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.
|Journal||International Commentary on Evidence|
|State||Published - 2006|
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