I am drafting a short reply to Mike Redmayne's short comment "Rationality and irrationality in evidence and proof," 10 Law, Probability and Risk 10 (2011) (comment on discussion paper
The Structure and the Logic of Proof in Trials). Part of my reply may say the following (footnotes omitted):
... Mike Redmayne worries that I “sometimes veer too far towards … irrationality” in my views about the role of reason and logic in juridical proof. ...
... [But] I firmly believe that human beings (including lawyers, judges, and jurors) should – whenever possible – try to discipline and tame their unruly thoughts about evidence and factual questions by using the tools of logic, including, for example, probability theory. In general, I believe that disciplined deliberation about evidence is likely to improve inference. This is the "rationalist” premise from which I begin.
But I do not believe that human beings are capable of making explicit all of the premises, presuppositions, and beliefs that lead them to a conclusion about a question of fact (or about any other kind of question).
...
Although I believe that the human animal is dependent – necessarily and to a very large extent dependent – on submerged cognitive processes, I do not believe that it follows that the human animal is therefore "irrational." A vast body of literature in cognitive science, neuroscience, and similar fields almost conclusively demonstrates that the brain and its associated mechanisms are extraordinarily powerful "computing" devices – that what is astonishing is not how often the brain, sensory organs, and other biological mechanisms make mistakes and fall victim to illusions, but how well these mechanisms usually work and how rarely they make mistakes. (To put the point differently: The natural human brain, human sensory organs, and so on are extraordinarily "intelligent.") This is why I think we must be humble and respectful when we confront and examine our hunches and intuitions about evidence and factual issues and this is why I think we must think hard and long before we reject the conclusions, judgments, and inferences that our intuitions, hunches, and so on seem to counsel. By analogy (and possibly more than by analogy), I suspect we should also approach existing systems of juridical proof with respect and humility. It is possible that much wisdom and intelligence inhabit and drive such social systems for gathering evidence and answering factual questions.
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The dynamic evidence page
It's here: the
law of evidence on Spindle Law. See also
this post and
this post.
