Questions and Answers: The Logic of Preliminary Fact Investigation
| Published date | 01 December 2002 |
| Author | Kola Abimbola |
| DOI | http://doi.org/10.1111/1467-6478.00232 |
| Date | 01 December 2002 |
JOURNAL OF LAW AND SOCIETY
VOLUME 29, NUMBER 4, DECEMBER 2002
ISSN: 0263-323X, pp. 533–59
Questions and Answers: The Logic of Preliminary Fact
Investigation
Kola Abimbola*
My paper considers the role of questions and answers in the inferential
tasks of fact investigators (investigators such as police officers and
crime scene examiners) prior to trial and indeed prior to arrest. My
contention is that the reasoning processes of these investigators obey
an internal, simple, successful, but dangerous, logic.
INTRODUCTION
This paper examines the nature and function of questions in pre-trial legal
reasoning. My contention is that the presuppositions of questions constrain
inferential choices entertained by fact investigators. More specifically, I
argue that the availability of fact and evidence, and the sort of inferential
connections a legal agent makes when choosing between alternatives, are all
dependent upon the presuppositions of the questions posed.
It is important to distinguish the interrogative approach of this paper from
two other approaches to the study of questions in the legal process. On the
one hand, studies by Michael Zander examine the specific rules and
regulations imposed upon the police by the legal system.
1
These studies are
interested in what Henry Wigmore called the Trial Rules of Admissibility
because their focus is on questions such as: ‘Whom can the police question?’
‘Is a citizen obliged to answer police questions?’ ‘What are the formal
consequences of refusal to answer police questions within the legal process?’
This paper is not about trial rules of admissibility.
2
533
ßBlackwell Publishers Ltd 2002, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* Department of Philosophy, Seattle University, 900 Broadway Avenue,
Seattle, WA 98122, United States of America
I am grateful to William Twining, C.J. Miller, Andrew Simester, and the anonymous
referees of the Journal of Law and Society for their helpful comments and suggestions.
1 M. Zander, Cases and Materials on the English Legal System (1999).
2 J. Wigmore, The Science of Judicial Proof: As Given by Logic, Psychology, and
General Experience and Illustrated in Judicial Trials (1937); J. Wigmore, ‘The
Problem of Proof’ (1913) 8 Illinois Law Rev. 77.
Trial rules of admissibility are important to our understanding of the legal
process. Nonetheless, they have little or no role to play in my inquiry into the
role of questioning in pre-trial legal reasoning. This is because interrogation
in this paper is not about statutory or judge-made rules. Nor is it about how
fact investigators translate formal procedural rules into the ‘working rules’
that actually govern their day-to-day practices. This paper is not about legal
rules at all. Rather, my subject is the process by which fact investigators
(such as police officers, scene-of-crime examiners, and forensic scientists)
generate and construct evidential fact during the preliminary stages of the
legal process.
In contrast to the Zander-style approach, studies such as that of
McConville et al. focus on how the police use questioning and interrogation
‘to manipulate the social environment of the suspect to increase their control
and influence over the suspect’s decision making and to prepare the ground
for building the case against the suspect’.
3
Although this paper has some affinities with the McConville et al.
approach to the study of questioning, it is pertinent to make a prima facie
distinction between the art of questioning and the logic of questioning. The
art of questioning is about effective interviewing and cross-examining
techniques. It is more about style and delivery than about logic. Perfecting
one’s skills in the art of questioning is about honing persuasive skill. The
logic of questioning, however, is about the validity and cogency of legal
arguments.
4
It is an analysis of the role and function of the presuppositions
of questions in the evaluation of legal evidence.
THE CONSTRUCTION OF FACT AND EVIDENCE
According to one popular image, the law applies only to those facts of the
case that have either been determined by the courts, or admitted by the
parties to a trial. Hence we can say that although facts are not created by the
law (they exist out there in the real world independently of the law), it is the
law that determines the rights and duties attached to these facts. But as facts
are often disputed, one function of the courts is that of ascertaining and
534
3 M. McConville et al., The Case for the Prosecution (1991) at 56. See, also, J.
Baldwin, ‘Police Interview Techniques: Establishing Truth or Proof?’ (1993) Brit. J.
of Criminology 325.
4 The distinction between the art and logic of questioning is not so clear-cut. In formal
deductive logic for instance, we have the fallacy of complex (or loaded) questions.
‘Have you stopped beating your husband?’ and, ‘Have you given up your evil ways?’
are fallacious because (unless it is quite clear from the context of the discussion) we
are incapable of establishing cogency on the basis of whatever answer we give to such
questions. But avoiding complex questions is also good heuristics and good
questioning practice. In short, although the art and the logic of questioning are
conceptually distinguishable, they are not distinct.
ßBlackwell Publishers Ltd 2002
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