Pub Date : 2021-09-30DOI: 10.1093/oso/9780198859307.003.0010
Dale A. Nance
This chapter analyzes and operationalizes a concept of “weight” as denoting the relative degree to which evidence has been developed on the basis of which to determine disputed claims. This concept was coined by John Maynard Keynes and later applied in the context of judicial proof by a number of scholars. The author distinguishes weight from the degree to which evidence favors one side over the other, and then assays the different ways this concept of weight can be operationalized. He identifies the strengths and weaknesses of various theories, and advocates a conception of weight that emphasizes its connection to fundamental policy choices about the importance of accuracy in litigation and, perhaps, the allocation of the risk of error. He argues that a common failure to appreciate the differences between ordinary decision-making under uncertainty and formal adjudication is responsible for confusion about the role of weight in the latter.
{"title":"Weight of Evidence","authors":"Dale A. Nance","doi":"10.1093/oso/9780198859307.003.0010","DOIUrl":"https://doi.org/10.1093/oso/9780198859307.003.0010","url":null,"abstract":"This chapter analyzes and operationalizes a concept of “weight” as denoting the relative degree to which evidence has been developed on the basis of which to determine disputed claims. This concept was coined by John Maynard Keynes and later applied in the context of judicial proof by a number of scholars. The author distinguishes weight from the degree to which evidence favors one side over the other, and then assays the different ways this concept of weight can be operationalized. He identifies the strengths and weaknesses of various theories, and advocates a conception of weight that emphasizes its connection to fundamental policy choices about the importance of accuracy in litigation and, perhaps, the allocation of the risk of error. He argues that a common failure to appreciate the differences between ordinary decision-making under uncertainty and formal adjudication is responsible for confusion about the role of weight in the latter.","PeriodicalId":439238,"journal":{"name":"Philosophical Foundations of Evidence Law","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125100015","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-30DOI: 10.1093/oso/9780198859307.003.0016
A. Mackor, Peter J. van Koppen
In this chapter the Dutch scenario theory is presented, which was developed in the 1990s by Peter van Koppen and Anne Ruth Mackor in collaboration with Willem Wagenaar and Hans Crombag. The scenario theory builds on the descriptive psychological account featuring factfinders who think in terms of a story when they are reasoning about evidence to develop a normative theory of adjudicative factfinding. The theory claims that factfinders ought to assess the strength of the scenario underlying the indictment by reference to alternative scenarios, the evidence, and their general knowledge of the world. The theory ascribes a piece of evidence the status of a discriminating fact when one scenario explains it better than another competing scenario.
本章介绍了荷兰情景理论，该理论是在20世纪90年代由Peter van Koppen和Anne Ruth Mackor与Willem Wagenaar和Hans Crombag合作发展起来的。情景理论建立在描述性心理学的基础上，以事实发现者为特征，他们在对证据进行推理时用故事的方式思考，从而发展出一种规范性的裁决事实发现理论。该理论声称，事实调查人员应该通过参考其他情况、证据和他们对世界的一般了解来评估指控所依据的情况的强度。当一个场景比另一个竞争场景更好地解释它时，该理论将一条证据归因于一个区别事实的地位。
{"title":"The Scenario Theory about Evidence in Criminal Law","authors":"A. Mackor, Peter J. van Koppen","doi":"10.1093/oso/9780198859307.003.0016","DOIUrl":"https://doi.org/10.1093/oso/9780198859307.003.0016","url":null,"abstract":"In this chapter the Dutch scenario theory is presented, which was developed in the 1990s by Peter van Koppen and Anne Ruth Mackor in collaboration with Willem Wagenaar and Hans Crombag. The scenario theory builds on the descriptive psychological account featuring factfinders who think in terms of a story when they are reasoning about evidence to develop a normative theory of adjudicative factfinding. The theory claims that factfinders ought to assess the strength of the scenario underlying the indictment by reference to alternative scenarios, the evidence, and their general knowledge of the world. The theory ascribes a piece of evidence the status of a discriminating fact when one scenario explains it better than another competing scenario.","PeriodicalId":439238,"journal":{"name":"Philosophical Foundations of Evidence Law","volume":"286 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134102332","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-30DOI: 10.1093/oso/9780198859307.003.0011
Talia Fisher
Utility considerations have been central to legal factfinding, at least since the days of Jeremy Bentham, the founding father of utilitarianism and a prominent evidence law theorist. A direct line can be drawn from Bentham’s “principle of utility” to cost-benefit analysis (CBA) so it would seem only natural that the realms of evidence law and judicial factfinding would harbor this type of reasoning. However, when legal scholarship began to incorporate economic reasoning and to address issues from a CBA perspective, evidence law and the practice of judicial factfinding remained very much out of the picture. The object of this chapter is to highlight the prospects for integrating CBA into contemporary evidentiary policy and institutions, and to draw the general contours of the evolving scholarship in these fields of research. It describes and analyzes two economically driven models of evidence and proof: the cost-minimization model, geared toward minimization of the cost of errors and the cost of accuracy as a total sum, and the primary behavior model aiming to incentivize socially optimal behavior and interactions. This analysis identifies the models’ difficulties, engendered, for the most part, by the misalignment between the private and the social costs and benefits of adjudication, and addresses the models’ relationship to the existing evidentiary rules and institutions.
{"title":"Cost-Benefit Analysis of Evidence Law and Factfinding","authors":"Talia Fisher","doi":"10.1093/oso/9780198859307.003.0011","DOIUrl":"https://doi.org/10.1093/oso/9780198859307.003.0011","url":null,"abstract":"Utility considerations have been central to legal factfinding, at least since the days of Jeremy Bentham, the founding father of utilitarianism and a prominent evidence law theorist. A direct line can be drawn from Bentham’s “principle of utility” to cost-benefit analysis (CBA) so it would seem only natural that the realms of evidence law and judicial factfinding would harbor this type of reasoning. However, when legal scholarship began to incorporate economic reasoning and to address issues from a CBA perspective, evidence law and the practice of judicial factfinding remained very much out of the picture. The object of this chapter is to highlight the prospects for integrating CBA into contemporary evidentiary policy and institutions, and to draw the general contours of the evolving scholarship in these fields of research. It describes and analyzes two economically driven models of evidence and proof: the cost-minimization model, geared toward minimization of the cost of errors and the cost of accuracy as a total sum, and the primary behavior model aiming to incentivize socially optimal behavior and interactions. This analysis identifies the models’ difficulties, engendered, for the most part, by the misalignment between the private and the social costs and benefits of adjudication, and addresses the models’ relationship to the existing evidentiary rules and institutions.","PeriodicalId":439238,"journal":{"name":"Philosophical Foundations of Evidence Law","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116759976","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-30DOI: 10.1093/oso/9780198859307.003.0026
Jasmine B. Gonzales Rose
This chapter starts off with a definition of “racist evidence” that includes: (1) evidence that suggests one racial group is inferior to or superior to another racial group in any way, (2) products of structural racism, (3) racially disparate evidentiary burdens in proving one’s racialized reality, and (4) the ways that racism distorts observation, perception and—accordingly—belief, which is then utilized as a basis of proof in legal proceedings.” Based on this definition, the chapter identifies and analyzes the epistemic problems posed by racialized factfinding and relates them to the broader notion of cultural cognition. This discussion focuses on the epistemic failings of “racial character evidence” and the unequal evidentiary treatment of white—as opposed to Black and Brown—“racialized reality evidence,” especially on matters of structural racism and race relations with law enforcement. While white racialized reality evidence receives “implicit judicial notice” and is fast-tracked to the jury box, the racialized reality evidence of Black and Brown people is subject to the full rigors of evidentiary scrutiny and often times suppressed. This system results in apervasive type of epistemic injustice.
{"title":"Race, Evidence, and Epistemic Injustice","authors":"Jasmine B. Gonzales Rose","doi":"10.1093/oso/9780198859307.003.0026","DOIUrl":"https://doi.org/10.1093/oso/9780198859307.003.0026","url":null,"abstract":"This chapter starts off with a definition of “racist evidence” that includes: (1) evidence that suggests one racial group is inferior to or superior to another racial group in any way, (2) products of structural racism, (3) racially disparate evidentiary burdens in proving one’s racialized reality, and (4) the ways that racism distorts observation, perception and—accordingly—belief, which is then utilized as a basis of proof in legal proceedings.” Based on this definition, the chapter identifies and analyzes the epistemic problems posed by racialized factfinding and relates them to the broader notion of cultural cognition. This discussion focuses on the epistemic failings of “racial character evidence” and the unequal evidentiary treatment of white—as opposed to Black and Brown—“racialized reality evidence,” especially on matters of structural racism and race relations with law enforcement. While white racialized reality evidence receives “implicit judicial notice” and is fast-tracked to the jury box, the racialized reality evidence of Black and Brown people is subject to the full rigors of evidentiary scrutiny and often times suppressed. This system results in apervasive type of epistemic injustice.","PeriodicalId":439238,"journal":{"name":"Philosophical Foundations of Evidence Law","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129889498","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-30DOI: 10.1093/oso/9780198859307.003.0008
Alex Stein
This chapter draws on Hohfeld’s scheme of jural opposites and correlatives to identify the irreducibly second-personal nature of legal entitlements and the interplay between the right-holder’s authority and the duty-bearer’s accountability. Based on that insight, the author argues that facts that courts need to ascertain and—critically—the procedures that courts must carry out in ascertaining those facts, ought to be second-personal as well. As a corollary, courts must only rely upon second-personal evidence, that is: upon information concerning the alleged jural relationship between the holder of the underlying entitlement and the bearer of the correlative duty or obligation. Further, this fundamental requirement defines the modus operandi of the Anglo-American system of evidence and its core rules.
{"title":"Second-Personal Evidence","authors":"Alex Stein","doi":"10.1093/oso/9780198859307.003.0008","DOIUrl":"https://doi.org/10.1093/oso/9780198859307.003.0008","url":null,"abstract":"This chapter draws on Hohfeld’s scheme of jural opposites and correlatives to identify the irreducibly second-personal nature of legal entitlements and the interplay between the right-holder’s authority and the duty-bearer’s accountability. Based on that insight, the author argues that facts that courts need to ascertain and—critically—the procedures that courts must carry out in ascertaining those facts, ought to be second-personal as well. As a corollary, courts must only rely upon second-personal evidence, that is: upon information concerning the alleged jural relationship between the holder of the underlying entitlement and the bearer of the correlative duty or obligation. Further, this fundamental requirement defines the modus operandi of the Anglo-American system of evidence and its core rules.","PeriodicalId":439238,"journal":{"name":"Philosophical Foundations of Evidence Law","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127573854","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-30DOI: 10.1093/oso/9780198859307.003.0027
F. Zenker
This chapter examines the psychological studies of biases and de-biasing measures in human decision-making with special reference to adjudicative factfinding. Research shows that factfinders are prone to cognitive biases (such as anchoring, framing, base-rate neglect, and confirmation bias) as well as social biases. Driven by this research, multiple studies have examined the extent to which those biases can be mitigated by de-biasing measures like “consider the opposite” and “give reasons.” After a brief overview of the research, the author points to the problematic evidential basis and identifies future research needs, and concludes that empirical research on de-biasing measures has so far delivered less than one would hope for.
{"title":"De-Biasing Legal Factfinders","authors":"F. Zenker","doi":"10.1093/oso/9780198859307.003.0027","DOIUrl":"https://doi.org/10.1093/oso/9780198859307.003.0027","url":null,"abstract":"This chapter examines the psychological studies of biases and de-biasing measures in human decision-making with special reference to adjudicative factfinding. Research shows that factfinders are prone to cognitive biases (such as anchoring, framing, base-rate neglect, and confirmation bias) as well as social biases. Driven by this research, multiple studies have examined the extent to which those biases can be mitigated by de-biasing measures like “consider the opposite” and “give reasons.” After a brief overview of the research, the author points to the problematic evidential basis and identifies future research needs, and concludes that empirical research on de-biasing measures has so far delivered less than one would hope for.","PeriodicalId":439238,"journal":{"name":"Philosophical Foundations of Evidence Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130438748","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-30DOI: 10.1093/oso/9780198859307.003.0018
F. Taroni, S. Bozza, A. Biedermann
Uncertainty is an inevitable complication encountered by members of the judiciary who face inference and decision-making as core aspects of their daily activities. Inference, in this context, is mainly inductive and relates to the use of incomplete information, to reason about propositions of interest. Applied to scientific evidence, this means, for example, to reason about whether or not a person of interest is the source of a recovered evidential material and factfinders are required to make decisions about ultimate issues, for example, regarding a defendant’s guilt. The role of forensic scientists, whose duty is to help assess the probative value of scientific findings, is to offer to mandate authorities’ conclusions that are scientifically sound and logically defensible. This chapter lays out the fundamentals of inference and decision-making under uncertainty with regard to forensic evidence. The authors explicate explain the subjectivist version of Bayesianism and analyze the usefulness of the likelihood ratio in for measuring the degree to which the evidence discriminates between competing propositions in a trial. They also underscore emphasize the importance of decision analysis as a framework that forces helps decision-makers to formalize preference structures.
{"title":"The Logic of Inference and Decision for Scientific Evidence","authors":"F. Taroni, S. Bozza, A. Biedermann","doi":"10.1093/oso/9780198859307.003.0018","DOIUrl":"https://doi.org/10.1093/oso/9780198859307.003.0018","url":null,"abstract":"Uncertainty is an inevitable complication encountered by members of the judiciary who face inference and decision-making as core aspects of their daily activities. Inference, in this context, is mainly inductive and relates to the use of incomplete information, to reason about propositions of interest. Applied to scientific evidence, this means, for example, to reason about whether or not a person of interest is the source of a recovered evidential material and factfinders are required to make decisions about ultimate issues, for example, regarding a defendant’s guilt. The role of forensic scientists, whose duty is to help assess the probative value of scientific findings, is to offer to mandate authorities’ conclusions that are scientifically sound and logically defensible. This chapter lays out the fundamentals of inference and decision-making under uncertainty with regard to forensic evidence. The authors explicate explain the subjectivist version of Bayesianism and analyze the usefulness of the likelihood ratio in for measuring the degree to which the evidence discriminates between competing propositions in a trial. They also underscore emphasize the importance of decision analysis as a framework that forces helps decision-makers to formalize preference structures.","PeriodicalId":439238,"journal":{"name":"Philosophical Foundations of Evidence Law","volume":"249 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121262852","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-30DOI: 10.1093/oso/9780198859307.003.0004
Jordi Ferrer Beltrán
Proven Facts, Beliefs and Reasoned Verdicts challenges a subjectivist conception of factfinding by tying the very concept of “proof” and the applicable proof standards and burdens to the duty of giving reasons for trial verdicts. The chapter examines the link between the Roman-Germanic and English-speaking legal traditions and concludes that evidential subjectivism still predominates in civil law countries in the name of the free evaluation of evidence. It aims to demonstrate that there is a close relationship between the concept of proof, standards of proof, and the way in which the duty of giving reasons for trial verdicts, and even the possibility of complying with this duty, are understood. Specifically, it reinforces the fact that if proof is conceptually linked to the beliefs or convictions of the trier of fact, it is impossible to sustain the idea of giving reasons as a justification of the decisions about facts.
{"title":"Proven Facts, Beliefs, and Reasoned Verdicts","authors":"Jordi Ferrer Beltrán","doi":"10.1093/oso/9780198859307.003.0004","DOIUrl":"https://doi.org/10.1093/oso/9780198859307.003.0004","url":null,"abstract":"\u0000 Proven Facts, Beliefs and Reasoned Verdicts challenges a subjectivist conception of factfinding by tying the very concept of “proof” and the applicable proof standards and burdens to the duty of giving reasons for trial verdicts. The chapter examines the link between the Roman-Germanic and English-speaking legal traditions and concludes that evidential subjectivism still predominates in civil law countries in the name of the free evaluation of evidence. It aims to demonstrate that there is a close relationship between the concept of proof, standards of proof, and the way in which the duty of giving reasons for trial verdicts, and even the possibility of complying with this duty, are understood. Specifically, it reinforces the fact that if proof is conceptually linked to the beliefs or convictions of the trier of fact, it is impossible to sustain the idea of giving reasons as a justification of the decisions about facts.","PeriodicalId":439238,"journal":{"name":"Philosophical Foundations of Evidence Law","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123004765","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-30DOI: 10.1093/oso/9780198859307.003.0019
N. Fenton, D. Lagnado
While the laws of probability are rarely disputed, the question of how we should interpret probability judgments is less straightforward. Broadly, there are two ways to conceive of probability—either as an objective feature of the world, or as a subjective measure of our uncertainty. Both notions have their place in science, but it is the latter subjective notion (the Bayesian approach) that is crucial in legal reasoning. This chapter explains the advantages of using Bayesian networks in adjudicative factfinding. It addresses a number of common objections to the Bayesian approach, such as “There is no such thing as a probability of a single specified event”; “The Bayesian approach only works with statistical evidence”; “The Bayesian approach is too difficult for legal factfinders to comprehend”; and “A Bayesian network can never capture the full complexity of a legal case.” Fenton and Lagnado offer rebuttals to each of these objections.
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Pub Date : 2021-09-30DOI: 10.1093/oso/9780198859307.003.0002
Hock Lai Ho
This chapter interrogates the traditional—but not universally accepted—view that trials aim primarily at determining the truth of disputed propositions of fact, and that evidentiary rules ought to promote the realization of that goal. Truth is said to be a prerequisite for “rectitude of decision”—an objective only realized when courts correctly combine substantive law with true facts. The author examines this view by addressing the following questions: what do we mean by “truth” in the present context? Is truth the aim of a trial? What other roles or functions might the concept of truth have? How is truth related to justice? If the trial is a system for ascertaining the truth, how should evidentiary rules be designed?
{"title":"Evidence and Truth","authors":"Hock Lai Ho","doi":"10.1093/oso/9780198859307.003.0002","DOIUrl":"https://doi.org/10.1093/oso/9780198859307.003.0002","url":null,"abstract":"This chapter interrogates the traditional—but not universally accepted—view that trials aim primarily at determining the truth of disputed propositions of fact, and that evidentiary rules ought to promote the realization of that goal. Truth is said to be a prerequisite for “rectitude of decision”—an objective only realized when courts correctly combine substantive law with true facts. The author examines this view by addressing the following questions: what do we mean by “truth” in the present context? Is truth the aim of a trial? What other roles or functions might the concept of truth have? How is truth related to justice? If the trial is a system for ascertaining the truth, how should evidentiary rules be designed?","PeriodicalId":439238,"journal":{"name":"Philosophical Foundations of Evidence Law","volume":"69 6","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114011398","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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