“Technical” and “Non-Technical” Evidence

« TECHNICAL » and « NON-TECHNICAL » Evidence

1. The opposition “technical” / “non-technical”

Aristotle distinguishes between two instruments of persuasion, or rhetorical proof (pistis):

Of the modes of persuasion some belong strictly to the art of rhetoric and some do not. By the latter I mean such things as are not supplied by the speaker but are there at the outset – witnesses, evidence given under torture, written contracts, and so on. By the former I mean such as we can ourselves construct by means of the principle of rhetoric. (Rhet., I, 2; RR, p. 105)

Rhetoric is a technique, a “techne”, i.e. « a process that strives for perfection, and that occurs through the conscious action of a human being » (Lausberg [1960] §1). Therefore, rhetorical proofs are called technical proofs (or artificial proofs), as opposed to non-rhetorical, or non-technical proofs (Lausberg [1960], § 351-426).

The distinction is made in relation to the legal situation.
– “Technical” evidence are discursive, oratorical evidence (means of pressure on the audience)
– “Non-technical” evidence is evidence in the contemporary sense of the word. It corresponds to the facts presented to the court, the “given” material facts that the orator cannot manipulate, such as the public testimony of witnesses or the contracts signed between the two parties. The language of the contracts and the discourse of the witnesses is considered to be free of rhetoric, at least in its basic formulation, while the language of the orator is rhetorical, i.e., endowed with an autonomous power of persuasion, if necessary challenging material evidence, see pathos.

The technical/non-technical distinction can be applied to the three components of rhetorical action:

— Technical logos is defined by the use of topoi, signs, etc.; non-technical logos is defined by the parallel intervention of witnesses, contracts, etc.

— Technical ethos is a speech product, the self-made image of the orator embedded in the discourse (Amossy 1999); non-technical ethos is the other-made image of the orator, something like his or her reputation, which can run counter to the first.

— Technical pathos is the strategic communication of emotion,while non-technical pathos corresponds to the spontaneous communication of emotion, see emotion.

2. A now misleading terminology?

First and foremost, this terminology is now obscure and counterintuitive, incompatible with the contemporary use of the word “technical”.
“Non-technical” proofs are just proofs in the ordinary contemporary sense of the word.
All the elements called “non-technical” are the raw material submitted to the court. They may be practically sufficient to settle the issue definitively, but “[they] very often require to be supported or overthrown with the utmost force of eloquence” (Quintilian I. O., V, 2, 2). In other words, the orator must interpret the testimonies, the contents of the contract, the confessions, in order to transform this raw material into data, that is, to lead it to a conclusion in favor of the party he represents. Thus “non-technical evidence” is not free of language and rhetoric.
The distinction is closely related to legal situations, but argumentation too in general develops in everyday semi-technical discourse and presents mixed kinds of evidence.

For these reasons, and to highlight the terminological difficulties the terms “technical” and “non-technical”, when used in their traditional rhetorical sense, are placed in quotation marks throughout this book.

The opposition has a distinctly structuralist character, redefining emotion, character, and situation as nonreferential discursive objects. This position has proved fruitful but it has its limits. At issue is the definition of the object of argumentation studies: should it be purely discursive data, and we will only consider purely linguistic phenomena, or should it be contextualized interactional discourse, taking into account the situation and the ongoing collaborative actions?

3. “Non-technical” evidence

3.1 What are “non-technical” evidences

The “non-technical” evidences are the material, the factual elements that are brought before the court. They define the issue that structures the debate, and may include elements such as, “witnesses, examinations, and like matters are things that decide on the subject that is before the judges” (Quintilian, IO, V, 11, 44). They may receive a secondary rhetorical treatment, but their existence is beyond the reach of the rhetorician.

The list of « non-technical » proofs varies somewhat. Aristotle counts as non-technical, “witnesses, evidence given under torture, written contracts, and so on.” (Rhet, op. cit. supra). Quintilian counts as non-technical “presentiments, public reports, evidence obtained by torture, writings, oaths, and the testimony of witnesses, with which the greater part of forensic pleadings are wholly concerned. (IO, V, 1, 2). Traditional lists include the following elements.

  • An important means of argument, the appeal to authority, was sometimes considered technical, sometimes to be non-technical. Different kinds of authority must be distinguished, and first, the authority of a judicial decision made by a judge recognized for his competence, and passed into judicial custom; in other words, a precedent turned into a law. This is clearly a “given” of the legal situation, that is to say, a “non-technical” element.
    A sentence from a socially recognized personality can also be an authoritative one.
  • “Presentiments », that is prejudices, rumors, public opinion are a form of authority, perhaps linked to the possibility of appealing to the populus in Roman law
  • Whether there is a contract or written document is a fact that can be determinative.
  • Material elements, such as the murder weapon, or the victim’s bloody tunic, etc., all constitute the hardware of justice
  • Oath guarantees the citizen’s testimony.
  • Torture guarantees the slave’s testimony. Ancient democracies and republics put up with slavery and torture. The Rhetoric to Herennius presents the basic arguments for the use of such testimony. The first argument is that they be considered in court, the second that they should be discounted:

We shall speak in favor of the testimony given under torture when we show that it was in order to discover the truth that our ancestors wished investigations to make use of torture and the rack and that men are compelled by violent pain to tell all they know […] Against the testimony given under torture, we shall speak as follows: In the first place our ancestors wished inquisitions to be introduced only in connection with unambiguous matters, when the true statement in the inquisition could be recognized and the false reply refuted; for example, if they sought to learn in which place an object was put, or if there was in question something like that which could be seen, or be verified by means of footprints, or be perceived by some like sign. We then shall say that pain should not be relied upon, because one person is less exhausted by pain, or more resourceful in fabrication than another, and also because it is often possible to know or divine what the presiding justice wishes to hear, and the witness knows that when he has said this his pain will be at an end. (Ad Her., II, VII, 10)

The list of “non-technical” evidence could be expanded to include such items as the following:

  • For some cultures or persuasions, miracles can create a form of non-technical persuasion.
  • In the early Middle Ages, the trial by ordeal, or God’s judgment, was also believed to establish the truth in a non-technical way: if the accused is able to pass through the fire more or less alive, he or she is acquitted; if he or she dies, the punishment proves the guilt.
  • In contemporary times, it would be necessary to add the forensic evidence, for example the DNA tests. Such evidence would be typically called technical, in contrast with rhetorical or language-based argument.

3.2 Superiority of non-technical evidence

In current cases,

If one of the parties had “non-technical” evidence, the case was clear for the judges, and needed only a few words. (Vidal 2000, p. 56).

Clearly, factual evidence is clearly essential in justice, language naturally plays an important role in the presentation and orientation of facts. Evidence produced by rhetorical arguments is used for lack of anything better, when there is no factual evidence available. “Technical” evidence comes to the fore in rather special cases, when some legal document, some physical evidence, testimony, etc. is missing. Such an exceptional situation is staged in the comic anecdote in which Tisias confronts Corax. Corax has agreed to teach Tisias his rhetorical skills and to be paid according to the results achieved by his pupil. If Tisias wins his first trial, he will pay his master; if he loses, he will have nothing to pay.
After completing his studies, Tisias sues his master, claiming that he, Tisias, owes him, Corax, nothing. In fact, this is Tisias’ first trial, and he will either win or lose. First hypothesis, he wins; according to the judge’s verdict, he owes his master Corax nothing. Second hypothesis, he loses; according to their private agreement, he owes Corax nothing. How can Corax meet this challenge? He repeats Tisias’ argument verbatim, but in reverse. First hypothesis, Tisias wins the case; by private agreement, Tisias must pay. Second hypothesis: Tisias loses the case; by law, Tisias must pay for the education he received. In either case, Tisias must pay. It is said that the judges threw out the litigants.

Rhetorical evidence that operates in a language that has no contact with the world is evidence by default. This is a borderline case, not a prototypical case of argumentative rhetorical use of language, which generally operates with elements of reality and conventions that constrain its unbridled use.