Faculty of Law

Is Law Special? Rationality, Psychology Is Law Special? Rationality, Psychology

and the Analysis of Evidenceand the Analysis of Evidence

Kólá Abímbólá

' '

Evidence Science Group

UCL London

16 March 2006

In this presentation:

• Rationality and the specialty thesis• Wigmore’s Chart Method• The rationalist-empiricist model• A pyschologistic model

– Stories– Generalizations– Practical Beliefs– Questions & answers– Implications of model for rational analysis of evidence

• Two Examples– Stephen Lawrence– War on Terrorism

• Implications of speciality thesis II

Rationality and the specialty thesis

• Rationality & evidence

• Anglo-American traditions

• Two versions:– The rule-centred approach– Wigmore, Twining et al.

Rules & the speciality thesis• “… the pattern, or essence, of law is to be located in its

distinctive structure of rules.” –Adams & Brownsword.

• “… the process of applying rules is central to legal activity, and … studying the rational structure of this process is central for explaining the character of legal reasoning as a branch of

practical reasoning.” –MacCormick • Speciality thesis I— law is a complex network of

rules of a particular pedigree, and that a study of these rules is the key to a proper understanding of legal reasoning.

• Positivism, H.L.A. Hart

John Henry Wigmore (1863-1943)

• The chart method “enables us to lift into consciousness and to state in words the reason why a total mass of evidence does or should persuaded us to a given conclusion and why our conclusions would or should have been different or identical if some part of the total mass had been different”. (Wigmore, 1937, p.8.)

Specialty thesis II

W h at is th e L aw o f E vid e nce?

T ria l R u le s o f A d m is ib ilityC o n fess io n ru les

H e a rsa y ru les

P ro o fT h e sc ien ce o f ev ide n ceIn fe ren ce s & co n c lus io ns

L a w o f E v ide n ce

Specialty thesis II: Ingredients of Proof Hypotheses, probanda, facts in issue

Evidence

Arguments are chains of reasoning often having many links

Arguments

Generalisations

Ancillary evidence

Figure 1

Speciality thesis II

• Speciality thesis II— law is a complex network of substance blind and domain-specific properties that are not unique to law, hence law is not special. But law is also special the unique way it sets up an empire for making use of these SB & DS ingredients.

Specialty thesis II: cascaded inference• An event distinguished from

evidence of its occurrence

Figure 2

E*

E, EC

H, Hc

E* = Evidence of E

E = Event E occurred

EC = Event E did not occur

H = Major conclusion H is true

Hc = Major conclusion H is not true

The Object of the Method

• “The object … is to determine rationally the net persuasive effect of a mixed mass of evidence” (A&T, 108)

1. What is an acceptable/unacceptable, worst/best possible outcome?

2. Determine whether our opponent’s case is strong or ours too weak

3. Identify the evidence that we need to adduce for our case

Necessary Conditions

1. Distinguish among types of evidence: testimonial, circumstantial, real, judicially noticed evidence (and generalisations)

2. Show the relationship among these types of evidence

3. Facts alleged and facts as believed

4. Shows what our belief actually is, and not what it ought to be

The Apparatus

□ The square for depicting testimonial assertions

○ The circle for depicting circumstantial evidence or inferential propositions

> The open angle to identify an argument that provides an alternative explanation for an inference proposed by the other side

  A vertical triangle to identify an argument that corroborates a proposed inference

The Apparatus Cont. ↑

← →

A line with a directed arrow to indicate the “direction” of a proposed inferential relationship between the factum probans & a factum probandum or between two factum probanda

∞ An infinity symbol to identify testimonial assertions or real evidence that the fact finders will hear or perceive with their senses

¶ A paragraph symbol to identify facts the tribunal will judicially notice or otherwise accepts without evidential support

G This denotes a generalization that is likely to play a significant role in an argument. It is not necessarily supported by evidence.

The Seven Step Protocol

1. Clarification of standpoint, purpose and role;

2. Formulation of potential ultimate probandum or probanda;

3. Formulation of potential penultimate probanda;

4. Formulation of theory and themes of the case: choice of strategic ultimate, penultimate, and intermediate probanda;

5. Compilation of a key-list;

6. Preparation of chart(s); and

7. Completion of the analysis.

The Rationalist-Empiricist Model

• Assumptions about the nature of the Anglo-American tradition of Evidence:

1. Epistemological assumptions

2. Assumptions about fact-finding

3. Reasoning in adjudication

1. Epistemological assumptions

• The correspondence theory of truth;• Knowledge (of past events) = warranted

(justified) true beliefs;• Knowledge of past events always incomplete,

hence probability & induction are important;• Judgement about the probable truth of past

event must be based on the stock of knowledge available to us at the time judgement is being made.

2. Assumptions about fact finding

• Facts in issue must be established on the basis of relevant evidence presented to fact-finder;

• Justice = justice under the law; i.e., substantive law must guide reasoning;

• Justice under the law is based on standards of proof that ≠ to absolute certainty;

• Rectitude of decision (i.e., the correct application of valid substantive laws to facts established as true) is an important social value.

3. Reasoning in Adjudication

• Evidential reasoning is rational iff it is based on the probable truth of facts available to fact-finder;

• The validity of inferences from evidence is governed by the principles of logic;

• Induction makes it possible to assign probable truth values to a present proposition about a past event

A psychologistic model

• Discovery & justification in evidence– Stories– Generalizations– Practical Beliefs– Questions & answers– Implications of model for rational

analysis of evidence

A model for the discovery and justification of evidence

• Stories: – narratives, events, time sequence, meaningful

totality

• Generalizations: – Case-specific generalizations– Scientific generalizations; – General knowledge generalizations

• Practical Beliefs• Questions & answers

First example: Stephen Lawrence

• Significance: highlights the role of the police in the configuration of evidence

• Events leading up to death of SLThe evidence:

– Three witnesses at bus stop– Letter in phone box– The evidence of “James Grant”– Police surveillance– Stacy Benefield

What is a racist incident?

• Definition in Macpherson Report:– “A racist incident is any incident which is

perceived to be racist by the victim or any other person.” (The Macpherson Report, 1999, Recommendation 12.)

What is a racist incident?

• Definition by Association of Chief Police Officers:– “A racist incident is any incident in which it

appears to the reporting or investigating officer that the complaint involves an element of racial motivation, or any incident which includes an allegation of racial motivation made by any person.” (The Macpherson Report, 1999, paragraph 45.16.)

The Evidence from “James Grant”

• “At 19:45 on Friday 23 April this young man, later described by DS Davidson as “a skinhead”, walked into Plumstead Police Station. Detective Constable Christopher Budgen had been recruited on that day as a member of the AMIP team. He was sent to see the young man, and the information received was vital and illuminating. The information (as necessarily edited) … is known as Message 40:

Evidence of James Grant cont. • “A male attended ‘RM [Plumstead] and stated that

the persons responsible for the murder on the black youth, are Jamie and Neil Acourt of 102 Bournbrook Road SE3 together with David Norris and 2 other males identity unknown. That the Acourt Brothers call themselves ‘The Krays’. In fact you can only join their gang if you stab someone. They carry knives and weapons most days. Also, David Norris stabbed a Stacey Benefield a month ago in order to prove himself. … He then went on to say that a young Pakistani boy was murdered last year in Well Hall, that Peter Thompson who is serving life was part of the Acourts gang. That in fact one of the Acourts killed this lad. They also stabbed a young lad at Woolwich town centre called ‘Lee’. He had a bag placed over his head and was stabbed in his legs and arms in order to torture him.” (The Macpherson Report, 1999, paragraph 13.25.)

The Seven-Step ProtocolStep 1: Clarification of Standpoint• A logical analyst looking at a case in order to assess

the whether a suceesful prosecution could have been brought against the gang.

• Not necessarily a campaigner for the Lawrence family.

• This standpoint means that I am not playing the role of a prosecutor, nor am I playing that of the defence.

• I am simply looking at all the information now available in order to analyze the facts of the case

Steps 2 and 3:

Step 2: UP - Stephen Lawrence (SL) was unlawfully killed.

Step 3: Potential Penultimate ProbandaAlternative 1 (The Met’s Original Theory):• Duwayne Brooks (DB) is legally responsible for

SL’s death

Alternative 2 (Law of Complicity):• Jamie Acourt is legally responsible for SL’s death.

Step 4: Theory/Theme of the Case

• Alternative 1 (Police’s Theory):– SL & DB were involved in a narcotic related

incident (a failed-drug deal)– Some possible generalisations:

• All/most/many black male youths are involved in criminal activities.

• All/most/many black male youths are unreliable witnesses.

• All/most/many black male youths are involved in drug-related crimes.

Step 4: Theory/Theme of the Case• Alternative 2 (Law of Complicity):

– If all the evidence (information subsequent to the initial investigation and the private prosecution—this includes the Macpherson report and media reports) is taken together, a case for liability under the laws of complicity can be made against any of the gang members.

– Principals and accessories: Accessories and Abettors Act 1861 which stipulates that anyone who “shall aid, abet, counsel or procure the commission of any indictable offence … shall be liable to be tried, indicted and punished as a principal offender”.

Step 5: Compilation of a key-list1. Stephen Lawrence (SL) was unlawfully killed.2. Duwayne Brooks (DB) is legally responsible for SL’s death.3. Jamie Acourt is legally responsible for SL’s death.4. DB and SL (being black) were engaged in a narcotic-related dispute.5. DB is responsible for stabbing SL.6. Jamie Acourt (JA) is an accomplice (or the principal) in the stabbing of SL.7. JA is a member of the racist gang.8. All members of the gang participated in the attack on SL.9. JA assisted or encouraged the gang attack on SL.10. The gang was involved in the crime.11. Letter sent to the police alleging that JA was involved in the gang attack on SL.12. Testimony of James Grant that JA was a gang member involved in the attack on SL.13. Testimony of DB that: (i) the gang did in fact carry out the attack; and (ii) the gang shouted “…

nigger” before the attack.14. Testimony of witness X at the bus stop.15. Police surveillance evidence (This should be read as a shorthand for the following: (i) secret

recordings in which the gang expressed murderous racist intentions against blacks; (ii) secret recordings in which the gang was observed practicing the precision stabbing technique similar to the one used on SL; and (iii) observation of the gang disposing items of clothing alleged to be those worn by the Acourt brothers on the night of SL’s death.)

16. Testimony of police photographer involved in the surveillance on the Acourt’s residence about events he saw.

17. Testimony of police researcher involved in the surveillance on the Acourt’s residence about events he saw.

18. Testimony of Stacey Benefield.19. JA had a racist murderous emotion towards SL.20. JA had uttered racist threats and had also participated in racist attacks in the past.21. Testimony of witness anonymous witness J about previous racist attacks on others by the

gang.22. All/most/many black male youths are involved in drug-related crimes.

Step 7: Completion of Analysis

• Generalisations: – Dangerous, but indispensable

Second example: Terrorism

FBI Definition

“. . . the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.”

Terrorism as• A specific type of violence;• Perpetrated;• Calculated;• Motivated by political, religious, or ideological

objectives;• Intended to produce fear;• Carried out by sub-national groups.• Stories, genralisations, and the identification of

terrorists– Examples of generalisations used by the US in deciding who

is a terrorist: Owning a casio watch; high school classmates with a known terrorist; owning a rifle

Implications of speciality thesis II

• We cannot analyze evidence without standpoints,• But standpoints lead to relativistic conclusions

because the generalizations, practical beliefs, questions & answers, and the stories that inform evidence analysts’ views are varied and different

• How special can the analysis of evidence is if relativism is at it’s heart?

Conclusions

• There is the need to expand the remit of Wigmorean analysis to psychological considerations about the precise roles of generalizations, practical beliefs, etc, in the discovery and generation of fact and evidence

• Effectively, the study of evidence needs to understand the balance between “nature” and “nurture” in the configuration of fact and evidence