Convictions in Judicial Procedures

8/13/2019 Convictions in Judicial Procedures

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CONVICTIONS IN JUDICIAL PROCEDURES

Paul van den Hoven

Xiamen School of Communication and Journalism

Tilburg University, The Netherlands

Utrecht University, The Netherlands

Thesis, to be detailed and illustrated in the lecture:

ritten !udicial decisions should be a""roached, read, understood,

evaluated, and taught as:

com"le# arguments, consisting of logically connected, atomistic

"ro"ositions,

but at the same time as:

com"le# arguments, grounded u"on some$hat strangely "resented

narratives%

The last a""roach is often neglected%

& claim that this thesis is valid for decisions in the 'uro"ean continental tradition% &t

seems also valid in the common la$ tradition% & $onder $hat its validity may be in the

modern Chinese tradition%

The im"act of the thesis is substantial, because:

ideologically the second reading is often su""ressed, because the discourse

format e#clusively suggests the first reading(

"ractically the first reading is often ta)en as a reflection of the actual !udicial

decision ma)ing "rocess, $hile in fact the second reading is much closer to

that "rocess(

the su""ressed second reading is obviously closer to the evaluative ga*e of lay

"eo"le( ac)no$ledging its legitimacy and su""orting this reading more may

increase the understanding of lay "eo"le for !udicial "ractice%


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+ model of the forming of !udicial convictions

Judicial "rocedures are su""osed to be rational "rocedures% Convictions in !udicial

"rocedures, es"ecially convictions of !udges andor !urors, are therefore su""osed to

be based on rational considerations% hether !udges andor !urors are obliged to

account for their considerations "ublicly or not -usually !udges are and !urors are not.,

$e su""ose that their considerations have the form of a detailed, balanced reasoning%

/ne can diagram this !udicial reasoning in an e#tremely sim"lified $ay%

0% Judicial reasoning starts $ith a set of established facts that $e call '1&2'NC'%

3% 4ased on the evidence a reconstruction is made of $hat is believed to haveha""ened( & call this the 5&5'S&S% + $orld is built in discourse of $hich it is

claimed that this $orld mimicsthe reality%

6% 4ased on the mimesis a legal evaluation7ualification is given, $hich & call the

2&'8'S&S% + 9mental voice inter"rets the mimesis and attaches evaluative

7ualifications to it%

;% 4ased on the diegesis a stand"oint about a


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0% evidence:

two witnesses

declare that

they saw X

!ll the "a#

o!t o$ the hands

o$ % and r!n

away with it

3% mimesis

X

!lled the "a#

o!t o$ the hands

o$ % and ran

away with it

6% diegesis

X

&ro""ed'

(le#al de$inition)

% o$ his*her "a#

;% legal action

% will "e

sentenced with

S

e#tremely sim"lified schema of !udicial reasoning

/ne can reflect on the $arranting "rinci"les underlying each ste"%

0% evidence:

two witnesses

declare that

they saw X

!ll the "a#

o!t o$ the hands

o$ % and r!naway with it

3% mimesis

X

!lled the "a#

o!t o$ the hands

o$ % and ran

away with it

6% diegesis

X

&ro""ed'

(le#al de$inition)

% o$ his*her "a#

;% legal action

% will "e

sentenced with

S

e#tremely sim"lified schema of legal reasoning

a% &n most modern la$ systems the ste" from 6 to ; is su""osed to be based on

the established =ule of


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The toic o$ this lect!re is the de"ate a"o!t the ste $ro+ , to - and the

(ne#lected) de"ate a"o!t the #enerali.ation in the ste $ro+ - to /0 The 1!estion

is2

A0 whether this art o$ the reasonin# has to "e reconstr!cted as a r!le3

#!ided in$erence $ro+ a (set o$) roositions to a (set o$) roositions4 or

50 whether in this art o$ the reasonin# &holistic narrati6es' inter6ene0

T$o "rototy"ical models

irst & introduce the t$o "rototy"ical models that the debate commutes bet$een%

& introduce the models as a simulation of the "rocess of forming convictions -so the

9conte#t of discovery.7 in the conte#t of !ustification -after$ards., every decision can

be "resented in the first, "ro"ositional format%

Pro"ositional model +:

0% Pieces of evidence are "resented and described as "ro"ositions

3% 8enerali*ed evidence rules of a formIf a, b, c then it is established as a fact

that [fact 1], are a""lied% >/bviously these rules can be com"le# and

nuanced%?

6% Pieces of evidence are subsumed under evidence rules and the legal facts are

established as a set of atomistic facts%

;% 8enerali*ed 7ualification rules -usually codified legal rules. are a""lied% >Such

as: The -a. ta)ing of money or goods -b. in the "ossession of another, -c. from

his or her "erson or immediate "resence, -d. by force or intimidation is

7ualified as =/44'=A%?

G% The established atomistic facts are used to fill in the abstract conditions of the

a""licable legal rules, $hich results in legally 7ualified facts% >Such as: X

committed robbery?


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The characteristics of this model are that atomistic pieces of evidence are the

point of departure, resulting in atomistic facts% 4y +T/5&ST&C$e mean that the

"lausibilitycredibility of all elements is established inde"endently from each

other% e have already seen this model in the initial diagram%

Narrative model 4:

0% Pieces of evidence, often in relation to each other, generate hy"otheses

about holistic narratives% + narrative is a causal chain of events, basically

starting $ith motives of an agent that lead to goals that lead to actions that

lead to conse7uences, or coherently related com"le#es of such chains%

3% Certain narratives -often only one. get dominance by means of abductive

reasoning $ith the evidence%Abductive reasoninghere means that from the

narrative it is "redicted $hat evidence one $ould e#"ect to be available,

$hat evidence should not be detectable% &f the "redictions turn out to be

right, the narrative gets a high "lausibility%

6% The dominant narrative 9generates established facts%

;% 8enerali*ed 7ualification rules -usually codified legal rules. are a""lied%

>Such as: The -a. ta)ing of money or goods -b. in the "ossession of

another, -c. from his or her "erson or immediate "resence, -d. by force or

intimidation is 7ualified as =/44'=A%

G% The generated established facts are used to fill in the abstract conditions of

the a""licable legal rules, $hich results in legally 7ualified facts% >Such as:

X committed robbery?%

The characteristics of this model are that intuitively plausible narratives are the

point of departure, resulting in coherently generated facts% 4y coherently $e mean

that the "lausibilitycredibility of all elements is established in connection $ith

each other and the $hole -9holistic.%

&n the literature $e find many names for these -or almost similar. "rototy"ical

e#tremes%

loris 4e# -3I. uses the -some$hat confusing. term argumentsfor model +

andstoriesfor model 4%

agenaar et al% 0II6 use narrativesfor model 4%


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!us -Stories at trial% 2eborah Charles Publications, 30. has an -im"licit.

broad conce"t of argumentation and s"ea)s about model 4 as narrative

arguments, not using a s"ecific term for model +%

Connecting to an informal logic a""roach to argument theory, & tend to use thetermpropositionalfor model +, narrativefor model 4, because & $ant to

reserve the terms argumentation, arguments, argumentative for the

e#ternali*ed discourse in $hich a "rotagonist attem"ts to !ustify a stand"oint%

&n model 4:

0% the narrative combines usually mimesis and diegesis, as $e )no$ from

narrative theory

3% the evidence "recedes the narrative only to generate hy"otheses but further

follo$s the narrative, giving it a "lausibility in a "rocess of abductive

reasoning%

6% the facts fill in the abstract conditions of the legal 7ualification rules,

$ithin the conte#t of the narrative as a $hole% or e#am"le: to determine

$hether 9out of the hands 7ualifies as 9in the "ossession B from his

"erson, the entire narrative is ta)en into account: lady $al)s 7uietly on the

street, young man runs from behind her, "ulls the bag out of her hands,

runs a$ay $ith it% Com"are $ith: a blind beggar sits $ith outstretched

arm, a coin on his hand% + "asserFby secretly ta)es the coin out of the

hand% Perha"s one $ould decide that no$ 9out of the hand does not

7ualify as 9from the "erson and maybe the act as a $hole does not 7ualify

as 9robbery%

&f $e em"hasi*e model 4 in a diagram, this may loo) as follo$s%


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evidence

mimesis

B

diegesis

in

hy"othetical

narrative

abductive

evaluation of

a narrative

in the light of

evidence

legal action

sim"lified schema of model 4 of legal reasoning

legal

7ualification

of the

narrative

elements

that are

re7uired to

a""ly the legal

rule

>

&t is 7uite easy to imagine ho$ a model 4 "rocess can be 9converted after$ards into a

discourse that uni7uely re"resents model +% &n modern 'uro"ean tradition this is

conse7uently done% So our initial diagram reflects:

the structure of the !ustifying discourse in most modern legal traditions, as

$ell as

uni7uely our conviction formation model +K

The double bac)ground of this debate

The bac)ground of this debate is too com"le# to deal $ith in this lecture% Therefore &

only indicate t$o main lines%

/n the one hand there is a strong relation $ith ideology% The format of the

ste" from 6 to ; is the "referred format under the 'nlightenment idea of the

=ule of


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subsumed under a conditional rule% Therefore often it is naively assumed that

their reasoning $hen forming their convictions also follo$s this model%

Com"are: Hoven, P% van den -300., The Unchangeable Judicial ormats% &n:

+rgumentation 3G, "% ;IIFG00%

Ho$ever, es"ecially in criminal !ustice it has been sho$n that this

"ro"ositional model does not cover the formation of convictions in the ste"

form 0 to 3 -and, as & claim, it also does not cover the generali*ation in the ste"

form 3 to 6.%

Com"are for this "osition among others:

4ennett, %


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5odel 4 ho$ever E as $e no$ )no$ from research on data gained from the actual

"rocesses in the court room -com"are 4ennett eldman, !us, but most of all the

$or) of Pennington, N% =% Hastie. E reflects much closer the "rocess of the

formation of !udicial convictions%

Thesis:

ritten !udicial decisions should be a""roached, read, understood,

evaluated, and taught as:

com"le# arguments, consisting of logically connected, atomistic

"ro"ositions,

but at the same time as:

com"le# arguments, grounded u"on some$hat strangely "resented

narratives that $on the battle%

The second reading is harder than the first reading, sim"ly because the rhetorical goal

of the author is to hide the narrative abduction "rocess% That does not mean that it isim"ossible% &t is an im"ortant s)ill of the "rofessional legal scholar to develo" this

attitude to$ards the reading of !uris"rudence%

/ne e#am"le

This is a te#t in $hich the !udgepresentsa set of ordered "ro"ositions to !ustify hischoice of a s"ecific sanction% &t is a translation from 2utch into 'nglish%

+ccused has terrori*ed his family for a large number of years% He has used dis"ro"ortionate

violence as an instrument to maintain authority in the family% +mong other things he has

re"eatedly assaulted family members E regardless of their age E by beating them, also $ith a

belt, and )ic)ing them% He also has bitten his $ife during a scrimmage $hich resulted in a bite

$ound% 2uring a fight he has )ic)ed his son, hit him and gave him a hard butt of the head%

>R? urthermore, the accused has hit his daughter once $ith a tool on her fingers $hile her

fingers rested on the table% /n another occasion he has t$isted her $rist and thereu"on hit it


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$ith a hammer% This bro)e her $rist% >R? inally the accused has threatened his family

re"eatedly $ith arson% To enforce his threats he stored !errycans $ith "etrol in the basement%

2uring such a threat he sometimes loc)ed the door% Never his $ife and children )ne$ $hether

he $as going to "ut his threats into effect% 4ecause of this he has caused his family terrifying

moments for a long "eriod% >R? Considering the above the court deems a >R? detention of

the follo$ing length a""ro"riate

/n the one hand this te#t should be read, understood and evaluated according to

model +% This is necessary to evaluate $hether for e#am"le all statements about

facts are sufficiently and correctly bac)ed u" by evidence form the official files%

+""lying uni7uely model +, $e may reconstruct the argumentation as a set of

logically connected "ro"ositions as follo$s%

a detention of the given lengthis appropriate

he has repeatedly

assaulted family members

standpoint

he has kicked his son

he has bitten his wife

he hit his daughter

with a tool on her fingers

he broke his daughters wrist

he stored jerrycans with petrol

in the basement

he threatened his family with arson

he has caused his family terrifying

moments during a long period

he terrorized his family

for a large number of years

he sometimes locked the door

norm? norm?

To discover the su""ressed and hidden reading according to model 4, one should

focus on the "osition of the first and the one but last utterance%

+ccused has terrori*ed his family for a large number of years

4ecause of this he has caused his family terrifying moments for a long "eriod%

'vidently there is not an a "riori established norm that guides the inference from the

facts to these utterances% There is also not a "lausible 9rule of thumb( the facts

mentioned are serious, but do not !ustify the elements: a large number of years, for a


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long "eriod, in relation to: terrori*e% The !udge only sums u" a limited number of

-serious. incidents%

That may be sur"rising in a carefully $ritten formal decision% &t is ho$ever less

sur"rising if $e a""ly model 4% +ctive is a narrative schema of long lasting domestic

terrori*ing% The mentioned evidential facts are 9anchor "oints -terminology of

agenaar et al%. that abductively 9illustrate the "lausibility of this narrative%

+ccording to model 4 $e can reconstruct the te#t as follo$s%

a detention of the given length

is appropriate

standpoint

a specific narrative

of a man who caused his family

terrifying moments

for a large number of years

he has repeatedly

assaulted family members

he has kicked his son

he has bitten his wife

he hit his daughter

with a tool on her fingers

he broke his daughters wrist

he stored jerrycans with petrol

in the basement

he threatened his family with arson

he sometimes locked the door

background

The dar)est color indicates foregrounded elements that im"ly a bac)ground, to be

inferred%

&n this reading $e read the e#"ressed descri"tions as a "lot, a foreground that evo)es a

bac)ground story filling in a large number of years $ith a continuous "rocess of terror

and su""ression% The inter"reter has to fill in this bac)ground% That does not mean

that he has to ma)e u" all )ind of other, not formally "roven incidents% &t means that

he has to 9read the "ro"ositions as a story that covers and characteri*es a series of

years%

This e#am"le illustrates that both stages in the argumentative reconstruction need to

be recogni*ed as relevant stages%


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rom a formal legal "oint of vie$ the list of "ro"ositions is relevant: each of

them needs to follo$ from the "resented evidence%

Ho$ever the im"lied in the bac)ground in this !udges verbal te#t is relevant

too because it reflects the "rocess of the formation of the !udicial convinctionsabout the right sanction% &t is clear that the utterances in the te#t of the !udge

are meant to re"resent a story that is much more than only the 9foregrounded

events%

The utterances in a !udicial decision are not only a set of "ro"ositions,

related to the stand"oint by an im"licit argument that has a form L&f

"ro"osition 0 to N, then it is reasonable to hold stand"oint SM% The

utterances are at the same moment a "lot that should evo)e a story that

relates to the stand"oint by an im"licit argument that has a form L/n the

basis of this story it is reasonable to hold stand"oint SM%

N%4% &n this lecture & did not discuss the ste" from 3 to 6 in model +% 5y thesis in the

debate is that a legally 7ualifying rule is understood @ gets it meaning:

not only as a result of a com"osition of "ro"ositions, but

mainly by means of a set of attached "rototy"ical narratives%

Convictions in Judicial Procedures

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