Stein, Alex; (1990) The law of evidence and the problem of risk-distribution. Doctoral thesis (Ph.D), UCL (University College London).

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Abstract

The judicial determination of disputed facts is conducted typically in conditions of uncertainty and inevitably involves risks of error. Although it is one of the main objectives of the law of evidence to provide for the distribution of the risk of error between the parties in a justifiable way, this has been only partially attained. The orthodox perception of the law of evidence is that the law engages in a very limited interference with the process of fact-finding, otherwise leaving this process to be conducted in accordance with common-sense reasoning. However, the common-sense reasoning employed in drawing factual inferences from evidence cannot inform decisions concerning the allocation of the risk of error. Such decisions have to be rooted in moral principles. Some legal rules do ordain the allocation of the risk of error, but these are few, disparate and qualified (by many exceptions). These rules leave unregulated a very wide range of situations where issues of risk-allocation can arise. Where the legal rules do not allocate the risk of error, judges are not free to place it where they choose. Judicial choices of risk- distribution must conform with legal principles. These principles have to be articulated and refined. By contrast to the orthodox perception, modern evidence scholarship attempts to fashion a process of decision making which is free of rigid legal rules and which is informed by probability and inductivist logic of one kind or another. This approach is, however, confined to epistemological aspects of proof and offers no general moral criteria for the distribution of the risk of error. In judicial fact-finding, risk-distribution ought to be guided by those moral principles which provide the best justification for the existing legal arrangements and thus reflect the legal system's risk-related preferences. Laying down the legal reasons for distributing the risk of error, these principles confer rights on those involved in adjudication. Thus, English law has to be interpreted as containing the principles of equality and utility, which should apply in civil trials; and the principle of protecting the innocent which, together with those of equality and utility, should apply in criminal ones. According to the principle of equality, risks of error should be treated as equal for all persons involved in adjudication. The principle of utility requires the decision-makers to distribute the risks in a way which augments the number of correct decisions in the long run of cases; and the principle of protecting the innocent prohibits them from exposing the accused to any risk of mistaken conviction. When these principles are in conflict, they have to be balanced, having regard to the substantive rights at stake. The existing evidentiary rules ought to be seen and applied as a species of these three principles.

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