How plausible is the relative plausibility theory of proof?
| DOI | 10.1177/1365712718813783 |
| Date | 01 April 2019 |
| Published date | 01 April 2019 |
| Subject Matter | Articles |
Article
How plausible is the relative
plausibility theory of proof?
Ho Hock Lai
National University of Singapore, Singapore
Abstract
This response to Allen and Pardo focuses mainly on questioning the comparative nature of
juridical proof under their relative plausibility theory.
Keywords
evidence, Standards of Proof, Relative Plausibility
Introduction
There are competing theori es of evidential reasoning i n law. Some writers argue that it is mainly
atomistic and probabilistic; others believe that it is primarily holistic and explanatory. Allen and Pardo
belong to the second camp. ‘Relative plausibility and its critics’ is the latest work in their sustained
efforts over the years to advance and defend a the ory of the latter variety. My main interest is in
understanding what the Relative Plausibility Theory is about and not in what Allen and Pardo claim
is wrong with the probabilistic account. I will follow them in concentrating on what their theory has to
say about the burdens of proof.
Briefly, the contention is that fact-finders do not reason in the fashion portrayed by the Bayesian
model. Instead, they engage in generating explanations for, or hypotheses from, the evidence adduced at
the trial by a process of abductive reasoning or drawing inferences to the best explanation, and these
competing explanations or hypotheses are compared in the light of the evidence. The comparison is not
of a hypothesis with the negation of that hypothesis, where the probability of a hypothesis is compared
with the probability of its negation. Instead, the comparison is of one hypothesis with one or more
specific alternative hypotheses as advocated by a party or as independently constructed by the fact-
finder. On this approach, the plausibility of hypothesis X, the factual account of the case that establishes
the defendant’s criminal guilt or civil liability, is compared with the plausibility of a hypothesis Y, an
alternative account that is consistent with the opponent’s innocence or non-liability, and there may be
more than one such alternative account.
Standards of proof are conceived as ‘explanatory thresholds’. The standard of proof beyond reason-
able doubt ‘is met when there is a plausible explanation consistent with guilt and no plausible explana-
tion consistent with innocence’. To satisfy the preponderance standard, it is enough for ‘the party with
Corresponding author:
Ho Hock Lai, National University of Singapore, Faculty of Law, Eu Tong Sen Building, 469G Bukit Timah Road, 259776, Singapore.
E-mail: lawhohl@nus.edu.sg
The International Journalof
Evidence & Proof
2019, Vol. 23(1-2) 191–197
ªThe Author(s) 2018
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DOI: 10.1177/1365712718813783
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