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Dale A Nance, Belief functions and burdens of proof, Law, Probability and Risk, Volume 18, Issue 1, March 2019, Pages 53–76, https://doi.org/10.1093/lpr/mgy020
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Abstract
Two recent attempts have been made to apply Glenn Shafer’s theory of belief functions to the problem of understanding and articulating the various standards of persuasion encountered in common-law adjudication. Kevin Clermont builds Shafer’s notion of ‘uncommitted support’ into the criminal standard, proof ‘beyond a reasonable doubt’, but does not incorporate it into either of the usual civil standards, ‘preponderance of the evidence’ and ‘clear and convincing evidence’. In contrast, I have argued that uncommitted support does not matter to any of the standards of proof properly applied by the fact-finder, but it might figure into a separate determination, namely, whether the ‘weight’ of the evidence (in Keynes’s sense of that term) has been practically optimized as a condition on submitting the matter to the fact-finder for decision, a determination that pertains to both criminal and civil cases. The latter view is defended.
