16. Kaplow 2012 proposes radical law reform. The threshold of proof should be set at the level that maximizes social welfare. Unlike the conventional ex-post perspective, which focuses on the probability of acts allegedly committed and the “direct operational costs” of an “erroneous attribution of responsibility” (at 746), Kaplow`s theory adopts an ex ante perspective that takes into account the likely impact of the choice of the threshold of proof on social behaviour as a whole. Requiring stronger evidence as a prerequisite for the imposition of liability would make it more difficult to obtain legal remedies. This will reduce the deterrence of the law (because people know it`s easier to get away with harmful actions now) and mitigate its deterrent effect (people will be less likely to exercise excessive caution and refrain from benign acts for fear of being wrongly punished). Conversely, a reduction in the demand for evidence will have the opposite effect. The optimal threshold is one that maximizes deterrence while minimizing cooling. For a detailed critique of Kaplow`s proposal for practical, conceptual, and other reasons, see Allen and Stein 2013. This idea of the weight of evidence has been applied by some jurists to assess the sufficiency of evidence to meet legal standards of proof. [25] In the simplest case, we can consider the weight of the legal determination of facts as the amount of evidence in court. Weight is distinguished from probability.
The weight of evidence may be high and the mathematical probability low, as in the situation where the prosecution presents a lot of evidence that tends to incriminate the accused but the defense has an unwavering alibi (Cohen 1986: 641). Conversely, the evidence presented in a case could establish a sufficient degree of probability – high enough to exceed the threshold of evidence assumed for the mathematical design of the standard of proof – and not yet have sufficient weight. In the highly controversial Gate Crasher paradox, the only evidence available shows that the defendant was one of a thousand spectators at a rodeo show and that only four hundred and ninety-nine tickets were issued. The defendant is sued by the organizer for door collision. The mathematical probability that the defendant was a barrier breaker is 0.501 and therefore reaches the probabilistic threshold of civil liability. But according to the principle of negation of mathematical probability, there is a probability of 0.499 that the defendant paid for his entry. In these circumstances, it is intuitively unfair to hold him accountable (Cohen 1977:75). One possible explanation for his lack of responsibility is that the evidence is too weak or of insufficient weight. Wigmore`s position on relevance contrasts strangely with his firm position against the judge being bound by case law to judge the weight or credibility of the evidence (Wigmore 1913).
More importantly, the second part of his argument does not fit well with the first part either. If, as Wigmore argues, the evidence must have more value to make it legally relevant, the court must consider the probative value of the evidence and weigh it against the time and costs that may be spent on receiving the evidence, the availability of other evidence, the risk that the evidence is misleading or confusing the judge, etc. Since the assessment of surplus value, and thus legal relevance, is so contextual, it is difficult to see how a judicial precedent in another case can be of great value in determining a point of legal relevance (James 1941:702). Again, the terminology is imprecise. Eligibility and eligibility are not clearly distinguished. It is common for irrelevant evidence or evidence of an intangible fact to be classified as “inadmissible”. This means that the court refuses to accept evidence if it is irrelevant or irrelevant. However, it is important that the court also excludes evidence for reasons other than irrelevance and immateriality. For Montrose, it makes sense to limit the concept of “inadmissibility” to the exclusion of evidence based on these other grounds (Montrose 1954: 541-543). When evidence is rejected because it is irrelevant, it is, as Thayer (1898:515) puts it, “the rule of reason that rejects it”; If the evidence is rejected on the basis of a rule of admissibility or exclusion, the rejection shall be effected ipso jure.
The concepts of admissibility and materiality should also be separated. The rules of admissibility or exclusion serve different objectives and grounds from those which define the criminal offence or civil proceedings pending before the court, and it is that right which determines the substance of the facts of the dispute. The term “evidence” means and includes: (1) all statements that the Court admits or causes to be required or requires witnesses before it…; These declarations are called “acts of inquiry”. (2) all documents submitted to the Court for inspection; All these documents are considered documentary evidence. Leggett`s ordeal raised several important legal issues, including the definition of who is a journalist and who should not claim privilege, the extent to which journalists can protect confidential sources in articles related to criminal proceedings, the differences between state shield laws, and the lack of shield protection under federal law. Leggett also proved that journalists face jail time to protect their reputation and sources: a journalist known for identifying a source after promising confidentiality might struggle to get information from other sources in the future. There is a second way of thinking about probative value. Under the second view, but not on the first, the probative value of an evidence is assessed in context. E`s certainty may be low in one state of the other line of evidence and significant in another line of evidence (Friedman, 1986; Friedman and Park, 2003; see Davis and Follette, 2002, 2003).
If the other evidence shows that a woman died when she fell down an escalator in a mall while shopping, it is unlikely that her husband`s history of domestic violence would have probative value in proving that he was responsible for her death.
