TWO PUZZLES OF JURIDICAL PROOF

Authors

  • RONALD J ALLEN
  • GERALD TG SENIUK

Abstract

This article analyzes two jurisprudential puzzles of proof at trial. The first involves the controversy over the obligation of trial judges to give reasons underlying their findings of fact. Naturally suspicious of decisions unaccompanied by reasons, commentators and judges have called for a requirement that trial judges explain their decisions, but the Supreme Court has consistently rejected this demand. Why that is so, and whether it should be so, is the first puzzle. The second puzzle involves the extent to which proof at trial is comparative. Do burdens of persuasion require the party bearing the burden to establish the material propositions to a predetermined level, such as a preponderance of evidence in civil cases and proof beyond reasonable doubt in criminal cases, or is proof comparative, so that in a civil case the more plausible story wins (which is what "proof to a preponderance" means) and in a criminal case the prosecution must demonstrate a plausible story of guilt and no plausible story of innocence (which is what "proof beyond reasonable doubt" means)? This article argues that connecting these two puzzles is the information, and cognitive demands presented by the issues; the article then examines the implications of those demands.

Keywords:

Legal Theory

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Published

1997-03-01

Issue

Section

Legal Commentary