On the limitations of a unitary model of the proof process
| Author | Mark Spottswood |
| DOI | 10.1177/1365712718815341 |
| Published date | 01 April 2019 |
| Date | 01 April 2019 |
| Subject Matter | Articles |
Article
On the limitations of a unitary
model of the proof process
Mark Spottswood
Florida State University College of Law, Florida, USA
Abstract
In defense of their “explanatory” theory of the proof process, Professors Ronald Allen and
Michael Pardo maintain that a successful theory of this kind should correspond to the way that
jurors actually reason, to the structure of American trials, and to typical jury instructions. They
also demand that such a theory should be normatively defensible. This response suggests that
using a single theory to cover such disparate ground obscures more than it clarifies, given the
important gaps between psychological, doctrinal, and normative aspects of the fact-finding
process.
Keywords
proof, evidence, fact-finding, judges, juries, Bayesian, probabilistic, explanatory, abductive
Introduction
Professors Ronald Allen and Michael Pardo have spent many years pointing out potential problems with
probabilistic models of juridical reasoning. Their latest entry in this line is wide-ranging, both defending
their own ‘explanatory’ theory of the proof process and critiquing three other papers that employ
quantified conceptions of uncertainty (see generally Allen and Pardo, 2019 : 13-14, 17–18). The authors
maintain that a successful theory of this kind should correspond to the way that jurors actually reason, to
the structure of American trials and to typical jury instructions (Allen and Pardo, 2019: 11, 17–18). They
also demand that such a theory should be normatively defensible (Allen and Pa rdo, 2019: 11–12).
Unfortunately, any model that can bridge the gap between these divergent grounds must be a vague
approximation to any one of them. Even worse, blurring these lines will impede our ability to identify
and evaluate potential reforms to our trial process.
The various functions that evidential models may serve
Let us begin by considering the kinds of questions that evidential models might help us answer. Many
theorists describe their models as ‘descriptive’, but that formulation contains an important ambiguity.
We might be interested in giving a psychological account of the ways that jurors actually reason.
Corresponding author:
Mark Spottswood, Florida State University College of Law, Florida, FL 32301, USA.
E-mail: spottswood@law.fsu.edu
The International Journalof
Evidence & Proof
2019, Vol. 23(1-2) 75–81
ªThe Author(s) 2019
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DOI: 10.1177/1365712718815341
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