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Contributors
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- By Mitchell Aboulafia, Frederick Adams, Marilyn McCord Adams, Robert M. Adams, Laird Addis, James W. Allard, David Allison, William P. Alston, Karl Ameriks, C. Anthony Anderson, David Leech Anderson, Lanier Anderson, Roger Ariew, David Armstrong, Denis G. Arnold, E. J. Ashworth, Margaret Atherton, Robin Attfield, Bruce Aune, Edward Wilson Averill, Jody Azzouni, Kent Bach, Andrew Bailey, Lynne Rudder Baker, Thomas R. Baldwin, Jon Barwise, George Bealer, William Bechtel, Lawrence C. Becker, Mark A. Bedau, Ernst Behler, José A. Benardete, Ermanno Bencivenga, Jan Berg, Michael Bergmann, Robert L. Bernasconi, Sven Bernecker, Bernard Berofsky, Rod Bertolet, Charles J. Beyer, Christian Beyer, Joseph Bien, Joseph Bien, Peg Birmingham, Ivan Boh, James Bohman, Daniel Bonevac, Laurence BonJour, William J. Bouwsma, Raymond D. Bradley, Myles Brand, Richard B. Brandt, Michael E. Bratman, Stephen E. Braude, Daniel Breazeale, Angela Breitenbach, Jason Bridges, David O. Brink, Gordon G. Brittan, Justin Broackes, Dan W. Brock, Aaron Bronfman, Jeffrey E. Brower, Bartosz Brozek, Anthony Brueckner, Jeffrey Bub, Lara Buchak, Otavio Bueno, Ann E. Bumpus, Robert W. Burch, John Burgess, Arthur W. Burks, Panayot Butchvarov, Robert E. Butts, Marina Bykova, Patrick Byrne, David Carr, Noël Carroll, Edward S. Casey, Victor Caston, Victor Caston, Albert Casullo, Robert L. Causey, Alan K. L. Chan, Ruth Chang, Deen K. Chatterjee, Andrew Chignell, Roderick M. Chisholm, Kelly J. Clark, E. J. Coffman, Robin Collins, Brian P. Copenhaver, John Corcoran, John Cottingham, Roger Crisp, Frederick J. Crosson, Antonio S. Cua, Phillip D. Cummins, Martin Curd, Adam Cureton, Andrew Cutrofello, Stephen Darwall, Paul Sheldon Davies, Wayne A. Davis, Timothy Joseph Day, Claudio de Almeida, Mario De Caro, Mario De Caro, John Deigh, C. F. Delaney, Daniel C. Dennett, Michael R. DePaul, Michael Detlefsen, Daniel Trent Devereux, Philip E. Devine, John M. Dillon, Martin C. Dillon, Robert DiSalle, Mary Domski, Alan Donagan, Paul Draper, Fred Dretske, Mircea Dumitru, Wilhelm Dupré, Gerald Dworkin, John Earman, Ellery Eells, Catherine Z. Elgin, Berent Enç, Ronald P. Endicott, Edward Erwin, John Etchemendy, C. Stephen Evans, Susan L. Feagin, Solomon Feferman, Richard Feldman, Arthur Fine, Maurice A. Finocchiaro, William FitzPatrick, Richard E. Flathman, Gvozden Flego, Richard Foley, Graeme Forbes, Rainer Forst, Malcolm R. Forster, Daniel Fouke, Patrick Francken, Samuel Freeman, Elizabeth Fricker, Miranda Fricker, Michael Friedman, Michael Fuerstein, Richard A. Fumerton, Alan Gabbey, Pieranna Garavaso, Daniel Garber, Jorge L. A. Garcia, Robert K. Garcia, Don Garrett, Philip Gasper, Gerald Gaus, Berys Gaut, Bernard Gert, Roger F. Gibson, Cody Gilmore, Carl Ginet, Alan H. Goldman, Alvin I. Goldman, Alfonso Gömez-Lobo, Lenn E. Goodman, Robert M. Gordon, Stefan Gosepath, Jorge J. E. Gracia, Daniel W. Graham, George A. Graham, Peter J. Graham, Richard E. Grandy, I. Grattan-Guinness, John Greco, Philip T. Grier, Nicholas Griffin, Nicholas Griffin, David A. Griffiths, Paul J. Griffiths, Stephen R. Grimm, Charles L. Griswold, Charles B. Guignon, Pete A. Y. Gunter, Dimitri Gutas, Gary Gutting, Paul Guyer, Kwame Gyekye, Oscar A. Haac, Raul Hakli, Raul Hakli, Michael Hallett, Edward C. Halper, Jean Hampton, R. James Hankinson, K. R. Hanley, Russell Hardin, Robert M. Harnish, William Harper, David Harrah, Kevin Hart, Ali Hasan, William Hasker, John Haugeland, Roger Hausheer, William Heald, Peter Heath, Richard Heck, John F. Heil, Vincent F. Hendricks, Stephen Hetherington, Francis Heylighen, Kathleen Marie Higgins, Risto Hilpinen, Harold T. Hodes, Joshua Hoffman, Alan Holland, Robert L. Holmes, Richard Holton, Brad W. Hooker, Terence E. Horgan, Tamara Horowitz, Paul Horwich, Vittorio Hösle, Paul Hoβfeld, Daniel Howard-Snyder, Frances Howard-Snyder, Anne Hudson, Deal W. Hudson, Carl A. Huffman, David L. Hull, Patricia Huntington, Thomas Hurka, Paul Hurley, Rosalind Hursthouse, Guillermo Hurtado, Ronald E. Hustwit, Sarah Hutton, Jonathan Jenkins Ichikawa, Harry A. Ide, David Ingram, Philip J. Ivanhoe, Alfred L. Ivry, Frank Jackson, Dale Jacquette, Joseph Jedwab, Richard Jeffrey, David Alan Johnson, Edward Johnson, Mark D. Jordan, Richard Joyce, Hwa Yol Jung, Robert Hillary Kane, Tomis Kapitan, Jacquelyn Ann K. Kegley, James A. Keller, Ralph Kennedy, Sergei Khoruzhii, Jaegwon Kim, Yersu Kim, Nathan L. King, Patricia Kitcher, Peter D. Klein, E. D. Klemke, Virginia Klenk, George L. Kline, Christian Klotz, Simo Knuuttila, Joseph J. Kockelmans, Konstantin Kolenda, Sebastian Tomasz Kołodziejczyk, Isaac Kramnick, Richard Kraut, Fred Kroon, Manfred Kuehn, Steven T. Kuhn, Henry E. Kyburg, John Lachs, Jennifer Lackey, Stephen E. Lahey, Andrea Lavazza, Thomas H. Leahey, Joo Heung Lee, Keith Lehrer, Dorothy Leland, Noah M. Lemos, Ernest LePore, Sarah-Jane Leslie, Isaac Levi, Andrew Levine, Alan E. Lewis, Daniel E. Little, Shu-hsien Liu, Shu-hsien Liu, Alan K. L. Chan, Brian Loar, Lawrence B. Lombard, John Longeway, Dominic McIver Lopes, Michael J. Loux, E. J. Lowe, Steven Luper, Eugene C. Luschei, William G. Lycan, David Lyons, David Macarthur, Danielle Macbeth, Scott MacDonald, Jacob L. Mackey, Louis H. Mackey, Penelope Mackie, Edward H. Madden, Penelope Maddy, G. B. Madison, Bernd Magnus, Pekka Mäkelä, Rudolf A. Makkreel, David Manley, William E. Mann (W.E.M.), Vladimir Marchenkov, Peter Markie, Jean-Pierre Marquis, Ausonio Marras, Mike W. Martin, A. P. Martinich, William L. McBride, David McCabe, Storrs McCall, Hugh J. McCann, Robert N. McCauley, John J. McDermott, Sarah McGrath, Ralph McInerny, Daniel J. McKaughan, Thomas McKay, Michael McKinsey, Brian P. McLaughlin, Ernan McMullin, Anthonie Meijers, Jack W. Meiland, William Jason Melanson, Alfred R. Mele, Joseph R. Mendola, Christopher Menzel, Michael J. Meyer, Christian B. Miller, David W. Miller, Peter Millican, Robert N. Minor, Phillip Mitsis, James A. Montmarquet, Michael S. Moore, Tim Moore, Benjamin Morison, Donald R. Morrison, Stephen J. Morse, Paul K. Moser, Alexander P. D. Mourelatos, Ian Mueller, James Bernard Murphy, Mark C. Murphy, Steven Nadler, Jan Narveson, Alan Nelson, Jerome Neu, Samuel Newlands, Kai Nielsen, Ilkka Niiniluoto, Carlos G. Noreña, Calvin G. Normore, David Fate Norton, Nikolaj Nottelmann, Donald Nute, David S. Oderberg, Steve Odin, Michael O’Rourke, Willard G. Oxtoby, Heinz Paetzold, George S. Pappas, Anthony J. Parel, Lydia Patton, R. P. Peerenboom, Francis Jeffry Pelletier, Adriaan T. Peperzak, Derk Pereboom, Jaroslav Peregrin, Glen Pettigrove, Philip Pettit, Edmund L. Pincoffs, Andrew Pinsent, Robert B. Pippin, Alvin Plantinga, Louis P. Pojman, Richard H. Popkin, John F. Post, Carl J. Posy, William J. Prior, Richard Purtill, Michael Quante, Philip L. Quinn, Philip L. Quinn, Elizabeth S. Radcliffe, Diana Raffman, Gerard Raulet, Stephen L. Read, Andrews Reath, Andrew Reisner, Nicholas Rescher, Henry S. Richardson, Robert C. Richardson, Thomas Ricketts, Wayne D. Riggs, Mark Roberts, Robert C. Roberts, Luke Robinson, Alexander Rosenberg, Gary Rosenkranz, Bernice Glatzer Rosenthal, Adina L. Roskies, William L. Rowe, T. M. Rudavsky, Michael Ruse, Bruce Russell, Lilly-Marlene Russow, Dan Ryder, R. M. Sainsbury, Joseph Salerno, Nathan Salmon, Wesley C. Salmon, Constantine Sandis, David H. Sanford, Marco Santambrogio, David Sapire, Ruth A. Saunders, Geoffrey Sayre-McCord, Charles Sayward, James P. Scanlan, Richard Schacht, Tamar Schapiro, Frederick F. Schmitt, Jerome B. Schneewind, Calvin O. Schrag, Alan D. Schrift, George F. Schumm, Jean-Loup Seban, David N. Sedley, Kenneth Seeskin, Krister Segerberg, Charlene Haddock Seigfried, Dennis M. Senchuk, James F. Sennett, William Lad Sessions, Stewart Shapiro, Tommie Shelby, Donald W. Sherburne, Christopher Shields, Roger A. Shiner, Sydney Shoemaker, Robert K. Shope, Kwong-loi Shun, Wilfried Sieg, A. John Simmons, Robert L. Simon, Marcus G. Singer, Georgette Sinkler, Walter Sinnott-Armstrong, Matti T. Sintonen, Lawrence Sklar, Brian Skyrms, Robert C. Sleigh, Michael Anthony Slote, Hans Sluga, Barry Smith, Michael Smith, Robin Smith, Robert Sokolowski, Robert C. Solomon, Marta Soniewicka, Philip Soper, Ernest Sosa, Nicholas Southwood, Paul Vincent Spade, T. L. S. Sprigge, Eric O. Springsted, George J. Stack, Rebecca Stangl, Jason Stanley, Florian Steinberger, Sören Stenlund, Christopher Stephens, James P. Sterba, Josef Stern, Matthias Steup, M. A. Stewart, Leopold Stubenberg, Edith Dudley Sulla, Frederick Suppe, Jere Paul Surber, David George Sussman, Sigrún Svavarsdóttir, Zeno G. Swijtink, Richard Swinburne, Charles C. Taliaferro, Robert B. Talisse, John Tasioulas, Paul Teller, Larry S. Temkin, Mark Textor, H. S. Thayer, Peter Thielke, Alan Thomas, Amie L. Thomasson, Katherine Thomson-Jones, Joshua C. Thurow, Vzalerie Tiberius, Terrence N. Tice, Paul Tidman, Mark C. Timmons, William Tolhurst, James E. Tomberlin, Rosemarie Tong, Lawrence Torcello, Kelly Trogdon, J. D. Trout, Robert E. Tully, Raimo Tuomela, John Turri, Martin M. Tweedale, Thomas Uebel, Jennifer Uleman, James Van Cleve, Harry van der Linden, Peter van Inwagen, Bryan W. Van Norden, René van Woudenberg, Donald Phillip Verene, Samantha Vice, Thomas Vinci, Donald Wayne Viney, Barbara Von Eckardt, Peter B. M. Vranas, Steven J. Wagner, William J. Wainwright, Paul E. Walker, Robert E. Wall, Craig Walton, Douglas Walton, Eric Watkins, Richard A. Watson, Michael V. Wedin, Rudolph H. Weingartner, Paul Weirich, Paul J. Weithman, Carl Wellman, Howard Wettstein, Samuel C. Wheeler, Stephen A. White, Jennifer Whiting, Edward R. Wierenga, Michael Williams, Fred Wilson, W. Kent Wilson, Kenneth P. Winkler, John F. Wippel, Jan Woleński, Allan B. Wolter, Nicholas P. Wolterstorff, Rega Wood, W. Jay Wood, Paul Woodruff, Alison Wylie, Gideon Yaffe, Takashi Yagisawa, Yutaka Yamamoto, Keith E. Yandell, Xiaomei Yang, Dean Zimmerman, Günter Zoller, Catherine Zuckert, Michael Zuckert, Jack A. Zupko (J.A.Z.)
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2 - Fact investigation and the nature of evidence
- Terence Anderson, University of Miami, David Schum, George Mason University, Virginia, William Twining, University College London
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- Analysis of Evidence
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- 23 November 2009
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Summary
“Have you ever given any attention to the Science of Evidence?” said Mr. Grodman. “How do you mean?” asked the Home Secretary, rather puzzled, but with a melancholy smile. “I should hardly speak of it as a science; I look at it as a question of common sense.”
“Pardon me, sir. It is the most subtle and difficult of all the sciences. It is indeed rather the science of the sciences. What is the whole of inductive logic, as laid down (say) by Bacon and Mill, but an attempt to appraise the value of evidence, the said evidence being the trails left by the Creator, so to speak? The Creator has (I say it in all reverence) drawn a myriad red herrings across the track. But the true scientist refuses to be baffied by superficial appearances in detecting the secrets of Nature.”
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.
Table of legislation and rules
- Terence Anderson, University of Miami, David Schum, George Mason University, Virginia, William Twining, University College London
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1 - Evidence and inference: some food for thought
- Terence Anderson, University of Miami, David Schum, George Mason University, Virginia, William Twining, University College London
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- Analysis of Evidence
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Summary
Introduction
The field of evidence is no other than the field of knowledge. (Bentham, An Introductory View, Chapter 1)
Evidence is the basis of justice: exclude evidence, you exclude justice. (Bentham, Rationale of Judicial Evidence, Part III, Chapter 1)
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.
Acknowledgments
- Terence Anderson, University of Miami, David Schum, George Mason University, Virginia, William Twining, University College London
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- Analysis of Evidence
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References
- Terence Anderson, University of Miami, David Schum, George Mason University, Virginia, William Twining, University College London
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- 11 July 2005, pp 388-395
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10 - Necessary but dangerous: generalizations and stories in argumentation about facts
- Terence Anderson, University of Miami, David Schum, George Mason University, Virginia, William Twining, University College London
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- Analysis of Evidence
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- 11 July 2005, pp 262-288
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Summary
Since, then, our inferences from fact to fact depend upon our belief in general rules of connection between fact and fact, generalizations about the way things happen in nature, the work of criticizing inferences resolves itself into that of criticizing generalizations.
(Sidgwick (1884) 9)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.
Contents
- Terence Anderson, University of Miami, David Schum, George Mason University, Virginia, William Twining, University College London
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3 - Principles of proof
- Terence Anderson, University of Miami, David Schum, George Mason University, Virginia, William Twining, University College London
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Summary
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.
7 - Analyzing the decided case: anatomy of a cause célèbre
- Terence Anderson, University of Miami, David Schum, George Mason University, Virginia, William Twining, University College London
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- 23 November 2009
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Summary
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:
a It is interesting in itself;
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;
c There were several possible theories of the case available to each side;
d Several key phases of the evidence, including some passages in Edith's letters, invite careful microscopic analysis; and
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.”
12 - The trial lawyer's standpoint
- Terence Anderson, University of Miami, David Schum, George Mason University, Virginia, William Twining, University College London
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- 23 November 2009
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A Wigmorean lawyer prepares for trial
The purpose of this part of the chapter is twofold. First, we want to set Wigmorean analysis in general and the chart method in particular in the context of trial preparation and practice in the United States. All competent lawyers use and apply the principles of proof in preparing a case and all use one or more devices to consolidate the results of their analysis. The chart method is simply an additional and a more methodical and rigorous device, one that requires making explicit what might otherwise be left implicit. Second, we want to describe the processes and devices lawyers commonly use to translate and reorganize the products of their analysis of the law and facts into a form suitable for use at trial. We start by describing some such devices and conclude with a brief discussion of ways in which the products of analysis are translated into the tools of advocacy.
Of charts and other analytic devices
All phases of the trial lawyer's work involve two fundamental and related processes: analysis of law and analysis of fact. At all points from the initial interview onward, the lawyer uses her existing legal knowledge to probe for facts that may be relevant to the case at hand. These facts in turn suggest further inquiries: the potentially applicable legal principles may be expanded, narrowed, or refined by research and analysis. The facts known and the products of the legal research and analysis may suggest additional lines of factual inquiry.
11 - The principles of proof and the law of evidence
- Terence Anderson, University of Miami, David Schum, George Mason University, Virginia, William Twining, University College London
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- 23 November 2009
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Summary
Introduction
The purpose of this book is to provide a theoretical and practical foundation for mastering some specific analytical skills relating to the construction and criticism of arguments about disputed questions of fact. It is not a book about the law of evidence, but a central theme has been that the principles of proof and the law of evidence are intimately related. Like Wigmore, we believe that understanding the principles of proof is a valuable, perhaps a necessary, foundation both for understanding the rules and learning how to use them in practice.
At several points this interdependence has been made explicit. Chapters 1 and 2 illustrate the extent to which the two subjects share the same basic concepts: for example, relevance, materiality, weight/probative force, admissibility, inference, credibility, corroboration, prejudicial effect, and so on. In Chapter 3, we saw how nearly all secondary writers on evidence, including all the leading treatise writers, have worked within a framework of shared assumptions, which we called “The Rationalist Tradition.” Those assumptions are common to the principles of proof and the basic principles of the law of evidence in common law countries. We also saw how relevance and weight are governed by “logic and general experience” rather than formal rules and that relevance is the main test of admissibility of evidence. As questions of admissibility are increasingly determined by exercise of judicial discretion and application of balancing tests in the circumstances of a particular case (for example the weighing of prejudicial effect against probative value), so too the logic of proof and the practical operation of rulings on admissibility have increasingly converged.
Glossary of terms and symbols
- Terence Anderson, University of Miami, David Schum, George Mason University, Virginia, William Twining, University College London
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5 - The chart method
- Terence Anderson, University of Miami, David Schum, George Mason University, Virginia, William Twining, University College London
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The chart method: an overview
The chart method of analysis is the most rigorous of the three methods of analysis identified above. It is a technique that enables the analyst to construct, test, and reconstruct arguments about questions of fact. It requires that the analyst articulate every step in an argument, breaking down the argument into simple propositions, and then mapping or “charting” all the relations between those propositions and the penultimate probanda (or the components of a hypothesis). The logic is simple; the complexity lies in the materials to be analyzed and in identifying the relationships between the propositions in an extensive argument based on a mass of conflicting evidence. The logic is binary: Every relevant proposition either tends to support or tends to negate a single hypothesis or conclusion (the ultimate probandum). The technique is dialectical: The aim of the chart-maker should be to construct the most cogent possible argument for and against the ultimate conclusion and to relate the opposing arguments within a single coherent structure.
The chart method structures the analysis at two levels – the macroscopic level and the microscopic level. The macroscopic level involves structuring the “top” of the chart. The ultimate and penultimate probandamust be determined based upon the law and, usually, restated after the analyst has formulated a provisional theory of the case. The penultimate probanda help the analyst identify which of the main propositions must be established to support each of the penultimate probanda.
Index
- Terence Anderson, University of Miami, David Schum, George Mason University, Virginia, William Twining, University College London
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8 - Evaluating evidence
- Terence Anderson, University of Miami, David Schum, George Mason University, Virginia, William Twining, University College London
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Summary
Introduction
The preceding chapters focused upon the logic of proof and methods for analyzing evidence in a variety of contexts – for example, analyzing the evidence in an ongoing investigation or in a decided case or in preparing for trial. It should be clear, however, that developing the strongest theory of a case and determining how the evidence can best be marshaled to support a probandum necessarily requires that the analyst make evaluative judgments. So far, we have not directly addressed the problems of or techniques for evaluating the probative value of evidence or the strength or cogency of arguments about particular aspects of the evidence or about the evidence in a case-as-a-whole. This chapter and the next focus upon those problems and techniques.
A lawyer must confront the problems at every stage of a case. For instance, in a civil case, from the initial interview onward, the lawyer must assess the weight and force of the evidence that is available and that is likely to become available. Should the case be taken? Filed? Pursued? Is the case ready for trial or is further investigation or discovery justified or required? Given the available evidence and the operative law, should the case be settled and, if so, on what basis? At trial, the questions concern both the lawyers and the decision-makers. Does the particular evidence proffered have such probative value that it should be admitted notwithstanding any improper prejudicial effects that it may have?
List of abbreviations
- Terence Anderson, University of Miami, David Schum, George Mason University, Virginia, William Twining, University College London
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6 - Outlines, chronologies, and narrative
- Terence Anderson, University of Miami, David Schum, George Mason University, Virginia, William Twining, University College London
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Summary
The outline method of analysis and its variants are more familiar to practicing lawyers. They have the advantage that they are easier to use than the chart method, althoughit is harder to maintain the rigor that the chart method requires. In addition to these two methods of analysis, there are two analytic devices in common use, narratives and chronologies, that complement and facilitate the use of both methods of analysis. In Part A of this chapter, we describe and illustrate the outline method of analysis. In Part B, we describe the analytic devices and discuss their utility. In Part C, we discuss how and with what effect the methods and devices can be used at various stages of a litigated case. In Part D, we describe the essential tools by which the products of an analysis may be converted into forms useful to a lawyer at any stage of a case.
The outline method of analysis
One of the strengths of the outline method is its utility in organizing the evidence and arguments. In the outline, each of the penultimate probanda is a main heading in the outline. For example in the Simpson case, the outline would begin:
I NBS is dead.
II NBS died as the result of an unlawful act.
III It was OJS who committed the act that caused NBS's death.
IV The person who committed the acts that caused NBS's death acted with malice aforethought.
Given the prosecution's provisional theory of the case, the central fact in dispute was the third penultimate probandum.
Frontmatter
- Terence Anderson, University of Miami, David Schum, George Mason University, Virginia, William Twining, University College London
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Tables of cases and statutes
- Terence Anderson, University of Miami, David Schum, George Mason University, Virginia, William Twining, University College London
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- 23 November 2009
- Print publication:
- 11 July 2005, pp xxvii-xxviii
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