44 | Just the Facts

FACT: A thing done; an action performed or an incident transpiring; an event or circumstance; an actual occurrence. An actual happening in time and space or an event mental or physical.

INFERENCE: A process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved or admitted. Black’s Law Dictionary, Revised Fourth Edition

But facts are facts and flinch not. Robert Browning

Our justice system is based on facts. Not just that they exist, but that they can be known.

Cops deal with facts. DAs start there too; if they don’t have enough facts, they tell the cops to get more. Facts become the basis for logical inferences. Persuasiveness—winning—depends on the DA’s and defense’s ability to weave inferences into competing narratives for juries.

Jurors are instructed that they can draw inferences from proven facts. They can’t read a defendant’s mind; without a confession, how else can they discern what went on in his head? Reasonable doubt is itself an inference: if the only inference beyond a reasonable doubt is guilt, the defendant is convicted.

But advocacy is more than logic. It takes courage and heart. If a DA can’t wrap bis head around the facts or fears he can’t sell them to a jury, he dismisses the facts or refuses to draw inferences. And like a house of cards, the case falls apart. Don’t think a jury of an engineer’s peers can infer he beat his wife to death based on the crime scene and his behavior? Not so hard to tell yourself maybe he didn’t do it. But back to facts. The most unflinching advocate can only make an argument. Finding facts is the job of the judge and jury.

Perception bias is the human tendency to be partial, to make judgments based on our own way of looking at the world. Jury selection tries to ferret out biases. Judges are human too. Good ones put their biases on the table before every case. Consciously setting biases aside makes it harder for them to sneak in later. But how do judges and juries decide a set of facts is true?

One thing they don’t do is average out conflicting accounts or conjure up a blended version of reality. As in normal daily interactions, they weigh what they see and hear and run it through the lens of experience. This weeds out what neurologist Oliver Sacks referred to in the context of memory as (thankfully rare) “aberrations of a gross sort.” It frees jurors to come to a shared narrative truth, a collective memory of the event defined and refined by their role as finders of fact. Instead of creating fiction, they usually arrive at reliable verdicts. But verdicts are only as reliable as the facts presented by an advocate who actually believes them.

Are facts real, or is persuasion basically a con job?

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