Searching for Truth in the American Law of Evidence and Proof

35 Pages Posted: 9 Aug 2013 Last revised: 18 Oct 2013

D. Michael Risinger

Seton Hall University School of Law

Date Written: June 1, 2013


We are told by rules such as Federal Rule of Evidence 102 that one official ends of the trial system, from first investigation to last post-trial proceeding, is the determination of truth. After examining the relevant history, this piece comes to the conclusion that there was a general if unspoken agreement on the notion of truth that was being invoked in Rule 102. The shared assumptions of the standard rationalist model of the law allowed (and continue to allow) both those involved in the practice of law and the vast majority of those involved in describing it, to skip over many issues that might interest some professional philosophers, and to enter the discourse concerning truth at a point where those issues are resolved by assumption, since controversies about them are rightly considered of no importance to the law as a practical discipline. We assume the reality of an exterior material world; arguing either radical skepticism or the primacy of some form of philosophical idealism will not cut any ice in a courtroom. In addition we assume that something that can count as knowledge can be arrived at about such past events, even if it is not perfect. Platonic arguments about how perfection is necessary to the concept of true knowledge are beside the point. We assume that at least part of this knowledge will meet certain criteria of correspondence to the actual state of an exterior world. Objections that such correspondence theories inevitably imply “naïve realism,” and are therefore to be shunned, won’t get very far in the legal context (although an important reason they won’t is that not all correspondence theories are naïve, and many can both comfortably and practically accommodate other notions of epistemic strength, such as coherence). We assume that the path to the factual truth we desire is through information (evidence) processed in a rational manner (although what we mean by “rationality” is sometimes difficult to say, and assuming we can come up with a defensible notion of rationality, our particular arrangements may not always bear scrutiny when put to that test). The vision of rationality implied here, whatever else it may be, entails a method of inquiry about a factual question, one founded on two central pillars — the primacy of evidence publicly available to the senses, and the strength of critical common sense. In this way the rationality assumed by the law is empirical and the method of inquiry is one which is in principle available to everyone of normal intelligence.

The issues about which the law seeks truth in any given litigated controversy are the ones that constitute (or correspond to) the ultimate material issues under the applicable substantive law. The factual nature of some of these issues is easily dealt with by a correspondence notion, but this is not true in regard to others. More importantly, some of them are not, in their ultimate determination, facts at all, but particularized value judgments, even though the tradition of the law is to call them all “facts” since they are determinations delegated to juries (“factfinders”). So if the truth the law seeks is truth about what the law treats as facts, there are still plenty of remaining mysteries. This is in large part because the concept of fact has not been properly developed in most of the legal literature. In the second part of the article I make an attempt at such a taxonomic development. The contents of that inquiry are suggested by the following headings: Facts, Facticity, and Facts of Another Color: A. Brute Facts, Primary Type; B. Facts of Another Color; C. Facts Relying Entirely on Inferences from Formal Data; D. Non-Binary Magnitude Judgment Issues; E. Issues of “Fact” That Are Really Value Judgments Officially Delegated to the Jury Under a “Normative Warrant;” States of Mind — Facts of yet Another Color, Value Judgments, or Both?

Keywords: evidence, fact, truth, federal rules of evidence, jury

Suggested Citation

Risinger, D. Michael, Searching for Truth in the American Law of Evidence and Proof (June 1, 2013). Georgia Law Review, Vol. 47, p. 801, 2013; Seton Hall Public Law Research Paper No. 2307231. Available at SSRN:

D. Michael Risinger (Contact Author)

Seton Hall University School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States
(973) 642-8834 (Phone)

Paper statistics

Abstract Views