- Trier of fact
A trier of fact (or finder of fact) is a person who determines facts in a legal proceeding. To determine a fact is to decide, from the evidence, whether something existed or some event occurred. [W A Wilson, 'A Note on Fact and Law' (1963) 26 "MLR" 609, at p 613.] In a jury trial, the jury is the trier of fact. The
juryfinds the facts and applies them to the law it is instructed by the judge to use in order to reach its verdict. Thus, in a jury trial, the findings of fact are made by the jury while the judgemakes legal rulings as to what evidence will be heard by the jury and what law governs the case. The jury is supposed to strictly follow the law as given by the judge, but it does not always do so. In some cases this amounts to jury nullification, i.e. the jury effectively re-writing the law or blatantly ignoring it in a particular case.
In a "
bench trial," or non-jury trial, a judge is the trier of fact. In a bench trial, the judge makes both findings of fact and rulings of law. [W A Wilson, 'A Note on Fact and Law' (1963) 26 "MLR" 609 - For discussion of affirmation of propositions to establish a legal conclusion - "Truth-questions", "Description- / Linguistic-questions", and "Probability-questions"]
It is recognised that a judge of first instance enjoys a particular advantage in that he has himself observed the witness. "Witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saws and heard them which can never be reproduced in the printed page." ["Per" Lord Shaw of Dunfermline, "Clarke v. Edinburgh and District Tramways Co"., 1919 S.C.(H.L.) 35, at p 36.] Accordingly the findings of the judge of first instance as to the credibility and reliability of witnesses ... cannot normally be disturbed by an appellate court.
In Anglo-American based legal systems, there is a strong reluctance to change findings of fact made by a jury. This principle is enshrined in the
Seventh Amendment to the United States Constitution, which provides that "...no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."
Notes and references
Trier of law
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