Plausibility and probability in juridical proof
| Author | Marcello Di Bello |
| DOI | 10.1177/1365712718815355 |
| Published date | 01 April 2019 |
| Date | 01 April 2019 |
Article
Plausibility and probability
in juridical proof
Marcello Di Bello
Department of Philosophy, Herbert H. Lehman College, CUNY, USA
Abstract
This note discusses three issues that Allen and Pardo believe to be especially problematic for a
probabilistic interpretation of standards of proof: (1) the subjectivity of probability assign-
ments; (2) the conjunction paradox; and (3) the non-comparative nature of probabilistic
standards. I offer a reading of probabilistic standards that avoids these criticisms.
Keywords
evidence, Probability, Plausibility, Standard of Proof
Allen and Pardo in this (2019) and previous work have defended a plausibility-based theory of juridical
proof and have levelled many criticisms against the competing probability-based theory. I focus on three
issues that they believe to be especially problematic for the probabilistic theory: (1) the subjectivity of
probability assignments; (2) the conjunction paradox; and (3) the non-comparative nature of probabil-
istic standards. I offer a reading of probabilistic standards that avoids these criticisms. My remarks are
sympathetic toward the plausib ility-based theory, but also sug gest that when the probability-b ased
theory is suitably formulated, it can capture many of the insights of the plausibility-based theory.
Preliminarily, it is instructive to formulate different possible rules of decision based on plausibility
and probability. For reasons of space, the discussion focuses on civil cases. The relative plausibility of
competing hypotheses (or explanations, in Allen and Pardo’s terminology) serves to formulate
plausibility-based decision rules. In a civil case, the rule reads:
[Pl] If, given the evidence, the hypothesis Hp put forward by the plaintiff is more plausible than the hypoth-
esis Hd put forward by the defence, then the fact-finders should find for the plaintiff; otherwise, they should
find for the defendant.
This rule is comparative and holistic. It assesses the relative plausibility of the plaintiff’s and defendant’s
hypotheses considered in their entirety.
A probability-based theory gives rise to a family of rules depending on whether the decision rule is
atomistic or holistic, fixed or comparative. In a civil case, a holistic and fixed (i.e. non-comparative)
probability-based rule reads:
Corresponding author:
Marcello Di Bello, Herbert H. Lehman College, CUNY, 250 Bedford Park Blvd W, Bronx, NY 10468, USA.
E-mail: marcello.dibello@lehman.cuny.edu
The International Journalof
Evidence & Proof
2019, Vol. 23(1-2) 161–167
ªThe Author(s) 2019
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DOI: 10.1177/1365712718815355
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