Abstract
Sometimes, the availability of more evidence for a conclusion provides a reason to believe in its falsity. This counter-intuitive phenomenon is related to the idea of higher-order evidence, which has attracted broad interest in recent epistemological literature. Occasionally, providing more evidence for something weakens the case in its favor, by casting doubt on the probative value of other evidence of the same sort or on the fact-finder’s cognitive performance. We analyze this phenomenon, discuss its rationality, and outline possible application to evidence law and to the law in general. It is suggested, inter alia, that such higher-order evidence may explain how judicial experience-based expertise in fact-finding is possible despite the absence of a feedback mechanism; and that fact-finders’ self-doubt regarding their own competence in making ‘beyond-reasonable doubt’ judgments might be reasonable and should not be ignored.
| Original language | American English |
|---|---|
| Pages (from-to) | 25-45 |
| Number of pages | 21 |
| Journal | Criminal Law and Philosophy |
| Volume | 15 |
| Issue number | 1 |
| DOIs | |
| State | Published - Apr 2021 |
Bibliographical note
Funding Information:This research was supported by the Israel Science Foundation, Grant No. 1322/18, and the Barak Center for Interdisciplinary Legal Research at the Hebrew University of Jerusalem. For valuable comments and discussions, we thank Ilan Ben Shalom, Binyamin Blum, David Enoch, Alon Harel, Ehud Guttel, Adi Leibovitch, Orit Malka, Ittay Nissan-Rozen, Ittai Paldor, Doron Teichman, Ruth Weintraub, Re’em Segev and Eyal Zamir.
Publisher Copyright:
© 2020, Springer Nature B.V.
Keywords
- Criminal trial
- Evidence
- Higher-order evidence
- Reasonable doubt
