The increasing use of digital technologies in judicial and arbitration proceedings increases the usage of digital evidence by the parties, which brings the necessity of creating patterns for adjudicators to admit and assess this new type of evidence. This paper generally addresses digital evidence focusing on the second moment in international arbitration proceedings. It also narrows the topic to hacked and leaked evidence and its admissibility in international arbitration. The literature review showed a significant amount of (...) research devoted to the evidence in arbitration. Some considered electronic evidence within one jurisdiction; others focused on certain forms of digital evidence such as electronic signatures. Papers on digital evidence in international arbitration approach arbitration rules for digital evidence but skip admissibility issues. No systemic and complex works research digital evidence in arbitration, explicitly focusing on the admissibility of hacked and leaked digital evidence from a comparative perspective. Also, no research deals with enforcing international arbitration awards relying on illegally obtained digital evidence. In these cases, there could be a possible violation of domestic public policy under the New York Convention terms (art. V, 2, b). That is why the paper aims to offer the concept of digital evidence in international arbitration, including hacked and leaked evidence, criteria of its admissibility and relevance, and design the arbitration guidelines for assessing hacked and leaked evidence. Comparative legal analysis of the international arbitration rules and national procedure law allowed us to compare the regulatory approaches to the definition of digital evidence and its admissibility worldwide. The method of legal modeling allowed designing model guidelines for arbitral tribunals to evaluate the admissibility and relevance of digital evidence, including hacked and leaked evidence. Moreover, the case study method allowed us to analyze jurisprudence and define criteria for admission of hacked and leaked evidence. We conclude that the admissibility of hacked and leaked evidence depends solely on the arbitrator’s broad discretion to assess the evidence. Nevertheless, thorough evidence analysis and a well-reasoned award are always mandatory. (shrink)

This paper explores some of the important parallels between recent reforms to legal rules for the admissibility of scientific and expert evidence, exemplified by the US Supreme Court's decision in Daubert v Merrell Dow Pharmaceuticals, Inc. in 1993, and similar calls for reforms to medical practice, that emerged around the same time as part of the Evidence-Based Medicine (EBM) movement. Similarities between the “movements” can be observed in that both emerged from a historical context where the quality of (...) medicine and legal approaches to science were being subjected to growing criticism, and in the ways that proponents of both movements have used appeals to “folk epistemologies” of science to help legitimate their reform aspirations. The term folk epistemology is used to describe the weaving together of formal and informal images of scientific method with normative and pragmatic concerns such as eradicating “junk science”, and promoting medical best practice. Perhaps unsurprisingly, given the unfocused breadth of these aspirations the implications of these “reforms” for medical and legal practice have not been straightforward, although they do represent an important new set of rhetorical resources to critique and or legitimate expertise in medical and legal domains. Discussion closes, by noting the growth of calls for these movements to reciprocate in areas where law and medicine intersect, such as medical negligence litigation. (shrink)

Self‐admission to inpatient treatment is a novel approach that aims to increase agency and autonomy for patients with severe psychiatric illness and a history of high utilization of inpatient care. By focusing on brief, preventive hospital admissions in times of increased risk of relapse, self‐admission seeks to reduce the need for prolonged episodes of inpatient treatment. Participants are generally satisfied with the model, which is not surprising given that self‐admission programs allocate a scarce resource—hospital beds—to a select group. However, the (...) patients targeted by these programs are not necessarily those in most need of hospital admission, which may compromise the commonly accepted ‘principle of need’ in allocation of public healthcare resources. In light of the current lack of consistent evidence of the usefulness and cost‐effectiveness of the model, several aspects need to be further studied in order to guide any large‐scale implementation of self‐admission in psychiatry. (shrink)

Lewis' concept of admissibility was introduced as an integral part of his famous Principal Principle; the principle that initial rational/reasonable belief should conform to objective chance unless there is evidence to the contrary. At that time Lewis offered only the rough and ready characterisation that evidence not to the contrary of such dependence is admissible. This, together with some sufficiency conditions, served well enough until it became clear that admissibility was central to debates on the viability of (...) Humean Supervenience and the analysis of objective chance. In response, Thau and Lewis refined the concept of admissibility in various ways. Since the mid 90's those who have employed the concept have, with minor variations and additions, followed the Thau/Lewis line. Yet, in the 30 years since its introduction what has been all too conspicuous by its absence is a full formal definition of admissibility and its degrees. Herein a family of definitions—all in terms of screening off by chance—that capture much that has been agreed about admissibility are proposed and evaluated; one of which is ultimately found to be serviceable as a definition schema for relative admissibility and its degrees. (shrink)

Is truth in the law just plain truth - or something sui generis? Is a trial a search for truth? Do adversarial procedures and exclusionary rules of evidence enable, or impede, the accurate determination of factual issues? Can degrees of proof be identified with mathematical probabilities? What role can statistical evidence properly play? How can courts best handle the scientific testimony on which cases sometimes turn? How are they to distinguish reliable scientific testimony from unreliable hokum? These interdisciplinary (...) essays explore such questions about science, proof, and truth in the law. With her characteristic clarity and verve, Haack brings her original and distinctive work in theory of knowledge and philosophy of science to bear on real-life legal issues. She includes detailed analyses of a wide variety of cases and lucid summaries of relevant scientific work, of the many roles of the scientific peer-review system, and of relevant legal developments. (shrink)

Many jurisdictions prohibit or severely restrict the use of evidence about a defendant’s character to prove legal culpability. Situationists, who argue that conduct is largely determined by situational features rather than by character, can easily defend this prohibition. According to situationism, character evidence is misleading or paltry. -/- Proscriptions on character evidence seem harder to justify, however, on virtue ethical accounts. It appears that excluding character evidence either denies the centrality of character for explaining conduct—the situationist (...) position—or omits probative evidence. Situationism is, after all, presented as antithetical to virtue ethics. -/- This essay provides a virtue ethical defense of character evidence exclusion rules. We show that existing virtue ethical rebuttals to situationism themselves support prohibitions on character evidence; even if behavior arises from stable character traits, character evidence should be prohibited. In building our case, we provide a taxonomy of kinds of character judgment and reconcile the ubiquity and reasonableness of character judgments in ordinary life with the epistemic legitimacy of character evidence prohibitions in law. (shrink)

While courts depend on expert opinions in reaching sound judgments, the role of the expert witness in legal proceedings is associated with a litany of problems. Perhaps most prevalent is the question of under what circumstances should testimony be admitted as expert opinion. We review the changing policies adopted by American courts in an attempt to ensure the reliability and usefulness of the scientific and technical information admitted as evidence. We argue that these admissibility criteria are best seen in (...) a dialectical context as a set of critical questions of the kind commonly used in models of argumentation. (shrink)

Which objects and properties are represented in perceptual experience, and how are we able to determine this? The papers in this collection address these questions together with other fundamental questions about the nature of perceptual content. The book draws together papers by leading international philosophers of mind, including Alex Byrne (MIT), Alva Noë (University of California, Berkeley), Tim Bayne (St Catherine’s College, Oxford), Michael Tye (University of Texas, Austin), Richard Price (All Souls College, Oxford) and Susanna Siegel (Harvard University) Essays (...) address the central questions surrounding the content of perceptual experience Investigates how are we able to determine the admissible contents of experience Published in association with the journal Philosophical Quarterly . (shrink)

Professor Imwinkelried is surely right: the propriety of bioethicists serving as expert witnesses in litigation is problematic, and, I would add, it should remain problematic. Such testimony most certainly does not belong everywhere it will be offered by lawyers and litigants in an effort to advance their interests. Yet in contrast to some commentators, Imwinkelried and I both see a place for bioethicists serving as expert witnesses, although we differ significantly on how to understand and justify this place. In any (...) event, serious questions regarding the proper place for expert bioethicist testimony in the courtroom do exist, not only for law but also bioethics as well.The threshold question regarding the prospect of bioethicists serving as expert witnesses would seemingly have to be: “could a bioethicist qualify as an expert witness under the controlling rules of evidence?” Imwinkelried, however, does not perceive any need to even entertain this question as he claims that “technical evidentiary standards are inapplicable when information is presented to a judge to permit the judge to perform… a legislative or law-making function.”. (shrink)

This paper concerns recent attempts to use the epistemological notions of sensitivity and safety to shed light on legal debates about so-called “bare” statistical evidence. These notions might be thought to explain either the outright inadmissibility of such evidence or its inadequacy for a finding of fact—two different phenomena that are often discussed in tandem, but that, I insist, we do better to keep separate. I argue that neither sensitivity nor safety can hope to explain statistical evidence’s (...) inadmissibility, since neither offers a plausible criterion of admissibility that would exclude such evidence; both are subject to copious counterexamples, especially given their factivity, and it is difficult even to state a coherent criterion of admissibility in terms of either sensitivity or safety. The possibility remains, though, that either notion might explain statistical evidence’s inadequacy for a finding of fact; I express some doubts about this possibility but do not rule it out. (shrink)

In H.M. Advocate v. Grimmond1 the judge in a Scottish High Court trial refused permission for expert psychological evidence to be admitted on behalf of the Crown in a prosecution involving sexual offences against two children. The Crown had sought to lead an expert witness to explain to the jury about patterns of disclosure in child sexual abuse cases. The case was remarkable, not so much for the strict application of the longstanding rule in R. v. Turner that constrains (...) the use in the courtroom of expert evidence from the behavioural sciences, but for the way in which the arguments presented by the Crown in Grimmond resonate with enduring feminist critiques regarding the treatment of women in rape trials. The theoretical issues raised by the decision include the quest for context to counter rigid evidential frameworks, and the choice of a child sexual abuse case as the medium for challenging the boundaries of the admissibility of expert evidence in the courtroom. The ramifications of Grimmond are tangible as legislation intended to benefit children and women has already been enacted by the Scottish Parliament to ameliorate the effects of the decision. This article suggests that while this legislation should be given a cautious welcome it remains to be seen whether the heralded benefits will actually materialise. (shrink)

Since the start of the new millennium, many contemporary jurisdictions have been revisiting the fundamental principles of their civil procedures. Even the core areas of the civil process are not left untouched, including the way in which evidence is introduced, collected and presented in court. One generator of the reforms in the field of evidence-taking in recent decades has been slow and inefficient litigation. Both in Europe and globally, reaching a balance between the demands of factual accuracy and (...) the need to adjudicate disputes in a swift, cost-effective and efficient way is still one of the key challenges. The second reason that many countries are reforming their law of evidence is related to cultural and technological changes in modern societies. As the balance between, on the one side, traditional human rights such as the right to privacy and due process is shifting towards, on the other side, the modern need for security, efficiency and quick access to justice, the perception of what is admissible or not in the context of evidence-taking is changing as well."--Back cover. (shrink)

Intelligence, as measured by grades and/or standardized test scores, plays a principal role in the medical school admissions process in most nations. Yet while sufficient intelligence is necessary to practice medicine effectively, no evidence suggests that surplus intelligence beyond that threshold is correlated with providing higher quality medical care. This paper argues that using perceived measures of intelligence to distinguish between applicants, at levels that exceed the level of intelligence required to practice medicine, is both unfair to applicants and (...) fails to serve the interests of patients. (shrink)

In this paper, I aim to explicate the distinction between ‘unconditional relevance’ and ‘conditional relevance’ as those terms and related concepts are applied in the context of admissibility determinations in modern trials. I take the U.S. Federal Rules of Evidence to be my model in analyzing these concepts, though on my view any reasonable approach to legal evidence will have to distinguish between these concepts and make appropriate provisions for their separate treatment. I begin by explaining how the (...) Federal Rules define and apply the concepts of relevance and conditional relevance, and I present an influential argument due to Vaughn Ball that threatens to undermine the distinction between the two concepts. I then argue that Ball's argument fails and I diagnose that failure. However, building on some insights from a variety of evidence scholars, I argue that the approach to conditional relevance adopted by the Federal Rules is crucially flawed for reasons entirely independent of the ones raised by Ball's argument. I identify the main constraints that, on my view, any reasonable approach to conditional admissibility must obey, and I argue for a specific proposal that obeys those constraints. On my positive view, two pieces of evidence should be admitted under a Conditional Admissibility Principle only when each piece of evidence would survive ordinary admissibility scrutiny, conditional on the admission of the other one. I conclude by considering the question of whether it should also be necessary for the two pieces of evidence to survive admissibility scrutiny together, as an ‘evidential package’; I argue that, though the issue may arise infrequently in practice, there is good reason to impose this additional requirement. (shrink)

Our paper aims to investigate inference rules for Nelson’s logics and to discuss possible ways to determine admissibility of inference rules in such logics. We will use the technique offered originally for intuitionistic logic and paraconsistent minimal Johannson’s logic. However, the adaptation is not an easy and evident task since Nelson’s logics do not enjoy replacement of equivalences rule. Therefore we consider and compare standard admissibility and weak admissibility. Our paper founds algorithms for recognizing weak admissibility and admissibility itself – (...) for restricted cases, to show the problems arising in the course of study. (shrink)

Unlike tragedy, Old Comedy openly acknowledges its own festival context and the existence of a world beyond the one created for and occupied by its masked characters. Admission of the theatrical setting is a standard well-documented feature and was an effective way of drawing spectators into the drama's fiction. To the same end, speaking directly to the audience formed an integral part of Aristophanes' plays and very probably of the comic genre as a whole. We can therefore think of comedy (...) as an ‘inclusive’ art form, one that consciously attempted to involve and engage its consumers, in particular via explicit verbal address. On the other hand, the evidence is much slimmer for actors moving outside of the performance area or otherwise physically bringing the audience members and the fictional cast into contact and, regardless of how attractive it might seem, this type of spatial negotiation is far from established. It may well be the case that in spite of comedy's relative liberty, certain barriers continued to exist, including the invisible barrier that divided the acting area from the auditorium. (shrink)

This paper focuses on the system of banding used in England by the former Inner London Education Authority in order to seek to obtain an intake to secondary schools that was balanced in terms of ability. The first part of the paper provides a brief history of the system of banding, how it was informed by verbal reasoning testing and how it was subsequently based on the results of a specially constructed reading test. The second part of the paper examines (...) the extent of banding after the abolition of the ILEA. Whilst LEA-wide banding is currently only used by three LEAs, many schools in inner London that are responsible for their own admissions have introduced banding. The problems associated with banding at a school level are discussed and it is argued that banding at the level of the LEA is likely to be more equitable, more transparent and more likely to reduce social segregation; in addition, there is some evidence to suggest that the ILEA banding system resulted in a higher percentage of parents achieving their stated first preference school than more recent admissions policies. (shrink)

Rationale, aims and objectives : Evidence-based medicine (EBM) claims to be based on 'evidence', rather than 'intuition'. However, EBM's fundamental distinction between quantitative 'evidence' and qualitative 'intuition' is not self-evident. The meaning of 'evidence' is unclear and no studies of quality exist to demonstrate the superiority of EBM in health care settings. This paper argues that, despite itself, EBM holds out only the illusion of conclusive scientific rigour for clinical decision making, and that EBM ultimately is (...) unable to fulfil its own structural criteria for 'evidence'. Methods : Our deconstructive analysis of EBM draws on the work of the French philosopher, Jacques Derrida. Deconstruction works in the name of justice to lay bare, to expose what has been hidden from view. In plain language, we deconstruct EBM's paradigm of 'evidence', the randomized controlled trial (RCT), to demonstrate that there cannot be incontrovertible evidence for EBM as such. We argue that EBM therefore 'auto-deconstructs' its own paradigm, and that medical practitioners, policymakers and patients alike ought to be aware of this failure within EBM itself. Results : EBM's strict distinction between admissible evidence (based on RCTs) and other supposedly inadmissible evidence is not itself based on evidence, but rather, on intuition. In other words, according to EBM's own logic, there can be no 'evidentiary' basis for its distinction between admissible and inadmissible evidence. Ultimately, to uphold this fundamental distinction, EBM must seek recourse in (bio)political ideology and an epistemology akin to faith. (shrink)

Proposed lie-detection technology based on neuroscience poses significant challenges for the law. The law must respond to the science with an adequate understanding of such evidence, its significance, and its limitations. This paper makes three contributions toward those ends. First, it provides an account of the preliminary neuroscience research underlying this proposed evidence. Second, it discusses the nature and significance of such evidence, how such evidence would fit with legal practices and concepts, and its potential admissibility. (...) Finally, it analyzes the constitutional protections that may limit the compelled production of such evidence. (shrink)

In place of the traditional epistemological view of knowledge as justified true belief we argue that artificial intelligence and law needs an evidence-based epistemology according to which scientific knowledge is based on critical analysis of evidence using argumentation. This new epistemology of scientific evidence (ESE) models scientific knowledge as achieved through a process of marshaling evidence in a scientific inquiry that results in a convergence of scientific theories and research results. We show how a dialogue interface (...) of argument from expert opinion, along with its set of critical questions, provides the argumentation component of the ESE. It enables internal scientific knowledge to be translated over into a wider arena in which individual nonexpert citizens and groups can make use of it. The external component shows how evidence is presented and used in a legal procedural setting that includes fact-finding, weighing the credibility of expert witnesses, and critical questioning of arguments. The paper critically reviews the standards of admissibility of scientific evidence using the ESE. (shrink)

DNA evidence has rapidly become a significant and routine feature of modern criminal prosecutions. The first introduction of DNA evidence in a U.S. Court occurred in 1987. By 1994, 42 percent of local prosecutors reported that they had used DNA evidence in a felony case at least once. By 2001 that number had increased to 68 percent. Moreover, from a technical point of view, the potential benefits of DNA testing are substantial. Early hurdles to admissibility during trial (...) have been overcome by the adoption of rigorous standards for DNA analysis. Rapid development of identification technology, fueled in significant part by the Human Genome Project, and the resultant development and expansion of national forensic DNA databases, has increased the potential of DNA to play a major role in crime solving. Indeed, over three million offender profiles, collected by state and federal authorities, now reside in the National DNA Index System. This number is likely to increase as more states and the federal government are expanding compelled DNA collections to individuals arrested for certain crimes. (shrink)

This paper provides a re-assessment of the significance of turning king's evidence in late medieval England through a re-examination of the use of approvers' appeals as a method of prosecution. It puts forward the hypothesis that the process was not only popular with felons, but also actively encouraged by the Crown. Exploring attitudes towards confessions and their admissibility, it compares and contrasts contemporary Continental prosecution practices and considers the extent to which the English legal system was developing a form (...) of public prosecution through the encouragement of approvers, mainly at times of political stress or during law enforcement drives. Analysis of the verdicts returned by juries on persons arrested and tried on the basis of approvers' confessions indicates a high incidence of acquittal. This apparent failure in the system is explained in terms of the prejudices and practices of the juries, judicial scrutiny of the appeals, and putative government policy. (shrink)

In his 1827 work Rationale of Judicial Evidence, Jeremy Bentham famously argued against exclusionary rules such as hearsay, preferring a policy of “universal admissibility” unless the declarant is easily available. Bentham’s claim that all relevant evidence should be considered with appropriate instructions to fact finders has been particularly influential among judges, culminating in the “principled approach” to hearsay in Canada articulated in R. v. Khelawon. Furthermore, many scholars attack Bentham’s argument only for ignoring the realities of juror bias, (...) admitting universal admissibility would be the best policy for an ideal jury. This article uses the theory of epistemic contextualism to justify the exclusion of otherwise relevant evidence, and even reliable hearsay, on the basis of preventing shifts in the epistemic context. Epistemic contextualism holds that the justification standards of knowledge attributions change according to the contexts in which the attributions are made. Hearsay and other kinds of information the assessment of which rely upon fact finders’ more common epistemic capabilities push the epistemic context of the trial toward one of more relaxed epistemic standards. The exclusion of hearsay helps to maintain a relatively high standards context hitched to the standard of proof for the case and to prevent shifts that threaten to try defendants with inconsistent standards. (shrink)

This paper considers a puzzling conflict between two positions that are each compelling: it is irrational for an agent to pay to avoid `free' evidence before making a decision, and rational agents may have imprecise beliefs and/or desires. Indeed, we show that Good's theorem concerning the invariable choice-worthiness of free evidence does not generalise to the imprecise realm, given the plausible existing decision theories for handling imprecision. A key ingredient in the analysis, and a potential source of controversy, (...) is the general approach taken for resolving sequential decision problems { we make explicit what the key alternatives are and defend our own approach. Furthermore, we endorse a resolution of the aforementioned puzzle { we privilege decision theories that merely permit avoiding free evidence over decision theories for which avoiding free evidence is uniquely admissible. Finally, we situate this particular result about free evidence within the broader `dynamic-coherence' literature. (shrink)

If the criminal trial is aimed simply at ascertaining the truth of a criminal charge, it is inherently problematic to prevent the prosecution from adducing relevant evidence on the ground of its unlawful provenance. This article challenges the starting premise by replacing the epistemic focus with a political perspective. It offers a normative justification for the exclusion of unlawfully obtained evidence that is rooted in a theory of the criminal trial as a process of holding the executive to (...) the rule of law. On this theory, it is the admission rather than exclusion of such evidence that is inherently problematic. The differences between this theory and others that are in currency will be noted, as will its implications and limitations. (shrink)

In recent years, the concept of “integrity” has been frequently discussed by scholars, and deployed by courts, in the domain of criminal procedure. In this paper, we are particularly concerned with how the concept has been employed in relation to the problem of the admissibility of evidence obtained improperly. In conceptualising and addressing this problem, the advocates of integrity rely on it as a standard of conduct for the criminal justice authorities and as a necessary condition for the state (...) authority to condemn and punish. We raise a series of challenges that need answering before integrity can perform these roles. Our aim is not to show that integrity is useless in normative theorising about the admissibility of evidence, and about the criminal process in general. Rather, it is to give guidance for the elaboration of a theory of integrity that is cogent, coherent, and has useful implications for the process of proof. (shrink)

The use of neuroscientific evidence in criminal trials has been steadily increasing. Despite progress made in recent decades in understanding the mechanisms of psychological and behavioral functioning, neuroscience is still in an early stage of development and its potential for influencing legal decision-making is highly contentious. Scholars disagree about whether or how neuroscientific evidence might impact prescriptions of criminal culpability, particularly in instances in which evidence of an accused’s history of mental illness or brain abnormality is offered (...) to support a plea of not criminally responsible. In the context of these debates, philosophers and legal scholars have identified numerous problems with admitting neuroscientific evidence in legal contexts. To date, however, less has been said about the challenges of evaluating the evidence upon which integrative mechanistic explanations that bring together evidence from different areas of neuroscience are based. As we explain, current criteria for evaluating such evidence to determine its admissibility in legal contexts are inadequate. Appealing to literature in the philosophy of scientific experimentation and theoretical work in the social, cognitive and behavioral sciences, we lay the groundwork for reforming these criteria and identify some of the implications of modifying them. (shrink)

ABSTRACTThis article defends the importance of epistemic safety for legal evidence. Drawing on discussions of sensitivity and safety in epistemology, the article explores how similar considerations apply to legal proof. In the legal context, sensitivity concerns whether a factual finding would be made if it were false, and safety concerns how easily a factual finding could be false. The article critiques recent claims about the importance of sensitivity for the law of evidence. In particular, this critique argues that (...) sensitivity does not have much of an effect on the value of legal evidence and that it fails to explain legal doctrine. By contrast, safety affects the quality of legal evidence, and safety better explains central features of the law of evidence, including probative value, admissibility rules, and standards of proof. (shrink)

This paper considers John Lamont’s claim that the Bible is a basic form of evidence for the existence of God. It is argued to the contrary that its admissibility depends upon God’s existence being an acceptable real prior possibility.

Academic leaders in management from all over the world—including recent calls by the Academy of Management Shaw (Academy of Management Journal 60(3): 819–822, 2017)—have urged further research into the extent and use of questionable research practices (QRPs). In order to provide empirical evidence on the topic of QRPs, this work presents two linked studies. Study 1 determines the level of use of QRPs based on self-admission rates and estimated prevalence among business scholars in Indonesia. It was determined that if (...) the level of QRP use identified in Study 1 was quite high, Study 2 would be conducted to follow-up on this result, and this was indeed the case. Study 2 examines the factors that encourage and discourage the use of QRPs in the sample analyzed. The main research findings are as follows: (a) in Study 1, we found the self-admission rates and estimated prevalence of business scholars’ involvement in QRPs to be quite high when compared with studies conducted in other countries and (b) in Study 2, we found pressure for publication from universities, fear of rejection of manuscripts, meeting the expectations of reviewers, and available rewards to be the main reasons for the use of QRPs in Indonesia, whereas (c) formal sanctions and prevention efforts are factors that discourage QRPs. Recommendations for stakeholders (in this case, reviewers, editors, funders, supervisors, chancellors and others) are also provided in order to reduce the use of QRPs. (shrink)

This paper presents a theory of reasoning with evidence in order to determine the facts in a criminal case. The focus is on the process of proof, in which the facts of the case are determined, rather than on related legal issues, such as the admissibility of evidence. In the literature, two approaches to reasoning with evidence can be distinguished, one argument-based and one story-based. In an argument-based approach to reasoning with evidence, the reasons for and (...) against the occurrence of an event, e.g., based on witness testimony, are central. In a story-based approach, evidence is evaluated and interpreted from the perspective of the factual stories as they may have occurred in a case, e.g., as they are defended by the prosecution. In this paper, we argue that both arguments and narratives are relevant and useful in the reasoning with and interpretation of evidence. Therefore, a hybrid approach is proposed and formally developed, doing justice to both the argument-based and the narrative-based perspective. By the formalization of the theory and the associated graphical representations, our proposal is the basis for the design of software developed as a tool to make sense of the evidence in complex cases. (shrink)

"Does torture work?" is a factual rather than ethical or legal question. But legal and ethical discussions of torture should be informed by knowledge of the answer to the factual question of the reliability of torture as an interrogation technique. The question as to whether torture works should be asked before that of its legal admissibility—if it is not useful to interrogators, there is no point considering its legality in court.

This chapter contains sections titled: I II III References.

Over 40 years of research have shown that traumatic brain injury affects brain volume. However, technical and practical limitations made it difficult to detect brain volume abnormalities in patients suffering from chronic effects of mild or moderate traumatic brain injury. This situation improved in 2006 with the FDA clearance of NeuroQuant®, a commercially available, computer-automated software program for measuring MRI brain volume in human subjects. More recent strides were made with the introduction of NeuroGage®, commercially available software that is based (...) on NeuroQuant® and extends its utility in several ways. Studies using these and similar methods have found that most patients with chronic mild or moderate traumatic brain injury have brain volume abnormalities, and several of these studies found—surprisingly—more abnormal enlargement than atrophy. More generally, 102 peer-reviewed studies have supported the reliability and validity of NeuroQuant® and NeuroGage®. Furthermore, this updated version of a previous review addresses whether NeuroQuant® and NeuroGage® meet the Daubert standard for admissibility in court. It concludes that NeuroQuant® and NeuroGage® meet the Daubert standard based on their reliability, validity, and objectivity. Due to the improvements in technology over the years, these brain volumetric techniques are practical and readily available for clinical or forensic use, and thus they are important tools for detecting signs of brain injury. (shrink)

Debates surrounding the high-level contents of perceptual experience focus on whether weperceive the high-level properties of visual objects, such as the property of being a pine tree. Thispaper considers instead whether we perceive the high-level properties of visual scenes, such asthe property of being a forest. Liberals about the contents of perceptual experience have offered avariety of phenomenal contrast cases designed to reveal how the high-level properties of objectsfigure in our visual experience. I offer a series of equivalent phenomenal contrast (...) cases intendedto show how the high-level properties of visual scenes also figure in visual experience. Thisfirst-person evidence of high-level scene perception is combined with third-person evidence fromthe extensive empirical literature on scene categorisation. Critics of liberalism have attempted todeflate existing phenomenal contrast cases by explaining the contrasts in terms of non-perceptualcontents or in terms of attentional changes. I show that neither response is applicable to mycontrast cases and conclude that we do indeed perceptually experience the high-level propertiesof visual scenes. (shrink)

We present a complete, decidable logic for reasoning about a notion of completely trustworthy evidence and its relations to justifiable belief and knowledge, as well as to their explicit justifications. This logic makes use of a number of evidence-related notions such as availability, admissibility, and “goodness” of a piece of evidence, and is based on an innovative modification of the Fitting semantics for Artemovʼs Justification Logic designed to preempt Gettier-type counterexamples. We combine this with ideas from belief (...) revision and awareness logics to provide an account for explicitly justified knowledge based on conclusive evidence that addresses the problem of omniscience. (shrink)

The bulk of this book is the second series of John Dewey Lectures, delivered by Professor Ayer in April 1970. To this, Ayer has added a criticism of Roy Harred’s purported refutation of Hume and a chapter about "non-truth-functional" conditionals that rounds out the lectures. Leaving Harred aside, this book provides an elegant, concise, and up-to-date introduction to the problem of induction and related issues concerning probability. Hume is here vindicated. Beginning by giving what may be the best, updated paraphrase (...) of Hume’s negative argument about causal judgments, Ayer explicates the subsumed atomicity, the denial of natural necessity, and the claimed vacuity or circularity of introducing the "uniformity of nature." Ayer goes on to distinguish a priori or logical probabilities, statistical or frequency judgments, and credibility or ground floor inductive judgments, and he summarily argues that the admissibility of the first two forms of judgment, properly understood, provides no real justification for credibility judgments, which, though not defined as subjective, turn out to need some support from our decision to project and therefore entrench certain predicates, or take as lawlike certain generalizations, rather than others. Ayer here includes a very clear explication and criticism of Carnap’s way out in the Logical Concept of Probability, and elsewhere. Ayer acutely summarizes and discusses the Hempel and Goodman paradoxes, taking a position substantially in agreement with Quine and Goodman, and welds this discussion into a Humean conclusion: "In a certain sense cases are what we choose them to be. We do not decide what facts habitually go together but we do decide what combinations are to be imaginatively projected. The despised savages who beat gongs at solar eclipses to summon back the sun are not making any factual error. It is a true generalization that whenever they beat the gongs the sun does shine again, and if they always keep up the ceremony, it is also a true generalization that the sun comes out again only when they beat the gongs. If we despise them, it is because they tell a fictional story about what would happen if they did not beat the gongs, which we do not accept. They see what goes on as well as we do; it is just that we have a different and, we think, a better idea of the way the world works." To say all this is just, of course, to summarize and refurbish Hume’s position on causality. But to do that has two very real values now: 1) It underlines and exposes the epistemic basis of the position taken by Hume’s heirs; 2) It makes clear what are the departures required if one is to differ in substance from Hume and Ayer.—J. L. (shrink)

When judges decide cases in courts of law, are they ethically obligated to apply the law correctly? Many people who think about legal systems believe so. The conviction that judges are “bound” by the law is common among lawyers, judges, legal scholars, and members of the general public. One of the most severe accusations one can make against a public official is that she has deviated from the law in her official capacity. The principle of judicial fidelity figures centrally in (...) one of the most celebrated Western political values: the rule of law. This is an ideal which some Western powers, notably the United States, aspire to export on a global scale. The principle of judicial fidelity implies many basic norms of adjudication. These vary from one legal system to another, but in Anglo-American systems they include the following: trial judges must take all admissible evidence into account; judges must follow recognized sources of law, such as constitutions, legislation, and common-law rules; inferior courts must follow superior court rulings on matters of law; courts should give at least substantial weight even to “horizontal” precedent; et cetera. Limits of Legality is a scholarly monograph, in progress, that advances our understanding of the principle of judicial fidelity and defends a refined and unorthodox version of it. The book draws on my background as both a lawyer and a philosopher, addressing issues at the intersection of legal philosophy and ethical theory. It breaks new ground in the normative theory of adjudication – the branch of legal philosophy that concerns how judges in courts of law should decide cases. Mine is one of the first projects to apply the resources of contemporary normative ethics to central questions concerning the rule of law and judicial obligation. I model the normative presuppositions of existing theories of the rule of law in terms that take into account developments in ethical theory over the past two decades.. (shrink)

In ordinary circumstances, we can assess the worth of evidence well enough without benefit of any theory; but when evidence is especially complex, ambiguous, or emotionally disturbing—as it often is in legal contexts—epistemological theory may be helpful. A legal fact-finder is asked to determine whether the proposition that the defendant is guilty, or is liable, is established to the required degree of proof by the [admissible] evidence presented; i.e., to make an epistemological appraisal. The foundherentist theory (...) developed in Evidence and Inquiry can help us understand what this means; and reveals that degrees of proof cannot be construed as mathematical probabilities: a point illustrated by comparing the advantages of a foundherentist analysis with the disadvantages of probabilistic analyses of the evidence in the Sacco and Vanzetti case (1921), and of the role of the statistical evidence in Collins (1968). (shrink)

When are we responsible for addressing the acute deprivations of others beyond state borders? One widely held view is that we are responsible for addressing or preventing acute deprivations insofar as we have contributed to them or are contributing to bringing them about. But how should agents who endorse this “contribution principle” of allocating responsibility yet are uncertain whether or how much they have contributed to some problem conceive of their responsibilities with respect to it? Legal systems adopt formal norms (...) that set the burden of proof, the standard of proof, and the constraints on admissible evidence, which help courts to apply liability rules in cases where there are significant evidential uncertainties. Applying principles for determining ethical responsibilities, too, require such norms. Their content, however, should be much different from that found in criminal and even civil legal settings, where the moral costs of falsely holding those responsible for bringing about some harm are more worrisome. Instead of demanding that an agent be shown to have contributed to some deprivation “beyond a reasonable doubt,” we should express a willingness to err in favor of the acutely deprived subjects, demanding that even those agents who merely suspect that they may have substantially contributed to these deprivations undertake efforts to address them. (shrink)

In 2003, philosopher Nick Bostrom presented the provocative idea that we are now living in a computer simulation. Although his argument is structured to include a “hypothesis,” it is unclear that his proposition can be accounted as a properly scientific hypothesis. Here Bostrom’s argument is engaged critically by accounting for philosophical and scientific positions that have implications for Bostrom’s principal thesis. These include discussions from Heidegger, Einstein, Heisenberg, Feynman, and Dreyfus that relate to modelling of structures of thinking and computation. (...) In consequence of this accounting, given that there seems to be no reasonably admissible evidence to count for the task of falsification, one concludes that the computer simulation argument’s hypothesis is only speculative and not scientific. (shrink)

The trial of Jean-Paul Akayesu is by far the most well known and widely discussed case at the International Criminal Tribunal for Rwanda, a distinction that can be attributed to the fact that it was groundbreaking for several reasons. However, with regard to the importance of this trial both as a precedent for subsequent ICTR cases and within the broader context of international jurisprudence, its most significant contribution has undoubtedly been the recognition and prosecution of rape as a means of (...) perpetrating genocide. The task of collecting admissible evidence to that end was heavily impacted by the necessity of interpreting and translating witness testimonies from their original language of expression, Kinyarwanda, into the working languages of the Tribunal, French and English. The multiple challenges associated with this translation process concerned not only questions of semantic equivalence of specific lexical terms. They also highlighted the considerable ‘cultural collision’ that occurred in the courtroom between the Rwandan witnesses and the international judiciary. This article elucidates the complex task faced by the courtroom interpreters in navigating these linguistic and sociocultural considerations underpinning the evocations of rape within the evidentiary framework of the Akayesu trial. (shrink)

The future of trial lies in customization. Throughout the Anglo-American world, the public model of criminal and civil procedure is gradually giving way to a private contractual paradigm, one which allows the litigating parties to tailor the evidentiary and procedural landscape of trial to fit their specific needs and preferences. Procedural and evidence rules are shifting from mandatory safeguards of public values to default rules and bargaining chips within the hands of the litigating parties. There is growing recognition in (...) the ability of litigating parties in civil trials and of defendants in criminal trials to waive evidentiary and procedural rights, such as the right of cross-examination, the right to trial by jury, or the right to appeal. Courts are exhibiting a willingness to enforce choice of procedure and choice of evidence agreements, such as agreements to restrict the presentation of otherwise admissible evidence or to allow for presentation of otherwise inadmissible evidence. (shrink)

The most familiar philosophical conception of objective chance renders determinism incompatible with non-trivial chances. This conception – associated in particular with the work of David Lewis – is not a good fit with our use of the word ‘chance’ and its cognates in ordinary discourse. In this paper we show how a generalized framework for chance can reconcile determinism with non-trivial chances, and provide for a more charitable interpretation of ordinary chance-talk. According to our proposal, variation in an admissible (...) ‘evidence base’ generates a spectrum of different chance functions. Successive coarse-grainings of the evidence base generates a partial ordering of chance functions, with finer trumping coarser if known. We suggest that chance-attributions in ordinary discourse express different chance functions in different contexts, and we sketch a potential contextual mechanism for making particular chance functions salient. The mechanism involves the idea that admissible evidence is available evidence: propositions that could be known. A consequence is that attributions of objective chances inherit the relatively familiar context-sensitivity associated with the modal ‘could’. We show how this context-dependency undermines certain arguments for the incompatibility of chance with determinism. (shrink)