CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, August 1, 2022

Clermont on Evaluating Evidence Against the Standard of Proof

Kevin M. Clermont (Cornell Law School) has posted A Theory for Evaluating Evidence Against the Standard of Proof on SSRN. Here is the abstract:
A lively modern literature engages the fundamental nature of evidence and proof. Of late, this so-called New Evidence field has experienced a paradigm shift away from probabilism. This Article tries to chart where the field should now be going, in order to allow theory to catch up to where the law long ago went.

Theory should continue away from viewing the output of factfinding in terms of probability of truth, and then toward viewing it as degrees of belief that measure the extent to which each elemental fact has been fully proved. The problem with probabilism is that it conveys only randomness, while it buries the much more important factor of epistemic uncertainty. Degrees of belief can convey both random and epistemic uncertainty because they are a multivalent, nonadditive measure. In factfinding, keeping all kinds of uncertainty in mind is essential to accuracy.

This Article is intended as a reader-friendly précis of my forthcoming, more technical book entitled A General Theory of Evidence and Proof: Forming Beliefs in Truth.

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