Evidence, session 1

University of the Philippines

COLLEGE OF LAW

 

Law 126: Evidence

 

AY 2009-2010

Prof. Marvic M.V.F. Leonen

 

Course Description

 

“The study of the rules of admissibility and the rules of proof as they appear in the rules of evidence”

 

 

General Assignment

 

Within the first two weeks of the semester, all students should have read rules 128 to 133 of the Rules of Court.  On or before July 2, 2009 at 12:00 noon, students should submit outlines of the provisions.  The outline should have at least five levels.  Students who do not submit their outlines will not receive their copy of the course syllabus and will be given a grade of 5.0 for their class standing.

 

There is no assigned text for this course except the provisions of the rules as well as the statutes that will be studied.  It is up to the student to purchase or borrow any annotation on Evidence as they see fit.  But, the course syllabus will suffice.

 

First Session:

Fact Investigation and the Nature of Evidence

June 18, 2009

 

Readings

 

Chapters 1 and 2, Anderson, Schum and Twinning, ANALYSIS OF EVIDENCE, 1-77 (reserve section)

 

Exercise:

 

Submit a minimum of two to a maximum of four (4) page critique of the assigned reading.  Assume that you have an expert audience, i.e. one that has also read the assignment.  A critique therefore is an essay which examines the premises, methodologies, standpoints or frames used in the article.  It provides a coherent alternative point of view.  It should also be concise.

 

The essay is due at 12:00 noon of Thursday, June 18, 2009.  It should be posted at the proper page of the blog leonen.typepad.com.  A physical (hard) copy should also be filed with the Office of the Dean of the UP College of Law.

 

Comments

[Ana Patricia R. Tobias]

The process of finding evidence in law and everything else
By Ana Patricia R. Tobias
2004-02323

"It is simplicity itself," said [Holmes]; "my eyes tell me that on the inside of your left shoe, just where the firelight strikes it, the leather is scored by six almost parallel cuts. Obviously they have been caused by someone who has very carelessly scraped round the edges of the sole in order to remove crusted mud from it. Hence, you see, my double deduction that you had been out in vile weather, and that you had a particularly malignant boot-slitting specimen of the London slavey." […]

I could not help laughing at the ease with which he explained his process of deduction. "When I hear you give your reasons," I remarked, "the thing always appears to me to be so ridiculously simple that I could easily do it myself, though at each successive instance of your reasoning I am baffled until you explain your process. And yet I believe that my eyes are as good as yours" (Bohemia.1.12-13).

Anderson, Schum and Twinning went to great lengths to introduce the concept of evidence to readers, with or without a legal background, in their book Analysis of Evidence. Perhaps, in the hopes of emulating Sir Conan Doyle’s character Sherlock Holmes, they intended to be one step ahead of everyone else.

The authors went from the theoretical, to the logical then to the narrative and imaginary, adopting a more visual and creative approach. They have stated more than once in the first and second chapter of the book, that the process of making the propositions or hypotheses and gathering evidence to test and prove it is the same in pretty much every field of study there exists, such as science, history, and medicine, as inferential reasoning is nothing but a basic human skill.

It is clever how the authors use different references such as biblical stories, actual legal cases, historical accounts, and fictional scenarios in making the readers use and practice inferential reasoning through the different questions posed after each segment, whether using a “top-down” or “bottom-up” reasoning, the objective stayed the same.

Within the legal and non-legal contexts presented, some examples worked better than the others, allowing the readers to find what scenario suited their palate better. For instance, the excerpt from Harry Kemelman’s The Nine Mile Walk would appeal to a person who is both familiar with criminal law and captivated by the narrative style. While another person would prefer a state recount of the facts as told by the courts, as in the case of United States v. Richard Able.

But did the authors really intend those not in the legal profession or in the study of law to be the readers of the book? Or did they just want the students to learn a highly technical subject matter through unconventional methods to keep them interested thus standing out from other books? This is one minor point of observation as one ponders why the authors adopted the above-mentioned approach towards its audience.

By the end of Chapter 1 and at the beginning of Chapter 2, the authors’ style gradually shifts into a technical explanation of the methods involved in the process of fact investigation and in explaining key concepts. The step-by-step development of propositions as the data gathered increases simulates a classroom exercise prompting students to analyze each new piece of information and altering the general belief towards the situation.

Likening pieces of evidence to dots or trifles and combining it to produce significant hypotheses seems to be a simple process. However, as already illustrated by the authors in Chapter 2, there are numerous possible combinations that a person should analyze individually to come up with a sound generalization. In fact, the authors already observe the difficulty in using this method of connecting the dots and briefly discuss the problems inherent in it. The first problem of deciding what dots to connect is difficult when the combinations of dots grow exponentially as more dots are added to the equation. It would indeed be a waste of time when one analyzes all possible combinations. Second, the dots do not always come in simple pieces of information but are most of the time in the form of thoughts, which have to be broken down by the analyst. Lastly, each of the possible combinations must be interpreted again to develop arguments or hypotheses in light of newly discovered evidence.

The authors then try a classification of evidence by taking a substance-blind approach. However, they confuse the reader when in fact, the Philippine legal system already makes use of this approach as found in its Rules of Court, breaking down the kinds of evidence to object, documentary and testimonial. This jurisdiction also distinguishes already between the concepts of relevance and credibility.

Binder and Bergman’s two rules as introduced by the authors give an interesting point of view in the process of sifting direct evidence from circumstantial evidence. The Rules that: 1) All evidence is either direct or circumstantial; and 2) There is no such thing as direct evidence, emphasize the significance of the structuring or the presentation of each hypotheses and how crafting it will duly affect the outcome of a case.

The authors’ presentation of age-old concepts of evidence through various methods earns them a commendation for their unique perspective, though some of the approaches the readers could have gone without.

[Garcia, Fatima]

The first two chapters of Anderson, Schum and Twinning’s “Analysis of Evidence” introduce and familiarize the reader with the basic concepts of evidence as well as its relation to the logic of proof and inference. As a whole, they provide readers (who are not entirely clueless about evidence) background and information necessary to start with in studying the different concepts and techniques of evidence. However, there are some parts in the chapter that tend to mislead the reader, especially one who is completely new at the study.

Presenting evidence found in legal and non-legal contexts
This method of presenting the concept was done apparently to show that kind of reasoning involved in the factual inquiries provided is based on the same underlying principles; they are merely applied differently as the contexts vary. The discussions are thorough per example, but their different applications are not highlighted or emphasized. One is left with the amusement of reading about the adventures of Sherlock Holmes and of the supposed inspiration for this fictional character.

“Connecting the dots”
An inevitable problem to this technique of analysis arises almost immediately as one starts the task by determining which dots to connect. A puzzle is a toy, problem, or other contrivance designed to amuse by presenting difficulties to be solved by ingenuity or patient effort. In a basic puzzle one is to put together the puzzle pieces in a logical way to come up with the designed shape, picture or solution. Unlike the connect-the-dots puzzle for children which is completed by drawing lines between the dots in order of the numbers (or sometimes letters) to reveal a hidden picture, this “adult/analyst” version of connect-the-dots entails working with vastly numerous dots, dots that aren’t numbered. The book itself acknowledges that in the observation field there is an infinite number of dots, and determining which ones to connect, and in what order, presents a major roadblock to the analysis.
Indeed abductive imaginative reasoning combined with some background knowledge can facilitate the formulation of inferences to construct scenarios of what had happened, but it can also confuse the data analyst; imagine the permutations that are possible with the dots out there. Using one’s imagination with these dots, one can formulate a plethora of hypotheses, some bordering on the outrageous. Utilizing the top-down reasoning, one can work to find any kind of dot or information that he can possibly connect to his hypothesis. And as earlier mentioned, there is an enormous amount of dots around, one need only find a dot that is even remotely connected to his initial dot and the analyst can go crazy with the succeeding inferences. And although seemingly random pieces of information and inferences can turn out to be hypothetically and logically true like the inferences in Kemelman’s The Nine Mile Walk, it does not always happen. And if the analyst is to work down the line with every hypothesis he has generated from every little dot that he has chosen to investigate upon, then it would take a long time to narrow these hypotheses down, not to mention narrow down the dots that are possibly useful.
Although the connect-the-dots idea is a very good metaphor for the process of generating hypothesis and testing them, the idea is very simplistic and idealistic. The book mentions the problems that may arise when using this process, it did not address them. The example about the 9/11 terrorist attacks focused on the pieces of evidence that on hindsight are relevant. The example did not even provide other pieces of evidence is not relevant but could’ve been considered to be important then, just to show that sifting through the very large number of data available to one isn’t as simple as using any dot and forcefully incorporating it into the (real) big picture that is yet to be formed.

Substance-Blind Approach
Perhaps to compensate for the superfluities that abductive reasoning may generate, the substance-blind approach claims to analyze evidence based upon its inferential properties. The table that attempts to classify evidence this way though is confusing. Analyzing evidence based on its credibility and relevance is always connected to analyzing the kind of information or events that the said evidence supports. It is hard to comprehend that evidence can be analyzed without taking into consideration its substance. The book could have expounded more on this approach, and it should have provided examples in order to elucidate more clearly its application.

Exercises
The first two chapters are replete with illustrations of the concepts introduced which are very helpful in the understanding of the subject matter, but the exercises that follow them do not provide the correct answers. And although this may be in consonance with the Socratic Method and may be argued to actually be effective in stimulating the reader’s analytical skills, this is not as effective when practiced in the beginning of the book. The first two chapters serve as an introduction on the study of evidence, and it would be more appropriate to have, even just some of the exercises, answered at the end of the chapter. Most of the exercises ask for so much more than what the examples had given, so answering them can be very difficult.
Vocabulary used in the process of studying and analyzing evidence is gradually introduced throughout the two chapters. This method of introducing concept, ideally, facilitates and assures a better understanding by the reader of the text since they are introduced to the different concepts only when these have become relevant. However, as much as the article introduces plenty of concepts related to the law of evidence and the logic of proof, there are some questions and exercises that include terms and concepts not previously discussed in the chapter. One is tempted to look for a glossary, and since this particular copy of the article was only reproduced through the photocopy machine, such glossary is unavailable. This creates the impression that the article is not intended for a reader who has no previous acquaintance of the law of evidence at all. It seems that the article is geared towards readers who at least have an idea about or are taking up a course on law or investigatory projects or some other course that requires the gathering and analysis of data.

[Teresa Ira Maris P. Guanzon]

A Critique on “The Analysis of Evidence: Chapters 1 & 2”
Guanzon, Teresa Ira Maris P.
2002-55458

The first two chapters of this book can be defined as “The Scientific Method Approach to Evidence.” Like all scientific pursuits, it has to captivate the potential “scientist” by focusing his attention to the minute, everyday details that the common man takes for granted and presents it in another light so that the potential “scientist” is kept interested until the entire tale of such minute, everyday detail has been fully explained and exhausted.
In this case, the bait takes the form of numerous exercises that demonstrate the possibilities that can be inferred from everyday events and stories ranging from King Solomon to Sherlock Holmes and even to OJ Simpson. However, the bait becomes a bit too overwhelming (11 exercises to be exact) and instead of getting the potential “scientist” to dip his toes into the possibilities arising from inference by trying out the exercises, it rather opens the door for it to be taken for granted once again. It would have been better if the chapter contained fewer exercises with a healthy mix of legal and non-legal illustrations with the majority of such exercises scattered throughout the other chapters of the book or contained in the very last chapter as a challenge to the potential “scientist” who has patient enough to finish the journey through “The Analysis of Evidence.”
The second chapter starts with an illustration of how the “scientific method” has been applied to an event which had already happened and “allegedly” demonstrates how the method could have advantaged human kind had it been used to infer that such event could happen based on a few “random dots” or information which was known to a well-trained analyst. The premise used is: Inference can be used to expect situations that can be avoided. Specifically, if A is presented with various information which when placed together invokes suspicion, he can generate hypotheses, limit the pool of hypotheses that must be prioritized (based on the possibility of such hypotheses happening and the adverse effects on mankind) and test such hypotheses. In this case, the illustration used was the 9/11 terrorist attack. In as much as the theoretical structure of this method is sound, the use of the 9/11 attack (or any event which had already happened) does not affirm such method because as the result is already known, the “process” of “inferring” is not wholly unbiased and can not be said to be free from manipulations due to unconscious preferences of the person who simulated such exercise. However, this “weakness” (if one may call it) demonstrates and affirms the later premise of the chapter, specifically the need to establish the credentials or characteristics of any evidence chanced upon or gathered in analyzing its relationship to a hypothesis. In as much as the framework and criteria for establishing a hypothesis using evidence is impressive as it covers all bases to ensure a definite (or at least one with the least degree of doubt or uncertainty present) link between the evidence and the hypothesis, such meticulousness is also its downfall. Why? First, this considers too many factors in establishing the truth of each link and each proposition while leaving room for doubt at every level that it defeats the purpose of actually creating a standard because if one considers all the factors, then no proposition nor link shall be found to be true. And second, in actual practice, the purpose of the framework and the characteristics provided for evidence is defeated. This is due to the fact that the framework and the criteria are hardly used (or at most, they are not entirely applied) by lawyers in order to prove a client’s case nor by judges in arriving at a verdict.
It was mentioned that In the pursuit of evidence, fact investigation and analysis come hand in hand. Thus, there was a need for the use of deductive, inductive and abductive reasoning. The danger with using abductive reasoning is that it is highly influenced by the partiality of an individual - a function of his social, political, educational, cultural and financial background. In as much as it is a creative process of reasoning, the creative thought that each individual undergoes is limited to the factors mentioned above. The greater danger is that because of the same partiality, individuals tend to pursue the situation they unconsciously believe in. Be that as it may, this can be tempered by meticulous fact investigation and the constant awareness of the ultimate goal of the lawyer - to produce proof or non-proof for the client.
Nevertheless, the use of inference coupled with evidence to arrive at a hypothesis using such framework is helpful because it provides for the ideal as to how hypothesis should be proven and as the legal system is concerned with justice and with truth finding, then the ideal must always be the standard, if not the goal.

[carla Pingul]

The book entitled Analysis of Evidence presents an overview on how evidence should be discovered, interpreted, and handled. It introduces evidence as field of knowledge, as a technique, and as a tool for deriving the storyline of a case. Below are the three major facets of evidence as presented in Chapter 1 “Evidence and Inference: Food for though” & Chapter 2 Factual Investigations and Nature of Evidence.

The Logical Approaches Behind Evidence: Evidence as a field of knowledge

The appreciation of evidence lies on how the facts are weaved into a story that will describe the event. However, the gathering of general facts of the situation will not in itself expose the story. The scattered truths hidden behind the facts are still subject to different interpretations. Chapter one presented cases and stories that will interest of the viewer on how various facts can pave way to conflicting theories. For instance, the case of Morrison v Jenkin, the time element when the babies were born and their respective appearances before and after 24 hours are points of contention on whether the babies were wrongfully identified. Simple facts as such can be a defining factor in a case. This example established that the logic of proof and the law of evidence are closely related and interdependent. Strong evidence is always supported by an equally strong factual basis. But to be able to derive at a conclusion, the factual basis must undergo through the process of logical analysis.

The paper thoroughly discussed methods and techniques of analysis in interpreting factual basis. An examiner of evidence can apply the process of deduction, induction, or abductive reasoning. Hypothesizing is basic to these processes. To hypothesize means that an examiner experiments with different possible scenarios. This seems to be a continuous trial and error process at first glance, but as a more methodological approach is employed it will eventually narrow down to the most plausible scenario. Thus, chapter one and two poses to its viewer the question on how to apply the proper logical process suitable to the case. The said three processes are not conflicting approaches but rather they are complementary approach for a specified purpose.

A deductive or a top-down method is an approach utilized to generate evidence from hypothesis. This was illustrated in the hypothetical case of the dirty bomb scare. In that case the examiner hypothesized that group X is already capable to create dirty bombs. To prove his point, factual evidence must be generated. Thus, the examiner traced backwards the steps on how the group can assemble the bomb. By doing such, he can gather possible factual basis that will lead to his hypothesis. Moreover, by retracing the steps, the examiner can better pinpoint on where and when to find possible evidence to support his claim. This approach is most useful as an indicator that an event will eventually happen. If factual basis that will possibly lead to the hypothesized event are present, the examiner can now forecast that the hypothesized event has greater probability to occur. With this method, government agencies can impose preventive measures to impede the happening of such event. Consequently, this will provide future insights on how the authorities can be more effective in responding to worst case scenarios.

The inductive reasoning or the bottom-up reasoning is the generation of hypothesis from observations. This process is based on factual observation present to case to create a hypothesis. By using the methods of inference and generalization, particular facts in an event can be used to narrow down possible scenarios and derive a narration of what happened. This was illustrated in People v OJ Simpson case. The witnesses in this case have observed that a black American entered OJ’s conjugal home at the time when OJ’s wife was stabbed to death. Another witness testified that he saw OJ in his home right after the incident. These small observations can lead to the hypothesis that OJ is a possible suspect in the case since he fits both descriptions of the witnesses. This type of logic can best operate in examining past events. In these situations factual basis are already present for observation. The examiner only needs to entwine these observations to discover the account.

Abductive reasoning is an approach that is more concentrated in generating new ideas. It is modern way method to mix probabilities of possible events. As compared to the two conventional line of reasoning, Abductive reasoning is not static to one idea. New lines of inquiry are constantly tested. As more hypotheses are entertained and tested, more possible explanations can be generated. The failure of one hypothesis opens more questions on how to examine the situation. It also makes use of both deductive and inductive approach in generating new hypothesis.

As stated earlier, these approaches are not conflicting but rather complementary. Yet, if an examiner is to compare between these three approaches, the abductive reasoning posits a more accepting and advance method of factual investigation. The conventional approach of deductive and inductive reasoning has the tendency to be focused on one probable theory. They are confined with the possible facts and the facts that were observed after. Abducting reasoning presents a more holistic view of the situation. It has more capacity to answer “what if” scenarios and accommodate the presence of different factual elements. This approach is open to observed factual finding as well as proving evidence for new hypotheses. This is a combination of the positive characteristics of both conventional methods.

Nonetheless, abductive reasoning still has a downside. The possible negative aspect of this method is the time requirement needed to solve a case. Abductive reasoning can be meticulous as to possible combination of scenarios that eventually it can be protracted. But this concern can be addressed if the proper techniques for gathering factual investigation are applied.

Connecting Dots & Probabilities: Techniques for gathering factual investigation

The famous CEO Mr. Steve Jobs once said “some how the dots will connect, you just have to see them backwards”. Mr. Jobs was referring to milestone in life that in many ways people do not value but if these “dots” will be connected a bigger picture on how and why it happened will be appreciated. A similar technique is introduced in chapter two as the audience is recommended to discover trifles in investigating cases.

Trifles refer to refer to a single dot or detail obtained during fact investigation. It can be a fact from a witness or from tangible evidence. During investigation, many trifles will mount up and unfold. The process begins when these trifles are connected to explain the event. By connecting the triffles/dots, meaningless fact from the earlier investigation can make sense if related with other factual findings. Connecting the factual trifles initiates the creation of hypotheses. The mounting of trifles signifies that a storyline of the investigation can begin where same factual basis coincides. This trifle technique is a better approach in initiating a factual investigation. Often, examiners of an event can be overwhelmed with the factual basis presented in the case. By trifling the factual basis, a pattern can be derived at which will initially guide the examiner to how to establish a preliminary hypothesis.

Another useful technique is the Substance Blind approach in evidence. This technique introduces a classification scheme that allows the audience to say some general thing about the evidence that apply regardless of the substance of the evidence. It is a table that divides the evidence to direct relevant and indirect relevant. It also has a portion for tangible, unequivocal, and equivocal testimonials. By applying this table to the case, the examiner can immediately observe the factual elements of the case. The table also will reveal facts that are at hand and facts that are missing and insufficient. Thus, he can formulate all the probable combinations of the factual investigation to create hypotheses.

These techniques can help cushion the negative aspect of the abductive reasoning. By applying the trifle and substance blind approach, effective and less protracted procedure can be implemented.

Credibility of Evidence

In a case there are two types of evidence, tangible and testimonial evidence. Tangible pertains to the documents presented in the case. While testimonial evidence is the testimony according to a witness of a case. Chapter two of the book clearly emphasized the importance of credibility of evidence. For tangible evidence it is essential that a document is authentic, accurate, and reliable. Tangible evidence should be sufficient to support a finding, it was discovered by proper means, and process of its discovery must be dependable. The book effectively gives an overview on how to handle and ensure admissibility of evidence.

But this chapter is more commendable on how it explained the credibility criterion for testimonial evidence. Testimonial evidence is more complex than tangible evidence. Witnesses may observe similar events yet still come up with different interpretations. These different interpretations are not necessarily untruthful because it may represent tidbits of what really occurred. The examiner of an event must be aware of the human nature of his witness to fully understand the value of his testimony. A testimony should have three attributes: veracity, objectivity, and observational sensitivity. To achieve these characteristics, the examiner must be knowledgeable to witness’ biases. The physical attribute, beliefs, and personal agenda of witness may tamper the reliability of his testimony. To fully appreciate the value of a testimony, one has to scrutinize the personality and characteristic of the witness. Accordingly, the examiner must understand the background of the witness.

On the whole, the book gave its audience a wide perspective on how to understand the field of evidence. Evidence is not contained in mere data gathering procedure. It involves a complete process of factual investigation, interpretation, and presentation. It initiates an advance analysis on how and why the event happened. In the end the field of evidence trains the examiner of cases to handle the problem in versatile manner.

Carla Pingul

[Rachelle Ann T. Mayuga]

In the first chapter, the writers aim to pique the interest of the readers regarding the issues of evidence and inference through non-legal examples, usually those involving common life experiences. These “stories” and examples are discussed to explain the basic concepts on rules of evidence, followed by questions and problems that seek to engage the readers in discussion, to challenge us to question and justify our own methods of inference. Like other teaching materials, the main objective of this reading is to differentiate between concepts and outline steps in fact investigation.

Rules of evidence are established to formalize, and in a way, limit what exactly are admissible before judicial courts. These have been formulated based on experience, commonly held beliefs and generalizations. These rules must ALWAYS appeal, therefore, to common principles of logic. The article proposes that abductive reasoning is the main prerequisite needed to test hypotheses and construct arguments linking evidence and hypotheses. It admits that deductive and inductive methods are also necessary; however there is no substitute to the power of imaginative reasoning.

Creativity involves coming up with the widest range of innocent and sinister hypotheses and prioritizing which ones are most plausible. More than the methods, let us now turn our attention to the evidence, the content itself which would have to be analyzed. The main difficulty in gathering the evidence is in identifying which ones are crucial to one’s case and which ones are not. The articles also posit the method of substance-blind classification of evidence. Substance refers to the kind of events it supports. This method is problematic because experience tells us that there would always be subjectivity in investigation. Not giving weight initially to the content of various evidence is not an efficient method, especially in the context of our investigation system where resources are limited.

Preserving the evidence might sometimes even be more difficult than marshalling the evidence. Evidence is ephemeral and it is dependent on the keepers i. e. our police investigators. This just shows that even the concepts of probative value are altered by changes in tangible evidence.

[Karlo G. Noche]

MATTER OF PROOF

The settlement of legal actions commonly rest with the settlement of issues of fact. In a civil case for a claim of damages based on tort for example, a fact in issue which might decide the case would be whether or not respondent was negligent. Should defendant be found negligent, he is made liable to compensate the plaintiff. In a criminal case for possession of a firearm, a fact in issue might be, whether or not the firearm was found on the person of the defendant or not. If the firearm is proven to have been tucked away under his flannel shirt, a critical element of the crime is proven and the defendant, closer to criminal liability. The book Analysis of Evidence, stresses that the examination of evidence is useful not only in settling a legal action. Investigations and inferences in intelligence analysis share many elements of such tasks that are performed in other areas such as law, medicine . Law is different only in that substantive law defines the hypotheses to be tested, the propositions to be proved, and formal rules regulate the manner in which cases are prepared and the admissibility and use of evidence .
The second introductory chapter sufficiently describes the difficulties faced by a fact finder in handling evidence or of “connecting the dots.” Succinctly, the fact finder must be able to decide which dots to connect, the fact finder is faced with dots that come in different forms, and the fact finder must decide what the combination of dots might mean . The reader of this chapter is ably guided by the authors to understand what makes abductive reasoning different from inductive and deductive reasoning. However a concept must be introduced to enhance the delineation between the three.
In sciences which involve inductive and deductive reasoning, there is much discussion about the type of error a fact finder might encounter in making sense of the combination of dots he has chosen to link. The first type of error is the acceptance of a false dot as true, while the second error is the discarding of a true dot as false. In the social sciences where deductive and inductive reasoning is used, the second type of error is fatal. This would render the study without credibility. Committing the first type of error is not as fatal in the social sciences as it would only affect the accuracy of the study, which by itself is not sufficient to discard the study because the relevance of dots to each other may still be established.
As applied to adductive reasoning, the danger of committing the first error, accepting something false as true, will mean that a new line of inquiry will not be developed. The fact-finder is only led to a dead-end. This lessens the probability of coming upon a line of inquiry which would settle the fact in issue. The second type of error, accepting something true as false, prematurely cuts off the fact finder from a line of inquiry which might lead to the decisive or penultimate probanda. Again, this takes away the chance of discovering the line of inquiry which settles the case. In this sense, abductive reasoning is a more exact discipline.
Would this cause less trust in this method? It must be kept in mind that abductive reasoning, as compared to inductive and deductive reasoning does not happen in vacuo. The strength of abductive reasoning is the ability it gives to the fact finder to test a hypothesis while collecting evidence. In this sense, the abductive process is not static .
This addition to the concepts presented helps bring to fore the necessity to use a substance-blind approach to evidence. As the fact finder is able to test a hypothesis while collecting evidence, he must be able to appraise evidence without relying of what it is. What the evidence really is may depend on a hypothesis he has yet to prove, or from evidence he previously did not consider.
This dynamic approach to evidence is important in settling legal actions. The ultimate matter of proof is not the guilt or innocence of the defendant or the civil liability of the respondent, rather, it is a question of whether or not the state may deprive that person of his right, liberty or property. The judiciary avails not only the respondents and defendants a better chance of being secure in their persons, but also the society, in that the rule of law is dispensed justly.

[Emil S. Lunasco]

A Critique of “The Analysis of Evidence”
The title of the book “Analysis of Evidence” explains the contents quite obviously. It presents a framework of how evidence is analyzed. Prior to reading the book, I always thought, from reading cases, that evidence always involves facts that lead to a conclusion. The process that bridged those facts with the conclusions however were conveniently left out, because in the cases, they seem pretty obvious or only a step of reasoning away. The book however exposed me to the fact that many times, coming up with a conclusion involves a lot of surmises and conjectures, especially in the beginning, where given a limited set of facts, one has to go through several steps and decide which of the several directions to take in order to come to a plausible conclusion.
The first chapter was not an easy read for me. Being new to the study of evidence, I did not yet have a solid framework to work with the facts and make conjectures out of them in order to follow the reasoning in the stories. Many times, I found them confusing.
The exercises however were helpful in guiding the reader to understand that in any field, not just in law, where limited evidence is available, one has to infer not only so one could come up with possible inquiries and sources of evidence, but also to think of a hypothesis or a number of plausible hypotheses, and ultimately, prove one. Many times, these inferences are proabilistic. I found the Morrison-Jenkins affair especially helpful as an exercise in evaluating evidence. It was fascinating not only because it was a real life event which I initially thought was possible only in soap operas, but also because ordinarily, I would be inclined to conclude that Nola was in fact that child of the Morissons even though there was no direct evidence. However, as was shown in the case, the possibility that the two children were switched, no matter how strong, was not enough to take the child away from someone who believes the child to be hers if the other possibilities were not totally ruled out. The story then points to the fact that the analysis of evidence can often involve many different hypothesis which may be inconsistent with one another. A single hypothesis can generate other different issues from which other hypothesis may be formed. We however normally pick one and focus our limited time and resources in proving it. This is also shown in the other cases, such as the investigations prior to 9/11. The Morisson-Jenkins affair also points out that while evidence and logic may lead us to a plausible conclusion, making decisions out of the available evidence and the inferences made from them will also have to involve some pragmatism and consideration for the outcome, that some situations require a stricter degree of certainty than others. In terms of demonstrating these points, I thought that the first chapter was effective. The human interest in these stories simply made it more interesting, while the method of reasoning is still used all throughout.
The second chapter then gives the reader a framework of how different pieces of evidence or dots are connected to form a hypothesis. The authors attempt to classify the infinite forms of evidence by using several criteria and ignoring the substance of the evidence (ie “the kind of events the evidence supports”). They call this the substance-blind approach. I found this to be a helpful method of classification, since properties such as credibility or believability and relevance are applicable to any kind of evidence. However, it ignores the criterion of admissibility. Although the author points out that evidence that may not be admissible in court should not be ignored because they may point to other evidence that are admissible, the point is that the usefulness of evidence is greatly diminished if it cannot be presented. The point of coming up with evidence is after all to prove a reasonable conclusion, which in the case of lawyers, is the probandum. If it cannot be used directly in court, its usefulness will then be dependent solely on how far it leads the investigator to another piece of evidence. There is a possibility then that its non-presentation would create a gap in the chain of inference when it is presented in court unless an alternative route is found, in which case, it might mean that the evidence is not necessary after all. For example, person A says that he has personal knowledge that event X and Y happened but he has no personal knowledge that event Z happened. He however states that usually, X and Y lead to Z, which is his opinion. While it may be believable and relevant, it does not help the case so much because it is not admissible. In other words, it does not help in guiding the court in making an inference which leads to the desired conclusion. Therefore, in evaluating and classifying evidence, this criterion should not be ignored.
Another problem with the substance-blind approach is that it ignores the classification of evidence as direct or circumstantial for the following reasons: (1) the classification depends on how the argument is structured; and (2) it involves some arbitrariness. This I fail to understand. For one thing, a probandum is usually a given. For example, in a criminal case, the elements of the crime as provided in law are the probandum. In civil cases, it is the cause of action that must be proven. These probanda are prescribed by law with at least some level of certainty. There are only a handful of arguments in a given situation that will lead to these probanda. Whichever argument the lawyer or investigator picks will necessarily depend on how strongly the evidence at hand supports each argument. Therefore, the question of whether the evidence is direct or circumstantial will dictate what line of argument the lawyer or investigator will follow. Usually, it is not the other way around. Secondly, as regards arbitrariness, this is applicable to the two other criteria, yet they are not excluded. The credibility or relevance of evidence are partly dependent on how one would argue the case.
In conclusion, I found that the book “Analysis of Evidence” was a helpful introduction to the study of evidence. The authors do take care of presenting their points thoroughly. I find that there are problems with the classification of evidence because it leaves out certain factors that should not have been ignored. However, I understand that one of the goals of the author is to simplify the analysis of evidence and make it more accessible to new students of evidence. By that measure then, the book is a good read.

[Emmeline Escobillo]

The first chapter of the book “Analysis of Evidence” is a seemingly thorough overview of the questions and concepts involved in analyzing evidence. With the aid of illustrations, it encourages readers like me to practice their reasoning powers and imagination in order to shape plausible conclusions or newer observations that would make light of past events or predict future events. Through this, I realized that the line of thinking used in analyzing evidence is same as that that I use in everyday life.
The wealth of examples and exercises in the chapter overwhelmed me at some point. But the authors organized the text in such a way that I became more interested as I turn every page. The more baffled I was, the more challenged I was to look into the next cases and try to answer their questions. The Nine Mile Walk was the case I appreciated the most. Using imaginative reasoning, Nicky Welt slowly built the possible events leading to the murder of an unknown train passenger. All his inferences made sense. They fell into place, especially after looking into intricate details such as the distance from the Old Sumter Inn to Hadley. Due to this, all of his observations appeared to be believable and thus true. But to me, these inferences are not sufficient to prove beyond the reasonable doubt the guilt of A and B. These two men could still be found innocent. Indeed, Welt’s inferences tying them to the scene of the crime are logical. However, it may not be true – unless further tangible and/or testimonial evidence crops out and solidly supports them. It is entirely possible that these two men met in Blue Moon Café at the wrong time and one of them said the wrong thing beside the wrong man. Everything that might connect them with the crime might be a set of coincidences, which shouldn’t be taken and interpreted together. This illustration incidentally shows that our reasoning powers may be tainted by our biases and expectations. No matter how sound our conclusions are, they must be adequately supported by evidence. As Bentham himself said, “Evidence is the basis of justice: exclude evidence, you exclude justice.”
The second chapter of the book tackles fact investigation, which involves the gathering and analysis of hypotheses, evidence and arguments. Here, the authors introduces three kinds of reasoning (ie. inductive, deductive and abductive), discusses the credentials of evidence and covers the substance-blind approach as a way to classify numerous dots or trickles. One of the three major credentials of evidential datum is relevance and it is my humble submission that the importance of establishing this characteristic wasn’t sufficiently stressed in the chapter. To me, a huge batch of dots would remain indecipherable and useless as evidence if their relevance isn’t first established. The dividing line between what is relevant to the case and what isn’t should have been further demonstrated by examples just like those provided in the first.
All in all, the first two chapters of the “Analysis of Evidence” are a helpful guide in introducing readers to the field of evidence. The authors have written it in such a way that it is easily understood, even by those without any background on law.

[Raina Andrea C. Quibral]

The Problem with Decision-Making

Perhaps what struck me most while reading the Analysis of Evidence was the realization that Fact Investigation has the potential to be the result of overreaching and consequently, produce disastrous effects. This is based on the fact the bulk of the work consists of “decision-making”.

Chapter Two introduced the concept of "connecting the dots", a method for identifying as significant a few trifles from the masses of data that flowed into different agencies from a variety of sources, citing the case of FBI who could have foreseen the 9/11 attacks had it "connected the dots". It seems to me that the problem with this framework lies in the highly subjective character of this task of "choosing which dots to connect", as highlighted in the cartoon Figure 2.1. In fact, one of the three basic problems in the task of "connecting the dots" was described by the author as deciding which dots to connect. The use of the word deciding connotes to me the task of making a choice, aided by logical reasoning perhaps, but also with the potential to be influenced by feelings, tastes or opinions. Factors can come into play that might jeopardize the credibility of this task: perhaps sabotage, discrimination, etc. Maybe the one tasked with "connecting the dots" was bribed by a high-ranking government official to overlook one “dot”. Or maybe he himself is a racist that he would insist on this "dot" that otherwise would be irrelevant. Or maybe he was intimidated; he received a death threat that day, forcing him to abandon altogether one relevant path. Add the fact that, as pointed out by the author, a million combinations exist. At the end of the day, whatever pattern was made is the result not only of logic but of human interference as well. We encounter a plethora of ideas and emotions everyday that they seep into our way of thinking and consequently, affect our decision-making.

For instance, in the story of King Solomon, the king was presented with a “she said-she said” scenario. If this scenario would be presented to the king now, he would probably order DNA testing, to ascertain the true mother of the baby in question. But since none of it was available back then, he tested the motherly instincts of the two women and gave the baby to the one who was more compassionate, as opposed to the one who was logical. All of this was a product of mere choice, King Solomon did not know who the real mother was. Instead, he chose to give the baby to the woman who could be a better mother. The King’s choice could have potentially cost the other woman her real child.

In similar fashion, abductive reasoning as described by the author, calls for an analyst to construct elaborate arguments or chain of reasoning from his observation to a new hypothesis. Again, there exists the danger of reaching, of laying the brick road in a certain fashion to get to the place where we desire to go. If I want to get to Hypothesis 1, I will gather all the bricks necessary to construct the road in order to reach H1, even working my way around obvious facts just to get to H1. I will construct elaborately, be as creative as possible just so I can reach H1. But if I have H2 and I don't like this H2 because I have a bias (maybe H2 tells me that an Asian committed the crime and I don’t like this idea because I am Asian), I will poorly construct my brick road leading to H2 so it becomes less plausible and eventually irrelevant. I agree with the author that there is no computer application that will work as effectively as human imagination, and that we need strategies for better using our imagination. But the problem lies in the fact that human imagination is susceptible to influence. Again, it boils down to the task of decision-making which to me is highly-problematic.

In the same vein, the author discussed the importance of knowing the major properties or “credentials” of evidence, discussing at good length the credibility of evidence. But again, how can one ensure the credibility of the analyst? The discussion acknowledged the presence of doubt and certainty going from one argument to the next. But what caused this? Poor analysis maybe, interference on the part of the analyst.

An interesting question would be: is there a way to use fact investigation as a preventive weapon rather than a Whodunit search? In the 9/11 exercise, the book showed how connecting the dots might lead the FBI to hypothesize that a terrorist group is planning to attack the US using airplanes, and hence a preventive action should have been taken. But in reality, the "dots to connect" become obvious, and hence relevant, only upon the happening of an event. For example, foreign nationals taking flight classes sound innocent. In fact, they were discounted by FBI itself. The FBI analysts would have an "Aha!" moment only after the 9/11 attacks (“Aha, so that's why they were taking those flight classes!”) Then, there is the tedious task of deciding which dots to connect, which could take a long time given the million possibilities. By then, the attacks have already been carried out and thousands of lives lost. Another approach geared towards suspecting a future happening should be more helpful, but how? Moreover, how can this be done without violation of the rights of a person suspected of causing harm in the future? Similar to the 9-mile walk exercise, would an inference justify the arrest and prosecution of a person who has not yet attacked but only probably plans to?

In the end, it all boils down to the credibility of people who gather and analyze evidence. For, no matter how much we develop and improve our reasoning strategies, decision-making comes into play. We make choices everyday in our personal lives that don’t turn out the way we want to, that in the end tell us we were wrong in making that choice. It should be easy if we were simply concerned with our own welfare, but what if that choice put someone behind bars, freed someone who is guilty or worse, sentenced someone innocent to death. An approach considering this factor should be integrated.

[Mucho, Carl Jon]

A seemingly innocuous statement uttered by some random stranger may provide a plethora of logical inferences which, although may not be necessarily true, can lead to sensational insights about the speaker and the discovery of a crime recently committed, as was wrought in the case of “The Nine Mile Walk”(11-17). Of course the chance of this happening in real life is quite rare if not highly improbable. We can only beam with excitement and admire with fascination at such occurrences in works of fiction.
Yet the underlying theme of the first chapters about the power of logical inferences generated from a piece(s) of evidence, and how it can lead to an ironclad argument worthy of the court’s fair consideration, is not mere fancy or hypothetical. It is an ability that is constantly being used by the astute litigation lawyer to prove and win his case daily before the judge (or the jury). It is a tool used by investigators to unravel complex mysteries. It is too an invaluable asset even for the layman who is puzzled by the strange smell of manly perfume, not his, lingering inside his wife’s car.
Inductive and deductive reasoning are already familiar concepts taught in elementary logic in high school and college. Abductive reasoning, on the other hand, is an obscure concept practiced by experts in highly specialized fields of study and profession. This is probably because it is relatively more susceptible to logical fallacies and wrong inferences if done at the hands of the uninitiated; and the stakes are bigger, even a matter of life, death, imprisonment or deprivation.
Thus also while the untrained mind may be overwhelmed with obscene amounts of trivial data, the skilled practitioner revel at the possibility of connecting the dots in such a way as to create a cohesive and logically sound conclusion which explains and describes the dotted mess perfectly. Not surprisingly, the skill in using both inductive and deductive reasoning in tandem with abductive reasoning is highly prized and sought after among professionals whose work requires intensive analysis, intelligent guesswork and out-of-the-box thinking.
The lawyer and the students of law would certainly have an advantage over their contemporaries who merely tackle the study of evidence within the confines of the classroom. In a manner that is uninspired, bland and lacking the spirit of curiosity and creativity. Without context and without fresh and brilliant ideas, the black letter of the law becomes just that—an impenetrable darkness. As such, the "Analysis of Evidence", or at least a preview of its first two chapters, lends to the idea that the key to understanding and practicing the Rules of Evidence is not just verbatim memorization. Instead, a combination of familiarization and the proper mindset as well as competency in practice and in theory provided for in the book and in the Rules of Court.
Nevertheless, the material would be meaningless if one does not learn how to use the faculties of imagination and creativity. The first chapters deal with instances where the correct investigative pursuit would have prevented disasters and attacks from taking place. The chapters list examples where the aptitude for knowing which piece of the puzzle fits which would make the work of the state prosecutor and the judge a lot easier in tax fraud and switched-babies cases. However, these examples are too concrete and demonstrable as these cases have already happened. If one were to follow the train of thought of the author without so much as being wary of the possibility of hindsight bias it would hinder more than it would further the progress of learning.
For instance, Nassim Nicholas Taleb argued in his books “Fooled by Randomness” and “The Black Swan” that society is prone to believe that something as tragic as the 9/11 attacks could have been predicted and avoided with the proper action from the authorities who had prior access to a series of random and unexplained anomalies months leading to the attack.
These assumptions appeals to the emotions rather than logic since it conveniently allows the idea of responsibility and accountability from the government. These assumptions have the effect of certainty as if the terrorist attack really could have been avoided—but all these discussions are simply true after-the-fact. The same hindsight bias is present in the second chapter where the author makes a demonstration of how to eliminate hypotheses through inquiry, probability and analysis. It seemed as if the author wanted to blame the lack of interest of the authorities in these trivial matters for the events that transpired in 9/11.
In the same vein, it would be very dangerous and irresponsible for law practitioners and students of law to believe that there can only be a single answer to every problem. Likewise, it would be unwise to believe that there can only be one truth and the important task is to discover or to arrive at it with utmost certainty. Such mechanical fixation for a single truth or sole interpretation only precludes other possibilities and hypotheses which, considering all things being equal and logical, might be just as true. The conclusion is as feasible as the evidence can logically permit but evidence, no matter how small, can mean a lot of other things.
If the first two chapters were to be understood in its helpful sense, it would be to realize that it is important to keep an open mind. The task therefore is to treat a fact or piece of evidence with a healthy respect for the uncertain and random with the goal in mind of producing the most convincing and persuasive analysis without being locked into the right or wrong answers. Thus, in the words of yet another fictional character, “truth is relative (it depends on how good you argue your case on the basis of the pieces of evidences carefully analysed and chosen), pick one that works”.

[Sopfia Guira]

“Logic will get you from A to B. Imagination will take you everywhere.”
- Albert Einstein, scientist (1879 - 1955)

New ideas are borne of imagination; it involves much creativity. Charles Sanders Pierce puts forward that new ideas are borne of abductive reasoning which he described as “the idea of putting together what we had never before dreamed of putting together which flashes the new suggestion before our contemplation.” Most people are more familiar with the commonplace slogan “Thinking outside the box” which suggests the same. Creative thought could prove valuable in various fields such as in business and marketing. However, its application in the field of law could be seen as out of place. After all, thinking logically and thinking creatively are different aspects of cognitive function proving doubtful the compatibility of clear-cut logic and that of imagination.
When one uses imagination and creativity in the practice of law particularly in fact investigation, does that mean veering away from logic and entering the realm of pure guesses? Could it not result into ridiculously exaggerated hypothesis generation? Fact investigation strives to strike a balance so as not to let imagination run amuck by setting up safeguards such as the application of both deductive and inductive reasoning in addition to abductive reasoning. The role of imaginative reasoning is to generate new lines of inquiry in a dynamic process of revisions and eliminations which results in more possible explanations and hypotheses. Application of creative thought casts a bigger net and catches more possibilities. However, the sheer number of hypotheses waiting to be tested by inductive and deductive logic poses time and financial constraints for the investigator as there is a need to continuously sift through all of them. There is therefore a pressing need to streamline procedures and improve strategies for the better and more efficient use of our imaginations.
The mixture of the three types of logical reasoning is an effective combination as it goes beyond inductive and deductive reasoning, from which no new ideas can arise, while restraining the imagination of fallible insights. The four-step methodology applied by the FBI agent in one hypothetical case included in the reading is a good starting point for a model procedure or system. The steps are: First, identifying the reason for suspicion; second, generating hypotheses, both innocent and sinister; third, eliminating some hypotheses; fourth, prioritizing the remaining hypotheses. The first and second steps require an application of abductive reasoning while the latter two calls for the application of both inductive and deductive reasoning. With more practice and experience, imagination becomes better at deciding which dots to combine effectively drawing out more plausible possibilities and discarding other unlikely combinations. It is certainly ill-advised to examine all possible combinations but with better strategies, the exercise of our imagination proves to be all the more worthwhile.
For lawyers preparing for trial, creativity is deemed one of his best assets. It is up to his imagination to connect dots and construct a defensible and persuasive argument linking hypotheses and available evidence. His creative process of reasoning is one of the factors that will determine the outcome of the case. A good defense attorney applying imaginative reasoning can easily convince the judge of reasonable doubt. Of course, argument construction has a natural subjective element. Counsel for one party would certainly downplay evidence against him. To create a strong case theory, imagination is crucial.
At the extreme, imaginative reasoning can even go beyond critical reasoning and fight in the realm of rhetoric, artistry and persuasion. A lawyer’s creative flair, especially when presented to a receptive audience, will work wonders for his client. Imaginative reasoning is an effective tool to generate new ideas and open up possibilities. Despite its drawbacks - it being extremely fallible, timely and costly, there is value in finding logic in imagination. Imagination, after all, is what separates a great lawyer from a good one.

[Rommel Galingan]

Analysis of Evidence of “The Analysis of Evidence”

Upon reading the text, we develop our own inferences regarding the authors’ own beliefs and teachings. If we are to seriously take into consideration what the authors have written, then it follows that we must look upon his work with a critical eye. We must view it the same way lawyers view evidence in a case or how an agent proceeds with his intelligence analysis.

In presenting their views, the authors provided evidence by presenting different cases, stories, and passages. They sought to demonstrate how information obtained from observations may be used to create hypotheses which, in effect, would also lead to the generation of new potential evidence. But precisely, there is a difference between mere information and evidence itself. Evidence is used to prove a certain point or fact. This means that until there is something sought to be proven, a piece of information remains to be merely an observation and nothing more. The purpose of the information is what makes it evidence. This paves the way for the introduction of the concept of a bias. Although the authors have extensively discussed how inferences may be made and the methods for proper investigation of facts in chapters 1 and 2, still they failed to stress the significance of the presence of a bias in the investigator or the person making the inference himself. Inferences are drawn and investigations are made based on the purpose of the person drawing or making them.

Taking into consideration the authors’ example of the 9/11 terrorist attack in pages 47 to 55 of the text, it can be seen that the inferences made are in relation for his or her purpose in making them. The fact that there were several aviation students who were more interested in flying and navigating an airplane rather than landing or taking off led the intelligence analyst to believe that an airplane would be hijacked and used as a bomb so that the skill of landing or taking off was of little importance to the students. It can be inferred that this hypothesis was made because the job of the analyst was to ensure national security. Had the person been the students’ flight instructor, his inference could have been that he did not make the topics of landing and taking off interesting enough for the students. But if he were a psychologist, he might have said that the students wanted to skip all the difficulties of landing and taking off and instead just wanted to be free and enjoy flying. He could observe that this may reflect their attitude towards other things in life like wanting to escape from responsibility. This just goes to show that there are as many inferences that can be made as there are purposes for making such inferences.

Going to another example in the text, that of the “Dirty Bomb” in pages 3 to 7, the authors took into consideration the capabilities and intentions of adversaries in making inferences. However, they failed to look in the opposite direction and evaluate the capabilities and intentions of the analyst or investigator. The inferences drawn are dependent on both sides. As already discussed, the presence of a bias is an important factor in making inferences and hypothesis. Applying these to actual cases inside the courtroom, drawing inferences becomes even more complex.

In actual trial practice, there are other factors which should also be taken into account since the analysis of intelligence there is not limited to only one person. Simply put, there are two lawyers and one judge who all make inferences based on the totality of the information at hand. All of which have different purposes for making their inferences and thus, each have a different bias. The analysis of evidence becomes even more complicated when consideration is taken of the purpose or bias that a witness may have with respect to the subject matter to which he is testifying on. For example, B allegedly murdered A. The witness X saw the whole thing happen in A’s residence. However, the reason why X saw it was because X was a stalker of A and he was peeping through A’s window when the event occurred. Moreover, B was A’s lover of whom X was extremely jealous of. So as a result, when X testifies on the witness stand, both lawyers could make different inferences regarding the testimony of X, precisely because of the bias of X and the bias of the two lawyers. But later on, based on how each lawyer presented the case, the judge would have to make his own inference. The latter’s bias or purpose would then come into play. He may then try to resolve the case by creating his own hypothesis based on what may be the most logical thing that could have happened. Still, what the judge decides to be most logical is not necessarily what is correct.

As stated in The Nine Mile Walk, “An inference can be logical and still not be true.” Until the hypotheses are confirmed, there are limitless possible explanations for a particular observation. Aside from the fact that analysts have a bias or purpose in making their inferences, the authors also failed to discuss in the first two chapters the fact that in the legal profession, the analysts are not completely free to make their inferences. The inferences or hypotheses constructed by lawyers and judges are not solely dependent on what information or evidence is available. Their inferences may also be dictated by jurisprudence.

In rape cases, there are numerous presumptions laid down by case law. There are fixed rules on how to interpret certain types of evidence presented. An example would be the crying of a rape victim while being examined. Such is deemed to bolster her credibility. Her crying could have been interpreted to mean that she is ashamed because the lawyer is about to find out that she is actually lying in court. However, jurisprudence controls how the judge should make his inference.

The authors have presented many ways of making inferences and hypotheses in the first two chapters of the book but such methods are, however, lacking. Therefore, in the analysis of evidence, consideration must also be taken with respect to the bias of a witness who testified, the bias of the lawyer who presented such evidence, the bias of the opposing counsel who seeks to refute such evidence presented, and the bias of a judge who is to make inferences based on what has been presented. Moreover, it must be realized that the methods used in the non-legal context differ significantly from that of the legal system. Limits are placed upon the construction of inferences and hypotheses in actual trial practice.

[VILLORDON, Loverhette Jeffrey P.]

THE TRUTH SHALL SET US FREE

“Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact.” (Rule 128, Section 1, Revised Rules on Evidence) Thus, in any proceeding which requires the use of evidence, the bottom line lies in discovering the truth. Any other goal would mean futility of our efforts.

Hence, it is this continuous search for the truth which drives us as lawyers (or lawyers-to-be) to defend our clients and their rights. It is also this search, however, which becomes the greatest source of our doubt and confusion; for in the end, it is only the Almighty which can determine the absolute state of facts.

In a way, our Judges and Justices are faced with the very difficult of acting like demi-gods. They are to balance the various pieces of evidence presented before them, arrange them in such a manner as to be understood by the common man, and then render a decision and choose between black or white. The thing is, in law and in life, there are no real blacks and whites, but only varying shades of gray.

Such is shown in the last page of Chapter 2 of Anderson, Schum and Twinning’s, Analysis of Evidence, when they say that “every argument can be further decomposed to reveal new sources of doubt or uncertainty. Thus, there is arbitrariness associated with any identification of an item of evidence as being direct.”

Just like the authors, I, too, am in agreement that there is no such thing as purely direct evidence. Although proving an ultimate probandum may result in a 99% chance of ascertaining the truth regarding a matter of fact, the path to reaching that ultimate probandum is riddled with other penultimate probanda and interim probanda which make the search for truth even murkier. However, I do believe that the authors have failed to provide the reader, with sufficient background on the uncertainty of evidence, and the judgments and biases that play a vital role in any discussion of analysis of evidence.

There are several key factors which we must keep in mind whenever the topic of evidence arises. These are 1) the individual experiences of the people tasked to interpret the evidence, 2) the common experience of humanity or a State, and 3) the technicalities that must necessarily accompany any form of presentation and discussion of evidence.

The first covers the private beliefs, culture, tradition, trauma, desire, and so on of the persons evaluating the evidence, such as the Judge, Justice or Arbitrator. It is of utmost importance that this be stressed, for after the grueling process of presentation, documentation and analysis of evidence, at the end of it all is interpretation. No matter how airtight a litigant’s case might be, and no matter how clearly his/her counsel presents the evidence leading to a proof of the ultimate probandum, the decision still lies with the Courts. Again, I cannot help but stress that in our jurisdiction, truth is dictated no by the logic of our argument, but by the perception of robed individuals.

For this reason, I am a strong advocate of the jury system. However, this is beside the point. The point I am trying to make, however, is that just as it is vital to learn the rudimentary of hypothesis making and evidence gathering; it is equally important to present these in such a way that the person deciding the case see it in the same way. Biases have to be taken into consideration, and histories have to be studied.

Secondly, the strongest opponent of any full-proof presentation of evidence must be a shared human experience, or what me might call as Case Law or Jurisprudence. In a jurisdiction like ours, where the decisions of the Supreme Court form part of the Law of the land, modern trends and new discoveries barely find room to grow. Cases may have shown a particular hypothesis to be true in several past instances, but if time has taught us anything, it is that change is inevitable and not all sciences are exact.

Circumstances change. Methods of investigation and discovery change. People change. A well-thought and well-argued hypothesis supported by evidence may be formidable; however, jurisprudence has shown that justice in our land can be quite stubborn. Hurdle the challenge of the tradition view before joining the dots and coming up with a modern hypothesis.

Finally, there is procedure: the highly technical and strict aspect of the law. No matter how strong a prepared hypothesis may be, or how devastating a particular piece of evidence may prove to become, these all crumble in a heartbeat when hammered by the strict limitations of law. A perfect example would be recording devices used as evidence of a conversation: a person may have already admitted to the most heinous of crimes, and yet the same could not be used in the Philippines due to the Anti-Wiretapping Law.

Anderson, Schum and Twinning have written two brilliant opening Chapters for their book, describing in quite clear detail the development of a hypothesis and the conduct of investigation by connecting the dots. These introductory Chapters are largely lacking, though, especially in a setting like the Philippines.

There are just too many obstacles to truth-finding in our jurisdiction. In fact, I have not even began with the issue of corruption. Hypothesis work may be plausible in fictional novels, but not in a State where peoples’ fates are dictated by robed demi-gods and little tyrants. The old adage goes “The truth shall set you free;” and I believe there is a reason why we are not.

[Paulyn May Duman]

A Critique on the Analysis of Evidence
By Paulyn Duman

I. Premises

The article advanced the following premises, expressly or impliedly:

a. All disciplines are involved in studying evidence.
b. All disciplines have shared problems of evidence and interference.

This only emphasized the practicality of studying evidence.

II. Framework: Interplay of Systems

I considered a framework in reading the article i.e. the interplay of systems. Two systems come into mind as I try to comprehend the presentation of the analysis. One is the adoption of the linguistic system and the other is the adoption of theoretical system.

In my understanding, consideration of the two systems is important. The linguistic system guides you of the role of language in thought which is important in hypothesis generation, the relationship between language and the world which is important in articulating empirical data and analyzing them out of a certain context, the nature of meaning which is important in giving value to the process of “connecting the dots”, all of which when equally considered, help us to ultimately identify the truth in a linguistic perspective.

The article has also presented well certain adoption of theoretical systems such as the theories of logic (formula), mathematics (axioms and postulations), science (scientific method), philosophy (philosophical analysis), psychology (cognitive “traps” such as generalization, stories, expectations), sociology (in the examples of causes celebres), law (probative value), etc, in analyzing how we study evidence. The two questions that struck me at the outset are found in the example of the judgment of Solomon: What is the basis of my belief and what standards do I apply? In any context, my answers would largely depend on theoretical systems that may be applied and these systems would set the standards in evaluating on how strong or weak, favorable or unfavorable, my presentation of evidence is.

After reading the article, I inferred that the analysis of evidence requires a great deal of imagination and creativity.

III. Methodology in “Connecting the Dots”

In the 9/11 example, the wisdom of hindsight showed significant information that was available before the disaster but such pool of trifles were not properly analyzed. To bring the wisdom of hindsight to foresight, the authors presented a method which the analyst could have adopted which consists of: (a) identifying the reasons for suspicions (b) generating hypothesis (c) eliminating some hypothesis and (d) prioritizing the remaining hypothesis. The authors also considered basic problems inherent in the task of “connecting the dots” which are: (a) the decision of which dots to connect, (b) the act of combining dots or trifles involves more than just combining single items of information or details and (c) the decision of the analyst of what the identifiable combinations of evidential dots and his or her thoughts about them might mean.

There exists a great problem prior to deciding which dots to connect—the problem of determining the dots themselves, whether they are from witnesses or from a tangible evidence of some sort, or any other source. As stated in the article, “[i]t is one thing to justify some hypothesis inductively, based on evidence. But it is quite another thing to say how this hypothesis arose in the first place.” One form of reasoning associated with discovery and generation of hypotheses or possible explanations is abduction, by means of which we show that something is possibly or plausibly true.

Abductive reasoning is based largely on intuitions or insights. It is here that I believe a great deal of training should be done so that insights to be used as foundation are not ordinary insights but trained insight so that in the identification of hypotheses to be tested, there is a sufficient and reasonable standard to be applied.

IV. Nine Mile Walk

“What was it that you set out to prove?” “That a chair of inferences could still be logical and still not be true.”

The act of establishing evidence to result to a proof adopts a design, simple or grand, and can be liken to a game of breaking a code to determine the system used. I believe that in the analysis of the analysis of evidence, the determination of truth can only be proximated and cannot be derived in an absolute state.

[Cruz, Jeric]

CRITIQUE OF ANALYIS OF EVIDENCE

“Analysis of Evidence” uses an interesting approach in introducing the basic concepts that are involved in analyzing evidence. Rather than starting with definitions of useful and relevant terms, or directly stressing the importance of the field, Chapter 1 instead starts by presenting concrete examples from familiar stories and actual cases. Hence, we are reintroduced to such personalities like King Solomon, Sherlock Holmes, and even OJ Simpson. It becomes eventually apparent that the purpose of such an approach is to draw the readers in and to stimulate their interest. For most part, it worked on me.

A perusal of the outline of Chapter 1 divulges that the author divided the examples presented into legal and non-legal. There was therefore an attempt to differentiate the two, but as the chapter evolves, the reader discovers that the said distinction is blurred. The blurring resulted from the existence of a similarity in both instances, i.e. that there is a story being told. Even in legal cases, one should not view facts on their own. These facts should be connected to form a flow—a story— from which we can infer relationships between law and fact. There are, however, also marked differences. Unlike a story which has a definite start and a definite end, in actual cases we are often left with the burden or responsibility of inferring the start and/or the end of the story. The field of evidence, and its methodologies, are therefore essential not only to the construction of the start and the end, but also to connecting them together (or as the author wrote, connecting the dots).

How do we connect these dots? In answering the question, one quandary must first be addressed. At the beginning of chapter 2, it was asked whether the study of evidence is a science or simply a question of common sense.

In connecting the dots, one of the most important tasks is fact investigation, which involves not only the gathering of evidence, but also the analysis of such. This requires the use of the three standard forms of logic: deductive, inductive, and abductive. In stressing the importance of logic, the author presented an organized and simplified way of viewing the gathering and analysis of evidence. For example, in Figure 2.3, the author graphically illustrated the abductive process. The author also used illustrations of arrows and diagrams (as in Figure 2.2 and 2.4) to represent the possible combinations of dots. By doing so, the author in effect suggests that there is a systematic way of analyzing evidence, which can be translated into simple steps, arches or levels. This is well appreciated since it gives us a cohesive view of the field of evidence, this being an introductory chapter. Such a systematic way of explaining would suggest that the field of evidence involves a scientific approach to the discipline, that it is the science of science (page 46). After all, the analysis of evidence is not exclusive to the law alone, as it has permeated its ways to other disciples, like medicine, natural sciences and statistics.

But reading through the entire Chapter 2, one gets the sense that there are interlinking factors which complicates, rather than simplifies, the diagrams as presented by the author. One of these factors is context. The dots, as used by the author, should not only be read in relation to other dots. More importantly, there has to be a recognition of the fact that these dots do not exist in a vacuum. They should be contextualized within the economic, political and social milieu of the time the facts took place. This is especially important in abductive reasoning, which involves reasoning from the evidence to the hypothesis that might explain it. The context is important because it can give an indication of how a person might behave or react to a particular stimulus, therefore guiding us the formulation of our hypothesis arising from gathered evidence. This is especially useful in cases dealing with terrorist attacks, such as the one illustrated in page 52. As part of the exercise, we were asked how we would have responded to intelligence reports saying that there is a coordinated effort to send students to the United States to attend civil aviation universities and colleges. In a post 9/11 investigation, it would seem idiotic that the FBI did not put these dots together to preempt a possible air attack against the US, especially given their hostile relationship with Bin Laden and other insurgent groups. However, this must also be viewed within the context of internal politics within the bureaucracy, and also within the State’s policy to prevent mass hysteria and panic, all of which can explain why no immediate action ever took place.

A second factor to be considered in the gathering and analysis of evidence is the existence of doubt. The author said that all probanda are potential sources of doubt. Probanda after all are yet to be proven true or false. The burden of the lawyer, or any person for that matter, is to look beyond the doubt, in order to allow the acknowledgement of other possibilities. This has to be balanced however with the fact that doubts are also useful since it also prevents us from committing to a single hypothesis.

With these two factors in mind, it would seem that the analysis of evidence is not limited to the use of logic alone. It is not just a matter of looking for the condition, and establishing the conclusion. Rather, evidence also entails the use of intuition and common sense. Logical reasoning must be guided also by what is dictated by human experience. After all, one of the most difficult things to understand is human behavior. Some would even go to stay that people are unpredictable. But the analysis of evidence is not concerned with prediction. Rather, it involves understanding facts in order to know the truth of a hypothesis, or in order to know which questions to ask in pursuit thereof. Given the complexities of human nature, coupled with the need to understand the context in which it took place, leeway should also be given to allow the use of common sense.

In conclusion, field of evidence should not only be seen as purely scientific. Although the author of the book seems to stress more on logic and a systematic approach, he has also hinted that evidence goes beyond the realms of scientific thinking. The burden given to lawyers or anyone involve in the analysis of evidence is to be objective, but yet should also be flexible enough to allow for new information and questions. A too rigid approach might lend the person myopic to other possibilities and queries that should be asked. Evidence, as a field, is not simply linear. Connecting the dots is a complex task, aided by both logic and creativity. For this reason, it is not only science, but also art.