A red herring is a fallacy that distracts from the pertinent issue by making an irrelevant argument. It is so called because dragging a red herring, a strong-smelling fish, across a trail will cause a hunting dog to leave the original trail and follow the path of the herring.
An invidious form of a red herring is a straw-man fallacy in which one distorts or frames the issue posed into a form which can be more easily refuted or tackled. The distorted or framed issue becomes a “straw man” that can easily be knocked down or blown to bits.
As a bar exam coach, I have noticed that bar reviewees not infrequently fall into or even at times deliberately use a red herring in their arguments.
Illustration
The following is a question in my law examinations and mock bar exams in remedial law.
“Q Caloy filed with the RTC an action for damages against Dong. Caloy alleged in his complaint that Dong had sold a parcel of land to him (Caloy) in which Dong stated that he was the ”absolute owner” and that the land sold was “free from any lien or encumbrance,” when it turned out that Dong had earlier sold the same parcel of land to Bing. In his answer, Dong denied having executed in favor of Caloy the deed of sale, alleging that his signature therein was a forgery. Subsequently, a complaint for estafa against Dong was filed with the prosecutor. After preliminary investigation, the prosecutor filed with the RTC an information against Dong for estafa for having sold the same property twice.
“Dong filed in the civil case a motion to suspend the civil case until judgment has been entered in the criminal case. How should the court rule on Dong’s motion?”
Many of my students and coachees answered the question in the following manner.
”The court should deny the motion.
“Under the Rules of Criminal Procedure, when there is a prejudicial question raised by a previously instituted civil action, the criminal action shall be suspended.
“Here what Dong seeks to suspend is the civil action not the criminal action. Hence the motion to suspend should be denied.”
This answer is a textbook red herring. The issue posed by the problem is whether the civil action should be suspended. The student/coachee however recast the issue into whether the criminal action should be suspended. Using the recast issue, the student/coachee now used an irrelevant rule, i.e., the rule on prejudicial questions, to answer the question. Take note that the rule on prejudicial questions is relevant only if what is sought to be suspended is the criminal action, not the civil one.
A responsive answer would have stated that (1) the motion to suspend should not be granted because the suit for damages is an independent civil action or (2) the motion to suspend should be granted because the filing of the criminal action shall result in the suspension of the civil action ex delicto.
The correct answer is #1. The reason is that an action based on fraud is an independent civil action. (Art. 33, Civil Code). Answer #2 is thus incorrect. However an examiner would much prefer an answer along the lines of #2 over an answer based on a red herring. Answer #2 at least is responsive to the issue of whether the civil action should be suspended.
The use of red herrings can be risky for a bar examinee. For example in the illustrative answer, the examiner may get the impression that the red herring is a straw man, that is, the examinee has ascribed to Dong an argument which he never made, to wit: the civil action may be suspended on the ground that it raises a prejudicial question. The examiner may thus get peeved with the examinee and this may cause him to mark down the examinee’s paper.
The difficulty of avoiding red herrings is shown by the fact that they are occasionally found even in decisions of the High Tribunal.
In Jose-Consing v. People, 15 July 2013, petitioner for himself and his mother obtained a loan of ₱18 million from Unicapital secured by a real estate mortgage on a property allegedly owned by the mother. It was later discovered that the certificate of title over the property was spurious and that it was actually registered in the name of another person. Unicapital demanded from petitioner and his mother the return of the ₱18 million.
In August 1999, Unicapital sued petitioner in the RTC for the recovery of a sum of money and damages. The complaint alleged that petitioner and his mother had acted fraudulently in offering as security a property which they did not own. Petitioner’s defense was that he had acted as a mere agent of his mother and thus should not be held liable.
In January 2000, the city prosecutor filed with the RTC an information for estafa through falsification of public document against petitioner and his mother. Petitioner moved to suspend his arraignment on the ground of existence of a prejudicial question in the civil case. Petitioner argued that the criminal case would have no leg to stand on if it was found that he acted as a mere agent of his mother.
The Court ruled that the motion to suspend the arraignment should be denied. The Court held that an independent civil action, such as one based on fraud, will not raise a prejudicial question because the result of the action is irrelevant to the issue of the guilt or innocence of the accused. Hence since Unicapital’s civil case is an independent civil action having been based on fraud, it will not pose a prejudicial question.
It can be seen that the argument of the Court is actually a red herring. The issue is whether the criminal action should be suspended or not. The applicable rule would thus be the rule on prejudicial questions, not the rule on independent civil actions. The rule on independent civil actions is relevant only if what is sought to be suspended is the civil action not the criminal one.
In the later case of Domingo v. Singson, 5 April 2017, the private complainant argued that an action to nullify based on fraud was an independent civil action which could not pose a prejudicial question. This time, the Court did not follow the red herring, stating that “the concept of independent civil actions finds no application in this case.”
A bar exam coach will help the bar reviewee avoid red herrings by improving the reviewee’s issue-spotting and issue-responsiveness skills. A certified bar coach’s services are invaluable since a bar reviewee may not realize that the issue he is pursuing is a red herring. The bar coach will also train the reviewee to refrain from evading issues and constructing his own “straw man.”
-oOo-
nice
Noteworthy technique…