WHEN TO WELCOME GREEKS BEARING GIFTS 1 ARISTOTLE AND THE RULES OF EVIDENCE 2

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1 WHEN TO WELCOME GREEKS BEARING GIFTS 1 ARISTOTLE AND THE RULES OF EVIDENCE 2 By Fred A. Simpson and Deborah J. Selden Be not deceived by Philistines who credit the wisdom of Wigmore or his English predecessors with first articulating principles underlying the modern rules of evidence. Nay, verily, it was Aristotle who first identified and systemized those principles. More than 2,300 years ago, Aristotle saw how truth often went unrecognized when overwhelmed by forces of artful persuasion - rhetoric. Believing that good rhetoric was based on objective truth, that is what happens usually, Aristotle set out to define rhetoric. 3 Basing his work on earlier philosophers, including his old teacher, Plato, Aristotle attacked the problem by describing, categorizing, and organizing the anatomy of argument and persuasive techniques in his work Rhetoric. 4 Of course, later philosophers and writers refined his ideas, but Aristotle s work is still the cornerstone of the rules that govern the presentation of evidence and persuasive techniques in today s courtrooms. Western Jurisprudence demands that judges of fact and / or law base their findings almost exclusively on objective evidence and reasoned argument presented in the courtroom. To this end, the judge and jury may only hear relevant evidence that is more probative than prejudicial. To ensure fairness in the decision making process, evidence even if is relevant to the issue at hand should not be permitted to unduly arouse passions in the finder of fact or law. Stated yet another way, the basic principle behind the rules of evidence is this -- justice demands that, even if evidence is relevant, it must be excluded if its probative value is 1 With humble apologies to Virgil. See VIRGIL. THE AENEID 33 (Rolfe Humphries trans., Scribner, 1953). ( I fear the Greeks, even when bringing presents. ) 2 References to The Rules of Evidence indicate both Federal and Texas rules. 3 THOMAS CONLEY, RHETORIC IN THE EUROPEAN TRADITION 16 (1990) 4 ARISTOTLE, THE ART OF RHETORIC (H.C. Lawson - Tancred trans. Penguin Books 1991). We also recommend: Aristotle, Rhetoric, (W. Rhys Roberts trans., Friedrich Solmen ed.) in THE RHETORICAL TRADITION: READINGS FROM CLASSICAL TIMES TO THE PRESENT 151 (Patricia Bizzell et al. eds., St Martin s Press 1990). 1 of 6

2 overwhelmed by any unreasonable prejudicial effect such as prejudice, pity, anger, or similar emotions. Violation of this rule warps the carpenter s measuring stick. 5 It causes the judge and / or jury to make its decision, not on reasoned, considered, objective essential facts, but on persuasive outside influences that may have nothing to do with the issue under consideration. When Aristotle described and catalogued rhetorical techniques and proofs, he identified factors other than the bare facts could persuade a judge. Lawyers will find Aristotle s Rhetoric very helpful in plumbing the logic and psychology behind the intricacies of the rules of evidence when trying to determine why a rule allows some piece of evidence, but prohibits it if offered in a different format. The advocate may even find new, helpful techniques in his descriptions of the various methods and means of getting evidence before those all-important decision makers. What is rhetoric? Aristotle defined rhetoric as the faculty of discovering all the available means of persuasion in any given situation. 6 In its legal application, however, rhetoric is the discipline of spoken or written language used in the persuasion of the finder of fact or law. 7 Medieval minds thought that knowledge could be gained by studying the trivium: grammar, logic and rhetoric. 8 The field of rhetoric is usually described as consisting of three different types of communication: epideictic (ceremonial or laudatory), deliberative, and judicial. 9 In the practice of law, we primarily focus on the latter two forms. What is deliberative rhetoric? When we think of speeches, we usually think of deliberative rhetoric. It is speech that exhorts or dissuades its audience and, if successful, will persuade the audience to adopt the speaker s point of view. 10 Contemporary audiences are most 5 Id. 6 Id. at EDWARD J. CORBETT, CLASSICAL RHETORIC FOR THE MODERN STUDENT, 3 (Oxford University Press 2d ed. 1971). 8 CORBETT at RICHARD A. LANHAM. A HANDLIST OF RHETORICAL TERMS, 106 (University of California Press. 1969). 10 Id. 2 of 6

3 familiar with deliberative rhetoric in the form of political speeches or sermons in church. What is judicial rhetoric? Judicial rhetoric is forensic speech. This form of rhetoric accuses or defends an individual of an act or omission. 11 According to Aristotle, rhetoric in this form urges the audience to do justice for past actions or crimes. 12 What forms of persuasion does classical rhetoric include? Aristotle saw how persuasion could be broken down into two types of persuasives (pisteis). 13 The first of these persuasives is what the layman thinks of as hard evidence or scientific proof. The classical rhetorician labels this type of persuasive as inartistic proof, or inartificial proof. 14 Evidence of this type is generally regarded as the most reliable proof in the courtroom. Commonly referred to as direct or demonstrative evidence, it includes sworn testimony, documents, or an expert s scientific analysis of factual data. The second form of evidence Aristotle referred to as artistic or artificial proof. 15 The unreliability and malleability of this type of proof leads to most prohibitions found in the rules of evidence. Artificial proofs rely on three distinct components: ethos, pathos, and logos. 16 Ethos is a term denoting the good character and credibility of the speaker. 17 A lawyer speaking to a jury or introducing an expert witness attempts to establish an ethos to persuade a jury that the advocate or the witness is knowledgeable and trustworthy. When introducing a witness, the lawyer will ask preliminary questions to establish the witness s boni fides or authoritative background to reveal the witness qualifications to testify, e.g. education, publications, or experience. This line of questioning constructs an ethos - a credible persona, for 11 Id. 12 CORBETT, supra at CONLEY, supra at Id. at Id. 16 Id. 17 GEORGE Y. TRAIL, RHETORICAL TERMS AND CONCEPTS 69 (20001). 3 of 6

4 the witness so the jury will trust what the witness says. The reverse process of constructing an ethos is the process of impeachment. In impeachment, the attorney attempts to construct a negative ethos so that the jury will disbelieve or discount the witness s testimony. Pathos. Stated in the most simplistic terms, pathos is the appeal to emotion. 18 The most suspect of the artistic proofs, pathos is the process of putting the audience in a receptive mood to allow the persuader to play on the audience s emotions. When appellate courts say they are reversing a judgment because of the inflamed passions of the jury, the reviewing court is finding that the jury s decision was based on excessive pathos. Because pathos is so easily abused, it is tightly controlled by the Rules of Evidence and is allowed under very controlled conditions, usually in jury arguments. (E.g. when a prosecutor makes a plea for law and order, or when an attorney describes how the death of a family s breadwinner results in hardship for a widow and her children.) Logos. This term is by far the most complicated of the three words under discussion and has multiple meanings depending up the context in which it is used. In religion, logos is used to denote the Word of God as in In the beginning was the Word, and the Word was with God, and the Word was God. 19 In philosophy, it denotes the rationale or underlying set of principles of a thing or a process. 20 In rhetorical studies and for our purpose, logos will mean the appeal to rational thought or reason. Logos is the preferable mode of persuasion and takes the form of a rational argument to prove, or seem to prove the speaker s point of view. Persuasive appeals to reason are adaptations of the logical forms the syllogism and induction. In rhetoric these forms are less formally constructed and are commonly described as the enthymeme (a syllogism in which one premise is implicit) 21 and persuasion by example. Lawyers building on circumstantial evidence (indirect proof) use appeals to reason or logic to argue their theory of the 18 Id. at John 1:1. (King James). 20 LOUIS D. RUBIN, JR., A WRITERS COMPANION 969 (1995). 4 of 6

5 case. (E.g. Cain was found standing over Able s dead body. Able s blood was found on Cain s hands. Therefore, Cain must have killed Able.) How does this philosophy tie into the rules of evidence? Following Aristotle s lead, modern legal scholars designed the rules of evidence to ensure that man s search for the truth should not be clouded by the art of advocacy. The rules recognize and try to fairly balance evidence that may be relevant and probative in deciding a case, but might be unduly prejudicial. The following are but two examples of the rule s attempts to weigh and balance probative and prejudicial implications in admitting evidence: Prior Bad Acts. 22 Suppose that a teenager is convicted of holding up a grocery store. Twenty years later, he is accused of bank robbery. Is evidence of the earlier bad act probative? Possibly. Is the evidence relevant? Possibly. Is the evidence prejudicial? Undoubtedly. Information about past bad acts is generally excluded because it is more prejudicial than probative. An opponent may misuse information about those past acts to persuade the finder of fact that because the accused once acted badly, he is capable of acting badly again, and therefore, must have acted badly in the current case. The rules of evidence generally do not admit this data into evidence; even though the information may be true, the prior bad act is too attenuated in time from the present circumstances to make the evidence more probative than prejudicial. However, additional facts may shift the prejudicial versus probative balance. What if the same gun was used in both crimes? What if the defendant testifies that he has never held a gun on any one or stolen anything or has never been arrested? Then the prosecution may impeach the witness and the court s balancing of the prejudicial effect versus the probative value of the evidence may shift to favoring admission of the evidence TRAIL, supra at See FED. R. EVID. 404; TEX. R. EVID See FED. R. EVID. 608, 609; TEX. R. EVID. 608, of 6

6 Hearsay. 24 Out-of-court statements presented for the truth of their content clearly have a factual or scientific basis, and can be extremely relevant evidence. The adversary s inability to examine the original speaker under oath, however, taints the hearsay statement s use as objective evidence. Despite this limitation, fairness allows the law to make some exceptions to the hearsay rule s exclusion of out-of-court statements. Each of the 24 or more exceptions to the hearsay rule has a rational foundation that uses trustworthiness as the method for achieving a balance between truth and undue prejudice. So what? How does all this help me? Think back to your first day of class on Evidence. Do you remember your confusion about the profusion of seemingly unnecessarily complex evidentiary rules and exceptions? With the unfortunate demise of classical studies in secondary schools, few law students have the rhetorical, philosophical or historical background to appreciate the logic behind the Rules of Evidence. Suspended in an intellectual vacuum, these budding lawyers are often reduced to rote memorization of the rules and live in the hope that the rules and their exceptions will make sense some day soon. From a pedagogical view, perhaps law schools should consider introducing Aristotle s rhetorical teachings to provide a context in which students can ground their understanding of the Rules of Evidence. For that matter, perhaps practitioners should consider a visit to the library to introduce themselves to this Greek and his very important gifts to jurisprudence v1 24 See FED. R. EVID ; TEX. R. EVID of 6