Decision theory, relative plausibility and the criminal standard of proof

Résumé 0

The evolution of the understanding of evidence-based proof and decision processes in the law, especially criminal law, and standards of proof in this area, has a longstanding and controversial history. Competing accounts cause the legal scholarship to engage in critical and thoughtful exchanges. Some of the divergent views reflect different methodological perspectives similarly recognized in other fields, such as applied psychology and economy, and the broader interdisciplinary research fields of judgment and decision-making, system analysis and decision science. One such methodological perspective asserts that accounts of juridical proof should provide a description and explanation of how the legal system actually works as a whole. Other—more mathematical and analytical accounts—concentrate on how, ideally, legal decision-making under uncertainty ought to be made in order be considered sensible. This paper focuses on the relative plausibility (RP) account advocated by Professors Allen and Pardo as an example of the former perspective. Its logical structure and argumentative implications are analysed using elements of decision theory, which is the prime representative of the latter, more mathematical approach to legal proof. Using formal diagrammatic schemes to depict the structural relationships between the core elements of the two accounts, it is demonstrated in what sense they can be considered logically related and congruent. The demonstration shows that the principal disagreements among the proponents of the two examined theories derive from differences in (1) the criteria used to judge the adequacy of competing accounts of legal decision-making, and (2) the level of formalization of the bases of decisions in each candidate account. This structural analysis supports the view that adherence to one or the other of the examined perspectives does not imply a contradiction, but reflects the coverage of different aspects of the same overall decision architecture. Using decision-theoretic notions, our analyses also provide a way to explain RP decisions through an explicit criterion, thus providing a reply to the recurrent critique that RP theory lacks specific means to justify its decisional framework.