A shout from the rooftops

Let it be shouted from the rooftops; there is no impersonal law distinct from the law that judges have made and will yet make. Once it is accepted that there is no impersonal law it must also be accepted that there is no ‘right’ answer. As there is no impersonal law it is immature for judges to keep thinking and behaving as if there were such an impersonal law. Similarly, as there is no ‘right’ answer, it is equally immature to keep thinking and behaving as if there were a ‘right’ answer. Judges can do no more than harness and manage their intelligence and capabilities so as to provide the best answer possible in the circumstances of the case. As an increasing number of judges obtain a sound conception of the judicial role, the best answer, I believe, will be one that seeks to render justice in the individual case and meet the contemporary needs and expectations of society.

The notion that there is an impersonal law crumbles once it is accepted that there is no law hovering in the heavens waiting to be declared and that, in fact, judges constantly make and remake law. As society is in a constant state of flux so, too, the law is constantly in motion as judges, or some judges, strive to keep abreast of society's needs and expectations. This process, as already observed, represents the irrevocable dynamic of the common law.

Legal fundamentalism

From time to time I have used the expression ‘legal fundamentalists’. They are an extreme lot. Notwithstanding determined self-discipline and the most demanding editing, the phrase has survived all attempts to eliminate it from the text of this book. Persisting with its use reflects the experience or, perhaps, the suffering, of those judges who have sought to bring a viable law into the twenty-first century. They have been met with a brand of legal populism that seeks to deny judges the capacity for choice in administering the law and daunts the judicial instinct to do justice and shape the law to fit the needs of the times. Legal fundamentalism seeks to arrest the common law's essential dynamic. It is this hostile influence on the administration and development of the law that justifies separate reference to the topic. There can be no place for legal fundamentalism in a modern judicial methodology.

Legal fundamentalism encompasses a mode of thought that is essentially simplistic and incomplete. It is best understood as the legal equivalent of religious fundamentalism, being similarly dedicated to the strict maintenance of traditional and historical doctrines and characterised by the extremeness of the positions that are adopted and the evangelical fervency and frequency with which they are expressed. Hence, for example, legal fundamentalists tend to viscerally recoil from anything approaching modernity in the law; are committed to a rigid rule-bound approach and a strict application of the doctrines of precedent and stare decisis; have never perceived or accepted the extent of uncertainty in the law, nor fully adjusted to the inevitability of judges making law; believe in the strict separation of powers and the singular omniscience of Parliament; and are vociferously hostile to anything remotely bordering on judicial creativity.

A methodology for the twenty-first century

No judge, lawyer or academic is going to agree with all the points made in the preceding chapters. Legal theory and discourse is too diverse and the dispositions of judges, lawyers and academics too divergent to achieve any such unanimity. But it is hoped that some judges will attain sufficient benefit to advance their perception of the judicial role. What should emerge is a refreshingly new judicial methodology that will better serve the interests of society. The various strands pursued in this book can be brought together to form a synthesis of realism, pragmatism and practical reasoning, including in that reasoning a critical role for principles.

Judicial reasoning will be re-invigorated by being less entrammelled by unnecessary and outdated dogmas. It will be at once more realistic and pragmatic, it will be forward looking rather than oriented to the past, it will be more honest and transparent, and it will be more diligent and creative in meeting the particular needs of society. The legal process will be no less, and even more, disciplined than at present, and no less, and again even more, beholden to a realistic and modern conception of the rule of law.

Basic to this fresh approach is the reiterated truism that the law is a social institution that exists to serve society. This subjection to the needs and expectations of society is its ultimate rationale and justification.

Introduction: connecting the dots

Everyone draws inferences from evidence. The dog barks, you infer that someone is approaching the house; a loud horn sounds behind me, I infer that the driver is impatient or angry; there is a peculiar smell in the playroom after last night's teenage party; cigarettes? Hash? Or just leftover pizza? There is a fresh scratch on the front fender of my car with traces of red paint; Aunt Edna has just roared off in her new red Ferrari. There are dark clouds overhead, footprints in the sand, lipstick on the shirt, fingerprints on the steering wheel of a stolen car.

Introduction

In this chapter we present some concrete examples and exercises that introduce the main questions and the basic concepts that are involved in analyzing evidence. The purpose of presenting them at this stage is partly to stimulate interest and puzzlement and partly to encourage you to start to think actively about some basic issues. We use many of the examples and exercises presented here to illustrate points developed later in the book.

The examples in part B raise questions about the similarities and differences involved in confronting problems of evidence and inference in different non-legal contexts, including bible stories, intelligence analysis, famous “analysts,” and commonplace events. Each develops variations around the central theme that the kind of reasoning involved in all these different kinds of factual enquiries is based on the same underlying principles that apply differently as the contexts and standpoints vary.

The examples in part C illustrate the same central theme using examples from legal contexts. The first four examples introduce the process of imaginative reasoning and the roles that generalizations and stories play in arguments about disputed questions of fact. The remaining examples involve cases of increasing complexity that focus upon the kinds of analysis required at different stages of criminal and civil cases and raise issues about the relationship between law and fact, standards of proof, and inferential reasoning in both kinds of cases.

We have seen that generalizations are almost always necessary as warrants for every step in inferential reasoning, but that they can often be shown to be the weakest points in an argument (Chapter 3). Similarly, we have seen that stories are not just an alternative to analytical approaches such as the chart method, but rather complement them in important ways (Chapter 6). According to some psychologists and practitioners stories are psychologically necessary to decision-making about issues of fact. Yet another strand in the literature suggests that stories are wonderful vehicles for “cheating” in the process of persuasion in legal contexts. In this chapter we look in more detail at the nature of generalizations and stories, their role in fact-determination, some reasons why they can be labeled dangerous, some links between these dangers, and practical techniques for navigating them in litigation.

Generalizations

Reprise and introduction

Generalizations are warrants that serve as the “glue” that links an item of evidence to a particular interim or ultimate probandum by showing that it is relevant (Foundations 81–83, 109). We have previously examined the role of generalizations in arguments about evidence. In Chapter 3 we identified the role that generalizations perform in the application of the principles of logic in constructing and analyzing arguments.

Introduction: evidence in legal contexts

Within the common law tradition there has been a tendency to equate the subject of evidence with the law of evidence and to marginalize or neglect other dimensions such as the logic of proof, witness psychology, the evidentiary significance of forensic science, and the role of statistics and of narrative in arguing about and deciding contested issues of fact in legal contexts. In Part B, we first describe the shared assumptions upon which evidence scholars have based their work for two centuries – the Rationalist Tradition – and its importance in contemporary practice and then describe and illustrate the principles that form the basis for the logic of proof.

Part C begins with Wigmore's explanation for his view that mastery of the principles of proof is at least as important as mastery of the rules regulating the admissibility and use of evidence. Part D introduces some terminology basic to understanding those principles. The probative processes and logical principles necessary for analyzing evidence and marshaling arguments in legal contexts are presented and developed in Part E.

The Rationalist Tradition

The common law model of adjudication reflects some basic assumptions – assumptions about the nature and proper ends of adjudication, assumptions about the nature of knowledge and the possibility of making accurate present judgments about past events, and assumptions about what is involved in reasoning about disputed questions of fact in forensic contexts. The assumptions underlying contemporary theory and practice, at least as reflected in the writings of those who have specialized in the field of evidence, have persisted with little apparent change since the eighteenth century.

Introduction

Rex v. Bywaters and Thompson is one of England's most famous causes célèbres. On January 9, 1923, Frederick Bywaters and Edith Thompson were hanged for the murder of Edith's husband Percy, just three months and six days after his death. The case is an example of rough as well as speedy “justice.” Public opinion at the time and subsequent commentators have been divided on the question whether Edith was guilty as charged and on a number of subsidiary issues.

In our experience, Bywaters and Thompson is a particularly good vehicle for classroom consideration of modified Wigmorean analysis for several reasons:

1. a It is interesting in itself;

2. b It is a good test of macroscopic analysis not only because it involves a complex mixed mass of evidence, but also because uncertainties about the law relating to aiding and abetting, conspiring and incitement, raise challenging questions about precisely what it was that the prosecution had to prove in order to establish a case that was sufficient to support a conviction in respect of Edith;

3. c There were several possible theories of the case available to each side;

4. d Several key phases of the evidence, including some passages in Edith's letters, invite careful microscopic analysis; and

5. e Some of the key evidentiary issues relate to what Jerome Frank called “wild facts,” that is to say issues relating to such elusive matters as motive, intent, the characters and relationships of the main actors, and the language of lovers. Edith's letters in particular provide an excellent test of the uses and limitations of careful analysis. As one student put it: “If you can analyze Edith's prose, you can analyze anything.”