Judicial Proof Research Articles

Less probabilism and more about explanationism

According to Allen and Pardo, ‘relative plausibility’ is the best explanation of judicial proof; and the process to identify a best explanation would be, in short, holistic and comparative. My work is a plea for clarification of some items that would constitute their theory, before I (or anyone) give a holistic explanation of them and compare their account with alternatives. I raise three issues: the epistemological relevance of the empirical data used, the kind of holism argued and the fact-finder’s cognitive capacities role in their account.

On understanding of proof in English and American law

This research paper is devoted to explication of understanding of proof in English and American law by means of study of its evolution and current condition. To get this aim the comparative analysis of few similar fragments from the Black’s law dictionary is completed.
 It is concluded, firstly, that concept of judicial proof grasps both process of presentation of legal evidence and its effects – conclusion, supported by system of the evidence, and belief to this conclusion, induced in minds of relevant persons.
 Secondly, cluster of (concepts and relevant) terms, by which proof in English and American law is (realized and) expressed, includes, among others, «truth», «proof» and «evidence», «to prove» and «to evidence», «burden of proof», «degree of proof», «standard of proof», «standard of proof beyond reasonable doubt», «standard of proof by preponderance of the evidence», «standard of proof by clear and convincing evidence», «legality», «admissibility», as well as «belief», «conviction», «to convince» and «to persuade».
 Thirdly, this cluster had been shaped and develops further – in addition to natural space and time – in at least three dimensions: logical, legal, and rhetorical. If during the late XIX – the first half of the XX century in this cluster were prevailing that was laying in logical and legal dimensions, then since the middle of XX century there is an expansion of rhetorical content through, at least partially, extrusion of the logical.
 Fourthly, on this way the concept of judicial proof has lost – as necessary components of its content – immanent signs of the logical proof, namely, truth of the premises-evidence and necessary logical connection between system of the evidence and conclusion. Concept of standard of proof has undergone significant change: it is divided into three subordinate concepts, usage of which depends on situation. And even those of these subordinate concepts, which correspond to criminal cases and include the strongest requirements, do not require truth or absolute certainty of the conclusion, agreeing only on absence of reasonable doubt that by nature is subjective and practically never avoid some dependence on rhetorical influence.
 Finally, the history of understanding and expression of legal proof shows that real legal proof goes more and more away from its analog in logic.

Case Illustrations of the Shortage of Evidence in Judicial Proof

Case Illustrations of the Shortage of Evidence in Judicial Proof

The ‘mirror of evidence’ and the plausibility of judicial proof

In the process of judicial proof, the court has to make findings of fact concerning events that happened in the past. But the triers of fact have no direct knowledge of the past events. Therefore, the triers can only find the truth by means of the ‘mirror of evidence’, which inevitably differs from the original facts of the case. It is the truth reconstructed in the trier’s mind, and only a product of thought. The ‘mirror of evidence’ doctrine explains that what the fact-finder could find is only a plausible account of the truth. As the evidence-based information cannot be entirely achieved, the facts reconstructed under the ‘mirror of evidence’ doctrine seem like ‘flowers in a mirror’. The judicial proof process is mostly deemed to be a probabilistic reasoning process. But its deepest foundation is the plausibility approach. The plausibility approach properly explains judicial proof better than the probability explanation. Compared with the western countries’ undergoing evolvement of the judicial proof theory from probability to plausibility, Chinese scholars are fighting against the statutory determination of evidence doctrine. The research on probability and plausibility will provide significant enlightenment in China in terms of rejecting the traditional theory of pursuing absolute certainty in judicial proof. We hope that by progressively renewing the understanding of judicial proof, the plausibility of judicial proof can be recognised and applied gradually in the judicial practice in China.

The Mystery of Freedom and Neurolaw

In the case of Steward Mach. Co. v. Davis, Judge Benjamin Nathan Cardozo said that “Till now the law has been guided by a robust common sense which assumes the freedom of the will as a working hypothesis in the solution of its problems”. This hypothesis, which has previously been defended almost wholly within the confines of philosophical reflections on human responsibility, now seems to be undergoing a new wave of considerations. This is because neuroscience has been brought to bear in court proceedings in order to challenge the existence of human free will, in cases of both civil and criminal law. In the media, to a greater or lesser degree, various specialists have published the results of all kinds of experiments along with diagrams and graphs, technical advice and new machines to back up their claims. Currently, the use of some of these techniques in court and their lack of sustainability in many situations has, in turn, been emphasized, especially in the context of judicial proof (and reasonable doubt). In this sense, we can say that the issue of free will has been considered, but not always clearly, on three different levels: as a problem of description, of substance or of prescription. At the descriptive level is the question of what exactly we mean when we talk about free will. On the substantive level is the question of whether or not human beings actually possess this quality called free will. And finally, on the prescriptive level is the question of what we do with this knowledge. In this article, we offer an analysis of the problematic relationships between these three levels, beginning with a critical look at certain descriptive positions. In the end, it is suggested that these isolated descriptions, whether in the field of neuroscience, or philosophy, have led to an impasse whose effect is that the assertion that freedom in human behaviour is an illusion, and free will, a great mystery. As a possible way out, we present three modifications to the debate in order to extend its intelligibility beyond the boundaries of the legal profession.

La prueba estadística ante los tribunales internacionales

Actualmente en el ámbito legislativo, jurisprudencial, doctrinal, científico y académico, se aborda con frecuencia la importancia del tema probatorio, así que el objetivo de este proyecto de investigación es un rompimiento a los esquemas que existen en esta materia, fundamentado en el concepto de tutela judicial efectiva y el derecho a la prueba, iniciando de esta forma un estudio con referentes como la Corte Suprema de Estados Unidos de América y el Tribunal Europeo de Derechos Humanos, enfocándose en el “Caso Ostrava”, donde se probó una discriminación indirecta de seria dificultad probatoria, usando evidencias estadísticas. Además se revisan antecedentes del Código Modelo de Procesos Colectivos para Iberoamérica y de la ley Colombiana 472 de 1998, que contemplan usar estadísticas con fines probatorios, lo que permitirá identificarla como evidencia adecuada para la protección de poblaciones vulnerables y en condición de discriminación, ante la carencia de medios probatorios que avalen la necesidad de garantía y tutela de su situación. Defendiendo así la tesis de la estadística descriptiva como medio de prueba en hechos colectivos con seria dificultad probatoria y por tanto llegar a proponer su regulación sustancial propia para procesos ante tribunales internacionales y nacionales. Luego, un catálogo probatorio sujeto solo a medios de prueba tradicionales contrasta con la evolución del Derecho en el “mundo moderno”

أصل البراءة بين الإعلان العالمي لحقوق الإنسان و دستور دولة الإمارات العربية المتحدة

حقوق الانسان | أصل البراءة | الإعلان العالمي لحقوق الإنسان | الدستور | المحاكمة العادلة | المحاكمة الجنائية | عبء الاثبات | اليقين القضائية | المواثيق والصكوك الدولية |Human Rights | Presumption of Innocence| Universal Declaration of Human Rights |Constitution | Fair Trial | Criminal Trial | Burden of Proof | Judicial Proof| International conventions

A constituição do perito psicólogo em varas de família à luz da análise institucional de discurso

O processo judicial impõe ao conflito familiar uma forma triangular, constituída de duas partes litigantes que demandam a decisão de um terceiro, o juiz. A análise institucional do discurso, por meio de suas concepções de discurso, de sujeito, de instituição e de transferência, contribui para melhor compreensão do lugar do perito-psicólogo na cena processual configurada pela instituição judiciária e para um debate mais consistente sobre os diversos fatores implicados em suas ações. Por meio dela, podemos compreender como se constitui o perito psicólogo a partir da triangulação configurada no processo e a importância da análise da transferência processual. A leitura crítica dos autos é o primeiro passo dessa análise, e contribui para posicionar o perito em relação à demanda da instituição. A entrevista, que coloca o perito em contato direto com os litigantes, evidencia a relação de exterioridade que, não obstante demandado pelo processo, o saber psicológico mantém em relação ao Direito. Expectativas e afetos, bem como possíveis efeitos subjetivos da relação com o perito, devem ser considerados. O laudo é o momento em que o perito psicólogo toma a palavra no processo judicial e tem um caráter interventivo. A perícia, como prova judicial, afirma-se em uma certa vontade de verdade característica da instituição jurídica e, ao mesmo tempo, na intenção do perito de, como coadjuvante da cena processual, nela produzir efeitos singulares. É importante que se reconheça que o que se produz na perícia judicial não é a Verdade, mas uma verdade relativa, a atribuição de um sentido possível ao conflito configurado no processo.

The Economics of Judicial Proof (L’Économie De La Preuve Judiciaire)

This article develops a simple model using the economist’s toolkit to analyze the mechanism of judicial proof. The survey focuses on the notions of burden of proof, legal presumptions, standard of proof, on legal procedure and on the judge’s role during the proceedings. The rules of proof are analyzed from the point of view of litigation costs, judicial error and incentives for socially efficient behavior.

Recent trends in evidence law in China and the new evidence scholarship

This paper reviews the history and status quo of evidence theory in China and analyses its gradual shift from a pluralistic evidence law to a model informed by scientific evidence scholarship. It compares fundamental distinctions on evidence and judicial proof between the contemporary evidence theories of China and those in Anglo-American law. The paper reveals that no matter what the evidence system is, the common method of discovering truth plays an important role in the modernization of evidence theory as such theory moves towards a comprehensive evidence scholarship. By shedding light on the theoretical framework of a comprehensive evidence scholarship and the increasing use of scientific ideas in evidence law, our theoretical perspective shows that the framework of a comprehensive evidence scholarship consists of four interdependent and overlapping components.

Is Judicial Proof of Facts a Form of Scientific Explanation? A Preliminary Investigation of 'Clinical' Legal Method

This article examines the relationship between judicial proof of facts and positivistic explanation in the natural and social sciences. Although these two forms of factual inquiry share evident similarities, it is argued that, on closer analysis, legal fact-finding is not even a proximate model of scientific explanation. Judicial proof more closely resembles clinical deliberations, such as those encountered in a medical context, than classical scientific method. Comparison with clinical practices should therefore promote understanding and serve as a basis for further research, critical appraisal and practical improvement of the processes of judicial proof.

Is Judicial Proof of Facts a Form of Scientific Explanation? A Preliminary Investigation of ‘Clinical’ Legal Method

This article examines the relationship between judicial proof of facts and positivistic explanation in the natural and social sciences. Although these two forms of factual inquiry share evident similarities, it is argued that, on closer analysis, legal fact-finding is not even a proximate model of scientific explanation. Judicial proof more closely resembles clinical deliberations, such as those encountered in a medical context, than classical scientific method. Comparison with clinical practices should therefore promote understanding and serve as a basis for further research, critical appraisal and practical improvement of the processes of judicial proof.

La prueba de la intención y la explicación de la acción

This article approaches the problem of attributing intentions to others, trying to relate that issue to, on the one hand, the philosophical problem of the explanation of human actions and, on the other, the procedural-law problem of the proof of criminal intent. Two kinds of conceptions are distinguished from each other, depending on whether they take up or not a cognitivist stance towards the validity of such attributions. The article supports the cognitivist conception, and proposes an outline for reasoning, appropriate for judicial proof of intention, that is based on a Minimal Rationality Principle: the point is to show the connection between intention and rationality, and to suggest that this connection can be used to prove intention.

LEGAL EVIDENCE SCHOLARSHIP MEETS ARTIFICIAL INTELLIGENCE

The Dynamics of Judicial Proof: Computation, Logic, and Common Sense, edited by Marilyn MacCrimmon and Peter Tillers. (Studies in Fuzziness and Soft Computing, 94.) Heidelberg and New York: Physica...

Book Review: The Dynamics of Judicial Proof. Computation, Logic, and Common Sense

Book Review: The Dynamics of Judicial Proof. Computation, Logic, and Common Sense

Rationality and scepticism in judicial proof: Some signposts

Rationality and scepticism in judicial proof: Some signposts

The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts

The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts

Scientific and Laboratory Methods of Judicial Proof

Scientific and Laboratory Methods of Judicial Proof

Problems of Proof in Distinguishing Suicide from Accident

ALTHOUGH the duty of determining whether a death was suicidal or accidental may arise under a wide variety of circumstances,' this problem falls most frequently upon those courts and juries concerned in the litigation of life and accident insurance contracts. It is here that the refinements of trial practice have developed a colorful conflict between forms of judicial proof, with antiquated presumptions and even superstitions stubbornly resistant to the onslaughts of scientific proof. In many cases the contest is decided, not by the strength of either litigant, but by the weakness of that party who has the final duty of coming forward with evidence under the forum's current concept of the meaning of burden of proof and the procedural or evidential value of certain presumptions. One entering the lists in any such encounter, well-equipped as he may be with weapons fashioned by science and tempered with familiar investigatory and trial techniques, should also know the historical and legal background of the field where he is to do battle. For the strategist armed with a bare presumption may unhorse his antagonist with that lance alone.2

The Science of Judicial Proof

The Science of Judicial Proof