Category Archives: 09. Law and Liberty

A Brief Explication of Evidence v. Proof: Circumstantial Evidence

Evidence is a piece of information that may or may help constitute proof. For example, a video of someone running away from a bank that has been robbed constitutes evidence, but may not end up proving anything. The person could later be shown to have been running toward a toddler in danger of walking in front of a car.

Proof is demonstrated when a set of circumstantial evidence and testimony (as well as certain kinds of logical demonstrations) converge on a single interpretation. Of course, in the world of science, absolute proof of anything is rare. Thus, we will often focus on what line must be crossed in order to move from coincidence to proof.

What is it that “flips the switch” inside someone’s head to persuade them that one side of a question is more persuasive than another? Not absolutely proven, but more persuasive, especially in cases where each piece so-called evidence can be declared a coincidence?

Circumstantial evidence is often regarded as more powerful and persuasive than the testimony of a single eyewitness. For example, in criminal cases, if the circumstantial case (composed of a so-called coincidences) is powerful, it can overcome a single eyewitness.

— Suppose you tell jurors that a man is a murderer and you have one bit of evidence: The suspect is known to have worn Ferrigamo shoes, and the suspect wears Ferrigamo shoes. Of course, they would look at you funny.

— Suppose you tell jurors that a man is a murderer and you have one bit of evidence: The suspect was seen to be thin and tall, with long red hair. You say that the suspect is thin and tall, with long red hair. Again, they would not be convinced.

— Suppose you tell jurors that a man is a murderer and you have one bit of evidence: The suspect is known to have left the scene in a white ’65 Mustang with bald tires. They would still not be convinced, based on a single piece of evidence. It still could be a coincidence, because many people may fit that criterion.

But supposed you told the jurors that the murderer wore Ferrigamo shoes, was tall and thin with red hair, and drove a white ’65 Mustang with bald tires, and the suspect fits all of these criteria. Now you would have a case and have reason to ferret out more evidence.

Because circumstantial evidence is so persuasive when properly applied, others must find ways to weaken the circumstantial case. They do this by dividing up the coincidences and emphasizing the fact that there are only coincidences, attempting to keep people from seeing them all put together.

Circumstantial evidence works like the Pointillist painters did, someone like Seurat:

Is this dot on the canvas the image? No. How about this dot? No. How about this dot? No.

But once you have enough dots, the image emerges, and only someone with an agenda tries to argue against the obvious pattern that is forming.

Those who argue against a strong set of circumstantial evidence are like the defense team for the Rodney King police brutality trial. The defense lawyers tried to keep the jurors from applying the entire videotape of the beating. Instead, they slowed it down frame by frame, showing each officer swinging a baton and asking, “Is this single hit police brutality? No? How about this one? No? How about this one?” and so on.

When viewing circumstantial evidence, think in terms of the stronger case versus the weaker case. Beware of those who demand absolute proof. There is rarely any such thing.

This distinction is important, and the critical principle it embodies illuminates the differing methods of argument that lawyers, academics, reporters, and others bring to bear on various debates.

There are, essentially, two classes of advocates:

— On the one hand, advocates of absolutism who take a position, claim that it stands by default, and then advise that only absolute and convincing proof of the contrary will dissuade them from their position.

— On the other, advocates of relative merits who take no initial stand, weigh the relative strengths of competing arguments, and acknowledge when, in terms of reason and evidence, one argument or position is stronger than another, even when the stronger argument stands against the position they happen to favor.

The advocates of absolutism, when standing by a weaker position, tend to ignore those arguments that expose their own weaknesses and whenever possible, shift the focus to minor points that are only marginally relevant to the argument itself.

Such tactics include simply “forgetting” to mention the strongest of an opponent’s arguments, piling one red herring on another (overemphasizing lists of trivial data, for example), and discrediting circumstantial data (since each item can be isolated and dismissed as coincidence, without taking into account a mass of “coincidences” that tell a compelling story).

Beware of those who easily dismiss a pile of circumstantial evidence. Such evidence is what drives the scientific method.

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Partially adapted from my peer-reviewed article, “Shakespeare’s Knowledge of Law: A Journey through the History of the Argument.”

The Satan Maneuver

From my peer-reviewed article (in somewhat different form), “Shakespeare’s Knowledge of Law: A Journey through the History of the Argument”

Let me state clearly that I do not claim to prove that Shakespeare had a formal legal education. Instead, I claim that the argument favoring a formal legal education is significantly stronger than the argument against a formal legal education. This distinction is important, and the critical principle it embodies illuminates the differing methods of argument that lawyers and academics bring to bear on this debate. By “formal legal education” I mean a serious, long-term, and applied study of law, legal history, and legal philosophy while participating in associations and interactions with other students or masters of law, whether in one of the Inns of Court or in some other environment saturated with legal conversation.

For simplicity’s sake, I note two classes of advocates: on the one hand, advocates of absolutism, who take a position, claim that it stands by default, and then advise that only absolute and convincing proof of the contrary will dissuade them from their position; and on the other hand, advocates of relative merits, who take no initial stand, who weigh the relative strengths of competing arguments, and who acknowledge when, in terms of reason and evidence, one argument or position is stronger than another, even acknowledging when a stronger argument stands against the position they hold.

In examining the history of this debate, I have found advocates on both sides deserving of each appellation. The advocates of absolutism, when standing by a weaker position, tend to avoid the stronger arguments of their opponents. Instead, they tend to focus on weaker arguments, using tactics to shift the focus away from arguments that expose their own weaknesses. Such tactics can include a simple failure to mention the strongest of an opponent’s arguments, a piling on of red herrings (overemphasizing with a list a trivial data, for example), a discrediting of circumstantial data (since each item can be isolated and dismissed as coincidence, without taking into account a mass of “coincidences” that tell a compelling story), and a tactic I call the Satan Maneuver.

I first noticed the Satan Maneuver some years ago while watching a televised interview of an evangelical minister. The minister claimed that the earth was created 6,000 years ago. The interviewer asked the minister about scientific discoveries of fossils that were undoubtedly millions of years old. How could the minister account for those age-old fossils? The minister replied simply, “Satan put them there.”

We can imagine the nonplussed look on the face of the interviewer. Where could he go from there? It is important to understand what the minister accomplished with this answer. He had introduced a magical explanation into a forum that was assumed, up to that point, to be one where arguments were supported by evidence and reason. By introducing this Satan Maneuver, the minister destroyed that forum and replaced it with one that precluded, by its very nature, any argument based on evidence and reason.

In fairness to the minister, he may very well constantly dwell in a forum based on magic and faith, with no desire to ever be involved in a forum of evidence and reason. However, scholars and others who enter into a debate that implicitly promises a forum of evidence and reason have an obligation to avoid any introduction of any form of Satan Maneuver—that is, any explanation that introduces a magical explanatory element that negates arguing from evidence and reason, especially when they become uncomfortable with evidence and arguments that threaten to weaken or overthrow their closely held arguments or positions.

The Satan Maneuver appears in Shakespeare studies. When confronted with internal evidence that Shakespeare may have had a high-level education, whether in law or the classics, some scholars produce a rabbit out of the hat by falling back on Shakespeare’s genius, or some other form of magical aptitude based on nothing but sheer speculation. For example, A. L. Rowse in his Shakespeare The Man explains Shakespeare’s comprehensive and wide-ranging experience with classical and contemporary literature and history thus: “He had a marvellous capacity from the outset for making a little go a long way; his real historical reading came later—he was very much a reading man, and he read quickly.” How he has grasped Shakespeare’s “marvellous capacity” or knows his reading ability, Rowse does not say. But his meaning is clear; Shakespeare gleaned his incredible wealth of knowledge by having a capacious mind that magically (through the mystery of “genius”) grasped knowledge quickly and easily. British Shakespearean scholar Allardyce Nicoll makes a similar claim in his book Shakespeare: “In the wonder of his genius he was able to grasp in lightning speed what could be attained only after dull years of work by ordinary minds.” Thus can scholars magically explain away the lack of high education and the absence of leisure that would seem to be needed for a writer of Shakespeare’s accomplishments to refine his skills and accommodate the range and depth of his accomplishments. By introducing such statements, these scholars destroy the possibility of presenting arguments in favor of a university education, or the kind of experience and access that comes with the aristocratic and noble classes. The forum of reason, argument, and evidence dissolves. Genius in the form of a quick mind and capacious memory explains all, the magical ability to immediately and photographically apprehend everything, sans education, sans experience, merely from reading books.

Another form of the Satan Maneuver is the “Universal Tavern of Second-Hand Knowledge.” When confronted with the enigma of Shakespeare’s knowledge of law, Italy, foreign languages, or anything else that could possibly require unusual study or physical access, some may argue that “Shakespeare would have picked such things up by visiting a tavern and querying travelers or lawyers or multilingual scholars or…” fill-in-the-blank. Again, such an argument based on the second-hand acquisition of knowledge would harm any ability to rely on evidence and reason to make a case that the plays show the kind of knowledge that would require direct experience.

Most scholars do not explicitly invoke the Satan Maneuver. However, when launching an attempt to evaluate the dramatist’s knowledge as revealed in the poems and plays, all participants who intend to argue in a forum based on evidence and reason must avoid any form of Satan Maneuver and be called to account when they do. Any worthwhile discussion of Shakespeare’s education, training, and experience must be conducted outside the magical specter of his “genius” or any supposed extraordinary “aptitude.” Certainly there is merit in using Shakespeare’s genius to discuss how he applied his knowledge and craft. There is something concrete (the text) to use for comparison. But that is quite apart from using his genius to explain how he acquired his knowledge and craft.