Foundations of Evidence Law

Stein, Alex

doi:10.1093/acprof:oso/9780198257363.001.0001

Cited by 142 publications

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“…As Stein observes,' Adjudicative fact-¢nding is about probabilities, not about certainties'. 152 In other words, it is impossible to establish de¢nitively exactly what happened, often quite a long time in the past, as regards the events which gave rise to the conviction of the accused. 153 I would argue that the Commission (and I) clearly adhered to a 'rationalist model' of adjudication, although such a term was never used in our debates; 154 we assumed that there is an objective truth out there although we could never be sure that we had reconstructed it accurately.…”

Section: Discussionmentioning

confidence: 99%

Straddling Two Worlds: Reflections of a Retired Criminal Cases Review Commissioner

Duff

2009

Modern Law Review

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In this paper, I draw upon the ‘systems theory’ approach to miscarriages of justice (adopted by Nobles and Schiff) to reflect upon my experience as a member of the Scottish Criminal Cases Review Commission. I demonstrate how the Commission manages the tensions between the rather different ‘legal’ and ‘lay’ worlds which it inhabits. More particularly, I argue that the Commission, while heavily constrained by the law and a legal world view, is more independent of the legal ‘system’ than some commentators would suggest. I substantiate my arguments through describing some of the debates that took place within the Scottish Commission and analysing in depth the judgements of the Scottish appeal court in some of the cases referred to it by the Commission. Much of what I say is applicable in varying degrees to the English Commission and to the current debate in England as to what constitutes a ‘miscarriage of justice’.

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Section: Discussionmentioning

confidence: 99%

Straddling Two Worlds: Reflections of a Retired Criminal Cases Review Commissioner

Duff

2009

Modern Law Review

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“…At the other extreme, there are those who promote a broader revision of that image of evidence law, moving decisively towards a "non-Benthamian" or "non-Thayerian" approach and assuming that not only the standard of proof but also other classes of rules of evidence -rules of exclusion, of distribution of the burden of proof, of assessment, etc.-can be justified by reference to the goal of the adequate distribution of the risk of error. This is the thesis developed by Stein in his book Foundations of Evidence Law (Stein 2005), where he sustains that the main purpose of evidence law is not to facilitate the discovery of truth but to allocate the risk of error under uncertainty. One of its main arguments is that uncertainty, risk of error and the matter of its just apportionment do not relate only to the final decision on the ultimate facts of the case, whose determination is a condition for the assignment of responsibilities and entitlements (Stein 2005: 104 ff.).…”

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confidence: 91%

“…This is the thesis developed by Stein in his book Foundations of Evidence Law (Stein 2005), where he sustains that the main purpose of evidence law is not to facilitate the discovery of truth but to allocate the risk of error under uncertainty. One of its main arguments is that uncertainty, risk of error and the matter of its just apportionment do not relate only to the final decision on the ultimate facts of the case, whose determination is a condition for the assignment of responsibilities and entitlements (Stein 2005: 104 ff.). These problems are also at play with regard to intermediate allegations, such as those concerning the credibility or reliability of a piece of evidence, whose decision represents a step analytically prior to the assessment of its probative force.…”

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confidence: 91%

Legal evidence theory: are we all “rationalists” now?

Accatino¹

2020

revus

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“…Importantly, the theory does not speak to the question of how such odds are to be determined. In this it reflects the fact that the law -in both Anglo-American and Continental courts -generally does not instruct factfinders in any great detail about how they are to go about assessing the weight of the evidence, a principle known as "free evaluation of evidence" (Stein 2005, 108-16). 4 Several amplifications of this model are useful here.…”

Section: -W E I G H T a N D T H E B U R D E N O F P E R S Ua S I O Nmentioning

confidence: 99%

The Weights of Evidence

Nance¹

2008

Episteme

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Dale A. Nance it will always increase its "weight." . . . [W]eight, to speak metaphorically, measures the sum of the favourable and unfavourable evidence, probability measures the difference (Keynes 1921, 71, 77).Keynes's point readily generalizes to any theory about the convincing force of evidence, whether or not articulated in terms of probabilities and, if so, whether or not based on the particular "logical" theory of probability that Keynes endorsed. 1 Weight in the first sense is the degree to which a rational decision-maker is convinced of the truth of a proposition as compared to some competing hypothesis (which could be simply that the proposition is false). It is a function of the extent to which available evidence interlocks to form a sound explanatory account favoring the proposition over the competing hypothesis (Haack 1993, ch. 4). But this degree of weight can be based on a relatively thin mass of evidence or a relatively rich one, the difference between which concerns weight in the second sense. Weight in the latter sense depends on the relative completeness of evidence, the extent to which the evidence addresses the important inferential questions that are raised by the competing hypotheses, including questions of the reliability of the items of evidence considered (Stein 2005, 91-106). Again, an increase in weight in the second sense can increase, decrease, or leave unchanged the weight of the evidence in the first sense.An abstract example will add precision. From a baseline of given evidence with regard to a proposition and a competing hypothesis, consider the effect of conducting a test for which a positive result supports the proposition and a negative result supports the competing hypothesis. Obtaining some result (without regard to its value) is what increases weight in the Keynesian sense, but it has an indeterminate effect on convincing force. Conversely, which value is obtained (positive or negative) is what affects convincing force, but it has no effect on Keynesian weight. Notice that Keynesian weight is subject to the decision-maker's control in a sense that convincing force is not. Within practical limits, Keynesian weight can be chosen, provided the decision-maker has the capacity to cause such tests to be conducted, whereas for a given level of Keynesian weight, convincing force can only be assessed (assuming of course that the decision-maker does not independently control the test result).These two dimensions of evidence are fundamental to decision-making under conditions of uncertainty. Someone contemplating action faces two decisions that correspond to these two senses of weight. When a certain action is desirable if and only if some proposition is true, then one's choice depends on the convincing force of the available evidence regarding its truth. (For example, the truth or falsity of the proposition might affect the expected total utility of the action.) But that decision can be displaced by a second: the decision whether to decide about the contemplated act based on the ava...

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Foundations of Evidence Law

Cited by 142 publications

References 0 publications

Straddling Two Worlds: Reflections of a Retired Criminal Cases Review Commissioner

Straddling Two Worlds: Reflections of a Retired Criminal Cases Review Commissioner

Legal evidence theory: are we all “rationalists” now?

The Weights of Evidence

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