Fallacies on fallacies: A reply

International Commentary on Evidence

Volumn 3, Issue 1, 2006, Pages

  Burns, Robert P ^a  

^a NORTHWESTERN UNIVERSITY SCHOOL OF LAW   (United States)

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[No Author keywords available]

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EID: 33646578114     PISSN: 15544567     EISSN: 15544567     Source Type: Journal    
DOI: 10.1002/gps.1481     Document Type: Note

References (30)

1. Doron Menashe and Mutal E. Shamash, The Narrative Fallacy, 3 Int'l Comment. on Evidence no. 3 (2005).
2. Robert P. Burns, Notes on the Future of Evidence Law, 74 Temple L. Rev. 69 (2001).
3. Robert P. Burns, A Theory of the Trial 221-27 (1999).
4. David Carr, Time, Narrative and History 61 (1986)
5. Id. at 50.
6. Barbara Hardy, Towards a Poetics of Fiction: An Approach through Narrative, 2 Novel 5 (1968),
7. quoted in Alasdair Macintyre, After Virtue 211 (1979).
8. Macintyre, supra note 6, at 212-13.
9. The ancient Greek, eurisko, to find.
10. See generally, Bernard J.F. Lonergan, Insight: A Study in Human Understanding 173-244 (1957).
11. Burns, supra note 3, at 155-219.
12. Jeffrey Abramson, We the Jury 162 (1994). Our authors use the narratives told by appellate courts to suggest the danger of narrative. Those stories are told by judges who generally do not have to worry about convincing a decision-maker who will hear the opposing story. Even in the case where the possibility of a dissenting opinion imposes some discipline, procedures in the appellate courts do not provide for a real critical dialogue, a back-and-forth, between the opposing sides. That is quite unlike the trial court where that kind of critical dialogue pervades the trial.
13. Judges themselves have confessed to that temptation. "Judges do become case-hardened. Judges do tend, after man years, to take a somewhat jaundiced view of defendants. Many trial judges tend to become a bit prosecution minded. That's the basic justification for a jury." Alan W. Sheflin, Jury Nullification: The Right to Say No, 45 S. Cal. L. Rev. 168 (1972) (quoting Justice Fortas).
14. Professor Langbein, who is generally unsympathetic to strongly adversarial procedures, attributes part of the growing passivity of English judges in the early nineteenth century to their own self-perceived incompetence at understanding the significance of proffered evidence. John H. Langbein, The Origins of the Adversary Criminal Trial 312 (2003).
15. Burns, supra note 3, at 178-81.
16. As I mentioned at the beginning, restrictions on discovery in criminal matters probably do more harm here than do evidentiary exclusionary rules, particularly to innocent defendants.
17. Burns, supra note 3, at 125-30.
18. The locus classicus is the discussion in Michelson v. United States, 335 U.S. 469, 485-86 (1948). There the court acknowledged that "much of this law is archaic, paradoxial, and full of compromises and compensations" but stated weakly that "an irrational advantage on one side is offset by a poorly reasoned counterprivilege to the other." Unfortunately, the distribution of advantages and counterprivileges occurs largely across the totality of cases, and not necessarily in each case. On the Court's hopeful conclusion that it has "proved a workable even if clumsy system when moderated by the discreational controls in the hands of a wise and strong trial judge," see the text above.
19. One anecdote: I was preparing to try a murder case in a criminal courtroom of a judge with whom I had no experience and spent some time listening to another trial being conducted there. I could not identify the bases or patterns for his rulings on the objections that accompanied almost every questions. After the trial, I asked the public defender who assigned to that courtroom (and who had tried many cases there) to explain a number of the objections and rulings. He told me that he had no idea what the bases were and never knew whether objections would be sustained or overruled, but he objected to every question and expected the prosecutor to do the same. The ensuring pattern of prosecution in our case created what I can only call a chaotic and argumentative, even angry, distraction from the actual evidence on a very subtle question of mental state. That is one dark side of our current regime.
20. Menanshe & Shamash, supra note 1, at 34.
21. The degree of relative significance of different kinds of evidence varies. Though all evidence gains its probative value (its likely truth and significance) from its place in the entire case, some evidence has greater "free standing" probative value. Imagine Mother Theresa testifying against the interests of the Catholic Church on events that occured over a long period of time about which she had strong reasons to be attentive and to check her perceptions continually. To borrow from Henry James, trial evidence is a pudding, but it is a lumpy pudding.
22. United States v. Chipani, 289 F. Supp. 43 (E.D N.Y),
23. aff'd 414 F.2d 1296 (2nd Cir. 1969).
24. People v. Lozano, 584 So.2d 19 (Fla. Dist. Ct. App. 1991).
25. Burns, supra note 3, at 190.
26. See also Robert P. Burns, The Distinctiveness of Trial Narrative, in The Trial on Trial: Truth and Due Process (Antony Duff, et al. eds.) 157-78 (2004).
27. Burns, supra note 3, at 220-44.
28. Burns, supra note 2, at 88.
29. On the distinction between bureaucratic rationality and the moral principles implicated in adjudication, see Jerry L. Mashaw, Bureaucratic Justice 21-46 (1983).
30. Richard J. Bernstein, The New Constellation: The Ethical-Political Horizons of Modernity/Postmodernity 201 (1991).