Allard School of Law Associate Professor Emma Cunliffe is a recent recipient of a Killam Research Fellowship, one of ten awards given to leading UBC scholars, for her research on how judges come to a decision about the facts in a criminal case. The study, which will make up a large part of a soon-to-be-published book called Judging Facts, focuses on areas where a criminal trial has been known to fail or raised concerns. The book will emphasize judicial factual reasoning as opposed to the reasoning of juries.
Professor Cunliffe teaches criminal law, evidence, jurisprudence and a graduate seminar on research methodologies, and is the former recipient of the Killam Award for Teaching Excellence (2010) and the George Curtis Memorial Award for Teaching (2010). On sabbatical for the current academic year, Professor Cunliffe spoke about her research, her teaching, and her life as an academic.
Tell us about your forthcoming book, Judging Facts.
My previous work on child homicide cases [funded by the Social Sciences Humanities Research Council of Canada] is going to form a major part of this book. But the book has also expanded beyond that to include sexual assault cases, and other areas where there are real concerns about the criminal justice system’s capacity to find facts fairly and accurately.
I’m particularly interested in judicial factual reasoning rather than the reasoning of juries. A couple of things lead me to that interest. One is that in Canada the vast majority of criminal trials are tried by a judge sitting without a jury. That’s something a lot of people don’t know but it’s quite an important feature of our justice system.
From a research perspective this structural feature is really helpful because judges have a very strong duty to give detailed reasons about their factual conclusions. So a judge needs to say, where there’s a dispute on the evidence, what evidence they accept, and why. From a research perspective, this duty allows me to look at those debates that take place in the court record and see where the judge ended up on them. Whereas, if you’re working with a jury trial, you would often have to guess what evidence the jury accepted, because juries don’t need to give reasons.
Being able to study the development of arguments about the facts, the evidence that the two parties bring, and then which conclusions the judge reached, really allows me to have some sense of what sorts of arguments are working and what aren’t. Then, to think about some research from behavioral psychology and economics about vulnerabilities and human reasoning and think about where those vulnerabilities can be seen in judicial factual reasoning.
How did you become interested in this area of research?
I’ve been interested in trial transcripts and expert reports since my master’s degree. I wrote my masters thesis on the Australian Lindy Chamberlain case. Lindy Chamberlain is the mother who was accused of killing her child when she said it was taken by a dingo. Way back in 2003, I went to the Australian national library and I found that their archives included the transcripts of her original trial and, unusually, some diary notes kept by a juror in the case.
Working with these records put me onto the fact that the court record is an incredibly powerful research source because it’s very rich and detailed. Every word said by every authorized witness in a trial is transcribed. But looking around in the literature there didn’t seem to be a huge amount written about how to use those records well or rigorously.
History and anthropology have highly developed methodologies for working with sources. Law has something similar for legal judgments but it doesn’t have it for other, non-precedential sources. In lots of ways my doctoral dissertation and my early academic work was focused on thinking about how can we be rigorous in the ways in which we use these sources. That work has proceeded in parallel with my belief that those sources give us some clues about how things go wrong when justice miscarries.
It’s that bigger question that’s at the heart of acquiring the SSHRC [grant funding] and then of this book. We can’t of course ever see all of the judges factual reasoning, but we can get a sense of what conclusions they’ve reached, and what evidence they valued and what evidence they haven’t, from the judgments they arrived at.
Is there something in particular which drives you in the pursuit of this research?
If there is an intellectual driving question, it is: how do we improve factual reasoning, in a field in which really historically we have not focused on it, truth be told. Maybe it’s clichéd, but I am driven by a sense of believing in the fundamental promise of the rule of law and the attempt to strike a balance between societal interests and those of the accused in the criminal justice system. But also seeing the ways in which the criminal justice system is flawed in its daily, chronically underfunded, chronically over-worked incarnation. And feeling like maybe if I can assist judges and lawyers to find facts a bit more accurately from time to time in a very small corner of a big system then that’s something worth doing.
Next year, I’m teaching a seminar on factual reasoning. It can only be a small seminar but the intention is to have some of our students graduate with a bit of insight into some of these questions.
Legal education, in general terms, doesn’t focus on factual reasoning. We teach very little about how to work with facts, and lawyers get generally very little feedback about the quality of their reasoning. They know whether the judge agreed with their position on it but they don’t really get much independent feedback about whether they were right or wrong in terms of what actually happened.
The nature of a trial is such that the question of what happened is at the heart of things, and so if we can find some more objective ways to assess factual reasoning and to teach factual reasoning, then it seems likely that that can only improve the accuracy of the justice system. And so I try to implement that in my teaching here at UBC.
What do you enjoy most about teaching?
I think teaching law is a real privilege, from the first few classes where you’re introducing students to legal reasoning and to thinking like a lawyer, all the way through to the graduate course I teach in research methodologies where I’m introducing students who already have law degrees to the question of how do you do research rigorously.
Having the opportunity to be a part of that personal transition to a professional identity is really a privilege because you get to watch students struggle with ideas. I love to hear their take on what they’re reading and what I’m thinking about, and it gives me an opportunity to talk to them about my research.
I’ve often walked away from a class with much clearer sense of my own research and with great ideas, because our students are smart and articulate and if we create an environment in which they feel that they’re smart and articulate, then they live up to your best expectations. And so I just see every moment in the classroom as a privilege and a lot of fun.
How do you feel about your career and the ability to pursue this area of research?
Obviously it’s a real gift to be an academic and to have the time and the resources that allow you to pursue questions that have great importance to the criminal justice system, and which can’t be pursued in the same way within the constraints of legal practice.
I did practice for a number of years before I came back into academia and I really enjoyed practice, but I think I was often torn by the sense that a problem deserved more time and more thought and that was rarely available in the practice context. Certainly the thing I value most about my job is the time it gives me to think about questions because they’re important and because they are worth thinking about, in the hopes that that will make a positive difference for practitioners and those who care about the integrity of the criminal justice system.
Watching my research become useful to lawyers and to judges is one way in which I know I’ve had a positive impact, one that matters a great deal to me. And the intangible aspect of being able to offer rigorous research to a justice system that rarely has time to do that for itself. When your work gets cited by a judge, or picked up in the news or by a lawyer in a case, it’s great to know that you’ve been able to be helpful.