Second Session:
Principles of Proof and Methods of Analysis
June 18, 2009
Readings:
Chapters 3 and 4, Anderson, Schum
and Twinning, ANALYSIS OF EVIDENCE, 78-122 (reserve section)
Exercise:
Same as first session, but the
deadline for submission will be at 12:00 noon on June 23, 2009.
Resubmission:
Rules of Logic versus Rules of Admissibility
(Critique of Chapters 3 and 4)
The text identifies the rationalist tradition as having the rectitude of decision as a primary objective. It was stated as “the correct application of law to facts proved to be true.” This simply means that when one adds up the facts and the law, then a correct decision would result. However, there is a flaw in this reasoning. The problem is not solved so easily. In the resolution of cases, there will always be a human factor present – the judge. More often than not, mistakes of judgment will occur. Jurisprudence has proven this. The presence of a judge means the inescapable presence of a bias. No matter how impartial one may try to be, still, the total elimination of a bias is impossible. A bias is innate in humanity. For example, when one is conscious of the presence of or a coming development of a bias, he may choose to compensate by leaning towards the opposite direction. Still, by doing so, he unknowingly creates a reverse bias which favors the opposite side. The presence of the remedy which allows the inhibition of a judge is recognition of the existence of this problem. In order to arrive at a correct decision, there must be a correct investigation of facts and a correct inference from those facts. There is no guarantee that these two will be met a hundred percent of the time because of the inevitable existence of a bias.
The authors then depict the rules of admissibility as reflecting “a greater concern for finality and efficiency with concomitant reduced concern for establishing the truth.” They state that the rectitude of decision is simply sacrificed for efficiency and that the rules reflect political compromises instead of articulations of principles viewed as theoretically correct. They are accurate in describing the ongoing trend of the rules, however, they fail to realize and emphasize the positive effects which the rules have brought to today’s legal system. The authors are correct to state, indirectly, that the pursuit of truth or rectitude of decision cannot be simply sacrificed for efficiency or speed. The truth cannot simply be the subject of a compromise since truth is equated with justice. If we compromise, then we settle for part of the truth. In doing so, we settle for only part of the justice as well. However, it must be realized that not all the rules effect a compromise of the truth, nor of justice. It may in fact be the opposite, since, among other things, justice delayed is said to be justice denied. The search for more information is not the same as the search for truth. Irrelevant information can lead to a decision which is not based on the merits of the case. There are rules which provide adequate safeguards against “erroneous persuasion”, as Wigmore succinctly puts it, as well as unnecessary delay. But despite Wigmore’s knowledge of the purpose of the rules, still he places primacy upon the principles of proof and refuses to give due credit to the rules of admissibility.
It is true that the principles of proof are of great significance in the legal system, but of no less importance are the rules of admissibility. The latter can be said to be a product of the principles of proof tempered by practical constraints, and refined by the knowledge accumulated through the passage of time. The rules were developed for a purpose. As previously mentioned, a problem that arises each time a case has to be decided is the existence of a bias. These rules answer that problem. Although it must be conceded that the bias cannot be completely eliminated, still, that is no reason to not attempt to reduce the effects of such bias. The rules install systems for preventing the inflow of certain evidence which, instead of aiding the pursuit of truth, hinder it by presenting immaterial and irrelevant information which lead to nothing more than fallacious arguments. Doing justice is difficult enough without the interference of such information.
It may be argued that removing the rules of admissibility would still leave the principles of proof which are sufficient to pursue truth and justice. However, principles are merely principles and so they lack the element of compulsion. No one can be forced to subscribe to them. There is always the possibility that a lawyer may construct his arguments in total disregard of the principles of truth with the intent of merely misleading the court. Likewise, no matter how brilliant a judge may be, there is always the possibility that he may have a lapse of judgment and be swayed by misleading statements. The possibility will always remain, but the rules decrease that possibility.
Wigmore also fails to realize that it is fruitless to compare the principles of proof of archaeologists, historians, and scientists to the rules existing in the legal system. Law is not an exact science. Sciences require the discovery of all information possible in order to prove a hypothesis. On the other hand, information in the legal system can become a double-edged sword. The right amount serves the ends of justice. While too much of it can lead to its destruction. Thus, a sort of filter is required to ensure that this does not happen.
Therefore, in establishing theories of cases, aside from focusing on the principles of proof alone, due regard must also be given to the rules since they are not merely political compromises but also serve a specific purpose in the pursuit of truth and justice.
Posted by: Rommel Galingan | June 25, 2009 at 12:10 PM
A Critique on “The Analysis of Evidence”: Chapters 3 and 4
Guanzon, Teresa Ira Maris P.
2002-55458
The next two chapters of “The Analysis of Evidence” deal with principles of proof and methods of analysis. The former’s main argument is “the principles of proof are important in understanding evidence.” The latter provided a set of procedure that may be useful when applied to any method of analysis.
In Chapter 3, the premise is based on one school of thought: - the Rationalist Tradition – the assumption that the primary objective of procedural law is the correct application of law of facts proved to be true. This in turn is based on three more assumptions. The problem with approaching procedural law from the Rationalist Tradition point of view is the fact that the objective is more biased towards evidence and is not entirely true for other procedural laws. A case in point is civil procedure. It provides for an orderly structure as to how civil cases should be brought before any court of law and thus the application of law of a fact proved to be true becomes part of the sidelines as it is just a piece of the puzzle, an assumed presence, in civil procedure. Another problem with the Rationalist Tradition can be found in one of its underlying premises that the pursuit of truth has a high, but not overriding, priority as a means to secure justice under law. I am speculating that this is because the overriding priority in pursuing truth is so that the law can be accurately applied to it. There is no need to make a distinction between justice and the pursuit of truth as one of the basic nature and purpose of law is to provide a means for justice to be served and is not justice the result of the correct application of law to facts proved to be true? It was mentioned that regardless of the conflicting ideas about the soundness of the rationalist tradition, it is nevertheless pervasive among procedural laws of different countries but a compromise has been reached in order to assuage those who believe that procedural law is but a product of politics. This accusation is not far from being true because the rationalist tradition in itself has to comply with certain assumptions which in real life cannot be perfectly met due to uncertainties and preferences or unconscious biases of people. .
Chapter 4 begins with a highlight on the value given to professionals’ reasoning because it affects a greater part of society. As such, it is necessary to have a method of analysis as well as a procedure on how to approach each problem encountered. Method can be defined as a particular form of procedure for accomplishing something. The chapter listed two methods of analysis, namely, the chart method and the outline method. The difference between the two is on the form of how data is organized and in specifying the logical relationships among propositions and how they are used to support or negate given facts or consequences of such facts. The author says that each method will produce distinct results. However, this need not be so. At most, the difference will be in the “form” of the “conclusion” but substance wise, a lawyer must be able to arrive at the same evidential propositions. For example if the chart method uses a symbol to connect proposition 1 to proposition 2, the outline method lists down the evidentiary proposition which links proposition 1 to proposition 2. The danger with saying that each method will produce distinct results without a caveat that substantially this is not so is the implication that one method may be better than another when the option of which method to use is usually just dependent on the preference and creative style of the person or that which the person has been first exposed and used to. The chapter then moved to define analytic devices. Analytic devices are referred to as “tools that aid in developing lines of inquiry for or in testing the quality and completeness of an analysis.” Two analytic devices were mentioned: chronologies and narratives. Once again, this is dependent on the preference of the person using it; a preference that is not necessarily a factor of effectiveness but of habit. It must be noted though that the author did mention that the methods are complementary and each has its own advantages and disadvantages and it would be helpful if the professional is familiar with the use of any of the methods and devices.
The chapter then imposes three questions that must be addressed by every lawyer and suggests a seven-step protocol for analysis. The three questions are admittedly unchanging as every lawyer handling a case has the ultimate goal structuring the data towards the advantage of his or her client. With regards to the seven-step protocol, as the author himself admits that it is but a suggestion, the procedure for analysis can change depending on the lawyer and even on the case that he or she is handling as well as the theories available to the opposing party. The beauty of the procedure for analysis is that there is no hard and fast rule for it but it is continually changing based on creativity and the pursuit of better ways on how to approach a legal problem.
All in all, the author was correct in saying that the process of reasoning of professionals is crucial and the use of principles of proof as well as methods of analysis is necessary not only for lawyers but for other professionals as well. Even so, the layman must not be disregarded because this approach can actually be useful to him and his everyday life. Thus, If there is a simplistic way to summarize everything, it can be said that when approached with a problem, one has to come up with a comprehensive plan as to how to solve it, taking into account every possible thing that can go wrong along the way.
Posted by: Teresa Ira Maris P. Guanzon | June 25, 2009 at 11:33 AM
Given the availability of data as well as doubts as to their credibility and admissibility, not only is it important to establish the standards for their utility but one should likewise pay a critical eye to their fallibility. Hence, the application of logic becomes an essential tool in drawing conclusions and rendering decisions on the case beforehand. However, the conversion of all the available data into propositions to be arranged in a strict chronology requires a fair deal of objectivity in constructing one’s story. Whatever the case may be, each side will narrate the facts in a manner most favorable to it. Such statement must, therefore, pass the crucible of logical reasoning. But it does not always follow that because the argument is cogent or sound, it is immediately given more probative weight by the magistrate as the latter’s assessment may be colored by his biases, experiences, and personal views. Thus, objectivity in reasoning cannot be always guaranteed but at the least it can be approximated.
The author provides a seven-step protocol for analysis and he claims that analysis would be enhanced if such means were employed. In dealing with the standpoint aspect, knowing where one is does not always guarantee the optimum result for the client because the practitioner may also consider what is best not only for his client but for him as well. As a result, litigation is prolonged instead of expedited because not all lawyers are willing to place their cards on the table. Some are hesitant to present all their arguments at the trial court level because the possibility of an appeal gives justification for continuing their legal services. This step is quite an ideal because although the lawyer may be thinking in the long run, it is not only the court and the client’s interest which are taken into consideration.
It must be advised that it is difficult to argue on theory alone because part of their value rests on their practicability in a natural setting involving fallible and self-interested actors. In the formulation of probanda (whether ultimate, penultimate, or interim), difficulty lies in assessing the available data at hand, i.e., evidence may be polluted or suppressed. The client, out of shame or fear of losing, may conceal some important facts from his own lawyer, which if revealed by the rival counsel may demolish the theory of the case. Be that as it may, the author is correct in pointing out that temporal gaps need to be filled or explained. However, not all information that are lacking in between narrations are the only ones that can be fatal to arguments. Extraneous evidence may be snuck in on cross-examination if a counsel fails to object immediately to its admissibility.
In the presentation of the Rationalist Tradition, one cannot help but notice how the concept of “rectitude of decision” is nonchalantly presumed to be attainable. The author admits that one of the flaws of the rationalist system is that the aspiration is not always realized in practice. Adherence to reason alone also frustrates the search for the truth. In the study of logic, one is not primarily concerned with the truth or falsity of statements but rather their arrangement. For example, the hypothetical syllogism that God is love and love is blind, and ergo, God is blind is still a valid argument under the rules logic regardless of how absurd it sounds. Therefore, to limit oneself to one form of reasoning would be self-defeating. Hence, analysis becomes an interplay of reasoning, generalizations, and common sense.
In the pursuit of truth, the rationalist model gives fact-determination is given a premium. It prescinds from the idea that facts about past events may be ascertained and through establishing their truthfulness, a necessary condition for achieving justice is attained. However, the author also hedges by saying that “the establishment of the truth of alleged facts in adjudication is typically a matter of probabilities falling short of absolute certainty.” Is it safe to surmise that there is probability of making an error? Suffice it to say, the truth cannot always be guaranteed with certainty but it may still be approximated. Nonetheless, it is imperative that the margin of error be reduced to a minimum inasmuch as the decision-making involves possible loss of life, liberty and property.
The problem of passing judgment on different versions of the truth is that it does not work smoothly with procedural guidelines, i.e., expediency and economy. Given different viewpoints, it is possible that the arbiter may submit that they are equally sound or both wrong in their own light. A smorgasbord of ideas makes it difficult for one to indulge in a quick snack. Hence, the object of promoting a just, speedy, and inexpensive trial has an internecine instead of a symbiotic relationship with the accuracy in fact-finding, or for that matter, the Analysis of Evidence. How far is one willing to go to trade off the truth for expediency in settling disputes? Hence, Alternative Dispute Resolutions are much more efficient than full-blown litigation. Yet, this undermines the Rational Model.
Wigmore is regularly cited as an authority. His concepts of Proof and Admissibility have sound foundations for their propositions. One refers to natural mental processes and the other to artificial legal rules. But taken together, the human element has to be in harmony with didactic rules. The former is swayed by emotion while the latter tempered by reason. It becomes well-nigh difficult for the two to co-exist due to the rigid character of rules and the free thinking of man. Still, it is man who must conform to the rules because the latter is ironclad unless amended or disregarded.
Thus comes in the value of analyzing the probanda. It is advised that the ultimate probandum be subdivided into simple propositions. On this point, such propositions become the foundations for applying one’s skill in logic. Propositions are to be given credence if they are in accord with human experience and belief. Therefore, inferences are essential in linking one proposition to another and to determine if there is indeed a nexus between the premises and the conclusion. For a lawyer, it becomes paramount that he systematically and coherently builds a chain of inferences in order to appeal to the cognitive faculties of the people he is trying to convince. In addition, Empiricism plays an important part in the assessment of the evidence. A case in point would be the autoptic preference which helps in determining the probative value of evidence presented. Did it aid in fact-finding or distort it?
On the matter of probative processes summarized by Wigmore, the student considers the enumeration comprehensive enough. As for the logical principles, he also puts emphasis on the importance of the different kinds of reasoning and generalizations but this also has to be in accord with common sense. Otherwise, the logician will be the prisoner of his own non sequitur. On a final note, it must be stressed that any inexperienced student of the law should keep in mind that Wigmorean analysis, no matter how resilient it may be, should not diminish his personal skepticism towards any argument nor pander his sensitivity to personal views. Such method is only a tool in approximating the truth but it should not be the sole substitute for it.
Posted by: Patrick O. Sadeghi-tajar | June 23, 2009 at 12:29 PM
A rationalist model of adjudication, which necessarily includes rationalist theories of evidence (as the latter forms part of the former) postulates “rectitude of decision” as its primary objective. In this model, the mode of decision-making is seen as rational wherein proof or non-proof is the result of the process of inferential reasoning. The process of decision-making to be rationally justifiable requires the application of the principles of logic (abductive, inductive, deductive) to evidence presented from which propositions can be inferred and marshaled as arguments bearing upon the resolution of the case.
At the outset, there is a need to clarify that “rectitude of decision” involves the pursuit of “truth” which in the context of the adjudicative process is not concerned with the philosophical discourse on the concept of truth nor the nuances of objective reality. One of the assumptions of evidence within the Rationalist Tradition is that epistemology is cognitivist rather than skeptical. Legal process proceeds as if knowledge of the world is possible; truth is that which corresponds to a fact; and truth can be ascertained or tested by means of evidence. These assumptions confer practical value in the method of resolving questions of fact. Simply put, rectitude of decision is judgment made based on the best attainable truth. As certainty is unattainable, decisions are based on probabilities and likelihood. The system, therefore, acknowledges the myth of the absolute truth. This could be a very dangerous enterprise as participants in the process, equipped with the mastery of the principles of proof, can and will find truth on their side. Although advanced as the ideal type, this enterprise of seeking truth through rational means is open to exploitation in order to support a party’s agenda. It is possible to bend the truth by hiding it under the cloak of reason. As Nicky Welt lamented in Nine Mile Walk, “An inference can be logical and still not be true.” A decision may be reasonably justified but such could be the result of various factors such as the resources available to each party, the machinery used in evidence-gathering, and the technical skills of the lawyer, to name a few.
The claim that the modern system of adjudication is “rational” is more a statement of aspiration rather than that of reality. Strictly speaking, the rational model assumes that that the reality of facts produced by evidence exists objectively and hence produces value-free judgment. The contemporary system of adjudication should account for the non-rational aspects involved in the process. What is most important is to give due regard to the role of the participants in the adversarial process and their individual interests: lawyers, plaintiff, defendant, witnesses, judge, and the public. Each have their own agenda and brings to the courtroom their own set of beliefs and preferences - their badges of individuality as well as their social situatedness. The outcome of the case is always the result of the complex interplay of all these subjects.
Another characteristic assumption within the Rationalist Tradition is the recognition that pursuit of truth has a high but not overriding priority as a means to secure justice under the law. Truth ascertainment and consequently rectitude of decision is overridden to protect prized social values. Bentham, in his book Rationale of Judicial Evidence, stated that “Evidence is the basis of justice: exclude evidence, you exclude justice.” Such a statement invites controversy when placed alongside rules restricting admissibility of relevant evidence. Examples are the rules protecting privileged communication such as between husband-wife, lawyer-client, doctor-patient, the constitutional exclusionary rules adopted to regulate improper conduct such as unlawful search and seizure or forced confession by law enforcement officers, and the constitutionally-protected privilege against self-incrimination. These rules exclude evidence without regard to its probative value. As a result, truth ascertainment is hampered. However, a departure from this primary goal is better received when seen in light of the realization that maximization of accuracy is just one of the criteria in evaluating rules and procedures. Others include efficiency and speed, fairness, humaneness, public confidence, and accessibility. Seen in this context, these exclusionary rules are warranted. Better to assure confidentiality in communication to protect the integrity of marriage, and so as not to discourage the public from seeking medical attention and effective counsels. It is certainly better for the guilty to be acquitted than establish guilt by unethical means which violate basic human right and dignity. Indeed, these rules serve a purpose deemed more important than the truth.
Posted by: Sopfia Guira | June 23, 2009 at 11:25 AM
CARLA PINGUL
2007-78155
Evidence
The Art of War
“He will win who knows when to fight and when not to fight.
He will win who knows how to handle both superior and inferior forces.
He will win who, prepared himself, waits to take the enemy unprepared.”
- Sun Tzu
Victory is the critical goal of a lawyer. To be able to defend the cause of the client is much like conquering another force in a war. In this battle, the lawyer is the general who orchestrates the strategy of his troop. The third and fourth chapter of the book entitled “Analysis of Evidence” will give its audience a similar sense of a warrior preparing for his battle. A lawyer must master the art of presenting proofs and methods of analysis as a general must know the art of war. The art of evidence entails a scientific, logical, and defined approach on how to attack a case. Thus, this critic paper aims to appreciate chapters three and four in its practical application. There will be five subsections or varied tactics presented that will discuss the essential points raised in the book.
Tactic Number 1- Knowing thy self: Basic Rational Assumptions
“The good fighters of the old first put
themselves beyond possibility of defeat…”
Evidence does not operate in an endless continuum of emptiness. In actuality, it is dependent on the understanding provided by the different fields of knowledge such as logic, psychology, forensic science, and statistics. These arrays of different nature of knowledge reflect some basic assumptions in legal reasoning. They provide guidelines on how to establish a fact and how it should be interpreted. Assumptions are the basic foundation to support an argument. These “first principles” are frameworks for logical explanation of the event. The book presents this view through the Rationalist Tradition Approach. This theory posits that establishing the truth behind a particular past events in issue in a case is necessary for achieving justice in adjudication. Judgments on probabilities have to base on actual knowledge about common course of events. When available, this common sense should be supported by scientific and expert understanding.
A lawyer must be aware of these basic assumptions. Human nature would prove that a person’s mind thinks through assumptions and inferences. Knowing the assumptions in a past event will dictate the path and eventually the outcome of the case. The author presents this point in a realistic and modest manner. Often times, assumptions are undervalued since many would presuppose that this system of thinking is an automatic function of the human mind. The book discusses rational assumptions because it is an integral part of the logic behind every case. In presenting proofs of evidence, a lawyer must not assume that something is a given fact. Assumptions must be revealed in the first instance. It is the framework of a lawyer’s argument. Basic as it is, assumptions can seal or sever a lawyer’s case. A rational assumption presents opportunities for the discoveries of various hypotheses. It is also a tool to disempower an opponent’s stand. When assumptions are shattered, the argument itself falls apart. Hence, a strong argument is very much dependent on the strength of its assumptions.
The book also acknowledges that evidence is a conglomerate of different fields of knowledge. The author makes an unpretentious assessment that evidence as field of knowledge does not stand alone by itself. This interdisciplinary approach of discovering truths provides a more probabilistic explanation of past events. These parts of the chapter expose a scientific approach to factual investigation. Facts are not just mere facts. They are not presented as raw information. The scientific explanation of what occurred gives a whole new significance to facts. Consequently, assumptions are affirmed as they are explained in a logical means.
Knowing the assumptions of a case and its possible explanations is akin to knowing one’s own strength and weaknesses in a conflict. Rational assumptions are more than a fact finding mode. It is an instrument to gauge the subsequent plausible actions throughout the trial.
Tactic Number 2- Knowing the Terrain: Logic of Proof vs. Rules of Admissibility
“The natural formation of the country is the soldiers’ best ally; but the power of estimating adversary, of controlling forces of victory, and shrewdly calculating difficulties, dangers, and distance constitutes the test of a great general.”
Proof and admissibility are the two primary components of evidence. The Logic of Proof is as equally important as the Rules of Admissibility. Regrettably, many the principles of the logic of proof are underrated by the overwhelming concentration to admissibility rules. The dependency on admissibility rules creates some serious doubts on how to establish evidence as a legitimate scientific field. The author clearly describes the unstable changes in the rules of admissibility. These changes are reliant to the current political scenario of a state. Political forces as well as historical experience of a particular state shapes and build such rules. As a reader, one may infer that a universal rule on admissibility of evidence may be complicated to achieve. But this particular chapter ushers an optimistic view that there is a possibility of creating a science of evidence. The logic of proof exhibits a more universal approach to fact finding.
Judicial process main objective is to ascertain the facts of the past event in issue. The logical chain of events and their relationship can be established and derived by educated and intelligent people. The logic of proof represents the thinking process of an ordinary person. It does not exclude laymen. In fact it works under the postulation that it would be the natural logic of laymen. The author maintains that the process of proof is the most important in trial. The process of proof is a way of eliciting similar and familiar experiences amongst the jury so as they will follow a parallel trail of thought. A lawyer need not to always utilize an over profound analysis. By knowing the human’s natural thinking tendencies, a lawyer can make strong factual arguments. Therefore, the primary responsibility of lawyer in the process of finding a logical proof is to have in depth understanding of the human psyche. At this point, the author conveys to his audience the fundamentals of reasoning. A human intellect is capable of assumptions, inferences, generalizations, and corroborations. The lawyer must make use of these human intellectual capacities to prove his cause.
Knowing the human intellectual terrain depicts the plot in finding the logic behind the past event. This terrain is capable of reconstructing on how and why the event happened. If this terrain will remain unexplored, the process of proof will be in done muddled and confused approach.
Tactic Number 3- Knowing thy Enemy: Opponents Probative Process
“To secure ourselves against defeat lies in our own hands,
but the opportunity of defeating the enemy is provided by
the enemy themselves.”
Knowing oneself is not enough. The ability for foresee the movement of the opponent is equally significant. Forecasting the other party’s plan of action and respond is part of the preparation. The chapter also gives emphasis to the opponent’s probative process. The opponent may assert a different fact, inference, assertions, and explanations. Although these sections were not thoroughly explained, the author suggests a valid point. Obviously, the opponent will work on different set of argument favorable to his own. Knowing the opponent’s basic assumptions will help the lawyer to rebut the opponent’s propositions. Being aware of the opponent’s options will make a lawyer responsive to every possible situation. Furthermore, knowing the enemy provides an opportunity for a lawyer to test his own arguments. The success of his argument is not dependent on his preparation but inevitably it will be compared to his opponent’s counter arguments. By assessing your opponent, one is indirectly undergoing the process of upgrading his own logical standards.
Tactic Number Four- Variations Tactics: Application of Principles in Legal Disputes
“The art of war teaches us not to rely on the likelihood
of the enemy’s coming, but on our own readiness to
receive him…”
Structures are important in presenting evidence. They provide coherency and a systematized chronology of events. Structures such as conjunction, compound, convergence, and corroboration are used to evaluate an argument. Presenting a case entails an intricate weaving of different proposition. Proposition on its own will not make any sense. However if these propositions are intertwined into a narrative, a chain of logical events will necessarily unfold. These structures make a lawyer a raconteur of events. With these techniques a lawyer can identify and articulate each step in the reconstruction of the chain of events. Accordingly, he can now make inferences to support his claim.
Creating a solid storyline or the proper integration of propositions improves a lawyer’s promptness to defend his cause. His basic framework of assumptions must be incorporated in the same plot. As a result, these structures are the threads that bind the lawyer’s arguments.
Tactic Number 5- Laying Plans: Methods of Analysis
“The General who wins the battle makes
many calculation in his temple before the
battle is faught…”
The capacity to infer is common to everyone. Yet, dispersed inferences and assumptions will not provide a strong factual finding. A precise method of analysis must be employed to better appreciate the benefit of inferences and assumptions. Chapter four of the book tackles the method of analysis. Method of analysis is a mechanism to illustrate to audience how the chain events are related. For instance, the seven-step protocol analysis serves a systematic guideline in presenting the case. The author enlightens the audience to a step by step creation of propositions that will lead to a finding. Consequently, this method proves that the field of evidence is base on logical explanations.
Every argument must be supported by logical explanation. The process of fact finding is as essential as the conclusions. The method of analysis is equivalent to general’s battle plan. Without it, the potential hypothesis will never actuate to formidable conclusions. For that reason, a lawyer must always equip himself with a tool on how to arrange propositions that will ultimately solve his case.
Ultimately, winning the battle entails satisfaction of these different factors. Presenting the evidence is indeed an art. In the end what matters is not the art of fighting, but rather it is the art of preparing for the battle that defines victory.
Posted by: carla pingul | June 23, 2009 at 11:24 AM
Emil S. Lunasco
III-D
23 June 2009
The Traditionalist Approach and the Technical Rules of Evidence
The next two chapters introduce the readers to the rationalist approach. More particularly, there is a focus on its assumptions. Truly, the justice system has come a long way since the days when trial by ordeal was the norm. I found the next two chapters more useful in concrete ways for the lawyer than the first two. However, I was not comfortable with some ideas that were presented.
In chapter 3, the authors present the idea by Wigmore that the study of evidence focuses too much on the technical rules of procedure, specifically the rules of admissibility, which are artificial and peculiar to the Anglo-American adversary system, at the expense of the science of proof, which they imply has not been fully developed. Wigmore has therefore presented a dichotomy between the “natural” science of logic, and the “artificial” rules of admissibility. The way this proposition is presented seems to imply that there is a conflict between the two distinct parts of the study of evidence. It is for this reason that I do not agree with this proposition.
As the authors admit, the Federal Rules of Evidence define “relevant evidence” as that that which has a tendency to make the existence of any fact that is of consequence to be more or less probable than it would be without the evidence. For evidence to be admissible, it must be relevant (more precisely, it must not be irrelevant). In our jurisdiction, a similar definition is adopted. Under our own Rules of Court, for evidence to be relevant, it must have such a relation to the fact in issue as to induce belief in its existence or non-existence. For evidence to be admissible, it must be both relevant and competent (ie not excluded by the Rules or by law). In fact, to go one step further, the Rules say that evidence is not evidence unless it is sanctioned by the rules (i.e. it must be admissible).
What these provisions tell us is that the rules of admissibility and the definition of evidence take into account relevance. Relevance, however, requires an evaluation of the probative value of a piece of evidence. In fact, while competence is an important question in the evaluation of evidence, more often than not, the questions which arise in cases are related to relevance rather than competence. Therefore, even before evidence is admitted, it must first go through a preliminary process in which questions which are framed as “Does the fact that event A occur affect the probability that a proposition on a fact in issue is true?” are asked. If the answer is “yes”, then it might be admissible, unless it is excluded by the rules or law. If not, then it is not admissible. Necessarily, answering this question requires the use of logic, common sense and the rich experience of the courts more than hard and fast rules of admissibility. It is after all an exercise in the use of the mental processes which men and women use in making inferences and conclusions given a set of facts. Therefore, the principles of proof are very much utilized. The fact that courts came up with rules such as those with respect to collateral matters, which is grounded on the fact that they are normally not related to the probability that a proposition on a fact in issue is true, proves that the technical rules of evidence were designed in a way that takes into account the probative value of evidence, and necessarily, the logic behind the evaluation. Therefore, I fail to see how there is conflict between the procedural rules of evidence and the principles of proof, when as I have attempted to demonstrate, the former must and does include the latter.
Chapter 4 presents a particular procedure for the analysis of evidence. True to the rationalist tradition, the authors present a set of questions to be addressed and suggest ways of finding possible gaps in the chain of inferences leading to the penultimate probanda. I find this the most useful and logically presented portion of the book so far. However, I wonder if this procedure is as universally applicable as it purports to be, given the myriad permutations and combinations that may arise given many sets of evidence. For example, for the most part it assumes that all of the evidence is already given. Although it allows the entry of new evidence and makes it clear that the theory of the case may be amended to conform to the available evidence, in many cases, this means starting all over again, which cannot always be done. So far, however, I think that the procedure is comprehensive enough for purposes of preparing for trial.
In conclusion, while I find the two chapters helpful in explaining how proof is a matter of logic and in presenting a concrete way to go about analysis in preparation for trial given a set of evidence, I am uncomfortable with the premise that the logic of proof must be presented in a scientific manner because there is too much focus on the technical rules of evidence, which the authors describe as artificial, as if there were a real conflict between the two.
_______________
1 Rule 401
2 Rule 402
3 Sec. 4, Rule 128
4 Sec. 3, Rule 128
5 Sec. 1, Rule 128
6 Riano, Willard B. “Evidence (The Bar Lecture Series).” Rex Bookstore. 2009. p. 62.
Posted by: Emil S. Lunasco | June 23, 2009 at 11:23 AM
THE ROLE OF LAWYERS
Anderson, Schum and Twinning speak of the Rationalist Tradition which provides for a sufficient model of accepted assumptions which have generally conformed to an ideal. Unfortunately, ideals, though noble, are more often than not limited to just that: dream standards of a Utopian society.
Like all “scientific” models, the Rationalist Tradition rests on a foundation of assumptions, building blocks on which the entire analytical model rests. Unlike mathematics and other exact sciences, however, the common law model presented by the authors do not possess the same universally accepted axioms. Axioms, theories and assumptions need to be precise and accurate; for like a tower with a weak cornerstone, the slightest chink in the analytical assumptions we use can cause the complete downfall of our case.
The book, on pages 82 and 83, lists a table of basic assumptions, and a simple perusal of the same would reveal that 1) there exists too many assumptions to begin with; and 2) these assumptions are hypothetical at best. Phrases such as “specific standards of probability or likelihood,” “competent and impartial decision-makers,” and “adequate safeguards against corruption” raise countless red flags, that to use these as foundations would mean that 99.9% of court cases in the Philippines are not in consonance with prescribed method.
Perhaps the only light at the end of the tunnel lies in the line, “presented (in a form designed to bring out truth and discover untruth)”. The said phrase breathes life to the entire table and allows it to be fully adaptable to the Philippine legal context; by focusing on the role of the lawyer in the presentation of evidence.
The authors acknowledge the fact that in the common law system, relevancy of evidence is affected by several factors which include interpretation, procedure and politics. Such is the reason why they found it proper to differentiate the term “proof” from “admissibility”. Though admissibility is governed by the strict limitations of procedure, proof is much more controllable. It is a process which lies in the hands of the lawyers; and one which is safer to rely on than mere fickle assumptions.
Indeed, logic plays a big role in presentation and analysis of evidence. Yes, the natural processes of the mind in dealing with the evidential facts are of also of some importance. However, it is primarily the PRESENTATION of the evidence, and the subsequent analysis and explanation that comes with it, which wins or loses a case. Such is what makes lawyering a very desirable social skill, acquired only through years and years of practice.
It is a well-known reality that both parties to a case present plausible cases. No one party comes in knowing fully well that they’re bound to lose. Rather, parties and their counsels enter the courtroom believing whole-heartedly that they are presenting the truth, and that their side is in line with the laws of the land. Each have arguments: each protecting Constitutionally-firm rights. A “decision-maker,” no matter how unbiased and just, would always have two choices to pick from and a decision could always go either way. The X-Factor is, thus, the lawyering.
How has the lawyer built the story? Has he done it in such a way as to create a MORE reasonable and logical tale than that of the other party? Are his arguments and the pieces of evidence he has presented sound and believable? These are the questions of vital importance to be answered in the determination of a case.
It must be stressed that equally important with the number and quality of evidence presented is the MANNER in which such evidence is presented and how this creates a more logical set of facts. Good lawyers are not those who can find the most number of evidence. They are those who, with just a limited set of strong facts, can portray the same in such a manner that the justice, judge or jury can have no doubt in his/her mind that “this is what happened in this case”. It’s no longer a matter of “finding out which is black or white,” but rather of saying, nay, imploring, that “THIS IS black and THIS IS white.”
With the entire process of assertion, explanation, rivalry, denial and corroboration between the proponent and the opponent; the question ultimately comes down to: Who is the better lawyer? Each party has evidence. Each evidence may be strong depending on what they try to show (probandum). The difference lies in the role of the lawyers. They determine who wins.
Posted by: VILLORDON, Loverhette Jeffrey P. | June 23, 2009 at 11:20 AM
A Critique of Analysis of Evidence: Chapters 3 and 4
Chapter 3 finally introduces evidence in the legal context. Unlike the introductory chapters where the authors remained faithful to the close relation and interdependence of the law of evidence and logic of proof, the third chapter develops the concept of evidence in legal contexts by introducing the Rationalist Tradition, by discussing probative processes and logical principles used in the analysis of evidence and by employing a pragmatic approach through the use of these principles in legal situations.
The authors formally introduce the Rationalist Tradition—the confluence of the longstanding assumptions used by evidence scholars in their work. By introducing these assumptions, the authors furnish the readers with the framework for understanding how the principles of logic and their application fit within the broader context of litigation and lawyering processes and trial practice.
The Rationalist Tradition establishes its relevance to contemporary legal practice. The authors correctly acknowledged that the assumptions identified in the Rationalist remain prevalent particularly in the contemporary rules of procedure and evidence. The wisdom of learning these assumptions are known to the authors for they continuously highlight the significance of understanding the role that the principles of proof play particularly in actual practice. The pragmatic approach of the authors in this chapter is a departure from their method in the introductory chapters. Here, they are citing more specific illustrations that are tailored for law practitioners or students of evidence.
The discussions on Wigmore’s probative processes applicable to any piece of evidence and of the logical principles are particularly instructive especially to law practitioners or students of evidence. The application of the probative processes and logical principles in several legal disputes represents the shift in the focus of the authors—one which is more concentrated on the application of evidence principally on legal contexts. The discussion on principles of logic in particular, which was introduced in the previous chapter is more in depth and informative. The shift in methodology is effective insofar as it allows the readers to clearly visualize the application of these new concepts.
It is also important to note that in this chapter, since there is a forthright shift to developing the subject of evidence principally in legal contexts; many technical and complex concepts (i.e. autoptic preference, factum probans, the 5 probative preferences, etc) are introduced. The same pragmatic approach of the authors in this chapter helped temper the overwhelming amount of information being introduced for the first time.
Chapter 4 introduces the methods of analysis (outline and chart method) and analytic devices (chronologies and narrative) used in preparing for trial and trial itself, by giving a brief introduction of each and emphasizing the complementary nature of such methods. The chapter likewise presents a general seven-step protocol for analyzing evidence.
The chapter highlights the importance of the method of analysis, particularly to lawyers and their need to be familiar with both methods, As stated in the book, lawyers require a system under which data can be organized and marshaled for presentation in the proper context. The authors present what they consider a generalized protocol applicable in any method of analysis, which will enhance the quality of analysis and resulting product. This writer believes that the authors have proffered a comprehensive and systematic protocol for analyzing evidence that will be very useful to individuals involved in the analysis of evidence, addressing the need to improve analysis by presenting a uniform procedure that can be regularly employed. Such value of the seven-step protocol is manifested in its application in the OJ Simpson case.
Posted by: Mendoza, Juan Carlos | June 23, 2009 at 11:19 AM
Proof, Truth, and Persuasion
Chapters three and four of the “Analysis of Evidence” can be summed up in three simple words: Proof, Truth, and Persuasion. Although the authors have gone through great lengths to discuss principles of proof and methods of analysis, all that they wanted to convey is that truth is equated with justice, but there are many ways of presenting the truth in the context of judicial proceedings.
The Rationalist tradition gives a very high priority to the pursuit of truth. But one has to ask what exactly the cost of truth is and whether finding the truth is all that should matter. In the Philippine context, just as the authors have stated, there are rules of admissibility of evidence and such rules may be said to filter out what may actually be presented in trial. This is a limit on proof. They exclude evidence to prevent undue delay or other prejudicial effects. But if truth is equal to justice, then the pursuit of truth is all that should matter. However, it has also been said that justice delayed is justice denied and the right to a speedy disposition of cases is guaranteed by no less than the Constitution. Taking into consideration these two principles, one can surmise that a balance simply has to be struck between the pursuit of truth and the costs of finding it. To a certain extent, both objectives need to be met. Nevertheless, as correctly stated in the text, nobody says how the balance is to be struck. In our legal system, the Rules of Court attempt to strike this balance, yet, while already sacrificing the pursuit of truth for a quicker and more orderly resolution of cases, undue delays have still plagued the Judiciary. Despite the institution of such a system, it would still take years for a single case to reach a final and executory ruling. This just means that while it is uncertain whether or not the truth is actually achieved, it is also uncertain as to when a case would also be disposed of. Consequently, neither of the objectives would be met. Therefore, consideration must be given to whether the present system should be maintained, continually revised, or simply done away with. Of course, as the authors have found, there has yet to be any other feasible alternative to the present practices.
Sebastian Stark in the television series “Shark” said that: “Truth is relative. Pick one that works.” In a courtroom, as far as the judge is concerned, truth is only what has been proven. As discussed above, there are certain limits as to what can be presented as evidence in order to prove what the truth actually is. If the only evidence admissible is greatly in favor of one side, then the case is over even before it began. This is a possibility that can occur in many cases all over the country. But at this point, another factor comes in, the susceptibility of a theory to be believed. The authors failed to stress the importance of this point. A lawyer’s formulation of events that transpired in a case may in fact be true but if it lacks believability, then the judge might hesitate to rule in his favor. The judge needs to be persuaded to act in a certain manner. Just as established in the previous chapters of the book, each person makes his own inference of certain things. He or she would infer things depending on the purpose of the inference. A bias will always exist despite any presumption of impartiality. In light of this, the authors have cited methods of analysis which would aid in one’s construction of an effective tool to persuade any decision maker. Persuasion is the key to weaving together all the evidence in order to justify or support one’s proposition. Conjunction, compound, propositions, convergence, corroboration, and catenate inferences are concepts provided by the text which would assist one in creating his or her theory. However, one must always take into consideration that despite the great care given in establishing a theory, there is always the possibility that the opposing counsel can destroy it through the use of a denial, conflicting rival proposition, or alternative explanations. That is why despite having all the rules regarding the admissibility of evidence in one’s favor, still, he or she must utilize logical reasoning to support each proposition. Much stress is given by the authors on this point.
One must remember that it is out of logical reasoning that rules, specifically the rules on the admissibility of evidence, were established. The only reason why these rules would sometimes defect from logical reasoning is, as stated in the text, because of political compromises. Therefore, as a rule of thumb, logical reasoning must always be used as a foundation to support any kind of proposition despite the presence of seemingly favorable rules. Such reasoning would also hinder any bias that would be present in a decision maker. Moreover, inasmuch as logical reasoning promotes objectivity and impartiality, so too does case law. This is another factor that the text omitted to discuss. A system which adheres to jurisprudence is effective in creating neutrality since it eliminates, to a certain extent, the human factor in decision making. Likewise, it could also either strengthen or destroy the persuasiveness of one’s proposition.
In conclusion, while the authors have accurately captured the general workings of proof, truth, and persuasion in today’s legal system, still, they have not given a practicable alternative to address the common problems haunting such systems. Justice is still equated to truth, truth still dependent on evidence, but evidence, nonetheless, is determined by rules clouded with political compromises. However, in the end, it all boils down to who is the more skilled in the art of persuasion.
Posted by: Rommel Galingan | June 23, 2009 at 11:18 AM
CARLA PINGUL
2007-78155
Evidence
The Art of War
“He will win who knows when to fight and when not to fight.
He will win who knows how to handle both superior and inferior forces.
He will win who, prepared himself, waits to take the enemy unprepared.”
- Sun Tzu
Victory is the critical goal of a lawyer. To be able to defend the cause of the client is much like conquering another force in a war. In this battle, the lawyer is the general who orchestrates the strategy of his troop. The third and fourth chapter of the book entitled “Analysis of Evidence” will give its audience a similar sense of a warrior preparing for his battle. A lawyer must master the art of presenting proofs and methods of analysis as a general must know the art of war. The art of evidence entails a scientific, logical, and defined approach on how to attack a case. Thus, this critic paper aims to appreciate chapters three and four in its practical application. There will be five subsections or varied tactics presented that will discuss the essential points raised in the book.
Tactic Number 1- Knowing thy self: Basic Rational Assumptions
“The good fighters of the old first put
themselves beyond possibility of defeat…”
Evidence does not operate in an endless continuum of emptiness. In actuality, it is dependent on the understanding provided by the different fields of knowledge such as logic, psychology, forensic science, and statistics. These arrays of different nature of knowledge reflect some basic assumptions in legal reasoning. They provide guidelines on how to establish a fact and how it should be interpreted. Assumptions are the basic foundation to support an argument. These “first principles” are frameworks for logical explanation of the event. The book presents this view through the Rationalist Tradition Approach. This theory posits that establishing the truth behind a particular past events in issue in a case is necessary for achieving justice in adjudication. Judgments on probabilities have to base on actual knowledge about common course of events. When available, this common sense should be supported by scientific and expert understanding.
A lawyer must be aware of these basic assumptions. Human nature would prove that a person’s mind thinks through assumptions and inferences. Knowing the assumptions in a past event will dictate the path and eventually the outcome of the case. The author presents this point in a realistic and modest manner. Often times, assumptions are undervalued since many would presuppose that this system of thinking is automatic function of the human mind. The book discusses rational assumptions because it is an integral part of the logic behind every case. In presenting proofs of evidence, a lawyer must not assume that something is a given fact. Assumptions must be revealed in the first instance. It is the framework of a lawyer’s argument. Basic as it is, assumptions can seal or sever a lawyer’s case. A rational assumption presents opportunities for the discoveries various hypotheses. It is also a tool to disempower an opponent’s stand. When assumptions are shattered, the argument itself falls apart. Hence, a strong argument is very much dependent on the strength of its assumptions.
The book also acknowledges that evidence is a conglomerate of different fields of knowledge. The author makes an unpretentious assessment that evidence as field of knowledge does not stand alone by itself. This interdisciplinary approach of discovering truths provides a more probabilistic explanation of past events. These parts of the chapter expose a scientific approach to factual investigation. Facts are not just mere facts. They are not presented as raw information. The scientific explanation of what occurred gives a whole new significance to facts. Consequently, assumptions are affirmed as they are explained in a logical means.
Knowing the assumptions of a case and its possible explanations is akin to knowing one’s own strength and weaknesses in a conflict. Rational assumptions are more than a fact finding mode. It is an instrument to gauge the subsequent plausible actions throughout the trial.
Tactic Number 2- Knowing the Terrain: Logic of Proof vs. Rules of Admissibility
“The natural formation of the country is the soldiers’ best ally; but the power of estimating adversary, of controlling forces of victory, and shrewdly calculating difficulties, dangers, and distance constitutes the test of a great general.”
Proof and admissibility are the two primary components of evidence. The Logic of Proof is as equally important as the Rules of Admissibility. Regrettably, many the principles of the logic of proof are underrated by the overwhelming concentration to admissibility rules. The dependency on admissibility rules creates some serious doubts on how to establish evidence as a legitimate scientific field. The author clearly describes the unstable changes in the rules of admissibility. These changes are reliant to the current political scenario of a state. Political forces as well as historical experience of a particular state shapes and build such rules. As a reader, one may infer that a universal rule on admissibility of evidence may be complicated to achieve. But this particular chapter ushers an optimistic view that there is a possibility of creating a science of evidence. The logic of proof exhibits a more universal approach to fact finding.
Judicial process main objective is to ascertain the facts of the past event in issue. The logical chain of events and their relationship can be established and derived by educated and intelligent people. The logic of proof represents the thinking process of an ordinary person. It does not exclude laymen, in fact it works under the postulation that it would be the natural logic of laymen. The author maintains that the process of proof is the most important in trial. The process of proof is a way of eliciting similar and familiar experiences amongst the jury so as to follow a parallel trail of thought. A lawyer need not to always utilize an over profound analysis. By knowing the human’s natural thinking tendencies, a lawyer can make strong factual arguments. Therefore, the primary responsibility of lawyer in the process of finding a logical proof is to have in depth understanding of the human psyche. At this point, the author conveys to his audience the fundamentals of reasoning. A human intellect is capable of assumptions, inferences, generalizations, and corroborations. The lawyer must make use of these human intellectual capacities to prove his cause.
Knowing the human intellectual terrain depicts the plot in finding the logic behind the past event. This terrain is capable of reconstructing on how and why the event happened. If this terrain will remain unexplored, the process of proof will be in done muddled and confused approach.
Tactic Number 3- Knowing thy Enemy: Opponents Probative Process
“To secure ourselves against defeat lies in our own hands,
but the opportunity of defeating the enemy is provided by
the enemy themselves.”
Knowing oneself is not enough. The ability for foresee the movement of the opponent is equally significant. Forecasting the other party’s plan of action and respond is part of the preparation. The chapter also gives emphasis to the opponent’s probative process. The opponent may assert a different fact, inference, assertions, and explanations. Although these sections were not thoroughly explained, the author suggests a valid point. Obviously, the opponent will work on different set of argument favorable to his own. Knowing the opponent’s basic assumptions will help the lawyer to rebut the opponent’s propositions. Being aware of the opponent’s options will make a lawyer responsive to every possible situation. Furthermore, knowing the enemy provides an opportunity for a lawyer to test his own arguments. The success of his argument is not dependent on his preparation but inevitably it will be compared to his opponent’s counter arguments. By assessing your opponent, one is indirectly undergoing the process of upgrading his own logical standards.
Tactic Number Four- Variations Tactics: Application of Principles in Legal Disputes
“The art of war teaches us not to rely on the likelihood
of the enemy’s coming, but on our own readiness to
receive him…”
Structures are important in presenting evidence. They provide coherency and a systematized chronology of events. Structures such as conjunction, compound, convergence, and corroboration are used to evaluate an argument. Presenting a case entails an intricate weaving of different proposition. Proposition on its own will not make any sense. However if these propositions are intertwined into a narrative, a chain of logical events will necessarily unfold. These structures make a lawyer a raconteur of events. With these techniques a lawyer can identify and articulate each step in the reconstruction of the chain of events. Accordingly, he can now make inferences to support his claim.
Creating a solid storyline or the proper integration of propositions improves a lawyer’s promptness to defend his cause. His basic framework of assumptions must be incorporated in the same plot. As a result, these structures are the threads that bind the lawyer’s arguments.
Tactic Number 5- Laying Plans: Methods of Analysis
“The General who wins the battle makes
many calculation in his temple before the
battle is faught…”
The capacity to infer is common to everyone. Yet, dispersed inferences and assumptions will not provide a strong factual finding. A precise method of analysis must be employed to better appreciate the benefit of inferences and assumptions. Chapter four of the book tackles the method of analysis. Method of analysis is a mechanism to illustrate to audience how the chain events are related. For instance, the seven-step protocol analysis serves a systematic guideline in presenting the case. The author enlightens the audience to a step by step creation of propositions that will lead to a finding. Consequently, this method proves that the field of evidence is base on logical explanations.
Every argument must be supported by logical explanation. The process of fact finding is as essential as the conclusions. The method of analysis is equivalent to general’s battle plan. Without it, the potential hypothesis will never actuate to formidable conclusions. For that reason, a lawyer must always equip himself with a tool on how to arrange propositions that will ultimately solve his case.
Ultimately, winning the battle entails satisfaction of these different factors. Presenting the evidence is indeed an art. In the end what matters is not the art of fighting, but rather it is the art of preparing for the battle that defines victory.
Posted by: carla pingul | June 23, 2009 at 11:12 AM
“This is creative lawyering,” is how Anderson and Twining describe it when a lawyer imagines and constructs possible solutions that will satisfactorily solve challenges and problems in analyzing evidence. This “creative lawyering” is what best illustrates the ideas and discussions presented by the authors in their third and fourth installment.
The book’s third chapter, entitled Principles of Proof, deals with the Rationalist Tradition, principles of proof, probative processes, as well as the logical principles and their application in legal disputes. It initially posits that the Rationalist Tradition is important in contemporary legal practice because it primarily aims for the achievement of “rectitude of decision” in procedural law, and that the assumptions identified by the said school of thought is dominant in present rules of procedure and evidence. It is also puts forward that contemporary rules of procedure and evidence center on the principles of inductive reasoning and argument.
However, Anderson and Twining are also quick to put forward the observation that the present rules of procedure and evidence have greater concern for finality and efficiency, sacrificing that of the establishment of truth, in the effort to reduce cost, delay, and complexity. The authors also observe that no one seriously claims that contemporary rules of procedure have indeed promoted speedy and inexpensive determinations in every action. They say that in fact, many now turn to alternative dispute resolution as a manifestation that “rectitude of decision” can no longer be realized in the traditional model of adjudication. They have also observed that this is due to the historical truth that procedural rules were formulated under divergent political interests, resulting in a theoretically incorrect compromise. Students are therefore encouraged by the authors to understand the interests and compromises reflected in procedural rules.
Anderson and Twining are commended for their critical take and observation on the nature of contemporary rules as having greater concern for finality and efficiency with concomitant reduced concern for establishing the truth. Even the Philippine version of procedural rules is, at face-value, a perfect example—Rule 1, Section 6 of the 1997 Rules of Civil Procedure states that the rules “shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding.” However, the authors could have taken a little less pessimistic view on the matter. After all, the responsibility of coming up with procedural rules were transferred to the courts in order to balance the power given to the legislature in enacting laws. Also, procedural rules are promulgated to protect and enforce constitutional rights in legal matters, which is a manifestation of the search for truth.
As regards the emerging shift to alternative dispute resolution, it does not necessarily imply that traditional adjudication can no longer keep up with its time-old aspiration of justice under the law. In fact, alternative dispute resolution aims for the same objective; the only significant difference is the higher level of party autonomy or the freedom of the party to make their own arrangements to resolve their disputes that it offers. With this, it can be said that traditional adjudication and alternative dispute resolution go hand-in-hand in answering against the “irrational” modes of settling disputes such as battle, compurgation, or ordeal.
In the next sections about principles of proof and procedural rules, J. H. Wigmore is repeatedly referred upon, including the later parts where inference and proof are differentiated (inferential reasoning and argument is the process; proof or non-proof is the result); where each of the three logical principles (abductive, inductive and deductive reasoning) are explained and differentiated; where the concept, importance and nature of generalizations are presented; and where the five central concepts of analysis (conjunction, compound or complex propositions, convergence, corroboration, and catenate inferences) are discussed, differentiated, and integrated with each other.
The authors go on to say that lawyers need a system that facilitates analysis of evidence, especially since lawyering is critical to society. The book’s fourth chapter, entitled Methods of Analysis, suggests a comprehensive answer to this. It presents a generalized set of procedures that may prove useful when applied in any method of analysis. Two methods of analysis—the chart method and the outline method—are presented, as well as two analytic devices—chronologies and narratives. Anderson and Twining note that these methods of analysis complement rather than compete with each other, each having special advantages for specific purposes at various stages of a case.
The authors have developed a seven-step protocol for analyzing evidence. The seven steps are: 1) clarification of standpoint; 2) formulation of the potential ultimate probandum/probanda; 3) formulation of the potential penultimate probanda; 4) formulation of the theories of the case; 5) recording the available data; 6) preparing the product/s; and 7) refining and completing the analysis. This is lauded because it shows the authors’ regard to the quality of analysis and the resulting product. It may also be regarded as an effort in encouraging every lawyer in earnestly analyzing evidence by suggesting an effective system means of facilitating such analysis. ---o0o---
Posted by: Phebean Belle A. Ramos | June 23, 2009 at 11:12 AM
Analysis of Evidence (Chapters III and IV): A Critique
The process of thinking has always been fairly ignored and invisible. As an automatic phenomenon inherent in every person, it is very easy to take it for granted and not delve into the how and the why of it. But as law students, it is imperative to look into the “normal” and the “mechanical” things in order to have a more holistic attitude towards the law and the legal profession. By reading works that are descriptive, such as the Analysis of Evidence, we are able to disrupt the "common sense" and to look at things previously overlooked or to look at them using different perspectives. More importantly, this leads us to ask whether such “common sense” and “normal” are purely objective. And if not, we then must ask how the subjectivity of thinking affects law and justice.
What I found rather compelling in the chapters assigned was the recognition of the authors of how the legal system operates upon the Rationalist Theory – seeing truth as “out there” rather than truth as people make it to be. This theory presupposes the objectivity of truth and justice and how it is the ultimate end goal of the law. The book then continues into prescribing methods of analysis in order to achieve this goal by providing a system under which data could be organized, analyzed and manipulated for the lawyer’s use in whatever context he needs it.
This prescriptive theories by Anderson and Twinning, I believe, defeats the purpose of analyzing the process of thinking and analysis – for what must be done is not to tell us what to think, but to question how and why we think the way we do. It must not be overlooked how the legal world is value-laden. No matter what safeguards and rules we put into the letter, it is never ironclad. Even the “truth” and the “fact” that Anderson and Twinning so desperately seek to establish, by providing for steps towards their realization, are never unbiased and we must always look into these biases. However, the chapters do not make mention of such biases in how we think.
Even those “facts” that we deem as “truths” for the establishment of “justice” may be perhaps just socially constructed. Knowledge is a social construction. And this must be recognized. For example the decision-making of what is relevant evidence and what is not cannot be purely objective, even though the guidelines are provided for by law. And even these guidelines have their own theories and biases underneath them. Rule 403 of the Federal Rules of Evidence makes mention of the “probative value” of evidence. How this value is determined will remain subjective, even if we follow the methods of analysis in making propositions and conclusions and apply the law to the situation. Another example is how autopic proference or evidential data perceived by the five senses can be accepted and interpreted in many ways. Every person has a different faculty and a different social context, and how these evidential data would be appreciated would vary.
Although the chapters are incomplete on these points, they are still very useful in directing law students to see the limitations of law and how arguments must fit into these limitations in court. After all, in order to play the game, you must be able to play by the rules. And with the recognition that our legal world is based on rationalism, it becomes evident that it is necessary to think and argue within its limits in order to be legal. An example of such limits is how evidential data only has two forms in court, as categorized by Anderson and Twinning – testimonial assertions and physical objects. Anything beyond this cannot be introduced in court.
What must also be appreciated is how the Anderson and Twinning put emphasis on proof rather than admissibility and that “there is and there must be, a probative science – the principle of proof – independent of the artificial rules of procedure; hence, it can and should be studied.” This principle of proof is more important than following procedure, for it is the former that provides the substance for the arguments and conclusions reached by the courts.
It is also important to note how logical reasoning comes into play – by applying it into data to constitute evidence and making propositions out of these data that can be organized and marshaled as arguments. This is the challenge of making a sound legal argument – establishing evidence in order to manipulate propositions towards the desired conclusion. The seven-step protocol provided in Chapter 4 gives a guideline on how this could be done. The protocol is not only framed as to provide ways of producing sound arguments, but to train us to have a comprehensive method of analysis. An Analysis of Evidence acknowledges that we need to train ourselves in a certain way in order to aid the court in its search for truth. However, it must be asked if such steps are applicable to each and every situation. If they are, do they always lead to the most beneficial decision? If they are not, what then happens to those that fall outside the loop? These questions leads to my belief that Step 7 is the most important because it recognizes that the process is a continuous one and analysis always involves refinement and revision. Knowledge and law are not static and so questions must always be asked in order to improve how we think and how we apply the law.
Posted by: Giselle Angelica C. Munoz | June 23, 2009 at 11:12 AM
Critique II: Analysis of Evidence
In Chapter Three, the authors mentioned that the Rationalist Tradition remain dominant in today’s rules of procedure and evidence. The authors stressed that the central tenet of the Rationalist Tradition is the achievement of “rectitude decision”. The rules are primarily designed for the purpose of rationally establishing truth. However, the authors noted that recent developments have in some level shifted the focus in determining cases in the most efficient manner with finality. According to them, the responsibility of case management is now at the hands of the courts. No balance is prescribed and the authors suggest that such ambiguities are politically motivated.
The authors discussed the relation between proof and relation according to Wigmore. According to Wigmore, proof is the process of persuasion. It is a mind to mind activity. Admissibility, on the other hand, is merely an aid. It is the set of guidelines or rules which govern the process of proving one’s case. The authors try to stress that the process of proof is the most important in a trial. The trial culminates with a counsel persuading the judge/jury to believe the facts alleged in the issue.
In my previous critique, I noted how intuitive the analysis of evidence is. Similarly, the principles of proof seem to be the same, at least for students of law. After coming with a hypothesis, one must now start the process of proving such. The hypothesis must fit the requisites of the major premise. Basically, one must be able to show how a set of facts match the requisites provided for by a particular rule of law. Borrowing the example used in the book, before we can say that X murder Y, the facts surrounding the case must satisfy the requirements of the rule of law on murder. Proving those facts will be necessary. Proving facts is one thing. Proving them within the bounds of admissibility is another.
The Rationalists have taken the view that current rules on procedures might be focusing too much on efficiency and reducing costs. I take the point of view that rules can indeed sometimes hinder the truth from being discovered or at least being exhibited however, this does not mean that end goal of proving truth is neglected. We have rules that set guidelines and impose corresponding penalties. Our current rules on civil procedure for instance provide for prescription periods. It also provides penalties as stiff as losing the right to raise issues on certain stages of the proceeding. However, one must also see the value of such rules. Such rules prevent prolonged and exhausting proceedings. Our Constitution provides for the right to speedy trial. I believe such rules were formulated with that in mind.
These political compromises indeed provide a lot of ambiguities however it must be kept in mind that our rules on procedures in evidence is a continually evolving creature. Striking a balance between the discovery of truth and efficiency will always be a matter of debate in relation to the current conditions of the time. I think what is important, and I believe that this goes without saying, that whichever side the balance tilts the end result must be the achievement of a just adjudication. The rules on procedure and evidence will always be there to prevent pandemonium in the courts. It is up to the lawyers to make their case while at the same time, abiding by the rules. In my humble opinion, the rules should be not be seen as a hindrance but rather as a tool to further the cause of establishing the truth.
The chapter also discussed the process of constructing an argument through the so-called “principles of proof”. It is a process that begins with a preliminary hypothesis or a proposition to be proven. I found this part interesting particularly the subdivision of the ulitimate probandum. Such process is very similar to looking for elements of a crime in a particular case which goes back to our earlier days in law school learning Criminal 2. I also found interesting the entire process of presenting evidential data, testimonial or physical, and proving inferences. Coupled with the probative processes and logical principles, it provides for a very systematic and very rational process.
The process seems not only rational but is also very considerate of the individual rights of both opposing parties. It is rational because it provides for a process of investigation and collecting data. It takes into account that several material facts may be needed in order to prove another material fact. The authors are practically telling the reader that in collecting data, you have to broaden your range. You can always discard some as you formulate your new hypothesis. It is considerate when it comes to the probative process. Wigmore provided catergories for the evidentiary propositions. Such categories contemplate competing view and assertions between parties. More importantly, the probative processes allow for competing parties to cross-examine each other’s propositions/evidence. This is in line with the Rationalist view of establishing truth in a rational manner. In a way, it gives the both parties a chance to examine the credibility of each other’s propositions by allowing them to give their own propositions.
The logical principles provided in the book deal with the rational justification of decisions resolving issues. It provides a guideline for the lawyer in formulating his argumentation. I agree with the authors that abducting reasoning is first. Data gathering will help us discover, support, and formulate hypotheses. The use of abductive reasoning will help in the formulation of hypotheses and data gathering. Inductive reasoning comes into play when the lawyer has gathered enough data and is now ready to formulate his argument/s. This process seems to be logical enough that it can be considered intuitive. Other types of reasoning such as deductive, inductive and generalizations come into play eventually, each contributing to the process. In sum, the logical principles provide a process of strengthening one’s argument that the ultimate probandum, the minor premise, has all the elements provided by the major premise, rule of law.
Finally, I find the entire process to be exhaustive yet necessary. The principles provided seem to consider a lot without being overly exhaustive. It is interesting to get reacquainted with the fact that in formulating one’s argument of a case, it takes way more than just a rational mind. There are other factors to consider such as rules on procedure and evidence, and the other party’s inferences.
Posted by: Alex Francis Ver R. Lopez | June 23, 2009 at 11:00 AM
RATIONAL MINDS, IRRATIONAL SYSTEM
Upon reading the first lines of the third chapter, one would quickly notice the repetition of the technique used by the authors in the first chapter of juxtaposing the rules of evidence, the laws of evidence and situational backgrounds, where anyone might be expected to utilize the same faculty of logic and proof in order to arrive at truth or a rational conclusion in such a situation. Such manner of laying the use of evidence and inference amidst different scenarios further reinforces the perception of the authors on the primacy of such science in everyday phenomena, and rightly so, for many seem to take for granted such ability to make use of such faculties of thinking and continuously fear of having to use such when the need arises.
Nevertheless, although such evidence and inference help us get to the truth, the authors clarify that such pursuit of truth is not the ultimate means to securing justice under the law. Students of the law must never forget that the truth does not automatically equate to justice. In practice, lawyers establish “truth” according to what set of facts may yield the best outcome for the client. For instance, the lawyer of a rape victim may, by using his skill in building his client’s case through the presentation of all available relevant and competent evidence in order to support his client’s claim for justice by having the accused incarcerated, such outcome need not be the best for the victim, who might have suffered even more psychological trauma and permanent damage in submitting her claims and constantly retelling her painful experience as accurately as possible before the court and/or the media. It may also be that such “truth” may be accurate and precise, but because of the inexperience of the lawyer in building and presenting his case, he lost the case, thereby, causing more economic and psychological damage to the client. Eitherway, “truth” only further enslaves the victim, instead of delivering justice.
A worse end happens again and again in the Philippine context, where despite the aspirations of its judicial system to procure a just, speedy and inexpensive determination of every action as is fundamental to the Rationalist Tradition, such goal is rarely, if ever, attained. With the case load of each court, the inefficiency of many court personnel, who are usually the only persons, attracted by the corrupt and bureaucratic judicial system, unable to hire and pay intelligent and efficient court staff, the incompetence of many judges and justices, who only got to their position, simply because they have rendered some service or are related in one way or another to a member of the administration or the politically influential. In such a case, the pursuit of truth can also lead not to justice, but to greater expense and delay, as well as, procedural failures in attaining the objective in filing the case in the first place. Furthermore, as manifested in Dr. Abueva’s treatises on organizational set-ups in the Philippines, which are applicable to almost every type of organization, from corporations and cooperatives, to government bureaus, many Filipinos, especially the older ones and those who have already been working in a particular office for a long period of time are reluctant to change, making it hard for improvements to be built into the existing system, such as the elimination of slack time and the streamlining of tasks to allow for more efficient work operations.
The statement the authors have made about how the rules have been ultimately adopted reflect political compromises, not articulations of principles viewed as theoretically correct is equally true and even more apparent in the Philippine judiciary, where despite the separation of powers supposedly espoused by the Constitution, the fact that judges and justices, especially those of the Supreme Court are appointed by the head of the Executive – the President – makes such separation of powers highly contestable. Certain cases on the constitutionality of executive acts, especially those on the constitutionality of the use of the President of her emergency powers in certain occasions, manifest the hesitance of the Supreme Court justices to adjudicate on the matter outright. It is only through the leadership of a more radical Chief Justice that more expedient and innovative procedural remedies, the writ of amparo and the writ of habeas data have been implemented. Hence, it becomes imperative for students of law to examine, not only past Supreme Court cases and their ponentia, but also the inherent personality, specifically the passive or radical behavior, on the part of the Justice in order to see future trends in our remedial laws.
Finally, worth observing is the use of acronyms, signs and symbols in order to form a logical and coherent way of rationalizing the process of building one’s argument or adjudicating a case. Akin to mathematics, the science utilized to prove the laws of nature, propositions can be identified through the use of acronyms, thereby simplifying propositions based on their nature and breaking down complex propositions into its most basic components. The different methods of combining such propositions, including convergence and corroboration, through the use of symbols, may be seen as operating like mathematical models in order to help us see a result, which is more than the mere sum or product of the component-propositions, and in the process, such usage exemplifies the power of calculated choice of propositions and method of combining them, without overlooking the possibility that the combination may only serve to weaken the two or more otherwise strong propositions, and the fact that the authors have even explained in detail the effect of the different combinations help to clarify the way the combinations operate in the legal context.
Clearly, the use of acronyms, signs and symbols signifies the fact that we may deem propositions as numbers and the combinations as mathematical operations in order to build a stronger or weaker case, that should work in a judicial system, where the pursuit of truth does not necessarily deliver justice, where the just, speedy and inexpensive determination of every action may only be a mere aspiration, that never come to fruition, and where the promise of a more rational and liberating set of procedural remedies lies in the objective, radical and visionary characteristics of the next Chief Justice.
Posted by: Francesse Joy J. Cordon | June 23, 2009 at 10:59 AM
A lawyer can never have complete and perfect information. One must learn how to search right, and search smart. The third chapter highlights the principles of proof as illustrated by Wigmore and it reasons out why mastery of these principles is as important as mastery of the rules regulating admissibility of evidence. Principles of proof are said to be natural, whereas, rules of admissibility are artificial.
Even if there is a basis for distinction, I believe that proof and admissibility should not be strongly delineated. After all, rules of admissibility are constantly changing to better conform to the logical processes that everyone can subscribe to.
The fourth chapter lays down the framework of protocols that may be applied in analyzing factual data, which the authors believe may be applied in any method of analysis. This presentation of generalized set of procedures is premised on the need for a system to aid analysis, not merely through data organization, but more importantly, one that would facilitate the lawyer to come up with complete analysis.
This set of guidelines for analysis presumes that (1) the lawyer is equipped with logical superiority to formulate ultimate propositions and theories of the case, (2) that relevant evidence would be found (notwithstanding the fact that difficulties may have been accounted for), and hopefully these would be subsequently admissible before judicial courts, and finally, (3) that an answer to the problem would eventually be reached.
These may be difficult presumptions, most significantly the last point, especially with respect to cases which seem to have reached their dead-end. The unsolved cases of mysterious disappearances and seemingly clean and untraceable murder scenes come to mind. Applying the rules of evidence is a science, as highlighted in Chapter 1 of the book, and a true scientist does not stop. Not until his points are proven to be conclusively wrong, or right.
On the other end of the spectrum, another danger is when the investigator/lawyer stops searching and seeks to match his material with the hypothesis just to reach the conclusion: proving the ultimate probandum. It contemplates two scenarios – available data may either be too voluminous or it is lacking in substance, posing difficulties to the end goal. For instance, even if the investigator has diligently employed the proper procedure, it IS sometimes tempting to immediately conclude that a particular hypothesis is true just because evidence comes up that would match such hypothesis. This does happen, in the Philippines, especially, where some of our policemen are known to halt investigations just because a suspect in a robbery or homicide case is arrested or identified.
It is also emphasized that a systematic set of procedures regularly employed would result to the quality of analysis being enhanced. A potential problem I see with this protocol is that in desiring to come up with good-quality and complete analysis, the lawyer might suffer from analysis paralysis in the process. An important characteristic of the lawyer/investigator is that he should successfully sift through the enormous data and come up with the most plausible hypothesis in the shortest possible time. This is given the task of gathering and recording data as close to the time of occurrence of the incident as could be done, to ensure, or hope to ensure, that the evidence remains “fresh” and untampered with when recorded. Timing is always of the essence, no matter which step one is employing.
Out of the seven steps outlined as protocol, I would like to place emphasis on the formulation of the theories of the case. They say that “until the analysis is complete, the theory is provisional and remains open to being revised.” The importance of coming up with rationale and legitimate theories of the case cannot be more stressed.
The authors also state that “a penultimate probandum may be used as a “magnet” to attract the relevant evidential propositions.” But they also say that there are instances when “it may be easier to start with an evidential proposition and reason upward.” This shows that even in this systematic protocol, much room is still left for a case to case application. There is no consistent general rule that can be laid down.
Tools would always be valuable means, but in the end, it would be the lawyer’s methods of employing these tools that would spell the difference between a lawyer who can use the system to work in his favor and one who gets trapped applying the process.
Posted by: Rachelle Ann T. Mayuga | June 23, 2009 at 10:54 AM