Read the case State v. Ransom (pp. 411-425). Consider your verdict. Prepare a document that expresses your deliberation that justifies your vote of guilty or not guilty. The goal is not simply a w

3 Ad Hominem Arguments

Listen to the Chapter Audio on mythinkinglab.com

We have talked about inductive and deductive arguments, valid and invalid arguments, strong and weak arguments. But little has been said about the sources of arguments. The reason is that in analyses of whether an argument is valid or invalid, strong or weak, the source of the argument is irrelevant. Criticizing the source of an argument rather than the argument itself commits the ad hominem fallacy.

The Ad Hominem Fallacy

Ad hominem arguments are, literally, arguments “to the person.” There are many dangers, confusions, and temptations associated with ad hominem arguments. But if you faithfully follow one commandment, you can avoid most of the pitfalls and snares of the ad hominem fallacy. That commandment is

When considering the quality of an argument, thou shalt not consider the source of the argument.

It does not matter whether the argument was given by Richard Nixon or Mother Teresa or Al Capone or St. Francis or God Herself: If it’s an argument, it must stand or fall on its own merits. The argument may come from the mouth of a babe or of a sage, it may be sung in the rich resonant tones of Pavarotti or screeched in the grating cry of the Jabberwocky, it may be carved on gold tablets or scribbled on a scrap of paper—it doesn’t matter. You cannot judge an argument by its source. If we should discover that an argument long attributed to Socrates was in fact given by Socrates’ favorite sandalmaker, then that would be important for scholars studying ancient Greek philosophy, but it would have no bearing on the strength of the argument.

Productive argument—whether the argument process is adversarial or cooperative—requires an atmosphere of respect for the participants in the argument. The attacks on character and motives that have become standard practice on talk radio and on many blogs and message boards destroy the mutual respect that is the essential starting point of intelligent critical argumentative exchange; and when the conditions for fruitful argument are damaged, democracy itself is threatened. There are still blogs and forums where intelligent civil debate flourishes; but sadly, in many forums name-calling and personal invective have become so common and ugly that room for critical argument is crowded out. The following remarks—lifted from message boards that are supposedly devoted to argument about important issues—are typical:

It is clear that Keyboardtek is a Kool-aid drinker and should have been in Jonestown. Keyboardtek is just another Anti-American Al Quaida collaborator who wants to destroy this country.

And this:

All you talk about is how evil the government is, you sound like a confederate. I bet you wish there was still slavery. Yes, the government is out to get you, the moon landing was a hoax, JFK was a conspiracy, and the government was responsible for 9/11. You are just a crazy, superstitious bastard.

Such ad hominem attacks have no place in serious critical argument: first, because they poison the atmosphere and make serious argument impossible (name-calling is not argument); and second, because they are clearly fallacious. The source of an argument is irrelevant to the quality of that argument: whether I am drunk or sober, conservative or liberal, a patriot or a traitor, my argument stands or falls on its own merits, and the character of the person giving the argument doesn’t matter. You may admire Barack Obama and loathe Sarah Palin, or despise Nancy Pelosi and love Rush Limbaugh; but when they give arguments, you must consider those arguments on their own merits and flaws—and the virtues and vices of the source of the argument are irrelevant. If you read an argument that you thought was given by George Washington, and now you learn it was an argument by Benedict Arnold, that should have no effect whatsoever on your judgment about the quality of the argument.

Nonfallacious Ad Hominem Arguments

The ad hominem fallacy is committed when one attempts to discredit an argument by attacking the source of the argument. But not all ad hominem arguments involve the ad hominem fallacy; in fact, most ad hominem arguments do not commit the ad hominem fallacy. (Many people regard all ad hominem arguments as automatically fallacious. That has the advantage of being easy; it has the disadvantage of being wrong.) An ad hominem argument commits the ad hominem fallacy only if it attacks the source of an argument and claims that because of some flaw in the source of the argument the argument itself is flawed. If former President Richard Nixon argues that we should improve our trade relations with China, then we must evaluate Nixon’s arguments on their own merits; to claim that the flaws in Richard Nixon’s character weaken his argument is to commit the ad hominem fallacy. If Tiger Woods gives an argument in favor of marital fidelity, then we must evaluate Tiger’s argument on its merits. Tiger himself would be a hypocrite, but his arguments may still be good arguments.

But imagine a very different situation. We are not discussing arguments at all; instead, we are simply having a discussion of famous (and infamous) Americans of the 1960s and 1970s. During our discussion, someone asserts that Richard Nixon was a terrible man (“He misused the power of the presidency, he surrounded himself with corrupt and dishonest men, he lied to the American people, he was vindictive toward those who opposed his views”). That is certainly an ad hominem argument, but it is not an ad hominem fallacy. And one may object to such an attack on Nixon: you might think it ethically wrong (“You shouldn’t hit a man when he’s down”), in poor taste (“If you can’t say something nice, don’t say anything at all”), or factually mistaken (“Nixon didn’t really do all those nasty things; he was hounded out of office by the liberal press”). But whatever faults that ad hominem attack on Nixon contains, it does not commit the ad hominem fallacy because it does not attempt to refute one of Nixon’s arguments by attacking the source of the argument (it simply attacks Nixon, not Nixon-as-source-of-argument).

So ad hominem arguments may be legitimate and effective. Let’s say that I am running for the Senate and my opponent argues that I am unfit to be senator because I have three convictions for perjury, four for mail fraud, and five for forgery. That information may well be important to voters, who would legitimately wish to consider it in judging my fitness to serve as their senator. If, on the other hand, my opponent attacks me because I’m bald and my ears look funny, that ad hominem attack seems irrelevant to my ability to be an effective senator. It is not an ad hominem fallacy (it does not suggest that my arguments are no good because I’m bald and have funny-looking ears); but it is an irrelevant ad hominem argument, even if the ad hominem attacks are true. Consider another example. If Lionel Lizardliver is a candidate for a position as first-grade teacher, it will certainly be a relevant—and nonfallacious—ad hominem argument to say: Lionel should not be hired to teach first grade because he is only marginally literate, he has an extremely violent temper, and he hates small children. (To argue that Lionel is unfit because he is bow-legged and wears ugly socks would be an irrelevant ad hominem attack; it would not be an ad hominem fallacy.)

Notice that it is not the truth or falsity of the claims made in the ad hominem argument that determines whether or not the argument commits the ad hominem fallacy. If the claims made in the above ad hominem argument against Nixon are false, then the argument certainly will be unsound, but it will still not commit the ad hominem fallacy (though it may contain some other fallacy). It does not commit the ad hominem fallacy because it does not attack an argument source. And if Nixon gives an argument in favor of more trade with China, then an attempt to discredit his argument by attacking him does commit the ad hominem fallacy, even if everything said in the ad hominem attack is perfectly true. When ad hominem arguments are fallacious, they are fallacious not because the attack on the arguer is false; they are fallacious because the attack on the arguer is irrelevant to the quality of the arguer’s argument. Arguments must be judged on their own merits; their origins don’t matter.

Shortly after the U.S. destruction of the Iraqi army in 2003, the Bush administration awarded an enormous contract to the Halliburton Corporation. The contract was for work on the Iraqi oil fields and a few other projects—it was difficult to know exactly what it covered, since the details were not released—and was worth at least $600 million (exactly how much the contract was worth was also left unclear; some estimates were that it would be worth closer to $6 billion). This was a no-bid contract for an enormous amount of money, the details were kept hidden, and the contract was awarded to a company that was once run by Vice President Richard Cheney (a company where many of Cheney’s friends still worked, and a company that had made large campaign contributions to the Republicans). This contract raised some legitimate questions (questions that the U.S. media largely ignored); and Senator Henry Waxman from Oregon criticized the contract, arguing that it was awarded secretively and was not open to other bidders. One talk radio show host rejected Waxman’s argument, on the grounds that Waxman has a large nose with flaring nostrils, and thus looks funny. You probably didn’t need a course in critical thinking to know that such talk radio ad hominem attacks, common as they are, commit the ad hominem fallacy. But suppose that Senator Waxman had been giving testimony rather than argument. In that case, the talk radio attack on Senator Waxman would not have committed the ad hominem fallacy. (The ad hominem fallacy is committed only when one rejects an argument based on the argument source.) But even though it would not be an ad hominem fallacy, it would still be a lousy ad hominem argument; if Senator Waxman had been giving testimony, the ad hominem attack on his appearance would commit the fallacy of irrelevant reason: The size and shape of the testifier’s nose obviously is irrelevant to the reliability and integrity of the person giving testimony.

So not all ad hominem arguments are fallacious. To the contrary, in one situation ad hominem arguments are quite valuable. When a claim is based on testimony—rather than argument—then ad hominem arguments are an appropriate and important means of challenging the claim. Testimony takes its strength entirely from its source. If I argue that the defendant must be the murderer (because his fingerprints were found on the murder weapon, the victim’s wallet was found in his possession, reliable eyewitnesses saw him running from the scene of the crime, etc.), then you must focus on the argument (and not the arguer): Is the argument valid, and are the premises true? But if I testify that the defendant is the murderer (because “I saw him do the foul deed”), then the strength of the testimony depends entirely on the source of the testimony, and you can effectively evaluate my testimony only to the degree that you have knowledge of my character, my truthfulness, my reliability.

Consider this fictional case of a jailhouse informant (Jones) who testifies against the defendant on trial for murder (Smith). Jones is in jail, awaiting sentencing on drug charges. Jones claims that one day while they were eating lunch at the prison cafeteria, Smith began talking about how he had committed the murder: how he had strangled the victim in the course of a nighttime burglary, when the defendant awakened and confronted him. After Jones gives his testimony about the confession by Smith, the defense attorney begins her cross-examination.

“Mr. Jones, have you ever committed perjury? Have you ever lied under oath? Have you ever taken an oath to tell the truth, the whole truth, and nothing but the truth, so help you God, and then lied?”

“I don’t remember ever doing that, no.”

The defense attorney looks at some papers on her desk, and then walks toward the witness.

“You say you don’t remember ever lying under oath? Let me refresh your memory, Mr. Jones. Two years ago, in this very courtroom, you were on trial for selling cocaine, is that right?”

“Yes, but those charges were later reduced.”

“Well, we’ll get to that. My question is, were you on trial for sale of cocaine?”

“Yes.”

“When you testified during your trial, you swore under oath that you had never sold cocaine, that the charges against you were a mistake, is that right?”

“Yes.”

“The trial was stopped, and you were allowed to plead guilty to possession. But during your sentencing hearing on the reduced charges, you explicitly admitted that you had sold cocaine, didn’t you? The judge specifically asked if you had sold cocaine, and you answered that you had done so.”

“Yeah, but what I said was I hadn’t sold much; that I had sold some cocaine, but I was not a big cocaine dealer, or anything like that.”

“So when you testified—under oath—that you had never sold cocaine, that was a lie, wasn’t it? You swore that you had never sold cocaine, when in fact you had. Is that right?”

“I didn’t sell much.”

“Mr. Jones, listen carefully to the question. You testified under oath that you had never sold any cocaine; that was a lie, wasn’t it?”

“Yes, I guess it was.”

“So you lied under oath, didn’t you?”

At this point the district attorney intervenes: “Objection, Your Honor. That question has been asked and answered.”

“Sustained. Counselor, move on to your next question.”

“Thank you, Your Honor.” The defense attorney turns back to the witness. “My next question, Mr. Jones, is this. You just told this jury, under oath, that you could not remember ever lying under oath. That was a lie, wasn’t it? Because you certainly did remember lying under oath, just two years ago, in this very courtroom. So when you testified that you didn’t remember, that was another lie, wasn’t it?”

“Well, my memory was a little vague.”

“Lying just comes natural and easy to you, doesn’t it, Mr. Jones? You lie whenever it’s convenient.”

“Your Honor,” the district attorney rises to object, but the judge interrupts and addresses the defense attorney: “Counselor, that is argumentative; save your arguments for your closing. The jury will disregard the last statement from the defense counsel.”

“Mr. Jones,” the defense attorney resumes her questions, “when you lied under oath about never selling cocaine, did that keep you awake at night? Did your conscience trouble you? Were you troubled by telling a lie under oath?”

“Your Honor,” the district attorney again rises, “I object to this question.”

“No, I will allow the question. The defendant will answer the question.”

Jones gives a small half-smile, then answers. “No, it didn’t really bother me, I guess.”

The defense attorney walks back to her desk, looks at a paper, then returns to questioning the witness.

“Mr. Jones, you said that in your trial for selling cocaine, the trial was stopped, and you were allowed to plead guilty to a lesser charge, the charge of simple possession, is that right?”

“That’s right.”

“Well, that was very fortunate for you, wasn’t it. Here you’ve got this very serious charge of selling cocaine, and in fact it was an even more serious charge of selling cocaine near a school—conviction on that charge would have put you in prison for several years—and the charges get reduced to simple possession; and you were then released for time served, with no additional prison time, is that right?”

“That’s right.”

“Mr. Jones, you are presently in custody, aren’t you? You were brought here to testify from your jail cell, and when you are done testifying you will go back to jail, is that right?”

“Yes, I’ve been in jail.”

“Why are you being held in jail, Mr. Jones? What are the charges against you?”

“I’m charged with possession of cocaine.”

“You’re charged with possession. Was that the crime you were originally charged with?”

“No.”

“What were the original charges?”

“I was charged with selling cocaine, but those charges were dropped.”

“Actually, Mr. Jones, you were charged with selling cocaine on school property, isn’t that right?”

“Yes, but I’m not charged with that now.”

“No, you’re not. You got lucky again. Charges were dropped down to simple possession. What happened before those charges were reduced? Did you have a meeting with the district attorney’s office?”

“I might have.”

“I’m not asking what you might have done. Did you meet with someone from the district attorney’s office?”

“Yes.”

“What happened at that meeting? What did you tell them?”

“I told them about my conversation with Sam Smith.”

“With the defendant in this case, Sam Smith?”

“Yes.”

“Did you tell them that you were willing to testify against Mr. Smith?”

“Yes.”

“Were there any conditions on your testifying?”

“Not really conditions. I told them I was worried about the charges against me, that I was hoping for a lesser charge.”

“And your hopes were answered, weren’t they? Twice you’ve been charged with selling drugs, selling drugs in the vicinity of schools—apparently your favorite market for drug dealing—and twice the charges have been dramatically reduced, after you agreed to testify against someone else. You’ve gotten a very good return on your testimony, haven’t you? No further questions, Your Honor.”

This cross-examination brings out a number of relevant facts about the witness: facts that the jury would certainly wish to consider in weighing the credibility of the witness.

Not every ad hominem attack on a witness’s credibility is quite as successful as the attack on Jones. The following cross-examination occurred during a 1952 murder trial at London’s Central Criminal Court. Mrs. Fish—a friendly and spirited Irishwoman—had just testified that she heard screams coming from an upstairs room, and when she forced her way into the room she found the defendant’s wife “naked and streaming wet and lying on the floor and clinging to the foot of the bath for dear life, and he [the defendant] with his sleeves rolled up to his armpits”; and (Mrs. Fish continued) the wife said: “He tried to drown me. He wants to kill me. Don’t leave me alone with him.” The defense attorney begins his cross-examination of Mrs. Fish with the following question:

“I put it to you that you are not a very reliable witness?”

“And for why should you say that, Sorr?”

“Weren’t you convicted of keeping a brothel at Liverpool in 1947?”

“Sure,” agrees Mrs. Fish as though brothel-keeping was the worthiest of occupations.

“And again in 1949?”

“Sure,” replies Mrs. Fish, much puzzled. “But what’s that got to do with drowning a poor Christian woman in her bath?”

“And then in 1949 weren’t you sent to prison for procuring an abortion?”

“I was indeed,” agrees Mrs. Fish fervently. “And it’s you that would have done it yourself if you’d seen that poor girl all by herself as she was.”1

The defense barrister’s attack on Mrs. Fish’s character and veracity is certainly relevant (it does not commit the ad hominem fallacy); however, it is doubtful that questions about this woman’s “bad character” convinced the jury that she was “not a very reliable witness.”

The witness is a drug dealer, who apparently specializes in selling to students; the witness is quite willing to lie under oath; and the witness is getting substantial benefits in return for his testimony (some might even say that he is being paid off for his testimony), and thus he has a motive to lie. (Of course a witness with a special interest may still tell the truth, but if the witness admits to lying whenever it is convenient, and admits that he also has a special interest that might tempt him to lie in this case, then the jury might be justified in being skeptical about that witness’s testimony.)

If I am a notorious liar, severely paranoid and delusional, known to take bribes, and convicted several times of perjury, then that will severely weaken my testimony, but it will have no bearing at all on the validity of my argument. (Of course you will want to check carefully on the truth of the premises in my argument; and if any of the premises are based on my testimony, then my problems and flaws will be good grounds for doubting the truth of that testimony.) If I am a trained observer with a strong reputation for honesty and no special stake in this case, that will give my testimony substantial credibility, but any argument I give will have to make it on its own, without any help from my character.

How do you distinguish argument from testimony? It’s not always easy. Testimony often occurs in court, given by sworn witnesses; but sometimes those witnesses—especially expert witnesses—actually give arguments rather than testimony. And, of course, testimony occurs more frequently outside the courtroom than inside it. “Come on, lend me $10; really, you can trust me, I will certainly pay you back.” “I saw your lover last night, dancing cheek-to-cheek with an attractive stranger at the Backdoor Lounge.” Neither of those is sworn courtroom testimony; but both are testimony, nonetheless. Both depend for their plausibility on the trustworthiness of the testifiers.

Suppose that one of your friends meets you at the coffee shop and immediately tells you the following:

I saw them! They’re here! Just now, as I was walking down Church Street on my way to the coffee shop, I heard this high-pitched hum, and I looked up just in time to see a small, bright silver sphere, about the size of a basketball, descending into the vacant lot just across from me. Six tiny purple creatures, with bright orange eyes, leaped out of their spacecraft, ran three times around the lot, picked up some bottle caps, and then jumped back into the sphere, blasted off, and swiftly ascended through the clouds and out of sight. The extraterrestrials have arrived! I saw them with my own eyes!

David Eddleman was charged with being the gunman in a drive-by shooting, and in 1999 was convicted of second-degree murder and a firearm offense in a Michigan state court. The Sixth Circuit U.S. Court of Appeals reviewed his case and overturned his conviction; and in the course of that review the Court examined the key witnesses against Eddleman.

Brian Babbitt received significant benefits from the police in exchange for his testimony. On January 3, 1997, Babbitt was arrested for the killing of Georgescu. On January 7, 1997, he was arrested again, this time for the murder of Freddy Sanchez. The Wayne County prosecutor’s office granted him immunity from prosecution for both murders on January 22, 1997, in exchange for his testimony against Eddleman. ... At the time, Babbitt also faced charges of felony assault, using a firearm in the commission of a felony, and violating probation. After nego-tiating the immunity agreement, the prosecutor allowed Babbitt to plead guilty to a reduced charge of aiming without malice, with a sentence of time served. ... . The next witness, jailhouse informant Ricky O’Neal, testified ... pursuant to a plea agreement in which the state agreed to reduce a pending charge of assault with intent to rob, which carried a possible life sentence, to two counts of felony assault, for which he received concurrent sentences of one to four years. He had an extensive prior criminal record, including convictions for breaking and entering, larceny, and unarmed robbery. The next two witnesses, Brian Weaver and Thomas Valastek, both testified that they heard Eddleman admit to the shooting. ... Weaver may have avoided punishment for numerous probation violations by testifying against Eddleman. ... Three other pieces of information call into question Valastek’s credibility. First, he too cooperated with police only after he was arrested in connection with Georgescu’s murder. Second, he admitted on cross-examination that his initial statement to police contained “a lot of lying.” Third, he admitted that he chose to cooperate fully with police a day after he saw that Babbitt was receiving special perks in jail—such as family visits, outside food, and television privileges—and figured “he must have told them something really good to give him all of that.”

Jury members must decide whether witnesses are trustworthy; and the extensive criminal records of these witnesses, together with the substantial benefits they received as payment for their testimony (including reducing possible life sentences to a sentence of one to four years, and in another case dropping murder charges and substituting a charge of “aiming without malice” with a sentence of time served) are certainly factors that jurors should carefully consider.

Recently, several celebrities have appeared on television talk shows, and talked about their illnesses and the successful treatments for them. Kathleen Turner, on Good Morning America, discussed her arthritis, and then mentioned “extraordinarily effective” new arthritis medications that viewers could learn about at a website sponsored by Amgen and Wyeth. Olympic figure skater Peggy Fleming discussed her cholesterol problem on an ABC show, and heaped praise on the prescription drug Lipitor, made by Pfizer. Lauren Bacall appeared on the Today show to talk about the terrible, blinding disease macular degeneration, and also to mention the eye drug Visudyne. This is a very effective promotion for the drug companies: it’s not an advertisement, but an apparently heartfelt endorsement from people the viewers know and trust. In all those cases, however, the drug manufacturers paid the celebrities for their endorsements, although no one mentioned that on the shows. It might have been information that viewers would have considered valuable: Kathleen Turner, Peggy Fleming, and Lauren Bacall weren’t just praising these drugs out of their altruistic desire to help viewers improve their health, but out of a desire to put money in their own pockets.2

Do you believe any of this story? Well, first you want to know whether your friend has a drug or alcohol problem, is he taking some sort of medication, has he been under a lot of strain lately (if 2 weeks ago he burst into the coffee shop and told you that he had just seen a herd of miniature purple and orange elephants doing tricks in the same vacant lot, that will certainly count against believing his story). In other words, your friend’s claims about extraterrestrials are based entirely on his own testimony, and that testimony depends on his character, his truthfulness, his stability. (Of course you might not believe him in any case; but if he is sober, reliable, and a pillar of stability, you will give his testimony considerably more weight—and might even decide that he probably did see something strange—than you would if you knew he was a notorious trickster or drug addict.)

In contrast to the above, imagine that your friend earnestly argues that we are even now being visited by extraterrestrials:

Look, there probably are some extraterrestrials observing our planet, perhaps even visiting our planet. Think for a minute. How many planets are there in our solar system, orbiting our little star we call the Sun? Eight, right? Now consider how many stars there are—just counting our own Milky Way galaxy, leave aside all the other galaxies, some that are vastly larger. As Carl Sagan would say, there are billions and billions of stars, OK? And it seems likely that most of those stars also have planets; in fact, astronomers have already observed planets orbiting a number of relatively nearby stars. So those billions and billions of stars probably have tens and perhaps hundreds of billions of planets, not to mention several times that many moons. Out of all those planets orbiting all those stars, does it seem likely that our little backwater planet is the only one suitable for life? Of course not. No doubt the conditions that made life possible are rather special, and quite rare; but with tens of billions of opportunities, the right conditions probably existed at least a few thousand—more likely a few million—times. That being the case, doesn’t it seem likely that life developed, and began to evolve, somewhat earlier on some other planets? And if that’s so, isn’t it also likely that some—probably many—species on other planets circling other stars would have discovered scientific method just a few thousand years ahead of us? And imagine what our science will be like in a few thousand years! In less than a century, we have gone from uncertain flights of a few hundred feet to spacecraft that are exploring the outer reaches of our solar system. In another hundred years, where will we reach? In another thousand, we may have explored what seems almost inconceivable now: the far reaches of our entire galaxy. So it seems likely that even now, some extraterrestrial species, just a few thousand years ahead of us scientifically and technologically, is exploring our galaxy, and probably is sending scouting parties (the way we send explorers and anthropologists) to examine other civilizations and other cultures. So we must conclude that it is likely that even now we are being observed and perhaps visited by extraterrestrials.

Are you convinced? Probably not. The argument does a good deal of hand-waving and builds quickly into wild speculations from a rather thin foundation of facts. But notice this: You do not have to know anything about your friend to evaluate that argument. Whether your friend is drunk or sober, reliable or untrustworthy, stable or unbalanced, wise or foolish does not matter. Your friend has offered an argument for the likelihood of extraterrestrials in our midst, and the arguer’s character, motives, and state of mind are irrelevant to the quality of that argument. Unlike testimony, the argument stands or falls on its own merits. If the argument had been given by Carl Sagan, it would not be a better argument. If it had been given by a long-term resident of a facility for the criminally insane, it would not be a weaker argument.

It is important to distinguish between argument and testimony; unfortunately, that distinction is not always easy to make. In everyday life we frequently combine testimony with argument: My argument may contain premises that I testify are true. Suppose there is a disagreement about whether Joe went to a tavern last night. Mary offers the following argument:

Joe certainly did not go to the tavern last night. We all agree that Joe stayed in town the entire evening; and we all know that there are only two taverns in the town. The Red Lion Tavern was closed—the health department closed them down last week and they still haven’t reopened. So Joe obviously wasn’t at the Red Lion. The only other tavern in town is the Student Prince, and I was there from the time it opened until closing, and Joe never set foot in the place. So Joe could not have been at a tavern last night.

Okay, that’s an argument. But one of the key premises of Mary’s argument—Joe was not at the Student Prince Tavern—is based on Mary’s testimony. So testimony and argument get intertwined here, and that makes things difficult. But if Mary is giving testimony (and in this case she is) then she is a legitimate target of ad hominem attack. If you decide that a key premise of her argument is doubtful because it is based on her unreliable testimony, that would give you good reason to suspect that her argument is unsound.

In ordinary life, argument and testimony are often mixed together. But while argument and testimony are not always separated in day-to-day life, they are—or at least are supposed to be—in court. Witnesses give testimony, the attorneys give arguments, and the attorneys are not supposed to give testimony. The distinction is usually drawn quite carefully. Paul Bergman, in his instructional book Trial Advocacy, gives the following helpful guidance to practicing attorneys:

When no expert has testified, the law tries to steer a course between allowing you [the attorney] to make the factfinder [judge or jury] aware of pertinent scientific knowledge, and forbidding you to insert in argument facts that are not part of the record. The general rule is that you may read from a scientific authority if it presents matters of common knowledge and illustrations drawn from common experience. But you may be forbidden to read the author’s conclusion set forth in the study, or from presenting scientific experiments or theories to the factfinder if they are not matters of common knowledge.

To focus the dichotomy [between argument and testimony], assume you are questioning the validity [accuracy] of an eyewitness identification. Clearly you may argue the common experience of thinking you recognize a friend, only to find out later that you were mistaken. Just as clearly, you may read from books and newspapers examples of convictions that resulted from mistaken identification. You may also read from a book describing the factors that lead to faulty identification, and then argue the presence or absence of those factors in the evidence. In many jurisdictions, you could also refer to a scientific study showing the likelihood of misidentification. These matters appear to grow out of the common knowledge and wisdom of the community. But you could probably not read the conclusion of a scientific study showing that in a case pretty much like yours, there is a great likelihood of misidentification. That would be viewed as placing expert testimony before the factfinder in the guise of argument.3

Thus if you wish to place expert testimony before the fact finder, you must produce the expert to actually testify; then the opposing side can (legitimately) raise questions about the qualifications and integrity of the expert witness, and the fact finder can then judge whether the witness’s testimony is reliable. (That is why “hearsay” testimony—“I heard George claim that Ralph robbed the bank”—is generally not allowed. There is no opportunity to cross-examine George, test his truthfulness, and inquire about his character and biases and reliability.)

This distinction between advocacy (argument) and testimony is especially important in court, and judges rightfully insist on it. The lawyer is not testifying; the lawyers are giving arguments, and those arguments must be evaluated on their own merits—not on the merits of the arguer, and not on the basis of whether the arguer does or does not believe her own arguments. Defense lawyers often try to convey to the jury their own belief in the innocence of their clients, and prosecutors frequently try to impress upon the jury the prosecutor’s own belief in the defendant’s guilt. But such tactics are not legitimate. If the lawyers were witnesses, then it would certainly be important that they believe in what they testify (otherwise they are lying); but when you are evaluating an advocate’s arguments, you must judge the arguments themselves and not the sincerity (or any other characteristic) of the advocate—whether the advocate is or is not convinced by the argument is irrelevant. When advocates begin to offer their own testimony rather than confining themselves to argument (“I sincerely believe that this defendant is innocent”), judges should point out the irrelevance of the advocate’s own beliefs—as in the following examples from British courts:

Serjeant Shee, while defending the poisoner Palmer, [said] to the jury: “I begin Palmer’s defence and say in all sincerity that I have an entire conviction of his innocence.” The Lord Chief Justice who was trying the case, Lord Campbell, told the jury: “I most strongly recommend to you that you should attend to everything that Serjeant Shee said to you with the exception of his own private opinion. It is my duty to tell you that opinion ought not to be any ingredient of your verdict. It is the duty of the advocate to press his argument on the jury, but not his opinion.”

Even Erskine [an outstanding barrister], carried away in defence of Tom Paine, said: “I will now lay aside the role of the advocate and address you as a man,” to earn the rebuke [from the presiding judge]: “You will do nothing of the sort. The only right and license you have to appear in this court is as an advocate.”4

Ideally, attorneys should be giving arguments, not testimony. They are advocates, not witnesses. But of course attorneys often do insert their own testimony, and judges are not always scrupulous in preventing it. This example is from the career of Jake Ehrlich, a famous San Francisco lawyer from the 1920s through the 1950s. In 1936, Ehrlich was defending a policeman—Lieutenant Henry Ludolph—accused of accepting bribes. Ehrlich’s summation to the jury was passionate:

I don’t defend Ludolph as a client, not as a policeman—but as an old and dear friend. I know before God that Henry Ludolph never committed a dishonest act or took a cent of dirty money in his life.5

Ehrlich’s testimony on behalf of Ludolph may or may not be true; in any case, it is out of place. The jury should decide the case on the basis of the testimony of the sworn witnesses and the arguments of the attorneys. But an attorney’s testimony should be given little weight. In the first place, the attorney obviously has a strong special interest in the case and so is not giving unbiased testimony. Even more important, there is no opportunity for the opposing side to challenge the attorney’s testimony. When a witness testifies, the witness is placed under oath and is liable to perjury charges if he or she lies. Furthermore, the witness can be challenged and cross-examined by the opposing attorney, and information about the witness’s character and truthfulness and motives can be brought out by the opposing attorney. But when an attorney testifies, the attorney is not under oath and is not liable to perjury charges; the opposing attorney has no opportunity to cross-examine; and the other side has no chance to bring in evidence about the attorney’s dishonesty, biases, tendency to exaggerate, drug addiction, general unreliability, or whatever. When you evaluate testimony, it is essential to know the character of the testifier: Is this person honest, unbiased, accurate, careful in stating only what he or she actually knows? When one of the lawyers in the case testifies, the jury cannot learn such things about the testifier. Thus “advocate testimony” (“I know my client is innocent,” or—from the prosecuting attorney—“I am absolutely sure this person is guilty”) should carry little or no weight. In sum: Listen carefully to the advocates’ arguments; their testimony should not be part of the trial, and if it is, it should be disregarded.

In court, the distinction between advocacy and testimony is relatively clear; so it is obvious enough that if an attempt is made to discredit an advocate’s argument by attacking the character of the advocate, then that attack commits the ad hominem fallacy. And attacks on witnesses who are giving testimony—attacks on their honesty, their sanity, their special interests, their mental stability—will be relevant to the strength of the witness’s testimony (and thus—whether true or false—they do not commit the ad hominem fallacy). Outside the courtroom, the distinction between advocacy and testimony is not always so easily drawn. In any case, the point to remember is that when a claim is based on testimony, the claim is only as strong as the person giving the testimony (and thus questions about the character and reliability of the testifier are legitimate and important); but when an arguer is attempting to draw out the implications of given facts, the argument must be evaluated independently of the arguer (and questions about the character and reliability of the arguer are irrelevant, and attacks on the arguer commit the ad hominem fallacy).

A closely related point will perhaps help sort out these issues. Suppose the chairman of the board of a major U.S. auto manufacturer presents an argument for the conclusion that imports of foreign cars should be drastically restricted. The chairman argues that the importing of such autos should be restricted because they pose a health and safety hazard to U.S. consumers: The imported cars are made of inferior steel, the steel is weaker than that used in U.S.-made cars, and under the stress of high-speed driving the cars are more likely to wobble and go out of control. In this hypothetical case, the chairman is giving an argument for restrictions on imported autos. (He is not merely giving his own testimony against imported cars; he is not saying, “Look, we would all be better off if there were restrictions on imported automobiles; I know about these things, trust me.”) He is instead arguing that inferior materials will result in obvious dangers under common driving conditions and that U.S. citizens should be protected from such dangers. Now suppose someone responds, “Don’t listen to the chairman’s argument! He has a strong reason for opposing imports. If there are fewer imports then he can charge a higher price for his company’s cars and make more money! He’s not really interested in the safety of U.S. drivers; that greedy money-grubber is just interested in making more money.” That would commit the ad hominem fallacy. Even if the chairman’s motivation is greed rather than concern for consumer safety, that is irrelevant: The chairman has given an argument, and you must examine the argument (not the arguer). However, it may still be useful to know that the

How Do You Rule?

In her closing arguments to the jury in the O. J. Simpson murder trial, prosecutor Marcia Clark made the following remarks:

I started on that side of counsel table [referring to the lawyers for the defense]. I was a defense attorney. I know what the ethical obligations are of a prosecutor. I took a cut in pay to join this office, because I believe in this job. I believe in doing it fairly and doing it right and I like the luxury of being a prosecutor. Because I have the luxury on any case of going to the judge and saying, “Guess what, Your Honor, dismiss it, it’s not here.”

Ladies and Gentlemen, I can come to you and I can say, “Don’t convict, it’s not here.” I have that right. I have that luxury. This job gives me that luxury. It doesn’t give me a lot of money but it gives me that luxury. I can get up in the morning and look at myself in the mirror and say I tell you the truth, I will never ask for a conviction unless I should, unless the law says I must, unless he is proven guilty beyond a reasonable doubt on credible evidence.

At that point in her closing argument, the defense intervened with an objection. The defense claimed that Marcia Clark’s remarks were improper, and that she should be forced to retract them, because she was improperly giving testimony about her own convictions concerning Simpson’s guilt rather than presenting argument based on the evidence. Marcia Clark asserted that there was nothing improper in her closing argument. She denied that she was giving any testimony concerning her own beliefs; instead, she claimed, she was simply giving arguments based on well-known principles governing legal ethics and the ethics of prosecutors.

Was Marcia Clark improperly putting her own testimony before the jury? Or was she, quite properly, simply giving an argument? How do you rule?

Arguing for Profit

When argument is given, we must consider the argument: We cannot reject an argument based on the source of that argument. So when Dr. Robert Kehoe argued that lead in leaded gasoline is not a health hazard, it would be an ad hominem fallacy to reject his arguments on the basis that he is heavily funded by the lead industry. However, that does not mean that we should ignore the fact that he has a special interest in denying the health hazards of leaded gasoline: it should warn us to give careful scrutiny to his arguments and his research, since he does have a special bias. And in the case of Dr. Kehoe’s research, that careful scrutiny pays off. One of the things Dr. Kehoe attempted to prove through his research was that the lead burned in leaded gasoline (7 million tons in the United States during the twentieth century) does not accumulate in humans, and so cannot cause lead poisoning; and that high levels of blood–lead are common and natural. As proof, he compared a group of people living in remote rural Mexico—not exposed to leaded gasoline—with people living in U.S. urban environments. Sure enough, the blood-lead content of the rural Mexicans was approximately the same level as the lead-blood level of U.S. city dwellers. Unfortunately, in his zeal to defend the lead industry, Dr. Kehoe had not randomly chosen a rural population; instead, the Mexican village he chose for comparison was heavily exposed to lead through the lead glazes it used in making its local pottery, and also from consuming food prepared and served in lead-glazed pottery. When later studies compared other rural peoples against U.S. citizens exposed to leaded gasoline, they found that the U.S. blood-lead contamination was much higher. So although we cannot reject Dr. Kehoe’s argument on the basis of his payoffs from the lead industry, those payoffs should alert us to look more closely at the research that forms the basis of his argument. When that research is shown to be shoddy and biased, it is perfectly legitimate to point out the serious flaws in Dr. Kehoe’s research, and the flaws in Dr. Kehoe’s arguments. Such criticisms of arguments are not ad hominem at all, and so obviously do not commit the ad hominem fallacy. (If Dr. Kehoe testified that his research was accurate and unbiased—“trust me, my comparison groups were not specially selected”—then of course it would be legitimate to make ad hominem attacks on his testimony.) Finally, it is also legitimate to make an ad hominem attack against Dr. Kehoe: “Dr. Kehoe is a disgrace to the scientific community, who distorts his studies in order to cover up a major health hazard.” You might make that legitimate ad hominem attack in pushing to have Dr. Kehoe fired by his university. But whatever Dr. Kehoe’s flaws, you cannot reject his arguments because of flaws in him—though of course you can reject his arguments because of flaws in the arguments themselves.6

fellow giving the argument is chairman of the board of a U.S. auto manufacturer and does have a special financial interest in the issue. It will be useful, but not because that knowledge will be good grounds for dismissing the chairman’s argument. Rather, it will be useful because it will prompt us to look very carefully at the premises of the chairman’s argument: Are the premises in the argument really true? Is the steel used by foreign manufacturers inferior? We cannot reject a person’s argument on the basis of the character or special interest of the arguer; however, knowing that the arguer is dishonest or greedy or has a financial interest in the issue will be good reason to double-check the factual claims (the premises). If the premises are false, then the argument will be unsound. If the premises are true and the argument is valid, then the argument is a sound argument no matter how selfish, despicable, biased, or untrustworthy the arguer may be. (Of course if the support for one of the premises is simply the testimony of the person giving the argument—“They really do use inferior steel; I know, because I saw them do it!”—then the character of the person giving that testimony is directly relevant to the value and reliability of the testimony.)

Ad hominem attacks against arguments are fallacious. And if an ad hominem attack charges an arguer with stupidity or corruption, you will instantly recognize that as a fallacious attack on the argument. Unfortunately, some instances of ad hominem fallacy are more subtle. Instead of making obvious frontal assaults on the arguer (“Don’t listen to his argument: He is a swindler and a drunkard, and he hates kittens”), the ad hominem may be more insidious. Even those more subtle forms of ad hominem fallacy will not deceive you if you always remember that the source of the argument is irrelevant to the strength of argument (although the source of testimony is relevant when judging the strength of testimony).

Not all forms of ad hominem fallacy are as obvious as calling the arguer nasty names. Consider the bias form of the ad hominem fallacy. This fallacy occurs when an argument is disparaged on the grounds that the arguer has some special interest or bias in the question at issue. For example, the American Tobacco Institute has been running advertisements that contain arguments against tighter restrictions on smoking in public. The American Tobacco Institute is by no means a disinterested, neutral party. It is the public relations–lobbying branch of the tobacco industry, and it is funded by cigarette-manufacturing companies. So obviously the American Tobacco Institute and the companies it represents have a special interest in opposing restrictions on smoking: More restrictions mean less smoking, fewer cigarettes sold, and smaller profits. Thus someone might argue:

Pay no attention to those American Tobacco Institute arguments against restrictions on smoking. You shouldn’t take their arguments seriously; after all, those arguments are bought and paid for by the tobacco industry.

This sounds like an effective and forceful critique of the arguments by the American Tobacco Institute, but in fact it is an instance of the ad hominem fallacy. For if the American Tobacco Institute has given an argument, then their argument stands or falls on its own merits or its own faults. And it is irrelevant whether that argument was paid for by the tobacco industry or was developed by some pure, innocent, and absolutely unbiased philosopher, or whether it dropped from the heavens like manna. Remember: The source of the argument—whether good, bad, or indifferent—is irrelevant to the quality of the argument.

Don’t misunderstand: If an argument is offered against restrictions on public smoking, it may be useful to know the special interests of the arguer; for if we know that the argument is being given by someone with a special interest, that may be a helpful reminder to check very carefully the premises of that argument (to be sure that any “facts” cited are genuine, that any data given are accurate, that the “truths” stated are not half-truths). But while it may be helpful to have a reminder to check carefully the soundness of the argument, it is not helpful—in fact it is wrong—to reject an argument because the source of the argument has a special interest or bias.

If it were true that any argument presented by a paid advocate is unsound, then a sound argument would be a rare event in the courtroom. Certainly many American attorneys and British barristers are genuinely committed to fair and just trials. But they are also involved in an adversarial system of justice that functions by having the prosecution present as strong a case as possible while the defense works to show that the defendant has not been proved guilty. And in almost all cases the prosecution and defense attorneys are paid to argue for their respective sides. So if being paid to present arguments or having a special interest made one’s arguments unsound (fallacious), then a sound argument would hardly ever occur in court. But having a special interest in a position does not make one’s arguments for that position unsound, and to claim that an argument is unsound merely because the person giving the argument has a special interest in the case is to commit the ad hominem fallacy.

But remember that the situation is completely different when ad hominem arguments are directed against testimony. If a witness is testifying—not presenting an argument—then the claim that he or she has a special interest in the case (and thus that one should weigh the possible effects of that special interest when evaluating the truthfulness and reliability of the witness’s testimony) is certainly relevant, and does not commit the ad hominem fallacy. If the witness is the defendant’s best friend, then the witness has a special interest that may influence his or her testimony. If the prosecution witness is a police officer who has worked for months to build a case against a suspected drug dealer, then convicting the defendant will be a feather in the officer’s cap and the officer has a special interest in the case: The defense attorney will be justified in reminding the jury of the witness’s special interest. If Hatfield and McCoy have been mortal enemies for decades, then Hatfield has a special interest in McCoy’s case; and after Hatfield has testified that he saw McCoy (the defendant) running from the scene of the robbery, it is legitimate for the defense attorney to launch an ad hominem attack against Hatfield’s testimony by charging Hatfield with a strong bias against the defendant. That is an ad hominem attack, but not an ad hominem fallacy. (The defense attorney’s ad hominem attack on Hatfield—which reveals Hatfield’s hatred of McCoy—provides important information for you as a jury member even if you do not decide that Hatfield is lying. For while Hatfield’s hatred of McCoy might not lead Hatfield to lie under oath, it might influence Hatfield’s perception of events. Eyewitness testimony is notoriously unreliable; if Hatfield’s eyewitness perceptions are colored by his hatred of McCoy, that may make Hatfield’s honest belief about what he observed more open to doubt. For if Hatfield already believes that McCoy is just the sort of scoundrel who would commit a robbery, then Hatfield may be more likely to “see” McCoy fleeing the scene of a robbery. If Hatfield expects to see McCoy running from the robbed liquor store, then the man he sees running is likely to look like McCoy.)

So it is important that you know the bias or special interest of anyone whose testimony you must evaluate. And it is quite reasonable for attorneys to make the jurors aware of any special interests or biases the witnesses may have. But of course you must still exercise caution in drawing your conclusions about the reliability of the testimony. The police officer does have a special interest in the case, but it certainly doesn’t follow that the police officer will lie in order to get a conviction. The defendant’s best friend strongly desires that the defendant be acquitted, but that doesn’t mean that the friend is willing to commit perjury in order to bring about that acquittal. Hatfield’s hatred of McCoy may not be as strong as Hatfield’s love of the truth. And the defendant—who certainly has a special interest in the results of the trial—may nonetheless be testifying honestly. Sometimes people overcome their own personal interests and testify truthfully, and sometimes they do not. In order for you to decide whether the witness is testifying accurately and truthfully—and that is one of your major responsibilities as a jury member—you must weigh all the information you have about the past behavior, character, and special interests of the witness, and then make the best decision you can about the quality of the testimony. For that task, information about the character of the witness is certainly relevant, and ad hominem arguments by the opposition are one legitimate means of providing the jury with information about the person testifying. (Ad hominem attacks on testifiers do not commit the ad hominem fallacy; however, not every ad hominem attack on a testifier is relevant. An ad hominem argument against a testifier may make points that do not have force against the person testifying. If the defense attorney attacks the witness Hatfield because Hatfield’s ears are ugly, that ad hominem attack certainly should not count for much against Hatfield’s testimony.)

You might get the impression that in the courtroom all ad hominem arguments are against testimony, and thus that the ad hominem fallacy never occurs during trials. Not so. An example of ad hominem fallacy can be found in F. Lee Bailey’s closing argument for the defense in the trial of George Edgerly (accused of murdering his wife). In The Defense Never Rests, F. Lee Bailey describes one of the most dramatic moments in his closing argument:

At one point, I walked over to the D.A. [district attorney, the prosecution lawyer] and shouted: “Here’s a man so callous as to try to put a man in the electric chair for something he didn’t do just in order to get reelected.”7

But the district attorney’s motives and interests (whether they are as commendable as trying to protect society from vicious criminals or as despicable as trying to promote his own reputation for selfish political purposes) are irrelevant; the district attorney was giving arguments, not testimony, and thus an attack on the district attorney’s motives is an example of ad hominem fallacy.

But the ad hominem fallacy is a two-edged sword, and in courtrooms it cuts both ways. In the famous Loeb–Leopold murder case (in which Loeb and Leopold, teenage boys from very wealthy Chicago families, stood trial for the brutal murder of a younger boy), the great criminal defense lawyer Clarence Darrow was accused by State’s Attorney Crowe of defending the boys only because he received a huge fee. (This was not true; although it was rumored that Darrow received a $1 million fee, he in fact received only $40,000, and most if not all of that money went to pay for court costs and office expenses.)

One of the most obvious and troublesome sources for biased witnesses is the use of “jailhouse informants.” These witnesses are convicted criminals whom authorities plant in the same cell with a suspect who has been arrested and is awaiting trial. The authorities tell the informant to befriend the suspect, and to listen carefully to everything the suspect says, in hopes that the suspect will confess his or her crime to the informant. Since the informant and suspect are together day and night, it is hoped that the suspect will eventually say something incriminating to the informant “friend.” The problems with this process are obvious and profound. In the first place, the informant is a convicted criminal, and therefore not the most reliable witness in the world. But second, and even more troubling, the informant is offered a deal by the authorities: if you testify that the suspect told you something that will contribute to the suspect’s conviction, then you will receive a reduced sentence or early parole (and if you cannot provide testimony helpful to the prosecution, you get nothing). So the informant is being paid for his testimony, and paid in precious coin: reduced prison time. It is easy to see how such incentives could lead to false testimony, and in fact there have been many cases of innocent people being wrongly convicted by the perjured testimony of jailhouse informants (and while there have been many cases of obviously perjurious testimony by such informants, I know of only two cases in which a jailhouse informant was prosecuted for perjury: one was a case in which the jailhouse informant embarrassed the district attorney’s office by going on television and bragging about the special deals he had gotten from the district attorney’s office in exchange for his false testimony against other defendants). With these problems in mind, the Alberta Department of Justice recently issued these guidelines for use of such testimony:

1. All testimony from in-custody informants must first be reviewed by the Crown prosecutor’s office and then by a Ministry of Justice official outside the prosecutor’s office.

2. Jailhouse informant testimony can only be used when there is a compelling public interest.

3. Defense counsel will receive full disclosure concerning the informant’s past and all details of the deal offered to the informant.

4. Jailhouse informants who lie will be criminally prosecuted.

These guidelines may not go far enough—some feel that jailhouse informants have no place in a system of justice that is supposed to protect the defendant’s rights and discourage perjured testimony—but at least the problem is acknowledged, which is more than has happened in the United States.

You are the presiding judge in a robbery trial. A witness for the prosecution (Mr. Candor) has testified that he saw the defendant running through an alley shortly after a bank robbery was committed and that the defendant had a large money bag in his left hand and a pistol in his right hand. The defendant’s attorney is now cross-examining Mr. Candor:

DEFENSE ATTORNEY:

Now Mr. Candor, you say you observed the defendant running through an alley.

MR. CANDOR:

Yes, sir.

DEFENSE:

What were you doing in the alley?

MR. CANDOR:

I was talking with friends.

DEFENSE:

Mr. Candor, do you spend a good deal of your time in such alleys?

MR. CANDOR:

Yes, sir.

DEFENSE:

You are dressed very fashionably today, Mr. Candor; is that the way you were dressed when you were chatting with your friends in the alley? Do you and your friends normally dress like that?

DISTRICT ATTORNEY:

Your Honor, I must object to this line of questioning. What Mr. Candor was wearing when he observed the defendant certainly did not affect his vision; and what Mr. Candor is wearing today in court is equally irrelevant. I beg you to instruct counsel for the defense to stop these ridiculous questions and confine himself to relevant issues.

DEFENSE ATTORNEY:

Your Honor, the prosecution knows full well that these are relevant and important questions. The jury has a right to know that being a prosecution witness has been very profitable for Mr. Candor: the prosecution has bought new clothes for the witness, has provided him much more comfortable accommodations—a great improvement over drafty alleyways—for the duration of the trial, given him food and money and comforts far beyond his usual experience.

DISTRICT ATTORNEY:

Your Honor, where the witness sleeps, what he eats, and what he wears has no bearing on this case. The defense is simply trying to obscure the real issue: Mr. Candor’s positive identification of the defendant running from the scene of the crime with a gun and the loot.

How do you rule? Do you sustain the district attorney’s objection and require the defense attorney to drop this line of questioning as irrelevant? Or, do you overrule the objection and allow the defense attorney to continue asking about the witness’s new suit?

But even if Crowe’s claim were true, it would still be irrelevant, since Darrow’s motives—whether selfish or altruistic—were irrelevant to the soundness of his arguments. Darrow returned the favor, accusing prosecutor Crowe of being a “hanging” state’s attorney who “would laugh at the hanging of these boys.”8 Now if Darrow’s claim were true, it would certainly indicate a severe lack of basic human sympathy in Crowe’s character, and that might be good grounds for not wishing to spend your summer holidays with prosecutor Crowe. But true or not, it is irrelevant to Crowe’s arguments. Both Darrow and Crowe are indulging in ad hominem fallacies. (Darrow and Crowe apparently did not take offense over this exchange of fallacious ad hominem attacks, since they remained close friends after the trial.)

The charge of bias is not the only tricky form of ad hominem fallacy. Another subtle use of ad hominem fallacy is to claim that the arguer’s words are inconsistent with his or her deeds. If Sandra Smith argues that abortions are wrong, then we must evaluate her argument

A nineteenth-century New York murder trial contains a striking example of an arguer’s special interest. In the 1857 trial of Mrs. Emma Augusta Cunningham for the premeditated murder of Dr. Harvey Burdell, the public prosecutor who argued for the conviction of Mrs. Cunningham (and thus for her execution) was also the lawyer for the blood relatives of Dr. Burdell and represented them in their efforts to claim the property of Dr. Burdell. Since one of the claims of Mrs. Cunningham (disputed by the prosecution) was that she was secretly married to Dr. Burdell, that meant that if her claims were upheld she would receive the bulk of Dr. Burdell’s considerable estate. The public prosecutor—in his role as counsel for Dr. Burdell’s family—thus had a special interest in having Mrs. Cunningham convicted and executed: that would get her out of the way and leave Dr Burdell’s estate for the clients of the prosecutor. The defense attorney for Mrs. Cunningham made quite sure that this peculiar situation was emphasized for the jury:

I ask again, gentlemen, why was it that such a savage attack was made upon this defenceless woman? There is only one principle upon which I can understand it. The moment the lifeless remains of Harvey Burdell are consigned to the cold and silent tomb, and even before, commences the scramble for his property. We know with what avidity his heirs, his blood relatives, have sought to snatch, and divide up among them, whatever property he left. We know how they have hunted this unfortunate woman; and I know, also, that the very Counsel of the members of that family who has appeared in the Surrogate’s Court, in order, if possible, to make null and void her marriage with the deceased, so that they might get the property—that very Counsel, although a worthy man and an able lawyer, appears here to prosecute this woman to the death. Gentlemen, you all recollect, upon the Coroner’s inquest, with what unmingled feelings of disgust was viewed the conduct of a certain lawyer who appeared there as Counsel for the blood relatives of the deceased, and took part in the inquest. As you mingled with your acquaintances and the people in this city, and read the newspapers, you heard the universal condemnation of the course pursued by that man; you heard denounced the indelicacy, and indecency even, of his appearing as public prosecutor, and, at the same time, as Counsel for those peculiarly interested in the death of my client.9

Certainly the defense counsel is correct that the actions of the prosecutor—in serving as counsel for the relatives of Burdell and also prosecuting Mrs. Cunningham—were “indelicate,” and perhaps even indecent. It does appear that the prosecutor operates from a position of very special interest in this case. But distasteful as that may be—even if we regard the prosecutor with “unmingled feelings of disgust” because of such conduct—that has no bearing on his arguments. The prosecutor, after all, is not giving testimony; rather, he is presenting arguments for the guilt of the defendant. And those arguments must be evaluated on their own merits and demerits, independently of the character, interests, or flaws of the person who presents them.

on its own merits. An argument that we should “Pay no attention to Sandra’s arguments against abortion, for I happen to know that Sandra herself has had three abortions!” would commit the ad hominem fallacy. If Joe Jones gives an impassioned argument in favor of vegetarianism (raising and killing animals is cruel to the animals, feeding grain to beef animals is wasteful in a world where there are many hungry people, and eating meat causes high cholesterol levels), then Joe’s argument is not weakened by the fact that you see him wolfing down burgers later that evening. (In evaluating Joe’s argument for vegetarianism, it doesn’t matter whether he was eating veggie burgers or Big Macs; it would change our opinion of Joe if we learn that his is a hypocrite, but it should not affect our evaluation of Joe’s argument.) Suppose that the district attorney argues that although the penalties for drunken driving may seem harsh, we must enforce them, for it is essential that we get drunk drivers off our highways; if later that evening you observe the district attorney stagger out of a bar and into the driver’s seat of her car, that is irrelevant to the strength of the district attorney’s argument. If you point out an inconsistency between an arguer’s argument and her actions, and conclude that the inconsistency refutes her argument, then you have committed the ad hominem fallacy.

Don’t get me wrong: I’m not approving of people who say one thing and do another. The television evangelists who preach spiritual values and the rejection of worldly wealth and then drive their limousines back to their mansions are a sleazy hypocritical lot. Politicians who proclaim their commitment to civil rights while belonging to segregated country clubs are despicable. But being a hypocrite has nothing to do with the quality of one’s arguments. Arguments stand or fall on their own, and the character of the arguer is irrelevant to the strength of the argument. An argument that smoking is extremely hazardous to health and that no one should smoke may be perfectly sound, despite the fact that the arguer smokes three packs a day.

If, on the other hand, someone is giving testimony (not argument), then inconsistency between words and deeds does weaken the testimony. Suppose a guru testifies (rather than argues) that a simple ascetic life is the way to true happiness: “Trust me; as you can see my own serenity, so you too can find true peace and inner joy through giving away all your possessions and eating only brown rice.” If you should discover that the guru in fact owns a fleet of Cadillacs, a mansion with a Jacuzzi in Pasadena, and lives on white wine and croissants, then you are quite justified in doubting the guru’s testimony. (But if the guru has given arguments to prove that a simple ascetic life is a happier life, then the guru’s own luxurious—and hypocritical—lifestyle is irrelevant to the guru’s arguments. In the earlier example of Joe, the hypocritical meat-eater who argues for a vegetarian diet, Joe is not giving testimony; thus Joe’s hypocrisy is completely irrelevant to the quality of his argument.) Suppose the defendant is testifying in court that he is a gentle, peaceful man who would never hurt anyone and would certainly never have committed the assault and battery of which he is accused; then if the witness has a pair of brass knuckles in his shirt pocket and threatens to punch the bailiff’s lights out for mispronouncing his name, you certainly may count such inconsistent behavior against his testimony.

Another possible confusion must be avoided. If someone gives an argument, then inconsistency between the argument and actions does not count against the argument. But, inconsistency within the argument itself is fatal. For if an argument contains inconsistent premises—premises that contradict each other—then at least one of the premises must be false. And if an argument contains a false premise, then the argument is unsound. Thus, while inconsistency between words and actions is irrelevant to the soundness of the argument, inconsistency within an argument is lethal for the argument.

Ad hominem arguments are tricky stuff, and dealing with inconsistency claims is one of the trickiest parts. Suppose that you and I are arguing about whether it is wrong to slaughter pigs so that we can enjoy bacon, ham, and pork chops, and you are trying to convince me that it’s wrong. “Look,” you say, “you oppose killing animals for fur coats, right? You say that it’s not right to kill animals for the luxury of a fur coat, when we have other materials that keep you just as warm and that don’t involve killing animals. Well, we have other foods that keep you just as well nourished—better, in fact—that do not require the killing of animals. So since you believe it’s wrong to kill animals for the luxury of a fur coat, you should also agree that it’s wrong to kill animals for the luxury of a pork chop.”10 That is a legitimate and important element of serious argument: consider what beliefs you hold, and then examine whether the claim you are currently making is consistent or inconsistent with that stock of beliefs. When you assert that my current position is inconsistent with other views that I hold, then I have several options. First, you may convince me to change my current claim: “Yes, you are right; I do think it’s wrong to kill animals for the luxury of wearing their fur, and so now as I think about it, I have to also conclude that it’s wrong to kill animals for the luxury of eating their flesh.” Second, I may decide to revise some of my other views, and bring them into line with the claim I’m currently making: “Well, I still think it’s OK to kill pigs for the luxury of pork chops; so I guess I’ll have to change my stance on fur coats, and now I see nothing wrong with killing mink, fox, and seals so that humans can wear luxurious furs.” Or third, I can attempt to show that my views are not really inconsistent: “No, fur coats are a luxury; but steaks and chops are a necessity.” “No, the cases are really different: seals, foxes, and mink suffer when they are trapped and killed for their fur; but cows, chickens, and pigs live happy lives and die peaceful deaths at the factory farms and slaughterhouses.”

Pointing out that my current position is inconsistent with my other beliefs is not an ad hominem fallacy; in fact, it’s not really ad hominem at all. It’s not an attack on me, but an attack on my argument: my position has implications that I had not thought through, implications that are inconsistent with the beliefs I hold. But notice: that is very different from saying that my argument is inconsistent with my actions. If I argue against killing animals for food while wearing a full-length mink coat, then you may think that my behavior is somewhat bizarre, and that I am a hypocrite; but no matter how weird and hypocritical the source of the argument, the argument itself must still be judged on its own merits, and not by its source. If I am giving testimony, however, then pointing out the inconsistency between my words and actions is relevant, and is a legitimate ad hominem argument. “Take my word for it, I know; that bridge is perfectly safe.” If I now refuse to drive across the bridge, instead taking a long and inconvenient detour, then you have good reason to doubt the reliability of my testimony concerning the safety of the bridge. If the owner of a company insists that he absolutely is not a racist, yet there are no African Americans among his 200 employees, then his actions are evidence against his words. And if a politician asserts that she strongly supports efforts to protect our environment, but consistently votes against legislation to prevent pollution, then we are justified in doubting the truthfulness of her pro-environment testimony.

We have examined several subtle varieties of ad hominem fallacy; the last one is perhaps the most deceptive of all. Call it the psychological form of ad hominem fallacy. This form occurs in attempts to discredit an argument by questioning the mental state of the arguer. It is an insidiously effective form of ad hominem fallacy, for it often masquerades as special sympathy for the arguer. Consider an example: Jane Jackson gives an argument against abortion. Instead of answering her argument, someone says, “Poor Jane, it’s such a tragic thing: She has always desperately wanted to have children, but she has never been able to. It’s not surprising that she opposes abortions. It must break her heart when people who do not want a child have an abortion, while she wants a child so much and cannot become pregnant.” Notice what such a comment does: It “explains away” Jane’s argument, by implying that since we now know the unfortunate psychological source of the argument we need pay no attention to the argument itself. But whether or not that is the correct psychological account of Jane’s feelings about abortion, it is irrelevant to the validity or invalidity of her argument. And to focus attention on the arguer instead of the argument is to commit the ad hominem fallacy.

Bertrand argues that we should immediately ban all killing of whales: Such killing threatens the survival of several species of these majestic creatures; the killing methods are cruel and painful to these sensitive mammals; and all the products we obtain from the killing of whales can be efficiently produced by other means. Someone responds, in a deeply sympathetic and pitying tone:

Bertrand is such a sad case. You see, his mother abandoned him when he was only 4 years old; and now he subconsciously identifies whales—those huge, gentle, and powerful mammals—with the mother he lost. It’s a very sad thing, and we should all be gentle with him.

Bertrand may indeed be a sad case, and his subconscious may be completely screwy; but neither Bert’s subconscious nor anything else about him is at issue. The question is the soundness of his argument. And that argument stands or falls independently of the arguer. The argument may be sound even if Bertrand is a looney tune.

One more example of the psychological ad hominem fallacy is noteworthy. In 1979, during the Iranian Revolution, Iranian students stormed the U.S. embassy in Tehran, and held a number of U.S. diplomats hostage for a period of several months. When the U.S. hostages were released from the Iranian embassy, some of them argued that there should be an investigation of U.S. interference in the internal affairs of Iran, and they cited several strong reasons for believing that the United States had used embassy personnel for covert activities against the Iranian government. But those arguments were quickly dismissed on the grounds that these unfortunate hostages were suffering from the “Stockholm syndrome”: a psychological disorder that sometimes causes long-term captives to identify with their captors. Now I’m not sure that this supposed psychological disorder of Stockholm syndrome is genuine; but I am sure that it is irrelevant to the arguments given by the returning hostages. If they are suffering from psychological problems, then certainly we should feel sympathy for them and for their ordeal as hostages. But if they give arguments, their arguments stand or fall independently of any characteristics—psychological or otherwise—of the arguers.

Of course if one is giving testimony, then evidence of psychological imbalance—evidence of paranoia, hallucinations, or delusions, for example—will indeed undermine the credibility of the testimony. (The testimony of Mehmet Ali Agca is the most dramatic example I know. Agca attempted to kill Pope John Paul II and later became the key prosecution witness against several defendants accused of plotting to kill the pope. However, some of his pronouncements during the trial—for example, that he is Jesus Christ reincarnated and that he has had visions of how the world will end—may prompt a bit of doubt concerning his mental stability; if so, one might also have some doubts about his testimony.) But neither an arguer’s psychological imbalance nor an arguer’s well-adjusted psychological stability have any bearing on the soundness of an argument.

There is a flip side to the ad hominem fallacy. Instead of attacking the source of an argument and then claiming that the argument is weak (as in the ad hominem fallacy), one may praise the source of an argument and then claim (fallaciously) that the argument is therefore strong: We’ll call that the “inverse ad hominem fallacy.”11 Inverse ad hominem is not as common as ad hominem—which is sort of depressing, when you think about it, since it suggests that people give more insults than compliments.

Just as flaws in an argument’s source do not count against the argument, also virtues in an argument’s source do not count in favor of the argument. For example, “It took a lot of courage for Senator Blowhard to attend the meeting of the National Organization of Women and argue against the Equal Rights Amendment. So there must be some substance in his arguments against the ERA, since he’s so courageous in presenting them.” Such courage is indeed rare and wonderful, especially in an era when politicians tend to tailor their speeches to fit the tastes of their particular audience. But while we may applaud the senator’s courage, that courage scores no points for his argument, which must stand or fall independently of the arguer’s virtues or vices. Of course if no arguments are at stake, then simply saying something nice about someone—“Horace is the kindest person I’ve ever known,” “Claudia is a whiz at calculus”—is certainly not committing the inverse ad hominem fallacy. And if someone is giving testimony (rather than argument), then “inverse ad hominem” support is relevant: Knowing that the witness (the testifier) is highly principled, profoundly truthful, psychologically sound, and completely unbiased is certainly useful when evaluating testimony.

Think of inverse ad hominem as the happier twin of ad hominem: It is a fallacy when ad hominem is a fallacy (when it is directed at arguers); and it is legitimate when ad hominem is legitimate (when evaluating testimony, deciding who to vote for, selecting the best person for a job, choosing a dentist, and determining what professor to take for cell biology).

In sum, an ad hominem attack on the source of an argument commits the ad hominem fallacy. Inverse ad hominem support of the source of an argument (this argument is good because its source is good) commits the inverse ad hominem fallacy. And just as ad hominem attacks are often useful and legitimate (this witness is biased, this politician is a fraud, this advertiser is a liar, this card player is a cheat, this teacher is a bore, this guy is a pig), so likewise inverse ad hominem praise is often valuable and nonfallacious (this person is a good credit risk, this student is well qualified for your graduate school, this candidate is sincere and high-principled, this witness is honest and reliable and sober, this surgeon is splendid).

Samuel Johnson used a particularly apt metaphor to capture the important difference between argument and testimony. Engrave it on your memory, and you will avoid forever the traps and snares of the ad hominem and inverse ad hominem fallacies:

Argument is argument. You cannot help paying regard to their arguments, if they are good. If it were testimony you might disregard it. Testimony is like an arrow shot from a long bow; the force of it depends on the strength of the hand that draws it. Argument is like an arrow from a cross-bow, which has equal force though shot by a child.12

One word of caution in dealing with ad hominem arguments. Suppose that I give an argument for capital punishment. If you attack the source of the argument in an effort to discredit my argument, you have committed the ad hominem fallacy: it doesn’t matter how vile or cold-hearted or irrational or self-serving the arguer is, you still have to consider the quality of the argument. But if you attack my argument (and not the person giving the argument), then that is not ad hominem fallacy, and it is not a legitimate ad hominem argument: it is not ad hominem at all. If I give an argument, it is perfectly legitimate to train all your guns on that argument. You can note that my argument makes a logical error, or that its premises are false, or that its premises are irrelevant to its conclusion. Arguments are a fair target; arguers are not. The main purpose of this book is to help you recognize and construct good arguments, and recognize and destroy bad arguments. So an attack on an argument is neither fallacious nor legitimate ad hominem, simply because it is not an ad hominem argument. Your criticism of an argument may succeed or fail, but so long as you are not attacking the source of an argument, you are not committing the ad hominem fallacy. So by all means, search out and destroy bad arguments; but leave the arguer out of it. Don’t attack the person giving the argument; likewise, when someone criticizes one of your arguments, don’t take it as a personal insult: An attack on your argument is not an attack on you.