Storytelling and Relevancy

45 Pages Posted: 21 Jan 2021 Last revised: 12 Mar 2021

See all articles by Stefan H. Krieger

Stefan H. Krieger

Hofstra University - Maurice A. Deane School of Law

Jonathan Krieger

Independent

Date Written: January 13, 2021

Abstract

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.

Keywords: Storytelling, Relevancy Rules: FredR. Evid. 401, explanatory Paradigm, Probabilistic Paradigm, applied legal storytelling, narrative

JEL Classification: k41

Suggested Citation

Krieger, Stefan H. and Krieger, Jonathan, Storytelling and Relevancy (January 13, 2021). Oregon Law Review, Vol. 99, No. 163, 2020, Available at SSRN: https://ssrn.com/abstract=3765558

Stefan H. Krieger (Contact Author)

Hofstra University - Maurice A. Deane School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States

Jonathan Krieger

Independent ( email )

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
47
Abstract Views
218
PlumX Metrics