Death of Paradox: The Killer Logic Beneath the Standards of Proof

Kevin M. Clermont, Cornell Law School


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The prevailing but contested view of proof standards is that factfinders should determine facts by probabilistic reasoning. Given imperfect evidence, they should ask themselves what they think the chances are that the burdened party would be right if the truth were to become known; they then compare those chances to the applicable standard of proof.

I contend that for understanding the standards of proof, the modern versions of logic — in particular, fuzzy logic and belief functions — work better than classical probability. This modern logic suggests that factfinders view evidence of an imprecisely perceived and described reality to form a fuzzy degree of belief in a fact’s existence; they then apply the standard of proof in accordance with the theory of belief functions, by comparing their belief in a fact’s existence to their belief in its negation.

This understanding explains how the standard of proof actually works in the law world. It gives a superior mental image of the factfinders’ task, conforms more closely to what we know of people’s cognition, and captures better what the law says its standards are and how it manipulates them. One virtue of this conceptualization is that it is not a radically new view. Another virtue is that it nevertheless manages to resolve some stubborn problems of proof, including the infamous conjunction paradox.