Abstract
This paper explores the debate between atomistic and holistic approaches to legal evidential reasoning, with two aims. The first is conceptual and analytical: it draws some distinctions to clarify in what senses a conception of legal evidential reasoning can be holistic or atomistic. The second purpose is normative: it defends a normative conception for justificatory reasoning about questions of fact in judicial fact finding that notwithstanding its predominantly atomistic character includes some holistic elements.
Marco Polo describes a bridge, stone by stone.
- But which is the stone that supports the bridge? Kublai Khan asks.
- The bridge is not supported by one stone or another—Marco answers—but by the line of the arch that they form.
Kublai Khan remains silent, reflecting. Then he adds:
- Why do you speak to me of the stones? It is only the arch that matters to me.
Polo answers:
- Without stones there is no arch
Italo Calvino, Invisible Cities
A previous Spanish version of this article was published in Isonomia – Revista de Teoría y Filosofía del Derecho, N° 40, 2014, pp. 17–59. I thank the publisher for permission to publish this revised version.
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Notes
- 1.
- 2.
The most significant studies in this line were those of Bennett and Feldman (1981), and by Pennington and Hastie (1986, 1991 and 1993). At around the same time, Abu-Hareira (1986) was also a proponent of a holistic approach to proof, although drawing on a different source, namely, James Glassford’s 1820 study on judicial proof (An essay on the principles of evidence and their application to subjects of judicial inquiry). Glassford was a member of the Scottish School of Common Sense.
- 3.
- 4.
In fact, Wigmore himself presented his analytical model as “the only thorough and scientific method”, presenting it as a preferable and superior alternative to what he called the “narrative method”: Wigmore (1913), pp. 858 and 821. The latter was characterized by the integration of evidentiary facts into a framework relating the sequence of events in a case.
- 5.
- 6.
- 7.
- 8.
The theatrical metaphor is used by Schum (1986, pp. 830 ff.), who distinguishes between three acts during which “inferential drama” is performed in the field of law: discovery, evidence, and deliberation and decision (these last two treated as one act). This tripartite distinction does not consider the possibility that potentially relevant proofs uncovered at the investigative stage may not make it into the trial proper, falling victim of filters provided by the rules of exclusion, whose application may be the subject of a prior judicial decision.
- 9.
For a defense of the justificatory conception of the statement of reasons, and a critique of the “psychological conception”—which understands statement of reasons as a mere recounting of the mental processes of decision-making—see Gascón (1999), pp. 211 ff.
- 10.
A normative conception of evidentiary justification can provide criteria for an a posteriori check on decisions and/or their statement of reasons, depending on the structure of appeals in a particular legal system.
- 11.
It is important to note that neither Wigmore’s chart method, nor the revised version of it advocated by Anderson, Twining and Schum, were conceived of as a way to create a model of justification of evidentiary decision. They were, rather, designed as useful analytical aids to lawyers in the structuring their argument. However, they can still be relevant to a normative conception of evidentiary justification insofar as their advantages include—as Anderson et al. (2005, pp. 141–142) point out that they can be used to identify epistemic weaknesses in the evidence and in the evidentiary inferences that can be made from the evidence. I am grateful to Jorge Cerdio for alerting me to the need for this clarification.
- 12.
- 13.
For discussion of the implications of this problem see Redmayne (2003).
- 14.
- 15.
See Ferrer (2007), pp. 98–108.
- 16.
- 17.
- 18.
- 19.
See, for all the issues mentioned, Simon (2004).
- 20.
Twining (2000), p. 85, draws attention to the existence of cases of this kind.
- 21.
Cf. Twining (1990), pp. 220 ff.; Anderson and Twining (1991), pp. 165 ff.; Taruffo (1992), pp. 312 ff.; Wagenaar et al. (1993) and Menashe and Shamash (2005). For a suggestive analysis of the impact of the construction of profiles or stereotypes of victims or the accused in criminal trials, see Coloma (2010).
- 22.
- 23.
The identification of, and nomenclature applied to, criteria that determine the choice between conflicting explanations differ widely across various texts by the same authors: cf. Allen (2008), p. 326; Allen and Stein (2013). Nor do the texts contain precise definitions of the criteria applied. The authors justify this lack of precision with the claim that their interest is practical, rather than conceptual or philosophical: Allen (2008), p. 321; Pardo and Allen (2008), p. 230.
- 24.
Although the vagueness of this expression is acknowledged by Pardo and Allen (2008), p. 240, this is attributed to a lack of precision in the standard per se rather than any flaw in the theory.
- 25.
- 26.
It is possible to establish a relationship between this ambiguity and the conception of “naturalized epistemology” that Leiter and Allen (2001) accept insofar as it may “fruitful way of understanding evidence law” (2001, p. 1497)”. In this piece, the authors claim to be following Alvin Goldman in adopting an approach which “retaining the distinctively normative element of epistemology –the regulation of our cognitive activities so that they result in knowledge” (2001, p. 1497, italicised in the original), but which also holds that information about how cognitive processes really operate (individual epistemology) and, above all, about how social practices and processes of formation of beliefs operate (social epistemology) are necessary if normative orientations are to be offered. However, when the authors apply this conception to the area of proof, they adopt a normative perspective only in order to evaluate whether the norms of evidence law are instrumentally adequate for the effective acquisition of knowledge. As far as reasoning processes are concerned, they restrict themselves to defending the theory of relative plausibility because “it appears to explain what factfinders actually do”, “it unmistakably explains what advocates actually do at trial” and because of its “better explaining the basic structure of trials than its competitors (2001, p. 1528).
- 27.
- 28.
Pardo and Allen (2008), p. 245.
- 29.
The coherent integration of a theory of the case corresponds to the condition of “internal consistency” that was identified in the story model as one of the criteria of narrative coherence, and in Allen and Pardo’s theory as one of the criteria of explanatory plausibility (see also, in a similar vein, Bex et al. (2010), pp. 143 and 145. We might agree that, just as the integration of statements about the facts into an overall narrative of the case is a precondition for their individual justification, the construction and comparison of global hypothetical narratives plays a significant role in the investigative stage: cf. Schum (2001b), pp. 178 ff.
- 30.
Pennington and Hastie treat plausibility as the congruence of a story with the set of generally accepted pieces of knowledge about the world, or common sense. Allen and Pardo, by contrast, use the term ‘coherence’ for this concept, and reserve the concept of plausibility to refer to the quality that results from the application of the complete set of criteria relevant to the acceptance of an explanation. For present purposes I have preferred that of Pennington and Hastie, given that the notion of coherence also has a broader meaning and usage in discussions of general and legal epistemology.
- 31.
- 32.
Also Wagenaar et al. (1993), in a chapter aptly entitled “Proof by narrative only”, pp. 44 ff., Bex et al. (2010), pp. 136 and 146 ff. and Bex and Walton (2012), p. 116, make reference to the use of arguments related to the plausibility of a narrative based not on specific proof, but directly on general appreciations of common sense.
- 33.
See, in the same vein, Twining (2000), pp. 76–77 and Bex et al. (2010), pp. 146–147. Although it is not possible to develop the point fully here, it is interesting to note that arguments based on narrative generalisations operate in a similar way to naked statistical evidence. See, in this regard, Schauer (2003), pp. 79 ff.
- 34.
Cf. Twining (1985), p. 183.
- 35.
As the name suggests, this theory offers an original synthesis of foundationalist and coherentist elements, in what its author calls “a kind of articulated holism”: Haack (2013), p. 79.
- 36.
Cf. Laudan (2007) on this point. It is not possible to examine in depth here how traditional standards such as preponderance of the evidence, or proof beyond reasonable doubt, are interpreted from within this particular conception of evidential justification. In general terms, we might observe that the standard usually applied to civil claims should be considered to have been met, with regard to each principal fact, where the following conditions obtain: first, specific proofs exist which are a good explanatory fit with the hypothesis that the event did take place (in this case, arguments of plausibility based on narrative generalisations or purely statistical reasoning would not be sufficient.) Second, this hypothesis better explains a set of reliable evidence than does any contradictory or contrasting hypothesis that exists (in this second, comparative, evaluation arguments of plausibility based on narrative generalisations could potentially be accepted as decisive). Where ‘beyond reasonable doubt’ is the standard of proof, there must again be a set of specific proofs that offer an explanatory fit with the hypothesis that each principal fact on which the charges are based did take place. Thus, once again, plausibility arguments based on narrative generalisation or statistics cannot be sufficient in and of themselves. There is, however, an additional requirement: any contradictory or contrasting hypotheses that postulates the innocence of the accused must be actively incompatible with the evidence, due to the existence of proofs that eliminate or refute such hypotheses. In common law systems, as is widely known, a third standard, known as ‘clear and convincing’ evidence, may apply in some civil cases. Interpretation of this standard requires the establishment of some sense in which the hypothesis that a principal fact did occur can be considered to provide a ‘sufficiently’ better explanation of the evidence than that offered by any counter-hypothesis. The model of evidential justification that I put forward in the paper would permit an interpretation in the case of this standard which would, in essence, state that plausibility arguments based on narrative generalisation would not be considered sufficient to tip the balance where two hypotheses were otherwise evenly matched in terms of the specific evidence base of each one.
- 37.
- 38.
Amalia Amaya, in the course of articulating her model of coherentist justification, also introduces a range of requisites that seek to guarantee that “some of the propositions that describe admissible evidence at trial, enjoy a degree of priority”: Amaya (2013), p. 13.
- 39.
- 40.
Cfr. Simon (2004), pp. 536 ff.
- 41.
- 42.
This same conclusion is defended by Simon (2004): “As defined, coherence is an empirical phenomenon, not a jurisprudential ideal” (p. 516) (…) “(p)recisely because the holistic account of human cognition is correct, its prescription is wrong (p. 569)”.
- 43.
In a similar vein, Bex and Verheij (2012), p. 342 point out that the evidence base may be established differentially in regard to each element of the narrative.
- 44.
With regard to the concept of material facts, cf. Taruffo (1992), pp. 119 ff.
- 45.
Accordingly, Bex and Verheij (2012), p. 342, recognise that it is unusual for all the elements of a narrative to be grounded in specific proofs, affirming that ‘good judgement’ allows identification of which elements should be considered essential and which, given the range of evidence available and the type of case, should be expected to be based on proof. However, it is not clear how definitions of ‘essential’ are to be arrived at, or whether it is treated as a narrative category or—as I propose to treat it here—as a criterion defined by the interrelation between factual and normative premises of legal justification.
- 46.
For discussion of this fallacy see Van Eemeren and Garssen (2009).
- 47.
- 48.
- 49.
On the evolution in these systems of the requirement to give reasons for judicial decisions, see Ho (2000).
- 50.
Cf. Simon (2004), pp. 553 ff.
- 51.
As Gascón (1999), p. 202, suggests, in this situation the requirement to give reasons may have a retrospective effect on the decisionmaking pathway, limiting the impact of considerations that can not be communicated. Various civil law legal systems show a tendency towards definition of an atomistic and dialectically complete model of reasoned opinions, in particular if we take into account the criteria of compliance control developed by courts of cassation: see Iacoviello (1997) and Accatino (2012).
- 52.
The difficulties arise because according to the rules of mathematical calculation of probabilities, the probability that two independent hypotheses both occur is equal to the product of the probability of each. Thus, if the probability of hypothesis A, and of hypothesis B, both equal 0.5, the probability of their both occurring is 0.25. As can be seen, then, the combined probability of two independent hypotheses is always inferior to the individual probability assessment of either one. Accordingly, in a legal case, even if Bayesian evaluation of the relevant evidence has resulted in each principal fact being awarded an individual probability score superior to the ratio required by the applicable standard of proof, it is unlikely that the combined probability will meet the ratio. In consequence, facts which may be considered separately proven cannot be considered proven as a whole (cf. Cohen 1977, pp. 49 ff.).
- 53.
Allen and Stein (2001), p. 1534.
- 54.
See the critical appreciation of this asymmetry between the US criminal justice system and that of other Anglo-American systems provided by Marcus (2013) and by Griffin (2013). The pronouncement by the European Court of Human Rights on the compatibility of the due process rights enshrined in Art. 6 of the [European] Convention with non-justified jury verdicts, in the case Taxquet v. Belgium (2010), is interesting in this regard. The Court recognised compatibility on condition that proceedings offer “sufficient safeguards against arbitrariness and [make] it possible for the accused to understand why he was found guilty”. It goes on to identify, as examples of mechanisms that meet these requirements, precisely the types of institution that we are discussing here (such as judicial summing up, or the putting to the jury, by the judge, of “precise, unequivocal questions put to the jury by the judge, forming a framework on which the verdict is based” (54 ECHR 26, paras. 92 and 93). See also commentary by Duff (2011) and Roberts (2011).
- 55.
A judge in Canada stated, for example, that “we aim to summarize the evidence as it relates to each issue that the jury must determine”. And according to English judicial opinions “the judge is obligated to ‘identif[y] succinctly those pieces of evidence which are in conflict . . . [in order to] focus the jury’s attention on those factual issues which they must resolve’”. Vid. Marcus (2013), pp. 6 and 10.
- 56.
Cf. Marcus (2013), pp. 53 ff.
- 57.
On such warnings see, in general, Roberts and Zuckerman (2010), pp. 676 ff. Those adopted in the UK, can be consulted in https://www.judiciary.uk/wp-content/uploads/2013/09/guidance-no10-warnings-to-juries-.pdf.
- 58.
- 59.
As has already been stated, this paper does not develop a differentiated analysis of judgement of relevance. Insofar as judging the evidentiary force of an element of proof presupposes consideration of its relevance, we might deduce that if a normative, atomistic approach is taken to the former, the latter must be treated in an analogous way. Thus, relevance must be evaluated with regard to each individual element of proof, considering whether each may constitute or not the premise of an argument proving or disproving that a principal fact did in fact take place. In practice, this conclusion would be relatively easy to sustain if the judgement in question were always to determine, in a binary mode, the relevance or irrelevance of an element of proof. But legal norms regarding the admission or exclusion of evidence may require evaluation of the degree to which an element of proof is relevant, in order, for example, to weight this against the danger that its introduction may generate an unfair prejudice. Evaluation of the degree to which a particular element of proof is relevant is a complex judgement call, which appears to require simultaneous consideration of both the individual and the overall, or relative, weight of the element in the set of available evidence. All of this seems to point to the need for a holistic approach to judging evidentiary sufficiency, such as the one proposed in this paper. For an interesting discussion of this problem see Mnookin (2013).
- 60.
The full quote from Invisible Cities reads: “Marco Polo describes a bridge, stone by stone. “But which is the stone that supports the bridge?” Kublai Khan asks. “The bridge is not supported by one stone or another”, Marco answers, “but by the line of the arch that they form”. Kublai Khan remains silent, reflecting. Then he adds: “Why do you speak to me of the stones? It is only the arch that matters to me”. Polo answers: “Without stones there is no arch” (p. 82).
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Accatino, D. (2021). The Architecture of Evidential Justification Between Atomism and Holism. In: Klappstein, V., Dybowski, M. (eds) Theory of Legal Evidence - Evidence in Legal Theory. Law and Philosophy Library, vol 138. Springer, Cham. https://doi.org/10.1007/978-3-030-83841-6_6
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