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Note: I had this post with a question that follows, but then I reformed the question again. I've used ChatGPT to help me research this issue, and I think it has been somewhat helpful.


For anyone looking at this post from my last one, I deleted my last post because a conversation with ChatGPT notified me as to it not being the information that I was seeking. Essentially, I was asking the wrong question. I've been noticing I don't get very far asking the wrong questions.

My question was the following: How do judges substantiate that they have satisfied a standard of proof relative to something in order to claim said something as factual?

Judges substantiate that they have satisfied a standard of proof by issuing a ruling or decision that reflects their assessment...

source: ChatGPT

That's not the information I was looking for, as that's not how I meant the word substantiate to be used. I meant to get down to the level of architecture with how judges qualify something as true from the get-go.

Here is part of an extract of a conversation that I had with ChatGPT:

It's important to note that judges are required to follow established rules of evidence and standards of proof, which aim to ensure fairness and impartiality in the legal process. If a judge were to rely solely on their discretion and judgment without considering the rules and standards, then that could be considered a due process violation...

I think that judges rely solely on their discretion and judgment without considering the rules and standards (whereby no judge can consider any said rules and standards because no judge can know of said rules and standards).

Here is what I think is the answer to my question: Judges violate due process in their efforts to make a logical connection between would-be evidence and facts in question because judges rely solely on their discretion and judgment without considering the rules and standards (whereby no judge can consider any said rules and standards because no judge can know of said rules and standards).

Circumstantial evidence in support of my premise:

  1. Cartesian doubt
  2. The need for a justified true belief to be known as a justified true belief in order for it to be knowledge: Advocation of the KK thesis.
  3. The philosophy of skepticism
  4. Infallibilism

Here is ChatGPT's response to my thesis:

I must respectfully disagree with this statement. Judges do not violate due process in their efforts to make a logical connection between evidence and facts in question. In fact, judges are bound by rules and standards of evidence that have been established by law and legal precedent. These rules and standards provide guidelines for judges to evaluate evidence and determine its relevance and admissibility.

Judges are not solely relying on their discretion and judgment when making evidentiary rulings. They are bound by legal precedent and rules of evidence, which provide a framework for making these decisions. Additionally, judges are required to provide reasoning for their evidentiary rulings, which can be reviewed and challenged by higher courts.

While it is true that there may be situations where the evidence is unclear or inconsistent, judges are still required to make a reasoned decision based on the available evidence and legal standards. If a judge were to ignore legal standards and rely solely on their discretion and judgment, that would indeed be a violation of due process. However, the legal system is designed to prevent such violations and to ensure that judges are following established rules and standards.

My bias: I am biased in the generation of this post in that I believe judges arbitrarily claim for there to be logical connections between would-be evidence and facts in question that causes due process (14th amendment of the U.S. Constitution, for instance) to be violated.

UPDATE 1 @ 2:35 p.m. Central standard time on 4/23/2023:

I will update with two things:

  1. An extension to my premise of my thesis for what is speculated to be the answer to my question.
  2. Context to the circumstantial evidence in support of the premise supporting the claim of the thesis.

Extension

Judges rely solely on their discretion and judgment without considering the rules and standards (whereby no judge can consider any said rules and standards because no judge can know of said rules and standards) because there is nothing else judges may rely on; no judge has omnipotence to make sense of anything else.

Now, I will add context to my circumstantial evidence.

Firstly, as part of my research for this issue, I claim that I was wrongfully convicted of the charge of attempt to disarm a peace officer in Illinois. I have spent enough time reflecting that there had to have been procedural issues, such as the admittance of what would be claimed to be evidence of my wrongdoing by prosecution, in my case that caused me to be wrongfully convicted. I chalk it up to the belief that due process was violated. My take on the matter is that prosecutor's actively engage in fraud upon the court by (1) falsely arguing alleged evidence of wrongdoing is representative of actual evidence of wrongdoing, whereby it is false because all people are non-willfully ignorant of the law, (2) recklessly asserting that alleged evidence is representative of actual evidence, (3) the court being deceived as to the alleged evidence's authenticity, and (4) the court suffering harm to its impartiality on the legal guilt of the defendant. I might make a post on non-willful ignorance, but the general idea is that no one can have a JTB (if but fallible JTB) if but know oneself to have a JTB (if but fallible JTB) in order to qualify one's self as not ignorant of the law.

I believe if it's true that a defendant was factually innocent of a charge, then it may be inferred that the defendant's right to due process was violated. My experience with the legal system is from first-hand experience and from my learnings of it from other sources. I had been educated in various skeptical hypotheses about reality, so I believed that I did not know anyone to be a peace officer: I held the theory that I was completely oblivious to my reality. I was not educated on the justified true belief paradigm of knowledge during fighting the felony charge, but I did not believe anyone to be a peace officer: I used a paradigm of theorizing about things and seeking support or refutation of any theory in an attempt to build knowledge. For what I grasp about JTB, even if I believed anyone to be a peace officer, no one could infallibly know that I held such JTB. Although I do not want to go off track, for anyone who thinks the reasonable person standard proves whether or not someone knew someone else to be a peace officer, it is not reasonable to attribute to a hypothetical person that it reasonable to know whether or not anyone is a peace officer unless said hypothetical person is also attributed with omnipotence to overcome universal doubt.

Scenario:

Let's imagine an Illinois judge is having an evidentiary hearing as to whether or not a defendant knowingly attempted to disarm a peace officer.

According to the paradigm of justified true belief, the defendant knew it was disarming a peace officer if it had a JTB as to such. If we accept the paradigm of there having been a fallibly justified true belief, then the defendant may be qualified to have known someone to be a peace officer.

The judge may not be educated in epistemology, but the judge has to make an opinion as to whether or not prosecution's alleged evidence is representative of actual evidence. The first part to doing that is establishing whether or not there is a logical connection rather than "question" (edited 4/24/2023) between the alleged (or "would be") evidence and the facts in question.

There is an issue, though. How can the judge overcome Cartesian doubt in order to ensure whether or not there is a logical connection?

For instance, if it is a fact that an evil genius falsified prosecution's alleged evidence that supports the fact in question (namely, the question of whether or not the defendant attempted to disarm a peace officer), to the point that prosecution does not know of its validity but such validity is presumed, then any alleged logical connection that the judge claims exists for prosecution's alleged evidence to be entered into record would be falsely alleged.

Let's return this to ChatGPT's implied claim that judges know for there to be rules and standards that they have to rely on.

With Cartesian doubt in mind, a judge cannot know if it has been deceived as to what the standards and rules are that it should obey in determining whether or not there is a logical connection between would-be evidence and facts in question. I presume the judge would need omnipotence to overcome deception by any previously omnipotent being in order for the judge to ensure it is not being deceived as to said rules and standards.

Regardless, perhaps by luck a judge could have a justified true belief as to what the rules and standards are. But the judge would be recklessly qualifying would-be evidence as relevant evidence of establishing the truth of a fact in question unless (relative to the KK thesis) the judge could know its JTB to be a JTB.

Relative to the philosophy of skepticism, it is presumed that are various grounds and scenarios that may exist to posit that a judge cannot know what the rules and standards are. Maybe, by chance, the universe was made five minutes prior to evidentiary arguments and the judge has a false memory of the rules and standards.

But if the judge was infallible, then the judge would not be in error nor have the possibility of error in determining what the rules and standards are for determining whether or not there is a logical connection between would-be evidence and facts in question.


Update 2 on 4/25/2023:

Stevan S. Saban's answer has informed me that I have failed to properly define/introduce all of my terms, at least "would-be evidence."

By would-be evidence, I was referring to "something" that would "be accepted by the court as evidence," "receivable as evidence in legal proceedings..."

"In determining the admissibility of evidence, the judge should determine the relevance and materiality of the information... In the United States, a judge presiding over a jury trial will determine the relevance and the jury will determine the materiality..." (source)

The idea is that before a trial, there is a hearing held on whether or not materials, information, and such should be admitted into evidence for use during the trial. The judge oversees the admission of whether or not said things are entered (allowed) into evidence (allowed to be considered as evidence for use during the trial).

There are cases, such as restraining order cases, where there is no hearing before a trial on admitting things as evidence. In such a case, at least here in Illinois, a judge would be presiding over whether or not something may be considered evidence. But, still, a judge would need to develop that "logical connection" between would-be evidence and facts in question in order for the judge to consider such materials/"would-be evidence" as relevant in order to prove or disprove something being a fact.

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  • Is this question specific to common law jurisdictions, and even more specifically, to justice as practice in the US?
    – Frank
    Apr 21, 2023 at 21:57
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    I agree with ChatGPTs answer and would give it a +1 if it was listed as an answer.
    – user64314
    Apr 22, 2023 at 3:38
  • @Frank There is the bias of this post being mostly applicable to the U.S., but due process is not solely had in the U.S.. Apr 22, 2023 at 15:20
  • @StevanV.Saban ChatGPT hallucinated by generalizing that judges have to follow precedent at all times. Furthermore, ChatGPT has generalized that judges have knowledge of what the rules of evidence and legal standards are, relative to the KK thesis. I have noticed that ChatGPT's "understanding" of KK thesis is not the most advanced. Apr 22, 2023 at 15:27
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    A judge (or a jury), being mere humans, have nothing to offer but their own discretion and judgement based on the evidence available to them and precedents. That's why in the USA the standard for deciding if a defendant is guilty is "beyond reasonable doubt", not "beyond the shadow of a doubt". If Cartesian doubt was the standard for decisions of justice, no decision could ever be made and there might as well be no criminal justice system at all. Judges can't have a magical access to truth and therefore such a level of proof can't be considered part of the "due" process.
    – armand
    Apr 24, 2023 at 6:37

5 Answers 5

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I'm glad you keep hacking away at the philosophical itch!

The Philosophical Nature of the Question

Judges violate due process in their efforts to make a logical connection between would-be evidence and facts in question because judges rely solely on their discretion and judgment without considering the rules and standards (whereby no judge can consider any said rules and standards because no judge can know of said rules and standards).

The truth of this claim turns on the phrase "no judge can know of said rules and standards". Thus, while this is a philosophy of law question, it's certainly also a question of your metaepistemological thesis. You adduce epistemological topics in support of your thesis: Cartesian doubt, the KK thesis, skepticism, and infallibilism. Let there be little doubt that your question as currently formulated deserves the deliberation of this forum.

Rejecting Your Claim and Infallibilism

So, tentatively, we have already in your now-deleted post exchanged words regarding the foundations of your argument. I will now politely restate: your metaepistemological thesis about the nature of knowledge which supports your conclusion, that judges don't have the capacity to know enough to fairly do their job is flawed. I will attempt to show that each of your four pillars of epistemological support are problematic. It is my experience that people are seldom convinced by logic, but I would be disrespecting you if I concluded outright you were incapable.

The Problem with Descartes Own Outcome of Cartesian Doubt

Your certainty about uncertainty is based on the flawed certainty of introspection. Introspection is a fallible path to knowledge and modern science as a naturalistic pillar of epistemological analysis supports rejecting radical and moderate skepticism as excessively doubtful and infallibilism as excessively confident. From IEP's Fallibilism:

But most subsequent epistemologists have been more swayed by the fallibilism emerging from the Evil Genius argument than by Descartes’ reply to that argument. (For a discussion of these issues in Descartes’ project, see Curley 1978; Wilson 1978.) One common epistemological objection to his use of the Cogito is as follows. How could Descartes have known that it was he in particular who was thinking? Shouldn’t he have rested content with the more cautious and therefore less dubitable thought, “There is some thinking occurring” — instead of inferring the less cautious and therefore more dubitable thought, “I am thinking”?

If we add to the philosophical argument against the certitude of introspection as a foundation of knowledge contemporary psychological research, such as those provided by David Dunning's Self-Insight and Kahneman's Thinking, Fast and Slow, then it becomes obvious to see why judges, like all people should be held accountable not to production of infallible knowledge, but fallibly so. The average contemporary US judge does a reasonably good job of navigating delusion, illusion, deception, confabulation, fallacy, hallucination, and so on by adhering to some rather well-tried formulas of standards of evidence commensurable with the context to meet a judicial burden of proof.

To rely on introspection as a means of certainty alone is a common manifestation of a cognitive bias that Dunning directly addresses in his second chapter. Human testimony, even our own to ourselves is unreliable to a sufficient degree as to require an approach like heterophenomenology. In fact, those in law who support legal realism do exactly that.

Rejecting the Infallibility of Science and the KK Thesis

Again, from the IEP's article on Fallibilism:

Hume’s argument showed, at the very least, the inescapable fallibility of an extremely significant kind of belief — any belief which either is or could be an inductive extrapolation from observational data. According to Hume, no beliefs about what is yet to be observed (by a particular person or some group) can be infallibly established on the basis of what has been observed (by that person or that group).

There's a reason the phrase 'scandal of induction' gets thrown around. Induction fundamentally makes science and empirical methods more broadly conceived fallible. There are several addenda to this. Human reason is often subject to non-montonicity (SEP) and defeasibility (SEP), and humans are not purely rational creatures, but are inexorably constrained by bounded rationality (SEP). The KK thesis strengthens claims to knowledge by extending the predicate in such a way to explicitly invoke epistemological justification, true. But from WP:

An application of the principle may involve Hume's skepticism, which holds that it is not possible to know the induction hypothesis needed to determine the derivative knowledge that P from what is already known.

And here again we arrive at fallibilism.

Addressing the Flaws of Skepticism

Skepticism is a broad term. So let us observe the distinction between skepticism of the Ancient Greeks and contmporary skepticism (IEP):

Philosophical views are typically classed as skeptical when they involve advancing some degree of doubt regarding claims that are elsewhere taken for granted. Varieties of skepticism can be distinguished in two main ways, depending upon the focus and the extent of the doubt.

What we now come about what most professional epistemologists themselves reject, radical skepticism. (Audi has a chapter at the end of his book on Epistemology, and I suspect every epistemologist worth their salt has an argument of equivalent import.) However, such arguments generally lead epistemologists to a position of fallibilism. From WP's article on Pyrrhonism:

Fallibilism is a modern, fundamental perspective of the scientific method, as put forth by Karl Popper and Charles Sanders Peirce, that all knowledge is, at best, an approximation, and that any scientist always must stipulate this in her or his research and findings. It is, in effect, a modernized extension of Pyrrhonism.

Here we see clearly, that it is defensible that knowledge exists, that it need not be subject to a strong interpretation, and that the possibility of error does not support the rejection of belief as knowledge. This is why epistemology marches on in the face of the Gettier's argument.

Why Moderate to Mild Skepticism Rejects Infallible Reason

We have now exposed that three of the four domains of knowledge that you have adduced in support of a strong interpretation of knowledge actually support a weak interpretation of knowledge. There are, of course, some limited domains where a strong interpretation of knowledge to lend themselves, particularly in mathematical logical and particular applications of truth-conditional semantics. The model theoretic underpinning of computability theory is an important contribution not just in relation to understanding physical computation, but for the philosophical implications that men like Turing, Goedel, Church, and others have brought to the table.

But that sort of deductive-centric certainty that colors knowledge is a psychological desire that cannot be satiated in informal logic, natural language, and the public world we share. Infallibility applies to very limited cases of artificial languages and narrow circumstances that belie the more chaotic, unpredictable physical world we live in, and application of those methods and appurtenant metaepistemological theory are overwhelming rejected by contemporary epistemologists. From Fallibilism (IEP):

Fallibilism is an epistemologically pivotal thesis, and our initial priority must be to formulate it carefully. Almost all contemporary epistemologists will say that they are fallibilists. Yet the vast majority of them also wish not to be skeptics. They would rather not be committed to embracing principles about the nature of knowledge and justification which commit them to denying that there can be any knowledge or justified belief. This desire coexists, nonetheless, with the belief that fallibility is rampant. Many epistemological debates, it transpires, can be understood in terms of how they try to balance these epistemologically central desires. So, can we find a precise philosophical understanding of ourselves as being perpetually fallible even though reassuringly rational and, for the most part, knowledgeable?

My opinion is yes, out of necessity of being physically embodied and imbued with instrumental rationality (SEP).

Why Judges Imperfectly Administer Law

Judges are people, and in the better cases, are moderately equipped to do the sort of epistemological work to ensure that equitable relief is prescribed and that criminal justice is administered. It is not a case of whether or not decisions are predicated upon meeting a burden of proof absolutely, but one of degree. To require the application of a strong interpretation of knowledge is black-and-white speciousness. In the philosophy of law, there are two philosophical acknowledgment of the fallible nature of justice. Legal realism is one strong example, and the other comes by way of critical theory in a legal metaphysical interpretation. There's no doubt that a court of law is not necessarily a court of justice. I live in Cook County which should be infamous for that fact (WTTW) (and is often refered to locals as 'Crook County'). And certainly disparity in law are self-evident and a function of the individual judge's motivations (Chicago Trib).

But to try to argue a strong theory of knowledge predicated upon infallibilism to support the claim that all judges are incapable of knowing what is the connection between evidence and standards of proof thereby violating procedural due process in the spirit of radical skepticism is excessive. That demand placed on legal jurisprudence is irrational and academic. Whatever flaws in the epistemology of a jurist are evinced, one simply cannot jump to the conclusion that US law is some sort of post-modernist charade subject to the whims of the deep state.

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  • The philosopher everyone should have in mind when talking about the role and the power of judges and how the very existence of individual judges makes the compatibility of democracy and Rule of Law questionable is Carl Schmitt imho.
    – Philip Klöcking
    Apr 22, 2023 at 18:08
  • @PhilipKlöcking Thanks. Which work? And indirectly thanks for the intro to streitsbare Demokratie. We could use some of that given our recent politics at the Federal level.
    – J D
    Apr 22, 2023 at 19:46
  • Constitutional Theory and The Concept of the Political are his two main works on political philosophy and the theory of law. His Nazi history aside he makes good points and has some interesting arguments in these books that only in the last 20-odd years resurfaced as to be reckoned with.
    – Philip Klöcking
    Apr 22, 2023 at 19:52
  • @JD It will take me some time to review your attacks to the circumstantial evidence, but my first impression is that you have engaged in a strawman argument. I would have likened an expansion on why you think such "radical skepticism is excessive." I don't think such is excessive. It appears the rebuttal to my thesis might be that judges only need to provide sufficient reasons in support of why they think they've met a standard of proof. But any alleged sufficiency may be questioned, and I think such alleged sufficiency would be lacking in foundation. Thank you for your response, nonetheless. Apr 23, 2023 at 16:39
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    basis that radical skepticism is rejected overwhelmingly in contemporary philosophical approach as itself poorly reasoned and largely rejected indefensible because any argument that purports to be good must rest on the both soundness and validity, or if you prefer strength and cogency. I see nothing wrong with the inference to reach the conclusion which is somewhat affirmed through other lines of attack. But then I may misunderstand the entire enterprise you are engaged in. I was shooting from the hip, and will review if you provide feedback.
    – J D
    Apr 23, 2023 at 17:45
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Do judges violate due process in their efforts to make a logical connection between the would-be evidence and the facts in question?

You have said a mouthful. Here is what I can offer.

First, just tell us what happened. After your update #1, it is plain that there is more going on here than first meets the eye.

Now to your amended proposed answer:

Judges rely solely on their discretion and judgment without considering the rules and standards (whereby no judge can consider any said rules and standards because no judge can know of said rules and standards) because there is nothing else judges may rely on; no judge has omnipotence to make sense of anything else.

Here, ChatGPT got it right. There are a lot of rules in place to assure an accurate decision.

But what about the KK Thesis (I admit that I had to hit the digital books to learn about this idea)? Wikipedia says that the Thesis holds that:

[O]ne cannot know that P is, if one does not know whether one's knowledge of P is correct. Its application in science can be expressed in the way that it must not only justify its knowledge claims but it must also justify its method of justifying. Wikipedia, "KK thesis".

In the courtroom, the judge has the local procedural rules. In federal trial court, these are the Federal Rules of Civil Procedure. There is a similar set of Criminal Rules. The application of such rules allows the court to find, as fact, that "P is". Following the procedural rules justifies the finding.

So far, so good. But what about justifying the method of justifying? Here the Rules of Evidence step in. Here is the logical connection between the would-be evidence and the facts in question.

Behind the judicial finding that "P is" lies an extraordinarily complex set of rules about what may be believed. These rules are the result, for example, of decisions about which relationships are so important to society that truthful and relevant evidence may not reach the court when such evidence arises within those relationships. Together, the rules of evidence justify the method of justifying.

When a court disregards such rules, its decision ceases to be accurate, and becomes arbitrary and capricious. An arbitrary decision truly does deprive the citizen "of life, liberty, or property, without due process of law." U.S. Constitution, Ams. 5, 14.

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  • Thank you for your comment. The narrative is somewhat long but I have one prepared that I might link to. As to your answer, as a skeptic might question, how do you KNOW those rules exist? To me, it seems you speculate as to such and fail to notice how I addressed that issue in my update #1. Apr 24, 2023 at 16:19
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I would argue that it is the prosecutor or DA ( in conjuction with law enforcement), that makes the initial logical connection between would-be evidence and the facts in question before and after charges are filed.

the admittance of what would be claimed to be evidence of my wrongdoing by prosecution, in my case that caused me to be wrongfully convicted. I chalk it up to the belief that due process was violated.

Any evidence that is allowed, can be challenged by a defense attorney. Unless the judge banned you from having your attorney refute the evidence in front of a jury, there is no violation of procedural due process. An argument can be made for violating due process if a judge does not allow evidence to be heard by a jury which can occur when evidence is illegally obtained. In this instance, many of your arguments can apply, but it is the burden of the defense attorney to argue on your behalf.

A judge violates due process if an attempt is made to make a connection between the evidence and the facts in question when ruling on the allowability of the evidence. A judge is only interested if the evidence was obtained legally. The facts of the case should not enter into it. The logical connection between the evidence and facts is argued by attorneys and made by the jury.

I argue that most judges don't look at the facts of case, but simply whether the evidence itself is legal (obtained legally).

IMHO The defense attorney failed you not the judge.

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  • Yes, I consider there was ineffective assistance of counsel, too, which may explain why a due process violation occurred in my situation. However, please, if possible, craft your answer relative to my question in this post's title. For example, "Judges do/don't violate due process in their efforts to make a logical connection between would-be evidence and facts in question because ..." Apr 25, 2023 at 15:25
  • Do you mean to say that Judges violate do not violate due process in their efforts to make a logical connection between would-be evidence and facts in question because they do not engage in such efforts? I'm having difficulty grasping if you meant to state "if there is an attempt to make a connection..." Apr 25, 2023 at 15:38
  • @DennisFrancisBlewett I've updated my answer based on your comment
    – user64314
    Apr 25, 2023 at 15:38
  • It appears that you're referring to information and/or materials that have been admitted as evidence by the judge for trial. I was referring to information and/or materials before they have been admitted to evidence for trial. Hence the word "would-be evidence." Apr 25, 2023 at 15:42
  • @DennisFrancisBlewett I've updated based on your last comment.
    – user64314
    Apr 25, 2023 at 16:24
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I'm sorry you felt you were unfairly treated by the justice system, but your question seems to me to be utterly academic. The nature of the criminal justice system in the US, as in the UK, is that you have two sides, one of which tries to paint the blackest possible picture of a defendant's guilt, while the other tries to paint the whitest possible picture of the defendant's innocence, and it is down to a jury to decide which picture is the more plausible. The ultimate test of reasonableness is the collective view of the jury. If you want to say that a jury is incapable of reaching a reasonable view because of Cartesian doubt, the problem of criterion, Umschaffer's identity paradox or any other number of arcane philosophical issues, then clearly you are free to do so, but it is irrelevant- you are trying to judge the process by criteria that the system doesn't recognise as valid.

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Sometimes, presuming that behavioral conditioning (such as in the form of pain and suffering) befalls an adjudicator who would put in effort "to make a logical connection between would-be evidence and facts in question" until (1) the adjudicator ensures due process or until (2) absolute death befalls the adjudicator for not upholding due process, because there was, is, and will be insufficient evidence to the contrary.

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