🐐

Law of Evidence
Reviewed

Simon Blackburn, Introduction in On Truth (Oxford University Press 2018),

pp. 5-12. [Excerpts]

Understanding the "Post-Truth" Environment and Its

Historical Context

Definition and Emergence of "Post-Truth"

Post-Truth: Defined by Oxford Dictionaries as circumstances in which
objective facts are less influential in shaping public opinion than
appeals to emotion and personal belief.

Emergence: The term gained prominence in 2016, particularly due to

political events in the UK and the US, where there was a noticeable
disregard for factual accuracy in political discourse.

Historical Context and Comparison

Historical Precedents: The manipulation of truth is not a novel strategy
in politics. Notable historical references include:

Machiavelli: Advised rulers to be adept in deceit (as noted in "The

Prince").

Law of Evidence 1
 19th Century Politics: Politicians like Benjamin Disraeli were often
accused of bending the truth.

Early 2000s: George Bush’s administration displayed skepticism

towards the "reality-based community," implying a strategic
departure from fact-based policy-making.

Literary References:

George Orwell's "1984": Highlights extreme totalitarian control over

truth and language as tools for political domination.

Implications of the "Post-Truth" Era

Political Landscape: The persistent use of misleading or false
information by influential political figures like President Donald Trump
and during the Brexit campaigns.

Public Reaction: Despite the widespread dissemination of misleading

information, public dissent and criticism remain robust, indicating that
the issue isn't a lack of linguistic resources but perhaps a shift in
societal values or media consumption patterns.

Key Takeaways
Continuity Rather Than Change: The concept of "post-truth" politics,
while seemingly novel, has deep roots in political history, suggesting a
continuity of strategies rather than a sudden change.

Importance of Critical Engagement: The ability to critically engage with

political statements and to distinguish between factual information and
manipulative rhetoric is more crucial than ever.

Role of Media and Technology: Modern media and technology play

significant roles in the dissemination and reception of information,
influencing the scale and impact of post-truth phenomena.

The Dynamics of Truth in Contemporary Politics and Society

Introduction
The notion that the concept of truth itself is declining might be
overstated, particularly when considering areas outside politics where
truth maintains its importance (e.g., law, medicine, aviation). However,

Law of Evidence 2
 significant changes affecting the perception and role of truth in politics
emerged around 2016.

Key Changes and Their Implications

1. Proliferation of Information Sources

Diverse Sources: The expansion of the internet has dramatically

increased the number of sources from which people obtain news,
leading to a fragmented media landscape.

Anonymity and Deceit: The anonymity provided by the internet can

embolden individuals to disseminate false information without
facing direct repercussions, thus diluting the traditional reputation
mechanisms that discourage deceit in smaller, more interconnected
communities.

2. Political Accountability and the Blurring of Truth

Case Study - Brexit: Promises made during the Brexit campaign

regarding financial savings for the NHS were later admitted to be
false by the politicians who made them, yet there were no
significant consequences for these falsehoods.

Lack of Repercussions: Politicians, like Boris Johnson, have

managed to deflect criticism and continue their careers despite
repeated distortions of truth, indicating a shift towards a 'post-
shame' political environment.

Consequences of Changes in the Perception of Truth

Post-Shame and Post-Trust Environment: The diminishing
consequences for dishonesty in the public sphere suggest a move
towards an environment where trust and accountability are severely
undermined.

Skepticism and Cynicism: In a climate where falsehoods are frequent

and often go unpunished, the public may become cynical, leading to a
generalized suspension of belief and an erosion of trust in information
sources.

Fragmentation and Echo Chambers: The proliferation of tailored news

sources allows individuals to seek out information that confirms their

Law of Evidence 3
 pre-existing beliefs, reinforcing divisions and decreasing the exposure
to opposing viewpoints.

Philosophical Insight
C.S. Peirce on Doubt and Certainty: The discomfort of doubt pushes
individuals towards seeking certainty, even if it means adhering to
unfounded beliefs. This desire can lead to the entrenchment of
competing dogmas, further polarizing society.

The Persistence of Truth in Democratic Politics

Introduction
The current political climate may seem to diminish the value of truth in
democratic discourse, likening it to "playground brawling." However,
this does not signify a crisis in the concept of truth itself. Our frustration
with politicians and their disregard for truth underscores an underlying
reliance on and recognition of truth's importance.

Analysis of the 'Post-Truth' Concept

1. Understanding 'Post-Truth'

The term "post-truth" suggests that emotional appeals have

overtaken objective facts in shaping public opinion. However,
acknowledging this shift paradoxically confirms the existence of
objective facts, which are synonymous with truth.

2. The Role of Truth in Identifying Falsehood

Even identifying individuals like Trump or Johnson, who are

perceived as indifferent to truth, relies on an understanding of what
truth is. This indicates that truth remains a foundational concept,
even when it is under threat.

3. Harry Frankfurt's Theory of Bullshit

In his work "On Bullshit," philosopher Harry Frankfurt argues that

bullshit differs from lying because it is characterized by an
indifference to truth. This distinction highlights that even the
concept of "bullshit" depends on an underlying recognition of
truth's existence.

Law of Evidence 4
 The Historical Context and Emotional Influence
Historical Persistence of Emotional Influence: It is not a new
phenomenon that emotions influence beliefs. This has been a
component of human behavior and decision-making for centuries, as
noted by thinkers like Francis Bacon.

Interplay Between Personal Belief and Objective Fact:

Objective facts need to be internalized as personal beliefs to have

practical effects (e.g., recognizing and reacting to a bus
approaching). This necessity shows that personal beliefs and
objective facts are not strictly separable but interdependent.

Reflections on Postmodernism and Reality

Postmodern Skepticism: Even philosophers known for their skeptical
stance toward the traditional notions of truth, like Jacques Derrida,
operated within a framework that accepted certain truths as necessary
for daily functioning (e.g., knowing the time of their train).

Reality-Based Living: Completely disengaging from a reality-based

perspective is impractical, if not impossible. Recognizing and
responding to truths is essential for survival and everyday functioning.

The Dynamics of Truth in Contemporary Politics and Society

Introduction
The assertion that the idea of truth is declining might be exaggerated,
especially in realms outside of politics such as law, medicine, and
aviation, where truth still holds significant importance. Nevertheless, the
political sphere has witnessed notable shifts in how truth is perceived
and valued, particularly since 2016.

Key Changes and Their Implications

1. Proliferation of Information Sources

Diverse Sources: The rise of the internet has greatly increased the
number of news sources, creating a fragmented media landscape
where people can access a wide array of information.

Law of Evidence 5
 Anonymity and Deceit: The anonymity afforded by the internet
enables individuals to spread false information without direct
repercussions, weakening traditional mechanisms that usually
discourage deceit in more close-knit communities.

2. Political Accountability and the Blurring of Truth

Brexit Case Study: During the Brexit campaign, politicians made

certain promises, such as significant financial savings for the NHS,
which were later acknowledged to be false. Despite these
admissions, there were no substantial consequences for those who
disseminated these falsehoods.

Lack of Repercussions: Politicians like Boris Johnson have shown

an ability to deflect criticism and maintain their political careers
despite frequent distortions of the truth. This trend indicates a
movement toward a 'post-shame' political environment where
traditional expectations for honesty no longer hold.

Consequences of Changes in the Perception of Truth

Post-Shame and Post-Trust Environment: The reduced consequences
for dishonesty suggest a shift towards an environment where both trust
and accountability are significantly diminished.

Skepticism and Cynicism: As falsehoods become more common and

often go unpunished, public cynicism may increase, leading to a
widespread suspension of belief and a decrease in trust towards
information sources.

Fragmentation and Echo Chambers: The availability of news sources

that cater to specific beliefs encourages individuals to seek information
that aligns with their existing views. This reinforcement of pre-existing
beliefs promotes societal division and reduces exposure to differing
viewpoints.

Philosophical Insight
C.S. Peirce on Doubt and Certainty: Peirce noted that the discomfort of
doubt drives individuals towards seeking certainty, sometimes at the
cost of embracing unfounded beliefs. This quest for certainty can lead
to the solidification of competing dogmas, which further polarizes
society.

Law of Evidence 6
 Frederick Schauer, As a Matter of Fact in The Proof (Belknap Press of
Harvard University Press 2022), pp. 1-14. [Excerpts]

The Role of Facts in Public Policy and Personal Decision-

Making

Introduction
The assertion that Elvis Presley died on August 16, 1977, serves as a
straightforward example to illustrate the importance of distinguishing
factual reality from personal or public preferences. This distinction is
crucial not only in trivial matters like celebrity deaths but also in
significant areas such as public policy and personal decision-making.

Key Concepts and Distinctions

1. Empirical Reality vs. Personal Preferences

Definition: Empirical reality refers to facts that can be proven true

through observation or evidence, independent of personal feelings
or beliefs.

Example: The fact of Elvis Presley's death is an empirical reality.

Personal preferences, such as wishing he were still alive or
preferring he be dead, do not alter this fact.

Importance: Recognizing the difference between what is

empirically true and what we wish to be true is essential for clear
thinking and effective decision-making.

2. Empirical Reality vs. Public Belief

Misconceptions and Fallacies: It is possible for public beliefs to

diverge significantly from empirical facts. For example, some people
might believe that Elvis is still alive despite overwhelming evidence
to the contrary.

Analyzing Preferences and Beliefs: Disliking something (like

anchovies) and denying its existence are fundamentally different.
The former is a preference; the latter is an empirical error.

3. Fact-Based Policy Making

Application in Health and Science: The distinction between fact

and belief is critical in areas like health policy and environmental

Law of Evidence 7
 regulation.

Vaccinations: It is a fact that vaccines do not cause autism,

despite prevalent contrary beliefs.

Climate Change: The fact that the Earth is warming is

established, regardless of political denial.

COVID-19 Pandemic: Policies should be based on factual rates

of incidence, hospitalization, and death, rather than
misrepresentations or unfounded optimistic assertions.

Case Study on Hydroxychloroquine: Early in the COVID-19

pandemic, some claimed hydroxychloroquine was effective against
the virus. Empirical studies have shown that these claims were not
factual and that the drug could have specific side effects.

Understanding the Distinction Between Facts and Policy

Decisions

Introduction
The ongoing Covid-19 pandemic provides a clear illustration of the
crucial distinction between understanding facts (what the facts are)
and making policy decisions (what ought to be done about them).
This distinction is vital in both public policy formulation and personal
decision-making.

Key Concepts and Distinctions

1. Descriptive vs. Prescriptive Analysis

Descriptive Analysis refers to stating the facts as they are,

such as the current rate of Covid-19 infections.

Prescriptive Analysis involves recommendations or decisions

on what actions should be taken based on the descriptive data.

Importance: Understanding that the rise or fall of infection rates

(descriptive) does not inherently dictate specific actions
(prescriptive) is crucial for effective policy-making.

2. Role of Science and Facts in Decision-Making

Law of Evidence 8
 Following the Science: This means basing decisions on well-
established facts and scientific consensus, rather than on
misinformation or unfounded beliefs.

Limitations of Science in Policy: While science can inform

policy by providing facts, it does not alone dictate what the
policy should be. Policy decisions involve normative judgments
that incorporate values, ethics, and societal goals, which go
beyond mere scientific data.

3. The Normative and Value-Laden Nature of Policy Decisions

Trade-offs: Policy-making often involves balancing different and

sometimes conflicting interests, which cannot be resolved by
facts alone.

Example: Deciding whether to close schools during a rise in

Covid-19 cases involves considering educational disruption
against health risks, a decision that incorporates values (e.g.,
the right to education vs. public health protection).

4. Factual Accuracy in Public and Personal Decisions

Daniel Patrick Moynihan’s Principle: "Everyone is entitled to his

own opinion, but not to his own facts." This underscores the
importance of basing both public policies and personal
decisions on accurate facts.

Personal Decision Example: Choosing whether to boycott a

business requires first establishing the factual basis of the
owner’s alleged affiliations or beliefs (e.g., whether a shop
owner is indeed a member of the Ku Klux Klan).

5. Philosophical Underpinnings: Hume’s Law

David Hume’s Is-Ought Problem: Philosophically, one cannot

derive an "ought" (what should be done) directly from an "is"
(what is the case). This separation suggests that ethical or
normative conclusions require more than just factual
statements; they need moral reasoning or value judgments.

Application: In policy-making, moving from understanding a

health crisis statistically (the spread of Covid-19) to deciding on

Law of Evidence 9
 actions (lockdown measures) involves ethical considerations,
public sentiment, economic impacts, and political contexts.

The Role of Evidence in Understanding Facts

Introduction
The discussion of evidence is central to understanding how we
ascertain the truth or falsity of facts. This section explores the
nature of evidence, its role in determining facts, and the
challenges posed by biases in interpreting evidence.

Understanding Evidence
1. Definition and Importance of Evidence

Evidence: Philosophically, evidence is what justifies or

provides a warrant for believing something to be true or
false.

Role of Evidence: It serves as the factual basis that supports

or refutes a claim. For example, yellowish skin and eyes can
be evidence of hepatitis, and a pinging sound from a car
engine might indicate low octane in the gasoline.

2. Types of Evidence

Direct Evidence: Directly demonstrates the truth of an

assertion (e.g., a video footage showing a person
committing a crime).

Indirect/Circumstantial Evidence: Suggests a fact is true

but requires inference (e.g., fingerprints at a crime scene
suggesting presence).

3. Evidence in Decision-Making

In both legal contexts and daily decision-making, evidence

helps establish the veracity of statements, guiding informed
decisions and judgments.

Philosophical Context: Epistemology vs. Ontology

Epistemology: The study of knowledge and how we know what
we know. This book focuses on the epistemological aspect of

Law of Evidence 10
 evidence—how we ascertain the truth or falsity of facts.

Ontology: The study of being or existence. While related, this

book does not focus on ontological questions but rather on how
we use evidence to understand and interpret facts.

Challenges in Interpreting Evidence: Motivated

Reasoning
1. Motivated Reasoning

Defined as the process where people fit their interpretation

of evidence to conclusions that suit their desires and
preconceptions.

Impact: Often leads to biased conclusions where evidence

is interpreted in a way that aligns with one’s desires rather
than objective analysis.

2. Examples of Motivated Reasoning

Sports: Fans seeing a close play in a way that favors their

team.

Politics: Beliefs about factual matters (e.g., the birthplace of

President Obama) being influenced by political allegiances.

Debates and Elections: Perceptions about who won a

debate or the legitimacy of election results often align with
political preferences.

The Demand for Objective Truth

The ultimate goal in evaluating evidence should be to attain
objective truth, irrespective of personal biases or preferences.

Recognizing and mitigating the effects of motivated reasoning is

crucial for making fair and informed judgments.

The Preference for Truth and the Market for Evidence

Introduction
This section explores the relationship between the preference
for truth and the demand for evidence, illustrating that not all
individuals or institutions place the same value on truth. This

Law of Evidence 11
 variability influences the production and consumption of
evidence in society.

The Relativity of Truth as a Value

1. Truth vs. Other Values

Competing Preferences: Truth often competes with other

human desires and values such as happiness, wealth, and
comfort. People may prioritize these over truth depending
on their personal circumstances or goals.

Historical Example: Henry Clay expressed a preference for

being right over being president, highlighting that not all
individuals prioritize power over truth. However, the reality
often shows many prioritize success or status over factual
accuracy.

2. Variable Importance of Truth

Truth and its pursuit through evidence are not uniformly

valued across all contexts or by all people. This variability
affects how evidence is sought, interpreted, and utilized.

Market Dynamics of Truth

1. Supply and Demand for Truth

Just as there is a market for goods, there is a market for

truth where suppliers (e.g., media outlets, researchers)
provide evidence or information based on the demand.

Tabloid Example: In the realm of tabloid publishing, the

demand for sensational stories often outweighs the demand
for factual reporting. Publishers balance between
sensationalism and factual accuracy to maximize profit,
demonstrating that the market values entertainment perhaps
more than truth.

2. Economic Considerations

Success in markets such as tabloid publishing is determined

by finding an optimal balance between sensation and truth
that maximizes readership and revenue.

Law of Evidence 12
 This balance shows that the value placed on truth can be
secondary to other market drivers like reader engagement
and profitability.

Implications for Public Policy and Decision Making

Understanding Value of Evidence: Recognizing that not
everyone values truth equally helps in understanding challenges
in public policy and personal decision-making.

Policy Making: In crafting policies, understanding the varying

degrees to which evidence is valued can help tailor approaches
that consider these differences, potentially leading to more
effective governance.

Of Facts and Opinions

1. Distinguishing Between Facts and Evaluations

Fact: An objective statement that can be proven true or

false, such as "Adolf Hitler had a mustache."

Evaluation: Involves judgment and can be subjective, such

as "Hitler was evil." Although widely agreed upon, this is an
evaluative statement and reflects moral judgment.

2. Thick Ethical Concepts

Introduced by philosopher Philippa Foot and further

discussed by Bernard Williams, these are descriptions that
blend factual and evaluative elements (e.g., "rude,"
"generous").

Importance: Recognizing these concepts is crucial in

discourse as they often carry implicit evaluations within
statements that might appear purely factual.

Evidence in Evaluative and Factual Contexts

Introduction
This section delves into the application and importance of
evidence in both factual assertions and evaluative descriptions,
highlighting the complexities involved when the two intersect.

Law of Evidence 13
 The Role of Evidence in Descriptions
1. Thick Descriptions vs. Bald Facts

Thick Descriptions: These involve evaluative judgments that

require evidence but also depend on subjective criteria,
such as the term "coward" used for Francesco Schettino.
This term requires a set of criteria that are not universally
agreed upon and are more subjective.

Bald Facts: These are straightforward, factual statements

that can be proven true or false with empirical evidence, like
the sinking of the Costa Concordia.

2. Evidence Requirements

Evidence is crucial in supporting both factual assertions

(e.g., an event such as a ship sinking) and evaluative
descriptions (e.g., someone being labeled as a coward).

The type of evidence and the criteria used for evaluative

judgments are often more complex and less universally
accepted than those used for factual assertions.

Complexities in Political and Social Contexts

1. Accusations and Definitions

Example of Political Labels: Accusing someone of being a

member of the Communist Party USA is a verifiable claim
since it involves a specific, identifiable group. In contrast,
calling someone a "small-c communist" or "socialist"
involves subjective interpretations and definitions that vary
widely.

These examples show how some accusations or labels,

though presented as factual, are deeply entwined with
personal or societal values and definitions.

2. Systemic Racism as a Contested Concept

During Justice Barrett's confirmation hearings, questions

about her belief in systemic racism involved assuming a
particular definition of the term, which is itself a subject of
political and social debate.

Law of Evidence 14
 This illustrates how questions that seem factual can often be
loaded with value judgments, depending on the definition of
terms used.

Implications for Understanding Evidence

Criteria and Definitions: Establishing what counts as evidence
in discussions that involve evaluative terms requires clear
criteria, which are often contested or unclear. This complicates
the process of proving or disproving such assertions.

Evaluative vs. Factual Questions: It is important to distinguish

between questions about values (which involve judgments) and
questions about facts (which involve objective evidence).
Confusing the two can lead to misunderstandings and
misinterpretations in discourse.

The Relevance of Legal Evidence in Non-Legal

Contexts

Introduction
The discussion here clarifies that while this book doesn't
specifically address the law of evidence as used in courts or as
portrayed in media, it acknowledges the importance of legal
concepts of evidence in broader contexts, including public
policy and everyday decision-making.

Understanding the Law of Evidence

1. Distinction from Legal Practice

The book is not focused on the procedural law of evidence

that governs judicial proceedings, nor is it concerned with
the dramatized versions seen in popular media.

Despite this, the influence of legal evidentiary principles

outside the courtroom is acknowledged but noted as
infrequent.

2. Historical Development of Legal Evidence

The legal system, particularly in common-law countries, has

developed a systematic approach to evidence over nearly

Law of Evidence 15
 three centuries.

This long history of judicial consideration has produced a

wealth of insights, although it is also recognized that not all
historical legal doctrines are beneficial or relevant today.

3. Holmes’ Critique and Appreciation

Justice Oliver Wendell Holmes criticized the blind adherence

to precedent, especially when such precedents persist
without substantive justification.

However, Holmes also valued the insights that could be

gleaned from centuries of judicial thought, despite his
reservations about systematic legal theories.

Implications for Non-Legal Contexts

1. Transfer of Legal Wisdom

There is value in considering how legal methodologies

regarding evidence can inform practices in non-legal
settings, such as public policy formulation or everyday
decision-making.

The systematic approach taken by courts can offer

structured ways to handle evidence that might be adapted to
other fields.

2. Critical Thinking and Evidence Evaluation

The book encourages a critical approach to evaluating

evidence, drawing upon legal traditions but also
incorporating insights from natural and social sciences,
history, and philosophy.

This interdisciplinary approach helps build a more robust

understanding of how evidence can be interpreted and used
effectively.

Structure and Approach of the Book

1. Topical Organization

The content is organized thematically rather than

sequentially, focusing on different aspects of evidence

Law of Evidence 16
 without necessarily building a linear argument.

This approach reflects Holmes' preference for practical

insights over comprehensive systems, suggesting that
understanding evidence benefits from varied, sometimes
independent, perspectives.

2. Holistic View on Evidence

The book aims to explore evidence in a broad sense,

acknowledging that while not all discussions about evidence
will fit neatly together, they each contribute valuable
insights.

This method allows for a more flexible and nuanced

exploration of how evidence works in various contexts.

Structure and Focus of the Upcoming Chapters on

Evidence

Overview
The text outlines the organization of the upcoming chapters,
which can be divided into two main groups: the first
focusing on the concept of evidence itself (Chapters 2-4),
and the second delving into the nature and reliability of
testimony (Chapters 5-8).

Part 1: Understanding Evidence (Chapters 2-4)

Chapter 2: Basics of Inference and Relevance

Objective: Explore how evidence relates to and supports
conclusions of fact.

Key Concepts:

Inference: The process of deriving logical conclusions

from premises known or assumed to be true.

Relevance: The quality of information that bears upon or

is genuinely pertinent to the legal issue under
consideration.

Chapter 3: Burden of Proof

Law of Evidence 17
 Objective: Analyze how to determine sufficiency of
evidence under conditions of uncertainty.

Key Concepts:

Burden of Proof: The obligation to prove one's assertion

or case; varies depending on the context (e.g., criminal
vs. civil cases).

Standard of Proof: The level of certainty and the degree

of evidence necessary to affirm a belief or conclusion
(e.g., preponderance of evidence, beyond reasonable
doubt).

Chapter 4: Probability and Statistics in Evidence

Objective: Connect inference and burden of proof to
probabilistic and statistical considerations.

Key Concepts:

Probability: A measure of the likelihood that an event

will occur.

Statistics: The science of collecting, analyzing,

presenting, and interpreting data.

Part 2: The Nature and Reliability of Testimony

(Chapters 5-8)

Chapter 5: The Concept of Testimony

Objective: Examine the basis for accepting statements from
others as evidence.

Key Concepts:

Testimony: Information or statements of fact derived

from what others have said.

Credibility: The quality in a witness which makes their

testimony believable and reliable.

Chapter 6: Assessing Testimonial Accuracy

Law of Evidence 18
 Objective: Discuss traditional and legal methods to evaluate
the accuracy of testimony.

Key Concepts:

Cross-Examination: A key feature in legal processes

used to challenge the testimony of a witness.

Oath-Taking: The act of swearing to tell the truth, which

theoretically binds the witness to honesty under penalty
of perjury.

Chapter 7: Lie Detection

Objective: Understand the evolution of lie detection
technology and its controversy.

Key Concepts:

Lie Detection Technology: Tools and techniques used to

determine if a person is lying (e.g., polygraph).

Judicial Skepticism: The cautious engagement of

judges and juries with technologies and methods
purported to establish truthfulness.

Chapter 8: Honest Mistakes in Perception and

Recall
Objective: Address how errors in perception and memory
affect the reliability of testimony.

Key Concepts:

Perceptual Errors: Mistakes in how sensory information

is received and processed.

Memory Recall: The act of retrieving past information or

events, which can be fraught with inaccuracies.

The Role of Expertise and the Evaluation of

Evidence in Various Contexts

Overview

Law of Evidence 19
 The text outlines how upcoming chapters (9-13) will delve
into the role of experts and expertise in shaping public
policy, legal outcomes, and other professional judgments.
These chapters highlight the complexities and controversies
surrounding expert opinions in today's society.

Part 1: Expertise in Science and Legal Contexts

(Chapters 9-11)

Chapter 9: Science as Evidence

Objective: Examine how scientific expert conclusions
are used as evidence in public policy.

Key Topics:

Controversial Issues: Vaccination, climate change,

Covid-19, and GMOs.

Role of Experts: How scientific experts influence

policy and public opinion through their assessments
and the challenges of achieving consensus.

Chapter 10: Forensic Science in Legal Systems

Objective: Critique the reliability of forensic techniques
commonly used in law enforcement and judicial settings.

Key Topics:

Common Techniques: Fingerprinting, ballistic tests,

handwriting identification.

Reliability and Validation: Analysis of the scientific

grounding of forensic methods and their acceptance
in courts.

Chapter 11: Non-Scientific Expertise

Objective: Explore expert opinion in fields outside of
science, such as art, history, and wine tasting.

Key Topics:

Expert Judgment: How expertise is applied and

valued in less scientifically rigorous fields.

Law of Evidence 20
 Methodologies and Reliability: Differences in
methodological rigor compared to scientific fields.

Part 2: Psychological Insights into Evidence

Evaluation (Chapters 12-13)

Chapter 12: Character and Past Behavior

Objective: Discuss how character assessments and past
actions are considered in evaluating current behavior
and predictability.

Key Topics:

Character Evidence: Relevance and admissibility in

legal contexts.

Behavioral Predictions: Use of past behavior to infer

future actions or current states.

Chapter 13: Motivated Reasoning

Objective: Analyze how personal desires and biases can
influence the evaluation of evidence.

Key Topics:

Cognitive Bias: How preferences and desires shape

perceptions and conclusions.

Impact on Decision Making: Consequences of

motivated reasoning in critical evaluations.

Recurring Themes Across Chapters

1. Importance of Probability:

Evidence is fundamentally about assessing

probabilities, whether quantifiable or not.
Understanding the probabilistic nature of evidence is
crucial across all discussed contexts.

2. Evidence Comes in Degrees:

Not all evidence is created equal. Distinctions

between no evidence, weak evidence, and strong

Law of Evidence 21
 evidence are vital, with each having its potential
utility depending on the context.

3. Contextual Sufficiency of Evidence:

Whether evidence is sufficient depends on its

intended use and the potential consequences of the
decision it supports. Questions like “Compared to
what?” and “For what purpose?” are essential.

Frederick Schauer,Zebras, Horses, and the Nature of Inference in The Proof

(Belknap Press of Harvard University Press 2022), pp. 15-33. [Excerpts]

Understanding Probabilities in Evidence and Inference

Introduction to Probabilistic Reasoning

The adage "When you hear hoofbeats, think horses, not zebras," as
attributed to Dr. Theodore Woodward, serves as a foundational principle in
probabilistic reasoning. This metaphor emphasizes the importance of
considering the most likely explanation for an observed phenomenon based
on common occurrences and statistical likelihood.

Concept of Probabilities in Daily Understanding

Common vs. Rare Events: The example underscores the difference
between common events (horses) and rare events (zebras). In the
context of evidence and inference, it is generally more rational to first
consider the more common or probable explanation before considering
less likely scenarios.

Application in Journalism: The phrase "man bites dog" illustrates the

journalistic preference for unusual or sensational news over mundane,
expected events. This reflects a similar principle in selecting news
stories based on rarity and novelty, rather than probability.

The Role of Probabilities in Evidence

Evidence and Inference: Evidence involves making inferences based
on available information. These inferences often rely on probabilistic
reasoning rather than absolute certainties.

Inductive vs. Deductive Reasoning:

Law of Evidence 22
 Deductive Reasoning: Involves logic where the conclusion
necessarily follows from the premises (e.g., "All birds have
backbones; this parrot is a bird; therefore, this parrot has a
backbone").

Inductive Reasoning: Involves generalizations that are likely but not

certain (e.g., "Most Italian citizens speak Italian; this woman is an
Italian citizen; therefore, she probably speaks Italian"). Inductive
reasoning is central to the concept of evidence as it deals with
likelihoods rather than certainties.

Importance of Recognizing Common Outcomes

Expecting the Expected: While recognizing unusual events is crucial for
discovery and innovation, acknowledging and expecting common
outcomes based on probabilities often leads to more accurate and
practical conclusions.

Practical Implications: In legal, scientific, and everyday decision-

making contexts, relying on probabilistic evidence generally yields more
reliable and defendable outcomes.

Limitations and Considerations

Potential for Error: Inductive inferences can be incorrect in specific
instances, which highlights the necessity for critical thinking and the
evaluation of additional evidence.

Cultural and Contextual Variations: Using the example of Italian

citizens, the text illustrates how regional, cultural, or personal factors
can defy general expectations, thus requiring a nuanced approach to
evaluating evidence.

Conclusion on Probabilities and Evidence

Understanding and applying probabilities is crucial in forming rational
inferences based on evidence. The principle of considering the most likely
explanation helps in making informed decisions across various fields,
including law, science, and journalism. However, it is equally important to
remain open to less probable outcomes when additional evidence suggests
an alternative possibility. This balanced approach ensures that evidence-
based reasoning is both practical and adaptable to specific circumstances.

Law of Evidence 23
 Medical Diagnostics and the Role of Probabilistic Reasoning

Introduction to Probabilistic Reasoning in Medical Diagnosis

The principle of "horses, not zebras" originally developed for educating
medical students, underscores the application of probabilistic reasoning in
medical diagnostics. This methodology assists physicians in making
informed decisions based on common probabilities rather than rare
possibilities.

Understanding Symptoms and Indications

Symptoms and Indications: In medical diagnostics, a physician
observes not only the symptoms but also gathers comprehensive
information about the patient's lifestyle and medical history. These
combined pieces of information are referred to as "indications."

Example of Lyme Disease Diagnosis:

A patient exhibits symptoms like a ring-shaped redness on the skin

along with chills and headaches.

The patient's history of hiking and camping in shorts adds context.

The physician infers the likely cause to be Lyme disease, given the
association of these indications with the disease historically.

Process of Diagnostic Inference

Probabilistic Inference: The decision to diagnose Lyme disease based
on the described indications is a result of probabilistic inference, where
Lyme disease is the "horse" (common and probable cause) and other
causes like ringworm or unrelated bruises are "zebras" (less probable
causes).

Role of Risk in Inductive Inference: As noted by Ian Hacking, inductive

inferences are "risky" as they might be incorrect in specific cases.
However, the use of probabilities helps in minimizing this risk, albeit not
eliminating it entirely.

Evidence-Based Medicine

Law of Evidence 24
 Concept and Emergence: The term "evidence-based medicine" refers
to the approach of making clinical decisions based on research
evidence, patient conditions, and preferences. This contrasts with less
systematic approaches that might rely more heavily on anecdotal
experience or less rigorously tested methods.

Relevance and Importance: The question raised about "evidence-

based" versus "evidence-free" medicine highlights the critical
importance of relying on well-supported data and established
correlations in medical practice. The idea suggests a move towards
more scientifically validated methods in diagnosing and treating
patients.

Critical Thinking in Medical Practice

Balancing Probabilities and Possibilities: While probabilities play a
crucial role in diagnosis, a good physician must also remain open to less
common possibilities, especially when common diagnoses do not fully
account for a patient's symptoms.

Continuous Evaluation: Effective medical practice involves

continuously updating and evaluating the chosen diagnostic paths
based on incoming evidence and patient responses to treatment.

Conclusion on Medical Diagnostics and Probabilistic

Reasoning
In medical diagnostics, as in many fields, probabilistic reasoning facilitates
more accurate and efficient decision-making. While it involves inherent
risks due to the nature of inductive reasoning, the structured approach of
considering the most probable causes as initial diagnoses helps manage
these risks. Moreover, the discussion on evidence-based medicine
underscores the evolving nature of medical practice towards incorporating
robust evidence in routine care, ultimately aiming to enhance patient
outcomes and safety.

Evidence-Based Medicine and the Hierarchy of Evidence

Introduction to Evidence-Based Medicine (EBM)

Law of Evidence 25
 Evidence-Based Medicine (EBM) originated at McMaster University in
Canada and emphasizes the conscientious, explicit, and judicious use of
the best current evidence in patient care decisions. This approach has
gained global acceptance, though it also faces significant debate regarding
its methodologies and implications.

The Controversy Surrounding EBM

Hierarchy of Evidence: At the core of EBM is an evidentiary hierarchy
that places randomized clinical trials (RCTs) at the top. These trials are
valued for their methodological rigor and the controlled environment in
which they are conducted.

Challenges from Experienced Practitioners: Many seasoned

physicians feel marginalized by this hierarchy because it seemingly
undervalues the experiential knowledge gained through years of clinical
practice. This has led to a divide between proponents of EBM and those
who rely more heavily on clinical intuition and experience.

Case Study: Covid-19 Vaccine Trials

Moderna mRNA-1273 Vaccine Trial: This trial is a prime example of
EBM in action, involving over thirty thousand participants in a controlled
setting to test the vaccine's effectiveness. The results showed a 94.5
percent effectiveness rate, illustrating the strength of evidence that can
come from well-designed RCTs.

Hypothetical Scenario: Clinical Experience with Covid-19

Treatment
Experience-Based Treatment: Consider a hypothetical clinician treating
Covid-19 patients with Tamiflu based on her observation that it
alleviates symptoms in her patients. While nearly all treated patients
show improvement, the lack of a control group makes it difficult to
conclusively attribute their recovery to Tamiflu.

Comparative Analysis: This scenario highlights a key issue in medical

practice: the experience-based inference, while valuable, lacks the
controlled rigor of an RCT. Thus, conclusions drawn from such
inferences carry a lower probability of being correct compared to those
from controlled trials.

Law of Evidence 26
 Understanding Inductive and Probabilistic Reasoning in
Medical Evidence
Nature of Inductive Reasoning: Inductive reasoning, the backbone of
evidential reasoning in medicine, is inherently probabilistic. This means
that conclusions are never certain but are based on the likelihood of
being correct.

Strength of Evidence: The strength of inductive conclusions is

measured by the probability that they are correct. Controlled
experiments designed to eliminate alternative explanations provide
stronger, more reliable conclusions, hence their higher placement in the
evidentiary hierarchy.

Understanding Varieties of Evidence and Their Strengths

The Nature of Experimental Evidence

Experimental Reliability: Not all experiment-based evidence is
inherently superior. Controlled experiments are typically seen as strong
forms of evidence due to their structured design, which aims to isolate
variables and reduce biases. However, the reliability of conclusions
drawn from experiments depends significantly on the experiment's
design and execution. Poorly designed experiments or those conducted
in sloppy conditions can produce unreliable results.

Comparative Strengths: While controlled experiments often provide

high probabilities of accurate conclusions, this is not always the case
compared to other evidence forms. Qualitative or experiential evidence,
gathered from numerous instances and over extended periods, can also
effectively isolate causes and provide strong evidence, albeit with less
precision than controlled experiments.

The Role of Experience-Based Evidence

Validity of Qualitative Evidence: Experience-based or qualitative
evidence remains a valid form of evidence despite being less precise.
This type of evidence involves inferences drawn from extensive
practical experience and can, in many contexts, yield highly probable
and correct conclusions. The evidence-based medicine (EBM)
movement sometimes underestimates the value of this type of evidence
by implying that non-experimental evidence is not genuine evidence.

Law of Evidence 27
 Misconceptions About Evidence
Evidence vs. No Evidence: The distinction should not be between using
evidence and not using it but between using better or worse evidence.
Accusations of "no evidence" are often about the evidence not being of
a type the critic prefers or considers strong enough.

Extreme Cases and Misinterpretations: Instances like conspiracy

theories or unfounded accusations (e.g., electoral fraud claims without
substantial backing) illustrate situations where claims are genuinely
unsupported by evidence. However, these are exceptions rather than
the norm.

Understanding Circumstantial Evidence

Value of Circumstantial Evidence: Contrary to popular belief and media
portrayal, circumstantial evidence can be compelling and is recognized
as such by the legal system. This type of evidence includes anything
from physical objects and documents to personal observations and
indirect indications (e.g., the absence of evidence can itself be
indicative of a fact).

Interrogating Evidence Requirements: It is crucial to examine not only

the conclusions drawn from the available evidence but also the
expectations and demands for particular types of evidence by critics.
This interrogation helps understand what evidence would satisfy
different stakeholders and why certain evidence is dismissed or
undervalued.

Conclusion: Broadening the Evidence Spectrum in Medical

and Legal Contexts
Holistic Approach: Recognizing and valuing multiple evidence forms,
from controlled experimental data to experiential and circumstantial
evidence, enriches both medical practice and legal analysis. A more
inclusive understanding of what constitutes valid evidence can lead to
more informed, robust decision-making and better outcomes in various
professional fields.

Educational Implication: As future legal professionals, it's essential to

appreciate and argue effectively for the validity of diverse evidence
types, understanding their strengths and limitations in contributing to

Law of Evidence 28
 reasoned conclusions. This approach ensures a more comprehensive
and just evaluation of cases and claims in professional practice.

Evaluating the Sufficiency and Type of Evidence

Differentiating Levels of Evidence

Quantitative vs. Qualitative Complaints: Criticisms regarding evidence
often revolve around its quantity ("not enough evidence") and its type
("not the kind of evidence that will satisfy me"). It’s crucial to distinguish
between these complaints to understand whether the issue is with the
sheer amount of evidence or its nature.

"No Evidence" Misconceptions: The term "no evidence" is frequently

misused. More accurately, critics might mean that the evidence does
not meet their standards for persuasiveness or relevance (e.g., "no hard
evidence" or "no direct evidence"). This distinction highlights that some
evidence exists, but it does not fulfill specific criteria set by the
evaluator.

Common Phrases and Their Implications

Phrases that Indicate Insufficient Evidence: Terms like "no conclusive
evidence" or "no definitive proof" suggest that while some evidence
may be present, it lacks the strength to definitively prove a point or
compel a conclusion. These phrases often imply a need for stronger,
more direct, or more substantial evidence to reach a high level of
certainty.

Impact of Negative Inference: Using such phrases can carry an

unintended negative inference, suggesting an underlying intention to
undermine the evidence that does exist. Whether this denigration is
justified can vary, but it's important for legal professionals to be aware
of these nuances in language and inference.

Critical Analysis Skills

Alertness to Phrasing: Legal professionals should be trained to be
vigilant about the language used in arguments concerning evidence.
Recognizing when terms like “no proof” or “no direct evidence” are
used allows attorneys and judges to question whether these assertions
are a strategic ploy to undervalue existing evidence.

Law of Evidence 29
 Evaluating Evidence: Understanding the implications behind these
common phrases helps in evaluating the strength and sufficiency of the
evidence presented. It is essential to assess whether the evidence is
genuinely insufficient or if the criticisms are primarily based on
subjective standards that may not align with legal evidentiary
requirements.

The Purpose and Function of Evidence in Legal and Factual

Analysis

What is the Purpose of Evidence?

Instrumental Value of Evidence: Evidence is not valued for its own
sake, unlike intrinsic values such as happiness or dignity. Instead,
evidence serves as a means to an end, specifically to facilitate the
reaching of factual conclusions that are of interest and importance in
various contexts, particularly in legal and scientific fields.

Connection to Truth: The ultimate goal of using evidence is to ascertain

truth. Evidence is valuable because it helps us form beliefs about what
is true. This utility of evidence makes it a fundamental component of
rational decision-making and argumentation.

The Dual Nature of Evidence

Verification of Evidence Itself: Before evidence can be used to support
a conclusion, its own veracity must be established. For example, if
yellowish skin is cited as evidence of hepatitis, we first need to confirm
that the skin is indeed yellowish. This verification process is crucial
because it ensures the reliability of the evidence being presented.

Evidence as a Basis for Further Evidence: Almost all evidence is both

based on other evidence and serves as evidence for further
conclusions. For instance, a witness's observation can be evidence that
a defendant was near a crime scene, which in turn can be evidence in
concluding the defendant's involvement in the crime.

Evaluating Evidence: Foundations and Implications

Foundational Evidence: The initial evidence that forms the basis of
further inference needs to be critically analyzed. For example, the
observation that the Arctic ice cap is shrinking is based on various data

Law of Evidence 30
 and measurements, and this observation then serves as evidence for
global warming.

Complex Interrelations: Understanding that evidence often has a

layered structure—being both supported by other evidence and
supporting further conclusions—is crucial in legal and scientific
reasoning. This complexity requires careful analysis to avoid errors in
drawing conclusions.

Critical Questions in Evaluating Evidence

Relevance and Support: When examining a piece of evidence, it is
essential to ask how exactly it supports or contradicts a hypothesis or
conclusion. The relationship between a fact (evidence) and a
conclusion must be clear and logically sound to be considered valid.

Clarifying Vagueness: The phrase "leads to" often used in discussing

evidence needs clarification—what are the specific mechanisms or
logical pathways through which evidence contributes to conclusions?
This exploration is crucial for a deeper understanding of how evidence
functions.

Understanding Bayes' Theorem and Its Application in Legal

Reasoning

Introduction to Reverend Thomas Bayes

Background: Reverend Thomas Bayes (1702–1761) was a Presbyterian
minister known not for his religious sermons but for his significant
contributions to the field of probability and statistics.

Bayes' Theorem: This theorem is a cornerstone in the understanding of

how evidence incrementally updates our belief about the likelihood of a
conclusion. It is fundamental not only in statistics but also in various
fields including law, where evidence assessment is crucial.

Basic Concept of Bayes' Theorem

Prior Probability: This is the initial estimation of the probability of a
conclusion based on existing knowledge before new evidence is
introduced.

Law of Evidence 31
 Posterior Probability: This is the adjusted probability after new
evidence is taken into account. Bayes’ theorem provides a formal way
to adjust the prior probability in light of new evidence to arrive at the
posterior probability.

Incremental Evidence Assessment

Serial Update of Belief: As new pieces of evidence are presented, they
either increase, decrease, or have no effect on the likelihood of a
conclusion. This process involves continuously updating our belief
based on the incremental addition of evidence.

Example in Historical Analysis: The relationship between Thomas

Jefferson and Sally Hemings can be examined through a Bayesian lens.
Initial beliefs (prior probability) about Jefferson’s paternity were based
on general historical and social contexts. As new evidence (written
records, census data, DNA results) emerged, these beliefs were
updated, increasing the posterior probability that Jefferson was the
father of Hemings’s children.

Application of Bayes' Theorem in Legal Contexts

Evidence Evaluation: In legal practice, Bayes' theorem can be
employed to systematically assess how each new piece of evidence
affects the strength of a case. It aids in distinguishing between
significantly impactful evidence and that which does not alter the
probability of the conclusion.

Determining Relevance of Facts: A fact is considered relevant and thus

serves as evidence for a conclusion if it changes the probability of that
conclusion. If a fact does not alter the probability, it is not considered
evidence concerning that conclusion, though it might be pertinent to
another.

The Significance of Bayesian Thinking in Law

Dynamic Assessment of Cases: Bayesian reasoning allows for a more
nuanced and dynamic approach to handling evidence. It accommodates
the complexities of real-life cases where information unfolds over time.

Objective Criteria for Evidence: By focusing on how facts alter the

likelihood of conclusions, Bayesian analysis provides a clear,

Law of Evidence 32
 quantitative method to gauge the weight of evidence, thus supporting
more objective legal decisions.

Conclusion: The Impact of Bayes' Theorem in Legal

Reasoning
Enhanced Decision-Making: Understanding and applying Bayes'
theorem in legal contexts enhances the accuracy and fairness of legal
decision-making by ensuring that all evidence is appropriately weighed
according to its impact on the case conclusions.

Educational Implication for Law Students: Law students are

encouraged to grasp the principles of Bayesian reasoning as it equips
them with advanced tools for evidence analysis, critical for effective
advocacy and judicial reasoning.

These notes aim to clarify the principles behind Bayes' theorem and
illustrate its practical application in both historical analysis and legal
practice, emphasizing its value in systematically managing and interpreting
evidence.

Concepts of Evidence and its Evaluation in Legal and

Scientific Contexts

Definitional Variations in Evidence

Conventional Understanding: In both scientific and legal practices,
evidence is generally understood as any information that can
incrementally adjust our belief about the likelihood of a conclusion
being true. This is in line with the Bayesian approach where evidence
either increases, decreases, or has no effect on our prior belief.

Philosophical Debate: A less conventional notion found in some

philosophical circles suggests that evidence is only "potential evidence"
unless the conclusion it supports is true. This view implies that the
status of something as evidence is contingent upon the ultimate truth of
the conclusion it supports.

Case Study: The Last Vermeer

Law of Evidence 33
 Background: Han van Meegeren, an infamous art forger, created a
painting that was initially authenticated as a genuine piece by Johannes
Vermeer by reputable experts and tests, only to later be revealed as a
forgery.

Initial Evidence: Experts used various types of information (paint type,

canvas, brushstrokes, expert opinions) as evidence confirming the
painting’s authenticity.

Reevaluation post Forgery Revelation: Once the painting was proven to

be a forgery, the question arose whether the initial indicators should still
be considered evidence or merely potential evidence.

Analysis of the Philosophical Debate through the Case Study

Evidence vs. Potential Evidence: The philosophical notion that
evidence is only truly evidence if the conclusion it supports is true
would imply that all the initial authentications of the painting were not
actual evidence but potential evidence. This view suggests redefining
evidence retroactively based on the outcome (the truth).

Practical Implications: This perspective is problematic in both scientific

and legal contexts where evidence must be evaluated based on the
information available at the time, not the eventual outcome. Evidence
must inform decisions in the face of uncertainty and not just be
validated post hoc.

Importance of Evidence in Uncertain Contexts

Role of Evidence: Evidence is crucial precisely because it helps reduce
uncertainty about the world. We rely on evidence to form beliefs and
make decisions when we do not already know the truth.

Dynamic Evaluation of Evidence: Determining what constitutes

evidence is an ongoing process that occurs as more information
becomes available. It is not solely determined after the fact once the
truth has been established.

Objective of Evidence: The primary function of evidence is not to be

infallibly linked to the truth but to guide reasoning processes towards a
more informed conclusion, whether or not it ultimately aligns with the
truth.

Law of Evidence 34
 Conclusion: Understanding and Applying the Concept of
Evidence
Educational Implication for Law Students: It is essential for law
students to understand that evidence should not be dismissed merely
because it later contradicts the truth. The capacity of evidence to guide
decision-making under uncertainty is what makes it valuable.

Legal and Scientific Reasoning: Both fields should embrace an

approach that values evidence based on its ability to inform and guide
understanding at the time it is presented, rather than only in retrospect
after truths are revealed.

The Nature of Evidence and Its Evaluation in Legal Contexts

Legal Definition of Evidence

Federal Rules of Evidence Rule 401: This rule provides that evidence is
relevant if it has any tendency to make a material fact more or less
probable than it would be without the evidence. This definition is
foundational in understanding how evidence is treated within the legal
system, emphasizing the importance of relevance to the probability of a
fact.

Application in Legal Systems: The legal approach to evidence aligns

with the idea that evidence can support hypotheses that may later be
proven false. The system does not require the outcome of a case to
confirm the relevance of each piece of evidence. Instead, evidence is
assessed based on its potential to impact the perceived truth at the time
of presentation.

Incremental Nature of Evidence

Bayesian Approach: The teachings of Reverend Bayes suggest an
incremental approach to evidence, advocating that evidence should
lead to adjustments in the probability of a conclusion. This
incrementalism is crucial in both everyday reasoning and formal
settings like courtrooms, where evidence is evaluated piece by piece.

Practical Implications: In practice, this means that evidence is not

static but dynamic, influencing beliefs and decisions as new information

Law of Evidence 35
 becomes available. The Bayesian concept does not strictly require
numerical probabilities but focuses on the relative increase or decrease
in the likelihood of a conclusion based on new information.

Real-World Application: Evaluating Claims of Electoral Fraud

Contextual Analysis: Following allegations of electoral fraud in a
presidential election, the discourse around evidence focused on
whether statements made in this context altered the perceived
likelihood of fraud.

Hypothetical Example: A hypothetical statement by a president

claiming investigations by state attorneys general could be considered
evidence if it reasonably alters the perceived probability of fraud, even
if it is based on hearsay or lacks detailed substantiation at the moment.

The Spectrum of Evidence Strength

Evidence vs. Strong Evidence: It is important to distinguish between
something being evidence and being strong evidence. Evidence can be
weak yet still serve as evidence if it contributes any non-trivial
probability alteration regarding a conclusion.

Coexistence of Contradictory Evidence: The existence of evidence

supporting one conclusion does not preclude the presence of evidence
supporting an opposing conclusion. Legal and rational analysis often
involves weighing these diverse pieces of evidence against each other.

The Role of Generalizations in Legal Evidence and

Probabilistic Reasoning

Understanding Generalizations in Evidence

Core Concept: Generalizations are fundamental to the way humans
process and interpret evidence. They allow us to make probabilistic
inferences based on previous experiences or observed patterns.

Example of Generalization: When a person sees a patterned animal

and identifies it as a zebra, they are relying on past experiences and
learned associations between certain visual cues (stripes) and the
identity of the animal (zebra).

Law of Evidence 36
 Application of Generalization in Legal Contexts
Evidence Relevance: In legal settings, the relevance of evidence often
depends on generalizations. For instance, the reliability of a car model
(like a Volvo) may be considered evidence in a case concerning the
car's reliability because of the generalization that Volvos are reliable.

Discriminant Income Function (IRS): The IRS uses generalizations

based on past data to decide which tax returns to audit. For example,
the generalization that drywall contractors are more likely to under-
report income influences the IRS to scrutinize returns from individuals in
this occupation more closely.

The "Horses, Not Zebras" Adage

Meaning and Implications: This adage illustrates the preference for the
simplest and most likely explanation under the circumstances, based on
generalizations. It suggests that when encountering evidence, one
should first consider the most common and likely explanation before
considering more unusual or complex ones.

Philosophical Perspective: While the adage simplifies the process of

inference, it also highlights the inherently probabilistic nature of
determining the truth based on evidence. There is always a possibility,
however remote, that an unlikely scenario (like two boys in a zebra suit)
could explain the evidence.

Probabilistic Nature of Inferences

Perceptual Experiences: Our interpretations of sensory data (like
seeing a wet street and inferring rain) are based on generalizations
about what usually causes such observations.

Limitations and Possibilities: Recognizing the probabilistic basis of

these inferences is crucial, as it acknowledges the limitations of our
conclusions and keeps open the possibility of alternative explanations.

The Role of Experience in Shaping Evidence

Experience-Based Evidence: Much legal and practical reasoning relies
on drawing from past experiences to make predictions or judgments
about specific cases. This reliance on experience helps in forming
generalizations that guide decision-making.

Law of Evidence 37
 Example in Everyday Reasoning: Observing a wet street and
concluding it rained is an inference based on the generalization that rain
typically causes streets to be wet, though other less common
possibilities exist.

Understanding Evidence Evaluation: Bayesian Approach vs.

Inference to the Best Explanation

Introduction to Evidence Evaluation

Objective: The chapter explores different methodologies for evaluating
evidence, focusing on what counts as evidence and how it should be
processed to reach conclusions.

Bayesian Approach to Evidence

Definition and Process: In a Bayesian framework, evidence is
processed incrementally. Each piece of evidence adjusts the
probabilities associated with a hypothesis. Decisions, whether factual or
procedural, are made based on the updated probabilities at the decision
point.

Key Feature: This approach is dynamic, continuously updating as new

evidence is introduced, reflecting a probabilistic understanding of
decision-making.

Inference to the Best Explanation (IBE)

Philosophical Roots: Initially attributed to Gilbert Harman and
developed by Peter Lipton, this method evaluates evidence holistically
rather than incrementally.

Process: Instead of updating probabilities with each new piece of

evidence, IBE involves accumulating all available evidence and then
determining which explanation best accounts for all the facts
collectively.

Key Feature: IBE seeks a comprehensive understanding that aligns all

facts under the most plausible explanation, focusing on coherence and
explanatory power.

Comparison and Debate

Law of Evidence 38
 Bayesianism vs. IBE: Philosophers and legal scholars debate these
methods' virtues in interpreting evidence. Bayesianism offers a
procedural and mathematical approach, while IBE prioritizes narrative
coherence and explanatory depth.

Contextual Application: The choice between Bayesianism and IBE may

depend on the nature of the inquiry (factual, theoretical, or practical)
and the timing of the decision-making process.

Practical Implications in Legal Settings

Judicial Consideration: Judges and jurors may lean towards one
approach based on the case's demands, whether they need to evaluate
evidence incrementally or seek a comprehensive explanation.

Evidence Relevance: Initially, the focus might be on whether something

qualifies as evidence (Bayesian approach), but as the case develops,
the overarching coherence (IBE) might become more significant.

Theoretical and Practical Relevance

Fact-Finding and Hypothesis Testing: Early stages of investigation or
litigation might benefit from a Bayesian approach where each fact is
incrementally tested against a hypothesis.

Holistic Evaluation: As the body of evidence grows, a shift towards IBE

might occur, seeking to explain the larger picture or complex scenarios
more effectively.

Holistic Evaluation of Evidence and Inference to the Best

Explanation (IBE)

Transition from Collection to Evaluation of Evidence

Contextual Shift: Once all evidence is collected, the method of
evaluating this evidence typically shifts. While an incremental, individual
assessment of each piece of evidence (Bayesian approach) is possible,
it often does not align with actual reasoning practices used in decision-
making contexts.

Holistic Approach in Decision-Making

Law of Evidence 39
 Holistic Evaluation: At the decision-making point, evidence is usually
considered in a holistic manner. This method acknowledges that
individual pieces of evidence may interact in ways that amplify their
collective impact, supporting a conclusion that surpasses the sum of its
parts.

Susan Haack's Argument: This interaction among evidences can lead

to a more substantial conclusion, highlighting the importance of viewing
evidence as mutually reinforcing rather than isolated.

Inference to the Best Explanation (IBE)

Definition: IBE involves evaluating all available evidence to determine
which hypothesis most comprehensively and plausibly explains the
data.

Empirical Faithfulness: This approach is argued to reflect more

accurately the natural reasoning processes people use when all
evidence is available.

Probabilistic Compatibility: IBE does not exclude probabilistic

reasoning; instead, it incorporates probability in assessing which
explanation is more likely to be true.

Integration of Bayesian Incrementalism and IBE

Complementary Approaches: While Bayesian incrementalism focuses
on updating beliefs with new evidence progressively, IBE assesses the
collective evidence to find the best explanation. These approaches can
be integrated, as both involve probabilistic assessments at different
stages of evidence evaluation.

Example of Probabilistic Assessment in IBE: Considering various

plausible explanations (e.g., sounds attributed to zebras vs. horses), IBE
not only seeks the best explanation but also inherently involves a
probabilistic judgment about which scenario is more likely given the
evidence.

Practical Implications of IBE in Legal and Analytical

Reasoning
Decision-Making: In legal contexts, IBE can guide judges and jurors in
making decisions that require a comprehensive understanding of all

Law of Evidence 40
 presented evidence.

Truth Discovery: The ultimate goal in using IBE is to discover the truth
and avoid errors, which is central to judicial processes and scholarly
research.

Conclusion: Towards a Synthesized Approach in Evidence

Evaluation
Synthesis of Methods: Effective evidence evaluation might require a
synthesized approach, starting with Bayesian incrementalism during the
evidence collection phase and transitioning to IBE during the decision-
making phase.

Educational Insight: Law students should appreciate both methods'

strengths and learn to apply them adaptively based on the context and
requirements of the analysis.

Law of Evidence 41