Finding Facts Fairly in Roberts and Zuckerman's Criminal Evidence

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This book review focuses on the fact-finding aspect of Roberts and Zuckerman, Criminal Evidence, a student text examining the law of evidence in England and Wales through the lens of the criminal trial. Roberts and Zuckerman "take facts seriously," in the intellectual tradition of prominent evidence scholars such as John Henry Wigmore and William Twining. They set out in an accessible fashion the four major theories of probabilistic reasoning: the classical doctrine of chances; statistical or frequentist reasoning; Baconian probability theory; and Bayesian probability. Noting that forensic reasoning must almost invariably be inductive, they discuss, with useful examples, how probability calculations can be based on statistical data or on common sense generalizations, which may be influenced by the psycho-social characteristics of the fact finder. While the authors discuss possible biases in the fact-finding process, and are aware of the emerging human rights/constitutional context for their subject, their approach is more attentive to rationality than to how the law can contribute to non-discriminatory fact-finding for groups who experience, or feel, a relative lack of legal or social credibility. It is important for people who are distinctively vulnerable, for example to wrongful conviction linked to membership in racialized or otherwise stigmatized groups, that discriminatory fact-finding be taken very seriously. While a general legal method, incorporating human rights standards, for analysing inferences would be ideal in terms of enhancing the legitimacy of forensic fact-finding, it may be that the law, and academic exposition of it, can only develop in a piece-meal fashion. The book makes an impressive contribution to that development.