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Inferential Findings of Fact

While still within the realm of findings of fact, these involve some allowable inference or conclusion drawn

from primary facts to a secondary factual conclusion, in the nature of circumstantial evidence. These findings

should generally be prefaced by findings concerning the credibility of those testifying to the primary facts.

“Based on officer Gonzalez’s testimony that it was his normal practice to read Miranda warnings before

taking a statement, the court finds as a reasonable inference that he read Miranda warnings to Smith before

taking the statement in question.”

Conclusory Findings

These should be avoided and are generally worthless. A conclusory finding is so broad that it begs the

question, “What specific facts led you to make this broad assertion?” It is often drafted to answer issues that

are falsely assumed to be “mixed questions” in order to avoid the tedious process of breaking the issue down

into component facts that add up to such things as reasonable suspicion or probable cause.

“The court finds that officer Smith detained the defendant by the manner in which he spoke to him.” [What

specifically did officer Smith say, how did he say it, and what were the surrounding circumstances?]

Findings on Mixed Questions

Mixed questions can be tricky and often require subjective and normative judgments by the trial court.

They generally involve the application of a legal principle or test that gives the trial court some amount of

discretion above merely finding true the underlying historical facts. Whether it is ultimately a mixed question

or a pure legal question dependent upon underlying historical facts turns on the amount of discretion the

law gives to the trial court and how the courts have interpreted the issue. For instance, whether to apply the

excited utterance exception to the hearsay rule is subject not only to the historical facts of the situation but

also allows for some discretion by the trial court as to whether the totality of the circumstances justify this

exception—giving rise to a mixed question. On the other hand, “reasonable suspicion,” though it might at

first appear to be a mixed question, has consistently been interpreted as a legal question subject to de novo

review based on the historical facts.

“The trial court finds that when the declarant yelled, ‘Homer, how could you have done this?’ he was

still under the stress of excitement caused by his having witnessed the murder and that his declaration

amounted to an excited utterance.”

Other Considerations

Identifying the Dispositive Issues

Findings should be crafted based on the dispositive legal issues. As stated earlier, some background

findings may be helpful to place those issues in context, but you should resist the temptation to turn every

bit of testimony into a discreet finding of fact. For example, if time is not an issue, you do not need a finding

that the officer responded to the call at 4:59 a.m. However, you should be vigilant to include findings on

every truly dispositive issue, even if it appears that the issue is uncontested, as the judge generally has the

discretion to disbelieve even uncontroverted testimony.


Sequence of Findings

Whether to organize the findings chronologically or in the order of witness testimony is generally a matter of

style and personal preference. While chronological order is more helpful when reviewing findings, findings in

the order of witness testimony relieve the reviewer of having to jump around in the record. The complexity of

the issues and the evidence may suggest which method is more appropriate. In complex cases, subheadings

may be useful to identify the issues and the testifying witnesses.