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%

+ 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 and,or !urors, are therefore su""osed to be based on rational considerations% hether !udges and,or !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 have ha""ened( & call this the 5&5'S&S% + $orld is built in discourse of $hich it is claimed that this $orld mimics the reality% 6% 4ased on the mimesis a legal evaluation,7ualification 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 <'8+< +CT&/N is formed%

0% evidence

3% mimesis

6% diegesis

;% legal action

e#tremely sim"lified schema of !udicial reasoning

+ -too. sim"le e#am"le is the follo$ing%

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!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 legal reasoning

a% &n most modern la$ systems the ste" from 6 to ; is su""osed to be based on the established =ule of <a$% Theoretically this ste" is 9un"roblematic:% The

<a$ s"ecifies the "ossible actions attached to the legally 7ualified facts( the !udge ma)es a choice bet$een the "ossible actions% >+ccounting for a s"ecific choice out of several o"tions, may re7uire a ne$ line of reasoning in $hich the circumstances and "ersonality of a "arty are established -mimesis. and evaluated -diegesis. of the basis of evidence?% b% &n modern legal systems the ste" from 3 to 6 is su""osed to be based on the established =ule of <a$ too, in a format of <'8+< =U<'S +N2 P=&NC&P<'S that relate -mimetic. characteristics to legal evaluative -diegetic. inter"retations @ legal 7ualifications% '#am"le: 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% <egal rules are dominantly conce"tuali*ed as relations bet$een a set of descri"tive generali*ed "ro"ositions and a legal 7ualification: bag @ good, "ulling @ ta)ing B by force, out of the hands @ in the "ossession B from his "erson% >TH' ST'P C=/5 TH' SP'C&C&C '1'NT T/ TH' 8'N'=+<&D'2 2'SC=&PT&/N &S &N
<'8+< TH'/=A /CT'N 9N'8<'CT'2: /= SU4SU5'2 UN2'= TH' ST'P C=/5 T/

3( TH&S &S

=/N8%?

c% The ste" from 0 to 3 is su""osed to be based on '1&2'NT&+< =U<'S% These rules differ from system to system% &n "rocedural la$ usually a highly abstract, closed set of generali*ed 9rules: is s"ecified( in "ractice these need to be transformed in a more s"ecific, therefore o"en set of generali*ed 9rules:, such as: $hen a $itness under oath declares that he sa$ X "ull a bag out of the hands of A, generally it is the case that X "ulled a bag out of the hands of A% This diagram E & claim F reflects uni7uely the ideologically "referred se7uence% The !udge or !ury ta)es notice of evidence( evaluates each "iece inde"endently( establishes inde"endents facts( 9finds: a""licable rules( is more or less 9confronted: $ith the 9deductive: outcome of the a""lication( acce"ts the outcome as the right legal action%

The to ic 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 $ro+ a (set o$) ro ositions to a (set o$) ro ositions4 or 50 whether in this art o$ the reasonin# &holistic narrati6es' inter6ene0

T$o "rototy"ical models

Cirst & 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 form If 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?

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 "lausibility,credibility 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 reasoning here 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 "lausibility,credibility of all elements is established in connection $ith each other and the $hole -9holistic:.% &n the literature $e find many names for these -or almost similar. "rototy"ical e#tremes% Cloris 4e# -3HHI. uses the -some$hat confusing. term arguments for model + and stories for model 4% agenaar et al% 0II6 use narratives for model 4%

J!us -Stories at trial% 2eborah Charles Publications, 3H0H. 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 the term propositional for model +, narrative for 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% Cor 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%

evidence

mimesis B diegesis in hy"othetical narrative

abductive evaluation of a narrative in the light of evidence

legal 7ualification of the narrative elements that are re7uired to a""ly the legal rule

legal action

sim"lified schema of model 4 of legal reasoning

> &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 $ith ideology% The format of the ste" from 6 to ; is the "referred format under the 'nlightenment idea of the =ule of <a$ in $hich the !udge is Lthe mouth of the legislatorM -5ontes7uieu.% &t is the format of an established rule: If A, B, C, then legal action X( then the !udge 9finds: a, b, c( then the !udge concludes #% There is a strong tendency to claim that this format should -and can. also be a""lied on the ste" from 3 to 6 and even from 0 to 3% Therefore the discourse format according to $hich !udges "resent their !ustification, after$ards -"ost hoc., follo$s model + $ith the suggestion of atomistic "ro"ositions,

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 -3H00., The Unchangeable Judicial Cormats% &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, %<% N 5% S% Celdman -0IO0., =econstructing reality in the courtroom% <ondon: Tavistoc)% So, in this debate "osition it is claimed that the after$ards $ritten !ustification does not reflect the "rocess of the formation of !udicial convictions% &n criminal !ustice every no$ and then mistrials are discovered and need an e#"lanation% Ho$ can it be that $rong convictions are formedP This has stimulated "sychological research% &n this line of research it is found that reasoning is often not from evidence to mimesis, but form a hy"othesis about the mimesis to evidence% Com"are for this "osition among others: agenaar, %+%, P%J% van Jo""en N H%C%5% Crombach -0II6., +nchored narratives: heatsheaf% the "sychology of criminal case evidence% Hemel Hem"stead: Harvester

&n sum: the im"ortance of the debate is Q theoretical/ideological @ $hat is the im"act of the individuality of the !udge,!ury in the decisionFma)ing "rocessP +s $ell as Q practical/psychological @ $hat causes for e#am"le mistrials on the level of the establishment of the facts%
5odel + is the ideologically "referred model -the !udge is the mouth of the legislator.% & re"eat: The !udge or !ury ta)es notice of evidence( evaluates each "iece inde"endently( establishes inde"endents facts( 9finds: a""licable rules( is more or less 9confronted: $ith the 9deductive: outcome of the a""lication( acce"ts the outcome as the right legal action%

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 N Celdman, J!us, but most of all the $or) of Pennington, N% 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 $on the battle%
The second reading is harder than the first reading, sim"ly because the rhetorical goal of the author is to hide the narrative abduction "rocess% That does not mean that it is im"ossible% &t is an im"ortant s)ill of the "rofessional legal scholar to develo" this attitude to$ards the reading of !uris"rudence%

/ne e#am"le
This is a te#t in $hich the !udge presents a set of ordered "ro"ositions to !ustify his choice 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? Curthermore, 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

$ith a hammer% This bro)e her $rist% >R? Cinally 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%
he has repeatedly assaulted family members he has bitten his wife he has kicked his son he hit his daughter with a tool on her fingers he broke his daughters wrist a detention of the given length is appropriate he terrorized his family for a large number of years he has caused his family terrifying moments during a long period

he threatened his family with arson he stored jerrycans with petrol in the basement he sometimes locked the door

standpoint

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

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%

he has repeatedly assaulted family members he has bitten his wife he has kicked his son he hit his daughter with a tool on her fingers he broke his daughters wrist

a specific narrative of a man who caused his family terrifying moments for a large number of years

a detention of the given length is appropriate

standpoint

he threatened his family with arson he stored jerrycans with petrol in the basement 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%

Crom 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 !udge:s verbal te#t is relevant too because it reflects the "rocess of the formation of the !udicial convinctions about 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%