On the Limitations of Unitary Models of the Proof Process

Abstract

This invited response considers a recent paper by Professors Ronald Allen and Michael Pardo, which defends their own “explanatory” theory of the proof process and critiques three other papers that employ quantified conceptions of uncertainty. The authors maintain that a successful theory of this kind should correspond to the way that jurors actually reason, to the structure of American trials, and to typical jury instructions. They also demand that such a theory should be normatively defensible. Unfortunately, any model that can bridge the gap between these divergent grounds must be a vague approximation to any one of them. Even worse, blurring these lines will impede our ability to identify and evaluate potential reforms to our trial process.

Keywords: Evidence, Bayesian, Probabilistic, Explanatory, Inference to the Best Explanation, Fact-Finding, Judges, Juries, Trials