Authors

Edward K. Cheng

Document Type

Article

Publication Title

Yale Law Journal

Publication Date

2013

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.

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