Relative plausibility and a prescriptive theory of evidence assessment

DOI10.1177/1365712718815013
Date01 April 2019
Published date01 April 2019
Subject MatterArticles
Article
Relative plausibility
and a prescriptive theory
of evidence assessment
Eivind Kolflaath
University of Bergen, Norway
Abstract
While the theory of relative plausibility is presented by Allen and Pardo (2019) as a descriptive
theory of the proof process, this commentary discusses their theory as a possible starting point
for a prescriptive theory of evidence assessment. Generally, naturalness and simplicity are
necessary for the success of such a theory. The theory of relative plausibility is very promising
in this respect, as its key concept is the straightforward and intuitive notion of explanation,
according to which an explanation is an answer to a “why” question. Still, both the explanatory
and the comparative dimensions of relative plausibility are in need of elaboration if one wants
to give advice on evidence assessment in terms of Allen and Pardo’s framework. For one thing,
it is necessary to examine the epistemological status of the various explanatory criteria
regarding their potential as guides to truth or likelihood. Only epistemic (i.e., truth-conductive)
criteria should be included in recommendations to fact-finders. Moreover, given the author’s
interpretation of the ‘beyond any reasonable doubt’ standard, it is unclear what the com-
parative dimension amounts to in criminal trials. At least a comparison of the kind involved in
the author’s account of civil trials standards is absent in their interpretation of BARD. If the
comparative dimension of relative plausibility is relevant at all in criminal trials, it must be
clarified what is to be compared.
Keywords
evidence assessment, relative plausibility, explanation, standard of proof
I. Preliminaries: Background and motivation
This commentary on Allen and Pardo’s extensive article will concentrate on the authors’ presentation
(2019: 14–31) of their own theory. Unlike them, I will discuss the theory of relative plausibility mainly
as a possible starting point for a prescriptive theory of evidence assessment. Generally, I tend to think of
descriptive theories of evidence not as the end but rather as a step toward a theory that provides explicit
Corresponding author:
Eivind Kolflaath, Faculty of Law, University of Bergen, P.O. Box 7806, 5020 Bergen, Norway.
E-mail: eivind.kolflaath@uib.no
The International Journalof
Evidence & Proof
2019, Vol. 23(1-2) 121–127
ªThe Author(s) 2019
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1365712718815013
journals.sagepub.com/home/epj

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