Arguments, Stories and Criminal Evidence: A Formal Hybrid Theory: 92 (Law and Philosophy Library)


An important advantage of the narrative approach is that it is close to how legal decision makers actually think about a case. Experiments by Pennington and Hastie suggest that when reasoning with a mass of evidence, people compare the different stories that explain the evidence instead of constructing arguments based on evidence for and against the facts at issue as is done in the argumentative approach. Furthermore, it is not always clear how one should reason about the coherence of a story and how stories should be compared.

The Hybrid Approach Both the argumentative and the narrative approach concern reasoning about the facts and the evidence: The argumentative approach, which builds on the philosophical tradition of argumentation, is well-suited for an analysis of the individual pieces of evidence, whilst the empirically-tested narrative approach is appreciated for its natural account of crime scenarios and causal reasoning. Conversely, the atomistic nature of arguments makes them unsuitable for giving an overview of the various hypotheses about what happened in the case and not all aspects of causal reasoning can be found in the argumentative approach.

In the story-based approach, the individual evidence does not have a clear place and its credibility and relevance cannot be checked easily. Arguments and stories therefore need to be combined into one hybrid theory , where facts are organised into stories and arguments based on evidence are used to support these stories.

In other words, a story such as the one in Figure 2 should be anchored in evidence using arguments such as the one in Figure 1, viz. In Figure 3 adapted from Wagenaar et al. Thus, both arguments and stories and their respective schemes have a clear place in the hybrid theory. The hybrid approach solves one of the most important issues with the narrative approach as, for example, described by Wagenaar and colleagues , namely that often the connection between the evidence and the stories is not made clear.

In the hybrid approach, stories can be firmly anchored or, in other terms, evidentially supported. Note that stories can also be evidentially contradicted using arguments. For example, an argument based on a witness statement saying that Pascal was in Poland when the shooting took place contradicts the above story. Aside from anchoring stories in evidence, the hybrid approach also makes it possible to reason about the coherence of a story in a dialectical way, as arguments can be given for the in coherence of a particular story or one of its sub-stories.

In the hybrid theory, stories can be used for constructing intelligible hypotheses about what happened in an intuitive way and arguments can be used to connect the evidence to these stories and to reason about the stories and the evidence in greater detail. In the next section, we will discuss how an anchored story i. Critical questions for the hybrid theory: These critical questions can be used to unearth sources of doubt in a total case i. In this section, we will list these critical questions and give some examples.

CQ1 Are the facts of the case made sufficiently explicit in a story? The starting point of a well-supported opinion about the facts is a concrete story about what happened, that is, a clear and sufficiently specific chronological account of what might have happened in a criminal case. By presenting the story separately from any arguments about its plausibility and the evidence, the coherence of the story can be best appreciated and investigated.

In a sense, one can say that this story is the conclusion of the argument about the case-as-a-whole cf. Which stories can be the conclusion of a legal verdict is often restricted by formal constraints; for instance, in the Netherlands the factual account of a conviction should match the indictment presented by the prosecution. Nadia and Pascal had a disagreement about a washing machine and Pascal decided to kill Nadia. He called his work to report in sick and grabbed his Uzi, a small machine gun he had in his room. Pascal then shot Nadia twice, dragged her to the kitchen and killed her by shooting again at close range.

CQ2 Does the story conform to the evidence? Is the story sufficiently supported by the evidence in the case? Is the story contradicted by evidence in the case? A key step is the identification of the evidential support that can be given for the elements of a story, that is, identifying the sources of evidence that support the story. In the Nadia case, many events in the story are explicitly supported by evidence: This list of evidence is taken directly from the verdicts, where they are largely listed in chronological story order [v].

In general, not all elements of a story can be supported by evidence. This does not need to be a problem, and is in fact unavoidable as certain story elements must by their nature be indirectly justified. In sum, CQ2 has been satisfactorily answered. The existence of evidential gaps, here conceived of as parts of a story for which no direct evidence [vi] is available, is one reason why a mixed-argumentative narrative perspective can be useful. The analytical argumentative perspective makes the evidential gaps visible, the narrative perspective shows why the evidential gaps can still be believed in conjunction with other facts.

In general, it is a matter of good judgment which elements of a story must be directly supported by evidence and which can be inferred from other facts. This depends in part on the quality of the evidence a story supported by weak evidence can become stronger by providing evidence for more facts , but also on the nature of the crime and the law. In addition to looking at how much of the story is supported, one should also consider how much of the total evidence in the case supports the story.

If, for example, a story is completely supported by 2 witness testimonies but there are 20 more witnesses who state another incompatible story, the story does not sufficiently conform to the evidence in the case even though there are no gaps in it. Furthermore, one should also take into account the amount of evidence that directly contradicts a story; instead of giving an alternative story see CQ5 below , the opposing party may simply deny elements of the main story. For example, in the Nadia case the defence might have witnesses that state that there was never a disagreement and that Pascal and Nadia were good friends.

In this case, however, such arguments were not made and we turn to the next critical question. CQ3 Is the support that the evidence gives to the story sufficiently relevant and strong? Are the reasoning steps from evidence to events in the story justified by warranting generalizations and argument schemes that are sufficiently strong and grounded?

Are there exceptions to the use of the generalizations and schemes that undermine the connection between evidence and fact? In order to determine relevance and probative force of a piece of evidence, the generalizations and schemes warranting the inference steps should be made explicit. Thus it can, for example, become clear that the generalization is false and cannot be the basis for a good reasoning step.

In general it will therefore be important to determine whether and, if so, on which grounds a generalization is considered to be valid i. For example, the witness testimony scheme can be grounded in the law e. Schemes or generalizations can have other sources than the law [vii]: Such generalizations are necessary but also dangerous Twining , as they might express implicit biases or prejudices we hold e. In the example of the murder of Nadia, we see that most reasoning steps are based on plausible generalizations and schemes. Perhaps the use of scent tests as a basis for drawing conclusions is the most controversial [viii].

If we consider criticism concerning scent tests as a forensic investigative procedure as well founded, then we must conclude that scent tests cannot be used to support conclusions CQ3a. With respect to most of the listed pieces of evidence, we need not assume that there are exceptions to the underlying generalizations or schemes CQ3b and we can infer the events of the story supported by the evidence. Now that we have considered critical questions 1, 2 and 3, we are in the following position: The argument about the case as-a-whole can be further improved by showing that the story is plausible in itself.

CQ4 Has the story itself been sufficiently critically assessed? Is the story sufficiently coherent?

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Are there required elements missing? Are there implausible events or causal relations?

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Is the story inconsistent? Have story consequences been used to test the story? Here coherence has a specific meaning, namely that the story fits our knowledge and expectations about the world we live in. In other words, a story should be complete i. A story should also be consistent ; for instance, when the story implies that the suspect was simultaneously at two different places it is incoherent. No reasonable person would assume that disagreement over washers and driers commonly leads to an intention to murder someone. In the decision, a psychiatric report is discussed; it is used to provide support for the decision to keep Pascal under psychiatric surveillance.

The report explains that Pascal has a disorder by which ordinary events make him feel seriously threatened and react with disproportionate violence, which makes the events surrounding the death of Nadia and its cause more credible. This shows that a seemingly incoherent story can still be believed when supported by evidence.

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A further way of testing a story is to look for possible reasons against facts that follow from the story story consequences , CQ4b. For example, if we assume that the perpetrator, whoever it may be, has shot Nadia at close range and that he has subsequently dragged her body to another place, it is highly likely that he has blood on his hands, clothes and shoes. However, besides the critical assessment of the main story, the conclusion of the argument in the case as-a-whole, sufficient attention should also be paid to possible alternative scenarios of what has happened.

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CQ5 Have alternative stories been sufficiently taken into account? Has a sufficient search for alternative explanations been performed, not only in the investigative phase, but also in court? Are there good reasons to choose one story over the alternatives?

Have the alternatives been sufficiently refuted? First a serious search for alternative scenarios is needed. In part, the opposing party in the process will provide alternatives, but a decision maker will also have to actively consider different accounts of what may have happened. These alternatives should not only be actively sought, they should also be adequately refuted: In the Nadia case, Pascal told the alternative story that he was suffering from amnesia and could not remember what happened the day Nadia died.

He claimed to have been kidnapped and taken to Poland, although by unknown persons and for unknown reasons. This can hardly be considered a story cf. Several crucial elements are missing completeness , CQ4a , such as the identity and motive of the kidnappers. Furthermore, there was no evidence of the kidnapping having taken place CQ2.

Also, the court explicitly addresses the amnesia defence: CQ6 Have all opposing reasons been weighed? Have all considerations that are used to weigh opposing reasons been made explicit? Has this been done both at the level of individual facts and events and at the level of stories? When there are explicit grounds that can decide the weighing of such opposing reasons, they should be given. The stronger and more relevant the reasons are, the more important it is to decide explicitly how they are weighed against each other.

Conflicting reasons do not only exist at the level of individual events, but also at the level of stories. For example, there might be reasons for and against a story as a whole. It can occur that significant elements of a particular story are supported by evidence, while the story itself is rather incoherent. The weighing of reasons then takes the form of deciding whether the story is sufficiently justified by the evidence and how it measures up to the alternatives. In the Nadia case, there was no difficulty in the balancing of reasons at the level of stories. There was no need to weigh any reasons on the level of individual events, as no arguments were given that directly refuted any of the arguments of the prosecution.

Conclusion In this paper, we have proposed a series of critical questions for the hybrid argumentative-narrative theory of reasoning about the facts and the evidence in legal cases. Some of the critical questions correspond closely to argumentative approaches to reasoning with evidence in particular critical question 2 about the sufficient support of the events, and question 3 concerning the relevance and strength of the support. There are also questions that are strongly connected to a narrative style of analysis in particular question 4 about the coherence of the supported story, and question 5 about the consideration of alternative stories.

But there are also questions that have a more hybrid position between argumentation and narrative. For instance, critical question 1 requires that an argument about the facts has a specific story as a conclusion, and question 6 considers the weighing of the pros and cons for individual events and for complete stories. We have used the analytic tool of the critical questions associated with argumentation schemes as studied in argumentation theory recently by Walton et al , building on work by Perelman and Olbrechts-Tyteca , Hastings and Kienpointner We have extended the use of critical questions to questions for stories and the schemes on which they are based, and for hybrid structures of arguments, stories and evidence.

However, for a deeper understanding of the connection between argumentation and narrative, it seems to be required to develop a genuine integration of both. Meanwhile, our hybrid approach allows for the flexibility of the separate argumentative and narrative approaches whilst at the same time it uses arguments and stories as complementary tools for complex reasoning. The case studies in this text and another one by Bex accentuate the value of a hybrid, argumentative-narrative analysis of reasoning about the facts in criminal cases.

Many of these verdicts are available to the public on Http: The verdicts in the Nadia van der V. Analysis of Evidence , 2 nd edition. Reconstructing Reality in the Courtroom: Justice and Judgment in American Culture. Analysing stories using schemes. Statistics, Stories, Logic pp.

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