Lawyers and judges are frequently confronted with rhetorical devices that have no direct bearing on the merits of a dispute. An ad hominem argument is common tactic used in litigation, in which one attacks the person making an argument or asserting a fact, rather than addressing the argument or factual assertion itself. 1 Such attacks sometimes constitute an improper attempt to prejudice the fact-finder. However, the Rules of Evidence recognize that character may legitimately impact the assessment of evidence under specific circumstances.
There are three broad types of ad hominem arguments. First, the abusive ad hominem is perhaps the most recognizable form. It occurs when the proponent argues or suggests that her opponent’s argument is invalid because the opponent allegedly has an undesirable character.2 Personal insults, derogatory comments, or name-calling are typical features of abusive ad hominem attacks. For example, if a proponent argues that her opponents argument concerning abortion should be rejected because he was previously indicted for bribery, the proponent has a committed an error in reasoning.
Second, the circumstantial ad hominem argument occurs when the opponent’s argument is rejected based upon the opponent’s circumstances which suggest a bias in favor of the opponent’s conclusion. For instance, rejecting an environmentalist’s argument concerning climate change on the basis that they work for an environmental organization is a circumstantial ad hominem fallacy. However, an argument from a biased source does not, in itself, render the argument invalid.
Third, the tu quoque ad hominem argument attempts to deflect criticism by accusing the opponent of hypocrisy or inconsistency. The proponent argues or suggests that the proponent’s argument is invalid because he has indorsed an inconsistent view. For example, if someone argues against smoking while being a smoker themselves, their point is dismissed on the grounds of inconsistency, rather than the merit of the argument. Clearly, the opponent’s argument should be assessed based upon the premises of his argument, rather than his private conduct.
However, an ad hominem argument is not always predicated upon fallacious reasoning. Only when the information reference by the proponent is irrelevant to the truth or falsity of her opponent’s claim, the argument if fallacious. 3 A fallacious ad hominem argument (“pernicious ad hominem”) undermines the judicial process by creating confusion, bias, or prejudice, rendering the fact-finding function less credible due to the possible influence of irrelevant information. On the other hand, if the referenced information is relevant to the assessment of the truth or falsity of the opponent’s claim, the argument does not reflect a reasoning error and is instrumental to the fact-finding function (“instrumental ad hominem”). 4
1 https://plato.stanford.edu/entries/fallacies.
2 Naturalizing Logic – A Case Study of the ad hominem and Implicit Bias, Madeline Ransom, https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjciKKyiMaBAxW-FmIAHSvsBdsQFnoECBYQAQ&url=https%3A%2F%2Fphilarchive.org%2Farchive%2FRANNLA&usg=AOvVaw3PMlzoilSxF-6kftx8xjKI&opi=89978449.
3 Id. at 3.
In Maryland, as in many other jurisdictions, the Rules of Evidence permit the use of benign ad hominem evidence to undermine a witness’s credibility. The Maryland’s Rules of Evidence provide several methods for impeaching a witness during trial. Impeachment is the process of showing that a witness may not be telling the truth or may have a bias that affects their testimony.
The credibility of a witness may be attacked by any party. 5 Rules 5-608, 5-609, and 5-613 allows a party to confront a witness with a statement that the witness previously made if the statement is inconsistent with their current testimony. Under Maryland Rule 5-608, a witness’s character for truthfulness or untruthfulness may be attacked or supported by evidence of reputation or opinion. However, a character witness is precluded from testifying to an opinion about whether the witness testified truthfully in the specific case and about specific instances of conduct on direct examination. The court may also permit a witness to be examined about the witness’s prior conduct that did not result in a conviction if the court finds that such evidence is probative of a character for untruthfulness. This means that an attorney can introduce evidence regarding a witness’s general reputation for honesty or dishonesty.
Under Rule 5-609, a witness may be impeached through evidence of a prior criminal conviction. However, such evidence is only admissible if: a) the crime was an “infamous crime” or other crime relevant to the witness’s credibility; and b) the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting party.” 6 Infamous crimes crimes include “crimes in the nature of perjury, false statement, criminal fraud, embezzlement, false pretense, or any other offense involving some element of deceitfulness, untruthfulness, or falsification bearing on the witness’s propensity to testify truthfully.” 7
Rule 5-613 allows a party to confront a witness with a statement that the witness previously made if the statement is inconsistent with their current testimony. The purported inconsistent statement must be disclosed to the witness before the end of the examination, and the witness must be provided an opportunity to explain or deny it.
Maryland Rules 5-610 and 5-616 permit circumstantial ad hominem to undermine a witness’s credibility. Rule 5-610 precludes evidence of beliefs or opinion concerning religious matter unless it is presented to show interest or bias. 8 Rule 5-616(a)(4) permits the introduction of evidence to demonstrate that a witness has a bias or an interest in the outcome of the case that may affect their testimony. This could include financial interests, personal relationships, or other factors that might lead a witness to be less than impartial.
4 Id.
5 Md. Rule 5-607.
6 Md. Rule 5-609.
7 Correll v. State, 215 Md. App. 483, 503–04, 81 A.3d 600, 611–12 (2013).
8 Md. Rule 5-610.
Contrary to a widely held view, ad hominem arguments are not per se fallacious. The propriety of an ad hominem attack is more nuanced than simply inquiring whether the proponent seeks to undermine the credibility of his or her opponent. The propriety of an ad hominem attack turns on whether such attack is instrumental or pernicious to the fact-finding function.
