Inductive reasoning or inference is not fool proof. Therefore it is appropriate
to assess its strength when invoked for proof of facts. There are several
factors –
whether the pattern is the common way things occur or just one of
two or more possibilities, how well the pattern fits the circumstances before
the court and any special factors in these circumstances that might weigh for
or against the pattern being inductively applied to the case.
Proving Facts: Individual Behaviour
Introduction
Patterns of behaviour may apply to an individual. This is recognised in
psychology in the field of personality and individual differences. It is also
recognised in the law of evidence in the use of evidence of disposition,
character, tendency and similar facts.
Evidence of Disposition
Sometimes there may be good reason for arguing that a person did something
because they had some disposition to do it. This disposition arises from a
number of sources although they all have a similar ring and arguably share at
least a substantial degree of overlap. There is logical argument that evidence of
this disposition has some and even considerable probative value.
Some of the sources from which disposition might be discerned operate a
priori. They are based on an analysis of the person and predict from that how
they might behave in the future or have behaved in the past. Two prominent
forms of personal disposition are personality and character.
Other sources are based on demonstrated behaviour. These are given a variety
of labels although there is considerable overlap in their reach. Two common
expressions used -
similar facts and coincidence –
focus directly on the
observed behaviour. This person has done a thing in the past and now there is
the possibility that they have done it again. There is a coincidence in that the
facts of the present and past cases (which may be one or more) are similar.
Looking back (a posteriori) it suggests that the person has a disposition
towards that behaviour which is variously called a habit, a propensity or a
tendency.
This can become the basis of proof. The person has done it in the past and
now they have doing it again. The key factors in this reasoning process are the
number of occurrences
of the behaviour and the degree of similarity between
the occurrences. The strongest case in practical terms involves a significant
number of like events in the past and a strong degree of similarity between all
the past events, and between these past events and the event now under
scrutiny by the court. It is as if the person has branded their handiwork.
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