Wigmore and I

Over the past year or so, I have developed something of an obsession with John Henry Wigmore's 1913 tome, The Principles of Judicial Proof, as given by Logic, Psychology and General Experience (because the copyright has passed, it is available as a free download here.) According to William Twining, the book received little acclaim during its author's lifetime. But in recent years, 'neo-Wigmoreans' like Twining, Terry Anderson, and David Schum have staunchly advocated Wigmore's method of charting inferences leading to judicial proof, and a number of scholars have taught courses on proof and evidence based on the method. 

In a paper I am currently working on, I use a modified form of the Wigmorean charting method to analyse findings of fact that have been overturned on appeal in international criminal judgments. In this way, I try to quantify when exactly a finding of fact becomes one that 'no reasonable trier of fact' could have reached, as the standard of review mandates. In undertaking an preliminary textual analysis, my initial sense was that the Appeals Chambers occasionally overstepped the mark by replacing the Trial Chamber's analysis of the evidence with its own. In Krnojelac, for example, the accused was acquitted of murders committed by KP Dom guards while he was warden of that detention centre. The Trial Chamber was convinced that murders had indeed occurred, but not satisfied beyond reasonable doubt that the accused had sufficient information at his disposal to put him on notice that his subordinates were murdering detainees (para. 348). The Appeals Chamber, in overturning this decision, was 'of the opinion that Krnojelac was in a position to see the blood stains spattered along the corridors of the KP Dom and the bullet holes in the walls of the entrance to the administration building' (para 179), and thus felt that no reasonable trier of fact could have reached the conclusion of innocence reached by the Trial Chamber.

When constructing my chart of the above charge and all of the relevant evidence/inferences, it became clear to me that the Appeals Chamber decision was not the de novo evaluation of the evidence that a reading of the judgment would leave one to believe it to be. The beauty of Wigmorean analysis is that it requires the user to formulate 'an ultimate probandum' (i.e. the final thing that needs to be proven); 'penultimate probanda' (usually the elements of the crime at hand) and interim or secondary inferences that would lead to those conclusions. By setting out a top-down approach, it allows the user to slot the evidence into a logical 'tree', and illustrates gaps where the inference is not supported by sufficient evidence. In my analysis of Krnojelac, the chart illustrated the fundamental error of the Trial Chamber in the case - it neglected to link the evidence it found convincing on the first penultimate probandum (i.e. that murders had occurred in KP Dom) to inferences that had to be drawn on the fourth penultimate probandum - that the accused had reason to know of these crimes. 

I am convinced of the usefulness of the method to lawyers, judges and academics (not just in international criminal law), and I really hope it will take off. Some Wigmorean scholars, along with practitioners and international criminal law academics, will come together at a conference in Bangor tomorrow and Saturday, and we can only hope that it represents the start of a new direction for evidence scholarship in international criminal law.