Oregon Law Review
Relevancy decisions, according to the prevailing view, are matters of probability, whether a given piece of evidence makes any legal proposition more (or less) likely to occur. This view has long held sway, from the early rationalist scholar James Bradley Thayer through the codification of formal rules of evidence, supplanting the common law’s acceptance of witness-framed narratives. But a purely logical analysis, one famously framed in terms of a mathematical equation, seems ill-suited for trial decisions. And the Probabilistic Paradigm often excludes context necessary for a party to present its case. This Article brings together two areas of scholarship that challenge a purely logical approach to relevancy decisions. Drawing on cognitive science and philosophy, the Explanatory Paradigm offers an effective critique of making admissibility decisions based on probabilistic formulas. This model also provides robust criteria for judging explanations. The Explanatory Paradigm, though, gives little attention to the role of narrative, a concern at the heart of Applied Legal Storytelling. This Article aims to correct this oversight. Applied Legal Storytelling’s insights on narrative and context, combined with the criteria of the Explanatory Paradigm, offer a workable alternative to the Probabilistic Paradigm. This project, in important ways, restores the common law’s embrace of witness stories as a way to determine the truth.
Stefan H. Krieger and Jonathan D. Krieger,
Storytelling and Relevancy, 99 Or. L. Rev. 163
Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/1327