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
Our main concern has been with what follows from premises: If the premises of this argument are true, do they give us good and sufficient reason to believe the conclusion? But obviously that is not all there is to evaluating arguments. It is equally important to ask: Are those premises really true?
How do we decide whether the premises are true? As noted in the discussion of assumptions, we don’t always decide. Sometimes—and sometimes legitimately—we simply start from premises we all accept: premises that we all assume to be true, at least for the moment. But sometimes we require stronger support for our premises. One common source of support was discussed in Chapter 10: Appeal to the testimony of an appropriate authority is one way of attempting to establish the truth of premises. But authorities and experts aren’t the only ones who testify to the truth of premises. There is another sort of testimony that deserves special attention: eyewitness testimony.
Figure 16-1
Drawing of seven human heads
Eyewitness Testimony
In Chapter 10, there was extensive discussion of expert testimony: psychiatrists who testify about the sanity or insanity of the defendant, ballistics experts who testify concerning what gun fired the fatal bullet, and so on. But what about eyewitness testimony: the person who claims to have observed the defendant running from the scene of the crime, the witness who testifies that she saw the defendant holding a gun on the bank teller, the individual who swears that he heard the defendant planning the crime? How do we evaluate such eyewitness testimony?
Cautiously. Very cautiously.
Is the witness telling the truth? That’s an ambiguous question: It can mean two very different things. In one meaning the question is this: “Is the witness telling the truth as she remembers it (is she lying or telling the truth)?” But the question can also mean something very different: “Is this witness—who is trying his best to be honest—really describing the events accurately, or are his honest efforts mistaken?” In one sense, “truth” means honesty, and telling the truth is contrasted with lying. In the other sense, “truth” means an accurate statement, and it is contrasted with error. Thus a witness may be telling the “truth” (in the sense of testifying honestly to what she remembers) and still be giving false (erroneous) testimony. This point is made quite elegantly by Hugo Munsterburg in On the Witness Stand:
We are too easily inclined to confuse the idea of truth in a subjective and in an objective sense. A German proverb says, “Children and fools speak the truth,” and with it goes the old “In vino veritas.” Of course, no one can suppose that children, fools, and tipsy men have a deeper insight into true relations than the sober and grown-up remainder of mankind. What is meant is only that all the motives are lacking, which, in our social turmoil, may lead others to the intentional hiding of the truth. Children do not suppress the truth, because they are naive; the fools do not suppress it, because they are reckless; and the mind under the influence of wine does not suppress it, because the suppressing mechanism of inhibition is temporarily paralyzed by alcohol. The subjective truth may thus be secured, and yet the idle talk of the drunkard and the child and the fool may be objectively untrue from beginning to end.1
Potential Sources of Eyewitness Error
At least four things must be considered when evaluating eyewitness testimony: First, was the witness in a position to make accurate observations; second, how were the witness’s observations influenced by the witness’s state of mind, her prior beliefs and expectations,
Mistaken Identity
One of the most famous cases of mistaken identity involved a Roman Catholic priest, Father Bernard Pagano. In 1979, Father Pagano was on trial, charged with six armed robberies that had occurred in the Philadelphia area. Seven eyewitnesses confidently identified Father Pagano as the well-dressed, soft-spoken, and unfailingly courteous “Gentleman Bandit” who had robbed them at gunpoint. The eyewitness evidence seemed quite convincing, and Father Pagano was well on his way to conviction for armed robbery, when another man—Ronald Clouser, who at age 39 was 14 years younger than the taller balding accused priest—confessed to the robberies. Clouser turned himself in, stating that he could not live with himself if he allowed the priest to be wrongly convicted. Clouser knew details of the robberies that only the robber could have known, and he was ultimately convicted of the robberies. The trial of Father Pagano was halted, and the court apologized to the wrongly identified priest.
perhaps even by mental disorder; third, in what ways have the witness’s recollection of the events been influenced during the time between making the observations and giving testimony; and finally, is the witness testifying to the truth as she remembers it, or is the witness lying?
Notice that of the four key questions concerning testimony, only one focuses on the honesty of the witness; three of the conditions are concerned with whether an honest witness is testifying accurately. Let’s start with those. First, was the witness in a position to accurately observe the events in question? (Was the light good? Was the car moving too fast for the witness to get a clear view of the driver? Was the distance too great for the witness to make an accurate identification? Was the witness wearing his glasses?) It is not uncommon for people to be so eager to help—they sincerely want to help solve a crime or make sure that the right person is blamed for an auto accident or perhaps they just like the importance of being a witness—that they convince themselves they clearly observed events they could not have seen. Thus it is important for attorneys to ask about—and for jurors to consider—the situation in which the observations were made: Is it plausible to believe that the witness could observe what he or she claims to have observed? Consider this example:
In a very celebrated capital trial ... the prosecution encountered difficulty in identifying the prisoner. She was charged with murder and with robbing the home in which the murder was committed. It was claimed that she left the house and crossed from Brooklyn to New York in a ferryboat before daylight. A woman was called as a witness for the prosecution who testified that she saw the prisoner on board, that she knew her, and she seemed to think she could not be mistaken. Upon being asked on cross-examination why she was so positive as to the identity, she said that she had not seen her since she (the prisoner) was a little girl about four or five years old (she was then about forty); but she identified her by her nose. She was asked if she saw the prisoner’s nose. She said: “Oh no, I could not see her nose; she had on a thick veil, and, besides, it was dark. But I saw the impression the tip end of her nose made on her veil, so that I recognized it as the nose peculiar to her family.”2
Even if the witness was physically in a position to make accurate observations, there is another question that must be answered: Was the witness’s state of mind such that she could make accurate observations? Was the witness so frightened that he saw only the pistol and could not possibly identify the robber? Did the witness’s belief that Jones is an aggressive bully influence her perception of who actually threw a punch? Was the witness so prejudiced that he merely assumed—rather than actually observed—that the person who pulled the knife was the black man rather than the white man?
Observations of criminal activity are stressful—particularly if the observer is the victim of a violent crime. It is commonly supposed that people observe and remember more accurately under stress, but experiments indicate that instead of stress improving perception, it is more likely to weaken it. As Elizabeth Loftus (an authority on the psychology of eyewitness observation) states,
People are characteristically upset when they see a crime or an accident, the time when the information that makes up the memory is acquired. Many people think that their memory becomes more precise at these times. “I was so frightened by him that I’ll never forget that face” is a common remark of victims of serious crimes. In fact, people who witness fearful events remember the details of them less accurately than they recall ordinary happenings. Stress or fear disrupts perception and, therefore, memory.3
Preconceptions.
Stress is not the only influence that can distort perceptions. One of the most important influences on our perceptions—and our memories, and thus our testimony—is our expectations. A dramatic example of how expectations can influence perceptions is afforded by the famous study done by Jerome Bruner and Leo Postman.4
They showed subjects cards that were very similar to ordinary playing cards but were changed in a clear way. For example, they flashed pictures of normal playing cards and of cards in which the colors were reversed (including a black ace of diamonds and a red two of spades). Subjects found it very difficult to correctly describe the trick cards; because of their strong expectations, they frequently “saw” the black ace of diamonds as red, or saw the red two of spades as a heart rather than a spade, or saw the card as “black and red mixed” or as “grayish red.”
Look at Figure 16-2. What do you see when you look at these drawings? You see some clever drawings of ordinary animals, right? A goose, a fish, a rooster, a rabbit, a dog, a cat, a rat. Now think back to the drawings in Figure 16-1: the sketches of seven human heads. Do you see any similarities between the bald-headed man—the second drawing in the second row—and the drawing of the rat? In the first case, the other drawings influenced you to expect a human head, and that is what you probably saw, but when the same drawing is placed with animal drawings, you see a rat.5
Preconceptions influence not only the way we see objects, but also the way we see events. Albert Hastorf and Hadley Cantril6 studied observers’ memories of a Dartmouth-Princeton football game that had become quite nasty. They found—perhaps not surprisingly—that Princeton fans perceived that the Dartmouth team was responsible for most of the dirty play, while the Dartmouth fans had seen more dirty play by the Princeton players. In watching identical films of the game, Princeton fans “saw” Dartmouth players commit twice as many infractions as were observed by Dartmouth fans, and the Princeton fans were much more likely to see the Dartmouth infractions as “flagrant,” while the Dartmouth fans tended to classify the Dartmouth infractions as “mild.” Along the same lines, it is a quite common occurrence in civil trials concerning the collision of ships that the crews of the ships testify without exception in support of their own ship and place the blame on the movements of the other ship. Some of that result may be attributable to pressure from shipmates, but it is likely that much of the conflicting testimony is simply the result of people “seeing” what they want and expect: their own ship being navigated correctly, and some other ship committing the violation. In short, expectations can and do strongly influence what is observed—and thus they can have terribly distorting effects upon testimony. A person who has strong expectations concerning some event—and particularly someone who is prejudiced against some of the participants—may sincerely believe that she is testifying truthfully. But there is a strong possibility that the witness’s preconceptions are causing false perceptions, false memories, and false testimony.
Filling-in Memories.
The accuracy of a person’s memories is a difficult thing to gauge. Memory is a complicated process, and as all of us are painfully aware, our memories can play tricks on us. Elizabeth Loftus describes the problem:
Human memory does not work like a videotape recorder or a movie camera. When a person wants to remember something, he or she does not simply pluck a whole memory intact out of a “memory store.” The memory is constructed from stored and available bits of information; any gaps in the information are filled in unconsciously by inferences. When these fragments are integrated and make sense, they form what we call “memory.”9
Thus some of our memories of events are there because that is exactly what we observed, but some of our memories are parts that we created—from our assumptions, expectations, beliefs, imaginations—to fill in the gaps. The problem is, we can’t tell which is which, so we may honestly testify to something we distinctly remember observing, but which is in fact a part of our “memory” we filled in (but did not actually observe).
Loftus offers this example of how honest people can confidently fill memory gaps with elaborate illusions.
Some years ago during a course on cognitive psychology I gave my students the following assignment: I told them to go out and create in someone’s mind a “memory” for something that did not exist... . One group of students conducted their study as follows: Two female students entered a train station, one of them leaving her large bag on a bench while both walked away to check the train schedules. While they were gone, a male student lurked over to the bag, reached in, and pretended to pull out an object and stuff it under his coat. He then walked away quickly. When the women returned, the older one noticed that her bag had been tampered with, and began to cry, “Oh my God, my tape recorder is missing!” She went on to lament that her boss had loaned it to her for a special reason, that it was very expensive, and so on. The two women began to talk to the real eyewitnesses who were in the vicinity. Most were extremely cooperative in offering sympathy and whatever details could be recalled. The older woman asked these witnesses for their telephone numbers “in case I need it for insurance purposes.” Most gladly gave their number.
One week later an “insurance agent” called the eyewitnesses as part of a routine investigation of the theft. All were asked for whatever details they could remember, and finally, they were asked, “Did you see the tape recorder?” Although there was in fact no tape recorder, over half of the eyewitnesses “remembered” seeing it, and nearly all of these could describe it in reasonably good detail. Their descriptions were quite different from one another: some said it was gray and others said black; some said it was in a case, others said it was not; some said it had an antenna, others claimed it did not. Their descriptions indicated a rather vivid “memory” for a tape recorder that was never seen.10
The Power of Suggestion.
Unconscious filling in can play havoc with memory, causing an honest and sincere person to affirm as true what may be objectively false. There are many subtle factors that may influence the way memories are filled in, including the way questions about the events are asked. Elizabeth Loftus describes an experiment she conducted with some other researchers that revealed how the way questions are asked can affect memories:
People viewed films of automobile accidents and then answered questions about what they saw. The question “About how fast were the cars going when they smashed into each other?” elicited a higher estimate of speed than questions using the verbs collided, bumped, contacted, or hit in place of smashed.
Smashed had other implications as well. A week later, the same people were asked, “Did you see any broken glass?” In spite of the fact there was no glass involved, those who had been asked the question with the verb smash were more likely to answer yes than the others.11
For a more mundane example of how the wording of questions can affect memories, consider this case. A number of people were interviewed during market research about headaches and commercial headache remedies. Half were asked, “In terms of the total number of products, how many other products have you tried? 1? 2? 3?” Those asked that question reported trying an average of 3.3 other products. The other half of the interview subjects were asked, “In terms of the total number of products, how many other products have you tried? 1? 5? 10?” Those asked the question in that form remembered using an average of 5.2 other products. In the same survey, half of those interviewed were asked, “Do you get headaches frequently and, if so, how often?” They answered that they had an average of 2.2 headaches per week. The others were asked, “Do you get headaches occasionally and, if so, how often?” The question is almost identical; but the subjects asked the question in that form reported an average of only 0.7 headaches per week.12
Asking the Right Question
The way a question is framed can influence the answer, as illustrated by this story by Leo Katz:
... two monks, Theophilus and Gottlieb, ... are quarreling over whether one may engage in smoking and praying at the same time. Theophilus, an unbending ascetic, says no. Gottlieb, an easy-going smoker, says why not. They meet again some weeks later. Theophilus triumphantly reports, “I took the issue to the pope. I asked him point-blank ‘Is it permissible to smoke during prayer?’ and he said ‘Absolutely not.’ ” Gottlieb protests: “That’s not what he said when I asked him.” He smiles sheepishly. “Of course I did phrase the question a little differently. I asked him ‘Is it permissible to pray while I smoke?’ and he said ‘Of course.’ ”13
Nowhere is the danger of suggestion more severe than in eyewitness identifications. Again, Elizabeth Loftus offers the best account of the problem:
Keep the obliging nature of witnesses in mind, and also the circumstances surrounding a criminal identification. Usually the police show witnesses several photographs or a lineup. In both cases the witnesses look at a set of faces to see if anyone appears familiar. Witnesses know that the culprit may not be in the set, but many believe that the police would not conduct the test unless they had a good suspect. Although witnesses try hard to identify the true criminal, when they are uncertain—or when no one exactly matching their memory appears in the lineup—they will often identify the person who best matches their recollection of the criminal.14
Even the most carefully conducted procedures of suspect identification may therefore yield false—but sincere—identifications. Unfortunately, not all lineup procedures are scrupulously conducted (see Figure 16-3). As Loftus notes,
Cartoon—four people in a lineup
But many lineups used in actual criminal cases are grossly suggestive, and the identifications they produce should be considered worthless. In a lineup conducted in Minnesota, a black suspect stood next to five white men; in another case, a six-foot-three-inch suspect was placed in a lineup with nonsuspects who were all under five feet ten inches tall; in a case where the offender was known to be in his teens, an eighteen-year-old suspect was placed in a lineup with five nonsuspects, all over the age of forty. In a case I worked on from 1986 to 1988, a man was accused of murdering eight people on a fishing boat in Alaska. Eyewitnesses had provided police with a general physical description of the man they saw at the murder scene, including one very specific detail—the man they saw wore a baseball cap. In the photo lineup, the suspect was the only person wearing a baseball cap.15
Other problems can arise with identifications on the basis of witness memories. “Photo-bias” can play tricks on a sincere person’s memory, as indicated by this experiment at the University of Nebraska:
An hour or so after “witnesses” watched some “criminals” committing a “crime,” they looked through mugshots that included some of the “criminals” they had seen. A week later, lineups were staged and the “witnesses” were asked to indicate those who had taken part in the original “crime.” Eight percent of the people in the lineup were identified as criminals; yet they had neither taken part in the “crime” nor been among the mugshots. A full 20 percent of the innocent people whose photographs had been included among the mugshots were falsely identified also. Despite the fact that none of these people had committed a crime, nor had they ever before been seen in person, they were recognized from photographs and identified as criminals.16
Thus seeing photographs can cause an “unconscious transference” in which someone seen in one situation is confused in memory with persons from a different situation. Photo-bias is a special problem in eyewitness identification: After being assaulted and robbed, I go to the police station to look through photographs. I see a mug shot that
Improving Lineups
Lineups are a common means of having eyewitnesses pick out the person who committed the crime. But even at their best, eyewitness identifications from lineups are notoriously subject to error (and as already noted, the actual lineups are often far from being at their best). There is probably no way to make lineup identifications really reliable; but are there ways to significantly improve the procedure?
As an obvious starting point, we should occasionally use “control” lineups, in which no suspect appears in the lineup. If I walk into the observation room, fully expecting that someone in the lineup must be the person who robbed me, then I am likely to pick out the person most resembling my memory of the robber (and then fill in that memory with the more exact image I now have of the person in the lineup). If instead I know that sometimes lineups are set up with no suspects included, as a check on the accuracy of identifications, then I will be less likely to latch onto someone in the lineup who has some superficial resemblance to the robber.
Another major improvement would involve “blinding” the lineup: that is, make sure that the person who observes the lineup with the eyewitness does not know which person in the lineup is the suspect. Even if the police officer with the eyewitness is not trying to coach the eyewitness to pick the “right person” from the lineup—and sadly, that sometimes happens—the most conscientious officer may still give the eyewitness subtle and unintended cues to help in identifying the suspect. It doesn’t have to be something as gross as “Did you take a close look at number two?” It could be only that the officer looks more at the suspect, or speaks differently to the suspect than to the other persons in the lineup: when the eyewitness asks person number three in the lineup to turn sideways, the police officer—who relays the order to the lineup—might speak more courteously than when giving the order to number two, the suspect. Or perhaps when the eyewitness indicates it might be number three (not the suspect) the police officer frowns and urges her to take her time; but when the eyewitness indicates it might be number two, the officer smiles and says thanks for your help.
Finally, all lineup procedures should be taped, so that any irregularities in the lineup—that could lead to mistaken identifications—can be challenged by the defendant’s counsel.
I think might resemble my assailant. Later the person from the photograph shows up in a lineup. Now I am certain that he is the man who assaulted me (and by the time I see him again in court, my confidence in that identification is even stronger). Perhaps I’m right. But there is also the possibility that my identification is the result of photo-bias: I remember the person in the photograph, and use that memory to fill in the forgotten face of my assailant. At that point, my complete confidence in my (mistaken) eyewitness identification may well persuade the jury to convict an innocent defendant.
Similar memory tricks can occur without photographs. After being held up at gunpoint, a railway ticket agent observed a police lineup and confidently identified a sailor as the armed robber. However, further evidence proved that the sailor could not have been the robber. It turned out that the sailor had purchased tickets from the railway agent on three occasions prior to the robbery, and thus when the agent saw the sailor in the lineup, the sailor looked familiar. The agent apparently made an unconscious transference of the memory of the ticket-buying sailor to the event of the robbery.17
In short, there are many ways that a sincere witness’s memory may make mistakes: It may be influenced by subsequent events (such as seeing a photograph); it may fill in with other beliefs and assumptions (including prejudices); it may be colored by the way questions are asked; it may latch onto a current image and substitute that image for a fading and fuzzy memory (as when a witness replaces his vague memory of the actual criminal with the vivid image of the person standing before him in a lineup). In spite of all this, eyewitnesses may testify accurately—but it is important to be aware of the pitfalls and dangers of even the most honest and sincere eyewitness testimony, and to realize that when an attorney is questioning the way lineups were carried out or the way identifications were handled she may be raising very significant questions.
Judging the Honesty of a Witness
There is probably a greater problem with sincerely mistaken witnesses than with witnesses who consciously and purposefully mislead—that is, who lie. Still, the fourth factor to consider when evaluating witnesses is whether the witness is honest. If we assume that the witness really could see what happened, that no presuppositions or prejudices clouded
the witness’s perception, that the witness’s memory has not filled in inaccurate details, and that no suggestions have distorted the witness’s memories, then there is still a final question: Is the witness telling the truth as he or she remembers it?
We may have difficulty with the sincere but mistaken witness: the witness who is testifying falsely but honestly believes he is telling the truth. The lying witness is another matter—surely we can distinguish a liar from an honest person.
Or so we imagine. But like many of our cherished beliefs, that one is probably false. When we think carefully about it, we realize that distinguishing truthful witnesses from dishonest ones is a very difficult task. Honest witnesses may—due to nervousness or shyness or insecurity—give an appearance of uncertainty or even dishonesty. For many people, speaking in a public courtroom (before a judge, attorneys, a dozen jurors, and possibly a number of spectators) is a frightening experience. The courtroom and judicial procedures may be quite familiar to the judge and the attorneys, but they are often strange and alien to witnesses. When a hostile attorney is subjecting the witness to harsh cross-examination, in a strange setting, before a crowd of strangers, the situation may be terrifying. It is hardly surprising that in those conditions an honest witness may become so nervous that he or she gives the impression of not being quite certain about testimony, or the impression that he or she is being evasive and dishonest. Furthermore, those with less education or who have less self-confidence may be more hesitant in answering questions, and less assertive and forthright in their answers. Jury members might easily conclude that such a witness is less certain of the testimony being given, while the testimony of a more confident or “higher status” witness may appear more believable. Whether a witness is well-educated and self-confident has nothing to do with whether that witness is honest, but it may have a great deal to do with whether jurors believe the witness is honest.
Several studies have been made of whether it is ordinarily possible to distinguish lies from honest reports. All indications are that—despite the confidence most people feel in being able to detect liars—generally we are not able to distinguish liars from the truthful. In fact, research findings show that people’s ability to distinguish honest witnesses from liars is no better than chance; that is, if one is attempting to determine whether or not a person is lying by simply observing that person’s behavior while talking, then flipping a coin is likely to work as well as watching the person carefully.19
That does not mean that it is always impossible to tell when a witness is telling the truth and when a witness is lying. It simply means that trying to distinguish a liar from a truth-teller by watching whether the witness is nervous, squints, answers slowly, smiles uncomfortably, or has a weak chin is not going to work. The best way of going about that is by judging carefully the content of what the witness says: Does it conflict with known facts? Does it contain inconsistencies? Is it inherently implausible? Does it hold together as a whole? Also, keep in mind that when judging the reliability of testimony it is legitimate and useful to consider the source of the testimony: Does the witness have a strong reputation for honesty, or does his past behavior reveal evidence of disregard for truthfulness? Does the witness have ulterior motives or prejudices?
A “jailhouse informant” is promised a substantial reduction in prison time if he hears—and testifies to—incriminating statements made while the defendant is in jail awaiting trial. That strong motive for lying is a much more important factor in judging the truthfulness of the witness than is a weak chin, beady eyes, or nervous twitch. Listening carefully to testimony and evaluating it for consistency, coherency, and plausibility is harder work than merely looking for easy (but inaccurate) “tip-offs” to lying or truth-telling. But as already noted, discovering the truth is often hard work.
Four possible sources for the inaccuracy of eyewitness testimony have been noted: the witness may not have been in a position to observe accurately; the witness’s preconceptions, prejudices, or some other influence may have distorted the witness’s observations; even if the witness’s original observations were accurate, subsequent events and the passage of time and the filling in of details may have resulted in inaccurate memories of the events; and finally, the witness may be consciously lying.
Eyewitness testimony is often important, and it should be examined closely. But the point is, it should be examined, and all the ways it could be misleading and false should be kept in mind. Even the most sincere eyewitness report can be mistaken, and unfortunately not every eyewitness is trying to give an accurate report.
In sum, listen carefully and cautiously to eyewitness testimony. It may be accurate and useful, but there are also ways it can go wrong. True premises are essential for legitimate arguments; if we mistakenly take false premises for true, it will not be too surprising if we reach false conclusions. And false conclusions can have unfortunate consequences: They may lead us to eat the wrong breakfast cereal, buy the wrong car, vote for the wrong candidate, or convict an innocent person.
The Whole Truth (THIS IS PAGE 309)
It’s important that arguments contain true premises, that witnesses tell the truth. It is also important that arguments and witnesses tell the whole truth. A particularly deceptive style of argument involves using true premises but omitting or suppressing some points that would lead to a very different conclusion.
A clear case of omission of important information is an old Shell Oil commercial. You might remember it. The commercial starts with two identical cars lined up on a track. An equal measure of gasoline is placed in each car; the gasoline in the two cars is identical, except that the gasoline in car A contains platformate (the wonder additive that goes in all Shell gasoline) and the gasoline in car B does not contain platformate. The cars start down the track. Car B soon sputters to a halt, while car A whizzes along, tears through a huge banner, and looks as if it could continue forever! The moral of the story: If you want great gas mileage, then buy New Shell with platformate.
Sounds good, right? Shell gasoline has platformate, gasoline with platformate gives better mileage—so, since I want better mileage, I think I’ll buy Shell.
It does sound good, and it sold a lot of gasoline. But the commercial left something out. The commercial did not tell a lie; it just did not tell the whole truth. What important information was omitted?
Platformate really does increase gasoline mileage. It truly is a valuable gasoline additive. The Shell commercial neglected to mention one thing: Practically all the standard brands of gasoline sold in the United States at that time contained platformate. So the fact that Shell also contained platformate was not a good reason to buy Shell rather than some other brand. That’s an example of suppressed evidence. By failing to mention that almost all gasolines contain platformate, Shell implied that Shell gasoline was unique—which it was not. The evidence suppressed was certainly relevant and important. Once the suppressed evidence is included, it is clear that the conclusion—Shell gasoline gives better gas mileage than other gasolines—does not follow.
Shell is not the only company to advertise a “special feature” of its product while suppressing the fact that its competitors also have that feature. Since people have become concerned about having artificial preservatives in their foods, some jam and jelly producers have begun to put “NO ARTIFICIAL PRESERVATIVES” in bold letters on their labels. The label is true, but misleading: No jams or jellies contain artificial preservatives, because sugar is the only preservative agent used in jams and jellies. Since people are now concerned—legitimately—about cholesterol, one company now advertises that its canned pineapple contains “no cholesterol.” Certainly the advertisement is true: Cholesterol is found only in animal products, so there is no cholesterol in that brand of canned pineapple. But if consumers are led to believe that that particular brand of canned pineapple is therefore different from other brands, then the advertisement is misleading (by suppressing the fact that no canned pineapple contains cholesterol).
Zest soap used a dramatic television commercial showing a woman holding two photographs in front of two transparent containers of soapy water. She dipped one of the photographs into (what the announcer called) “her favorite soap,” the other into the container with Zest. After rinsing the pictures in clear water, she held them up to the camera. The photograph from the Zest container had rinsed clear and bright; but the soap from the other container had left a film on the photograph. The woman then hammered home the point: “I don’t like the fact that the soap is staying on our skin like that!” We at home, lounging through another commercial, began to feel a sticky soap film clogging our pores, and we resolved to buy a few bars of that clear-rinsing Zest. And
it’s true: Zest does rinse off, it doesn’t leave a sticky film. When a consumer reviewer (writing for the Atlanta Constitution) tested Zest, Zest did indeed rinse clean, leaving no sticky film on a photograph. However, the reviewer tested five other standard brands of soap (Ivory, Palmolive, Dial, Camay, and Coast) and none of them left a sticky film. Zest does not leave a sticky film, true enough; but neither do any of its major competitors.
Anacin has used a variety of advertising pitches that trade on the same basic ploy: “Four out of five doctors recommend the pain reliever in Anacin!” “Anacin has the pain reliever DOCTORS recommend MOST!” True, true; or rather, half true. The “pain reliever in Anacin” is “the pain reliever doctors recommend most,” since doctors most often recommend aspirin (as in, “Take two aspirin and call me in the morning”), and the pain reliever in Anacin is just aspirin. It’s the same aspirin you can buy for a fraction of the price of Anacin’s slickly advertised version.
Advertising for Triumph—a brand of low-tar cigarette produced by Lorillard—attempted to win points against a major low-tar competitor, Merit. The advertising claimed (correctly) that in a taste test of Triumph against Merit “an amazing 60% said Triumph tastes as good or better than Merit.” Sounds like Triumph won the taste test by a wide margin, right? Well, not quite. Turns out that 40% preferred Merit, 36% chose Triumph, and 24% said they couldn’t tell the difference.
Advertisers are not the only ones using half-truths. Not long before Enron’s falsification of financial records became public and Enron stock crashed, CEO Kenneth Lay assured Enron employees that Enron stock was a good buy, and told them that he himself had recently purchased Enron stock. That was true: He had exercised a stock option to buy Enron stock. What he failed to report to the Enron employees was that he had recently sold far more Enron stock than he had purchased.
Important social debates can also trade on half-truths and suppressed evidence. In 2009 and 2010, there was a huge struggle over health-care reform in the United States. One reform package, supported by President Obama and most Democrats, called for expanding medical care to cover most of the millions of uninsured, preventing insurance companies from refusing to cover those with pre-existing conditions or dropping from coverage those who develop major health problems, and placing limits on the increases in premiums that insurance companies could charge—with the goal of making affordable health insurance more widely available, and preventing citizens from being excluded from coverage. In criticizing that plan, Republican Senator Lamar Alexander stated that if the health reform issue passes, then “for millions of Americans, insurance premiums will go up.” Economist Paul Krugman had this response to Senator Alexander’s half-truth:
Wow, I guess you could say that he wasn’t technically lying, since the Congressional Budget Office analysis of the Senate Democrats’ plan does say that average payments for insurance would go up. But it also makes it clear that this would buy more and better coverage. The “price of a given amount of insurance coverage” would fall, not rise—and the actual cost to many Americans would fall sharply thanks to federal aid.
In 2009, the United States spent more than 17% of its gross national product on health care—far more than any other country in the world—yet millions of U.S. citizens have no health care, and many others have health-care coverage only periodically or have severely substandard health care. And the United States—while spending more money per person on health care than any other country—has one of the highest infant mortality rates of any industrialized nation. So what should the United States do? The question of what sort of health-care reforms would work best is an issue of vital importance that deserves complete and open and honest debate. When the whole truth is obscured by half-truths, such debate is impossible. And that observation applies whether the issue is health care, the innocence or guilt of a defendant, or the quality of a breakfast cereal. But how do we find the whole truth when an important part of it is hidden from view?
Are the Premises True?
Getting the truth—and the whole truth—is an essential part of deciding the soundness of arguments. It is important to question the truth of premises, whether they occur in commercials, editorials, or courtrooms. But there’s the rub. How do you discover whether the premises are true? How do you know whether the advertiser is lying to you? How can you tell whether the editorial writer is omitting important facts? How do you determine whether the witness is telling the truth? Certainly it’s important to know whether the premises are actually true and that no relevant information is concealed; but how can you know?
Digging for Truth
Unfortunately, there’s no easy way. You can lounge in your hammock and analyze arguments for validity to your heart’s content. Does the conclusion follow from the premises? That’s a question we can answer without research, observations, experiments,
or expert authorities. But when we ask about the truth of the premises—and whether some relevant information has been omitted—we must go out into the cold world and try to find the facts. That’s hard work.
Suppose you are examining arguments about the desirability of using landfills for the disposal of solid hazardous wastes, and in an argument in favor of using landfills, this premise occurs: “The new landfill technology makes it possible to design hazardous waste landfills in such a manner that there is absolutely no danger of wastes from the landfill contaminating groundwater.” It’s not difficult to see that that premise is relevant to the question of whether we should use landfills. In fact, when that premise is combined with the premise that landfills are one of the least expensive ways of dealing with hazardous wastes, the result is strong support of the conclusion that we should use landfills for disposing of hazardous wastes. But is the premise true? We cannot answer that question by looking more carefully at the argument; instead, we must go out and get reliable information about landfill technology—and since that is a controversial topic, it will not be easy to find reliable information that will tell us whether that premise is true.
There’s no simple menu for determining the truth or falsity of premises. Determining the truth of premises means determining the way things are in the world, and that is what physicists, detectives, historians, economists, meteorologists, sociologists, physicians, astronomers, microbiologists, consumers, and jurors—indeed all of us at various times—spend their lives trying to ascertain. There is no easy answer to the question of how to tell whether the premises are true and complete. I’m sorry about it; that’s just the way it is; it’s not my fault.
However, a couple of suggestions may help. First, try to get information from a variety of sources, especially on controversial topics. If you read only one newspaper, you will get only the news—and the perspectives on the news—that the paper selects. The same applies even more strongly to watching only one network newscast, in which time constraints make the selection of news even more important. (Some of the journals of news analysis do an excellent job of providing detailed reports on topics that newspapers cover superficially or not at all.) And there are a number of excellent online news resources that can give you access to news perspectives from around the world. One of the toughest problems in considering arguments is discovering what has been omitted; to find what is left out of one source you must examine the same issue as discussed by other sources. If two sources differ in their premises (one source asserts as a premise that landfills are safe, while another source asserts that all landfills will ultimately leak hazardous wastes), then you may still have a difficult time knowing which to believe, but at least you will know which premises must be questioned and examined.
Consider the Source
A second suggestion for dealing with the problem of detecting false premises and important omissions is this: Consider the source. If the source of the argument has a special interest in the issue or a special bias, then you should be on guard against false premises and important omissions. Obviously when you watch a television commercial you should keep in mind that the commercial is designed to sell you something: The commercial is not a neutral, unbiased source of information, and you should be alert for false claims and significant omissions. When the American Tobacco Institute—the public relations group for the tobacco industry, paid for by the tobacco industry—offers an argument against restrictions on smoking in public, it is well to bear in mind that the American Tobacco Institute has a special ax to grind, and you should therefore scrutinize its premises closely. However, while it is good practice to use special care in considering whether a biased arguer’s premises are true and whether they omit important facts, it would be wrong to reject an argument simply because the person giving the argument has a special interest. Knowing that the arguer has a special interest should make us more cautious in examining the truth of the premises, but it is not a reason to reject an argument. If the American Tobacco Institute gives an argument against restrictions on public smoking, then that argument must stand or fall on its own merits. If the premises are false, or if the argument is invalid, then those are good reasons to reject an argument. If the source of the argument is biased, that is good reason to give the argument and its premises special scrutiny—but that is not in itself a reason to reject the argument. To reject an argument solely on the grounds that the source of the argument is biased or has a special interest is to commit the ad hominem fallacy. Arguments from interested sources are sometimes sound arguments, just as arguments from neutral sources are sometimes unsound. However, if rather than arguments you are examining reports or testimony (when, for example, a pharmaceutical company assures us that they have tested this new drug and it is quite safe) then consideration of the special interests and motives and truthfulness of the source is essential.
