The primary aim of this chapter is to explain the nature of evidential reasoning, the characteristic difficulties encountered, and the tools to address these difficulties. Our focus is on evidential reasoning in criminal cases. There is an extensive scholarly literature on these topics, and it is a secondary aim of the chapter to provide readers the means to find their way in historical and ongoing debates.

(1999). Francis Bacon's “VERULAMIUM” the common‐law template of the modern in english science and culture. Angelaki: Vol. 4, Judging the law, pp. 7-26.

This essay presents results about a deviation from independence measure called focused correlation . This measure explicates the formal relationship between probabilistic dependence of an evidence set and the incremental confirmation of a hypothesis, resolves a basic question underlying Peter Klein and Ted Warfield's ‘truth-conduciveness’ problem for Bayesian coherentism, and provides a qualified rebuttal to Erik Olsson's claim that there is no informative link between correlation and confirmation. The generality of the result is compared to recent programs in Bayesian epistemology (...) that attempt to link correlation and confirmation by utilizing a conditional evidential independence condition. Several properties of focused correlation are also highlighted. Introduction Correlation Measures 2.1 Standard covariance and correlation measures 2.2 The Wayne–Shogenji measure 2.3 Interpreting correlation measures 2.4 Correlation and evidential independence Focused Correlation Conclusion Appendix CiteULike Connotea Del.icio.us What's this? (shrink)

Even though tools for identifying and analyzing arguments are now in wide use in the field of argumentation studies, so far there is a paucity of resources for evaluating real arguments, aside from using deductive logic or Bayesian rules that apply to inductive arguments. In this paper it is shown that recent developments in artificial intelligence in the area of computational systems for modeling defeasible argumentation reveal a different approach that is currently making interesting progress. It is shown how these (...) systems provide the general outlines for a system of argument evaluation that can be applied to legal arguments as well as everyday conversational arguments to assist a user to evaluate an argument. (shrink)

Evidentiary propositions E 1 and E 2, each p-positively relevant to some hypothesis H, are mutually corroborating if p > p, i = 1, 2. Failures of such mutual corroboration are instances of what may be called the corroboration paradox. This paper assesses two rather different analyses of the corroboration paradox due, respectively, to John Pollock and Jonathan Cohen. Pollock invokes a particular embodiment of the principle of insufficient reason to argue that instances of the corroboration paradox are of negligible (...) probability, and that it is therefore defeasibly reasonable to assume that items of evidence positively relevant to some hypothesis are mutually corroborating. Taking a different approach, Cohen seeks to identify supplementary conditions that are sufficient to ensure that such items of evidence will be mutually corroborating, and claims to have identified conditions which account for most cases of mutual corroboration. Combining a proposed common framework for the general study of paradoxes of positive relevance with a simulation experiment, we conclude that neither Pollock’s nor Cohen’s claims stand up to detailed scrutiny. I am quite prepared to be told…”oh, that is an extreme case: it could never really happen!” Now I have observed that this answer is always given instantly, with perfect confidence, and without any examination of the proposed case. It must therefore rest on some general principle: the mental process being something like this—“I have formed a theory. This case contradicts my theory. Therefore, this is an extreme case, and would never occur in practice.”Rev. Charles L. Dodgson. (shrink)

The paper argues for a pragmatist understanding of the reasonable doubt standard in law. It builds on the idea that our dispositions to act signal the epistemic states we are in. This helps clarify the notion of a reasonable doubt and the idea of being certain beyond it. More specifically, the paper points out three major standards of proof used in legal contexts and the rationale of their distinction. It articulates the received view according to which the reasonable doubt standard (...) is superior to allegedly subjective standards as the French “intime conviction”; then it addresses what I call the “rampant critique” of the reasonable doubt standard, namely the view that, as the notion of a reasonable doubt is obscure and undetermined, the standard is irremediably subjective. The paper finally presents a pragmatist understanding and defense of the standard, building on the idea of beliefs as dispositions to act. (shrink)

Objective standards for justification or for being a reason would be desirable, but inductive skepticism tells us that they cannot be presupposed. Rather, we have to start from subjective-relative notions of justification and of being a reason. The paper lays out the strategic options we have given this dilemma. The paper explains the requirements for this subject-relative notion and how they may be satisfied. Then it discusses four quite heterogeneous ways of providing more objective standards, which combine without guaranteeing complete (...) success. (shrink)

There is something puzzling about statistical evidence. One place this manifests is in the law, where courts are reluctant to base affirmative verdicts on evidence that is purely statistical, in spite of the fact that it is perfectly capable of meeting the standards of proof enshrined in legal doctrine. After surveying some proposed explanations for this, I shall outline a new approach – one that makes use of a notion of normalcy that is distinct from the idea of statistical frequency. (...) The puzzle is not, however, merely a legal one. Our unwillingness to base beliefs on statistical evidence is by no means limited to the courtroom, and is at odds with almost every general principle that epistemologists have proposed as to how we ought to manage our beliefs. (shrink)

In this paper I respond to Marcello Di Bello’s criticisms of the ‘normic account’ of the criminal standard of proof. In so doing, I further elaborate on what the normic account predicts about certain significant legal categories of evidence, including DNA and fingerprint evidence and eyewitness identifications.

Focused correlation compares the degree of association within an evidence set to the degree of association in that evidence set given that some hypothesis is true. A difference between the confirmation lent to a hypothesis by one evidence set and the confirmation lent to that hypothesis by another evidence set is robustly tracked by a difference in focused correlations of those evidence sets on that hypothesis, provided that all the individual pieces of evidence are equally, positively relevant to that hypothesis. (...) However, that result depends on a very strong equal relevance condition on individual pieces of evidence. In this essay, we prove tracking results for focused correlation analogous to Wheeler and Scheines’s results but for cases involving unequal relevance. Our result is robust as well, and we retain conditions for bidirectional tracking between incremental confirmation measures and focused correlation. (shrink)

Coherentism maintains that coherent beliefs are more likely to be true than incoherent beliefs, and that coherent evidence provides more confirmation of a hypothesis when the evidence is made coherent by the explanation provided by that hypothesis. Although probabilistic models of credence ought to be well-suited to justifying such claims, negative results from Bayesian epistemology have suggested otherwise. In this essay we argue that the connection between coherence and confirmation should be understood as a relation mediated by the causal relationships (...) among the evidence and a hypothesis, and we offer a framework for doing so by fitting together probabilistic models of coherence, confirmation, and causation. We show that the causal structure among the evidence and hypothesis is sometimes enough to determine whether the coherence of the evidence boosts confirmation of the hypothesis, makes no difference to it, or even reduces it. We also show that, ceteris paribus, it is not the coherence of the evidence that boosts confirmation, but rather the ratio of the coherence of the evidence to the coherence of the evidence conditional on a hypothesis. (shrink)

A question, long discussed by legal scholars, has recently provoked a considerable amount of philosophical attention: ‘Is it ever appropriate to base a legal verdict on statistical evidence alone?’ Many philosophers who have considered this question reject legal reliance on bare statistics, even when the odds of error are extremely low. This paper develops a puzzle for the dominant theories concerning why we should eschew bare statistics. Namely, there seem to be compelling scenarios in which there are multiple sources of (...) incriminating statistical evidence. As we conjoin together different types of statistical evidence, it becomes increasingly incredible to suppose that a positive verdict would be impermissible. I suggest that none of the dominant views in the literature can easily accommodate such cases, and close by offering a diagnosis of my own. (shrink)

This paper examines Lockie’s theory of libertarian self-determinism in light of the question of prediction: “Can we know (or justifiably believe) how an agent will act, or is likely to act, freely?” I argue that, when Lockie's theory is taken to its full logical extent, free actions cannot be predicted to any degree of accuracy because, even if they have probabilities, these cannot be known. However, I suggest that this implication of his theory is actually advantageous, because it is able (...) to explain and justify an important feature of the practices we use to determine whether someone has acted culpably: our hostility to the use of predictive evidence. (shrink)

This paper offers an articulation and defence of the modal account of legal risk in light of a range of objections that have been proposed against this view in the recent literature. It is argued that these objections all trade on a failure to distinguish between the modal nature of risk more generally, and the application of this modal account to particular decision-making contexts, such as legal contexts, where one must rely on a restricted body of information. It is argued (...) that once the modal account of legal risk is properly understood as involving information-relative judgements about the modal closeness of the target risk event, the objections to the view are neutralized. (shrink)

In an earlier paper, I objected to certain elements of L. Jonathan Cohen's account of corroborating testimony (Olsson [2002]). In their response to my article, Bovens, Fitelson, Hartmann and Snyder ([2002]) suggest some significant improvements of the probabilistic model which I used in assessing Cohen's theses and answer some additional questions which my study raised. More problematically, they also seek to defend Cohen against my criticism. I argue, in this reply, that their attempts in this direction are unsuccessful.

Jonathan Cohen has claimed that in cases of witness agreement there is an inverse relationship between the prior probability and the posterior probability of what is being agreed: the posterior rises as the prior falls. As is demonstrated in this paper, this contention is not generally valid. In fact, in the most straightforward case exactly the opposite is true: a lower prior also means a lower posterior. This notwithstanding, there is a grain of truth to what Cohen is saying, as (...) there are special circumstances under which a thesis similar to his holds good. What characterises these circumstances is that they allow for the fact of agreement to be surprising. In making this precise, I draw on Paul Horwich's probabilistic analysis of surprise. I also consider a related claim made by Cohen concerning the effect of lowering the prior on the strength of corroboration. 1 Introduction 2 Cohen's claim 3 A counterexample 4 A weaker claim 5 A counterexample to the weaker claim 6 The grain of truth in Cohen's claim 7 Prior probability and strength of corroboration 8 Conclusion. (shrink)

This chapter contains sections titled: Highlights of Past Literature Current Work Future Work.

In this article we analyze the claim that a probabilistic interpretation of the infinite epistemic regress problem leads to a unique solution, the so called “completion” of the regress. This claim is implicitly based on the assumption that the standard Kolmogorov axioms of probability theory are suitable for describing epistemic probability. This assumption, however, has been challenged in the literature, by various authors. One of the alternatives that have been suggested to replace the Kolmogorov axioms in case of an epistemic (...) interpretation of probability, are belief functions, introduced by Shafer in 1976. We show that when one uses belief functions to describe the infinite epistemic regress problem, it is no longer the case that the solution is unique. We also argue that this complies with common sense. (shrink)

The paper offers a new understanding of induction in the empirical sciences, one which assimilates it to induction in geometry rather than to statistical inference. To make the point a system of notions, essential to logically sound induction, is defined. Notable among them are arbitrary object and particular property. A second aim of the paper is to bring to light a largely neglected set of assumptions shared by both induction and deduction in the empirical sciences. This is made possible by (...) appealing to the logic of common nouns and applying it to the logic of natural-kind terms.This strategy yields a new insight into the concept of natural kinds. While the strategy reveals deep affinity between empirical induction and deduction it also reveals two problems peculiar to induction. This helps to explain the intuition that induction is the more problematic of the two. The paper does not set out ‘to solve the problem of induction’. 1The paper has benefited from the support and critical comments of several friends: Steven Davis, Kevin Dunbar, Anil Gupta, Michael Hallett, Ray Jackendoff and Storrs McCall. Two friends, however, deserve special thanks, Michael Makkai and Gonzalo Reyes. Many of the points made in the paper, otherwise unacknowledged, are due to their generosity and patience. In fact, the paper can be seen as an application of the logic of kinds on which Gonzalo Reyes has been working for several years. (shrink)

Judges and jurors must make decisions in an environment of ignoranceand uncertainty for example by hearing statements of possibly unreliable ordishonest witnesses, assessing possibly doubtful or irrelevantevidence, and enduring attempts by the opponents to manipulate thejudge''s and the jurors'' perceptions and feelings. Three importantaspects of decision making in this environment are the quantificationof sufficient proof, the weighing of pieces of evidence, and therelevancy of evidence. This paper proposes a mathematical frameworkfor dealing with the two first aspects, namely the quantification ofproof (...) and weighing of evidence. Our approach is based on subjectivelogic, which is an extension of standard logic and probability theory,in which the notion of probability is extended by including degrees ofuncertainty. Subjective Logic is a framework for modelling humanreasoning and we show how it can be applied to legalreasoning. (shrink)

This paper aims to make explicit the methodological conditions that should be satisfied for the Bayesian model to be used as a normative model of human probability judgment. After noticing the lack of a clear definition of Bayesianism in the psychological literature and the lack of justification for using it, a classic definition of subjective Bayesianism is recalled, based on the following three criteria: an epistemic criterion, a static coherence criterion and a dynamic coherence criterion. Then it is shown that (...) the adoption of this framework has two kinds of implications. The first one regards the methodology of the experimental study of probability judgment. The Bayesian framework creates pragmatic constraints on the methodology that are linked to the interpretation of, and the belief in, the information presented, or referred to, by an experimenter in order for it to be the basis of a probability judgment by individual participants. It is shown that these constraints have not been satisfied in the past, and the question of whether they can be satisfied in principle is raised and answered negatively. The second kind of implications consists of two limitations in the scope of the Bayesian model. They regard (1) the background of revision (the Bayesian model considers only revising situations but not updating situations), and (2) the notorious case of the null priors. In both cases Lewis’ rule is an appropriate alternative to Bayes’ rule, but its use faces the same operational difficulties. (shrink)

I explore how rational belief and rational credence relate to evidence. I begin by looking at three cases where rational belief and credence seem to respond differently to evidence: cases of naked statistical evidence, lotteries, and hedged assertions. I consider an explanation for these cases, namely, that one ought not form beliefs on the basis of statistical evidence alone, and raise worries for this view. Then, I suggest another view that explains how belief and credence relate to evidence. My view (...) focuses on the possibilities that the evidence makes salient. I argue that this makes better sense of the difference between rational credence and rational belief than other accounts. (shrink)

© The Author 2018. Published by Oxford University Press on behalf of The Analysis Trust. All rights reserved. For Permissions, please email: [email protected] article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model...Philosophy of law was until recently dominated by abstract investigation into the nature of law, a pursuit known as ‘general jurisprudence’. In this way, it resembled a branch of metaphysics or mid-twentieth century philosophy of mind, seeking to uncover the essential properties (...) of a general and multiply realizable phenomenon. Today, philosophers study law with a sharper focus, and with a more specialized lens – that of ethicists, for example, or epistemologists, or philosophers of action.That is not to say there has been a drop in groundbreaking work in general jurisprudence (see, for... (shrink)

A generation before Beardsley, legal scholar John Henry Wigmore invented a scheme for representing arguments in a tree diagram, aimed to help advocates analyze the proof of facts at trial. In this essay, I describe Wigmore's "Chart Method" and trace its origin and influence. Wigmore, I argue, contributes to contemporary theory in two ways. His rhetorical approach to diagramming provides a novel perspective on problems about the theory of reasoning, premise adequacy, and dialectical obligations. Further, he advances a novel solution (...) to the problem of assessing argument quality by representing the strength of argument in meeting objections. (shrink)

Corroborative evidence may be understood as having two epistemic effects: a primary effect by which it offers direct evidence for some claim, and a secondary effect by which it bolsters the appraised probative, or evidential, value of some other piece of evidence for that claim. This paper argues that the bolstering effect of corroborative evidence is epistemically legitimate because corroboration provides a reason to count the belief based on the initial evidence as sensitive to, and safe from, defeat in a (...) way that it was not previously recognized to be. Discovering that our initial evidence tracks the truth in a way we previously did not recognize provides a reason to positively reappraise the probative value of that evidence. The final section of the paper relates the proposed sensitivity- and safety-based account of corroboration to an explanation-based account. (shrink)

We argue that Cohen’s concept of inductive or ampliative probability facilitates proper explication of sufficient strength for non-demonstrative arguments conforming to the Toulmin model. The data and claims of such arguments are singular statements. We may epistemically classify the warrants of such arguments as empirical (either physical or personal), institutional, or evaluative. Backing evidence and rebutting considerations vary with the epistemic type of warrant, but in each case the notion of ampliative probability for arguments with warrants of that type can (...) be characterized. We may then use ampliative probability to define sufficient strength and related notions for Toulmin arguments. (shrink)

Smith argues that, unlike other forms of evidence, naked statistical evidence fails to satisfy normic support. This is his solution to the puzzles of statistical evidence in legal proof. This paper focuses on Smith’s claim that DNA evidence in cold-hit cases does not satisfy normic support. I argue that if this claim is correct, virtually no other form of evidence used at trial can satisfy normic support. This is troublesome. I discuss a few ways in which Smith can respond.

Suppose one hundred prisoners are in a yard under the supervision of a guard, and at some point, ninety-nine of them collectively kill the guard. If, after the fact, a prisoner is picked at random and tried, the probability of his guilt is 99%. But despite the high probability, the statistical chances, by themselves, seem insufficient to justify a conviction. The question is why. Two arguments are offered. The first, decision-theoretic argument shows that a conviction solely based on the statistics (...) in the prisoner scenario is unacceptable so long as the goal of expected utility maximization is combined with fairness constraints. The second, risk-based argument shows that a conviction solely based on the statistics in the prisoner scenario lets the risk of mistaken conviction surge potentially too high. The same, by contrast, cannot be said of convictions solely based on DNA evidence or eyewitness testimony. A noteworthy feature of the two arguments in the paper is that they are not confined to criminal trials and can in fact be extended to civil trials. (shrink)

There are currently two robust traditions in philosophy dealing with doxastic attitudes: the tradition that is concerned primarily with all-or-nothing belief, and the tradition that is concerned primarily with degree of belief or credence. This paper concerns the relationship between belief and credence for a rational agent, and is directed at those who may have hoped that the notion of belief can either be reduced to credence or eliminated altogether when characterizing the norms governing ideally rational agents. It presents a (...) puzzle which lends support to two theses. First, that there is no formal reduction of a rational agent’s beliefs to her credences, because belief and credence are each responsive to different features of a body of evidence. Second, that if our traditional understanding of our practices of holding each other responsible is correct, then belief has a distinctive role to play, even for ideally rational agents, that cannot be played by credence. The question of which avenues remain for the credence-only theorist is considered. (shrink)

Martin Smith has recently proposed, in this journal, a novel and intriguing approach to puzzles and paradoxes in evidence law arising from the evidential standard of the Preponderance of the Evidence. According to Smith, the relation of normic support provides us with an elegant solution to those puzzles. In this paper I develop a counterexample to Smith’s approach and argue that normic support can neither account for our reluctance to base affirmative verdicts on bare statistical evidence nor resolve the pertinent (...) paradoxes. Normic support is, as a consequence, not a successful epistemic anti-luck condition. (shrink)

Recent attempts to resolve the Paradox of the Gatecrasher rest on a now familiar distinction between individual and bare statistical evidence. This paper investigates two such approaches, the causal approach to individual evidence and a recently influential (and award-winning) modal account that explicates individual evidence in terms of Nozick's notion of sensitivity. This paper offers counterexamples to both approaches, explicates a problem concerning necessary truths for the sensitivity account, and argues that either view is implausibly committed to the impossibility of (...) no-fault wrongful convictions. The paper finally concludes that the distinction between individual and bare statistical evidence cannot be maintained in terms of causation or sensitivity. We have to look elsewhere for a solution of the Paradox of the Gatecrasher. (shrink)

In this paper, we look at reasoning with evidence and facts in criminal cases. We show how this reasoning may be analysed in a dialectical way by means of critical questions that point to typical sources of doubt. We discuss critical questions about the evidential arguments adduced, about the narrative accounts of the facts considered, and about the way in which the arguments and narratives are connected in an analysis. Our treatment shows how two different types of knowledge, represented as (...) schemes, play a role in reasoning with evidence: argumentation schemes and story schemes. (shrink)

The primary aim of this paper is to defend the Lockean View—the view that a belief is epistemically justified iff it is highly probable—against a new family of objections. According to these objections, broadly speaking, the Lockean View ought to be abandoned because it is incompatible with, or difficult to square with, our judgments surrounding certain legal cases. I distinguish and explore three different versions of these objections—The Conviction Argument, the Argument from Assertion and Practical Reasoning, and the Comparative Probabilities (...) Argument—but argue that none of them are successful. I also present some very general reasons for being pessimistic about the overall strategy of using legal considerations to evaluate epistemic theories; as we will see, there are good reasons to think that many of the considerations relevant to legal theorizing are ultimately irrelevant to epistemic theorizing. (shrink)

Even if two testimonies in a criminal trial are independent, they are not necessarily more trustworthy than one. But if they are independent in the sense that they are screened off from one another by the crime, then two testimonies raise the probability of guilt above the level that one testimony alone could achieve. In fact this screening-off condition can be weakened without changing the conclusion. It is however only a sufficient, not a necessary condition for concluding that two witnesses (...) are better than one. We will discuss two different conditions, each of them necessary as well as sufficient, and we conclude that one of them is slightly better than the other. (shrink)

Our typology is based on two ground adequacy factors, one logical and one epistemic. Logically, the step from premises to conclusion may be conclusive or only ceteris paribus. Epistemically, warrants may be backed a priori or a posteriori. Hence there are four types of arguments: conclusive a priori, defeasible a priori, defeasible a posteriori, and prima facie conclusive a posteriori. We shall give an example of each and compare our scheme with other typologies.

L. J. Cohen has presented an understanding of appraising argument strength which applies to a variety of types of defeasible reasoning. This method can be used to explicate how a body of information may back a warrant and to rank different bodies of evidence on strength of backing. We shall argue that this method allows backing warrants objectively, whether they are inductive warrants backed by observation or moral warrants backed in part a priori. The method also suggests where arguments employing (...) these warrants may be vulnerable to bias bias but need not be infected by it. (shrink)

Varios teóricos del derecho han propuesto el uso de umbrales o estándares de prueba más flexibles y más finamente discriminados. En la medicina es común utilizar estándares que poseen estas características en los procedimientos diagnósticos y en los exámenes médicos. Esta ponencia ofrece un marco probabilístico para establecer estándares de prueba múltiples en cualquier disciplina. La tesis principal es que la evidencia es un concepto umbral con respecto a la probabilidad. Múltiples umbrales pueden ser establecidos en un marco de intervalos (...) de probabilidad para la hipótesis que está siendo puesta a prueba, los cuales reflejan los diferentes grados de apoyo que la evidencia le provee a la hipótesis. Examinando los mecanismos utilizados para establecer los umbrales en medicina, sugiero una manera para establecer umbrales múltiples de prueba en derecho de una manera no arbitraria. (shrink)

First, ranking functions are argued to be superior to AGM belief revision theory in two crucial respects. Second, it is shown how ranking functions are uniquely reflected in iterated belief change. More precisely, conditions on threefold contractions are specified which suffice for representing contractions by a ranking function uniquely up to multiplication by a positive integer. Thus, an important advantage AGM theory seemed to have over ranking functions proves to be spurious.