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8 Trial Judges J. 1 (1969)

handle is hein.journals/judgej8 and id is 1 raw text is: JANUARY 1969 Vol. 8, No. 1 St t Tral Judges- @ FINDINGS OF FACTS AND CONCLUSIONS OF LAW By JUDGE MILTON B. CoNFORD Appellate Division, Superior Court of Neu, Jersey The heart of the decisional function of a judge hearing a contested matter without a jury is his formulation of findings of fact and conclusions of law. The understanding by the parties and appellate courts of a trial court determination is dependent dpon the clarity and thorough- ness with which such findings and conclusions are made. Deficiencies in findings and conclusions motivate appeals, since' parties are in such instances not adequately apprised as to why they have lost. And many appeals even- tuate in remands to the trial courts for more adequate findings. Appel- late courts are generally loath to substitute their own factual deter- minations for those of trial judges who have heard the witnesses and they will therefore withhold final determination until they can verify Judge M, B. Contord the precise findings of fact of the trial judge and thereby become enabled to make appropriate application of the pertinent law to such adjudicated facts and avoid explora- tion of immaterial questions. Sound techniques in the making of findings of fact and conclusions of law will be promoted by a review of certain fundamentals. 1. The essence of findings and conclusions in a con- tested matter is an explanation of the judge's reasons for arriving at the determination. 2. Since the determination of a case consists of an application of the controlling principles of law to the material facts, the judge must, specially find the facts from the proofs and state them, but he must also ascertain the controlling principles of law and render his conclusions as to them. 3. If the foregoing is properly done it will be readily possible for the losing party to pinpoint any allegation of error in the determination and enable the appellate court either to render its full and final adjudication in relation to any error asserted or to affirm the judgment entered on the determination. By and large, adherence to the following precepts will be found helpful. 1. The material facts are either admitted or disputed. Findings should include facts in both categories. 2. Unless the findings are rendered in the form of a memorandum or opinion it is unnecessary and undesirable to refer to or discuss the testimony or evidence in the findings of fact. A common deficiency in trial court findings of fact is the substitution of recitals of testimony, frequently extended, for simple findings by the judge as to the facts. 3. Findings of fact may include findings as to basic (evidentiary) facts and as to conclusionary facts. E.g., The defendant drove through a red light and The plaintiff drove at 60 miles per hour are basic facts. The defendant was negligent and John Doe was the agent of Richard Roe are conclusionary facts. The soundness of findings as to conclusionary facts ordinarily depends upon their foundation in basic facts. E.g., in, The defendant drove through a red light. He failed to make observation for traffic entering the intersection from his right. Defendant was negligent, the conclusionary finding Tests upon the findings as to the basic facts. (continued on page 4) Some Aspects of the Thai Criminal Procedure By JUSTICE CIITTI TINGSABADH Supreme Court of Thailand, Bangkok Although Thailand has its laws mainly codified as those of civil law countries, it adopts the adversary trial system of the common law which is the practice of the Anglo- American courts. Plaintiffs and defendants stand, generally speak- ing, on the same footing before the courts. They conduct their own examination and cross-examination of witnesses, with presiding judges as referees to see that the rules of the game are strictly observed by both sides. Judges will intervene in the conduct of cases only when they find it necessary in the interest of justice. Justice Tingsabadh The law governing police power and court procedure is to be found in the Criminal Procedure Code (1934), with some later amendments. The main difference from the Anglo-American method is that there has never been a jury system in Thai courts. Judges decide both questions of fact and law. Except for small cases in which a single judge sits in the trial court, two judges at least are required to sit together on cases at the hearing of evidence. Because trained judges decide ques- tions of fact, the rules on the admissibility of-evidence are not as strict and narrow as those of the Anglo-American laws, wherejules of laymen give their'verdicts on'facts of the cases. The Criminal Procedure Code, Section 226, broadly provides that any material, documentary or oral evidence which may prove the guilt or innocence of the accused is admissible, so far as the evidence has not been obtained by inducement, promise, threat, deception or any other wrongful means. kcontinuea on page 4) CONTENTS, page 2

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