LegaL evidence and Proof This page has been left blank intentionally Legal evidence and Proof Statistics, Stories, Logic Edited by Hendrik kaPtein Leiden University Henry Prakken University of Groningen and Utrecht University Bart verHeij University of Groningen © Hendrik kaptein, Henry Prakken and Bart verheij 2009 all rights reserved. no part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Hendrik kaptein, Henry Prakken and Bart verheij have asserted their moral right under the Copyright, Designs and Patents Act, 1988, to be identified as the editors of this work. Published by ashgate Publishing Limited ashgate Publishing company Wey court east Suite 420 Union road 101 cherry Street farnham Burlington Surrey, gU9 7Pt vt 05401-4405 england USa www.ashgate.com British Library Cataloguing in Publication Data Legal evidence and proof : statistics, stories, logic. - (applied legal philosophy) 1. evidence (Law) i. kaptein, Hendrik ii. Prakken, Henry iii. verheij, Bart 347'.06 Library of Congress Cataloging-in-Publication Data kaptein, Hendrik. Legal evidence and proof : statistics, stories, logic / by Hendrik kaptein, Henry Prakken, and Bart verheij. p. cm. -- (applied legal philosophy) includes index. iSBn 978-0-7546-7620-1 1. evidence (Law) 2. evidence, criminal. i. Prakken, Henry. ii. verheij, Bart. iii. title. k2261.k37 2008 347'.06--dc22 2008033518 iSBn 978-0-7546-7620-1 contents Series Editor’s Preface vii List of Figures ix List of Tables xi Preface xiii general introduction 1 1 Burdens of evidence and Proof: Why Bear them? a Plea for Principled Opportunism in (Leaving) Legal Fact-finding (Alone) 15 Hendrik Kaptein 2 the fabrication of facts: the Lure of the incredible coincidence 39 Ton Derksen and Monica Meijsing 3 decision-making in the forensic arena 71 Ton Broeders 4 analysing Stories Using Schemes 93 Floris Bex 5 the evaluation of evidence: differences between Legal Systems 117 Marijke Malsch and Ian Freckelton 6 inference to the Best Legal explanation 135 Amalia Amaya 7 accepting the truth of a Story about the facts of a criminal case 161 Bart Verheij and Floris Bex 8 rigid anarchic Principles of evidence and Proof: anomist Panaceas against Legal Pathologies of Proceduralism 195 Hendrik Kaptein 9 a Logical analysis of Burdens of Proof 223 Henry Prakken and Giovanni Sartor vi Legal Evidence and Proof 10 twelve angry Men or one good Woman? asymmetric relations in evidentiary reasoning 255 Burkhard Schafer Index 283 Series editor’s Preface the objective of the applied Legal Philosophy series is to publish work which adopts a theoretical approach to the study of particular areas or aspects of law or deals with general theories of law in a way which focused on issues of practical moral and political concern in specific legal contexts. in recent years there has been an encouraging tendency for legal philosophers to utilize detailed knowledge of the substance and practicalities of law and a noteworthy development in the theoretical sophistication of much legal research. the series seeks to encourage these trends and to make available studies in law which are both genuinely philosophical in approach and at the same time based on appropriate legal knowledge and directed towards issues in the criticism and reform of actual laws and legal systems. the series will include studies of all the main areas of law, presented in a manner which relates to the concerns of specialist legal academics and practitioners. each book makes an original contribution to an area of legal study while being comprehensible to those engaged in a wide variety of disciplines. their legal content is principally anglo-american, but a wide-ranging comparative approach is encouraged and authors are drawn from a variety of jurisdictions. tom campbell centre for applied Philosophy and Public ethics charles Sturt University, canberra This page has been left blank intentionally List of figures 4.1 Pennington and Hastie’s episode scheme 97 4.2 Stories, arguments and generalizations 102 4.3 adding hidden conditions to a generalization 103 4.4 Unpacking a causal generalization 103 4.5 the relationships between the intentional action and the robbery scheme 106 4.6 recursive story schemes 107 4.7 the robbery scheme with a more detailed causal structure 107 4.8 the Haaknat story 108 4.9 the Haaknat story with a clear causal structure 109 4.10 the ‘hide after threatened’ story scheme 110 4.11 Haaknat’s version of the story matched to the intentional action scheme 110 4.12 the story matched differently to the intentional action scheme 110 4.13 the updated Haaknat story 111 4.14 the ‘argument about money’ story scheme 113 6.1 Hypotheses and evidence in the o.j. Simpson case 148 6.2 theories of the case in the o.j. Simpson case 149 6.3 the ‘frame theory’ revised 150 7.1 the theory of anchored narratives 166 7.2 toulmin’s argument model 168 7.3 a datum and claim 169 7.4 adding a warrant 170 7.5 the role of a backing 170 7.6 an attacking reason (no warrant) 171 7.7 reinstatement 172 9.1 a dialectical tree 234 9.2 an extended dialectical tree 235 9.3 an argument 236 9.4 Adjudicating conflicts between arguments 242 9.5 the arguments in the criminal case 246