Reconceptualizing the Burden of Proof
Edward K. Cheng
Vanderbilt Law School
June 19, 2012
Yale Law Journal, Forthcoming
The burden of proof is conventionally described as an absolute probability threshold – for example, the preponderance standard is commonly equated to anything greater than 0.5. In this Essay, I argue that this characterization of the burden of proof is wrong. Rather than focus on an absolute threshold, the Essay reconceptualizes the preponderance standard as a probability ratio, and I show how doing so eliminates many of the classical problems associated with probabilistic theories of evidence. Using probability ratios eliminates the so-called Conjunction Paradox, and developing the ratio tests under a Bayesian perspective further explains the Blue Bus problem and other puzzles surrounding statistical evidence. By harmonizing probabilistic theories of proof with recent critiques advocating for abductive models (inference to the best explanation), the Essay hopes the bridge a gap in current evidence scholarship.
Number of Pages in PDF File: 19
Keywords: burden of proof, preponderance, statistical evidence, hypothesis testing, probability, Bayesian, conjunction paradox, blue bus
Date posted: June 19, 2012
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