ICYMI: Ledwon on The Poetics of Evidence: Some Applications from Law & Literature @StThomasLaw

ICYMI: Lenora P. Ledwon, St. Thomas University School of Law, has published The Poetics of Evidence: Some Applications from Law & Literature at 21 QLR 1145 (2003). Here is the abstract.

Evidence thus has force beyond any linear scheme of reasoning, and as its pieces come together a narrative gains momentum, with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict .... Thus, the prosecution may fairly seek to place its evidence before the jurors, as much to tell a story of guiltiness as to support an inference of guilt .... "A syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it." The above quotations seem astonishing at first glance. The Supreme Court, in the process of analyzing the 403 balancing test under the Federal Rules of Evidence, appears to be moving beyond a simple rationalist tradition by acknowledging the legitimacy of evidence that is "beyond any linear scheme of reasoning." Even the most jaded legal reader must pause at such a phrase in a Supreme Court opinion. What could lie beyond linear reasoning? (Elliptical reasoning, perhaps?) What kind of force will such evidence have? (Emotional force, rather than logical force? The aesthetic force of a well-constructed narrative?) And what in heaven's name is the Supreme Court doing by speaking approvingly of a prosecutor's right to tell "a story of guiltiness"? This sounds suspiciously as if the prosecutor is a creative fiction writer, rather than a rational, scientific presenter of proofs. Why not employ more sober, judicious phrasing, perhaps something along the lines of "the right to present the evidence from which jurors could logically infer guilt"? But perhaps all this is not so astonishing after all. In Old Chief Justice Souter's majority opinion underscores the importance of storytelling and narrative integrity as factors worthy of consideration in a 403 balancing of probative value versus prejudicial effect. And, of course, we "get" it. Evidentiary alternatives, such as stipulations, may be perfectly good evidence, but bad storytelling. We understand that the right to tell a richly detailed story at trial is crucial in persuading a jury. A good, juicy story is more than a match for a logical, dry syllogism any day. So what else is new? There has, in fact, always been a profound connection, a synergy between storytelling and law. There is a similar (although often unacknowledged) synergy between evidence and law and literature scholarship. In the same way that the Supreme Court's comments on the role of narrative in Old Chief may at first strike us as perhaps radical or new, but then seem familiar, so, too, the affinities between evidence scholarship and the law and literature movement, which may at first seem tenuous, are in fact robust. The question is not so much whether there is a poetics of evidence, but rather, of what does it consist? This essay will suggest some possibilities for ways to begin thinking about a poetics of evidence, and attempt to make explicit some already implicit connections between evidence and law and literature. First, I will briefly define "poetics," characterizing it generally as a form of narratology, or a particular interest in the techniques of story. Second, I will provide an overview of some of the existing evidence scholarship, which draws on literary theory or storytelling, and include some suggestions for future scholarship advancing a poetics of evidence. Third, I will borrow a page from the "law as literature" school, and read the Federal Rules of Evidence as a story. By reading the statute as a narrative (and looking at familiar material with new eyes), I hope to advance the ongoing scholarly conversation concerning how to interpret the Federal Rules. I argue that identifying potential themes and plots in the Rules can assist us in imagining interpretive possibilities for this sometimes vexing statute. In particular, identifying the thematic heart of the rules assists us in envisioning a certain kind of interpretive argument: an argument for flexibility and organic growth of evidence law, and a reminder to think of the Rules holistically.

Download the article from SSRN at the link.