Testimony Of Parties Research Articles

The Swearer's Prayer

At the time elite Americans abandoned or modified Christian theologies of perdition, American procedural law relied ever more strongly on the traditional link between law and the theology of divine punishment: the testimonial oath. While conventional histories of American evidence law tell a rather straightforward modernization story of a move from premodern sacral modes of prooftaking to rational forensic modes of examination, this paper shows that oathtaking did not diminish under modern law reform but significantly expanded with the influence of New York's code of 1848. For the first time in America, procedure codes required all pleadings to be sworn by the parties, and all parties and interested witnesses were made competent to take the oath and testify on the stand. Lawyers at first expected the dread of cross examination to deter perjury, but they quickly adjusted their theories in practice to detect lying under oath, which they believed had become rampant under the codes. The lawyers' faith in their ability to detect truth were stymied as racialized witnesses came before the bar. In order to account for racial disqualifications on testimony in a world increasingly open to party testimony (and perjury), lawyers revived an older theology of perdition, swirling together supposedly premodern and rational modes of investigation well into the twentieth century.

Psychologia sądowa w ocenie zeznań stron i świadków

The analysis of the evidence, particularly the testimony of parties and witnesses is the essence of each process. Particularly important is the appropriate to assign the credibility of the presented theses. Human memory is sometimes unreliable and often on the basis of the analyzed court records raises the question: we remember what happened, or what we want to remember? Analysis of the mechanisms associated with the perception of the facts, their storage in memory and reconstruction and skillful interpretation of what was said “between the lines” can be very helpful.

Proof of foreign law before Icelandic courts: a change of course?

This article looks at the rules on proof of foreign law before Icelandic courts. It provides a detailed discussion on the methods available to ascertain foreign law in civil proceedings, as well as a concise comparison to several relevant jurisdictions. The methods, consisting of party and witness testimony, assessment reports and documents and other visible evidence, are not equally suitable for the intended purpose. As fairly obvious, a party testimony is of little use in this respect. On the contrary, and perhaps less obvious for the international reader, Icelandic law does not allow for expert witness testimony on foreign law, unless the expert has been summoned by court to provide an assessment report on the issue. However, recent judgments show that Icelandic courts have begun giving consideration to unilaterally obtained legal opinions, contrary to accepted practise. This, whether down to inconsistency or a deliberate change of course, represents a more flexible approach then previously acknowledged.

A Positive Law Theory of Contract

Conventional, morally-based, theories of contract have failed us, because they are unable to explain many of the decisions of the courts in contract, and related, cases. They are, for example, unable to explain why courts will hold a party bound by a contract in circumstances where the party was mistaken and held a subjective intention to enter into a contract with different terms. Conventional theories are also unable to explain implied terms in contract; the basis for the requirement that mistaken payments be repaid; nor are they able to explain how and why the doctrine of consideration and the doctrine of promissory estoppel ought to be abandoned. The criminal law faced a parallel problem half a century ago, when natural law explanations of criminal law were found wanting, and were replaced by a positive law theory which was able to explain the basis of the criminal law in terms of positive laws which had as their limited objective the maintenance of peace and good order in the public realm. A positive law theory of contract law, with a considerable explanatory power, has now been developed. That theory starts with the observation that property is an abstract construct created by the positive law of the state. The theory also notes that the meaning of property is such that it entails a number of propositions, or principles. For example, one of those principles stems from the observation that because X has an exclusive right to the use and possession of his property, Y also has an exclusive power to alter his property rights in ways chosen by him. This means, therefore, as a matter of principle derived from the meaning of property, that Y cannot alter, unilaterally, the respective property rights of X and Y. Several other principles are entailed by the meaning of property. Those principles, when applied to the decisions of the courts in cases of the sort mentioned above, are able to provide explanations of, and therefore can be seen to govern, those decisions. That explanatory process is aided by a better understanding of the rules of social discourse which govern the use of implied messages, and by a better understanding of the adverse effect upon the law of contract of the medieval common law rule of evidence which excluded party testimony, and which was not abolished until the mid-nineteenth century.

Toward an Economic Theory of Philosophy: An Interpretation of Lucian's Satire on Philosophy

Richard Posner's recent book, Public Intellectuals: A Study of Decline, is not the first attempt to economically analyze the intellectual marketplace. Eighteen hundred years ago, Lucian applied the same framework to the market for philosophers in the Roman Empire. Though widely seen as a satirist of limited philosophical acumen, Lucian's writings contain enough substance, at least when supplemented with the insights of contemporary economists, to generate an economic theory of philosophy. In seeking to explain the features of the philosophy market, the theory identifies the cost or price of consuming philosophy as time, mental exertion, and money. The benefits sought include truth, firm conviction, status, solidarity, justice, freedom, equality, moral guidance, consolation, and reduction of environmental uncertainty. Philosophy is seen as a risky investment in human capital as well as a credence good. Consumers seek to control these risks in choosing among the available schools of thought by using quality indicators: the character, education, commitment, pedigree, and reputation of philosophic suppliers as well as third party testimony, market share, and price. Since price is taken as a quality signal, as well as a status symbol, competition tends to be over quality, a competition in which the winners for market share tend to be those teachings with attributes best satisfying the set of consumer preferences. Lucian concludes that the philosophy market is imperfect from the standpoint of truth production. Reflecting a behavioral view, Lucian insists that cognitive biases lead consumers to take inordinate risks in following high cost, abstruse philosophies. Moreover, both consumers and suppliers have concerns beyond truth that they are trying to meet in the philosophy market. Further research is necessary to confirm Lucian's behavioral assumptions as well as the over-all model presented in this paper.

The Origins of the Objective Theory of Contract Formation and Interpretation

Most contracts scholars have come to believe that the Subjective Theory of contract formation and interpretation dominated the nineteenth century. This article demonstrates that the objective approach to formation and interpretation of contracts has been dominant since the origins of the common law. There was, indeed, a flirtation with the subjective approach in the mid nineteenth century. This flirtation had few practical consequences because the rules of evidence did not permit parties or other interested persons to testify and the parol evidence rule was vigorously applied. Soon after the bar of party testimony was lifted, the courts altered the rules of relevancy to create a new objective approach. The ultimate root of objectivity is the legal profession's distrust of party testimony. Oliver Wendell Holmes, Jr. is often credited with creating the modern objective theory. His role, however, was to propagate what the courts had already created. Despite the defeat of the Subjective Theory, some remnants survive, particularly in cases of duress and other grounds for avoidance of contracts.

Evidence. Testimony of Parties in Suit for Divorce. Mutual Corroboration

Evidence. Testimony of Parties in Suit for Divorce. Mutual Corroboration

Testimony of Parties in Criminal Prosecutions

Testimony of Parties in Criminal Prosecutions

Testimony of Parties in Criminal Prosecutions

Testimony of Parties in Criminal Prosecutions

Testimony of Parties in Criminal Prosecutions

Testimony of Parties in Criminal Prosecutions