Wednesday, February 18, 2009

Beware The Prospective Fallacy

Trial lawyers are story tellers. To cynics, that means lawyers make up stories that serve the interest of their clients. Popular fiction is filled with lawyers who lie, cheat and steal to get ahead. On this view, trial lawyers are no better than, let's say, bankers or coal executives. Truth is merely an option.

Legal ethics, of course, requires more. We are forbidden, for example, from knowingly presenting false testimony in a court proceeding. Our duty of candor toward the tribunal extends so far as to require us even to alert the court to cases that cut against our client's interest.

But discovering the truth is far from simple. Trials are recreations of events most often long since past. We work with rules of evidence to recreate the past. Sometimes knowing how events turned out in the end colors our perception of preceding events. Knowing the end of the story yields interpretive bias. Historians, too, struggle against this source of bias, but in their case the danger of distortion is far more profound. Recreating events that occurred centuries ago is often more difficult that recreating last year's burglary.

The prospective fallacy is a lens that colors prior events with knowledge of how an course of events turned out.

I was reminded of this in Paula Fredriksen's Jesus of Nazareth: King of the Jews (Vintage Books: New York, 1999). She writes: "[T]he person in search of the past must affect an innocence of the future. Our knowledge of how events ulitmately worked out too easily gives us a false perpective on how they came to be." Thus, in terms of research on the historical Jesus, looking back after centuries of religious practice steeped in theological armament about Jesus as Son of God, member of the trinity, even Messiah, can make interpretation of the scant historical record about his life impossibly complex.

Fredricksen's notion of affecting innocence of the future is intriguing. Obviously, an interpretation of an event is colored by the outcome requiring interpretation. Thus a person's mere presence at a homicide scene looks suspicious. And statements of malevolence about another take on a sinister case when the person about whom the statements are made is a victim of violence. The danger with circumstantial evidence is that is results in a permissive inference; it is grist for the story teller's mill. Dots can be connected under the pressure of narrative drive that were merely random events before an act acquires significance.

Put another way, I sometimes wonder where a person's bad luck too often becomes a prosecutor's, or, for that matter, a plaintiff's serendipity. How often do we worship at altars made of fantasy?