Epistemology, Psychology, and Standards of Proof: An Essay on Risinger’s ‘Surprise’ Theory

21 Pages Posted: 7 Feb 2018

See all articles by Michael S. Pardo

Michael S. Pardo

University of Alabama School of Law

Date Written: 2018


This paper, prepared for a symposium honoring the work of Michael Risinger, examines Risinger’s theory of “estimative surprise” for explaining legal standards of proof. The paper first situates the theory in the set of psychological and epistemological considerations that underlie proof standards, and it argues that the theory is aimed at explaining the psychological rather than the epistemological component of such standards. Focusing on the criminal standard of proof “beyond a reasonable doubt,” the paper then discusses two epistemic considerations that may fit with and supplement Risinger’s theory: epistemic safety and explanatory inferences. Finally, the paper illustrates the connections between surprise, safety, and explanations with detailed discussions of two cases in which defendants challenged the constitutional sufficiency of the evidence supporting their convictions.

Keywords: Evidence, Standards of Proof, Beyond a Reasonable Doubt, Probability, Surprise, Emotion, Psychology, Epistemology, Epistemic Safety, Abduction, Inference to the Best Explanation, Sufficiency of the Evidence, Jackson v. Virginia

Suggested Citation

Pardo, Michael S., Epistemology, Psychology, and Standards of Proof: An Essay on Risinger’s ‘Surprise’ Theory (2018). Seton Hall Law Review, Vol. 48, 2018; U of Alabama Legal Studies Research Paper No. 3119092. Available at SSRN: https://ssrn.com/abstract=3119092

Michael S. Pardo (Contact Author)

University of Alabama School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

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