The Basics of Evidence Ethics by Adam Torson

As with any academic endeavor, it is inappropriate to misrepresent evidence in debate. The virtue of intellectual honesty is central to any forensic endeavor, and debate writing is an important model for academic writing in other settings (where breaches of evidence ethics can result in severe repercussions). Mistakes are inevitable, but students, coaches, and judges should all be careful about being too lax when it comes to evidence ethics.
There are definitely some grey areas for what kind of evidence use is acceptable, particularly given that in debate it is standard practice to line down cards significantly and read them very quickly. That said, there are some basic rules that will take you most of the way in preventing inappropriate evidence use. An ounce of prevention is worth a pound of cure.

The most common way that evidence is misrepresented (intentionally and unintentionally) is to quote the author out of context. If an author writes “President Obama is number one,” it would be important to know whether he is listing what he considers the best presidents or the worst presidents. Most of the tips listed below are designed to prevent this kind of distortion. It should be noted, though, that it is also possible to fabricate evidence completely. I should hope it goes without saying, but this is NEVER permissible.

1. Always cut the full paragraph or paragraphs that contain the selection you intend to read.

Debaters often do not read every word an author writes in a given section of text. This is generally accepted so long as they do not misrepresent the authors meaning. One way to make sure this doesn’t happen is by including the full text of the paragraph that includes what you want to read aloud. In other words, copy and paste the full paragraph – don’t start or end in the middle of one. This makes it possible for others to evaluate the context of the quoted argument more accurately (though not perfectly). (See Example 1)

2. No ellipses.

In many kinds of writing it is acceptable to use an ellipses – “…” – to shorten quoted text. It is generally agreed that this is not acceptable in debate. Again, it prevents judges and opponents from evaluating the context of the quoted argument. Ellipses can hide important qualifiers like “sometimes,” or “rarely,” or can even change the authors meaning altogether. “There are many reports indicating that drone strikes kill civilians, but they have severe methodology problems,” becomes, “There are many reports indicating that drone strikes kill civilians…” (See Example 1)

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EXAMPLE 1

Appropriate:

TARGETED KILLING CONSISTS OF KILLING NAMED INDIVIDUALS WHO POSE A THREAT, USUALLY DURING AN UNCONVENTIONAL CONFLICT

 

Michael L. Gross [Prof. of Political Science, University of Haifa] “Assassination and Targeted Killing: Law Enforcement, Execution or Self-Defence?” Journal of Applied Philosophy 23.3 (2006): 323-335. Academic Search Premier. EBSCO. Web. 24 June 2011.

What, exactly, is a targeted killing or assassination? By most accounts, targeted killings consist of, first, compiling lists of certain individuals who comprise specific threats and second, killing them when the opportunity presents itself during armed conflict. I will therefore refer to assassination and targeted killings as ‘named killing’. The targets are usually terrorists, that is, those who operate at the behest of known terrorist organizations. Few suggest targeting or naming ordinary combatants. Nevertheless, named killings do not occur in any context other than war. Most often, these are non-conventional wars that do not necessarily signify an armed conflict between two or more nation states but, instead, comprise hostilities between state and sub-state actors. Are named killings justified?

Inappropriate:

TARGETED KILLING CONSISTS OF KILLING NAMED INDIVIDUALS WHO POSE A THREAT, USUALLY DURING AN UNCONVENTIONAL CONFLICT

Michael L. Gross [Prof. of Political Science, University of Haifa] “Assassination and Targeted Killing: Law Enforcement, Execution or Self-Defence?.” Journal of Applied Philosophy 23.3 (2006): 323-335. Academic Search Premier. EBSCO. Web. 24 June 2011.

… targeted killings consist of, first, compiling lists of certain individuals who comprise specific threats and second, killing them when the opportunity presents itself during armed conflict. … The targets are … terrorists, that is, those who operate at the behest of known terrorist organizations. … named killings do not occur in any context other than war. … these … wars … necessarily signify an armed conflict between two or more nation states …

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3. No Straw Men.

Most of us are familiar with the concept of a “straw man” argument as a type of logical fallacy in which one attacks the weakest interpretation of an argument (rather than the strongest or most reasonable interpretation). In the context of evidence ethics, we refer to a “straw man” argument when an author describes an opposing position which she then goes on to refute or problematize. If you quote the “straw man” section of an article you represent the author’s view as exactly the opposite of what it actually is. So, as a rule, don’t card straw men. (See Example 2)

There are some close calls when it comes to straw man arguments, such as when an author describes two opposing positions as compelling and comes to an ambiguous conclusion. Should you decide to cite one of the opposing sides described in the paper, it might be prudent to note that the author is describing a generic position rather than representing her own; e.g. “Johnson describes rule utilitarianism.” But, this is definitely a case where you have to use your judgment to avoid misrepresenting an author.

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EXAMPLE 2

Inappropriate:

INTERNATIONAL LAW PROHIBITS PREEMPTIVE TARGETING OF TERRORISTS

David Kretzmer [Prof. of Law, Hebrew University], “Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?” European Journal of International Law 16.2 (2005): 171-212. Web. 24 Jun 2011.

The exceptions to the prohibition on intentionally depriving a person of his life must be interpreted in light of the fundamental assumption that international human rights law adopts a law-enforcement model based on principles of due process. All law-enforcement measures must be compatible with these principles, foremost amongst which are the following: 1. every individual benefits from the presumption of innocence; 2. persons suspected of perpetrating or planning serious criminal acts should be arrested, detained and interrogated with due process of law; and 3. if there is credible evidence that such persons were indeed involved in planning, promoting, aiding and abetting or carrying out terrorist acts they should be afforded a fair trial before a competent and independent court and, if convicted, sentenced by the court to a punishment provided by law. Under this model a state may not prevent criminal acts by eliminating the potential perpetrators. Prevention is to be achieved by apprehending those planning and preparing the violence and subjecting them to the criminal process. Deterrence is to be achieved by the threat of legal sanctions and enforcement of the criminal law against those convicted of breaking the law. 34

Under the law-enforcement model use of force can never be regarded as necessary (let alone absolutely necessary) unless it is clear that there was no feasible possibility of protecting the prospective victim by apprehending the suspected perpetrator. The paradigmatic case in which use of force would be justifiable is where serious violence against the person to be protected is so imminent that trying to arrest the perpetrator would allow him time to carry out his threat. It has been strongly argued that in no other case could we say that use of lethal force is absolutely necessary. 35  Borrowing US Secretary of State Daniel Webster’s classic definition of a state’s right to use force in self-defence in the exchange of notes following the Caroline incident, only where there is a concrete imminent threat can it be said that there is ‘a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation’. 36

The problem with the law-enforcement model in the context of transnational terror is that one of its fundamental premises is invalid: that the suspected perpetrator is within the jurisdiction of the law-enforcement authorities in the victim state, so that an arrest can be effected. What is the situation when, according to our premise, the terrorist is in the territory of another state? The victim state may not arrest or apprehend that person without the active assistance and support of that other state. But what if that state is either unwilling to arrest the suspected terrorist or incapable of doing so? Leaving aside issues of state sovereignty, and relying solely on the duty of the victim state under international human rights law to respect the right to life, could it not argue that it has no choice but to resort to force against the suspected terrorist? That force is absolutely necessary to protect its civilians against unlawful violence? Obviously it could not do so in every situation. Thus, it could not do so if its aim were to punish the suspected terrorist for past acts, or to deter potential terrorists from acting. But what if the state has strong evidence that the suspected terrorist is continuing to plan terrorist attacks against people in its territory? That if it does not either apprehend or target him, there is a very strong probability that he will carry out or organize further attacks? Would this also not be the kind of situation described by Secretary of State Webster in his classic formulation of a state’s right to self defence? Could this not be regarded as a situation in which it was absolutely necessary to use lethal force? To put it another way: if the requirement of imminent danger rests on the availability of non-lethal, due process law-enforcement measures when the danger is not imminent, does the imminency requirement lose part of its force when such measures are unavailable?

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4. Do not misinterpret specialized terminology.

Often authors use terminology in specialized ways. Taking these terms out of context can misrepresent their meanings. This is especially tricky in philosophical literature, where terms with colloquial meanings like “freedom” and “happiness” and “objective” can have very particular and even counter-intuitive meanings to the author. Other technical disciplines have this problem as well. For example, the Constitution requires that the government afford people “equal protection under the law.” But, in the context of technical legal language, this term makes very particular kinds of discrimination illegal, not every kind of discrimination. So, quoting technical language out of context creates a danger of misrepresenting the authors meaning.

5. Include a proper citation.

Standard practice is to include a full citation of quoted material in a footnote. This serves several important purposes. It makes it possible for others to find the source material, which is both good for education and allows others to make sure that material is being quoted properly. Further, it allows the evidence to be dated so that it is apparent whether it reflects up to date information or was written before evidence making an inconsistent claim. Finally, because a full citation in debate tends to include the author’s qualifications it makes it easier to ensure that evidence comes from a credible and trustworthy source.

There is a great deal of variation in terms of proper citation format. So long as you are including enough information to quickly find and evaluate the source material you should be fine. Here are a couple of common citation formats:

Scholarly Article:

Last, First [Author Qualifications], “Article Title,” Journal Title, Volume, Number (Year). Page Number(s). <URL>

Book:

Last, First [Author Qualifications], Title: Subtitle, City: Publisher (Year). Page Number(s).

Website:

Last, First [Author Qualifications], “Article Title,” Name of website. Website Editor(s). Date of electronic publication. Date of access. <URL>.

6. Don’t lie.

You aren’t expected to have perfect evidence. It is permissible to use some evidence that you acknowledge should be taken with a grain of salt because the author uses less than perfect methodology or is not superlatively experienced. The worst thing that you can do is to try to improve your evidence by lying about it. If you don’t know the methodology of a study you cite, say you don’t know. If the author of your evidence is a law student, say so. Not only do you risk competitive repercussions by purposefully misrepresenting evidence, but you also sacrifice your personal integrity to win a debate round. I assure you, it’s not worth it. Whenever there is a close call on a matter of evidence ethics, the underlying value is honesty. Do your best to honestly represent the quality of your evidence, the intention of the author, and yourself, and those judgment calls are usually pretty straightforward.