Saturday, April 4, 2009



In Alexander O’Neal’s R & B hit Fake (1987), we hear about a woman who constantly changes her appearance and tells lies. In sum, Mr. O’Neal “decides” that the woman is “fake” because she changes her name and story too often for his liking; plus she cuts her hair and nails in a different style every day. I always liked this song because it was “convincing.” The singer sets forth “facts” that lead the listener to conclude that the woman is lying. After studying evidence in law school, I appreciated the song even more because it demonstrates the correct way to understand the word “inference.” Many people confuse the noun “inference” and the verb “to infer” with the noun “implication” or the verb “to imply.” The two concepts are very different. “Fake” can help us sort out the differences.

In Fake, Alexander O’Neal sings: “Your hair was long/ But now it’s short/ You said: ‘I Got it cut’/ But I don’t see no hair on the floor.” You don’t need to be a lawyer to grasp Mr. O’Neal’s attack on his subject’s credibility. He tells us that he saw the woman with long hair. Later, he saw her with short hair. She claims that she got a haircut. But Mr. O’Neal sees “no hair on the floor;” in other words, he sees no evidence to substantiate the woman’s story. Mr. O’Neal uses his senses and observations to undermine the woman’s claim. He tells us what he saw, what he heard and he gives an evidentiary reason to doubt the story. It is convincing. And it perfectly illustrates how lawyers use “facts” and “sense” to construct truth in court. In essence, Mr. O’Neal asks us to infer that the woman did not get a haircut from the fact that he saw no “hair on the floor.” If you see a person’s hair on the floor, that means something or someone cut the hair off. One fact proceeds from the other. That is an inference.

To understand inferences, we must understand some underlying terms. First, we need to agree what constitutes a “fact.” We all think we know what “facts” are. Yet if you’ve spent any time studying law—or even watching court shows on television—you recognize that we constantly argue about facts. We never agree on what they are. From a basic perspective, many people believe that a “fact” merely refers to what “actually happened.” Throughout law school, many professors gave exactly that definition. But this definition did not placate me. “What actually happened?” What does that mean? To apply that definition, we must assume that a human being senses something through sight, hearing, touch or taste. He perceived something. Then he tells about what “happened.” It requires an individual perspective. When the individual recounts what “actually happened,” he does not provide his listeners with the same knowledge he has. Rather, he presents his memory, which is necessarily weaker than actual experience. After all, we are sensory creatures. Our emotions and our experiences flow from our firsthand perceptions. If we are “not there” to experience an event with our senses, hearing someone’s memory about it does not provide the same knowledge. It is “second-hand” and far “weaker” than true experience. In my view, it is insufficient to define a “fact” as “something that actually happened.” Facts encompass much, much more. After all, no one doubts that the Revolutionary War “actually happened.” But can anyone present his or her personal memory about it? No. Yet everyone believes that the Revolutionary War happened. Why do we believe things that no living person perceives or even remembers?

I have long struggled to define “facts.” No law professor ever provided a satisfactory answer to this question, so I undertook to answer it myself. Now, facts intertwine with human sense. They also intertwine with human belief. If we perceive things with our senses, we believe them. When I say “belief,” I mean that an individual forms a subjective impression that something is true. A person may believe in something that does not exist; subjectively, he holds an impression that it is true, even if he cannot perceive it. For example, a person believes in God. That means he has the subjective impression that God exists. He believes, even though he cannot see God. We can agree that it is a “fact” that this man believes in God. But we cannot agree that it is a “fact” that God exists.

Why the distinction? To grasp this point, let us attempt to define facts. In my view, a “fact” is any act, event or condition that is objectively verifiable and perceptible to the human senses. Under this definition, we can confidently say that “facts” include more than what “actually happened.” After all, can we say that a person’s “belief in God” “actually happened?” Not really. “Belief” is a “condition,” namely an individual’s subjective impression that something is true. Whether someone holds a belief is verifiable and we can perceive it when the person tells us what he believes. But we cannot perceive God with our senses. He is not “objectively verifiable.” His existence may be a “condition,” but it is not perceptible to us. We cannot ask God whether he exists, and we cannot hear him when he answers. To that extent, we cannot accept as a “fact” that God exists.

Yet there are many other things that we can accept as “facts.” As long as someone could reasonably have perceived an act, event or condition, we can believe it to be a fact. In this sense, belief and fact intersect. For example, if we hear from an accident victim that he was “thrown 20 feet from his car” after feeling a “violent impact from behind,” we can reasonably believe that another car rear-ended him at relatively high speed, even if the victim did not see the car. We even believe that the negligent driver must have been traveling very fast, even though we were not sitting next to the negligent driver to personally see the speedometer before the crash. We believe these “facts” even though we did not perceive them because we make inferences from other facts. An “inference” is a fact we did not perceive that naturally follows from a fact we did perceive. There is nothing intuitive or magical about inferences. They are simply facts we can believe after perceiving other facts. After all, we cannot perceive everything in the world. Our sight and hearing have a very limited range. Yet by perceiving some things, we can infer that other things “must have happened.” For example, if we see blood on the sidewalk, it is a “fact” that there is blood on the sidewalk. We can infer that blood fell onto the sidewalk from some external source. We did not perceive the blood falling. But it is still a “fact” that blood wound up the sidewalk. This is an inference. It is a fact that necessarily flows from a fact we directly perceive. If we see our friend with a black eye, we can infer that something—or someone—struck our friend in the face with some force. We cannot infer anything more from that single fact. To get the full story, we need to investigate further.

Implications present a different question. Unlike inferences, implications do not lead us infallibly to facts. Rather, implications involve our intuition, not our logic. An implication refers to the likely circumstances explaining a particular fact or facts. If we see our friend with a black eye, we can infer only that something or someone struck him in the face with some force. Yet we can draw on our common experience to speculate that our friend probably got into a fight. Most black eyes happen when someone punches another person in the face. The implication here is that our friend got in a fight. Yet that is not an inference. The fact that our friend got a black eye does not necessarily lead to the conclusion that he got in a fight. A branch could have fallen from a tree and hit him in the face. He may have stumbled into an iron bar protruding from a building. We simply do not know the cause. Black eyes invite us to speculate about the facts surrounding the trauma. They offer us numerous implications. Yet we can only make one fair inference: That something or someone struck our friend in the face with sufficient force to cause bruising. That is the only fact that we can deduce from the fact we perceive.

What does it mean to “imply” something? There is a subtle difference between the noun “implication” and the verb “to imply.” Generally, “imply” refers to authority and degree in power and belief. Smaller powers are “implied” in large powers. Smaller beliefs are “implied” in large beliefs. When we speak about “implication” in this context, we normally face some interpretative venture. For example, questions about “implied power” commonly arise in agency problems. If we delegate authority to an agent to “buy us a home in San Diego,” and he winds up spending money on a real estate broker for Southern California, did he have authority to do this? Of course—it was a smaller power implied in his “larger” power to buy a home in San Diego. To achieve the large goal, it is implied that the agent may take suitable, “smaller” actions intended to reach it. It is a question of degree and congruence. When a person has a sweeping mandate—or maintains a sweeping belief—he implies that he can do numerous, unnamed “smaller” things to fulfill his objectives. Similarly, if a person believes in capital punishment, he implies that he believes in imprisonment, too. For to believe in something more severe implies that a person also believes in something less severe in less severe cases.

Many people confuse “imply” and “infer.” For the most part, they substitute “imply” for “infer.” We hear “imply” more often than “infer,” so more people use it. For example, a person might say: “I implied from the dirt on your jacket that you were working.” In fact, the person meant to say: “I inferred from the dirt on your jacket that you were working.” That may not be a fair inference, but the speaker nonetheless attempts to conclude a fact he did not perceive (that the person was working) from a fact he perceives (the dirt on the person’s jacket). “Imply” has nothing to do with it. The “implication” behind dirt on a jacket may be that the person was at work. Work may be “implied” in a dirty jacket. Yet we do not “imply” when we attempt to conclude one fact from another. That is an inference.

So how does this all fit in with Fake? Alexander O’Neal understood how powerful inferences can be when evaluating truth. When he sings that he “doesn’t see any hair on the floor,” he asks us to make several inferences. It is a “fact” that Mr. O’Neal did not see hair on the floor. That is an “act, event or condition” that he perceived with his own eyes. First, he asks to infer that the woman’s claim that she “got her hair cut” is a lie. After all, if there is no evidence to suggest a haircut, then we cannot rightly believe that the woman got her hair cut. If she had gotten her hair cut, we would have perceived a “fact” that leads us to that conclusion, namely, “hair on the floor.” Common experience tells us that when we get our hair cut, our hair falls on the floor and we can see it. Even if we walk into a barbershop after a person gets their hair cut and we see their hair on the floor, we can infer that the person (who now has short hair) just got his hair cut. That is a fair inference. Here, however, Mr. O’Neal tells us that he saw no evidence to substantiate the woman’s claim. We can “infer” that her claim is untrue—her untruthfulness is an “act, event or condition” that naturally flows from the “fact” that there is no hair on the floor.

Lastly, Mr. O’Neal asks us to infer that the woman did not get her hair cut. This has nothing to do with her trustworthiness. It is a straightforward inference. If we spend time around a person and never see their hair fall to the floor, we can correctly infer that they did not get their hair cut, even if we were not there to perceive it. That fact “naturally flows” from the fact we perceive.

I mention all this because “facts,” “inferences” and “implications” are words that we typically use without conceptual clarity. Even lawyers do not properly use these words. It is worth making the effort, however, to tease out the subtle distinctions between these words because they help us construct “truth.” In this context, truth refers to “human perception.” We believe what we perceive, and if we are not “there” to perceive something, we believe what makes logical sense to our eyes and ears. Inferences make perfect logical sense. They allow us to believe “facts” without ever “being there” to perceive them. That is an extremely useful tool. When we precisely understand inferences, we can more fairly judge what we see and hear. It is difficult to sort out the truth in this world. When we approach it with some logical consistency, it makes our job significantly more bearable. In this narrow approach to truth, our senses provide all the answers.

No comments: