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Determining Facts: The Myth of Direct Evidence

30 Pages Posted: 7 Apr 2008 Last revised: 28 Apr 2009

Richard Greenstein

Temple University - James E. Beasley School of Law


What are facts? More precisely, what are facts within the contemplation of law? We might sensibly seek an answer to this question in the law of evidence, where we find a distinction that seems to furnish the key to understanding just what the law means by a fact - the distinction between direct and circumstantial evidence. For the promise of direct evidence is that it brings the fact-finder in direct contact with crucial facts about the instant dispute. By contrast, circumstantial evidence is said to give clues that require inferences to connect them to the critical facts of the case. And so, if we can understand how direct evidence enables us to apprehend facts in an unmediated way, then we should be able to understand facticity itself.

The problem with the direct-circumstantial distinction is not just that common beliefs about its significance turn out to be false. (For example, circumstantial evidence is not generally less reliable than direct evidence.) A more fundamental problem is that the distinction makes no logical sense. There simply is no category of evidence that brings us into direct contact with crucial facts, because no such contact is possible.

Fortunately, it turns out that understanding the illusory nature of the direct-circumstantial distinction gives us just the purchase we need to understand what facts are in the context of legal decision-making - and, by extension, what facts are generally. All facts are a function of interpretation. This unavoidability of interpretation makes all facts a matter of inference, and consequently all evidence - direct or circumstantial - nothing more or less than a contribution to that inferential process.

This essay explores how the interpretations that constitute facts arise within the trial setting, and by so doing, develops the broad thesis that our determination of facts, which in trials is structured by the rules of evidence, involves both an attempt to accurately reproduce the past and, at the same time, a projection of the kind of social world we yearn for.

This fact about facts - that they have a forward-looking, aspirational dimension - has surprising and important implications. We think about evidentiary facts as anchored in the past; accordingly, we think about the trial as a device for reconstructing the past. It turns out, however, that recapturing the past always implicates the future and always expresses a moral perspective. When fact-finders determine what happened, they simultaneously pronounce how the world should be. Understanding why this is so and that this is so changes how we understand facts, the law of evidence, and the function of the trial.

Keywords: evidence, facts, values, trial

JEL Classification: K14, K41

Suggested Citation

Greenstein, Richard, Determining Facts: The Myth of Direct Evidence. Houston Law Review, Vol. 45, 2009; Temple University Legal Studies Research Paper No. 2008-68. Available at SSRN:

Richard Greenstein (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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