Leveraging Surprise: What Standards of Proof Imply that We Want from Jurors, and What We Should Say to Them to Get It

30 Pages Posted: 20 Sep 2018

Date Written: October 20, 2017

Abstract

This paper develops and defends the proposition that when humans evaluate evidence and determine what they believe in regard to facts, the primary, though usually implicit, operator in those determinations is, or at least ought to be, the fundamental emotion of surprise. It further asserts that this relationship between belief and surprise, at least in regard to anything with a defensible claim to the label “fact,” is one of entailment, or very nearly so. Finally, the paper shows that degrees of surprise can be relatively easily described and understood ordinally, and that asking questions about potential surprise is a much more fruitful way of determining and norming degrees of human belief in regard to facts, including those of jurors, than the hypothetical betting experiments favored by some, most notably, by neo-Bayesians seeking a way to derive cardinal numbers to incorporate into applications of Bayes’s rule.

Keywords: Evidence, standards of proof, probability, surprise

JEL Classification: COO, C11

Suggested Citation

Risinger, D. Michael, Leveraging Surprise: What Standards of Proof Imply that We Want from Jurors, and What We Should Say to Them to Get It (October 20, 2017). Seton Hall Law Review, Vol. 48, p. 965, 2018; Seton Hall Public Law Research Paper. Available at SSRN: https://ssrn.com/abstract=3243539

D. Michael Risinger (Contact Author)

Seton Hall University School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States
(973) 642-8834 (Phone)

Register to save articles to
your library

Register

Paper statistics

Downloads
22
Abstract Views
85
PlumX Metrics