International Academic Journal of Law ISSN Print: 2709-9482 | ISSN Online: 2709-9490 Frequency: Bi-Monthly Language: English Origin: Kenya Website: https://www.iarconsortium.org/journal-info/iajl

Re s e arch Article The Four Forerunners for Law: Biasing, Alibiing and Backtracking Then a Narrative as Exemplified Solutions to Judiciary Processes and Others

Article History Abstract: No one is above the law. There are suspects and victims. Sometimes one is a suspect and a victim. Sometimes there is a fair share of loss. What do we deal Received: 09.04.2021 here? Is law impartial? Is it right to take law on our hands and on our side. There is Revision: 14.04.2021 no perfect crime. There is also no perfect court and people. Time and resources Accepted: 24.04.2021 could be limited. Three good factors are considered: bias, alibi an d backtrack. These Published: 30.04.2021 words are defined in a relative or relational way. Narrative is also given importance. Revision to this is highly welcomed. Author Details Keywords: Alibi, Backtrack, Bias, Criminal Law, Judiciary Law Ismael Tabuñar Fortunado Authors Affiliations INTRODUCTION University of Santo Tomas, Manila, “Every juristic act essentially depends upon an expression of the will. It Philippines is in the meeting of the minds, unless the law implies a fictitious promise, Corresponding Author* that the obligation of valid contract finds its force.” (Stadden 1907) Ismael Tabuñar Fortunado How to Cite the Article A cognitive bias is a systematic pattern of deviation from norm or Ismael Tabuñar Fortunado (2021 The Four Forerunners for Law: Biasing, Alibiing and rationality in judgment (Haselton et al 2005). Individuals create their own Backtracking Then a Narrative as "subjective reality" from their perception of the input. An individual's Exemplified Solutions to Judiciary construction of reality, not the objective input, may dictate their behavior in Processes & Others. Int Aca. J Law; 2(2) the world. Thus, cognitive biases may sometimes lead to perceptual (Mar-Apr, 2021): 10-13 distortion, inaccurate judgment, illogical interpretation, or what is broadly Copyright @ 2020: This is an open-access called irrationality. (Kahneman and Tversky 1972, Baron J 2007 and Ariely article distributed under the terms of the 2008) Creative Commons Attribution license which permits unrestricted use, distribution, and reproduction in any medium for non Bias n. the predisposition of a judge, arbitrator, prospective juror, or anyone commercial use (NonCommercial, or CC-BY- making a judicial decision, against or in favor of one of the parties or a class NC) provided the original author and source of persons. This can be shown by remarks, decisions contrary to fact, reason are credited. or law, or other unfair conduct. Bias can be toward an ethnic group, homosexuals, women or men, defendants or plaintiffs, large corporations, or local parties. Getting a "hometown" decision is a form of bias which is the bane of the out-of-town lawyer. There is also the subtle bias of some male judges in favor of pretty women. Obvious bias is a ground for reversal on appeal, but it is hard to prove, since judges are usually careful to display apparent fairness in their comments. The possibility of juror bias is explored in questioning at the beginning of trial in a questioning process called voir dire. (Anonymous 2021a)

Definition of Terms Backtracking is a general algorithm for finding all (or some) solutions to some computational problems, notably constraint satisfaction problems, that incrementally builds candidates to the solutions, and abandons a candidate ("backtracks") as soon as it determines that the candidate cannot possibly be completed to a valid solution. (Gurari 1999)

Albi 1. The plea of having been at the time of the commission of an act elsewhere than at the place of commission also : the fact or state of having been elsewhere at the time 2. An excuse usually intended to avert blame or punishment (as for failure or negligence) 3. Someone or something that provides a person with an alibi (Anonymous 2021b)

Available Online: https://iarconsortium.org/journal-info/iajl 10 Ismael Tabuñar Fortunado; Vol-2: Iss- 2 Mar-Apr, (2021): 10-13

Bias is a disproportionate weight in favor 2. There may be some coercion as evidenced of or against an idea or thing, usually in a way that psychological or physical in some ways. is closed-minded, prejudicial, or unfair. Biases can be A miscarriage of justice, also known as a wrongful conviction, occurs when a person is convicted and innate or learned. People may develop biases for or punished for a crime that they did not commit. (Garner against an individual, a group, or a belief. (Steinbock 2009) False confessions by psychologically vulnerable 1978) In science and engineering, a bias is a systematic defendants are one of the main causes of wrongful error. Statistical bias results from an unfair sampling of convictions, sometimes exacerbated by coercive police a population, or from an estimation process that does interrogations. Police misconduct also contributes to not give accurate results on average. (Welsh and Begg miscarriages of justice. The Innocence Project keeps 2016) statistics on cases where convicted defendants have subsequently been exonerated, usually by advances in

the science of DNA. However, the prevalence of such Narrative miscarriages is hard to measure because many wrongful A story or a description of a series of events convictions are never overturned. (Anonymous 2021c) A spoken or written account of connected events; a The term also applies to cases where a guilty person story. (Anonymous 2021d) goes free, sometimes known as "errors of impunity". Most criminal justice systems have some means to Analysis overturn or quash a wrongful conviction, but this is Backtracking often difficult to achieve. In some instances a wrongful Construction of solution may be time and resource conviction is not overturned for several decades, or consuming. Some may fall short. What is expected is until after the innocent person has been executed, support. Ample documentation, utmost leniency yet released from custody, or has died. diligent approaches should be used. Past, Present and future analysis must be observed. (Fortunado 2020) 3. There is framing-up and also counter framing- up strategies and setup. Each step should be A person’s mind could be made up already. He examined. could might as well ask for forgiveness for his misdeed In the United States criminal law, a frame-up or it may be just an accident. It is another sin if he does (frameup) or setup is the act of framing someone, that not admit he is guilty. We must take responsibility of is, providing false evidence or false testimony in order our actions. to falsely prove someone guilty of a crime. While incriminating those who are innocent 1. We must carefully recognize that an event might be done out of sheer malice, framing is primarily happened and the crisis happened. used as a distraction. Generally, the person who is 2. There is a motive or intent in an action. framing someone else is the actual perpetrator of the 3. There is misjudgment or accident in an action. crime. In other cases it is an attempt by law 4. There is negligence in an action. enforcement to get around due process. Motives include 5. There is non acceptance of an action. getting rid of political dissidents or "correcting" what they see as the court's mistake. Some lawbreakers will Note: These five are the elements to be considered in a try to claim they were framed as a defense strategy. backtrack. A backtrack could answer one or any of (Wikipedia 2021) these. Addition to and further evaluation of these is greatly welcomed. 4. Sometimes there are motives which may lead to the harm of innocent people. Alibiing Note: These four are the elements to be considered in We must also check carefully the alibi. Perhaps it is an alibi. An alibi could answer one or any of these. not true, true or it may hide true intentions and details. Addition to and further evaluation of these is greatly welcomed. 1. Error in Decision must be reexamined. What are "grounds" for an appeal? Biasing A “ground” is a legal term that means the reason Epicurean Paradox may question God and yet prove for the appeal. You cannot appeal a court decision the existence of evil. One of the Responses is the test of simply because you are unhappy with the outcome; you character. (Fortunado & Eballo 2018) People do the must have a legal ground to file the appeal. If the judge same, test the character. in your case made a mistake or abused his/her discretion, then you might have grounds to file an Note: Some may disagree doing these things. appeal.

Available Online: https://iarconsortium.org/journal-info/iajl 11 Ismael Tabuñar Fortunado; Vol-2: Iss- 2 Mar-Apr, (2021): 10-13

We are there to challenge the person, the activity Note: These three are the elements to be considered in a and the remorse or not. Test could be employed such as bias. A bias could answer one or any of these. Addition questioning and the dark triad test as an example. to and further evaluation of these is greatly welcomed.

Being biased should be avoided. There is pun here. Narrative What is permitted is to question and act to what could Then the LORD sent Nathan to David. And he came have been. What is permitted is to show consideration to him, and said to him: “There were two men in one to the parties involved. city, one rich and the other poor. “The rich man had exceedingly many flocks and herds. But the Where no other witnesses are there poor man had nothing, except one little ewe lamb which The Judgement of Solomon is a story from he had bought and nourished; and it grew up together the Hebrew Bible in which King Solomon of with him and with his children. It ate of his own food Israel ruled between two women both claiming to be the and drank from his own cup and lay in his bosom; and it mother of a child. Solomon revealed their true feelings was like a daughter to him. And a traveler came to the and relationship to the child by suggesting the baby be rich man, who refused to take from his own flock and cut in two, each woman to receive half. With this from his own herd to prepare one for the wayfaring man strategy, he was able to discern the non-mother as the who had come to him; but he took the poor man’s lamb woman who entirely approved of this proposal, while and prepared it for the man who had come to him” (2 the actual mother begged that the sword might be SAMUEL 12:1-4). sheathed and the child committed to the care of her rival. Some consider this approach to justice It is best to give all we got in writing the narrative. an archetypal example of an impartial judge displaying We may use stories, experiences, fault if it must, wisdom in making a ruling. (1 Kings 3:16-28) wisdom…

There are interrogation strategies to verify or ISCUSSION counter verify statements. D The "Good cop/bad cop" routine, also called Mutt 1. We must find all possible and viable solutions to and Jeff, joint questioning or friend and foe, every problem that we are facing. (Anonymous 2021f) is a psychological tactic used 2. In every rule there is an exemption. Exemptions are in negotiation and interrogation. "Good cop/bad cop" granted to those who truly deserve. tactics involve a team of two interrogators who take 3. These three: backtrack, alibi and bias are arranged apparently opposing approaches to the subject. The in importance. If backtrack is satisfied, one could interrogators may interview the subject alternately or proceed to alibi. Then if alibi is satisfied, one could may confront the subject at the same time. proceed to bias. 4. Addition to these three or further evaluation is Tests could be employed to know the capacity of greatly welcomed. person in doing such things. 5. A narrative or summary to discuss what may be a There is dark triad test as an example. close to a reasonable doubt is essential. The dark triad personality traits are three closely 6. This paper is not limited to criminal law but also in related yet independent personality traits that all have a law in general. somewhat malevolent connotation. The three traits are 7. Proper backtrack, alibi, bias and narrative should machiavellianism (a manipulative attitude), narcissism be observed. (excessive self-love), and psychopathy (lack of empathy). The dark triad has traditionally been assessed CONCLUSION with three tests different tests, each of which had been It is best to find solutions to problems. Each must be developed individually. Most commonly, the given justice. We must double check solutions and do Narcissistic Personality Inventory (NPI) was used as the not find rest when justice is not given. Biasing is measure of narcissism, the MACH-IV for relying on ourselves to give what is due but this is not machiavellianism and the Self-Report Psychopathy enough. Backtracking is tracing the tracts one has made. Scale (SRP) for psychopathy. Format differences Alibiing is not a privilege or right, you don’t have to between these (multiple choice versus scale rating) defend yourself if you are not guilty and likewise no complicated administration and analysis. The Short reason is enough if you are guilty. These three Dark Triad was developed in 2011 by Delroy Paulhus forerunners have consequences for the good and and Daniel Jones to provide a more uniform assessment welfare of the people. We must work on it vigilantly. and also to trim down the total length. (Paulhus and And finally, there is heroes’ dilemma and believer’s Jones 2011) dilemma (Fortunado 2016) which could affect an action for the victim, suspect and judge involved. One could put law in his or her hand. Proper narrative should

Available Online: https://iarconsortium.org/journal-info/iajl 12 Ismael Tabuñar Fortunado; Vol-2: Iss- 2 Mar-Apr, (2021): 10-13 summarize the course of a case. Care to nature and Research Journal of Humanities and Social lifeforms should considered also. Sciences. 2(6) (Nov-Dec, 2020): 526-529 12. Fortunado, I.T., & Eballo A.D. (2018). “God as EFERENCES Necessary Being and Source of Goodness: Six R Other Responses to the Epicurean Paradox in the 1. Anonymous (2021b). Alibi. https://www.merriam- Biblical and Quranic Contexts” Pharos Journal of webster.com/dictionary/alibi Theology 99 - (2018) 2. Anonymous (2021f). See the 13. Garner, B. A. (June 25, 2009). miscarriage of declassified CIA Human Resource Exploitation justice (9th ed.). Black's Law Dictionary. p. 1088. Training Manual (1983), pp. 26-27. 14. Gurari, E. (1999). "CIS 680: DATA 3. Anonymous (2021a). Bias. STRUCTURES: Chapter 19: Backtracking https://dictionary.law.com/Default.aspx?selected=6 Algorithms" 1#:~:text=bias,law%2C%20or%20other%20unfair 15. Haselton, M.G., Nettle, D., & Andrews, P.W. %20conduct. Retreived April 20, 2021. (2005). "The evolution of cognitive bias.". In Buss 4. Anonymous. (2021c). Narrative. DM (ed.). The Handbook of Evolutionary https://dictionary.cambridge.org/us/dictionary/engli Psychology (PDF). Hoboken, NJ, US: John Wiley sh/narrative & Sons Inc. pp. 724–746. 5. Anonymous. (2021d). Narrative. Oxford. 16. Kahneman, D., & Tversky, A. (1972). "Subjective 6. Anonymous. (2021e). Appeal. probability: A judgment of https://www.womenslaw.org/laws/preparing-court- representativeness" (PDF). Cognitive yourself/after-decision-issued/file-appeal/grounds- Psychology. 3 (3), 430–454. appeal. Retrieved April 20, 2021. 17. Matthew, W., & Steve, B. (2016). "What have we 7. Ariely, D. (2008). Predictably Irrational: The learned? Insights from a decade of bias Hidden Forces That Shape Our Decisions. New research". The APPEA Journal. 56 (1), 435. York, NY: 18. Paulhus, D. L., & Jones, D. N. (2011, January). 8. Baron, J. (2007). Thinking and Deciding (4th ed.). Introducing a short measure of the Dark Triad. New York, NY: Cambridge University Press. Poster presented at the meeting of the Society for 9. Bonnie, S. (1978). "Speciesism and the Idea of Personality and Social Psychology, San Antonio. Equality". Philosophy. 53 (204): 247–256. https://openpsychometrics.org/tests/SD3/ 10. Fortunado, I. T. (2016). Heroes’ Dilemma and 19. Stadden, C.M. (1907). Error on Law. Columbia Believers’ Dilemma. Open Journal of Philosophy, Law Review. 7 (7) (Nov., 1907), pp. 476-519. 6, 251-255. 20. Wikipedia. (2021). Frame up. 11. Fortunado, I.T. (2020). Risk and Certainty, Love https://en.wikipedia.org/wiki/Frameup. Retrieved and Fault and Intention and Motive as Bases for April 21, 2021. Decision Making and Judgment. South Asian

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