---

8 February 2002

Warping the Judgement of Dissenting Opinion

Source Materials

-- / --

---

Annex to Warping the Judgement of Dissenting Opinion: towards a general framework for comparing distortion in rules of evidence

---

Introduction
Influence of values and ideologies
Source materials [this document]
-- Useful case studies for historical comparison (Annex B)
-- Rules of evidence in normal legal process
-- Rules of evidence in international trials and tribunals
-- Rules of evidence in 'extra-legal' 'trials'and judgements (possibly based on ethical codes)
-- Sectors extending the challenge of refining rules of evidence
-- Assessment and evaluation
-- Alternative frameworks and belief systems (appeals to other forms of reason)
-- Issues relating to evidence and argument
-- Distinguishing terrorists from freedom fighters and change agents Propaganda, credibility and 'smear-and-fear'
Definitional game-playing
Conclusion
References

---

Useful case studies for historical comparison

Presented as Annex B containing:

Star Chamber
Catholic Inquisition
Trials under 'Protestantism'
Trials under French Revolution
Trials under Soviet Communism
Trials under Fascism
Trials under Chinese Communism
Trials under Khmer Rouge Communism
Trials under Cuban Communism
Trials under South African apartheid
Trials under Taliban application of Islamic law (sharia)
Military tribunals and war crimes
Judicial investigation of statesmen
Famous 'political' trials

• People playing key roles: Trial of Jesus; William Wallace (1305); Joan of Arc (1431); Martin Luther (1521); Thomas More (1535); Galileo Galilei (1616 and 1633); Leon Trotsky (1937) ; Adolf Eichmann (1961); Nelson Mandela (1963-4); Steve Biko (1976); Manuel Noriega (1991); Katie Sierra (2001)
• Trials of groups: Salem witches (1692); My Lai courts martial (1970)
• Political 'show trials': Moscow Trials (1937-8); Hearings of the House Un-American Activities Committee (1947-54); Chicago Seven (1969-70); Xinjiang Uighur (1999); Uzbekistan (2000)
• Trials in literature

Rules of evidence in normal legal process

• Status of evidence:
  • Divorce and custody proceedings: Such cases are interesting because of the widely understood nature of the dramatic conflicts of evidence in relation to the claims made by the opposing party. Also relevant is the manner in which the process may be deliberately abused by lawyers for either party.
  • Child abuse: These cases are interesting because of dependence on evidence of young witnesses recalling incidents that may have occurred years previously. Much has been made of False Memory Syndrome and the traumatic effects that misleading testimony has had on the lives of those associated with major miscarriages of justice:
    • Sexual abuse: This category has been the subject of extensive commentary, notably in relation to faith-based schools.
    • Ritual abuse of children: This category, involving accusations of 'satanic' and other ritual abuse has proven especially traumatic [more; more]
  • Sexual harassment: These cases are important because of the claims made, the nature of the evidence presented, the degree of denial (and institutional cover-up), and the associated intimidation. It is useful to ask to what degree the harassment may be experienced as 'terrorism' -- at least in the eyese of the victim::
    • Rape: Evidence in rape cases is a matter of continuing debate.
    • Work environment: The nature of evidence of harassment in such cases is complicated by the pressure on the employee concerned about losing a job.
    • Male rape in prison: This case is especially interesting because of the systematic terrorizing of some individuals, the forced complicity in cover-up, and the degree of institutional denial or acceptance amounting to a form of state-supported terrorism.
    • Sexual abuse by priests: Abuse of confidence, denial, institutional cover-up
  • Homosexuality: This is especially interesting because of the manner in which it has been prohibited by law in many countries, primarily under the influence of scriptural injunctions.
  • 'Cults': Legal proceedings against cults (eg Scientology, Rajneesh, Ananda Marga, etc) have attracted widespread attention because of the conflict between the belief system of the cult (and the principles of freedom of association), the discipline to which their adherents 'voluntarily' subscribe, the relation to the fundamental freedoms of individuals, and the claims of abuse (possibly made by parents of the cult adherent, and denied by that person).
  • Status of persons:
    • Asylum: This is an extremely active issue in which very challenging problems of interpretation of evidence are involved.
    • 'Non-persons': In 1998, UNICEF reported that out of three newborn babies world wide are not registered each year, putting them in serious risk of missing proper health care and education [more]. Many bioethicists believe that some animals are persons and some people generally, those with poor cognitive capacity are non-persons. And even bioethicists who reject animals as persons accept the premise of the human non-person who can be used as an object rather than a subject. Thus, some look at non-persons as sources of organs or as available for "us" to use in medical experiments. Some even posit that non-persons can be killed morally [more; more]. Some persons under one jurisdiction seek to ensure that they are non-persons where they may be liable for taxation.
    • Statelessness: [more]
    • Bureaucratically dead: Rare cases of misuse of evidence, resulting in incorrect declaration of death, can result in many unforeseen complications [more]. This problem is not without its importance in relation to insurance claims assocated with disasters (such as 11th September).
  • Commercial and financial fraud: Increasingly the courts are being faced with cases, involving very large financial amounts, characterized above all by their technical complexity necessitating lengthy presentations of evidence. Questions are being asked as to whether the evidence, and especially the chains of evidence, are sufficiently comprehensible to average jurors to permit a reasoned judgement [more; more].

• Trials of whistleblowers: The USA has a Whistleblower Rights Campaign. It is also unique in having a National Whistleblower Center (created in 1988) in response to the need to protect whistleblowers who could not find representation from existing public interest organizations and attorneys. The overall goal of the Center is to support precedent setting litigation on behalf of employee whistleblowers, provide legal advice and referrals for counsel to whistleblowers nationwide, and educate the public about the rights of employees to make disclosures regarding nuclear safety, corporate or government misconduct, environmental protection or health and safety violations. (situation in the UK; Netherlands). The European Commissioner responsible for reform, Neil Kinnock, has published what he calls a whistleblower's charter, offering guidelines to European Union staff who want to report suspicions of corruption. It was released on the day of another European Commission report which said the European Union lost a billion dollars last year because of fraud and fiscal irregularities. (more; more]. However the EU has since backed down on its promises and has acted in a reprehensible manner against that whistleblower [more].
  
  
• National special courts:
  • Military tribunals: Interesting cases involving disputed treatment of evidence include:
    • Conscientious objection: There is much information on the status of conscientious objectors in different countries, notably provided by Amnesty International. In the USA the Center On Conscience and War (NISBCO) and the Central Committee for Conscientious Objectors (CCCO) has been overloaded in relation to the 11th September attacks.
    • Desertion: This is a major problem in military forces of Russia, for example.
    • Consequences of military 'joy riding': Recent highly publicized incidents involving the US Marine Corps (cable car accident in Cavalese, Italy, in 1999, killing 20), and the US Navy (sinking a Japanese trawler, near Hawaii, in 2001, killing 9) have raised questions about the treatment of evidence in relation to the foreigners concerned and the token nature of disciplinary action.
    • Massacres: My Lai (see above), Mazar-i-Sharif (foreseen).
    • Rape by military personnel of foreign nationals: A number of incidents in Okinawa, and the manner in which the evidence is handled, have proven extremely destructive of US-Japanese relations -- as illustrated by the number of web references to this topic.
    • Military attack on Rainbow Warrior: In July 1985 French government agents sank a vessel of Greenpeace in the harbour of Auckland (New Zealand). Serving as commissioned officers in the French Armed Forces, those responsible had been detailed to assist members of the French Security Forces to ensure the much publicised voyage of the Rainbow Warrior to French territorial waters did not eventuate. In delivering judgement, the Chief Justice indicated that he considered the matter to be a 'terrorist' attack [more; more; more]. This may have been the first instance of a government engaging in a military action against an international NGO network, the current action against al-Qaida being another.
    • Drumhead trials: ***
  • Truth and reconciliation commissions: This format has acquired renown through its successful use in South Africa following the apartheid regime [more; more]
  • Religious courts: A number of countries have two parallel legal systems raising issues of how evidence is to be treated within one or the other. Israel has two coexisting legal systems: religious courts (Rabbinical, Muslim, Christian, and Druze) and civil courts, with the Muslim religious courts enjoying (in the case of women) even greater authority in questions of religious status than do the Jewish and Christian courts; Islamic courts operate in Chechnya and may provide death sentences [more]; religious courts in Jordan include shari'a (Islamic law) courts and the tribunals of other religious communities, namely those of the Christian minority; Indonesia; Nigeria [more]; Iraq; Saudi Arabia
    
    
• Trials of corporations: Corporations are frequently, and increasingly, involved in litigation (or its avoidance). Of special interest however are those situations in which multinational corporations are brought to trial because of damages they have inflicted on a country in which they may have a subsidiary, or no legal base whatsoever. Interesting cases include:
  • Exxon: Exxon Valdez oil spill (1989) [more]
  • Acotramar: Jessica oil spill (2001)
  • P&O European Ferries: Accident of the Zeebrugge ferry Herald of Free Enterprise (1987), killing 192 people. The subsequent prosecution of the owners of the ferry failed on the important point that no single person could be found responsible for all the mistakes which combined to cause the sinking. Pressure by the Herald Charitable Trust on behalf of the Herald Families Association for a change in the law to make companies corporately responsible was at first resisted but following other disasters such as the Marchioness the Law Commission set up study and reported in 1996. This report Legislating the Criminal Code Involuntary Manslaughter Law Com no 237 was intended to set the framework by which a Corporation could be prosecuted on a criminal charge for an event which killed someone where it could be proved that the Corporation collectively were negligent. It was a very thorough work and even contained a draft bill. However, no action was taken by the Government of the time to turn this into law. In the absence of a suitable framework no prosecution of a Corporation was possible unless it could be established that an individual was responsible for all the action involved in the loss of life [more]
  • Union Carbide Corporation: Bhopal gas factory (1984) [more]
  • Thiokol / NASA (1986): The explosion of the Challenger space shuttle was the subject of an investigation by a Presidential Commission to determine how the unanimous views of a group of Thiokol engineers concerning evidence of the probability of disaster could be set aside at the last minute by Thiolom managers under pressure from NASA to fulfil their contract (more; more; . It has also be reviewed in terms of the reframing of evidence by groupthink (more).
    
    
• Miscarriages of justice: There are considerable web reources on this theme which is highly significant into the manner in which evidence is selected and interpreted.

Rules of evidence in international trials and tribunals

• International courts and tribunals:
  • General: International Court of Justice (World Court); International Criminal Court; Court of Justice of the European Communities; Central American Court of Justice. What was the nature of the evidence presented to the World Court that enabled it to rule against the USA on the use of force by states against other states in the case of Nicaragua v. United States of America (1986 I.C.J. 1, 27 June 1986)? The court decided by 12 votes to three that U.S. training, arming, equipping, and financing the contra forces and laying mines in the territorial waters of Nicaragua was a breach of its obligation "not to intervene in the affairs of another state" and "not to use force against another state.". What evidence justified subsequent efforts of the USA to discredit the World Court as a "hostile forum", and to escalate its war on Nicaragua?
  • Human rights: European Court of Human Rights; Inter-American Court of Human Rights
  • War crimes (genocide): see #war">above
  • Administrative tribunals: United Nations; World Bank; ILO; OAS; OECD; etc
• International courts of arbitration:
  • Disputes: Permanent Court of Arbitration; European Court of Arbitration
  • Commerce: ICC International Court of Arbitration; Inter-American Commercial Arbitration Commission
  • Environment: International Court of Environmental Arbitration and Conciliation
  • Maritime: International Tribunal for the Law of the Sea
  • Sport: Court of Arbitration for Sport
• Religious trials and judgements (religious law):
  • Courts: Vatican Congregation for the Doctrine of the Faith (canon law); proposed International Islamic Court of Justice (sharia), etc
  • Judgements: fatwa (Islam), din rodef and din moser (Jewish Halakhic ruling), 'shunning' (Mennonites, the Amish, the Brethren, the Quakers, and the Free Church Brethren); 'fair game' (Church of Scientology; more]; cursing (magical traditions of tribal groups, including voodoo, bone-pointing); etc

Rules of evidence in 'extra-legal' 'trials' and judgements (possibly based on ethical codes)

• Peoples' tribunals: International peoples' tribunals have been organized under a variety of auspices. Most noteworthy at this time is the Permanent Peoples' Tribunal (PPT) which is by statute an organ of the Lelio Basso International Foundation for the Rights and Liberation of Peoples: started in June 1979, it is historically connected to the Russell Tribunals I and II (opinion tribunals), differing, however, in that its main research is in the field of the "law for the rights of peoples". The norms of this law are not established by States but by the requirements and exigencies of peoples, and the law according to which the Peoples' Tribunal judges derives from facts and the examination of reality, so as to pass "sentences" which strike, in a legal form, those responsible for the violation of such rights. The Permanent Peoples' Tribunal is permanent and is characterized by the ideological pluralism of the members of the jury, selected on the basis of their moral, academic and literary qualities. All the sentences and documents are sent to the main international organizations and several have been discussed at the United Nations Commission on Human Rights in Geneva. The range of tribunals, including those of the Foundation, may be clustered as follows:
  
  
  • General: Permanent Peoples' Tribunal on Global Corporations and Human Wrongs; International Peoples' Tribunal on Debt; International Indigenous People's Tribunal, International Water Tribunal ; Permanent Peoples' Tribunal on Industrial Hazards and Human Rights (Bhopal, 1992; London, 1994); Permanent Peoples' Tribunal on Right of Asylum (Berlin, 1994); Permanent Peoples' Tribunal on the Violation of the Rights of Childhood and Minors (Trento, Macerata, Naples, 1995); Permanent Peoples' Tribunal on Workers and Consumers Rights in the Garment Industry (Bruxelles, 1998)
    
    
  • Region specific: International Tribunal on Africa [documents], International Tribunal On Genocide in Central America, International War Crimes Tribunal (Bertrand Russell), International War Crimes Tribunal (Gulf War); Permanent Peoples' Tribunal on Latin America: trial on the impunity for the crimes against humanity (Bogotà, 1991); Permanent Peoples' Tribunal on the Conquest of America and International Law (Padua-Venice, 1992), Bertrand Russell Tribunals on Vietnam and Latin America
    
    
  • Country specific (Permanent Peoples' Tribunals): Western Sahara (Bruxelles, 1979); Argentina (Geneva, 1980); Eritrea (Milan, 1980); Philippines and Bangsa-Moro people (Antwerp, 1980); El Salvador (Mexico City, 1981); Afghanistan (Stockholm, 1981); East Timor (Lisbon, 1981); Zaire (Rotterdam, 1982); Afghanistan II (Paris, 1982); Guatemala (Madrid, 1983); Armenia (Paris, 1984); Nicaragua (Bruxelles, 1984); Puerto-Rico (Barcellona, 1989); Brazilian Amazonia (Paris, 1990); Tibet (Strasbourg, 1992); Former Yugoslavia (Berne, 1995; Barcelona, 1995); Chernobyl (Wien, 1996); Violation of the Fundamental Rights of Children and Adolescents in Brazil (Brazil 1999)
    
    
  • Country specific (other): AHRC People's Tribunal on Food Scarcity and Militarization in Burma; International Peoples Tribunal on NATO War Crimes Against Yugoslavia; International Peoples Tribunal for East Timor (IPTET), Women's International War Crimes Tribunal 2000 for the Trial of Japanese Military Sexual Slavery [Final report; more], Permanent Peoples' Tribunal on the Armenian Genocide, Sierra Leone's War Crimes Tribunal
    
    
  • Organization specific: Permanent Peoples' Tribunal of the International League for the Rights to Liberation of Peoples, IAED International Peoples' Tribunal on Human Rights and the Environment, International People's Tribunal to Judge the G-7 ; Permanent Peoples' Tribunal on the International Monetary Fund and World Bank (Berlin, 1988; Madrid, 1994)
    
    
  • Person specific: Peoples' International Tribunal for Justice for Mumia Abu Jamal; it is probably appropriate to include under this category the Commission of Inquiry into the Charges Made against Leon Trotsky in the Moscow Trials (the Dewey Commission).
    
    
  • Trials not (yet) held: Also of interest is the manner in which evidence is considered such that proposed trials are not held. For the Armenian people this would be linked with the denials associated with the International Affirmation of the Armenian Genocide The Verdict ("Kararname") of the Turkish Military Tribunal July 5, 1919 Relevant to this category were the specific charges, in relation to the Gulf War, formulated by former US Attorney General Ramsey Clark in May 1991 against George Bush, J. Danforth Quayle, James Baker, Richard Cheney, William Webster, Colin Powell, Norman Schwarzkopf (prepared for a Commission of Inquiry for the International War Crimes Tribunal). Another example is the Appeal for the International Tribunal to Judge Those Responsible for the Murderous Course Imposed on the Workers and Peoples of Africa. Possibly to be considered in this respect are the issues associated with debt relief [more].
    
    
• Special civil society 'tribunals':
  
  
  • Peoples' courts: In the case of workers unions, these would notably involve assessment of the failure of a member to respond to a strike action order.
    
    
  • 'Trials' by secret societies:
    
    
    • Legitimate bodies: In the case of bodies like Opus Dei, Freemasons, or the KKK, these might involve assessment of breach of the code of secrecy by their members and appropriate disciplinary action against them. Also of importance would be a process of judgement against non-members, which might lead to them being targetted.
    • Criminal bodies: Similar procedures would exist in the case of bodies like the Mafia, Chinese Triads, or the Japanese Yakusa. The sanctions are notoriously severe.
      
      
  • Disciplinary tribunals of professions (self-regulatory bodies): Typically such bodies (in the case of disciplines such as medicine, law, accounting, etc) would respond to accusations of inappropriate action (malpractice) bringing discredit to the profession, especially in relation to any statutory responsibility. Disciplinary action might including being 'struck off' the professional register. Such professions have tended to take active measures to discourage litigation and to ensure that evidence in support of complaints was either not available or dismissed.
    
    
  • 'Trials' by communities: In the most extreme cases the following may lead to 'lynch law':
    
    
    • Neighbourhood communities: Informal trials of members of a neighbourhood community may lead to various forms of sanction -- from 'shunning' to physical action. This process may be exacerbated by various forms of vigilantism with the judgements that it implies on unacceptable behaviour. Echoing the Salem trials, such processes led to the burning of some 200 individuals accused of withcraft in South Africa in 1994-5 (see above).
    • Neighbourhood gangs: Youth and other neighbourhood gangs may imitate the activities of secret societies in censorsing members or judging those in their area for targetting, especially those in rival gangs.
    • Alternative communities: Typically community meetings will have their own procedures for taking evidence against any member accused of actions contrary to the community's constitution, and then acting on any consensus with regard to the individual.
    • Bullying: Variants of the above will apply in the case of bullying of an individual in school, in the workplace, or in some institution (prison, military).
    • Radical groups: Important variants of the above are trials of non-members conducted by anarchist or terrorist groups (eg German Red Army Faction, Baader Meinhof; Italian Red Brigade), although such a 'trial' may effectively be conducted by an individual (eg US UNA bomber, or Timothy McVeigh, etc). [With respect to the UNA-bomber's manifesto, on the recommendation of US Attorney General Janet Reno and the FBI, and after weighing the ethical questions for three months, the Washington Post published the full 35,000-word text urging revolution against the "industrial-technological system." The Post and the New York Times split the cost of the printing and said they acted "for public-safety reasons." The Una-bomber had threatened to resume his murderous mail-bomb campaign unless one of the two papers published the treatise by week's end. At the time of writing the manifesto no longer appears to be freely accessible over the web]
    • Paramilitary groups: Like radical groups, they also undertake disciplinary trials of their members.
      
      
• Trial by media: With the progressive mediatisation of society, a major concern in the selection and consideration of evidence is the manner in which its treatment in the media may pervert the course of justice, even though investigative reporting has regularly uncovered criminal activity that has escaped the courts [more; more; more; more]. Jonathan Bernstein has for example explored Integrating Public Relations and Legal Strategy: Trial by Media as a feature of crisis management. It is recognized as not constituting due process [more], irrespective of any inherent bias [more]. Clearly the extensive media exposure of Osama bin Laden, in a deliberate propaganda war, makes it virtually impossible to envisage a normal legal process in any trial. In relation to the 'evil' of terrorislm, it is somewhat ironic that a US PBS media account in 1999 of the 1994 Rwanda massacre is entitled the Triumph of Evil when it also reports on subsequent investigation showing that it was western countries, and notably the Clinton administration, that failed to respond to the crisis.
  
  
• Civil society judgements in relation to moral, ethical or ideological belief systems: Beyond judgements by specific groups, informal communities, networks and groups of peers may collectively engage in (democratic) processes that effectively assess evidence on a variety of issues. Such judgements may empower particular groups to effectively pass sentence and execute that sentence. Examples include:
  
  
  • Determination of life or death: Considerable debate, touching on the admissibilityy of evidence, occurs in relation to the status of a foetus, or a comatose adult. researchers would typically be dismissive of evidence in favour of the constraints inhibiting continuation of their work.
  • Determination of competence: Considerable debate focuses on whether individuals in particular conditions are competent, notably with respect to rights such as: voting, ability to act legally (sign a will), request euthanasia, refuse institutionalization, engage in sexual intercourse (and have progeny). All these raise issues about what evidence is to be considered acceptable and by whom.
  • Integrity of the human body: Certain belief systems attach particular importance to the integrity of the body, whether in life (as in the case of the refusal of vaccination by Jehovah's Witnesses) or in death (as in refusal of cremation, removal of organs, or extreme concern with regard to the recovery of dismembered bones of relatives).
  • Eugenics: Concerns about bloodlines, racial purity, and associated assements of intelligence have had major impacts on social policy in many countries. Examples include: the Klu Klux Klan (USA); the Nazi Lebensborn programme; sterilization of the mentally handicapped (eg in Australia, Austria, Canada, Denmark, Finland, France, Germany, Italy, Japan, Norway, Switzerland, Sweden and the USA). In each case evidence was selected and interpreted in particular ways -- often in secret.
  • Naming and shaming:
    • Environment: Environmental activists (including Greenpeace) have used a strategy of judging certain decision-makers for their extreme irresponsibility -- for crimes against the environment -- naming them on web sites in order to shame them.
    • Human rights: [more; more; more]
    • Sex offenders: As in the case of the environment, and notably in the UK with regard to paedophiles, communities (supported by some media) have sought to name offenders to prevent them from preying again on innocent communities [more].
  • Cruelty to animals: This has long been an active issue but evidence for 'cruelty' is assessed differently in different countries, legislations and cultures [more]. Increasingly there is a concern that commercial products be proven not to have been tested on animals [more].
  • Non-human rights:
    • Rights of animals and animal intelligence: The validity of evidence for animal intelligence is a matter of continuing debate [more; more; more; more]. Irrespective of the intelligence of animals, there has long been concern for animal rights [more]. There have been isolated cases in which owners have endeavoured to bequeathe their estates to animals. Animals have occasionally been elected to parliamentary bodies -- and even appointed to the Roman Senate ! In some classic cases, animals have been sued as legal persons (more), and may even be able to sue their owners [more].
    • Rights of plants: There are many humanist references to this concern [more], notably in relation to the 'suffering of plants', and beyond the human concern for 'intellectual property rights for plants' [more] or the concern for heritage plants.
    • Rights of sites: Interesting questions of evidence are associated with recognition of 'heritage sites' [more] or sacred sites [more]
    • Rights of robots and artificial intelligence: Although long explored in science fiction, attempts have been made, notably by Sohail Inayatullah (1987, 2001), to clarify the issues involved as artificial intelligence comes to rival human intelligence [more; more]. A particular focus is the nature of evidence for such artificial intelligence notably in a 'global brain' [more].
    • Rights of extraterrestrials: The legal challenge of the rights of extraterrestrials has attracted less attention than that of robots (Robert A Freitas Jr, 1977). The Philadelphia Bar Association has however given some consideration to whether: 'If an extraterrestrial alien is not deemed a human being, and consequently, not a person within the meaning of the law, should they still be entitled to the same constitutional protections as other (terrestrial) aliens? If not, could our government then quarantine them indefinitely, for example, or perform inhuman experiments on them? Obviously, as a threshold matter, there is a need to redefine the scope of the term "aliens" to include extraterrestrial aliens' [more]. This theme might be especially interesting in the event that the behaviour and attitudes of such aliens resembled those of human 'terrorists' more than those of non-terrorists [more].
  • Activitists: Various forms of protest are increasingly being judged to be 'terrorist':
    • Anti-abortionist: Judgements made by pro-life, anti-abortionists, have been associated with attacks on abortion clinics and their personnel. As with attacks by animal rights activitists, there is now a tendency to label such attacks as 'terrorist' [more]. Abortionists may explicitly describe themselves as a "terrorist to the abortionist" engaged in a holy war. Terrorism experts have also drawn a parallel between militant anti-abortion groups like the Army of God and international terror organizations like Osama bin Laden's al-Qaida. [more]
    • Animal rights: Judgements made by activists have been associated with attacks on laboratories experimenting on animals and their personnel. In the UK, for example, such groups are considered to be the most successful 'terrorists' [more; more]
    • Peace: [more]
    • Environmentalists: Eco-activitists of various kinds are increasingly framed as 'eco-terrorists' by those they oppose [more]

Sectors extending the challenge of refining rules of evidence

• Scientific method: As the trial of Galileo demonstrated (see above), the capacity of religion to provide a transparent framework for appropriate handling of evidence had its limitations. It is the scientific method that has subsequently done most to clarify the adequacy of evidence submitted in court cases, notably through the emphasis on 'disproof' and development of forensic techniques. However, although the mainstream 'scientific method' may represent an ideal, in practice its application differs significantly from 'discipline' to 'discipline' -- to the point that many scientific disciplines view the 'evidence' of other disciplines with dismay. This is most evident between the 'hard' and 'soft' sciences. It is also the case that in court cases both the prosecution and the defence can find 'scientific experts' prepared to support their particular assessment of evidence -- without arousing any consolidated critique from their professions. The handling of evidence by mainstream science is however also challenged by the following:
  
  
  • Research requiring unusual 'chains of evidence': Of special interest to the handling of evidence are some recent techniques to prove certain mathematical theories. Mathematicians, in the absence of a logical proof, have been forced to accept the very heavy use of computers to test very large numbers of conditions as part of the 'proof' of a theory [more]. On the other hand, some proofs of major significance require up to 300 pages of equations (as in the case of Fermat's Last Theorem) to justify the conclusion -- a chain of reasoning that may only be comprehensible to a handful of colleagues.

  • Research on low frequency events: Fundamental particle physics requires highly expensive apparatus working with very high energies in order to detect phenomena that are statistically extremely rare, as well as being difficult to detect. In no other domain is evidence of such rarity (and so difficult to replicate) considered admissible, whatever the number and quality of anecdotal accounts. Different issues in the treatment of evidence are required in the handling of 'anomalous' data points in any research (eg the 'massaging' of data in the efforts to dismiss 'cold fusion' or recognition of the 'ozone hole'). Such 'anomaly research' has become a field in its own right [more] -- although the term has been partly taken over by those groups most interested in speculative interpretations (see below).

  • 'Fringe' science: Disciplines such as biodynamic agriculture (Steiner), radionics, homeopathy, psychotherapy, morphogenic fields, depth psychology, graphology, etc all tend to challenge the treatment of evidence by mainstream disciplines. Some of these disciplines may eventually be absorbed into the mainstream. The philosopher of science, Paul Feyerabend (Against Method, 1975) has been the most creative in extending the notion of 'discipline' beyond its more mainstream scientific limitations.

  • 'Non-western science': Despite its non-western origins, science has long-tended to define itself according to a western model that has dismissed as 'quaint' the approaches to science of other cultures. With the rise of science in Asia, this position is now increasingly suspect. Without rejecting 'western' science, other approaches to evidence are expected to nuance and extend the handling of evidence (see Susantha Goonatilake, Toward a Global Science: mining civilizational knowledge, 1999) [more]

  • 'Indigenous science': As an extension of the non-western approach to science, new attention is being given to equivalents to the 'scientific method' in indigenous tribal cultures. (Darrell A. Posey (Ed.). Cultural and Spiritual Values of Biodiversity, 1999). Of interest with respect to the treatment of evidence in the emerging knowledge society, is the emphasis on other ways of knowing, or alternative knowledge systems (eg more; Africa; South Africa; India). Of special interest is the work of Bernard J. Hibbitts on Communication and Legal Expression in Performance Cultures: A Tentative Typology (Emory Law Journal 41, 4 1992)

  • 'Creationism': Mainstream science is institutionally challenged, notably in the USA, by creationist science that questions the evaluation of the evidence for evolution [links). The Christian fundamentalists holding to this perspective, and inspiring George Bush's faith-based social policies, may well ensure the emergence of a faith-based science, although such a treatment of evidence is strongly opposed by anti-creationists. It is interesting that alternative theories about the formation of the Earth acquired significant currency in Nazi Germany, and notably in the form of the hollow earth theory (which remains the concern of the International Society for a Complete Earth).

  • 'Psychic research': Psychic researchers into the paranormal have long endeavoured to apply the scientific method in ways that call for different approaches to evidence -- especially if some highly respectable witnesses are to be considered credible. It is somewhat ironic that US government interest in such matters was only stimulated by the research resources applied to it by the USSR and Eastern Europeans during the Cold War. This raises questions about the scientific attitude of Eastern Europeans, in their approach to evidence, compared to that of 'western' scientists -- a good example being the author Vasily Vasilyevich Nalimov

  • 'Speculative research': Mainstream cosmology and fundamental physics continue to result in a stream of speculative theories on the origin of the universe, the nature of time, wormholes, and parallel universes, etc. Such work severely tests conventional understandings of evidence. Distinct from this is the variety of fringe 'sciences' explore topics such as the extraterrestrial origins of man, UFOs, and the like, which also call for a different evaluation of evidence in the face of mainstream criticism [more; more]

  • Evidence-based research: This has notably been developed with respect to medicine and health care. As such it is of interest to clinicians, public health practitioners, purchasers, planners, and the public. It is the conscientious, explicit and judicious use of current best evidence in making decisions about the care of individual patients [more; more].

  • 'Action research': This can be described as a family of research methodologies which pursue action (or change) and research (or understanding) at the same time. In most of its forms it does this by using a cyclic or spiral process which alternates between action and critical reflection and in the later cycles, continuously refining methods, data and interpretation in the light of the understanding developed in the earlier cycles. It is thus an emergent process which takes shape as understanding increases; it is an iterative process which converges towards a better understanding of what happens. In most of its forms it is also participative (among other reasons, change is usually easier to achieve when those affected by the change are involved) and qualitative. Evidence is collected, and acquires significance, in ways that contrast with other research approaches [more].

  • Research on subjective experience: Mainstream science focuses on the objective and the quantifiable. Fundamental physics has generated many theories that challenge such limitations and attach great signifiance to the role of the observer -- opening up new approaches to the physics of consciousness. Independently great efforts have been made to explore meditation through the adapation of scientific methods. For example, some 500 research studies have been made on transcendental meditation [more].

  • Sponsor-conditioned research: University research is now highly conditioned in its provision of results, including 'evidence', by the needs of sponsoring corporations or governments (notably in the case of defence research). The whole climate of what might be open and independent scientific research has now disappeared. Research, and the quality of evidence, is now heavily conditioned by secrecy, a focus on patent potential, and a sensitivity to future contractual possibilities [more]. In the USA this has necessitated the creation of an Office of Research Integrity and a Center for Science in the Public Interest concerned with integrity in science [more]. The challenge is particularly evident in the case of medical papers prepared by pharamecutical companies who pay a large fee to eminent physicians to 'author' academic papers in support of proprietary drugs [more].

  • Revisionist research: Such research tends to take a radical approach to interpretations of received historical evidence. As one 'revisionist' site puts it: 'It is always the inclination of man to deny reality, to tidy things up, to wrap perception in the pretty party ribbon of partisanship and prejudice. It is the fate of the revisionist historian to forever wander the frontiers beyond party and dogma, cognizant of the original sin of his own subjectivity, but always struggling to see more, and give an account of what he sees with an utter disregard for the consequences of so fugitive a vocation' [more]. Revisionists may explore many topics using little known resources [more]. Most controversial are some revisionist denials of the Holocaust [more; refutation] or of its Japanese equivalents, notably the Nanking massacre [more] or the activities of Unit 731(see below) -- which continue to result in textbooks denying evidence or labelling it as fabricated [more; more; more; more]. Also of interest with respect to use of evidence are topics such as how data revisions distort economic policy research [more].

  • Unethical research: Research judged as unethical, for whatever reason raises issues as to whether it should be treated as flawed as a source of evidence [more]. Examples include: the inhumane medical research practiced on concentration camp prisoners in Nazi Germany [more; more; more; more]; inhumane post-war research on effects of radioactivity and biochemical weapons using military, civilian and penal personnel (notably by the UK and the USA); invasive anthropological research destructive of islolated communities (including removal of bones and sacred objects important to the identity of the culture); inhumane research on animals (including the notorious L50 test; more]; environmentally destructive collection of specimens; and fraudulent testing (eg as in the case of genetically modified organisms more]. Of special interest is the case of 'scientific whaling' in which the 'scientific community' as a whole remains complicit. In the case of biochemical warfare research by Japan on Chinese prisoners during War World II, the treatment of evidential issues arising from the notorious work of Unit 731 merit special attention [more]. This included vivisection, the release of plague bacteria, and engendering incurable open wounds (that in the case of 'rotten leg disease' continue to suppurate 60 years later) resulting in some 3000 deaths at the laboratory and estimated deaths of some 250,000 in 'field testing' [more; more] . The immunity from prosecution of those responsible (including the director General Ishii Shiro), notably by the War Crimes Tribunal, was negotiated by the USA in exchange for the medical evidence arising from such experiments [more]. The USA then became complicit in the cover-up of the operation -- despite the use of American POWs in some Japanese vivisection experiments [more; more] -- because the value of the data was of such 'importance to national security as to far outweigh the value accruing from war crimes' prosecution'. Members of the unit thereafter rose to leading positions in Japanese academic institutions, and have included the Governor of Tokyo, president of the Japan Medical Association, and head of the Japan Olympic Committee -- they continue to hold annual reunions. Japanese history textbooks ignore this incident and consider evidence to have been fabricated -- although the brother of the Emperor had for example revealed that a team from the League of Nations was served fruit laced with cholera germs when it came to investigate Japan's invasion of China in the late '30s [more]

  • Irresponsible research: This may be closely associated with unethical research, both being typically the concern of movements of scientists for social responsibility in science [more], notably in relation to defence research [more] and research projects with highly dangerous consequences for the atmosphere (eg HAARP; more] or for marine mammals (eg use of LFA; more) that may be described as global vandalism.
    
    
• Harassment of environmentalists: Investigative environmentalists arouse various forms of harassment, possibly associated with legal action, whether from corporations (notably in the USA) or from government (notably in Russia):
  
  
  • USA: nuclear, Errin Brockovich, etc
  • Canada: [more]
  • Italy: [more]
  • Russia: The pattern of arrests and harassment seems to focus on those who are scientists, environmentalists, and nuclear activists who have contact with foreigners or are foreigners. When arrested, they are often imprisoned without fully knowing the charges against them. There has been a pattern of planting drugs on individuals who will not fully cooperate with them or there is no other substantial "evidence" on them [more; more; more]
  • Mexico: [more; more]
    
    
  In endeavouring to protect the environment, notably through acts of peaceful civil disobedience, is Greenpeace indeed to be judged as a 'terrorist' organization or engaged in 'terrorist' activities, as some are claiming [more; more; more; more]?
  
  
• Policy-making
  • Precautionary principle: This principle calls for a new approach to evaluating evidence relating to possibly disastrous consequences [more; more; more]. Whilst this has been most recently applied in relation to environmental issues, it might be said to have a long history in relation to issues of national security. Ironically, it might be said that the policies curtailing civil liberties currently in course of implementation in western democracies -- especially arbitrary arrest, detention without trial, torture and political assassination -- are indeed 'precautionary'. However, from this perspective, it might be asked whether it should then be applied to repeal of capital punishment in anticipation of possible miscarriages of justice.

  • Realpolitik: This approach, notably advocated by Henry Kissinger (in opposition to human rights) and strongly implemented by Israel, might be seen as the traditional term for the 'precautionary principle' in the national security domain [more]

  • 'Good management' principles and 'Best practices': Determining 'best practice' has become a key to management of complex issues, and selection of appropriate approaches, in many domains [more; more]. It is a specific focus for the International Network for Progressive Governance [more]. Of special interest is the relevance of 'best practice' thinking in response to conflict resolution [more], especially in the case of the 'war against terrorism'. Over a seven year period, culminating in 1999, NATO developed a Code of Best Practice (COBP) [more]. To what extent have policy-makers formulating the response to terrorism drawn on the best of such 'best practice' in 'leaving no stone unturned'? What might have been neglected and why -- and how might it be detected? [more]

  • 'Unproven link' and issue recognition: The judgement 'unproven link' has been applied by leading politicians over past decades in relation to: acid rain, global warming, genetically modified organisms, scientific whaling, BSE, human cloning, stem cell research, etc (as any web search on 'unproven link' demonstrates). As a way of dealing with evidence, it continues to be applied whenever convenient -- and whenever the precautionary principle can be ignored. Of special interest is the manner in which it is used to deny the relevance of impoverished peoples (or the policies that ensure that impoverishment) to the emergence of terrorism. Ironically governments have been unable to respond to challenges about the quality of the evidence constituting the 'unproven' nature of the link between Osama bin Laden and the terrorist attacks -- to the point that this might be said to be the origin of the refusal of the Taliban to hand over Osama bin Laden to the Bush administration.

  • Conflicts of interest: [more]
    
    
• Dialogue: The process of dialogue might be understood as one in which 'evidence' is presented in a manner that allows for some degree of discussion, between parties with contrasting views, as to its validity or domain of application. It is noteworthy that metaphor is often used as a device to communicate in dialogue and the effects of this on understanding of 'evidence' need to be considered.
  • Political dialogue: In this case, how evidence is selected to be 'put on the table', and how it is then discussed, is important to any negotiation process -- and has become a special field of expertise governed by many different styles of conflict resolution. With respect to the current crisis in the Middle East, the failure of the 'peace process' has been in large part due to deficiences in the relation between the dialogue and the reality on the ground. More generally, how disputed evidence is selected, presented and interpreted in parliamentary bodies merits reflection -- notably given the extent that parliamentarians even engage in physical conflict in some modern parliaments.
  • Inter-faith dialogue: This case is complicated because of the primary emphasis on the intangibles of spiritual belief, its embodiment in dogma, and the value attached to particular scriptures. The nature of the 'evidence' thus totally modifies the quality of the dialogue. However, it is precisely such complications that are at the root of many of the conflicts inspired and sustained by religious differences. Extensive use is typically made of metaphor to convey insights into intangibles.
  • Interdisciplinary dialogue: This case, idealized since Plato's Symposium, is basic to the challenge of the fragmentation of knowledge and the unseemly quarrels between the professions. Disciplines may have very different standards of evidence and be totally contemptuous of 'evidence' produced by another discipline, or the validity of the chains of evidence in support of any conclusion. Interdisciplinary dialogue has had great difficulty distinguishing itself from rhetorical exercises.
  • Inter-cultural dialogue: Such dialogue effectively includes the challenges of the others, but further complicated by differences in language and epistemological framework. 'Evidence' presented by one culture may be quite meaningless in another framework. The variety of such frameworks, most strongly articulated by Magoroh Maruyama [more], has been explored in different ways [more].
    
    
• Property: The nature of ownership and property is a matter of continuing debate, and of violent conflict in the case of conflicting territorial claims by states. All parties involved have ways of selecting and interpreting evidence in support of their claims.
  • Territorial claims: Obvious problems of evidence arise in such examples as Kashmir, Jerusalem (and symbolically the Holy Sepulcher there), Northern Ireland, Western Sahara, Taiwan, various islands (Spratlys, etc). Of special interest are the claims to Antarctica, to the extent of territorial waters, or to the sea bed.
  • Real estate: Again obvious problems of ownership of real estate arise in many situations, notably on the occasion of some form of transfer of ownership (following death, war, etc).
  • 'Native title': The distinct understandings of the nature of ownership, and evidence for it, by indigenous peoples has resulted in many problematic situations in their interaction with primarily western concepts of property. This has been considerably exacerbated by a pattern of treaties by western (colonial) authorities granting or acknowledging land title. Such treaties having been ignored for a long period are now the subject of considerable controversy because of assumptions made according to western concepts of property that they were null and void (eg in Canada, USA, Australia, New Zealand).
  • Extraterrestrial property: Ownership of (geosynchronous) orbits around the globe has been made subject to legislation which is essentially non-controversial. The validity of evidence for claims of ownership of bodies such as the moon or planets is another matter. Property on the moon [more; morer elat
  • ), Mars, Venus, or even on more distant bodies of the solar system, is currently 'sold' on the basis of claims to title that have not been contested.
  • Intellectual property: Conflicts over evidence of ownership of intellectual property are a classic feature of modern litigation. The challenges, as with land, are considerably complicated in the case of indigenous peoples where their knowledge (eg of plants) is sought after as a commodity for a world market. This is further complicated because the notion and meaning of property may differ from a 'developed' legal tradition. This gives rise to moral and ethical challenges relating to the explmoitation of vulnerable cultures.
  • Provenance: Issues of evidence relating to provenance are of continuing interest to the art market and to sitations where smuggling, notably against sanctions, is a concern.
  • Forgery, counterfeit: The nature of evidence in relation to counterfeiting is a major concern in the protection of trademarks and currencies.
    
    
• Praxis and good practice (incomplete)
  • 'Best practice': (see policy-making above)
  • Sustainability
  • Simplicity: voluntary simplicity, Quaker plain style
  • Malpractice:
    
    
• Information evaluation and management (deception and counter-deception): This cluster focuses on how evidence is manipulated in various settings to gain some form of competitive advantage:
  • News management: Whether described as 'public relations' or 'propaganda', this has become of fundamental importance to the survival of corporate bodies, governments and prominent individuals. Considerable importance has been attached to the current international 'propaganda war' in winning 'hearts and minds' in connection with the struggle against terrorism. This is engendering sever problems of distingusihing evidence from disinformation.
  • Intelligence tradecraft: Intelligence agencies must necessarily make use of deception involving the manipulation of evidence, as well as its frabrication. For example, it is worth remembering the motto of the Mossad: "By way of deception, thou shalt do war." [more] Deliberate use may be made of agents provocateurs to distort evaluation of evidence, or to fabricate it.
  • Selling / Buying: Both advertising agencies and any skilled salesperson are distinguished by their ability to present and manipualte evidence in order to ensure a sale. Much debate is associated with misleading advertising claims. Buyers in any situation involving bargaining are also obliged to use some form of deception in order to ensure a good deal.
  • Competitive games: Many games, from poker to tennis, involve a measure of deception. The art is to present what may be interpreted as hard evidence of intentions in order to gain competitive advantage.
  • Mutual deterrence: Fundamental to nuclear deterrence as a strategy has been maintaining an appropriate balance between transparency and deception. Some evidence needed to be presented as reliable in a context in which comparative advantage could only be gained by deception.
  • Handover procedures: The treatment of evidence is vital in negotiations for handover procedures in connection with kidnapping against ransom.
  • Fraud: Such situations essentially require extreme versions of the deception practiced during selling/buying (above).
  • Conspiracy theory: Such theories explore systematic deception on the basis of the interpretation of selected patterns of evidence. They tend to emerge as alternative interpretations of major events (eg assassination of the Kennedys, WTC attacks, etc)
  • Media responsibility: The media, including advertising agencies, are faced with the degree of responsibility that they take in what they choose to disseminate as factual. Issues include the degree of self-censorship, selectivity, bias, and blatant exaggeration.

Assessment and evaluation -- incomplete)

Each of the following suggests different approaches to evidence. Each may well imply a different quality and solidity to the evidence.

• Monitoring: Establsihing evidence is often based on monitoring programs, leading to interpretation based on indicators and threshold levels:
  • Indicators and threshholds
  • Inspection: In this case much depends on the quality of the inspection and whether the inspector has in any way been encouraged to 'turn a blind eye' or provide a less critical report of any anomalies.
  • Novel threats: Whilst novel threats may include those for which evidence was unforeseen by normal detection methods, they may also include threats fabricated to justify increased budgets. Military establishments and marketers of health products typically seek to provide evidence of novel threats. Conspiracy theorists argue that the 11th September attacks, and especially the anthrax attacks, were part of the process of defining the seriousness of terrorism as a novel threat.
  • Quality control: In addition to hands-on inspection, quality control may be based on monitoring techniques.
  • Testing:
    • Materials
    • Organic products
    • Drugs, pharmaceutical products
• Confidence under uncertainty: Any assessment process may be dependent on statistical techniqes to determine the degree of confidence in results that may be presented as evidence.
  • Statistics of confidence limits: Evidence may be presented as conclusive, if the probability of its being incorrect is below a certain threshold.
  • Investment: This focuses on the nature and quality of evidence justifying an investment decision
  • Gambling: As with investment, gambling depends upon assessment of a variety of kinds of evidence -- which may include incidence of lucky numbers or days.
  • Conversion: The decision to 'convert', whether with respect to religious, political, ideological, dietary, therapeutic or cosmetic domains, is based on a particular way of selecting and intepretating evidence
  • Abused substances and habits:
    • Evidence of 'abuse' of substances: Here the focus is on what constitutes acceptable evidence of 'abuse' (eg in the case of alcohol, smoking, drugs, notably marijuana)
    • Evidence justifying use of the substances (and dependency): Here the focus is on the evidence justifying use, as articulated by addicts and those dependent on the habit
    • Legalization: Here the focus is on the evidence of the social implications of criminalizing abuse
  • Assessment of pharmaceutical drugs
• Liability: The insurance industry is notably highly attentive to issues of liability. These tend to be carefully identitifed in contracts in association with what will evidence wqill be required:
  • Accident: damage to property
  • Financial: notably in the event of bankruptcy
  • Environmental: notably in the event of damage to the environment
• Government commissions of inquiry
  • Reviews of criminal investigation: Warren Commission, etc
  • Reviews of government research: hazardous medical experiments (radiation), UFO data collection, etc
  • Reviews of progress: Rio+10, etc
• Corporate / Collective:
  • Risk analysis: This is a major source of evidence for investment decisions.
  • Creditworthiness: Assessment of creditworthiness is a major source of evidence in support of investment decisions.
  • Skills and experience: Evaluating bodies in terms of such criteria is fundamental to establishing evidence for their competence to execute a contract.
• Personal:
  • Risk: Individuals constantly seek evidence of the level of risk of any undertaking (including cross a road) and are so evaluated by corporate bodies with a view to lending money, employment, etc
  • Creditworthiness: Evidence of the creditworthiness of individuals is a major concern for the viability of financial transactions, notably of an electronic nature.notably
  • Skills and experience: Education, hiring and firing, and collaborative arrangements of any kind are based on some assment of the quality of evidence distinguishing suitable from unsuitable candidates.
  • Vocation: Major life choices concerning individual vocation are based on decisions about available evidence.
  • Health diagnosis: Individuals are naturally sensitive to evaluating evidence, symptoms, signs, etc (including interpretation in non-western systems) of their health and the options in response to problematic signals.
  • Relationships:
    • Kinship: Evidence of kinship, to whatever degree, is of major interest in many cultures, and especially non-western cultures. However even within western cultures genealogical evidence is avidly sought, notably stimulated by the Mormon religion. Such evidence may be especially important in all cultures in relation to inheritance.
    • Partnerships: Particular approaches to evidence are developed in the case of dating (characteristics), that are formalized to varying degrees by dating agencies. Individuals devote considerable attention to evidence of romance and whether they are loved. Traditionally, and in contrast to the former, evidence is sought (notably by parents) concerning suitability for marriage.
    • Friendship: Assessment and recognition of friendship is based one evidence which may be conststantly re-evaluated.
    • Social status and worthiness: In status oriented societies, evidence of appropriate status (and provision of evidence in support of it) may be a constant preoccupation. 'Black-balling' of any form is based on negative assessments.
    • Sexual harassment: Individuals may be forced to evaluate the nature of any interaction for evidence of sexual harassment.
  • Intangible qualities:
    • 'Power': Considerable importance is attached to evidence of: charisma, elan, baraka, etc
    • Spirituality: Special attention may be given to the nature of evidence for some form of spirituality: sanctity, saintlihood, 'old soul', etc. Special procedures may be elaborated as in the Catholic beatification process and recognition of Tibetan reincarnations (eg Dalai Lama)
    • Reincarnation: Independently of notions of spirituality, greazt attention may be given to evidence for reincarnation, notably in New Age and esoteric communities.
    • Special claims: Individuals may present themselves as spiritual leaders on the basis of special claims. These are a constant challenge both in terms of making the claims credible and in evaluating their credibility.
    • Superstition: This is based on special interpretations of selected evidence leading to conclusions about auspiciousness, inauspiciousness, and the presence of 'evil' (eg 'evil eye').
    • Detection of 'evil': Evidence for this determination is fundamental to the activity of witchdoctors and those who believe in them. It is associated with the discipline of exorcism and was of major importance during the period of the Catholic Inquisition -- although in 1999, indicating comtemporary preoccupation with evidence concerning the presence of the devil, the Pope issued the first revision of the rules for exorcism since 1614 De Exorcismis et supplicationibus quibusdam [more; more; more]. It is also interesting, as part of the formal judicial process, that on occasion western judges continue to pronounce on the degree of 'evil' they detect in a criminal on whom they are passing sentence. Consistent with this tendency has been that of the leaders of the USA and the UK to detect evidence of 'evil' in the attackers of 11th September. Belief in the process of 'sniffing out evil' -- through which evidence is located in a particular way -- continues to be promoted by religious groups closely associated with Christian politics [more; more] as it is by traditional witchdoctors. In the 19th century 'witch sniffing' was used and abused by successive Zulu, Mandebele and other kings to get rid of suspected rivals; those accused of witchcraft were allowed no redress but were instantly clubbed and stabbed to death [more].
• Political correctness: The concern here is with the nature of evidence for political (in)correctness.
• Culpability
• Moral or ethical responsibility
  • Responding to people in danger
  • Bearing witness
  • Invasive research
• Competition: In any competition with unclear rules there may be no clear understanding of what constitutes 'winning' or 'losing'. One side may select and interpret evidence to support its declaration of 'victory' -- although others (including their opponents) may dispute this. The UK declaration of 'victory' in the campaign in Afghanistan [more] has been disputed, notably in the light of the original objectives [more]

Alternative frameworks and belief systems (appeals to other forms of reason)

As noted earlier, a number of attempts have been made to provide frameworks identifying the range of cultural frameworks that may strongly affect the way evidence is presented or interpreted [more]. Every language could even be understood as such an alternative framework. Some specific examples of situations where be evidence may be selected and interpreted differently are:

• Aesthetics: Differences of opinion about what constitutes 'good' or 'bad': art, decor, dress, cosmetics, taste, etc.
• Therapies (western): Differences of opinion concerning the merits, in contrast with mainstream therapies, of: homeopathy, naturopathy, aromatherapy, psychotherapy, etc. The western medical profession may produce strong evidence to indicate that such approaches are without foundation and therefore irresponsible.
• Therapies (non-western): Differences of opinion concerning the merits, in contrast with western therapies, of: acupuncture, ayurveda, qi-gong, etc. The western medical profession may produce strong evidence to indicate that such approaches are without foundation and therefore irresponsible. Conversely, their practitioners may produce evidence of success where western therapies have failed. The signifance in practice of some of these therapies is indicated by the response of the Chinese government to the Falun Gong [more].
• Faith healing: Differences of opinion concerning the merits, in contrast with mainstream therapies, of: miracles, 'psychic surgery', laying-on of hands, etc. Of particular interest is the medical efforts to authenticate miracles at Lourdes [more].
• Divination systems (augury): Differences of opinion concerning the merits of: astrology, spiritualism, clairvoyance, shamanism, voodoo, tarot, etc, notably to identity auspicious or inauspicious occasions. It is important to recognize the extent to which these systems may be used by decision-makers, even at the highest level (eg Reagan more], and especially in non-western cultures.
• Indigeneous cultures: As noted earlier, the implications of indigenous cultural frameworks have been extensively documented (eg Darrell A. Posey (Ed.). Cultural and Spiritual Values of Biodiversity, 1999).
• Philosophies: Many philosophies effectively provide contrasting epistemological frameworks through which factual evidence may be various elected and interpreted: idealism, existentialism, materialism, process logic, etc.
• Geomancy: Interpretation of topological features on the basis of forms of evidence contested within mainstream frameworks is a characteristic of: feng shui (China), ley lines (Europe), songlines (Australia), sacred sites/rocks/rivers (many countries), etc.

Some of these frameworks take a very radical approach to evidence considered 'solid' by the mainstream mindsets favoured by the western-dominated international community. The relationship between Buddhist meditation and personal construct psychology provides an example [more]. The uncompromising evidence for 'individuality', for example, is challenged by those more persuaded by insights into 'community'. As another example, what exactly is the evidence for the existence of a nation-state like the USA? Its existence is primarily a matter of affirmation -- a collective construct to which people may be required to express allegiance as to the Gods of Rome or Athens. Assertions may be made about its boundaries and land surface, about which 'evidence' may be collected. But for some the manner in which they form the 'USA' is essentially as a social construct and a matter of consensus [more; more] -- reflected in a pattern of laws and treaties that are designed to formalize that construct. Evidence may be adduced for its action as a whole, and its unique skill in doing so (namely its operacy). How exactly does such evidence differ from that for the gods of the classical period -- who had temples constructed that served like the ministeries of the nations of today? Kenneth Boulding makes a related point in relation to understanding of the individual:

"Our consciousness of the unity of the self in the middle of a vast complexity of images or material structures is at least a suitable metaphor for the unity of a group, organization, department, discipline, or science. If personification is only a metaphor, let us not despise metaphors - we might be one ourselves." (Ecodynamics; a new theory of societal evolution. Sage, 1978 , p. 345)

Such queries are only trivial if the belief in the immediate reality of the afterlife, by some, is to be considered trivial in a world riven by religiously sustained conflicts.

Issues relating to evidence and argument

The following points have now acquired renewed significance in a context in which the international rule of law has been overturned or severely handicapped [more]. The response to terrorism has now seen the emergence of provisions for seizing suspects without charges, holding them incommunicado (notably without access to any lawyer), strong recommendation for the use of physical violence (including torture), secret trials, non-disclosure of transcripts of proceedings -- in fact every abuse which western civilization has endeavoured to safeguard against. From recognition by the USA of evidence for the existence of 'crazy' or 'rogue states' that defied the norms of the international community of which it was a principal defender [more; more; more] , the USA has itself now come to be perceived by many as a 'rogue state' in the light of evidence of its defiance of international law [more; more; more; more; more; more] -- and indeed has decided to cease its use of that descriptor of others [more].

In dealing with terrorist suspects in 'military tribunals' (following a presidential executive order of 11 November 2001), the US Secretary of Defense will appoint the judges, most likely military officers, who will decide both questions of law and fact. Unlike federal judges who are appointed for life, these officers will have little independence and every reason to decide in favor of the prosecution. Normal rules of evidence, which provide some assurance of reliability, will not apply. Hearsay and even evidence obtained from torture will apparently be admissible. This is particularly frightening in light of the intimations from U.S. officials that torture of suspects may be an option -- and that there is no possibility of confirming the veracity of statements that it is not being used. Rules of evidence help insure the innocent are spared, but also that law enforcement authorities adhere to what many thought were evolving standards of a civilized society [more]. Protests have been articulated [more; more].

• Evidence: Some of the issues regarding the adequacy of evidence in the above cases include:
  • False evidence: Whether inappropriately selected, or deliberately planted, evidence may be subject to some form of falsification, or deliberately fabricated (unofficially or officially) [more]
  • Destruction of evidence: This may include destruction of records and official documents. It is particular effective where a chain of evidence is required to substantiate a case.
  • Tampering with evidence: This may include unauthorized modification of records, notably to ensure (or avoid) a conviction [more]
  • Ignoring evidence: In the process of selecting evidence, some may be deliberately or inadvertently ignored. This may extend to its presentation.
  • Inadmissability of evidence: Evidence may be declared inadmissible for a variety of technical reasons, including its origin in other jurisdictions. The available evidence may be deliberately fragmented so that a meaningful case cannot be constructed.
  • Illegally obtained evidence: Evidence may be obtained by infringement of procedural guidelines, including use of intimidation and violence -- extending to torture.
  • Evidence decay: Some forms of evidence may 'decay', whether physically or because of unreliability of memory after a period of time.
  • Unreliable evidence: Some evidence may be unreliable because of the age or condition of a witness.
  • Inadequacy of evidence: The available evidence may be inadequate for conviction. this raises special issues in the case of 'known' offenders, and the significance of 'known'.
  • Arbitrary standards of evidence: Standards may vary between jurisdictions, notably between countries, between disciplines and between cultures.
  • Framing suspects: In the number of a number of highly publicized cases regarding misuse of evidence, there is now widespread suspicion regarding the extent to which suspects may be framed ('stitched up') during official investigations.
  • Suppression of evidence: This is the procedure whereby the existence of certain evidential material is withheld from parties most capable of making effective use of it in the cause of justice.
  • Withholding of evidence: Vital evidence may be withheld, notably if it has been (deliberately) subject to some form of secret classification.
  • Unsubstantiated claims to possess evidence: This is increasingly practiced by any authority that can shelter behind arguments that the evidence must be concealed for 'confidentiality', 'national security', or other reasons -- including the possibility that it might panic the public. It forces others to accept that the evidence must be solid or in some way challenge the integrity of that authority. Such an approach has been the principal characteristic of claims regarding evidence of the responsibility of al-Qaida for the 11th September attacks, and for the need to attack the 'Axis of Evil' countries, and others unsupportive of american policies.
  • Denial: One of the most frequently used procedures is simply the denial of evidence. This is notably used by governments with respect to actions that they have taken in the past. Classical examples include: denial of the Vatican with respect to wrong-doing on the part of the Inquisition, or its failures during the Nazi era; denials of the Japanese government of its role in the Nanking massacre [more]; denials of the Turkish government with regard to the Armenian massacre in 1919 [more]; denials of the Holocaust by revisionists [more; more; more]; denials of the US government with regard to their involvement in state-supported terrorism. Of special interest, for some, is the denial of evidence of God's existence [more; more; more] or for evolution [more; more]. It is ironic that both George Bush and Tony Blair believe firmly in the existence of God (as do those they oppose), but nevertheless exhibit the same degree of difficulty in providing hard evidence for the threat of terrorism as they do for God -- possibly because they are both more persuaded by faith-based standards of proof that rely on labelling selected phenomena as 'evidence' confirming their belief, and would presumably not be averse to helping others to share this belief by evoking incidents that can be so interpreted.
    
    
• Witnesses: Evidence is in part provided by witnesses in situations subject to difficulties such as the following:
  • Failure to appear: Witnesses may fail to appear as requested.
  • Tampering: Efforts may be made to tamper with witnesses and informants in proceedings. This may include intimidation, death threats and their implementation.
  • Unwillingness to testify: Witnesses may be unwilling to testify against offenders, or may fail to provide adequate information.
  • Denial of right to examine witnesses: Appropriate expertise may be refused in the examionation of witnesses.
  • Disagreement among experts: Those examining the witness may disagree on their conclusions.
    
    
• Confession: In dealing with terrorist suspects, much has been made of the condtions under which confessions have been obtained, and the need to use some form of torture to ensure that vital information is not withheld.
  • Mistreatment of suspects: It is regretable that the US is so lacking in confidence in its own position that it finds it necessary to treat suspects in an undignified manner to the extent of shaving of the beards of "detainees" transported to their base at Guantanamo (Cuba) -- a treatment that constitutes a breach of their human rights according to the Red Cross (and a strange irony in the light of the beardedness of the founding fathers of the USA). One American commentator compares the current approach -- the seizure of some 1,100 aliens, Arabs, Muslims -- to the notorious use of 'disappearances' in Latin America [more; more]
  • Use of torture: Amnesty International is assiduous in reporting use of torture: people reportedly died as a result of torture in over 80 countries; torture or ill-treatment by state agents was reported in over 150 countries and was widespread in more than 70 [more]. As during Stalin's Great Terror, there is no doubt that torture is used to force confessions. Naturally, psychological torture in the form of threats to relatives and the arrest of family members also plays its part in the confessions. In a supreme irony, Pravda now asks whether the USA will torture terrorist suspects [more], with the BBC asking whether this should be 'allowed' [more]. Revelations concerning the systematic use of torture by the UK in Northern Ireland, by France in Algeria, by China against dissidents, have created a climate in which it is now acceptable that permanent members of the UN Security Council should defy the UN's own international conventions to engage in this process -- making it hypocritical for them to condemn its use by Israel against the Palestinians.
    
• Privileged confessions: Also of interest in this context is the impact of privileged confessions on admissible evidence. The classic examples are parishioner-priest, client-doctor, and client-lawyer relationships.
• Self-criticism: Also of interest is the practice of self-criticism developed under communism and within certain religious and other communities. The process of self-criticism has itself been critized because of the degree of peer pressure.
• Community testimony meeting: The form of testimonial evidence that is a major focus of a testimony meeting of a community, especially a religious community, may bear some relation to the practice of 'self-criticism' most evident under communism. Such evidence is notably criticized by religious sceptics: 'Testimonials and vivid anecdotes are one of the most popular and convincing forms of 'evidence' presented for beliefs in the transcendent, paranormal and pseudoscientific. Nevertheless, testimonials and anecdotes in such matters are of near zero value in establishing the probability of the claims they are put forth to support.' [more] (Robert Todd Carroll, The Skeptics Dictionary).
• Bearing witness: This expression has important symbolic connotations in relation to the assembly of evidence, notably of any form of tragedy. It may be associated with the form of evidence presented at a testimony meeting. The obligation to bear witness may be used as part of a procedure of torture -- as a means of extracting a confession. There are many examples on the web.
• Symbolism of signatures: It is curious the importance attached by even the most reprehensible torturers to 'signature on a confession' as though this somehow conferred validity on 'evidence' presented in the signed declaration. Abstraction is made of the notion of 'duress' that nullifies such evidence in other circumstances.
• Investigation of dissidents: In the USA there is now considerable concern at government interrogation of growing numbers of Americans apparently because they have criticized the government, President Bush, or the war on terrorism. [more].
  
  
• Consultation: Some form of public consultation may be fundamental to the acquisition of evidence in relation to an issue or to a proposed policy. Of interest here is the credibility attached to such evidence and to the manner in which it is taken into account in practice. A major concern is the degree to which engaging in a consultation is used to claim that public evidence has been taken into account, especially when there is absolutely no intention of doing so.
  
  
• Intellectual terrorism: Of interest in the above context is the phenomenon of intellectual terrorism whereby suspects or witnesses are subject to forms of pressure that have the nature of 'terrorism' [more]. One Egyptian commentator argues that 'intellectual terrorism is the most dangerous of all types of terrorism, whereby the 'word' becomes more powerful than the bullet, and more murderous than the poniards' [more]. A Nobel Lareate has argued that Ayatollah Ruhollah Khomeini is guilty of "intellectual terrorism" in declaring that the author Salman Rushdie has been "sentenced to death" for a novel deemed offensive to Islam [more].
  
  
• Self-censorship: In the new climate that has been generated by a clumsy response to terrorist threats, self-censorship has become a matter of prudence as under any dictatorial regime. In this sense terrorists have 'won' through their de-stabilization of western cdivilization.
  
  
• Inference and chains of evidence: It is clear that the 'chain of evidence' required for any proof against terrorist suspects is now totally questionable in any normal court of law. It is understandable that some would seek to create their own law in order to ensure the conviction of those they 'know' to be guilty.
  
  
• Fallacious arguments: Fundamental to the use of evidence is the challenge of avoiding use of fallacious argument -- or detecting its use in deliberate or inadvertent presentation of any case. Several extensive checklists of such arguments are available on the web.
  • Don Lindsay: http://www.don-lindsay-archive.org/skeptic/arguments.html
  • Stephen Downes: http://www.intrepidsoftware.com/fallacy/toc.htm
  • Robert H Thouless: http://www.srds.ndirect.co.uk/tot/toolbox.htm#Straighten and Straight and Crooked Thinking; Pan (1953)
  
  The future may see the use of such checklists as a kind of template/filter against which to rate arguments being put forward on political issues, and notably crises such as that against 'terrorism'. More generally, each kind of argument could be coded (say 5 codes each) to distinguish them and enable them to be clustered in other ways. It is possible that an argument could be cut/pasted into a web form (as with the altavista babel fish translator, or a grammar checker) and get back some kind of indication of the formal strength of the argument or its vulnerability to any of the weaknesses in such a list.

Distinguishing terrorists from freedom fighters and change agents

• Groups and movements: In response to terrorism, there is a major emphasis at this time on identifying terrorist organizations, as exemplified by al-Qaida. The problem is that when the criteria for identification of such organizations are specified, questions are raised about whether groups responsible for the present democratic status of many countries could well be defined as 'terrorist' and qualified for inclusion on such lists. The irony is that many such groups are now extolled as heroic in the hisotry of the country. This dilemma extends to social movements responsible for introduction of human rights and other valued measures into the legislation of those countries. In raising such questions it is clear that evidence for 'terrorism' is selected and interpreted differently -- even by those in favour of broad definitions. The quandry is exemplified (as noted above) in the case of activist groups acting in support of values with which some in power do not fully identify and which involve forms of civil disobedience that are socially disruptive. Of special interest is the degree to which perception of 'terrorism' emerges as a result of the degree of repression preventing peaceful protest or attention to the views expressed by protestors -- and may only be so perceived by the dominant establishment [more; more]. Texts exploring the dilemma are given as links.
  
  Examples include:
  
  
  • 'freedom fighters': national liberation from colonialism, dictatorship or occupation:
    • resistance groups during World War II
    • 'liberation' movements (France, USA, Kenya, Zimbabwe, South Africa, Congo, Algeria, etc)
    • Israel: Irgun which blew up the wing of the King David hotel in Jerusalem, in May 1946 (housing the British Palestine Command) whose soldiers subsequently led the "Likud" political party
    • USA: Continental Congress, POW/MIA Freedom Fighters
    • Lebanon: Hizbullah [more]
    • Sri Lanka: Liberation Tigers of Tamil Eelam [more]
    • Ireland: Ulster Freedom Fighters
  • minority rights groups
    • womens voting rights
    • indigenous peoples rights
  • issue activists
    • worker protests
    • peace protests, notably in opposition to nuclear and other weapons of mass destruction
    • civil rights protests, notably against apartheid and discrimination in the (sourthern) USA
    • environmental activists
    • animal rights activists
    • anti-abortion activists
    • Euro-sceptics [more]
  • religious activists
    • nonconformists (Puritans), Mormons, etc
    • *** etc
  • etc
    
    
• Individuals: Whether in isolation, or as part of the above groups and movements, some renowned individuals run the risk of qualifying for the lable 'terrorist'. Given that some Nobel Prize Laureates are curently under judical investigation for activities that might be considered 'terrorist', it might also be useful to review the recipients of the Right Livelihood Award from this perspective. In each of the following cases, it might usefully be asked whether the individual could have been so labelled had the label been as omnipresent as it is at this time:
  • Oliver Cromwell (England)
  • Joan of Arc (France)
  • William Wallace (Scotland)
  • Mahatma Gandhi (India)
  • George Washington (USA)
  • Menachem Begin (leader of the Irgun, Israel)
  • Nelson Mandela (ANC, South Africa)
  • Jomo Kenyatta (Mau, Mau, Kenya)
  • Yasser Arafat (PLO, Palestine)
  • William Tell (Switzerland)
  • Lech Walesza (Solidarnocz, Poland)
  • Klaus von Stauffenberg (Germany)
  • Vaclav Havel (Czechoslovakia)
  • Mordechai Vanunu (Israel)

In all these cases there is a special danger that the existence of the category 'terrorist' enables some, whether deliberately or inadvertently, to falsely label social actors in the light of inappropriate use of evidence.

This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License. For further updates on this site, subscribe here