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The Narrative Fallacy
Abstract
This article uses narrative theory to apply a critical analysis to holistic evidence theory. As an alternative to evidentiary holism, we present traditional atomism as a system geared to the protection of defendants against the adverse influence of prevalent hegemonic narratives, which contributes to and strengthens educational symbolic values (such as the commitment to judging the actions of the accused rather than the accused herself, or the presumption of innocence) as well as protecting marginalized groups in society (including accused people generally). We do not challenge the argument regarding the importance of and perhaps even the need for narrative, as a method of granting meaning to human experience. We do challenge the normative implications commonly drawn from these theories. In this context we present and critique Professor Allen's theory of Relative Plausibility, and Professor Burns' endorsement of freedom of proof. We emphasize the importance of general principles of evidence law (such as Rule 403, in the Federal Rules of Evidence) and the admissibility rules (such as the inadmissibility of hearsay and opinion) as brakes that impede narrative freedom, requiring reference to questions of the credibility of information used by adjudicators, and the personal credibility of their sources. We also analyze the rule regarding character evidence and evidence of disposition as brakes on inferences based on generalizations which are constructed in the dominant stories of communities. We define the Narrative Fallacy as an erroneous heuristic, through which fact finders, attempting to use narratives in order to make sense of insufficient information, mistakenly choose the wrong narrative and so end up distorting the evidence presented. The paper situates the Narrative Fallacy alongside, but independent of, the intuitive statistical judgment fallacies defined and demonstrated in the research of Kahneman, Tversky, and other scholars.
... La prueba jurídica se desarrolla, de modo análogo a una representación teatral, en varios actos, 8 en los que se ponen en juego formas diversas de razonamiento probatorio, que corresponden a diversos actores del proceso y que pueden diferenciarse como 7 Véase, por ejemplo, Menashe y Shamash, 2005;Taruffo, 2009, pp. 79 y ss.; Aguilera, 2009, pp. ...
... 312 y ss.;Wagenaar et al.,1993y Menashe y Shamash, 2005. Un sugestivo análisis del im- pacto de las construcciones de perfi les o estereotipos de los acusados o las víctimas en los proce- sos penales puede verse enColoma, 2010. ...
This paper explores the debate between atomistic and holistic approaches to evidential reasoning in law, with the purpose of assessing critically their contributions to a normative theory of the justification of judicial decisions concerning facts. The author recognizes that holistic theories shed light on the semantic relevance of the whole story of the case to the intelligibility of each ultimate probanda, as well as on the justificatory value of the explanatory integration between them and the whole evidentiary data available. At the same time, however, she argues that each ultimate probanda should be considered as a distinct conclusion for the purpose of its justification and that the credibility of each piece of evidence, together with the strength of its inferential link with the probanda, should be object of an atomistic analysis.
... Initially defined as an erroneous heuristic through which someone, attempting to use narratives in order to make sense of insufficient information, mistakenly chooses the wrong narrative and so ends up distorting the evidence presented[22]. ...
The past 10 years have seen considerable developments in the use of narrative in medicine, primarily through the emergence of the so-called narrative medicine. In this article, I question narrative medicine's self-understanding and contend that one of the most prominent issues is its lack of a clear epistemological framework. Drawing from Gadamer's work on hermeneutics, I first show that narrative medicine is deeply linked with the hermeneutical field of knowledge. Then I try to identify which claims can be legitimately expected from narrative medicine, and which ones cannot be. I scrutinize in particular whether narrative medicine can legitimately grasp the patient's lived experience of his or her illness. In the last section of this article, I begin to explore the potential usefulness of this epistemological clarification. This analysis allows for a further understanding of what is really at stake with narrative medicine, and thus to identify when it may be convenient, and when it may not. Furthermore, this clarification opens up promising new possibilities of dialogue with critics of the field. I conclude that narrative medicine finds its proper place as a possible tool available to mediate dialogue, which is at the heart of the clinical encounter in medical practice.
... However, there is a second characteristic of the narrative fallacy which is not included in this definition: We sometimes make up things to fill in missing information or neglect information that does not fit in with our story (for an example, see Thüring, Großmann, & Wender, 1985). Consequently, we sometimes base our conclusions on a wrong story (Menashe & Shamash, 2005). ...
The current study investigated whether mental health practitioners are influenced by the narrative fallacy when assessing the psychological injuries of trauma victims. The narrative fallacy is associated with our tendency to establish logical links between different facts. In psychodiagnostic assessments, this tendency may result in overdiagnosis of mental disorders when psychological symptoms can be attributed to a traumatic event. Consequently, legal decision makers may be at risk of awarding compensation for psychological injuries which are not severe enough to justify financial reimbursement. To explore this topic, we asked Dutch mental health practitioners whether they would assign a diagnosis of mental disorder to fictitious symptoms of psychological injury. Each participant was presented with two vignettes. The first vignette described symptoms in terms of a generalized anxiety disorder; the second in terms of a major depressive episode. The vignettes varied in the cause (trauma versus cause not specified) and severity (near threshold of DSM diagnosis versus below threshold of DSM diagnosis) of the symptoms. Results indicated that participants more often assigned a diagnosis of mental disorder if the psychological symptoms had been caused by a traumatic event than if that had not been the case. Further analysis of the data suggested that this difference was due to the high numbers of assigned diagnoses of posttraumatic stress and acute stress disorder in the trauma conditions. It was speculated that participants filled in missing information to justify the assignment of such diagnoses, for example by imagining symptoms of intrusion and avoidance.
... A number of authors have also suggested that PCS models of coherence construction can justify the acceptance of a hypothesis by a court of law as true (Thagard, 2004;Thagard, 2006;Amaya, 2008Amaya, , p. 307, 2009Pardo and Allen, 2008, p. 230 [referencing Thagard for criteria of a good 73 COMPARING HOLISTIC AND ATOMISTIC EVALUATION OF EVIDENCE explanation]). Critics point to the danger that the holistic approach may obscure the inconclusive and inconsistent nature of the evidence (Menashe and Shamash, 2005;Griffin, 2012), that (merely) providing a best explanation is too permissive a standard and has historically lead to the acceptance of many theories as true that have later turned out to be incorrect (Laudan, 2007). ...
Fact finders in legal trials often need to evaluate a mass of weak, contradictory and ambiguous evidence. There are two general ways to accomplish this task: by holistically forming a coherent mental representation of the case, or by atomistically assessing the probative value of each item of evidence and integrating the values according to an algorithm. Parallel constraint satisfaction (PCS) models of cognitive coherence posit that a coherent mental representation is created by discounting contradicting evidence, inflating supporting evidence and interpreting ambivalent evidence in a way coherent with the emerging decision. This leads to inflated support for whichever hypothesis the fact finder accepts as true. Using a Bayesian network to model the direct dependencies between the evidence, the intermediate hypotheses and the main hypothesis, parameterised with (conditional) subjective probabilities elicited from the subjects, I demonstrate experimentally how an atomistic evaluation of evidence leads to a convergence of the computed posterior degrees of belief in the guilt of the defendant of those who convict and those who acquit. The atomistic evaluation preserves the inherent uncertainty that largely disappears in a holistic evaluation. Since the fact finders’ posterior degree of belief in the guilt of the defendant is the relevant standard of proof in many legal systems, this result implies that using an atomistic evaluation of evidence, the threshold level of posterior belief in guilt required for a conviction may often not be reached.
The chapter explores what literature by and about asylum seekers and undocumented migrants and research on such literature might reveal about the correlation between language, culture, and identity, as well as what impact such literature, of different genres, may have on reality. The autobiography Ulovlig norsk [Illegally Norwegian] by the undocumented migrant Maria Amelie (2010a), and the novel Venerin volos (2005, Maidenhair 2012) by the Russian-Swiss author Mikhail Shishkin offer interesting answers to the chapter’s key question: Who gets to tell whose story? In answering this question, the chapter author had to deal with some methodological quandaries and to discuss her own rights to and motivation for the writing of the chapter.KeywordsAsylum seekersGenreTelling rightsFictionAutobiographyResearch chapterNorwaySwitzerland
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.
Trade-driven killing for body parts has long been a major cause of population decline for a number of big cat species. There are now worrying suggestions that commercialised illegal trade in body parts might become a threat for wild lions in Africa, and recent concerns have been raised that trade in captive-bred lion skeletons from South Africa may have stimulated demand for lion bones, claws, and teeth and thus incentivised commercially-driven, targeted poaching of wild lions for illegal trade. However, analysis of the prevalence of commercially-driven, targeted killing of lions for body parts is currently lacking for most major lion populations. In this study we make use of detailed, long-term records of mortality and body part removal from field sites in two of Africa's lion population strongholds, the Hwange National Park and surrounds, Zimbabwe, within the Kavango Zambezi (KAZA) Transfrontier Conservation Area and the Ruaha landscape in Tanzania, to evaluate potential cases of commercially-driven part removal and targeted killings. We find no evidence of systemic targeted killing of lions for commercial trade at either site and suggest that the majority of part removals are opportunistic and culturally-driven. Nevertheless, we stress the requirement for vigilance around the issue of lion trade and support the development of further range-wide capacity to record wild lion mortality and body part removal data.
The aim of this essay is to develop a coherence theory for the justification of evidentiary judgments in law. The main claim of the coherence theory proposed in this article is that a belief about the events being litigated is justified if and only if it is a belief that an epistemically responsible fact finder might hold by virtue of its coherence in like circumstances. The article argues that this coherentist approach to evidence and legal proof has the resources to meet some of the main objections that may be addressed against attempts to analyze the justification of evidentiary judgments in law in coherentist terms. It concludes by exploring some implications of the proposed version of legal coherentism for a jurisprudence of evidence.
Rape cases reveal core conflicts in the space where evidence, law, and ethics intersect. Such conflicts include the tension between victim protection and the rights of the accused, the challenges attorneys face trying to negotiate the demands of sensitive and emotionally difficult cases, and the role of the law in counteracting stereotypes and bias.In this essay, I will begin by presenting the cultural milieu surrounding rape allegations, briefly reviewing attitudes towards perpetrators and victims. Next, I will attempt to capture the legal zeitgeist concerning rape, focusing on two recent phenomena: the reversal of false rape convictions based on DNA evidence and the advent of big-media rape trials involving various celebrities. After establishing this groundwork, I will turn to three separate issues of ethics and evidence that arise regularly in rape trials: (1) naming the victim, (2) shielding the victim's sexual history, and (3) civil settlements of rape charges. I will use the fairly recent case of Kobe Bryant, a famous basketball player accused of rape, to illustrate the evidence and ethical issues in all three of these discrete categories.My examination of the intersection between evidence law and ethics in rape trials demonstrates the limits of the law to effectuate practical change or to transcend, let alone improve, social attitudes. Many have observed that the legal solutions to problems inherent in rape trials, such as rape shield laws and rules against disclosing victims' names, have had only limited effect. Because the issues raised here implicate entrenched social attitudes, legal solutions are bound to be incomplete. Such beliefs are filtered through a legal system that is structured around competition and legal gamesmanship. Therefore, the defense lawyer's strategy must be understood within the context of social beliefs about rape as transmitted by the adversary system. We can limit evidence, but we cannot legislate attitudes, and playing upon prejudices, particularly those of the American juror, is the trial attorney's bread and butter. Therefore, to analyze the role of evidence and ethics in a rape trial, we must understand rape myths and the cultural baggage that comes with our notions of rape. Also, we must analyze assumptions about victims and perpetrators, men and women, and the chaste and the deviant.
This article seeks to demonstrate two things. The first is that any discussion of free proof must be considered in the context of the fact-finding process as a whole. The second is that debates about free proof are only partly about epistemology, but become impassioned because they go to the core of the constitutional settlement: what is the justifiable basis on which the court, as an organ of the state, decides whether an individual (citizen) is telling the truth, and consequently whether the state should exercise its power to deprive an individual (citizen) of her liberty or property in some way. What this article does not seek to consider is the extent to which, or the manner in which, different stages in the evidence lifecycle should be free or constrained. It seeks solely to clarify the nature of the conceptual space within which that debate takes place.
This article challenges the widespread view that there is both a science and an art of medicine. Through examination of recent work in medical humanities --Jodi Halpern's From Detached Concern to Empathy (2001), Kathryn Montgomery's How Doctors Think (2006), and Rita Charon's Narrative Medicine (2006)--I argue that while a variety of epistemic techniques are important in medicine, it is not helpful to dichotomize them as "science" versus "art." I assess the epistemic strengths and weaknesses of narrative medicine, a recent exemplar of humanistic medicine.