On the limitations of a unitary model of the proof process

Abstract

In defense of their “explanatory” theory of the proof process, Professors Ronald Allen and Michael Pardo maintain that a successful theory of this kind should correspond to the way that jurors actually reason, to the structure of American trials, and to typical jury instructions. They also demand that such a theory should be normatively defensible. This response suggests that using a single theory to cover such disparate ground obscures more than it clarifies, given the important gaps between psychological, doctrinal, and normative aspects of the fact-finding process.

Clarifying relative plausibility: A rejoinder

“…Fourth, and finally, several commentaries raise normative issues of various sorts (see Brennan-Marquez, 2019; Ho, 2019; Kolflaath, 2019; Spottswood, 2019). Some of these discussions take a prescriptive perspective, some an aspirational one, and others are more critical.…”

“… 15. Recognising the problems with these two options, two commentaries suggest the possibility of imposing external constraints on subjective credences. See Wittlin (2019); Spottswood (2019). We note that such constraints would include or would depend upon explanatory considerations, which are precisely the considerations courts already employ in examining the reasonableness of party explanations in light of the evidence.…”

One small step towards a metatheory of evidence and proof

“…17 Nevertheless, the extent to which Allen and Pardo rely on jury instructions and various facets of legal doctrine suggest, their use of Pennington and Hastie aside, that their empirical research project presupposes the falsity of the Legal Realist hypotheses, and thus presupposes that one can explain what actually goes on at trials by close scrutiny of the formal legal doctrine, including the rules of evidence, that seeks to constitute, organise and regulate the trial process. 18 But this, as Mark Spottswood notes in his contribution to his Symposium (Spottswood, 2019), may be a more extravagant presupposition than Allen and Pardo suppose, and may require more in the way of empirical 'proof' than they seem willing to offer. 19 Alternatively, we might understand their project as seeking to explain the legal doctrine of evidence and proof, leaving the degree of fit between that doctrine and the actual practice of lawyers, judges and jurors for other times or other researchers.…”

Rebooting the new evidence scholarship

“… 6. Professors Di Bello (2019a: 163–164), Spottswood (2019: 79), Sullivan (2019: 100–101) and Wittlin (2019: 189) stress the compatibility of probabilism and relative plausibility. Analogously, Professor Cheng (2013: 1258) downplays the contrast between probabilism and the story model. …”