Document Type

Working Paper

Publication Date

12-11-2018

SSRN Discipline

Legal Scholarship Network; Criminal Law & Procedure eJournals; Law School Research Papers - Legal Studies; Litigation, Procedure & Dispute Resolution eJournals; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Criminal Justice Research Network; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Law, Brain & Behavior eJournals; Political Science Network; CJRN Subject Matter eJournals

Abstract

For several decades a variety of paradoxes have fascinated and frustrated legal scholars and courts discussing evidence procedure and legal proof These paradoxes concern issues such as statistical evidence burdens and standards of proof and rules for jury verdicts As with other types of paradoxes the paradoxes of legal proof raise fundamental issues and assumptions In the legal context the issues and assumptions are not merely of theoretical interest they also have significant practical implications at trial and indeed throughout the processes of civil and criminal litigation At the same time there remains very little agreement about any of the paradoxes and the issues they raise remain highly contested brbrThis Article explores the different types of legalproof paradoxes and the connections between them In analyzing the structure of the paradoxes the Article makes three contributions First it explains the practical significance of the paradoxes and why they raise fundamental issues for evidence law and for civil and criminal procedure Second it reveals the necessary connections between the different types of paradoxes and the ways in which one type of paradox has implications for the others These unexplored connections help to explain why individual paradoxes have resisted consensus and continue to prompt discussion and disagreement"”the paradoxes are too often treated as isolated problems to be "solved" without appreciating how the underlying issues relate to issues raised by the other paradoxes Third the analysis clarifies the primary source of confusion for each type of paradox namely the popular but mistaken assumption that standards of proof are probabilistic thresholds Abandoning this spurious assumption provides a number of salutary theoretical and practical consequences including greater clarity of the legal issues underlying the paradoxes a better explanation of legal doctrine and an improved understanding of the manifold litigation issues that depend on the legalproof process

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