SEVEN Accepting the Truth of a Story about the Facts of a Criminal Case

One task in legal decision making is to decide about the facts of a case on the basis of the available evidence. This task is not always easy 1 ; often the evidence in a case points in different directions, for example, when witnesses contradict each other. Determining what exactly can be concluded from the evidence is also not an easy or trivial task. For instance, when an accused’s footprints are found on the scene of the crime one is tempted to assume that the accused has committed the crime, while the footprints by themselves only point in the direction of the accused being present. Reasoning about the facts of a case has been studied in several disciplines. For example, in the psychology of law Crombag, Van Koppen and Wagenaar have proposed the anchored narratives theory (1992, 1994; 1993): legal decisions about the facts of a case are analyzed in terms of structured stories anchored in common knowledge. This research raised a significant amount of discussion, both among legal professionals in the Netherlands and among evidence theorists. The debate in the legal profession was not a surprise, as it was one of the goals of the authors. Their style, described as ‘in some respects closer to ‘higher journalism’ than to ‘scientific’ publications’ (Twining 1995, 109), was intentionally provocative as Crombag, Van Koppen and Wagenaar aimed at exposing a failure of the legal system: they argue that too often errors occur when deciding about the facts in criminal cases. Their work can be regarded as a form of social criticism in that it aims to reduce the number of miscarriages of justice, or ‘dubious cases’ as they call them. Perhaps somewhat more of a surprise was the critical albeit civilized reception of the anchored narratives theory among evidence theorists (e.g., Twining 1995, Den Boer 1995). Among the points of criticism raised were: an imprecise use of terminology, especially concerning the central notions of story and argument (Twining 1995, 109); the treatment of pieces of evidence as a story instead of as a means of argument (Twining 1995, 110); the lack of distinction between descriptive and prescriptive goals (Twining 1995, 108; Den Boer 1995, 328-9), exemplified by the lack of distinction between empirical generalisations and prescriptive rules; the presentation of too simple, over-generalized universal rules of evidence (Twining 1995, 113); and an unclear role of on the one hand commonsense generic beliefs and on the other commonsense knowledge of scenarios (Den Boer 1995, 334). 2