The aim of this essay is to define the concepts of evidence and story telling by way answering the question of, are cases won or lost on the evidence or the stories told. To place the assignment in the correct context for the discussion, it will use illustrations from the cases discussed in lecture to describe the difference between actual criminal evidence and the stories inferred from them. Furthermore, to demonstrate how story telling and evidence may benefit or hinder the outcome of criminal cases. The English legal system is an adversary system in which cases are presented before the court.
There are two opposing sides the defense and the prosecution. Both sides have an equal and fair oppurtunity to argue their cases, before a neutral panel, which can also include a jury and a judge. The judge and jury are expected to remain impartial and are chosen in part using criteria that is designed to discard people who might have a bias in the case In turn, both sides present the evidence and witnesses to support their positions. The opposing side is able cross examine witnesses, analyze the evidence independently, and challenge arguments made before the court.
The jury’s role is to determine the facts of the case and if any action needs to be taken. Adversarial systems are widely criticized for encouraging a system where each side is competing against the other. The definition of the concept of evidence given by Collin (2007) describes evidence as ‘ Facts that help to prove or disprove something at a trial’ (Collin, 2007). Collins (2007) definition refers to the facts, this gives a misunderstanding as to what facts are, if in fact they are objective bits of evidence which one may decide are particles of the truth.
It is important to note that those agreements can change over time the facts can also change. It is clear from research on patterns in opening and closing statements that both sides find difficulty in re defining facts consistently in the direction that best establishes their competeting claims about the incident (Bennet & Feldman, 1984:5) A sociological perspective on this suggests that the idea of fact is not as clear-cut as initially presumed. Sociologists should only consider facts as objective “evidence” and what they themselves can directly observe (Durkhiem, 2013).
In more detail it can be understood as the varied sources of information such as witnesses, documents, concrete objects which are submitted to a court “for the purpose of inducing belief in the minds of the court or the jury (Upshur, 2001:6). There are different classifications of evidence such as testimonial evidence, opinion, witnesses or something spoken or wrote down (Hails, 2009). Secondly, there is physical evidence that being photographs, tapes, recordings, CCTV, mobile phones, or other forensic objects such as DNA & fingerprints.
The classifications of evidence will be either direct or circumstantial evidence, direct evidence supports Bennet and Feldmans (1984) argument about requisites for direct proof that a crime has been committed. In terms of establishing the credibility of evidence, validation tactics suggest that either (a) and (b) be validated by other information and explanations, or if can they be invalidated by showing plausible alternative definitions and connections between the elements of the story (Bennet & Feldman, 1984).
So for example, a confession is direct evidence such as is eyewitness accounts. This is evidence that proves the criminal was at scene of crime or committing the crime, some physical evidence can back this up such as CCTV which shows them directly at the scene further to this is DNA that established a presence of a particular person (Hails, 2009). However, evidence does not speak for itself, someone has to present it and interpret it into a story. There is always a need for testimonial evidence to accompany physical and direct evidence.
It is also important to note that the same evidence be interpreted in different ways as either corroborating or refuting the matter at hand (Upshur, 2001:6). The same evidence can be used in both ways and be used to tell a story, for prosecution or for defense, therefore this becomes the story characterized by the different ways to interpret what one says, or what evidence is given. Evidence that appears as facts and is accepted can change; the interpretation of that fact radically differs from the prosecution to the defense.
In evidence theory, the process of proof is deductive and logical relevance links the evidence introduced to the facts in issue (James, 1941). One “rational” path to resolution is simply determining which side of the case has weightier evidence overall (Kaplow, 2012). Evidence is essential to prove, disprove, or move away from personal opinion in criminal cases. These definitions are valuable for the entire procedure of constructing guilt and innocence in regards to evidence there must be objects to persuade or aid in the story telling process essentially evidence does not mean that one has a story.
Simple definitions of a story are described as narratives however; Bennet & Feldman (1984:1) produced a conclusion that in the English legal system the criminal trials are constructed around story telling. In this context, it describes story telling as ‘’ the everyday form of communication that enables a diverse cast of courtroom characters to follow the development of a case’’ (Bennet & Feldman, 1984:1). This allows all parties to reason about the issues and evidence that supports the case.
Through a number of legal tactics this enables the many actors in a trail to present, organize, and analyse the evidence that bears on the alleged criminal offence (Bennet & Feldman, 1984:2). Pennington & Hastie (1988) found that the presentation of a story, rather than as bits of evidence, had a big influence on judgement of guilt and innocence in their study on mock jurors (1981). Research evidence has demonstrated that the quality of the narrative is vital in making a judgment (Bennett & Feldman, 1981:78).
However in contrast a disadvantage of constructing guilt purely based on a narrative is that The law of evidence thus rests primarily on theories of knowledge that claim to give an account of accuracy in other than narrative Terms (Kenworthy, 2010). The research done by Pennington & Hastie (1988) on mock jurors is powerful in terms of deciding if cases are won or lost on the narrative, it shows that people do indeed respond to information by putting it into stories however as stated this isn’t always the case.
Pennington & Hastie (1991) developed the ‘story model’ theory where story construction is central to the construction of guilt or innocence. The constructive activity that takes place results in one or more interpretations of evidence that has a narrative story (Pennington & Hastie, 1991:5). The story that is accepted is the one that provides the greatest coverage of the evidence and is the most coherent, as determined by the particular juror (Pennington & Hastie, 1991:6).
However Griffin (2013) argues that the story model is incomplete, and that “legal truth” emerges from a hybrid of narrative and other means of inquiry (Griffin, 2013; 1) although Griffin (2013) agrees with Pennington and Hastie’s ‘concept that the ‘story model’ is accurate with respect to the structure of juror decision making. At the different stages of evidence gathering, there is a lot of paper that is an un-organised arrangement of information (Pennington ; Hastie, 1988). Individuals such as jurors and lawyers organise evidence in terms of stories.
Pennington ; Hastie state that jurors hear the different sides of the story and then construct a story for them selves to understand (Pennington ; Hastie, 1981). Therefore the definition of stories in this case relate to stories as: a set of interrelated episodes in which ‘events considered to be initiating events that cause characters to have psychological responses and to form goals that motivate subsequent actions which cause certain consequences and accompanying states’ (Pennington ; Hastie, 1988:525). In contrast Griffin (2013) argues that by Viewing trials hrough the lens of narrative theory brings sources of bias and error into focus and suggests reasons to increase the influence of analytic processes (Griffin, 2013) which can effect the outcome of a win or loss on a particular case. Various studies on juries have concluded that they interpret information not by considering and weighing each relevant piece of evidence in turn, but by constructing competing narratives and then deciding which story is more persuasive (Griffin, 2013). Pennington ; Hastie (1981) support the idea that stories can be more successful or less successful if one can acquire great coverage on their side of the story.
In addition, if one can put forward a full narrative than the other then one has a successful story and that this is more likely to stand up in court. If one story is far more, coherent than the other this will also be an advantage in a decision of guilt or innocence (Pennington ; Hastie. 1988). The idea is that theorized stories explain the observations known as the evidence in the case through abductive (IBE) inference to the best explanation (Pennington ; Hastie, 1993). This idea of abductive inference to the best explanation is that there are different explanations, which can also be matched against the evidence.
However, it can still be reasonable to accept an explanation if no other superior explanation is available (Pennington ; Hastie, 1993). Further to this if one can tell a full plausible account of what happened using a story and it is believable, common sense and complete then one is more likely to swing the jury decision of guilt or innocence in the way one wants whether one is prosecuting or defending. Further to this, Pennington and Hastie (1981) found in any story that is delivered before a courtroom it has to include physical evidence and may include circumstantial evidence.
However, for Pennington ; Hastie (1981) they point out that stories do not include all of the evidence and importantly that stories and evidence overlap in instances in court by the prosecution and defence by way of enticing the jury or judge to side with the evidence and story that either party puts forward. This means that some of the things in the story may just be information, the two sides aim to story tell from particular position in which that the stories are portrayed to develop a possible verdict of guilt or innocence in the case.
Using the moors murder transcripts of Ian Brady ; Myra Hindley the evidence regarding the murder of Evans as an illustration to elaborate story telling. It is clear from their statements of evidence that they could recall only what had happened in their house when the crimes allegedly took place. They could not account for the fact that there was a body buried in a particular place. There fore there were internal contradictions to their story. Ian Brady tended to contradict himself therefore his story was not plausible and a lot was missing from it.
Myra at one point stated she stood in the room with the victim Evans with Brady however, Brady had said in his statement when asked ‘’ What appeared to you to be Evan’s condition then? —Well, there was blood all over the place at that time—on the walls, and there was pools of it on the floor. He was gurgling. Myra was in the room then. Then Brady was asked ‘’Had she been in the room at all when you attacked him? —I didn’t notice. I didn’t notice anything. But she was in the room at the end, by the door—by the open door. ’’
Goodman (1986) This simply is was not plausible, therefore one would infer that Myra saw the attack and or took part in it. However, in contrast to this example of story construct if u have two stories that are equally complete, then the one that is unique and speaks true to that particular case is likely to be more successful. In a prolific case such as the Moors Murders, the role of investigators, judges and jurors is a difficult one they are faced with a huge amount of unstructured evidence of which they have to understand.
Parties are expected without law training or guidance to construct multifaceted circumstances about what might have occurred in the case. In addition, they are expected to weigh up the possible significance of a large amount of evidence to each of these hypothetical scenarios. Bexs & Veheji (2009) argue that a disadvantage of this method is that individuals process a small amount of information at once then the various cognitive and social biases such as tunnel vision, groupthink and confirmation bias can lead to unwanted situations and mistakes that may result in a miscarriage of justice (Bexs & Veheji, 2009:161)
In conclusion, the inter relationship between the different cognitive processes and the hybrid nature of decision making suggest that narrative reasoning can coexist with an analytic approach. A hybrid approach is essential to the construction of guilt and innocence and enables decision makers to understand and evaluate all information that is present in the courtroom. Furthermore, Bexs (Bex 2009) (Bex et al, 2007) have argued for a more distinct hybrid approach.
This approach allows for arguments and narratives to be used in conjunction with each other and interchangeably. The hybrid approach is a method of constructing the process of proof, testing, and giving good reason for the different hypotheses in crime investigation and decision- making. Bex (2009) also argues that when dealing with the complex reasoning involved in criminal cases, arguments and stories need to be combined into one hybrid theory.
The hybrid approach resolves the important issues with the narrative approach as, for example, described by Wagenaar and colleagues (1993), namely that often the connection between the evidence and the stories are not clear. In the hybrid approach, stories have to be secure and supported by the evidence. This theory supports and is holds more favor in this approach for a fair and accurate trial and also to make sure that guilt and innocence is constructed fairly and unbiased by all actors within the courtroom setting.
Without the hybrid approach to criminal cases there would be numerous miscarriages of justice based simply on the fact that one side’s story was ‘better’ than the other regardless of guilt or innocence. Griffin (2013:335) ‘Jurors of course use stories to organize the information they receive. Trials address difficult and complex questions about human behavior, and they need not be mechanistic undertakings. But the story model is incomplete and recognizing its limitations reveals opportunities to improve truth seeking and counteract bias’. .