Clarifying the Burden of Persuasion: What Bayesian Decision Rules Do and Do Not Do

International Journal of Evidence and Proof, Vol. 3, No. 1, pp. 1-28, 1999

33 Pages Posted: 14 Dec 2015

See all articles by David H. Kaye

David H. Kaye

PSU - Penn State Law (University Park); ASU - College of Law & School of Life Sciences

Date Written: 1999

Abstract

This article articulates and analyses the assumptions and reasoning behind the decision-theoretic explication of the burden of persuasion. In doing so, it responds to Professor Ronald J. Allen's claim that the “the various proofs that employing the civil burden of persuasion of a preponderance of the evidence will minimize or optimize errors ... are all false as general proofs” because “[t]hey neglected base rates and the accuracy of probability assessments of liability ... .” I show that this criticism suffers from a failure to distinguish between expected and actual errors. A proof that a given decision rule minimizes the expected value of a prescribed loss function remains true for all possible base rates. To establish this elementary point, the article presents one such proof and a few numerical examples that illustrate the sense in which the more-probable-than-not standard is optimal. This exercise clarifies both the premises and conclusions of the decision-theoretic analysis of the civil burden of persuasion. Describing the mathematical reasoning carefully should lay to rest common misconceptions about the properties of such rules and helps indicate how the evidentiary analysis fits into a broader framework of economic and legal analysis.

Keywords: evidence, burden of persuasion, burden of proof, decision theory, base rates, more probable than not, loss functions, utility

JEL Classification: D81

Suggested Citation

Kaye, David H., Clarifying the Burden of Persuasion: What Bayesian Decision Rules Do and Do Not Do (1999). International Journal of Evidence and Proof, Vol. 3, No. 1, pp. 1-28, 1999, Available at SSRN: https://ssrn.com/abstract=2702990

David H. Kaye (Contact Author)

PSU - Penn State Law (University Park)

Lewis Katz Building
University Park, PA 16802
United States

HOME PAGE: http://www.personal.psu.edu/dhk3/index.htm

ASU - College of Law & School of Life Sciences ( email )

111 E Taylor St.
Phoenix, AZ 85004
United States

HOME PAGE: http://www.personal.psu.edu/dhk3/index.htm

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