitters" back in the early 80's when the oi scene was dividing, meaning trying to stay cool with everyone and not pick a side. That is a different charge then being nazis themselves, and I would have had to think carefully about letting them play)
Inherent in the idea of truth is the idea it exists, falsity also exists, some rules are conducive to truth, others are not, some do have better grasp of truth, and some less, and even some are more committed to it than others. Rules exist, both explicit and implicit. Marketplaces don't work on their own but need rules conducive to there operation, whether custom, tradition, law. These rules always need adjudicators. The belief that we do not is the belief there is no truth but our own which is the same as no truth. If you believe truth is defined by power, by authority, you don't really believe in truth at all. The search for truth must be open, but not so open your brains fall out. Embracing truth does mean rejecting falsity and rejecting that it is just opinion and all opinions are equal.
"So I think there's a good case for saying that these rules – or certainly this one – "provide some protection against purely fabricated evidence.""
But I think that's only technically true. Similarly we could, say, exclude testimonies from women and say that it brings down the amount of purely fabricated evidence (assuming women fabricate their testimonies more often than 0% of the time).
OK, that's maybe a bit unfair example. It may be that testimonies are more often correct (e.g. because of the threat of criminal penalty). On the other hand, some times out of court statements might be more reliable (e.g. because the person might not know they're being listened to).
The point is that any rule like this can also exclude relevant evidence (if the exceptions aren't comprehensive enough).
To me it doesn't make a lot of sense that there's a general ban on hearsay but then an out of court statement can be admitted if it's e.g. "an excited utterance" or "a record of regularly conducted activity" or any other in the long list of exceptions.
It is irrational to hold any idea exempt from critical scrutiny.
However unfortunately lovers of truth have to suffer for truth in this brutal universe. A theistic universe punishes non-theism and rival theisms. Yet a non-theistic universe doesn't punish theism and since theism promotes social unity and boosts fertility rates the world simply has more and more theists even though theists often tend to move the world towards Malthusian hell.
I say let humans be extinct. The universe is simply screwed up beyond all recognition. Don't bring more life into it.
I would say a part of that's just every human trying to maximize their interests by attempting to change rules and standards in their favor...
Tribalism is unfortunately natural. However the state manages to manufacture new tribes and indoctrinate kids in tribal hatred and falsified history all over the world. For example who exactly are Serbs, Croats and Bosniaks? They speak essentially the same language which their ethnonats deny and are indoctrinated into hatred towards each other by their respective states.
Nonetheless, there's a large number of exceptions to the hearsay rule, because it's been recognized that often they do carry some evidentiary weight despite not being 100% reliable. Actual witness testimonies aren't always reliable either.
To me a simpler solution would seem to be that the judge or the jury can evaluate the reliability of hearsay and give it the appropriate weight accordingly. That's what they have to do for most of the evidence anyway. Usually one piece of evidence doesn't make or break the case.
The general assumption behind the US court system is (in theory, according to the founders) that it is better to let ten guilty people go free then one innocent person be wrongfully convicted.
Why do you feel it is so important for the US to strip away further rights from it's citizens? Despite a minor recent spike, violent crime rates are still at historic lows, and yet the US has the world's highest prison population. It seems like you are advocating a solution in need of a problem.
Why do you generally feel citizens need less protection from the state?
It is very important thing which will help you to prove that truth, is this happen was right or wrong. So evidence is important to prove it anything. You can also know best dating app 2019
"But it generally is."
But nonetheless there isn't any kind of general ban on circumstantial evidence (with a list of exceptions) in law. The weight of such evidence is just evaluated by the judge or jury.
(Direct evidence can often be quiet weak as well. Witnesses can have a faulty memory but be overconfident of their ability of recollection or just outright lie.)
"a potential problem with one line of evidence doesn't mean the concern should be ignored with other types of evidence that carry a greater risk of such."
I'm not sure lawmakers can better address any such risk than a judge or a jury. How do you know if the list of exceptions is comprehensive enough?
"Circumstantial evidence is a completely different thing and it's not by definition weaker than direct evidence anyway."
But it generally is.
"Would a judge not be able to tell if something is just a rumor?" How would this be determined without some principle of determination?
"And why the list of exceptions (like the statement being e.g. "an exited utterance) couldn't allow for rumors as well?"
It could, but a potential problem with one line of evidence doesn't mean the concern should be ignored with other types of evidence that carry a greater risk of such.
I couldn't disagree more. Honestly, I think the inferential distance between our a priori ethics is so large that we don't have enough common ground to have a meaningful exchange of ideas.
It's nothing personal, and I think you have been conversing in good faith.
But I am of an anarchist/libertarian bent, whereas you seem to be very much a "progressive" in the sense that you think more judician by force to regulate speech and determine truth will lead to a better society.
Obviously my perspective is completely at odds with this.
"And this is in fact what they do. There is not an absolute ban on hearsay, as you point out, it is contextual and the judge instructs the jury to weigh the quality of the evidence."
It's not quite what they do, since any hearsay needs to be among list of exceptions decided by lawmakers, not by the judge.
"Regarding hearsay, it is also to prevent a lawyer from building a case based on rumor and circumstantial evidence."
Would a judge not be able to tell if something is just a rumor? And why the list of exceptions (like the statement being e.g. "an exited utterance) couldn't allow for rumors as well?
Circumstantial evidence is a completely different thing and it's not by definition weaker than direct evidence anyway.
Rules exist, arbitrators exit, processes exist, all are subject to social and political forces. The question isn't what process is best, but what is better than what we have. Fundamentally we only have these, even if we would be better off with less of them, and we have to decide what rules work best and how they can be improved to work better, a tough slough when many do not want them to work at all. The problem is leaving these to individuals is not removing them from politics, but making them more political. Politics begins with the individual. It is everyone for themselves. It is only through a political process that we can restrain the worst of this.
Norms exist, violation of them lead to rules, violation of them lead to laws, so the natural tendency is towards more law. The difference between countries is less one of norms and more of how much of these have required formalization. The weakness of larger states is such formalization becomes more difficult to achieve, yet we can expect more of it in the future. So expect more law and more judges, more judicial rules and more independent bodies, more criteria and more experts..
If you've read the excellent SSC post "I can tolerate anything but the Outgroup" there is a section on how real "outgroups" are formed by proximity and small differences.
I don't doubt that politicians and others play up tribal division and tribal narratives to their favor.
That's what I was partially saying in my post.
Rather, I think it is an "organic" process, where you have tribal differences and conflicts that then get codified by politics or economic or other factors.
I think in the current era where the media and big data and the brain hacking ability of social media has so much power to see and implement what works and knowledge of relevant psychology, it's much easier to create and foster tribal narratives.
That wasn't really a response to my question.
You seem to be taking my issue with having the state define truth as being a statement that there is no truth.
To be clear, by what process would have these adjudicators for the state determine what truth is?
And this is in fact what they do. There is not an absolute ban on hearsay, as you point out, it is contextual and the judge instructs the jury to weigh the quality of the evidence.
I think a slight problem is that jurors are average citizens without training in critical thinking. A judge may instruct a jury to give certain weight to certain evidence, but the juror's individual cognitive and emotional biases are likely to weight those differently, even if on a subconscious level.
This is a large part of the reason for why trial rules have become so strict- discovery of all evidence must happen before the trial so there is no "surprise evidence" whose presentation might have more of an emotional impact on the jurors because of the way it was presented then the substance of the evidence.
Regarding hearsay, it is also to prevent a lawyer from building a case based on rumor and circumstantial evidence.
In the case of hearsay, what might be some weak evidence could be magnified to be a lot of evidence if these rules weren't followed.
I.e., one person heard something from x witness. If x witness repeated that statement to 20 people, it would superficially seem that the evidence is stronger (20 elements of hearsay evidence) when really it's just the same type of hearsay evidence.
I have my own experience with this when I was running a music venue and a band was booked that people wanted to be not allowed to perform on the basis they were nazis. I could find nothing in their lyrics, no articles, etc, and a denial from the band. The evidence people gave to me was "everybody knows" or "my friend saw them doing nazi salutes at a show" Of course, when I asked the person if I could speak to his friend directly, it turned out it wasn't his friend, but his friend's friend, who on good authority.. and so on."
In many cases where there is a public opinion on the matter, we don't want to convict people based on rumors.
( I did eventually get a picture of what was up with the nazi claims after I let them play. Too long to go into detail here, but while i don't think they were nazis, they were probably "fence sitters" back in the early 80's when the oi scene was dividing, meaning trying to stay cool with everyone and not pick a side. That is a different charge then being nazis themselves, and I would have had to think carefully about letting them play)
Inherent in the idea of truth is the idea it exists, falsity also exists, some rules are conducive to truth, others are not, some do have better grasp of truth, and some less, and even some are more committed to it than others. Rules exist, both explicit and implicit. Marketplaces don't work on their own but need rules conducive to there operation, whether custom, tradition, law. These rules always need adjudicators. The belief that we do not is the belief there is no truth but our own which is the same as no truth. If you believe truth is defined by power, by authority, you don't really believe in truth at all. The search for truth must be open, but not so open your brains fall out. Embracing truth does mean rejecting falsity and rejecting that it is just opinion and all opinions are equal.
"So I think there's a good case for saying that these rules – or certainly this one – "provide some protection against purely fabricated evidence.""
But I think that's only technically true. Similarly we could, say, exclude testimonies from women and say that it brings down the amount of purely fabricated evidence (assuming women fabricate their testimonies more often than 0% of the time).
OK, that's maybe a bit unfair example. It may be that testimonies are more often correct (e.g. because of the threat of criminal penalty). On the other hand, some times out of court statements might be more reliable (e.g. because the person might not know they're being listened to).
The point is that any rule like this can also exclude relevant evidence (if the exceptions aren't comprehensive enough).
To me it doesn't make a lot of sense that there's a general ban on hearsay but then an out of court statement can be admitted if it's e.g. "an excited utterance" or "a record of regularly conducted activity" or any other in the long list of exceptions.
https://www.rulesofevidence...
This kind of thing adds to the complexity of the justice system which I fear can have a real cost.
It is irrational to hold any idea exempt from critical scrutiny.
However unfortunately lovers of truth have to suffer for truth in this brutal universe. A theistic universe punishes non-theism and rival theisms. Yet a non-theistic universe doesn't punish theism and since theism promotes social unity and boosts fertility rates the world simply has more and more theists even though theists often tend to move the world towards Malthusian hell.
I say let humans be extinct. The universe is simply screwed up beyond all recognition. Don't bring more life into it.
I would say a part of that's just every human trying to maximize their interests by attempting to change rules and standards in their favor...
Tribalism is unfortunately natural. However the state manages to manufacture new tribes and indoctrinate kids in tribal hatred and falsified history all over the world. For example who exactly are Serbs, Croats and Bosniaks? They speak essentially the same language which their ethnonats deny and are indoctrinated into hatred towards each other by their respective states.
Nonetheless, there's a large number of exceptions to the hearsay rule, because it's been recognized that often they do carry some evidentiary weight despite not being 100% reliable. Actual witness testimonies aren't always reliable either.
To me a simpler solution would seem to be that the judge or the jury can evaluate the reliability of hearsay and give it the appropriate weight accordingly. That's what they have to do for most of the evidence anyway. Usually one piece of evidence doesn't make or break the case.
Why the qualifier "in secular institutions"? When is it ever really best to hold an idea exempt from critical scrutiny?