Analysis of Evidence

, by Terence Anderson , David Schum , William Twining

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ISBN: 9780521673167 | 052167316X
Cover: Paperback
Copyright: 7/11/2005

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This extensively revised second edition is a rigorous introduction to the construction and criticism of arguments about questions of fact, and to the marshalling and evaluation of evidence at all stages of litigation. It covers the principles underlying the logic of proof; the uses and dangers of story-telling; standards for decision and the relationship between probabilities and proof; the chart method and other methods of analyzing and ordering evidence in fact-investigation, in preparing for trial, and in connection with other important decisions in legal processes and in criminal investigation and intelligence analysis. Most of the chapters in this new edition have been rewritten; the treatment of fact investigation, probabilities and narrative has been extended; and new examples and exercises have been added. Designed as a flexible tool for undergraduate and postgraduate courses on evidence and proof, students, practitioners and teachers alike will find this book challenging but rewarding.

Preface

xvii

Acknowledgments

xxv

Tables of cases and statutes

xxvii

List of abbreviations

xxxii

1 Evidence and inference: some food for thought

(45)

A. Introduction

(1)

B. Evidence and inference in non-legal contexts

(8)

1. Whose baby I? The judgment of Solomon

(1)

2. The intelligence analyst: an intelligence scenario "from the top-down"

(5)

3. The doctor and the detective: Joseph Bell and Sherlock Holmes

(2)

a. The doctor

(1)

b. The detective

(1)

4. Generalizations and stories: Sam's party

(1)

C. Evidence and inference in legal contexts

(36)

1. Two murders

(1)

a. The murder of Y

(1)

b. Bywaters and Thompson

(1)

2. Imaginative reasoning: The Nine Mile Walk

(7)

3. Generalizations, stories, and arguments

(3)

a. Brides in the bath: closing speech

(1)

b. Huddleston v. United States

(1)

c. Miller v. Jackson

(1)

4. Evidence from two causes célèbres

(2)

a. Commonwealth v. Sacco and Vanzetti

(2)

b. People v. Simpson

(1)

5. United States v. Richard Able

(5)

6. Sargent v. Southern Accident Co.

(3)

7. Whose baby II? Morrison v. Jenkins

(9)

8. An investigation: basic concepts in analysis and evaluation

(6)

2 Fact investigation and the nature of evidence

(32)

A. Introduction: connecting the dots

(9)

Post 9/11 investigation: an exercise

(3)

B. Fact investigation: generating dots and explanations for them

(5)

1. Types of logical reasoning and justification

(1)

2. Abductive reasoning and the generation of a new idea

(2)

3. Generating explanations for dots or trifles

(2)

C. On the credentials of evidence

(11)

1. Evidential foundations of argument

(2)

2. On relevance

(1)

3. The credibility of evidence and its sources

(8)

a. Tangible evidence

(1)

b. The credibility of testimonial evidence

(2)

c. Ancillary evidence about testimonial credibility attributes

(3)

d. Credibility v. competence

(1)

4. On the probative force of evidence

(1)

D. A substance-blind approach to evidence

(7)

3 Principles of proof

(34)

A. Introduction: evidence in legal contexts

(1)

B. The Rationalist Tradition

(9)

1. The tradition described

(2)

2. Principles of proof, rules of procedure and evidence, and the Rationalist Tradition

(6)

C. Rationale

(3)

Notes and questions on rules of evidence concerning relevance

(2)

D. Notes on terminology and inferential relationships

(6)

A preliminary exercise: State v. Archer (I)

(2)

E. Probative processes and logical principles

(16)

1. Probative processes

(2)

2. The logical principles

(5)

3. Application of the principles in legal disputes

103

(10)

The exercise continues: State v. Archer (II)

109

(1)

The Prosecutor's standpoint

109

(3)

4 Methods of analysis

112

(11)

A. Introduction

112

(1)

B. The methods and a protocol for their use

113

(10)

1. Methods of analysis and analytic devices

113

(1)

2. A seven-step protocol for analysis: a generalized account

114

(9)

5 The chart method

123

(22)

A. The chart method: an overview

123

(1)

B. The seven-step protocol for the chart method: a detailed account

124

(10)

C. The symbols and their use

134

(11)

1. The basic Wigmorean palette

134

(2)

2. The chart method illustrated

136

(4)

3. Additional symbols, conventions and their utility

140

(1)

4. Three advantages of symbols and charting

141

(8)

The exercise continues: State v. Archer (III)

143

(1)

1. Defense counsel's standpoint

143

(1)

2. Defense investigation

144

(1)

6 Outlines, chronologies, and narrative

145

(14)

A. The outline method of analysis

145

(2)

B. Analytic devices: chronologies and narratives

147

(2)

C. The litigation context

149

(4)

1. The stages of a case and the methods of analysis

149

(4)

a. The pleading stage

150

(1)

b. Before the close of discovery and investigation

151

(1)

c. Final trial preparation

152

(1)

D. Theories, themes, stories, and situation-types

153

(6)

State v. Archer (IV): the exercise concludes

158

(2)

1. The prosecution standpoint

158

(1)

2. The defense standpoint

158

(1)

7 Analyzing the decided case: anatomy of a cause célèbre

159

(65)

A. Introduction

159

(1)

B. The trial of Bywaters and Thompson

160

(59)

1. Preliminary matter

160

(4)

a. The indictments

160

(2)

b. Dramatis personae

162

(1)

c. Leading dates in the case

163

(1)

2. The judgment on Thompson's appeal: Rex v. Thompson (1922)

164

(6)

3. Evidence from the trial: the Prosecution

170

(33)

a. Extracts from testimony (including statements made by the accused)

170

(8)

b. Index to selected exhibits

178

(1)

c. A selection of Thompson's earlier letters

179

(10)

d. Thompson's later letters

189

(14)

4. Evidence from the trial: the Defense

203

(23)

a. Extracts from cross-examination of Bywaters

203

(6)

b. Further extracts from the cross-examination of Bywaters

209

(1)

c. Extracts from the examination of Thompson

209

(2)

d. Further extracts from the examination of Thompson

211

(2)

e. Extracts from cross-examination of Thompson

213

(6)

C. Comments

219

(1)

D. Notes and questions on Rex v. Bywaters and Thompson

220

(4)

8 Evaluating evidence

224

(22)

A. Introduction

224

(2)

B. Evaluating the weight and probative force of evidence

226

(4)

1. No rules of weight

226

(1)

2. Traditional modes of expressing weight and probative force

227

(3)

C. Standards for decision

230

(16)

1. Lawyering standards

231

(6)

a. Standards for lawyer-client decisions

232

(2)

b. Standards for lawyers' decisions

234

(3)

2. Standards for decisions in adjudication

237

(13)

a. Standards for decisions disposing of a case as a matter of law

237

(1)

b. Standards for decisions on admissibility

238

(4)

c. The case as a whole: burdens of proof and the civil and criminal standards

242

(2)

d. Appellate review: standards for limiting discretion

244

(2)

9 Probabilities, weight, and probative force

246

(16)

A. Introduction

246

(1)

B. Flirtations involving law and probability

247

(3)

C. Probability and the force or weight of evidence

250

(12)

1. Conventional probability and Bayes's Rule

251

(2)

2. Evidential support and evidential weight: non-additive probabilistic beliefs

253

(4)

3. Baconian probability and completeness of evidential coverage

257

(3)

4. Wigmore and the fuzzy weight of evidence

260

(2)

10 Necessary but dangerous: generalizations and stories in argumentation about facts

262

(27)

A. Generalizations

262

(18)

1. Reprise and introduction

262

(1)

2. Degrees of certainty

263

(2)

3. Types of generalizations

265

(8)

a. Case-specific generalizations

266

(3)

b. Background generalizations

269

(1)

c. Scientific knowledge and expertise

270

(1)

d. General knowledge

270

(1)

e. Experience-based generalizations

271

(1)

f. Synthetic-intuitive generalizations (belief generalizations)

271

(2)

4. Judicial notice and cognitive consensus

273

(3)

a. Judicial notice

273

(1)

b. Cognitive consensus

273

(3)

5. Dangers of generalizations

276

(1)

6. Generalizations: the practitioner's standpoint

277

(3)

a. Case-specific generalizations

278

(1)

b. Experience-based and synthetic-intuitive generalizations

278

(1)

c. Formulation and appraisal

279

(1)

Protocol for assessing the plausibility and validity of a generalization in the context of an argument

279

(1)

B. Stories necessary, but dangerous

280

(2)

Protocol for assessing the plausibility, coherence, and evidentiary support for a story

281

(1)

C. The relationship between stories and generalizations

282

(3)

D. Generalizations, stories, and themes: questions and exercises

285

(4)

11 The principles of proof and the law of evidence

289

(26)

A. Introduction

289

(1)

B. What is the law of evidence? A Thayerite overview

290

(4)

C. One law of evidence?

294

(1)

D. Linking the principles of proof and the law of evidence: relevance as the main bridge

295

(1)

E. Analyzing for admissibility

295

(4)

F. Analysis under the United States Federal Rules of Evidence

299

(16)

1. Rules codifying the principles of proof and regulating their applications in judicial trials

299

(2)

2. Analysis and the rules designed to regulate the probative processes

301

(3)

3. Analysis and mandatory exclusionary rules

304

(1)

4. A Wigmorean protocol for analyzing problems in the use and admissibility of evidence under the Federal Rules and its application

305

(10)

a. The hearsay problem

306

(3)

b. The protocol applied

309

(6)

12 The trial lawyer's standpoint

315

(64)

A. A Wigmorean lawyer prepares for trial

315

(10)

1. Of charts and other analytic devices

315

(2)

2. The trial book: an organizational device

317

(6)

3. The trial book: an art form

323

(2)

B. Two simple cases

325

(8)

1. Suggested format

325

(1)

2. Materials for Police v. Weller

326

(3)

3. Materials for Police v. Twist

329

(4)

C. The art of plausible proof: theory, story, and theme revisited

333

(8)

1. Introduction

333

(2)

2. More food for thought

335

(6)

a. K. Llewellyn: Who are these men?

335

(1)

b. Bywaters and Thompson: Who is this woman?

336

(1)

c. Is Ford Motor Company guilty of killing girls with a Pinto?

337

(4)

D. Two more complex trial problems

341

(38)

1. Introduction

341

(2)

2. The criminal case: United States v. Wainwright

343

(13)

3. The civil case: The Estate of James Dale Warren

356

(23)

Glossary of terms and symbols

379

(9)

References

388

(8)

Index

396

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Analysis of Evidence

Summary

Table of Contents

Supplemental Materials