Evidence
Facts are proved by evidence, as indicated by the arrow between the third and
second columns. Evidence to prove Fact 1, Fact 2, and Fact n is conveniently
labelled Evidence 1, Evidence 2, and Evidence n respectively. Conveniently
and simply we say that Evidence 1 proves Fact 1, Evidence 2 proves Fact 2
and so on. This, however, is shorthand for two propositions. Before trial,
Evidence X is the evidence that a party will use in an attempt to prove Fact X.
After the trial, if a party has been successful, Evidence X is the evidence that
actually proved Fact X. But to repeat,
our shorthand that encompasses both
of these propositions is to say that Evidence X “proves” Fact X.
Collectively the evidence can be designated as Evidence 1-n. In summary,
therefore, Evidence 1-n proves Facts 1-n. For the consequences, Con Facts 1-
n are proved by Con Evidence 1-n.
Evidence takes several forms. One of the most common, and of the most
direct concern to lawyers is observational evidence. Methodical analysis of the
nature of observational evidence quickly reveals both its nature and its
relationship to facts. To explain this, consider a typical piece of observational
evidence, where Sally, the witness says: “I saw the defendant walk on
Jeremy’s land”. This reveals the two components of evidence. First, it
consists of facts. In the example, the defendant walked on Jeremy’s land.
Second, it consists of an observational or cognitive claim to truth of these
facts. In the example, the witness Sally claims that the defendant walked on
Jeremy’s land because she “saw” it happen. In view of this, it can be seen that
the relationship of fact and observational evidence is that evidence consists of
facts with the addition of a claim that the facts are true.
Issues of Fact
Introduction
The simple form of the model portrayed above will be developed or expanded
to display and define an issue of fact. Then there will be discussion of how to
resolve the issue of fact.
Defining the Issue
Let us use Element 3 of some cause of action to illustrate an issue of fact in a
hypothetical case. As set up for this illustration, there are two versions of Fact
3, Fact 3P alleged by the plaintiff and Fact 3D alleged by the defendant. Fact
3P satisfies Element 3. Fact 3D, however, does not satisfy Element 3. Instead
it establishes the absence of Element 3, namely, Non Element 3. These can be
set out in a developed form of the model in the following way:
Element 3
Fact 3
Evidence 3
Element 3
Fact 3P
Evidence 3P
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