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.

Forensic Testimony as a Genre of Narrative Discourse

Naukovij časopis Nacìonalʹnogo pedagogìčnogo unìversitetu ìmenì M.P. Dragomanova, 2022

Previous narrative researches have never focused on witnesses as the primary tellers of events in courtroom, but rather on lawyers. It stipulated the need to foreground the role of the witnesses who have firsthand knowledge of these events. To that end, this paper explores forensic testimonies from a new perspective and suggests to consider this type of institutional discourse as a separate kind of the narrative genre. In order to classify forensic testimonies as a genre of narrative discourse it was essential to provide a systematic review of contemporary literature related to the problem of genre definition with the aim of determining relevant criteria for assigning discourses specific generic affiliation. These criteria include: the institutional roles of the participants in courtroom context, the pragmatic goals of the lawyers and the witnesses in co-construction of the story within the testimony, as well as the constraining nature of courtroom context. Further the results of theoretical analysis of genre definition were mapped on major narrative dimensions (tellership, tellability, linearity, embeddedness and moral stance) in institutional context of courtroom hearings. The findings of this research showed that witness narratives in testimonies are fragmented, characterized by nonlinear chronology and nonlinear causal logic of events presentation; even though the witnesses are restricted in what and how they tell, the stories they tell are highly relevant for the fact detection in court; testimonies are of dialogical nature, with the lawyers inevitably becoming co-tellers of the witness story; testimonies are embedded into power-asymmetrical 'question-answer' pattern of examination; the identity of the witness (and their credibility) is constructed and deconstructed throughout the testimony.

Naturalistic model of evidence law in a criminal trial – the perspective of the research program

Polish Law Review, 2017

The purpose of this article is to present the general assumptions of a model which allows to naturalize evidence law. Jaakko Hintikka's Interrogative Model of Inquiry, which aspires to be a universal theory of reasoning conveying both truth and probability, has been used. A proper linkage of information and probability may constitute a measure of epistemic value of the collected evidence. Definitory rules of reasoning, i.e., indicating correct and incorrect inferences, are insufficient. The relationship between information and probability, as a measure of epistemic success, makes it necessary to develop so-called strategic rules. They value the results of correct reasoning. It is necessary, however, to decide that a certain level of epistemic value is an acceptable level of social risk. The designation of abstract levels of justification is linked to return to the variant of the so-called legal evidence system.

Logocratic method and the analysis of arguments in evidence

Law, Probability, and Risk, 2011

Legal analysis is dominated by legal arguments, and the assessment of any legal claim requires the assessment of the strengths and weaknesses of those arguments. The 'logocratic' method is a systematic method for assessing the strengths and weaknesses of arguments. More specifically, it is a method designed to help the analyst determine what degree of warrant the premises of an argument provide for its conclusion. Although the method is applicable to any type of argument, this essay focuses on the logocratic framework for assessing the strengths and weaknesses of evidentiary legal arguments, arguments offered in litigation in which evidentiary propositions are proffered to support hypotheses. The focus is on American law, but the logocratic analysis offered here could be adjusted without much trouble to handle arguments about evidence in other systems of litigation. In any legal system that aspires to have a fact-finding process that is sufficiently reliable to meet the requirements of justice, we might fashion an analogue for the Socratic maxim 'the unexamined life is not worth living': the unexamined evidentiary argument is not worth believing. The logocratic method seeks to help the evidence analyst pursue that Socratic mission, tailored to the rules and institutions of evidence law.

Judicial Fact-Finding: Trial by Judge Alone in Serious Criminal Cases

Melbourne University Law Review, 2003

The ability to choose between trial by jury and trial by judge alone in some jurisdictions presupposes a rational basis for exercising the choice. In this article, the author examines judicial factfinding modalities from comparative and systemic perspectives. The conclusion drawn is that both judicial fact-finders and lay fact-finders process their decision-making similarly. In both instances, fact-finding involves the assimilation of disparate and sometimes complex information. In each case, the drawing of inferences is, of necessity, dependent upon heuristic reasoning. Furthermore, the application of principles of law to proven facts is inexact. However, there are a number of inbuilt safeguards in judicial fact-finding that promote rationality and inhibit cognitive illusion.] * LLB, LLM (Adel), GDLP (SA); Senior Lecturer, Faculty of Law, The University of Adelaide. The author would like to thank all those at the Law School, University of Oregon who provided hospitality and assisted her during her sabbatical in 2001. In addition, the author would like to sincerely thank all the members of the Circuit Court in Eugene, Oregon and the members of the District Court and Supreme Court in South Australia who participated in the survey discussed in this article.