Evidence, Risk, and Proof Paradoxes: Pessimism about the Epistemic Project *
| Author | Giada Fratantonio |
| DOI | 10.1177/13657127211035831 |
| Published date | 01 October 2021 |
| Date | 01 October 2021 |
| Subject Matter | Articles |
Evidence, Risk, and Proof
Paradoxes: Pessimism about
the Epistemic Project*
Giada Fratantonio
University of Edinburgh, UK
Abstract
Why can testimony alone be enough for findings of liability? Why statistical evidence alone can’t?
These questions underpin the ‘Proof Paradox’. Many epistemologists have attempted to explain
this paradox from a purely epistemic perspective. I call it the ‘Epistemic Project’.Inthispaper,I
take a step back from this recent trend. Stemming from considerations about the nature and role
of standards of proof, I define three requirements that any successful account in line with the
Epistemic Project should meet. I then consider three recent epistemic accounts on which the stand-
ard is met when the evidence rules out modal risk (Pritchard 2018), normic risk (Ebert et al., 2020),
or relevant alternatives (Gardiner 2019 2020). I argue that none of these accounts meets all the
requirements. Fina lly, I offer re asons to be pessimistic about the prospects of having a successful epi-
stemic explanation of the paradox. I suggest the discussion on the proof paradox would benefitfrom
undergoing a ‘value-turn’.
Keywords
Epistemology, evidence-law, legal risk, modal risk, normic risk, proof paradoxes, relevant
alternatives
*I have presented parts of this paper in 2019 and 2020 at the Legal Philosophy Workshop at the Surrey Centre for Law and
Philosophy, at the Responsibility Knowledge and Belief Workshop hosted by the ERC-funded Roots of Responsibility
Project at UCL, at the Spring Workshop hosted by the ERC-funded Competence and Success in Epistemology and Beyond
Project at the University of Helsinki, at Maastricht school of Law, and at the Edinburgh Legal Theory Group. I am grateful to
everyone who gave me feedback on those occasions and, in particular, to Aness Webster and Costanza Porro who gave responses
to my talk in Surrey and UCL. Further thanks to Dylan Balfour, Dan Baras, Daniel Drucker, Philip Ebert, Antonella Frasca
Caccia, Jaakko Hirvelä, Maria Lasonen-Aarnio, Lilith Newton, Angie O’Sullivan, Petronella Randell, Xington Wei and Di
Yang for useful discussion on this paper. I am also very grateful to Antony Duff, Claire Field, Lucas Miotto, Dario Mortini
and Martin Smith for written comments on previous drafts of this paper. Thanks also to twoanonymous referees for useful sug-
gestions on how to improve this paper. Finally, special thanks to Martin Smith for countless momentsof discussions on evidence,
normic support, and proof paradoxes. The work for this paper was supported by the European Research Council (European
Union’s Horizon 2020 research and innovation program, 758539) and the Arts and Humanities Research Council (‘Varieties
of Risk,’AH/T002638/1).
Corresponding author:
Giada Fratantonio, Department of Philosophy, The University of Edinburgh School of Philosophy Psychology and Language
Sciences, Dugald Stewart Building, 3 Charles St, Edinburgh, Midlothian, UK.
E-mail: giada.fratantonio@ed.ac.uk
Original Research Article
The International Journal of
Evidence & Proof
2021, Vol. 25(4) 307–325
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/13657127211035831
journals.sagepub.com/home/epj
Introduction
According to a traditional interpretation of the civil standard of proof, i.e., preponderance of evidence, the
standard of proof is met when the available evidence makes it more likely than not that the defendant is
liable. But consider the following two cases:
BLUE BUS Mr Brown is run over by a bus on Montgomery Street; 90% of
the buses travelling on this street are owned by the Blue Bus
Company, and 10% by the Red Bus Company. Mr Brown,
however, couldn’t see the colour of the bus. He decides to
sue the Blue Bus Company. However, given the only evidence
available is statistical evidence, the Blue Bus Company is not
and should not be found liable.
1
BLUE BUS TESTIMONY Mr Brown is run over by a bus on Montgomery Street. He
couldn’t see which bus hit him. However, a bystander testifies
that she saw a blue bus hitting Mr Brown. No further evidence
is presented against the reliability of the person testifying. The
expected reliability of the eyewitness testimony is 70%. Given
eyewitness testimony is the only evidence available, the Blue
Bus Company is and should be found liable.
2
In both cases, it’s more likely than not that a Blue Bus hit Mr Brown. And yet, while it seems wrong to
impose liability on the basis of numbers alone (as in BLUE BUS), there seems nothing controversial in
finding the Blue Bus Company liable on the basis of testimony alone (provided the testimony has passed
cross-examination and that there’s no evidence against her reliability or sincerity)
3
(as in BLUE BUS
TESTIMONY). But, as specified in BLUE BUS TESTIMONY, the estimated reliability of an eyewitness
testimony is way lower than 90%. This is known as the ‘Proof Paradox’(e.g. Enoch et al., 2012;
Redmayne 2008). Given its similarities with notorious epistemic paradoxes, many philosophers have
tried to solve this paradox from a purely epistemic perspective. By offering ‘epistemic accounts’of
the proof paradox, they’ve identified a non-probabilistic ‘epistemic quality’that: (i) non-individualised
evidence lacks (e.g. paradigmatic cases of statistical evidence like base-rates); individualised evidence
has (e.g. paradigmatic cases of testimony); and that should be required for meeting the different standards
of proof. I call this the Epistemic Project.
This paper doesn’t aim to solve the Proof Paradox. Instead, after clarifying the nature and scope of the
Epistemic Project, it identifies three requirements that every epistemic account should meet: a Value, a
Functionalist, and a Feasibility Requirement. The first follows from the aim of the Epistemic Project
itself; the other two stem from considerations about the role standards of proof play in managing legal
risk. In the next section, I consider three recent epistemic accounts which tackle the proof paradox by
considering the notion and distribution of legal risk. On these accounts, managing legal risk doesn’t
require minimising error. It requires ruling out modal risk (Pritchard, 2016, 2018), normic risk (Ebert
et al., 2020) or all the relevant alternatives to the litigated claim (Gardiner, 2019, 2020). Crucially, I
argue that they all struggle to meet these requirements. Finally, I provide reasons to believe other
1. Redmayne (2008). This is based on the real case Smith v Rapid Transit Inc., 317 Mass. 469, 470, 58 N.E 2d 754, 755 (1945). One
might question whether the cases are really analogous (cf Spottswood forthcoming). Another case generally discussed in this
literature is United States v. Shonubi, 895 F. Supp. 460 (E.D.N.Y. 1995).
2. E.g., Smith (2016: section 1).
3. Henceforth, I’ll assume this caveat when talking about a verdict based on testimony ‘alone’.
308 The International Journal of Evidence & Proof 25(4)
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