Thin empirics
| Published date | 01 April 2019 |
| Author | Dan Simon |
| Date | 01 April 2019 |
| DOI | 10.1177/1365712718815350 |
| Subject Matter | Articles |
Article
Thin empirics
Dan Simon
USC Gould School of Law and Department of Psychology, Los Angeles, USA
Abstract
In the Target Article Relative Plausibility and Its Critics, Ron Allen and Michael Pardo set out to
make the empirical claim that Relative Plausibility provides the best account of juridical proof.
While I tend to agree with this conclusion, the article suffers from notable weaknesses. Allen
and Pardo do not define a unit of analysis, they offer no testable hypotheses, and they present
no data–all of which render the empirical claim befuddling. The empirical claim cannot be
salvaged by the recruitment of the Story Model. For all its brilliance, the Story Model provides
too narrow a foundation to sustain a general model of legal fact-finding. Allen and Pardo’s
reliance on holistic processing stands on sounder scientific grounds, but the casual referencing
cannot amount to empirical proof. More importantly, Allen and Pardo refrain from reckoning
with the implications of holism, and thus ignore both the promise and perils of the cognitive
process they espouse. The experimental paradigm of Coherence Based Reasoning reveals a
number of such implications. Notably, holism cannot deliver the objectivity and accuracy that
Allen and Pardo seem to ascribe to it. Moreover, holistic processing entails a distortion of the
evidence, which could lead to dismissing evidence that would otherwise raise a valid doubt, and
inflate a hesitant fact-finder’s confidence up to a firm conviction in the defendant’s guilt. Holism
also entails vast interconnectivity among the evidence items, which can trigger non-normative
inferences and enable extra-evidential information to alter the fact-finder’s perception of
correctly-admitted evidence.
Keywords
evidence, Relative Plausibility, Holistic processing, Coherence Based Reasoning, Story Model
This comment starts on a high note. In the symposium’s target article, Ron Allen and Michael Pardo set
out to explore the fundamental features of legal fact-finding. Specifically, they compare the erstwhile
dominant probabilistic account, by which evidentiary strength is determined by serially updating the
probabilistic values of the constituent pieces of evidence, against the author’s preferred relative plau-
sibility account, by which evidentiary strength derives from its explanatory power. Notably, the authors
anchor their argument in empirical grounds: ‘The primary disagreement, in other words, is empirical:
what is the best explanation of juridical proof’ (Allen and Pardo, 2019: 7). Given that evidence
Corresponding author:
Dan Simon, USC Gould School of Law and Department of Psychology, Los Angeles, CA 90089-0071, USA.
E-mail: dsimon@law.usc.edu
The International Journalof
Evidence & Proof
2019, Vol. 23(1-2) 82–89
ªThe Author(s) 2019
Article reuse guidelines:
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DOI: 10.1177/1365712718815350
journals.sagepub.com/home/epj
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