Can there be a burden of the best explanation?

Abstract

In this article I address a foundational question in evidence law: how should judges and jurors reason with evidence? According to a widely accepted approach, legal fact-finding should involve a determination of whether each cause of action is proven to a specific probability. In most civil cases, the party carrying the burden of persuasion is said to need to persuade triers that the facts she needs to prevail are “more likely than not” true. The problem is that this approach is both a descriptively and normatively inadequate account of reasoning with evidence in law. It does not offer a plausible picture of how people in general, and legal fact-finders in particular, reason with evidence. And it turns out that if we try to do what the approach tells us, we end up with absurd results. Faced with these difficulties, a group of evidence scholars has proposed an alternative. According to them, legal fact-finding should involve a determination of which hypothesis best explains the admitted evidence, rather than whether each cause of action is proven to a specific probability. My main contributions in this article are twofold. First, I elaborate on the many descriptive, normative and explanatory considerations in support of an explanation-based approach to standards. Second, I offer novel replies to pressing objections against that same approach.

Relevance, probative value, and explanatory considerations

“…We can build upon these objections to try to develop a revised formulation of relevancy that is both compatible with an explanationist approach and FRE 401. Here is one suggestion: a piece of evidence is legally relevant if it increases or decreases the relative plausibility of a given evidentiary hypothesis (see Ribeiro, 2018). Another way to articulate the same idea: evidence is relevant (and therefore should be admitted) if it makes an evidentiary hypothesis a better or worse explanation.…”

“…Moreover, the idea that probability approaches give more precise formulations of standards because it associates numerical thresholds with specific standards is illusory. The relevant literature is filled with discussions regarding the problems of formulating standards in terms of degrees of subjective confidence (see Ribeiro, 2018). These issues include the difficulty individuals have articulating their precise levels of confidence, as well as the mistake of prioritizing subjective confidence over relations of evidential support.…”

“… 6. For a further discussion on the limitation of probability-based approaches to explain probative value, see Ribeiro (2018). …”

Rebooting the new evidence scholarship

“… 4. Professor Allen (2008: 327) admits that his sense of ‘best explanation’ may not be what philosophers mean by the term, but ‘the central point is the explanation-based nature of juridical proof’. Ribeiro (2018) proposes a different approach to inference to the best explanation. …”