The Significance of Free Will

The Possibility of Practical Reason

A simple way of understanding standards of proof is in terms of degrees of probability. On this account, to prevail in a civil case a claimant need only prove the defendant's liability to a degree above 0.5. For the prosecution to succeed in a criminal case, it needs to prove guilt to a considerably higher degree: 0.95, say. The proof paradoxes are a set of examples, well known to evidence lawyers, that are often taken to suggest that there is something wrong with this probabilistic account of standards of proof. One example is Blue Bus: Mrs. Brown is run down by a bus; 60 percent of the buses that travel along the relevant street are owned by the blue bus company, and 40 percent by the red bus company. The only witness is Mrs. Brown, who is color-blind. Mrs. Brown appears to be able to establish a 0.6 probability that she was run down by a blue bus. Yet the overwhelming intuition is that the 60 percent statistic is not sufficient for Mrs. Brown to prove her case in a civil trial. Thus, the argument goes, proof involves something more than just probability. After introducing other similar examples, this article undertakes a detailed examination of this type of "proof paradox." It focuses on particular analyses of these paradoxes, distinguishing between inferential, moral, and knowledge-based analyses, in the process touching on issues such as the reference class problem and the lottery paradox. The article emphasizes the richness and complexity of the puzzle cases and suggests why they are difficult to resolve.

Exploring the Proof Paradoxes

When ‘neutral’ evidence still has probative value (with implications from the Barry George Case)

Adjudicative tribunals in both criminal and non-criminal cases rely on the concept of the 'burden of proof' to resolve uncertainty about facts. Perhaps surprisingly, this concept remains clouded and deeply controversial. Written by an internationally renowned scholar, this book explores contemporary thinking on the evidential requirements that are critical for all practical decision-making, including adjudication. Although the idea that evidence must favor one side over the other to a specified degree, such as 'beyond reasonable doubt', is familiar, less well-understood is an idea associated with the work of John Maynard Keynes, namely that there are requirements on the total amount of evidence considered to decide the case. The author expertly explores this distinct Keynesian concept and its implications. Hypothetical examples and litigated cases are included to assist understanding of the ideas developed. Implications include an expanded conception of the burden of producing evidence and how it should be administered.

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The Burdens of Proof: Discriminatory Power, Weight of Evidence, and Tenacity of Belief

The ‘reasonable doubt standard’ is the controlling standard of proof for criminal fact finding in several jurisdictions. Drawing on decision theory, some scholars have argued that the stringency of this standard varies according to the circumstances of the case. This article contends that the standard does not lend itself to the ‘sliding-scale’ approach mandated by decision theory. This is supported through investigation of the concept of ‘reasonableness’. While this concept has mostly been studied as it operates with reference to practical reasoning, scant attention has been given to the meaning that it acquires when referred to theoretical reasoning. Unlike in the former case, reasonableness does not in the latter depend on the reasoner's attitudes in favour of the outcomes of a decisional process. Therefore, since criminal fact finding is an instance of theoretical reasoning, the question whether in this enterprise a doubt is reasonable is not susceptible to a decision-theoretic approach.

Two Meanings of ‘Reasonableness’: Dispelling the ‘Floating’ Reasonable Doubt

The last few decades have seen several scholars and courts striving to understand the meaning of the reasonable doubt standard and, in particular, to produce instructions that would enlighten jurors in this regard. The focus has been on defining the standard as a threshold indicating the quality and quantity of evidence sufficient for a finding of fact, or the degree of confidence that the fact finder should have before convicting. The results of these endeavours have not been satisfactory and nowadays it is still frequent that juries ask the court for clarification on the meaning of the standard. The paper argues that the reasonable doubt standard is better conceived and explained to the jury as requiring a particular method of reasoning, rather than merely a threshold. A direct explanation of the threshold is elusive and potentially encroaches on the fact finder’s role. Reference to a method of reasoning, instead, promises to provide useful directions to the jury, which promote compliance with the threshold itself. The paper advances methodological directives inspired by works in philosophy of the mind and virtue epistemology. The paper then concludes with practical recommendations for devising a new instruction on the standard of proof.

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The threshold lies in the method: instructing jurors about reasoning beyond reasonable doubt

The article proposes a normative theory of inferential reasoning for criminal fact finding, centred on the concept of ‘analogy’. While evidence law scholars have devoted little attention to the topic, the article maintains that analogy deserves more consideration. In particular, it argues that an analogical theory of inferential reasoning has three main advantages. First, the theory makes it possible to incorporate within a single coherent framework the important insights of different approaches to ‘reasoning under uncertainty’; indeed, it welcomes both the Pascalian notion of ‘relevance’ based on the Bayesian likelihood ratio and the Baconian concept of ‘weight’. Secondly, it helps advance the conventional understanding of the reference class problem, an evidential conundrum widely discussed in the recent legal scholarship. Finally, the theory allows for a functional taxonomy of reasonable doubts.

Structuring inferential reasoning in criminal fact finding: an analogical theory

The justification of the reasonable doubt standard has been hotly debated in recent years. Deontologists—including retributivists—have generally defended the standard, whilst consequentialists have generally argued for a lower standard of proof. Captivating arguments have been produced from both sides. The paper narrates this debate through a dialogue between ideal representatives of these different camps. In doing so, it recasts—and, hopefully, improves—some of the arguments presented thus far. Then, the paper introduces a new participant in the debate, the Intermediary. The Intermediary is under the impression that the debate has reached an impasse, due to fundamental moral disagreements between the parties involved. Therefore, she presents them with a challenge: to find a common ground that allows the parties to justify to each other the choice of a standard of proof, notwithstanding their different basic moral commitments. The Intermediary takes up this challenge, and provides a justification for the reasonable doubt standard based on the value of respecting defendants and on rules of instrumental rationality.

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Can the reasonable doubt standard be justified? A reconstructed dialogue

Since the Human Rights Act 1998, scholars and courts have dedicated considerable attention to the presumption of innocence. A major strand of the ensuing debate has focused on the scope of this safeguard. Many academics have argued in favour of according to the presumption a substantive- as opposed to a procedural-role. In otherwords, these scholars maintain that the presumption set in art. 6(2) of the European Convention on Human Rights (ECHR) should have some influence on the definition of criminality. Courts seemsympathetic to this approach, albeit not following it to the full extent. The article, instead, defends a procedural understanding of the presumption of innocence, on the basis of interpretive arguments concerning art. 6(2) ECHR. Besides, it shows that adopting this conception does not entail lowering the protection of the individual before the substantive criminal law.

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Federico Picinali

Papers

Two Meanings of ‘Reasonableness’: Dispelling the ‘Floating’ Reasonable Doubt

The threshold lies in the method: instructing jurors about reasoning beyond reasonable doubt

Structuring inferential reasoning in criminal fact finding: an analogical theory

Can the reasonable doubt standard be justified? A reconstructed dialogue

Innocence and burdens of proof in English criminal law