6/28/2018 09:26

Forensic Epistemology

Back in deepest February, which this year was 2 springs, an autumn, and a second winter ago, I was called upon to sit on a jury. Now the seasons have spun around enough to get back into synchrony with the calendar and it is full sunshine, 90°F, humid, lazy summer again and I, expressing my full humanity, am thinking back to the dark, windy, too cold to walk a mile safely winter of civil court with nostaligic illusions.

Truly the February weather was terrible. Truly my daily schedule for sleep and nourishment was disrupted throughout the week. Truly this burden was shared with the high school students I helped each Tuesday. Then again, during proceedings there was little cause to step out of the shelter of the courthouse, we were fêted to doughnuts and other treats, and the students had a reason to ask me questions about how the courts work.

Alas, this example suggests that despite continuing efforts by the judge the court did not work well. The matter should never have been brought before the court. I can't say "the case" because there was no case. The plaintiffs' lawyer should have been trained to discriminate between matters such as this one and a plausible case. In our system we assume that lawyers will learn such discrimination by facing large financial losses for taking unwinnable cases on contingent fee. ("No fee unless you win!") This is an inefficient way of addressing the selection of claims and, I suspect, contributes to the enormous fees lawyers charge when they do manage to pick a winning case.

Once arguments began, we the jury were poorly informed as to what matters of fact were in dispute. We were told that much was not in dispute. At the end of the trial, instructions were issued to the jury which at last defined the questions we were to decide. A more efficient method would define what questions were in dispute and what agreed truth was presented to give us the context of the dispute. In fact, the lawyers disputed among themselves what was in dispute even as the trial was going on.

In general a jury is not permitted to go back and review the testimony after learning what precisely is in dispute; instead the jury must decide based on the testimony which seemed important enough to take note of at the time it was given. This is inherently inefficient and prone to error since a juror may discount the significance of a point which later proves pivotal.

How could we do better? The essence of a trial is a determination of what is known and what can be believed, along with a dash of reasoning about whether what is believed to be true is sufficient to conclude that a defendent is negligent (as in our case), or liable, or guilty (in a criminal case). A jury trial is, in other words, an exercise in epistemology and logic. But there is no epistemologist or logician involved.

I'd be the first to observe that philosophy in a vacuum is vacuous. (Of course, I'll never be first; others have made the observation in so many ways before I was ever born.) But philosophy in the service of civil society is something else. The benefit which epistemology or logic can bring to the rest of us is thinking clearly. A forensic philosopher would be a court officer representing society's interest in clarity and in avoiding muddled argument. Surely society has such an interest! It is unreasonable to expect the lawyers to take on the role; representing the whole of society would be in conflict with the job of representing specific individuals. Besides, we need to have the lawyers steeped in other questions, such as what the law actually says and how what the law says has been interpretted in the past.

So I propose the position of forensic logician/epistemologist be attached to every trial court. The duties would be to review each case with the lawyers and judge, to establish what is agreed and what is in dispute, and to clarify what case which must be made to the jury in order to prevail at trial. The position should carry the authority to identify on the record any claims which are so unsupported that a juror could not be justified in believing them and arguments which are not germane to the matter at issue.

In actual reality my suggestion is not likely to be taken up.