Anna Wierzbicka
- Published in print:
- 2006
- Published Online:
- September 2007
- ISBN:
- 9780195174748
- eISBN:
- 9780199788514
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195174748.003.0004
- Subject:
- Linguistics, English Language
This chapter investigates, in a historical and cultural perspective, the meaning of the word reasonable, and in particular, of the phrases reasonable man and reasonable doubt, which play an important ...
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This chapter investigates, in a historical and cultural perspective, the meaning of the word reasonable, and in particular, of the phrases reasonable man and reasonable doubt, which play an important role in Anglo-American law. Drawing on studies of the British Enlightenment such as Porter (2000), it traces the modern English concept of “reasonableness” back to the intellectual revolution brought about by the writings of John Locke, who (as Porter says) “replaced rationalism with reasonableness, in a manner which became programmatic for the Enlightenment in Britain”. The chapter also argues that the meaning of the word reasonable has changed over the last two centuries and that as a result, the meaning of phrases like reasonable man and beyond reasonable doubt has also changed. It further argues that since these phrases were continually in use for over two centuries and became entrenched in Anglo-American law as well as in ordinary language, and since the older meaning of reasonable is no longer known to most speakers, the change has, generally speaking, gone unnoticed. The chapter also shows how the meaning of the English word reasonable differs from that of the French word raisonable, and how semantic differences of this kind reflect differences in cultural ideals, traditions, and attitudes.Less
This chapter investigates, in a historical and cultural perspective, the meaning of the word reasonable, and in particular, of the phrases reasonable man and reasonable doubt, which play an important role in Anglo-American law. Drawing on studies of the British Enlightenment such as Porter (2000), it traces the modern English concept of “reasonableness” back to the intellectual revolution brought about by the writings of John Locke, who (as Porter says) “replaced rationalism with reasonableness, in a manner which became programmatic for the Enlightenment in Britain”. The chapter also argues that the meaning of the word reasonable has changed over the last two centuries and that as a result, the meaning of phrases like reasonable man and beyond reasonable doubt has also changed. It further argues that since these phrases were continually in use for over two centuries and became entrenched in Anglo-American law as well as in ordinary language, and since the older meaning of reasonable is no longer known to most speakers, the change has, generally speaking, gone unnoticed. The chapter also shows how the meaning of the English word reasonable differs from that of the French word raisonable, and how semantic differences of this kind reflect differences in cultural ideals, traditions, and attitudes.
L. Jonathan Cohen
- Published in print:
- 1977
- Published Online:
- October 2011
- ISBN:
- 9780198244127
- eISBN:
- 9780191680748
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198244127.003.0009
- Subject:
- Philosophy, Metaphysics/Epistemology, Philosophy of Science
This chapter presents an elaboration on the difficulty about proof beyond reasonable doubt. It is more inclined to hold that a particular conclusion falls short of certainty because there is a ...
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This chapter presents an elaboration on the difficulty about proof beyond reasonable doubt. It is more inclined to hold that a particular conclusion falls short of certainty because there is a particular, specifiable reason for doubting it, than to hold that it is reasonable to doubt the conclusion because it falls short of certainty. Hence a scale of mathematical probability is used for assessing proof beyond reasonable doubt. What is needed instead is a list of all the points that have to be established in relation to each element in the crime. Not that a high statistical probability is necessarily useless; but it must enter into a proof as a fact from which to argue rather than as a measure of the extent to which a conclusion has been established, and its relevance must also be separately established.Less
This chapter presents an elaboration on the difficulty about proof beyond reasonable doubt. It is more inclined to hold that a particular conclusion falls short of certainty because there is a particular, specifiable reason for doubting it, than to hold that it is reasonable to doubt the conclusion because it falls short of certainty. Hence a scale of mathematical probability is used for assessing proof beyond reasonable doubt. What is needed instead is a list of all the points that have to be established in relation to each element in the crime. Not that a high statistical probability is necessarily useless; but it must enter into a proof as a fact from which to argue rather than as a measure of the extent to which a conclusion has been established, and its relevance must also be separately established.
H L Ho
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199228300
- eISBN:
- 9780191711336
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199228300.003.0004
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
The standard of proof may be understood, first, as referring to the caution that must be exercised in making positive findings. A variant interpretation of the standard is proposed. The evidence must ...
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The standard of proof may be understood, first, as referring to the caution that must be exercised in making positive findings. A variant interpretation of the standard is proposed. The evidence must justify a strong enough belief in the truth of the disputed allegation where what is strong enough depends on the seriousness of the allegation and the consequences of accepting it as true. The need for caution is ethically motivated by concern and respect for the person to whom the finding is adverse. Secondly, the standard of proof is also about the distribution of caution. The civil standard instructs the fact-finder to be impartial whereas the criminal standard requires her to take a protective attitude towards the accused; the former is grounded in the principle of equality, and the latter in the demand for accountability by the state for the harm it seeks to inflict on citizens.Less
The standard of proof may be understood, first, as referring to the caution that must be exercised in making positive findings. A variant interpretation of the standard is proposed. The evidence must justify a strong enough belief in the truth of the disputed allegation where what is strong enough depends on the seriousness of the allegation and the consequences of accepting it as true. The need for caution is ethically motivated by concern and respect for the person to whom the finding is adverse. Secondly, the standard of proof is also about the distribution of caution. The civil standard instructs the fact-finder to be impartial whereas the criminal standard requires her to take a protective attitude towards the accused; the former is grounded in the principle of equality, and the latter in the demand for accountability by the state for the harm it seeks to inflict on citizens.
Sonali Chakravarti
- Published in print:
- 2020
- Published Online:
- September 2020
- ISBN:
- 9780226654157
- eISBN:
- 9780226654324
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226654324.003.0004
- Subject:
- Law, Legal Profession and Ethics
As the standard for the extremely high burden of proof on the state necessary for a guilty verdict, the phrase “beyond a reasonable doubt” is the quintessential legal convention that jurors may have ...
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As the standard for the extremely high burden of proof on the state necessary for a guilty verdict, the phrase “beyond a reasonable doubt” is the quintessential legal convention that jurors may have heard about before entering the courtroom and are mandated to reckon with during deliberation. What is less familiar is a connection that could be made between the juror’s role in interpreting the standard and the tools that the process gives them for an assessment of their own decision making (such as through an interrogation of implicit bias, the demands of the presumption of innocence, and the seductions of narrative closure). Applying the ideals of reasonable doubt to the perceptions of jurors themselves in relation to both the factual and moral questions embedded in the charge is one way to highlight how critical the task of self-assessment is, equal to external engagement with the evidence.Less
As the standard for the extremely high burden of proof on the state necessary for a guilty verdict, the phrase “beyond a reasonable doubt” is the quintessential legal convention that jurors may have heard about before entering the courtroom and are mandated to reckon with during deliberation. What is less familiar is a connection that could be made between the juror’s role in interpreting the standard and the tools that the process gives them for an assessment of their own decision making (such as through an interrogation of implicit bias, the demands of the presumption of innocence, and the seductions of narrative closure). Applying the ideals of reasonable doubt to the perceptions of jurors themselves in relation to both the factual and moral questions embedded in the charge is one way to highlight how critical the task of self-assessment is, equal to external engagement with the evidence.
Anthony Hooper
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199532711
- eISBN:
- 9780191705489
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199532711.003.0039
- Subject:
- Law, Legal History
This chapter begins with a description of the case of Reginald Woolmington, aged twenty-one, a dairy man who killed his newly wedded wife, Violet, aged seventeen and a half. This case is analysed ...
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This chapter begins with a description of the case of Reginald Woolmington, aged twenty-one, a dairy man who killed his newly wedded wife, Violet, aged seventeen and a half. This case is analysed against the backdrop of the Viscount Sankey's famous quote: ‘Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. . . No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’ The chapter argues that the golden thread is so deeply woven into the fabric of our society that it is difficult to understand the importance at the time of Woolmington, not only in England but in the numerous dominions and colonies which then formed part of the British Empire. The requirement of proof beyond a reasonable doubt in criminal cases was embedded in the laws of all those countries which then formed part of that Empire. However, it is shown that Parliament is less attached.Less
This chapter begins with a description of the case of Reginald Woolmington, aged twenty-one, a dairy man who killed his newly wedded wife, Violet, aged seventeen and a half. This case is analysed against the backdrop of the Viscount Sankey's famous quote: ‘Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. . . No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’ The chapter argues that the golden thread is so deeply woven into the fabric of our society that it is difficult to understand the importance at the time of Woolmington, not only in England but in the numerous dominions and colonies which then formed part of the British Empire. The requirement of proof beyond a reasonable doubt in criminal cases was embedded in the laws of all those countries which then formed part of that Empire. However, it is shown that Parliament is less attached.
John H. Langbein
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780199287239
- eISBN:
- 9780191718137
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199287239.003.0005
- Subject:
- Law, Criminal Law and Criminology, Legal History
The judges attempted to admit defense counsel at trial for the limited purpose of assisting the defendant to probe accusing evidence, expecting that the defendant would otherwise continue to speak in ...
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The judges attempted to admit defense counsel at trial for the limited purpose of assisting the defendant to probe accusing evidence, expecting that the defendant would otherwise continue to speak in his or her own defense. By articulating and pressing for the enforcement of the prosecutorial burdens of production and proof, defense counsel largely silenced the defendant, leading to the beyond-reasonable-doubt standard of proof, and the privilege against self-incrimination. The adversary dynamic changed the very theory of the criminal trial. Whereas the old altercation trial had been understood as an opportunity for the accused to speak in person to the charges and the evidence against him, adversary criminal trial became an opportunity for defense counsel to test the prosecution case.Less
The judges attempted to admit defense counsel at trial for the limited purpose of assisting the defendant to probe accusing evidence, expecting that the defendant would otherwise continue to speak in his or her own defense. By articulating and pressing for the enforcement of the prosecutorial burdens of production and proof, defense counsel largely silenced the defendant, leading to the beyond-reasonable-doubt standard of proof, and the privilege against self-incrimination. The adversary dynamic changed the very theory of the criminal trial. Whereas the old altercation trial had been understood as an opportunity for the accused to speak in person to the charges and the evidence against him, adversary criminal trial became an opportunity for defense counsel to test the prosecution case.
E. Thomas Sullivan and Richard S. Frase
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195324938
- eISBN:
- 9780199869411
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195324938.003.0007
- Subject:
- Law, Constitutional and Administrative Law
Numerous constitutional and subconstitutional limitations on criminal liability embody one or more proportionality principles. Limiting retributive liability principles underlie constitutional rules ...
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Numerous constitutional and subconstitutional limitations on criminal liability embody one or more proportionality principles. Limiting retributive liability principles underlie constitutional rules prohibiting punishment without fair notice that the conduct is criminal. Such principles are also implicit in the prohibition of status crimes (such as “being an addict”), and retributive or other proportionality principles may underlie the requirement of proof beyond a reasonable doubt. Proportionality principles are also reflected in numerous subconstitutional rules governing criminal liability, including the rule of lenity; limits on the imposition of strict liability; voluntary-act requirements; limits on the availability of self defense and other affirmative defenses; and the grading of offenses according to offender culpability and harm. This chapter first examines constitutionalized proportionality limits, then subconstitutional ones, and it argues that much of the uncertainty and controversy surrounding some of these doctrines results from the failure to recognize and clearly articulate the underlying proportionality principles being applied.Less
Numerous constitutional and subconstitutional limitations on criminal liability embody one or more proportionality principles. Limiting retributive liability principles underlie constitutional rules prohibiting punishment without fair notice that the conduct is criminal. Such principles are also implicit in the prohibition of status crimes (such as “being an addict”), and retributive or other proportionality principles may underlie the requirement of proof beyond a reasonable doubt. Proportionality principles are also reflected in numerous subconstitutional rules governing criminal liability, including the rule of lenity; limits on the imposition of strict liability; voluntary-act requirements; limits on the availability of self defense and other affirmative defenses; and the grading of offenses according to offender culpability and harm. This chapter first examines constitutionalized proportionality limits, then subconstitutional ones, and it argues that much of the uncertainty and controversy surrounding some of these doctrines results from the failure to recognize and clearly articulate the underlying proportionality principles being applied.
Larry Laudan
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199606443
- eISBN:
- 9780191729683
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199606443.003.0006
- Subject:
- Philosophy, Moral Philosophy
This chapter explores the thesis that the use of the standard of proof beyond a reasonable doubt for trying those accused of violent crimes — especially if such defendants already have a history of ...
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This chapter explores the thesis that the use of the standard of proof beyond a reasonable doubt for trying those accused of violent crimes — especially if such defendants already have a history of serial offending — is an inappropriately exacting standard. The reason, in brief, is that such a standard fails to reckon with the very high costs and risks imposed on innocent citizens by the non‐conviction and release of falsely acquitted, serial felons. It argues further that those who hold that political morality demands that no defendant should ever be judged by a standard less rigorous than proof beyond reasonable doubt fail to grasp that the function of a standard of proof is to embody our best guesses about the respective costs of error. It goes on to show that familiar deontological theories utterly lack the conceptual resources for non‐arbitrarily defining any standard of proof, since such theories fail to comes to terms with the problems posed by factoring the risks of error into decisions about which actions are justified and which are not.Less
This chapter explores the thesis that the use of the standard of proof beyond a reasonable doubt for trying those accused of violent crimes — especially if such defendants already have a history of serial offending — is an inappropriately exacting standard. The reason, in brief, is that such a standard fails to reckon with the very high costs and risks imposed on innocent citizens by the non‐conviction and release of falsely acquitted, serial felons. It argues further that those who hold that political morality demands that no defendant should ever be judged by a standard less rigorous than proof beyond reasonable doubt fail to grasp that the function of a standard of proof is to embody our best guesses about the respective costs of error. It goes on to show that familiar deontological theories utterly lack the conceptual resources for non‐arbitrarily defining any standard of proof, since such theories fail to comes to terms with the problems posed by factoring the risks of error into decisions about which actions are justified and which are not.
L. Jonathan Cohen
- Published in print:
- 1977
- Published Online:
- October 2011
- ISBN:
- 9780198244127
- eISBN:
- 9780191680748
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198244127.003.0025
- Subject:
- Philosophy, Metaphysics/Epistemology, Philosophy of Science
This chapter begins by presenting the prevailing scepticism in the philosophy of science. If a fact that is provable beyond reasonable doubt is inductively certain, the legal assumption that proof ...
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This chapter begins by presenting the prevailing scepticism in the philosophy of science. If a fact that is provable beyond reasonable doubt is inductively certain, the legal assumption that proof beyond reasonable doubt is possible conflicts with the sceptical thesis that knowledge of general truths about the world is impossible. But if it is possible to know that one hypothesis is inductively more reliable than another, it is certainly possible to know also that a hypothesis is fully reliable. Prevalence of the sceptical error is due partly to unawareness of the systematic analogy between the structure of inductive support and the structure of logical truth, partly to a confusion between truth-conditions and justification-conditions, partly to an over-reaction to certain shattering events in the history of science, partly to the mistaken view that a correct assessment of how much one proposition supports another must be regarded as an analytic truth, and partly to the mistaken view that any inductive assessment presupposes certain untestable metaphysical assumptions. When all these points are borne in mind, it becomes clear that on issues of fact proof beyond reasonable doubt, and scientific knowledge, is at least in principle possible.Less
This chapter begins by presenting the prevailing scepticism in the philosophy of science. If a fact that is provable beyond reasonable doubt is inductively certain, the legal assumption that proof beyond reasonable doubt is possible conflicts with the sceptical thesis that knowledge of general truths about the world is impossible. But if it is possible to know that one hypothesis is inductively more reliable than another, it is certainly possible to know also that a hypothesis is fully reliable. Prevalence of the sceptical error is due partly to unawareness of the systematic analogy between the structure of inductive support and the structure of logical truth, partly to a confusion between truth-conditions and justification-conditions, partly to an over-reaction to certain shattering events in the history of science, partly to the mistaken view that a correct assessment of how much one proposition supports another must be regarded as an analytic truth, and partly to the mistaken view that any inductive assessment presupposes certain untestable metaphysical assumptions. When all these points are borne in mind, it becomes clear that on issues of fact proof beyond reasonable doubt, and scientific knowledge, is at least in principle possible.
Kristin Shrader-frechette General
- Published in print:
- 1993
- Published Online:
- October 2011
- ISBN:
- 9780195074369
- eISBN:
- 9780199852932
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195074369.003.0003
- Subject:
- Philosophy, Philosophy of Science
This chapter argues against the shift in paradigm in favor of scientific evidence in tort law cases. Recent proposals, seeking to require more demanding scientific evidence in toxic tort (and other) ...
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This chapter argues against the shift in paradigm in favor of scientific evidence in tort law cases. Recent proposals, seeking to require more demanding scientific evidence in toxic tort (and other) suits, are mistaken because these seem to impose a universal standard of evidence for quite different institutions—with the risk of distorting existing reasonable tort law relationships, and erring on the side of exclusion rather than admission of evidence. Since the plaintiff bears the burden of production, requiring that this be met by proof equivalent to the criminal law's “beyond a reasonable doubt,” requirement, as some have argued, this substantially distorts the balance of interests between plaintiff and defendant. The appropriate paradigm is not that for scientific practice but the traditional tort law standard of evidence articulated in Ferebee v. Chevron Chemical Co., which said that the appropriate standard is not scientific certainty but “legal sufficiency.” The paradigm of choice in torts is in a sense inclined to retain much of the status quo.Less
This chapter argues against the shift in paradigm in favor of scientific evidence in tort law cases. Recent proposals, seeking to require more demanding scientific evidence in toxic tort (and other) suits, are mistaken because these seem to impose a universal standard of evidence for quite different institutions—with the risk of distorting existing reasonable tort law relationships, and erring on the side of exclusion rather than admission of evidence. Since the plaintiff bears the burden of production, requiring that this be met by proof equivalent to the criminal law's “beyond a reasonable doubt,” requirement, as some have argued, this substantially distorts the balance of interests between plaintiff and defendant. The appropriate paradigm is not that for scientific practice but the traditional tort law standard of evidence articulated in Ferebee v. Chevron Chemical Co., which said that the appropriate standard is not scientific certainty but “legal sufficiency.” The paradigm of choice in torts is in a sense inclined to retain much of the status quo.
Chris Heffer
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199746842
- eISBN:
- 9780199345052
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199746842.003.0010
- Subject:
- Linguistics, Sociolinguistics / Anthropological Linguistics
Chris Heffer sets out an argument, illustrated through judicial attitudes to jury instruction on the criminal standard of proof, about how authorized language can lead over time to a breakdown in ...
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Chris Heffer sets out an argument, illustrated through judicial attitudes to jury instruction on the criminal standard of proof, about how authorized language can lead over time to a breakdown in legal-lay communication. He argues that a few individuals, invested with the highest institutional authority, can use their powerful agency, or authorized voice, in legal metadiscourse to establish a privileged reading of a text that resounds through time. This is internalized as authoritative discourse to the point where it becomes part of a judge’s accumulated, normalized and unquestioned experience of discursive practice in legal settings. Where this legal-linguistic habitus is, or becomes, incommensurable with lay discursive practice, it can result in the legal professional failing to hear the lay voice and tending to question the competence of the lay person rather than the authoritative discourse. This communication breakdown can be highly consequential and may result in miscarriages of justice.Less
Chris Heffer sets out an argument, illustrated through judicial attitudes to jury instruction on the criminal standard of proof, about how authorized language can lead over time to a breakdown in legal-lay communication. He argues that a few individuals, invested with the highest institutional authority, can use their powerful agency, or authorized voice, in legal metadiscourse to establish a privileged reading of a text that resounds through time. This is internalized as authoritative discourse to the point where it becomes part of a judge’s accumulated, normalized and unquestioned experience of discursive practice in legal settings. Where this legal-linguistic habitus is, or becomes, incommensurable with lay discursive practice, it can result in the legal professional failing to hear the lay voice and tending to question the competence of the lay person rather than the authoritative discourse. This communication breakdown can be highly consequential and may result in miscarriages of justice.
Sarah Moss
- Published in print:
- 2018
- Published Online:
- March 2018
- ISBN:
- 9780198792154
- eISBN:
- 9780191861260
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198792154.003.0010
- Subject:
- Philosophy, Metaphysics/Epistemology, Philosophy of Mind
This chapter applies probabilistic knowledge to problems in legal and moral philosophy. It is argued that legal standards of proof require factfinders to know probabilistic contents. For instance, ...
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This chapter applies probabilistic knowledge to problems in legal and moral philosophy. It is argued that legal standards of proof require factfinders to know probabilistic contents. For instance, proof by a preponderance of the evidence requires knowledge that the defendant is at least .5 likely to be liable, whereas proof of guilt beyond a reasonable doubt requires knowledge of a significantly stronger content. The fact that legal proof requires knowledge explains why merely statistical evidence is insufficient to license a legal verdict of liability or guilt. In addition to explaining the limited value of statistical evidence, probabilistic knowledge is useful in spelling out norms violated by acts of racial and other profiling. It can be epistemically wrong to infer from statistics that a woman is probably an administrative assistant, for instance, even when inferring facts about ordinary objects from similar statistics is perfectly okay.Less
This chapter applies probabilistic knowledge to problems in legal and moral philosophy. It is argued that legal standards of proof require factfinders to know probabilistic contents. For instance, proof by a preponderance of the evidence requires knowledge that the defendant is at least .5 likely to be liable, whereas proof of guilt beyond a reasonable doubt requires knowledge of a significantly stronger content. The fact that legal proof requires knowledge explains why merely statistical evidence is insufficient to license a legal verdict of liability or guilt. In addition to explaining the limited value of statistical evidence, probabilistic knowledge is useful in spelling out norms violated by acts of racial and other profiling. It can be epistemically wrong to infer from statistics that a woman is probably an administrative assistant, for instance, even when inferring facts about ordinary objects from similar statistics is perfectly okay.
Roger W. Shuy
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199354832
- eISBN:
- 9780199398454
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199354832.001.0001
- Subject:
- Linguistics, Sociolinguistics / Anthropological Linguistics
The Language of Murder Cases describes fifteen court cases for which Roger Shuy served as an expert language witness and explains the issues at stake in those cases for lawyers and ...
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The Language of Murder Cases describes fifteen court cases for which Roger Shuy served as an expert language witness and explains the issues at stake in those cases for lawyers and linguists. Investigations and trials in murder cases are guided by the important legal terms describing the mental states of defendants—their intentionality, predisposition, and voluntariness. Unfortunately, statutes and dictionaries can provide only loose definitions of these terms, largely because mental states are virtually impossible to define. Their meaning, therefore, must be adduced either by inferences and assumptions or by any available language evidence—which is often the best window into a speaker’s mind. Fortunately, this window of evidence exists primarily in electronically recorded undercover conversations, police interviews, and legal hearings and trials, all of which are subject to linguistic analysis during trial. This book examines how vague legal terminology can be clarified by analysis of the language used by suspects, defendants, law enforcement officers, and attorneys. Shuy examines speech events, schemas, agendas, speech acts, conversational strategies, and smaller language units, such as syntax, lexicon, and phonology, and discusses how these examinations can play a major role in deciding murder cases. After defining key terms common in murder investigations, Shuy describes fifteen fascinating cases, analyzing the role that language played in each. He concludes with a summary of how his analyses were regarded by the juries as they struggled with the equally vague concept of reasonable doubt.Less
The Language of Murder Cases describes fifteen court cases for which Roger Shuy served as an expert language witness and explains the issues at stake in those cases for lawyers and linguists. Investigations and trials in murder cases are guided by the important legal terms describing the mental states of defendants—their intentionality, predisposition, and voluntariness. Unfortunately, statutes and dictionaries can provide only loose definitions of these terms, largely because mental states are virtually impossible to define. Their meaning, therefore, must be adduced either by inferences and assumptions or by any available language evidence—which is often the best window into a speaker’s mind. Fortunately, this window of evidence exists primarily in electronically recorded undercover conversations, police interviews, and legal hearings and trials, all of which are subject to linguistic analysis during trial. This book examines how vague legal terminology can be clarified by analysis of the language used by suspects, defendants, law enforcement officers, and attorneys. Shuy examines speech events, schemas, agendas, speech acts, conversational strategies, and smaller language units, such as syntax, lexicon, and phonology, and discusses how these examinations can play a major role in deciding murder cases. After defining key terms common in murder investigations, Shuy describes fifteen fascinating cases, analyzing the role that language played in each. He concludes with a summary of how his analyses were regarded by the juries as they struggled with the equally vague concept of reasonable doubt.
Paul Thagard
- Published in print:
- 2019
- Published Online:
- March 2019
- ISBN:
- 9780190678722
- eISBN:
- 9780190686420
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190678722.003.0011
- Subject:
- Psychology, Cognitive Models and Architectures
The legal profession is a complex of mental and social mechanisms. Social cognitivism yields new ways of thinking about reasonable doubt, wrongful convictions, and criminal responsibility. Semantic ...
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The legal profession is a complex of mental and social mechanisms. Social cognitivism yields new ways of thinking about reasonable doubt, wrongful convictions, and criminal responsibility. Semantic pointer theories of cognition and emotion explain individual decisions, including defective ones that lead to wrongful convictions. Explanatory coherence shows how people can make judgments of guilt in accord with legal principles, and reasonable doubt based on the value of the presumption of innocence is a legitimate motivated inference. However, illegitimate motivated inferences resulting from emotional coherence with inappropriate values can produce biased and inaccurate verdicts. Moreover, the social interactions that operate in trials and other legal proceedings can naturally be explained using the semantic pointer theory of communication that mingles verbal and nonverbal modes while accommodating the interactions of cognitions and emotions.Less
The legal profession is a complex of mental and social mechanisms. Social cognitivism yields new ways of thinking about reasonable doubt, wrongful convictions, and criminal responsibility. Semantic pointer theories of cognition and emotion explain individual decisions, including defective ones that lead to wrongful convictions. Explanatory coherence shows how people can make judgments of guilt in accord with legal principles, and reasonable doubt based on the value of the presumption of innocence is a legitimate motivated inference. However, illegitimate motivated inferences resulting from emotional coherence with inappropriate values can produce biased and inaccurate verdicts. Moreover, the social interactions that operate in trials and other legal proceedings can naturally be explained using the semantic pointer theory of communication that mingles verbal and nonverbal modes while accommodating the interactions of cognitions and emotions.
Roger W. Shuy
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199354832
- eISBN:
- 9780199398454
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199354832.003.0011
- Subject:
- Linguistics, Sociolinguistics / Anthropological Linguistics
This chapter reviews the attempted understandings and problems involving the legal concept of reasonable doubt, which by definition is based on jurors’ efforts to deal with the legal concepts of ...
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This chapter reviews the attempted understandings and problems involving the legal concept of reasonable doubt, which by definition is based on jurors’ efforts to deal with the legal concepts of intentionality, predisposition, and voluntariness. Jury decisions of the fifteen murder cases are individually reviewed, and the linguistic tools used in each case are reprised, including speech events, schemas, agendas (via topics and responses), conversational strategies used by the police, and critical lexical, phonetic, and syntax ambiguities. The effects of linguistic assistance can never be measured precisely, but an effort is made to show when it seems to have been successful and when it was less so.Less
This chapter reviews the attempted understandings and problems involving the legal concept of reasonable doubt, which by definition is based on jurors’ efforts to deal with the legal concepts of intentionality, predisposition, and voluntariness. Jury decisions of the fifteen murder cases are individually reviewed, and the linguistic tools used in each case are reprised, including speech events, schemas, agendas (via topics and responses), conversational strategies used by the police, and critical lexical, phonetic, and syntax ambiguities. The effects of linguistic assistance can never be measured precisely, but an effort is made to show when it seems to have been successful and when it was less so.
James Crawford
- Published in print:
- 2015
- Published Online:
- January 2016
- ISBN:
- 9780198739807
- eISBN:
- 9780191802775
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198739807.003.0037
- Subject:
- Law, Public International Law, Company and Commercial Law
This chapter focuses on arbitrator challenges in International Centre for Settlement of Investment Disputes (ICSID) arbitrations. It considers the requirements of the relevant provisions of the ICSID ...
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This chapter focuses on arbitrator challenges in International Centre for Settlement of Investment Disputes (ICSID) arbitrations. It considers the requirements of the relevant provisions of the ICSID Convention, arbitral pronouncements on the relationship between those provisions, and some further specific issues raised in ICSID arbitrations. In particular, it looks at whether the standard of ‘reasonable doubt’, which is applied to the disqualification of arbitrators in certain other regimes, is compatible with the provisions of the ICSID Convention. The relatively low proportion of challenges to ICSID arbitrators that have led to disqualification suggests that the threshold for a successful challenge in ICSID appears to be higher than alternative regimes.Less
This chapter focuses on arbitrator challenges in International Centre for Settlement of Investment Disputes (ICSID) arbitrations. It considers the requirements of the relevant provisions of the ICSID Convention, arbitral pronouncements on the relationship between those provisions, and some further specific issues raised in ICSID arbitrations. In particular, it looks at whether the standard of ‘reasonable doubt’, which is applied to the disqualification of arbitrators in certain other regimes, is compatible with the provisions of the ICSID Convention. The relatively low proportion of challenges to ICSID arbitrators that have led to disqualification suggests that the threshold for a successful challenge in ICSID appears to be higher than alternative regimes.
Gary Lawson
- Published in print:
- 2017
- Published Online:
- September 2017
- ISBN:
- 9780226432052
- eISBN:
- 9780226432199
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226432199.003.0008
- Subject:
- Law, Constitutional and Administrative Law
This chapter explores the considerations that enter into the selection of standards of proof for legal claims. It lays out the considerations that have led the American legal system to embrace a ...
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This chapter explores the considerations that enter into the selection of standards of proof for legal claims. It lays out the considerations that have led the American legal system to embrace a standard of proof beyond a reasonable doubt for facts in criminal cases, a standard of proof by a preponderance of the evidence for (most) facts in (most) civil cases, and an implicit standard of proof of “better-than-available-alternatives” for (most) legal claims in both criminal and civil cases. It suggests that the reasons thus far given for distinguishing civil from criminal cases, and for distinguishing factual from legal claims, are not necessarily persuasive, and it offers a very tepid justification for applying a somewhat higher standard of proof for legal claims than is consistent with existing practice.Less
This chapter explores the considerations that enter into the selection of standards of proof for legal claims. It lays out the considerations that have led the American legal system to embrace a standard of proof beyond a reasonable doubt for facts in criminal cases, a standard of proof by a preponderance of the evidence for (most) facts in (most) civil cases, and an implicit standard of proof of “better-than-available-alternatives” for (most) legal claims in both criminal and civil cases. It suggests that the reasons thus far given for distinguishing civil from criminal cases, and for distinguishing factual from legal claims, are not necessarily persuasive, and it offers a very tepid justification for applying a somewhat higher standard of proof for legal claims than is consistent with existing practice.
John Kekes
- Published in print:
- 2016
- Published Online:
- January 2017
- ISBN:
- 9780226359458
- eISBN:
- 9780226359595
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226359595.003.0007
- Subject:
- Philosophy, General
We have a present self with which we are dissatisfied and aim at a future self that would be better. The conflicts between them are permanent problems in our evaluative framework. Aiming at an ...
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We have a present self with which we are dissatisfied and aim at a future self that would be better. The conflicts between them are permanent problems in our evaluative framework. Aiming at an undivided self is a dangerous ideal, as shown by the lives of Cortes, who caused immense harm to millions of innocent people, and Weil, who slowly and fanatically destroyed herself. Both had consequences that cannot be reasonably accepted. We have reason to improve our present self and to develop a better future self, but our evaluations of what would be better are dictated by our present self with which we are dissatisfied and by the evaluative framework and its modes of evaluation. In the light of these problems, it is reasonable to doubt our own evaluations and to cultivate a negative capability that understands our imperfections.Less
We have a present self with which we are dissatisfied and aim at a future self that would be better. The conflicts between them are permanent problems in our evaluative framework. Aiming at an undivided self is a dangerous ideal, as shown by the lives of Cortes, who caused immense harm to millions of innocent people, and Weil, who slowly and fanatically destroyed herself. Both had consequences that cannot be reasonably accepted. We have reason to improve our present self and to develop a better future self, but our evaluations of what would be better are dictated by our present self with which we are dissatisfied and by the evaluative framework and its modes of evaluation. In the light of these problems, it is reasonable to doubt our own evaluations and to cultivate a negative capability that understands our imperfections.
Patrick McGilligan
- Published in print:
- 2013
- Published Online:
- August 2015
- ISBN:
- 9780816676552
- eISBN:
- 9781452948942
- Item type:
- chapter
- Publisher:
- University of Minnesota Press
- DOI:
- 10.5749/minnesota/9780816676552.003.0020
- Subject:
- Film, Television and Radio, Film
This chapter details events in Fritz Lang’s life from 1953 to 1956. Now under contract at Columbia, Lang would stumble across a property that was made to order for him—one of those happy accidents of ...
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This chapter details events in Fritz Lang’s life from 1953 to 1956. Now under contract at Columbia, Lang would stumble across a property that was made to order for him—one of those happy accidents of time and place that for the most part eluded the filmmaker after Germany. This was The Big Heat based on a novel by William P. McGivern. The story follows Sergeant Bannion as he endeavors to investigate the suspicious suicide of a corrupt cop. As filming began on March 11, 1953, Lang was acutely aware that The Big Heat offered a chance at a new lease on his career. The film was previewed in August and released in October. The reviews were fair, the box office average. Yet almost overnight The Big Heat became one of Lang’s most highly esteemed works around the world. The chapter also describes the death of Lang’s ex-wife Thea von Harbou; the making of Beyond a Reasonable Doubt; and his retirement.Less
This chapter details events in Fritz Lang’s life from 1953 to 1956. Now under contract at Columbia, Lang would stumble across a property that was made to order for him—one of those happy accidents of time and place that for the most part eluded the filmmaker after Germany. This was The Big Heat based on a novel by William P. McGivern. The story follows Sergeant Bannion as he endeavors to investigate the suspicious suicide of a corrupt cop. As filming began on March 11, 1953, Lang was acutely aware that The Big Heat offered a chance at a new lease on his career. The film was previewed in August and released in October. The reviews were fair, the box office average. Yet almost overnight The Big Heat became one of Lang’s most highly esteemed works around the world. The chapter also describes the death of Lang’s ex-wife Thea von Harbou; the making of Beyond a Reasonable Doubt; and his retirement.
Roger W. Shuy
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199354832
- eISBN:
- 9780199398454
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199354832.003.0001
- Subject:
- Linguistics, Sociolinguistics / Anthropological Linguistics
This chapter outlines the structure of the book, pointing out that the key legal terms intentionality, predisposition, and voluntariness will be addressed in the fifteen murder cases described in ...
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This chapter outlines the structure of the book, pointing out that the key legal terms intentionality, predisposition, and voluntariness will be addressed in the fifteen murder cases described in this book. The fifteen cases are of three types: those in which law enforcement has received written threats but doesid not know who wrote them, cases in which law enforcement suspectsed a planned murder and then surreptitiously tape-recordsed the suspect before it could happens, and cases in which a suspect wais in custody while being questioned by the police. After introducing the major linguistic tools applied to the case evidence, this chapter points out that juries must wrestle with still another legal term, reasonable doubt, as they try to understand intentionality, predisposition, and voluntariness. Less
This chapter outlines the structure of the book, pointing out that the key legal terms intentionality, predisposition, and voluntariness will be addressed in the fifteen murder cases described in this book. The fifteen cases are of three types: those in which law enforcement has received written threats but doesid not know who wrote them, cases in which law enforcement suspectsed a planned murder and then surreptitiously tape-recordsed the suspect before it could happens, and cases in which a suspect wais in custody while being questioned by the police. After introducing the major linguistic tools applied to the case evidence, this chapter points out that juries must wrestle with still another legal term, reasonable doubt, as they try to understand intentionality, predisposition, and voluntariness.