Proof of Fact in Criminal Trials

COMMENTARY-CORRESPONDENCE 0 Forensic Science Society 1986 Proof of Fact in Criminal Trials From MARCUS STONE Sir: Until laboratories replace courts, insight into our present form of legal proof, and a degree of confidence in it, would not hamper some forensic scientists. One practitioner comments, ". . . the court must make up its mind. . . even though a scientific inquirer would have to conclude 'we just don't know'. The need for drastic reform is well-recognised but the realisation is still a long way off". [I]. Although scientists 'don't know' now, does this mean that some superior scientific method, introduced by "drastic reform" will, or will not, provide the answer? Until then, courts must continue to wrestle with factual decisions by traditional methods. A distinguished forensic scientist writes, reviewing my book Proof of Fact in Criminal Trials, "But surely. . . the criminal trial is a hypothetico- deductive process. The guilt of the accused is first hypothesised and then the evidence is produced. It is not so much a case of "Do the facts point to the guilt of the accused?" (i.e., induction) but rather, "How consistent are these facts, individually, with the hypothesis that the accused is guilty?" [2]. This view is refuted by law, logic and psychology. In law, the presumption of innocence is basic. A conviction founded on a hypothesis of guilt for testing, in a direction to a jury, would be automatically quashed on appeal. In deductive logic, premises and conclu- sions are linked by necessity, not any relationship of degree. To ask "How consistent are these facts. . . with the hypothesis. . .?" is to invoke prob- ability and inductive reasoning. Inference from circumstantial evidence is inductive. Cognitive psychology reveals a complex stream of non-deductive patterns and associations of ideas, conscious and unconscious. The reviewer shows foresight. "Perhaps Sheriff Stone would disagree with this". I do. References 1. Priston, Ann. A Forensic Scientist's Guide to the English Legal System. Part 3: Evidence. Journal of the Forensic Science Society 1985; 25: 415-424, p. 421.

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Transcript of Proof of Fact in Criminal Trials

COMMENTARY-CORRESPONDENCE 0 Forensic Science Society 1986

Proof of Fact in Criminal Trials

From MARCUS STONE

Sir: Until laboratories replace courts, insight into our present form of legal proof, and a degree of confidence in it, would not hamper some forensic scientists.

One practitioner comments, ". . . the court must make up its mind. . . even though a scientific inquirer would have to conclude 'we just don't know'. The need for drastic reform is well-recognised but the realisation is still a long way off". [I]. Although scientists 'don't know' now, does this mean that some superior scientific method, introduced by "drastic reform" will, or will not, provide the answer? Until then, courts must continue to wrestle with factual decisions by traditional methods.

A distinguished forensic scientist writes, reviewing my book Proof of Fact in Criminal Trials, "But surely. . . the criminal trial is a hypothetico- deductive process. The guilt of the accused is first hypothesised and then the evidence is produced. It is not so much a case of "Do the facts point to the guilt of the accused?" (i.e., induction) but rather, "How consistent are these facts, individually, with the hypothesis that the accused is guilty?" [2]. This view is refuted by law, logic and psychology.

In law, the presumption of innocence is basic. A conviction founded on a hypothesis of guilt for testing, in a direction to a jury, would be automatically quashed on appeal. In deductive logic, premises and conclu- sions are linked by necessity, not any relationship of degree. To ask "How consistent are these facts. . . with the hypothesis. . .?" is to invoke prob- ability and inductive reasoning. Inference from circumstantial evidence is inductive. Cognitive psychology reveals a complex stream of non-deductive patterns and associations of ideas, conscious and unconscious.

The reviewer shows foresight. "Perhaps Sheriff Stone would disagree with this".

I do.

References 1. Priston, Ann. A Forensic Scientist's Guide to the English Legal System. Part 3:

Evidence. Journal of the Forensic Science Society 1985; 25: 415-424, p. 421.

Page 2: Proof of Fact in Criminal Trials

2. Stone, Marcus. Proof of Fact in Criminal Trials. Edinburgh: W Green & Son, 1984, reviewed Journal of the Forensic Science Society 1986; 26: 156-157.

May 1986 Sheriff's Chambers Sheriff Court

Sheriffdom of Lothian and Borders at Linlithgow

Scotland EH49 7EQ