[Extracts] Hock Lai Ho, ‘The Legal Concept of Evidence’,

Stanford Encyclopaedia of Philosophy (published 8 October

2021), pp. 1-68.

It may seem obvious that there must be a legal concept of evidence that
is distinguishable from the ordinary concept of evidence. After all, there
are in law many special rules on what can or cannot be introduced as
evidence in court, on how evidence is to be presented and the uses to
which it may be put, on the strength or sufficiency of evidence needed to
establish proof and so forth. But the law remains silent on some crucial
matters. In resolving the factual disputes before the court, the jury or, at
a bench trial, the judge has to rely on extra-legal principles. There have
been academic attempts at systematic analysis of the operation of these
principles in legal fact-finding (Wigmore 1937; Anderson, Schum, and
Twining 2009). These principles, so it is claimed, are of a general nature.
On the basis that the logic in “drawing inferences from evidence to test
hypotheses and justify conclusions” is governed by the same principles
across different disciplines (Twining and Hampsher-Monk 2003: 4),
ambitious projects have been undertaken to develop a cross-disciplinary
framework for the analysis of evidence (Schum 1994) and to construct an
interdisciplinary [1] “integrated science of evidence” (Dawid, Twining, and
Vasilaki 2011; cf. Tillers 2008). [2]

1. Conceptions of Evidence: What does Evidence Refer

to in Law?
Stephen (1872: 3–4, 6–7) long ago noted that legal usage of the term
“evidence” is ambiguous. It sometimes refers to that which is adduced by
a party at the trial as a means of establishing factual claims. (“Adducing
evidence” is the legal term for presenting or producing evidence in court
for the purpose of establishing proof.) This meaning of evidence is
reflected in the definitional section of the Indian Evidence Act (Stephen
1872: 149).[3] When lawyers use the term “evidence” in this way, they
have in mind what epistemologists would think of as “objects of sensory
evidence” (Haack 2004: 48). Evidence, in this sense, is divided
conventionally into three main categories: oral evidence (the testimony
given in court by witnesses), documentary evidence (documents produced
for inspection by the court), and “real evidence”; the first two are self-
explanatory and the third captures things other than documents such as a
knife allegedly used in committing a crime.
The term “evidence” can, secondly, refer to a proposition of fact that is
established by evidence in the first sense. This is sometimes called an [3]
“evidential fact”. That the accused was at or about the scene of the crime
at the relevant time is evidence in the second sense of his possible
involvement in the crime. But the accused’s presence must be proved by
producing evidence in the first sense.
A third conception of evidence is an elaboration or extension of the
second. On this conception, evidence is relational. A factual proposition
(in Latin, factum probans) is evidence in the third sense only if it can
serve as a premise for drawing an inference (directly or indirectly) to a
matter that is material to the case (factum probandum) (see section 2.2
below for the concept of materiality). The fact that the accused’s
fingerprints were found in a room where something was stolen is evidence
in the present sense because one can infer from this that he was in the
room, and his presence in the room is evidence of his possible
involvement in the theft. On the other hand, the fact that the accused’s
favorite color is blue would, in the absence of highly unusual
circumstances, be rejected as evidence of his guilt: [4]... In the third
sense of “evidence”, which conceives of evidence as a premise for a
material inference, “irrelevant evidence” is an oxymoron: it is simply not
evidence.
There can be evidence in the first sense without evidence in the second or
third sense. To pursue our illustration, suppose it emerges during cross-
examination of the expert that his testimony of having found a
finger-print match was a lie. Lawyers would describe this situation as one
where the “evidence” (the testimony of the expert) fails to prove the fact
that it was originally produced to prove and not that no “evidence” was
adduced on the matter. Here “evidence” is used in the first
sense—evidence as testimony—and the testimony remains in the court’s
record whether it is believed or not. But lawyers would also say that, in
the circumstances, there is no “evidence” that the accused was in the
room, assuming that there was nothing apart from the discredited expert
testimony of a fingerprint match to establish his presence there. Here, the
expert’s testimony is shown to be false and fails to establish that the
accused’s fingerprints were found in the room, and there is no (other)
factual basis for believing that he was in the room. The factual premise
from which an inference is sought to be drawn towards the accused’s guilt
is not established.
Fourthly, the conditions for something to be received (or, in technical term
“admitted”) as evidence at the trial are sometimes included in the legal
concept of evidence. (These conditions are discussed in section 2 below.)
On this conception, legal evidence is that which counts as evidence in law.
[5]
Something may ordinarily be treated as evidence and yet be rejected by
the court. Hearsay is often cited as an example. It is pointed out that
reliance on hearsay is a commonplace in ordinary life. We frequently rely
on hearsay in forming our factual beliefs. In contrast, “hearsay is not
evidence” in legal proceedings (Stephen 1872: 4–5). As a general rule,
the court will not rely on hearsay as a premise for an inference towards
the truth of what is asserted. It will not allow a witness to testify in court
that another person X (who is not brought before the court) said that p on
a certain occasion (an out-of-court statement) for the purpose of proving
that p.
In summary, at least four possible conceptions of legal evidence are in
currency: as an object of sensory evidence, as a proposition of fact, as an
inferential premise and as that which counts as evidence in law. The
sense in which the term “evidence” is being used is seldom made explicit
in legal discourse although the intended meaning will often be clear from
the context.

2. Conditions for Receiving Evidence: What Counts as

Evidence in Law?
This section picks up on the fourth conception of evidence. To recall,
something will be accepted by the court as evidence—it is, to use
Montrose’s term, receivable as evidence in legal proceedings—only if
three basic conditions are satisfied: relevance, materiality, and
admissibility (Montrose 1954). These three conditions of receivability are
discussed in turn below. [6]

2.1 Relevance

2.1.1 Legal Significance of Relevance

Thayer (1898: 266, 530) articulates its significance in terms of two
foundational principles of the law of evidence: first, without exception,
nothing which is not relevant may be received as evidence by the court
and secondly, subject to many exceptions and qualifications, whatever is
relevant is receivable as evidence by the court…Thayer claims, and it is
now widely accepted, that relevance is a “logical” and not a legal concept;

2.1.2 Conceptions of Logical Relevance

Evidence may be adduced in legal proceedings to prove a fact only if the
fact is relevant. Relevance is a relational concept. No fact is relevant in
itself; it is relevant only in relation to another fact. The term “probable” is
often used to describe this relation. [7]... The word “probable” in these
and other standard definitions is sometimes construed as carrying the
mathematical meaning of probability.[8] In a leading article, Lempert
gave this example to show how relevance turns on the likelihood ratio.
The prosecution produces evidence that the perpetrator’s blood found at
the scene of the crime is type A. The accused has the same blood type.
Suppose fifty percent of the suspect population has type A blood. If the
accused is in fact guilty, the probability that the blood found at the scene
will be type A is 1.0. But if he is in fact innocent, the probability of finding
type A blood at the scene is 0.5—that is, it matches the background
probability of type A blood from the suspect population. The likelihood
ratio is the ratio of the first probability to the second—1.0:0.5 or, more
simply, 2:1. Evidence is considered relevant so long as the likelihood ratio
is other than 1:1 (Lempert 1977). If the ratio is 1:1, that means that the
probability of the evidence is the same whether the accused is guilty or
innocent.
The conventional view is that relevance in law is a binary concept:
evidence is either relevant or it is not. So long as the likelihood ratio is
other than 1:1, the evidence is considered relevant.[9] However, the
greater the likelihood ratio deviates from 1:1, the higher the so-called
probative value of the evidence[.]
While the likelihood ratio may be useful as a heuristic device in analysing
evidential reasoning, it is controversial as to whether it captures correctly
[8] the concept of relevance. In the first place, it is unclear that the term
“probable” in the standard definitions of relevance was ever intended as a
reference to mathematical probability. Some have argued that relevance
should be understood broadly such that any evidence would count as
relevant so long as it provides some reason in support of the conclusion
that a proposition of fact material to the case is true or false[.]
The mathematical conception of relevance has been disputed. At a trial, it
is very common for the opposing sides to present competing accounts of
events that share certain features. To use Allen’s example, the fact that
the accused drove to a particular town on a particular day and time is
consistent with the prosecution’s case that he was driving there to commit
a murder and also with the defence’s case that he was driving there to
visit his mother. This fact, being a common feature of both sides’
explanations of the material events, is as consistent with the hypothesis
of guilt as with the hypothesis of innocence. On the likelihood ratio
conception of relevance, this fact should be irrelevant and hence evidence
of it should not be allowed to be adduced. But in such cases, the court will
let the evidence in (Park et al. 2010: 10). The mathematical theory of
relevance cannot account for this…On an explanatory conception of
relevance, evidence is relevant if it is explained by or provides a reason
for believing the particular explanation of the material events offered by
the side adducing the evidence, and it remains relevant even where, as in
our example, the evidence also supports or forms part of the explanation
offered by the opponent[.]
One possible response to the above challenge to the likelihood ratio
theory of relevance is to deny that it was ever meant to be the exclusive
test[.] [9] …evidence may also be relevant on other grounds, such as
when it provides for a richer narrative or helps the court in understanding
other evidence.

2.1.3 Logical Relevance versus Legal Relevance

A key purpose of using the adjective “logical” is to flag the non-legal
character of relevance. As Thayer (1898: 269) famously claimed,
relevance “is an affair of logic and not of law.” This is not to say that
relevance has no legal dimension. The law distinguishes between
questions of law and questions of fact. An issue of relevance poses a
question of law that is for the judge to decide and not the jury, and so far
[10] as relevance is defined in legal sources (for example, in Federal Rule
of Evidence 401 mentioned above), the judge must pay heed to the legal
definition. But legal definitions of relevance are invariably very broad.
Relevance is said to be a logical, and non-legal, concept in the sense that
in answering a question of relevance and in applying the definition of
relevance, the judge has necessarily to rely on extra-legal resources and
is not bound by legal precedents…Thayer was most insistent on this. As
he put it, “[t]he law furnishes no test of relevancy. For this, it tacitly
refers to logic and general experience”...On Thayer’s view, the law does
not control or regulate the assessment of relevance; it assumes that
judges are already in possession of the (commonsense) resources to
undertake this assessment.
Wigmore adopts a different position. He argues, against Thayer, that
relevance is a legal concept. There are two strands to his contention. The
first is that for evidence to be relevant in law, “a generally higher degree
of probative value” is required “than would be asked in ordinary
reasoning”[.]
As Wigmore sees it, the requirement of “plus value” guards against the
jury “being satisfied by matters of slight value, capable to being
exaggerated by prejudice and hasty reasoning” [11]... Relevance is a
relation between facts and the aforesaid reasons for exclusion are
extrinsic to that relation; they are grounded in considerations such as
limitation of judicial resources and jury psychology. The notion of “plus
value” confuses relevance with extraneous considerations[.]
There is a second strand to Wigmore’s contention that relevance is a legal
concept. Relevance is legal in the sense that the judge is bound by
previously decided cases (“judicial precedents”) when he has to make a
ruling on the relevance of a proposed item of evidence.
…the second strand of his argument also does not sit well with the first
strand. If, as Wigmore contends, evidence must have a plus value to
make it legally relevant, the court has to consider the probative value of
the evidence and to weigh it against the amount of time and expense
likely to be incurred in receiving the evidence, the availability of other
evidence, the risk of the evidence misleading or confusing the trier of fact
and so forth. Given that the assessment of plus value and, hence, legal
relevance is so heavily contextual, it is difficult to see how a judicial
precedent can be of much value in another case in determining a point of
legal relevance [12]

2.2 Materiality and Facts-in-issue

The materiality of facts in a particular case is determined by the law
applicable to that case. In a criminal prosecution, it depends on the law
which defines the offence with which the accused is charged and at a civil
trial, the law which sets out the elements of the legal claim that is being
brought against the defendant [.]
Imagine that the accused is prosecuted for the crime of rape and the
alleged victim’s behaviour (fact A) increases the probability that she had
consented to have sexual intercourse with the accused (fact B). On the
probabilistic theory of relevance that we have considered, A is relevant to
B. Now suppose that the alleged victim is a minor. Under criminal law, it
does not matter whether she had consented to the sexual intercourse. If
B [13] is of no legal consequence, the court will not allow evidence of A
to be adduced for the purpose of proving B: the most obvious reason is
that it is a waste of time to receive the evidence.
Not all material facts are necessarily in dispute. Suppose the plaintiff sues
the defendant for breach of contract. Under the law of contract, to
succeed in this action, the plaintiff must prove the following three
elements: that there was a contract between the parties, that the
defendant was in breach of the contract, and that the plaintiff had
suffered loss as a result of that breach. The defendant may concede that
there was a contract and that he was in breach of it but deny that the
plaintiff had suffered any loss as a result of that breach. In such a
situation, only the last of the material facts is disputed. Following
Stephen’s terminology, a disputed material fact is called a “fact in issue”
[.]
“Relevance” is often used in the broader sense that encompasses the
concepts under discussion. Evidence is sometimes described as
“irrelevant” not for the reason that no logical inference can be drawn to
the proposition that is sought to be proved (in our example, A is strictly
speaking relevant to B) but because that proposition is not material or not
disputed (in our example, B is not material).[10] This broader usage of
the term “relevance”, though otherwise quite harmless, does not promote
conceptual clarity because it runs together different concepts[.] [14]

2.3 Admissibility

2.3.1 Admissibility and Relevance

A further condition must be satisfied for evidence to be received in legal
proceedings. There are legal rules that prohibit evidence from being
presented at a trial even though it is relevant to a factual proposition that
is material and in issue. These rules render the evidence to which they
apply “inadmissible” and require the judge to “exclude” it. Two prominent
examples of such rules of admissibility or rules of exclusion are the rule
against hearsay evidence and the rule against character evidence.
Here, again, the terminology is imprecise. Admissibility and receivability
are not clearly distinguished. It is common for irrelevant evidence, or
evidence of an immaterial fact to be described as “inadmissible”. What
this means is that the court will refuse to receive evidence if it is
irrelevant or immaterial. But, importantly, the court also excludes
evidence for reasons other than irrelevance and immateriality. For
Montrose, there is merit in restricting the concept of “inadmissibility” to
the exclusion of evidence based on those other reasons (Montrose 1954:
541–543). If evidence is rejected on the ground of irrelevance, it is, as
Thayer (1898: 515) puts it, “the rule of reason that rejects it”; if evidence
is rejected under an admissibility or exclusionary rule, the rejection is by
force of law. The concepts of admissibility and materiality should also be
kept apart. This is because admissibility or exclusionary rules serve
purposes and rationales that are distinct from the law defining the crime
or civil claim that is before the court and it is this law that determines the
materiality of facts in the dispute. [15]
Thayer (1898: 266, 530) was influential in his view that the law of
evidence has no say on logical relevance and that its main business is in
dealing with admissibility. If the evidence is logically irrelevant, it must for
that reason be excluded. If the evidence is logically relevant, it will be
received by the court unless the law—in the form of an exclusionary or
admissibility rule—requires its exclusion. In this scheme, the concept of
relevance and the concept of admissibility are distinct: indeed,
admissibility rules presuppose the relevance of the evidence to which they
apply.
Stephen appears to hold a different view, one in which the concept of
admissibility is apparently absorbed by the concept of relevance. Take, for
example, Stephen’s analysis of the rule that in general no evidence may
be adduced to prove “statements as to facts made by persons not called
as witnesses”, in short, hearsay (Stephen 1872: 122). As a general rule,
no evidence may be given of hearsay because the law prohibits it. The
question then arises as to the rationale for this prohibition. Stephen’s
answer to this question is often taken to be that hearsay is not “relevant”
and he is criticised for failing to see the difference between relevance and
admissibility (Whitworth 1881: 3; Thayer 1898: 266–268; Pollock 1876,
1899; Wigmore 1983a: §12). His critics point out that hearsay has or can
have probative value and evidence of hearsay is excluded despite or
regardless of its relevance. On the generalisation that there is no smoke
without fire, the fact that a person claimed that p in a statement made
out- of-court does or can have a bearing on the probability that p, and p
may be (logically relevant to) a material fact in the dispute.
Interestingly, Stephen seemed to have conceded as much. He
acknowledged that a policeman or a lawyer engaged in preparing a case
would be negligent if he were to shut his ears to hearsay. Hearsay is one
of those facts that are “apparently relevant but not really so” (Stephen
1872: 122; see also Stephen 1886: xi). In claiming that hearsay is
irrelevant, [16] Stephen appears to be merely stating the effect of the
law: the law requires that hearsay be treated as irrelevant. He offered a
variety of justifications for excluding hearsay evidence: its admissibility
would “present a great temptation to indolent judges to be satisfied with
second-hand reports” and “open a wide door to fraud”, with the result
that “[e]veryone would be at the mercy of people who might tell a lie, and
whose evidence could neither be tested nor contradicted” (Stephen 1872:
124–125). For his detractors, these are reasons of policy and fairness and
it disserves clarity to sneak such considerations into the concept of
relevance.
Although there is force to the criticism that Stephen had unhelpfully
conflated admissibility and relevance (understood as logical relevance),
something can perhaps be said in his defence. Exclusionary rules or rules
of admissibility—at any rate, many of them—are more accurately seen as
excluding forms of reasoning rather than prohibiting proof of certain types
of facts (McNamara 1986). This is certainly true of the hearsay rule. On
one authoritative definition of the rule (decision of the Privy Council in
Subramaniam v PP, (1956) 1 Weekly Law Reports 965), what it prohibits
is the use of a hearsay statement to prove the truth of the facts asserted
therein.[11] The objection is to the drawing of the inference that p from
X’s out-of-court statement that p where X is not available to be examined
in court. But the court will allow the evidence of X’s hearsay statement to
be admitted—it will allow proof of the statement— where the purpose of
adducing the evidence is to persuade the court that X did make the
statement and this fact is relevant for some other purpose. For instance,
it may be relevant as to the state of mind of the person hearing the
statement, and his state of mind may be material to his defence of having
acted under duress. Hence, two writers have commented that “there is no
such thing as hearsay evidence, only hearsay uses”[.]
Other admissibility rules are also more accurately seen as targeted at
forms of reasoning and not types of facts. [17] It is doubtful that
evidence of a person’s character and past behaviour can have no
probabilistic bearing on his behaviour on a particular occasion; on a
probabilistic conception of relevance, it is difficult to see why the evidence
is not relevant. Even so, there may be policy, moral or other reasons for
the law to prohibit certain uses of character evidence. In declaring a fact
as irrelevant for a particular purpose, we are not necessarily saying or
implying anything about probability. We may be expressing a normative
judgment. For policy, moral or other reasons, the law takes the position
that hearsay or the accused’s character or previous misconduct must not
be used as the premise for a particular line of reasoning. The line of
reasoning might be morally objectionable (“give a dog a bad name and
hang him for it”) or it might be unfair to permit the drawing of the
inference when the opponent was not given a fair opportunity to challenge
it (as in the hearsay situation) (Ho 2008: chs. 5, 6). If we take a
normative conception of relevance instead of a logical or probabilistic one,
it is not an abuse of language to describe inadmissible evidence as
irrelevant if what is meant is that the evidence ought not to be taken into
account in a certain way. [18]

2.3.2 Admissibility or Exclusionary Rules

On one historical account, admissibility or exclusionary rules are the
product of the jury system where citizens untrained in assessing evidence
sit as judges of fact. These rules came about because it was thought
necessary to keep away from inexperienced jurors certain types of
evidence that may mislead or be mishandled by them—for instance,
evidence to which they are likely to give too much weight or that carries
the risk of creating unfair prejudice in their minds[.] Epistemic
paternalism is supposedly at play[.]...There is doubt as to the historical
accuracy of this account; at any rate, it does not appear capable of
explaining the growth of all exclusionary rules[.]
Even if the theory is right, it does not necessarily follow that exclusionary
rules should be abolished once the jury system is removed. Judges may
be as susceptible to the same cognitive and other failings as the jury and
there may be the additional risk that judges may over-estimate their own
cognitive and intellectual abilities in their professional domain. Hence,
there remains a need for the constraints of legal rules [.] But the efficacy
of these rules in a non-jury system is questionable. The procedural reality
is that judges will have to be exposed to the evidence in order to decide
on its admissibility. Since a judge cannot realistically be expected to erase
the evidence from his mind once he has decided to exclude it, there
seems little point in excluding the evidence; we might as well let the
evidence in and allow judge to give the evidence the probative value that
it deserves[.] [19]
Bentham was a strong critic of exclusionary rules. He was much in favour
of “freedom of proof” understood as free access to information and the
absence of formal rules that restrict such access (Twining 2006: 232, n
65). The direct object of legal procedure is the “rectitude of decision”, by
which he means the correct application of substantive law to true findings
of facts. The exclusion of relevant evidence—evidence capable of casting
light on the truth—is detrimental to this end. Hence, no relevant evidence
should be excluded; the only exceptions he would allow are where the
evidence is superfluous or its production would involve preponderant
delay, expense or vexation (Bentham 1827: Book IX; Bentham 1825:
Book VII; Twining 1985: ch. 2). Bentham’s argument has been challenged
on various fronts. It is said that he overvalued the pursuit of truth,
undervalued procedural fairness and procedural rights, and placed too
much faith in officials, underestimating the risk of abuse when they are
given discretion unfettered by rules (Twining 1985: 70–71).
Even if we agree with Bentham that rectitude of decision is the aim of
legal procedure and that achieving accuracy in fact-finding is necessary to
attain this aim, it is not obvious that a rule-based approach to
admissibility will undermine this aim in the long run. Schauer has
defended exclusionary rules of evidence along a rule-consequentialist line.
Having the triers of fact follow rules on certain matters instead of allowing
them the discretion to exercise judgment on a case-by-case basis may
produce the greatest number of favourable outcomes in the aggregate. It
is in the nature of a formal rule that it has to be followed even when
doing so might not serve the background reason for the rule. If hearsay
evidence is thought to be generally unreliable, the interest of accuracy
may be better served overall to require such evidence to be excluded
without regard to its reliability in individual cases. Given the imperfection
of human reason and our suspicion about the reasoning ability of the
fact-finder, allowing decisions to be taken individually on the reliability
and admissibility of hearsay evidence might over time produce a larger
proportion of [20] misjudgements than on the rule-based approach
(Schauer 2006: 180–185; Schauer 2008). However, this argument is
based on a large assumption about the likely effects of having
exclusionary rules and not having them, and there is no strong empirical
basis for thinking that the consequences are or will be as alleged [.]
Other supporters of exclusionary rules build their arguments on a wide
range of different considerations. The literature is too vast to enter into
details. Here is a brief mention of some arguments. On one theory, some
exclusionary rules are devices that serve as incentives for lawyers to
produce the epistemically best evidence that is reasonably available
(Nance 1988, 2016: 195–201). For example, if lawyers are not allowed to
rely on second-hand (hearsay) evidence, they will be forced to seek out
better (first-hand) evidence. On another theory, exclusionary rules
allocate the risks of error. Again, consider hearsay. The problem with
allowing a party to rely on hearsay evidence is that the opponent has no
opportunity to cross-examine the original maker of the statement and is
thus deprived of an important means of attacking the reliability of the
evidence. Exclusionary rules in general insulate the party against whom
the evidence is sought to be adduced from the risks of error that the
evidence, if admitted, would have introduced. The distribution of such
risks is said to be a political decision that should not be left to the
discretion of individual fact-finders (Stein 2005; cf. Redmayne 2006 and
Nance 2007a: 154–164). It has also been argued that the hearsay rule
and the accompanying right to confront witnesses promote the public
acceptance and stability of legal verdicts. If the court relies on direct
evidence, it can claim superior access to the facts (having heard from the
horse’s mouth, so to speak) and this also reduces the risk of new
information emerging after the trial to discredit the inference that was
drawn from the hearsay evidence (the original maker of the statement
might turn up after the trial to deny the [21] truth of the statement that
was attributed to him).

3. Strength of Evidence
At the end of the trial, the fact-finder must consider all the evidence that
has been presented and reach a verdict. Although verdict deliberation is
sometimes subjected to various forms of control through legal devices
such as presumptions and corroboration rules, such control is limited and
the fact-finder is expected to exercise personal judgment in the evaluation
of evidence (Damaška 2019). Having heard or seen the evidence, the
fact- finder now has to evaluate or ‘weigh’ it in reaching the verdict.
Weight can refer to any of the following three properties of evidence: (a)
the probative value of individual items of evidence, (b) the sufficiency of
the whole body of evidence adduced at the trial in meeting the standard
of proof, or (c) the relative completeness of this body of evidence.

3.1 Probative Value of Specific Items of Evidence

…In many legal systems, if the judge finds the probative value of a
proposed item of evidence to be [22] low and substantially outweighed
by countervailing considerations, such as the risk of causing unfair
prejudice or confusion, the judge can refuse to let the jury hear or see the
evidence[.]
Probative value, as with relevance, has been explained in terms of the
likelihood ratio (for detailed examples, see Nance and Morris 2002;
Finkelstein and Levin 2003). It was noted earlier that evidence is either
relevant or not, and, on the prevailing understanding, it is relevant so
long as the likelihood ratio deviates from 1:1. But evidence can be more
or less probative depending on the value of the likelihood ratio. In our
earlier example, the probative value of a blood type match was 1.0:0.5
(or 2:1) as 50% of the suspect population had the same blood type as the
accused. But [23] suppose the blood type is less common and only 25%
of the suspect population has it. The probative value of the evidence is
now 1.0:0.25 (or 4:1). In both cases, the evidence is relevant; but the
probative value is greater in the latter than in the former scenario. It is
tempting to describe probative value as the degree of relevance but this
would be misleading as relevance in law is a binary concept.
There is a second way of thinking about probative value. On the second
view, but not on the first, the probative value of an item of evidence is
assessed contextually. The probative value of E may be low given one
state of the other evidence and substantial given a different body of other
evidence (Friedman 1986; Friedman and Park 2003; cf. Davis and Follette
2002, 2003). Where the other evidence shows that a woman had died
from falling down an escalator at a mall while she was out shopping, her
husband’s history of spousal battery is unlikely to have any probative
value in proving that he was responsible for her death. But where the
other evidence shows that the wife had died of injuries in the matrimonial
home, and the question is whether the injuries were sustained from an
accidental fall from the stairs or inflicted by the husband, the same
evidence of spousal battery will now have significant probative value.
On the second view, the probative value of an item of evidence (E) is not
measured simply by the likelihood ratio as it is on the first view. Probative
value is understood as the degree to which E increases (or decreases) the
probability of the proposition or hypothesis (H) in support of (or against)
which E is led. The probative value of E is measured by the difference
between the probability of H given E (the posterior probability) and the
probability of H absent E (the prior probability) (Friedman 1986; James
1941: 699).
Probative value of E = P(H|E) − P(H)
[24] P(H|E) (the posterior probability) is derived by applying Bayes’
theorem —that is, by multiplying the prior probability by the likelihood
ratio (see discussion in section 3.2.2 below). On the present view, while
the likelihood ratio does not itself measure the probative value of E, it is
nevertheless a crucial component in the assessment.
A major difficulty with both of the mathematical conceptions of probative
value that we have just examined is that for most evidence, obtaining the
figures necessary for computing the likelihood ratio is problematic[.]
Exceptionally, quantitative base rates data exist, as in our blood type
example. Where objective data is unavailable, the fact-finder has to draw
on background experience and knowledge to come up with subjective
values. In our blood type example, a critical factor in computing the
likelihood ratio was the percentage of the “suspect population” who had
the same blood type as the accused. “Reference class” is the general
statistical term for the role that the suspect population plays in this
analysis. How should the reference class of “suspect population” be
defined? Should we look at the population of the country as a whole or of
the town or the street where the alleged murder occurred? What if it
occurred at an international airport where most the people around are
foreign visitors? Or what if it is shown that both the accused and the
victim were at the time of the alleged murder inmates of the same
prison? Should we then take the prison population as the reference class?
The distribution of blood types may differ according to which reference
class is selected. Sceptics of mathematical modelling of probative value
emphasize that data from different reference classes will have different
explanatory power and the choice of the reference class is open to—and
should be subjected to—contextual argument and requires the exercise of
judgment; there is no a priori way of determining the correct reference
class. [25]... not least, they depend on the availability of suitable data.
Also, as Franklin stresses, while statistical methods “have advice to offer
on how courts should judge quantitative evidence”, they do so “in a way
that supplements normal intuitive legal argument rather than replacing it
by a formula” (Franklin 2010: 22).
The reference class problem is not confined to the probabilistic
assessment of the probative value of individual items of evidence. It is a
general difficulty with a mathematical approach to legal proof. In
particular, the same problem arises on a probabilistic interpretation of the
standard of proof when the court has to determine whether the standard
is met based [26] on all the evidence adduced in the case. Let it be that
the plaintiff sues Blue Bus Company to recover compensation for injuries
sustained in an accident. The plaintiff testifies, and the court believes on
the basis of his testimony, that he was run down by a recklessly driven
bus. Unfortunately, it was dark at the time and he cannot tell whether the
bus belonged to Blue Bus Company. Assume further that there is also
evidence which establishes that Blue Bus Company owns 75% of the
buses in the town where the accident occurred and the remaining 25% is
owned by Red Bus Company. No other evidence is presented. To use the
data as the basis for inferring that there is 0.75 probability that the bus
involved in the accident was owned by Blue Bus Company would seem to
privilege the reference class of “buses operating in the town” over other
possible reference classes such as “buses plying the street where the
accident occurred” or “buses operating at the time in question” (Allen and
Pardo 2007a: 109). Different reference classes may produce very
different likelihood ratios. It is crucial how the reference class is chosen
and this is ultimately a matter of argument and judgment. Any choice of
reference class (other than the class that shares every feature of the
particular incident, which is, in effect, the unique incident itself) is in
principle contestable.
Critics of the mathematization of legal proof raise this point as an
example of inherent limitations to the mathematical modelling of
probative value[.]..Suppose a man is accused of killing his wife. Evidence
is produced of his extra-marital affair. The unique probative value of the
accused’s infidelity cannot be [27] mathematically computed from
statistical base rates of infidelity and uxoricides (husbands murdering
wives). In assessing its probative value, the court should look instead at
how strongly the evidence of infidelity supports the explanation of the
material events put forward by the side adducing the evidence and how
strongly it challenges the explanation offered by the opponent. For
instance, the prosecution may be producing the evidence to buttress its
case that the accused wanted to get rid of his wife so that he could marry
his mistress, and the defence may be advancing the alternative theory
that the couple was unusual in that they condoned extra-marital affairs
and had never let it affect their loving relationship. How much probative
value the evidence of infidelity has depends on the strength of the
explanatory connections between it and the competing hypotheses, and
this is not something that can be quantified.
But the disagreement in this debate is not as wide as it might appear. The
critics concede that formal models for evaluating evidence in law may be
useful. What they object to is:
scholarship arguing ... that such models establish the correct or accurate
probative value of evidence, and thus implying that any deviations from
such models lead to inaccurate or irrational outcomes. (Allen and Pardo
2007b: 308)
On the other side, it is acknowledged that there are limits to
mathematical formalisation of evidential reasoning in law (Franklin 2012:
238–9) and that context, argument and judgment do play a role in
identifying the reference class (Nance 2007b).
3.2 Sufficiency of Evidence and the Standards of Proof

3.2.1 Mathematical Probability and the Standards of Proof

[28] The concept of weight can also apply to the total body of evidence
presented at the trial; here “weight” is commonly referred to as the
“sufficiency of evidence”. The law assigns the legal burden of proof
between parties to a dispute.… Putting this generally, a verdict will be
given in favour of the side bearing the legal burden of proof only if, having
considered all of the evidence, the fact-finder is satisfied that the
applicable standard of proof is met. The standard of proof has been given
different interpretations.
On one interpretation, the standard of proof is a probabilistic threshold. In
civil cases, the standard is the “balance of probabilities” or, as it is more
popularly called in the United States, the “preponderance of evidence”.
The plaintiff will satisfy this standard and succeed in his claim only if there
is, on all the evidence adduced in the case, more than 0.5 probability of
his claim being true. At criminal trials, the standard for a guilty verdict is
“proof beyond a reasonable doubt”. Here the probabilistic threshold is
thought to be much higher than 0.5 but courts have eschewed any
attempt at authoritative quantification. Typically, a notional value, such as
0.9 or 0.95, is assumed by writers for the sake of discussion. For the
prosecution to secure a guilty verdict, the evidence adduced at the trial
must establish the criminal charge to a degree of probability that crosses
this threshold. [29]
Kaplan was among the first to employ decision theory to develop a
framework for setting the probabilistic threshold that represents the
standard of proof. Since the attention in this area of the law tends to be
on the avoidance of errors and their undesirable consequences, he finds it
convenient to focus on disutility rather than utility. The expected disutility
of an outcome is the product of the disutility (broadly, the social costs) of
that outcome and the probability of that outcome. Only two options are
generally available to the court: in criminal cases, it must either convict or
acquit the accused and in civil cases, it has to give judgment either for
the plaintiff or for the defendant. At a criminal trial, the decision should be
made to convict where the expected disutility of a decision to acquit is
greater than the expected disutility of a decision to convict. This is so as
to minimize the expected disutilities. To put this in the form of an
equation:
P ⋅ Dag > (1 − P)Dci
P is the probability that the accused is guilty on the basis of all the
evidence adduced in the case, Dag is the disutility of acquitting a guilty
person and Dci is the disutility of convicting an innocent person. A similar
analysis applies to civil cases: the defendant should be found liable where
the expected disutility of finding him not liable when he is in fact liable
exceeds the expected disutility of finding him liable when he is in fact not
liable. On this approach, a person should be convicted of a crime only
where P is greater than:

The same formula applies in civil cases except that the two disutilities
(Dag and Dci) will have to be replaced by their civil equivalents (framed in
terms of the disutility of awarding the judgment to a plaintiff who in fact
does not deserve it and disutility of awarding the judgment to a defendant
who in fact does not deserve it). On this formula, the crucial determinant
of the standard of proof is the ratio of the two disutilities. In the civil
context, the disutility of an error in one direction is deemed equal to the
disutility of an error in the other direction. Hence, a probability of liability
of greater than 0.5 would suffice for a decision to enter judgment against
the defendant (see Redmayne 1996: 171). The situation is different at a
criminal trial. Dci, the disutility of convicting an innocent person is
considered far greater than Dag, the disutility of acquitting a guilty
person. [15] Hence, the probability threshold for a conviction should be
much higher than 0.5 (Kaplan 1968: 1071–1073; see also Cullison 1969).
An objection to this analysis is that it is incomplete. It is not enough to
compare the costs of erroneous verdicts. The utility of an accurate
conviction and the utility of an accurate acquittal should also be
considered and factored into the equation (Lillquist 2002: 108).[16] This
results in the following modification of the formula for setting the
standard of proof:
Ucg is the utility of convicting the guilty, Uag is the utility of acquitting the
guilty, Uai is the utility of acquitting the innocent and Uci the utility of
convicting the innocent.
Since the relevant utilities depend on the individual circumstances, such
as the seriousness of the crime and the severity of the punishment, the
decision-theoretic account of the standard of proof would seem, on both
[31] the simple and the modified version, to lead to the conclusion that
the probabilistic threshold should vary from case to case (Lillquist 2002;
Bartels 1981; Laudan and Saunders 2009; Ribeiro 2019). In other words,
the standard of proof should be a flexible or floating one. This view is
perceived to be problematic.
First, it falls short descriptively. The law requires the court to apply a fixed
standard of proof for all cases within the relevant category. In theory, all
criminal cases are governed by the same high standard and all civil cases
are governed by the same lower standard. That said, it is unclear whether
factfinders in reality adhere strictly to a fixed standard of proof (see
Kaplow 2012: 805–809).
The argument is better interpreted as a normative argument—as
advancing the claim about what the law ought to be and not what it is.
The standard of proof ought to vary from case to case. But this proposal
faces a second objection. For convenience, the objection will be
elaborated in the criminal setting; in principle, civil litigants have the
same two rights that we shall identify. According to Dworkin (1981),
moral harm arises as an objective moral fact when a person is
erroneously convicted of a crime. Moral harm is distinguished from the
bare harm (in the form of pain, frustration, deprivation of liberty and so
forth) that is suffered by a wrongfully convicted and punished person.
While accused persons have the right not to be convicted if innocent, they
do not have the right to the most accurate procedure possible for
ascertaining their guilt or innocence. However, they do have the right that
a certain weight or importance be attached to the risk of moral harm in
the design of procedural and evidential rules that affect the level of
accuracy. Accused persons have the further right to a consistent
weighting of the importance of moral harm and this further right stems
from their right to equal concern and respect. Dworkin’s theory carries an
implication bearing on the present debate. It is arguable that to adopt a
floating standard of proof would offend the second [32] right insofar as it
means treating accused persons differently with respect to the evaluation
of the importance of avoiding moral harm. This difference in treatment is
reflected in the different level of the risk of moral harm to which they are
exposed.
There is a third objection to a floating standard of proof. Picinali (2013)
sees fact-finding as a theoretical exercise that engages the question of
what to believe about the disputed facts. What counts as “reasonable” for
the purposes of applying the standard of proof beyond reasonable doubt
is accordingly a matter for theoretical as opposed to practical reasoning.
Briefly, theoretical reasoning is concerned with what to believe whereas
practical reasoning is about what to do. Only reasons for belief are
germane in theoretical reasoning. While considerations that bear on the
assessment of utility and disutility provide reasons for action, they are not
reasons for believing in the accused’s guilt. Decision theory cannot
therefore be used to support a variable application of the standard of
proof beyond reasonable doubt.
The third criticism of a flexible standard of proof does not directly
challenge the decision-theoretic analysis of the standard of proof. On that
analysis, it would seem that the maximisation of expected utility is the
criterion for selecting the appropriate probabilistic threshold to apply and
it plays no further role in deciding whether that threshold, once selected,
is met on the evidence adduced in the particular case. It is not
incompatible with the decision-theoretic analysis to insist that the
question of whether the selected threshold is met should be governed
wholly by epistemic considerations. However, it is arguable that what
counts as good or strong enough theoretical reason for judging, and
hence believing, that something is true is dependent on the context, such
as what is at stake in believing that it is true. More is at stake at a trial
involving the death penalty than in a case of petty shop-lifting;
accordingly, there should be stronger epistemic justification for a finding
of guilt in the first than in the second [33] case.
The premise of the third criticism is that the trier of fact has to make a
finding on a disputed factual proposition based on his belief in the
proposition. This is contentious. Beliefs are involuntary; we cannot believe
something by simply deciding to believe it. The dominant view is that
beliefs are context-independent; at any given moment, we cannot believe
something in one context and not believe it in another. On the other hand,
legal fact-finding involves choice and decision making and it is dependent
on the context; for example, evidence that is strong enough to justify a
finding of fact in a civil case may not be strong enough to justify the same
finding in a criminal case where the standard of proof is higher. It has
been argued that the fact-finder has to base his findings not on what he
believes but what he accepts (Cohen 1991, 1992: 117–125, Beltrán
2006; cf. Picinali 2013: 868–869). Belief and acceptance are propositional
attitudes: they are different attitudes that one can have in relation to a
proposition. As Cohen (1992: 4) explains:
to accept that p is to have or adopt a policy of deeming, positing or
postulating that p—i.e. of including that proposition or rule among one’s
premises for deciding what to do or think in a particular context.

3.2.2 Objections to Using Mathematical Probability to Interpret Standards

of Proof
Understanding standards of proof in terms of mathematical probabilities is
controversial. It is said to raise a number of paradoxes (Cohen 1977;
Allen 1986, 1991; Allen and Leiter 2001; Redmayne 2008). Let us return
to our [34] previous example. The defendant, Blue Bus Company, owns
75% of the buses in the town where the plaintiff was injured by a
recklessly driven bus and the remaining 25% is owned by Red Bus
Company. No other evidence is presented. Leaving aside the reference
class problem discussed above, there is a 0.75 probability that the
accident was caused by a bus owned by the defendant. On the
probabilistic interpretation of the applicable standard of proof (that is, the
balance of probabilities), the evidence should be sufficient to justify a
verdict in the plaintiff’s favour. But most lawyers would agree that the
evidence is insufficient. Another familiar hypothetical scenario is set in the
criminal context (Nesson 1979: 1192–1193). Twenty five prisoners are
exercising in a prison yard. Twenty four of them suddenly set upon a
guard and kill him. The remaining prisoner refuses to participate. We
cannot in the ensuing confusion identify the prisoner who refrained from
the attack. Subsequently, one prisoner is selected randomly and
prosecuted for the murder of the guard. Those are the only facts
presented at the trial. The applicable standard is proof beyond a
reasonable doubt. Assume that the probabilistic threshold of this standard
is 0.95. On the statistical evidence, there is a probability of 0.96 that the
defendant is criminally liable.[18] Despite the statistical probability of
liability exceeding the threshold, it is widely agreed that the defendant
must be acquitted. In both of the examples just described, why is the
evidence insufficient and what does this say about legal standards of
proof?
Various attempts have been made to find the answers (for surveys of
these attempts, see Enoch and Fisher 2015: 565–571; Redmayne 2008,
Ho 2008: 135–143, 168–170; Gardiner 2019b; section 6 of the entry on
legal probabilism). It has been argued that meeting a legal standard of
proof is not merely or fundamentally a matter of adducing evidence to
establish a mathematical probability of liability beyond a certain level.
Standards of proof should be interpreted in epistemic rather than
probabilistic terms. According to one interpretation, the evidence is
sufficient to satisfy a [35] standard of proof only if it is capable of
justifying full or outright belief in the material facts that constitute legal
liability and bare statistical evidence, as in our examples, cannot justify
such a belief. (Nelkin 2021; Smith 2018; Buchak 2014; Ho 2008: 89–99.)
On Smith’s account, the statistical evidence in our two examples fails to
justify belief in the proposition that the defendant is liable because the
evidence does not normically support that proposition. Evidence
normically supports a proposition just in case the situation in which the
evidence is true and the proposition is false is less normal, in the sense of
requiring more explanation, than the situation in which the evidence and
the proposition are both true. Where all that we have is statistical
evidence, it could just so happen that the material proposition is false (it
could just so happen that the accident-causing bus was red or that the
accused was the one who refused to join in the murder), so no further
explanation is needed where the proposition is false than where it is true
(Smith 2018).
On a different epistemic interpretation, the evidence is sufficient to meet
a legal standard of proof, and a finding of legal liability is permissible, only
if the factfinder can gain knowledge of the defendant’s liability—to be
precise, of the material facts establishing such liability—from the
evidence[.] High probability of liability alone will not suffice. On more
subtle knowledge- centered theories, the standards of proof are met only
if, on the available evidence, there is a sufficiently high probability that
the fact finder knows that the defendant is liable[.] or only if the fact
finder’s credence in the defendant’s liability exceeds the relevant legal
threshold and the credence constitutes knowledge[.] It is further claimed
that the relevant knowledge necessary for a finding of liability cannot be
obtained from statistical evidence alone According to Thomson, this is
because the [36] statistical evidence (to take our first example, the 75%
ownership of blue buses) is not causally connected with the fact sought to
be proved and cannot guarantee the truth of the relevant belief (that the
bus which caused the accident was blue). An alternative argument is that
knowledge requires the ruling out of all relevant alternatives and, to take
our prison scenario, there is no evidence that addresses the possibility
that the defendant was the one who refrained from joining in the attack
or the possibility that the defendant is less likely to be guilty than an
arbitrary prisoner in the yard. Another possible explanation for the failure
to know relies on the notion of sensitivity. The belief that the defendant is
liable is not sensitive to the truth where it is based on bare statistical
evidence; in the bus example, evidence of the market share of buses
remain the same whether it is true or not that a blue bus caused the
accident. Yet another explanation is that it is unsafe to find a person liable
on bare statistical evidence. Though safety is sometimes treated as a
condition of knowledge (in that knowledge requires a true belief that is
safe), one can treat safety as a condition for finding the defendant liable
without also taking the position that the finding must be based on
knowledge of liability. Safety is commonly understood in terms of whether
a belief formed on the same basis would be true in close possible worlds.
Roughly, a finding of liability is unsafe where it can easily be wrong in the
sense that little in the actual world needs to change for it to be wrong.
Whether the requirement of safety can explain why judgment should not
entered against the defendant in our two hypothetical cases would
depend on whether it can easily happen that the accident- [37] causing
bus was red or that the accused is innocent.
There is another paradox in the mathematical interpretation of the
standard of proof. This is the “conjunction paradox”. To succeed in a civil
claim (or a criminal prosecution), the plaintiff (or the prosecution) will
have to prove the material facts—or “elements”—that constitute the civil
claim (or criminal charge) that is before the court (see discussion of
“materiality” in section 2.2 above). Imagine a claim under the law of
negligence that rests on two elements: a breach of duty of care by the
defendant (element A) and causation of harm to the plaintiff (element B).
To win the case, the plaintiff is legally required to prove A and B. For the
sake of simplicity, let A and B be mutually independent events. Suppose
the evidence establishes A to a probability of 0.6 and B to a probability of
0.7. On the mathematical interpretation of the civil standard of proof, the
plaintiff should succeed in his claim since the probability with respect to
each of the elements exceeds 0.5. However, according to the
multiplication rule of conventional probability calculus, the probability that
A and B are both true is the product of their respective probabilities; in
this example, it is only 0.42 (obtained by multiplying 0.6 with 0.7). Thus,
the overall probability is greater that the defendant deserves to win than
that the plaintiff deserves to win, and yet the verdict is awarded in favour
of the plaintiff.
One way of avoiding the conjunction paradox is to take the position that it
should not be enough for each element to cross the probabilistic
threshold; the plaintiff (or the prosecution) should win only if the
probability of the plaintiff’s (or prosecution’s) case as a whole exceeds the
applicable probabilistic threshold. [38]...But this suggested solution is
unsatisfactory. The required level of overall probability would then turn on
how many elements the civil claim or criminal charge happens to have.
The greater the number of elements, the higher the level of probability to
which, on average, each of them must be proved. This is thought to be
arbitrary and hence objectionable. As two commentators noted, the legal
definition of theft contains more elements than that for murder. Criminal
law is not the same in all countries. We may take the following as a
convenient approximation of what the law is in some countries: murder is
(1) an act that caused the death of a person (2) that was done with the
intention of causing the death, and to constitute theft, there must be (1)
an intention to take property, (2) dishonesty in taking the property, (3)
removal of the property from the possession of another person, and (4)
lack of consent by that person. Since the offence of theft contains twice
the number of elements as compared to murder, the individual elements
for theft would have to be proved to a much higher level of probability (in
order for the probability of their conjunction to cross the overall
threshold) than the individual elements for the much more serious crime
of murder (Allen and Leiter 2001: 1504–5). This is intuitively
unacceptable.
Another proposal for resolving the conjunction paradox is move away
from thinking of the standard of proof as a quantified threshold of
absolute probability and to construe it, instead, as a probability ratio. The
fact- finder has to compare the probability of the evidence adduced at the
trial under the plaintiff’s theory of the case with the probability of the
evidence under the defendant’s theory of the case (the two need not add
to 1), and award the verdict to the side with a higher probability (Cheng
2013). One criticism of this interpretation of the standard of proof is that
it ignores, and does not provide a basis for ignoring, the margin by which
one probability exceeds the other, and the difference in probability may
vary significantly for different elements of the case (Allen and Stein 2013:
598).
There is a deeper problem with the probabilistic conception of the
standard of proof. There does not seem to be a satisfactory interpretation
of probability that suits the forensic context. The only plausible candidate
is the subjective meaning of probability according to which probability is
construed as the strength of belief. The evidence is sufficient to satisfy
the legal standard of proof on a disputed question of fact—for example, it
is sufficient to justify the positive finding of fact that the accused killed
the victim—only if the fact-finder, having considered the evidence, forms
a sufficiently strong belief that the accused killed the victim. Guidance on
how to process evidence and form beliefs can be found in a mathematical
theorem known as Bayes’ theorem; it is the method by which an ideal
rational fact-finder would revise or update his beliefs in the light of new
evidence.[19] To return to our earlier hypothetical scenario, suppose the
fact-finder initially believes the odds of the accused being guilty is 1:1
(“prior odds”) or, putting this differently, that there is a 0.5 probability of
guilt. The fact-finder then receives evidence that blood of type A was
found at the scene of the crime and that the accused has type A blood.
Fifty percent of the population has this blood type. On the Bayesian
approach, the posterior odds are calculated by multiplying the prior odds
(1:1) by the likelihood ratio (which, as we saw in section 2.1.2 above, is
2:1). The fact-finder’s belief in the odds of guilt should now be revised to
2:1; the probability of guilt is now increased to 0.67 (Lempert 1977).
The subjectivist Bayesian theory of legal fact-finding has come under
attack (see generally Amaya 2015: 82–93; Pardo 2013: 591). First, as we
already saw in section 3.1, ascertainment of the likelihood ratios is highly
problematic. Secondly, the Bayesian theory is not sensitive to the weight
of evidence which, roughly put, is the amount of evidence that is
available. [40]
Thirdly, while the Bayesian theorem offers a method for updating
probabilities in the light of new evidence, it is silent on what the initial
probability should be. In a trial setting, the initial probability cannot be set
at zero since this means certainty in the innocence of the accused. No
new evidence can then make any difference; whatever the likelihood ratio
of the evidence, multiplying it by zero (the prior probability) will still end
up with a posterior probability of zero. On the other hand, starting with an
initial probability is also problematic. This is especially so in a criminal
case. To start a trial with some probability of guilt is to have the
fact-finder harbouring some initial belief that the accused is guilty and
this is not easy to reconcile with the presumption of innocence.
Fourthly, we have thus far relied for ease of illustration on highly
simplified—and therefore unrealistic—examples. In real cases, there are
normally multiple and dependent items of evidence and the probabilities
of all possible conjunctions of these items, which are numerous, will have
to be computed. These computations are far too complex to be
undertaken by human beings (Callen 1982: 10–15). The impossibility of
complying with the Bayesian model undermines its prescriptive value.
Fifthly, according to Haack, the Bayesian theory has it the wrong way
round. What matters is not the strength of the fact-finder’s belief itself.
The standard of proof should be understood instead in terms of what it is
reasonable for the fact-finder to believe in the light of the evidence
presented, and this is a matter of the degree to which the belief is
warranted by the evidence. Evidence is legally sufficient where it warrants
the contested factual claim to the degree required by law. Whether a
factual claim is warranted by the evidence turns on how strongly the [41]
evidence supports the claim, on how independently secure the evidence
is, and on how much of the relevant evidence is available to the
fact-finder[.]
Sixthly, research in experimental psychology suggests that fact-finders do
not evaluate pieces of evidence one-by-one and in the unidirectional
manner required under the mathematical model (Amaya 2015: 114–5). A
holistic approach is taken instead where the discrete items of evidence
are integrated into large cognitive structures (variously labelled as
“mental models”, “stories”, “narratives” and “theories of the case”), and
they are assessed globally against the legal definition of the crime or civil
claim that is in dispute (Pennington and Hastie 1991, 1993; Pardo 2000).
The reasoning does not progress linearly from evidence to a conclusion; it
is bi-directional, going forward and backward: as the fact-finder’s
consideration of the evidence inclines him towards a particular verdict, his
leaning towards that conclusion will often produce a revision of his original
perception and his assessment of the evidence[.] [42]
The holistic nature of evidential reasoning as revealed by these studies
has inspired alternative theories that are of a non-mathematical nature.
One alternative, already mentioned, is the “explanatory” or “relative
plausibility” theory advanced by Allen together with Pardo and other
collaborators They contend that fact-finders do not reason in the fashion
portrayed by the Bayesian model. Instead, they engage in generating
explanations or hypotheses on the available evidence by a process of
abductive reasoning or drawing “inferences to the best explanation”, and
these competing explanations or hypotheses are compared in the light of
the evidence.[22] The comparison is not of a hypothesis with the negation
of that hypothesis, where the probability of a hypothesis is compared with
the probability of its negation. Instead, the comparison is of one
hypothesis with one or more particular alternative hypotheses as
advocated by a party or as constructed by the fact-finder himself. On this
approach, the plausibility of X, the factual account of the case that
establishes the accused’s guilt or defendant’s liability, is compared with
the plausibility of a hypothesis Y, a specific alternative account that
points to the accused’s innocence or the defendant’s non- liability, and
there may be more than one such specific alternative account.
On this theory, the evidence is sufficient to satisfy the preponderance of
proof standard when the best-available hypothesis that explains the
evidence and the underlying events include all of the elements of the
claim. Thus, in a negligence case, the best-available hypothesis would
have to include a breach of duty of care by the plaintiff and causation of
harm to the defendant as these are the elements that must be proved to
succeed in the legal claim. [43]
The relative plausibility theory itself is perceived to have a number of
shortcomings. First, the theory portrays the assessment of plausibility as
an exercise of judgment that involves employment of various criteria such
as coherence, consistency, simplicity, consilience, and more. However, the
theory is sketchy on the meaning of plausibility and the criteria for
evaluating plausibility are left largely unanalyzed.
A second criticism of the relative plausibility theory is that, despite the
purported utilisation of “inference to the best explanation” reasoning, the
verdict is not controlled by the best explanation. For instance, even if the
prosecution’s hypothesis is better than the defence’s hypothesis, neither
may be very good. In these circumstances, the court must reject the
prosecution’s hypothesis even though it is the best of alternatives (Laudan
2007). One suggested mitigation of this criticism is to place some demand
on the epistemic effort that the trier of fact must take (for example, by
being sufficiently diligent and thorough) in constructing the set of
hypotheses from which the best is to be chosen[.]
The third criticism is targeted at holistic theories of evidential reasoning in
general and not specifically at the relative plausibility theory. While it may
be descriptively true that fact-finders decide verdicts by holistic evaluation
of the plausibility of competing explanations, hypotheses, narratives or
factual theories that are generated from the evidence, such forms of
reasoning may conceal bias and prejudice that stand greater chances of
exposure under a systematic approach such as Bayesian analysis (Twining
2006: 319; Simon 2004, 2011; Griffin 2013). A hypothesis constructed by
the fact-finder may be shaped subconsciously by a prejudicial
generalisation or background belief about the accused based on a certain
[44] feature, say, his race or sexual history. Individuating this feature
and subjecting it to Bayesian scrutiny has the desirable effect of putting
the generalisation or background belief under the spotlight and forcing the
fact-finder to confront the problem of prejudice.
3.3 The Weight of Evidence as the Degree of Evidential
Completeness
A third idea of evidential weight is prompted by this insight from Keynes
(1921: 71):
As the relevant evidence at our disposal increases, the magnitude of the
probability of the argument may either decrease or increase, according as
the new knowledge strengthens the unfavourable or the favourable
evidence; but something seems to have increased in either case,—we
have a more substantial basis upon which to rest our conclusion. I
express this by saying that an accession of new evidence increases the
weight of an argument. New evidence will sometimes decrease the
probability of an argument, but it will always increase its “weight”.
This idea of evidential weight has been applied by some legal scholars in
assessing the sufficiency of evidence in satisfying legal standards of proof.
At its simplest, we may think of weight in the context of legal fact- finding
as the amount of evidence before the court. Weight is distinguishable
from probability. The weight of evidence may be high and the
mathematical probability low, as in the situation where the prosecution
adduces a great deal of evidence tending to incriminate the accused but
the defence has an unshakeable alibi (Cohen 1986: 641). Conversely, the
state of evidence adduced in a case might establish a sufficient degree of
probability—high enough to cross the supposed threshold of proof on the
mathematical conception of the standard of proof—and yet lack adequate
[45] weight. In the much-discussed gate-crasher’s paradox, the only
available evidence shows that the defendant was one of a thousand
spectators at a rodeo show and that only four hundred and ninety nine
tickets were issued. The defendant is sued by the show organiser for
gate-crashing. The mathematical probability that the defendant was a
gate-crasher is 0.501 and this meets the probabilistic threshold for civil
liability. But, according to the negation principle of mathematical
probability, there is probability of 0.499 that the defendant did pay for his
entrance. In these circumstances, it is intuitively unjust to find him liable
(Cohen 1977: 75). A possible explanation for not finding him liable is that
the evidence is too flimsy or of insufficient weight.
Proponents of the mathematical conception of the standard of proof have
stood their ground even while acknowledging that weight has a role to
play in the Bayesian analysis of probative value and the sufficiency of
evidence. If a party does not produce relevant evidence that is in his
possession, resulting in the court facing an evidential deficiency, it may
draw an adverse inference against him when computing the posterior
probability (Kaye 1986b: 667; Friedman 1997). One criticism of this
approach is that, in the absence of information about the missing
evidence, the drawing of the adverse inference is open to the objection of
arbitrariness (Nance 2008: 274). A further objection is that the
management of parties’ conduct relating to evidence preservation and
presentation should be left to judges and not to the jury. What a judge
may do to optimize evidential weight is to impose a burden of producing
evidence on a party and to make the party suffer an adverse finding of
fact if he fails to produce the evidence. This will serve as an incentive for
the party to act in a manner that promotes the interest in evidential
completeness (Nance 2008, 2010, 2016).
Cohen suggests that the standard of proof should be conceived entirely as
a matter of evidential weight which, on his theory, is a matter of the [46]
number of tests or challenges to which a factual hypothesis is subjected
to in court. He offers an account of legal fact-finding in terms of an
account of inductive probability that was inspired by the work of writers
such as Francis Bacon and J.S. Mill. Inductive probability operates
differently from the classical calculus of probability. It is based on
inductive support for the common-sense generalisation that licences the
drawing of the relevant inference. Inductive support for a generalisation is
graded according to the number of tests that it has passed, or, putting
this in another way, by the degree of its resistance to falsification by
relevant variables. The inductive probability of an argument is equal to
the reliability grade of the inductive support for the generalisation which
covers the argument.
Proof beyond reasonable doubt represents the maximum level of inductive
probability. The prosecution may try to persuade the court to infer that
the accused was guilty of burglary by producing evidence to establish that
he was found in the vicinity of the victim’s house late at night with the
stolen object on him. This inference is licensed by the generalisation that
normally if a stranger is found immediately after a burglary in possession
of the stolen object, he intentionally removed it himself. The defence may
try to defeat the inference by showing that the generalization does not
apply in the particular case, for example, by presenting evidence to show
that the accused had found the object on the street. The prosecution’s
hypothesis is now challenged or put to the test. As a counter-move, it
may produce evidence to establish that the object could not have been
lying in the street as alleged. If the generalisations on which the
prosecution’s case rest survive challenges by the defence at every
possible point, then guilt is proved beyond reasonable doubt. [47]
Cohen’s theory seems to require that each test to which a hypothesis is
put can be unequivocally and objectively resolved. But usually this is not
the case. In our example, we may not be entirely convinced that the
accused found or did not find the object on the street, and our evaluation
would involve the exercise of judgment that is no less subjective as the
sort of judgments required when applying the standard probabilistic
conception of proof[.] [48]