circumstances are the following. (a) Inability to Give Evidence. The witness
cannot give evidence because they are overseas, dead,
sick
or have some
other compelling reason for not appearing in court. (b) Irrelevance or
Redundancy of Evidence. The witness would not say anything important or
would only give evidence similar to other witnesses. (iii) The opposing party is
not in a position to call the witness.
If these conditions apply a court is justified in drawing an inference from the
failure of the party to call the witness. There are two possibilities –
a hard
inference or a soft inference. In some jurisdictions there
is a soft inference -
that the evidence would not have helped the plaintiff’s case.
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In other
jurisdictions there is a hard inference – that that the testimony of such person
would be unfavourable to the party failing to call the witness.
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3. Deduction
Introduction
Deductive reasoning in pure form produces certain knowledge. It underlies
several forms of proof -
proof by scientific evidence, proof by real evidence
and proof by recorded evidence.
Scientific Evidence
There is a common tendency to think that evidence based on scientific
processes is highly reliable or even foolproof. This is not however
the case.
There are problems with it in principle and there have been major problems
with it in practice.
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Syllogisms
Scientific evidence is based on deduction in that deduction lies at the core of
its operation.
630
This deduction depends on one of two types of causal rules.
One type of causal law takes the following form: ‘X always causes Y.’ This
sets up a syllogism in the following form:
Components
Relationships
Major Premise
X always causes Y’
Minor Premise
X has occurred
Conclusion
Therefore Y has occurred.
Figure 23.2 Syllogism: X Always Causes Y
627
Jones v Dunkel (1959) 101 CLR 198
628
Briscoe v State 40 Md. App. 120, 388 A.2d 153 (1978)
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Christopher Enright Legal Reasoning Chapter 24 Observing Facts
630
Christopher Enright Legal Reasoning Chapter 5 Deduction
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