Analysis of Evidence: How to Do Things with Facts Based on Wigmore's Science of Judicial Proof.

AuthorRobertson, Bernard

Introduction

The "new evidence scholarship" has so far consisted mainly of articles and conference papers in which new evidence scholars argue in arcane disputes.(1) Some of the ideas have started to rub off in evidence textbooks,(2) but few scholars have attempted written proselytization.

One exception is William Twining,(3) who in two previous books(4) challenged conventional evidence teachers to reconsider their basic principles. With Terence Anderson,(5) he has now published Analysis of Evidence with an accompanying Teacher's Manual (Manual). This was always intended to be the second limb of Twining's project,(6) but it is also the first book from the new evidence movement designed to be picked up by noninitiates and used for teaching.

  1. Fact Analysis

Analysis of Evidence seeks to breathe new life into Wigmore's largely ignored Science of Judicial Proof,(7) where Wigmore set out to develop a novum organum, a rigorous method of thinking about facts in legal cases. The structure of argument and proof, he pointed out, was ripe for systematic study, because it had been regarded as a skill to be picked up through working with more senior practitioners who had not themselves been trained in fact analysis.(8)

Although Analysis of Evidence addresses other evidence analysis techniques such as the narrative method(9) and the trial book,(10) the Wigmore Chart serves as the book's centerpiece. The Wigmore Chart aims "to determine rationally the net persuasive effect of a mixed mass of evidence."(11) It provides a formalized scheme, necessary because "the mind is unable to juxtapose consciously a larger number of ideas." Consequently, "each coherent group of detailed constituent ideas must be reduced in consciousness to a single idea; until the mind can consciously juxtapose them with due attention to each, so as to produce its single final idea."(12)

The formalized scheme is achieved by breaking down the case's evidence into propositions, each containing a single point (see Table 1). The propositions may be matters provided by depositions, inferences drawn from witness evidence, generalizations that contribute to the drawing of inferences, or even alternative explanations for events dreamed up by the chartist. The chartist draws a hierarchical chart showing the relationships between these propositions. Thus, in Figure 1, which shows a portion of a Wigmore Chart from Analysis of Evidence, Witness 3's statement (7) is evidence for (6), which in turn supports proposition (5). But proposition (18), supported by propositions (16) and (17), leads us to downplay the probative value of (6) on (5).(13)

TABLE 1: A Partial List of Propositions fir Figure 1 (p. 147) 5. X left Y's house at 5:00 p.m. on January 1. 6. W[itness]3 saw X leave Y's house at 5:00 p.m. on January 1. 7. W3: I saw X leave Y's house at 5:00 p.m. on January 1. 16. The sun had set before 5:00 p.m. on January 1. 17. A claimed eyewitness identification made after the sun has set is doubtful. 18. It may have been someone other than X whom W3 saw leave Y's house. In practice the chart and the list of propositions develop interactively. Early attempts to draw a chart usually reveal deficiencies in one's list of propositions, which accordingly starts to expand. This forces one to consider exactly how items of evidence prove different propositions.

This analytical process assists a number of stages of the legal process. For the investigator, it can help to identify possibilities and indicate which evidence should be sought to prove or disprove those possibilities; for the prosecutor, it serves as a checking device to ensure that the most appropriate provable charges have been laid and to identify any further investigation required; for the lawyer preparing for trial, it serves the additional purpose of enabling an issue-by-issue construction of the case for presentation to the jury; and for the historian examining a cause celibre, it offers a tool for rigorously examining the facts and arguments proffered and for considering the effects of new information. Indeed, Analysis of Evidence emphasizes that the first step in any successful analysis is to determine one's standpoint. This is achieved by asking the questions: Who am I?, At what stage in what process and What am I trying to achieve? The second question emphasizes that the lawyer and investigator are involved in dynamic processes, in which information and priorities may change during the period from an initial incident or consultation to trial.

The value of fact analysis has long been recognized in a number of fields.(14) Two recent developments have caused the legal world to take renewed notice of fact analysis. First, large law firms increasingly use computer-based litigation support systems, and courts also use computers for managing the evidence in complex cases. At present these are only sophisticated storage and retrieval systems; a system that actually helps the litigator to structure the case is an obvious next step.(15) Second, the move toward skills-based legal training in a number of jurisdictions has created demand for teachable systems for analyzing cases. Many lawyers, in the course of their practice, work out more or less formal systems for displaying the structure of a case. This demonstrates the value of such systems. If legal training included such an analytical framework, junior lawyers could avoid much unnecessary distress.

Neville Carter, working alone from a copy of Wigmore's Science, designed one system for analyzing cases for the New Zealand Law Professionals Course.(16) This model starts at Level One, the appropriate sources of law, from which one identifies Level Two, the cause of action or charge. The elements of the cause of action are determined at Level Three. Level Four consists of those propositions that constitute the matters to be proved at Level Three. Level Five consists of the evidence from witnesses and documents. The process of inference, upon which Analysis of Evidence concentrates, takes place largely between Levels Four and Five. In a minority of instances, a Level Four proposition is inferred directly from an item of evidence, but in most cases a more complex process of inference is involved. Often this will require combining inferences from items of evidence. All this activity takes place "between" Level Four and the bottom level, and it seems sensible to insert a new level into the scheme so that the charting of the inference process can be properly discussed. The current version of the model therefore has six levels (see Figure 2).(17)

The Carter model relates the various levels to statements of claim, particulars, and other procedural aspects of the New Zealand legal system. Thus, Carter takes Wigmore's basic idea and adapts it to one particular standpoint: that of the lawyer preparing for trial in a particular jurisdiction. Oddly enough, this is the standpoint from which Wigmore thought he was writing.(18) Carter's work and Analysis of Evidence, however, show that Wigmore provided only the logical core, to be adapted and extended to fit the requirements of various standpoints.

Analysis of Evidence provides basic instruction in drawing a chart together with real and fictional cases suitable for the beginner. The book provides extensive quotations from Wigmore's original work and authorial commentary, some of which are expanded in the Manual Because an evidence teacher cannot easily find cases that neatly test the various aspects of fact analysis, the uninitiated teacher will find this compendium most helpful.

This is a process that can only be learned by doing, thus students and teachers face a lot of hard work. The authors are sanguine about the task of teaching such a system; they state that giving feedback is easier than performing the analysis in the first place (Manual, pp. xxi). Our own experience suggests that the best way for teachers to learn to teach fact analysis is for them to think their way through a major exercise themselves.(19) Their task may be mainly to "incite, excite, and advise," but they can only be credible by providing the clear sense of direction that comes from having traveled the road first.

This is particularly true in view of the standard criticisms made upon first introduction to such systems. Busy practitioners often state that they do not have the time and energy to chart every, or even any, case in this way. Other lawyers maintain that this system only puts on paper what they already do in their heads. This reflects the more academic debate about whether Wigmorian analysis is a descriptive or prescriptive system and, if it is prescriptive, whether the patient needs a cure. The answer, sufficient for practical purposes, is twofold: first, Wigmorian analysis is an attempt to capture the way we think when we think at our best; second, the experience of formally conducting a major analysis causes the process to be internalized. This exercise will actually improve one's analytical skills without always having to use pencil and paper. This has certainly been our own experience, but to convince a class one needs to have had this experience oneself.

Once one has tried out the basic techniques, one can proceed to the more sophisticated problems provided and issues raised in Analysis of Evidence. Twining devotes considerable attention to the Edith Thompson case,(20) but one will soon find other cases, perhaps more local or topical, to use as centerpieces. Antipodean examples are provided by the Thomas (21) and Chamberlain (22) Cases.

Analysis of Evidence was, the authors tell us, ten years in the making (p. xxix). During that time the authors taught fact analysis to classes at undergraduate and postgraduate levels, and in the Manual they give us the benefit of their experience. They and others writing on fact analysis also have improved on Wigmore's work. These improvements can take two forms: they can extend the analysis...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT