Written help for people who go to court without a lawyer has to say something about evidence, and what it chooses to say shows what it takes proof to be. This study reads fourteen such records, published by PRO SE as synthetic practice materials and as general information, not legal advice, and argues that they treat evidence as a passage rather than an inference. They ask how material travels to the court that will decide, what carries it, what kind of thing it is when it arrives, and who is responsible for moving it. They do not ask what it shows. The contribution is to bring a kind of document that the works used here do not take up, public question records for people without a lawyer, into two debates about proof, and to show that the records answer one debate by staying silent and take part in the other by staging its divisions as open questions.
The research question is this. When a public record written for a person without a lawyer takes up evidence, does it give proof as reasoning from material to a conclusion about what happened, or as the movement of material through institutions, records and turns, and what does it leave open? The question concerns the form of the records, not the law of evidence anywhere; records that PRO SE marks as synthetic and dates with an editorial reference date, neither a case date nor a confirmation of current law, could not answer that.
Proof as reasoning
One body of scholarship treats proof as a problem of reasoning. William Twining, Rethinking Evidence: Exploratory Essays (2006), holds that the law of evidence, long seen as dry, technical and mysterious, is closely related to the handling of evidence in other kinds of practical decision-making and to common sense. He develops a historical and theoretical perspective on proof and inferential reasoning in law and argues for a broad interdisciplinary approach in which the rules of evidence play a subordinate, though significant, role. On this view the centre of the subject is the step from evidence to conclusion; the rules are the frame around it.
Within that centre there is a dispute about how the step is taken. Nancy Pennington and Reid Hastie, Explaining the Evidence: Tests of the Story Model for Juror Decision Making (1992), test an explanation-based theory of how jurors decide. When stories were easier to construct, verdicts and the impact of credibility evidence changed while memory for the evidence did not, so that the structure of the story carried the decision. When people judged once at the end of a case, they followed the story model rather than Bayesian or linear updating; when they judged item by item after each block of evidence, linear anchor-and-adjust models described them better. W. Lance Bennett and Martha S. Feldman, Reconstructing Reality in the Courtroom (1981), suggest from more than sixty trials that the American criminal trial is organized around storytelling. Ronald J. Allen and Michael S. Pardo, The Problematic Value of Mathematical Models of Evidence (2007), argue that formal mathematical models of the value of particular items of evidence are much more limited in use than their builders assume, and they highlight the need to accommodate the reference-class problem.
The dispute is about the inside of proof: whether people weigh items one by one or fit them into a whole account of what happened. Both sides assume that what matters about evidence is what it shows.
Evidence as an institution
A second body of scholarship looks at the setting in which proof is done. Mirjan R. Damaška, Evidence Law Adrift (1997), examines how legal culture and institutions shape the way evidence is gathered, sifted and presented to courts. He names three features of the Anglo-American setting: the tribunal divided between judge and jury, the concentrated trial in which everything is heard in one sitting, and the prominent role of the parties. He contrasts Continental proceedings, where lay fact finders sit with professional judges, proceedings are episodic rather than concentrated, and the parties carry fewer responsibilities. He observes that jury trial has declined, pretrial proceedings have multiplied and the adversary system shows signs of weakening, so that many practices built for the old setting may disappear, and he expects factual inquiries to be tailored more to their settings. Richard D. Friedman, Anchors and Flotsam: Is Evidence Law "Adrift"? (1998), reads the book as an illumination of one system by light from another, a comparative looking glass, while suggesting that its author may take the rhetoric of Anglo-American evidence law somewhat too seriously.
Damaška's other work presses the same point from two directions. Free Proof and Its Detractors (1995) takes up the idea, widely praised as a cornerstone of enlightened fact-finding, that the law should not assign probative weight to items of information or degrees of credibility to the people who supply them, and names two challenges to it, more exclusionary rules and the socio-cultural ramifications of technological and scientific advances, asking whether free proof is still as firmly entrenched as it appears. Epistemology and Legal Regulation of Proof (2003) holds that the best arrangements for finding facts depend on the profile of the decision-makers, the type of proceedings and the aims of justice, as well as on political and cultural context, and cautions that without a taxonomy of the facts to be proved, findings from cognitive science are hard to apply to adjudication.
The question of who gathers the facts belongs to the same debate. John H. Langbein, The German Advantage in Civil Procedure (1985), starts from the criticism of a lawyer-dominated civil procedure for its incentives to distort evidence and for its expense, and locates the trouble in a system that leaves to partisans the work of gathering and producing the factual material on which judgment depends. He questions the comfort that a lawyerless system would be worse. John D. Jackson and Sarah J. Summers, The Internationalisation of Criminal Evidence (2012), observe that the traditional view of evidence law as belonging to the common law tradition has obscured a cosmopolitan law of evidence developing in criminal cases across the common law and civil law traditions.
This side of the scholarship is about the outside of proof: who gathers material, where and when it is heard, and whether the law tells the fact-finder what an item is worth.
What the records add
The works this study draws on turn on jurors, criminal trials, national procedures and comparison between systems; their reading notes mention no written help made for people who must handle evidence without a lawyer. Such help could tell its reader that evidence is a story to be built, or that it is a thing that has to reach a particular court by a particular route.
The fourteen records choose the second, consistently. That finding bears on the first debate by absence: the inside of proof, the step from evidence to conclusion that Twining puts at the centre and that Pennington and Hastie, Bennett and Feldman, and Allen and Pardo dispute, does not appear. The second finding bears on the institutional debate. The records do not describe one system. Their two readings divide, record after record, along lines the institutional debate draws: whether a record of an examination can stand in for being present at it, whether the judge's lead or the parties' applications set the course, whether material gathered in one episode can be carried into another. The records leave each open: they hand the comparative argument's questions to the reader in small.
Chapter 1 sets out the data and the method, then follows the route and form of material in one section and who moves it, under costs and the clock, in another. An appendix gives every record read, word for word, and the conclusion returns to the two debates. Throughout, the records are read as synthetic materials; nothing here says what any court does or should do, and nothing is advice about what evidence to offer.