Document Type
Article
Publication Title
Yale Law Journal
Publication Date
2013
ISSN
0044-0094
Page Number
1254
Keywords
burden of proof, probabilities, evidence, preponderance standard, absolute threshold, conjunction paradox
Disciplines
Criminal Law | Evidence | Law
Abstract
The preponderance standard is conventionally described as an absolute probability threshold of 0.5. This Essay argues that this absolute characterization of the burden of proof is wrong. Rather than focusing on an absolute threshold, the Essay reconceptualizes the preponderance standard as a probability ratio and shows how doing so eliminates many of the classical problems associated with probabilistic theories of evidence. Using probability ratios eliminates the so-called Conjunction Paradox, and developing the ratio tests under a Bayesian perspective further explains the Blue Bus problem and other puzzles surrounding statistical evidence. By harmonizing probabilistic theories of proof with recent critiques advocating for abductive models (inference to the best explanation), the Essay bridges a contentious rift in current evidence scholarship.
Recommended Citation
Edward K. Cheng,
Reconceptualizing the Burden of Proof, 122 Yale Law Journal. 1254
(2013)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/153