A Theory of Factfinding: The Logic for Processing Evidence

55 Pages Posted: 30 Jun 2019 Last revised: 13 Jan 2020

See all articles by Kevin M. Clermont

Kevin M. Clermont

Cornell Law School

Date Written: June 28, 2019

Abstract

Academics have never agreed on a theory of proof. The darkest corner of anyone’s theory has concerned how legal decisionmakers logically should find facts. This Article pries open that cognitive black box. It does so by employing multivalent logic, which enables it to overcome the traditional probability problems that impeded all prior attempts. The result is the first-ever exposure of the proper logic for finding a fact or a case’s facts.

The focus will be on the evidential processing phase, rather than the application of the standard of proof as tracked in my prior work. Processing evidence involves (1) reasoning inferentially from a piece of evidence to a degree of belief and of disbelief in the element to be proved, (2) aggregating pieces of evidence that all bear to some degree on one element in order to form a composite degree of belief and of disbelief in the element, and (3) considering the series of elemental beliefs and disbeliefs to reach a decision. Zeroing in, the factfinder in step #1 should connect each item of evidence to an element to be proved by constructing a chain of inferences, employing multivalent logic’s usual rules for conjunction and disjunction to form a belief function that reflects the belief and the disbelief in the element and also the uncommitted belief reflecting uncertainty. The factfinder in step #2 should aggregate, by weighted arithmetic averaging, the belief functions resulting from all the items of evidence that bear on any one element, creating a composite belief function for the element. The factfinder in step #3 does not need to combine elements, but instead should directly move to testing whether the degree of belief from each element’s composite belief function sufficiently exceeds the corresponding degree of disbelief. In sum, the factfinder should construct a chain of inferences to produce a belief function for each item of evidence bearing on an element, and then average them to produce for each element a composite belief function ready for the element-by-element standard of proof.

This Article performs the task of mapping normatively how to reason from legal evidence to a decision on facts. More significantly, it constitutes a further demonstration of how embedded the multivalent-belief model is in our law.

Keywords: evidence, proof, logic

JEL Classification: K41

Suggested Citation

Clermont, Kevin M., A Theory of Factfinding: The Logic for Processing Evidence (June 28, 2019). Cornell Legal Studies Research Paper No. 19-31, Available at SSRN: https://ssrn.com/abstract=3411623 or http://dx.doi.org/10.2139/ssrn.3411623