Pass these sirens by: Further thoughts on narrative and admissibility rules

International Commentary on Evidence

Volumn 5, Issue 1, 2007, Pages

  Menashe, Doron ^a   Shamash, Hamutal Esther ^b  

^a UNIVERSITY OF HAIFA   (Israel)

^b NONE

Author keywords

Admissibility; Atomism; Evidence; Hegemonic narrative; Holism; Narrative; Prejudice; Relative plausibility

Indexed keywords

EID: 34548136228     PISSN: 15544567     EISSN: 15544567     Source Type: Journal    
DOI: 10.2202/1554-4567.1057     Document Type: Article

References (43)

1. G. B. Shaw, Pygmalion, Penguin Books, England (1964), p. 140.
2. "The Narrative Fallacy", International Commentary on Evidence, vol. 3.
3. Ronald J. Allen, "The Narrative Fallacy, The Relative Plausibility Theory, and A Theory of the Trial", International Commentary on Evidence, vol. 3;
4. Robert P. Burns "Fallacies on Fallacies: A. Reply", International Commentary on Evidence, vol. 3;
5. Deirdre M. Dwyer "What Does It Mean To Be Free? The Concept of 'Free Proof' in the Western Legal Tradition" International Commentary on Evidence, vol. 3
6. Allen, The Narrative Fallacy, n 3 above.
7. Allen, The Narrative Fallacy, n 3 above, text to n 7.
8. R. P. Burns, "Notes on the Future of Evidence Law", 74 Temp. L. Rev. (2001) 69, 80, 87.
9. Compare with Roger C. Schank, Robert P. Abelson "Knowledge and Memory: the Real Story' in: Robert S. Wyer Jr (ed.) Knowledge and Memory: The Real Story, (Hillsdale, N.J.), p.12, 36.
10. N. Pennington, R. Hastie, "A Cognitive Theory of Juror Decision Making: The Story Model" 13 Cardozo L. Rev. (1991) 519, 555.
11. The Story Models suggested by Bennett and Feldman, and by Pennington and Hastie, posit that fact finders choose stories on the basis of a range of criteria: Pennington and Hastie refer to coverage, uniqueness, coherence, and Bennett and Feldman refer to believable contexts, paradigmatic social structures, and causational connections. W. Bennettt, and M. S. Feldman, Reconstructing Reality in the Courtroom, Tavistock Publications, London, 1981; Pennington & Hastie, n 8 above.
12. Alex Stein has discusses the allocation of ambiguity, which is the way in which evidence law, which governs the process of legal proof, allocates the ambiguity created by informational gaps, i.e., the way in which evidence law allocates the risk of error in fact finding. Within this context, Stein has noted the risk that risk free proof poses to litigants, and to criminal defendants in particular, by allowing them to bear an increased risk of error. His argument, in a nutshell, is that the admissibility rules that freedom of proof seeks to render obsolete are not epistemological strategies, whose purpose is to increase factual accuracy, but political-normative decisions regarding the desirable allocation of ambiguity (i.e. uncertainty). Since fact finders make determinations in fact finding processes, including decisions about the admission or evaluation of evidence, in conditions of uncertainty, any decision made creates a risk of error, which must be allocated between the parties. Stein maintains that the decision of how to allocate this risk of error is a moral and political decision, reflecting political normative preferences. In a democratic regime, these value preferences ought to be set not by individual fact finders but by the elected legislator. A. Stein, 'Against Free Proof, 31 Is. L. Rev. (1997) 573;
13. A. Stein 'The Refoundation of Evidence Law', 9 Canadian Jour. of Law & Jurisprudence (1996) 279;
14. also compare with A. Stein, Foundations of Evidence Law, Oxfbrd, Oxford University Press, 2005).
15. On the difficulty in telling an unfamiliar story, see. Schank & Abelson, "Knowledge and Memory" n 6 above, p. 12.
16. Regarding the accessibility of various narratives as a function of social or personal-subjective factors, not transparent even to the fact finders themselves, see R. J. Allen & T. Seniuk "Two Puzzles of Juridical Proof" 76 Canadian Bar Rev.(1997) 65, 76.
17. The Narrative Fallacy, n 1 above, (see our analysis of the Deri case in Israel)
18. Compare: R. Cover "Violence and the Word", 95 Yale L. Rev. (1986) 1601.
19. Burns, Fallacies on Fallacies, n 3 above, text to n 16, and compare with Schank and Abelson's assertion that people believe the stories they use to describe their experiences, even when they are inaccurate; Schank & Abelson, "Knowledge and Memory" n 6 above, p. 38.
20. Compare with Roger Schank, who argues that stories and scripts are the only way to process memory and information. See Schank & Abelson, "Knowledge and Memory" n 6 above;
21. Roger C. Schank, "Language and Memory", Cognitive Science 4, 243.
22. Schank & Abelson, "Knowledge and Memory", n 6 above, p. 23.
23. Schank & Abelson, "Knowledge and Memory", n 6 above, p. 44.
24. Schank & Abelson, Knowledge and Memory, n 6 above, p. 16.
25. Allen, The Narrative Fallacy, n 3 above, p. 5.
26. Allen, The Narrative Fallacy, n 3 above, text to n 7.
27. See n.9 above.
28. Fallacies on Fallacies, n 3 above, p. 3.
29. Allen, too, writes that controlling the amount of evidence admitted will not lessen the prejudice, but on the contrary, will widen the scope for prejudice. See Allen, The Narrative Fallacy, n 3 above, text to n 7.
30. Compare our concept of "triggering" with Schank and Abelson's concept of "priming", see Schank & Abelson, "Knowledge and Memory", n 6 above, p. 23, as well as with their explanation of how single words can represent whole stories,
31. ibid, p. 53.
32. Burns, Future of Evidence Law, n 6 above, 82. If jury instructions are of such limited use, it would seem to us that it would be better to simply exclude evidence that lacks probative value, rather than admitting it, subject to the hope that one can persuade juries not to rely on it. This is especially true when one considers Grice's third maxim, which states that fact finders assume that any information presented is presented because it has some bearing on the solution to the problem under examination.
33. See P. Grice, Studies in the Way of Words, Harvard University Press, Cambridge, MA, (1989).
34. Allen, The Narrative Fallacy, n 3 above, text to n 7: As to whether more robust exclusionary rules retard or advance individualization at trial, whether as a structural or a cognitive matter, it is an empirical not an analytical question. My a priori hypothesis is that, the less information one has, the more dominant social stereotypes, biases, and overgeneralizations are likely to be. After all, if one does not have new data, one must rely on old, and the old will likely trigger the dominant stereotypes that Menashe and Shamash rightly fear. One of the advantages of a system closer to one of free proof is that it permits the parties to respond to what they fear will be the generalizations already possessed by fact finders, and to try to disabuse the fact finders of their preconceptions.
35. Burns, Future of Evidence Law, n 6 above, 72.
36. Compare with P. Grice, Studies in the Way of Words, Harvard University Press, Cambridge, MA, (1989).
37. Burns, Future of Evidence Law, n 6 above; p. 73.
38. Fallacies on Fallacies, n 3 above, p. 4.
39. Dwyer, What Does It Mean To Be Free? n 3 above, text to n 43.
40. Compare with Alex Stein, Refoundation of Evidence Law, n 8 above.
41. Dwyer, What Does It Mean To Be Free?, n 3 above, text to n 40.
42. R.J. Allen, "The Nature of Juridical Proof" 13 Cardozo L. Rev (1991) 373;
43. R.J. Allen "Factual Ambiguity and the Theory of Evidence", 88 Nw.U.L.Rev.(1993-1994) 604.