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Assurance Training: 1.1 Intro to Evidence

Intro

This lesson will introduce the basics of Evidence

In this lesson, you will learn: the types of evidence, how to incorporate it into the Arbitration, and what to do with it once there ("burden of proof").

What is Evidence?

2.6 Process

The Arbitrator follows the procedure:

   1. Establish the facts. The Arbitrator collects the evidence from the parties. ….

The process of dispute resolution can be summarised as: Establish the facts; apply the law; deliver a reasoned ruling. That's it! Now, step 1 is the key to this discussion. The facts that are established are not the facts that you or I know of, outside the process, but the facts found to be facts within the Arbitration-proper. That is, "the facts" are whatever the Arbitrator rules are the facts.

Then, Evidence is another set of factual or otherwise things that are presented into the Arbitration to support that process. Evidence is not facts, to the Arbitrator, but the many things which can be used to create the findings of fact.

The process and history of Evidence is long and involved, but for our purposes much of it can be simplified. Also, it is more useful to have the flavour of the process so as to add more credibility to a Ruling, than to follow the precise formulas of Evidence pedantically, as 99% of our Arbitrations will be matters that go no further. For CAcert, Evidence is a continual learning opportunity rather than a bar to cross.

That said, each of the elements or tests below requires substantial judgement on the part of the Arbitrator, and the participants in an Arbitration assist to a very high degree by presenting their information in a form prepared as good Evidence. This applies both in an actual Arbitration and also for all routine collection of information that may one day be part of an Arbitration. Likewise, Auditors will appreciate solid evidence. 3 good reasons to think about our work as Evidence!

Types

There are said to be 2 major types of evidence, and many variants within and across those 2 major types:

Direct Evidence is directly and closely linked with the fact that is at issue. Direct Evidence includes:
- testimony in person or a written statement for the same purpose. "I saw the gun…"
- writings such as documentation. "When in doubt, use the gun…"
- admissions by parties. "I pulled the trigger!"
- material evidence, being things such as the body.
Indirect Evidence is such that the facts of the evidence infer the fact that is at issue. Indirect Evidence includes:
- all of the above where they aren't direct to the fact we are trying to prove. "I saw Alice walk in the house with a gun…"
- hearsay, which is the statement of a second person, as made in testimony by a first person. "Bob said that he saw the gun…" Hearsay is typically not admissible, but there are many exceptions. "I heard Bob say 'Alice don't shoot me,' " would be an admissible hearsay of a dead man's words, received & reported second-hand by the listener.
- circumstantial, which is facts (evidence) which provide an inference that might sway a conclusion of fact. "Alice went on a gun course."
- Forensic evidence is that collected by technical experts after a particular event.
- Expert witness evidence is the testimony of someone who is believed to have expertise or knowledge beyond the average person in a particular area.
- Typically, Indirect Evidence is accumulated into a collection. Each or some of the items of evidence may be said to corroborate other pieces of evidence, and the collection of Indirect Evidence taken together leads to a strong conclusion (a "finding of fact").

Entering Evidence

In the practice within the English common law tradition, most or all evidence has to be sponsored into the court, typically by the witness. That is, a witness would swear to tell the truth, and then present the evidence; evidence not so presented is simply not available. For example, if a wiki page were relevant, the witness would need to present that wiki page, state what it is ("authentication"), state its relevance, and thereby enter it into evidence (either informally or formally).

A strict following of this rule would have it that the CCA is not evidence until presented; which would make the whole Arbitration unstartable by definition, as that agreement contains the clause to arbitrate! Hence, certain things are assumed as already available as evidence, or available without dispute. This is called "judicially noticed evidence." The laws of the land would be available to a court, and the key policies of the Community would be expected to be available to a CAcert Arbitration.

Note again that the Arbitrator may have discretion as to how he accepts the Evidence as entered in, but he typically has to go through some process to decide what is entered and available. This process should be reviewable, as in the extreme case of an Appeal, we may want to establish the set of Evidence, how it was presented, and whether it was rightly admitted. Which is the next section:

Admission of Evidence into the case

Admission of evidence is the decision of the trier of fact (being the Arbitrator, Judge or Jury) to permit the evidence to be used in the process of determining the case. Typically, admission is based on these tests:

Must be relevant to the facts that need to be established.
- Relevant is defined as a tendency to make the fact true or false more so than if the evidence was not present.
- Which is somewhat circular or predictive, but it is a test or a logical thinking process that can be performed.
- Whether evidence is relevant is the most important test of the Admission decision.
Should not be so unduly prejudicial as to impact a fair analysis of the facts. This might occur with
- a prior case,
- a witness that has previously made statements proclaiming one side or another, and is therefore not independent,
- etc.
Not Confusing or misleading or a waste of the forum's time!
Not cumulative (repeats something already established).
Not privileged
- typical privileges include: attorney/client, settlement offers, subsequent remedial measures, spouse, etc.
- A major example of a privileged evidence in CAcert would be the results of an ABC.
- Privileges can be denied or lifted under appropriate circumstances such as direct relevance. For example, an ABC's privilege could be lifted if the case were about a breach of the expectations of that ABC, but likely not if the case were about a random Assurance.

Burden of Proof

Now that we have our evidence in the forum, how do we use it? Usage is guided by Burden of Proof which divides into two major questions:

which side has the burden of proof of any particular question?
- In general, the western tradition is the concept of innocent until proven guilty, so the burden of proof generally lies with the party that accuses.
- In our system of Arbitration, this would be the claimant who files the dispute.
- This has implications for filing a claim, as the claimant should then assemble some evidence to support the claim being made.
to what standard does the burden have to be met? Two common standards exist:
- preponderance of the evidence which means that the most likely conclusion (by far?) is the truth. This standard admits that there may be alternatives, and the Arbitrator's job is to declare the one most likely, and dismiss the others.
- beyond reasonable doubt is that which is used in criminal cases. This standard has it that there are no reasonable alternatives, none at all. Reasonable here is defined by what is called the Reasonable Man Test which has it that it is what a reasonable person would conclude, and typically what several reasonable people would conclude (e.g., a Jury). Although this standard is not directly needed in our civil context, it should be noted that our cases may have a criminal context, and our rulings may one day appear in a criminal case. The ruling of another forum is generally given strong standing in the next forum.

Conclusion

We consider evidence to be either direct, in which case it is compelling proof of a fact, or indirect, in which case it infers a fact. We must take care to treat each distinctly; the indirect evidence will typically require a collection of evidences to support a finding of fact.

The Arbitrator must follow some logical approach to have evidence entered into and admitted into the process. This will usually involve rejecting irrelevant evidence, and often involve filtering evidence on grounds such as prejudicial, confusing, or privileged.

Finally, the Arbitrator will need to assess the conclusions typically based on a standard of preponderance of the evidence, and turn his conclusions into findings of fact.

Postscript

After absorbing all the above, consider these cautions:

All of the information above should be considered to be suggestive, and not fixed in concrete. It is more a window onto how more formal courts approach things, and a suggestion to adopt where efficient, than a prescription we are looking for.
There is somewhat of a subtlety here; although the approaches documented here are from the common law tradition, DRP is silent on the use of the tradition. This is deliberate. In CAcert, the Arbitrator has more discretion to choose between the common law adversarial approach and the civil code magisterial approach.
The takeaway here is that the Arbitrator may have discretion as to how he accepts and admits Evidence. But some process must typically be gone through, and that should be clear from the Ruling (consider the possible Appeal).
And all parties benefit by having an understanding of the issues at stake, even if a different approach is used.