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Allen on the Burden of Persuasion in Criminal Cases

By Lawrence Solum

Ronald J. Allen (Northwestern University Law School) had posted No Plausible Alternative to a Plausible Story of Guilt as the Rule of Decision in Criminal Cases (PROOF AND STANDARDS OF PROOF IN THE LAW, Juan Cruz, Larry Laudan, eds., 2010) on SSRN. Here is the abstract:

The relative plausibility theory is an explanatory account of juridical proof in Anglo-American court systems. Its central feature is that proof at trial is organized over competing stories advanced by the litigants, and that decision in civil cases is for the more plausible of the stories, or the more plausible of the set of stories, advanced by the parties as explanations of what occurred. If the fact finders construct their own explanation of what occurred, which is possible, nonetheless the explanation will be fashioned in light of the competing explanations offered by the parties, and essentially by definition will be the most plausible of the accounts considered by the fact finder. In criminal cases, fact finders find guilt if there is a plausible story of guilt and no plausible story of innocence; otherwise, they find innocence. The relative plausibility theory is an empirical rather than an evaluative account, and it is offered as an explanation of certain features of Anglo-American trials. Furthermore, it neither rests on nor entails any essentialist claims about the nature of law or reason. Both may be highly contingent, radically unstable, extremely mutable, and so on, without any effect on the soundness of the relative plausibility theory as an explanation of the present status of proof rules in, and the structure of, Anglo-American trials. Certain features of the relative plausibility theory are logical, however, suggesting some limits on the mutability of proof rules, and suggesting possible grounds for generalizing conclusions about systems of litigation designed to achieve accurate outcomes. Similarly, certain conceptions of rationality integral to the theory are probably common across western cultures, and perhaps across all human cultures, thus offering yet another universalizing tendency. Still, the local nature of the theory should be kept in mind, and perhaps those from other legal traditions can draw contrasts and comparisons between the Anglo-American approach and their own. This paper discusses these matters and then extends the relative plausibility theory to criminal cases.

Full post as published by Legal Theory Blog on May 31, 2010 (boomark / email).