Tag: forensic research

A Mixture Containing More Snares Than Rewards

~ Michael A. Innes

In 1994, the legal scholar John Phillip Reid published a somewhat cynical article on forensic history in the Loyola of Los Angeles Law Review.  It contains some real zingers on the intersection between law and history, how practitioners of each perpetrate mutually abusive disciplinary transgressions, and the meaning (and substance) of forensic history. Here are some bits and pieces, for flavour. These are by no means representative of Reid’s entire argument – you’ll have to read the article yourself for that.

From the introduction (p. 193):

A venture into cross-disciplinary legal studies may be a mark of scholarly sophistication for the law academic, but it does not do to assume the benefits without understanding the risks. Serious problems result from the crossing of disciplines. Take the crossing of history with law: It is a mixture containing more snares than rewards, as it risks confusing rules of evidence basic to one profession with canons of proof sacrosanct to another.

On implied similarities of method:  (p. 193-194):

The implication – one that is shared by lawyers perhaps even more than by historians – is that there is a similarity between the methodology of law and the methodology of history…  the argument goes much further than process. It is not just techniques or procedure that the two disciplines have in common; they share substance as well. Certainly there have been times when first-year law students thought so.

On the difference between what lawyers and historians do (p. 196):

The lawyer and the historian have in common the fact that they go to the past for evidence, but there the similarity largely ends. Some historians, such as Kelly, believe that common-law methodology requires the lawyer to play “the role of historian” and to go “to the ‘primary sources.’ For such historians, Maitland warned there is a temptation “to mix up two different logics, the logic of authority, and the logic of evidence.” The differences in the logics are the differences that Kelly missed. They are so basic that they make the ways that the two professions interpret the past almost incompatible. In discovering the past, the historian weighs every bit of evidence that comes to hand. The lawyer, by contrast, is after the single authority that will settle the case at bar.

On “lawyer’s law office history” (p. 197):

The way that lawyers think about history is an eccentricity foisted on them by their professional training and, although it may amuse historians who stumble over lawyering anachronisms,  it is not a matter of controversy among lawyers. What has been controversial is the way that lawyers argue and use history. Critics of their methodology have coined terms to describe it. They call it lawyer’s history or law office history. Lawyer’s history and law office history are really the same despite the variety of definitions they have been given. Lawyer’s history has been called “a stark, crabbed, oversimplified picture of the past, developed largely to plead a case,” and law office history has been described as “the selection of data favorable to the position being advanced without regard to or concern for contradictory data or proper evaluation of the relevance of the data proffered.” 18 “The ‘law office historian,'” one critic has argued, “imbued with the adversary ethic, selectively recounts facts, emphasizing data that supports the recorder’s own prepossessions and minimizing significant facts that complicate or conflict with that bias.”

On “forensic history” (p. 203):

Historians understand that criticism of law office history is criticism of forensic advocacy; that lawyers practicing lawyer’s history use it as advocates; that the complaint is that they are too much the lawyer and not enough the historian. Historians know lawyers are beyond reformation, but wish judges would adopt a more acceptable standard.

On judicial abuse of history (p. 204):

Although their opinions may often be confused, the judges generally are not. When they tell their law clerks  to find them some “history” supporting a point of law they plan to promulgate, their interest lies in authority, not in evidence. This use of history is not to learn about the past, but merely to support an outcome. Law office history does not lead the judge to a decision. In almost every instance when history is employed, the decision has already been formulated. Unprofessional history is used to explain the decision, to make the decision more palatable, or, in most cases, to justify the decision.

Again, on “forensic history” (p. 205):

According to the academic canons of the historical method, there is no need to consider instances of the proper use of history either to prove a fact” or to establish a point of law – if such instances can be found. Instead, attention should be given to a species of history that does not meet the canons of historians’ history, but for centuries has made legitimate contributions to Anglo-American law, especially to Anglo-American constitutional law. It is forensic history.

A way forward? (p. 220):

The legitimacy of forensic history cannot be left to the professional standards of academic historians. A different measure is needed, one turning on the restraint historical adjudication clamps on judicial discretion. Our problem is to separate history used to screen a judge’s activism from history that fixes the limits of decision. Perhaps the distinction cannot be tested, but at this stage of our knowledge we cannot be sure.

From John Phillip Reid, “Law and History,” Loyola of Los Angeles Law Review 27 (1993-1994): 193-223. URL: https://heinonline.org/HOL/P?h=hein.journals/lla27&i=229.

Of which the essence thereafter remains unexamined

~ Michael A. Innes

I’ve been digging into the use of Pearl Harbor analogies in America’s response to the 9-11 attacks – and, because of a curious twist in the political landscape in 2001, I’ve been looking a little more closely at a well known study of the Pearl Harbor attack, Roberta Wohlstetter’s Pearl Harbor: Warning and Decision (Stanford University Press, 1962). Wohlstetter’s book is a classic examination of military intelligence (and its failures). It  also enjoyed a parallel life as a physical prop in certain defense circles, where invoking the lessons of this particular past – military preparedness and managing strategic surprise – was part of a ploy to justify budget increases. Among the reviews of Wohlstetter’s book that appeared after its release, one by Sir Michael Howard, published in 1963, caught my attention. Howard appreciated Wohlstetter’s attention to the historical minutiae of intelligence work, and her use of such detail to attempt an explanation of the American failure to anticipate Pearl Harbor. But he was also cynical about her use of historical method in the service of something other than a Rankean telling-it-like-it-really-was account of past events. It’s a sensitivity of long standing among historians, and goes to the heart of the discipline as a professional practice animated by principles of forensic inquiry. Howard’s opening paragraph gets right to it:

Few professional historians stray into the field of strategic studies, and those who do are not likely to find it congenial. They will be surrounded by men of great ability and quicksilver minds who link events into patterns, reduce the chaos of experience to predictable order, deduce principles, extrapolate trends, and in general toss around the stuff of history with an insouciance which the historian, knowing from his own laborious researches how delicate, complex, and intangible is every one of the historical “events” so cheerfully used as the basis for these theories and predictions, finds it hard to regard as academically reputable or even logically sound. Like the lawyer or the philosopher, he winces at the labels casually slapped onto historical phenomena or human behavior of which the essence thereafter remains unexamined. Faced by terribles simplificateurs whose confident analyses and predictions may easily become the bases for national attitudes and policies, he can only continue, quietly and insistently, to repeat his creed. Every event is for the historian unique, unforeseeable, and indescribable in its full complexity. In some respects it will resemble other events, and out of these resemblances useful patterns may be deduced as intellectual tools. But all these patterns are subjective and hypothetical. Like the psychiatrists’ ink-blobs, they teach us more about our own minds than they do about the ingredients which compose them. To suspend judgment, to refuse to make patterns at all, is not only sterile but destructive of all historical writing. But any patterns made or deductions drawn from events before the record is established as completely as human effort can do it will be worthless as foundations for any form of political, economic, or strategic thought.

Reference: Michael Howard, “Military Intelligence and Surprise Attack: The ‘Lessons’ of Pearl Harbor,” World Politics 15:4 (1963): 701-711.

[Ed.: “ploy” isn’t quite the right word for it – it was no more conspiratorial than any other political agenda.]

Framing Forensics

~ Michael A. Innes

For the last few months, I’ve been thinking about how  “forensics”, “forensic research” or “forensic practice” are commonly understood. The interest is driven in part by long familiarity with the uses of historical methods and research to support very contemporary preoccupations, and the somewhat unusual conjoining of “forensic” and “history” as a single discipline. I write “unusual” here only in the sense that “forensic” and “forensics” are usually associated with lab coats, applied science and crime scenes, and much less so with the stereotypical image of historians rifling through boxes of records in musty archives. These are popular images of very specific and limited elements of disciplinary practice, of course. They hardly do justice, so to speak, to the substance that each of those representations draws from.

The association between historical practice and “forensics” is much less unusual  – in the sense that it should resonate quite strongly and intuitively – among postgraduate students and historians indoctrinated into the arcane mysteries of the profession. In their readings on philosophies and approaches to history, they learn that its early development (in the West) was grounded in a legalistic pursuit of evidence and scholarly rigor. It is also much less unusual, in the same sense, for anyone familiar with “public history”, a more recent though now well-established type of professionalisation within the field. So historians have a robust professional understanding of such issues by virtue of their training, and at least in some cases they will sense an affinity between what historians do and the requirements of a more general (or specific) forensic practice. 

Resonance is a tricky beast, however. Different things resonate in different ways with different people. In frame theory, one way of making sense of resonance is to understand the “cognitive script” or “schema of interpretation” (the raw collection of data and details that makes up  our subconscious) from which we draw various conceptual apparatus (analogies, metaphors, and other devices that function as a kind of shorthand for the complex reality that surrounds us). One of the challenges associated with framing  – particularly for anyone using it to understand human communication – is frame alignment (and by extension, misalignment) between “source” (the cognitive script) and “target” (the thing being framed). Get the alignment right when framing an idea or a policy, and the idea or policy will resonate with an audience, thereby increasing the chance that the idea or policy will be accepted. Get the alignment wrong, misalign the frame, and any hope that it will resonate with its intended audience becomes a much more tenuous proposition.

This is a gross over-simplification of a fairly sophisticated field, but I wanted to push through the essentials quickly in order to get to the idea of “original meaning”. Remember that framing uses devices like metaphors and analogies as conceptual shorthand. The range of framing devices is actually quite broad, but metaphors and analogies are among the most powerful. In order for the putative analyst to map instances and frequency of metaphorical discourse (whether that discourse is purely textual or a more holistic collection of actions, texts, and the like), its component parts have to be identified and understood. This requires knowledge of the “original meaning” of metaphorical terms, and differentiation between original meaning and later meanings that have accrued to those same terms over time. That differentiation allows us to pinpoint when a term is actually being used metaphorically, and when it is being used in its original form.

In some cases, an analogical or metaphorical cascade can be observed, wherein multiple layers of metaphorical meaning accrue to the same term in successive stages over time. The result is a word or an expression or a turn of phrase that carries multiple possible meanings, some of which may be obvious and easily discernible, while others only reveal themselves under certain circumstances, in certain contexts, or through more esoteric and prolonged forms of inquiry. Which brings me back to the idea of “forensic” research, and forensic historical research in particular. The term “forensic” is from the latin forensis, which refers to early Roman legal practice in which victim and accused presented their respective cases to an audience in a forum. In this original meaning, “forensic” meant something that was both “public” and “legal” in its orientation. Over time, it came to denote something more narrowly of a legal nature, acted out in a specifically legal setting like a courtroom or before a judge. More recently, it narrowed again, “forensic” and “forensics” becoming descriptors for the collection and processing of evidence in criminal policing, typically using hard science tools and processes that are highly amenable to fine-grained identification of relevant physical minutiae.

The point I’m trying to make with this dime-store genealogy is that “forensic” has a number of meanings, all of them connected in interesting and relevant ways. That some of those meanings are anchored in historical context makes them even more rather than less relevant to current issues. In a sense, I’m advocating a cross-disciplinary or multi-disciplinary recovery of the term. No research discipline is more or less inherently “forensic”; research is not inherently “forensic” because it relies on genetic testing or applied chemistry; hard sciences are not more inherently “forensic” than social sciences, and social sciences are not more inherently “forensic” than, say, historical research (or vice versa). Rather, research is inherently “forensic” when it is being conducted for legal purposes, to support legal arguments and processes, to build a criminal case; research is “forensic”,  in the classic sense, when its findings are discussed, presented, or argued openly or publicly.

Research might even be considered “forensic”, in a metaphorical sense, simply for paying attention to the little things, for being “highly amenable to fine-grained identification of relevant minutiae.” Words and phrases can be appropriated and twisted to suit just about any purpose, of course. That’s not what I’m suggesting. What I am arguing for is a sensible return to basics, and a sensible application of those basics to contemporary interests, issues, and sensibilities. I am arguing for an understanding of research as a “forensic” undertaking when it is conducted or presented for purposes that lie somewhere along a continuum of the public and legal elements of its original meaning; when it is the work of public intellectuals engaging policy-relevant issues, for example, or when it is policy-relevant research conducted at the behest of public bodies such as government ministries and the like.

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This is a rough draft of first thoughts on a wide variety of interconnected issues. It is informed in part by my own experiences as an institutionally-embedded analyst, professional research consultant, and academic. It is inspired in part by recent discussion of public intellectuals and alleged academic disengagement from the issues that matter to mainstream life.  It is articulated largely in ignorance of both public history and forensic science, and of what these two important fields have to say on the matter of forensic research. And it is offered here with the promise of more thoughtful and better supported inquiry to follow.