Arguments, stories and evidence: critical questions for fact-finding (original) (raw)

Arguments and Stories in Legal Reasoning. The Case of Evidence Law

Archives for Philosophy of Law and Social Philosophy, 2020

We argue that legal argumentation, as the subject matter as well as a special subfield of Argumentation Studies (AS), has to be examined by making skilled use of the full panoply of tools such as argumentation and story schemes which are at the forefront of current work in AS. In reviewing the literature, we make explicit our own methodological choices (particularly regarding the place of normative deliberation in practical reasoning) and then illustrate the implications of such an approach through the analysis of a case study in the English law of evidence. We argue that a clear distinction must be drawn between practical argumentation and stories. Because of the institutional separation between legal judgment and fact-finding in common-law jury trials, we argue for the combination of argument and story-based analysis.

A hybrid formal theory of arguments, stories and criminal evidence

Artificial Intelligence and …, 2010

This paper presents a theory of reasoning with evidence in order to determine the facts in a criminal case. The focus is on the process of proof, in which the facts of the case are determined, rather than on related legal issues, such as the admissibility of evidence. In the literature, two approaches to reasoning with evidence can be distinguished, one argument-based and one storybased. In an argument-based approach to reasoning with evidence, the reasons for and against the occurrence of an event, e.g., based on witness testimony, are central. In a story-based approach, evidence is evaluated and interpreted from the perspective of the factual stories as they may have occurred in a case, e.g., as they are defended by the prosecution. In this paper, we argue that both arguments and narratives are relevant and useful in the reasoning with and interpretation of evidence. Therefore a hybrid approach is proposed and formally developed, doing justice to both the argumentbased and the narrative-based perspective. By the formalization of the theory and the associated graphical representations, our proposal is the basis for the design of software developed as a tool to make sense of the evidence in complex cases.

The Role of Stories in Forensic Reasoning

Notwithstanding the fact that scholars such and William Twining, Peter Tiller, David Schum, Mike Redmayne, John Jackson, Kọ́lá Abímbọ́lá, and many others, who fall roughly within “the New Evidence Scholarship” School now focus on proof, not enough has been done on the nature of forensic inference itself. In particular, the manner in which different inferences combine to facilitate the process of reasoning in forensic contexts is often left out.

Argumentation, stories and generalizations: a comment

Law, Probability and Risk, 2007

The underlying theory of the software program described in 'Sense-Making Software for Criminal Investigation' (Bex et al., 2007) complements modified Wigmorean analysis (MWA). Both adopt a qualitative rather than a quantitative approach. MWA is broadly compatible with the kind of logic involved, including abductive inference to the best explanation and the idea of defeasible argumentation. Both approaches are mainly valuable as aids to thinking, especially constructing and evaluating arguments, rather than as methods of presenting them in order to persuade. Both approaches can be applied at different stages of criminal investigation (and more broadly of legal processes), but the specific device of Wigmore charts (one part of MWA) is more useful in hypothesis testing and discarding than in hypothesis formation, which typically requires imaginative reasoning. The Anchored Narratives of Crombag et al. and MWA have similar theoretical assumptions, except that MWA gives a radically different account about the relationship between stories, generalizations and argument. The proposed program has considerable promise, but before it can be of positive practical value in police investigation, more attention needs to be given not only to the obvious dangers of using stories and generalizations in this context but also about what positive guidance can be given to mitigate these dangers. There is, however, an unresolved tension between the simplifying tendencies of formalized computer programming and the tendency of MWA to emphasize the complexities of practical inferential reasoning and argumentation in legal contexts.

Story Schemes for Argumentation about the Facts of a Crime

2010

Abstract In the literature on reasoning on the basis of evidence, two traditions exist: one argument-based, and one based on narratives. Recently, we have proposed a hybrid perspective in which argumentation and narratives are combined. This formalized hybrid theory has been tested in a sense-making software prototype for criminal investigators and decision makers. In the present paper, we elaborate on the role of commonsense knowledge.

In the Field – The Development of Reasons in Criminal Proceedings

Argumentation, 2006

This paper is concerned with argumentation in legal proceedings, namely in criminal cases. My interest is to explore how in the legal realm different argumentation fields interact, the juridical field being just one of them. The paper lays out an approach of studying argumentation in the legal realm in the framework of an ethnographic methodology by identifying the “topical rules” the participants in criminal trials adhere to. Suggesting the notion of field-dependence as a good starting point for the analysis of legal argumentation, I will give several examples of different fields of argumentation interacting in criminal proceedings. The examination of what counts as a good reason and how arguments are employed, negotiated, and evaluated within a criminal proceeding might shed light on the practice of constructing facts and arriving at decisions in court. It can furthermore point at the constitution of legal rationality and how it is produced in criminal trials. I argue that rationality in criminal proceedings is interactively accomplished by negotiating different standards of validity.

Between Evidence and Facts: An Argumentative Perspective of Legal Evidence

2020

In this paper, we will present an argumentative view of legal evidence. In an argumentation-based litigation game, the only purpose of the suitor (S) or the respondent (R) is to maximize their own legal rights while the purpose of the trier (T) is to maintain judicial fairness and justice. Different selections of evidence and different orders of presenting evidence will lead to different case-facts and even adjudicative results. The purpose of litigation is to reconcile a balance among the three parties S, R, and T.

Reason and Proof in Forensic Evidence

Journal of Forensic Research, 2013

This paper examines the process by which forensic investigators generate, discover and configure evidence in pre-trial legal processes. Contrary to the received view in which forensic evidence is regarded as an archetype of objectivity, I argue that the validity, adequacy and persuasiveness of forensic proof is dependent upon elements of Reason that forensic investigators acquire by way of belief and individual interpretation of experiences. Using the examples of fingerprint identification and the analysis of evidence by police offices during the early stages of crime investigations, I argue that forensic evidence is to a large extent subjective.