Ernesto Saccardi
University of Pisa
Standards of proof are legal thresholds that determine the degree of evidentiary persuasion required for a party to prevail on a particular issue in a judicial proceeding. They establish the burden a party must meet in order for the triers of the fact – whether judge or jury- to accept an assertion as legally proven. The beyond a reasonable doubt (BARD) standard plays a central role in criminal justice, yet its epistemic soundness remains controversial. Determining the correct epistemic status of BARD is one of the major concerns of legal epistemology. Since the 1960s, there has been a proliferation of interpretations of standards of proof in terms of probabilistic thresholds. This research programme is commonly known as legal probabilism (LP). However, following the criticism of Cohen (1977), epistemologists have shown that the probabilistic model presents a variety of difficulties that are not easily resolvable (e.g., the problems of conjunction and naked statistical evidence). In recent decades, contributions to the literature have focused more markedly on the epistemic process that characterises judicial decision-making (see, e.g., Haack 2014; Redmayne 2008; Moss 2022; Pardo 2010; Ho 2008). Among the most interesting proposals are certainly those of Smith (2018), who emphasises the modal robustness of evidence, and Gardiner (2019), who shows the advantages of using the relevant alternative theory (RAT) to better clarify the epistemic significance of BARD.
The aim of this proposal is to present an integrative framework that draws on these recent contributions and advances an interpretation of BARD through the concept of ‘epistemic risk’, as conceived by Pettigrew (2022). I will show how an interpretation of BARD as a normative tool for managing epistemic risk works better than the one advocated by LP, and how this enables us to epistemically explain the difference in strength between BARD and the other standards of proof. Finally, I will show how my proposal is consistent with that of Ross (2023), in which the thesis of pragmatic encroachment (PE) is employed to argue that standards of proof are flexible thresholds.
REFERENCES
Cohen, L. J., 1977, The Probable and The Provable, Oxford: Oxford University Press.
Gardiner, G., 2019, “The Reasonable and the Relevant: Legal Standards of Proof, Philosophy and Public Affairs, 47(3):288-318.
Haack, S., 2014, Evidence Matters, Cambridge University Press.
Ho H. L., 2008, A Philosophy of Evidence Law, Oxford University Press.
Moss, S., 2022, “Knowledge and Legal Proof” in Oxford Studies in Epistemology vol. 7 (2023): 176-213.
Pardo, M., 2010, “The Gettier Problem and the legal proof”, Legal Theory, 16:37-57.
Pettigrew, 2022, Epistemic Risk and the Demands of Rationality, Oxford University Press.
Redmayne, M., 2008, “Exploring the Proof Paradoxes”, Legal Theory, 14: 281- 309.
Ross L., 2023, “Criminal Proof: Fixed or Flexible?”, The Philosophical Quarterly, 73(4):1077-1099
Smith, M., 2018, “When does Evidence Suffice For Conviction?”, Mind, 126(508): 1193–1218.
Chair: Karol Milczarek
Time: 05 September, 12:00 – 12:30
Location: SR 1.003
SOPhiA 2026 