Reasonable Self-Doubt

26 Pages Posted: 12 Mar 2020

See all articles by Ofer Malcai

Ofer Malcai

Hebrew University of Jerusalem - Faculty of Law

Ram Rivlin

Hebrew University of Jerusalem - Faculty of Law

Date Written: March 9, 2020

Abstract

Sometimes, the availability of more evidence for a conclusion provides a reason to believe in its falsity. This counter-intuitive phenomenon is related to the idea of higher-order evidence, which has attracted broad interest in recent epistemological literature. Occasionally, providing more evidence for something weakens the case in its favor, by casting doubt on the probative value of other evidence of the same sort or on the fact-finder's cognitive performance. We analyze this phenomenon, discuss its rationality, and outline possible application to evidence law and to the law in general. It is suggested, inter alia, that such higher-order evidence may explain how judicial experience-based expertise in fact-finding is possible despite the absence of a feedback mechanism; and that fact-finders’ self-doubt regarding their own competence in making ‘beyond-reasonable doubt’ judgments might be reasonable and should not be ignored.

Keywords: Evidence, Higher-order evidence, Criminal trial, Reasonable doubt, Law & Philosophy

Suggested Citation

Malcai, Ofer and Rivlin, Ram, Reasonable Self-Doubt (March 9, 2020). Criminal Law and Philosophy; Hebrew University of Jerusalem Legal Research Paper Forthcoming. Available at SSRN: https://ssrn.com/abstract=3551255

Ofer Malcai

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

Ram Rivlin (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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