Facts And Evidence: A Dialogue Between Philosophy And Law [1st Edition] 9811596387, 9789811596384, 9789811596391

Table of contents :
Welcome Address......Page 5
Opening Remarks......Page 7
Contents......Page 9
Part IFacts and Evidence in Philosophical Epistemology......Page 11
Law and Philosophy in China and Elsewhere......Page 12
References......Page 22
Evidence and Facts: Dialogue Between Law and Philosophy......Page 24
References......Page 31
1 1......Page 32
2 2......Page 33
3 3......Page 35
4 4......Page 38
5 5......Page 39
References......Page 42
1 Introduction......Page 43
2.1 The Fact and Related Concepts......Page 44
2.3 Different Perspectives of Facts......Page 45
3.1 The Fact-Finding and Theories of Truth......Page 46
3.2 Competition Between Different Stories in Dialogical Argumentation......Page 48
4.1 Defeasible Epistemology and Evolutionary Cognition of Judicial Deduction......Page 49
4.2 Socially Constructed Truth......Page 50
5 Conclusion: Reflection on Criterion of Truth in the Fact-Finding......Page 51
Reference......Page 53
Providing Evidence: C.A. Coulomb’s “Balance Électrique” and the Culture of French Enlightened Rationality......Page 55
1 Rational Machines......Page 62
2 Conclusion......Page 65
Reference......Page 66
1 A Traditional Conceptual Model of Knowledge’s Nature......Page 68
2 Reinterpreting the Socratic Idea of a Tether......Page 70
3 Knowledge-Minimalism as an Explanatory Hypothesis......Page 75
4 Knowledge-Minimalism and Lucky Guesses......Page 77
5 Conclusion......Page 78
References......Page 79
1 Introduction......Page 80
2 The Performance Model Applied to Judgements in Legal Cases......Page 81
3 Epistemically Virtuous Agents......Page 83
References......Page 85
Facts as Evidence in Analytic Philosophy......Page 86
1 Historical Background......Page 87
2 Facts as Evidence in the Philosophy of Science......Page 88
3 A Wittgenstenian Approach......Page 90
References......Page 91
Part IIFacts and Evidence in Juridical Epistemology......Page 93
Truth, Justification, and Knowledge in the Epistemology of Adjudication......Page 94
1 Truth, Justification, and Knowledge......Page 95
2 Means and Ends: The Theoretical Primacy of Truth......Page 98
3 Epistemic Access to Truth: The Practical Primacy of Justification......Page 102
4 Knowledge and Luck......Page 106
5 Knowledge and the Epistemic Enterprise of Adjudication......Page 111
6 A Reconstruction of the Role of Knowledge in Adjudication......Page 115
7 Conclusion......Page 122
1 Facts......Page 123
2 Judicial Truths......Page 124
3 Which Truth......Page 127
4 Truth and Probability......Page 129
5 Evidence and Proof......Page 130
1 Fact......Page 133
1.1 The Reality of Fact......Page 134
1.2 The Empiricism of Fact......Page 135
1.3 The Narratability of Fact......Page 136
2.1 Three Patterns of Subjects’ Intervention in the Relationship Between Fact and Evidence......Page 138
2.2 The “Mirror of Evidence” Doctrine and Its Enlightenment......Page 140
3 Fact-Finding......Page 141
3.1 The Conceptual Basis of Courtroom Epistemology......Page 142
3.2 The Subjective Structure of Courtroom Epistemology and Its Dynamic Operation......Page 143
3.3 The Logical Structure and Process of Fact-Finding......Page 145
3.4 The Probability of Fact-Finding......Page 147
References......Page 150
2 Why Must Legal Fact Be Argued?......Page 151
3 The Structure of the Litigation Argumentation......Page 154
4 S-Fact Argumentation......Page 156
5 R-Fact Argumentation......Page 159
6 T-Fact Argumentation......Page 160
7 Conclusion......Page 164
References......Page 165
1 Distance Between Evidence and Fact......Page 166
1.1 The Evidence of Yingjie CUI Case and Its Implied Information......Page 167
1.2 Transformation from Evidence to Fact......Page 173
2.1 General Cognitive Approach......Page 179
2.2 Confused and Fallacious Inference......Page 182
3.1 A Brief Introduction to Story Model: Story Comes Before Evidence......Page 186
3.2 Analyze the Evidence Cognition of Yingjie CUI Case Through Story Model......Page 188
References......Page 193
Epistemological Limitations on Probabilistic Evidence Theory......Page 194
1.1 Used in People v. Collins & Bribery Case of Former President of Nanchang University......Page 195
1.2 Fundamental Incompatibilities with Fact-Findings......Page 196
2.1 Limitations on Understanding of Relationship......Page 198
2.2 Limitations on Understanding of Proof Process......Page 203
2.3 Limitation on Veritistic Rationale......Page 206
3.1 Epistemological Foundations Is in Flux......Page 208
3.2 Coherence Between Epistemology Core and Inference to the Best Explanation (IBE)......Page 209
References......Page 210
Part IIIFacts and Evidence in Criminal Trials......Page 212
1 Introduction......Page 213
2 Confessions and the Search for Truth......Page 214
3 The Morality of Confessions......Page 217
4 The Political Significance of Confessions......Page 223
5 Conclusion......Page 226
References......Page 227
1 Introduction......Page 230
2 Objective Proof Standard......Page 231
2.1 Normalization of the Objective Standard of Proof......Page 232
2.2 Reflections on the Objective Standard of Proof......Page 235
3 The Introduction of the Subjective Proof Standard......Page 238
3.1 The Establishment of “Beyond a Reasonable Doubt”......Page 239
3.2 The Original Meaning of “Beyond a Reasonable Doubt”......Page 240
3.3 The Intent of the Introduction of Subjective Proof Request......Page 242
4.1 Whether the Subjective Standard Is Equal to Objective Standard......Page 244
4.2 Whether the Subjective Standard Is Lower Than the Objective Standard......Page 246
4.3 The Integration of the Subjective Standard and the Objective Standard......Page 247
4.4 External Constraints of Subjective Standard......Page 249
5 Conclusion......Page 250
References......Page 251
1 Introduction......Page 252
2 Miscarriage of Justice in Criminal Cases Indicated that the “Corroborative” Mode of Proof Is Facing Challenges in China......Page 254
3 Operational Mechanism of the “Corroborative” Mode: “Trojan Horse” in the Criminal Proof......Page 257
4 Solutions: Programmed Mode of Proof......Page 263
5 Conclusion......Page 267
References......Page 268
1 Introduction: Evidence and Fact Research Beginning with the Evidence Theories by Professor Twining......Page 271
2.2 Stages of Evidence Identification......Page 273
2.3 Distinguishing Between Evidence Identification and Evidence Explanation in Trial......Page 274
2.4 Limitations of Evidence Identification......Page 275
3.2 Stages of Investigation Fact Inquiry......Page 276
3.3 Distinguishing Between Fact Inquiry and Fact Selection in Trial......Page 278
4 Conclusion......Page 279
References......Page 280
1 Preface......Page 281
2.1 Fact Formation Mechanism Under the Investigation Centrism......Page 284
2.2 Change of Fact Formation Mechanism Under Trial Centrism......Page 287
3 From the Objective Verification to the Subjective Evaluation......Page 290
3.1 Objective Verification Under Investigative Centralism......Page 291
3.2 Under Trial Centrism, the Regression of Subjective Evaluation......Page 294
4.1 The Unified Standard of Proof and Criticism Under Investigation Centralism......Page 299
4.2 The Establishment and Perfection of the Level of Evidence Requirements Under the Trial Centralism......Page 303
5 Conclusion: Realizing the Legitimacy of the Judgment Through the Proof Standard......Page 310
References......Page 311
1 Foreword......Page 312
2 Differences Between the Chinese Standard of Criminal Proof and Those of Western Countries......Page 313
3 Misuse of Skepticism About the Self-Explanatoriness of the Subjects of Cognition......Page 314
4 Misuse of Dualism of Subject and Object......Page 315
5 Misuse of Theories About Fragmentary Cognition and Ambiguity of Facts......Page 316
7 Confusion Between Facts and Values and Misuse of Theories on the Subjectivity of Values......Page 317
8 Misuse of the Probability of Inferential Propositions......Page 318
9 Misuse of Other Philosophical Theories......Page 319
10 Conclusion: New Issues Needed to Be Studied......Page 320
References......Page 321

Citation preview

Baosheng Zhang Shijun Tong Jing Cao Chuanming Fan   Editors

Facts and Evidence

A Dialogue Between Philosophy and Law

Facts and Evidence

Baosheng Zhang · Shijun Tong · Jing Cao · Chuanming Fan Editors

Facts and Evidence A Dialogue Between Philosophy and Law

Editors Baosheng Zhang China University of Political Science and Law Beijing, China Jing Cao China University of Political Science and Law Beijing, China

Shijun Tong East China Normal University Shanghai, China Chuanming Fan East China Normal University Shanghai, China

ISBN 978-981-15-9638-4 ISBN 978-981-15-9639-1 (eBook) https://doi.org/10.1007/978-981-15-9639-1 Jointly published with China University of Political Science and Law Press The print edition is not for sale in the Mainland of China. Customers from the Mainland of China please order the print book from: China University of Political Science and Law Press. © China University of Political Science and Law Press 2021 This work is subject to copyright. All rights are reserved by the Publishers, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publishers, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publishers nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publishers remain neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

Welcome Address

Although strictly speaking philosophy is not specialized in studying problems of facts (typical philosophical problems are conceptual, normative, and/or textual problems rather than factual problems), it not only should take problems of facts into considerations when it is studying conceptual, normative, and textual problems, but also should take the concept of “fact” as one of its most important subject matters. “Fact” is not a purely technical term in the field of philosophy; it is also a concept frequently used in everyday life. One way of making philosophical sense of this concept is to understand the relation between the concept “fact” and other relevant concepts, such as “fiction,” “value,” “theory,” “statement,” “things,” “events,” “the given,” “existents,” “truth,” “evidence,” and so on. Of relevant concepts mentioned above, “fact” and “evidence” are important both as philosophical and legal concepts, and are mutually interpreted, though perhaps in quite different ways, both in philosophy and in law. When Plato, in the voice of Socrates, made the classical distinction between “true belief” and “knowledge,” these two concepts are actually brought into an epistemological discussion with a history of more than two thousand years together with the roles of “lawyer,” “jury,” and “juror” in the field of judiciary practice. In this sense, “fact” and “evidence” are not only mutually interpreted respectively inside philosophy and law, but also mutually interpreted between philosophy and law. In our times, the well-documented philosophical discussions over the justificatory conditions of beliefs triggered by the “Gettier Problem,” may well contribute to the legal discussions on “fact” and “evidence,” and benefit in turn from the wellestablished discussions in the field of law on the questions concerned with the two concepts. The “theory of argumentation,” which more or less takes the judicial process as a basic model of argumentation, should probably search “downwardly” for more supports and inspirations from the legal reasoning studies involving concepts of “fact” and “evidence” after it has developed itself “upwardly” into communicative or discourse theories of society and politics. Whether or not discussions over these two issues are related more broadly to philosophical questions of reason, justice, trust, diversity, virtuality, and so on in the contexts of the age of globalization, information, and secularization, we can only expect that those who have deeply thought over these questions will give their judgments. v

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Welcome Address

After several months of preparations, scholars both from philosophy and law interested in a deeper understanding of the concepts of “fact” and “evidence” come here to share their research results and to exchange their ideas over topics of common interests. I hope we will all learn from each other so as to use these two concepts in our own fields more accurately and more fruitfully. Shijun Tong

Opening Remarks

Dear Colleagues, Ladies, and Gentleman: I’m very honored and pleased to welcome you to attend the International Conference on Facts and Evidence: A Dialogue Between Philosophy and Law. Also, on behalf of China “2011 Plan,” Collaborative Innovation Center of Judicial Civilization—CICJC, I would like to express my warm welcome to the distinguished speakers and participants. CICJC’s goal is to build and improve judicial civilization and the rule of law in China. One of the many approaches the CICJC fulfills its goal is to facilitate interdisciplinary research. That is the reason we would like to co-host this conference, with East China Normal University particularly with Professor Tong Shijun to promote the communication between the law and the philosophy on the subject of facts and evidence. In general, litigation is prompted by facts in dispute, so trials usually take facts as basis. As the logical starting point of evidence law, “fact” implies the real existence of specific objects and their relationships. Fact-finding is a process of empirical inference by employing evidence. Evidence law tries to establish a regular process of proof and fact-finding. Evidence law studies has taken up an interdisciplinary trend since the 1960s, when its doctrinal methodology was challenged following the “invasion” of psychology, theory of probability, economics, and so on. In the twenty-first century, the study of evidence as a multidisciplinary subject by Professor Twining, UK; the systematic description of the concept “evidence science” by Professor Schum, US. In 2005, at the China University of Political Science and Law (CUPL), when applying for the Key Laboratory of Evidence Science to Ministry of Education, we provided a comprehensive description about the nature, scope, subject matters, and framework of evidence science as a scholarly discipline. If the scope of evidence science is to be categorized in a broad and narrow sense, our work focuses on the narrow sense. In the broad sense, evidence science is covering many branches of natural science and social science. In a narrow sense, evidence science focuses on evidence law and forensic science, just like Prof. Allen gave the name of our Institute when it was established in 2006. vii

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Opening Remarks

This conference is the first one that initiates the interactions among legal scholars and philosophers. The law academics would like to invite ideas from the philosophers to examine the relationships among fact, evidence, and the truth. An interdisciplinary dialogue will for sure advance the understanding of the legal concepts of evidence and facts. We expect to see more interdisciplinary dialogues between law and other fields, such as dialogues between history and law, psychology and law, linguistics and law, logic and law. Of course, I would like to take the suggestion by Prof. Allen, furthering dialogue between economics and law, political theory and law. Finally, on behalf of the conference committee, I wish to express our gratitude to all of you for attending the conference. I wish this conference a great success, and all our guests enjoy your stay in Shanghai. Thanks. Baosheng Zhang

Contents

Part I

Facts and Evidence in Philosophical Epistemology

Law and Philosophy in China and Elsewhere . . . . . . . . . . . . . . . . . . . . . . . . . Ronald J. Allen

3

Evidence and Facts: Dialogue Between Law and Philosophy . . . . . . . . . . . Gunnar Skirbekk

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Yin/Yang Epistemology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Michael Slote

23

Turth and Facts in the Judicial Process: A Philosophical Perspective . . . Guoying Shu and Xuguang Song

35

Providing Evidence: C.A. Coulomb’s “Balance Électrique” and the Culture of French Enlightened Rationality . . . . . . . . . . . . . . . . . . . H. Otto Sibum

47

Knowing as Simply Being Correct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stephen Hetherington

61

Law and Epistemology: An Account of Judgement . . . . . . . . . . . . . . . . . . . Chienkuo Mi and Shane Ryan

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Facts as Evidence in Analytic Philosophy . . . . . . . . . . . . . . . . . . . . . . . . . . . . Yi Jiang

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Part II

Facts and Evidence in Juridical Epistemology

Truth, Justification, and Knowledge in the Epistemology of Adjudication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dale A. Nance

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Facts, Evidence and Truth in Judicial Decisions . . . . . . . . . . . . . . . . . . . . . . 119 Michele Taruffo

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Contents

Fact, “Mirror of Evidence” and Fact-Finding . . . . . . . . . . . . . . . . . . . . . . . . 129 Baosheng Zhang Fact Argumentation in Argumentation-Based Litigation Games . . . . . . . 147 Minghui Xiong How to Transform Evidence into Fact? Analysis on the Evidence of Yinjie Cui Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 Luping Zhang Epistemological Limitations on Probabilistic Evidence Theory . . . . . . . . . 191 Hanbing Gong Part III Facts and Evidence in Criminal Trials Three Dimensions of Confessions in Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 Hock Lai Ho Two Models of Fact-Finding: Analysis Based upon Criminal Proof Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229 Ruihua Chen Reflections on the Miscarriage of Justice in Criminal Cases: Revisit and Reconstruction of the “Corroborative” Mode of Proof in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251 Weimin Zuo and Xin Fu Towards Evidence and Fact in Criminal Investigation . . . . . . . . . . . . . . . . . 271 Ming Liu The Multidimensional Studies of the Theory of the Standard of Criminal Proof Under the Principle of Trial Centered Criminal Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281 Bo Yang A Philosophical Analysis of Different Types of Standards of Criminal Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313 Hongbo Zhou

Part I

Facts and Evidence in Philosophical Epistemology

Law and Philosophy in China and Elsewhere Ronald J. Allen

This is my twenty-first visit to China to attend conferences, do lectures or teach classes. Since my first invitation to visit China fifteen years ago, I have always been deeply honored to be invited whether to address a national conference such as this or do lectures to students and faculties at the approximately 30 universities that I have been privileged to visit. During each visit, I have invariably been impressed with the intelligence, thirst for knowledge, and the graciousness and generosity of the people I have met here. Over these years, I have also been privileged to have supervised the study and research of approximately forty Chinese scholars who have spent time at Northwestern University School of Law. Although your Government has graciously if undeservedly bestowed upon me certain honors, I have always felt that I was in your debt for the various kindnesses that I have received over these years. Now this complex set of feelings is being supplemented with another, and that is a sense of accomplishment and fulfillment. As the Chinese people in the audience know, the reason China reached out to foreign scholars such as myself was to assist in reestablishing legal knowledge in China following the dreadful depredations of the anti-rightist movement and the Cultural Revolution, which together essentially eliminated both any semblance of a legal system and legal education in China.1 In the fields of evidence and procedure, the level of knowledge of both the conceptual foundations and the practical details has undergone spectacular growth over this last decade and a half, led by many of my former students, a number of whom I am delighted to see in this room today. I am even more delighted that collectively they 1 Peerenboom

(2002, pp. 43–49).

R. J. Allen (B) John Henry Wigmore Professor of Law, Northwestern University, Evanston, IL, USA President, Board of Foreign Advisors, Evidence Law and Forensic Sciences Institute, China University of Political Science and Law, Beijing, China Fellow, Procedural Law Research Center, China University of Political Science and Law, Beijing, China © China University of Political Science and Law Press 2021 B. Zhang et al. (eds.), Facts and Evidence, https://doi.org/10.1007/978-981-15-9639-1_1

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R. J. Allen

are now prepared to take the next step in their development, and that is precisely the topic of this conference—to reach out across disciplinary boundaries to see what can be learned. I want to commend you in this effort, but also issue certain warnings. The reason for the commendation is obvious: any scholar in virtually any field should look for both knowledge and research tools—analytical, cognitive, or methodological— wherever they are that can be applied to solve problems that scholar focuses upon. The legal system, and thus legal knowledge and legal science, stretches over the entire human domain, and as a consequence the subject matter of the disciplines that focus on different aspects of that domain is always pertinent to the legal scientist. Thus, I am thrilled to see Prof. Zhang’s remark that this conference will be the beginning of other “interdisciplinary dialogues between law and other fields, such as history and law, psychology and law, linguistics and law, logic and law”. I would only add that you should not neglect other areas, such as economics and political theory. Indeed, I would say especially economics and political theory, for they get me to the main point I want to make today, which is that one needs to be careful when examining other disciplines for useful insights. Disciplines, like legal systems, governments, and cultures, have their own internal structures, logic (or sometimes illogic), and motivations. Just as it is ill-advised to import foreign legal forms without careful consideration of their indigenous nature, it is often equally ill-advised to think that some external discipline can be reached out to for direct insight into a problem facing a legal system. This problem of cross-border migration among disciplines is a general problem. I have discussed previously in China how the foundational political theories of China and the United States generate differing central problems to solve—in China it is efficient implementation of the political choices of the Communist Party whereas in the United States it is how the principals, the people, control their agent, the government2 —and thus it is not surprising that the legal systems developed in the shadow of those differing aspirations take on differing characteristics. To some extent, then, both political and legal science in these two countries are studying different phenomena; and when they look to each others’ work, it can only be properly understood with that point in mind. That is not to say that cross-fertilization is not possible, but that one must be careful—trust but verify, as we say in the United States. Trusting but verifying can be difficult. One must understand both fields reasonably well to verify, and that level of understanding is difficult to reach. I will give some examples of this below, but I want to emphasize the ubiquitousness of the problem. It even affects legal scholars from different countries in the western world who engage in comparative law scholarship. I frequently read comparative law scholarship from Europe that purports to be discussing the various legal systems in the United States, and I do not recognize what is being described. There is often little connection between the description in the comparative scholarship and the reality of the legal 2 Ronald J. Allen, “The Complicated and Risky Promise of Rule of Law in China”, keynote address,

International High-End Forum on Rule of Law and Reform: Public Law and Modernization of Governance, Hangzhou, 2015.

Law and Philosophy in China and Elsewhere

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system supposedly being described. As a testament to how difficult interdisciplinary work is, in my own research I have focused on certain aspects of these misconceptions, but seemingly to no effect. I, of course, think that others are missing the point, whereas I suspect they think that I am—here we have the central conundrum of cross-disciplinary work. As the title of this conference is “A Dialogue Between Philosophy and Law”, I will begin with the problematics of that relationship. This very title suggests that there is something called “philosophy” that could usefully converse with something called “law”, but I am not sure what that might be. Great divides exist between the speculative, or “continental”, philosophy that tends to exist in European universities and analytical philosophy that dominates in the Anglo-American world, and there are many other philosophical traditions as well—such as those developed by the ancestors of many of you in this room. Focusing on the western tradition, one risks caricature by simple descriptions of either, but it is a risk that must be taken here today. Speculative philosophy is motivated by the belief that cognition, knowledge, indeed reality itself are best understood and generated by pure thought; a priori philosophical reflection, not empiricism, not only leads to a better understanding of the universe but to changing it. The dominant motivation of analytical philosophy, by very sharp contrast, privileges empiricism and sees philosophy as coming along in its wake.3 Before discussing the difficulties in extracting from either philosophical tradition useful insights about or solutions for legal problems, I want to emphasize the positive side of the equation. Analytical philosophy has sharpened understanding of fundamental questions such as the nature of law, rule of law, and legal systems.4 This is an example of conceptual analysis at its best, in my opinion. On the opposite side of the spectrum, continental philosophy has usefully emphasized the inherent subjectivity in human observation and cognition, a lesson that should be learned early and well by legal scholars. As I return to below, the philosophical exploration of the moral universe on the one hand, and political, social, and human rights on the other hand has undergirded humanity’s slow progression toward enlightened social and political structures. These are considerable achievements deserving of deep respect. There is another side to this equation, however, and in particular two difficulties emerge. The first is that speculative philosophers have not had much success in advancing understanding or change of the observable universe. Perhaps the most spectacular example of this is Kant’s “synthetic a priori” that Euclidean geometry and Newtonian physics were “necessary truths” imposed upon the universe by our perceptual and cognitive conditions. Both have been proved false. Valid nonEuclidean geometries not only exist but proved essential to the Einsteinian revolution in physics that demonstrated, among many other things, that Newtonian physics was

3 Quine 4 See,

(1969, pp. 69–90). e.g., Hart (1961).

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R. J. Allen

not “true”.5 The attempt, in other words, to impose the “a priori” on the universe seems to have failed spectacularly. The second is that analytic philosophers already acknowledge that they take a backseat to the people actually advancing knowledge— which for today’s discussion is the legal scientists. There remains in my opinion space for important dialogues between law and philosophy, which I will address shortly. Before doing so, I want to identify a third difficulty for this “dialogue” that is particularly pertinent to the legal scholars working within the fields of evidence and procedure. The subspecialty of philosophy that lies closest to the concerns of those who construct and operate dispute resolution systems is epistemology. Like much of analytic philosophy, epistemology has become thoroughly naturalized, in the spirit of Quine.6 There is considerable potential for fruitful cross-fertilization here precisely because of the naturalizing of epistemology, but there remains a significant hurdle. As “naturalized” as it has become, it is not an empirical science and is driven by its own internal standards. Conceptual clarity and analytical rigor, by which is meant carefully constructed and logically valid argumentation, are the coin of the realm, the overwhelmingly significant desiderata. Much of modern epistemological work still focuses on the age-old central question of what is knowledge, and more recently, and more pertinent to the law, on how knowledge can be based on testimony. The standard work in epistemology amounts to offering a definition of “knowledge” and then trying to defend it against criticism. The standard answer to “what is knowledge” is justified, true belief. An example of both parts of this dynamic of conceptual analysis followed by critical commentary is what are called Gettier problem where a person believes a proposition that happens to be true, but the belief is held for invalid reasons. For example, a farmer looks and sees in the distance a black and white form and concludes it is his cow. It turns out that the farmer saw some debris that looks like a cow, but behind the debris was in fact the cow. The farmer had a justified, true belief that his cow was in the field, but did he “know” it? Probably over a thousand philosophical papers have been written either trying to show the inadequacies of “justified true belief” as the meaning of knowledge or to somehow adjust that understanding to accommodate or explain away the Gettier problems. To this the legal scientist (at least the American legal scientist) responds that this analysis does not advance his interests. What matters always in litigation is whether the cow was there or not, and not the manner in which someone comes to a true belief state about that fact. Indeed, as I will develop below, the parties are free to pursue any path they want to convince the fact finder of the location of the cow. No one actually working in the legal system or who is trying to understand it thinks this problem has to be solved or that it is even a problem worth worrying about. It is not this kind of conceptual clarity and analytical rigor in our descriptions of the 5 An

excellent discussion for the intelligent lay person by a distinguished philosopher, John D. Norton, can be found at: http://www.pitt.edu/~jdnorton/teaching/HPS_0410/chapters/significance_ GR_geometry/significance_GR_geometry.html#Kantian. 6 Allen and Leiter (2001).

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legal system that matter; it is instead how the legal system works and how it can be improved. If there is a philosophical tradition that maps onto these questions, it is American pragmatism that owes its creation to James, Peirce, and Emerson (Which in turn led to Quine…). On the opposite side of this coin are those epistemologists who defend various forms of skepticism, which is the idea that we cannot know anything about the empirical world for sure (it is an embarrassing question how they know that, but put that aside). Since knowledge requires true belief, there can be no such thing as knowledge of the empirical world since one can never be sure that a belief is true. One can never be sure that a belief is true because it has to rest on secure foundations, which means true foundations, but, alas, again truth eludes us. There can be no such secure foundations. Such people are committed to saying such absurd things as that we do not “know” that the universe is not the product of a three horned toad which eats gods for food and universes are created out of its waste product. Who knows? It might be true. There are two responses to this. One is the effort in the philosophical literature to demonstrate how such skeptics confuse psychological states (“I can imagine a three horned toad…”) with real states of the universe in which no rational human being can think that there is anything other than a 0.0 probability of god eating three horned toads. This philosophical move amounts to redefining the term “knowledge”, to which the legal scientist once again is indifferent. Indeed, here the legal scientist would offer his own answer to the question, “what is knowledge”, and the answer would be “a word, to be used however you like, but please try to be relatively clear, and even more important, reasonable about its use so that we can get on with constructing and maintaining the conditions that allow civil society to exist and flourish.” Pragmatism is rearing up again. Another recent epistemological fascination is with testimony, and for good reason as much of our “knowledge” of the real world comes from the testimony of others in the form of books, lectures, various media, etc.7 The problem of testimony is a real one for any rational legal system. Whether witnesses testify in court, as in the Anglo-American tradition, or reduce what they have to say to writing, the problem remains of what credence to give to the factual assertions of such witnesses. Because of its central significance to the objective of trial to reach factually accurate results so that the law may be applied appropriately, all rational legal systems have developed multitudes of ways to test the accuracy and reliability of a person’s testimony. Indeed, a substantial part of the law of evidence is devoted to facilitating such inquiries, from allowing contrary evidence to inquiries into the testimonial capacities of witnesses to examining their biases. How well all of these works is an important question, as is the various tradeoffs that have to be made among such variables as truth generation, cost, and fairness.

7 The

earliest recognition of this point to my knowledge is Benedict D. Spinoza, Treatise on the Emendation of the Intellect, 1677, par. 17: “By hearsay alone I know the date of my birth, who my parents were, and things of that sort, which I have never doubted.”.

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These are not the issues at the heart of the philosophical debates about testimony, however. Instead, they tend to focus on whether testimony alone is a source of warrant to believe some fact is true, or whether testimony always reduces to some other set of variables. This is known in the literature as the anti-reductionist v. reductionist dispute. The anti-reductions take the position that a person is entitled to accept as true what a witness says unless and until a good reason is offered not to. Reductionists take the view that the warrant given by testimony reduces to other variables, such as how well the person’s cognitive and perceptual capacities have functioned and so on. Again, Anglo-American legal systems are indifferent to this dispute. There are reliability generating rules, for example that generally a witness has to be shown to possess first-hand knowledge. That sounds like an embracing of a reductionist approach, until one notices that first-hand knowledge can be established by the witness himself, which shifts back to an anti-reductionist approach. I suspect that every western legal system has examples of a single eyewitness being satisfactory to justify a verdict, which sounds like an anti-reductionist approach, and yet such examples are relatively rare, which sounds like a reductionist approach. This is not philosophical confusion on the part of “legal system”, but instead reflective of the differences in this context between the disciplines of philosophy and the law. Conceptual clarity and analytic rigor over one’s rules of evidence and inference are wonderful if obtainable, but the infinite complexity of the human condition makes that goal unachievable with acceptable costs. Legal systems range over every possible aspect of human interactions, thus over every possible form of creating and collecting evidence and every type of reasoning process. Specific a priori rules could not possibly accommodate this complexity. Their articulation would result in another instance of the common complaint that the spirit and letter of the law are in tension, and also lead to undesirable secondary effects. For example, assume the law givers of some country were convinced by the reductionists in the debate over testimony and thus enacted a rule against verdicts based solely on the testimony of a single eyewitness. One effect of such a rule would be the lamentable enhanced incentive provided for wrongdoers to eliminate as many witnesses as possible. Even if you cannot get them all, and leave one alive, you go scot-free. The reductionist might object that this example never arises, because one can always inquiry into the testimonial capacities of the witness. However, inquiring into them and getting usable information about them are two separate matters. Moreover, if this objection is accurate, and in sense I think that it is, then it demonstrates that this hotly contested epistemological debate literally has no significance for legal systems because it never arises. I think that is more or less true. However, the deeper point here is that legal systems provide virtually no a priori rules about evidence or inference beyond the simple admonition to save cost by limiting evidentiary proffers to what is called “relevant” evidence. Even the so-called complex exclusionary rules in the Anglo-American world—hearsay and character— are in fact rules of admission, not rules of exclusion. This is an important point deserving of emphasis. I said above that “generally” witnesses have to be shown to have first-hand knowledge, and there is a conventional belief among non-lawyers,

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and even among those legally trained on the Continent, that the hearsay rule is what patrols this requirement by excluding hearsay. This is false. The hearsay rule has evolved from an exclusionary rule to a rule of admission. For two hundred years, the hearsay rule has reacted to the British fetishism with first-hand knowledge by creating exception after exception that permit hearsay evidence to the point that virtually all hearsay evidence with probative value is admissible.8 What is true of hearsay is true of the other supposedly large exclusionary rule, the rule against character evidence. Generalize this. Typically, parties may proceed any way that they like. They can offer virtually any credible evidence and employ inductive, deductive, or abductive arguments; they can search for evidence wherever it may be found and however it is constituted and virtually always offer it (the limit is a few social policies favored over truth determination). There is no formal edict on the meaning of “rationality”; all the cognitive tools in the tool chest, all the forms of organized thinking that have garnered the label “rational,”9 maybe employed. The central aspiration of Anglo-American trials is not to adopt any of the contested meanings of “rational” or to constrain the cognitive tools or forms of evidence that may be used, but instead to liberate the process to whatever the parties choose to present in order to facilitate the accurate and efficient resolution of disputes. This sounds like a recipe for chaos, but it is the opposite. It is the solution to how to construct a dispute resolution system that is on the one hand fair and on the other makes no a priori judgments about cases that may arise. As the legal system ranges over the entire human condition, one cannot know in advance what disputes may arise and thus what tools to resolve them may be needed. Moreover, law has a unique feature that distinguishes it from most other disciplines: Decision must be taken. Not to decide a legal case is to decide it by maintain the status quo, which will favor one of the parties. Other disciplines have the luxury of postponing decision until the matter is clear, or even indefinitely if it cannot be resolved. In light of this complexity and lacking the luxury of not deciding, the central aspiration of Anglo-American legal systems reduces to providing the conditions under which unbiased fact finders hear, understand, can process and deliberate upon the evidence and arguments offered by the parties and by doing so hopefully reach accurate results.10 This is a procedural, not a substantive, solution to the problem of resolving disputes. My main point has been to describe how the two disciplines of philosophy (represented by epistemology mostly) and law have diverging agendas. However, there is much in my description of the American legal systems that has profited from philosophical analysis, and would continue to do so, if the philosophers are interested. Philosophical work on the nature of probability has been quite useful, as would more sustained work on practical rationality. And if one ranges beyond the law of evidence and legal systems, perhaps the most fruitful ground for philosophical inquiry as it

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(1992, 2016). (2013). 10 This articulation makes immediately clear why expert testimony is a problem. Allen and Miller (1993). 9 Allen

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affects the law is into the legitimate foundations of the state and the exercise of coercive force, matters of particular importance to China. An example of the fruitful interaction between philosophy and the field of evidence, but also an example of how legal scholars take and put to their own use philosophical tools and perspectives, involves one of the central questions of evidentiary research today, which is the nature of juridical proof. This also is an example of the difficulty of another interdisciplinary conversation, which is between legal scholars in Europe and the United States. Chinese scholars will be looking across that disciplinary boundary also, and a few warnings are in order. I discuss both points in turn. Implicit in much of what I have said so far is that American trials are structured to be mechanisms to facilitate the search for reliable (accurate) outcomes under conditions of uncertainty. Attempting to go beyond that level of generality, a number of scholars began examining probability theory as a possible tool to better understand and improve trials, for obvious reasons. Decisions under uncertainty can easily be described as probabilistic, and the processing of evidence can be modeled as the updating of priors. This was a significant advance in understanding with many subsidiary benefits as well, such as an improved model of the meaning of “relevancy”. Much interesting work developed the implications of the probabilistic model, including philosophical work.11 But certain irritating problems could not be resolved. Most importantly, no model of probability actually fits the conditions of trial. Two of the four conventional models can be brushed aside; trials are not examples of either logical or propensity probability. Relative frequency is what one normally thinks of as “probability” but that does not work either because virtually never is there relative frequency data at trial. That left subjective probability. The trouble here is that the conditions of American trials are flatly inconsistent with the necessary conditions for subjective probability to operate algorithmically, and in any event computational complexity dooms the enterprise from the start. These irritants led to a rethinking of the nature of trials. It was observed that at trial, the parties almost invariably construct an explanation (sometimes loosely called a story or a narrative) of the evidence presented. Psychologists also found that people naturally think in narrative structures. Then the critical observation was made that the way trials actually play out is over the choice between the explanations offered by the parties or a third one constructed by the fact finder in light of the explanations offered by the parties. This was followed by the realization that American rules of evidence systematically facilitated this relative comparison, and that the only rule that, by contrast, could be easily explained probabilistically was the burden of proof rule, leaving it as the glaring exception.12 Various legal scholars, including myself, began to see and refer to this as the “relative plausibility theory” that involved “inference to the best explanation.”13 We were fully aware of the role that inference to the best explanation plays in modern 11 Earman

(1992). (1986). 13 Allen and Pardo (2008). 12 Allen

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disputations about knowledge, and the criticisms of it. We were not talking about epistemology, however; rather, we borrowed the label to make an ontological point— that is, a point about the real world. It was a positive, not a normative point, although there is a compelling normative case to be made for it as a prescription for how trials should be conducted.14 In my opinion, there is potentially large scope for beneficial collaboration between philosophy and law in this developing area, but to do so effectively the philosophers must “get down into the weeds” (as we say in the United States) and engage with the reality of the trial process they are theorizing about. As I have been trying to show, a priori philosophizing is of limited use to the legal system, whatever other values it may serve. At least one famed epistemologist, Larry Laudan, has begun exploring this terrain with the appropriate methodology.15 Of course, I am expressing this position from my point of view; the true philosophers in the room may have a different point of view that it is me, not them, that has the extra work to do. Whoever is right, this captures in a concise way the difficulties of cross-disciplinary work. The necessity of clearly distinguishing normative from empirical perspectives and of cross-disciplinary work more generally is also highlighted by considering how these American developments have been understood in Europe. European legal scholars, like philosophers, tend to think in a priori analytic and normative terms. In contrast, the most important modern development in legal science in the United States over the last fifty years has been legal empirical studies, which has had, so far as I can tell, little effect in Europe. The result is that legal science in the United States and Europe is moving somewhat on diverging paths with somewhat uncertain implications. I make this point here, because as I have said, Chinese scholars should look at legal science in all parts of the world to see what can be usefully mined for domestic use. While doing so, however, you need to be clear about what you are seeing. An example of the difficulties of mutual comprehension across different disciplines employing different methodologies is the debate about the relative advantages of inquisitorial and adversarial legal systems. In the Anglo-American world, a few notable individuals long ago uttered remarks to the effect that the adversary system is just a game in which the stronger side wins, that attempting to reach factually accurate outcomes is a waste of resources, and the only thing that matters is whether a winner is chosen. Apparently as a consequence of this, these ideas became foundational in the European view of the nature of the American legal system, with the consequence that these phrases get repeated in comparative law work in Europe as though they represented the consensus view in the United States. They do not. Virtually no one in the United States believes anything like what is asserted as the supposed conventional view, and yet much comparative law scholarship continues to reiterate these ancient remarks as though they were accurate descriptions of the reality of the American legal system. To my way of thinking, a dose of empiricism is in order here. 14 Allen

and Stein (2013). (2006).

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I and others have pointed out that such remarks not only do not represent any conventions within the United States, in large part because a legal system organized on such principles would be ruinous. No modern industrialized country can sustain its economic system without the promise that the rules will be efficiently enforced. Contractual commitments have to be kept; property rights have to be respected; personal safety has to be ensured. Without such basic promises of the rule of law, social and economic life would be a jungle. I suspect no one knows the truth of this better than those of you from China, where the depredations caused by the destruction of the legal system during the anti-rightist movement and the Cultural Revolution were experienced first-hand. In fact, I elaborated these points at a comparative law conference here in China.16 My points were obvious, it seemed to me, and yet the reiteration of these peculiar views, peculiar from the empirically minded point of view, continues. Perhaps the reason was that I had not provided the pertinent empirical data. Good tests of the relative efficiency and accuracy of a legal system are economic growth rates and innovation. The more accurate and costless a legal system is, the more it will contribute to economic growth and innovation. Thus, if the American system were just an idiotic game being played with high transaction costs and no relationship to factual accuracy, both economic growth and innovation would suffer. I looked at data on economic growth and innovation, comparing the United States to major European countries, and the data overwhelming showed that the United States enjoyed significantly more rapid economic growth and innovation than the European counterparts. There is also an empirical literature dealing directly with the efficiencies of the American and European legal systems. It systematically shows that the civil justice systems in Europe are less efficient and reliable than the American systems, and some are close to being dysfunctional.17 Ironically, the one partial exception is Germany that has made various changes to bring its system closer in line with adversarial models. My point here is not to be critical of European systems. Maybe they serve other values than the efficient and accurate resolution of disputes. Rather, my point is to give yet another example of the difficulties of cross-disciplinary work. Empiricism has not taken a firm foothold in comparative law scholarship, yet in my opinion it is precisely what the legal scholar should attend to above all else.18 It is not what ancient British judges or a long dead philosopher has to say about a system that matters; what matters is how it actually operates. But here again is the difficulty of cross-disciplinary work. I suspect the comparative law scholars believe that I am missing something important about the essence of either the American or the 16 Ronald J. Allen, Closing Remarks, 4th International Conference on Evidence Law and Forensic Science (Beijing, China; July 20–21, 2013). I elaborated on this theme in Ronald J. Allen, “The Perils of Comparative Law Scholarship Research”, published in Spanish as Los Peligros De Investigacion En Derecho Comparado, in Jordi Ferrer Beltran and Carmen Vazquez (eds.), Debatiendo con Taruffo, Marcial Pons, 2016, p. 21. 17 Zuckerman (1999). 18 A blatant example of this is the nonsense written concerning the asserted superiority of the German civil justice system, prior to the changes made to it that began to approximate adversarial systems. See Allen et al. (1988), Allen (1988).

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European approach to litigation. Whether I am or not, it is obvious that we are talking past rather than to each other, even with the best of intentions. The essential problem of cross-disciplinary work is how to avoid that dynamic. In closing, I want to return to a point alluded to above. Two other areas of potentially fruitful collaboration between philosophy and law, especially for China, are moral and political philosophy, and I would encourage you to focus on these areas if you hold another Philosophy and Law Conference. Human rights are obviously burning issues in China as well as worldwide. The implications of privacy, liberty, dignity, autonomy, and the conditions of flourishing are being unfolded in much work of direct interest to the legal scholar who is trying to construct a fair and just society. On a parallel track, political philosophers have much of value to say especially for China about the foundations of a legitimate state, and the limitations of a theory that political legitimacy comes from the barrel of gun. And do not neglect economics. In my opinion, the strongest force driving change in China today is the results of the economic miracle that is creating a large middle class with aspirations for the future for themselves and their children and that possesses the highest level of education ever attained in China. These two go hand in hand. The heightened aspirations are fueled in part by the increasing ability of the typical Chinese citizen, because of the advances in education, to discern when they are not being told the truth. Out of this will come significant change of one sort or another. These forces have already been unleashed and cannot be contained. The wise leader will wish to guide their effects to facilitate the peaceful evolution of civil society. That leader will benefit greatly from engagement with the best of Eastern and Western philosophical thought.19

References Allen, Ronald J. 1986. A Reconceptualization of Civil Trials. Boston University Law Review 66: 401–437. Reprinted in Peter Tillers and Eric D. Green (eds.). 1988. Probability and Inference in the Law of Evidence, 21–60. Kluwer Academic Press. Allen, Ronald J. 1988. Idealization and Caricature in Comparative Law Scholarship. Northwestern Law Review 82: 785–807. Allen, Ronald J. 1992. The Hearsay Rule as a Rule of Admission. Minnesota Law Review 76: 797–812. Allen, Ronald J. 2013. Taming Complexity: Rationality, the Law of Evidence, and the Nature of the Legal System. Law, Probability & Risk 12: 99–113. Reprinted in Maksymilian Del Mar and Burkhard Schafer. 2014. Legal Theory and Natural Sciences. Allen, Ronald J. 2014. Professor Allen on Evidence, vol. I. Beijing: Renmin University Press. Allen, Ronald J. 2016. The Hearsay Rule as a Rule of Admission Revisited. Fordham Law Review 84: 1395. Allen, Ronald J., and Alex Stein. 2013. Evidence, Probability, and the Burden of Proof. Arizona Law Review 55: 557. Allen, Ronald J., and Brian Leiter. 2001. Naturalized Epistemology and the Law of Evidence. Virginia Law Review 87: 1491–1550.

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of the points in this address are discussed in the various essays in Allen (2014).

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Allen, Ronald J., and Joe S. Miller. 1993. The Common Law Theory of Experts: Deference or Education? Northwestern Law Review 87: 1131–1147. Reprinted in J.F. Nijboer, C.R. Callen, and N. Kwak (eds.). 1993. Forensic Expertise and the Law of Evidence. Allen, Ronald J., and Michael Pardo. 2008. Juridical Proof and the Best Explanation. Law & Philosophy 27: 223–268. Reprinted in Spanish 27 Derechoy Filosofía, No. 3 (2008), 223–268. Allen, Ronald J., Stefan Koch, Kurt Reichenberg, and D. Toby Rosen. 1988. The German Advantage in Civil Procedure: A Plea for Fewer Generalities and Greater Detail in Comparative Law Scholarship. Northwestern Law Review 82: 705–762. Hart, H. L. A. 1961. The Concept of Law. Clarendon Press. Earman, John. 1992. Bayes or Bust? Cambridge, MA: The MIT Press. Laudan, Larry. 2006. Truth, Error, and Criminal Law: An Essay in Legal Epistemology. Peerenboom, Randall. 2002. China’s Long March Toward Rule of Law, 43–49. Cambridge University Press. Quine, W. V. O. 1969. Epistemology Naturalized? In Ontological Relativity and Other Essays, 69–90. Columbia University Press. Zuckerman, Adrian A. S. 1999. Civil Justice in Crisis: Comparative Perspectives of Civil Procedure.

Evidence and Facts: Dialogue Between Law and Philosophy Gunnar Skirbekk

Questions concerning evidence and facts pervade almost the “whole of philosophy”! Evidence-e.g., rationalism versus skepticism, and the ongoing epistemological discussion: what do we know? Facts-e.g., atoms, organisms, minds, societies, and the ongoing ontological discussion: what exists, really? To start with a glimpse of various views on what counts as a source of evidence (cf. Skirbekk and Gilje 2001): —Reason: this is the view of Rationalists, like Plato, for whom mathematics was a core discipline; a paradigm for unchangeable and certain truths, to be conceived by the intellect. Or Descartes, with his systematic doubt asserting that certainty is that which cannot be doubted; at the bottom-line, self-reflection (cogito ergo sum). —Perception-sense experience: this is the view of Empiricists, like Locke and Hume, for whom experience in terms of passive reception, via the senses, is the source for all knowledge. Our mind, at the outset, is seen as an empty box (tabula rasa), which is then filled with various sense impressions, both from the external world and from introspection. On this basis, more complex ideas are formed. Here we basically have a subject-object model, conceiving experience as perception in terms of passive reception of sense impressions. —Action: this is the view of Pragmatists, like Vico, for whom knowledge is rooted in what we have done, or James, Dewey, and Peirce, for whom knowledge is paradigmatically founded in “what works”. This introduces a notion of experience in terms of human actions in the lifeworld-another notion of experience than the one favored by the classical empiricists. —Experiments: this is the view of the scientists and their philosophers in early modern time, like Galileo and Newton, for whom real knowledge is achieved by experiments, and formulated in a mathematical language. Thus experiments, by creating special (artificial) settings (e.g. by trying to eliminate friction for falling objects), present yet another notion of experience; not perception in everyday life, not action-based experiences in our lifeworld, but a special kind of experience, trying to eliminate the disturbing complexity of the world G. Skirbekk (B) Center for the Study of the Sciences and the Humanities (SVT), University of Bergen, Bergen, Norway © China University of Political Science and Law Press 2021 B. Zhang et al. (eds.), Facts and Evidence, https://doi.org/10.1007/978-981-15-9639-1_2

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G. Skirbekk in which we live, in order to discover simple and certain laws of nature, and to spell them out in a mathematical language.

So far we have four notions of evidence (reason, perception, action, and experiments), each with a related conception of facts; the three former relate, in turn, to eternal ideas, sense impressions, and what works. As to the experimental approach, working with mathematical language and experiments: the real is that which can be measured (by numbers, and thus expressed mathematically) and reproduced, by new observations in a similar experimental setting. That is what counts as fact. Modern experimental science can thus be seen as a specific combination of rationalism and empiricism. Moreover, modern experimental science opens for instrumental usage, and thus for mastering natural events. By laws of nature, established and formulated in this way, we have an explanation of what happened, a prediction of what will happen, and a practical maxim for what to do if we want to prevent or obtain a special event. Hence, there is the interplay of mathematically formulated, experimental scientific research and the development of technology. Then there are the ongoing discussions as to how we should understand these new sciences, as by Positivists, Popper and Kuhn, with catchwords like verifiability, falsifiability, and paradigm shift-indicating different views on questions of evidence. Moreover, there are debates on relativism versus objectivism, for instance with discussions on the claim that there are unavoidable self-referential presuppositions, necessary in order to avoid self-stultifying utterances and self-referential inconsistency. We see this in different versions by Descartes and Kant, and by Karl-Otto Apel who argues that these presuppositions are speech—act inherent—in these cases, with special notions of evidence. Furthermore, there are discussions on the need for self-critical discussions and will-formation (from John Stuart Mill to Jürgen Habermas; with catchwords of fallibilism and the forceless force of better arguments), as a meliorist approach to knowledge and evidence. In short, there is, in philosophy, a great variety of opinions and approaches as to what counts as evidence and how it should be conceived. And consequently, there are similar varieties of philosophical opinions as to what should count as facts and how they should be conceived. The latter point (on various views of what counts as facts) has become increasingly important with the differentiation and development of a variety of scientific and scholarly disciplines. Physics, biology, psychology, sociology, etc. There is an irreducible plurality of disciplines, and a plurality of (discipline related) languages, that cannot be “reduced” to one another. Each has its own more or less particular concepts and methods, whereby each one of these disciplines sees different things, or sees things differently, even when they focus on “the same”—as when psychologists, sociologists, and economists do research on suicide or on the life of married couples. Hence, they operate with different facts (even when talking about “the same”). See for example this cartoon, directed against reductionism—borrowed from Professor Bang at the Bohr Institute in Copenhagen:

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Hence, there is not One Science, but many sciences, in plural—each of them conceiving its field of research from its special perspective. And thus, there is a plurality of facts, and of experts. In other words, what we see as facts, and what counts as evidence, differs as to whether we conceive the world by the concepts and methods of physics, of biology, of psychology, of sociology, of brain research or psychiatry—where, in each case, facts are conceptually constituted either as atoms or organisms, or individuals or social classes, or neurons or the subconscious. This is a challenge in modern science-based societies, also for the legal institution. There is a danger of one-dimensional expertise, in cases where different kinds of expertise are needed—e.g. in cases where there is a need for ecological and sociological expertise, not merely technological and economic expertise. This challenge is relevant for legislation, for instance for urban planning, but also for the courts, for instance when faced with the task of choosing the relevant experts who shall decide whether the suspected person could be said to have acted as a free and responsible person, or whethers’ he should be seen as more or less insane and thus as legally non-responsible. So, who are experts for deciding who the experts are, in the various cases, in legislation or in the courts? Moreover, according to which disciplinary vocabulary should legally relevant words, such as “religion” and “offense”, be conceived? Consider the ongoing discussions on how to conceive legally important terms like “refugee” and “immigrant”, in Europe today. Or terms like “extremist” (identity related) versus “precariat” (class related). In short, along with the differentiation of different disciplines, there is a need for an interpretation of vocabularies, of legally relevant words. In summary, when we follow the question of evidence and facts, from the various opinions among philosophers, into the philosophy of the sciences and the humanities, we realize how various scientific and scholarly activities present different conceptions on facts and evidence—an epistemic awareness that is fruitful for the legal institution, both for legislation and for the courts. So, what should we do when faced with this variety of views on evidence and on facts? At least, in most cases we can recognize when there are better or less

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good reasons, which we should discuss, listening to other persons and their counterarguments. [E.g., cf John Stuart Mill on human fallibilism and our need to discuss in order to find better arguments, as a search for what can be seen as reliable evidence in various cases (Mill 1859).] Moreover, there is a need for interdisciplinarity, for an interdisciplinary approach, enlightened by insights from the philosophy of the sciences and the humanities. In such cases philosophical competence can help in criticizing discipline-inherent reductionism, for instance when normative questions and questions concerning free will are conceived of in terms of facticity; be it by natural sciences (e.g. by brain-research or biology) or by contextualizing disciplines (e.g. by historicizing approaches or reductive social sciences—see for example the requirement of “double competence” for staff members at the Center for the Study of the Sciences and the Humanities, SVT, at the University of Bergen). Turning to focus on the law, we can see that the legal institution is threefold, embracing legislation (legislators), courts (judges), and jurisprudence as a university discipline (academic researchers and teachers in law). The courts are primarily focusing on special events that took place in the past; hence matters of evidence will in many cases be incomplete and difficult to ascertain, despite professional legal procedures and despite the usage of special expertise when needed. It is one thing to have statistical probability for a certain kind of event at a general level, e.g. for the impact of air pollution on public health. It is something else to decide to what extent that which is seen to go on in a special human body (e.g. pulmonary problems) is caused primarily by some specific external factor, like pollution, and not (also) by other external or hereditary (genetic) factors. Legislation is basically forward-looking, with a general scope, relevant for all future cases of a special kind—to be checked by relevant experts, as to whether or not the proposal for new laws with reasonable certainty will regulate future behavior and social development in the desired direction (without foreseeable negative side effects). For instance, whether a certain legal regulation of speed limits shall have the expected positive effect on road accidents. Or whether a legal regulation of the availability of alcoholic beverages, or of their prices, shall have a positive effect on alcohol consumption, and thereby on public health. And similarly for narcotics— what are the effects of restrictive and of liberal legislations? When deciding cases in the court, the judges appraise evidence in terms of its relevance, credibility, and inference. In former times a verdict was based on oaths (I solemnly swear) and supernatural signs, such as the water test for witches. In enlightened societies, a verdict is based on a less shaky ground, i.e., on witnesses, what they say (and how they say it) when interrogated in court, on relevant physical objects and on documentation of various kinds, and so on. Even so, court trials usually involve inferences about past events that are not fully known. Consequently, evidence is frequently inconclusive, conflicting, and often ambiguous. Moreover, there are no rules in law saying how much force any item of relevant evidence ought to have. (There is norule for ‘rule following’, as Wittgenstein says.) Hence, there is a need for juridical discretion, aiming at verdicts “beyond reasonable doubt” (e.g., in criminal cases) or a fair “balance of probabilities” (e.g., in civil cases). (At this point, cf John Rawls on “the burdens of judgment”, Rawls 1993.) Due to these challenges,

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there are different theories of the role of evidence in the court (e.g., Allen 1994). Broadly speaking, on the one hand, an emphasis on quantifiable probabilities and calculations, and on the other hand, an emphasis on reasonable narratives of what has happened. (See Peerenboom 1998, and Habermas in the 1980s on the “legalization” of the lifeworld, before Faktizität und Geltung 1992.) The interrelationship between law and philosophy (extended to questions concerning expertise and sciences) is relevant for all three versions of the legal institution: courts, legislation, and jurisprudence as a university discipline. However, in this paper we shall primarily look at legislation, focusing on the interface between science and governance, or, more specifically, between the philosophy of science, including reflections on the usage of expertise, and legislation. Hence, for the dialogue between law and philosophy, philosophy should be extended to embrace philosophy of the sciences and the humanities as well as knowledgeable reflections on various kinds of expertise. As a reminder, a few catchwords in that respect: Causation—how to understand causation? Cf. two classical positions; by Hume, observable repetitive correlations, and by Kant, a necessary precondition for human understanding. Of interest for us, may illegal acts be seen as determined by biological (hereditary or brain-related) causes, or as determined by societal causes? In the latter case, in a certain social-scientific perspective, it is society that is to be blamed rather than the person convicted (who is then himself a victim, who should be assisted and reeducated rather that punished, cf trends among some Scandinavian criminologists). Probabilities—how to conceive probability? One view: probability is conceived of as quantifiable, that in principle can be calculated, as “risk assessment”. Another view: probability is conceived of as a matter of professional and practice-based discretion that includes the unknown unknown. Uncertainties—how to conceive uncertainty? Similar positions, as to those discussed for probability; one view is that uncertainties can be calculated, in terms of quantifiable risks. Another view is that we should look for more radical uncertainties, since it is often unknown what is unknown; therefore, a consciously fallible, though enlightened discursive assessment is required. To expand on uncertainty and evidence; in experimental work (e.g. in a lab) the researchers operate with artificial settings, in order to discover simple correlations or mono-causal connections. However, in a real setting, out in nature or out in society, there might be many causal factors involved. Consequently, what is found in the lab (in vitro) does not always work the same way in nature and in real life (in vivo). In short, probabilities and evidence based on experiments are not always transferable into natural settings. This is the first “jump”, as it were, in terms of certainty. Then there is the transition from the statistical probability in nature and real life in general, to that which most probably will happen in a special case, say, for a particular human body. This is a second “jump”, in terms of certainty. These jumps are relevant for medicine, where we are interested in transferring probabilities and evidence from experimental research to health policy and legislation, and furthermore to medical practice face to face with individual patients with questions of probability for the prognosis in each case.

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In a legal context we face this problem head-on, for instance when laws are given in order to reduce air pollution, in order to improve public health. We know that air pollution is a health problem and we know that legislation against this kind of pollution is urgently needed. But what exactly is most harmful, in air pollution? What exactly should be restricted by law? The size of micro particles, or their chemical components? What exactly should be forbidden or restricted, and to what extent? Empirical research, in polluted areas, is difficult to carry out since, in such real life settings, many causal factors might be active (e.g., not only the variety of possibly polluting elements, but also the average health situation in the population, independently of air pollution). Hence, despite our best efforts, we have to recognize that some uncertainty remains—which means that any recommendation for a researchbased legislation has to include some uncertainty as to which factor should be legally restricted or forbidden, at which level, and as to the specific health benefit that could be expected. (Cf. van der Sluijs et al. 2008.) The same goes for environmental challenges in general, including research on climate change, with serious discussions on what kind and what degree of legal regulations are required, nationally and internationally. As we know, in modern societies we are faced with numerous challenges that are complex by nature (quite different from the simplified issues in basic research within artificial experimental settings). Today we are faced with many complex and urgent issues, characterized by uncertainty, high stakes, and the need to act. Within the philosophy of the sciences and the humanities, this constellation is referred to as “post normal” (cf. “post normal science”, in Maxim and van der Sluijs 2011): That is, we have to live with uncertainties in cases where stakes are high, and when we have to act. As an illustration, cf the loss of pollinators (bees), with serious consequences for food production; uncertainty reigns as to the causes for the death of bees, though stakes are high, and action urgent. Hence, in the interface of science and governance, of expertise and legislation, a special epistemic awareness is required. However, in such situations, three considerations are important, to avoid infelicitous conclusions: (i) Uncertainty in these cases does not mean that “anything goes”; that all arguments are equally reliable or unreliable. Even though there are different views among experts, these views have to be distinguished from unenlightened views (e.g. among simplistic climate sceptics, or people who deny that tobacco is bad for our health). There are better and less good reasons, and hence there is a persistent urge to try to improve our insight and knowledge and to avoid positions that we know are less good, in short a melioristic urge, even when uncertainty and divergent views prevail. For instance, as for air pollution, and for climate change, despite this awareness of inherent uncertainty, we do know enough to act, politically and by legislation, nationally and internationally-given this melioristic recognition, and given the precautionary principle. (ii) Many people think in dichotomies: either science speaks truth, beyond doubt and uncertainty, or all views are equally reliable; if Darwinism is not established beyond doubt, then Creationism can be seen as equally reliable! But that is not how it is. Hence there is a need, in matters of legislation (e.g. for laws against air pollution) that ordinary citizens are informed about these epistemic challenges, to avoid unreasonable anti-science reactions in the general public (without downplaying reasonable doubt and skepticism). In short, there is a need for

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open and enlightened communication between researchers and legislators on the one hand and the general public on the other. (iii) Urgent issues, and high stakes, but high stakes of different kinds. For instance, for environmental issues, like climate change and pollution, there are strong economic interests of a short-term nature, often in favor of wealthy people, up against long-term interests for future generations. Hence, there are power struggles at various levels, nationally and internationally, and there is a need for enlightened and long-term governance, supported by appropriate legislation. In short, there is a need to consider the different kinds of normative status among the various stakeholders.

To sum up, for this dialogue between law and philosophy, with a special emphasis on evidence and facts: What can philosophy offer, for legislation and for the work at the courts? I argue that philosophers can arm legal scholars and practitioners with (i) an awareness of the variety of views of epistemological and ontological notions such as evidence and fact, (ii) a training in working critically and professionally with language, with words and concepts, in terms of interpretation and preciseness, and (iii) a training in normative argumentation, not merely comparatively, between different legal practices and principles within a given legal system, but also arguments about normative requirements for modern institutions and modern activities, as a free reflection upon legal practices and principles. Moreover, when we extend philosophy to philosophy of the sciences and the humanities, and thereby to a serious reflection on various forms of science-based expertise, then there are insights and experiences that are useful for legislation (as we have alluded to in this paper), and also for the courts. On the other hand, the legal institution—within legislation, the courts, and academic research and teaching—can be very useful for philosophers, not least by working on real cases, in court and in legislation, and by learning how concepts and arguments are used by legislators and judges. This is not a minor thing, since philosophers learn by working on cases, by thinking through cases. In this respect our colleagues from the various branches of the legal institution can be most helpful for us, the philosophers. Finally, when we welcome a dialogue between law and philosophy, we should recognize that fruitful dialogues do not merely operate on the semantic level, as an exchange of statements and propositions, but also, and not least, on the personal and pragmatic level, as a practice, where people meet each other. Not least for this reason, I am deeply honored by the invitation to this conference here in Shanghai, as a realization of the idea of a serious dialogue between our two professions, between law and philosophy.

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References Allen, Ronald J. 1994. Factual Ambiguity and a Theory of Evidence. Northwestern University Law Review 88. Habermas, Jürgen. 1992. Faktizit ät und Geltung. Frankfurt am Main: Suhrkamp. Maxim, Laura, and Jeroen P. van der Sluijs. 2011. Quality in Environmental Science for Policy: Assessing Uncertainty as a Component of Policy Analysis. Environmental Science and Policy 14. Mill, John Stuart. 1859. Chapter ii, Of the Liberty of Thought and Discussion. On Liberty. Peerenboom, R.P. 1998. Law and Ritual in Chinese Philosophy. Published online 1998. Retrieved November 9, 2015. Available at: https://www.rep.routledge.com/articles/law-and-ritual-in-chi nese-philosophy/v-1/. Rawls, John. 1993. The Burdens of Judgment. In Political Liberalism, 54–58. Columbia University Press. Skirbekk, Gunnar, and Nils Gilje. 2001. A History of Western Thought. Routledge. SVT, Center for the Study of the Sciences and the Humanities. University of Bergen. Available at: http://www.uib.no/en/svt. van der Sluijs, Jeroen, Arthur C. Petersen, Peter H. M. Janssen, James S. Risbey, and Jerome R. Ravetz. 2008. Exploring the Quality of Evidence for Complex and Contested Policy Decisions. Environmental Research Letters 3.

Yin/Yang Epistemology Michael Slote

1 1 Traditional Chinese thought pays a great deal of attention to issues in ethics, but has very little to say about epistemology—at least by comparison with the enormous focus on issues about knowledge and justification one finds in Western philosophy during the modern period. The present conference shows that Chinese philosophers are now more focused on epistemological questions than used to be the case, but in this lecture I am going to discuss some important ways in which, perhaps surprisingly, the ancient Chinese complementarity of yin/yang can help us better understand presentday issues in epistemology. However, in order to do this, we have to update yin and yang in some ways that make it more available for use in present-day epistemology and also in present day ethics and philosophy of mind. In an article called “Updating Yin and Yang” published in the English-language journal Dao in 2014, I have recently explained how I think yin and yang can be most usefully updated for philosophical purposes. Ancient ideas about yin and yang went in two related but different directions. Some spoke of yin and yang as incompatible contraries, as when a physical situation becomes so yin that it eventually turns into yang. But there is another tradition according to which yin and yang are complementary, not contrary. This view sees yin and yang as necessarily involving one another, and that idea is depicted for example in the familiar yin/yang circular symbol. In that symbol, each of two curvy half-circles involves a color element from the other half-circle. You all know what I am referring to. I think the idea of yin and yang as necessarily complementary is more philosophically promising than the idea of them as opposites, and I hope to substantiate this claim to some extent by showing you here how such an understanding of yin/yang helps us with epistemology. But ancient yin and yang were also thought of in purely M. Slote (B) University of Miami, Coral Gables, FL, USA © China University of Political Science and Law Press 2021 B. Zhang et al. (eds.), Facts and Evidence, https://doi.org/10.1007/978-981-15-9639-1_3

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physical or natural terms, as with cold and warm, or dark and light, or female and male. This led, in ancient times, to a kind of proto-science making use of yin/yang to give physical explanations, but nowadays many Chinese scholars are skeptical about such explanations. They think we do better to rely on modern physics or biology. And they are also suspicious of yin and yang because of all the popularizations of these notions, as with feng shui and with macrobiotic diets. But it is also possible to conceive yin and yang in a less naturalistic and more philosophical way. We commonly associate yin, for example, with passivity and with receptivity, and my Dao article argued that we should think of yin as receptivity rather than as passivity, because the latter has nothing positive or valuable about it and the former is not only a trait we think well of but also, as we shall see, contains an aspect we can identify with yang. I want to say that yang is best updated and understood for philosophical purposes as equivalent to directed active purpose, and thus understood, it should be clear that receptivity as yin involves a yang aspect: a receptive person can be eager to take in facts or ideas, and this eagerness, this receptivity, moves in a certain direction and is to that extent active rather than purely passive. So I say: let’s conceive yin as receptivity and yang as active directed purpose, and let’s see if that allows us to understand yin and yang as necessarily complementary and as helpful toward our understanding of epistemology.

2 2 However, in order to see that and how yin and yang apply to epistemology, we have to focus on a particular kind of approach to the theory of knowledge that has in recent decades become especially prominent. Traditional epistemology (as done in the West) divided into two basic schools or approaches: foundationalism, which holds that our justification for our ordinary beliefs has to rest on foundations; and coherentism, which claims that the coherence of our beliefs or judgments suffices to justify them independently of whether they have or can be given foundations. But recently a new approach called virtue epistemology has become very influential, and I shall here be talking about one form of virtue epistemology that I think is especially promising. Then I will bring in yin/yang. One of the persisting and most important problems of Western epistemology is the question whether and how our ordinary beliefs about the world, for example, about tables, chairs, and trees, can be rationally justified. Now the most familiar recent forms of virtue epistemology—Reliabilism and Responsibilism—have a difficult time explaining in human or personal terms how ordinary people and even children can be justified in their perceptual beliefs about the world. But if we borrow a page from David Hume’s moral sentimentalism, I think we can figure out a way or ways in which we are justified as persons in believing what our senses tell us about such things as tables, chairs, and trees. Hume relied on the idea of inborn natural moral virtues like benevolence and gratitude in his account of morality and moral virtue, but previous epistemologists and even virtue epistemologists haven’t seen that there might be such

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things as inborn natural epistemic virtues, epistemic traits of individuals in the light of which those individuals’ ordinary perceptual or memory beliefs can turn out to be rationally justified. I shall have to be more specific about these epistemic personal virtues, but our discussion will then clear the way to bringing yin/yang into the center of epistemology. Some virtue epistemologists have pointed to open-mindedness as a good example of a virtuous cognitive/epistemic character trait. But virtue-epistemological discussions of this virtue have ignored its close connection with empathy and with the historically underrated virtue of receptivity. An open-minded person is more rational than someone who is closed-minded, and their receptivity to others’ ideas is epistemically virtuous. But receptivity, as a virtue, has, in fact, a much larger epistemological role to play. Open-mindedness requires us to be (empathically) receptive vis-à-vis others’ differing opinions, but even if that virtue is not inborn and has to be cultivated or inculcated (an assumption that might be questioned), it can be argued that an element of natural inborn receptivity is required for the rational justification of ordinary and non-controversial perceptual beliefs. And to the extent that, as most of us believe, our empirical beliefs as a body depend on perceptual beliefs, it will then turn out that epistemic justification in general requires and involves the natural/inborn epistemic virtue of receptivity. The argument for this conclusion depends on drawing an analogy between practical and epistemic rationality. As some of you may know, political liberals frequently tell us that we should subject all our beliefs, emotions, and relationships to critical rational scrutiny and questioning—and should do so for reasons of principle and not because we necessarily have (different) specific reasons to question each and every one of our beliefs, emotions, etc. But should a parent really question, seriously question, their love for their child? Should friends question their relationship even apart from any specific reasons either of them has for wondering whether it is going well or is a good thing (for them) in general? The liberal (or some liberals) will say yes, and will therefore, as I understand their position, say that a failure (ever) to do so would be a failure of rationality, would show someone to be less practically rational in and about their life than they could or (rationally) should be. And can’t we turn the tables here? Don’t we really think that it would be irrational or unreasonable to seriously question a friendship in the absence of some particular worrying fact or factor? Or consider someone who has serious personal doubts about whether anything is really good or bad. Such a skeptic will have to be seriously questioning whether they should try to avoid sickness and pain, and to the extent that they ask this question seriously and that this constitutes a serious, if temporary, personal attitude, they will be less highly motivated to avoid these things than it is rational for them to be. The person who seriously questions everything on principle isn’t being receptive to what life has brought their way or to their own instincts and emotions. And I want to say that the irrationality of calling all these things into question consists in its failure to be receptive to elements or aspects of one’s life that one doesn’t have to automatically or pervasively call into question. A lack of receptivity can be a practical/rational vice, and I now want to make the parallel point

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that a lack of perceptual receptivity can constitute an epistemic or epistemological vice, a failure of epistemic rationality. There are phenomena surrounding or involved with issues about epistemic rationality that are analogous to what can be said about practical rationality. We can distinguish, for example, between sheer intellectual or philosophical doubts, confined to the study or classroom, about whether anything in life is really good or worth pursuing and serious personal doubts about such matters that would involve an attenuation of practical motivation and resultant action that could be characterized as (at least somewhat) irrational. And we can make a similar distinction in epistemology. If someone believes they see a tree, but then goes into a classroom to discuss, on the basis of Cartesian or other skeptical doubts, whether there is any philosophically convincing reason to have any beliefs about the world, this will presumably not undermine or weaken their earlier belief that they saw a tree. But what if epistemological skepticism gets to them more deeply and personally and makes them start seriously worrying about whether they ever have seen or do see any trees? If they do, it might well be argued that they have become epistemically at least somewhat irrational, that they now lack certain beliefs that they in all epistemic rationality ought to have. This conclusion has a certain plausibility and appeal all on its own, but it derives addition strength or plausibility from the analogy with practical rationality. If it is practically irrational to act and think as if nihilism about all values were correct or had to be taken very seriously in one’s life, might it not be epistemically irrational to act and think as if Cartesian-like doubts about whether the world we think we see really exists had to be taken very seriously in one’s cognitive life? And the parallel extends further. If the person who seriously doubts the value of their own instincts and emotions shows a lack of receptivity and trust toward (the contents of) their own life that can be seen as running counter to the dictates of ordinary practical rationality, can’t we similarly say that a person who in their life seriously doubts their senses on Cartesian grounds (thinking a demon might well be deceiving them about everything) is showing an epistemically deplorable lack of trust vis-à-vis their own senses or, alternatively, a lack of epistemically appropriate receptivity vis-à-vis the deliverances of their senses? From within the perspective of Cartesian doubt, there is nothing irrational about seriously and generally doubting one’s senses, but surely from a larger perspective there is something foolish—almost like obsessiveness— about doing so. And so we can argue for the justification of ordinary perceptual beliefs by showing its connection with epistemically virtuous receptivity.

3 3 Perception and perceptual belief are arguably non-inferential. And the same is true of memory beliefs as well. So the question arises what the virtue epistemologist should say about inferential beliefs. Are they too to be justified in terms of the virtue of receptivity? Arguably not. But I think they are justified in terms of an epistemic

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virtue we haven’t yet mentioned, one that is just as natural or inborn as receptivity. I will begin by discussing the nature and justification of inductive inferences. When we generalize or infer to the next instance—the next crow will be black— this is typically a matter of belief more than of action or behavior. But actions and behavior also generalize, as the behaviorists taught us during the earlier parts of the twentieth century. According to the so-called “law of effect”, if in certain circumstances a certain kind of action or behavior is rewarded, then that behavior is more likely to occur in the future when similar circumstances arise than it was prior to its originally being rewarded. The law of effect makes sense whether one is a behaviorist or not, but I want to say that both beliefs based on enumerative induction and behaviors or actions occurring on the basis of (made more likely by) the rewarding of previous similar actions are cases of generalization: the point being that generalization isn’t just an intellectual or epistemic matter but can be found in the realm of action and behavior as well. And note that I am using the term “generalization” in a way that doesn’t imply universality. The rewarded behavior generalizes if it becomes more likely in the next similar situation; the belief that given f’s have been g is generalized even if one just expects the next f to be a g. But there is an important disanalogy between the way psychologists talk about the generalization of behavior and the way philosophers talk about inductive generalization. Behavior is thought to (have some tendency to) generalize on the basis of a single instance: once burnt, twice shy. But philosophical discussions of enumerative inductive belief have focused on the accumulation of instances of a given generalization and have not really focused on single instances. I believe the assumption has been that a single instance of a generalization doesn’t solidly support a generalization the way many instances can, and Hume’s insistence, for example, on “constant conjunction” is one famous historical instance of the point I am making. I think, however, that this focus on the many has made us unable to see the epistemic force of the one. The recognition of how generalization works with regard to actions/behaviors may actually make us more willing to focus on and be open to similar possibilities with regard to belief. A single instance of a generalization may support that generalization and support it, other things being equal, more strongly than our philosophy of science or epistemology has previously reckoned with. And it may help us to see this if we consider the behavioral parallel of someone with no tendency to make enumerative inductive inferences on the basis of any single observation: a child who has never before encountered an open fire, who is painfully burned by touching a given fire, but who acquires on that basis no tendency to fear fire and avoid touching future fires. This would be bizarre, and if the child started speaking, in Hume—like fashion, of how one single instance might not at all be a very good indication of how fires are generally or of what the next fire would be like, we would think that something had gone very wrong. A single instance of fire gives rise to a tendency to believe fire dangerous and/or to avoid touching fire in the future, and it would make no rational sense to act as if the given instance didn’t give one substantial reason to avoid fire or some particular fire in the future.

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I am saying, then, that the insistence on constant conjunction as a necessary basis for inductive inference and/or generalization (even where everything else is equal) is a mistake. And if someone were somehow unable or unwilling to make such a generalizing inference in a timely fashion, I think that would show them to be epistemically indecisive in an unjustified way. Any person who was thus indecisive would be a bit like the obsessive-compulsive person who locks and leaves his house but keeps coming back to see whether the door really is locked. On the other hand, it is not neurotic or irrational to refuse to make a generalization where one’s evidence leads in contrary directions or is hard to grasp as a whole, but that is entirely consistent with what I have just been saying. What I have just said about induction also applies mutatis mutandis to abductive inference to a best scientific explanation. Francis Bacon and Karl Popper (among others) have deplored the tendency of scientists to “leap” to theoretical-explanatory conclusions, and this has led some philosophers of science to distinguish between the context of discovery and the context of justification, arguing that the theories scientists typically come up with aren’t really justified until more evidence comes in than was available to the scientist who originally came up with and subscribed to a given theory.1 But I think this second-guesses such scientists in a gratuitously disrespectful way. Rather, I think that scientists who come up with original theories often show themselves in epistemic terms to be virtuously decisive when they unhesitatingly opt for those theories rather than waiting around for more and more evidence to turn up or for alternative theories to be suggested before they decide what to believe. When Einstein promulgated the Theory of General Relativity, he did so unhesitatingly and without worrying about possible alternative future theories and new evidence that might eventually come in. And I want to say that to that extent Einstein, far from being epistemically irrational, demonstrated the epistemic virtue of decisiveness and was justified in believing what he believed. So the next question to ask is how or whether what we have been saying about perceptual beliefs and inferentially arrived at beliefs relates to the supposed complementarity of yin and yang. I hope that at least part of the answer to that question is now obvious to you. The person who doesn’t ordinarily question what his senses tell him about the world shows a kind of epistemically virtuous receptivity to what his senses lead him to believe and, given what we have said about the updated notion of yin, also exemplifies yin in his cognitive life. And by the same token epistemically virtuous inferential decisiveness seems in the clearest way to embody a yang factor in the epistemological realm. When a scientist infers to a given theory or generalization rather than waiting around for more instances or evidence to accumulate before doing that, they show a kind of active epistemic purposiveness that a vacillating, indecisive thinker wouldn’t exemplify. So yin and yang are both exemplified in a fundamental way in the epistemic realm and for the field of epistemology. Yin as receptivity is essential to rationally justifying basic non-inferential perceptual and memory beliefs, and yang as decisiveness is essential to rationally justifying inductive and theoretical inferences. But this seems 1 See

Francis Bacon, Novum Organum I, 26; and Popper (1989, p. 46). On the distinction between context of discovery and context of justification, see, e.g., Reichenbach (1938).

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to allow that epistemological yin and epistemological yang can apply separately and at different times, and I now want to show you why I think this is not the case. If we understand yin and yang as I have suggested, then they imply or necessitate each other in epistemology, and epistemological yin/yang is then a complementarity in the strictest or tightest sense.

4 4 I want to begin by focusing on decisiveness rather than receptivity, and the first thing to note about the decisiveness that characterizes a willingness to make inferences in an unhesitating or non-vacillating way is that inference itself involves what, slightly altering a famous phrase of William James, we can call mental take-offs and perchings, Inductive and other inferences involve doing something with something. There has to be accepted material that is the basis for the inference, and to make inferences, one has to be receptive to having some sorts of premises. In inference, then, there has to be both a prior perch and a take-off or flight from that perch, and the epistemically decisive or non-passive person takes off earlier rather than later. By contrast, the person who is skeptical about everything isn’t going to be receptive enough to have the materials for inductive inferencing, and of course the inferentially vacillating person may be receptive to certain materials but lack the decisiveness to do anything with them (in an epistemically timely way).Inference, in other words, necessarily has the structure of a take-off, and this entails that it necessarily makes room for both receptivity and decisiveness, both yin and yang. There has to be receptivity because normal inferencing (I exclude reductio ad absurdum arguments) has to take off from something accepted, not questioned or doubted; and so without receptivity there will of necessity be no such thing as the making of a (rational) inference. But when the inference is made it can be made with vacillation or decisiveness and only in the latter case is the inference being epistemically virtuous, fully epistemically rational. And then, of course, the inference also needs to exemplify active directedness if it is to conform to epistemic virtue. There is something active about making an inference that isn’t so obviously present when we are receptive to perceptual or memory beliefs (but our forthcoming discussion of receptivity will do something, I think, to dispel this sense of difference). And, of course, when we makes an inductive or other inference, one’s mind is active or purposive in a particular direction. If one sees a black crow, one will tend to infer that the next crow will be black, not that it will be green or red. So inference illustrates the activeness and directedness of yang. However, as we have seen, the epistemic virtue of epistemic decisiveness with respect to the making of inferences isn’t just a yang thing, but necessarily combines virtuous yang elements/aspects with virtuous yin elements/aspects. Epistemic justification doesn’t simply break down into yin usages and yang ones, but rather, in at least one of its instances, involves a yang virtue that is inextricably tied to yin virtue. You can’t be inferentially decisive without their being something with respect to

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which you are being receptive. But now it is time to focus on receptivity as required for non-inferential belief-formation in the cases of perception and memory.

5 5 In order, however, to make the points about the relation of receptivity to yin/yang that I think can and should be made, I shall have to proceed by indirection. Rather than immediately bring in receptivity, I shall talk to you first about another natural/inborn epistemic virtue that I have not previously said much about, the virtue of curiosity or, if you prefer, inquisitiveness. Now virtue epistemologists other than myself often do speak of curiosity, but there is a tendency to disregard or deny its status as a virtue. And I think that is a mistake. There is, of course, such a thing as idle curiosity, but there are exaggerated or distorted forms of almost all the traits we rightfully call virtues, so let us treat curiosity as an epistemic virtue. As such, I want to show you now that it is part and parcel of the virtuous epistemic receptivity involved in perceptual taking in beliefs about the world. In tying the rational justifiability of perceptual beliefs (and the same points could be made about memory beliefs) to the epistemic virtue of receptivity, we have so far stressed the negative side of that receptivity, the fact that once we find ourselves with certain perceptual beliefs, we tend not to discard or abandon them at the behest of philosophical forms of skepticism. But we know receptivity also generally involves a kind of positive eagerness, a being primed to take in certain things, and we need to consider the possibility that the receptivity involved in taking in and keeping perceptual beliefs also involves a kind of eagerness: an eagerness to learn about one’s immediate environment that exemplifies our basic curiosity in one of its important aspects or instances. Now sometimes we want to know what is happening in our immediate environment because that will help us fulfill some antecedent practical purpose (like catching a certain type of fish). But our perceptual curiosity more basically operates in a way that is somewhat independent of such particular purposes. We more generally listen to what is happening around us, don’t merely hear what is happening, and in such cases listening, when you thinking about it, constitutes a form of curiosity or inquisitiveness, an intrinsic desire to know about one’s surroundings. Similarly, we constantly visually focus on, attend to, objects around us, and this is something we do, not something that merely happens to us, and the active, doing aspect is again, arguably, an expression or instance of an inherent or inborn desire to know about our surroundings or some particular object(s) in them. (We don’t have to be consciously aware of our focusing when we focus, but focusing is, nonetheless, something we do.) If we don’t focus, our experience is something of a blur and we don’t take in the kinds of specific perceptual beliefs we commonly take in, so I am saying that the ordinary taking in of perceptual beliefs not only has its negatively receptive aspect,

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but more positively involves our intrinsic desire to know about the world, a kind of basic receptivity to how things are around us. I am suggesting, then, that on its positive side the naturally virtuous epistemic receptivity of perception instances or blends with the natural epistemic virtue of curiosity about the world and more generally illustrates the general human tendency to care intrinsically (i.e., not as a means, say, to one’s own pleasure, though these things can bring us pleasure) about what is outside of oneself. Perception can therefore be seen as that form of the more general instinct of curiosity that works through the senses and focuses on what immediately surrounds a given person. As perceivers we imbibe or take in the world, the way we as empathizers eagerly imbibe or take in the attitudes, etc. (mostly) of those around us, and in both cases, if we buy into the picture I am painting for you, what we do is purposive, even if the person doing it isn’t self-consciously aware of what they are doing. Empathic receptivity involves an eagerness to take things in that shows such receptivity to have both motivational and emotional components. (Hume hints at this in the “of the love of fame” section of the Treatise of Human Nature when he speaks of our tendency to embrace the attitudes of those around us.) And if perceptual receptivity expresses a particular form of curiosity, our eagerness to know about the world around us, afterwards it too embodies purpose, directed purpose, and therefore necessarily has a yang aspect. But one can be a bit more specific. To the extent our perceptual curiosity, our eagerness for new facts about our surroundings, makes us doxastically (i.e., with respect to belief) “pounce” on what our senses tell us, our epistemically virtuous perceptual receptivity to what our senses tell us also involves a kind of virtuous epistemic yang decisiveness (just as we saw, a moment ago, that virtuously decisive yang inference occurs against a backdrop of virtuous yin receptivity). Now here is one corollary of our account: given that perceptual receptivity operates through and/or with our curiosity about and desire to take in the world and given that perceptual beliefs are justified in terms of the receptivity they demonstrate, it follows that the curiosity about the world and eagerness to take it in that help make perceptual processes count as receptive are part and parcel of that justification. And this is a reason to think of curiosity/inquisitiveness as an epistemic virtue additional to other, more general considerations that favor viewing it in this way. Curiosity is an epistemic virtue because it generally aids us—or aims at aiding us—in gaining knowledge and rational beliefs about the world; but it has a more specific and highly valuable epistemic role within perception as well. On the basis of what we have said here, therefore, it would appear that both inferential and non-inferential epistemic justification or knowledge are unthinkable in the absence of yin/yang, of yin and yang in necessary and inextricable interrelation. If we take an approach to virtue epistemology that places emphasis on natural or inborn epistemic virtues (no one has to teach a child to “decisively” fear fire after it has once be burned), then yin and yang and yin/yang also applies and can be seen as the grounding basis of what is epistemologically justifying and virtuous about perceptual receptivity and inferential decisiveness. (This point can be made more forcefully once one sees, as I have argued elsewhere, that yin/yang does similar justificatory and explanatory work in ethics and in the philosophy of mind. That

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elsewhere is a book called The Philosophy of Yin and Yang that is about to be published in both English-language and Chinese-language versions by the Commercial Press in Beijing.) But now one final and, if I may say, decisive point needs to be made about yin/yang in the epistemological realm. If someone is burned by fire, they take in a certain perceptual/observational belief about fire, but if their mind is at all functioning, they will also expect to be burned if they again touch fire. So non-inferential perception has to be accompanied by some sort of inference if we are to conceive any mind as actually functioning or functioning well. (What I have just said about perception also holds for memory mutatis mutandis.) And this shows yin/yang to be even more deeply and broadly involved in the epistemic realm than I have so far said. I earlier concluded that virtuously decisive yang inferences have a virtuous receptive yin aspect and that the virtuously receptive and yin acquisition of perceptual beliefs has a virtuously decisive yang aspect. But these conclusions are or initially seem compatible with denying that inferential and non-inferential knowledge or epistemic rationality have to go together in any functioning mind; and once we say that these two things do have to go together, yin/yang inseparability comes more deeply into (is seen more deeply in) the epistemic realm. Not only does the decisive yang aspect of the epistemic involve yin elements, not only does the receptive yin aspect of the epistemic involve yang elements, but the decisive and the receptive cannot occur apart from each other (if the mind is to be regarded as a working mind). So, as we might put it, yin and yang not only necessarily characterize both the seemingly different sides of epistemic justification (inferential decisiveness and the non-inferential receptive acquisition of perceptual and memory beliefs), but those two sides turn out to be inseparable. Each seemingly separate side relates yin and yang, but the sides are not separable and so the necessary relation between yin and yang occurs not only within the supposedly separate sides, but in the fact or reality that those sides cannot be separated. Alternatively, we can say that in relation to any possible functioning mind, the epistemic realm as a whole is characterized by an indissoluble yin/yang relationship between (at least seemingly) narrower and more specific indissoluble yin/yang relationships (a yin/yang of yin/yangs). And, as I say, all this treats the necessary relationship of yin and yang as occurring even more deeply and broadly within the epistemic realm than we were able to conclude on the basis (solely) of the arguments we made just a bit earlier in this lecture. However, at the highest level of generality, I also want to say that yin/yang is essential to the mind as such. That further, large subject is discussed at length in the book I just mentioned, but there is no time for me to do anything further with it here. And let me conclude by pointing out one interesting potential consequence or implication of the present lecture. Chinese thought has in the past tended to downplay epistemological problems and concerns, but the present conference implicitly and perhaps explicitly represents an attempt to counter that traditional tendency and to give epistemology, a subject much emphasized in the West, a new life in the Chinese context. And given the traditional Chinese neglect of epistemological issues that have been central in Western philosophy, wouldn’t it be ironic and, from a Chinese perspective, lovely if those issues could be more illuminatingly handled using an

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ancient Chinese distinction/complementarity than via any concepts or techniques available in the West? That is just what I have been arguing for in this lecture.

References Popper, Karl. 1989. Conjectures and Refutations: The Growth of Scientific Knowledge, 46. London: Routledge. Reichenbach, Hans. 1938. Experience and Prediction: An Analysis of the Foundations and Structure of Knowledge. Chicago: University of Chicago Press.

Turth and Facts in the Judicial Process: A Philosophical Perspective Guoying Shu and Xuguang Song

1 Introduction Legal decisions-making should be based on facts, however, there is no common understanding about the meaning of “facts”, and facts-finding should be based on the pursuit of “truth”, which is unclear in its meaning, either. Some radicals even believe that facts so-called are nothing but illusionary, and the pursuit of truth is just a lie. How to understand facts and truth in judicial process? Firstly, it is acknowledged that judicial proceedings are a process of dynamic dialogical argumentation rather than streamlined monologue deduction. In judicial proceeding context, facts is more like fact-propositions serving for argumentation purposes and needs to be proved, and so-called truth is the truth of the fact-propositions, the acknowledgement of which should be in conformity with relevant legal rules and standards, including evidence rules such as presumption and burden of proof, procedural rules such as statute of limitations, and substantial rules, and also restricted by practical factors. Taking those factors into consideration, the determination of facts cannot always necessarily reach a position of absolute truth, and the truth in judicial proceedings can only be temporary, defeasible and regulatory.

G. Shu (B) China University of Political Science and Law, Beijing, China X. Song Shenzhen University, Shenzhen, China © China University of Political Science and Law Press 2021 B. Zhang et al. (eds.), Facts and Evidence, https://doi.org/10.1007/978-981-15-9639-1_4

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2 The Concept of Truth in Philosophical Perspective Modern physics told us that the world is comprised of molecules, atoms or some smaller items. However, Ludwig Wittgenstein asserted: “The world is the totality of facts, not of things.”1 So what is the fact?

2.1 The Fact and Related Concepts “Fact” is generally interpreted as the real or true situation of things or matters. Matters refer to physical substances in the universe which exist objectively, and facts refer to the real or true situation of the matters, i.e., the substantive qualities they possess and the relation among which they are in. For instance, as Bertrand Russell point out: When I speak of “fact”, I do not mean one of the simple things in the world; I mean that a certain thing has a certain quality, or that certain things have a certain relation. Thus, for example, I should not call Napoleon a fact, but I should call it a fact that he was ambitious, or that he married Josephine.2

Specifically, fact is not an object. The object is an objectively existence in the particular time and space whereas facts can exist in a non-objective and non-concrete form. Secondly, the thinking pattern of object is concept and the expression form is words, however, the thinking pattern of facts is proposition and the expression form is sentences. And fact is not an item or incident or things or occurrence or events. First, there are differences in the verbal expressions, for instance, an event has occurred, the things are changing, and determine based on facts. Second, incidents have time tense while facts do not. An incident can be occurring, have occurred or will occur, and might have or have not occurred. But incidents can be called facts until they have actually occurred. Last, facts, substracted from incidents which have already happened, are used to clarify, explain and prove, upon which we can make inferences and draw conclusions, hence, only facts, but incidents can be used for the purposes of inference and argumentation, and people determine whether an incident has occurred based on facts. Incidents or objects might have appeared in the argumentation as the argument, but only after they have been transformed into expressions of facts. Therefore, when we represent an object or talk about an incident for a special purpose, we are actually arguing with the facts.

1 Wittgenstein

(2001). Also Wittgenstein (2003). The German is: “Die Welt ist die Gesamtheit der Tatsachen, nicht der Dinge.” Wittgenstein (2003). Bertrand Russell agreed with this idea, and he said: “The world consists of facts.” Russell (2001). 2 Russell (1914).

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2.2 The Extension of Fact The use of “fact” in the daily language is generally in a casual way. “Facts cannot strictly speaking be defined, but we can explain what we mean by saying that facts are what make propositions true, or false.”3 But “‘fact’…can only be defined ostensively.”4 Since the object of facts includes things or matters, it should include: First, the objective existence of things or matters, including its properties, visual forms and relations to others. For instance, he died, the lease relationship between party A and party B. Second, the moving process of things or matters, including events and actions, for instance, I killed him, A gives his house to B for free, an earthquake happened in Wenchuan, China. Third, the results of moving process of things or matters. The result can be viewed as a status of things or matters, but legal results play an important role in legal decision-making. For instance, that he was killed by me plays an important role in the valuation of the action of killing. In addition, there is “fact on the extended meaning”. For instance, nobody is immortal, the ground will turn wet if it rains, 2+2=4, the right of life has the highest value, etc.

2.3 Different Perspectives of Facts According to language customs, truth can be viewed in the perspectives of ontology, epistemology and linguistics. First, facts in ontology, namely natural facts and objective facts, “which are what they are whatever we may choose to think about them”.5 However, this objective fact must be perceived by humans before they can enter into the human society, and this perceiving was aroused by the interest of people, that we come to know it because we believe in the existence of it. Thus, during the process of arguing with facts, we have presumed the facts in ontology. That’s what we mean, when we said that the truth is correspondence with the facts, it is means that. Because humans are in the dominant position of knowing activity, what it matters is the facts in epistemology, strictly speaking, is the reflection and perception of subject matter by humans based on sensible experience. So facts in epistemology is subjective as certain experiential statements or judgments, so they are falsifiable or defeasible, and if they are falsified of defeated, we no longer call them facts. “The essential business of language is to assert or deny facts.”6 So what we usually encountered is statements of cognitive facts, that is we calls facts in linguistics which 3 Russell

(2001). (2009). 5 Russell (1971). 6 Russell (2001). 4 Russell

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appear in the form of fact-propositions. Strictly speaking, these are propositions about facts, which used to express the personal belief of agent, and it may be true, or it may not, or may be defeated or overturned. “The fact itself is objective, and independent of our thought or opinion about it; but the assertion is something which involves thought, and may be either true or false.”7

3 Facts and Truth in Judicial Dialogue 3.1 The Fact-Finding and Theories of Truth Though facts exist before the fact-propositions in ontology embryology, in judicial determination there comes first the fact-propositions and evidence, upon which we can reconstruct the fact. Statements like it’s a fact that… the fact is… always presume that what it refers to is true. Here truth and facts are inter-defined, that is, the truth of proposition p is its correspondence with the facts, and facts are the real state of affairs in world referred by the true fact-propositions. This is the correspondence theory of truth, as “falsity is the assertion that that which is is not or that that which is not is and truth is the assertion that that which is is and that that which is not is not.”8 The correspondence theory guarantees the objectivity of truth, but it cannot provide the criteria of assessing this objectivity. Thus, facing the propositions which might be true or false or even contradictory, people can only judge the truth of factpropositions in two approaches, based on other related fact-propositions or evidence, or based on people’s opinions. From the first approach, we encounter the coherence theory of truth: the truth of a belief, sentence or statement depends on their coherence with other beliefs, sentences or statements in the same set. But coherence cannot be the sufficient conditions for truth. “One can regard coherence as the main criterion of truth. But this is no reason to speak of truth and coherence as necessarily one and the same thing.”9 From the other direction people choose the consensus theory of truth, “the condition of the truth of statements is the potential agreement of everyone else.”10 Truth as consensus is not objective, but inter-subjective assertions of people, thus getting rid of the restrictions of getting to know the truth based on the relation between subject and object, and providing a feasible way to come to the truth. Apparently, facts here are something that entered into the realm of argumentation and used language as the channels rather than pure thing-in-itself without languages. Proponents of this theory depend on the ideal dialogical situations and argumentive process, but there is 7 Russell

(1914). (1998). Another English translation: “To say of what is that it is not, or of what is not that it is, is false, while to say of what is that it is, and of what is not that it is not, is true.” Aristotle (2005). 9 Peczenik (2005). 10 Alexy (1989). 8 Aristotle

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doubt whether there exists ideal dialogue situation and approaches the ideality. Even it exists, the truth of fact-propositions cannot be achieved, and even it can be done, it is not through and comprehensive. What is at stake is that, by that standard, we may rationalize consensual lie or joint malevolence which is procedurally or formal correct as truth. If this is the case, truth becomes an instrument rather than a purpose. Apparently, these theories are exclusive to each other, but actually they pay focus on different points of the truth. Correspondence theory focuses on the concepts of truth, coherence theory focuses on the feasible practicable criteria of truth, and consensus theory focuses on the approach through which we get close to truth. Thus, only truthdefined by correspondence theory is objective truth and the other two theories are only ones that can help us come closer but not necessarily reach the objective truth. Let’s go back to the context of fact-finding. Judicial process in the pursuit of truth must have presupposed the existence of certain objective facts and the proving process is to discover, test and justify this presupposition.11 Though the events having happened cannot appear again, through the relevant information gained from evidence, the more coherent evidence and fact-propositions and belief support the fact-propositions can have, the more reliable and believable they can be. Though the approved facts cannot reach the position of definite truth, through the design of legal proceedings and evidence rules, we can come closer to the truth, and the more idealistic and reasonable this system is, the more rational decision people can make. The assertion of truth is actually the dominants’ affirmance or inter-subjective consensus formed by relative evidence. We may assert some fact-propositions are true, but it does not show that the propositions are absolute true, and real situation of the objective world has been known by us. However, this does not mean that our assertion of truth is not protected by ration. Our judgments about the fact-propositions are based on empirical observations and inductions of hundreds of years, and the judicial system and evidence rules are established on our legal tradition, and tested by logic consistency, knowledge coherence and acceptability of audiences. This is a form of “bounded procedural rationality”. According to this opinion, “a belief or decision is rational if it is in agreement with the knowledge that has actually been considered (or should have been considered) in a proper procedure.”12 The establishment and configuration of procedure is thus crucial.

11 See 12 See

Bex (2011). Bex (2011).

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3.2 Competition Between Different Stories in Dialogical Argumentation Legal reasoning is generally interpreted as a static and monologue form of deduction. From the justified premises, we can draw a justified conclusion through valid deduction. This is an absolute justification, and as long as the premises are true, the conclusions are true. But this form of deduction has many difficulties in legal domain, for instance, the openness, vagueness and ambiguity of legal language make the meaning of legal regulations not always clearly understood, and the defeasibility of legal argumentation makes legal conclusions not sustainable because of the occurrence of exceptional situation or stronger reasons; the absolute justification be supposed by deduction may leads to so-called Münchhausen Trilemma which are infinite regress, logical circle or dogmas; in addition, the gap of facts and norms requires us to bring the complex relation and interaction between legal interpretation and fact-finding into consideration.13 More and more scholars have realized that though legal argument can be written as the ideal form of deduction, real legal argumentation or fact-finding is a process of dialogue argumentation. There are proponents and opponents in the judicial proceedings, whose roles might change in the judicial process, and every claim could come to be defeated because of the proposal of objection. Unlike the dialogue argumentation between the opposing parties in the tribunal, the judge is more likely to be in a neutral position, namely neutral judgment. How to guarantee the rationale and effectiveness of the dialogue argumentation, how to push people to make correct decisions and reach consensus in a restricted time and with incomplete evidence information, is the main focus of this process. There are different statements of facts and stories in the dialogue argumentation process, under each of which lies particular purpose and interest. But story-telling is not unorganized, and mature lawyers in the tribunal argumentation, abiding by the legal procedure and rational argumentation rules, would try to make their statements of facts appear to be more neutral. But there can always exist made-up plots intentionally or unintentionally in the storytelling. To evaluate the truth of statement, we must first make sure that the story is told in a coherent way, which means that not only there are not contradictories in the plots of the story and possessing the integrity of legal structure and common sense, but also in conformity with the “logic” of our world, which is that similar cases might occur in the typical situation.14 If two stories are reasonable, we should choose the best explanatory story for the given evidence.15 This depends on not only the quality of the story itself and the consistency of the existing evidence, but also the combination of supportive reasons behind statements and people’s beliefs.16 13 See

Lodder (1999). Twining (2006). 15 See Bex (2011). 16 See Haack (2014). 14 See

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Though fact-finding is a problem of probability, it applies the principle of winnertake-all: according to evidence standards, statement with higher probability wins the temporary 100 percent victory in legal decision. Thus, perceptual mistake is unavoidable, the existence of which makes any claimed correct or true fact-proposition run against the risk of being undercut or rebutted. Moreover, certain decisions without perceptual mistakes might be defeated because of procedural rules. For instance, because of the exclusion rules, in the fact-finding, some evidence which should have originally been taken into consideration is excluded, leading to the loss of certain information or even important information, and result in the change of determination of facts.

4 Defeasible Epistemology: Cognitive Process and Procedural Restrictions 4.1 Defeasible Epistemology and Evolutionary Cognition of Judicial Deduction From Plato to Rene Descartes to logical positivists, epistemology values formal logic and its rigorous application, which requires the theory system comprises of top-down deductibility of propositions. Following this model of formal logic strictly would bring the epistemology into dilemma. Because of that practical life, most arguments cannot follow this kind of strict deduction. Because of the limits of human rationality and deficiency of resources, people cannot reach the position of absolute truth and certainty, and we might amend or defeat our decisions after new factors are taken into consideration. This is the key idea of defeasible epistemology. Thus, with the passage of time and accumulation of experience, our rational strategies and ideas about rational procedure which are used to deal with problems in certain areas always might be reconsidered, revised and redefined.17 So is legal reasoning. Generally speaking, lawyers’ actions are conservative, and conformed to rules, and legal pattern of thinking has the characteristics of making decisions through routinely applying the established regulations and principles. But at a deep level, when the existing regulations, principles and procedures obviously have gaps and contradictions or might lead to extreme injustice, judicial reasoning has more functional characteristics. This time, the main task of the judge is not to apply the established norms to the cases, but to work on further development of law according to the purpose of law, the spirit of law, overall justice and historical tradition of legal systems.18 The main point here is to reevaluate the basic purposes of law in the new

17 See 18 See

Toulmin (1972). Toulmin (1972).

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historical context, and to determine a justifiable way of action.19 This way, on one hand, guarantees the stability and predictability of law, making people under certain legal tradition or jurisdiction be able to plan their actions and life without worrying about the revolutionary change of law, and on the other hand, facilitates the progress of law and development of judicial tradition in a rational way. Let’s come back to the context of fact-finding. Because of the limits of certain conditions, “absolute accuracy in judicial fact-finding is unattainable.”20 In the form of static reasoning, nearly all the arguments concerning proof is defeasible, which means the proposals of new evidence and termination of original evidence always might bring changes in conclusions. However, in the view of dynamic judicial process, the facts-finding is a progressional cognitive process during which new propositions and evidence would appear through the defeater, the defeater against defeater following the progression of dialogue in the limited time prescribed in procedure and based on a gradually current true, appropriate and not necessarily indefeasible conclusions according to existing materials. Specifically speaking, when the proponents want to establish the truth of a fact-proposition, she needs to propose evidence which supports the conclusion. For opponents, in order to undercut the conclusions, she must prove that the evidence proposed by the proponents cannot support the truth of fact-propositions, for instance, the evidence is not relevant to the case, or the evidence is defective. And if opponents discover that the evidence is not arguable, she should try to point out the exception to the fact-propositions, meaning she has other reasons to object to the applicability of this evidence. In turn, the domination might come back to the proponents. This cognitive process would go continuously, but because of restrictions by judicial cost and time, the judge should end the process at a certain point, and make temporary right decision at this point.21

4.2 Socially Constructed Truth In judicial process, the fact-finding restricted and limited by procedure. Truth is the product of social constitution,22 and thus has the characteristic of being temporary and defeasible. First, though any judicial process must determine the truth of fact-propositions in certain way, the pursuit of truth is not the only purpose, regulations like exclusionary rules, and non-enforcement of confession are designed to protect the interest of the defendant.23 On the other hand, the determination of facts is an inquiry in limited time and space, and in order to avoid the endless extensions of judicial proceedings, legal procedure has established the system like burden of proof and presumption to help 19 See

Toulmin (1972). (2013). 21 See Sartor (2008). 22 See Haack (2014). 23 See Summers (1999). 20 Bell

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judges make temporary correct decisions in limited time and space with imperfect knowledge. Procedural rules always presume burden of proof and presumption, the effects of objection to, agreement with and ignorance of certain proposal, the power of prove regarding certain kind of evidence, etc.24 First, procedural rules would prescribe which party has the burden of proof, and once the party has performed the duties as required by the burden of proof, the other party must be offered the fair opportunity of objection to such proposal. In criminal proceeding, only when the suspects have been proved that he committed a crime, and there is no justification for doing so, the suspect is allowed to be adjudged guilty by the judge.25 Otherwise on the basis of the principle of presumption of innocence, the allegations cannot be held. Besides, regarding the agreed-upon or uncontroversial statement of facts, the judges are more likely to accept them as true until the consensus is broken and objection is proposed. Thus, the attitudes both parties hold towards the fact-propositions, such as confession, objection or silence, might affect final results. In addition, not all evidence proposed in court is taken into consideration, and their credibility, relevance, legality and consistency must be tested. Moreover, the force of proof for each kind of evidence is different, and stronger evidence would make the propositions supported by weaker evidence no longer justifiable. These procedural restrictions actually have nothing to do with the judgment of truth but have effect on the fact-finding decision.

5 Conclusion: Reflection on Criterion of Truth in the Fact-Finding From the analysis above, the concept of truth in judicial process is used to judge truth of the fact-propositions, and the pursuit of truth is merely to verification or justification of certain fact-propositions. Thus, in judicial process, fact-propositions is true and fact-propositions has been proved has the same practical effect, namely, if fact-propositions has been proved, it is true.26 But this assertion has three different meanings. First, when the trier believes in the proposition p, it is true, which is a psychological confirmation. Second, if what prefers to has been known, that is, the trier has known sufficient data about p or she has sufficient evidence to support p, then p is true. Last, when the trier has accepted p, p is true, which concerns process of cognitive justification.27 First, people’s belief in what p refers to does not mean that there are sufficient reasons in support of p, but p having sufficient support of reasons is a reason that people can have belief in what p refers to. Belief in psychology does depend not only 24 See

Prakken and Sartor (2004). Hage (2003). 26 See Taruffo (2010). 27 See Beltrán (1990); Raz (1990). 25 See

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onfacts and eloquence, but also the agent’s belief set. So the use of rhetorical strategies might be unavoidable in court debate.28 However, rhetoric can help convincing people to accept conclusions which have sufficient reasons to support, but also those plausible ones. In order to avoid the effects by bad rhetoric, procedural rules regulate the behaviors of the participating parties in judicial process and try to create a more idealistic dialogue situation, under which circumstances the consensus people have reached can come closer to the truth. Second, acceptance in epistemology and belief in psychology is different. Generally speaking, belief in p is a prima facie reason for accepting p, but not vise versa. Moreover, the reasons for acceptance do not necessarily come from belief, but from the regulations of law, for instance, the burden of proof and presumption.29 Acceptability and acceptance is different. Acceptability means whether the fact-propositions itself can be acceptable by people. Generally speaking, people should accept fact-propositions which are acceptable, but propositions people have accepted may not possess acceptability. Acceptability is the criteria to test the rationale of facts-finding decision and acceptance is the fact of pushing facts-finding decision-making. Hence, acceptability must have a close relationship with the quality of fact-propositions and the coherence of the surroundings, thus coherence becomes an important criterion of whether fact-propositions are true.30 This coherence not only includes the consistency of evidence and supporting fact-propositions, but also the compatibility with common sense background and scientific assertions. In conclusion, most “facts” in judicial proceeding are fact-propositions through verbal expression, underlying which there is a presumption that there exists the objective facts, and proof is a process which pursues, verifies and justifies such presumption, and truth of fact judgment is their correspondence with the objective facts of such presumption. Judicial process is a dialogical argumentation, and perfected system of process rules can guarantee the equal opportunity, free speech, without privilege, honesty and without compulsion for all participants as nearly as possible, and they need to propose evidence to justify their narration of facts continuously. On one hand, the essence of this justification is to make their own version of narration of facts gain more support of consistent proposition; on the other hand, dialogical argumentation is a process in the constant pursuit of the inner belief and reasonable acceptance for people. Restricted by process and realistic factors, truth in fact determination is not absolute and non-defeasible. “Truth” mentioned here is not to refer to the quality of truth itself, but the quality of fact determination. Because facts in ontology and truth by their definitions are indefeasible and what we can defeat is people’s knowledge regarding facts and truth.

28 See

Twining (2006). Beltrán (2006). 30 See Amaya (2013). 29 See

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Reference Alexy, Robert. 1989. A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification, trans. by Ruth Adler and Neil MacCormick, 136. Oxford: Clarendon Press. Amaya, Amalia. 2013. Coherence, Evidence, and Legal Proof. Legal Theory 19: 1–43. Aristotle. 1998. The Metaphysics, trans. by Hugh Lawson-Tancred, 107. London: Penguin Classics. Aristotle. 2005. The Metaphysics, trans. by W. D. Ross. London: NuVision Publications. Bell, Evan. 2013. An Introduction to Judicial Fact-Finding. Commonwealth Law Bulletin 39: 551. Bex, Floris J. 2011. Arguments, Stories and Criminal Evidence: A Formal Hybrid Theory, 73. Dordrecht: Springer. Bex, Floris J. 2011. Arguments, Stories and Criminal Evidence: A Formal Hybrid Theory, 20. Dordrecht: Springer. Bex, Floris J. 2011. Arguments, Stories and Criminal Evidence: A Formal Hybrid Theory, 2. Dordrecht: Springer. Ferrer Beltrán, Jordi. 1990. Legal Proof and Fact Finders’ Beliefs. Legal Theory 12: 294. Ferrer Beltrán, Jordi. 2006. Legal Proof and Fact Finders’ Beliefs. Legal Theory 12: 302. Haack, Susan. 2014. Evidence Matters: Science, Proof, and Truth in the Law, 295. Cambridge: Cambridge University Press. Haack, Susan. 2014. Evidence Matters: Science, Proof, and Truth in the Law, 13. Cambridge: Cambridge University Press. Hage, Jaap. 2003. Law and Defeasibility. Artificial Intelligence and Law 11: 227. Lodder, Arno R. 1999. DiaLaw: On Legal Justification and Dialogical Models of Argumentation, 8–31. Dordrecht: Kluwer Academic Publishers. Peczenik, Aleksander. 2005. Scientia Juris: Legal Doctrine as Knowledge of Law and as a Source of Law, 144. Dordrecht: Springer. Prakken, Henry, and Giovanni Sartor. 2004. The Three Faces of Defeasibility in the Law. Ratio Juris 17: 128. Raz, Joseph. 1990. Practical Reason and Norms, 17. Princeton: Princeton University Press. Russell, Bertrand. 1914. Our Knowledge of the External World as a Field for Scientific Method in Philosophy, 51. Chicago: The Open Court Publishing Company. Russell, Bertrand. 1914. Our Knowledge of the External World as a Field for Scientific Method in Philosophy, 52. Chicago: The Open Court Publishing Company. Russell, Bertrand. 1971. Logic and Knowledge: Essays 1901–1950, 182. New York: Capricorn Books. Russell, Bertrand. 2001. Introduction to Tractatus Logico-Philosophicus, by Ludwig Wittgenstein, i, xiii–xiv. London and New York: Routledge Classics. Russell, Bertrand, and Human Knowledge. 2009. Its Scope and Limits, 130. London and New York: Routledge Classics. Sartor, Giovanni. 2008. Syllogism and Defeasibility: A Comment on Neil MacCormick’s Rhetoric and the Rule of Law. Northern Ireland Quarterly 59: 31. Summers, Robert S. 1999. Formal Legal Truth and Substantive Truth in Judicial Fact-Finding: Their Justified Divergence in Some Particular Cases. Law and Philosophy 18: 491–500. Taruffo, Michele. 2010. Towards a Logical Analysis of the Judgment on Facts. In Deontic Logic in Computer Science, ed. Guido Governatori and Giovanni Sartored, 10th International Conference, DEON 2010 Fiesole, Italy, July 7–9, 2010, Proceedings, 4, Springer. Toulmin, Stephen. 1972. Human Understanding Vol. 1: The Collective Use and Evolution of Concepts, 500. Princeton: Princeton University Press. Toulmin, Stephen. 1972. Human Understanding Vol. 1: The Collective Use and Evolution of Concepts, 94, 239–240. Princeton: Princeton University Press. Toulmin, Stephen. 1972. Human Understanding Vol. 1: The Collective Use and Evolution of Concepts, 240. Princeton: Princeton University Press. Twining, William. 2006. Rethinking Evidence: Exploratory Essays, 2nd ed., 294. Cambridge: Cambridge University Press.

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Wittgenstein, Ludwig. 2003a. Tractatus Logico-Philosophicus, 6. New York: Barnes & Noble. Wittgenstein, Ludwig. 2001. Tractatus Logico-Philosophicus, trans. by D. F. Pears and B. F. McGuinness, 5. London and New York: Routledge Classics. Wittgenstein, Ludwig. 2003. Tractatus Logico-Philosophicus, trans. C. K. Ogden, 7. New York: Barnes & Noble.

Providing Evidence: C.A. Coulomb’s “Balance Électrique” and the Culture of French Enlightened Rationality H. Otto Sibum

In 1785 the engineer and natural philosopher Charles-Agustin Coulomb presented his experimental research to the French Academy of Sciences.1 In front of this distinguished audience he laid out his “construction & usage d’une balance électrique” with which he had achieved the “determination expérimentale de la loi suivant laquelle le elements des Corps électrifisés du meme genre d’Electricité, se repussent mutuellement.” In quite detail Coulomb reported that he had established a scientific fact by means of employing a new measuring device that would allow the precise determination of the force acting between two electrically charged bodies. In short, he argued that he had provided empirical evidence for a universal law that governs electrical and magnetical forces in nature. Physicists today regard this experiment as canonical because it had become a building block of their discipline. Historians of science usually describe this experiment as a landmark in this historical period of the formation of the exact sciences. Over the last decades historians and physicists reworked the experiment in a collaborative project in order to clarify in more detail the actual role of this experiment for the development of electrical research in the last decades of the eighteenth century.2 This research has led to a rather puzzling result: Coulomb’s experiment could not be 1 Charles A. Coulomb, “Premier memoire sur l’electricite et le magnetism” (1785), in Memoires de

l’Academie des Sciences (Paris: 1788), 569–577; “Second memoire sur l’ectricite et la magnetism” (1785), in Memoires de l’Academie des Sciences (Paris: 1788), 578–611, see also, “Recherches theoretiques et experimentales sur la force de torsion, et sur l’ectricite des fils de metal” (1784), in Memoires de l’Academie des Sciences (Paris: 1787), 229–268. 2 The expression reworking experiments refers to a historigraphic approach called “Experimental History of Science”, which uses the building of replicas of historical apparatus and the performance of the experiment with the replica as a complementary heuristic method. Sibum (2000); for a case study see Sibum (1995). On the attempts to rework the Coulomb experiment see, Blondel and Dörries (1994). H. Otto Sibum (B) Uppsala University, Uppsala, Sweden © China University of Political Science and Law Press 2021 B. Zhang et al. (eds.), Facts and Evidence, https://doi.org/10.1007/978-981-15-9639-1_5

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replicated. In fact the experimentally achieved data were so scattered that they could be taken as evidence for a 1/r as well as an inverse square law.3 Furthermore until today the working knowledge involved in the performance of Coulomb’s experiment remains tacit, hence it is even unclear whether Coulomb could have performed the experiment at all. Instead of adding further speculation I will propose a historical investigation of Coulomb’s experiment by means of investigating its evidential context. According to recent work by historians and philosophers “there seems to be an important historical connexion between changes in the concept of evidence and that of the person capable of giving evidence”.4 According to the philosopher Ian Hacking until the early modern period “testimony and authority were primary, and things could count as evidence only insofar as they resembled the witness of observers and the authority of books.”5 During the late seventeenth and eighteenth century we observe a reversal effect: Testimony and authority are resorted to only when investigators of nature cannot have individual experiential access. Hence experimenters who used their bodily senses to acquire “new physical truth”, tried to shift the evidential context from the body itself to some wider natural philosophical concern. The creation of matters of facts became their most impersonal of statements. In what follows we will investigate Coulomb’s experimental set up the torsion balance and try to reveal hidden layers of cultural meaning of this device that may help to understand why this experiment withit’s few quantitative results became such a authorative statement about natural forces in the French community of natural investigators. I am arguing that Coulomb’s torsion balance acted like a mediating technology that was sufficient to establish the necessary evidential context for the inverse square law of electrostatics in French enlightenment culture.6 Before taking a closer look at the instrument itself, let’s briefly look at what was called “experimental natural philosophy” or “physicaexperimentalis” in Coulombs’ days and what kind of research was performed within the field of electricity and magnetism. During the second half of the eighteenth century electrical research became a public spectacle but the trouble with experiment had not yet ended. In the contrary, scholarly opinions on “the art of experiment” still ranged from denying it had any epistemological value to the nineteenth century conviction that this form of 3 The method of repeating an experiment in science is called replication. It is regarded as a necessary

condition for establishing a scientific fact. On replication see, Collins (1985). For a full account on the experimental results achieved in replicating Coulomb’s experiment see Peter Heering, “The Replication of the Torsion Balance Experiment. The Inverse Square Law and its Refutation by Early 19th Century German Physicists”, in Blondel and Dörries, Restaging Coulomb, 47–66; On experiment see Shapin and Schaffer (1985). 4 On “evidential context” see Pinch (1985). See also Schaffer (1992). 5 Hacking (1975). As Simon Schaffer infers this has not only become a familiar ideological theme of early modern natural philosophy, note the motto of the Royal Society of London: nullius in verba. Or see the attempts of experimental philosopher Robert Boyle who tried to gain “credit of laboratory objects at the expense of untrustworthy humans.” Schaffer, “Self Evidence”, 56–57. 6 For the concept of mediation see Wise (1993).

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inquiry was the only way to make sense of natural causes. One of the underlying issues in these controversies about the meaning of experiment was that the physical manipulation of objects was seen as not belonging to the scholarly world, in which textual authority was primary to sensuous experience—a stance that reflects their clear distinction between doing and knowing. In order to bridge the gap between the world of books (theory) and the world of direct experience (practice), since the mid eighteenth century the engineer became regarded as the ideal candidate to mediate between these worlds—the third man. However, from the engineers’ perspective, to be this go-between was still a very unsatisfactorily position to be in. As the German philosopher Christian Wolff reminded his readers of the German translation of the Belidors, Architectura: In such circumstances‘a third man would be needed, who could in himself unite science and art, in order to correct the theorists’ infirmities and to combat the prejudice of the lovers of the arts, as if they could be there in complete without the theory, and leave it [theory] to the idle heads good-for-nothing in the world…Hence…he [Leupold] compared himself to a bat, tolerated among neither birds nor quadrupeds, and he complained that he was hated by the practitioners of art as well as despised by the theorists, for he wanted by his nature to be celebrated as a remarkable man by both, and to share fame in the learned world with the latter and happiness at court with the former.7

Inestablishing “physica experimentalis” within the Republic of Letters experimentalists were experiencing the advantages and disadvantages of the third man’s position. Like bats, experimentalists were difficult to classify. Did their studies of nature, practiced with head and hand lead to a specific form of knowledge, did it qualify as Wissenschaft, as scientia? Answers to this question depended on the actors’ stance towards the implicit distinction made in those days between experimental knowledge and science, or knowledge in general and scientific knowledge in particular. This distinction has a largely unwritten history of its own and is intimately linked with the social history of those who work with their hands and those who work with their heads. Furthermore, the dominant understanding of scientific knowledge as universal, autonomous, and permanent was intimately linked with the hegemony of the written text in the scholars’ form of life. Hence even from the mid-eighteenth century onwards, several generations of experimental natural philosophers were required to free the art of experiment from its epistemological stigma and to position their knowledge within the Republic of Letters. Electrical research in the eighteenth century was strongly tied to the formation of this new type of researcher, the experimental philosopher who violated the traditional identity of the scholastic scholar. No longer was training in classical languages, philosophy and theology a precondition forscholarship, the working knowledge and common sense of physicians, craftsmen, and apothecaries were going to be claimed as of becoming of equal rank.8 This led to social conflict because it violated the exisiting 7 Christian Wolff, introduction to Architectura Hydraulica, Oder die Kunst, das Gewässer zu denen

verschiedentlichen Nothwendigkeiten des menschlichen Lebens zu leiten, in die Höhe zu bringen, und vortheilhaftig anzuwenden, by Bernard Forest de Belidor (Augsburg 1764), 2. 8 see for example Priestley (1767).

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epistemic and moral order within the Universities. In Germany established professors of philosophy felt the need to warn against this new fashion of experimentation arguing that one should not have great hopes to gain new physical truth through the manipulation of nature with the help of instruments. Experience gained in physics through the senses is of a twofold kind: one sort we take from God’s creatures, from fire, air, water, earth, from the stars, flowers etc. the other we gain from artificial things, which are made by human hands…But we have no cause to make a great show of it, as if one could discover new and hitherto unknown physical truths through them [artificial things].9 In his inaugural lecture the newly installed professor at the College de Navarre Abbe Nollet even reflected upon this topic in order to properly place experiment within the Republic of Letters. He insisted that this mode of investigation of nature should be set apart from the practice of natural history: someone who wants to study nature without understanding her history speaks on the offchance, somebody who does know of nature nothing else then her history has a right to get a chair amongst those scholars who excercise their minds only.10

However, the public enthusiasm for electrical and magnetical matters fuelled this debate about the epistemological status of experiment. This new instrumental research had produced rather strange effects like electric shocks, the dissolution of water into hydrogen and oxygen and the ignition of alcohol through an electric spark. Indeed, electricity had the power to transform one of the basic natural elements: water. Hence electricity was sometimes called “the fifth element”, life force, an active principle, the ether. But whether electricity was a natural phenomenon or an artifical one that question perpetually occured in these discourses most famously expressed in the distinction made in these days between artificial electricity (effects produced with electrical machines) and animal electricity (L. Galvani’s frog experiments). One could name a long list of investigations that demonstrate this struggle over the natural and the artificial and I would like to name a few like for example the researchers attempt to find similarities between artificially created discharging effects in evacuated glas bulbs and natural phenomena like the aurora borealis. Most challenging was the attempt to prove whether electricity was a life force. One important line of development were the experiments of Henry Cavendish modeling electrical torpedo fish (gymnotus electricus) in order to see whether their shock effects after touching them were similar to those created by artifical electricity.11 9 M.

Walch, 1733, cited after Schimank (1974). A. Nollet, Discours sur les Dispositions et sur les Qualités qu’il faut avoir pour faire du Progrès dans l’Étude de la Physique Expérimentale (Paris: 1753). German translation, Rede von der nötigen Geschicklichkeit zur Erforschung der Natur, welche er den 15. Mai 1753 bei dem Antritte seines öffentlichen Lehramtes in dem Navarrischen Collegio gehalten (Erfurt: 1755). In the German translation this latter type of scholars-the traditional scholar who studies books-was translated as “Gedächtnisgelehrte” as opposed to those new scholars who induce knowledge from sensuous experience. 11 See for example Cavendish (1776); on the way how physical models are used to mediate between nature and art in the field of electrical research see Schaffer (2004). 10 J.

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The French engineer Charles-Augstin Coulomb was rather puzzled and challenged by these obscure investigations of animal electricity and animal magnetism. When he returned to France he was convinced that he could bring order into this chaos of electrical research. In the early stage of his career the twenty six years old military engineer Charles Augustin Coulomb had been send to one of the French colonies to Martinique in order to built a new military fort. When he was back in Paris he undertook important work for the French government. Not only at Martinique but equally at home the efficient organisation of human work was one of his major concerns. He became involved in several projects under the Turgot administration. There he also became acquainted with Antoine Lavoisier who worked on an even so important issue, an agricultural plant station, at which he had persued research during the 1780s for nine years on the quantitative determination of food production. As C. C. Gillispie has stated Lavoisier provided the empirical data which should lead to a fundamental treatise on agriculture. The way of analysis was very much in the manner of Quesnay’s economical reasoning. Lavoisier worked together with the physiokrat Dupont de Nemour in a governmental commisson on agriculture in order to determine through exact measurement the maximum of profit from agricultural production. Within this working context Coulomb exchanged modes of reasoning with Lavoisier, Dupont de Nemour, Quesnay and others.12 At the end of the 1770s Coulomb had reached the peak of his career as a French engineer whose opinion mattered in his country. With regard to science he had continously worked on projects since his time in Martinique. In 1777 he took part in a price competition of the Academie des Sciences in order to improve ship compasses. In the usual engineering manner Coulomb located the source of the imprecise movement of the magnet needle as an effect of the mechanically induced friction of the pivot. Friction always meant a loss of power and therefore his new machine should be able to measure minimal performances of work of the magnetic needle. For this purpose he changed the design of a magnetic compass so that the needle was suspended by a thin metal thread. His previous studies on theelasticity of metals had led him to establish the law of torsion which indicates—in the range of certain limits—a proportionality between the angle of twisting the wire and the mechanical force applied.13 With the construction of this measuring technique he had prepared grounds for new advanced research in various fields. Jean Dominique Cassini immediately saw this and invited him to work on magnetic surveying in the Paris observatory. There Coulomb certainly developed further his skills in using the new torsion principle. After that, research on electrical and magnetical phenomena caught his attention because it offered promising grounds to show the power of enlightened science. As said before Coulomb was rather frustrated about this close alliance of facts and fiction in this field of research. He wanted to provide a measuring technique that would allow a clear identification and a quantitative determination of the electrical force. Based on

12 see

for example Gillispie (1980); Gillmor (1972); Licoppe (1994); Sibum (1997).

13 C. A. Coulomb, “Recherches theoretiques et experimentales sur la force de torsion, et sur l’ectricite

des fils de metal” (1784), Memoires de l’Academie des Sciences (Paris: 1787), 229–268.

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his long experience in determining quantitatively the torsion behavior of metal wires when twisted, he finally suggested his plan to built an electrical torsion balance.14 But how does it work? In a glass cylinder a needle suspended by a silk thread is hung. At one end of the needle there is a small pith ball mounted. This ball can move horizontally in two directions. Now when bringing the pith ball into contact with a second one which is electrically charged, first of all the swinging ball is attracted. Then after a few seconds the electrical charge is distributed over both pith balls and they repel each other. That distance can be measured by means of reading of the angle through a scale mounted on the glass surface. With the screw at the top of the instrument you can now twist the wire so that the angle between the two pith balls can be reduced to half of its size. Above at the scale you can read of the mechanical force applied to twist the wire. In a second run you can again half the angle and you read of the next value for the mechanical force applied to twist the wire. After Coulomb had charged the ball the equilibrium position was reached at 36 degrees. Now he twisted the wire by moving the screw. He stopped twisting when the ball had reached its new position that was half the distance than before: the angle was 18 degrees. He had to turn the screw 126 degrees. But the total angle of twisting was 126 plus half of the old torsion angle of 36 degrees. That means in total he had twisted the wire 144 degrees. 144 degrees is just four times of the original angle of torsion. Hence he inferred that the electrical force changes according to the inverse square of the distance. He published only three results of which only two gave an exact value. But for him these results provided satisfactory evidence to argue that the electrical force acts like Newtons gravitational force. Hence results were immediately taken by Coulomb and his fellows as empirical evidence that Newtons force law even works for other forces like electricity (and magnetism). However, as mentioned above, attempts of reworking the experiment (i.e. building a replica and performing measurements with it) led to rather surprising results. During experimentation the electrical interaction between the electrically charged body of the experimenter and the pith balls of the swinging needle was noticed. This impeded reliable measurements a circumstance not mentioned at all by Coulomb in his publication. But undoubtedly he will have faced this problem. Hence in our trials of reworking the experiment with a replica of the torsion balance we shielded of the experimenter from the instrument through a Faraday cage that was put around the balance. However, this technique was not known before Michael Faraday invented it in the 1840s. Only measurements taken with this modified set up provided evidence for the inverse square law. Therefore we rightly can ask, had Coulomb been able at all to achieve his published results? What kind of strategies he took to overcome this problem we do not know.15 How he could do the experiment and why he and his

14 C. A. Coulomb, “Premier memoire sur l’electricite et le magnetism” (1785), Memoires de l’Academie des Sciences (Paris: 1788), 569–577; “Second memoire sur l’electricite et le magnetism” (1785), Memoires de l’Academie des Sciences (Paris: 1788), 578–611. 15 See Peter Heering, in Blondel and Dörries, Restaging Coulomb, 47–66, 55.

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colleagues took these questionable results as sufficient evidence for this natural law we can only answer through further historical investigations as pursued below. Since his membership in the Academy in 1781 Coulomb had mainly contact with his old teacher, the engineer Charles Bossut, the mathematical physicist Simon Pierre de Laplace, the chemist Antoine Lavoisier, as well as Condorcet and Condilliac. Simon Pierre de Laplace and Joseph-Louis Lagrange represented a mathematically orientated group of scholars, who regarded the mathematical part of Newtons Principia Mathematica as the standard for their theoretical work. By doing so they wanted to exclude Newtons vitalistic natural theology from the new enlightened exact sciences. Laplace thought it would be best to stop the unfruitful ether speculations by proposing the existence of different fluida. All natural forces like electricity, magnetisms and heat were then to behave in the same way as Newtons gravitational force: acting at a distance. As much as Laplace’s authority has impressed Coulomb as much has Coulomb convinced Laplace that he would be the person who could make the Newtonian project applicable to the electric fluid. Between these social groups the torsion balance acted like a mediating technology. However, toillustrate or even to provelaws of nature by means of precison measurement was not common opinion amongst eighteenth century scholars, it was subject of controversy. As Jan Golinski has shown for the development of chemistry English scholars didn’t accept the French experimental refutation of Priestleys phlogiston theory because to them this was just a new and unacceptable form of communication. Why should in a controversy a few exact measurement be of higher order than qualitative experiment? Moreover, the public demonstration of Lavoisiers calorimeter experiment in Paris was a further attempt to establish this new procedure of proof in the sciences. In public Laplace, Lavoisier and also Coulomb tried to demonstrate that their disciplines were based on precision measurement. For Lavoisier and Laplace precision measurement had an even more general meaning, it was the training ground for the enlightened mind and it was Laplace who gave lectures during the French revolution on statistics in which this calculating mind was celebrated as the weapon against irrationalism.16 Without going into detail about this issue I would like to name two important aspects which matter for the understanding of Coulombs research. The sensitivity of the new precision technologies required the acquisition of gestures of accuracy and of ten particularly designed spaces to perform the experiment. These practical measures led to a necessary division between private and public performance of experiments. Such a change in experimental practice went along with changes in the modes of communication amongst Academic scholars. Phenomena were not any more displayed in public only but now reports about privately performed experiments were read at the Academy and especially designed demonstration experiments proposed to support the authors claim. In this period of the formation of an exact science we can observe extreme claims about the accuracy of privately performed experimental work which led to what the French called an “exactitude scrupuleuse”. This rhetoric of precision hadn’t always 16 Golinski

(1995).

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firm foundation but for scholarsnot directly involved in precision work it was hard to question: they trusted these scholars. On the other hand we do know from private correspondence that neither Lavoisier nor Laplace were deeply worried if empirical data didn’t match theoretically deduced values. They still understood pretty well what itmeant “that true science doesn’t need columns of numbers”.17 Within this context of the formation of an exact science we have to place Coulombs work. His few published quantitative results were sufficient enough to give proof of the 1/r2 law.

1 Rational Machines In order to understand how it came about that Coulombs experiment became so well received in France despite the few and problematic quantitative results we have to take a look again at the instrument itself. Coulomb’s “Construction d’une balance électrique” was the reification of a commonly shared rationality, that all dynamic processes in nature and society could be reduced to static equilibrium systems. Hence thetorsion balance served in this community as a “mediating machine”. In what follows I am using here the pioneering work of M. Norton Wise who has not only introduced the concept of mediating machines but also shown the mediating role the balance has played amongst members of this elite community of French Enlightened Rationalists.18 When the chemist Antoine Lavoisier and Pierre-Simon de Laplace invented the device that they called a “machine” for measuring heat but that soon became the calorimeter, according to Wise, they designed it as analouge of that epitome of simple machines, the balance. The calorimeter would balance quantities of heat against quantities of melted ice. The measurement actually involved weighing the water obtained on a standard mass balance. It assumed a balance in the water itself, an “equilibrium between heat, which tends to seperate the molecules of bodies & their reciprocal affinities, which tend to reunite them.” For a piece of ice to melt meant to change from one state of equilibrium of these two powers to another. In this sense their machine balanced expansive and contractive powers. And, yet, and this is very important for understanding the concept of mediating machines Lavoisier and Laplace recognized somewhat different balances in this same calorimeter. As a 17 F. L. Holmes has shown, that the degree of precision of Lavoisiers experiment did not have the caliber than displayed publicly. Holmes (1985). The critical remarks on the places of decimals given in the publication is mentioned in Golinski (1992). The actors were fully aware of the existing tension between mathematical simplicity and errors in the practical execution of measurements. As Norton Wise explains Laplace has always opted for the gravitational force law for its very simplicity as a natural law. He knew about the difficulties to precisely determine the law in experimental practice. “Nevertheless he relied on his faith that the underlying structure of nature was both mathematical and simple in insisting that the power of the distance was a pure 2 rather than a messy 2.0001.” Wise in Horwich, 1993, 207–256, 246. 18 See Wise, “Mediations”, 207–256.

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chemist Lavoisier saw a balance of chemical substances with their respective qualities, but nevertheless substances. Laplace saw a balance of forces, repulsive and attractive, by analogy with the gravitational force acting at a distance between atoms of matter. Similar as in rational mechanics and in physical astronomy the collaboration, therefore, was a tenuous one, one that depended on constructing a limited region of shared meanings, objects, motivations, a region in which cooperation, competition, and exchange could occur. In this region of intersection the calorimeter mediated between the potentially divisive interests of Laplace and Lavoisier. Furthermore, along with the standard balance and the calorimeter, Lavoisier adopted the balance sheet as his habitual accounting device for keeping track of and verifying the balance of substances in his experiments. But the sheet as a whole balanced a complete set of input and output relations, presenting them in a standard form of an economy. And it would be difficult to overestimate the importance that Lavoisier assigned to the balance sheet as a tool of economic analysis and government policy, but also as the very embodiment of political economy. Following Wise analysis for Lavoisier the balance sheet was a thermometer. “The balance sheet as a fever thermometer thus informs, and is informed by, an extended analogy between the flow of heat and the flow of monetary value. An unhealthy economy is one with too much money flow, i.e. it is overheated…Just like heat flows from a hot body to a cold one to restore thermal equilibrium, so money flows to restore economic equilibrium.”19 As components of his grand thermometer of the body politic, Lavoisier worked up balance sheets for several agricultural sectors. And to put it in a nutshell, the balance sheet and the fever thermometer motivate and validate each other. Lavoisier could therefore rely on the strength of his chemical practice when conversing with Dupont de Nemours and the Committee of Agriculture and on his economic practice when discussing chemistry. It would be easy to continue with this list of various other balancing machines that reinforced each other. And before I return to the electrical torsion balance let me just finish this list by making some brief remarks on algebra that Norton Wise has explicated as another balancing instrument. Indeed Lavoisier’s chemistry interacted also with the philosophy of the Abbe de Condilliac. Condilliac’s algebra provided the required logic for Lavoisier’s new chemical analysis. It was the logic of analysis, put into operation as algebraic analysis. Andreversely for Condilliac algebra was not merely the abstract balance of symbolic equations but also a machine of discovery. “‘It is properly the lever of the mind.’ Indeed, in Condilliac’s version of Christian morality, before the fall of man into darkness of rhetorical deceptions and the domination of despots and dogmas, one did not question whether ‘the word thought meant anything other than to weigh, balance, compare.’ Enlightened and reborn man had rediscovered in algebra the lost art of analytic thought, ‘the lever of the mind’ that lifted unknowns by the weight of knowns.”20 19 Wise,

“Mediations”, 222. after Wise, “Mediations”, 228; Étienne Bonnot de Condillac, “La logique, ou les premiers development de l’art de penser” (1780), in Oeuvres de Condillac (Paris: 1798), 22, 127. 20 Condillac

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As Wise has persuasively demonstrated the elite community of French Enlightenment rationalists reinforced each other about the order of nature and society through constructing these technologies of balancing acts. The balance served many scholars interests and it were French mathematicians and philosophers who developed an analytical method which became the emblem of French enlightenment. They assumed “that enlightened society with its accumulated archive of experiments would consequently lead to a timeless condition of natural order”. In order to understand the inherent logic it is important to understand that it is possible to exclude in all calculations the dimension of time. The only true language was algebra: Condorcet argued that in any ordered system their single elements could be described as variables and unknown values of a formula. You have understood the system if you can show that some values of an unknown measure will solve the equation. The formula he regarded as the natural law which governs a variety of elements. The solution of the equation represented the equilibrium condition of the system. Coulombs publication from 1785 was a further successful step to support this approach of the French school. The “Construction d’une balance eléctrique” was to many the mechanical representation of Condillacs algebraic equation. Coulomb treated his electrical measurements as a problem of a conflicting forces: In his torison balance he employed the mechanical force of a twisted silver wire to counteract the electrical force of repulsion of two charged pith balls. In this material system of counteracting forces he regarded the equilibrium point between the mechanical and the electrical force as the natural standard in order to be able to determine the still unknown measure of electrical force employed via the measurable mechanical force. The torsion balance represented the law of nature maintaining an equillibrium between conflicting mechanical and electrical forces. By means of adjusting the micrometer screw Coulomb could adjuste several equillibrium points according to strength of the electric charge. These determined values served as the solutions for nature’s formula. Coulomb’s nearly timeless balancing act represented perfectly the French ideal of enlightenment: Static (timeless equilibrium mechanics).21 Therefore the torson balance was not only a direct translation of engineering practices into a electrical measuring device but also a further example for French scholars to demonstrate that exact measurement of dynamical forces in nature could be described and controlled through statical means. Coulombs machine not only mediated this form of rationality but also changed the way people saw electricity. Electrical force was no longer an obscure entity in nature but a semi-mechanical force. This was the formation of electro-statics as a new discipline Coulombs publication and in particular his torsion balance helped to define electricity on the basis of precision measurement and to place it within the Newtonian system of mechanics.

21 In practice Coulomb required two minutes to perform three measurements and he even described in his publication how to avoid loss of charges during the trials in order to account for them in the final calculations.

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2 Conclusion As Wise has shown French natural philosophers regularly referred to their techniques of analysis as instruments. Lavoisier’s reference to the balance sheet as a thermometer is typical. More strikingly, Laplace, Condilliac and others often referred even to mathematical analysis itself as an instrument for revealing and embodying nature’s own realities. Hence we can learn here from that community of French Enlightenment rationalists to overcome our modern habit of thought that prevents us from treating material instruments, like the torsion balance or the calorimeter, as of a piece with analytical techniques, like the balance sheet or a mathematical equation. Furthermore, this paper shows that between different late eighteenth century French subcultures of mathematicians, economists, chemists, engineers, and politicians the torsion balance (balance électrique) acted as a mediator. By means of constructing balancing technologies of different kinds these actors of the elite community of French Enlightenment rationalists reinforced each other about the order of nature and society. Engagement with the torsion balance reinforced the various actors’ imaginations about the order of nature and society—now to be seen as equilibrium states, as electro-statics. Finally, the torsion balance mediated between certain epistemological levels with regard to electricity as an entity. Coulomb’s torsion balance experiment reifies electricity as a theoretical entity, but at the same time it idealizes reality, in the sense that it often assigns to it the meanings it has in the theory.22 Hence Coulomb’s torsion balance was very much appreciated by the physicists Laplace and this mostly on theoretical grounds: the measurements would empirical show—although according to modern standards rather badly—that Newtons universal law of gravitation works also for this new entity electricity. Within this elite community of French rationalists the torsion balance mediated successfully. These balancing acts of various sorts provided the evidence for this new physical truth, this matter of fact. However, until the early nineteenth century outside this French community hardly anyone was convinced that his experiment had provided evidence for this law. Admittedly, Coulomb’s inverse square law of electricity was regarded as a possibility but his experiment with the torsion balance was either ignored by the researchers outside France, like in Germany, England and Italy, or publicly attacked by cosmopolitan researchers like the Swiss Jean Andre Deluc who rejected the law of squares as an “artifact of the torsion balance”. He insisted that Coulomb would not have the right to refer the forces to the centres of the repelling spheres. Had he taken an appropriate origin of coordinates—an undisturbed point in the surrounding medium—he would have found it impossible to obtain this natural law with precision. Obviously 22 This became very obvious when the French philosophers were asked to prove whether the forces exerted from Alessandro Volta’s battery was electricity. As we know in 1800 Volta displayed his invention in front of Napoleon and members of the French Academy of Sciences in Paris. But the key instrument that would persuade the French that the demonstrated force of Volta’s battery is electrical was Coulombs torsion balance-the latter, of course, did not give any indication. On Volta see Giuliano Pancaldi, Volta, Science and Culture in the Age of Enlightenment (Princeton University Press, 2003).

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it was the local and very well established evidential context that made Coulomb’s torsion balance experiments appear to be the uncontroversial empirical basis of this scientific fact. Hence for several years the torsion balance remained the emblem of French enlightened reasoning but only within France.

Reference Blondel, Christine, and Matthias Dörries (eds.). 1994. Restaging Coulomb: Usages, Controverses et Réplications Autour de la Balance de Torsion, Biblioteca di Nuncius, Studi e Testi, 15. Florence: Leo S. Olschki. Cavendish, Henry. 1776. An Account of Some Attempts to Imitate the Effects of the Torpedo by Electricity. Philosophical Transactions 66: 196–225. Collins, Harry. 1985. Changing Order: Replication and Induction in Scientific Practice. London, Beverley Hills, New Dehli: Sage. Gillispie, Charles C. 1980. Science and Polity in France: The End of the Old Regime. Princeton: Princeton University Press. Gillmor, C. Stewart. 1972. Coulomb and the Evolution of Physics and Engineering in EighteenthCentury France. Princeton: Princeton University Press. Golinski, Jan. 1992. Science as Public Culture: Chemistry and Enlightenment in Britain, 1760– 1820, 144. Cambridge: Cambridge University Press. Golinski, Jan. 1995. ‘The Nicety of Experiment’: Precision of Measurement and Precision of Reasoning in Late Eighteenth-Century Chemistry. In The Values of Precision, ed. M. Norton Wise, 72–91. Princeton: Princeton University Press. Hacking, Ian. 1975. The Emergence of Probability: A Philosophical Study of Early Ideas About Probability, Induction and Statistical Inference, 33–34. Cambridge: Cambridge University Press. Holmes, Frederic L. 1985. Lavoisier and the Chemistry of Life: An Exploration of Scientific Creativity. Madison: University of Wisconsin Press. Licoppe, Christian. 1994. Coulomb et la ‘physique experimentale’: Pratique instrumentale et organisation narrative de la prevue. In Blondel and Dörries, Restaging Coulomb, 67–83. Pinch, Trevor. 1985. Towards and Analysis of Scientific Observation: The Externality and Evidential Significance of Observational Reports in Physics. Social Studies of Science 15 (1): 3–36. Priestley, Joseph. 1767. The History and Present State of Electricity, with Original Experiments. London: J. Dodsley, J. Johnson and T. Cadell. Schaffer, Simon. 1992. Self Evidence. Critical Inquiry 18 (Winter): 56–91, 56. Schaffer, Simon. 2004. Fish and Ships: Models in the Age of Reason. In Models: The Third Dimension in Science, ed. Nick Hopwood and Soraya de Chadarevian, 71–105. Stanford, CA: Stanford University Press. Schimank, H. 1974. Zur Geschichte der Physik an der Universität Göttingen vor Wilhelm Weber (1734–1830). Rete: Strukturgeschichte der Naturwissenschaften 2: 207–252, 213. Shapin, Steven, and Simon Schaffer. 1985. Leviathan and the Air-Pump: Hobbes, Boyle, and the Experimental Life. Princeton, NJ: Princeton University Press. Sibum, H. Otto. 1995. Reworking the Mechanical Value of Heat: Instruments of Precision and Gestures of Accuracy in Early Victorian England. Studies in History and Philosophy of Science 26 (1): 73–106. Sibum, H. Otto. 1997. Charles Augustin Coulomb: Einfache Maschinen in Theorie und Praxis. In Die groβen Physiker, vol. 1, ed. Karl von Meyenn, 241–262. München: Beck. Sibum, H. Otto. 2000. Eperimental History of Science. In Museums of Modern Science, Nobel Symposium, ed. Svante Lindqvist, 112, 77–86. Canton, MA: Science History Publications.

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Wise, M. Norton. 1993. Mediations: Enlightenment Balancing Acts or the Technologies of Rationalism. In World Changes: Thomas Kuhn and the Nature of Science, ed. Paul Horwich, 207–256. Cambridge, MA: MIT Press.

Knowing as Simply Being Correct Stephen Hetherington

1 A Traditional Conceptual Model of Knowledge’s Nature Western epistemologists have long told us a simple tale of how we must begin to conceive of knowledge’s nature. But they have long been on conceptually weaker ground than they have assumed is so. This paper will tell an alternative story about that same phenomenon. On the traditional epistemological tale, knowing is at least (1) one’s having atrue belief (a belief whose content matches a fact, say), and (2) one’s belief being well supported in a truth-directed way, such as by good evidence. A schematic picture is thus sketched: knowledge is at least a justified true belief. Perhaps the simplest way of rendering that schematic idea slightly less schematically has long been this: Knowledge is at least a true belief accompanied by, or based on, good evidence of the belief’s being true. How standard is that traditional picture? Nothing is more standard within Western epistemology. This account of knowledge’s nature entered Western philosophy in Plato’s dialogues Meno and Theaetetu. Its locus classicus is in the Meno. Socrates tells Meno (97e–98a) that1 true opinions, as long as they remain, are a fine thing and all they do is good, but they are not willing to remain long, and they escape from a man’s mind, so that they are not worth much until one ties them down by (giving) an account of the reason why. And that, Meno my friend, is recollection, as we previously agreed. After they are tied down, in the first place they become knowledge, and then they remain in place. That is why knowledge is prized higher than correct opinion, and knowledge differs from correct opinion in being tied down. So (we are being assured), knowledge is different from mere “correct opinion”; and this difference is to knowledge’s credit, with knowledge being better than correct 1 The

translation here is from Grube (1981).

S. Hetherington (B) University of New South Wales, Sydney, NSW, Australia © China University of Political Science and Law Press 2021 B. Zhang et al. (eds.), Facts and Evidence, https://doi.org/10.1007/978-981-15-9639-1_6

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opinion in the relevant respect. Meno and Socrates were discussing, in particular, what path one would need to follow if travelling to Larissa. They agree (at 97c) that a right opinion as to where the path lies is, in itself, no less useful a tool for reaching Larissa than knowledge of the path’s position would be: Socrates says, and Meno concurs, that “true opinion is in no way a worse guide to correct action than knowledge.” However, there is a significant difference between true opinion and knowledge: Meno says (97c) that “the man who has knowledge will always succeed, where as he who has true opinion will only succeed at times.” Why is that? Here, Socrates offers his famous explanation—famous partly because of the memorable analogy upon which it is built. Socrates says (97d–e) that mere true opinions are like the remarkable statues by Daedalus: untethered, those statues depart, they “run away”—and so do mere true opinions. Contrast them in that respect with knowledge: beneficially, it includes something that ties down the true opinion, so that the latter stays in place, there by unable to roam as Daedalus’ statues would do. What is that further something, able to anchor the true opinions? Metaphorically and programmatically, it is a tether. Non-metaphorically and non-programmatically, it is “an account of the reason why”, says Socrates. Contemporary epistemologists have interpreted this Socratic picture in epistemic terms, as amounting most obviously to knowledge’s needing to include good evidence. The Socratic thinking has thus been parsed in this way. If you accompany your true belief with good evidence as to why it is true, you are less likely to lose the belief (that is, to have it “run away”)—and there by to lose your bearings as you travel, hopefully towards Larissa. In being true, the belief does somehow register or reflect the fact in question (such as that this is the path to Larissa). Nonetheless, you need the true belief to be accompanied by good evidence—in effect, as a travelling companion, as you are guided by both the belief and the evidence during your journey to Larissa.2 Combining simplicity with caution, we may call this traditional conception the At Least Justified True Belief conception of knowledge.3 2 As

I indicated, epistemologists have standardly interpreted Socrates’ talk of an account of “the reason why” in terms of the possession of evidence. However, spurred on especially by Goldman (1979, 1986), many contemporary epistemologists eschew any commitment to knowledge’s needing to include evidence. That commitment is deemed to be epistemically internalist; and those epistemologists are content instead with an externalist substitute, such as your forming the belief in a way that is generally reliable as a way of forming true beliefs. That externalist approach can also be extended, from talking about your forming the belief, to explicating your maintaining the belief. Above, I have parsed Socrates as requiring the evidence to accompany the correct opinion. Below, we will focus on whether that could be enough—or whether instead something more active is needed-in what we say about evidence’s role within knowing. 3 I say “caution” because a stronger version of this conception might instead be thought to emerge no less clearly from Socrates’ argument in the Meno. On that stronger version, we do not say merely that knowledge is at least a justified true belief; we say that it is a justified true belief—that knowledge is nothing less than, but also nothing more than, a justified true belief. More strongly still, we would say that this is how knowledge is to be defined. Of course, that stronger account was famously challenged by Edmund Gettier (1963), when—with two hypothesized situations—he questioned the sufficiency of a belief’s being true and justified for its being knowledge. Still, even Gettier did not question the necessity, to a belief’s being knowledge, of its being true and justified. He thus left intact the “at least” in the At Least Justified True Belief conception, and it is that weaker

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2 Reinterpreting the Socratic Idea of a Tether But is that traditional conception true? In the rest of this paper, I will present some reasons why it might not be so. For a start, was Meno obliged to agree so readily with Socrates on the basis of what was little more than an evocative analogy? We might well be tempted to say that if the price of endorsing the At Least Justified True Belief conception of knowledge is our relying so strongly upon what is actually a quite fanciful image of some statues with the power of self-movement—in short, the idea of Daedalus’ statues—then perhaps we are not, after all, on such firm ground in our thinking about knowledge’s nature. Whether we are well-placed will thus depend upon the strength of the supposed analogy between such imagined statues and mere correct opinions. Socrates and Meno were of one mind on the equal usefulness of mere “true opinion” and knowledge, so long as the true opinion does remain in place. As we saw, however, Socrates is concerned that mere true opinions do not stay in place. This is why, he says, the belief—even a true belief—needs an appropriate tether, and so why knowledge is not merely a true belief. Let us therefore discuss in more detail that guiding Socratic metaphor-of knowledge’s needing to include a tether for the true opinion at the core of the knowledge. Socrates and Meno regard the point of the tether as being its holding the true opinion in place. The true opinion is there by enabled to continue being both true and present. Importantly, though, this is all that Socrates and Meno describe the tether as accomplishing in this situation; which is to say that the further merit in one’s having knowledge, as far as their account goes, is nothing more or less than one’s having a stably persisting true opinion. Socrates then proceeds to advocate, more specifically, the presence of “an account of the reason why” and hence of “recollection”. This more specific proposal from Socrates is his suggestion for how to render more concretely his programmatic analogy of the tether: talking of “the reason why” and of “recollection” is his suggestion for what will in fact ensure a true opinion’s staying in place—its remaining as a stably persisting opinion. But must we accept that specific suggestion by Socrates? Imagine that in a particular case a given true opinion does persist because—in accord with Socrates’ suggestion—there is a “recollection” by the believer of “a reason why”. Again, a contemporary epistemologist will call this “reason why” the person’s evidence; and she might even allow that it can be present to the person’s mind via recollection, as Socrates envisages. Recall that Socrates would describe the “reason why” as holding tethered the associated true opinion. Yet we should also bear in mind that this outcome is achievable not only in that way. Insofar as what is needed for knowledge to be present is a true opinion’s remaining tethered, then this outcome could also be achieved in many other ways. A contemporary epistemologist such as Alvin Goldman (1979, 1986) might propose that it could be achieved by the person’s forming her belief in a truth—conditionally reliable way, for example, one that was likely to lead to a true conception upon which we will focus in this paper. For detailed discussion of Gettier’s challenge and its history within the past fifty-plus years of epistemology, see Hetherington (2016).

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belief’s being formed. Still, even that proposal would not be enough for Socrates’ main purpose: a true belief, even if reliably formed, might then revert to being, in effect, a mere true belief, in that it could proceed to “run away”. A contemporary epistemologist might reply that what is also needed, then, is a reliable way of maintaining—that is, of holding in place—the (reliably formed) true belief, if the belief is to be knowledge. But this is where the usual epistemological picture, historically grounded in the Socratic sort of thinking, starts to fragment. After all, not only the standardly mentioned and epistemologically approved ways of maintaining a belief are apt, relative to the Socratic end of a true belief’s staying in place. For example, mere confidence—such as a stubborn obliviousness to alternate beliefs—could achieve that outcome of a persisting true opinion, even once the opinion has been reliably formed. Indeed, that sort of confidence might accomplish this stabilisation outcome very effectively. So, we need not presume that evidence—that epistemologically approved kind of “reason why”—is required for that outcome of belief-stabilisation. Nor need we presume even that reliability—that epistemologically approved kind of “reason why”—is required for that outcome. In the rest of this discussion, I will focus on evidence, not on reliability: evidence is more Socratic in spirit, and the same issues arise anyway, mutatis mutandis, for the two putative knowledge-components. I begin by acknowledging that of course Socrates is welcome to proffer, and to rely upon, his confidence that, as a matter of fact in this world, true beliefs persist longer and more usefully when held in place by good evidence. But this is also a moment at which we should counsel caution, by asking the following question: how could Socrates know that this view of his about true opinions and evidence is itself true? This does seem to be something that he would claim to know, given that he offers nothing else towards explicating the following definite claim to knowledge on his part (98b): I certainly do not think I am guessing that right opinion is a different thing than knowledge. If I claim to know anything else—and I would make that claim about few things—I would put this down as one of the things I know. However, the problem, again, is that Socrates’ conceptual argument has not eliminated the possibility that mere confidence—unsupported by any accompanying evidence (or, for that matter, formed by a generally truth-conditionally reliable method)—would suffice for tethering a given true belief. Already, therefore, we have available a clear challenge to Socrates’ reasoning in this setting: namely, insofar as (we are being told that) evidence’s contribution within some given knowledge that p is to be its holding in place—its tethering—the true opinion that p, why does it matter (we should ask) whether this tethering is accomplished by the presence of evidence in particular? Could not anything achieve this end? Maybe there are even epistemologically non-approved circumstances or methods—such as selfassertiveness or self-belief training—that could do this much better than the presence of evidence will do it. In other words, it is far from manifest that the evidence would be contributing any belief—stability (in the sense sought by Socrates) beyond that which could be contributed equally well-possibly even better—by many other states or circumstances, including ones (such as dogmatic confidence) of which epistemologists would standardly not approve as being knowledge-components. So far,

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then, we should infer that what Socrates and Meno regard as the added benefit in knowing—beyond having merely a correct opinion—does not direct us unarguably to an evidential (or even a reliabilist) interpretation of their shared view that knowledge includes a tether to the world. We can understand this concern more fully by appreciating how, if are to do justice to evidence’s role within one’s having some knowledge, we must accord the evidence a role that is not static-consequently, a role other than the evidence’s merely being present. Earlier, I parsed Socrates and Meno’s requirement as saying that the tether— the evidence, “an account of the reason why”—would need to accompany the true opinion: as one walks along, seeking Larissa, one would have both a true opinion and some related evidence (“the reason why” that opinion is true). But that description of what is needed is potentially misleading. We need to understand the phrase “the reason why” as denoting something that is playing an active role, not something that is merely present in a static way. In particular, we must acknowledge that the evidence—the tether—needs to be being used aptly by the epistemic agent, instead of merely being possessed by her. Initially, the evidence is used by her in forming her belief; afterwards, either it and/or some further evidence is used by her in maintaining the belief. That sort of requirement—generic though it is at present—needs to be part of our understanding of the person’s having some knowledge. This is made clear by interpreting anew an example from Hilary Kornblith (1980). He advanced the example against what he called the arguments-on-paper thesis (ibid.: 599); which amounted to requiring only that good evidence be present, and hence presumably able to be used, if a belief is to be epistemically justified. In Kornblith’s example, a person believes that p, believes that q, and believes that if p then q. According to the arguments-on-paper thesis, the person would therefore be justified in believing that q. However, in fact—the example continues—the person believes that q, not due to having those two other beliefs, but because “he likes the sound of some sentence that expresses the proposition that q” (ibid.: 602). The person thus has good enough evidence, other things being equal, with which to support— to tether—his belief that q. Nonetheless, he does not use that evidence aptly; and so (I suggest) he may as well not have it, if his belief that q is to be justified in this circumstance. The evidence’s presence is justificatorily inert (we might say). Kornblith infers from this example that evidence provides epistemic justification only when it functions in a causally apt way—which means that it needs to be used aptly. I will follow him in accepting that thesis about evidence. But I will use it differently, in an epistemologically unfamiliar way. For it helps us to notice the availability of an alternative way of conceiving of knowledge’s nature. Towards that end, let us distinguish between two possible means of being tethered to an individual fact. Each of these is a tether that Socrates and Meno would have regarded as being part of knowing. One reflects knowledge’s factivity—knowledge’s only ever being of a truth. The other means of being tethered would reflect the evidence (“an account of the reason why”) within knowledge—knowledge’s always including good evidence (or something similarly epistemic and truth-directed, such as reliability) for the truth that is the object of the knowledge in question. There can be different reasons for thinking that knowledge must include the second of those ways

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of being tethered—what we could term an evidence-tether. Most likely, though, the prime motivation for insisting on including an evidence-tether within knowledge is the idea that, by possessing evidence, one at least increases the likelihood of forming and maintaining a belief that registers or reflects the fact that p. In short, the idea is that the presence of an evidence-tether increases the likelihood of what we could term a truth-tether also being present. Now, once we combine that distinction with Socrates’ way of talking, we reach this picture: If the truth-tether is (already) present, the evidence-tether will (then) hold it in place. Yet we have already commented adversely on the latter optimism about evidencetethers. We have noted that anything—not only good evidence (and, equally, not only a generally truth-conditionally reliable belief-maintaining method)—could hold in place a correct opinion. For example, mere blind self-confidence on a given occasion could do well. Given this, Socrates and Meno are mistaken to insist on evidence, say, being part of the knowledge—with the evidence thereby holding in place the true opinion ‘from within’ the knowledge. Is there an alternative way to conceive of the constitutive relationship between evidence and knowledge? Yes. We should ask whether the relationship between the two is best described as a constitutive one—in the metaphysical sense, whereby, in being knowledge, a belief is supported epistemically, such as by good evidence. Kornblith’s example shows that we might be on firmer ground if we allocate to the evidence a causal role “from outside” the knowledge—rather than a metaphysically constitutive one “from within” the knowledge. In order to understand what I have in mind with this alternative conceptual hypothesis, we should also distinguish between two possible forms of tether to an individual fact. A tether could be active-a tethering. Or it could be static. In each case, the tether would link a belief to the world of facts, the world about which there can be beliefs. When there is an active tether to a fact, something has brought, or is bringing, about a matching, in belief, of that fact. Once there is that matching, in belief, of that same fact, there is a static tether to that fact. So, an active tether is causal, whereas a static tether is not. A static tether is a completed state, not a causal “happening”—not something “still under way”. An active tether leads to a static one. A true belief that p matches the world in respect of the fact that p—in virtue of the belief’s being true. The true belief that p is thus a static tether to the fact that p. And if the true belief has in fact been formed on the basis of good evidence, then—we might wish also to say—the evidence has functioned in directly as an active tether to the fact that p, by functioning directly as an active tether to the true belief that p. Note that the use of evidence does not entail that there is an active tether in place. For the word “tether” is a success-word; and I am saying only that, whenever there is a static tether (a true belief), any evidence that has been used in the formation of the belief in question has—as it transpires—functioned as an active tether. Must knowing include both kinds of tether? It must do so, if the At Least Justified True Belief conception of knowledge is conceptually correct in insisting on knowledge’s including both a true belief and good evidence (or some reliabilist substitute,

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say). But I am arguing that no such insistence is appropriate. I am not saying that no related epistemic role is played by evidence, when one has some knowledge. The point that I am developing is a conceptual one about knowledge in particular: it is that no evidence’s role is conceptually obliged to have been that of being part of the knowing. Rather, as I will now explain, there is an alternative role to allocate conceptually to the evidence. First, Socrates and Meno have laid before us their aim of understanding how knowledge, in persisting (when it does), is thereby more than a mere true belief. But that contrast is misguided from the outset. Knowledge does not always persist. Some does; some does not. And most of us would say the same about true opinion: sometimes it persists; sometimes it does not. Hence, there is no simple inference on behalf of Socrates and Meno to all knowledge’s needing to include something more that explains its always persisting longer than true opinion does. That is not a difference in the first place, a difference waiting to be explained. Second, the presence of evidence (or of a general truth-conditional reliability in how the belief has been formed) would not explain that putative difference anyway. We have noted that evidence is not more inherently guaranteed than is anything else—including belief-maintaining methods that are not generally truthconditionally reliable—to produce or maintain a true belief. (Always remember the power of mere confidence, for instance, in this respect.) And, so far, I have inferred from this that we need not insist on evidence’s always being part of the knowledge that—courtesy of at least a particular true belief—is constituted on a given occasion. Third, though, what is the role of evidence whenever it is present along with a true belief? From Kornblith’s example (discussed above), we should infer that the evidence is epistemically irrelevant—unless it is not merely present along with the true belief. Instead, I suggest, the evidence’s role—when one does have some associated knowledge that p and one has based one’s belief that p on that evidence— is best interpreted as having been a means of production (and, perhaps subsequently, of active maintenance) of the belief. Fourth, we can combine the preceding three elements quite simply. We can let the knowledge be that mere true belief—that is, the true belief, considered apart from the evidence, say, that has produced and/or maintained it. What the evidence contributes is an active role, an active tethering. The evidence, as used, produces the true belief; and thus it produces the knowledge. The knowledge can even be regarded as thereby justified knowledge, if we wish. But my present proposal is that the true belief’s literally being the knowledge is a state of affairs that is whatever it is independently of its being justified. Thus, we have this account: The true belief is not knowledge even partly in that it is justified. Rather, if justified, it is justified knowledge—in that it is a justified true belief . That is, the true belief as such is the knowledge; so the evidence, by being used in producing that true belief, has been used in producing that knowledge. But the evidence is not thereby a part—a metaphysically constitutive element—of the true belief’s being knowledge. Instead, its role was causally preparatory—a causal precursor to the true belief’s, and ipso facto the knowledge’s, existing.

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So, evidence could still be significant in our various searches for knowledge— even as significant as it has ever been within such settings. But its significance is in how we discover some knowledge, and in how we maintain—if we do—that knowledge. To use evidence to justify a belief can be to discover a truth. It can also be used to defend, and maintain, a belief in a particular truth. Yet in none of these circumstances must we deem the resulting knowledge to be in part the presence and use of that evidence, with which we discover and/or maintain that knowledge.

3 Knowledge-Minimalism as an Explanatory Hypothesis Section 2’s concluding picture is a knowledge-minimalism. It portrays knowledge as being, in itself, a mere true belief —in Socrates’ terms, a mere correct opinion. In order to clarify that picture a little more, consider these two representations (respectively, Figs. 1 and 2): Figure 1 is the epistemologically usual one, inspired by Socrates, whereby any instance of knowledge is conceived of as being an evidentially supported true belief. In fact, Fig. 1 refines that view, by interpreting the tether as active, so that in adopting Fig. 1 we would not be settling for the evidence’s simply accompanying the true belief. In contrast even to that refined view in Figs. 1 and 2 is knowledge-minimalist, by conceiving of knowledge simply as the presence of a true belief. Any use of evidence in producing or maintaining that true belief is optional in that respect (hence the use in Fig. 2 of the brackets). Still, whenever evidence is actively used to produce or maintain a given true belief, it thereby produces or maintains that knowledge purely insofar as it produces or maintains that true belief. Now, what is gained epistemologically by adopting the usual picture (Fig. 1)? Nothing that is grounded in the discussion between Socrates and Meno, at any rate. So as to appreciate that limitative point, we should ask this question: once there is the true belief, what further explanatory role is played by the evidence in our understanding the knowledge’s being epistemically better in the circumstance than the mere true belief would be? Maybe in a given case some evidence has produced a particular true belief; in principle, however, the outcome could have been achieved by the use of…anything—evidence, yes, but not only evidence. Why should we insist, then, that whenever it is evidence that has played this role, that evidence is literally Fig. 1 Evidence → produces or maintains → True belief=Knowledge

Evidence

Fig. 2 {Evidence → produces or maintains →} True belief=Knowledge

{Evidence produces or maintains } True belief =Knowledge

produces or maintains True belief =Knowledge

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a part of the resulting knowledge—given that we would not insist on this sort of inclusion for other possible causes of the true belief? Moreover (and importantly), the same question applies whenever the true belief in question persists—whenever it stays in place, the outcome that was deemed by Socrates to be the vital advantage gained by a true belief’s also being knowledge. If we independently know that knowledge includes evidence, then well and good. Yet, for Socrates and Meno, evidence’s supposed capacity to hold a true belief in place was the phenomenon that was to ground their insistence upon knowledge’s including some such evidence-tether. So, that thinking of theirs, we have been seeing, is inadequate as a ground for any such insistence. Knowledge-minimalism thus deserves to be heard, at least, as we embark upon this explanatory enterprise (as Socrates and Meno embarked upon it themselves, so long ago). All the more so, with Fig. 2 able to be generalised in this way (call it Fig. 2*): where in principle “x” could denote anything. Insofar as Socrates and Meno, when conceiving of knowledge’s nature, were right to look—wherever this would be helpful—to something that would hold in place (in, I have argued, an active way) a given true opinion, evidence might be what many of us would generally seek to use when forming what we hope will be true opinions. But the use of evidence need not be what always plays this same role. Remember that, so long as the true belief is somehow produced and maintained, Larissa will be reached. The simplest explanatory model, I suggest, that incorporates all of these elements is Fig. 2*—an overtly bolder form of knowledge-minimalism. That bolder form of knowledge-minimalism may also be supported on metaphysical grounds. I have argued that we should conceive of evidence’s role in knowing as the evidence’s contributing something active to a given instance of knowing. The question then becomes that of where—within the process of forming and maintaining a true belief that is an instance of knowledge—the evidence’s active role is located. Section 1 told us that, on the traditional epistemological picture traceable to Socrates and Meno, knowledge is a mixture of (1) a true belief and (2) some good evidence for that belief’s being true. Yet that is a metaphysically ill-conceived sort of combination. Although the evidence is being used in forming the belief, say, the belief is not then being used—since it needs only to be present—within the resultant state that is the knowledge. Here is why that is so: The state of the person that—perhaps by its having various further features—is the knowledge is a (non-active) state of belief. That state is (non-actively) made true by a fact: thus, there is at least a true belief. What of the associated supportive good evidence? It is present and epistemically contributory insofar as it is being, and/or has been (actively) used, supposedly as support for the belief, in producing and/or maintaining the belief. Accordingly, if knowledge combines within itself both (1) a

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true belief and (2) some good evidence for that belief’s being true, then knowledge— even as a state of a person—is inherently both partly non-active (a state of belief, being non-actively made true by a fact) and partly active (as evidence is being actively used to form and/or maintain the belief). Yet the former feature clashes with the fact that one’s possessing knowledge that p is not inherently one’s being at all active, regarding p. Having the knowledge that p might give one an ability—a potential—to be active in relation to p: there is a potential for acting in p-directed ways, simply in having some knowledge that p. Merely in having that knowledge, though, one is not at all active in relation to p. Consequently, we should not insist that, in knowing, both of (1) and (2) are metaphysically included. It is metaphysically preferable to adopt my alternative form of conceptual model, on which knowledge is purely a state that is not active: we should retain (1) but not (2) when describing what it is to be in a state of knowledge that p. On this alternative account, as I indicated earlier, the use of evidence in knowing is more readily interpreted as playing a role “from outside” the state that is the knowledge. Specifically, we would accord the use of evidence the active role of producing or maintaining that state of knowledge. This is why, in Figs. 2 and 2*, b the evidence and the “anything” that is x are placed outside the box (labelled “True belief”) that is, in itself, the knowledge.

4 Knowledge-Minimalism and Lucky Guesses Section 3’s conceptual model—its strong form of knowledge-minimalism—has some contemporary support, most clearly from Crispin Sartwell (1991, 1992).4 His view of the relationship between evidence and knowledge is much like the one proposed in Sect. 3. Justification, he says (1991: 161), is “a criterion, though not a logically necessary condition, of knowledge.” For Sartwell, as for me, knowledge is true belief. This is all that it is. Any would-be knowledge-minimalist, however, faces the following prima facie explanatory challenge. Epistemologists will swiftly object that knowledgeminimalism fails to do conceptual justice to what they will insist is the manifest difference between any instance of knowledge and a confident lucky guess. The usual epistemological claim is that the presence and/or use of evidence is this difference. And so (it will standardly be inferred) knowledge-minimalism—which fails to require instances of knowledge to include supportive evidence—is unable to provide an adequate epistemological understanding of that difference. However, that line of thought is less dialectically effective than it is standardly assumed to be. The word “guess”—used so confidently by the objection—is intended to be understood as an epistemic term. On that intended epistemic reading, a lucky

4 Variations on the idea have been proposed by Goldman (1999: 23–26), Hetherington (2001: ch. 4,

2011, ch. 4), and Foley (2012). For a version much like this paper’s, see Hetherington (forthcoming).

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guess is thereby a belief that is true but not supported by evidence. Yet it is questionbegging in the immediate setting for epistemologists to assume that, in this sense, no lucky guess is knowledge. Of course a lucky guess is not knowledge, if knowledge requires evidence; whether knowledge requires evidence, though, is the question being discussed.5 It is also question-begging here to assume that a particular belief is not knowledge unless it is supported by evidence. We might believe, as Socrates seemingly did, that without such evidence a given belief is less likely to be true—and hence that it is less likely to be knowledge. But must we infer, in turn, the stronger thesis that the belief is therefore not knowledge? Surely not, because the lemma that the belief is less likely to be knowledge is no less available to knowledge-minimalists themselves than to those who endorse, in a more standard vein, the At Least justified True Belief conception of knowledge. Thus, a knowledge-minimalist can accept the datum: she can say that a belief formed without evidential backing is only less likely to be knowledgesimply because it is less likely to be true, and hence less likely to be knowledge, precisely because knowledge is only true belief. So, we should not assume that the belief formed without evidential backing is ipso facto not knowledge—if the most clearly defensible view of evidence is that it makes truth more likely. Knowledgeminimalism is equally free to accept this view of evidence. It can also thereby accept that, ipso facto, evidence makes knowledge more likely—by making true belief more likely. The evidence can thus make knowledge more likely—without the evidence having to be part of any resulting knowledge. In short, knowledge-minimalism need not attribute to evidence any lesser epistemic powers in this sort of setting than the At Least Justified True Belief conception does. Knowledge-minimalism thinks of any evidence that produces knowledge as not thereby being part of that knowledge. But this is not a loss even of any knowledgerelated explanatory power in how we conceive of evidence. It is merely a conceptual redescription and relocation of that power: the evidence causally produces the true belief, and thereby the knowledge, “from outside” the knowledge, without thereby being a metaphysically constitutive element within the knowledge as such.

5 Conclusion If this paper is correct, then we may-and perhaps should—reach for the knowledgeminimalist conceptual option of regarding all and only true beliefs as knowledge. As Sect. 4 explained, this is not to set aside, as being epistemically irrelevant, the use of evidence. On the contrary: even knowledge-minimalism allows all truth-directed uses of evidence to be knowledge-relevant. In practise, it might even be that evidence

5 And

if instead we accord the term “guess” a psychological reading, whereby it indicates the person’s feeling unconfident as to p, we are also not obliged to view the situation as one in which the person believes that p in the first place.

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is—more so than anything else—what gives us true beliefs; in which case, evidence is especially knowledge-relevant in practice. Indeed, knowledge-minimalism allows us to continue viewing each case of evidence as able to be used in those ways in which it would always have been used. It is simply that we are never obliged to inter pret such a use—when it has led us to a true belief—as thereby a metaphysically constitutive part of the resulting knowledge. Evidence, like anything else, can produce a true belief; and whenever it does so, it thereby gives us knowledge—yet without thereby becoming an element within the knowledge. Again, we would not say that whatever else has produced a true belief on a given occasion is thereby a metaphysically constitutive part of the resulting knowledge. The same conceptual policy should likewise be followed for understanding the relationships between evidence and knowledge. And so we find ourselves face to face with a knowledge-minimalism. I commend it to you as a conceptual model that, at the very least, deserves continued epistemological perusal and testing.

References Foley, R. 2012. When Is True Belief Knowledge? Princeton: Princeton University Press. Gettier, E.L. 1963. Is Justified True Belief Knowledge? Analysis. Goldman, A.I. 1979. What Is Justified Belief? In Justification and Knowledge: New Studies in Epistemology, ed. G.S. Pappas. Dordrecht: D. Reidel. Goldman, A,I. 1986. Epistemology and Cognition. Cambridge, MA and London: Harvard University Press. Goldman, A.I. 1999. Knowledge in a Social World. Oxford: Oxford University Press. Grube, G.M.A. 1981. Plato: Five Dialogues. Indianapolis: Hackett Publishing. Hetherington, S. 2001. Good Knowledge, Bad Knowledge: On Two Dogmas of Epistemology. Oxford: Clarendon Press. Hetherington, S. 2011. How to Know: A Practicalist Conception of Knowledge. Oxford: WileyBlackwell. Hetherington, S. 2016. Knowledge and the Gettier Problem. Cambridge: Cambridge University Press. Kornblith, H. 1980. Beyond Foundationalism and the Coherence Theory. The Journal of Philosophy 77: 597–611. Sartwell, C. 1991. Knowledge Is Merely True Belief. American Philosophical Quarterly 28 (2): 157–165. Sartwell, C. 1992. Why Knowledge Is Merely True Belief. The Journal of Philosophy 89 (4): 167–180.

Law and Epistemology: An Account of Judgement Chienkuo Mi and Shane Ryan

1 Introduction Three key components of a legal case are evidence, fact and judgement. In a well conducted judgement there will be an appropriate relation between these three components. Epistemologists investigating the nature of knowledge have been concerned with an analogous three components and their relation. More specifically, epistemologists have been concerned with justification, truth, and belief and how these three components need to be related if there is to be knowledge. Given the analogy, the research of epistemologists plausibly has insights to offer to legal theorists. In fact, as we shall see, what epistemology have to offer legal theory actually goes beyond this as well. At the same time, epistemologists stand to benefit from engagement with legal theory. Legal theory offers different examples and conceptions of evidence, which can serve to inform an account of evidence, a key epistemological concept. Epistemologists are concerned with epistemic justification. In fact, justification is a core concept, perhaps the core concept, of epistemology. Justification has been theorised in a number of ways. On one view, justification arises from reliability. Some adherents to this position hold that belief on the basis of simple reliable processes yields justification, while others hold that belief on the basis of reliable processes that are constitutive of abilities yields justification. An alternative view, however, is that it is belief on the basis of evidence that yields justification (Feldman and Conee 1985). Either way, as we shall see, virtuous or proper treatment of evidence may differ depending on the nature of the agent. Another way engagement with legal theory stands to benefit epistemology is the attention given by the former to group agency, whether that be the state, a corporation, or a jury. Furthermore, engagement pushes epistemologists to engage with important real life scenarios. It is the agency of the jury that will be one of the concerns of C. Mi (B) · S. Ryan Department of Philosophy, Soochow University, Suzhou, China © China University of Political Science and Law Press 2021 B. Zhang et al. (eds.), Facts and Evidence, https://doi.org/10.1007/978-981-15-9639-1_7

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this paper. Traditional epistemology is characterised as individualistic. The model for a long period of time has been to focus on an individual knower, the sources of whose knowledge has been attributed to his own faculties. That model, while still influential, has altered somewhat in the last two decades. Now epistemologists concern themselves much more with the group knower and other people as sources of knowledge, testimonial knowledge in other words. In this paper, when we examine the jury as an epistemic agent, we specifically consider how the group nature of the jury shapes what it is to be an epistemically virtuous jury.

2 The Performance Model Applied to Judgements in Legal Cases A central concern of epistemology is analysing knowledge. The pre-Gettier, standard analysis of knowledge is that knowledge is justified true belief. In other words, justification, truth, and belief, according to this view are necessary and jointly sufficient conditions for knowledge. That means that the standard analysis claims that without justification, one can’t have knowledge, without truth one can’t have knowledge, and without belief one can’t have knowledge. Furthermore, when all three components are present one has knowledge. Let’s see how this works by way of an example. Let’s say that John knows that it is raining outside. According to the traditional account of knowledge, the foregoing claim about John, if true, implies that John believes that it is raining outside, his belief that it is raining outside is justified, and it is true that it is raining outside. Edmund Gettier famously challenged the simplicity of the standard analysis of knowledge. More specifically, although his challenge left the necessity claims untouched, he challenged the sufficiency claim of the standard or JTB account. (Gettier 1963). He provided examples in which it appeared to be a mere matter of luck that an agent’s justified belief is a true belief. A famous Gettier case can help us understand this claim. In the sheep in the field case, the protagonist forms her belief that there is a sheep in a field.1 The protagonist is also justified in believing that there is a sheep in the field, as the belief is formed on the basis of perception. Indeed, there is a sheep in the field. The twist is that what the protagonist is looking at when the belief that there is a sheep in the field is formed is actually a sheep shaped object rather than an actual sheep. It just turns out that there is a sheep behind the sheep shaped object. The response from epistemologists is to take this as a counterexample to the justified true belief account of knowledge. A leading response to Gettier cases comes from Ernest Sosa. His response is based on treating believing as a kind of performance (Sosa 2007). In other words, believing is something that an agent can do well or badly, just as an agent can play the piano well or badly. There are three elements of a good performance according to Sosa: accuracy, adroitness, and aptness. A good performance requires the presence of all 1 This case is actually from Roderick Chisholm (1977), though it has the structure of a Gettier case.

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three elements. When it comes to a good piano performance, the performance will be accurate, there will be a correct rendition of the target piece, and the performance will be adroit in that the performance will be competent. That’s not all, however. A good performance will be apt. What Sosa means by this is that the performance will be accurate because of adroitness. Belief follows the same structure. A belief is accurate if and only if it’s true. The formation of a belief may be adroit—the belief may be formed because of perception, deduction, and other good ways of forming beliefs. Crucially, a belief is apt if and only if the belief is accurate because of adroitness. Apt belief for Sosa is knowledge. Recall the sheep in the field case. In that case it is precisely this lack of connection between the accurateness of the belief and the good formation of the belief that is central to the counter example.2 Central in legal theory are similar and even analogous notions to those of justification, truth, and belief. While epistemologists are concerned with good believing, a main concern for legal theorists is good judgement. Judgement is given at the culmination of a legal process. A trial for example is an opportunity to inform a judgement. If the judgement provided is poor, then there is a sense in which the trial has been a waste. To put the point differently, there may have been no point in having shown that, say, a witness is unreliable, if a judgement is poor. To see what we have in mind here let’s explore further what we have in mind by good judgement. The application of Sosa’s model to judgement in legal cases will treat that judgement as a kind of performance and can provide us with an account of good judgement. Such judgement is ultimately concerned with a very limited number of facts. The most central among these facts is whether the accused is guilty or not guilty of a particular charge. A good judgement will be accurate. In other words, at the culmination of the legal process it will correctly ascertain the fact of the accused’s guilt or non-guilt. In fact the trial is, in large part, designed to enable this. A good judgement, however, isn’t one that just happens to be the right answer. When we think of good judgement in legal cases, then of course we think of a judgement that has been reached in the right way. In other words, we think of an adroit or competent judgement. In legal cases, such a judgement is one that treats the evidence in an appropriate way. Evidence is the currency of legal cases. It is precisely what is to be taken into consideration and weighed up in a final judgement. The trial in an adversarial system consists of both sides presenting what they argue to be the evidence and challenging evidence claims made by the other side. A good judgement in a legal case will be appropriately responsive to the evidence in a case. There is a question as to how to be appropriately responsive to evidence in a case. An obvious sort of evidence in a case is that of formal testimony—the claims of eyewitnesses, experts, and so on. Epistemologists have paid significant attention as to how an agent may have a justified belief on the basis of another agent’s testimony. A number of positions have been staked out on this topic. A very permissive position is that testimonial belief enjoys default epistemic justification. In other words, a testimonial recipient can have a justified belief simply by believing testimony. It’s part of the default nature of the epistemic justification, according to this position, 2 For

our attempts to build on Sosa’s work, see Mi (2015) and Mi and Ryan (2016, forthcoming).

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that in some cases belief may not be justified. A case in which one knows that the testifier is a liar or one observes that the testifier is inconsistentare examples in which testimony may lose its default justificatory status. An alternative, more restrictive, position is that in order to have a justified belief based on testimony one must make an inference or judgement on the basis of the testimony. In other words, testimony itself does not provide direct justification. According to this position, simply believing a testifier won’t yield a justified belief (Adler 2015). To translate this into more relevant terms for our discussion here, on this second view, simply believing an eyewitness is not treating the evidence appropriately. We’re not going to try to resolve this debate here, rather the discussion serves to flag how further debates in epistemology can serve to inform the model of good judgement that we are proposing. Finally, it is not sufficient for a judgement to be both accurate and adroit—we won’t think that a judgement is good if it’s not accurate because of adroitness. In a legal case, a judgement that may lead to the imposition of, say, a lengthy prison sentence, can be considered good if it is only luckily accurate. Similarly, a judgement that is accurate, but not because of the appropriate treatment of evidence, given that a primary purpose of the trial is the presentation and examination of evidence so as to enable good judgement, cannot be regarded as a good judgement. So far we’ve provided an account of good judgement in legal cases by drawing on Sosa’s performance model. We’ve found that good judgement is judging accurately because of competent treatment of evidence. Having established what a good judgement in legal cases is, we’re now in a position to examine the epistemology of such judgements in finer detail. Across different jurisdictions there is a concern with whether an accused is guilty or not guilty. Similarly, across a wide variety of jurisdictions a trial is carried out to present and examine the evidence in a case in order to enable a good judgement with regard to whether the accused is guilty or not guilty in that case. A central point of difference between a wide variety of jurisdictions, however, is whose job it is to competently treat the evidence and provide a judgement as to whether the accused is guilty or not guilty. In many jurisdictions it will be the job of a judge to do this. In other jurisdictions, for a large number of cases, a jury will do this. Just as we can draw on epistemology to provide an account of good judgement, epistemology can provide resources to account for the finer details of what a good judgement looks like when a verdict is reached by the judgement of a judge and when it is reached by the judgement of a jury.

3 Epistemically Virtuous Agents While the two agents differ with regard to what being epistemically virtuous for each involves, as we shall see in more detail below, each also differs with respect to what may be called occupational virtues. Occupational virtues relate to the fulfilment of role, in this case in providing a verdict. The fulfilment of this role is not merely an epistemic matter, and as such being a good judge or jury will not just depend on

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their respective epistemic virtues. Occupational virtues in each case involves being sensitive to the law in relevant respects, in such a way as to properly fulfil the duties of their position provided for by the law. Within epistemology there is a distinction between character-based intellectual virtues and faculty-based epistemic virtues. The former pertains to, whether, say, the agent is fair-minded, intellectually courageous, and so on. The latter, on the other hand, concerns whether an agent’s abilities or competences are truth conducive. For example, perceptual competence or ability is just such a faculty-based epistemic virtue. Although within virtue epistemology the distinction is seen as throwing up two rival approaches, both plausibly play a significant role in the virtue of judges and jurors, though in different ways. There is an obvious difference between a judge and a jury. A judge is a single agent, who we expect to engage in reflection as to the evidence presented in a case prior to reaching a verdict. On the other hand, a jury is a collective agent consisting of a number of jurors who are expected to deliberate together prior to reaching a verdict. Given that the agents, the judge and the jury, are significantly different, it’s predictable that what a good judgement involves for each differs. A judge has sole responsibility for reaching a good judgement. This means that it is up to him to attend to all the evidence that has been provided and that it is up to him to weigh up the various pieces of evidence. It’s also up to him to monitor the way he is reaching his judgement in order to ensure that he is doing so in an appropriate way. That he is not treating evidence in a biased way and that he is not falling victim to a fallacy in the course of reaching his judgement is his responsibility. His intellectual virtues can lead this monitoring of his first-order faculties. While his task will often be onerous, evidence presented will often be complex and conflicting, and his moral responsibility will be great, he will have the benefit of years of training and experience of numerous previous legal cases. This training and experience can be expected to develop his virtuous intellectual character and his faculty-based epistemic virtues and so contribute to the epistemic worth of his judgement. The situation of a jury, however, is very different. In fact traditional epistemology is more concerned with the model of the individual judge reaching his judgement, while social epistemology is concerned with collective judgement, among other matters. The jury have collective responsibility for their judgement and how they reach their judgement. Jurors are asked to try to reach agreement on their judgement as to whether the accused is guilty or not guilty. They do so by engaging in deliberation with one another. In the course of that deliberation a juror may point out if evidence is being treated in a biased way or if other jurors are engaging in fallacious reasoning. Responsibility for reaching a judgement and monitoring the reaching of that judgement is distributed to a number of agents working together. This promises to ensure that simple errors and misjudgements that may afflict an individual can be avoided. The cognitive load is shared. Jurors, however, will usually not have prior experience as a juror. This means that they will be novices to the process. They also won’t have received any special training for reaching judgement. While the lightening of the cognitive burden by having

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numerous individuals involved in reaching a verdict can be expected to improve the epistemic quality of the judgement, the lack of training and experience can be expected to lessen the epistemic quality of the judgement. That a jury, a group made up of citizens, is a suitable entity for reaching a verdict in a legal case, can be supported epistemically by the argument that they are citizens of the country in which the event leading to the case took place and that this pool have a sufficient level of intellectual development to provide a collective judgement in the case. The implication for the jury system, however, is that the pool from which jurors are picked, the citizenry, must be suitably virtuous in order for the system to retain epistemological support. This means that there is an onus on the governments of jurisdictions that employ a jury system to ensure that their citizens have the requisite epistemic virtues. These virtues include deliberative virtues-being able to express a truth claim and support for that claim, as well as being suitably attentive to such expressions from others. Another important element for a jury, and one that is not present in an obvious way in the case of a judge, is that a jury must be able to appropriately respond to differences of opinion. Again, the requirement to do so arise from the collect nature of a jury. Peer disagreement and how one should respond to so as to have a justified belief is also a topic that is currently receiving a lot of attention in epistemology. We have introduced a model of good judgement in legal cases based on Sosa’s performance model. We have also discussed how the different natures of the entities doing the judging bears on the virtuous relevant for their making a good judgement. Throughout the paper we have shown how an epistemological approach can inform legal theory on the topic of good judgement in legal cases.

References Adler, Jonathan. 2015. Epistemological Problems of Testimony. The Stanford Encyclopedia of Philosophy (Summer Edition), Edward N. Zalta, ed. http://plato.stanford.edu/archives/sum2015/ entries/testimony-episprob/. Chisholm, Roderick. 1977. Theory of Knowledge, 2nd ed. Englewood Cliffs, NJ: Prentice-Hall. Feldman, Richard, and Earl Conee. 1985. Evidentialism. Philosophical Studies 48 (1): 15–34. Gettier, Edmund. 1963. Is Justified True Belief Knowledge? Analysis 23 (6): 121–123. Mi, Chienkuo. 2015. What Is Knowledge? When Confucius Meets Ernest Sosa. Dao: A Journal of Comparative Philosophy 14 (3): 355–367. Mi, Chienkuo, and Shane Ryan. 2016. Skilful Reflection as an Epistemic Virtue. In Moral and Intellectual Virtues in Western and Chinese Philosophy, ed. Mi, Slote, and E. Sosa, 34–48. New York: Routledge. Mi, Chienkuo, and Shane Ryan. forthcoming. Reflective Knowledge: Knowledge Extended. In Epistemology Extended, ed. Andy Clark, Adam Carter, Jesper Kallestrup, Duncan Pritchard, and Orestis Palermos. Oxford: Oxford University Press. Sosa, Ernest. (2007). Apt Belief and Reflective Knowledge, Volume 1: A Virtue Epistemology. Oxford: Oxford University Press.

Facts as Evidence in Analytic Philosophy Yi Jiang

Since the middle of the last century the concept of facts has been discussed by philosophers in the analytic tradition. The dominated view on the concept is inspired by a legal philosopher H. L. A. Hart who is considered the representative of logical positivism in legal study. It has been argued, according to Wikipedia,1 that Hart had redefined the domain of jurisprudence and moreover established it as a philosophical inquiry of the “nature” or “concept” of law.2 He is considered one of the world’s foremost legal philosophers in the twentieth century, alongside Hans Kelsen.3 But more philosophers preferred to analysis of the concept of facts rather than law in their discussions. They have claimed that the concept of facts has been fundamental to understanding of relation of language and the world, which is crucial to the theory of meaning. Of course it is always controversial in the theory of meaning that the concept of facts has many interpretations by various philosophers even in the analytic tradition. In this paper I would like to discuss the historic background of the empirical interpretation of the term fact in analytic philosophy firstly and then to answer some questions about the possibilities of fact as evidence in the philosophy of science in the twentieth century. Finally I try to argue for a new interpretation of fact as evidence in Wittgenstainian way.

1 https://en.wikipedia.org/wiki/H._L._A._Hart.

Jan.17, 2016.

2 Priel

(2011, pp. 301–323.). 3 Kramer and Grant (2008, p. xiii). Y. Jiang (B) School of Philosophy, Beijing Normal University, Beijing, China © China University of Political Science and Law Press 2021 B. Zhang et al. (eds.), Facts and Evidence, https://doi.org/10.1007/978-981-15-9639-1_8

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1 Historical Background Ludwig Wittgenstein might be among a few philosophers who dealt with facts in the tradition. His supervisor Bertrand Russell was also another one but had a different view on facts from Wittgenstein’s. For Wittgenstein in his Tractatus LogicoPhilosophies facts, constituents of the world, are expressed by propositions which are logical pictures of facts themselves. “The world is the totality of facts, not of things”4 (TLP, 1.1). “The world divides into facts” (TLP, 1.2). “What is the case—a fact—is the existence of states of affairs” (TLP, 2) and “A logical picture of facts is a thought” (TLP, 3). So propositions express facts in their logical configuration. This view has been called pictorial theory of facts in the tradition. According to the theory the world is constituted with facts, not objects as the simplest units of the world. So the facts are not what happened in the world but the proposition in which what happened in the world are expressed. Propositions express facts, not in empirical way but in logical way, because there is a correspondence between the structure of propositions and the structure of facts. And it is because the correspondence that facts could be expressed and illuminated by propositions which have the same structure with facts. This is a strong position of logical atomism which was advocated by both Wittgenstein and Russell. It sounds queer that facts in the world could not be recognized without propositions which express them. But it is understandable that the world, for Wittgenstein, is a logical one that consists of propositions with logical configurations. So facts are always expressed in propositions and, even more, facts are just propositions that express what happened in the world. The Wittgensteinian conception of factsin TLP was carried by the Vienna Circle in 1920s. Historically members of the Circle were influenced by Wittgenstein’s idea of logical constructionism by which they run a philosophical movement of logical positivism. As we know it is the third generation of positivism in the history of Western philosophy. It has characteristic that logical elements of propositions determine the structure of facts which are expressed in our language. When we say that we have some observation of facts in the world it does not mean that there are some facts in the world which are independent of our observation but our language which determines the observation to make sense of facts we observed. In this sense the existence of facts is dependent on the language we use to talk about facts. It is an extreme position that denies the existence of facts independent of our language and observation. According to a questionnaire survey to the members of the Vienna Circle about the shift of their ideas before and after reading TLP, most of them recognized that they accepted one of Wittgenstein’s idea that language pictures reality, and all of them recognized that the meaning of a sentence is the method of verification.5 On this background philosophers of science, as they called themselves in a scientific way, developed a different approach to interpretations of observations in science. The approach has played the role in scientific investigations. It is the method of verification. By this method they 4 Wittgenstein

(1961). As usual, the abbreviation of the book as TLP will be used with the section numbers in the following quotations. 5 Cf. Stadler (2001, p. 324).

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found the distinction between scientific statements and metaphysical sentences. In this distinction the interpretation of facts is determinate, for scientific statements are interpreted to be true just because of the existence of facts, not explanations of facts in the metaphysical way. This means that Vienna Circle maintained the position arguable for scientific theories, though they accepted some ideas from Wittgenstein on the logical structure of propositions which represent the structure of facts. Let us turn to the interpretations of facts as evidence for the truth of scientific theories advocated by the philosophers of science in the twentieth century.

2 Facts as Evidence in the Philosophy of Science As we know the Vienna Circle was well-known as the first generation for the scientific philosophy in the twentieth century philosophy. The new insight on the relation of science and philosophy emerged from the scientific theory of Ernest Mach in which he discovered unexpectedly the closed link between philosophical problems and empirical observations. According to Stadler, “The anti-metaphysical and positivistic approach inaugurated by Mach in physics, psychology, and philosophy became the focus of the intellectual and social crystallization of scientific philosophy and its conception of the world, and also the direct field of reference for Logical Empiricism, which began to emerge even before World War I.”6 In the view of logical empiricism of which the Vienna Circle lead by Schlick is representative, the truth of scientific statements could be confirmed only by empirical observations. But the confirmation is analyzed into logical structure of these statements in logical forms. There is a tension between theoretic demand and empirical observations. Matthias Kaiser observed this tension and tried to show the solution to the tension in his contribution to a volume on Realism and Anti-Realism in the Philosophy of Science. In the essay he wrote, “scientific progress can only be adequately understood if we distinguish systematically between theoretical progress on the one hand and empirical progress on the other.”7 It hints, for me, that science could be divided into two parts, one is theoretic and the other empirical. But the aim of the philosophy of science is to give up the division by theoretic interpretations of empirical observations in terms of argumentation. We need to make clear on this point how it is going on within the philosophy of science. I think that there are at least two things to do on this matter. One is to explore the nature of science by investigating facts as evidence for observational propositions, and the other is to interpret facts as evidence to be constituents of observational propositions. Historically speaking, most of the philosophers of science in the first decade of the twentieth century maintained the tenet that science has its goal to investigate into the world which is the object we need to reach in science, though the quantum 6 Stadler 7 Kaiser

(2001, p. 84). (1996, p.171).

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theory and the theory of relativity have claimed that the existence of the world is dependent largely on the instruments we use in our investigation. In respond to the challenge from these theories members of the Vienna Circle attempted to explore the possibility of empirical correlation with theoretic construction by their verification principle in logical approach to discovery of consistence of logic and experience. In this way facts are interpreted by the Circle as empirical phenomena which consist of truth conditions of empirical propositions or protocol sentences. It means that every fact could be explained only when it occurs as a part of an observational proposition which reports what happened in the world. So the fact as evidence could be only interpreted as a part of the proposition. Facts, according to the logical empiricism, are sentences in which facts are expressed. “But this explanation would only be worth while if we could give an account of what a fact is independently of sentences.”8 It is conclusion that a fact is what is described by a sentence, and this makes us see the true relation between these two concepts, fact and sentence. But it is not the answer to the question on what is the nature of science, for the nature of science should be explained by scientific theories, not the empirical fact. Furthermore, even when we use a theory to explain the nature of science, it depends on what meanings of sentences in the theory are and how to use these sentences to refer to the empirical facts in the world. So what we need to do is to investigate the facts as evidences for observational propositions, namely that the facts should be considered as evidences for the propositions at first and then we should investigate the facts by analyzing the propositions which express the facts. In this way, the explanation of the nature of science is replaced by explanation of observational propositions in which empirical facts are expressed. The evidences for the propositions are the facts expressed in the propositions. Not only these for the explanation of the nature of science in observation propositions. According to Quine, the truth condition of observational propositions could obtain only when they contain empirical facts which are constituents of these propositions. These propositions constitute a system in which all empirical facts could be expressed and the truth condition obtains. In this view that there is no restrict boundary between synthetic propositions which hold contingently on experience and analytic propositions which hold come what may,9 all propositions that are observational for facts should be viewed as these ones in which empirical facts are included as constituents of these propositions and their truth condition could be given only by these facts. For example, if I saw a person over there at a distance and I said to my friend standing with me that the person over there was walking, the sentence “I saw a person walking over there” would be expected to express a fact happened in the actual world, but the truth condition of the sentence could be given only when we verified there were a fact happened that someone who said that sentence saw a person walking at a distance. That means that the existence of the fact I expressed in the sentence would be verified only by the sentence which is expected to express the fact. It is included from these that the fact exists in the sentence by which we 8 Waismann 9 Quine

(1965, p. 282). (1953, p. 43).

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can verify the existence of the fact. As Wittgenstein said, “a propositional sign is a fact” (TLP, 3.14). “The essence of a propositional sign is very clearly seen if we imagine one composed of spatial objects (such as tables, chairs, and books) instead of written signs. Then the spatial arrangement of these things will express the sense of the proposition” (TLP, 3.1431). “The Truth conditions of a proposition determine the range of that it leaves open to the facts” (TLP, 4.463). It seems to be clear that the facts as evidence could be verified to be constituents of propositions. According to the explanations above, there are two approaches to the facts as evidence on the matter of the nature of science. One is investigation of facts as evidence to be independent of propositions or sentences, and the other analysis of facts as evidence to be constituents of propositions. The question left for us here is which one approach we should take it serious in account of the nature of science.

3 A Wittgenstenian Approach The implication of the two approaches is, I think, the relation of facts as evidence and the propositions which express facts. There is a tendency in the approaches that the philosophers of science always attempted to find the balance between them and to answer the question on the nature of science by maintaining the sharp boundary as the hypothesis about the investigation of scientific theories. But it has been controversial in the philosophy of science as well as in analytic philosophy in general. I don’t want to engage in such a debate to argue for or against one or the other. What I want to do here is to introduce an alternative position which was presented by later Wittgenstein in his Philosophical Investigations. Wittgenstein did not involve in the debate but coined a new approach in which facts could be interpreted differently. He mentioned the term fact four times in Investigations. When he discussed the relation of logic and the empirical, he said: Logic lay, it seemed, at the bottom of all the sciences. —For logical investigation explores the nature of all things. It seeks to see to the bottom of things and is not meant to concern itself whether what actually happens is this or that. —It takes its rise, not from an interest in the facts of nature, nor from a need to grasp causal connexions: but from an urge to understand the basis, or essence, of everything empirical. Not, however, as if to this end we had to hunt out new facts; it is, rather, of the essence of our investigation that we do not seek to learn anything new by it. We want to understand something that is already in plain view. For this is what we seem in some sense not to understand.10 (PI, 89)

Just because of such a contrast of logic with the empirical facts Wittgenstein claimed that logic could not bother what actually happens in experience. We can put everything empirical in a plain way without any consideration in logic. Moreover, anything in logic could be interpreted only by what we see in the empirical world. And furthermore, Wittgenstein viewed fact as our construction in our logical consideration. He said, “When we look into ourselves as we do philosophy, we often get 10 Wittgenstein

(1953), Philosophical Investigations, trans. G. E. M. Anscombe. As usual, the abbreviation of the book as PI will be used with the section numbers in the following quotations.

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to see just such a picture. A full-blown pictorial representation of our grammar. Not facts; but as it were illustrated turns of speech” (PI, 295). In other words facts are constructed in grammar, according to Wittgenstein. And Wittgenstein also viewed facts as clusters to seek for causes of what happened. He said, “It often happens that we only become aware of the important facts, if we suppress the question ‘why’; and then in the course of our investigations these facts lead us to an answer” (PI, 471). Here we can find Wittgenstein’s motive to investigate facts, which leads him to get rid of what we thought of facts. In this way, he said in another place, “The rules of grammar may be called ‘arbitrary’, if that is to mean that the aim of the grammar is nothing but that of the language. If someone says ‘if our language had not this grammar, it could not express these facts’—it should be asked what ‘could’ means here” (PI, 497). It means that, because the grammar has its business only with a language, we could not say that language could not express facts if it has not its grammar. In this way language has nothing to do with facts but grammar itself. So that, facts have a place in language only when they are constructed by the grammar. Wittgenstein compared facts with what happens to something in PI. He said: “But when I imagine something, something certainly happens!” Well, something happens— and then I make a noise. What for? Presumably in order to tell what happens. —But how is telling done? When are we said to tell anything? —What is the language-game of telling? (PI, 363)

Here we can find Wittgenstein’s key word in his later philosophy, that is languagegame. Yes, Wittgenstein considered facts expressed in a language as a language-game as the same as other games in our ordinary life. He disagreed with some supposition that facts should be something happened in the world. Rather, he argued that the term fact could only be used as a word in our language when we are used to mentioning it to our discussion. So, in this sense, any interpretation of facts as evidence would be a language-game in which we want to refer to something happened in the world. Evidence is also the term we use to verify what we are talking about. This is a Wittgensteinian approach to facts as evidence.

References Kaiser, Matthias. 1996. Empirical Versus Theoretical Progress in Science. In Realism and AntiRealism in the Philosophy of Science, ed. R. S. Cohen, R. Hilpinen, and Qiu Renzong, 171. Dordrecht, Boston, and London: Kluwer. Kramer, Matthew H., and Claire Grant. 2008. Introduction. In The Legacy of H. L. A. Hart: Legal, Political and Moral Philosophy, ed. Satthew H. Kramer, Claire Grant, Ben Colburn, and Anthony Hatzistavrou, xiii. Oxford and New York: Oxford University Press. Priel, Dan. 2011. H. L. A. Hart and the Invention of Legal Mhilosophy. Problema 7 (5): 301–323. Quine, W.V.O. 1953. From a Logical Point of View, 43. Cambridge, MA: Harvard University Press. Stadler, Friedrich. 2001. The Vienna Circle, Studies in the Origins, Development and Influence of Logical Empiricism, 84, 324. Wien and New York: Springer. Waisman, F. 1965. The Principles of Linguistic Philosophy, 282. ed. R. Harré. London: Macmillan.

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Wittgenstein, L. 1953. Philosophical Investigations, trans. G. E. M. Anscombe. Wittgenstein, L. 1961. Tractatus Logico-Philosophicus, trans. D. F. Pears and B. F. McGuinness. London: Routledge and Kegan Paul.

Part II

Facts and Evidence in Juridical Epistemology

Truth, Justification, and Knowledge in the Epistemology of Adjudication Dale A. Nance

The Shanghai conference reflects a surge in interest in the application of epistemology to the understanding of adjudication and specifically the enterprise represented by “fact-finding” at trial. An important and recurring topic in this literature is the “burden of proof”, including the test that is used by the fact-finder to resolve disputed factual matters by specifying which side in a dispute must convince the fact-finder and by what persuasive margin.1 Equally important, though not always clearly distinguished, is theorizing about the inference process that informs the application of the burden of proof.2 The issues I will address initially are more closely related to the latter topic, although inevitably the burden of proof must come into play for a full understanding of these issues. The issues discussed here implicate all types of disputes, including what in American courts would be called civil cases (generally disputes between private parties in which the burdened party must prove its case by a preponderance of the evidence) as well as criminal cases (prosecutions by the state in which the government must prove beyond reasonable doubt the facts instantiating the crime), although the epistemological claims I will discuss may seem more plausible in the context of criminal trials. The conventional view holds, and most scholars would agree, that one goal— perhaps the goal—of the trial process that culminates in a verdict is to achieve 1 Book-length works that address the burden of proof in depth include: L. J. Cohen, The Probable and the Provable (1977); Alex Stein, Foundations of Evidence Law (2005); Larry Laudan, Truth, Error, and Criminal Law (2006); and H. L. Ho, A Philosophy of Evidence Law (2008); and Dale A. Nance, The Burdens of Proof: Discriminatory Power, Weight of Evidence, and Tenacity of Belief (2016). 2 All the works in the previous note address this issue in various ways. For two additional, quite different contributions, see Alvin Goldman, “Quasi-Objective Bayesianism and Legal Evidence”, 42 Jurimetrics J. 237 (2002), and Michael Pardo and Ronald Allen, “Juridical Proof and the Best Explanation”, 27 Law and Philosophy 223 (2008).

D. A. Nance (B) Case Western Reserve University, Cleveland, OH, USA © China University of Political Science and Law Press 2021 B. Zhang et al. (eds.), Facts and Evidence, https://doi.org/10.1007/978-981-15-9639-1_9

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accuracy, to find that the disputed claim is true just when it is true, and not otherwise.3 We can refer to this as the goal of truthfulness or accuracy. Of course, this goal is only aspirational; no one seriously believes that any system of adjudication gets it right every time, but it is meaningful and appropriate at least to aim to do so, and to some extent we should measure success of the trial system in terms of the accomplishment of this goal, at least relative to other alternative systems that might be employed. In the first part of my paper, I shall address a challenge that has been raised to the idea that this aspirational epistemic goal of the fact-finder in determining a verdict is incompletely specified by a focus on accuracy. In particular, I shall consider (and reject) the claim that we want and should (equally) insist upon more than just the greatest accuracy that can be obtained, that we want something that is epistemically better than accuracy, that we want and should require knowledge about the ultimate, disputed facts. To be clear, I am not here referring to the commonplace observation that there are many goals of adjudication that potentially compete with accuracy of verdicts, some of which are plausibly called epistemic. For example, adjudication in general, and trials in particular, serve an important function of public education in the workings and requirements of the law. That function could be described as “epistemic” in a broad sense, relating to public knowledge, but if accuracy is subordinated to this function, there would be considerable danger of injustice and of the distortion of information that is publicly disseminated. Consequently, such a broad epistemic function of trials, if we consider it a goal of the verdict itself, is parasitic upon and subordinate to the goal of accuracy of the verdict. In contrast, the goal of preserving important confidences leads most legal systems to create privileges for certain information. This, too, can be considered an epistemic function in a broad sense, because it protects confidentiality of information, information that accordingly cannot be introduced in evidence at trial but that, if it were, could well lead to more accurate decisions. These can be entirely legitimate concerns. Although a trial could proceed to completion without any privilege ever being implicated, such confidentiality considerations can rightly take precedence over accurate fact-finding in particular contexts. But these competing considerations invoke policies and values distinct from, and having an effect well beyond the delimitation of the epistemic goals of the trial.4

1 Truth, Justification, and Knowledge To be more specific, the claim initially addressed here is that the epistemic goal is for fact-finders to render verdicts that represent their knowledge about the ultimate disputed facts, verdicts that are not merely true, but also epistemically warranted or 3 See

William Twining, Rethinking Evidence: Exploratory Essays 71–76 (1990) (identifying a commitment to accuracy as part of the “rationalist tradition” of common-law evidence). 4 See generally Edward J. Imwinkelried, The New Wigmore: Evidentiary Privileges, §5 (2d ed. 2009).

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justifiable. Beyond that, the claim is that the truth of the verdict should be related in the proper way to the fact-finder’s justified belief. Put conversely, the claim is that a verdict can be defective, failing to achieve its epistemic objective, in any of three distinct ways: (a) it can be true but unjustified, (b) it can be justified but false, or (c) it can be true and justified, but its truth can be accidentally or fortuitously related to the justification.5 Here is a series of examples, mostly attributable to Michael Pardo, to illustrate these claims. The Randomly True Verdict. Suppose a fact finder flipped a coin to arrive at a conclusion (say, to convict a defendant), and the verdict turned out to be true. [That is, the defendant is in truth guilty of the crime.]6

“This verdict is plainly problematic”, says Pardo, “because while true, the verdict is true by sheer coincidence (the fortuity of the coin flip); the evidence [admitted in the case] has nothing whatsoever to do with the verdict.”7 The example purports to show that such a randomly true verdict is epistemically defective in that it fails in its objective of being epistemically justified. The force of the example is not, of course, limited to situations in which the verdict is arrived at by a random process; it embraces cases in which the verdict, while true, is arrived at by any process that is divorced from what can be justified by the evidence, any process that, when replicated, produces an unacceptably high error rate. Now consider: The Unavoidably False Verdict. Suppose that the fact-finder is presented a fully investigated package of evidence, with no relevant evidence improperly excluded from its consideration, considers the evidence carefully, reasons thoughtfully, and arrives at a verdict that the defendant is guilty, a verdict that is fully justified, indeed a verdict with which no one would reasonably disagree, given the evidence presented. But it happens that the verdict is, in fact, erroneous. The defendant is, in truth, innocent. 5 See

Michael S. Pardo, “The Gettier Problem and Legal Proof”, 16 Legal Theory 37 (2010). Pardo notes the following “relatively uncontroversial propositions in contemporary epistemology”: An agent who has a justified belief has performed better epistemically—or is better situated epistemically—than one who has an unjustified belief. And someone who knows something is in an even better epistemic position than someone with a mere justified belief; the person who knows something has a true belief, while the person with a justified belief may not. Moreover, the person who knows may even be in a better epistemic position than someone with a mere justified true belief—which may…be true in an accidental, fortuitous, or otherwise problematic way. Id. at 37–38. Pardo then poses the question of whether knowledge is the “goal or aim” of legal verdicts, and he answers that it is. Id. at 38, 52. 6 Id. at 51. Pardo uses the phrase “turned out to be true”. That locution suggests a temporal change, as if the relevant authorities “find out later” that it is true. But that does not appear to be Pardo’s intended meaning; rather he seems merely to be saying, “as it happens, the verdict is correct”, which might be somehow revealed to decision makers or it might not; it might never be known by anyone, except perhaps the persons considering the hypothetical. Hence my clarification in brackets. Id. at 51. Pardo uses the phrase “turned out to be true”. That locution suggests a temporal change, as if the relevant authorities “find out later” that it is true. But that does not appear to be Pardo’s intended meaning; rather he seems merely to be saying, “as it happens, the verdict is correct”, which might be somehow revealed to decision makers or it might not; it might never be known by anyone, except perhaps the persons considering the hypothetical. Hence my clarification in brackets. 7 Id.

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Pardo asserts, “The upshot of this is that justification alone is not sufficient to render a verdict successful.”8 Even though fully justified, a false verdict cannot be “successful”. These first two examples are not as easy to understand as they seem, but now we come to an even harder one, a purported example of an unsuccessful verdict that is both true and justified: The Framed Defendant. The police arrest a motorist and charge him with possession of illegal drugs. The evidence shows that the drugs were in his automobile and the fact-finder reasonably disbelieves the defendant when he denies knowing anything about the drugs. Accordingly, the fact-finder convicts the defendant. In fact, the defendant was in possession of illegal drugs. However, unbeknownst to investigators or the fact-finder, the drugs the police found were placed there by someone else in order to frame the defendant. Also unbeknownst to the fact-finder, the defendant did indeed conceal illegal drugs (of the same kind and amount) elsewhere in the automobile, drugs that were not found by the police and were not, therefore, the basis of the prosecution.

Here, Pardo maintains, “The disconnect between the evidence and the truth renders the verdict insufficient.”9 The problem identified is that the truth of this justified verdict is accidental or coincidental, and so-it is claimed-the verdict is “insufficient”.10 What shall we say about these hypothetical cases and what they reveal? The most important initial observation is that the preceding discussion has paid little explicit attention to the distinction between means and ends. This is somewhat surprising, because a plausible view of adjudication, suggested in my opening comments, would 8 Id.

Pardo does not use this particular example, but he makes the same point. at 50. I have modified Pardo’s example by changing the instigator of the “frame up” from the police (Pardo’s version) to a private individual in order to eliminate an obvious, but spurious objection to Pardo’s argument. If the police frame the defendant, then the intuition that supports the claim that the verdict is defective might be attributable to the idea that the police must be disciplined for their misconduct, plausibly by depriving the state of an otherwise appropriate guilty verdict. This would confuse matters by invoking largely non-epistemic considerations that compete with the epistemic goals of trial. It would pose the question whether one’s intuition about the defectiveness of the verdict would be affected by learning that there are efficient disciplinary tools to regulate police behavior entirely separate from denying the prosecution a verdict in this case or cases of this kind. By eliminating this consideration, the version of the example I state in the text is cleaner and, I think, better illustrates Pardo’s claim. 10 At the Shanghai conference, the objection was raised that the prosecution’s claim in this hypothetical case would not be true, because the claim would have included the specific allegation that the drugs found by the police were the drugs unlawfully possessed by the defendant. This objection raises complex questions about the required degree of specificity in pleadings. Suffice it to say that, under modern liberalization of pleading requirements, the emphasis has been on providing the defendant with sufficient detail in order to prepare a defense; in the absence of unfair surprise, variances between what is alleged and what the evidence shows can generally be handled by amendment of the indictment. See 5 Wayne R. LaFave et al., Criminal Procedure §19 (4th ed. 2015). Under such rules, one can easily imagine a legally adequate indictment broad enough to be true under the hypothesized facts (alleging, for example, that the defendant “knowingly concealed illegal drugs in his automobile”). While it is true that the prosecution suggests at trial that the drugs presented as evidence are the drugs illegally possessed, conviction for illegal possession does not then necessarily turn on the correctness of this suggestion. 9 Id.

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posit that accuracy is the fact-finder’s goal, where as epistemic justification is the means thereto. That is, we use justification as the means to attain true verdicts. I think it is safe to say that this is the conventional view. According to the United States Supreme Court, for example, trials and the rules that structure and govern them are shaped by “the normally predominant principle of utilizing all rational means for ascertaining truth.”11 What follows tests whether this conventional view can be maintained in the face of the arguments presented above.12 We should pause to observe that the conventional legal view is quite compatible with an epistemology that takes knowledge as just true belief and takes justification as instrumentally related thereto.13 Nonetheless, someone who takes such a “minimalist” position regarding knowledge might still pose the further questions of whether justification, as well as a non-fortuitous relationship between the fact-finder’s justification and the fact-finder’s true belief (that is, knowledge), also should be constituent parts of the epistemic goal of adjudication. For convenience, in the following I will address the issue on the assumption of the more traditional formulation of the requirements of knowledge, but the issues remain essentially the same.

2 Means and Ends: The Theoretical Primacy of Truth By the conventional legal view about the goal of adjudication, the case of The Randomly True Verdict does not involve an unsuccessful verdict; rather, it involves a verdict that is successful in the epistemic goal of accuracy, but one that has achieved that success fortuitously, by a faulty mode of justification. That is, the decision criterion used by the fact-finder, if generalized to other cases, will produce a random correlation between verdict and truth, which would entail an unacceptably high error rate.14 This is a problem with the justificatory means, not the accuracy goal. The hypothetical assumes that the defendant is guilty in fact, but because in real trials decision-makers rarely, if ever, have epistemic access to the verdict’s accuracy, beyond or independent of the evidence introduced at trial, they cannot assume that a real case that is otherwise like The Randomly True Verdict does involve a true 11 Trammel v. United States, 445 U. S. 40, 50 (1974). See also John Rawls, A Theory of Justice 85–86 (1971) (characterizing a criminal trial as an exercise in “imperfect procedural justice” in which the goal of accuracy is imperfectly attained by deliberation within the rules of procedure and evidence). 12 There are other, distinct objections that can be raised against the conventional view, mostly in regard to the fact that it neglects the important dimension of fact-finding that accepts the inevitable uncertainty that remains when a verdict must be given. I return to this point in Sect. 5. 13 This view has been espoused by Crispin Sartwell and is defended in Stephen Hetherington’s contribution to this conference. See Stephen Hetherington, “Knowing As Simply Being Correct”, in Proceedings of the International Conference on Facts and Evidence: A Dialogue Between Philosophy and Law (2016). 14 Pardo recognizes this means/end relationship when he acknowledges that such a verdict is “problematic primarily because it is unsafe—that is, in a number of similar possible worlds the jury would have reached the same result and been in error.” Pardo, supra note 5, at 52 n.61.

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verdict. Without such independent epistemic access, the verdict in such a real-world analogue in principle should be reversed, and it will be, if it is known by the relevant decision-maker, like a reviewing court, to have been based on the flip of a coin.15 But this will not be because the verdict was or was not in error. It will not be because the verdict has failed to achieve our epistemic objective. The most we can say is that we cannot discern whether it achieved that objective and there is too great a risk that it has not. This seems to suggest the primacy of justification over truth. More about this in the next section. But one can, of course, hypothetically contemplate the possibility that this particular case is a case in which the defendant is guilty in fact. The difficulty is trying to discern what practical consequences such contemplation carries. In order to contemplate practical consequences, such as whether or not the verdict should be vacated for failure to achieve its objective, one must do more than suppose the guilt of the defendant; one must identify an appropriate epistemic connection of a responsible actor to that supposed fact. Someone in a position to act must at least have reason to believe that fact or to assess its likelihood before it can be pertinent to practical decision-making. Certainly, nothing is stated in the hypothetical that identifies any basis for such a belief in any person, and without that, there is no practical basis for ignoring the flawed justificatory process employed by the factfinder in The Randomly True Verdict on account of the hypothesized fact that the defendant is guilty.16 15 See, e.g., Russ v. State, 95 So. 2d 594, 600 (Fla. 1957). In practice, however, that fact might very well not come to a reviewing court’s attention. For example, typically jurors in a jury trial cannot testify about the manner in which they arrived at a verdict in a proceeding brought to question its validity. See, e.g., Fed. R. Evid. 606 (b). This policy is thought necessary to protect the integrity of jury decision-making. See 6 Wayne R. LaFave et al., supra note 10, §24. 9(g) at 707–08 (indicating that juror testimony about decision by casting lots is not admissible under the federal rule). 16 Pardo addresses this problem, which recurs in all the hypotheticals, as follows: [T]he legal examples assume we know the truth. One objection raised during a presentation of an early version of this paper was that we typically never know the truth in legal settings—we only have better or worse evidence—and hence I am not entitled to this assumption. Assuming truth, however, simply allows us to reflect more clearly on the conceptual point regarding a possible disconnect between truth and justification…; it is not an empirical claim about whether we know the truth in any actual cases nor a metaphysical claim about whether such knowledge is possible. Pardo, supra note 5, at 50 n.57. I readily concede the conceptual point, but conceptual points can be, and this one is, divorced from practical reason. So Pardo continues: In any event, those persuaded by this objection could reframe the examples by describing them as involving two perspectives: our own external perspective, in which we have better evidence, and the fact finders’ internal one, in which they are presented with the trial evidence… [T]he…gap would now be between our justification and their justification (rather than between the truth and their justification). Id. That makes sense, to be sure, but then the question becomes: Why and how does what “we” think, from this external perspective, matter in the practical reasoning of those who must decide whether to overturn the fact-finder’s verdict because of its supposed unsuccessfulness? Is a reviewing court, for example, part of the insiders’ perspective or part of the outsiders’ perspective? If part of the insiders’ perspective, they share the position of the fact-finder and cannot assume the truth (or falsity) of the verdict. If part of our outsiders’ perspective, then there are obvious questions such as why the tribunal has permitted the fact-finder to reach a verdict without the benefit of the better evidence that Pardo contemplates being available to such outsiders. (See the discussion in the next section.) The next few paragraphs

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But what about the rare case in which thereis independent epistemic access to the accuracy of the verdict by epistemic agents with authority to act upon, or to affect others’ action about, the verdict? In order to test the priority of truth over justification, one needs to imagine such independent epistemic access in a form that generates the strongest possible epistemic commitment about the defendant’s guilt. In other words, one must take the assumption that “the defendant is in truth guilty” as tantamount to an assumption that all relevant epistemic agents know with practical certainty that the defendant is guilty, and then one must make an epistemic appraisal of the coin-flip verdict from the point of view of a reviewing court facing that situation. Difficult as it may be to imagine such a situation, from its frame of reference it is entirely appropriate to describe the verdict as “fortuitously successful”: the verdict has achieved its goal, albeit fortuitously. Consider, for example, what one would think if we fill out the hypothesized facts in The Randomly True Verdict case by assuming, in addition, that the evidence at trial overwhelmingly and unequivocally indicated the defendant’s guilt. But, out of sheer caprice, this fact-finder chose to ignore the evidence and decide the case by the flip of a coin. We (say, the reviewing court) know this because the fact-finder has acknowledged the same after rendering the verdict. In addition, believing that the verdict will be overturned and (erroneously) believing that “double jeopardy” principles will bar re-prosecution, the defendant openly brags that he did commit the crime and that there is nothing anyone can do about it. (This is the “independent access” of the reviewing court.) Would we then think that the verdict must be overturned simply because of the manner in which it was reached negates the objective of the verdict? I think not. As long as costs matter in our epistemology of trials, to retry such a case would be a hollow formality and a waste of public resources. Although one cannot directly apply real world doctrine to such implausible hypotheticals, the principle behind my conclusion is the same as that supporting the doctrine of harmless error. A variety of tests have been articulated with respect to that doctrine, but the basic idea is to avoid the needless continuation of litigation when a justificatory error was insufficiently likely to have had an impact on the verdict.17 The doctrine reflects the primacy of accuracy because, in this context at least, it is the epistemic good of justification that yields to the ubiquitous necessity of cost containment when accuracy is assured. In reply, it may be asked, why not include the “means” in the “goal”? Why not say that one separate goal of the trial is to justify the verdict, quite apart from its in the text attempt to give content to the latter placement of the reviewing court without assuming that the tribunal has muddied the waters by failing to provide the fact-finder with the better evidence that is essential to the justification of the verdict. 17 See 7 LaFave et al., supra note 10, §27. 6. Cf . Pardo, supra note 5, at 56. Pardo rejects the applicability of the real-world doctrine of harmless error on the ground that such independent access to truth cannot be used by a court without the fact-finder passing on the question. This is doctrinally correct, but reflects largely non-epistemic considerations about the proper roles of factfinder and court and (in the case of jury trials) the political right to trial by jury. If one abstracts from such non-epistemic considerations, the doctrine’s rationale is simply to avoid a retrial that is unnecessary because the result thereof is sufficiently certain.

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accuracy?18 By flipping a coin, the fact-finder fails to justify its verdict and therefore fails to achieve its goal.In order to assess this suggestion, consider the following example: The Perfectly Reliable Black Box. Suppose the court has a “black box” into which evidence is entered and from which a perfectly reliable verdict issues. The black box makes no errors, but observing citizens of the legal system have no idea how (or indeed whether) this is accomplished. Using such a black box, the defendant is convicted.19

Is this an epistemically defective verdict? More generally, would decision making using such a black box result in epistemically defective verdicts? Its problem, of course, is its complete lack of justificatory transparency: we cannot tell whether any decision is epistemically justified (or whether any justification that is built into the program of the black box is not merely coincidentally related to truth in this or other cases); we only know that it is accurate—every time. Of course, “we” in the last statement means those who have the benefit of the facts given in the hypothetical, not the bulk of the people who are governed by the adjudicative system that uses such a black box. One way to test our intuitions about this question is to pose a different question, whether one would prefer trial verdicts to be governed by such a system, if it did exist, over a system that has full transparency, results in only justifiable verdicts, but has a positive error rate. When thus put, I think the answer is that, as far as the epistemic goals of fact-finding are concerned, we would prefer the perfectly reliable black box. This is most clearly true when the question is how we should treat litigants: we would surely prefer a guaranteed accurate but unjustified verdict over a justified verdict that risks erroneous convictions or acquittals. From this perspective, the perfectly reliable black box better achieves our epistemic goal, which must therefore be accuracy.20 At least, accuracy must be the dominant, indeed lexically superior goal. In obvious reply, one might say that the lack of justificatory transparency would cause psychic distress among the people subject to its use, so that this detriment would outweigh even a significant risk of error present in the contemplated alternative decision system. No doubt this is true. The hypothetical does not specify that the public is aware of the perfect reliability of the black box. If it had, then this problem would not arise. Indeed, such a utilitarian concern arises precisely because in the real world we have no such black box, and we would be rightly suspicious of anyone who suggested that one could be provided. Even in a hypothetical world where there were such a perfectly reliable black box, the reliability of which is nonetheless questionable 18 Cf .

Anthony Duff, Trials and Punishments 110–19 (1986) (advancing the idea that some trial rights, such as the right to be heard, follow from the proposition that “a criminal conviction must justify to the accused the condemnation which it expresses,” which is not merely a side-constraint on the trial but is constitutive of it). 19 Since it may be difficult or even impossible to discern what is “evidence” without knowing what is to be done with it, we must assume that the black box specifies what information it requires to solve any allegation. 20 Pardo acknowledges that, from a systemic perspective at least, “A system that produced more accurate verdicts would be superior to a system that produced fewer, even if the latter produced more verdicts that were justified.” Pardo, supra note 5, at 46 n.42.

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from the public’s point of view, transparency of justification would serve a distinct legitimation function of presenting to the defendant and the public that the verdict is likely to be accurate. At least this would be important in a world where the defendant and the public (unlike the court, say) is unaware of, or at least does not fully accept, the perfect reliability of the black box. But this public legitimacy consideration, while an undeniable utilitarian concern, is distinguishable from, and in my view normatively secondary to, the epistemic purpose of the verdict. Indeed, it is subject to limitations that reflect this ancillary quality. Jury verdicts, for example, are typically “general” verdicts that provide an answer to the ultimate question (e.g., guilty or not guilty), but do not make any attempt to justify or explain the result. The justification must be inferred from the evidence that is publicly presented, the arguments of counsel, the fact that a trial judge has permitted the case to go to verdict, and the rebuttable presumption that the jury relied upon a sound justification offered by the evidence in reaching its verdict. Unless one is prepared to require juries to attempt to explain their verdicts (which generally and understandably has been avoided), one can have a valid jury verdict with only limited transparency of justification.

3 Epistemic Access to Truth: The Practical Primacy of Justification This ancillary but important legitimacy concern does not, however, exhaust the role of epistemic justification. The problem, obviously, is that the existence of a perfectly reliable black box is entirely implausible. Practically speaking, justification is a necessary means to adjudicative accuracy in the real world, even if it is not part of the goal itself, and even if the justificatory analysis is not entirely transparent to the public. Without justification, there simply is no assurance of accuracy, however imperfect that assurance may be.21 As illustrated in the previous section, any attempt to give practical effect to an hypothesis of truth requires reference to conditions of justification.22 21 See id: [I]t is, of course, possible that a highly accurate proof system could have few justified verdicts and that a highly inaccurate system could have many justified verdicts. These possibilities, however, run counter to the basic presuppositions of evidence law and legal proof that (1) verdicts better supported by the available evidence (and thus more justified than their alternatives) are more likely to be true; and (2) verdicts supported by better evidence (and thus more likely to be justified than verdicts based on worse evidence) are more likely to be true. 22 It is commonly argued that “there are many ways to determine the truth-value of a proposition p independently of the justification of a particular believer in believing p.” Linda Zagzebski, “The Inescapability of Gettier Problems”, 44 Phil. Q. 65, 72 n.7 (1994). I do not deny this. My claim is different: under normal conventions about proper juridical roles, there is no way for a fact-finder or anyone reviewing the fact-finder’s decision to determine the truth-value of an (empirical) proposition p that determines the result in a trial independently of the justification in believing p. (In particular, any person with direct perceptual knowledge will be neither a fact-finder nor a person in the position to review the fact-finder’s decision, because such a person would have to be a witness.)

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The more difficult question, I think, is the converse issue: is justification also a sufficient means to that goal? Of course the notion of justification is used here to stand in for a rather complex idea, with many components, including not only the soundness of the fact-finder’s evidential reasoning, but also the optimality of the evidence that is presented to the fact-finder, including the avoidance of errors in admissibility rulings at trial. Accordingly, justification is, or can be, systemic or institutional in nature: it need not be what is required of the fact-finder as such, so long as it is what is yielded by the process, which means that the fact-finder could have a specialized task within the trial process that does not require the fact-finder to focus on justified belief.23 And justification is a matter of degree, with some verdicts better justified than others. With these caveats, one can pose the question of whether “full justification” (that is, the fullest justification that is practically obtainable) is everything, at least epistemologically speaking, in assessing the success of a verdict? If so, what then shall we say about The Unavoidably False Verdict? Obviously, this example is a much more realistic example than either The Randomly True Verdict or The Perfectly Reliable Black Box. The question posed by The Unavoidably False Verdict is this: what are we to make of the possibility that a fully justified verdict is erroneous? One might question the hypothetical as self-contradictory: one could argue that a fully justified verdict cannot be in error, because an error presupposes that the verdict was not fully justified. There are two, related reasons to reject this substitution of “legal truth” for “material truth”, all attributable to the fact that even full justification is not perfectly reliable. First, the fact-finder almost never has a “complete” evidence package from which to draw its inferences. The acquisition and use of evidence is costly, and adjudication necessarily involves practical compromise with such litigation costs. This unavoidable compromise introduces the potential for error, even though the evidence is as fully developed as one could reasonably expect it to be.24 Second, inductive or abductive reasoning does not guarantee success, no matter how careful the inference.25 The soundest practically available adjudicative reasoning (given the evidence) is still not perfect, and this introduces additional potential for error. These sources of error are necessarily accepted by, and imbedded in, any practical concept of full justification that applies to verdicts.26 23 For example, the fact-finder might be properly limited to decision based on belief simpliciter if the conditions surrounding the fact-finder’s deliberation provide the assurances of epistemic justification. For this reason, I am noncommittal for purposes of this essay about whether the determinative state or condition of the fact-finder is “belief” “belief-plus” or “justification”. See Pardo, supra note 5, at 39–41. For further discussion of the significance of an institutional perspective, see infra Sects. 5 and 6. 24 Elsewhere, I have described this as a problem of the practical optimization of the “Keynesian weight” of the evidence, an important constraint that for a long while has not been correctly understood or fully appreciated, especially by lawyers. See Nance, supra note 1. 25 See, e.g., Ian Hacking, An Introduction to Probability and Inductive Logic 11–18 (2001). 26 It is a mistake, therefore, to equate error with moral failure by the fact-finder (or the court); the former can occur without the latter. See Ho, supra note 1, at 64–66. Unfortunately, Professor Ho slips into ambiguous modes of expression that do not quite keep this distinction clear, using “wrong”

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So the question posed by The Unavoidably False Verdict is not self-contradictory. Such fully justified but false verdicts can, and do, happen. But does this mean that such a verdict is defective, “insufficient”? Once again, it must be stressed that there are actually two different questions here, though Pardo does not distinguish them clearly. Yes, the judgment in The Unavoidably False Verdict is epistemically defective, and this for want of achieving its goal of being truthful. On that point, I agree with Pardo. But no, that does not necessarily mean that the verdict should be reversed or vacated on account of that defect. How can this be? Once again, this possibility arises because the latter question is practical in character. From a systemic perspective, the practical point is that, while we recognize that there can be, indeed will be, such mistaken verdicts, neither the fact-finders nor anyone else who has achieved full justification with respect such verdicts can discern which ones are mistaken when the verdicts are entered; at that point, practically speaking, such errors cannot be separated from the verdicts that are true. (If they could be, that would presuppose either that evidence packages were not fully developed or that reasoning processes from such evidence were badly performed, contrary to the assumptions of the hypothetical.) Putting aside, for the moment, the possibility of evidence that becomes available only after the verdict, the argument to reverse one verdict is no better than the argument to reverse any other, and if any verdict must be vacated, then they all must be, and no verdict could ever be rendered. Whatever epistemic value such a severe skepticism would serve, it would be socially disastrous. From the perspective of an individual instance of The Unavoidably False Verdict, the problem with the hypothetical is that, once again, part of the premises is a fact to be taken as given, independent of any evidence or justification therefor, that the defendant is innocent. In order to honor the conditions of the hypothetical, neither the fact-finder nor anyone else with authority to affect the decision can have admissible evidence of that fact that has not been provided to the tribunal, and there can be no cognizable failure in the fact-finder’s reasoning. This means that a verdict might be “unsuccessful” in an external, “material” sense27 without anyone in the system with authority to act being aware of the facts that render it so and, as a consequence, without any such person or agency having a justification for doing anything to prevent the error. One cannot rationally act to prevent an error if one is unaware of information that shows an error is about to occur. What, then, are we to make of the problem of “new evidence”, evidence that was not available to appropriately situated juridical actors when the fact-finder had to

or “wrongful” where he should say simply “erroneous,” or “wrongfully convicted” where he should say “erroneously convicted”. See, e.g., id. at 98 “[W]e do think it wrong to find a person guilty (or, for that matter, liable) where she is not, however reasonable and blameless we think the court was in arriving at its verdict.” 27 Pardo differentiates between a “probatory perspective” that emphasizes justification and a “material perspective” that emphasizes truth. See Pardo, supra note 5, at 43 (drawing on Laudan, supra note 1). The means/end distinction accommodates both.

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make its decision but that becomes available to the tribunal after the verdict.28 Does the undoubted occurrence of this phenomenon pose a serious challenge to the view that justification is everything in the epistemics of practical adjudicative decisionmaking? The answer is “No”: new evidence in this sense does not undermine the privileged position of justification described earlier, namely, that (without something like a perfectly reliable black box) justification is our only access to the truth. Instead, it reflects the fact that what is a justified verdict at time t1 may not be a justified verdict if it were made at a later time t2 when additional evidence has become available. That is, the question presented by The Unavoidably False Verdict is not whether the verdict at time t1 was epistemically defective. Given the assumptions, it was. But that conclusion is entirely theoretical, in the sense that it is without practical significance, unless and until someone with authority to affect the judgment is aware of the new information that reveals the defect. That reality persists until time t2 . So, when one turns to the practical question whether the verdict should be reversed or vacated by a court, the answer is that it should not, at least not at any time between t1 and t2 . Only after t2 , when the new evidence becomes available to the court, does the situation admit a different answer. And at t2 , if the earlier verdict is vacated because it was epistemically defective at t1 , the only way this can be discerned is by recognizing that newly acquired evidence affects what a full justification now (at t 2 ) yields. But should the old verdict be vacated and a new trial leading to a new verdict be contemplated? At this point, a new set of values enters the discussion, also extrinsic to the epistemic goal of trial and competing with it. This is the set of values represented by the doctrine of res judicata: the value of finality, the need for closure, and the elimination of the incentive for losers to harass winners and waste social resources on relitigating claims.29 The pertinent question becomes: To what extent do these values of finality and closure override the good, epistemic or otherwise, to be achieved by permitting a new trial that would take the new evidence into account? As an empirical observation, American law does not subscribe to the view that, for verdicts, “once justified, always justified” nor even to the view that “once settled, always settled.” That is, it is possible, in both civil and criminal cases, to reopen cases because of the discovery of new evidence, even if there was no justificatory error as of the time of entry of the judgment. However, the window for this opportunity is typically quite small: ordinarily, revision of verdicts merely because of the discovery of new evidence possibly showing the verdict to have been erroneous can take place only

28 In

one sense, it is odd to call this a “problem”. One aspect of “new evidence” is that it performs the role of testing the usefulness of one’s justificatory methods. New evidence can show that one’s methods of justification need improvement. Post-conviction DNA testing has functioned in this manner. See, e.g., Brandon Garrett, Convicting the Innocent (2011). 29 See Edward W. Cleary, “Res Judicata Reexamined”, 57 Yale L. J. 339, 344–49 (1948). The principle of res judicata also limits the revision of verdicts that may be defective because of inadequate justification as of t1 , as in The Randomly True Verdict.

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for a short period of time.30 This reflects the considerable importance attached to finality.31

4 Knowledge and Luck That brings me to the third case, the case of The Framed Defendant. This is actually the case of most interest to Pardo, who likens it to famous examples offered by Edmund Gettier to show that even justified true belief may not constitute knowledge.32 As Pardo puts it, “the problem generalizes to any situation in which an agent forms a justified belief that turns out to be true by coincidence or luck.”33 Here is a non-legal example: Clock. Smith checks his generally reliable wall clock, which displays the time as 8:29. And it is 8:29. However, [unbeknownst to Smith] the clock stopped at 8:29 last night. Smith does not know it is 8:29.34

Similarly, in The Framed Defendant, the defendant happens to be guilty because he was in possession of illegal drugs, but this had little or nothing to do with the reason for his conviction by the fact-finder. As an initial matter, observe that cases of this kind are less disconcerting than cases of the first two kinds: (1) they are less disconcerting than verdicts that are true but unjustified because they are true and justified, and (2) they are less disconcerting than verdicts that are justified but false because they are justified and true. Moreover, if I am correct in my argument that, in adjudicative reasoning, justification is the key to the successfulness of verdicts, then the question—whether material truth is, unbeknownst to anyone, accidentally related to the justified belief upon which a verdict is predicated—is of no practical importance. But suppose, contrary to my 30 See,

e.g., Fed. R. Crim. P. 33(b)(1) (limiting to three years from verdict the time during which a new trial may be granted on the basis of newly discovered evidence in a federal criminal case). Even stricter limitations generally apply in civil cases. See, e.g., Fed. R. Civ. P. 60(c)(1) [limiting to at most one year from judgment the time during which relief from judgment can be granted under Rule 60(b)(2) on the basis of newly discovered evidence in a federal civil case]; Johnson Waste Materials v. Marshall, 611 F. 2d 593 (5th Cir. 1980) [describing the heavy burden borne by a party to a civil case initiating an equitable action for relief of judgment, under Fed. R. Civ. P. 60(d)(1), on the basis of evidence discovered after a judgment is entered, when relief is not available under the one-year rule of Fed. R. Civ. P. 60(c)(1)]. 31 It is in this context that I think one should view the disagreements among the Justices of the United States Supreme Court about reversing convictions that are claimed to have been false in light of newly discovered evidence. Pardo suggests that this disagreement arises because some (such as Justice Scalia) end their analysis at legal truth (once fully justified, always fully justified), whereas others (such as Justice Stevens) allow that material truth is a component of the goal of trial that can undermine the validity of even full justification. Pardo, supra note 5, at 44–45. Instead, I think the two justices are simply giving different weights to the value of finality. 32 See Edmund L. Gettier, “Is Justified True Belief Knowledge?”, 23 Analysis 121 (1963). 33 Pardo, supra note 5, at 49. 34 Id. (Emphasis and bracketed qualification supplied).

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argument, that one requires at least twin criteria of epistemic success: both justification and truth (however truth is supposed to be known separate from justification). Does that then require a third condition on the relationship between truth and justification, as suggested by Pardo? If both justification and truth condition the success of a verdict, it would seem to be plausible to pose the question of whether a non-fortuitous relationship must exist between them. The response to this suggestion must come to grips with the problem of epistemic luck, at least when it arises in the adjudicative context. Consider the following observation: the facts that make the situation “Gettierized” are unknown to the epistemicagent in question when the belief is formed or the verdict is rendered.35 In Clock, for example, if Smith were aware of the fact that his clock had stopped, then his inference about the time would have been unjustified, and we would not be posed with the question whether justified true belief is knowledge. Similarly, in The Framed Defendant, if the fact-finder had reason to believe that a third party planted drugs but had no evidence that the defendant concealed drugs, then the guilty verdict would be unjustified and vacatable on that basis,36 whereas if the fact-finder were justified in believing that the third party planted drugs and that the defendant concealed other drugs, then the guilty verdict would represent either justified true belief not subject to this Gettier-style objection or else simply unjustified belief, depending on which of the drug placements was controlling for the fact-finder.37 The puzzle presented by Gettierized-examples is what we are to make of facts that are unknown to (and, indeed, unevidenced before) the tribunal but that, if known or evidenced, would change what it is justified for the fact-finder to believe.38 Consider, 35 To be more precise, the examples involve Getterizing facts that are (1) logically consistent with the facts known by the agent, (2) themselves unknown to the agent, and (3) unanticipatable by the agent, given what he knows. These details figure in some efforts to unravel the dilemma of the connection required between justification and truth in order to assure knowledge. For my purposes, I simplify by collapsing all these conditions into the term “unknown”. 36 The conventional standard of review of the verdict here would be whether the evidence was sufficient to support the finding of guilt beyond reasonable doubt. See 2 McCormick on Evidence §§336, 338 (7th ed. 2013). 37 The objection might be made that, absent an explanation from the fact-finder, which usually is not provided by a jury, for example, it is possible that the fact-finder relied on the planted drugs rather than defendant’s drugs in arriving at its verdict, and Gettier’s truth-by-accident would still be present. However, such fact-finder irrationality would result simply in an unjustified verdict, albeit one that could have been justified in a different way. In order to protect unexplained jury verdicts that could always be supposed to have been reached irrationally, courts presume the rationality of the verdict. 38 A recurring difficulty is presented by the fact hypothesized in The Framed Defendant that the police did not find the defendant’s drugs when they conducted their search; they found only the drugs that were planted to frame the defendant. This poses the questions whether the evidence presented to the fact-finder was reasonably complete and, if not, whether the prosecution is responsible for the failure to make it so. This might be the basis for reversal of the conviction, and it would be related to the question of whether the verdict represented the fully justified belief of the fact-finder because optimizing one’s evidence is a part of what is required for making the best possible inductive inferences, one of the prerequisites of full justification. See Nance, supra note 1. But this justificatory analysis problem does not appear to be the nature of the argument that Pardo presents. So in the

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for example, what one would think of the following revised version of The Framed Defendant, where the changes are reflected by the words stricken out: The Framed Defendant (Abbreviated).The police arrest a motorist and charge him with possession of illegal drugs. The evidence shows that the drugs were in his automobile and the fact-finder reasonably disbelieves the defendant when he denies knowing anything about the drugs. Accordingly, the fact-finder convicts the defendant. In fact, the defendant was in possession of illegal drugs. However, unbeknownst to investigators or the jury, the drugs the police found were placed there by someone else in order to frame the defendant. Also unbeknownst to the fact-finder, the defendant did indeed conceal illegal drugs (of the same kind and amount) elsewhere in the automobile, drugs that were not found by the police and were not, therefore, the basis of the prosecution.

Ignoring the language stricken out, this modified hypothetical does not seem to involve the Gettier problem discussed by Pardo. It instantiates justified true belief. Moreover, the material that has been stricken out is information to which, we must assume, neither the fact-finder nor any other juridical actor (with a duty to present it to the fact-finder as part of full justification) had access; if the fact-finder had such information, it would have figured in the full justification of the verdict. And yet the stricken-out propositions are not foreclosed by the rest of the hypothesized facts: they could be true. This suggests the following thesis: any fully justified true verdict presents a Gettier-problem because, to put it simply, we do not know what we do not know. In virtually any case imaginable, the unknown information, that which surrounds any truncated statement of hypothetical facts or any inevitably finite compilation of actually evidenced facts, could include facts that would, if they were known, make the case problematic in the way that Pardo poses. There is no way to ascertain, at the moment of decision, that any case is not (already) Gettierized. This presents another reductio ad absurdum: no verdict can be viewed as safe from Gettierized fortuity. And that means that no verdict can be viewed as having achieved its goal if that goal is understood as requiring justified, true belief that is not subject to the possibility of luck or coincidence that Gettier identified. To emphasize this point consider the following hypothetical, now constructed in the civil litigation context: Hit and Run Cab Driver: The plaintiff files a lawsuit against the defendant, who owns and drives the only taxicab in town, claiming that she was hit by the defendant’s cab while crossing the street. She saw the cab drive away but did not see the driver. A video camera at the intersection filmed the accident, and it shows what appears to be a cab (but not the driver) hitting the plaintiff, exactly as she claimed. The fact-finder finds for the plaintiff.

Assuming the only disputed issue is the identity of the tortfeasor, here again we have a justified verdict, at least under the standard of proof applied in civil cases. Now let’s add another assumed fact: that the car in the video really is the defendant’s. This generates a justified and true verdict, although the added assumption is practically text I suppose that the police search was beyond reproach, but they nonetheless failed to find the defendant’s drugs. Likewise, I suppose that there was no investigational failure in that the police had no reason to suspect that someone had planted drugs.

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irrelevant to the juridical actors unless they have independent epistemic access to the fact so assumed. But now add another assumption, also unknown to the fact-finder: along with the defendant’s real cab there are hundreds of other cars in the town that look identical to his cab. Suddenly, the hypothetical is Gettierized, because it is only a coincidence that the identification process yielded a true verdict; had the offending auto been one of the hundreds of fake cabs, the identification of defendant as the perpetrator would have been erroneous. But this only arises because of the crucial assumption that the existence of the hundreds of pretend cabs is unknown to the fact-finder. If that circumstance were evidenced and reasonably believed by the jury, its verdict for the plaintiff would be unjustified under the civil standard of proof. As it turns out, this hypothetical, as modified, becomes essentially Pardo’s hypothetical of the Fake Cabs: Fake Cabs: The plaintiff files a lawsuit against the defendant, who owns and drives the only taxicab in town, claiming that she was hit by the defendant’s cab while crossing the street. She saw the cab drive away but did not see the driver. A video camera at the intersection filmed the accident, and it shows what appears to be a cab (but not the driver) hitting the plaintiff, exactly as she claimed. Now, suppose the car in the video really is the defendant’s, but also that—unknown to the jury—along with his real cab there are hundreds of other cars in the town that look identical to his cab. The jury finds for the plaintiff based on the video.39

Pardo offers this as an additional example of the Gettier problem that renders a verdict “problematic”.40 And my point again is this: if one is unconstrained in terms of the additional facts one is permitted to contemplate—facts that, while logically consistent with the known (or given) facts, are themselves unknown to the fact-finder when the decision is made—then, with enough ingenuity, any known facts can be Getterized with reference to such possible but unknown facts. Indeed, the point is well established in the philosophical literature.41 What, then, ought to be our attitude toward the Gettier problem? Because we cannot discern whether any given verdict is (already) Gettierized by unknown facts, all we can do is to insist on fully justified verdicts and then hope for the best. In this respect, it is no different from the appropriate stance toward the fact that a fully 39 Pardo,

supra note 5, at 52. Part of the intuition that this case is problematic might be attributable to the implausible assumption that there would be hundreds of visually indistinguishable fake cabs in the town without the defendant being aware of it and bringing evidence of that fact before the court. This is another problem of evidential incompleteness (see Nance, supra note 1), but it is unlikely that Pardo intended to draw upon this defect in the evidence in saying that the verdict is problematic. Accordingly, the hypothetical should be read as including the implicit, albeit seemingly bizarre, assumption that the case was adequately investigated without discovering the existence of the fake cabs. In considering whether the hypothetical is problematic, the reader must be careful not to draw upon the suspicion that the case has been inadequately investigated. 41 See Zagzebski, supra note 22. This argument does not involve changing the assumed facts of the hypothetical case that are known by the fact-finder, or the evidence that is available to the factfinder when the verdict is given, but rather speculating about what the then unknown facts, however improbable, might be. Cf . Mark McBride, “Reply to Pardo: Unsafe Legal Knowledge”, 17 Legal Theory 67, 69 n.7 (2011) (arguing that it is no objection to Pardo’s thesis that any fact pattern can be “tweaked” to become Gettierized). 40 Id.

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justified verdict might nonetheless turn out to be in error because of unknown facts. Indeed, being Gettierized is actually one of the more fortunate possible results of discovering those previously unknown facts! After all, Gettier problems arise when unknown facts turn out to deliver both bad luck and an offsetting good luck: bad luck because full justification, being nonetheless fallible, turns out to have failed, resulting in a belief or verdict that would be false but for the intervention of additional, previously unknown facts; with the introduction of the latter, good luck “saves” the situation because the additional facts render the belief or verdict true nonetheless.42 That is certainly better than discovering that the verdict was in error. If accuracy is the goal, then Gettierization is manna from heaven. It makes no sense to object to good luck because of the unavoidable risk of bad luck. Suppose, for example, we are initially presented with a case like The Framed Defendant (Abbreviated) or Hit and Run, where a justified verdict is entered, and suppose that the epistemic agents with authority to change the result (e.g., reviewing courts) subsequently learn from new evidence not available at the time of the verdict that these cases are actually Gettierized cases, as in The Framed Defendant or Fake Cabs, respectively. Should these agents bemoan the accidental relationship between the original full justification and the acknowledged truth of the verdict? I think this is the wrong response: instead, the agents should breathe a sigh of relief. Like all verdicts, such a verdict might be in error; but fortunately, it is not. Or rather, it has not yet been shown to be. Even if principles of finality have not time-barred the review of the case, the principle of harmless error should, assuming that the new evidence indicating the truth of the original verdict is strong enough and no other, non-epistemic consideration (such as the right to a jury trial) requires an epistemically unnecessary retrial of the issue. The foregoing argument depends on the assumption, which is generally made in modern epistemology, that there exists a gap between knowledge and justified truebelief. Yet it is possible that a revised theory of full justification might succeed in such a way as to eliminate the problematic relationships generating Gettier problems. That is, an improved understanding of justification and what it requires might be such that justified true belief would guarantee knowledge.43 Now, at first blush it would 42 Zagzebski,

supra note 22, at 66; Pardo, supra note 5, at 49 n.50. am skeptical about the prospects in this regard. See e.g., Duncan Pritchard, Epistemic Luck (2005). Pritchard articulates the requirement that must be added to true belief, in order to eliminate Gettier problems, as an “externalist” “safety principle”, according to which: [I]f an agent knows a contingent proposition ϕ, then, in nearly all (if not all) nearby possible worlds in which she forms her belief about ϕ in the same way as she forms her belief in the actual world, that agent only believes that ϕ when ϕ is true. Id. at 163. But Pritchard explains how this does not entirely eliminate the potential for epistemic luck that epistemologists have been concerned about; it does not eliminate what he calls “reflective epistemic luck”, which he defines as follows: Given only what the agent is able to know by reflection alone, it is a matter of luck that her belief is true. Id. at 175. Pritchard suggests that an “internalist” justification condition needs to be added to the safety principle in order to account for intuitions that require that the person who knows can and should take responsibility for knowledge claims. In the end, however, he concludes that no such internalist criterion can completely eliminate the possibility of reflective epistemic luck, and this leads to “epistemic angst”. He explains: [T]he knowledge that meets an internal epistemic condition will

43 I

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seem that this possibility poses no threat to my thesis. After all, Gettier problems are equally unimportant, from the practical perspective at the moment of decision, if either (a) they don’t exist, or (b) they exist but are unavoidable. Nonetheless, the elimination of the “gap” between justified true belief and knowledge, if it were possible, might in turn create a new gap between justified true belief (now, knowledge) and accuracy. Thus, a theory of adjudication that restricted positive verdicts to those with respect to which the fact-finder knows the claim to be true could result in a less accurate system of adjudication. And that poses the question whether such a theory of justification would be appropriately applied in adjudication. I think not. Suppose System A is epistemically superior to System B in that the rules regulating A are more careful to render verdicts only on the basis of knowledge, where as B is indifferent toward knowledge in its verdicts, but is more accurate than A. That is, the risk of an erroneous verdict in B is (by hypothesis) lower than in A, but the likelihood of having a verdict based on the fact-finder’s knowledge is greater in A than in B.44 Assuming such a contrast is meaningful (e.g., not self-contradictory), which system is to be preferred? If the answer is System B, as I think it must be, then it is difficult to see how knowledge can take priority over accuracy as the goal of verdicts. Again, knowledge, while it may be an epistemic good distinct from true belief, is at best lexically inferior to accuracy in the adjudicative context.45

5 Knowledge and the Epistemic Enterprise of Adjudication Despite the foregoing, I think the concept of knowledge may have a role to play in adjudication, just not the one suggested by Pardo’s arguments. His arguments focus on the idea that the fact-finder must have knowledge of the ultimate facts in dispute. In order to shift that focus a few comments are in order. In the first place, be immune to reflective epistemic luck just so long as the sceptical error-possibilities are indeed as modally far off as we take them to be. In effect, just so long as the actual world is pretty much as we typically suppose it is—and, in particular, just so long as there are no sceptical possible worlds in the modal neighborhood—then our reflectively accessible grounds will be a good guide to what is the case. Id. at 248. 44 Actually, we should say that System A is more careful to limit verdicts of a particular kind (presumably positive verdicts), because avoiding positive verdicts not based on knowledge will require negative verdicts that are not based on knowledge. This is because, in cases for which the fact-finder cannot say that the claim is known to be true, some (perhaps many) will be cases for which the fact-finder also cannot say that the claim is known to be false, and these cases will have to be decided by a default rule of some sort, which will be verdicts not based on knowledge that the claim is true or that it is false. If the burden of proof falls on the claimant, then a default rule favoring defendants will entail defense verdicts that do not reflect knowledge that the claim is false. This in itself is problematic. See infra Sect. 5. 45 Cf . David Enoch, Levi Spectre and Talia Fisher, “Statistical Evidence, Sensitivity, and the Legal Value of Knowledge”, 40 Phil. & Pub. Affairs 197, 211–13 (2012). (Using a similar example, opining that to choose System A would “amount to an objectionable kind of epistemological fetishism”, and concluding: “to the extent that [knowledge] has value, its value is lexically inferior to that of accuracy.”)

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the emphasis on accuracy as the goal might seem to commit one to the idea that fact-finding is a theoretical enterprise, that is, an enterprise of theoretical reasoning, concerned with what to believe rather than with what to do. From a larger perspective, however, fact-finding must be understood as a component of adjudication, which is fundamentally an exercise in practical reasoning, concerned with what to do in regard to the competing claims of the parties.46 So the dominance of truth as the goal of the fact-finder’s verdict must be situated within the context of that practical enterprise, the architecture of which reveals that truth itself, let alone knowledge, is unavoidably subordinated to several other considerations associated with the social imperative that disputes be resolved promptly, efficiently, and with finality, as well as considerations that place the fact-finder in a position subordinate to law-makers in matters of policy. These considerations limit and shape the “quest for truth” in the courtroom. The result of these forces is that adjudicative fact-finding has three distinguishable epistemic components: (1) The effort to achieve a practically optimal (cost-justified) degree of completeness of the evidence considered, the function of which is to reduce uncertainty and increase the expected gains of decision as much as is feasible; (2) The effort to draw rational inferences that are as sound as possible, given the evidence that is presented, the function of which is to maximize accuracy; and finally; (3) The rendering of a verdict in light of the remaining uncertainty in accordance with the applicable standard of proof, the function of which is to allocate the risk of error in an appropriate way. The first and second of these are most focused on truth, the accuracy of verdicts, and the justification of belief, while the third is law’s bowing to the practical inevitability of irreducible uncertainty. Importantly, in bifurcated tribunals, such as those that employ a lay jury, the fact-finder is generally and properly engaged only in the second and third components, and its role in the third component is limited to applying a standard of proof provided by law-making authority. Meanwhile, it is the responsibility of the legislature, the court, and the parties to assure a reasonable degree of evidential completeness.47 From this wider perspective, the emphasis on the fact-finder’s possible knowledge regarding the ultimate disputed facts seems plausible only by ignoring the first and third epistemic components of adjudication. When these components are considered, there is the potential for a serious mismatch between the structure of adjudication

46 For arguments along these lines, see Ho, supra note 1, at 190–213 (discussing pragmatic encroach-

ment upon what is otherwise a theoretical enterprise) and Federico Picanali, “Two Meanings ‘Reasonableness’: Dispelling the ‘Floating’ Reasonable Doubt”, 76 Modern L. Rev. 845 (2013) (arguing that adjudicative fact-finding is a theoretical enterprise, but one that is structured by the standard of proof that is itself generated by an exercise of practical reason). 47 The first and third of these involve formal burdens of proof. For an in-depth treatment, see Nance, supra note 1.

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and the reliance upon a fact-finder’s categorical belief states, including knowledge.48 The mismatch arises from the contextualized or interest-relative nature of assertions of knowledge or other kinds of categorical beliefs. Increasingly, epistemologists are recognizing that categorical beliefs and assertions are “interest-relative” in the sense that the appropriateness of the assertion depends on aspects of the asserter’s practical context distinct from the strength of the available evidence.49 In the adjudicative context, the propriety of a fact-finder’s assertion of knowledge that a claim is true would depend on the nature, amount, and distribution of the stakes involved in making the decision that results from that assertion.50 In particular, the greater the costs of being wrong about what one believes, the stronger must be the evidence supporting that belief for it to constitute knowledge. The following two examples are typical of the (non-legal) arguments used by epistemologists to illustrate this dependence: Low Stakes. Smith says to Jones, while in an automobile outside of Jones’s regular bank, “Do you want to stand in that long line to deposit your check? You said your balance is running low.” It is not important that the deposit be made before Monday because there are no impending charges against Jones’s account. Jones replies, “No, it isn’t necessary. The bank will be open on Saturday.” Smith presses, “How do you know that?” Jones replies, “My sister goes to her branch of this bank every Saturday morning.” High Stakes. Smith says to Jones, while in an automobile outside of Jones’s regular bank, “Do you want to stand in that long line to deposit your check? You said your balance is running low.” It is important that the deposit be made before Monday because the credit card company might debit the account as early as then. Jones replies, “No, it isn’t necessary. The bank will be open on Saturday.” Smith presses, “How do you know that?” Jones replies, “My sister goes to her branch of this bank every Saturday morning.” Smith replies, “Is that good enough. Different branches can have different hours.” Jones responds, “You’re right. I don’t know that this branch will be open tomorrow.”

The point here is that the non-practical facts upon which Jones bases his assessment are the same in the two cases—the information concerning his sister’s banking habits. But the practical context of the assessment—the seriousness of the consequences of being wrong—is different and supports a different conclusion about whether Jones knows the bank will be open on Saturday.51 By the same token, although it has not been emphasized in the philosophical literature, the propriety of a person’s assertion of knowledge of a proposition also depends on the nature and amount of the costs associated with conducting further 48 For categorical beliefs about some proposition, p, “[e]ither one believes p or one does not. To be more accurate, three doxastic positions are available; in addition to believing p, one can believe that p is false, which is to disbelieve p, or suspend judgment about p, thus neither believing nor disbelieving p.” Ho, supra note 1, at 124 (footnotes omitted). 49 See, e.g., Jason Stanley, Knowledge and Practical Interests (2005). 50 See Ho, supra note 1, at 186–223. Ho’s views regarding the importance of knowledge in factfinding are not entirely clear. While he clearly endorses understanding the proof requirements and the task of the fact-finder as involving categorical belief, he seems to stop short of insisting on knowledge. See id. at 71, 87–89, 201–13. 51 Cf . Stanley, supra note 49, at 3–5 (discussing our intuitions about knowledge in various circumstances similar to those hypothesized in the text).

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inquiry before making a decision. Here is a non-legal example similar to those given above: Low Inquiry Costs. Smith says to Jones, while in an automobile outside of Jones’s regular bank, “Do you want to stand in that long line to deposit your check? You said your balance is running low, and your credit card company might debit your account as early as Monday.” Jones replies, “No, it isn’t necessary. The bank will be open on Saturday.” Smith presses, “How do you know that?” Jones replies, “My sister goes to her bank every Saturday morning.” Smith replies, “Is that good enough? That’s a different branch of this bank, and you can easily check the sign on the door for the hours of this one.” Jones says, “You’re right. I don’t know this branch will be open on Saturday. Let me go up to the door so I can read the sign.”

Significantly, were there no option by which to verify that the bank would be open on Saturday, Jones could be correct in asserting knowledge that it will be open based on the evidence of his sister’s conduct. It is not the case, then, that Jones’s denial of knowledge is independent of the costs of inquiry.52 A categorical claim of knowledge incorporates the conclusion that no further inquiry is cost-justified, given the aggregate stakes in play. One can therefore appreciate the severe tension between, if not complete incompatibility of, the task of the fact-finder and its use of categorical beliefs. If fact-finders are tasked to limit their decisions to those that represent their knowledge about the ultimate disputed facts, then they must incorporate both the rationality of decision and the rationality of inquiry into their fact-finding enterprise.53 Such pragmatic encroachment on categorical belief is unavoidable. But ordinarily, at least in relatively adversarial adjudication, the fact-finder as such (certainly, the lay jury) does not decide whether the size of the stakes relative to the costs of additional inquiry warrants further investigation before a verdict is rendered. These matters are largely, if not exclusively, controlled by the parties, the court, and ultimately the legislature.54 As a result, it is beyond the fact-finder’s role to incorporate the fact-finder’s assessments relating to such matters.55 Similarly, because standards of proof are publicly set, the fact-finder nominally cannot apply its own sense of the severity of error costs in arriving at categorical beliefs like knowledge.56 With very limited ability to 52 Of course the argument can be made that, when the stakes are high and the evidence favoring the proposition in question is weak, a claim of knowledge is inappropriate even if no further, costjustified means of acquiring relevant evidence are discernible. If so, categorical belief might have to be “withheld”. In light of the reality that “not deciding” is not a permissible legal option, however, that would mean that a decision cannot be based on knowledge states at all, but rather must be made on some other basis, such as the strength of evidence in warranting partial beliefs and the rational management of risk. 53 See Nance, supra note 1, at 278–91. 54 See id. at 184–250. 55 A jury might be instructed to assume that the evidence has been optimally developed, and that assumption might be true and might be accepted by the jury as true. See id. at 249–50. But it would not be the jury’s assessment of the matter; that assessment could well diverge from what they are told to assume and what, if they follow their instructions, they do assume. 56 To be sure, the instructions articulating for juries the standard of proof are typically vague enough to allow for some tailoring of the standard by the jury. That they should do so is controversial, but as a practical matter, juries probably can invoke a degree of control over the standard. See id. at 40–42.

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integrate these considerations, fact-finders are in a poor position to base decisions on ascriptions of their own categorical beliefs, including their knowledge, about the ultimate facts in dispute.57 The use of criteria of decision (standards of proof) calling for the assessment of gradational measures of warrant or partial beliefs, such a probabilities, informed by whatever evidence the system provides to the fact-finder, avoids this problem. Fact-finders as such (juries, in particular) need not concern themselves with the completeness of the evidence; the parties, under the supervision of the court, will have taken care of this, if they are doing their jobs properly. The fact-finder need only make an assessment of the level of epistemic warrant supporting the claim and whether this level satisfies the standard of proof that the law provides. It is time for an interim summary. The upshot of the paper thus far is that it is both undesirable and unrealistic to require, as a condition of a positive verdict, that a factfinder have knowledge that the claim is true. It is undesirable because knowledge has a lower priority than accuracy in the practical affair of adjudication. It is unrealistic because knowledge, being categorical, does not fit adjudicative arrangements that divide and allocate epistemic responsibilities as they typically are divided, at least in adversarial trials, especially jury trials.

6 A Reconstruction of the Role of Knowledge in Adjudication In this section I suggest possible connections between the traditional conception of knowledge—as justified true belief—and the practice of adjudication that accept the foregoing critique. The views expressed here are more tentative. In part, my purpose is to suggest a possible explanation for the inclination (which I have rejected) to impose a requirement that the fact-finder have knowledge of the ultimate disputed facts as a condition on a valid verdict. One connection concerns the second component of the epistemic enterprise of adjudication adduced above: the effort to draw rational inferences that are as sound as possible, given the evidence that is presented, the function of which is to maximize accuracy. In this context, the fact-finder has the greatest scope of operation, Knowledge may have an important role to play in this context, not in terms of the

Admittedly, this opens a small window for the possible use of categorical judgments that presuppose such jury control, at least as far as comparative error costs are concerned. But the tension remains, especially in regard to the rationality of inquiry and the completeness of the evidence considered. 57 To be sure, the instructions articulating for juries the standard of proof are typically vague enough to allow for some tailoring of the standard by the jury. That they should do so is controversial, but as a practical matter, juries probably can invoke a degree of control over the standard. See id. at 40–42. Admittedly, this opens a small window for the possible use of categorical judgments that presuppose such jury control, at least as far as comparative error costs are concerned. But the tension remains, especially in regard to the rationality of inquiry and the completeness of the evidence considered.

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goal of fact-finding, but rather in terms of its inferential foundations.58 As suggested above, decision-making under uncertainty, with the necessity of allocating risk of error, requires recourse to gradational measures of epistemic warrant. For reasons too complex to address here, I am of the view that the appropriate kind of gradational measure for adjudication is what can be called “epistemic probability”.59 Even if one accepts such a view, however, there is an important problem of the epistemically solid starting point. For example, with regard to the third epistemic component of trials identified in the previous section, it is plausible to understand the test that the factfinder is to apply in terms of whether the probability of the ultimate facts instantiating the claim C, given the evidence E, is greater than some specified threshold level, P*. In that case, however, one question that arises is this: What does it mean to be “given evidence E”? After all, the probability of the claim, given evidence E, or P(C|E), denotes a conditional probability, a probability on the assumption that evidence E is true. But cases cannot be decided hypothetically; one cannot just assume that evidence is true. The answer to this puzzle is thinking of E not as some proposition to which a witness testifies, for example, but rather as the proposition that the witness so testifies.60 The latter is a proposition that the fact-finder observes directly and— by all but the most skeptical accounts—knows.61 This establishes a solid, albeit defeasible, inferential base and allows the case to be decided using the following practical syllogism: If, before considering evidence, E, P(C|E) > P* And at trial, E is known Then, at verdict: PE (C) > P* 58 Cf .

Timothy Williamson, Knowledge and Its Limits 184–237 (2000) (emphasizing the role of knowledge as the foundation for a system of objective Bayesian inference that permits knowledge to be defeasible, equates knowledge with evidence, and uses knowledge as the basis for justifying beliefs). 59 This is a good point to indicate how my theory compares with those of two other participants in this conference: Professors Ronald Allen and Michele Taruffo. I agree with Allen, as against Taruffo, that mainstream theory and understanding of adversarial adjudication is premised on the importance of accuracy and not simply on the resolution of conflict by the use of a game or ritual. I agree with Taruffo, as against Allen, that probabilities are central to understanding the proof of litigated events. And I disagree with both Allen and Taruffo in their analyses of the kinds of probability and how they relate to adjudication; in particular, I think it is a mistake to identify the axioms of mathematical probability with domains of application permitting quantified statistical data or insisting on the calculation of posterior probabilities using Bayes’s Rule. Epistemic probabilities, which should conform to those axioms, require neither. A detailed exposition can be found elsewhere. See generally Nance, supra note 1, and especially §2.2.2. 60 For example, suppose a witness identifies herself as Miranda Schmidt and testifies that she was standing near the scene of the murder and saw the defendant running away. The evidence here is not that the defendant was seen running from the scene of the murder, nor is it that Miranda Schmidt claims to have seen him running from the scene. Instead, this evidence is that someone claiming to be Miranda Schmidt testified under oath that she saw the defendant running from the scene (together with a variety of suitably expressed observations of the witness’s demeanor while so testifying). 61 See, e.g., Alvin Plantinga, Warrant and Proper Function 89–101 (1993). For direct perceptions, it is not clear that the pragmatic encroachment discussed in Sect. 5 constitutes a serious issue.

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where the subscript indicates that the probability measure has changed from its initial measure to a final, unconditional measure subject to the condition that PE (C) = P(C|E). For the law’s practical purposes, then, it is reasonable to specify a positive verdict, a verdict that the claim is to be taken as true, when the fact-finder has knowledge of E and a fully justified belief that P(C|E) > P*. Of course, there is a huge inferential gap between E and having a fully justified belief about P(C|E). And there is much to be learned from the epistemology of testimony about how to bridge this gap.62 Beyond that connection, if one takes an institutional perspective, it is possible to articulate a theory of adjudicative fact-finding that targets knowledge of the disputed claim as well, at least if one does not have a theory of such knowledge that is too restrictive. I present a tentative effort in that direction. To do so, I begin by stating what Jason Stanley describes as a “first order” probabilistic theory of knowledge. For each person x, each proposition p, each world w, and each time t, x knows that p at t in w if and only if: (1) p is true at w; (2) not-p is not a serious epistemic possibility for x at w and t; (3) if p is a serious practical question for x at t, then not-p has a sufficiently low epistemic probability, given x’s total evidence; and (4) x believes at t that p on the basis of non-inferential evidence, or believes that p on the basis of competent inference from propositions that are known by x at t.63 There is a lot in this account. Only condition (1) is necessarily an “external” condition; conditions (2)–(4) concern x’s considered judgments.64 No correction is made for Gettierized beliefs. I will not address each part of this account in detail, but we can safely assume that, taking p to be the ultimately disputed fact(s) in an adjudication (what is called “C” above), p is inevitably a “serious practical question” for the decision-maker, which imposes some upper limit on the probability of not-p per condition (3). As noted above, if the fact-finder infers p from its knowledge of the evidence presented, then condition (4) can be satisfied, although we must construe “belief” in condition (4) to as to avoid the institutional problems noted in the previous section. This would seem most plausibly translated as requiring competent inference to the probabilistic judgment required in (3) or (what is presumably the same thing) competent inference to the categorical belief that probabilistic condition (3) is satisfied. The trickiest concepts are, therefore, “serious epistemic possibility” in condition (2) and “sufficiently low epistemic probability” in condition (3). 62 For an insightful contribution about the epistemic considerations involved in bridging this gap, see Michael S. Pardo, “Testimony”, 82 Tulane L. Rev. 1 (2007). 63 Stanley, See supra note 49, at 89–90 (replacing Stanley’s “-p” with “not-p” and adding punctuation). 64 I take it that one reason for Stanley’s characterization of this as “first order” is that it makes no conspicuous attempt to deal with the Gettier problem. See id. at 89 (noting that “all first-order theories of knowledge are problematic”).

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Taking the latter first, Stanley introduces the interest-relativity of this account of knowledge by specifying that “what is sufficiently low [for condition (3)] is determined by the costs of being wrong.”65 But notice that, if p is a serious practical question, then not-p is a serious practical question as well, so an assertion that not-p requires a sufficiently low epistemic probability of p, itself determined by the costs of being wrong (in asserting not-p). In decision-theoretic terms, one must consider both “false positives” and “false negatives”. As Stanley acknowledges, that is essentially equivalent to a condition that would require that the expected loss from a negative decision, based on the belief that not-p, must be greater than the expected loss from a positive decision, based on the belief that p.66 And that means that familiar decisiontheory can be employed to give us the value of the critical probability, P*, such that, as far as condition (3) is concerned, there is knowledge that C is true just when PE(C) > P*, and there is knowledge that C is false just when PE(C) < P*, leaving a relatively narrow scope for operation of a default rule, i.e., when PE(C) = P*.67 On first impression, this would seem to allow us to speak in terms of knowledge as the result of a verdict based on the familiar decision-theoretic criterion, provided of course that the verdict, whether positive or negative, is true—condition (1)— which, again, is practically irrelevant as a criterion from the decision-maker’s point of view. But what are we to make of the requirement in condition (2)? It would entail that a knowledge affirming verdict may not be entered for the claimant if not-p is a “serious epistemic possibility”. Stanley has very little to say about the content of this requirement on knowledge.68 And he does little to motivate it by indicating what intuitions about knowledge claims it is intended to explain or replicate. In any event, taking it at face value, consider what Stanley’s condition (2) would mean for adjudication if a verdict required the fact-finder’s knowledge of the truth or falsity of the claim. Under conventional legal doctrine, any claim the negation of which is not a serious epistemic possibility should not reach verdict at all; the factfinder could not reasonably find for the defendant, so it should be preemptively determined—by summary judgment, directed verdict, or nonsuit—in favor of the

65 Id.

at 92.

66 Elsewhere,

Stanley explains his conception as involving “warranted expected utility”: If whether or not a proposition is true has no effect (or only minimal effect) on the warranted expected utilities of the actions at one’s disposal, then it is not a serious practical question whether or not that proposition is true. Id. at 94. 67 For an explication of the decision-theory result, see Nance, supra note 1, at 21–31. A simple version, corresponding to Stanley’s emphasis on error costs, yields: P* =1/[1+(D(−)/D(+))] where D(−) is the magnitude of the utility loss attributable to a false negative decision, and D(+) is the magnitude of the utility loss attributable to a false positive decision. Id. at 23. 68 His explanation of it is as follows: I take there to be a vague though relatively situation-invariant level of objective or epistemic probability that is relevant for determining serious epistemic possibility. For example, propositions that have an objective (or epistemic) probability of 50% or over, given a subject’s total evidence, certainly count as meeting this level, and so are serious epistemic possibilities. I am not sure what more needs to be said about this vague but situation-invariant threshold level of probability. Stanley, See supra note 49, at 91.

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claimant.69 The converse is true for a claim that itself is not a serious epistemic possibility; it should be preemptively determined in favor of the defendant. Thus, the only non-criminal70 cases that should go to verdict are those for which both the claim and its negation are serious epistemic possibilities. If, therefore, we include such a strict requirement on knowledge, verdicts in tried civil cases should never involve ascriptions of knowledge. Things are worse yet if we agree with Stanley that “it is immensely plausible to take knowledge to be constitutively connected to action, in the sense that one should act only on what one knows.”71 If neither the claim nor its negation can be known by the fact-finder in cases that go to verdict, then the fact-finder cannot “act”. What then is the fact-finder to do? It is required to enter a verdict, one way or the other. Should it invoke the default principle to render a judgment for the defense in all cases that survive preemptive decision by the court?72 That would render deliberation pointless. Something is obviously wrong here, if this is to work as an explanation of the epistemics of adjudication. There are various ways to try to finesse the difficulty. The most obvious begins by recognizing that either the foregoing account of knowledge is imprecise or too stringent in regard to condition (2) or else adjudicative verdicts simply do not require the fact-finder’s knowledge of either the claim or its negation. The latter answer may well be the better one. It is not unreasonable to think that the choice between endorsing the claim or its negation must be made in a different way, such as determining whether the epistemic probability of the claim exceeds a threshold [viz., PE (C) > P*], whether that involves the fact-finder’s knowledge (of the ultimate facts) or not.73 Nevertheless, my purpose here is to articulate a plausible firstorder account of knowledge that would permit one to describe verdicts as asserting interest-relative knowledge of the such facts. If that is workable at all, it will involve modifying Stanley’s condition (2). To see how it can be modified to suit this task, we must first consider the functions that it serves in his theory. From his only application of the requirement, it appears to be used solely to preclude knowledge claims in situations where the question— whether or not p—is not a serious practical question. In such situations, condition (3) 69 See 2 McCormick on Evidence, supra note 36, §338. In the United States, there is one exception: because of the constitutional right to a jury trial, a criminal prosecution may not be summarily determined (whether prior to or contrary to the jury verdict) against the defendant—see United States v. Martin Linen Supply, 430 U.S. 564, 572–73 (1977)—which means that, under condition (2), a criminal verdict would be possible even if innocence is not a serious epistemic possibility. 70 See supra note 69. 71 Stanley, See supra note 49, at 9. 72 Cf . Ho, supra note 1, at 124–43 (justifying judgment by default for defense in cases where neither the claim nor its negation can be categorically believed). Compare Nance, supra note 1, at 281 (“[I]t is difficult to see how the absence of a categorical belief that the claim is either true or false provides a reason to decide the case in a way that is functionally equivalent to a decision on the categorical belief that the claim is false, effectively giving preference to the interests of the defendant”). 73 After all, if the fact-finder infers that P (C) > P* from evidentiary (foundational) facts that are E known, as described in the text earlier, and the court acts on that conclusion, then it would still be the case that the court is “acting on what is known” in the sense that it acts “on what is reasonably inferred from what the fact-finder knows”.

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is silent, and condition (2) precludes knowledge when not-p is a serious epistemic possibility.74 One might call these situations of purely theoretical inquiry or idle speculation. But adjudicated claims inevitably involve serious practical questions, and in such contexts, it is not clear from Stanley’s presentation what useful function condition (2) is intended to serve, if any. One possibility is that it is intended to impose an upper bound on the probability of not-p, for example, that it cannot be higher than 0.5.75 Without that particular upper bound on the probability of not-p, one would be entitled under his theory to assert knowledge in situations where p is less probable than not-p. For example, if the costs of a false-negative verdict are three times worse than the costs of a false-positive verdict, an application of the simple decision-theoretic model yields a P* equal to 0.25,76 so that condition (3) would be satisfied in a litigated case if PE (C) were, say, 0.4, so that P* < PE (C) < PE (not-C). An upper bound of 0.5 on the probability of PE (not-C) would preclude knowledge claims in such situations. That is both a reasonable limitation on categorical claims of knowledge and a fair limitation on positive judgments on legal claims.77 A second potential function of condition (2) is more subtle, and may account for the fact that it is not simply stated as the probability of p must exceed 0.5. That condition can be understood as an attempt to get at the following idea. Even if the epistemic probability of p is high enough to satisfy condition (3), so that expected utility is maximized by a positive verdict rather than a negative verdict (and even if the epistemic probability of p exceeds an appropriate lower bound, like 0.5), that does not insure that the expected gains from making a decision on the present state of the evidence have been maximized. This can be done only by insuring that the total evidence considered is as complete as is practically possible.78 Stanley’s account does not include any other possible analogue to the first of the three epistemic components of trials articulated above.79 Perhaps this is because he assumed that the total evidence available to the epistemic agent is the product of an optimal evidence search. Or, perhaps he simply did not recognize the problem. In either event, if we understand a “serious epistemic possibility” as referring to any possibility that might be reduced by the accretion of reasonably available and relevant evidence, then condition (2) can be reshaped to reflect this omission. It will then reflect the other way in which practical interests impinge on the assertion of knowledge.80 74 See

Stanley, supra note 49, at 96. supra note 68. 76 See supra note 67. 77 See Nance, supra note 1, at 33–34. 78 See Nance, supra note 1, at 111–37 (discussing this as the practical optimization of the Keynesian weight of the evidence). 79 See supra, text accompanying notes 46 and 47. 80 Such a requirement is not “situation-invariant” as Stanley supposed for presentation purposes. See supra note 67. But it is compatible with Stanley’s general argument, as he explicitly allows that “if knowledge is an interest-relative notion, it is likely that other epistemic notions that are intimately intertwined with it, such as evidence and justification, will also be similarly interestrelative.” Stanley, See supra note 49, at 88–89. Indeed, at one point, Stanley argues that our intuitions about knowledge require attributing information to an agent if the agent ought to have acquired that 75 See

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Putting this all together, we may articulate a modified version of Stanley’s firstorder theory of knowledge. It proposes that the following conditions must be met in order for the fact-finder to render a verdict for the claimant that represents a justified assertion of institutional knowledge: for the ultimate factual claim, C, at the time of verdict, t, (in this world, w), (1) C is true; (2) there is no cost-justified, admissible evidence of relevance to C that has not been obtained and considered by the fact-finder; (3) the epistemic probability of C, given the fact-finder’s total evidence, is high enough that a positive verdict maximizes expected utility and, in any event, is greater than 0.5; and (4) the fact-finder determines the epistemic probability for C by competent inference from evidential propositions that are known by the fact-finder at t. In referring to an “institutional” perspective, I mean to distinguish between the fact-finder’s knowledge and what might be called the institutional or corporate knowledge of the legal system. If the foregoing conditions are met, one might plausibly speak of such institutional, interest-relative knowledge, but it will not necessarily coincide with the fact-finder’s knowledge. In particular, condition (2) no longer refers to any epistemic assessment by the fact-finder, for whether or not the evidence is optimally developed is beyond the domain of the fact-finder’s responsibility and often beyond the scope of what fact-finders learn at trial. In addition, the determination of how high the probability of C must be in condition (3) is primarily a public function, the standard being set by law-making authority, and the assessed probability, PE (C), is an epistemic probability, as to which the fact-finder’s subjective probability assessments are indicators but not infallible ones: generally, they may be overridden by the court when unreasonable. For these reasons, the fact-finder may be unable to declare its knowledge, either that C is true or that it is false, and if it is able to make such an assessment, it may be that C is false even though the verdict that the law calls on the fact-finder to provide is that C is true. But a rational positive verdict may be given nonetheless, and the court may properly act thereon as a form of institutional knowledge.81

information. Id. at 97. Since “ought” implies “can”, this imports a cost-justified inquiry requirement into knowledge. 81 Note that the default rule favoring the party who does not bear the burden of persuasion, usually the claimant, might have a slightly broader scope of operation under this theory than would one based entirely on a (pure) decision-theoretic model. The example in the text, where P* = 0.25 < PE (C) = 0.4 < PE (not-C) = 0.6, presents a test case. By the pure decision-theoretic model this case should go for the claimant, but under the theory stated in the text there is neither institutional knowledge that C nor institutional knowledge that not-C, and the case must be decided by default. Whether this expansive default principle applies depends on whether the arguments that place a 0. 5 floor on the epistemic probability of not-C, as a condition on a positive verdict, apply symmetrically to place a 0.5 floor on the epistemic probability of C for a negative verdict. There are reasons to think otherwise. See Nance, supra note 1, at 33–34.

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7 Conclusion There is nothing in the contemplation of the examples identified by Professor Pardo to seriously challenge the conventional view that verdict accuracy is the dominant, indeed lexically superior, epistemic goal of the fact-finder in rendering a verdict. However, neither the attainment of that goal nor the critical assessment of the factfinder’s performance is practically discernible apart from epistemic justification. Full justification (as that idea is explained above) is the necessary and sufficient criterion for epistemic validity of the verdict. This does not mean, however, that a tribunal should always ignore the truth when it conflicts with what is epistemically justified. In particular, because new evidence can come to light, the truth (which in practice means the tribunal’s subsequent fully justified belief about the truth) can conflict with what previously was fully justified. At that point, a different verdict may be warranted, though invalid verdicts may survive intact because of the distinct principle of finality. In some cases, including those remarkable cases that are revealed by new evidence to have been Gettierized at the time of decision, this conflict is happily avoided. Nevertheless, knowledge plays an important part in the foundations of probabilistic inference involved in adjudication. Fact-finders know what is presented to them. Whether they can infer knowledge of the ultimate facts constituting the disputed claim (instantiating a cause of action or defense) is another matter. A rough, interestrelative theory of knowledge familiar to epistemologists can be adapted to yield an account that is compatible with the decision-theoretic model and that determines how probable a claim must be for the court to assert institutional knowledge of the truth or falsity thereof. Such a theory, however, does not require that fact-finders limit their positive or negative verdicts to what they (personally) know, and so it avoids a lavish scope for the operation of a default rule that would unfairly favor defendants. It also avoids the perhaps insuperable difficulties of trying to avoid any form of epistemic luck. It does, however, highlight the responsibility of courts and law-making authorities to assure that the evidence on which a verdict is rendered is properly developed, and it allows us to focus attention more clearly on the conditions constituting justification of belief in the adjudicative setting.

Facts, Evidence and Truth in Judicial Decisions Michele Taruffo

1 Facts A first point that deserves to be stressed here is that facts are the central core and perhaps the most important problem in any judicial decision. Although many legal philosophers and scholars in the domain of procedural law usually pay a greater attention to the ways how legal rules are selected, interpreted and applied by judges, the basic importance of facts cannot and should not be underestimated. On the one hand, facts are the real origin of the controversy that the judge has to solve: so to say, every judicial case begins with facts, and its nature and contents are determined by facts. In a word: no facts, no case, and then no judicial decision. Moreover, often a “hard case” is hard because the facts are hard, e.g. because they are difficult to define and to interpret, and then difficult to establish. On the other hand, it has to be considered that facts actually determine also the legal dimension of the judicial decision. It is looking at the facts of the case that the judge chooses the rule of law that could be used as the legal standard for such a decision, but—again and very important—the facts determine the interpretation of the legal provision, since in a judicial context a rule is not interpreted per se, but just in order to be applied to the facts of the case. Of course the connection between a fact and a rule during the search of a correct final decision may be very complex. Such a search may include abductive inferences, reasonings by trial and error, a dialectic comparison of several hypotheses, in a dynamic reasoning connecting various descriptions of the facts and various possible rules and possible interpretations of such rules. This dynamic reasoning ends up when the decision maker finds a fit, a correspondence between a version of the facts and M. Taruffo (B) School of Law, University of Pavia, Pavia, Italy Ca “Tedra de Cultura Juri” Dica, Girona, Spain Accademia Dei Lincei, Roma, Italy © China University of Political Science and Law Press 2021 B. Zhang et al. (eds.), Facts and Evidence, https://doi.org/10.1007/978-981-15-9639-1_10

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an interpretation of a legal provision. At this final point the structure of the decision isdefined. We then know which are the legally relevant facts, that is: the true facts in issue that are selected and defined as the factual premises for the application of that norm. On the other hand, we also know which is the applicable rule (and which is its correct interpretation). The interpreted rule functions first of all as a standard for the selection of the relevant facts within the unlimited variety of the empirical facts and of their possible descriptions. Moreover, when the legally relevant facts are determined, another important factual dimension of the case emerges. It is the set of the logically relevant facts, that is all the things, events, circumstances and persons that deserve to be taken into account because they may be interpreted as premises of logical inferences leading to some significant conclusion about a legally relevant fact. However, it is worth stressing that facts do not happen inside the judicial proceeding, because of the obvious reason that they already occurred before and out of the proceeding. Then when we talk of “facts in issue” we are not speaking of facts as empirical and material events: we are referring only to descriptive statements concerning those facts, i.e.—as it is commonly said—to stories or narratives about those facts. In a sense, the judicial process may be interpreted as a context of factual statements, more or less complex depending on the case, made by the parties but also by the witnesses and, at the end, by the judge.

2 Judicial Truths Therefore, when one speaks of truth in the judicial process or of the judicial decision about facts, he can only refer to the statements which describe the facts in issue. In its empirical and—so to say—historical dimension a fact in itself is neither true or false: it simply occurred or did not occur. What may be true or false is only a story or a narrative saying that this fact occurred. Going beyond these obvious remarks, it is important to say that the problem of truth in the context of the judicial process is extremely complex and requires to be discussed at least to some extent. On the one hand, there are good reasons to say that the truth about the facts in issue (that is: the truth of some descriptive narrative of such facts) is a necessary condition for the correctness and-better-for the justice of the final decision. In a word: a judicial decision is just if and only if it is based upon a true description of the facts in issue. This is what is meant when the standard doctrine says that the decision must be factually accurate, or that a decision cannot be just if it is grounded upon wrong facts, and so forth. This point may be rather easily justified at a theoretical level. The standard theory concerning the basic structure of legal rules says that any legal norm has a conditional structure, being composed by the combination of a condition (or a protasis), that is: a statement that defines a type of fact in general terms (such as “all the X”), and a legal consequence (such as “then Y”) of such a kind of facts. Then this legal consequence

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applies when the condition is satisfied in the specific case by the occurrence of a specific event (logically a token) corresponding to the type X. Then such a structure is: “if (and only if) a fact of the type X occurred, then the legal consequence Y applies”. Therefore it is clear that in any specific case the rule may be applied only when it is true that the fact in issue belongs to the general type of facts defined by the rule itself, and—moreover—when the description of such a fact is true. If not, that is: if a fact “X” did not occur because a fact “Z” occurred, the legal consequence “Y” cannot be applied. If “X” did not occur but “Y” is applied, such a decision would be incorrect and injust. In other terms, stressing it again, the truth of a narrative of the relevant facts in issue is a necessary condition for the justice of the final decision. An important consequence of this way of thinking deals with the definition of the purposes of the judicial process. If, as it is generally accepted, the basic aim of the judicial process is to arrive at a just decision of the case, then it should be admitted that one of the basic functions of such a process is just to search the truth about the facts in issue, and that one of its essential purposes is the discovery of such a truth. So far so good, one could say, but unfortunately this theory is not generally shared, and at the present state of the art several different approaches are proposed. Borrowing the term from Alvin Goldman we may speak of veriphobics, or of deniers, to mean all those who reject the same idea of “truth” in general, or at least in judicial decisions. This group of people is very large, but some examples may be useful to understand this point. On the one side there are the philosophical and theoretical veriphobics, i.e. those who adopt one of the various philosophical perspectives according to which speaking of truth would be impossible or it would be at least a nonsense. This is one of the biggest and toughest quarrels inside the general philosophy at least in the past decades, and therefore it cannot be discussed here. Suffice it to say that if one shares this view he should also conclude that also talking of judicial truth is a nonsense. In such a case any discussion of the problem could end at this point. On the other side there is a rich bunch of legal veriphobics. Some of them may be qualified as ideological veriphobics because their denial of the possibility of judicial truth is based mainly upon some ideologies of the judicial process. They say that the process is not aimed at reaching just decisions, since it is no more than a ritual—also with theatrical features—that is celebrated in the courts just to show to the public that “justice is done” (whatever it means). In a similar and basically converging perspective there is the standard theory of the American adversarial system of procedure. Such a theory says the search of truth about the facts in issue is not a purpose of the adversarial proceeding and then it would be a useless waste of time and money. The reason is that according to the adversarial ideology a process is simply a game, a competition that is aimed only to come to a conclusion of the conflict between the parties. Since what is needed is only to find out who is the winner and who is the looser, and nothing else, the specific content of the solution of the conflict is not interesting in itself, and therefore it does not matter whether or not the truth of the facts in issue has been established. Another interesting group of legal veriphobics includes people in the area of legal theory sharing an idea of the judicial decision that simply rejects the possibility of a

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search of truth about the facts in issue. An interesting version of this approach is that of the narrativists: they take into account the various stories that in the course of the proceeding are told about the facts in issue, and say that in the end the judge must base his decision upon a “good” story, and specially upon the “relatively best” story that he heard. Here the problem is that a good story may not be true, or even may not pretend to be true, as it happens for instance with novels. Actually a story may be “narratively good” when it is coherent, when it corresponds to common sense, when it sounds familiar, and so forth, but all this has nothing to do with its being true or false. However, justice is not equivalent to a literary competition in which the best narrative deserves to win just and only because it is narratively good. On the opposite, a bad narrative should be chosen if it gives a truthful description of the facts in issue. In such a case it will be up to the judge to determine the legal consequences of a bad narrative. The same remarks may be made about another version of this theory, according to which the judge should make a choice among the several descriptions of the facts that are made during the proceeding, by preferring the version that seems “relatively plausible” in comparison with the other versions. But “relatively plausible” does not mean “true”, since it means just that a story corresponds to the common sense, and then, once again, we are in the domain of the theoretical veriphoby. Just in order to look at another section of the veriphobic lanscape, it is worth considering a very big group that may be defined as that of the practical or realist deniers. They do not take part in philosophical or ideological disputes, and limit themselves to what they believe to be the bare reality of the administration of justice. Essentially they think that, even admitting in theory that judicial truth could be discovered, it does not happen because of practical obstacles preventing the search of truth, such as rules excluding relevant evidence, limits in the presentation of evidence, lack of time and money, need to end up the proceeding in any way, and so forth. At this point the landscape of veriphoby is not complete, but some criticalremarks may be made about the most important areas of this landscape. On the one hand, the philosophical deniers rely upon a variety of ontological and metaphysical assumptions that cannot be discussed here but that cannot be necessarily shared. Therefore, all the anti-truth philosophical perspectives may be set aside without any doubt. Suffice it to say that in the last decades, mainly since the influence of the postmodernist thought began to weaken and perhaps to disappear, there is a sort of “return to the truth” both in the domains of epistemology and general philosophy, with important scholars such as Bernard Williams and Michael Lynch. As to the legal veriphobics, in may be said that sometimes they underline some real aspects of the judicial process and decision, but they fail when they pretend to offer unique, total and exclusive descriptions of such things. For instance, it is true that in the trial, and mainly in the American adversary proceeding, there is a sort of fight and competition between the parties, but it does not imply that the only purpose is to find out whois the winner and who is the looser, and nothing else. As some American scholars say, even in the US the search of truth may be a purpose of

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judicial proceedings, considering that a just decision may be the best solution of the struggle. Again, it is true that sometimes the trial has some ritual and theatrical features, but it happens mainly in criminal trials—unfrequently in civil proceedings—and in any case would be incorrect to reduce the complex reality of the judicial process to a rite and nothing else. Moreover, it is true—as the practical veriphobics say—that in many cases there are evidentiary rules excluding relevant evidence, and other rules limiting or even preventing the search of truth, and it is also true that proceedings must have time limits in the name of efficiency, but all this does not mean that the truth about the facts in issue can never be established. Such rules are very different in the various procedural systems, and in some cases they are not real obstacles to the search of truth. The extent to which this search is allowed, or even favored, depends on the specific regulations of civil and criminal procedures. At any rate, one may remember the dictum of Jeremy Bentham according to which the ideal law of evidence should include only one basic rule saying “All the relevant evidence must be admitted”. As to the narrativist deniers it can be said that they are right insofar as they underline the narrative dimension of the judicial process, but this does not justify their conclusion that the final decision should be based upon the narratively best (or relatively plausible) description of the facts in issue. This theory assumes a not justified premise, that is that the decision should not or could not be based upon a truthful description of the facts. On the contrary, the narrative dimension of the judicial process is perfectly coherent with the conclusion that the decision should be grounded upon a true narrative of the facts. Therefore it seems that, looking at the current doctrine about the matter, one does not find any valid argument to reject the theory that was presented above, according to which the judicial process is aimed at discovering the truth about the facts in issue and that truth is a necessary—and possible—condition for a just final decision.

3 Which Truth Any talk about truth evokes one of the most troubling concepts that may be found in the history as well as in modern philosophy, but obviously an analysis of such a concept cannot be developed here. Moreover, such an analysis is not needed in the present context. Actually when we speak of truth in judicial decisions we are not talking of Truth (with or without a capital T) as ametaphysical entity, the existence of which is denied by philosophical veriphobics. Rather, we are talking of truth as a predicate of descriptive factual statements, that may be true or false, dealing with the facts in issue of the case. Even within this limited perspective, however, some remarks deserve to be made and some relevant misunderstanding should be avoided.

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One of these misunderstanding arises when, as it often happens, people think of truth in absolute terms. Here the problem is that human knowledge (leaving aside religious experiences) never reaches absolute truths about anything: science is said to be fallible, and the everyday knowledge of average people is much more fallible. Therefore, in the judicial process there is no matter of absolute truth about the facts in issue. At most it may be said that such a truth—which never is achieved—is like the North, that is: a sort of ideal point of reference that is useful to orient the activities and the reasonings of the parties and of the judge. This problem is relevant, however, because many proceduralists take the position that may be called of the Disappointed Absolutist (a strict relative of Twining’s Disappointed Perfectionist and of Popper’s Disappointed Verificationist), that is: they first assume that truth cannot but being absolute; then they look at the judicial process and see that no absolute truth can be discovered, and then (with a coherent but conceptually mistaken inference) they conclude that a judicial truth cannot exist. Actually this is the clearly erroneous argument used by many legal veriphobics. Also many practical veriphobics share this argument, since in their view the evidentiary rules prevent the discovery of any absolute truth and then of any judicial truth. Another misunderstanding that is rather common among procedural scholars is the distinction between a formal or merely procedural truth, which could be established in the judicial process, and a materialor real truth that is discovered only outside the process. Here the mistake id double: on the one hand, the truth that can be discovered inside the process has no special nature and may be established with normal means such as documents, testimonies, expert witnesses and any kind of scientific investigation; on the other hand, even outside the courts there are no absolute truths, and facts are established just with the same means of knowledge. When the problem of absolute truth is duly set aside, then one may properly speak—inside and outside the judicial process—of a relative truth. Here again, however, another remark is needed. There is actually, in some areas of filosophy, a concept of subjective relativity of truth, according to which each single person has, about anything or any event, her individual truth based upon her personal culture, values, perceptions, prejudices, and so on, with the paradoxical consequence that such personal truths cannot be compared one with the other, and then nobody can be mistaken and the error does not exist. This is not the concept of relative truth that is meaningful in judicial contexts. Here the truth that can be achieved is objectively relative, since it depends essentially on the information that is available to the trier of fact. As it is said in the domain of epistemology, the reliability of any statement is relative to the amount and to the quality of the information available. The corresponding procedural principle is that the truth that can be achieved about the facts in issue is relative to the amount and to the quality of the evidence that has been presented and acquired. Therefore, an important consequence is that for a factual statement “to be true” actually means “to be supported by the evidence”, that is: “to be proved”. Such a concept of judicial truth has several interesting consequences, but before considering them another general problem has to be considered.

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This problem deals—so to say—with the kind of truth that may be put at the basis of a judicial decision, and it arises once again in a narrativist perspective. It is sometimes said, actually, that judicial truth depends on the coherence of the statements concerning the facts in issue. Without discussing here the general concept of coherence “as” truth of a statement, it may be said again that the narrative coherence of a factual description never has anything to say about the correspondence of the description with reality of the facts that are described. Here we have a reference to a different concept of truth that seems to fit very well in the judicial context. The idea of truth as correspondence of a factual statement with the reality of the fact that is described in it goes back at least to Aristotle and is present in the whole history of western philosophy. Then there is no need to discuss it at length. However, an important aspects is that such a concept assumes a basic philosophical premise, that is: the belief in the existence of the reality of the world outside the subject stating anything about her knowledge of the world. Such a realistic assumption is not obvious, and in the current philosophical landscape there are several anti-realistic theories based upon a broad variety of subjectivisms. Anyway, in that landscape there are now new realistic approaches avoiding the difficulties of the old-style naif realism and proposing sophisticated theories about the existence of an “external” reality. Such approaches have a special importance because, in connection with the prevailing trends in the current epistemology, they admit the possibility of an objective and rationally justified knowledge of this external reality, or at least of some parts of it. Once again, the most interesting developments in the philosophical and epistemological domains offer conceptual tools that allow a reliable analysis of the problems concerning judicial truth. Now it can be defined as an objective relative judgment about the correspondence of the factual descriptions with the reality of the facts in issue.

4 Truth and Probability If the truth that can be achieved is relative to the evidence at hand, then it has to be acknowledged that different situations may occur, depending on the amount and the quality of such evidence. This relative feature implies that truth may be supported in different ways, since evidence may be different from case to case. It also means that the truth of factual statements is not a matter of white or black, of yes or no, but is a matter of degrees or—putting it in different words—of levels of approximation to the North, although, as we already know, it cannot be achieved. This basic character of judicial truth is often expressed in terms of probability, i.e. by saying that a relative judicial truth is a probable truth. This definition may be accepted in its general terms, but it raises a very relevant problem. The problem derives from the fact that the words “probability” and “probable” have at least to different meanings: a quantitative or statistical meaning and a logical or inferential meaning, and such two meanings refer to completely different concepts of probability.

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Such a situation is relevant here because the quantitative concept of probability is sometimes proposed as a proper interpretation of the degree of support that the evidence provides to the statements concerning the facts in issue. Actually a rather influent doctrine says that applying the so-called “Bayes’ theorem” (that is a basic aspect of the theory of probability) it is possible to determine a numerical quantification, in terms of X%, of the degree of support of such statements. In such a way, and often by means of complex and sophisticated calculations, it is said that the statistical probability of the truth about the facts in issue can be numerically determined. This approach is very interesting, but for several reasons it cannot be considered as a fair interpretation of what happens in the judicial context. The main reason depends on the very nature of the Bayes’ theorem. It is a mathematical formula that permits to calculate, given a priori probabilities of the possible causes of an event, the numerical value of the resulting a posteriori probability of the probable cause. While there are no doubts about the mathematical validity of the theorem, the problem is that it cannot be applied in almost all the judicial proceedings. The reason is that in such proceedings almost never there are quantitative data that could be used as probabilities a priori, that is as the essential basis for the application of the theorem. Therefore, the concept of quantitative probability is simply meaningless and useless in the analysis of most judicial decisions. For this purpose, actually, the correct reference is to the concept of logical probability. It means that any factual statement should be logically justified by means of inferences based upon the items of evidence that are available in each case, in order to achieve a conclusion about the truth of that statement. Here the conceptual tools are not numerical probabilities; rather, such tools are those offered by the models of propositional logic. The justification of a factual statement may be more or less complex depending on the amount and the quality of the evidence, but it always has an inferential structure. The set of inferences connecting the relevant evidence with the factual statement determines and explains the degree of logical support that the evidence provides for this statement. In a word, probable truth based upon the evidence means “logically justified truth on the basis of evidence”.

5 Evidence and Proof Taking into account the conceptual landscape described so far, it is now possible to say something about the nature and a function of evidence in the context of judicial proceedings. As to the nature of evidence, the main point is that everything (things, events, statements, documents, persons, and so forth) may be considered as an item of evidence, provided it may be used as a source of information leading to a conclusion about the truth or falsehood of a statement describing a fact in issue. That is: anything is an item of evidence when it may be taken as the premise of an inference or a set of inferences justifying such a conclusion. Then the most important feature of evidence is its relevancy, i.e. its usefulness as a source of information and support about the

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facts in issue. So to say, anything is evidence only if it is relevant; if not, it is not evidence, since nothing has any evidentiary value in itself, independently of any logic connection with such facts. As to the function of evidence, it is sometimes said that the presentation of evidence in court is aimed at persuading the trier of fact, that is: at creating in her mind a belief about the existence or nonexistence of the facts in issue. The evidence is considered as a rhetorical tool used just to make the trier of fact believe anything. There is no need here to discuss the distinction between rhetorics and logic that began in the Greek philosophy and has been disputed until now in the whole history of western philosophy. Actually the idea of the evidence as a persuasive means is not completely mistaken: it probably corresponds to the way how lawyers use the evidence incourt, that is with the purpose of convincing the trier of fact to decide in favor of their client. But it says nothing about what the evidence is for the judge. The trier of fact does not have to persuade anybody about anything: as it was said above, the main purpose of the judicial process—and therefore the main duty of the judge—is to end up with a final just decision, and it means that the truth about the facts has to be established. Then it may be said that the basic function of evidence is epistemic, not persuasive. It means that evidence is useful as a premise of knowledge, that is as a source providing relevant information that allows the judge to find out a justified decision about the fact in issue. Finally, something has to be said—although synthetically—about the outcome of the epistemic activity that is based upon the analysis of the evidence. Here the main problem is that—as above said—the support that this analysis can provide to the conclusion about the facts is a matter of degree. But such a degree may be high or low depending, as always, on the amount and the nature of the evidence at hand. However, when such a support is high enough we say that the purpose, that is: the proof of the facts has been achieved, but this is not possible when the evidence does not provide a “sufficient” degree of logical justification of the statements about the facts in issue. In such a case, the conclusion is that there is no proof of such facts. Then the main problem is to determine a threshold upon which the logical justification of the factual statements based upon the evidence is sufficient, and below which—on the contrary—it is not sufficient. In its proper terms this is the problem of the so-called standard of proof. According to a common definition, a standard of proof determines the degree of support that a factual statement should have by the evidence, in order to be considered as duly proved. So to say, there is the proof of the fact when the standard is satisfied. In such a case, there is a good logical reason to consider that statement as true. Such a problem is extremely complex and cannot be discussed here as it would deserve. Suffice it to say that in some legal systems there are established standards of proof (like the standard of the proof beyond any reasonable doubt or that of the preponderance of evidence in the US), while in many other systems the choice about the necessary degree of proof is left to a discretionary evaluation made case by case by the judge. On the other hand, different standards of proof may be established according with a variety of factors, such as the importance of the matter—civil or

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criminal, big or small—at stake, and also in connection with the different stages of the proceeding and the type of judgment that in its various moments may be made. The final conclusion is, therefore, that also the concept of proof has a complex and variable nature, and it should be determined considering a number of different factors. In any case, however, it should be acknowledged that the rational and logically justified proof concerning the truth of the facts in issue is a fundamental—and possible—purpose of an administration of justice aimed at solving conflicts by means of just decisions.

Fact, “Mirror of Evidence” and Fact-Finding Baosheng Zhang

According to the traditional view, “evidence is the logic starting point of evidence law.”1 However, a logic starting point should include all gemmules of the contradictions of evidence law, of which the history and logic constitute the basic content. Therefore, “fact” should be the logic starting point of evidence law. In general, litigation is induced by facts in dispute, so trials usually take facts as basis. Evidence is just the marks or information left after what happened. Fact-finding is a process of empirical inference by employing evidence. Presenting evidence in trial aims at offering evidentiary information to justify or falsify some factual claims; Cross-examination is conducted to distinguish the true evidentiary information from the false; Authentication attempts to find the factual truth relying on credible evidentiary information. By this token, evidence law is a subject concentrating on the research of fact-finding. Therefore, the contemporary evidence law should treat “fact” seriously, and try to find out the regularity of the process of proof and fact-finding.

1 Fact “Fact” is the real existence that can be grasped by the human sense organs and minds. In English, “fact” comes from “factum”, a word of Latin origin, which means things happened. In our common life, the concept of fact is polysemic. Black’s Law Dictionary offers three definitions of fact: “(1) Something that actually exists; an aspect of reality (it is a fact that all people are mortal)… (2) An actual or alleged

1 Gao

et al. (2004, 3).

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event or circumstance, as distinguished from its legal effect, consequence, or interpretation (the jury made a finding of fact). (3) An evil deed; a crime…”2 Obviously, according to the method of definition of genus plus specific difference, existence is the genus concept of fact, and the specific difference is truth or reality. Fact has the characteristics of reality, empiricism and narratability.

1.1 The Reality of Fact Reality is the essential characteristic of fact. Fact means “the actual situation of something”,3 “things or events that have happened and the physical objects or appearance normally present, which exhibit themselves some kind of absolute truth, rather than one kind of guesswork or attitude”.4 In a word, fact is marked by “truth”, rather than “falsity”. There are not any “false facts” in the world. The reality of fact is mainly reflected in its happening in particular time and space. In the time dimension, just as Kant has said, “time is a necessary representation that underlies all intuitions. We cannot, in respect of appearances in general, remove time itself”.5 Fact must contain the element of time. Furthermore, the usages of fact involve past and present tense, without future tense. In the aspect of past tense, facts mean the existent things or things happened in the past, which we could call historical facts. In the aspect of present tense, facts refer to things that are happening. For example, I am delivering a speech. Wigmore pointed out that “A fact is any act or condition of things, assumed (for the moment) as happening or existing”.6 Therefore, facts include things that have taken place and that are happening. Things which may happen in the future are not facts, and only report some probabilities. The reality of fact is also reflected in its “accomplishment”.7 Professor Jin Yuelin thought, “we can do nothing when it involves facts. Facts cannot be changed. When we talk about changing some facts, we just mean that we wish the facts in the future would be different with the facts before us or in the past. Facts are always accomplished or happening. Facts which are happening or have been accomplished are realities like these or those… As to the ‘accomplishment’ of fact, we can just recognize and accept. Besides this, we can do nothing”.8 The accomplishment of fact equals to its historicity. Once some facts happened, whether you like it or not, they would be the irrevocable historical facts. For example, during the Great Cultural Revolution, some people attempted to change the historical fact of the junction of two armies led by Zhu De and Mao Zedong separately into an apocryphal story about 2 Black’s

Law Dictionary (2004, 669). Chinese Dictionary (2000, 1135). 4 Xue (2013, 525). 5 Kant (1933, 74–75). 6 Black’s Law Dictionary, above n.2, 628. 7 Professor Yilian Peng calls it “invariance”. See Peng (2015, 73). 8 Jin (2015, 73). 3 Modern

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the junction of two armies led by Lin Biao and Mao Zedong separately. They even painted some oil paintings about the apocryphal story and put them in the history museums. However, none of these can change the historical facts. In the process of litigation, the case facts that triers should find are some irrevocable historical facts.

1.2 The Empiricism of Fact Just as Oakeshott said, “what is independent of experience is certainly not fact.”9 Experience is such an element that makes fact different from existence. Existence refers to the objective world, the changes of which do not depend on a person’s subjective consciousness. Therefore, it is purely objective. However, fact is one kind of actual existence which is objective and independent from human consciousness, and at the same time experiential. We can grasp the experience by means of perception and mind. Case 1 Ma’s case of drug trafficking. On February 10, 2001, Ma, the accused, sold 523 grams of heroin to Liang at the price of 50,000 yuan in his house located in Wei Shan county, Yun Nan province. In the case above, the facts about Ma’s drug trafficking happened at a particular time (February 10, 2001) and place (in the house of the accused).There is a specific criminal behavior (sold 523 grams of heroin to Liang at the price of 50,000 yuan). Therefore, the facts above are empirical facts which have entered into the visual field of people and could be grasped by means of perception and mind. It is a kind of “actual knowledge”. However, the knowledge about objective existence is a kind of speculative knowledge which is knowable. “Veridical being or being-the-case must not be confused with the existence of an object”10 Only if the epistemic subjects could grasp the objects empirically, will the objects be actual. Besides the difference above, existence and fact are different in the aspect of knowledge attribute. Existence is abstract, however, fact is specific. Knowledge of existence is a kind of speculative knowledge, which does not rely on human perceptual experience. For example, “the infinity of the universe”, “the diameter of the Galaxy is about 100 thousands light-years. And the fastest artificial satellite (250 thousands km/h) will cost 4000 years to fly 1 light-year”.11 These are speculative knowledge which cannot be grasped by our senses. Supposing that there were at least 6 people who engaged in drug trafficking on that day in Wei Shan county, Yun Nan province according to statistics, and only Ma was arrested. Then, the other situations of drug trafficking are objective existence or facts? Obviously, the answer is objective existence. Since we do not know any details such as time, place, people, 9 Oakeshott

(1933, 93). (1996, 12). 11 See Journey to the Edge of the Universe, accessed September 1, 2016, http://baike.haosou.com/ doc/5422459-5660655.html. 10 Habermas

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behavior, types and price of the drugs, the other situations of drug trafficking are just objective existence which does not depend on human will. These situations are knowable, but they are not actual knowledge. The concept partition of explicit and tacit crimes can reflect the difference between fact and existence.12 For example, in England, there is data indicating that 58% of the crimes are not reported to the police. According to the statistics provided by EU, the reporting rate of sexual crimes is only 15%.13 According to 2014 China Drug Situation Report, the number of the registered drug abusers is about 2955 thousands. However, there would be more than 14,000 thousands actual drug abusers if we calculate according to the internationally accepted ratio of explicit crimes to tacit crimes which is 1:5.14 The speculative situations of drug abuse cannot be regarded as facts, but existence. Therefore, the factual things and empirical things are the same conceptually. “Fact is not a general and abstract concept, but a special and specific concept.”15 “All the facts are empirical and specific.”16

1.3 The Narratability of Fact Generally, facts should be described or expressed by means of language. Thus, fact has a linguistic feature. From the perspective of epistemic subjects, all things that subjects know could be reported. Facts are always presented to people in the form of judgments, which means that facts cannot exist barely without language and must be processed in one’s mind in the form of language or symbolic coding. It is in this sense that Wittgenstein said “the world is the totality of facts, not of things.”17 “The limits of my language mean the limits of my world… what we cannot think we cannot say either.”18 In a word, everything you know could be reported, and vice versa. If you do not know one thing, then it cannot be reported. Case 2 Let’s make an assumption: a traffic accident happened on one road in Beijing 15 min ago. If someone in this house is asked whether he or she knows the traffic accident happened on the road in Beijing 15 min ago. The answer must be “no”. If he or she 12 For example, if we find an explicit drug abuser, there must be at least 7 tacit drug abusers. See Chen (2006). 13 Xia (2007). 14 See 2014 China Drug Situation Report, accessed September 1, 2016, http://news.xinhuanet.com/ legal/2015-06/25/c_127949443.htm. 15 Long (2006, 82, 98). 16 Peng, above n.7, 6. “Generally speaking, when we talk about facts, we refer to the empirical facts.” 17 Ludwig Wittgenstein (1974, 5). 18 Ibid., 68.

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is asked whether he or she could describe the traffic accident and tell us some details such as what kind of vehicles involved in this accident (which one, truck, bus, car or motorcycle?) The answer must be “no”. Then, this accident is not a fact for us, but an existence. From the perspective of knowledge expression (speaker), language makes it possible for people to convey knowledge of facts to each other. In other words, facts are mainly reported by language. Things which cannot be reported are not facts. If you want someone to share a fact with you, you should ask him to tell you what he knows in the form of “story” or “case”. Supposing two witnesses are found in case 2, then they could describe the traffic accident to make people know it. In this sense, “all the facts are statements about the actual situations of things (some features or relationships). These statements are made by people who have perceived the facts directly”.19 From the perspective of knowledge comprehension (listener), people can learn knowledge since propositions and facts are isomorphic. Proposition or sentence is a linguistic form to express judgments. Just as Wittgenstein said, “a proposition is a picture of reality: for if I understand a proposition, I know the situation that it represents.”20 In case 2, though we does not perceive the traffic accident directly, a witness told us that a blue car and a red car collided in the accident. Thus, we could get the knowledge of the accident through testimony (the most common form of evidence).Fact-finding in court is the same in principle. Finally, it is hard to tell whether a proposition or statement is true or false. Facts must be expressed in the form of propositions. However, it is false that all the propositions could express facts. Propositions can express judgments, and judgments as a basic form of thought can reflect the content of thought. On one hand, “if such a thought is true, then the sentence that expresses it reports a fact”.21 One the other hand, if such a thought is false, the sentence that expresses it does not report a fact. Therefore, a proposition which expresses the factual judgments is true, and a proposition which expresses the false judgments is false. The value of a proposition depends on whether the content of the proposition is consistent with facts, which is the degree of consistence between thoughts or ideas and facts. It involves the probabilistic truth or plausibility. The linguistic feature of fact makes it possible that people may change or revise their statements about facts,such as exaggerating the facts, narrowing the facts or distorting the facts.

19 Peng,

above n.7, 75. Wittgenstein, above n.17, 24. 21 Jürgen Habermas, above 10, 11. 20 Ludwig

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Fig. 1 The general relationship among fact, evidence and epistemic subject

2 The “Mirror of Evidence” Doctrine22 According to the three characteristics of fact, we can find that “subjects” play an important role in the conceptional structure of fact. The cognitive processes of handling the objects present different models. Legal fact-finding is the activity conducted by subjects to seek the truth by means of the “mirror of evidence”.

2.1 Three Patterns of Subjects’ Intervention in the Relationship Between Fact and Evidence The relationship between fact and evidence is in a sense similar with the relationship between essence and phenomenon, and that between content and form: Fact is changeless, and evidence is variable; Fact is holistic, and evidence is fragmented; Fact is fontal, and evidence is token. However, the relationship between fact and evidence would be meaningful only with the intervention of subjects. The intervention of the epistemic subjects may have three patterns: the former two can describe the cognition to present facts, the third one can illustrate the finding of facts in the past. The first pattern: facts are happening now, and the epistemic subjects can act on factual objects directly. In the ordinary cognitive and practice activities, subjects can learn the objects during the repeated observation and practice. For example, if scientists want to know whether “there is water on Mars?”, they can send some probes to Mars and even send people to Mars to observe and do experiments by which way they would finally present evidence to answer the question (see Fig. 1). The second pattern: facts are happening now, and the special relationship of reflection is formed between witnesses and factual objects. As shown in Fig. 2: first, this relationship of reflection is passive (the arrow from factual objects to witnesses). 22 Richard

Rorty also used the metaphor of a mirror in his well-known book entitled Philosophy and the Mirror of Nature. However, we use it on another level. There, Richard Rorty rejected the assumption of traditional philosophy in the research on subject which believes the mind as a mirror is the prerequisite of knowledge. In contrast, the metaphor in this paper refers to objects beyond the mind which mainly mean evidence. Therefore, the usage of the metaphor of a mirror here is different from both of the idea of traditional philosophy and the usage of Richard Rorty. For more discussion, see Rorty (1980).

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Fig. 2 The relationship of reflection to fact, evidence and witness

Fig. 3 The relationship among fact, evidence and fact-finder

We can also call this stimulus response. The event may happen in a moment, and the observers have no preparation at all. Second, observation cannot be absolutely neutral.23 The minds of observers are not “white boards”. And the eyes are directed and controlled by the brain (the arrow from witnesses to factual objects). They don’t function as cameras, which record events in a completely passive way. Finally, some other factors such as status, observation place, perception, memory and the ability of narration would influence the accuracy of observation and statement. The third pattern: the cognition to facts in the past: fact-finders can only find facts in the past indirectly by means of inference based on evidence. In such situations as shown in Fig. 3, there are no direct relationships between fact-finders and factual objects (no arrows), and fact-finders usually do not possess any direct knowledge about what happened in the past. Thus, they can only infer the probability of facts in the past by means of evidence. Evidence becomes the only “bridge” that unifies the subject and the object. Evidence is just like a “mirror” that can “reflect” the original facts. The truth obtained through the evidence, to some extent, looks like “flowers in the mirror”.24

23 Popper, Hanson, Kuhn and some other theorists denied the existence of absolute neutral observation, and proposed “the theory-ladenness of observation”. See The Ideological and Political Education Department of EC (1989), 141. 24 See Zhang (2014, 12, 13).

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2.2 The “Mirror of Evidence” Doctrine and Its Enlightenment During the trial, the triers of fact (judges or jurors), as the cognitive subjects, usually do not possess any direct knowledge about what happened in the past. In such situations, evidence becomes the only “bridge” that unifies the subject and the object. This means the triers of fact have some natural disadvantages that they can only find facts through evidence. Evidence is just like a “mirror” that can “reflect” the original facts. The “mirror of Evidence” doctrine reveals the features of fact-finding as follows: Firstly, evidence is prerequisite for fact-finding or the sole “bridge” connecting the subject with the object. In the course of the trial, the trier of fact cannot find the facts without evidence—the so-called “mirror”. It serves as the foundation of evidencebased adjudication, and is also the reason for the policy favoring admissibility of evidence and all helpful information. Let’s make an assumption that the facts of the case constitute a map, and God cut this map into 100 pieces and cast them to cover the world. Whether a fact finder could piece together the map will depend on how many pieces of evidence—for example, 70 or 7%—the fact finder could get access to. Which situation is more possible to piece together the map? Obviously, the more relevant evidence is the better. Secondly, it implies the whole risk of error that fact-finding may take place. The proponent of the evidence can only prove his factual propositions by means of evidence. Thus, the credibility of evidence should be treated seriously. It sets the foundation of cross-examination. Finding facts by means of evidence is just like playing a puzzle game. Whether we could get to the plausible facts of the case will not only depend on how many pieces of evidence we could collect, but also depend on fact-finders’ ability to sift the trustworthy evidence from the false. Though we cannot determine the facts of the case without evidence, we may not enter an accurate finding of fact, if the credibility of the evidence upon which the trier of fact rely is not tested by cross-examination. One possible situation is that the two parties collect 120 pieces of evidence, though God cast only 100 pieces to cover the world. Therefore, the function of cross-examination is to sift the trustworthy evidence from the false. Thirdly, it reveals that the factual truth is the outcome or “product of thought” deriving from empirical inference. Therefore, it is probabilistic. And this is the foundation of the burden of persuasion or the burden of proof. During the trial, when a party proffers evidence, he does not intend to prove the mere facts, but to prove his or her proposition. In a word, the truth derived from the empirical inference (as shown in the dashed circle line in Fig. 4) is just a “product of thought” originating in the triers’ brains. It is merely a determination of the probability of the factual propositions. In fact, the determination of the factual propositions could never reach 100% absolute certainty. Though philosophers cannot reach agreement in the matter of truth, truth does have the meaning of “conforming to facts” or “being consistent with

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Fig. 4 Truth is a “Product of Thought”

facts”.25 As Professor Shu Weiguang noted, “When the object and subject, during the course of integration, could match up to a degree of more than 50%, such cognition is featured as having found the truth.”26 In that sense, the “mirror of evidence” doctrine is a necessary tool to accomplish the judicial proof goal of finding the facts. That is to say, the truth found in the proof of fact is the truth reflected by the “mirror of evidence”. The standard of proof is a probabilistic standard.

3 Fact-Finding From the perspective of result, Fact-finding indicates that the triers of fact attempt to evaluate the possibility of the real existence of specific objects and their relationships. And from the perspective of procedure, fact-finding is “the process of taking evidence to determine the truth about a disputed point of fact”.27 Fact-finding is “the process which a court must undertake in every case where all the facts which have to be held established or found before the law applicable thereto can be determined and applied so as to result in a judicial decision have not been admitted”.28 Fact-finding is essentially an epistemic activity performed by court by means of the “mirror of evidence”.

25 According

to the logical positivism, “truth” equals to “being consistent with facts”. See Popper (1989, 325). 26 Shu (1993, 206). 27 Black’s Law Dictionary, above n.2, 629. 28 Walker (1980, 455).

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Fig. 5 Some relevant concepts of courtroom epistemology

3.1 The Conceptual Basis of Courtroom Epistemology “The law of evidence is a body of rules to regulate the presentation of information to the trier of fact in a legalproceeding… A better definition is ‘courtroom epistemology’.”29 It concentrates on “the more demanding undertaking of thinking through afresh what one does when one thinks legally.”30 Fig. 5 illustrates the different denotation of some relevant concepts of courtroom epistemology. Reasoning, thought and knowledge are the most extensive concepts, concluding all the intellectual activities of human being. Legal reasoning is a process of legal argumentation in which the triers of fact try to form the grounds of decision by using legal reasons and moral reasons synthetically. “Legal reasoning is used as a collective label for a number of mental processes leading to a legal decision.”31 Legal reasoning refers to the process of decision-making, which consequently contains fact-finding and application of law. Empirical inference and fact-finding have almost the same conceptual connotation and extension. The inference mentioned in empirical inference means “the inferred results; conclusions”,32 and also means “the process by which such a conclusion is reached; the process of thought by which one moves from evidence to proof”.33 Empirical inference is the activity of fact-finding throughout evidence presentation, cross-examination and authentification. Fact-finding throughout the three phases is a process of empirical inference, containing evidentiary facts, inferential facts, facts of consequence, and elements. In the process of legal reasoning, fact-finding is a step to find the minor premise in a syllogistic legal reasoning. The meaning of proof is that “the subjects should indicate or assert the authenticity of figures or objects by means of reliable materials”.34 Black’s Law Dictionary provides an explanation that proof is “the establishment or refutation of an alleged fact by evidence; the persuasive effect of evidence in the mind of a fact-finder”.35 The 29 Bergland

(1972–1973, 162, 165). (1986, 1). 31 Wahlgren (1992, 146). 32 Xue, above n.4, 1084. 33 Black’s Law Dictionary, above n.2, 793. 34 Modern Chinese Dictionary, above n.3, 1135. 35 Black’s Law Dictionary (2004, 1334). 30 Read

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fact-finding process conducted with a fair participation by judges, prosecutors and defense lawyers concludes evidence presentation, cross-examination and attestation. Evidence presentation and cross-examination constitute the process of proof.

3.2 The Subjective Structure of Courtroom Epistemology and Its Dynamic Operation The subjects of courtroom epistemology include fact-finders (judges and jurors) and the two parties with the burden of proof. They usually interact with each other in court. The subjects of courtroom epistemology usually have the following features: On the one hand, the epistemic subjects involve the complex social formation. Witnesses, jurors, attorneys (the prosecutors and defenders), and judges from different social groups play different roles in the process of fact-finding, and they usually distinguish from each other for interests, position, knowledge, functions and some other elements; On the other hand, the epistemic subject is also an organism that embodies knowledge, emotion and will. The subject is rational and sometimes irrational. These elements of subjective consciousness will have an impact on the cognitive process, and have the function of guidance, selection, inspiration and adjustment. The modern litigious activities, especially court trials, are the processes of court arguments or justification conducted with a fair participation by judges, prosecutors and defense lawyers which reflect the epistemic interactions conducted by the “court group” (see Fig. 6). In this process, an interactive relationship is formed in the legal reasoning conducted with a fair participation by judges, prosecutors and defense lawyers. This kind of interactive legal reasoning has two features: firstly, argumentation based on reasons and equal debating. “Argumentation describes, in general, the act or process of forming reasons, drawing conclusions, and applying them to a situation under consideration. That the practicing attorney’s stock in trade is argument raises few doubts; in any aspect of a lawsuit he is avowedly an advocate, and in prophylactic Fig. 6 The epistemic interactions in the “Court Group”

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counseling, reasons, conclusions, and applications are central to his advice. But the judge also engages in argument. In the search for the best rule or decision as well as in the presentation and defense of the ruling in an opinion, the judge argues for the position taken.”36 “No matter what social attributes the parties may have, they are deemed as having equal and independent personalities, free from any unreasonable control. On this rational occasion, the obligation of explanation is highly normalized. All chicaneries and acts trying to escape from the obligation of explanation are forbidden. It is perfectly possible that all the parties can have a discussion with freedom and rationality.”37 Secondly, interaction would generate the joint forces. In the process of arguments, prosecutors and defense lawyers or the two adversarial parties will influence the inference of fact-finders (jury or judges). All the interactive parties try to influence each other and at the same time accept the influence directly or indirectly from others. The factual truth results from these joint forces. In general, fact-finding is an active process of interpreting evidence conducted by the court group. “The human active reflection of the objective world is actually a process, in which subjects, employing a specific method, systematically process, reform and integrate the information deriving from objects. In this process, subjects intend to formulate, in their minds, an idea or a system of ideas, which presents the objects in the shape of heterogeneous isomorphism.”38 “In this phase of trial, each party introduces evidence permitted by law; each party cross-examines the opponent party; each party then illustrates that the introduced evidence is sufficient to prove certain asserted fact; and judges, explicitly or implicitly, make the finding of fact, either supporting or denying the fact has been proved up. In this phase of trial, the authenticity and reliability of the witness’s testimony is determined, the conflicting evidence is examined, and etc.”39 Therefore, fact-finders must interpret actively to satisfy the requirement of attestation. As noted by Professor Ronald J. Allen, “The testimony and exhibits at trial are meaningless until interpreted by a human observer—judge or juror. Moreover, the interpretation given to any piece of evidence cannot be determined in advance, for it is a function of the background and experience of the fact finder.”40 Through this active information processing, fact-finders could process the evidence from outward appearance to the essence, proceed from one the another, discard the dross and select the essential, discard the false and remain the true, and then construct concepts, make judgments, accomplish inferences; Finally, the opinions about factual objects will become rational knowledge, and the facts of the case which are “thing-in-itself” in the beginning phase become “thing-for-us” or concrete facts in the perception or mind of subjects (see Fig. 7).

36 Sinclair

(1971, 821–858). (1994, 127, 128). 38 Li et al. (1990, 249, 250). 39 Xue, above n.4, 525. 40 Allen et al. (2011, 117). 37 Xiong

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Fig. 7 The active process of the trier of fact to reconstruct the objective fact

3.3 The Logical Structure and Process of Fact-Finding From the perspective of empirical inference, the logical structure of fact-finding is inductive rather than deductive. As noted by Professor Allen, “There is a relational aspect to ‘evidence’; it (the evidence) is what some human being thinks it is, and what that person thinks it is cannot be determined in advance by a set of rules. If it could, fact-finding perhaps could make the transformation from being largely inductive to largely deductive; but if it could, jurors (and judges) would become superfluous.”41 Inductive reasoning is a process of empirical reasoning by employing empirical knowledge or common sense. According to Professor David A. Binder and Professor Paul Bergman, “All of us… have accumulated vast storehouses of commonly-held notions about how people and objects generally behave in our society. From this storehouse one formulates a generalization about typical behavior. The generalization, in turn, becomes the premise which enables me to link specific evidence with an element one hopes to prove.”42 This generalization may impact the fact finder in two respects: (a) if the fact finder thinks such generalization is a reasonable one recognized by the common experience and common sense, and is able to support every inference in the chains of reasoning, he or she, following the normal person’s point of view, would conclude the evidence is relevant to the facts of consequence; and (b) if the fact finder raises doubt about the reasonableness of a generalization, he or she could require the prosecution to present more evidence to prove its proposition. Judges need to rely on the reasonableness of generalization to examine the relevancy of the evidence. Under the “reasonable fact finders” test, a generalization must be true, instead of “false”, and be based on empirical facts, instead of guesswork (or accidental relation).43

41 Ibid.,

117. and Bergman (1984, 85). 43 Allen et al., above n.40, 126–128. 42 David

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Fig. 8 The levels of ProbandumIn the chains of empirical inference

As to the logic process of mind, according to professor Twinning and some other professors,44 the process of fact-finding are some inferential chains from evidence to probandum. In the chains of empirical inference, probandum is divided into different levels, including interim probandum, penultimate probanda, and ultimate probandum. “All probanda, ultimate, penultimate, and interim, are potential sources of doubt or uncertainty.” Interim probandum means “a proposition to be proved which itself will tend to support or negate, directly or indirectly, an ultimate probandum as part of a chain of inferences.” Penultimate probanda are also called facts in issue, “each of which state one element of a crime or claim or defense.” Ultimate probandum means “the proposition of fact that the proponent (the party with the burden of proof) must establish or negate in order to prevail in the case. Viewing the rule of law that governs the case as a major premise, the ultimate probandum is the minor premise” (see Fig. 8). “Probanda occur at several different levels in an argument. A probandum is always a proposition that in principle can be shown to be true or false.” In Fig. 8, E* represents the evidence of a case, and fact-finders could only infer the occurrence of the event E to some extent from evidence. For example, in a murder case (Tom murdered Dick), according to the testimony E* offered by Harry (“I saw Tom went into Dick’s house at 15:15 yesterday”), we could infer the probability of the occurrence of the event E (“Tom went into Dick’s house at 15:15 yesterday”). In the murder case above, the ultimate probandum is the whole statutory crime elements which the prosecution must prove to be true beyond reasonable doubt, including the following penultimate probanda: (1) Dick is dead; (2) Dick died as the result of an unlawful act; (3) It was Tom who committed the act that caused Dick’s death; (4) Tom acted with malice aforethought in committing the act. “Each simple propositions needs to be proved in order to prove the ultimate propositions. These simple propositions are termed penultimate probanda. These penultimate probanda are the material facts.”45

44 See

Anderson et al. (2005, 60–62). 61.

45 Ibid.,

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“The evidence E* is linked to penultimate probandum P1 by a chain of reasoning indicated by propositions E, F, and G. Each of these propositions may be true or false and thus represent a source of doubt interposed between evidence E* and penultimate probandum P1 . These propositions we refer to as interim probanda. All probanda, ultimate, penultimate, and interim, are potential sources of doubt or uncertainty.” Particularly in Fig. 8, there are generalizations (labeled G1 through G4) that are associated with each link in the chain of reasoning from evidence E* to penultimate probandum P1 . These generalizations supply justifications for each reasoning link, and license the inference of proposition P from proposition E. For example, the witness Harry presented by the prosecution testified: “I saw Tom went into Dick’s house at 15:15 yesterday”. Fact-finders may infer from this evidence that Tom went into Dick’s house at 15:15 yesterday and he committed the act that caused Dick’s death at 15:30. The generalization under this inference is that people who enter a house usually remain for more than fifteen minutes. In the chains of empirical inference, the two parties present evidence to support their own factual propositions, and under some circumstances, their evidence may support the mutually antagonistic factual propositions. For example, the witness Jack presented by the defense may testify: “I saw Tom at a cinema at 15:15. And the distance between the cinema and Dick’s house is about 10 km”. Facing these competing evidence, fact-finders must test the credibility of the evidence, then they can evaluate the probability of the different factual claims. Therefore, fact-finding is a process of probabilistic inference which could never reach 100% absolute certainty and may carry the risk of error instead. The Oxford Companion Law interprets that “the process is rendered difficult by such factors as missing or deceased witnesses, faulty recollection, prejudice, unconscious inaccuracy, dishonesty, missing letters, and similar difficulties, and even by the prejudices of the judge. The facts ‘found’ may accordingly not be a correct reconstruction of what actually happened.”46

3.4 The Probability of Fact-Finding Based on the analysis above, the “mirror of evidence” doctrine, the subject structure of fact-finding and its inner active reasoning process decide that fact-finding has an inevitable feature of probability. Firstly, the “mirror of evidence” doctrine leads to the probability of fact-finding. The crucial influence of the “mirror of evidence” doctrine to the probability of factfinding are mainly reflected in five fundamental reasons illustrated by Professor William Twining, along with other professors47 : “First, Our evidence is always incomplete. We could never obtain all of it.” Evidence law encourages the triers of fact to admit evidence, the more the better, however, we can never obtain all the evidence. “Second, evidence is commonly inconclusive. This means that the evidence 46 David

M. Walker, above n.28, 455. Anderson et al., above n.44, 246.

47 Terence

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may to some degree provide more support to one proposition at issue, or be more consistent with the truth one proposition asserts.” That is to say, the same evidence sometimes can support both the parties’ factual claims. “Third, the evidence we have in hand is often ambiguous. We cannot decide what the evidence is telling us or what information it conveys.” This is determined by the ambiguity of the language. For example, we can find various interpretations of the words in a love letter. “Four, the entity of evidence is usually dissonant. Some evidence may favor one proposition; simultaneously, other evidence favors another proposition.” This refers to the situation that different evidence can support different factual claims of the parties. “Five, Evidence comes to us from sources whose credibility, to some degree, is less than perfect.” The matter of trustworthiness concentrates on the degrees of trustworthiness about evidence and the resources of evidence, including authenticity, accuracy, reliability, honesty and so on. Secondly, the “stone of generalization” contributes to the probability of factfinding. As shown in Fig. 8, every inference step we take in the chains of empirical inference, which starts with the evidentiary facts and concludes with the facts of consequence, should tread on one “stone of generalization” (G1 , G2 , G3 , G4 …Gn ). These generalizations are just like some “stones” exposed on the empirical river on which fact-finders must tread to cross the river. Sidgwick noted in 1884: “since, then, our inferences from fact to fact depend upon our belief in general rules of connection between fact and fact, generalizations about the way things happen in nature, the work of criticizing inferences resolves itself into that of criticizing generalizations.”48 The criticism of generalization made by Professor Twining and other professors is mainly presented in Chap. 10 of “Analysis of Evidence” with the striking tile of “Necessary but Dangerous”. This title is dialectic: first, generalization is necessary, because empirical inference cannot be processed without generalizations; second, generalization is “dangerous”, because in “the stock of knowledge” of the whole society, generalizations, like a pot of chowder, present different degrees of reliability, from scientific laws to intuitions, stereotypes, and prejudices based on genders, races, classes or ages, including “sophisticated models, anecdotal memories, impressions, stories, myths, proverbs, wishes, stereotypes, speculations, and prejudices.”49 Therefore, that fact-finders must rely on generalizations with different degrees of reliability in the empirical reasoning inevitably results in the probability of the conclusions; and if fact finders step on the unreliable stones, they will face the risk of falling into the river and drowning. Therefore, as Professor Allen noted, “the primary measure of probative value is the strength of the inferences that connect the evidentiary fact to the fact of consequence and then to an essential element in the case. This strength depends on the rough probabilities of the generalizations underlying those inferences.”50 Thirdly, the probability of the standards of proof. The standards of proof are also called the burden of persuasion. “The burden of persuasion specifies the degree of certainty that the jury must have in order to make a finding on a particular issue… 48 Ibid.,

262. 275. 50 Allen et al., above n.40, 142. 49 Ibid.,

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In civil cases, the jury must find by a preponderance of the evidence that the plaintiff’s claims are true. A preponderance of the evidence means greater than a 50% probability, or ‘more likely than not’. In criminal cases, the burden of persuasion is guilt ‘beyond a reasonable doubt.’”51 The standard of “beyond reasonable doubt” or “true, sufficiency” reflects the findings of fact under “moral certainty”, rather than mathematically “absolute certainty”. The degree of certainty is about 95%, which is calculated according to the rate of criminal misjudged cases. For example, “In the United States, there is data indicating that the error rate of felony trials is somewhere between 3.5 and 5.0% in convictions of capital rape-murders at trial”.52 Standards of proof not only govern the extent to which the burden of persuasion should be met by the litigating parties, but also govern the extent to which the trier of fact is persuaded by the proof. The probability of fact-finding decides that the interpretative paths of evidence and fact could be pluralistic. The probabilistic interpretation of evidence is a traditional way, the primary deviation of which is trying to model the probability of evidence and give evidence some assumed probabilities. Professor Allen proposes an unconventional solution, which states judicial proof involves “inference to the best explanation” (IBE)in nature. IBE is a method of holistic accounts or holistic descriptions. Holistic accounts or holistic descriptions mean that the trier of fact should not confine himself to the specific pieces of evidence, on the contrary, he must concentrate on the whole case or story merged by evidence. Relevance and weight of the evidence are contextual, however, the probabilistic interpretation of evidence tries to standardly compare competing stories. Therefore, the solution is that judicial proof is not probabilistic, but instead involves explanations, and we can call this inference to the best explanation (IBE). Preponderance of the evidence is obvious. Is the plaintiff’s story better than the defendant’s story? Or is the defendant’s story better than the plaintiff’s story? Whichever is more plausible wins. In criminal procedure, according to the presumption of innocence, if there is no plausible story of guilt, the person is innocent; if there is a plausible story of guilt, and no plausible story of innocence, the person is guilty. If there is a plausible story of guilt and a plausible story of innocence, the person is innocent. This is the basic interpretation of the empirical inference to the best explanation.53 Though IBE has some advantages that the probabilistic interpretation does not possess, the taming of chance can choose pluralistic methods. The science of factfinding provide a multidimensional thinking space. In the low-dimensional space, fact-finding needs all kinds of methods, and only in the high-dimensional space, it could approach the coherent world of truth.

51 Ibid.,

88. (2010, 750, 756). 53 Allen (2011, 113, 118). 52 Allen

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References Allen, Ronald J. 2010. The Relationships Among Evidence Law, Procedural Law and Substantive Law. Evidence Science 18: 750, 756. Allen, Ronald J. 2011. Evidence and Inference/Probability and Plausibility”. Evidence Science 19: 113, 118. Allen, Ronald J., et al. 2011. Evidence: Text, Problems, and Cases, 117. New York: Wolters Kluwer Law & Business. Anderson, Terence, et al. 2005. Analysis of Evidence, 60–62. Cambridge: Cambridge University Press. Bergland, David P. 1972–1973. Value Analysis in the Law of Evidence. Western State University Law Review 1: 162, 165. Black’s Law Dictionary. 2004. Thomson West, 669. Chen, Beidi. 2006. The Socially Harmful Malignant Tumour: The Survey of Drug Abuse in China. Beijing: Xinhua Publishing House. David, Binder, and Paul Bergman. 1984. Fact Investigation From Hypothesis to Proof . Eagan: West Publishing Company. Gao, Jiawei, et al. 2004. The Principles of Evidence Law, 3. Beijing: China Renmin University Press. Habermas, Jürgen. 1996. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, 12. Cambridge, Massachusetts: The MIT Press. The Ideological and Political Education Department of EC. 1989. Introduction to Dialectics of Nature, 141. Beijing: Higher Education Press. Jin, Yuelin. 2015. On Knowledge, 73. Guangxi: Guangxi Normal University Press. Kant, Immanuel. 1933. Critique of Pure Reason, 74–75. New York: The Macmillan Press Ltd. Li, Xiulin, et al. 1990. The Principles of Dialectical Materialism and Historical Materialism, 249, 250. Beijing: China Renmin University Press. Long, Zongzhi. 2006. The Construction of General Evidence Science and Its Argumentation. Chinese Journal of Law 5: 82, 98. Modern Chinese Dictionary. 2000. The Commercial Press, 1135. Oakeshott, Michael. 1933. Experience and Its Modes, 93. Cambridge: The Syndics of the Cambridge University Press. Peng, Yilian. 2015. On Facts, 73. Guangxi: Guangxi Normal University Press. Popper, Karl R. 1989. Conjectures And Refutations: The Growth of Scientific Knowledge, 325. New York: Routledge. Read, William. 1986. Legal Thinking, 1. Pennsylvania: University of Pennsylvania Press. Rorty, Richard. 1980. Philosophy and the Mirror of Nature. Princeton, NJ: Princeton University Press. Sinclair, Kent. 1971. Legal Reasoning: in Search of an Adequate Theory of Argument. California Law Review 59: 821–858. Shu, Weiguang. 1993. The General Design of Scientific Epistemology, 206. Changchun: Jilin People’s Publishing House. Xia, Fei. 2007. Introduction to the Investigation of Crime Victims in Europe and America. Criminal Research 5. Xiong, Peng Lai Xiao. 1994. The Solution of Disputes and the Trial System, 127, 128. Beijing: China University of Political Science and Law Press. Xue, Bo. 2013. English-Chinese Dictionary of Anglo-American Law, 525. Beijing: Peking University Press. Wahlgren, P. 1992. Automation of Legal Reasoning: A Study on Artificial Intelligence and Law, 146. Deventer Boston: Kluwer Law and Taxation Publishers. Walker, David M. 1980. The Oxford Companion to Law, 455. Oxford: Oxford University Press. Wittgenstein, Ludwig. 1974. Tractatus Logico-Philosophicus, 5. London: Routledge & Kegan Paul. Zhang, Baosheng. 2014. Evidence Law, 12, 13. Beijing: China University of Political Science and Law Press.

Fact Argumentation in Argumentation-Based Litigation Games Minghui Xiong

1 Introduction In mainland China, the Supreme People’s Court (SPC) issued the Opinion of the Supreme People’s Court on Deepening Reform of the People’s Courts Comprehensively: Outline of the Fourth Five-Year Reform of the People’s Courts (2014–2018) to support the comprehensive deepening of reform at the beginning of 2015. Included in the Opinion is the need to promote the reform of argumentation in judicial judgment documents, to comprehensively implement the principle of evidence-based verdicts, and to realize the goal of judicial reform through questioning evidence, identifying facts, defending opinion, and forming verdict reason in courtroom. A key point is therefore the significance of T-fact argumentation. However, we suggest that avoiding judicial centrism is necessary, to safeguard judicial justice and fairness and to practice legal logos. T-fact argumentation, which is effectively constructed to make the best of the game between S- and R-fact argumentation, should be considered under the framework of the argumentation-based litigation game (ALG).

2 Why Must Legal Fact Be Argued? Legal fact is that claimed by arguers, such as a player in an ALG. The following three types are included in this: (a) an S-fact, i.e., the case fact claimed by the Suitor party S; (b) the R-fact, i.e., the case fact claimed by the Respondent party R; and (c) the T-fact, i.e., the verdict fact claimed by the Trier party T. Accordingly, fact argumentation or argumentation about fact covers S-, R-, and T-fact argumentation in an ALG. Fact argumentation in law is made by arguers seeking legal evidence to support their own legal facts, such as S-, R-, and T-facts. These three types of fact argumentation M. Xiong (B) Sun Yat-sen University, Guangzhou, China © China University of Political Science and Law Press 2021 B. Zhang et al. (eds.), Facts and Evidence, https://doi.org/10.1007/978-981-15-9639-1_12

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are interdependently constructed by the arguers rather than separately. Constructing fact argumentation is a process of argumentative interaction, so the framework of ALG can give us a better understanding of the process, procedure, and product of this construction. In a philosophical sense, legal and objective facts are obviously different. The acceptability of an objective fact is beyond human control, so we cannot present reasons or evidence to argue its existence, but we can explain why it exists. The acceptability and existence of a legal fact, however, must always be argued and should be supported by evidence. In ALG, the S- and R-facts are always incompatible, and there may be inconsistencies between a T-fact in an initial first trial and those in the second trial or retrial in the same ALG. If consistent, it is impossible for it to result in a legal dispute or an ALG, but it is also impossible that a T-fact is different from both S- and R-facts, as the aim of T is to come to a legally just and fair verdict from the inconsistent S-fact set FS and the R-fact set FR . The three kinds of fact actually focus on the same event in an ALG. According to Zhang Baosheng, there is only one fact, but several different (legal) truths may be present in the same case.1 This assertion may prime facie seem extremely odd, but Zhang is indeed right, as after taking all things into consideration truth, which represents a fact, is just one property of a statement in logic. Legal truth is based on argumentation but different from the philosophical truth, as the latter is usually considered as the only truth. We follow the strategy of maximally argumentative interpretation developed by van Eemeren, Grootendrost, and Henkemans,2 which regards legal facts as a fact rather than a claim-as-fact. According to this strategy, any utterance, even a simple remark or an explanation, can be interpreted as argumentation. Lawyers, judges, and jurists, however, have customarily regarded claims-as-fact as facts, so here we will use the terms legal-, case- or verdict-fact. The acceptability of a legal fact in an ALG directly depends on the supporting degree of its corresponding evidence set, and thus we will develop a concept of fact argumentation in this paper. Defeasibility is undoubtedly one of the most important features of fact argumentation. A T-fact in an initial trial may be denied by another in its second trial orretrial. In the example of the renowned Huge-Jiletu case from Huhhot there were three (objective) related facts. First, in 1996 Huge was sentenced to immediate execution for a crime punishable by death, in both the first and second trials. Second, Huge was shot just in that year. It cannot be denied that T declared in the first and second trial that “the case was clear and its supporting evidence set was sufficient”, meaning that the T-fact argumentation relative to each of the two stages is regarded as good. Third, Zhao-Zhihong was officially recognized as the real killer in the Huge case in 2005, so obviously the acceptability of the original T-fact and its argumentation was then seriously challenged, and should even be defeated. In legal practice, a concept close to fact argumentation is fact-finding, which, broadly speaking, is the action of judges, prosecutors, or lawmen arguing their own 1 From

a discussion with Professor Zhang Baosheng at the Conference on Evidence and Fact: the Dialogue between Philosophers and Jurists 2015 in Shanghai. 2 Van Eemeren et al. (2002).

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legal facts based on legal evidence. In this study we will only discuss this in a narrow sense, i.e., a judge’s fact-finding in an ALG. A T-judge, i.e., a judge as a member of T, should find each member of the T-fact set FT claimed by T, who must be produced, questioned, and identified in court. Obviously, this is only based on a T-judge’s perspective when dealing with the logical relationship between FT and its T-evidence set ET produced by T, while fact argumentation covers both the perspectives of S and R as S, R, and T as an arguer or even a player appears in an ALG. The prosecution in a criminal proceeding or the plaintiff in a civil or administrative proceeding who files a lawsuit is S; R is the accused in a criminal, civil, or administrative proceeding, who is forced to join an ALG; and T is the judge and the jury, who serve as referees in a trial or retrial. The purpose of an ALG is to marshal fact argumentation for S and R or T, which is closely related to a legal trial. Is the purpose of a trial to search for (legal) truth? This question can have different answers, from two opposing viewpoints. First, the purpose of a legal trial can be seen to be to search for (legal) truth. Justice Cory of the Supreme Court of Canada declared that “The ultimate aim of any trial, no matter criminal or civil, must be to seek and to ascertain the truth.” In Funk vs the United States, the United States Supreme Court also proclaimed: “The fundamental basis upon which all rules of evidence must rest—if they are to rest upon reason—is their adaptation to the successful development of the truth”.3 Second, a legal trial may not be to discover the truth but to ensure a legally proper decision is made. According to Edmund M. Morgan, a lawsuit is not “primarily for the discovery of truth and it is essentially a proceeding for the orderly settlement of a dispute between the litigants”.4 In Nicholas Rescher’s opinion, a legal trial is not concerned about the real truth of the matter (else why have categories of inadmissible evidence?) but with the setting out of a legally proper case (Rescher 1977: 43).5 The cause of this opposition lies in how the two concepts legal truth and fact are defined, which may only be superficial as a legal truth is different from a philosophical truth. A legal truth may be wrongly equated with a philosophical truth as the essential difference between them is often not recognized. What underlies the opposition discussed above is which comes first, procedural or substantial justice, which often divides those who focus on justice into two camps. The primacy of procedural justice is the view taken by those who agree with Morgan and Rescher, while advocating that substantial justice come before procedural justice concurs with Justice Cory and the United States Supreme Court. Those in the former camp are mainly jurists, such as Chaïm Perelman and Robert Alexy. According to Alexy, the rationale behind the justification of legal decisions depends on the quality of the procedures followed in the justification process (Feteris 1999: 92).6 Most members of the latter group are legal practitioners such as judges and attorneys.

3 Cf.

Ho Hock Lai, A Philosophy of Evidence Law, 52 (2008). Ho Hock Lai, A Philosophy of Evidence Law, 52–53 (2008). 5 Rescher (1977). 6 Cf. Feteris (1999). 4 Cf.

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Fig. 1 Argumentation-based litigation game

3 The Structure of the Litigation Argumentation Argument(ation) can be categorized into zero-agent argument, one-agent argument(ation), and multi-agent argumentation. Formal logicians typically study argument simply on the basis of logical semantics and syntax, so their argument evaluation is not concerned with the agents of argument or arguers. Therefore, their concept of argument normally falls into the zero-agent category. Informal logicians focus on the agents both of argument and of argumentation, and the agents can be divided into one-agent and multi-agent. The litigation argument(ation) used by S, R, and T in an ALG is then a subtype of legal argument(ation) and is essentially multiagent, and therefore has the basic characteristics of subjectivity, dynamicity, and interactivity. According to Xiong, an ALG is an argumentation-based game among S, R, and T (see Fig. 1).7 The distinction between an ALG and a TLG, a traditional litigation game, are as follows. The objects of TLG are rights, obligations, or personal freedom, while in ALG the argumentation is about legal interpretation, fact, or conclusions. The argumentation about legal interpretation, also known as interpretation argumentation, refers to the reasoning from a set of legal norms to a set of legal interpretations. The argumentation about legal fact, referred to as fact argumentation, is related to the reasoning from a set of legal evidence to a set of legal facts, and the argumentation about legal conclusion is the whole litigation argumentation. In a TLG, an agent can be either S or R, while in an ALG, an agent may be S, R, or T, including judge(s) and jurors. In the common law system, the trier of fact is a jury while the trier of law is a collegiate bench, composed of at least one judge. However, a collegiate bench acts not only as a trier of law but also as a trier of fact in the continental law system, as a juror to some extent participates in trying a fact. According to the Opinion, the jury should be reformed so that it cannot attempt to apply the law but only takes part in fact-finding. It will then become an indispensable component of T in the legal system of mainland China. Judicial justice is typically divided into two types; the procedural and the substantial. In the common law system, substantial justice is safeguarded by a jury as the trier of fact, but in the continental law system, substantial justice is not guaranteed by the jury but by the judge’s conscience. To comprehensively reform the judicial system, the measures involve partially absorbing a system in which a jury serves as a trier of fact. This will unquestionably further safeguard a substantial justice system, 7 Xiong

(2010).

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Fig. 2 Legal syllogism

promoting judicial reform in China and changing the abnormal situation in which a juror is not a trier of fact but simply an accompanying person in an ALG. The focus of any legal trial used to be regarded as a legal syllogism, whether in the common law or the continental system. Legal syllogism, which comprises of one major premise about law or a legal norm (N), one minor premise about a case fact (F), and one legal conclusion about a legal claim (C) (see Fig. 2), is regarded as the fundamental pattern of the litigation argument. Interestingly, this pattern only reflects the judicial principle—a legal trial must be based on facts and take law as the criterion. Considering that a judicial centrist usually replaces a legal conclusion with a judicial conclusion, legal syllogism is sometimes known as judicial syllogism. However, we are advocating judicial justice and rationality and opposing judicial centrism, so for the time being, we use the term legal conclusion as S, R, and T should follow the pattern of legal syllogism (LS) in an ALG. S, R, and T should thus construct their own litigation argumentation on the basis of this LS pattern. However, the Achilles’ heel of the LS is that it overlooks not only the relationship of interpretative reasoning between legal norms and their interpretation but also the relationship of evidential reasoning or fact argumentation between a set of legal evidence and a set of legal facts. However, it is impossible to deny that both fact argumentation as evidential reasoning and interpretation argumentation as interpretative reasoning are two very important factors in a legal proceeding. By examining a series of major criminal grievance cases over the past 30 years in mainland China, such as the She-Xianglin case (1994–2005) in Hubei Province, the Zhao-Zuohai case (1998–2010) in Henan Province, the Teng-Xingshan (1987–2006) case in Hunan Province, the Huge-Jiletu case (1996–2014) in Inner Mongolia, and the Nie-Shubin (1994–2016) case in Hebei Province, we find all of them satisfied the requirements of the LS pattern, but they are all extremely misjudged, false, and erroneous. If we get deeper into the causes of this, it is easy to find that the T-fact argumentation was neglected in their litigation argumentation. A common feature was that their Tevidence sets could not support their T-fact sets, and that their T-fact argumentation was poor. To remedy these shortcomings, we developed a five-part pattern of litigation argument, called the legal five-part argument (LFA), which can substitute the original LS pattern.8 Based on this pattern, a litigation argument, a subtype of legal argument(ation), consists of five parts (see Fig. 3): a legal conclusion set C, a case fact set F, a legal evidence set E, a legal norm set N, and a legal interpretation set I. Compared with LS, the LFA pattern has several significant features. First, it not only manifests the logical relationship between both a F with its E and a I with its 8 Xiong

(2010).

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Fig. 3 LFA pattern

N, but also highlights the special position of interpretation argumentation and fact argumentation in an ALG. Second, the litigation argumentation does not only belong to T, but could and should be used by S, R, and T, to avoid judicial centrism and to fully manifest its multi-agentivity, interactivity, and dynamicity. Third, the legal conclusion, the evidence, the norms, the case facts, and the legal interpretations are all represented by a set such as C, E, N, F, and I. With regard to the same party, each component set of a LFA should be minimally consistent. Requiring minimization reduces the lawsuit cost, and the purpose of guaranteeing consistency is to ask the arguer not to contradict himself. Finally, inconsistencies between the S- and R-fact results in an ALG; S-, R-, and T-fact argumentation all restrict this ALG, and the T-fact argumentation must be based on the fact-argumentation-based game (FAG) between S and R. In view of different positions of S, R, and T in an ALG, there are differences in allocating their burden of proof, so there are distinctions among/between the S-, R-, and T-fact argumentations. Thus, we will next discuss how to construct S-, R-, and T-fact argumentation, respectively.

4 S-Fact Argumentation Engaging in a lawsuit has been said to be simply playing the (legal) evidence. However, we propose that what is played in an ALG is not always (legal) evidence, but sometimes (legal) facts. Obviously we cannot say this is always the case, as an ALG may also involve legal interpretation. However, the key point of an ALG is a FAG, which is a subgame of ALG, so we cannot discuss an ALG without reference to a FAG. S and R do not construct their fact argumentation independently of each other but on the basis of the ALG between two parties. The ALG between S and R focuses on its FAG, and this key point consists of an evidence-based game in a FAG. It then false appears that engaging in a lawsuit is only to play (legal) evidence. For S’s FAG, there is no argumentation-based interaction with R. For example, the defendants in absentia do not always turn up. However, R’s FAG must be based on the interaction with S’s. The start of an ALG is determined by S, who initiates the game as the existence of a legal dispute is necessary but not sufficient for this game, as it is not true all legal disputes must be settled through an ALG. As Larry L. Teply states, only about 5% of cases reach trial while the remaining 95% are terminated without trial—in

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most instances, by negotiating settlement agreements.9 Not all criminal disputes can be settled by legal negotiation, except the case of private prosecution, as criminal trial is one type of national public prosecution action, with the ultimate purpose of exercising and doing justice. The action of S lodging a complaint is one necessary condition for an ALG (i.e., no S’s action no ALG), but it is important to note that S’s action is not sufficient for an ALG. It does not necessarily bring about an ALG, and this depends on whether the court places it on file after S brings the suit against R. Therefore, an ALG actually starts if and only if S takes a legal action and its T puts it on record. An ALG starts with an S-fact set FS , i.e., no fact, no suit. From the perspective of LFA, whether in a civil, administrative, or criminal ALG, FS cannot be empty as an ALG cannot exist if S has no claim-as-fact, and the relevant lawsuit may not happen. S-fact argumentation means S argues its claim-as-fact. Whether a lawsuit can be put on record or not depends on sufficiently convincing S-fact argumentation. A necessary condition for a suit to be put on record is therefore a good S-fact argument presented by S. However, from the perspective of legal logos, this may not necessarily be sufficient for filing a case, as some cases may be prevented from being filed for political reasons, national security issues, or other secrecy concerns, even if S has a good fact argumentation. Nevertheless, this action goes against the principle of judicial logos and justice, so so-called judicial logos and justice are both relative and not absolute. According to The Civil Procedure Law of the People’s Republic of China (CPL) and its relevant provisions, filing a suit has the following four requirements: (a) the plaintiff must be a citizen, legal person or other organization who has a direct stake in the case; (b) there must be at least one specific defendant; (c) there must be at least one specific legal claim, fact, and reason; and (d) the case must belong to the scope of the people’s court and come under its jurisdiction. The third condition is the standard by which the S-fact argumentation is judged, and all four must be satisfied at the same time. Based on this requirement, S-fact argumentation must comprise of the following. First, there must be at least one concrete claim with a definite purpose that S wants to reach through a litigation. All claims are in fact simply legal conclusions. For S, these claims form an S-conclusion set CS , inferred from its S-fact set FS together with its S-interpretation set IS, in a LFA. This condition requires CS not to be empty so there must be at least one claim in S’s litigation argument. Second, there must be at least one fact and evidence for it as reasons. The relationships between a set of facts and its evidence are that each item of evidence produced must support an S-fact, and any produced evidence which cannot support an S-fact is irrelevant to the case. A legal evidence set ES may theoretically be empty if there is a fact that does not need to be proven by evidence, i.e., a self-evident fact. This does not mean, however, that a claim-as-fact that is not based on evidence does not need relevant evidence presented about it. A fact without the need to be proven refers to one that need not be proved by evidence produced by the arguer(s), not to one that lacks 9 Teply

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any supporting evidence. The link between a FS and an ES is an evidential reasoning or a factual argument. If this inferential or argumentative link is disregarded, the relationship between a legal fact and its legal evidence in an ALG cannot fully be grasped, and the two may even be confused, and evidence erroneously regarded as a fact. Third, a complaint must have at least one legal ground, i.e., legal norm. Legal ground and evidence, which are both a start-point and a basic premise, are equally important in S’s litigation argument. If a litigation argument has only legal evidence and no legal ground, it is like an aircraft that has lost one wing, so both legal ground and evidence are essential, which is why lawyers are vitally important for a healthy legal state. Attorneys, as legal professionals, must base their litigation arguments on both legal grounds and legal evidence. In a LFA, a legal ground set, from which each legal interpretation must begin, is the premise set of interpretative argumentation or reasoning, but this point is beyond the scope of this paper so is not discussed it here. The three requirements for S to instigate a public prosecution are: (a) the suspect’s actipso iure constituted a crime; (b) the FS is quite clear and its supporting ES is reliable and sufficient; and (c) the suspect should be investigated for criminal responsibility in accordance with law. If the FS is empty, the second requirement is not met, as a set of reliable and sufficient evidence necessarily infers a clear case fact set. The criterion to evaluate whether an S-fact argument is good or bad in a case fact set is the second requirement. Remarkably, lawyers often refer to the concept “evidence-fact”, but taking these two concepts together indiscriminately is an error, wrongly identifying evidence as fact. The argumentative or inferential relation between a FS and its ES is obviously masked by this conceptual error. However, it is not necessarily true that the ES produced by an arguer sufficient supports its relevant claim-as-fact. The second requirement consists of three sub-conditions: (a) the case fact set FS must be clear; (b) the evidence set ES must be reliable; and (c) the ES must be sufficient for its FS . In the second sub-condition, each individual piece of evidence must be reliable, that is, each member of the ES must be reliable. The third subcondition is directed at the whole ES , which is required to sufficiently support its whole FS , forming a so-called chain of evidence. Both sub-conditions (b) and (c) support sub-condition (a). One may even say (b), together with (c), is the sufficient and necessary condition for (a). The consequence is that there is no situation in which an ES is neither reliable nor sufficient, but its relevant FS is clear, or one in which an FS is not clear but its ES is both reliable and sufficient. The clarity of a FS must thus be based on a reliable and sufficient set of evidence. The construction of the fact argumentation by S is a dynamic updated process, as implementing this construction must be within an ALG. During this process, both the original S-fact argumentation and the produced evidence set in an indictment can be initiatively withdrawn by S.

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5 R-Fact Argumentation R must consider an ALG with S when constructing its fact argumentation, so the context of this construction is not static but dynamic. Similar to constructing S-fact argumentation, a case fact set FR presented in R’s answer may be updated, as its legal evidence set ER can be updated with the development of an ALG. In an ALG, when evidence produced by S is defeated, its relevant legal fact may possibly be defeated. Consequently, the original R-fact argumentation will also be dynamically updated. In an ALG, R has no right to decide whether to play the game or not and consequently is always passive. However, in the case of a civil ALG, both S and R must present at least one legal fact as the allocation principle applied is usually the Latin maxim semper necessitas probandi incumbit ei qui agit, which means the necessity of proof always lies on the person who makes a legal or factual claim. Both S and R should present a claim-as-fact, otherwise the party who does not must acquiesce to the other’s claim-as-fact, and then face unfavorable legal consequence. In a criminal ALG, however, R need not claim that the accused is not guilty, but can simply refute the S-fact argumentation. If R does present a claim-as-fact that the accused is innocent, however, he or she must prove and justify it through evidence, or face the legal consequences. Of course, if R can produce a set of evidence to justify the claim of the defendant’s innocence, this claim-as-fact should undoubtedly be made along with its R-fact argumentation. In the Huge case mentioned earlier, for example, R should have explicitly made the factual claim that Huge is not guilty once the retrial was initiated, as Zhao Zhihong was known to be the real killer. In a criminal ALG, it is theoretically possible that R, as the defense party, does not make any litigation argumentation but just refutes S’s, because the principle of presumed innocence is highly regarded in a normal state with an adequate legal system. This principle implies that S must justify that the accused is guilty, and is innocent otherwise, and also that a decision must be beyond any reasonable doubt. R need not justify the claim-as-fact that the accused is not guilty, and may not need not to make any factual claim but only disprove the S-fact argumentation. An extreme case is for R to demonstrate that the S’s ES cannot sufficiently support its FS . A classic example is the O. J. Simpson case in Los Angeles in the 1990s. In the Simpson case, R’s successful advocacy of innocence does not rest with Simpson’s being ontologically innocent but with a series of successful argumentative strategies utilized by R based on the premise that only God knows whether Simpson is guilty. One of R’s key argumentative strategies was to produce evidence that Detective Mark Fuhrman was guilty of racial discrimination rather than that Simpson was innocent. Cross-examined by the defense attorney F. Lee Bailey on March 15, 1995, Fuhrman explicitly denied ever using the word “nigger” over the previous ten years. However, on 29 August 1995, R presented a recording in which Fuhrman had given a courtroom interview to Laura Hart McKinny in 1985. Fuhrman used the word “nigger” in this recording 41 times. Thus, R successfully justified that Fuhrman racially discriminated. Fuhrman then had to refuse to answer any questions, citing his Fifth Amendment privilege against self-incrimination, when he appeared on the

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stand on 6 September 1995. All further evidence produced by Fuhrman in court was then questioned by the jury. One other important scenario made the jury believe that evidence produced by Fuhrman in court was inadmissible due to racial discrimination. On 15 May 1995, Fuhrman presented two Arist Light gloves (size XL) as evidence in courtroom; the left glove was found at Bundy and the right at Simpson’s residence. Judge Ito asked Simpson to try one of them on, and it was obviously too small for Simpson. Other important and relevant evidence such as bloodstains, shoeprints, hair, and fiber, were consequently deemed unreliable, as Fuhrman appeared fully capable of fabricating them. Thus, the whole chain of evidence produced by S is collapsed. Proof beyond reasonable doubt is necessary for a just and fair criminal trial, so it is reasonable for the jury to decide that Simpson’s criminal fact was not established. Nevertheless, both S and R must fulfill their burden of proof if they make a claim-as-fact, otherwise they must suffer unfavorable legal consequences, due to the principle that the burden of proof always lies with the claimant, which is typically pursued in a civil ALG. If the party who shoulders the burden of proof cannot perform its corresponding responsibility, it cannot be inferred that the other’s factual claim, FS or FR , holds by default reasoning. As such, the Simpson case highlights a paradox of the American judicial system: Simpson was found to be innocent in the criminal trial, but he must bear the relevant civil compensation in the related civil trial. This paradox is due to the two different allocation principles of the burden of proof in a criminal and civil ALG. T-fact argumentation is generally a core argumentation of ALG, which should be based on the game about fact argumentation among/between S, R, and T. However, it is not necessary that the party who presents a claim-as-fact provides evidence to support this, whether in a criminal or a civil ALG. One party can sometimes present a factual claim without relevant evidence as the burden of production lies on the other party. In the case of the reverse burden of proof, for example, the claimant’s claim-as-fact holds if the other cannot fulfill its corresponding responsibilities. These phenomena embody the subtlety of an ALG, and constructing T-fact argumentation is simply to provide some equilibrium under this subtlety, so legal dispute can be resolved and judicial justice achieved. In the next section, we will discuss how T should construct its fact argumentation.

6 T-Fact Argumentation T-fact argumentation refers to the argumentation made by T in an ALG. T-fact is the verdict fact claimed by T in an ALG. Like S- and R-facts, T-fact is unlike an objective fact due to its defeasibility. In the She-Xianglin case, for example, the criminal factual claim asserted that She Xianglin killed his wife Zhang-Zaiyu, which had been proved on the basis of evidence both at the first trial in the Court of Jingshan County and the second trial in the Jingmeng Intermediate People’s Court. However, an objective

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fact is that Zhang-Zaiyu returned home on 28 April 2005, which completely undermined the original T-fact argumentation and demonstrates that T-fact argumentation is defeasible and also that a T-fact is not an objective fact but only a claim-as-fact. In an ALG, argumentation constructing T’s litigation has three main purposes: (a) Fact-finding or fact-identifying, i.e., to identify the members of the T-fact set FT ; (b) Application of law, i.e., to identify the members of legal norm set NT and its legal interpretation set IT , which can be applicable to FT ; and (c) Decision-making, i.e., to infer the members of the T-conclusion set CT , from IT together with FT . We only address the first purpose here as we are concerned with fact argumentation. Unlike constructing S- and R-fact argumentation, where both S and R use fact argumentation only for their own interests and thus an S- or R-attorney may not tell the truth but also cannot lie to the court, T must follow the principle of judicial justice in constructing fact argumentation. Three member types make up FT . First is self-evident fact, which is free of proof, A self-evident fact is typically regarded as free of proof, but still is defeasible if another player has a sufficient set of evidence to overturn it in an ALG. Specific regulations concerning self-evident facts are different in criminal, civil, or administrative proceedings in the law system of mainland China. Self-evident facts in a civil ALG are determined in China by the CPL and its relevant regulations, and cover natural laws and theorems, well-known or presumptive facts, those established by an effective decision made by a court or an arbitral organization, and a notarization certificate issued by a notarial organ. As previously mentioned, each self-evident fact should unconditionally become a FT member with no evidence to overturn it, but sometimes there are exceptions. In the renowned Zhang-Xueying v. Jiang-Lunfang case in 2001, for example, the trier party T did not identify the self-evident fact that Zhang was to inherit part of the dead Huang Yongbin’s estate, which had been notarized by the Notary Office of Naxi District.10 A self-evident fact is thus neither sufficient nor necessary in itself to become a FT member, because it will depend on whether the opponent will fulfill the burden of proof or not. Self-evident facts in an administrative ALG are determined in China by article 68 of the Regulation on Issues of Administrative Litigation Evidence issued by the SPC in 2002. They cover natural laws and theorems, well-known facts, and those presumed by law or by the rule of daily experiences, or proven in conformity with legal provisions. Internationally, the common practice in administrative proceedings is usually regarded as per civil proceedings, but it is not difficult to find significant differences between self-evident facts in a civil ALG and those in an administrative ALG in the legal system of mainland China. For example, in the latter a fact presumed by the rule of daily experiences is self-evident, but in the former it is not. We cannot be sure if a fact proven by legal provisions in an administrative ALG is equal to one established by an effective decision of court or arbitral organization, or a notarization certificate issued by a notarial organ. These differences may simply be shortcomings that need to be improved to make our legal system more complete. 10 Xueying

Zhang v. Lunfang JIANG (2001) NaXi Min Chu Shen Zi 561.

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The self-evident facts in a criminal ALG can be determined by article 437 of the Regulations of Criminal Proceeding in the People’s Procuratorate, issued by SPP in 2012. This stipulates evidence need not be provided for the following: (a) commonsense facts known by most people; (b) those established by an effective decision of the court and not retried in the light of the procedure for trial supervision; (c) facts that are the content of law and regulation and, thus, judges should know them when performing their duties; (d) procedural facts with no disputes in a court trial; (e) those presumed by legal provisions; and (f) natural laws and theorems.11 The first type is vague, as what is regarded as within the scope of common-sense facts must still be further interpreted. There may be some facts beyond dispute whether in a civil, administrative, or criminal ALG, which are often classified as those requiring no evidence, but in the legal system of mainland China only occur in a criminal proceeding. These facts, which belong to the intersection between FS and FR and without dispute between S and R, should also be considered as self-evident even in a criminal ALG. Each fact, as a member of the intersection between FS and FR , should obviously be regarded as a FT member to reduce the cost of a lawsuit and to improve the efficiency of litigation. An extreme case is that there may be no dispute between S and R over a socalled fact. The fact does not actually exist, but T must still be regarded as a selfevident T-fact, demonstrating the radical difference between legal and objective fact. This situation cannot be accepted by those who advocate substantial justice prior to procedural justice, as they regard the purpose of a trial as searching for (legal) truth. However, it is totally reasonable for those who insist on procedural justice prior to substantial because they think that making a legally proper case is just the ultimate purpose of a legal trial. The second is the identified fact. This refers to the T-fact which is inferred from a T-evidence set ET identified or found by a T-judge in an ALG. An identified fact is always related to fact-finding, which has three basic steps; producing, questioning, and identifying evidence. Producing evidence means that S, R, or T provide evidence to support their own claim-as-fact, and ALG players must generally speaking provide or present evidence. The burden of proof usually includes two burdens; the burden of production and the burden of justification. The latter is often called the burden of persuasion by lawyers. A claim that S or R should justify can only of course be its own, or else the ALG can no longer exist. The same English term burden of proof is translated by some jurists as the Chinese term Zhengming Zeren, the burden to prove, while by others who only focusing on the burden of production refer to the Chinese term Juezheng Zeren, the burden to produce evidence. Note that only S and R can produce evidence in the common law system but a T-judge can also produce it in the continental law system. Questioning evidence is to question the admissibility or probative force of the evidence produced by the opponent, either S or R. The three properties of evidence, 11 The Trial Regulations of Criminal Proceeding in the People’s Procuratorate, GanJian FaShiZi [2012] 2 Hao.

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i.e., authenticity, relevance, and legality, are necessary for admitting the evidence. Evidence lacking of any of the three properties should therefore not be admitted. All three are necessary but not sufficient, as the probative force is also necessary for the admissibility of some evidence. For some evidence, the three properties together with the probative force still do not constitute a sufficient condition for admissibility because of reasons such as witch-hunting, which cannot be told. In the Simpson case, for example, there are two typical real instances for this situation; the 9–11 call reporting Simpson’s violence directed at Nicole Brown, and the television video of Simpson’s flight in Bronco the chase by LAPD on 17 June 1994. Neither was presented to the jury in court, but obviously to some extent have authenticity, relevance, legality, and probative force. Who can otherwise decide whether evidence is admissible? Only a T-judge can decide, so a T-jury has no right to do so, even though they are T member. In a narrow sense, questioning evidence is understood only in litigation activities, but can broadly occur in arbitration. We will only discuss the former situation. In the common law system, an agent who is qualified for question evidence can only be either S or R. T has no right to question evidence. In the continental law system, S, R, and T can serve as agents to produce evidence, and therefore they can also act as agents to question evidence, as T serves as a referee in the common law system while in the continental law system is a symbol of justice and fairness. Identifying evidence means that a T-judge can determine what evidence produced by S or R should be admissible. An agent identifying evidence can only be a Tjudge, while any T-juror does not have this qualification. In the common law system, the task of a T-jury is to make evidential reasoning or factual argument from the ET identified by the collegial panel, to decide whether the FS or the FR hold. A Tjury in fact decides the probative force of its evidence set ET . In the common law system and in the continental law system, and in mainland China, a T-jury must make a decision about the probative force of evidence, and has no right to identify or question evidence. A difference between the two law systems is that a T-jury can only take part in making a factual decision together with the collegial panel in the continental law system, while a factual decision can only be made by a T-jury in the common law system. In conclusion, identifying evidence is always the T-judge’s duty. Fact argumentation is, however, made either completely (in the common law system) or partly (in the continental law system) by a T-jury once the ET is identified. Even in the common law system, a T-jury must make a factual decision under the T-judge’s instruction, and therefore fact argumentation is always conducted by a T-judge or a collegial panel. An evidence-based game then exists, which is played against the admissibility and probative force of the evidence set, between S and R. A proven-by-judge fact is argued by the evidence directly produced by a T-judge in an ALG, and has specific characteristics. First, the fact only exists in the continental law system. In the common law system a T-judge has no right to produce evidence to support an FT member, so the third type of aforementioned facts does not exist in the latter. At any trial stage of the common law system, the T-judge cannot produce evidence to prove a T-fact. T-judges can also serve as arguers in an ALG, so that the

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evidence they identify is taken from either ES or ER , and thus T-evidence belongs to either ES or ER . According to some Chinese jurists, fact-finding means a T-judge must identify a T-fact. However, in the continental law system, a T-judge can produce evidence, which belongs to both ES or ER , to prove a T-fact. A T-judge should then be regarded as an arguer or a player in an ALG. Of course, T-judges must also make their fact argumentation, but in the common law system they can identify but not produce evidence, and thus must always make the fact argumentation for an ultimate legal conclusion because any colligate panel cannot refuse to deliver a verdict in an ALG. Second, any evidence produced by a T-judge cannot be questioned and need not be identified further at the first trial stage. However, evidence produced by the T-judge at one stage of trial could not be accepted by the T-judge at its next stage, so it is defeasible. This type of proven-by-judge fact can cause a procedural problem that must be quickly resolved; restriction must be imposed on a T-judge’s discretion in the continental law system to prevent them from misusing or even abusing these rights. By examining a series of major criminal misjudged cases, such as the She-Xianglin case, the Zhao-Zuohai case, or the Huge-Jiletu case, which occurred in the previous twenty years in mainland China, we find a root cause to be that the relevant collegiate panel have misused or abused their discretion. Every T-fact is therefore either self-evident, identified, or proven-by-judge in the continental law system, while they are either self-evident or identified in the common law system. Like an S- or R-fact, a T-fact is only a claim-as-fact and thus must be supported by evidence, unless it is self-evident. Particularly at the second trial or retrial stage, procedurally T has the right to overturn a T-fact justified by T at the first stage, demonstrating that a legal fact needs to be and can be argued, and therefore fact argumentation is also always defeasible.

7 Conclusion Legal fact, unlike objective fact, is simply a claim-as-fact. Thus it always must be argued in an ALG, in which S, R, and T will typically make their litigation argumentation in line with the pattern of LFA. In playing an ALG, S, R, or T will tell their own self-regarding stories but their purposes are different. For example, the purpose of both S and R is to persuade T, while T’s purpose is to persuade the intended audience, including S and R. Attorneys strive to seek legal rights for their own parties. Accordingly, attorneys may not tell the truth, but they cannot lie in a judicial and fair law system, as lying as perjury is illegal. However, T’s mission, unlike S’s and R’s, is to do justice, and T has different responsibilities in the two different legal systems. In the common law system, a T-judge’s duty is to carry out procedural justice and a T-jury’s mission is mainly to carry out substantial justice, while in the continental law system, a T-judge always tries to carry out both procedural and substantial justice together with the T-jury.

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Acknowledgements The work in this paper is supported by the Chinese MOE Project of Key Research of Humanities and Social Sciences at Universities (15JJD720014), the National Social Science Fund of China (13AZX0017), and the project of the Pearl River Distinguished Professor in Guangdong Province (2013). I would like to thank Dr. Peng Wu for careful text proofreading.

References Feteris, Eveline T. 1999. Fundamentals of Legal Argumentation, 92. Rescher, Nicholas. 1977. Dialectics: Controversy-Oriented Approach to the Theory of Knowledge, 43. Teply, Larry L. 2005. Legal Negotiation in a Nutshell, 2nd ed., 1. Van Eemeren, Frans H., Rob Grootendorst, and Francisca Snoeck Henkemans. 2002. Argumentation: Analysis, Evaluation, Presentation, 43. Xiong, Minghui. 2010. Litigation Argumentation: A Logical Perspective of Litigation Games (Chinese), 75.

How to Transform Evidence into Fact? Analysis on the Evidence of Yinjie Cui Case Luping Zhang

1 Distance Between Evidence and Fact Evidence is the primary sourceto obtain the case facts. However, traditional discussion on the case facts only emphasizes on evidence, and the phase of narrative construction has been ignored. This paper is dedicated to reveal that if one observes the case facts by the general theory of evidence, he would feel a rupture between evidence and factual texts. What is worse, this kind of contradiction would come to some ambiguous and confusing understandings in the recognition and deduction between evidence and factual texts. Thus, the author endeavors to propose a propulsive theoretical framework in the phase of narrative construction so as to offset the sense of rupture. Since the author could not personally intervene into the criminal case and could only get the information approved to be released by existing law and regulations, all of the evidence in Yingjie CUI Case came from the written judgment of first instance. However, since these evidences in the written judgment are the results of the crossexamination proceedings and have been adopted by judges of collegiate bench, they enjoy more advantages in supporting the author’s opinions that evidence cannot effectively exclude the differentiation of factual texts caused by rhetoric, which can occur after evidences. While the disadvantage is that they are not firsthand evidences collected in the investigation and prosecution stage and the firsthand information known by judicial officers, so the author cannot give detailed analysis on the role that the rhetoric plays in each judicial phases.

This paper is supported by the Opening Project of Key Laboratory of Evidence Science (China University of Political Science and Law), Ministry of Education, Grant Number: 2016KFKT09. L. Zhang (B) Ministry of Education, School of Foreign Languages, China University of Political Science and Law, Beijing, China © China University of Political Science and Law Press 2021 B. Zhang et al. (eds.), Facts and Evidence, https://doi.org/10.1007/978-981-15-9639-1_13

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1.1 The Evidence of Yingjie CUI Case and Its Implied Information 1.1.1

The Evidence of Yingjie CUI Case

Please Read the physical evidence, documentary evidence and authentication and inspection report listed in the written judgment: (1) According to the Record on Forensics Examination and photos provided by criminal and investigation team in Public Security Bureau of Haidian District Branch in Beijing, the site was located on the right lane of the southeast side of the main road on No. 1 Bridge in Zhongguancun Science Park, Beijing. The central scene was on the right lane 30 m southwards of the main road intersections from south to north park lane on the southeast side of No. 1 Bridge in Zhongguancun Science Park. In the scene, there was a 1.7-meter-long blood on the ground (extracted) and a red plastic handle (extracted) aside. In the office of City Administration Group of Haidian District on the underground floor in Hailong Building, there was the tricycle with a red plastic scabbard (extracted) under stove, pan and other items. In the emergency room in Haidian Hospital, a 10.5 cm-long and 2.3 cm-wide-blade (according to the briefing, the blade was removed from Zhiqiang LI’s in emergency rescuing) was extracted from Zhaojiang YIN in City Administration Group of Haidian District. A cloth (has been submitted for inspection) was found in the 79th locker in the hallway of the monitoring room of the security department in Minggui Evening Club on the eighth floor of Kemao Electronic Mall in Zhongguancun Science Park, Haidian District in Beijing. (2) The conclusion in “Beijing the Public Law of Pathological Character (2006) No. 676 Autopsy Certification” issued by Forensic Identification Center in Beijing Municipal Public Security Bureau proved that there was a 10 cm-long visible diagonal stripe wound on the left side of the laryngeal prominence, with slightly right direction below the subcutaneous superficial muscular layer, which led to the phleborrhexis on the right brachiocephalic from Right thoracic cavity to the superior lobe of right lung. Zhiqiang LI died from the hemorrhagic shock caused by stabbing (like blade) hurt on the right brachiocephalic vein and the right upper lobe. (3) The conclusion in “Beijing the Public Law of Physical Evidence Character (2006) No. 2747 Biological Evidence Certification” issued by Forensic Identification Center in Beijing Municipal Public Security Bureau proved and strongly supported that the two submitted blood stains at the scene and the blood stains on the blade and the cloth (the 79th locker in the hallway of the monitoring room of the security department in Minggui Evening Club) was left by Zhiqiang LI. (4) The photos of tricycle, blade, and knife handle and scabbard issued in the court were confirmed by the defendant Yingjie CUI as the items and criminal tools he used. (5) Registration of Criminal Cases issued by Criminal Investigation Detachment of Haidian Sub Office of Beijing Municipal Public Security Bureau proved that on 5:10 p.m. August 11, 2006, claim reporter Gonghai CUI stated that during the law

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enforcement with Zhiqiang LI and other colleagues at the north corner of the Kemao Building in Zhongguancun Science Park, Haidian District, a man stabbed Zhiqiang LI in the neck who died after being sent to the hospital. (6) The Process of Appearance in Court and The Statement of Work issued by Criminal Investigation Detachment of Haidian Sub Office of Beijing Municipal Public Security Bureau proved that by inquiry, Yingjie CUI had major suspicion for commit an offense. On 3 p.m. August 12, 2006, Yingjie CUI summoned his friend Lei ZHANG to Jinbohan International Business Hotel in Haidian District, Beijing. According to Lei ZHANG, Yingjie CUI claimed that he stabbed a city administration officer and needed money to hide away. Afterwards, Yingjie CUI took the money provided by Xuming NIU and Yuli DUAN and went to the hideout that Lei ZHANG and Jianhua ZHANG arranged. On 4 a.m. that day, Jianhua ZHANG was arrested by the police at Jinbohan International Business Hotel in Haidian District. On 5:30 a.m., Yingjie CUI was arrested by the police at the fifth floor of the 72th Building in Wanlian Villa in Tianjing Tanggu Development Zone. On 4 p.m. August 31, 2006, Xuming NIU was arrested by the police at Hengchang Technology Co. Ltd in Zhongguancun Science Park in Haidian District, Beijing. On 9 a.m. of September 1, 2006, Yuli DUAN contacted with the police and voluntarily surrendered himself. The police came to Kemao Building in Haidian District and took Yuli DUAN away for further investigation. (7) The Household Register issued by Public Security Organs verified the information including the name, date of birth and address etc. of Yingjie CUI, Lei ZHANG, Xuming NIU, Jianhua ZHANG, Yuli DUAN and the victim ZhiQiang LI.1 Each paragraph in the testimony of witness in the judgment was rhetoric of finished narrative and was processed by more than one narrator ranging from the statement recollected by witnesses in investigation phase and the file written by Public Security Bureau and Procuratorate to the rearranged and crystalized story written by the judge in the court verdict. Therefore, in order to avoid preconceived biases, the author would skip the first part of the testimony of witnesses, but to choose the evidence that closer to the original material i.e. the direct testimony of witnesses in court, which is presented in the form of dialogue. In the trial of Yingjie CUI Case, only one witness Zhao was summoned (the girl who sold things together with Yingjie CUI on the day of the crime): [The defense attorney interrogated the witness] Defense attorney: Zhao, when did you and Yingjie CUI spread out goods for sale? Zhao: About 3 or 4 p.m. Defense attorney: When were you surrounded by a group of people and grabbing the tricycle? Zhao: About 4:30 p.m. Defense attorney: What did the city administration officers do? Zhao: When we protected our tricycle, they pulled, and I begged them to leave the tricycle for us. We were all fighting over the tricycle. 1 Criminal

Judgment of the First Intermediate People’s Court, Beijing (2006) No. 3500, Yi Zhong Criminal Chu Zi.

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Defense attorney: Zhao: Defense attorney: Zhao: Defense attorney: Zhao: Defense attorney: Zhao: Defense attorney: Zhao: Defense attorney: Zhao: Defense attorney: Zhao: Defense attorney: Zhao: Defense attorney: Zhao: Defense attorney: Zhao:

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When I turned around, I found the tricycle had been loaded on their car. I stayed there for 3 or 4 min. I didn’t know what happened when I turned around. Did the officers show their papers when they confiscated the tricycle? No. Did they fill in the form of decision for administrative penalty? No. Did they show their notice of seizure of goods? No. What did Yingjie CUI say to the officers? He asked them to leave the car, and we would not do any business. Did you ever see Yingjie CUI stabbing one of the officers in chaos? No. I have read your record. How did you know those who came to you were city administration officers? Yingjie CUI told me. When? When the officers come to us. Who told you that the tricycle and the sausage were confiscated? I was not clear about that. Did you know how many people were chasing Yingjie CUI? Seven or eight. When did you see that? Before or after the tricycle was loaded on the car? After.2

Other evidence in the form of dialogue includes statements of Yingjie CUI, Lei ZHANG, Xuming NIU, Jianhua ZHANG, Yuli DUAN. Due to space constraints, the author only chose parts of them as intuitive understanding. [The prosecutor interrogated the defendant Yingjie CUI] Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor:

Did you know the victim in this case? No. Did you have contradiction with him before? No. Who did you have conflict with on August 11, this year and what is the reason? Yingjie CUI: I don’t know. Prosecutor: What good did you sell? Yingjie CUI: Sausage. Prosecutor: Did you have any business license? 2 Trial

transcript of Yingjie CUI Case heard in the First Intermediate People’s Court, Beijing, 12 December 2006, http://tiebabaidu.com/p/226845523 (visit date: 1 March 2015).

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Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI:

Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI:

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No. Have you ever been punished for without business license? Yes. Who gave the punishment? I didn’t know at that time. On August 11, when you were doing selling things without business license, who interfered with your business? I didn’t know, just a group of people. Did someone talk to you? No one talked to me. They just went me straight and pulled my tricycle. What did you do? I thought them maybe people in community. I asked them but no one answered me. So I begged them but they insisted on confiscating my tricycle. What did you hold in your hand at that time? A knife. I was cutting the sausages. What action did you take? I scared them. What happened afterwards? Then I left. Did those people take actions on you? I didn’t notice. Why did you leave? Because more and more people were coming, and I thought it was useless to asking my tricycle back. Let them take it, and I left. Why did you back? I came back to find the girl. What was in your hand at that moment? I was holding my knife all the time. Who did you meet after you came back? I saw them loading my tricycle on their car. Did you see the cloth and the appearance of the victim? No. Why you stabbed him by knife? I didn’t have a specific target. He was the closest and the most threatening one for me. How did he threaten you? He slid past me, and I didn’t see clearly. How did you hold your knife? I hold the knife in my right hand with the blade downwards. How did you stab the victim? I didn’t see. I just scratched. I was afraid of being caught by him, so I just scratched him by knife. How did you scratch? I couldn’t remember

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[The prosecutorinterrogated the defendant Lei ZHANG] Prosecutor: Lei ZHANG: Prosecutor: Lei ZHANG: Prosecutor: Lei ZHANG: Prosecutor: Lei ZHANG:

Prosecutor: Lei ZHANG: Prosecutor: Lei ZHANG:

What was the nature of your relationship? We were colleagues. How did you two get along? Not bad. You said that when you had discussion at a snack bar, you said something happened to Yingjie CUI. What was the matter? He fought with other people. What did he tell you? He asked me for money at the snack bar. I said I didn’t have money and asked him what was wrong. He told me that he injured someone in a fight. Who was the injured? A city administration officer. How about the injury? I didn’t know

[The defense attorney interrogated Lei ZHANG] Defense attorney: Could you judge that Yingjie CUI had a fight with someone the day you see him? Lei ZHANG: No. Defense attorney: So the fight and the injury were all his oral statements? Lei ZHANG: Yes. Defense attorney: Did he say how the injury was? Lei ZHANG: No.3 1.1.2

Information Displayed by the Evidence

What would common people feel if they were asked to hear the case, identify the case facts and determine whether the defendant is guilty with those unreserved evidence? Legal education in class rarely involves the study on how those facts were collected, but it pays more attention to deal with the presented facts and how should a legal professional use the applicable law use law as though those “facts” are readymade. “Recurring facts in written form (in papers and homework) are normally assumed to be complete and realistic in terms of legal education in universities. Therefore, the students are only required evaluate them, but it is a different story when it comes to practice.4 As to the situation, vast majority of average reasonable people would see a mess of blood, a knife used by the defense attorney caused the death of the victim—evidence (1) and (4), a cloth worn by the defendant with the blood of the victim—evidence (3), 3 Trial

transcript of Yingjie CUI Case heard in the First Intermediate People’s Court, Beijing, 12 December 2006, http://tiebabaidu.com/p/226845523 (visit date: 1 March 2015). 4 Rüthers (2003, 298).

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the victim died of the sever wound on vena cava and lungs—evidence (2), someone reported the defense attorney was the criminal—evidence (6). In terms of the testimony and confessions in the way of question and answer, we can only get some fragmented, unfocused, and even contradictory pieces of information. Here, we would leave out discussion on whether questioners have already had a set of preconceptions about the fact before proposing interrogations. What is certain, though, is that those people proposed the questions for the purposes of their own consideration, while the purpose cannot be presented to others and everything must look like “being objective”, so the sequence is vague for other people, and the respondents are in a passive position where he answered whatever he has been asked, being impossible to directly demo a complete set of narrative text. For example, the prosecutor asked the defendant why he came back to the scene. The defendant replied that he came back to find the girl. This question seemed to attract people’s attention to the motives and mental process of the defendant, while the defendant’s answer changed people’s thinking mode. It seemed that the dialogue had nothing to do with the intended murder case (it is not random, but has fairly subtle rhetorical confrontation). The ensuing question and answer appeared more ambivalent when the prosecutor asked the defendant what he held in hands, our thinking mode was changed again until the defendant answered that he was holding the knife that stabbed the victim all the time, did the dialogue back to the topic of intended murder. However, there were roundabout rhetoric and displayed items, but the facts were missing. Where were they? It could not automatically appear in front of a judge, the jury or any non-witness. (It is still doubtful whether the witness can represent the fact for an individual’s perception is always limited and even those closely involved cannot see clearly. Moreover, different people may have different perspectives and cognitions even though they were experiencing the same events. Thus their thinking mode and memory process are just the material sources of the history of narrative text, rather than the history narrative itself.) It is a process of discovery or to be more specific, a process of “creation” which does not emerge out of the void, but have its own specific pattern. Take the bottom line effect of the fact for instance; the facts cannot completely separate itself from evidence. In this case, it would not be convincing if someone claims a proposal in apparent conflict with the evidence, like Zhiqiang LI was not killed by Yingjie CUI or Yingjie CUI did not have a clash with the city administration officer. One more example is the rule about how to use law in judicial process. If some evidences were true but were purchased illegally, the court is not supposed to adopt the evidence as the standard to decide the case facts. However, will the task be accomplished simply with evidence and norms of evidence handling? How do people see or ascertain facts from the evidence? Or in other words, how exactly does the evidence turn into facts? It is difficult to find an explanation for those questions in the legal education that people familiar with. Some scholars even held that it is a process of fuzzy psychology and mentality which cannot be explained, or may be generally called free evaluation of evidence through

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inner conviction.5 In traditional legal theory, this argument may not be wrong because traditional law fails to provide researches on the process of psychological cognition. What’s worse, on the one hand, we acknowledge that it is a fuzzy process of finding out the case facts through evidence, but we are unable to explain the reasons behind. On the other hand, we claim in a high profile that there is only one single truth, and the facts need to be definite and derived from evidence, which is the fundamental basis for the justice. To find the answer, we need to first inspect the distance between evidence to facts.

1.2 Transformation from Evidence to Fact First, the author would list the events are adopted by the procedure of examining witness in the court. (1) Yingjie CUI was a farmer who worked in a city, living in a plight as of four months of salary arrears. (2) Yingjie CUI borrowed money to buy tools like tricycle and spread sausages for sale by the street side of Zhongguancun Science Park without business license. (3) At about 5 p.m. of August 11, 2006, City Administration Group officers came to Yingjie CUI’s stall to investigate and penalize peddlers without business license. (4) The first group of officers didn’t wear uniforms or present any written documents or certificates, even without oral explanations. (5) Yingjie CUI had a dispute with the officers for his tricycle with a knife in his hands. (6) The tricycle was confiscated, and Yingjie CUI left the scene and was lost from Zhao who set up street stall with him. (7) Yingjie CUI went back to the scene and rushed into the crowd with a knife in his hands. (8) The vice leader of the City Administration Group was stabbed by Yingjie CUI in the neck and was dead after being sent to the hospital. The clues of the case are chronologically listed as follows: In the early 2004 In 2006

Yingjie CUI came to Beijing. Yingjie CUI spread things for sale without license in. Zhongguancun Science Park. On August 11, 2006 Yingjie CUI’s business was stopped. Yingjie CUI had a dispute with people who stopped his business. Yingjie CUI left the scene. Yingjie CUI went back to the scene. Zhiqiang LI was stabbed by the knife in Yingjie CUI’s hands. Zhiqiang LI was dead after being sent to the hospital. 5 Su

(2000, 162).

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On August 12, 2006 Yingjie CUI was arrested by the Public Security Department. Please focus on the timeline before Zhiqiang LI was stabbed by Yingjie CUI: Yingjie CUI had a dispute with people who stopped his business Yingjie CUI left the scene Yingjie CUI went back to the scene i.e. event (5) to event (7): (5) Yingjie CUI had a dispute about the tricycle with city administration officers with a knife in his hand. (6) The tricycle was confiscated, and Yingjie CUI left the scene and was separated from Zhao who sold goods with him. (7) Yingjie CUI went back to the scene, running into the crowd with a knife in his hand. As to the event (5), two pieces of evidence which are the interrogation sessions in the court are comparatively original. One is the Zhao (the Witness)’s answer to the question of the defendant lawyer of Yingjie CUI. And the other is the deposition of Yingjie CUI under the interrogation of the prosecutor: [The defense attorneyinterrogated the witness] Defense attorney: What is the time when you were surrounded by a group of people and grabbing the tricycle? Zhao: About 4:30 p.m. Defense attorney: What did the city administration officers do? Zhao: When we protected our tricycle, they pulled, and I begged them to leave the tricycle for us. We were all fighting over the tricycle. When I turned around, I found the tricycle had been loaded on their car. I stayed there for 3 or 4 min. I didn’t know what happened when I turned around [The prosecutor questioned the defendant] Prosecutor:

On August 11, when you were doing selling things without business license, and who interfered with your business? Yingjie CUI: I didn’t know, just a group of people. Prosecutor: Did someone talk to you? Yingjie CUI: No one talked to me. They just went me straight and pulled my tricycle … Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: 6 Trial

What did you hold in your hand at that time? A knife. I was cutting the sausages. What action did you take? I threatened them. What happened afterwards? Then I left.6

transcript of Yingjie CUI Case heard in the First Intermediate People’s Court, Beijing, 12 December, 2006, http://tiebabaidu.com/p/226845523 (visit date: 1 March, 2015).

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Testimony and the deposition, a strong statement form of recalling, is an expression of verbalization. Certainly, those who recall have their own overall view of what happened, vague or clear. However, in the session of questions and answers in the court, the rhetoric tendency of its narrative is broken. Therefore, the recalling statement remains in the stage where language hasn’t been evolved into the narrative stage. The first reason is the form of questions and answers which make people unable to organize their languages in a long statement. On the other hand, although people who answered questions are witnesses, people who asked questions kept adding their own wills, trying to control the thinking mode of the witnesses or disturb their original recognition, leading them to where they expected them to go. Under the confrontation of the two wills, contradictions and confusion are inevitable, which caused great difficulties for hearer in the court. The above two dialogues are all about the situation happened before Zhiqiang LI, the victim, was killed when the city administration officers came. To be sure, Yingjie CUI had a dispute with the officers, but what does “dispute” exactly mean? This question seems have no meaning in chronicle texts and is even forgotten by readers. However, under the context of judicial activities (especially in the context of the trial of the criminal case right now), it becomes an important issue. Later, we will see both sides making a fuss on this detail because it is related to how the next plot would be organized. According to Zhao, the situation at that time was that “when we protected our tricycle, they pulled” and she “begged” the officer (Zhao said that she had already known that those people were city administration officers, and their purpose was to confiscate their things for unlicensed business activity, which is different from what Yingjie CUI had tried to imply). At first, what Yingjie CUI tried to describe was similar to what Zhao said. The prosecutor asked Yingjie CUI “who interfered with your business?” This question seems redundant, but be tactful. If the defendant answered “city administrationofficers”, it was tantamount to admitting in court that he was against the law enforcement. And Yingjie CUI seemed to perceive the snare in the question, so he said “I didn’t know, just a group of people”, which not only escaped others target, but also described a picture where he was plundered by unidentified people. However, the persecutor suddenly asked Yingjie CUI to answer the question “what did you hold” in strong demand. If we give a look at the Written Opinion Recommending Prosecution of the Public Security Organs and the Indictment of the Procuratorate, what purpose that the prosecutor wanted to achieve and what rhetoric role would the question play in the narrative texts of the prosecution are very clear. The prosecutor attempted to prove that Yingjie CUI came with preparation. While the defendant truthfully admitted that he held a knife in his hands to cut the sausages, he also added that “I scared them”, which can be perceived as “I threatened them” or “I just scared them, and I didn’t mean to hurt them”. Then, the author cannot draw a direct conclusion on what information does the evidence provide or what facts does the evidence prove because evidence, appeared as language, has been a result of rhetoric. If we draw a conclusion here, we are providing the readers with another rhetoric version. And it’s difficult for readers to control how the new rhetoric version is going to change the face of things (because

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it’s the author’s rhetoric definitely). Also, the new rhetoric version may have a lot of misleading and deceptions. But we can check out what do the lawsuit participants find from the evidences in their own submission. The Indictment of the Procuratorate gave the description of the case facts as follows: “On 5p.m. August 11, 2006, at the northwest corner of the road near the Kemao Mansion in Zhongguancun Science Park, Haidian District, Beijing, the defendant Yingjie CUI was punished by the City Administration Officers in Haidian District for unlicensed business activity, and he held a knife to threaten the officers to against the law enforcement of city administration…”7 The prosecutor also mentioned for several times in the court that “Yingjie CUI impeded the law enforcement by violent means”, which “can be defined as violent interference with public functions”.8 In other words, for the prosecutor, the confrontation between two sides after the officers came and before the victim’s death, was actually that Yingjie CUI held knife to threaten the law enforcement by violent means. Obviously, this description is far different from what Zhao’s words that “when we protected our tricycle, they pulled, and I begged them to leave the tricycle for us. We were all fighting over the tricycle. When I turned around, I found the tricycle had been loaded on their car9 ”. From Zhao’s words, we cannot find any information related to violent interference with law enforcement. Meanwhile, the description is also different from that of Yingjie CUI: “I was cutting the sausages with a knife… I scared them… then I left.”10 The rhetoric of the prosecutor seemed to be achieved by amplifying the “held a knife”, “scared” etc. (attention, the author did not use the word “deducting” on purpose). The evidence failed to manifest what “scared” exactly means. No matter from the perspective of logic or common sense, there are many existing possibilities and situations where the intimidating words like “I will hurt you if you do not” or the physical conflict like showing the weapon means to use it to attack, or there is no definite words but only cry and scream, and the knife was happened to be held in the hands (because he was cutting the sausages, forgetting to put down the bamboo slips, sausages or brushes, which is correspond with the common sense), or they were just glaring fiercely at each other without saying or doing anything. It is important to exclude reasonable suspicions, especially for the trial of the criminal cases. Even it’s impossible to realize such a high requirement in current Chinese justice, but to minimize the stories that would arouse suspicion still remains the bottom line that must be followed in the trial. However, in the prosecutor’s rhetoric, other possibilities were ignored, while the facts were narrowly defined as “threatening with a knife and resisting execution of law by violence”. 7 Indictment of the First Branch of Beijing People’s Procuratorate, No. 243, Jing Jian Yi Fen Criminal

Prosecution (2006). transcript of Yingjie CUI Case heard in the First Intermediate People’s Court, Beijing, 12 December, 2006, http://tiebabaidu.com/p/226845523 (visit date: 1 March, 2015). 9 Ibid. 10 Ibid. 8 Trial

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The witness testimony that listed in the judgment mentioned the rhetoric like threaten by knife when Yingjie CUI had a dispute with officers who confiscated the tricycle. We cannot know the original testimonies as they were rewrite by judges. While the facts confirmed by the court and the narrative texts written in the judgment had already defined Yingjie CUI’s action as a confrontation against the law enforcement by threatening with knife. Thus the author holds that the testimony in the judgment is the judges’ narrative and the facts described in the judgment are also the texts assimilated by the judges’ narrative, rather than the rhetoric of the witness. Therefore, the author would not apply them as examples in this paper. If the above examples yet fail it function to provide readers with draw a clear picture, let’s go on with event (6) and event (7). These two events have been one of the bones of the contention of both sides though the basic situation is very simple. After the dispute on the tricycle between Yingjie CUI and the officers and before Zhiqiang LI was stabbed, Yingjie CUI left the scene and went back again, but little evidence could be provided directly concerning the two events. Only witness Lu Fucai mentioned in the testimony: “The man refused the confiscation, while Zhiqiang LI pulled the tricycle. The man failed to protect his tricycle and ran into a courtyard. Zhiqiang LI and his colleagues loaded the tricycle on their car. After a while, the man with knife came back.11 ” Also, the defendant himself confessed in the court: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI: Prosecutor: Yingjie CUI:

What happened afterwards? Then I left. Did those people take actions on you? I didn’t notice. Why did you leave? Because more and more people were coming, and I thought it was useless to asking my tricycle back. Let them take it, and I left. Why did you back? I came back to find the girl. What was in your hand at that moment? I was holding my knife all the time. Who did you meet after you came back? I saw them loading my tricycle on their car. Did you see the cloth and the appearance of the victim? No.12

A passage of the video record on the scene which was made by Jinbo WANG in propaganda section of the City Administration Group of Haidian District, may be an evidence of the farthest from the rhetoric and the most objective. (The video we can see is the exact one that presented to the court during the trial, which was actually an announcement that had been gone through post-production like editing, dubbing 11 Criminal

Judgment of the First Intermediate People’s Court, Beijing (2006) No. 3500, Yi Zhong Criminal Chu Zi. 12 Website: http://www.bjcg.gov.cn/cgxw/ztxx/lzqzt/yyzl/index.htm (visit date: 2 August 2007).

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and off-screen narration, all of which described the scene from the standpoint of city administration, and could not be regarded as original material because of the strongly promotional character. But some fragment could still give us part of the specific circumstances at the scene.)13 The author has repeatedly watched the video where the van and the truck of the officers parked to the left of the camera, while Zhiqiang LI stood beside the van and Yingjie CUI was not within the lens. Then, Yingjie CUI ran from the right side of the camera to the left direction of the truck, passing by Zhiqiang LI who followed Yingjie CUI. What happened next was not photographed because a van blocked the sight. This evidence is an audio-visual material which presents that a man (the defendant) ran from one side of the camera to the other. It was just a very short physical action, but things went complicated when both sides discussed the “facts”. According to the Written Opinion Recommending Prosecution submitted by Beijing Municipal Public Security Bureau to The First Branch of The People’s Procuratorate of Beijing: On around 5 p.m. August 11, 2006, at the northwest corner of the road near the Kemao Building in Zhongguancun Science Park, Haidian District, the criminal suspect Yingjie CUI was punished for unlicensed business activity by the City Administration Group of Haidian District and harbored resentment in his bosom, so he used a knife to stab the vice leader of the city administration group Zhiqiang LI (male, 36 years old) in his neck who died of acute hemorrhagic shock.14 Please pay attention, first, Yingjie CUI in this factual text did not leave the scene at all. Second, the rhetoric ways like “was punished, harbored resentment in his bosom, used knife to stab…” were transformed from physical actions to the description of psychological activities though they were all about the facts before the defendant stabbed the victim. The statement made by the public prosecutor during the court debate phrase was in an obvious preference aiming at defendant’s psychological process: “Yingjie CUI had no personal grudges with Zhiqiang LI, but brought forth a revenge idea because he was punished for unlicensed business activity. His revenge idea pointed not only to Zhiqiang LI, but to the officers on the scene”.15 While the defense adopted the same strategy: The second time that Yingjie CUI went back to the scene to find the girl who sold goods together with him, rather than revenging… The second time that he went back not to kill Zhiqiang LI but to get his tools back… It only took Yingjie CUI nine seconds to rush to the direction of the truck and back to the scene. Then, it lasted only three seconds before Yingjie CUI stabbed the victim after being encircled by

13 Website:

http://www.bjcg.gov.cn/cgxw/ztxx/lzqzt/yyzl/index.htm (visit date: 2 August 2007). Opinions of the Public Security Bureau, Beijing, No. 516, Jing Gong Yu Su Zi. 15 Trial transcript of Yingjie CUI Case heard in the First Intermediate People’s Court, Beijing, 12 December 2006, http://tiebabaidu.com/p/226845523 (visit date: 1 March 2015). 14 Prosecution

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the officers. Considering it’s only three seconds, can we really conclude that Yingjie CUI’s killing was revenge?16 Actually, the basic information concerning the event (5), (6), (7), as far as the evidence itself, is relatively explicit and clear. The current evidence can confirm that Yingjie CUI had dispute with officers and left the scene but went back again. However, that’s all the information that the chronicle texts about the case can present. The difficult thing is not to find out the chronicle events from various evidences and clues, but the transformation to narrative history texts. How to explain the way that people get the plots presented in narrative texts from the evidences? As shown in the video lasts for several seconds, we can see a man ran from the right side of the scene to the other. However, this visual phenomenon needs to be transformed into the language. The author might as well state that the defendant ran from the right side of the scene to the other side with a knife in his hand. (Can this be regarded as the most realistic truth?) The author can also state that the defendant rushed towards the truck with a knife in his hand. (Set a certain target for his action, but what is the real target?) However, in the court, the statement about the facts was as followed: the defendant harbored resentment in his bosom and rushed to the officers with a knife in his hand (then he stabbed the vice leader), and, the defendant went back to the scene to find the girl, only to find his tricycle was loader on the truck. So he attempted to forward last-ditch effort to get his tricycle back (the incident came in the later chaos). It is not difficult for us to find the relations between the single event in chronicle texts and the situation shown by the evidence. However, the factual texts are too far away from the original evidences. The author holds that there is a huge and salutatory transformation from evidence to fact, and their relevance was very vague and lack of stable guarantee of certainty and uniqueness. “How to recognize this cognitive process” still remains a complicated and unsettled problem among many subjects like the science of law, the science of evidence, psychology and even in philosophy.

2 General Theory of Evidence Cognition 2.1 General Cognitive Approach Actually, it has already been recognized in jurisprudential academia that direct connections cannot be achieved between evidence and facts. “Fact has never been self-evident and will never automatically appear in front of a judge for the application of the law.”17 It is also recognized that both litigants jointly would make trade-offs and choices in the case facts that they told for the judges (perhaps the agents) based on their own standpoints and interests. But for judges and the juror, it is contented 16 Trial

transcript of Yingjie CUI Case heard in the First Intermediate People’s Court, Beijing, 12 December 2006, http://tieba.baidu.com/p/226845523 (visit date: 1 March 2015). 17 Yang (2007, 143).

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that he/she should play a neutral role and should not make trade-offs and distortion deliberately like the litigant, but to find out the facts in the evidence that presented in front of him/her. A complicated process is inevitable to discover facts that never show up automatically. And personal interests and subjectivity need to be excluded so as to achieve the so-called factual truth, regardless of legal reality or objective reality in the arguments. The facts finally confirmed by the court are the sole and certain case facrs. Thus, the focus of law is about how to regulate the process that the judge found the case facts. A representative summary of this is as follows: (1) How to solve the problem of subjective arbitrariness when the judges review and determine the evidences? What are the factors that would influence the judges when they are confirming the cases? … (2) Whether the judges have the ability to make correct confirmation on the case facts through the examination of evidences? … (3) In specific litigation, what are the legal systems that could guarantee that the judges can make correct confirmation on the case facts through the examination of evidences?18 Then, how do judges examine the evidences and find out the case facts? Generally speaking, the most obvious and the most widely discussed way in the theory is experience and logic. If people stress that the discovery of the facts is an intellection process where the transformation from evidences to the facts is unidirectional linear and seamless, they would easily imagine it as the form like deductive reasoning. Experience originates from the judge’s accurate command of the phenomena of everyday life, including personal experience and other people’s experience, social phenomena and theory of knowledge. And it also comes from the universal perceptions which extracted from the phenomena. For example, comparing the case description of a man with no direct interest than that of one with direct interest, the former one has higher reliability.19 The abstract proposition extracted from the experience will serve as the major premise. Then similar way of logical inference will be used to examine the relations between the major premise and every individual and specific situation. Finally, it could draw a conclusion. Another representative and more detailed summary in jurisprudential academia is that the methods of facts finding and confirmation are methods of direct perception, natural science, logic inference, the knowledge of experience and value judgment.20 By adopting the method of direct perception, it’s able to immediately obtain the desired content without any reasoning and explanations in intermediated links. For example, according to the video recorded by city administration officers on the scene, people could directly observe that the witness Zhao had a dispute with officers by dragging the tricycle, and Yingjie CUI rushed to the scene from outside suddenly, and can also see the officers that very day did not wear uniforms. The accesses to all of the information are without any deduction. (Certainly, according to author’s thinking mode that the “facts” should be discussed respectively, those content cannot 18 Zhang

(2003, 64). (2003, 64). 20 Yang (2007, 143). 19 Zhang

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be regarded as the case facts that received final conformation, but be entitled to single events in the case.) The method of natural science, as the name suggests, is a means to obtain information through a variety of approaches of natural science. For instance, through the detection of biotechnology, the bloodstain on the coat left by Yingjie CUI was confirmed to be the blood of the victim Zhiqiang LI; according to the techniques in the field of necropsy, the real reason for Zhiqiang LI’s death was the hemorrhagic shock due to the serious injury on vena cava and lungs caused by sharps, and the sharp is the knife that used by Yingjie CUI on the very day. These contents would be difficult to be realized if the theories of natural science and technical specifications are absent. The method of reasoning, the method of empiricism and other methods less applied are all methods obtaining messages through indirect inference, rather than having direct access to information. The author holds the opinion that the issues described here are very complicated. The way of logic inference, though frequently being discussed, argued that the means to ensure the preciseness and correctness of thinking, like rationality, logic and deduction in the field of law can ensure the fairness of the revealing of the facts and the results of the judgment. However, in judicial process, the word “logic” is as casual as the word “causality”, which implies it does not necessarily represent the relationship judgment between propositions of formal logic and between sentences (rarely relates to mathematical logic). Actually, this kind of way is seldom applied in the context of judicial practice. First of all, the syllogism deduction of “the major premise—the minor premise— conclusion” is rigorous in its requirement and its applicable objectives are limited to the relations between sentences (propositions) and sentences (propositions). However, the judicial process targets on the relations between experiences and events. They two are not identical. First, the experience and events might not necessarily presented by sentences and it could possibly be in the form of non-verbalization. Second a single proposition itself is exposed in questioning. For example, the syllogism deduction of “every human being would die—Zhang San is human—so Zhang San would die” can be the answer to the question “whether Zhang San would die or not” under the major premise. However, in judicial activities, problems to be solved is likely to be “do all people die”, or “is Zhang San a real person”, or “did Zhang San really see Li Si at that time”. Therefore, the logic inference in most judicial activities completely refers to a similarity that is antithetic to daily experience. For example, whether it conforms to people’s general imagination towards daily life and social practice if things go this way or the story is described in this way.

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2.2 Confused and Fallacious Inference A story in Ancient Chinese Justice (China University of Political Science and Law press, 2002 compiled by Kefei LI and Jun YANG) is seen as a typical case of finding out the case facts by logic inference. In the story, Sheng ZHOU and San ZHAO agreed on doing business in Nanjing Province together. San ZHAO got up early and went board, falling asleep while waiting for Zhou Sheng. The boatman Zhang Chao poled the boat to a secluded place, pushing Zhao into water and taking away his belongings. Then, Zhou Sheng came, but Zhang Chao lied about not seeing Zhao. So Zhou Sheng asked Zhang Chao to come to Zhao San’s home. After coming to his home, Zhao Chao shouted outside the door: Mrs. Zhao, where is Zhao San? Mrs. Zhao was surprised and said Zhao San had already left the home. Mrs. Zhao and Zhou Sheng looked for Zhao San for three days but found nothing, so they reported it to the local government. At first, county magistrate believed Mrs. Zhao killed his husband. Then, the case was appealed to a higher court. After reading the case, Yang Pingshi analyzed that after knocking the door, Zhao Chao called the name of Mrs. Zhao directly because he knew that Zhao San was not in the house. So Yang Pingshi confirmed that Zhang Chao was the criminal.21 However, the author believed that the inference fails to stand. To take this way of facts finding for the example of “logical inference” is in keeping with the statement mentioned above that the usage of the word “logic” in judicial process is random and cover an obvious speculation of empirical likelihood. In “after knocking the door, Zhang Chao called Mrs. Zhao directly” and “because he knew that Zhao San was not in the house”, the latter seems to be a judgment proposition which implied that whether Zhang Chao knew where was Zhao San under the context of the particular trial, while the former is just a visual scene description without topic sentences, both of which simply cannot form the structure of syllogism. However, in daily life, people do have behaviors like: having known someone was not at home and it is futile to call his name, so they would call other people. If the usage of the sentence “because…”, we can describe that “because Zhang Chao knew Zhao San was not at home, he called Zhao San’s wife”. However, the thinking mode described here simply bears analogical imagination with daily situations without any logical or casual necessity. In our daily life, there are also many factors that can lead to the same situation where “after knocking the door, Zhang Chao called Mrs. Zhao directly” without knowing whether her husband was at home. For example, what did Zhou Sheng say when he asked Zhang Chao to find Zhao San? If Zhao San had not show up for a long time and Zhou Sheng conjectured that Zhao San might not at home and was delayed by something on the way, Zhao Chao would be subconsciously influenced and called Mrs. Zhao directly. Moreover, it is known for people who have gained some understanding on psychology that the words that blurted out inadvertently have direct relation with what he or she bears in mind. If Chao ZHANG was not the criminal and was informed by Sheng ZHOU that San ZHAO hadn’t show up for a long time, he would speculate whether San 21 Yang

(2007, 143).

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ZHAO had an accident when he was out so he was not home, which might also be the reason that he called Mrs. Zhao directly. If a speculation not only reasonably fits one familiar daily situation, but also conforms to a second situation and the two situations are not mutually exclusive, then the speculation embraces very weak persuasive power. Let’s back to Yingjie CUI Case, event (5). Through directed perception from witness and testimony and the confession of the defendant in the court, we might briefly acknowledge that when Yingjie CUI encountered the officers, they had unfriendly disputed with each other. But what we might not precisely learn from the current evidences is that the definition of “dispute” that can be fit into judicial context. Was it a situation that Yingjie CUI threatened the officers and spelled resistance on law enforcement or was it simply a worker protecting his tools for livelihood from being confiscated? Now that we cannot draw a direct conclusion, we can only rely on indirect methods. Both the witness Zhao and the defendant Yingjie CUI asserted that they did not overreact, and they had the dispute with city administration officers only because they didn’t want their tricycle be confiscated. Since the witness and the defendant were the observer and the perpetrator, there must be of no inference in their direct description of the situation. However, the prosecutor was apparently reluctant if the court adopted the version, so they proposed the “facts” that Yingjie CUI threatened the officers by the knife in his hand which was regarded as a serious violent confrontation against laws. We cannot directly obtain the “threatening” and “resisting execution of law by violence” from the evidence, so where did those conclusions come from? Empirically speaking, it’s common and rational for a peddler to refuse officers to confiscate his management tools. Meanwhile, whether the knife in Yingjie CUI’s hands (please pay attention that Yingjie CUI kept holding the knife while he was cutting the sausages, rather than taking the knife after seeing the officers) can be connected with Yingjie CUI’s action against the officers and be regarded as threatening the law enforcement officers by knife? For a cursory imagination, the argument could be regarded as a rational speculation. However, there are not any conditions here to guarantee its accuracy and nothing can ensure its inevitability within the contexts. Under general circumstances, how would a peddler react if he was punished by city administration officers? As a normal person with economic rationality to seek advantages and avoid disadvantages, he definitely didn’t want his property to be confiscated because it would be an obstacle for him to start business again. At that time, the easiest and the most harmless way that one could think of was to run away, but if he was stopped by the officers, it would be a common plot that the peddler would not let the tool go or scramble for it with the officers. Now and then, peddlers would have violent dispute with the officers, or use weapons against them because they were cornered and irritable, which have once happened under the current Chinese social environment. In the case, there was not enough time for Yingjie CUI to escape, so the two circumstances would happen to him according to empirical speculation. First, he had admitted that he had dispute with the officers. Second, he did hold the knife in his hands for cutting the sausages, which would likely to be used as weapon that caused the death of Zhiqiang LI. Both sides could not reach a consensus

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in the court, especially the prosecutor who held the opinion that the defendant lied about the visual description. What they relied on was only the indirect speculation, but they had never proposed superior reasons. Whether Yingjie CUI’s action was the common dispute or violent confrontation against the law still remains the two parallel possibilities that cannot be excluded from each other. What criteria should the court follow to decide which side to believe? Probably, the description of Yingjie CUI and Zhao are more persuasive according to the standard of value of presumption of innocence. But at the end, we observed that the court did not do so but chose to believe the description that provided by the prosecutor, which conformed Yingjie CUI’s action as threatening the officers by knife. Certainly, the verdict did not give reasons to justify why the court confirmed the fact in this way. Event (7) further proved the confusion of the so-called facts inference. As aforementioned, we can see the defendant Yingjie CUI ran from one side of the scene to the other in the intuitive evidence material (audition material), which was supposed to be what happened after he left the scene and came back again, and it was also the exact period before Zhiqiang LI was killed. The information derived from directed perception was nothing else but a single and mechanical body move. However, no one had ever simply discussed the body move in the court as everyone believed that they should and they did see the psychological content behind the move. Virtually, the prosecutor overlooked the events happened after Yingjie CUI left the scene in the prosecution stage and only responded when the defendant mentioned and his lawyer positively emphasized this point. As to the behavior that Yingjie CUI came back to the scene, the prosecutor’s interpretation of his intention was to retaliate against the officers by killing them; while the defendant and his lawyer were very disgruntled about the interpretation and held the opinion that was not the case. They gave high-profile statement that Yingjie CUI had already given up the dispute between city administration officers, and he left the scene and came back to find Zhao. Also his behavior of running towards the crowd and the car of the officers were to try to get his tricycle back, which had nothing to do with the officers. These two views have formed a parallel confrontation that cannot be excluded from each other. Setting aside Yingjie CUI’s true intention (he might be the only one who knew the “truth”, bu this position of defendant hugely destroyed the persuasiveness of his words to audience), and also leave alone how people including the prosecutor, the defense attorney, the judge and people who cared about the case inside and outside of the court dealt with such a situation. Firstly, the body move we observed had been transformed into psychological activities that we failed to see, so how to guarantee the certainty of the logic in the transformation process? It is rather a vogue question to find what factors in the case that made it possible for people to judge that the behavior had reflected the content out of itself, which is hard to decide whether it is can be solved by logic. Probably, less strict logic inference can be applied as we can put it in the way that according to our long-term research on human behavior, thought and emotion, it is widely acknowledged that a normal person’s behavior has his own purpose. Therefore, Yingjie CUI must have something to do when he returned the scene for the second time.

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Afterwards, when we are supposed to reify the purpose of the defendant, the matter became more complicated. Was it revenge or finding someone? Where can we conclude such detailed psychological motives? How to demonstrate the logic relation? When seeing a man running from one side of the camera to the other, how to draw the conclusion of “harboring resentment in his heart and carrying out revenge intentionally”? Actually, both sides have failed to find any argument in court, and they just insisted on their opinion, but the author believes that it was impossible to give argument. It would be easier to make out a good case if we rely on experience. Because of the confiscation of tools, the peddler was in extreme emotions and wanted to revenge against the officers. This is a rational plot because it conforms to our observation towards real life where similar cases did happen. If we favored the statement of the prosecutor and regarded Yingjie CUI as a ferocious scoundrel who threatened the officers by knife, it is convincing to some extent that Yingjie CUI would commit the crime because he harbored resentment in his heart. On the other hand, if readers are inclined to believe the views of Yingjie CUI and his defense attorney, his leave clearly illustrated that he had given up the dispute with officers. He came back to the scene only to find Zhao and get back of his own property that had been confiscated, which also conforms to people’s daily experience. Under the same condition, we are still in a dilemma. (Actually, in the video clipped, the author noted that there was a set of passages at the truck of the officers when a tricycle was being loaded and the witness Zhao, the girl in yellow in the camera still held on to one end of the tricycle, and a male officer seized her round the middle and pushed her to the side. At that time, Zhao was alone, and Yingjie CUI was not in the passages, which proved that Yingjie CUI and Zhao were separated from each other for a while and revealed Yingjie CUI’s description that he saw his tricycle was loaded on the truck. However, this detail was ignored in the trial.) Although the methodology of evidence could generally list some theories and classify the cognition and thinking mode of evidence and facts, the validity of explanation would be quite weak when the micro theory came across specific and detailed realistic issues. In terms of the cognition of “evidence-fact” in justice, many dedicated and meticulous research in psychology have been conducted, one of which is the “story model” that proposed by American psychologists Nancy Pennington and Reid Hastie in the late 1980s and 1990s in the study on the judgment psychology of the jury in criminal cases in Anglo-American Legal System. It also gained considerable recognition in psychological study related to justice since 1990s. The author holds that this model has a very strong explanatory power in the detailed aspects of cognitive process of evidence, events and facts, especially the interpretation of the evidences mentioned above could get rational explanation in the model.

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3 The Theory of Story Model of Evidence Cognition 3.1 A Brief Introduction to Story Model: Story Comes Before Evidence According to the basic viewpoint concerning story model of evidence cognition in trial, the cognitive sequence of evidence and the facts is a one-way linear process from evidence to facts. Our traditional thought of the cognitive process which is to firstly make observation, reflection and analysis of the evidence material to find out the relations between evidences and then gradually get close to the complete facts, is false imagination. In reality, when people briefly know the information about the case and browse the evidence presented to them for the first time, they would form a narrative story concerning the basic overlook of the case; then they would observe and reorganize under the guidance of the narrative case story, which means the way that they understand the present information largely depends on the story that has previously formed in people’s mind. And the detailed formation of the story depends on factors like personal experience and cultural background of the judges.22 A simple example at hand is, when people heard somebody claimed that he had lost his wallet with a crack on his bag in the public place, they would immediately come up with the following narrative text: a thief (most would imagine a young man with a thin figure in shabby cloth) who waited to commit a crime in the crowded station or shopping mall, sneaked onto the victim’s handbag and gash it, casting away the wallet when the victim paid no attention and running away. The reasons behind the imagination were first because most people are familiar with such stories as they have heard or seen similar events and been told to be careful about the cutpurse in public place. Second, the key information of public place, lost wallet and the crack on the bag would cause directive association. Once we came up with such a narrative story, we are actually re-evaluating the provided information. The lost wallet is interpreted as pilferage, and the crack on the handbag looks like the thief had cut it by a blade. However, the organization of story would not remain unchangeable during the whole trial process. There might be more than one text. But when turning back to check the evidence, it might only find out to be a failure of verification, and then the story would be amended. For example, if someone looked through the rip in the carrier bag and found that the edge was not neat which looked like scratch damage by blunt pull. At this point, people would come up with another imagination: the owner of lost property was in a crowded station or a shopping mall where his bag was inadvertently scraped with some metal objects and was ripped, but the owner did not notice that the wallet dropped from the rip. When the story was revised, we got new explanation for the evidences we saw. The wallet was lost recklessly instead

22 For a detailed elaboration on the Story Model of Nancy Pennington and Reid Hastie, please refer

to Pennington and Hastie (1992: 189–206). And Pennington and Hastie (1993: 84–115).

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of being stolen. The rip on the bag was caused by the owner himself instead of cut by the theft. Two interpretation versions of the original information were decided by the preoccupations of the imaginative stories. If we changed story, there might be other explanations like the wallet was not lost but was forgotten at home, or the rip, though not neat, was still cut by the thief. In that case, how to ensure the accuracy of the understanding of evidence and the conformation of the facts in the trial of the case? Nancy Pennington and Reid Hastie held the opinion that the story model was made up by three parts: “(1) evaluate the evidence through story construction; (2) list the results after examining the rules of the jury trial; (3) draw the judicial conclusion by finding out the most appropriate and the best matched story and connecting it to the rules.”23 Meanwhile, the model also embraces four deterministic principles: (1) Coverage, which means the stories created must cover all reliable evidences; (2) Coherence, which means the stories should not be self-contradict; (3) Uniqueness, which means a variety of texts cannot co-exist at the same time, and only one fact of the case can be confirmed at last; (4) Goodness-of-fit, which means to achieve the best match adaption with the corresponding legal rules.24 A story concerning the case must include three parts of knowledge: (1) Information occurred on the court including different evidences, witness and testimony, and the confession made by the litigant; (2) stories in inquisitor’s mind that are similar with or related to the current case, like the similar cases happened in the inquisitor’s community; (3) people’s common expectation to a story with complete plots, like having both beginning and end or making out a good case.25 Coverage and coherence decide the degree of acceptance of the story of the case. The more the story could cover the evidence information in the trial, the more comprehensive the evidence provided for the inquisitor could be used, and the degree of the acceptance for using the story to explain the relations between evidences could also be higher (soon we will see that it’s difficult to realize the coverage and coherence in reality). The coherence in story is also a significant index to ensure the reliability that people understand and explain the evidences. While whether the story is conformed to the real events would be another story. The coherence itself must be complete without any contradiction, and the story must embrace the feeling of plausibility which means the description of the plots in the stories and the involved cases must correspond with people’s experience and imagination towards the real life. It’s necessary to stress that readers should not misapprehend that the story model discusses how evidence is constructed into case stories. On the contrary, the purpose of the theory is to explain how people get to know the evidence. Its essence lies in that it creatively discovered that people understand information of the evidence through the construction of stories. In other words, people first come up with stories in their

23 Pennington

and Hastie (1992). and Hastie (1992). 25 Pennington and Hastie (1992). 24 Pennington

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minds, and then acquire different understanding towards evidences through stories. Information, together with the original information provided by it, makes no sense itself. The so-called meaning was “endowed” throughout story.

3.2 Analyze the Evidence Cognition of Yingjie CUI Case Through Story Model In the first section, we have studied some part of evidences in Yingjie CUI Case, and we have also learned the different applications and interpretations that both sides adopted in the trial phase of the case, but neither of them could provide a reliable logic to illustrate the necessity of their statements. If we evaluate this situation by the theory of story model of evidence cognition, we can at least give a reasonable explanation to the understanding of the mechanism. Let’s retrospect the case facts in the Written Opinion Recommending Prosecution issued by Beijing Municipal Public Security Bureau (see the first section in this paper) and the Indictment issued by the First Branch of Beijing Municipal People’s Procuratorate: On around 5 p.m. August 11, 2006, at the northwest corner of the road near the Kemao Mansion in Zhongguancun Science Park, Haidian District, Beijing, the defendant Yingjie CUI was punished by the law enforcement officers of City Administration Group of Haidian District of Beijing Municipal Bureau of City Administration and Law Enforcement for unlicensed business activity. Yingjie CUI held a knife as a threat and resisted the law enforcement. Moreover, the defendant gave a fierce stab on the neck of Zhiqiang LI (male, died at 36). The stab hurt Zhiqiang LI on the right brachiocephalic vein and the right upper lobe which caused a hemorrhagic shock and death.26 It could be inferable that the police and the prosecution had firmly believed that it was an intentional injury or intended murder (the charge accused in the Written Opinion Recommending Prosecution was intentional injury causing death which was revised as intended murder in the Indictment issued by Beijing Municipal People’s Procuratorate). The stereotype has never been changed from prosecution to the trial phrase of the case. Evidences and case information under control are the case clues and core events listed at the end of the second section of this paper. When dealing with a case where an unlicensed peddlers clashed with law enforcement team and caused the death of the vice leader of the city administration, it’s not difficult to imagine a story following the thread of intended murder. The peddler knew that he had carried out illegal business activities and he didn’t want to be punished, but he couldn’t escape so he decided to fight against the officers by violent ways. Finally, a certain attacker stabbed someone to death at the scene.

26 Indictment

of the First Branch of Beijing People’s Procuratorate, No. 243, Jing Jian Yi Fen Criminal Prosecution (2006).

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It seems that the content of the Written Opinion Recommending Prosecutionis true in every single sentence and is coherent with clear casual relations among events. The evidence showed that Yingjie CUI was stopped by city administration officers for unlicensed business activity, and Yingjie CUI did hold a knife in his hand and use it to kill the victim Zhiqiang LI. Certainly, because of the foreshadowing, we know that the evidence is what the story tried to show. Because this is the story where a rascal who carried out illegal business activities fought against law enforcement in a violent way and intentionally killed someone. Therefore, “Yingjie CUI had a knife in his hand/Yingjie CUI had a dispute with the officers” were explained as “threatening the law enforcement officers by holing a knife”. Since this is the story where a rascal fought against law enforcement in a violent way and intentionally killed someone, “Yingjie CUI went back to the scene” was clarified as “harboring resentment in his bosom and attempted to revenge” and “giving a fierce stab on Zhiqiang LI”. As to the coverage, this story is dubious as there are eight core events in the case, but only five of them were presented. The event (1), (4) and (6) were missing (technically, the prosecution also ignored the event 7 where Yingjie CUI went back to the scene). The information presented by the missing events include Yingjie CUI’s economic and living condition and the loopholes in the process of law enforcement of the officers, as well as his behavior of leaving the scene after giving up the dispute with the officers. Possibly, according to the theory of Nancy Pennington and Reid Hastie, the rationality of the story is dubious because almost half of the case information is missing, and the explanatory power of the evidence is greatly weakened. However, the reality of judicial practice is not that simple. In the court, people not only need to discuss the evidence, events, and the understanding and judgment between them, but also need to discuss whether the events had relations with the case facts. For example, in the stage of court hearing of Yingjie CUI Case, the defense attorney of Yingjie CUI required to submit document to prove that Yingjie CUI got Outstanding Soldier Award and the testimony that Yingjie CUI was a good man as well as the proof that Yingjie CUI had no irregularity record before, but all of them were refused by the judge with reason that these events had nothing with the case. Actually, the prosecution excluded the events with the same reason. For them, those contents had nothing to do with the case facts of intended murder. The story model not only decides how people understand and explain the evidence, but also determines how people identify and screen the correlation between information and the case. This issue was specifically addressed by American scholars Lynda Olsen-Fulero and Solomon M. Fulero in their promoting research on story model theory. In a psychological experiment of rape case designed by them, forty-eight participants watched a court hearing video where a female claimed she went to a frat party alone, and when she was drinking with several people in the basement, a male raped him. After watching the video, the participants were required to describe what happened based on the information provided by the video and played the role of the jury to

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give judgment to decide whether the defendant was guilty or the victim should take responsibility herself.27 In the experiment process, a common phenomenon was found that when constructing story, the selection and neglect of some factors and plots are closely related to the judgments. For example, both sides mentioned in the testimony that the defendant (male) asked the victim (female) to take some wines from the basement for the party before the rape happened; however, only those who confirmed the defendant was guilty took account of this plot in their description while those who held that the defendant was innocent and the victim should take responsibility didn’t comprised the detail. Psychologists believe that this phenomenon illustrated that “if a juryman believed that the defendant raped the victim, this evidence would be very important as it implied that it was the defendant that manipulated her into the basement.”28 At the same time, both sides in the video had testified that there had been several men and women drinking in the basement, but only those who affirmed that the defendant was innocent included the detail in the description, “because in their opinion, it was the victim (after drinking revelry) that allured and incited the defendant (to have sex with her).29 ” In Yingjie CUI Case, the circumstances were also typical. The defense attorney totally disagreed with the prosecutor. The defense attorney hoped to clarify that Yingjie CUI was not a criminal or an evil man who fought against law enforcement violently at the beginning. In the meantime, they held that the case facts were different from what the prosecutor described. Therefore, in the story constructed by the defense attorney, Yingjie CUI was a poor and well-behaved farmer who accidently killed someone because the unfair treatment and the confiscation of his living tools. There is no doubt that the story must cover event (1) and event (6). As the experiment conclusion of Lynda Olsen-Fulero and Solomon M. Fulero showed, the two events were the decisive plots in this version and also a dividing line between both sides. According to the prosecutor, the event (1) had nothing to do with the case. However the defendant believe it is an event worthy notice, because it presented the background of Yingjie CUI and his reasons for selling goods on the street. The event (1) also explained Yingjie CUI’s dispute with the officers-being compelled by poverty and had no way out, which greatly weakened the prosecutor’s statement that Yingjie CUI, was a cruel man who attempted to revenge. On the contrary, it emphasized that Yingjie CUI just wanted to have his property back. The event (6) was significant for the defense attorney because they thought the event showed that Yingjie CUI had actually given up his tricycle and the dispute with the officers and left the scene, which to some extent demonstrated that Yingjie CUI didn’t want to kill someone for revenge or even hurt someone. The event (4) was more subtle because when the defense attorney asked Yingjie CUI and witness Zhao, both of them said that the officers didn’t wear uniforms or present any certificate and papers. The officers even didn’t give any explanation. The prosecutor gave no objection in the court but 27 Olsen-Fulero 28 Olsen-Fulero 29 Ibid.

and Fulero (1997). and Fulero (1997).

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didn’t mention it in the case facts they proposed. The defense attorney tried to put focus on the event to remind the judge and the public that the officer’s behavior had defects that could influence the defendant’s judgment and behavior. In other words, the victim and other officers should take responsibility for the following dispute and the tragedy. When we examine the same evidence through the story created by the defense attorney, the evidences could present different meanings. Zhao’s word “we protected the tricycle but they pulled” was not regarded as violent behavior but a rational action to protect their own property. Later, both Zhao and Yingjie CUI mentioned that they “begged them to leave the tricycle”,30 which not only strengthened their poor living condition, but also proved how humble and miserable they were. And it was hard to imagine that Yingjie CUI was a cruel man who threatened the officers by a knife. Also, the knife in Yingjie CUI’s hand (which was described as “dagger”) could be explained to be unforgotten to put down while cutting the sausages. As to the passage shown by the video that Yingjie CUI ran into the crowd with knife in his hand, prosecution and defendant had different explanations. One the one hand, it could be interpreted as revenge because of the punishment or the defendant just wanted his tricycle back. On the other hand, his action had nothing to do with his later hurtful behavior. Neither side gave rigorous reasoning concerning their judgment. Indeed, according the detailed record of the court hearing, they hardly attempted to do so. Essentially, how to understand and illustrate the content presented by the evidence largely depends on the nature of the story chosen by both sides. The prosecutor provided a direct intended murder story, thus when interpreting evidence, each behavior of the defendant was inclined to intended murder. The defense attorney chose another story where Yingjie CUI was not a scoundrel at the very beginning, though this characteristic is a typical image in people’s imagination of intended murder case. In the story, Yingjie CUI was a poor and disadvantaged peddler who was unable to fight against the city administration officers and killed someone if it were not for the confiscation of his living tools. Under the guidance of beforehand cognition, the recognition and understanding towards evidences experienced orientated changes that different from the prosecutor, which basically tilted to the establishment of the factual text. Therefore, according to the defense attorney, the passage in the camera where Yingjie CUI ran back to the crowd was explained as to go back to find Zhao but only to see his tricycle was loaded on the car. Consequently, he attempted to get it back, which also clarified that his behavioral motive (to find Zhao and get tricycle back) had nothing to do with criminal, i.e. Yingjie CUI didn’t intentionally killed Zhiqiang LI in subjective aspect. To a large extend, the cognition and explanation of the evidence relies on people’s narrative imagination and construction on the process of the case. As a result, many original and direct information of the evidence changes dramatically once they were embedded into the narrative factual texts. And people often fail to find rigorous logic reasoning for the change. The mechanism of imagination is a representation of the 30 Trial transcript of Yingjie CUI Case heard in the First Intermediate People’s Court, Beijing, 12 December 2006, http://tieba.baidu.com/p/226845523 (visit date: 1 March 2015).

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past events through reproduction. What kind of historical events can be the template for the current story construction? It’s hard to say why some people were inclined to choose the story of intended murder like the prosecutor did, while others preferred the defense attorney’s version—a very complicated psychological process. (Lynda Olsen-Fulero and Solomon M. Fuero tried to use the theory of empathy in psychology to explain the phenomenon, and the author thinks it has strong explanatory power.) However, we can obviously perceive that experience and standpoint bear great power. But the problem is, if the cognition of evidence only enables itself to meet the rationality of experience, how could the story’s uniqueness be in guarantee? The cognition theory of Nancy Pennington and Reid Hastie first emphasized the consistency inside the story and then mentioned the key function of the uniqueness: a story must first possess the internal coherence without any huge loophole and contradiction. However, if more than one story have the same coherence, it would bring a lot of uncertain factors for the cognition of evidence.31 Nancy Pennington and Reid Hastie didn’t give detailed analysis on this kind of uncertainty that whether this is the certainty of the evidence cognition and final judgment that the jury had. Because one of the key points of the theory of story model of the evidence cognition is that the story which could organize the case information and give them meaning in the court actually “determine the jury’s judgment”.32 Nevertheless, neither side of Yingjie CUI Case showed any confidence or gave explanation on the evidence or the story they constructed. If they “missed” almost half of the case information like the prosecutor did but still felt in the right and self-confident in the trial, we could even say that it was because the large amount of information was missing, the story seemed to be especially “convinced” and undisputed. As it is widely known that with more complicated material and much more information, it would be more difficult to organize a story without loophole. The case information that left out by the prosecutor was certainly the factors that would bring questions for the charge of intended murder. Both sides felt confident about the versions they proposed and also believed the understanding and the interpretation under the frame of their own stories. Besides the coverage, the two stories are basically the same in coherence. Empirically speaking, both of them are rational. A vicious gangster, who fought against the law enforcement violently to get rid of the fine after being punished for his illegal business activities, came up with the idea of revenge and gave vent to his anger by killing someone after the confiscation of his living tools. The casual relation between actions and plots is obvious without any weak point or loopholes. Given the persuasiveness of the readers, it was generally in line with the similar events and experience happened in the real life. On the other hand, a poor farmer who earned a meager income by selling things on the streets was driven away by the city management team. In order to protect his living tools, he begged or entangled with the officers to such an extent as to be emotional. In the end, he killed someone in fear and panic. This version likewise has clear casual relations between actions, and people’s reaction on their surrounding environment is also consistent 31 Pennington 32 Ibid.

and Hastie (1992).

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with social rationality. On the whole, the story has no loophole and its rationality also meets people’s common sense on similar events and scenes. With regard to the author’s presumption, there is no superior standard to distinguish which organization of the story is closer to the fact and which side is more correct concerning the understanding towards the evidence. Actually, the case facts cannot be achieved through evidence alone. The chain between evidence and the factual text is not seamless as the two always show a disjointed and unsustainable relation. Therefore the topic of this paper described the transformation from the evidence to the facts as an incoherent and leaping state. From author’s perspective, besides evidence and evidence cognition, one other mechanism also plays a significant role in completing a final text on the case facts in the judicial trial process. This mechanism, mainly linguistic, is a strategy issue that occurs when people use the language purposefully. Moreover, problems in this area have been long ignored and surpassed by modern science of law in research.

References Olsen-Fulero, Lynda, and Solomon M. Fulero. 1997. Commonsense Rape Judgments: An EmpathyComplexity Theory of Rape Juror Story Making. Psychology, Public Policy, and Law 3 (2/3). Pennington, Nancy, and Reid Hastie. 1992. Explaining the Evidence: Test of the Story Model for Juror Decision Making. Personality and Social Psychology 62 (2): 189–206. Pennington, Nancy, and Reid Hastie. 1993. The Story Model for Juror Decision Making. Inside the Juror, ed. Reid Hastie, 84–115. Cambridge: Cambridge University Press. Rüthers, Bernd. 2003. Jurisprudence, trans. Xiaochun Ding and Yue Wu, 298. Beijing: Law Press. Su, Li. 2000. Spread Law to the Countryside, 162. China University of Political Science and Law Press. Yang, Jianjun. 2007. Interpretations of Legal Fact, 143. Shandong People’s Press. Zhang, Bin. 2003. Jurisprudence Retrospect on Evidence Methods. Journal of Southwest University for Nationalities (Social Sciences Edition) 6 (60): 64.

Epistemological Limitations on Probabilistic Evidence Theory Hanbing Gong

“The great systematizers of the common law”1 has gone. From then on, the field of evidence scholarship in common law was “moribund”. However, this situation changed when some new talents and their heuristic research minds were attracted to this field. At the end of 1960s, John Kaplan explored a ground-breaking aspect about statistical decision theory and the fact-finding process,2 which stimulated a possibility of heuristic use of mathematical models of inference. In the same year, a judgment which has far reaching influence was made, that is People v. Collins.3 The judgment has aroused multiple rounds of debate about the feasibility of using mathematical models in jury trials. Among them, Michael O. Finkelstein and William B. Fairly proposed that Bayes’ Theorem could be used to address the identification of the evidence,4 and this proposal put forwards a new orientation, some opponents call it “trial by mathematics” or “trial by mathematical models”5 Although some attackers claim that any use of probabilistic conception in fact-finding process to guide the legal reasoning from evidence “has a variety of vices”, these objections to using mathematical models do not seem to have any effect. That is to say, at least on the surface of it, there seems to be no problems in the use of mathematical reasoning in evidentiary proof process. Or the real problem in Collins case “lay not in the prosecutor’s attempt to use statistical reasoning but in his failure to offer the jury statistical information in the form best suited to its decision-making task”6 1 Lempert

(1986: 439, 439–477). Kaplan (1968: 1065). 3 People v. Collins, 68 Cal. 2d 319, 438 P. 2d 33, 66 Cal. Rptr. 497 (1968). 4 Finkelstein and Fairley (1970: 489), Tribe (1971: 1329). 5 Tribe (1971: 1329). 6 Finkelstein and Fairley (1970: 489). 2 John

H. Gong (B) Procedural Law Research Institute (CUPL), China University of Political Science and Law, Beijing, China © China University of Political Science and Law Press 2021 B. Zhang et al. (eds.), Facts and Evidence, https://doi.org/10.1007/978-981-15-9639-1_14

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However, this perception about probabilistic conception in proof process is still on the surface. Allen said that although “mathematical models… are quite useful in helping to understand the nature of legal evidence”,7 there is an epistemological limitation on any attempt to use probabilistic theory to explain the probative value of legal evidence and the proof process in fact-findings.

1 Formal Models and Mathematical Argument 1.1 Used in People v. Collins & Bribery Case of Former President of Nanchang University Although the Supreme Court of California excluded the prosecutor’s attempt to use the evidence of mathematical statistics in People v. Collins, the judges’ attitude that “took the prosecutor’s statistical sortie seriously enough”8 made the decision significant in the history of debate about Formal Models of evidential proof process. In this extent, we argue that there are relations between this historical event which occurred in USA and the Bribery Case of former president of Nanchang University. Both of them adopted the similar statistical approach in attacking the opponent’s accusation or advocacy and addressing the issue of identification of evidence. Both adopted statistical approaches, which has made mistakes. In other words, there is an important misunderstanding plagued the two cases and their use of statistical models in proof process. What has been explored by Finkelstein (& William Fairley) represented the main stream of scholarship on evidence and proof, which used the formal techniques of analysis and mathematical method to model evidence and proof processing. Just like what Wenbin ZHOU9 said in his defense and, what we have seen in some related news report that the important advantages of his statistical argumentation embody in persuasive power and intuitive understanding. Wenbin ZHOU and the prosecutor in Collins case both used mathematical models to explain some aspects of fact findings. The method of formal analysis and mathematical models, however, do not belong to traditional legal discipline. In a very large extent, scholars accepted and prompted this combination. The scholarship that links theories of probability with theories of proof is largely a combination of statistical reasoning and legal reasoning. Today, unfortunately, the statistical reasoning seems to be the main strand in probabilistic conception of evidence and proof. The reason is that the mathematical plays a fundamental role in the probabilistic conception, and the entire Formal Model is

7 Allen

and Pardo (2007a: 107–140). and Fairley (1970: 489). 9 Former President of Nanchang University. 8 Finkelstein

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built upon the Mathematical reasoning. Andrei Kolmogorov, published his influential book, FOUNDATIONS OF THE THEORY OF PROBABILITY.10 In this book he described accounts of probabilistic conception that rest on the following axiomatic foundations: (1) The numeric value of probability assessments belongs to the range of 0 to 1; (2) The probability of a proposition and its opposition equals 1; (3) The probability of several independent propositions which exist in an individual event conforms to the product rule. The probabilistic theory of evidence and proof include the entire family of formal techniques of analysis that build on the above explicit axiomatic foundations. Based on these foundations, rigorous mathematic argumentation ensures a steady scientific conclusion and accurate calculation, which brings development to the improving of probative value and persuasion. In other words, numerical results articulate the burden of persuasion and even the parties’ claims. In this sense, the probabilistic theory serves to provide a normative standard to guide the evidentiary proof process. In the above-mentioned famous bribery case in China,11 Zhou alleged that among the total 41 charges in his case, there are at least 4 false charges. Through product rule, mentioned in (3), the probability that the 4 charges were false at the same time was about 0.0003. Then, he had concluded that the whole case was a false event with a large probability, which might be calculated by using rule (2) on the surface (10.0003). Zhou had attempted to exert probabilistic language to quantify the persuasive power and probative value, while in some extent he succeeded. His lawyer said that “the probability theory, mathematical statistics and theory of errors, Zhou used all powerfully demonstrated that the charge evidence was “utterly ridiculous”.

1.2 Fundamental Incompatibilities with Fact-Findings It is extremely profitable for prosecutor or advocate who tries to use probabilistic models in trials. Just in this sense, “The dominant theoretical account conceives of evidence and proof in probabilistic terms.”12 But the situation is not as simple as what it looks like. Since 1970, the debate about the use of formal analysis and mathematic argument to model of evidentiary proof process has taken many twist and turn.13 During that period, the debate was going on like a raging fire. It seems to be that the Anglo-American criminal justice system is now at the threshold of an explosion in the presentation of this mathematical testimony.14 But as many years have passed, the discussions still do not touch the core of the inter-discipline between 10 Kolmogorov

(1956: 1–10). (2015: 5). 12 Pardo (2013: 547–613). 13 See, for example, Kaplan (1968), Finkelstein and Fairley (1970), Lempert (1977). 14 Jonakait (1983: 369–421). 11 Shizhen

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probability and proof, and the debate is still focusing on various formal reasoning and mathematical methods, more common is the research on various probabilistic algorithms, such as the discussion around Bayesian theorem. The distinctions between their various argument and perspective were not exactly as obvious as many scholars have supposed. On the contrary, the difference between theories of probability and theories of evidential, or in other word, trial by mathematics and trial by fact-finding, bases on experience or rational reasoning, were just really beyond many observers’ expectation. Some researchers even said that “many of the opponents of mathematical analysis of trials never really understood what at least some of the proposals for mathematical analysis…”15 From the beginning of use of probabilistic theory in fact-finding process, such critique was accompanied with its judicial practice and academic research process. Among them, Jonathan Cohen and his book The probable and The Provable, seems to be the first to point to the specific paradoxes and anomalies arising in the principles of mathematical probability16 when it is used to explain the item of evidence and evidentiary proof process. Such anomalies and various paradoxes, in which probabilistic models in proof process produced by statistical reasoning clashed with current judgments which should be given expression to experience and knowledge in a proper way, and they do not rely on a coherent account of the evidentiary proof process. Scholars’ exploring revealed and instantiated these conflicts, or in Professor Ronald Allen’s words “epistemological limitations”, for example, Amos Tversky & Daniel Kahneman and their noted “Blue Cab”17 case, “Abused Children”18 from McCormick on Evidence, and cases19 with disparate relevance judgments between epistemic relevance and probability provided by Peter Achinstein. Perhaps, a more accurate statement is that such mathematical models “can best be used heuristically as guides to rational thought and not as specific blueprints for forensic decision making.”20 When we questioned whether the Former president Zhou’s claim which attempted to use statistical reasoning to explain aspects of evidence were at fault, which method did you choose to prove his misuse? Or other mathematic models used in trials? What is the core problem? The real problem is “Fundamental incompatibilities”21 between the epistemological facts and mathematical models. Although this statistical reasoning “has been helpful in understanding the process”22 of proof, probability theory is not helpful for explaining evidence and proof process which established on the fundament of epistemology, and finally towards an “unproductive and sterile”23 15 Tillers

(2011: 167–173). (1981: 457–461). 17 Tversky and Kahneman (1982: 156–160). 18 Mccormick on Evidence (Strong ed., 5th ed. 1999): 277. 19 Achinstein (2001: 95–112). 20 Callen (1982). 21 Allen and Pardo (2007a: 107–140). 22 Pardo and Allen (2008: 223–268). 23 Tillers (2011: 167–173). 16 Stoljar

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direction. For dealing with this problem, we should rethink that what is evidence law and what is fact-finding process. “The law of evidence has to do with the furnishing to a court of matter of fact, for use in a judicial investigation.”24 For example, trials often concentrate on the facts that happened specifically at a certain moment in the past time. The facts and the evidence are components of a virtually infinite reference classes, each with a differential rate. And all of these classes consisted of background base-rate statistics, which only exists in an ideal state. In practice, any attempt to calculate probative value or relevance which is based on the above-mentioned background base-rate will suffer a huge mistake. So the real conflict existing in mathematic modeling of evidentiary theory has nothing to do with computational method and computational amount but with the neglect of the nature of facts. Perhaps, just in this sense, our attention should be re-focusing on the essentials of evidential theory in fact-finding process. Michael Pardo called it “the trial is fundamentally an epistemological event.” Basing on epistemology views, our discussion should be equaled with this word that “my analysis is not a critique of probability theory; it a critique of particular uses to which probability theory is put by legal theorists.”25

2 Epistemological Limitations on Probabilistic Models of Evidence 2.1 Limitations on Understanding of Relationship The first mission of evidentiary theory or evidence scholarship is dealing with the relation between evidence and facts. In Anglo-American evidence scholarship, the most important conception which attempted to describe the relationship between evidence and facts was the doctrine of relevancy. It stems from Stephen’s “bold attempt to base a systematic treatment of the law of evidence on a single print”.26 The single unifying principle—the doctrine of relevancy—marked a break with the traditional perspective of evidence scholarship and the starting-point of most modern treatments of evidence theory. Until 1975, the Federal Rules of Evidence of USA (Rule 401) codified the evidence law that applies in United States federal courts. Since then, relevance has been represented a statutory form of relations between evidence and facts. Notes of Advisory Committee on Proposed Rules contended that “Problems of relevancy call for an answer to the question whether an item of evidence… possesses sufficient probative value to justify receiving it in evidence.”27 This kind of relation is a judgment also existing in Criminal Procedure Law of the 24 Thayer

(1898: 264–268). (2012: 741–752). 26 Twining (2006: 60). 27 FED. R. EVID. 401 Advisory Committee Notes. 25 Kaplow

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People’s Republic of China. Article 42 “all facts that prove the true circumstances of a case shall be evidence.”28 We may say that the relation between the evidence and facts becomes the primary consideration for weighing the evidence, explaining the prove process. At the same time, it has also become the important criterion which is applied to evaluate whether the specific research on evidence qualify as an acceptable evidence theory or not. Some scholars call this criterion “the micro-level constraint”29 which requires that the evidence theory should account for relevance, explaining relation and providing criteria for evaluating such relation. Someone may say that the above mentioned statutory provisions were just a potential implication of relationship between evidence and facts. Or say they can be translated into other meanings. A powerful rebuttal to these controversial issues came from notes of Advisory Committee—“relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case.”30 If the exploring of relation stop to this extent, we will still feel hard to prove that this relationship has something with epistemological foundations. As a further explanation for this problem, the Notes confirmed a judgment standard, “whether the relationship exists depends upon principles evolved by experience or science, applied logically to the situation at hand.” Jonathan Cohen said: “relevance is a relation—typically in the course of a reasoned enquiry, debate, conversation, meditation, explanation, or justification—between a true proposition and an askable question.”31 Probabilistic language can’t describe this type of relationship, because its background information is complex. The change of probabilistic numerical value is “just one criterion of relevance alongside the others.” That is to say the attempt to account for relevance only using probabilistic from is misconception of epistemic relation. At last, we can make a conclusion that the element of epistemology, such as experience, logic, knowledge etc., codetermined the judgment of relationship between evidence and facts. In other words, understanding of this relationship will be taken into account in epistemological limitations. Besides, “Any more stringent requirement is unworkable and unrealistic.”32 Probabilistic conception of evidence and proof cannot provide, or rely upon, a plausible account of the relationship between evidence and facts. Probabilistic language is distinguished from a conception or account of the experiential relevance. Whether there is relation between evidence and facts, how probative value the evidence is, and whether it is appropriate to prove special facts are disparate questions with numerical relationship, which is conceived in probabilistic terms. The inappropriate of the probabilistic language to account exactly for epistemological relationship derives from the substantial distinction between mathematical form and experiential word. 28 Criminal

Procedure Law of the People’s Republic of China. (2013: 547–613). 30 FED. R. EVID. 401 Advisory Committee Notes. 31 Cohen (1994: 172–182). 32 FED. R. EVID. 401 Advisory Committee Notes. 29 Pardo

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Mathematical Models of Epistemic Relationship and Its Limitation

Richard Lempert created the probabilistic forms of relevance based on bayes’ theorem—conventionally called likelihood ratio33 —to describe the character of evidence that changes a prior estimated probability, such evidence is relevant. This conception came from probabilistic description of Federal Rules of Evidence rule 401 that relevance is “evidence has any tendency to make a fact more or less probable than it would be without the evidence.”34 Based on this statutory definition, he claimed that likelihood ratio can be accounted as “the probability of obtaining evidence if the hypothesis about facts is true, divided by the probability of obtaining the same evidence if the hypothesis about facts is false”. That is O(G|E)/O(G) = P(E/G)/P(E|not-G).35 And Richard Lempert provided two examples in his classical article, “blood type” and “liberal candidate”.36 And in the first case the likelihood ratio is 1:0.5 = 2:1, thus the blood type evidence is relevant, but in the second case the likelihood ratio is 1:1, thus the liberal identification evidence is not relevant,37 because the odds in the case on the defendant’s guilt remains the same, compared with the initial probabilistic value before the jury acquired the defendant’s political affiliation—liberal party members. Likelihood ratio can be used to describe the change of probabilistic value when a new item of evidence is received. And the change of numerical value was seen as an index of relevance, or as an indicator of epistemic relationship. Although likelihood ratio realized quantifying the conception of relevance which implied in Rule 401, especially when compared with traditional description of “probable”,38 probabilistic language has the advantage of accuracy and intuitive, but the similarity in the form between epistemic relationship, namely relevance and likelihood ratio does not represent essentially the same. The above-mentioned epistemic paradoxes emerged from misusing of probabilistic models, such as likelihood ratio was used to account for the relevance between evidence and facts. These paradoxes can be seen as epistemological limitations, which proved that there were irreconcilable contradictions between epistemic relationship and probabilistic model.

33 Lempert

(1977: 1021–1025). R. EVID. 401 Advisory Committee Notes. 35 Lempert (1977: 1021–1025). The two element formulas of probability from bayes’ Theorem (1) P(A&B) = P(A/B) · P(B); (2) P(A) = P(A&B) + P(A¬-B); Expressing these in terms changed from A’s and B’s to G’s (guilt) and E’s (new evidence), then it can be shown that (3) P(G|E) = P(E|G) · P(G) P(E|G) · P(G) + P(E|not-G) · P(not-G) If O(G) represents the “odds of G”, defined as P(G)/P(not-G), then it can be rewritten as (4) O(G|E) = P(E/G)/P(E|not-G) · O(G). 36 Lempert (1977: 1021–1025). 37 Lempert (1977: 1021–1025). 38 FED. R. EVID. 401 Advisory Committee Notes. 34 FED.

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The Paradox of Likelihood Ratio

After the transformation of the probabilistic models of relevance, likelihood ratio suffered from important fallacy. When the numerical value of likelihood ratio is 1, which means that the particular evidence is as likely to be found if the special fact is true as it is if this particular fact is false, then the particular evidence is logically irrelevant with that fact. But, for some types of evidence, the likelihood ratio’s explanation does not coincide with epistemic relationship. The understanding of relevance from the perspective of probabilistic conflict with common experience in fact findings and trials. These conflicting raise doubts about the function of the probabilistic conception to provide an appropriate theory of relevance. In short, probabilistic evidentiary theory has epistemological limitation. (1) The epistemological limitation of circumstantial evidence. The conception of likelihood ratio can’t explain the relevance of circumstantial evidence and epistemic relationship with special fact. Among them relatively typical category, is “background evidence”, which is “essentially background in nature can scarcely be said to involve disputed matter.”39 Notes of Advisory Committee said that “many items of evidence fall in this category, such as charts, photographs, views of real estate etc.” Probabilistic evidentiary rule, in the conception of likelihood ratio these evidences’ numerical value is 1, limiting admissibility to evidence related to fact of consequence would claim the exclusion of this helpful evidence, but, in contrast, background evidence is relevant in epistemic relationship. Just like the Advisory Committee’s word “it is universally offered and admitted as an aid to understanding”. In the judicial practice of China, it is also facing a similar situation. In a particular case, there is a certain number of evidence that may not seem to have any obvious relation to any fact of consequence, such as sentencing evidence, information note issued by investigator, the detail information about event informed by witness, but judges or fact-finders always admit such evidence, because “it allows the fact-finder to make better informed judgments about the credibility of a evidence and the reliability of that evidence provider.”40 Some scholars may be said that the probabilistic model of relevance conception suffered from epistemic paradox only when it was used to explain the above mentioned evidence, however, in actually, probabilistic model could explain many other items of evidence. Just like what we discussed above, this kind of debating is still not touch the core of the inter-discipline between probability and proof. The truth is that “many items of evidence will not trigger just one inference or just one underlying explanatory generalization.”41 That is the reason why so many disciplines and theories can be used to explain some aspect of evidentiary proof process. But what we believe needs to be emphasized is that as a systematic theory, the first mission

39 FED.

R. EVID. 401 Advisory Committee Notes. States v. McVeigh, 1531 F. 3d 1166, 1201 (10th Cir. 1998). 41 Allen and Kuhns (2011: 131–135). 40 United

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is to explore an appropriate explanation for these competing or contradictory inferences and explanatory generalizations. The probabilistic conception of evidence and proof can’t meet the above requirement. For example, in the Johnson case,42 several competing explanations have been produced by two parties as to why the guards were wearing gloves. And all of these explanations have relationship with fact in experience level. However, in the conception of probabilistic, especially in the relevance model of likelihood ratio, the probabilistic explanation becomes estranged and conflicted with other appropriate explanations. This conflict is essentially an epistemological limitation of mathematical model of evidence. Furthermore, we need to explain that the evidence law distinguished many types of relevant evidence. Circumstantial evidence and Direct evidence is one of the most important group of types. Circumstantial evidence is very common at trial practice, and it would account for a large proportion in tribunal’s daily work. In short, the problem laying in the conception of likelihood ratio is beyond some scholars’ imagination. (2) The epistemological limitation of “Overlapping Evidence”.43 The exploring of overlapping evidence is a further critique of probabilistic conception of evidence and proof. And in a sense, the emerging of overlapping evidence has something to do with substantial law. Like the circumstantial evidence, overlapping evidence typically can be used in different ways, even in competing and contradictory inferences, but unlike the “background evidence”, overlapping evidence actually seem to have obvious connection to fact of consequence in a particular events. Or we can say that the main function of overlapping evidence is not used “as an aid to understanding”. The probabilistic conception is in trouble, when it is attempted to interpret overlapping evidence. While, essentially, the difficulty of overlapping evidence’s probabilistic model has a close relation with experience knowledge and epistemic dimension. Because of these epistemological limitations, mathematic models also encounter epistemic paradox in this category of evidence. Next we will observe and study the overlapping evidence in a real case: Identical twins case44 : Around 2013, 6 consecutive cases of rape happened in the Marseille area of France. The police officer locked a delivery driver as the suspect by electronic monitoring, but other evidence show that the suspect has another identical twin brother. Both of them work as delivery driver, and the twins are so alike that the victim can’t distinguish one from the other. Moreover, experts said that it was difficult to distinguish the genetic markers from identical twins, and this identification procedure was time consuming and expensive. In the probabilistic conception of evidence and proof, the presentation of “video surveillance evidence” was interpreted in two competing explanations. On one hand, the likelihood of the initial suspect’s guilt increase greatly; On the other hand, the

42 Allen

and Kuhns (2011: 131–135). Pardo (2010: 136–139). 44 See http://news.sina.com.cn/w/p/2013-08-23/005128023519.shtml. 43 See

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“video surveillance evidence” also support the probability of guilt of the other identical twin. And this evidence does not appear to distinguish between these two probabilistic inferences. There is no reason to suppose that the video surveillance evidence supports one probability over the other. We can further inference this issue that the increasing probability of suspect of the other identical twin means the decreasing probability of guilt of the initial suspect. In short, under the explanation of likelihood ratio theory, the numerical value is 1:1, and, the conclusion is that the video surveillance evidence is irrelevant, and thus, should be excluded. If this inference were true, the police officer would have been forced to give up this key evidence in the case. But in fact it’s quite the opposite. The apparent relation between the video surveillance evidence and special fact provides a powerful attack on the likelihood ratio theory, or on the probabilistic conception of evidence and proof. The relevance between overlapping evidence and special evidence is also essentially an epistemic conception. Any attempt to describe it with mathematic model or probabilistic form will suffer from paradox which can’t be explained. It also “reveals that judgments about epistemic relevance are doing the real work justifying particular inferences; the probabilistic descriptions are epiphenomenal.”45

2.2 Limitations on Understanding of Proof Process The understanding of relationship between evidence and fact is only one aspect of limitations on the existing attempt to construct rational and epistemological foundations to evidence theory. It is the micro-level constraint of evidence theory in Professor Michael Pardo; and Professor Bensen ZHANG claimed that relevance which is an epistemic description of above-mentioned relationship is “Logical thread of evidence law”.46 Based on this logical thread, eliciting another important aspect of evidence scholarship, or say when we resolved the question of relevance, the next stage is to explore “method of organizing (relevant) evidence and thought during the performance of complex inference and decision tasks.”47 In my opinion, the marshalling process of evidence and thought is essentially a proof process, while, the understanding of this process concerns the foundations of empirical knowledge and social epistemology, and concerns the extent to which various kinds of marshalling methods, such as probabilistic form and statistical model, satisfy these special requirements. However, as an understanding process of proof, the special requirements of marshalling evidence and thoughts are another aspect of epistemological limitation in evidentiary proof process.

45 Pardo

(2013: 547–613). et al. (2013: 16). 47 Schum and Tillers (1991: 657). 46 Zhang

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Limitations on Risk of Error

Although knowledge of the truth about a historical event is a necessary requirement for achieving justice in adjudication, William Twining claimed that “the establishment of the truth of alleged facts in adjudication is typically a matter of probabilities, falling short of absolute certainty.”48 In Twining’s classical exposition of evidence, the using of the word “probabilities” did not mean that the evidentiary proof process should be essentially seemed as a probabilistic scholarship process. The focus of his exposition is on the second half of his words, and it is that the fact finding activity cannot guarantee the truth of its conclusion. So, how to deal with the errors which appeared in fact finding process is a very important foundational problem. The evidence theory must account for this foundational problem and any theoretical attempt failing to consider this requirement should be regarded as a fatal flaw. In the sense, allocating the risk of factual errors is an important “rational core”49 which forms the foundation of evidence theory. Both errors and allocating the risk of errors are conceptions belonging to epistemological level. The appropriate perception of errors and the available allocating method of risk of errors provide foundational epistemic ration in forming a successful theory of evidentiary proof process. Today, the dominant theoretical description in evidence law conceives of errors and allocating risk of errors in probabilistic terms. In civil case, the common experience purports to treat parties equally with regard to the risk of error. Under this support of naturalizing epistemology, the probabilistic theory model of this knowledge of experience to a preponderance-of-the-evidence standard of proof, and the numerical value is 0.5; In criminal case, the probabilistic form is manifested most obviously in statutory standard of proof—beyond-a-reasonable-doubt, and the numerical value is more than 0.9. But the accuracy of the numerical value brings about the difficulty of numerical calculation. Just like what we argued above, the fact-finding is a process of marshalling evidence and thoughts. It is suggests that the entire assessment of probability concern more than one evidence. Taking criminal case as an example, the probabilistic standard of proof requires the prosecutor to prove the special fact to probability of 0.9. It raises certain doubts. According to the conception of standard of proof, the probability of 0.9 is a numerical value which is calculated from the entire evidence collection in the form. Under this conception, how to deal with the probability of the single item of evidence is still an unsolved problem. That is to say, the standard of proof applies to case as a whole rather than to a single item of evidence, this creates some formal paradoxes when conceived probabilistically. When the probability of 0.9 is used to a single item of evidence, facing the similar problem, how to deal with the probability of the case as a whole, such as the “conjunction problem”.50 Moreover, both of the two probabilistic models may inappropriately shift the risk of error between the two parties. If the probability of 0.9 applied to case as a whole, the more of risk of error would shift onto prosecutor and vice versa. 48 Twining

(2006: 76). (2000: 353). 50 See Allen and Jehl (2003: 893, 897–904), Levmore (2001: 723, 724–733). 49 Fuller

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So how to make balance between the single evidence and the evidence collection is an epistemological limitation for probabilistic theory. We can conclude that the probabilistic evidentiary theory failed to describe or account for the risk-of-error allocation.

2.2.2

Incoherence Between Evidence and Proof

As previously stated, how to make balance between the single evidence and the evidence collection is an epistemological limitation for probabilistic theory. I think this epistemological limitation express the incoherence between evidence and fact. Pennington & Hastie described that coherence is a concept with three components in Story Model: consistency, plausibility, and completeness.51 In my opinion, at least, the first two requirements should be also applied to probabilistic evidence theory. First, there are internal contradictions between probabilistic model of evidence and proof, for example, the probabilistic form of single evidence cannot be converted to the probabilistic of standard of proof for the case as a whole and vice versa. It is the inconsistency that lays in the probabilistic evidence theory. Second, the evidence theory is plausible which means that it corresponds to some “out there”52 truth. Twining claimed that “Truth is defined as knowledge which corresponds to this objective reality.”53 Although the reality is “typically based upon incomplete evidence”, the correspondence theory of truth provide us with an effective method to judge the problem of plausible. In the background of Professor Allen’s “Naturalized Epistemology, the probabilistic evidence theory is not plausible to the extent that it does not correspond to the fact-finders” common experience that happens in practice and conflicts with epistemological limitations. The incoherence has its roots in epistemological level which limits the development of probabilistic evidence theory. Moreover, the application of the proof standards is an evaluation of the numerical value of the case as a whole, and the particular case concerns a virtually infinite number of statistical data, just as “the referenceclass problem”.54 Even worse, the lack of “complete evidence” for almost every case means that the attempt of calculating the probabilistic numerical value of the case as a whole is not a feasible method. However, the probabilistic numerical value of single item of element always can be calculated. So we conclude that the probabilistic conception cannot provide a coherence theory between evidence and fact.

51 Pennington

and Hastie (1991: 519). (1994: 738). 53 Twining (2006: 78–80). 54 Allen and Pardo (2007b: 307). 52 Nicolson

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2.3 Limitation on Veritistic Rationale Alvin Goldman said that “people’s dominant epistemic goal is to obtain true beliefs.”55 This is a common target existing in trial and fact-finding process which is aiming to “establishing the truth about particular past events in issue.”56 Or we can say that veritistic rationale exists in all human activities which are aiming to establish the truth. Just like Professor Ronald Allen and Brian Leiter claimed, “for any rule of evidence that has a veritistic rationale”. In the sense, we contend that the veritistic rationale lays in evidence and proof process, and characterize as some kind of epistemological limitations which will be proved instrumental in the following discussion to reanalyze the probabilistic evidence theory. Alvin Goldman also proposed the conception of “Veritistic Value”, which is “intended to be a measure for the amount of truth people possess”.57 Although these conceptions about veritistic stem largely from people’s epistemic experience which rooted in the process to explore true beliefs, one important shortcoming appears that the veritistic value sometimes conflicts with rational knowledge of evidence and proof.

2.3.1

Incoherence Between Veritistic Value and Epistemic Goal

Veritistic value is essentially a probabilistic numerical value. In other words, veritistic value is a probabilistic method to quantify the truth of beliefs and “to evaluate social practices with regard to their epistemic virtues”,58 such as the fact-finding practice. According to Goldman, he said that the veritistic value fall into “a degree of belief in a probability ranging from 0 to 1”. Although justification is seemed as an epistemic value by many scholars, the process that values this justification endues veritistic rationale with the probabilistic form. However, this exploring of veritistic value is incoherence with epistemological consideration of evidence in some aspects. Professor Allen explored the relation between the numerical value of veritistic and the knowledge about disputed fact and gave an example that Federal Rule 404 “deals with the basic question whether character evidence should be admitted”.59 On the surface, in most jurisdictions, the use of character evidence is rejected under Rule 404, Subdivision(a)(1), “Evidence of a person’s character trait is not admissible to prove…”,60 but in fact, the exceptions in criminal case and special purpose in Rule 404, “largely swallows the rule.”61 Thus, there are two competing directions under Rule 404, “inclusion or exclusion in fact”, so, the question is which direction will 55 Goldman

(1999: 24–26). (2006: 76–78). 57 Goldman (2000: 317–333). 58 Berends (2002: 177–179). 59 See FED. R. EVID. 404 advisory Committee Notes. 60 FED. R. EVID. 404 Advisory Committee Notes. 61 Allen (1992: 800). 56 Twining

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maximize the veritistic value. How to calculate the probabilistic numerical value of evidence like this is an epistemological limitation on probabilistic theory. Some similar evidence rules exist in Criminal Procedure Law of China. Article 54 “If any physical or documentary evidence is not gathered under the statutory procedure, which may seriously affect justice… such evidence shall be excluded”.62 If we had made conclusion according to the surface or this article, we would wrong. Because there is an exception existing in this article, “correction or justification shall be provided”.63 In a particular case, the problem is which choice—excluding or including such physical or documentary evidence—will maximizes veritistic value. In other words, we may feel confused with how to relate this veritistic value to epistemic goal in a real case. So it is easy to see the conclusions described in the above context that we can’t calculate the people’s epistemic goal which aims to obtain true beliefs though probabilistic method.

2.3.2

Dangerous of Over-Persuasion

When we use the conception of veritistic value, or say, attempting to quantify this epistemic goal, there will be some sorts of problem in epistemological level for understanding the evidentiary proof process. The danger is that such numerical form “will overshadow equally probative value but admittedly unscientific and anecdotal non-statistical evidence.”64 On the surface, the danger derives from the using of complex statistics and probabilistic evidence, which may mislead or confuse the factfinder. Just like what we have discussed above, “the apparent precision of statistical evidence” meets the need of objective form of probative value, and it is very easy to be used by fact-finders. However, substantially, the danger comes from “a highest expected veritistic value”.65 Goldman claimed that the use of evidence can lead fact-finders to true beliefs. In this extent, the evidence presents some kinds of instrumental value, because the ultimate epistemic goal in the veritistic rationale is the truth. Based on this perspective, Goldman has created the truth-in-evidence principle: “A larger body of evidence is generally a better indicator of the truth-value of a hypothesis than a smaller contained body of evidence”,66 which means that evidence represent the veritistic value of a hypothesis. If x (between 0 and 1) is used to represent the numerical value in a particular hypothesis, the veritistic value is x when the hypothesis is true, and the veritistic value is 1-x when the hypothesis is false. So if someone wants to generate a more available hypothesis with a lower risk of error, s/he must collect a larger body of evidence. This means that one wants to choose x as high as possible. From another perspective, veritistic value will result in a completely rejecting or 62 Criminal

Procedure Law of China: Article 54. Procedure Law of China: Article 54. 64 Fienberg (1989: 50–55). 65 Berends (2002: 177–179). 66 Goldman (1999: 145). 63 Criminal

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believing both the hypothesis and evidence. When evidence does not always meet such requirement, parties tend to use more persuasive evidence and explain them in a more persuasive way.

3 Epistemological Foundations for Evidence and Proof Professors Ronald Allen and Brian Leiter claimed that “the recent developments in epistemology provide a conceptual foundation for approaches to problem from the law of evidence”.67 The important function of this conceptual foundation is giving guidance to improve the traditional evidence scholarship, which will “provide the most appropriate theoretical framework for the study of evidence”.68 Actually, social epistemology creates an organizational infrastructure for evidence scholarship. This epistemological foundation decides that objective probability which is based on mathematical models cannot connect with the relevance and probative value of evidence. And this disconnection is characterized by some kind of epistemological limitations. These limitations could be considered as epistemic norms which derived from empirical information. In other words, the empirical information which comes from human cognitive apparatus is constrained by empirical facts and rational reasoning.

3.1 Epistemological Foundations Is in Flux As mentioned above, the existing probabilistic attempts to provide theoretical foundations to evidence rules and proof process have suffered many difficulties. Fortunately, social epistemology provides a useful way of dealing with these difficulties. These difficulties are some kinds of limitations in the study of evidence under probabilistic “theoretical framework”. However, these limitations were not immutable and frozen stable. During its development process, its content has become largely different when compared with its initial state. And it is obviously clear that there is a close relation between epistemological foundations and related evidence scholarship. In Professor Allen’s words epistemology research “solidifies the ground beneath under the great bulk of evidentiary scholars’ feet”. In the beginning, the entire epistemological system was affected by Enlightenment and Positivism, and belonged to the “rationalist tradition”69 which has been termed by William Twining. The core tenet of this stage was that “there exists an objective

67 Allen

and Leiter (2001: 1504). and Leiter (2001: 1504). 69 Twining (2006: 78–80). 68 Allen

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target waiting to be discovered”.70 Scholars called this kind of epistemology foundation—“foundationalist”,71 or may be termed “objectivist”, because foundationalist insists that there are unshakable foundations “out there” for everything related to human knowledge, such as proof process in fact-findings, knowledge about justice and truth. More importantly, we can suppose that this epistemological foundation was adopted by the probabilistic researcher. In light of this epistemological foundation, probability theory supporters who insisted on using mathematic form to model of evidentiary proof process claimed that the proper application of statistical form allowed us to explain “objective truth”, or almost everything in proof process. In some extent, we can say that the initial probabilistic supporters were some kind of “foundationalists”. But over the past few decades, the apparent paradoxes and anomalies of the probabilistic theory in evidence scholarship to deliver its blueprint of a coherent evidence theory of probability through a series of critique has led to an introspection of its application in evidence law and its epistemological foundation. This may require new theories of evidence scholarship. Despite these critiques do not pose any fundamental challenge to the core tenet, or beliefs in truth, some new conceptions of epistemology are put forward on the assumption that they serve a better foundation for our evidence scholarship.

3.2 Coherence Between Epistemology Core and Inference to the Best Explanation (IBE) Our truth beliefs and introspections on above analysis are guides to further thinking that helps us to get any kind of theories we want and to avoid anomalies and paradoxes. According to the questions discussed above, we may ask what principles or standards we should use to distinguish between a good theory and a bad theory. Although we conclude that there are some important epistemological limitations existing in probabilistic evidence theory, how to avoid these limitations is still a critical question. The problem of evidentiary theory can be understood in various ways, but epistemological limitations existing in rational core of fact-finding process will impact most of these ways. Peter Lipton in his famous book INFERENCE TO THE BEST EXPLANATION 72 described an explanatory inference which is “extremely popular in philosophical circles”73 and “extremely common in our daily lives”.74 The widely used and mature

70 Nicolson

(1994: 726–744). (1991: 67–88). 72 Liption (2004: 55–70). 73 Liption (2004: 56). 74 Liption (2004: 55–70). 71 Crook

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research of this philosophical conception guaranteed the coherence with epistemological core which derived from “rationalist tradition” and had a significant development in the “best-known interdisciplinary movements”.75 Professor Ronald Allen and Michael Pardo in their series of articles76 argued that the first explanatory conception provides a coherence account of the relationship between evidence and fact. And the second explanatory conception provides a better description of the proof process existing in civil and criminal trials. In the end, the explanatory conception is seemed as one of the most appropriate theory with respect to epistemological limitation. IBE as a whole animates the evidentiary proof process, and provides a “superior theory of evidence and proof”.77

4 Conclusion The probabilistic model of articulating an account of evidence theory and its perspective has been posed on incoherent piecemeal segment. And the epistemological limitations appear in two aspects: on one hand, probabilistic conception of evidence and proof cannot provide, or rely upon, a plausible account of the relationship between evidence and facts. On the other, the probabilistic evidentiary theory failed to describe or account for the risk-of-error allocation. In short, probabilistic conception cannot provide a coherence theory between evidentiary theory and epistemology foundation.

References Achinstein, Peter. 2001. The Book of Evidence, 95–112. Allen, Ronald J. 1992. The Evolution of the Hearsay Rule of Admission. Law Review 76: 797–800. Allen, Ronald J., and Brian Leiter. 2001. Naturalized Epistemology and the Law of Evidence. Virginia Law Review 87: 1504. Allen, Ronald, and Michael Pardo. 2007a. The Problematic Value of Mathematical Models of Evidence. Journal of Legal Studies (January 2007) 36: 107–140. Allen, Ronald J., and Michael S. Pardo. 2007b. Probability, Explanation, and Inference: A Reply. International Journal of Evidence and Proof 11: 307. Allen, Ronald J., and Richard B. Kuhns. 2011. Evidence Text, Problems, and Cases, 5th ed., 131–135. Aspen Law & Business. Allen, Ronald J., and Sarah A. Jehl. 2003. Burdens of Persuasion in Civil Cases: Algorithms v. Explanations. Michigan State Law Review 893: 897–904. Berends, Hans. 2002. Veritistic Value and the Use of Evidence: A Shortcoming of Goldman’s Epistemic Evaluation of Social Practices. Social Epistemology 16 (2): 177–179. Callen, Craig R. 1982. Notes on a Grand Illusion: Some Limits on the Use of the Bayesian Theory in Evidence Law. Indiana Law Journal 57 (1). Cohen, Jonathan. 1994. Some Steps Towards a General Theory of Relevance. Synthese 101: 172–182. 75 Park

(1991: 849, 859–871). Pardo and Allen (2008: 224–225), Pardo (2013: 547–613). 77 Pardo (2013: 547–613). 76 See

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Crook, S. 1991. Modernist Radicalism and Its Aftermath: Foundationalism and AntiFoundationalism in Radical Social Theory, 67–88. London: Routledge. Fienberg, Stephen E. 1989. The Evolving Role of Statistical Assessments as Evidence in the Courts, 50–55. Springer, Softcover reprint of the original. Finkelstein, Michael O., and William B. Fairley. 1970. A Bayesian Approach to Identification Evidence. Harvard Law Review 83: 489. Fuller, Lon L. 2000. The Forms and Limits of Adjudication. Harvard Law Review 92: 353. Goldman, Alvin I. 1999. Knowledge in a Social World, 24–26, 145. Oxford: Clarendon Press. Goldman, Alvin I. 2000. Replies to Reviews of Knowledge in a Social World. Social Epistemology 14: 317–333. Jonakait, Randolph N. 1983. When Blood Is Their Argument: Probabilities in Criminal Case, Genetic Makers, and Once Again, Bayes’ Theorem. University of Illinois Law Review: 369–421. Kaplan, John. 1968. Decision Theory and the Factfinding Process. Stanford Law Review 20: 1065. Kaplow, Louis. 2012. Burden of Proof. Yale Law Journal 121: 741–752. Kolmogorov, Andrei. 1956. Foundations of the Theory of Probability, 1–10. New York: Chelsea Publishing Company. Lempert, Richard O. 1977. Modeling Relevance. Michigan Law Review 75: 1021–1025. Lempert, Richard. 1986. The New Evidence Scholarship: Analyzing the Process of Proof. University Law Review 66: 439, 439–477. Levmore, Saul. 2001. Conjunction and aggregation. Michigan Law Review 99: 723, 724–733. Liption, Peter. 2004. Inference to the Best Explanation, 2nd ed., 55–70. Routledge. Nicolson, Donald. 1994. Truth, Reason and Justice: Epistemology and Politics in Evidence Discourse. The Modern Law Review 57 (5): 726–744. Pardo, Michael S. 2010. The Gettier Problem and Legal Proof. Legal Theory 16(37): 136–139. Pardo, Michael S. 2013. The Nature and Purpose of Evidence Theory. Vanderbilt Law Review 66: 547–613, 585. Pardo, Michael S., and Ronald J. Allen. 2008. Juridical Proof and the Best Explanation. Law and Philosophy 27 (3): 223, 224–225. Park, Roger C. 1991. Evidence Scholarship, Old and New. Law Review 75849: 859–871. Pennington, Nancy, and Reid Hastie. 1991. A Cognitive Theory of Juror Decision Making: The Story Model. Cardozo Law Review 13: 519. Schum, David, and Peter Tillers. 1991. Marshalling Evidence for Adversary Litigation. Cardozo Law Review 13: 657. Shizhen, H.U. 2015. Wenbin ZHOU While Representing His Own Case in Two Days Trial Develops a Evaluation Form to Assess the Testimony’s Authentication. Oriental Morning Post, March 2, 2015, 5. Stoljar, Samuel. 1981. Review of The Probable and The Provable 90, No. 3, The Philosophical Review, July, 1981, 457–461. Thayer, James Bradley. 1898. A Preliminary Treatise on Evidence at the Common Law, 264–268. Boston, Little, Brown & Co. Tillers, Peter. 2011. Trial by Mathematics-Reconsidered. Law, Probability and Risk 10: 167–173. Tribe, Laurence. 1971. Trial by Mathematics: Precision and Ritual in the Legal Process. Harvard Law Review 84: 1329. Tversky, Amos, and Daniel Kahneman. 1982. Evidential Impact of Base Rates, in Judgement Under Uncertainty: Heuristics and Biases, 156–60, ed. Daniel Kahneman et al. Twining, William. 2006. Rethinking Evidence: Exploratory Essays, 2nd ed., 60, 76, 78–80. Cambridge University Press. Zhang, Baosheng, et al. 2013. Evidence Law, 16. Beijing: Higher Education Press.

Part III

Facts and Evidence in Criminal Trials

Three Dimensions of Confessions in Law Hock Lai Ho

1 Introduction There is heavy reliance on confessions in virtually all criminal justice systems. Such reliance goes far back in history and transcends legal traditions. This makes the subject especially amenable to comparative reflections on this occasion where there is an international gathering of legal scholars.1 The dialogues that this conference seeks to facilitate are not only across legal jurisdictions but also across the disciplines of law and philosophy. Epistemology lies most clearly at the intersection of these two disciplines. But they intersect elsewhere too. Other branches of philosophy can also advance our understanding of the roles of confession in law. I propose to explore these roles through epistemic, moral and political lenses. My thesis is that each of these perspectives brings into view a different significance of a confession that is associated with a corresponding conception of the purpose of the criminal process. The significance of a confession from these three angles may, for convenience, be called respectively “confession as evidence”, “confession as remorse” and “confession as submission”. The importance placed in the legal process on the voluntariness of confessions will be used as a unifying thread in the discussion. As we will see, a different account of the emphasis on voluntariness emerges depending on whether the criminal process is perceived as a search for the truth, as having the aim of inducing personal moral reform or of securing submission by an individual to the imposition of state power.

1 An earlier version of this paper was presented at the International Conference on Facts and Evidence—A Dialogue between Philosophy and Law in May 2016. I thank the organizers for inviting me to speak and for their hospitality. Dr Chuanming FAN and Dr Jing CAO have given me much administrative assistance for which I grateful.

H. L. Ho (B) National University of Singapore, Singapore, Singapore © China University of Political Science and Law Press 2021 B. Zhang et al. (eds.), Facts and Evidence, https://doi.org/10.1007/978-981-15-9639-1_15

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2 Confessions and the Search for Truth The criminal process is, in the words of Ashworth and Redmayne, a complex “institution that embodies a number of different aims and values.”2 One of its central objects is “accurately to determine whether or not a person has committed a particular criminal offence”.3 Criminal investigations and criminal trials seek to ascertain criminal responsibility: has the suspect who is being investigated or the person on trial committed a crime? The answer is sought not out of idle curiosity. We are interested in the answer because we want—in the interest of criminal deterrence or for retributive or other practical reasons—to impose criminal sanctions on those and only those who are truly guilty. The epistemology of legal fact-finding is challenging on many fronts. Much has been written on what fact-finding should aim at; among the contenders are accuracy, justified belief, knowledge and acceptance.4 For present purposes, it does not matter which side of the debate is right. All sides will agree that the general function of relevant evidence is to support a factual inference which establishes or points towards guilt or which defeats or undermines that conclusion.5 Evidence of a confession is relevant; it is adduced to prove the facts asserted in the statement proffered as a potential premise of a logical inference towards guilt. A confession is often defined in terms of the availability of such an inference. For example, under the Singapore Evidence Act, a confession is a statement “made at any time by a person accused of an offence, stating or suggesting the inference that he committed that offence.”6 Similarly, section 82 (1) of the Police and Criminal Evidence Act 1984 in England and Wales defines a confession as including “any statement wholly or partly adverse to the person who made it”; as thus defined, the crucial consideration is whether an adverse inference of guilt may logically be drawn from the statement. In Anandagoda v. R,7 a case from Ceylon, the Privy Council held8 : The test whether a statement is a confession is an objective one… [I]t is irrelevant to consider whether the accused intended to make a confession. If the facts in the statement added together suggest the inference that the accused is guilty of the offence then it is nonetheless a confession even although the accused at the same time protests his innocence.

Thus, the criteria commonly adopted by the law in determining whether a statement by the accused is a confession is whether an objective inference of guilt may be drawn from it. Contrition need not accompany the statement. This, I contend, is 2 Ashworth

and Redmayne (2010). at 23. 4 See Enoch et al. (2012), Ho (2008), Beltrán (2006), Jonathan Cohen (1991, 1992). 5 See e.g., the influential definition of relevance given by Stephen (1886, 2): “The word ‘relevant’ means that any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.” 6 Section 17(2), Evidence Act, Cap 97, 1997 rev. ed. (Singapore). 7 [1962] Weekly Law Reports 817. 8 Id. at 823–4. 3 Id.

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contrary to the ordinary understanding of a confession. We will return to this point in Sect. 3. A confession has always been treated as the most damning evidence of guilt. Several ideas lie behind this. The probative value of a confession is thought to derive, not least, from the fact that it comes from the accused himself. He should know better than anyone else whether he committed the crime in question. The inference of guilt is supposedly a matter of commonsense: why would a person confess to a crime if it isn’t true that he did it? Lies are typically self-serving. A criminal confession, on the other hand, is potentially self-harming: the confessor opens himself to punishment in disclosing his criminal act. A puzzle lies within this reasoning. Given the natural human instinct for selfpreservation, it is irrational for a person to voluntarily disclose his guilt to the authority that holds the power to punish him on the disclosed facts.9 This raises the possibility that the person was made to confess against his will. There have been many publicized instances of miscarriages of justice that have resulted from false confessions. In the face of this, it is difficult to cling onto our confidence in the general reliability of confession evidence.10 Every country has had a share of such misfortunes.11 Psychological studies have highlighted the many causes of false confessions.12 False confessions are often the result of using techniques of coercion and psychological manipulation that overbear the suspect’s will and reduce him to a state of helplessness where he believes that he has no choice but to comply with the investigators’ demands.13 An innocent person may give a false confession due to external pressure, so as to escape some harm or avoid an adverse situation; or, he may be led to believe falsely that he is guilty, a risk that increases where the person is tired, confused or suggestible. Exceptionally, he may even volunteer a false confession for a variety of reasons, such a desire for notoriety or to expiate feelings of guilt for other transgressions.14 As a professor of law and psychology puts it, the “potential of interrogations to generate false confessions is now indisputable.”15 The means of extracting confessions are manifold; they range from the subtle to the brutal. As we shall see in Sect. 4, torture was long ago a standard practice in the criminal systems of both the East and the West.16 Even though torture has in modern times received 9 Silving

(1964, 258–259). of the cases of the miscarriages of justice in the United States, a large proportion of the convictions had been based on false confessions: Leo et al. (2006). 11 The worry over false confessions led the Chinese government to publish two sets of rules in 2010: “Rules Concerning Questions about Exclusion of Illegally Evidence in Handling Criminal Cases” and “Rules Concerning Questions about Examining and Judging Evidence in Death Penalty Cases”. I understand that these rules have found their way into the Criminal Procedure Law 2012. Further regulations were apparently published by the government in 2013: Xing (2015). 12 The literature is vast. For a recent contribution, see Simon (2012). 13 See e.g., Leo and Drizin (2010, 9). 14 See Kassin and Gudjonsson (2005). 15 Simon, supra note 12, at 121. 16 The historical use of torture in criminal proceedings is discussed in Sect. 4 below. 10 E.g.,

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international condemnation,17 its complete eradication from criminal justice systems seems unachievable. One way in which the law addresses the problem of coerced confession is through the exclusion of such evidence. At common law, evidence may be given of a confession in legal proceedings only if the prosecution proves that the confession was voluntarily given. This is certainly not unique to the common law. Legislations may be found in many countries, including those outside the common law world, that proscribe specific forms of undue pressure during police interrogations and provide for the exclusion of confessions obtained by wrongful means.18 The hope is that by denying the prosecution enjoyment of the fruits of coercion, there will be less reason for investigators to resort to coercive tactics. Where a confession is obtained by improper pressure and the voluntariness rule is violated, the confession is deemed unreliable as evidence of guilt and it is, for that reason, excluded. On this rationale for the rule, it is addressing a reliability concern.19 Although voluntariness serves as a useful proxy for reliability, they do not map perfectly onto each other. A voluntary confession may still be unreliable and an involuntary confession may yet be reliable. This has sometimes led to the concept of reliability being used directly as the test of admissibility.20 The account that I have just given should be a familiar one. It is the prevailing way of thinking about confession evidence in most quarters. Let me concentrate on other possible points of view. They are non-mainstream and, for that reason, more interesting. Insights often come from disrupting settled understanding.

17 See

1984 Convention against Torture, and Other Cruel, Inhuman, or Degrading Treatment or Punishment 1465 UNTS 85/[1989] ATS 21. 18 As is done in Article 50 of the Chinese Criminal Procedure Law 2012 (prohibiting the use of torture, threats, enticement, deception, force and other unlawful means). Article 54 goes on to provide for the exclusion of confessions obtained by torture and other illegal means. See the discussion by Dr Chuanming FAN of these and other provisions in his paper, “The Internal Conflicts and Compromise of Chinese Confession Rule System” which was written for the Asian Law Institute conference in May 2015. 19 For a discussion of this and other possible rationales for exclusion of the evidence, see Mirfield (1997, ch. 2). 20 See e.g., s.76(2)(b) of the Police and Criminal Evidence Act 1984 in England and Wales, discussed in Dennis (2013, 234–235) (stressing that the test is based on the reliability of the method used to obtain the confession and not the reliability of the confession that is sought to be excluded). Similarly, see s.85(2) of the Australian Evidence Act 1995 (evidence of the accused’s admission is inadmissible “unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected”).

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3 The Morality of Confessions A different picture appears when the epistemic lens is replaced with a moral one. An alternative explanation of the voluntariness rule anchors it on the privilege (or more accurately, the right) against self-incrimination.21 In jurisdictions where the privilege exists, the suspect has the right to remain silent when questioned by the police. In effect, he has the right not to confess. The privilege frees the suspect from any duty to self-incriminate and places a duty on the police to refrain from interfering with the suspect’s choice to remain silent. Critics who oppose the privilege point out that this is at odds with everyday morality. After all, children who have erred are taught to come clean and own up to their mistakes22 and confessing to one’s sins is preached by some religions.23 I find this criticism less than persuasive. It is one thing to permit a type of action; it is another to encourage it. A legislation that allows euthanasia under certain circumstances is not telling persons in those circumstances that they should end their life. Similarly, in giving the suspect the right of silence, the law is not thereby urging him to remain silent. As Waldron has argued, it is not paradoxical to speak of a legal right to do a moral wrong. To use his example, the rights created by “permissive abortion legislation” are, for antiabortionists, rights to do actions that are immoral.24 In creating the right of abortion, the law gives no one a reason to terminate a pregnancy or for that matter a reason not to do so. What the law does, broadly speaking, is to impose a duty on others not to interfere with the freedom of choice and not to obstruct execution of the choice should one decide to undergo an abortion. A similar argument can be made of the right against self-incrimination. While this right protects the suspect from being forced to confess, it does not provide any reason for him either to remain silent or to disclose his guilt. He is free to choose between these options. The connection between the privilege against self-incrimination and the voluntariness rule should by

21 In

the House of Lords case of R v. Sang [1980] A. C. 402 at 436, Lord Diplock stated: “The underlying rationale of [the law on confession, including the voluntariness rule], though it may originally have been based upon ensuring the reliability of confessions is, in my view, now to be found in the maxim nemo debet prodere se ipsum, no one can be required to be his own betrayer or … ‘the right to silence’.” While the privilege against self-incrimination seems to be recognised in article 50 of the Chinese Criminal Procedure Law 2012, ambiguity is created by article 118 which places a duty on the suspect to answer questions truthfully during interrogation. See Fan, supra note 18. 22 See e.g., Friendly (1968): “the lesson parents preach is that a misdeed, even a serious one, will generally be forgiven, a failure to make a clean breast of it will not be. Every hour of the day people are being asked to explain their conduct to parents, employers and teachers. Those who are questioned consider themselves to be morally bound to respond, and the questioners believe it proper to take action if they do not.” 23 For studies on confession and the interplay between law, religion and everyday morality as captured in literature, see e.g., Foucault (2014) and Brooks (2000). 24 Waldron (1981).

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now be apparent. A confession is admissible only if the choice was not interfered with and the person had willingly chosen to confess.25 But why should the law give and protect this freedom of choice? Here is one plausible explanation. It does not follow from the fact that confessing to a crime is the morally right course of action that the law should, as a rule, force suspects to confess their guilt. The right against self-incrimination is, arguably, grounded in “the value of autonomy in an individual’s self-constitution.”26 It protects decision-making on a matter that is important to the right-bearer: we may even go so far as to describe it as something that is crucial for his “integrity and self-constitution”,27 that will “shape the character and direction of [his] life and, in some sense, define the person [he] is to be.”28 This claim makes sense only on a moral understanding of a confession. The sort of confession that parents want from their erring child and that some religions desire from a sinner is not merely a statement that discloses wrong-doing. A person who boasts about a crime is disclosing it. But his attitude is the opposite of what is ordinarily expected of a confession. As a moral practice, to confess is not only to reveal one’s wrongful deed; it also involves accepting responsibility for the act, regretting one’s error in so acting, and feeling some shame or disappointment with oneself. It is the attitudinal and emotional elements of a confession that gives it the potential to generate personal reform. In deciding whether to confess, the suspect stands, as it were, at a fork in his life path. Does he want to remain silent and continue hiding in the shadow of his crime or to confess and seek reintegration into society through repentance and forgiveness?29 Like all moral decisions, there is a place for guidance or counseling. But ultimately, the attitudes and feelings that are central to the moral practice of confessing must emanate from within the person; they cannot be simply extracted from him by external coercion. This gives one possible explanation for the law’s insistence on the voluntariness of confessions.30

25 E.g., Culombe v. Connecticut, 367 U.S. 568, 602 (1961), per Justice Frankfurter: “Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” 26 Waldron (1983). Waldron was writing about rights in general and not specifically about the right against self-incrimination. 27 Waldron, “A Right to Do Wrong”, supra note 24, at 34. 28 Id. at 37. 29 See Foucault, supra note 23, at 208: a confession by the accused person “marks the first step of his reintegration…since through avowal, one recognizes that one has broken the fundamental pact, but in recognizing this, one takes the first step, one makes the first move, in the direction of his reintegration.” 30 While the voluntariness rule protects choice and decision-making on this account, it does not make repentance a condition of admissibility. The rule is satisfied if guilt was voluntarily disclosed, even if the accused was moved by strategic calculation. See Ashcraft et al. v. Tennessee 322 U.S.143, 161 (1944), Justice Jackson, dissenting: “The term ‘voluntary’ confession does not mean voluntary in the sense of a confession to a priest merely to rid one’s soul of a sense of guilt. ‘Voluntary confessions’ in criminal law are the product of calculations of a different order, and usually proceed from a belief that further denial is useless and perhaps prejudicial.”

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There are two potential problems with this argument. First, one may criticize it for riding on an unrealistic aspiration. If the police are to fully respect the suspect’s freedom of choice and not do anything that would compromise it, they will rarely be able to get a confession from him. Hardly any confession given in the typical circumstances in which a person is detained and questioned by the police can be said to be fully voluntary. There are two possible ways of responding to this criticism. First, if it is indeed true that confessions made to the police are typically involuntary, the right response is to grasp the nettle and, as a rule, exclude any confession that was made to a police officer or made while in police custody. This was in fact the approach taken in the Indian Evidence Act 1872.31 It was thought that allowing the police to make use of such confessions would hold out too great a temptation for them to abuse their powers. As the drafter to the Indian Evidence Act 1872, James Fitzjames Stephen, explained: “It is far pleasanter to sit comfortably in the shade rubbing pepper into a poor devil’s eyes than to go about in the sun hunting up evidence”.32 The second possible response is to deny that the concept of voluntariness is unworkable. It is a matter of judgment whether the pressure that was applied on a suspect to confess is so excessive as to render the confession involuntary as a matter of law. While this judgment can be difficult to make in borderline situations, we can often agree on which side of the line a case falls. That it can be difficult to draw the line in some cases does not mean that we should therefore not care about voluntariness or that coercion is therefore legitimate or that there should be no safeguards to protect suspects from police coercion.33 The legal context raises a second potential problem with the argument. An important reason why parents teach their children to own up to their mistakes is that it is for their own good. The moral lesson that is being taught is that of taking responsibility for one’s action. Likewise, as a religious act, a confession is considered good for the soul and results in absolution. In both contexts, the values of love and forgiveness are emphasized. In contrast, the intent seems altogether malevolent when we turn to the criminal process. Caring concern for the suspect is not what drives police interrogation. A confession is sought as a means of harming him; it is prized as evidence that warrants his conviction and punishment. The aim in seeking a criminal confession is to condemn the person with his own word. Under such circumstances, the ordinary morality of confessions—with the promise of forgiveness and salvation—appears to be turned on its head.34 The gap between the law and the morality of confessions is unbridgeable so long as a confession in law is treated as just a means of “nailing criminals” and “‘convicting’ means [no] more than a group in power being satisfied on good evidence of the guilt 31 Sections

25 and 26 Indian Evidence Act 1872; discussed in Heydon (2010). (1883, 442). 33 See The Royal Commission on Criminal Procedure, Cmnd.8092 (London: HMSO, 1981), 91–95. 34 Cf. Brooks, supra note 23, at 112: “The institutionalization of confession as a means of legal conviction… must always make us uncomfortable, since the state in search of a confession plays on the consolatory aspect of confession as a means to entrap for disciplinary purposes.” Similarly, see id. at 96 and 115. 32 Stephen

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of somebody, and using the powers of the state to clobber him.”35 On what Griffiths calls a “battle model” of the criminal process, the state is pitted against the individual in an adversarial contest where there is “profound and irreconcilable disharmony of interest” between the state and the person suspected or accused of a crime. The state is interested in putting the “suspected criminal in jail” for preventive or retributive reasons whereas the accused is interested in getting acquitted. The criminal process is “a struggle—a stylized war—between [these] two contending forces”.36 In such a set-up, a confession amounts to a surrender.37 Griffiths is critical of the battle model. He is in favor of moving towards the “family model” of the criminal process. On this model there is an “assumption of reconcilable-even mutually supportive-interests” between state and individual.38 “Respect and concern would be a fact in the process”.39 The accused is not forsaken as “some kind of distinct and dangerous outsider” from whom society should be kept safe.40 Instead, “concern for what, speaking broadly, is ‘good for’ a defendant caught up in the criminal process is central to the Family Model”.41 Repentance, redemption and rehabilitation would be regarded as major objectives of the criminal process and confessions would play a central role in promoting these ends. Although Griffiths believes that there is much to be gained in moving nearer towards the Family Model, he concedes that it is not achievable in the pure form.42 But the Family Model is not as impractical as it may seem. It finds resonance in the approach to criminal justice adopted by the Cheyenne tribe as it is portrayed by Llewellyn. There is, as Llewellyn observes, a “highly geared drive for rehabilitation of the offender” in the Cheyenne criminal system and a confession is sought for that purpose.43 The purpose of a trial is “to bring the erring brother, now known to be such, to repentance, to open confession, and to reintegration with the community of which he was and still is regarded as an integral part. As contrasted with arm’slength attitudes, the law, the procedure, the treatment, the attitudes, the emotions are parental.”44 The Japanese system resembles even more strongly the Family Model. While this discussion concentrates on Japan, the moral emphasis is not unique to that jurisdiction. For instance, the history of the Chinese criminal system also contains a strong moral theme. It adopts an approach that has been described as “Benevolent 35 G. E. M. Anscombe and J. Feldman, “On the Nature of Justice in a Trial”, 33 Analysis 33 (1972). 36 Griffiths

(1970). at 369, citing Fortas (1954). 38 Griffiths, supra note 36, at 371. See also id. at 411: “Reconciliation takes place in the Family Model particularly in the energetic pursuit by society of the convict’s interest in every way consistent with the social need that he be punished.” 39 Id. at 384. 40 Id. at 376. 41 Id. at 387. 42 Id. at 371–372, 412. 43 Llewellyn (1962, 447). 44 Id. at 448 (emphasis original). 37 Id.

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Paternalism”.45 Emphasis is placed throughout the criminal process on reforming offenders and reintegrating them into society.46 The significance of a criminal confession extends beyond its value as incriminating evidence. As Foote reports, “obtaining a confession signifies more than just getting the suspect to admit to having committed the crime”; it “also means getting the suspect to accept moral responsibility.”47 A confession is desired not only for the incriminating evidence that it provides for the purposes of getting a guilty verdict but also as “both a means to and reflection of the moral catharsis of the individual deemed essential to true reform.”48 The offender is encouraged to reflect on his actions and to accept responsibility for his error in a sincere confession.49 Taking responsibility is a seen as a necessary prelude to rehabilitation and reintegration. It would, however, be naïve to think that the Japanese criminal justice is motivated wholly by love for the offender or caring concern for the best interests of the suspect.50 Another important, if not greater consideration, is the social interest in preventing recidivism and restoring “social harmony”.51 This is different from maintaining social order by deterring crime. Social harmony is restored by repairing relations between the offender and the victim and the wider community that have been disrupted by the commission of the crime. It is pivotal to the restoration of such relations that the accused shows repentance in a remorseful confession.52 The willingness to make such a confession increases the likelihood of personal correction53 and usually leads to lenient treatment.54 This factor is taken into account 45 Foote

(1992). For Foote, the system is benevolent in having as its goal the reformation and reintegration of offenders, and it is paternalistic in that the state is given substantial discretionary power. 46 This is done under the concept of “specific prevention”. As Foote explains, unlike “specific deterrence”, which seeks to control crime through intimidation, “specific prevention” “is a broader concept that also embraces the prevention of recidivism through reformation and rehabilitation of the offender… in accordance with their individualized circumstances”: id. at 321. 47 Id. at 337. 48 Id. at 360. See also Id. at 379 (“the process of thorough questioning leading to a full and sincere confession is regarded as a crucial means of achieving the repentance and moral catharsis considered an essential part of rehabilitation and reintegration”). 49 Foote (1991). 50 Foote, supra note 46, at 321 and 341. 51 According to Goodman (1986), the objective in getting the offender to repent does not stop at “purely inward remorse”: “A large part of the meaning of repentance is to signify recognition of the proper order by placing oneself at the mercy of the very society whose rules one has violated. To refuse to take responsibility for one’s conduct and express regret for it can only be explained by an inability to appreciate the proper order or to appreciate how one’s act has offended this order.” 52 The prospect of restoring social harmony is enhanced when the confession is accompanied by an apology. See Wagatsuma and Rosett (1986). A similar emphasis on social harmony prevails in China: Folsom and Minan (1989), 5; Peerenboom (2002, 144). 53 See e.g., Goodman, supra note 52, at 48 (“It is generally believed that there is little chance for rehabilitation of an individual who does not know enough to show repentance when he is guilty”); Haley (1998). 54 The offender is also expected to demonstrate remorse by making an apology and restitution: Wagatsuma and Rosett, supra note 53.

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by the police in deciding whether to report a case, by the prosecutor in deciding whether to prosecute or suspend prosecution, and by the judge in deciding on the sentence and on whether to suspend its execution.55 As far as possible, a criminal conviction is diverted as the stigma associated with it is considered detrimental to the social reintegration of the offender. Whatever the merits and strengths of the Family or Parental Model, we must be careful not to put it on a pedestal. The model may not suit all societies and cultures. Further, there are obvious risks in entrusting officials with wide discretion and in leaving them to be guided by their own moral judgments. These concerns are exacerbated in the absence of sufficient safeguards, transparency and accountability.56 Investigators, spurred by their sense of righteousness, may become over-zealous in seeking remorse in a confession from a suspect who is perceived as being obstinately unrepentant.57 On the other side, an innocent suspect may confess out of the fear of appearing to be unrepentant and in order to secure lenient treatment.58 The purpose of this discussion is only to shed light on an extra-epistemic significance that a criminal confession can have in law. Let me summarize the key themes arising out of this discussion. What significance or role we attribute to a confession in a criminal process is informed by our understanding of its purpose. If the purpose is understood as having the moral dimension just suggested, more emphasis would be placed on confessing being the morally right thing to do and encouraging it, and less on protecting the legal right not to confess. This does not imply that the law should force the suspect to confess. Voluntariness remains important on this account. A person can be coerced into providing incriminating information but not into a genuine feeling of inward remorse. What is looked for in a confession is the appropriate moral attitude and not merely truth.

55 Haley

(1991, 129–133).

56 These concerns have been raised in connection with the Japanese system. See Foote, “The Benevo-

lent Paternalism of Japanese Criminal Justice”, supra note 46, at 367–377. See also at Hirano (1989), Goodman, supra note 52, at 52. 57 See Xin (1997, 132). 58 Foote (1986), reports that “in a number of Japanese cases in which prior convictions have been overturned on appeal or on retrial, defendants have explained that they initially confessed to crimes they did not commit, precisely because they thought…that they would receive lenient treatment in return.”

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4 The Political Significance of Confessions When we look for repentance from a person, we are supposing and should have reasons for believing that he has done some wrong.59 In this sense, the epistemic has priority over the moral. In addition to the moral and the epistemic, the criminal process has a political dimension. Where as the moral account of the criminal process identifies “benevolent paternalism” as the driving philosophy, the political narrative is orientated towards the objectives of control and subjugation. The most visible and direct imposition of power by the state on persons within its political domain is through the criminal process. In this process, the state seeks the submission by persons accused of crimes to the impositions of power. An act of submission occurs when a person confesses to officials that he has committed a crime.60 Foucault has done more than anyone else to articulate this political value of a confession. He writes61 : [An] avowal [or, to use a more common term, a confession] consists not simply of recognizing one’s crime, [but] at the same time recognizing, through recognition of one’s crime, the validity of the punishment that one will suffer. In this sense, avowal is a rite of sovereignty by means of which the guilty party provides a foundation for his judges to condemn him and recognizes his own will in the decision of the judges.”

This insight sheds light on the claim that a “confession was never regarded as a kind of evidence” under Chinese law in the imperial era.62 The position was apparently the same under traditional Japanese criminal law63 ; during the Tokugawa era, “[t]he physical and testimonial evidence simply served as a means of compelling the suspect to confess.”64 A confession by an accused was, in general, required for his conviction. If he refused to confess, torture was applied. According to records from the Tang,65 Yuan66 and Qing67 dynasties, this was allowed only where the accused’s guilt had already been established independently by evidence.68 It is clear that getting the 59 Cf.

Ishimatsu (1989): “it is…said that the process of demanding confessions from suspects leads to self-reflection and plays an important role in preventing recidivism. Yet one can only assert these benefits if one assumes that the hunches of the investigators—in other words, the sketches that they have drawn at the investigation stage—are accurate.” 60 An even clearer act of submission is a guilty plea. But a guilty plea is not recognised in some legal systems. 61 Foucault, supra note 23, at 207. 62 Shiga (1975). See also id. at 122. 63 Abe (1956). 64 Hiramatsu (1989). 65 Wu (2012, 157) (citing the Tang Code for the proposition that “the torture practices were permitted only in cases where the evidence strongly tended to establish the suspect’s guilt”). 66 Ch’en (1979, 76, 153–154). 67 Conner (2000, 138). As compared to traditional Chinese law, Tokugawa criminal law seemed to have adopted a lower evidentiary threshold for the application of torture: see Hiramatsu, supra note 65, at 118–119. 68 The same is true of the medieval practice of torture in Europe: Langbein (1976, 4–5).

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accused to confess was a central goal of the criminal process. In ancient times, the Chinese character for an admission of criminal guilt denoted an act of submission (服).69 A confession played a similar role in Western legal history. In medieval Europe, the answer to a question of guilt was sought in divine revelation through the result of an ordeal. With the abolition of the ordeals by the Fourth Lateran Council of 1215, a new system of proof had to be created in which man now acted as judge in place of God. This created a problem of political legitimacy for Roman-canon law.70 In order for a judgment of a mere mortal to attract a close enough degree of confidence and public acceptance as a Divine judgment, Roman-canon law had to base a guilty verdict on a level of proof that would be considered unquestionable. It was insufficient to have circumstantial evidence as reliance on such evidence was subjective and risky. A conviction was thought safe enough if it was supported by the testimony of two eye-witnesses.71 Where this was not available, as often it will not be, a confession by the accused was necessary for his conviction. Torture could be used to obtain his confession. There were detailed rules on when and how torture was to be applied. A confession obtained by torture did not qualify as proof. The accused had to repeat the confession “voluntarily” on a separate occasion for it to be valid. If he refused to do so, he could be re-tortured. A person who is able to resist all attempts to make him confess or to repeat his confession had to be acquitted.72 On Langbein’s hypothesis, the legitimacy deficit had to be filled by an unquestionable level of proof. Why would a confession under the shadow of torture be thought capable of generating sufficiently strong confidence in the accused’s guilt? It does not seem plausible that the unreliability of a confession obtained by torture, or the threat of renewed torture, was missing from public consciousness. A confession, arguably, was not treated only as evidence; it played a political role that legitimized the verdict. Foucault sees the confessor as “binding himself to the truth” of his guilt.73 This is not strictly true. A voluntary confession is not binding in the way a formal admission is. However, as pointed out by writers such as Chamberlayne, a confession operates as a kind of “quasi-estoppel which controls the right of a party to disclaim responsibility” for his statement.74 When a person confesses to a crime, he discloses facts that warrant his conviction. That he himself has stated them to be so makes it especially legitimate to use his statement against him. In confessing, the person is vindicating

69 See

Stephens (1992, 41), Hulsewé (1955, 77) (“In the statement made during trial, the accused had to ‘submit’, fu, 服, ie he had to admit the truth of the accusation”), McLeod and Yates (1981), van Gulik (1956, 57). 70 Langbein, supra note 69, at 6, 55–56. 71 Such evidence was considered “as clear as the light of day”: id. at 6. 72 Id. at 15–16. 73 Foucault, supra note 23, at 17. 74 Chamberlayne (1911, §1292), quoted by Morgan (1920–1921). Cf. Wigmore (1923, §1057).

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the suspicions or accusations of the power that seeks his conviction.75 It confirms the factual basis for inflicting on him criminal sanctions. To borrow again from Foucault, the confessor “provides a foundation for his judges to condemn him and recognizes his own will in the decision of the judges.”76 That the accused has freely confessed thus adds to the political safety of his conviction and punishment. Importantly, the legitimacy of using his confession against him—the reasoning that “he has said so himself”—does not hold if the confession was involuntary and had been forced out of him by the state. From the political perspective, the right not to confess may be seen as expressing the right to resist submission to power. As such, the rationale of the voluntariness rule would have to be sought in political theory. Hobbes is one example of a political theorist whose work is of relevance in this connection. He insisted that no man is bound to confess to a crime, thereby exposing himself to punishment, when he is being interrogated by the sovereign or by his authority. This view is grounded in the broader principle that “no man can transfer, or lay down his right to save himself from death, wounds, and imprisonment, the avoiding whereof is the only end of laying down any right”.77 His theory appears to have had some influence in early English law.78 Hobbes’ view was echoed in Attorney General v. Mico79 where the English Court of Exchequer endorsed the principle that “though the parties own confession of a crime be the clearest proof in the law, yet if such confession proceed from dread, or be extorted by any compulsion, it ought not to be received against him”. This was attributed to the “law of nature”, that was “of the same stamp” as the “law of God”, which “not only allows, but rather commands every man to preserve himself from hurt and damage”.80 In contemporary discussions, the voluntariness rule is sometimes rooted in notion of limited government and the necessity for restrictions on what may be done to obtain the submission of citizens. Recognition that this rationale can stand on its own, independently of any epistemic concerns, may be found in judicial statements. A well-known example is from the judgment of Chief Justice Warren in Spano v. New York 81 : 75 On the Battle Model of the Criminal Process, the accused’s right to resist this assertion of power is manifested in due process protections. The Parental Model is likely to be less tolerant of such resistance [see e.g., Cohen (1979, 256)]. 76 Foucault, supra note 23: 209: “avowal, as a means of recognizing oneself to be guilty, constitutes the first element or, let us say, if you will, the first pledge of the punitive pact: ‘By avowing, I receive the punishment as something that is just and I agree to participate in the corrective process that the judges expect of my punishment.’”. 77 Hobbes (1962, 110). See generally, id. Chapters 14 and 21. 78 Thomas III and Bilder (1991). 79 (1658) 1 Hardes 137 at 139; 145 English Reports 419 at 420. 80 Similarly, centuries ago, Moses Maimonides attributed the Talmudic rule excluding the accused’s confession partly to the worry about his self-destructive tendency: Rosenberg and Rosenberg (1988), Levine (2011), Lamm (1956), Brooks, supra note 23, at 72. 81 360 U.S.315 at 320–321 (1959). See also the opinion of the Privy Council in Lam Chi-Ming v. R [1991] 2 Appeal Cases 212 at 220 (an appeal from Hong Kong): “the rejection of an improperly obtained confession is not dependent only upon possible unreliability but also upon the principle

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The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.

That this political concern stands on its own is reflected in the law under which the oppressive manner by which a confession was extracted could in and of itself provide a legal basis for exclusion regardless of its truth.82

5 Conclusion This paper has outlined three dimensions of confessions in the criminal process. How these dimensions relate or interact with each other in any legal system is complex. In closing, let me provide some illustrations of how they might compete for priority. In principle, the epistemic dimension should have priority over the moral in the sense that we should look for repentance in a person only if we have at least some basis for thinking that he has committed a crime. In a different sense, the epistemic should also have priority over the political (the quest for submission). To force a person to submit to power without regard for the truth is unjust and oppressive. The police may force a suspect to confess to something that they know to be false or without caring whether it is true or not. They may do so out of bad faith or laziness or some other motives. In most legal systems, such occurrences are unlikely to be common. A more likely scenario is one where the investigators fail to keep an open mind. They first form the hunch that it is the suspect who has committed the crime. They subject him to aggressive interrogation that is geared at extracting an admission of guilt. “Tunnel vision” may lead the investigators to focus on their hypothesis to the exclusion of other possible explanations relating to the crime. “Confirmationbias” may result in them seeking out and interpreting evidence that confirms their hunch while overlooking or ignoring inconsistent or contradictory evidence.83 In short, after coming up with a hypothesis, they may be more interested in forcing the suspect to sign up to it than in getting to the truth in an objective fashion. False convictions are often caused by over-confident or misguided exercise of power by law enforcement officials. The political dimension is also related to the moral one. While the offender’s submission to the imposition of power is desirable in itself, it has maximum political value only when it is accompanied by submission to the moral legitimacy of that a man cannot be compelled to incriminate himself and upon the importance that attaches in a civilised society to proper behaviour by the police towards those in their custody.” 82 Section 76(2)(b) of the Police and Criminal Evidence Act 1984 in England and Wales provides for oppression as a ground for exclusion that is separate from the ground of unreliability set out in s.76(2)(a) of the same legislation. 83 Leo and Drizin (2010, 9).

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that imposition.84 The most desirable situation is one where the offender confesses remorsefully and accepts the justice of his criminal condemnation and punishment. But this is not what usually happens.85 In fact, one may willingly submit to power while vehemently denying its legitimacy. One may unequivocally admit to having violated a law while strongly protesting its morality. From the state’s point of view, a defiant submission of this sort is not only less than ideal, it is an open challenge to its authority.

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84 Cf. Haley (1986): “Between the citizen and the state confession…evidences the former’s acknowl-

edgment of the legitimacy of authority and, at least ostensibly, the imposed norms of the legal and social order.” 85 See R v. Rennie [1982] 1 Weekly Law Reports 64 at 69, per Lord Lane C. J. (“Very few confessions are inspired solely by remorse. Often the motives of an accused are mixed and include a hope that an early admission may lead to an earlier release or a lighter sentence.”) Cf. Warwickshall (1783) 1 Leach 263 (“A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt…”).

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Two Models of Fact-Finding: Analysis Based upon Criminal Proof Standard Ruihua Chen

1 Introduction It is well accepted that China’s criminal procedure law (CPL) adopts an objective standard of proof, which mandates the judicator’s fact-finding must satisfy certain extrinsic goals or requirements. However, there is no specific rule regulating to what extent the prosecutor should convince the judicator and what kind of inner certainty should the judicator reach for fact-finding. In the CPL, “facts being clear, evidence being irrefutable and sufficient”, is the product of such externalized standard of proof. The academia and the judiciary are controversial over the exact notion of that standard. Generally, “facts are clear” means all the facts for conviction and sentencing are clear and supported by evidence; “evidence being irrefutable and sufficient” include the qualitative and quantitative requirements: “Evidence is irrefutable” means each piece of evidence used to support fact-finding shall be of some probative value; “evidence is sufficient” means every fact shall be supported by sufficient evidence.1 This externalized legislative model has changed since 2010. The Supreme People’s Court (SPC) introduced “beyond a reasonable doubt” into China’s judicial interpretations and made it one of standards for evaluating “evidence being irrefutable and sufficient” in capital cases.2 In 2012, China’s new CPL explicitly established “beyond a reasonable doubt” as one of the three statutory conditions of “evidence being irrefutable and sufficient.”3 The incorporation of “beyond a reasonable doubt” infuses certain subjective element into former objective standard of proof in criminal cases. The subjective

1 See

Li (2013). Zhang (2010, 254). 3 See Lang (2012, 123); See also Jiang (2013, 110). 2 See

R. Chen (B) Peking University School of Law, Beijing, China © China University of Political Science and Law Press 2021 B. Zhang et al. (eds.), Facts and Evidence, https://doi.org/10.1007/978-981-15-9639-1_16

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element, inherent in the principle of free evaluation of evidence, represents additional legal regulations on judicator’s inner certainty of fact-finding. According to “beyond a reasonable doubt”, the judicator, after subjectively evaluating the facts, shall reach the inner certainty to certain extent and exclude any reasonable doubt. In comparison with the externalized and objective standard, it emphasizes an internalized and subjective standard of proof that further regulates judicator’s inner certainty of fact-finding. From the comparative perspectives, both “beyond a reasonable doubt” in common law countries and “inner certainty” in civil law systems basically belong to such legislative model of subjective standard of proof. China has neither absorbed the principle of free evaluation of evidence, nor comprehensively incorporated that subjective standard of proof. However, the subjective element—“beyond a reasonable doubt”—has been added into former objective requirements (“evidence being irrefutable and sufficient”), indicating a new legislative model of combining the objectivity and subjectivity in the field of criminal evidence law. The issue here is to what extent can such legislative endeavors of infusing subjective element into externalized standard reframe current evidence law? This paper focuses on the incorporation of subjective element. It starts with analyzing the objective standard of proof and related problems, then discusses reasons for assimilating subjective element, and finally articulates how to synthesize the subjective and objective elements. The author’s main argument is that in addition to legislative endeavors to tackle the problems inherent within objective/externalized standard of proof, the subjective element should be “activated” so as to appropriately combine the subjective and objective elements.

2 Objective Proof Standard Imposing an externalized and objective standard of proof upon judicator’s factfinding has been a long tradition in China’s evidence legislation. All the civil, administrative and criminal procedure laws stipulate that the judicator shall confirm the alleged facts only when the case has met the standard of “facts are clear, evidence being irrefutable and sufficient”. “Facts are clear” is akin to “reconstruct the past”, which reflects the philosophy of “seeking the truth from facts”. In addition, “evidence being irrefutable and sufficient” are two requirements per se upon the quality and quantity of evidence. They seem to be irrelevant to judicator’s subjective assessment and inner certainty of fact-finding. So it is safe to say, such standard of proof, “Facts are clear, evidence is irrefutable and sufficient”, functions independently from judicator’s subjectivity and inner certainty, and therefore is too ideal to meet. Before 2010 there was no specific explanation for the above-mentioned standard of proof, and the academia and judiciary were unable to reach a uniform understanding as to the meaning of this standard, which lead to confusion in the legal practice. The SPC, for the first time, interpreted this standard in the criminal evidence rules

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in 2010, in a bit to clarify the original legislative purposes.4 And on this basis, 2012 CPL further deconstruct “evidence being irrefutable and sufficient” into three aspects, making its notion legalized and formalized.5

2.1 Normalization of the Objective Standard of Proof From the enactment of the Criminal Evidence Rule by the SPC in 2010 to the enactment of the new CPL in 2012, Chinese legislators and judiciary had taken pains to specify the proof standard in various aspects, and promulgated series of judicial interpretations thereafter. Those authoritative documents absorbed many academic fruits and legalized theories and arguments articulated in papers and treatises. Under this background, it seems no longer appropriate to treat “facts being clear, evidence being irrefutable and sufficient” as a kind of pure epistemology. With the development of criminal evidence law, this standard is becoming richer in its conception. Particularly, the laws have established a series of externalized and objective elements for the standard of “evidence being irrefutable and sufficient”, which would be shown in following aspects.

2.1.1

Every Fact Shall Be Supported by Evidence

It is a primary condition of China’s “evidence being irrefutable and sufficient” that “all facts for conviction and sentencing shall be supported by evidence”. We may understand this requirement in anther viewpoint: Facts without support of evidence cannot be confirmed, and therefore excluded from the basis for conviction and sentencing. Certainly, where there is no evidence at all, the court can never reach a judgment. Moreover, every constitutive element of crime and every circumstance of sentencing shall be supported by evidence; otherwise those elements and circumstances are unfounded. As a prerequisite condition of “evidence being irrefutable and sufficient”, it reflects the principle of adjudication based upon evidence. Where there is no evidence for the entire case or no specific evidence for certain constitutive elements of crime shall be deemed to be “evidence being irrefutable and sufficient”.

4 In

2010, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice collectively enacted “Several Issues Concerning the Examination and Judgment of Evidence in Handling Capital Cases”, in which §5 provided the requirements of “evidence is solid and sufficient” for the first time. 5 According to Criminal Procedure Law (2012), §53, the standard of “evidence is solid and sufficient” has three requirements: First, all facts for conviction and sentencing shall be supported by evidence; second, all evidence used to decide a case has been verified under legal procedures; Third, all possible doubts can be excluded from fact-finding by all the available evidence.

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Individual Evidence Has the Probative Value and Competence

The second condition of “evidence being irrefutable and sufficient” is: “All evidence used to decide a case has been verified under legal procedures.” This is a comprehensive requirement of probative value and competence. In other words, each piece of evidence must have both probative value and competence, which represents a significant hallmark of “evidence being irrefutable and sufficient”. Each piece of evidence needs to have both probative value and competence to become the basis of fact-finding. The probative value includes two prongs: authenticity and relevance. Authenticity requires the evidence to be verified, and the function of “the basis of fact-finding” requires the evidence to be relevant. The collection and verification of evidence shall be “under legal procedures”, which means the evidence shall have legal qualification, i.e., the competence. Or, the evidence shall be excluded as a basis for fact-finding. As to what extent to the case shall be proven, “evidence being irrefutable and sufficient” imposes requirements of probative value and competence on individual evidence. Otherwise, if certain evidence has not been verified, or is irrelevant, or without qualification to provide basis for fact-finding, the entire case could not been proven to the extent of “evidence being irrefutable and sufficient”.

2.1.3

Mutual Corroboration

Judicial interpretations have legalized the mutual corroboration rule, a principal basis for verifying the authenticity of evidence. Mutual corroboration shows that two or more pieces of evidence overlap to certain extent. The different evidence used to support the same fact or information would be deemed as mutual corroboration, and their authenticity can be verified accordingly. Otherwise, if two or more pieces of evidence support different or even contradictory facts or information, they would be deemed to be of no mutual corroboration, and their authenticity cannot be verified. Mutual corroboration is a helpful rule to determine the probative value of individual evidence, as well as to decide whether the case has met the standard of “evidence being irrefutable and sufficient”. When the evidence cannot be mutual corroborated, their contradictions cannot be excluded, and therefore the entire case shall be deemed to be “without sufficient evidence”.

2.1.4

All the Evidence in a Certain Case Is Systematically Coherent

As a kind of externalized standard, “evidence being irrefutable and sufficient” requires not only sufficient quantity of evidence, but also that the facts supported by evidence shall form systematic fact-findings. Where there is only circumstantial evidence in a case, judicial interpretations explicitly require the systematic coherence of evidence. Where there are both direct and circumstantial evidence, and the

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direct evidence is deemed to be unconvincing, the judicator shall also examine the circumstantial evidence under the systematic coherence rule. The systematic coherence is also the “evidence chain”, which, in the context of unverified evidence, emphasizes the mutual connections and inner coherence. Namely, all the evidence in a certain case shall be mutual corroborated and collectively form a connected chain.6 Specifically, corresponding with each fact, each piece of relevant evidence serves as a link of a chain; only when evidence can be mutual corroborated, they can collectively form a connected chain. Under systematic coherence, each fact shall be supported by evidence and each evidence shall be corroborated by the others; otherwise, the “evidence chain” is incomplete and the entire case could not been considered to “evidence being irrefutable and sufficient”.

2.1.5

Direct Evidence Is Corroborated by Other Evidence

Where there is direct evidence in a case, whether it could be corroborated by other evidence represents a critical aspect of “evidence being irrefutable and sufficient” Concretely speaking, direct evidence related to the constitutive elements of a crime will be verified so long as its authenticity has been corroborated by other evidence. In this situation, all the facts and information contained in direct evidence have been verified. Therefore, corroboration of direct evidence is an indispensable way of verifying its authenticity, as well as a guarantee of accurate fact-findings. Criminal evidence law establishes three rules of corroborating a defendant’s confession: first, hidden real evidence has been discovered according to the defendant’s confession; second, the confession can be corroborated by real evidence and other evidence; third, the possibility of collusive confession and the obtainment of confession by extortion, coercion or inducement has been ruled out.

2.1.6

The Conclusion Is Unique and Exclusive

Criminal evidence mandates the conclusion shall be exclusive and all the other possibilities shall be ruled out. Exclusiveness means that there is only one possible conclusion in a certain case. If, based upon currently available evidence, the defendant may have been, or have not been, proved to commit the crime, the conclusion is not exclusive. “All the other possibilities shall be ruled out” means that the judicator shall rule out two possibilities: first, the event was not a crime at all, or there was no crime has happened; second, the crime was not committed by the defendant, and there are other possible suspects. If, based upon currently available evidence, those possibilities cannot be ruled out, the judicator shall conclude that the evidence is insufficient.

6 See

Jun Zhang, supra 2, 253–254.

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2.2 Reflections on the Objective Standard of Proof Since 2010 China’s criminal procedure law has exhibited a trend toward concrete and specific legislations in the filed of standard of proof. Series of practicable rules have been introduced with respect to “facts being clear, evidence being irrefutable and sufficient”. Aforementioned “mutual corroboration”, “systematic coherence”, and “exclusive conclusion” are typical examples of such legislations and regulations. It is fair to say that these endeavors are not only active response to theoretical articulations on the standard of proof, but also generalization of judicial explorations in practice. Compared with previous over-abstract and over-philosophical legal words, this new legislation model is conducive to accurately understand “evidence being irrefutable and sufficient”, and regulate judicator’s discretion on fact-findings. However, that model, at its core, signifies legislative endeavors from the externalized viewpoint. In other words, this is not designed to regulate judicator’s inner certainty as to how and to what extent they shall verify the facts by setting up some sorts of criteria. On the contrary, these endeavors still focus on specifying the abstract standards by imposing some conditions and requirements beyond judicator’s subjectivity. Following are some necessary theoretical reflections for these endeavors.

2.2.1

“Evidence Being Irrefutable and Sufficient” Is Not a Standard Per se

In the epistemological sense, “facts being clear, evidence being irrefutable and sufficient” means the truth has been discovered, and the case has been proven to be consistent with the truth. Stated differently, a judicator has confirmed the facts to 100% certainty, viz., reconstructed the past event. In practice, as a result, the effects of epistemology replace practicable standards with ideal goals, leaving the judicator nothing other than an over-abstract manual. China’s proof standard used to be deemed as “the requirement to be met”, rather than “the standard to be proven”, and therefore hardly serves as helpful criteria. Under such fact-finding rules, it is difficult to determine whether the evidence in a certain case has supported the whole facts to a legally sufficient extent. Moreover, from the viewpoint of subjectivity, we are unable to use this standard assess whether the judicator’s inner certainty has excluded any reasonable doubt.7 “Facts being clear, evidence being irrefutable and sufficient” seems to be more “legal goals” than “proof standard”. Thus, any legislative endeavor of specifying the goals would suffer inherent weakness accordingly.

7 See

Zhang (2003).

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The Requirement for Admitting Individual Evidence Is not Equal to the Standard of Proof

As mentioned before, 2012 CPL added ‘every fact shall be supported by evidence” and “each piece of evidence shall be verified in legal procedures” into the requirements of “evidence being irrefutable and sufficient”. But this legislation needs a second thought. “Every fact shall be supported by evidence” is a basic rule under the principle of adjudication based upon evidence, which seems to be needlessly reiterated here. However, it keeps silent as to what extent the facts shall be verified. If the judicator decides a case only when “facts are supported by evidence’, the burden of proof is too easy to satisfy in practice。So it seems to be more accurate to read “every fact shall be supported by evidence” from the opposite side, that is, if certain fact could not be supported by evidence, the entire case would be considered as “facts are unclear” or “evidence is insufficient”. Namely, the standard of proof could not be met. Thus, even though every fact has been supported by evidence, it remains possible that “facts are unclear”, or “evidence is not solid or sufficient”. “Each piece of evidence shall be verified in legal procedures” represents another requirement of verifying the facts, which has nothing direct to do with the proof standard. Basically, all the evidence shall have probative value and competence before being admitted as basis for deciding a case. “Verification” is an alternative expression of authenticity; “legal procedures” highlight its admissibility or competence. However, the case may not be decided even when all the evidence have probative value and competence. The judicator has to comprehensively evaluate the evidence in order to decide whether he/she can reach inner certainty based upon the evidence. Imposing the requirements, “evidence being irrefutable and sufficient”, upon the probative value and competence blurs the standard of proof with requirements of transforming the evidence into basis for deciding a case. Actually, those loopholes within standard of proof closely relates to the legislative expression of “evidence being irrefutable and sufficient”. “Evidence is irrefutable” reemphasizes that each piece of evidence shall be verified in legal procedures, which confuses the standard of proof with basis for deciding a case in nature. So the rest part, “evidence is sufficient”, stands for certain kind of standard of proof. Legislators, however, have not given any further answer to how to determine whether the “evidence is sufficient”.

2.2.3

Objective Standard Cannot Weigh the Degree of Inner Certainty

In the words of “facts are clear, evidence being irrefutable and sufficient”, we cannot find to what extent the judicator shall believe the authenticity of the facts, and whether some reasonable doubts can be kept. Such standard of proof seems to be independent from judicator’s subjective evaluation and inattentive to his/her personal judgment. Put differently, what the legislators care most is to find out ultimate truth, rather than judicator’s inner certainty.

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Since 2010, the criminal evidence law and its judicial interpretations are changing the over-philosophical standard of proof to more specific rules. But they are still external endeavors that in the direction of strengthening the objectifying of the standard of proof. “Mutual corroboration” is actually a kind of requirement independent of judicator’s subjective evaluation; “systematic coherence” or “evidence chain” mandates sufficient quantity of evidence in addition to mutual corroboration and inexistence of unresolvable contradiction. Such formalized standards, however, also pay little attention to judicator’s own judgment. “Confession corroboration” requires the confession corroborated by other evidence and the exclusion of the illegally obtained confession, and therefore serves as an external requirement of proof rather than the judicator’s inner certainty. Furthermore, “exclusive conclusion” represents another external requirement in spite of certain relevance to judicator’s inner certainty. After all, they cannot weigh the extent to which judicator reached his/her inner certainty. China’s criminal evidence law failed to regulate judicator’s subjective evaluation during the process of specifying the standard of proof. Do we need the “thorough inner certainty” for the fact-finding in a certain case, or the “high degree of probability” is enough? Where there is less than 100% of certainty, how can the judicator refuse to decide a case on the basis of insufficient evidence? If, after comprehensively evaluating the evidence, there are some reasonable doubts in the judicator’s mind, whether or not should he/she decide the case based upon available evidence? In short, China’s laws remain indifferent to the issue of judicator’s inner certainty.

2.2.4

Lack of Concrete Standards Facilitates Unbridled Interpretations of “Facts Are Clear”

In those recently exposed erroneous judgments, all the convictions are alleged to meet the standard of “facts are clear, evidence is solid and sufficient”. After correcting the wrongful cases, the same courts inversely reached different conclusions, “facts are unclear, evidence is insufficient”, based upon the same evidence.8 These inconsistencies signaled judicators’ unbridled discretion when deciding whether the proof standard has been met. The discretion has been ostensibly regulated under new criminal evidence legislations by increasingly specific standards and rules; however, judicator’s inner certainty and subjective evaluation are still free from practicable guidance and legal restriction. What we need here are explicit enumerations of situations where the judicator shall not decide a case based upon evidence therein. Those rigid rules promote nearly formalized fact-findings in accordance to “evidence being irrefutable and sufficient”,

8 In

about 2000, three notorious erroneous criminal judgments occurred in China, which are Peiwu DU Case, Xianglin SHE Case, and Zuohai ZHAO Case. For more information about these three cases, please see Zeng and Wang (2003, 195), Sun et al. (2005), Deng (2010).

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letting judicator’s discretion flee away from legal arenas. Consequently, the externalized legislative model discourages judicial activism and makes judicators become machines and slaves of uniform requirements in the process of fact-finding. In many erroneous judgments, after reviewing the charges, defendant’s confessions, and other real evidence, the courts all concluded that other evidence could corroborate those confessions. Convictions were finally supported in accordance to the formalized standard of proof. But it seems to be sarcastic that in those erroneous cases the real criminals professed to have committed certain crimes in other cases, or alleged “dead” victims came back many years later. Only these dramatic plots can force the courts to admit that they have erred in the former fact-findings. However, what is inexplicable is that their incorrect fact-findings have totally met the standard of proof: all the evidence could be corroborated, the alleged “evidence chain” had been formed, and conclusions were exclusive. What does account for those errors on earth? The judicators reached conclusions simply based on the prosecution evidence under the formalized standards, while ignored that some defendants changed their former confessions completely in court, some pretrial confessions were obtained under coercion or even torture, and none of hostile witnesses took the stand. Worse still, despite of the existence of some reasonable doubts, the courts finally convicted those defendants under external pressures, which reflected the logic of “conviction with certain room for unforeseen circumstances.”9 All these errors and their lessons prove the fecklessness of regulating judicator’s subjective evaluation from an external standpoint. Indeed, judicators in these cases did have some reasonable doubts as to whether crimes happened and whether the defendants committed the crimes, i.e., they did not reach the inner certainty. Nonetheless, these subjective evaluations did not provide the basis for their factfindings. Rather than relying on experience, rationality and morality, the judicators followed the rigid rules—“mutual corroboration”, “excluding contradictions”, “systematic coherence” and “exclusive conclusion”—in an undifferentiated and formalized manner that complies with the legal standard of proof. It shows that a fact-finding mechanism that meets formalized legal requirements is always proved to be unreliable, while a judicator’s reasonable doubts emerged in the trial are always conformed with experience and proved to be highly accurate afterwards.

3 The Introduction of the Subjective Proof Standard Since 2010, when Criminal Evidence Law set more and more specific objective elements for proof standard, some subjective proof requests have been introduced into the criminal evidence law gradually. In the provisions on several issues concerning the examination and judgment of evidence in death penalty cases enacted in 2010, the Supreme Court has put forward the proof standard “beyond a reasonable doubt” 9 For

more analysis and comments on the “conviction with certain room for unforeseen circumstances”, please see Chen (2010).

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for the first time. According to these two rules, when courts apply indirect evidences to confirm the facts of a case, defendants can be found guilty only if all kinds of evidences are verified and form an integrated proof system through mutual corroboration, leading to an exclusive conclusion beyond all reasonable doubt. After the implementation of criminal procedure law in 2012, the proof standard “beyond a reasonable doubt” has been extended to all criminal cases. According to the law, “reasonable doubt of the ascertained facts has been excluded” has become one legal requirement of deciding a case.

3.1 The Establishment of “Beyond a Reasonable Doubt” Some Supreme Court judges have ever given some authoritative explanation to the introduction of the subjective proof request “beyond a reasonable doubt”. Aiming at this statement of the first use of “beyond a reasonable doubt” in the provisions on several issues in death penalty cases, some judges believe that, “beyond a reasonable doubt” means the conclusion is unique, that is to say, “it can only be proved that the defendant is the person that commit the crime, and completely eliminates the possibility of others from committing the crime”.10 According to the explanation, there are not any substantive differences between objective aspects and subjective aspects. “In criminal procedure practice, it is a subjective judgment to determine whether the evidence is clear, irrefutable and sufficient”, but “the proof standard set in the objective aspect should correspond to the degree of the judges’ subjective ascertainment, for example, ‘the fact being clear, evidence being irrefutable and sufficient’ should correspond to ‘no doubt to believe’ in the subjective recognition degree.”11 There is not any substantive change in the Supreme Court judges’ explanation after the implementation of criminal procedure law in 2012. In the following judicial interpretation, the Supreme Court hasn’t given any explanation to the meaning of “beyond a reasonable doubt” and how to apply the subjective proof standard. Why is that? In the view of the Supreme Court judges who participated in drafting judicial interpretation, “beyond a reasonable doubt” is the judge’s subjective standard after examining and judging all the evidences. The standard can only be sensed, not be explained, and the judge should have the power to understand and apply the standard. It is not necessary to explain its specific content. So, what’s the meaning of “beyond a reasonable doubt”? Some judges believe, it mainly points to the condition that there exists no contradiction between the evidences, between the evidences and the facts of a case, or the contradiction can be excluded reasonably. What’s more, the procedure of deciding a case on the basis of evidence should conform to logical and empirical rules, and the conclusions drawn from the evidence are exclusive and unique.12 10 See

Zhang (2010, 254). Zhang (2010, 95). 12 See also Jiang (2013, 46). 11 See

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Then, when the subjective request “beyond a reasonable doubt” is introduced to the criminal procedure law, what legislative considerations do they have? Some officials participating in the law-revision clearly state that “beyond a reasonable doubt” means that there exists no reasonable and valid doubt to the confirmed facts, and the judges’ inner conviction has already reached the degree of no doubt to believe. “Evidence being irrefutable and sufficient” is full with strong objectivity. In judicial practice, criminal investigators, prosecutors and judges need to subjectively judge whether the proof standard can be reached or not. Only in the condition that there exists no reasonable doubts and inner conviction has formed, can we identify that the case has reached the proof standard “evidence being irrefutable and sufficient”. “Beyond a reasonable doubt” doesn’t modify the proof standard in criminal procedure in our country, but clarifies the meaning of “evidence being irrefutable and sufficient” from the subjective perspective, and it’s more convenient for the investigators to grasp the standard.13 Both the Supreme Court judges and the legislators believe that “beyond a reasonable doubt” belongs to the subjective proof standard, and means no doubt to believe without any more specific interpretation. The introduction of the subjective request beyond a reasonable doubt neither replace the proof standard “evidence being irrefutable and sufficient”, nor lower the proof standard in our country. The statement of “beyond a reasonable doubt” just makes the standard “evidence being irrefutable and sufficient” have more specific meaning in the subjective perspective. The article in the criminal procedure law in 2012 seems to confirm the above views.

3.2 The Original Meaning of “Beyond a Reasonable Doubt” Neither the criminal procedure law nor the judicial interpretation has given any clear explanation to the meaning of “beyond a reasonable doubt” and the relationship between the “beyond a reasonable doubt” and “evidence being irrefutable and sufficient”. It leaves the space for further explanation. However, the proof standard “beyond a reasonable doubt” is transplanted from Anglo American evidence law, so before we discuss the meaning of the proof standard in Chinese criminal evidence law, it is necessary for us to have a brief look at the original meaning of “beyond a reasonable doubt”. To the meaning of “beyond a reasonable doubt”, the “black law dictionary” refers that it means “the comprehensive verification, complete conviction or a moral certainty”, and the term has the same meaning with the words “clear”, “accurate” and “no doubt”. Specifically, the proof of “beyond a reasonable doubt” achieves moral certainty in line with the jury’s judgment and conviction. As a rational member of the jury, in accordance with the relevant criminal charges and the evidence, he has reached such a high inner conviction that it was impossible for him to make other reasonable inferences. 13 See

Lang (2012, 123).

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The interpretation of the black’s law dictionary almost makes the “beyond a reasonable doubt” equivalent to complete inner conviction. So, how does the court of the Anglo American law explain the proof standard? Generally speaking, the Anglo American case law rarely makes a direct interpretation of “beyond a reasonable doubt”, but it does have a specific and clear definition of what is the “reasonable doubt”.14 Generally believed that the “reasonable doubt” neither is an imagined doubt, nor can be built on the basis of the suspect, it should be a real and essential suspect, and comes from the evidence or the fact and situation which the evidence point to, or the fact that the prosecutor’s lack of evidence; reasonable doubt refers to such a state, that is, after comprehensive consideration and examination of all the evidence, such an impression has left on the jury member that they cannot say that they feel a tolerable conviction on the truth of the charged facts and the certainty of the assurance.15 By comparing the Anglo American case law, it is not difficult for us to find that although “beyond a reasonable doubt” rarely has a clear explanation in the case law, some basic understanding of the standard from the following aspects can be found: (1) “beyond a reasonable doubt” is a negative proof standard, it tries to tell the jury members what is “reasonable doubt”, and in the presence of “reasonable doubt” it is not allowed to make the verdict of guilt, but it does not tell them what is the condition of “beyond a reasonable doubt”; (2) “beyond a reasonable doubt” is a subjective proof standard, the judge has the power to determine whether the defendant is guilty under his heart, and the judge determines whether it reaches the degree of proof standard according to its inner conviction formed from the trial; (3) “beyond a reasonable doubt” does not mean that the crime facts have to be proved to absolute certainty, or mathematical certainty, and it is also not equal to beyond any doubt, because “each piece relating with human affairs is open to some possibility or hypothetical doubt”. It is not possible and necessary to exclude all doubts; (4) “beyond a reasonable doubt” is the determination from the judges’ inner sense and it is the description of the degree that judges confirm the facts of a case. The standard does not mean to satisfy the external and objective request of recovering the fact and it belongs to the judge’s internal and subjective judgment standard. Then, what’s the relationship between “beyond a reasonable doubt” and “inner conviction”? In principle, both of them belong to the proof standards in subjective aspect, which show the degree of the judge’s understanding of the facts of a case. But “beyond a reasonable doubt” focuses on the negative aspect to define the judge’s subjective cognition standard, while “inner conviction” focuses on the positive point to explain the judge’s subjective judgment standard. From the perspective of comparative law, despite the law in the continental countries ask the judge and the jury to form their inner conviction according to reason, experience, conscience and the impression of the facts of a case from the trail, the discretion is not random, at least, they have to be limited by the principle of “where there is a doubt about the facts of a case,

14 See 15 See

the Black Law’s Dictionary (the fifth edition) (the Western Press of the USA, 1979), 147. Ronald (2006, 818).

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the interpretation favorable for the defendant shall be made”. According to this principle, only if there exists reasonable doubt whether the defendant commit a crime, the judge should make the judgment of innocence. This principle and the principle of independent judgment have made the civil law form the proof standard, almost the same with “beyond a reasonable doubt” in general. So the “inner conviction” in the civil law is often called “no doubt to believe”.

3.3 The Intent of the Introduction of Subjective Proof Request Based on the previous analysis, “beyond a reasonable doubt” and “evidence being irrefutable and sufficient” are different in character. The former is subjective and inner proof standard, which is used to weigh the inner conviction degree of judges about the facts of a case. And the latter is objective and external standard, which is used to estimate whether all evidences of the case can deduce the facts. Strictly speaking, “beyond a reasonable doubt” can be seen as a kind of “proof degree”, while “evidence being irrefutable and sufficient” can be seen as the proof request or the goal of proof. In that case, why do the Supreme Court and the legislators introduce this kind of proof standard into the Chinese evidence system? (1) The establishment of the standard “beyond a reasonable doubt” is helpful to overcome the drawback of the too ideal Chinese proof standard. According to the previous analysis, the proof standard “facts being clear” is closely relevant to the philosophical idea of “seeking truth from facts”, and it is only a goal of objective recognition, which can’t play a role of proof standard. The original proof standard “evidence being irrefutable and sufficient” is the request in quality and quantity stipulated by the law when confirming the facts of a case, and it fails to provide the specific measure. In contrast, the introduction of “beyond a reasonable doubt” provides a judge with a measurable standard of confirming the facts of a case. In principle, this kind of proof standard is not equal to ideal proof goals, including “discovering the truth”, “absolute certainty” and “recovering the fact” etc. And it belongs to the inner conviction degree of judges. When referring to confirming the facts of a case, people have different degrees of subjective recognition, such as “skepticism”, “preliminarily believing” and “absolute certainty”. There is no doubt that “beyond a reasonable doubt” is the highest recognition standard of people’s subjective recognition range. Even though people have different ideas about concrete meanings of “beyond a reasonable doubt”, people can easily reach an agreement on “reasonable doubt” which can offer a measurable standard. To some extent, the introduction of standard “beyond a reasonable doubt” provides a real sense of “proof standards” for Criminal Procedure Law of our country. (2) The introduction of the standard “beyond a reasonable doubt” is helpful to overcome the drawback of the too objective original proof standard.

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According to the previous discussion, both “the fact being clear” and “the evidence being irrefutable and sufficient” are proof request established by laws from an external perspective for the judge. But these proof requests cannot be transformed automatically to the standard of the judges’ subjective recognition degree. The introduction of the standard “beyond a reasonable doubt” is intended to make the judges confirm the facts of a case by examining whether their hearts are convinced. For these judges, after complete court trial process and the comprehensive review of the whole evidences of the case, if the inner conviction of the judges have formed and there is no reasonable doubt of the fact that the defendant has commit a crime, the judges can directly make a conclusion that the crime facts are established. On the contrary, after the trial process, if there are still reasonable doubts of the crime fact, the judges can conclude that the fact does not exist. (3) The instruction of the standard “beyond a reasonable doubt” can play a similar role of “in dubio pro reo”. In Chinese prevailing theory of criminal procedure, in dubio pro reo” is regarded as the inevitable requirement of the principle of presumption of innocence and is the basic rule of the judicial authorities to deal with the doubtful case of crime. Since 1996, the criminal procedure law of our country has established this principle clearly, which asked the court to make an acquittal for the case with unclear facts and insufficient evidence. The case with unclear facts and insufficient evidence generally refers to the conditions where the evidences cannot be mutual corroborated, and the judge has reasonable doubts about the criminal facts. In the judicial practice of the past, people tend to understand and grasp the standard “the fact being clear and the evidence being irrefutable and sufficient” in the objective aspects. But in the case that the fact is not clear and lack of evidence, people often judge and identify it from the subjective aspects. In a sense, the introduction of the standard “beyond a reasonable doubt” means that after the judge’s comprehensive review of the evidence of the case, if there is still a reasonable doubt, he can only follow the principle “in dubio pro reo” and make the decision that the defendant did not commit the crime according to the principle of “where there is a doubt about the facts of a case, the interpretation favorable for the defendant shall be made”. The so-called statement that “defendants can be found guilty only if all the reasonable doubts are excluded” can be logically translated into the judgment that if a reasonable doubt is not excluded, the charged cannot be established. Since the judge can only make the judgment of innocence in the presence of reasonable doubt, the subjective cognition must reach the degree of “beyond a reasonable doubt” to confirm the fact that the defendant has commit a crime.

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4 The Relationship Between the Objective Standard and the Subjective Standard Although judges and legislative officials have made authentic interpretation on the standard “beyond a reasonable doubt”, the explanation of this concept still lead to different views among academic filed, Some scholars believe that “beyond a reasonable doubt” and “evidence being irrefutable and sufficient” are expressing the same proof standard respectively from two different aspects: the subjective and the objective. They hold the view that “beyond a reasonable doubt” neither has replaced the original proof standard “evidence being irrefutable and sufficient”, nor belongs to a lower-level proof standard than “evidence being irrefutable and sufficient”. Rather, some other scholars argue that “evidence being irrefutable and sufficient” means that the evidence is absolutely beyond reasonable doubt, but “beyond a reasonable doubt” does not mean that the evidence is irrefutable and sufficient. “Evidence being irrefutable and sufficient” not only requires the evidence to be internally “beyond a reasonable doubt”, but also requires externally mutual corroboration. In some cases, the proof standard “beyond a reasonable doubt” is lower than “the evidence being irrefutable and sufficient”. In addition, there is a more innovative view: “beyond a reasonable doubt” is a standard used to confirm the facts of a case in practice, and it is a new interpretation of the proof standard. Criminal Evidence Law setting up the objective and subjective elements of the proof standard at the same time will inevitably lead to a discussion about the relationship between the two elements. However, as statutory rules, whether it is Criminal Procedure Law or relevant judicial interpretation, it’s only one kind of declaratory statement provision. As to how the courts deal with the relationship between “evidence being irrefutable and sufficient” and “beyond a reasonable doubt”, and how the courts understand and use the proof standard to judge a criminal case, it needs to be observed from the justice made by the courts in the future. Additionally, the Supreme Court has the power to publish a special judicial interpretation, or even possible, by the way of enacting guiding cases, to make specific explanation on the proof standard. But the Supreme Court must find the logic of the judicial verdict, in order to determine the degree of the judges’ inner conviction when they confirm the criminal facts. In the following discussion, the author will make some reflective comments on the above two views. Base on this, the author will also put forward its own opinions of the integration of the subjective and objective standards.

4.1 Whether the Subjective Standard Is Equal to Objective Standard Both the legislators and Supreme Court judges regard “beyond a reasonable doubt” and “evidence being irrefutable and sufficient” as the same proof standard. Some

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scholars who are engaged in the legal research also believe that the introduction of subjective elements did not lower the original proof standard. If the above statement can be established, people can’t help coming up with a question: is it meaningful to introduce the subjective element of “beyond a reasonable doubt” in the proof standard? Do legislators and judicial organs merely interpret “evidence being irrefutable and sufficient” by the notion of “beyond a reasonable doubt”? In fact, people who hold the point of view, basically ignored the essence of the difference between “beyond a reasonable doubt” and “evidence being irrefutable and sufficient”, and also lack enough understanding in the fundamental flaws of original proof standard in China. In principle, “beyond a reasonable doubt” and “evidence being irrefutable and sufficient” are the standard in different levels, and it is impossible for them to be the same. First of all, the former belongs to the standard in the subjective level, aimed to help the judge to determine the degree of understanding of the case facts. However, the latter belongs to the standard in objective aspects, aimed to help the judge to set up an ideal goal. Secondly, “beyond a reasonable doubt” does not need to reach the level of absolute certainty. That is to say, the judges do not need to find all facts beyond all reasonable doubt. However, “evidence being irrefutable and sufficient” which is equal to “seek truth from facts” and “objective truth”, asks the judge to reach the highest degree for recovering the facts of a case. Thirdly, “beyond a reasonable doubt” asks judge to scan the inner conviction formed in the trial, based on experience, reason and conscience. All occasions where reasonable doubt exists should be explained to be beneficial to the defendant. This obviously means respecting the judge’s inner judgment, which is something inherent in the judicial independence. However, “evidence being irrefutable and sufficient” belongs to the external request that the law set up for the judge when they identify the facts of a case. This limits judge’s discretion, and establish a basis for external authority to review the facts’ identification. Obviously, “beyond a reasonable doubt” and “evidence being irrefutable and sufficient” are completely different and are in different levels. Since 2010, the standard of “beyond a reasonable doubt” has been gradually introduced to our country’s criminal evidence rules, and finally been established in the criminal procedure law. Basically, this is our legislative effort to overcome the defects of original proof standard. According to the previous analysis of this article, by introducing the standard “beyond a reasonable doubt”, legislators try to resolve the problem that the original proof standard is too idealistic, objective and lack of operability, so as to establish the inner conviction degree of judges. From the statement of provisions of the criminal procedure law in 2012, “beyond a reasonable doubt” has become a core of the standard “evidence being irrefutable and sufficient”, with functions of specific legislation for the latter. To a certain extent, if we want to set a label for the criminal procedure proof standard, this label is still “evidence being irrefutable and sufficient”. What is the standard that a judge is based on to determine whether the proof reach the standard “evidence being irrefutable and sufficient”? The degree of the judges’ inner conviction needs to be further reviewed. Only the degree reach the level of “beyond a reasonable doubt” can a judge make the judgment of the “evidence being irrefutable and sufficient”. Obviously, the introduction of the

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standard of “beyond a reasonable doubt” not only explains the standard of “evidence being irrefutable and sufficient”, but also to a certain extent changes the connotation of the proof standard in our country, from the original standard which pay attention to the external objective elements to the standard which emphasizes inner subjective elements, and the inner conviction degree of judges replacing the original abstract proof standard. This is undoubtedly the significant transformation of the criminal litigation proof standard system in our country.

4.2 Whether the Subjective Standard Is Lower Than the Objective Standard Some scholars believe that “beyond a reasonable doubt” is the necessary request of “evidence being irrefutable and sufficient”, but the latter has more and higher request. At least “beyond a reasonable doubt”, in some occasions, is lower than the standard of “evidence being irrefutable and sufficient”. The author thinks that this view ignores the essence of the difference between “beyond a reasonable doubt” and “evidence being irrefutable and sufficient”. In fact, these two kinds of proof standard are not in the same level. How is the judgment that the former is lower than the latter? Legislators or the Supreme Court judges will not accept the view that the introduction of “beyond a reasonable doubt” is to lower the proof standard. They may believe that the introduction of the subjective elements is to make up for drawback of the objective proof standard. If we regard “beyond a reasonable doubt” as the lower proof standard than “evidence being irrefutable and sufficient”, it means that the courts need to prove the facts of a case to the degree of 100% true before, and now the introduction of “beyond a reasonable doubt”, makes it possible for the court to be 95% true. However, when more and more wrongful convictions have been disclosed, the court is facing greater pressure in criminal trial, how might the criminal evidence law lower the proof standard in criminal procedure? A logical criminal policy should be improving the proof standard, strictly grasping the degree of the judicial proof. So it is impossible for the court to confirm crime facts more easily and smoothly. Both from the aspect of the political correctness or the moral right, the decision that the citizen is found of guilt by the court should be 100% true, and this can’t be less real. Actually, “beyond a reasonable doubt” and “evidence being irrefutable and sufficient” are two sets of proof standards, and there is no difference of position. The former measures the inner conviction degree of judges from the inner and subjective aspect, while the latter set the ideal target for judges when determining criminal facts from the external and objective aspect. The main purpose of the introduction of “beyond a reasonable doubt” is not to lower the proof standard when courts ascertain crime facts, and it is to overcome the defects and the insufficiency of original objective proof standard, in order to set up new standards for judges to avoid wrongful convictions.

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4.3 The Integration of the Subjective Standard and the Objective Standard By responding to the above views, the author has argued the following statements: “beyond a reasonable doubt” is neither equal to “evidence being irrefutable and sufficient” nor lower than it. By introducing “beyond a reasonable doubt” standard, legislators established a new way to determine the facts of case through the inner conviction degree of judges. It is possible for this subjective proof standard to make up for the deficiency of the proof standard “evidence being irrefutable and sufficient”. But if the proof standard “evidence being irrefutable and sufficient” appears too ideal and abstract, the proof standard “beyond a reasonable doubt” does not have very clear and specific meaning. Influenced by traditional epistemology, the legislation and the judiciary in China regard “inner conviction’ and “beyond a reasonable doubt” as too subjective and too arbitrary standards. They are also worried about the fact that establishing such standard makes the judge have large discretion when ascertaining the facts. In the judicial practice, when facing the cases where the integrated proof system cannot form and the evidences cannot be mutually corroborated, the prosecutor who appears in court still insists that “the defendant is convicted to be the criminal”, and the judge responsible for this case may think there is still “a reasonable doubt”. Even for those cases where the major dispute exists, the judge often makes the judgment that “although there exit some doubts, he or she convinces that the murderer is the defendant”. This clearly shows that establishing the subjective standard “beyond a reasonable doubt” in the criminal evidence law often results in a risk that judges confirm the facts of a case according to their own interests, prejudice and prognosis. How to prevent the abuse of the proof standard “beyond a reasonable doubt”? The experience of Anglo-American evidence law has shown that it doesn’t work to give a definition of “beyond a reasonable doubt” but it is can be defined for the meaning of “a reasonable doubt”. However, the definition of “a reasonable doubt” is not very successful in British and American case law. On the contrary, the development of Chinese criminal evidence law has shown that although the proof standard “evidence being irrefutable and sufficient” is the external, ideal goal, it is not impossible to define the standard “evidence being irrefutable and sufficient”. These standards, such as “mutual corroboration”, “form proof system through indirect evidences”, “the reinforcement of direct evidences”, “unique and exclusive conclusion”, occurred in Chinese criminal evidence law recent years are beneficial exploration for the proof standard “evidence being irrefutable and sufficient”. If we combine the standard “beyond a reasonable doubt” with “evidence being irrefutable and sufficient”, will we create a new way to make the proof standard more specific? Specifically speaking, compared with the “beyond a reasonable doubt”, “a reasonable doubt” is relatively clear, specific, and available. Compared with “evidence being irrefutable and sufficient”, “evidence being insufficient” also has specific measurement. If “beyond a reasonable doubt” is not equal to “evidence being irrefutable and

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sufficient”, do “the reasonable doubt” and “evidence being insufficient” have closer connections? In other words, in those occasions where they are regarded as “evidence being insufficient” the judge usually has the reasonable doubt on the case facts. In a bribery case, for example, multiple evidences cannot be mutual corroborated, and there are major contradictions between evidences, and between the statement of the same witness and the defendant. It is easy for a judge to establish the reasonable doubt to the crime facts. For these cases, we often regard it as “evidence being insufficient”. Thus, we can come the conclusion that “evidence cannot be mutual corroborated” is equal to “a reasonable doubt”. Obviously, it seems to be the abuse of practical and logical rules to draw the conclusion that the defendant has committed the crime just according to the standards of “mutual corroboration”, “form proof system through indirect evidences”, “the reinforcement of direct evidences”, “unique and exclusive conclusion”, which also easily leads to judicial mechanization when the judge confirm the crime facts. In fact, even if the proof of the case has reached the above standard, there still exist the questions whether the judge has formed inner conviction and whether there exists the reasonable doubt. On the contrary, if there exists the occasion where the evidences cannot be mutual corroborated, or the direct evidence is reinforced illegally, or the conclusion is not unique and exclusive, we can regard these as the signal of “the reasonable doubt”. So we can make the conclusion that the proof doesn’t reach the degree of “beyond a reasonable doubt”, which is equal to “the evidence being insufficient”. Interpreting the objective situation of “evidence being insufficient” as “the reasonable doubt” has been accepted by more and more Supreme Court’s judges. “Criminal trial reference” edited by the five criminal courts of Supreme Court has ever defined the meaning of “beyond a reasonable doubt” according to the objective situation. Specifically, after the comprehensive review of all the evidences, the court can confirm that the proof doesn’t reach the degree of “beyond a reasonable doubt” directly as long as “other possibilities cannot be excluded”, “the possibility of innocence is greater than that of guilt” and “key evidence cannot be corroborated”. In the case of Pengrong AN, for example, “the core evidences of the charged facts are the statement of the witness named of Guoxiu CHEN and confessions of the defendant. The content of these two evidences are changing all the time and there is also contradiction between the evidences, which cannot be mutual corroborated. The fact that other evidences point to is also contradictory, and the key evidence cannot be reinforced. Especially after Pengrong AN changed his statement, the whole evidences of the case cannot form integrated proof system, so the possibility of innocence is greater than that of guilt”. In another case of Guanghu SU, Supreme Court’s judge believes that, “according to the experience, Guanghu SU is likely to commit the crime, and the investigators combine the case with another case on the basis of the similarities in the location, means and character.” However, the proof standard of the death penalty cases is beyond a reasonable doubt, and in the occasion where there is no other evidence that can be used to prove the crime besides the confession of the defendant as the direct evidence and the direct evidence also cannot be reinforced by others, the evidences of the case cannot form integrated proof system and the unique

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conclusion that Guanghu SU has committed the crime cannot be established. So the Supreme Court makes the decision that the accused facts of the case of Guanghu SU cannot be established because of unclear facts and insufficient evidence. In conclusion, only in the aspect of finding the fact from negative view, can the “beyond a reasonable doubt” and “evidence being irrefutable and sufficient” be integrated. The so-called “finding the fact from negative view” means to avoid errors and prevent wrongful convictions to the maximum extent. And we can find the inspiration from the objective situation of the “insufficient evidence” to interpret the specific meaning of the “reasonable doubt”.

4.4 External Constraints of Subjective Standard In order to avoid the abuse of the “beyond a reasonable doubt” and the wrongful decision on confirming crime facts, besides the introduction of objective standard, the external system is also very necessary. These systems contain a very wide range of content, but generally speaking, the core is to ensure the independence and legitimacy of the judicial decision. When judging whether the subjective recognition of the crime facts could reach the standard of “beyond a reasonable doubt”, the judge can make a general judgment according to reason, experience and conscience. But it would be another problem whether the judge could make an innocent conviction when there really exists a reasonable doubt. According to the experience of our country’s criminal judicial practice, the judge in the trial had more or less reasonable doubt in almost all the wrongful cases proved later. These doubts mainly include: there exist some contradiction between the evidences, or the evidences can’t be mutually corroborated or form an integrated proof system or the possibilities that the crime didn’t happen or the defendant didn’t commit the crime can’t be excluded. But even if there is such a reasonable doubt of the case, it is usually not enough for the judge to change the wrongful decision. The reason is that the judge doesn’t have the real power to examine the case and make the final conclusion according to its own inner conviction. Various forms of judicial intervention inside or outside the court lead to the fact that the judge often makes a guilty verdict without satisfying the standard “beyond a reasonable doubt”. Sometimes because of external intervention the court would make the guilty judgment with lower criminal punishment for the defendant that should actually be pronounced innocent. There is no sense in discussing whether to establish the standard “beyond a reasonable doubt” or “evidence being irrefutable and sufficient” for a judge without an independent judicial authority. It is a logical deduction to firstly ensure the independence of the judge, in order to change the old proof standard of emphasizing external and objective request into emphasizing the inner conviction degree of the judge. When there is a reasonable doubt that can’t be eliminated, it is important for the judges’ independent authority to emphasize the independent judgment and the principle of “in dubio pro reo”.

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Besides maintaining the independence of the judge, the legitimacy of the court’s judicial judgment is also worth to pay high attention to, of which the legitimacy of the judicial procedure is the most important. In order to avoid the abuse of the judges’ inner conviction, it is necessary to comprehensively establish the principle of direct and verbal trial, so that the judge can get rid of the dependence on the document or transcript from the prosecutors completely and authentically form subjective recognition of the facts of a case from the debate and the cross-examination of the evidence in the court. At the same time, the right of defense of the defendant and their lawyers should be guaranteed, to make sure that they are able to examine every evidence and ask the witness for both sides questions in the court. In that case, the judge could have the opportunity to form inner recognition of the case facts through hearing the statement and questions asked by both sides. What’s more, the judge should give sufficient reasons for the confirmed case facts, and the superior court could conduct a comprehensive review of the confirmed case facts by the lower court through the review procedure, and the members of the collegial pane should fully and equally debate on whether the case facts are established, thereby making the conclusion in accordance with the decision of the majority. If these systems could be implemented successfully, the introduction of the standard “beyond a reasonable doubt” would have the good external system environment.

5 Conclusion “beyond a reasonable doubt” introduced into Chinese Criminal Evidence Law is an important legislation attempt to change the old proof request emphasizing external and objectivity into emphasizing the inner conviction degree of judges. This legislation attempt neither is the simple explanation of the standard “evidence being irrefutable and sufficient”, nor lower proof standard of criminal procedure in our country. It is supposed to reestablish proof standard for judges to confirm crime facts from perspective of judges’ subjective recognition. To some extent, even though Chinese criminal evidence law still keeps the formality proof request, its core has been replaced by “beyond a reasonable doubt”. It is not random to replace the objective proof standard of “evidence being irrefutable and sufficient” with the subjective proof standard of “beyond a reasonable doubt”. It has profound reasons and significance. Generally speaking, the original standard of “evidence being irrefutable and sufficient” emphasize the proof standard to the degree of “seeking truth from facts”, “objective reality”, which makes it become a kind of ideal, abstract goal and lose the significance of setting the standard of confirming crime facts. What’s more, it is not operational to use the external and objective proof requirement to examine the judges’ internal judgment, and easily leading to the confusion in the understanding of different judges. Instead, the introduction of “beyond a reasonable doubt” emphasizes weighing the judges’ subjective recognition from the inner conviction degree, and the judge can make the decision of innocence or guilt according to whether there exists “reasonable doubt”, which is

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clearly more scientific and reasonable than that old proof standard emphasizing the abstract goal of “seeking truth from facts”, “objective truth”. Although there might exist difficulty in defining the standard of “beyond a reasonable doubt”, it is not difficult to reach a consensus on the content and form of “reasonable doubt” as long as people resort to experience, reason and conscience. Of course, Chinese criminal evidence law has not given a specific explanation to the meaning of “beyond a reasonable doubt”. And in contrast, criminal evidence law has established more and more specific standards for “evidence being irrefutable and sufficient”, these statutory standards include “mutual corroborated evidence”, “an integrated proof system of indirect evidence”, “the reinforcement of direct evidence”, “the exclusive and unique conclusion” and so on. In order to make the “beyond a reasonable doubt” fixed in Chinese criminal evidence law and to make it get better implementation in practice, the subjective standard and objective standard should be integrated totally. It may be a useful attempt to combine the standard of “reasonable doubt” and the manifestation of “insufficient evidence”. To avoid the abuse of “beyond a reasonable doubt” by the judge, the law should not only set operational internal elements, but also construct effective external control mechanism, among which it is the main content of this external mechanism to ensure the independence and legitimacy of the judicial decision.

References Chen, Ruihua. 2010. Conviction with Certain Room: A Method of Judgment Worthy of Reflection. Legal Form 4. Deng, Hongyang. 2010. The Unspoken Rule of Disclosed by Zuohai Zhao and the Formalized Supervision. Legal Daily, May 13. Jiang, Bixin. 2013. Understanding and Application of the Supreme People’s Court’s Interpretation of the Criminal Procedure Law of the People’s Republic of China. China Legal Publishing House. Lang, Sheng. 2012. Amendment and Application of the Criminal Procedure Law of the People’s Republic of China, 123. Xinhua Press. Li, Huiqun. 2013. Futian ZHENG and Bing Fu’s Robbery—How to Deal with the Standard of ‘Evidence Is Solid and Sufficient’ in Cases of Joint Crime. Reference to Criminal Trial 86: 48–54. Law Press. Ronald. 2006. The Evidence Law: Articles, Questions and Cases, 818. Higher Education Express. Sun, Chunlong, et al. 2005. Perspective of a Misjudged Murder Case. Oriental Outlook, April 14. Zhang, Weiping. 2003. The Utopia of Establishing the Standard of Proof. Chinese Journal of Law 4. Zhang, Jun. 2010. Understanding and Application of the Criminal Evidence Rule, 254. Law Press. Zeng, Yuexing, and Daren Wang. 2003. Appeal of Justice, 195. Law Press.

Reflections on the Miscarriage of Justice in Criminal Cases: Revisit and Reconstruction of the “Corroborative” Mode of Proof in China Weimin Zuo and Xin Fu

1 Introduction On April 28, 2015, Shandong Higher People’s Court held a public hearing on the review of Shubin Nie’s case of murder and rape,1 to solicit the opinions from the claimant, his lawyer and representative of the original case handling court. Such innovative judicial action attracted extensive attention of the jurists, practitioners, the media and the public. Those debatable opinions from some authoritative academic 1 Shubin

Nie, a farmer in Hebei Province, was executed in 1995 for the rape and murder of a rural woman. Ten years later, however, his conviction now comes under scrutiny due to the arrival of a new suspect called Shujin Wang. Wang, who was arrested in 2005 on the counts of rape and murder, confessed he had raped and killed several women in Shijiazhuang and Guangping in Hebei Province. The police found his confession coincided with Nie’s in terms of time, place and feat, which indicated Nie might have been wrongfully executed. In March 2007, the Handan Intermediate People’s Court sentenced Wang to death. However, Wang appealed, saying that the court failed to incorporate the crime [rape] he committed in the corn lands of Shijiazhuang The appeal was suspended until 25 June 2013, as the Hebei High People’s Court started reviewing Wang’s case. Nie’s mother petitioned the case the Supreme People’s Court, and the latter assigned Shandong Higher People’s Court to review the case. This review has been extended for several times due to its complexity. See Fu (2015). This article is translated from the Chinese article written by Professor Weimin Zuo. The English version is translated by Professor Weimin Zuo and Dr. Xin Fu. Professor of Law and Supervisor for Ph.D. Candidates of Sichuan University Law School, Vice President of China Association of Criminal Procedure Law. His research fields mainly cover procedural law, evidence and judicial reform. Ph.D. in Law, Senior Lecturer of Northwest University of Political Science and Law, China. His research interests include criminal procedure, judicial reform, transparency and rule of law, and human rights. W. Zuo (B) Sichuan University Law School, Chengdu, China X. Fu Northwest University of Political Science and Law, Xi’an, China © China University of Political Science and Law Press 2021 B. Zhang et al. (eds.), Facts and Evidence, https://doi.org/10.1007/978-981-15-9639-1_17

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elites confused the public once again.2 Given the long intervals between the occurrence of crime and time of evidence collection in Nie’s case, limitation of the evidence available due to the backwardness of the notion and means of evidence collection and limited case information available to the public including the scholars, it is quite difficult for us to find out the fact of truth. However, Nie’s case in fact is not the key point of our discussion. What we are interested is the issue revealed in various miscarriages of justice in such cases as Shubin NIE’s Murder and Rape, Hugejiletu’s Murder,3 “Gaoping Zhang and Hui Zhang’s Murder,4 and Bin NIAN’s Murder5 : Why did such a “corroborative” or “mutually corroborative” mode of proof fail to curb occurrence of such miscarriage effectively? Is there something wrong with such mode of proof? This paper will analyze the challenges faced, discuss the defect of the “corroborative” mode of proof in the operational mechanism and propose its solution to address and transform such mode in China’s criminal justice system.

2 In

fact, the debate on Nie’s case has never stopped in the Chinese academic circle since the “real criminal suspect” was identified in 2005. Some scholars analyzed the evidence and information available from the media, argued that the occurrence of confessions of the new suspect Shujin Wang shook the original evidence structure and accordingly led to the reasonable doubt of wrongly conviction in Nie’s case and therefore the authority correct the wrong judgment according to the principle of “presumption of innocence”. See for example, Long (2013: 3–11). Some scholars also argued about the legal issues arising from Nie’s case, based on their academic interest. For example, see Sui (2014: 60–64), Zhang (2013: 48–49), Li (2009: 73–78), Zhao (2008: 58–63), Fu (2005: 53–55). Meanwhile, some people (most the media reporters) appealed the authority to correct this “grievance” case from the standpoint of a preset value. See for example, Hua (2013: 38–40, Lin (2012: 221–226), Xiao (2011: 88–89), Wu and Ju (2005: 21–23). 3 On 9 April 1996, 18-year-old Hugejiletu was working at a woollen mill in the regional capital Hohhot when they heard a woman crying for help from the toilet. But by the time they got there, she was dead. Later, the police named him as the culprit. Despite of a lack of evidence, the Hohhot Intermediate Peoples’ Court sentenced Hugejiletu to death and he was executed on 10 June 1996. However, the arrest of serial killer Zhihong Zhao in October 2005 in Hohhot cast doubt on the verdict. See Li (2014). 4 Gaoping Zhang and his nephew Hui Zhang were wrongly convicted in 2004 of the murder and rape of a woman in Hangzhou, China. The two men falsely confessed under police pressure and that was the basis of their conviction. Gaoping was sentenced to 15 years in prison, and Hui was sentenced to death with a two-year suspension. Hui and Gaoping were acquitted on 26 March 2013 after their retrial. In acquitting the pair the Court noted there was new evidence showing the possibility of another suspect and the evidence presented during their first trial was insufficient to support their conviction. The two men were in custody from 23 May 2003 to 26 March 2013. See Cui (2013). 5 Bin NIAN, 38 years old, was arrested in 2006 after two of his neighbors in Pingtan, Fujian Province, died from poisoning after having dinner. Police viewed him as a suspect because he was not on good terms with the victims’ family. In 2008, Nian was sentenced to death in Fuzhou Intermediate People’s Court for poisoning and murder. Two years later, the country’s top court refused to approve the death penalty. Nian was again sentenced to death in 2011 in the intermediate court after the case was reviewed. However, last August the provincial high court decided he was innocent in August 2013, citing a lack of evidence, and ordered his release. See Fullerton (2014), Cao (2015).

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2 Miscarriage of Justice in Criminal Cases Indicated that the “Corroborative” Mode of Proof Is Facing Challenges in China In China, the Criminal Procedure Law of the People’s Republic of China (hereinafter the “CPL”) provides the standard of conviction is that the fact is clear and the evidence is sufficient and reliable. And in judicial practice, a “corroborative” mode of proof has been developed along with the theoretical support and extraction of the academic circle, which possessed its legality in norms.6 The miscarriage of justice occurred in China makes us thinking the in-depth reasons in such a corroborative mode. In our view, the “corroborative” mode of proof matching with the investigation-oriented case handling and documented style has its own features, both the positive and negative ones, while the occurrence of such miscarriage is closely related with those features. William Twinning, a noted British jurist in evidence, pointed that judicial proof is a proof of rationalism in modernity, its direct target is the accuracy of the judgment, and its core value is pursuit of the truth; furthermore, judicial proof with such characteristics also has its deep philosophical basis: Experimental rationalism in the UK and pure rationalism in continental Europe.7 In fact, the “corroborative” mode of proof in China also has some similar colors of rationalism. In our opinion, however, while the criminal mode of proof in the Chinese context is associated with the rationalist tradition, it has been deeply affected by the traditional case handling mode, which contrasted with the practice in western countries. First, pursuit of the evidentiary objectivity in China means that factum probandum is mainly based on the information specified by the evidence itself instead of relying on the reasonable circumstantial inferences. Accordingly, these evidences must be “verified to be true”. The term “to be true” here should be understood as “to be absolutely true”, same as that of factum probanum, if according to the understanding of (possibly) misleading traditional standard of proof, which means there is no distinction between the evidence and reliability of factum probanum. Second, pursuit of the comprehensiveness of evidence emphasizes that factum probandum, especially with regard to the facts of constituent elements of a crime, requires objective evidence, and thus further demands extensiveness of the content and systematic nature of the evidence and maximum of evidence quantity. Third, pursuit of the consistency between evidences and “only conclusion” of facts of the case, means there is a need to prove a link of “corroborative triangulations” among the (subjective and objective) evidences proving the facts of crime. 6 For

the most influential and representative theoretical discussion, see Long (2004: 107–115). In practice, although the term “corroboration” rarely appeared in the law, rules, regulations or interpretations before 2004, it has already become the system of habitual practice. After 2004, the appearance of “corroboration” increased dramatically in China, for example it was mentioned 11 times in 8 articles of the Provisions on Several Problems of Handling Death Penalty Cases regarding Reviewing and Judging the Evidence jointly promulgated by the Supreme People’s Court (SPC) and the Supreme People’s Procuratorate in 2010. 7 Twining (2015: 23).

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Based on this, the evidence should “contain the same information” or at least “point to the same factum probandum”,8 and thus finally form the only conclusion of the case fact. The reason that the academics and practitioners agree with the “corroborative” mode of proof is that, to a great extent, it has satisfied with the requirement of discourses and practice. As far as the discourse is concerned, such mode is related to the longstanding philosophical theory in China, which argued that the world can be fully understandable and recognizable, and the human being can exert their subjective initiative and make use of various objective cognition methods to understand and transform the world. The absolutist litigation epistemology also believes that the events in the past could be recognized by the judiciary. As a result, it is possible for the judicial organs to avail national power and fully make play the role of subjective initiative in the field of criminal justice to collect and identify comprehensively the evidence. As for the practice level, the Chinese judiciary raises the standard “absolutely to be true” for the evidence and factum probandum so as to avoid judiciary staff, especially the judges, from random or improper determination of facts in the Chinese judicial system which emphases bureaucratic control of the administration of justice. This will prevent judicial arbitrariness to a maximum degree, and make the “corroborative” mode of proof useful which pays more attention to the comprehensiveness, coherence and coordination of evidence, because such practice has been identified as an effective tool to exclude those contradictory and conflicting evidences, form a set of well-functioning evidence determination system and reach a unique but correct conclusion, in order to avoid wrong convictions in the criminal trials. However, we are disappointed to find that, the practice of physiognomy just “looks good” at some point, if observing the miscarriages of justice mentioned above and the judicial practice of such mode. In the first place, the “corroborative” mode of proof failed to effectively curb the occurrence of miscarriage and even some wrong convictions were the result of such mode of proof in some sense, as far as the results are concerned. For example, in Hugejiletu [murder] case, the statement that the “criminal” himself made during the police interrogation—“pinched the victim’s throat, covered her mouth with violence and act indecently towards the victim”— and the statement of the victim wearing a piece high-collared long underwear (secret evidence) can corroborate with other objective evidences.9 Likewise, in Shubin Nie [Shujin Wang] case, both Nie and Wang’s statements can, to some extent, corroborate with other objective evidences. Thus the court of first instance in Nie’s case held that: “The Suburb Branch of Shijiazhuang Public Security Bureau…caught Shubin Nie and the latter confessed the process of crime committed (Raped and murder), and led the police to identify the crime and place of burying the victims’ clothes, which is same as the investigation record of crime scene…Nie’s confessions on the victim’s physical appearance and clothing is consistent with the

8 Zhou 9 See

and Miu (2015: 79–90). Wu (2014).

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statement of Hou XX, the victim’s husband and another witness Yu XX”.10 Similarly, the defence lawyer of Shujin Wang in the trial of second instance argued that: “the defendant’s confessions on the keys at the crime scene and clothes buried are consistent with the investigation record of crime scene”.11 This kind of indirect factual statement can also “mutually corroborate” with the objective evidence (investigation record of crime scene). But in fact, the evidence available “corroborated” completely with wrong determination of facts in Hugejiletu case, while the evidence on one same fact proved to “corroborate” two opposing conclusions in Shubin Nie [Shujin Wang] case. This may indicate that such mode of proof cannot achieve the goal of preventing wrong convictions in criminal cases as we expected. Moreover, judging from the operational perspective, the “corroborative” mode is often operated in a rough and coarse manner, and is not sufficiently corroborated in quite a few cases. On the whole, such mode lacks the support of a highly standardized, fully programmed, various parties participated, externally rationalized operating mechanism, but just a unilateral review and “internal auditing” of the judiciary as its usual operation style. From this point of view, whether determination of the real facts can be obtained through the corroboration depends on the judicial decision maker’s capacity and character to a large extent. In the era of lacking external rational mechanism with such judges as Solomon, however, the “corroborative” mode of proof is often flawed in operation. Specifically speaking, some of the corroboration in some criminal cases is quite rough, thereby reducing the finalized standard of evidentiary determination. Furthermore, the corroboration in some cases appeared to be “perfect”, but it might bring potential risks of wrong convictions because the police pursue consistency between the evidence collected and organization of case files, and thus omit a lot of “inconsistent” evidence or proof of the plot. For instance, the confessions of two defendants (Nie and Wang) in different criminal trials in Shubin Nie [Shujin Wang] case partially corroborated with the objective evidence, but the contradictions cannot be excluded either. In the light of Nie’s confessions, the victim carried a bunch of keys, the defendant should be able to notice this and mention that in his statement but no such information can be found in the statement. As for the Wang’s confession, what the public prosecutors cited regarding the features of the victim’s corpse, modus operandi and time of the crime and height of the victim were contradictory, so they cannot form a kind of “corroborative” relationship. Overall, we believe that such “corroborative” mode has its positive intentions and serves as an important tool of self-control and rationalization of powers in the Chinese context. Of course, it may also be an optimal or imperative choice in the monopolized power system. In most cases, the “corroborative” mode of proof can play a role in relatively accurate determination of facts, and prevent from fatal or major mistakes in facts finding. But we have to confess that, the “corroborative” mode of proof also exposed many problems in judicial practice, especially in those significant and complex cases where the objective evidence is weak and the prosecution relies heavily 10 The judgment of first instance of Shubin Nie case is available at http://www.infzm.com/content/ 91773 (accessed March 12, 2016). 11 Ma (2013).

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on the subjective evidence collected by the investigation organ, as the loopholes are obvious on the mechanisms of proof. Although the total number of such miscarriages of justice is only quite few in the criminal cases in China, they touched sensitive public sense of justice, testing the judge’s conscience and wisdom. The failure of the “corroborative” mode of proof in these cases is more likely to destabilize the entire legitimacy of the criminal justice system in China; therefore, we should pay more attention to such problem.

3 Operational Mechanism of the “Corroborative” Mode: “Trojan Horse” in the Criminal Proof Frequent occurrence of miscarriages of justice under the “corroborative” mode of proof in criminal cases cast doubts of the public on its effectiveness and legitimacy in practical operation. Through the observation, we can find that the failure of such mode is more likely to occur in judicial practice when it involves factual determination of consistency between the “oral confessions and other evidences”. Reliability of the order and logics of evidence collection under such mode is mainly based on the collection of subjective evidence like confessions and statements of the suspect/defendant.12 12 As far as the relationship between the confession and evidence is concerned, we can roughly divide the Chinese investigation modes into two types in practice: From confession to other evidence and from other evidence to confession. The former mode is characterized with the practice of looking for, collecting and even coining the evidences that can corroborated with the criminal suspect’s confessions. A typical example of this investigation mode is Gaoping Zhang and Hui Zhang [murder] case, in which the investigators conducted thorough work in evidence collection in order to prove truthfulness of the crime suspects’ confessions: “When it comes to the location of throwing the corpse, the crime suspects said that(we) threw the corpse in a dark and invisible place, but we can hear the sound of the water (nearby)”, and the victim’s corpse was found in a ditch of Liusi Road, Xihu District of Hangzhou City. The scene of a stream seems to have been enough to confirm the truthfulness of the suspects’ confessions, but the then investigator Haifen Nie argued that “it is not enough to just judge the fact from the appearance”, as the investigators should obtain objective and authoritative proof. Investigators must have gotten objective. Apart from investigation of the crime scene, she also interviewed the people around the scene. According to local people, there was usually no water in the ditch unless it was after two days of rain. Then questions came out: Was there any water in the ditch on the day of the crime? Did it rain before the crime? Nie went to the Hangzhou Meteorological Bureau to obtain the meteorological information several days before the crime, as “she wants to know what amount of rainfall can form that amount of the stream in the ditch, and then the criminal suspects can hear the sound of water at the time of throwing the corpse”. It is probably the information provided by the Meteorological Bureau that indicated the rain before the crime was committed, and thus accorded with local people’s statement that “it will have water in the ditch after two days of rain”, which further confirmed the suspects’ statements of hearing the sound of water when throwing the corpse. See Ifeng Net (2013). The latter mode reflects an investigation practice that the investigation organ collected confessions through extorted torture, allurement or induction according to other evidence available in a crime, until there is any corroboration between such confessions and other evidences. A typical example is Jianxin Zhao [Rape and Murder] case, in which the investigators first obtained the information that the wire was

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On the contrary, there is generally not much adverse effects on factual proof if the objective evidences collected in the light of case need can be mutually corroborated. From this point of view, such a corroborative mode is not entirely wrong. However, once the objective evidence is not sufficient, there is no consistency between the evidences to be corroborated, or when these objective evidences form a closed evidentiary system independent of the suspects’/defendants’ confessions, wrong convictions will be unavoidable if the investigation and prosecution organs still use the confessions to establish an unconsolidated proof system and such “corroborative” mode of proof often cannot form correct determination of facts. In our opinion, the roots of such failure mentioned above lie in the fatal problem of the foundation of operation mechanism of corroborative mode of proof, as there is no adequate support of due process requirement in evidence production mechanism, and according the feature of refinement, externalization and rationalization. In another word, the external and internal problems of “corroborative” mode of proof are the “Trojan horse” causing endless troubles in the rationality “Castle” of discourse. Generally speaking, although the “corroborative” mode of proof requires objectiveness and comprehensiveness of evidence from the perspective of external mechanism, the evidence production process is of the unilateral and closed nature, a “powerdriven production mechanism”, lacking of the procedural support, and what hides under the cover of the “objectiveness” is the absence of due process and even manmade “manufactured” evidence. As mentioned earlier, the “corroborative” mode of proof emphasizes “absolutely to be true” of the evidence and factum probandum at the discourse level and the identification process, trying to exclude the subjective factors in the process of facts finding. In practice, however, the evidence and materials as the object of “corroboration” are basically collected and consolidated by the investigation organ in a unilateral and closed manner, which means lack of the supervision from the outside, including defence lawyers. In accordance with the current legal provisions, collection of subjective evidence can be acquired by the investigators in a secret and closed environment rather than the objective evidence subject to the witnessing process. This cannot exclude the selectivity of recording investigators’ interrogating questions and content. Meanwhile, even if the collection of objective evidence and the extraction of witnesses is decided and controlled unilaterally by the procuratorate, exclusion of lawyers’ supervision cannot achieve the goal of supervising the authority, and legitimacy of witness and extracting evidence.13 cut in the crime site (indoor), and asked Zhao to provide details of cutting the wire, and then we can find such a record of confessions: “To prevent (the victim) Xing from waking up and opening the lamp, I first cut off the electric wire”; “I found a white bottle in glass in the southeast of the house, and found a brick to smash the bottle…”; “I took a piece of glass slag to return the room house and cut the wire”; “the glass slag was put at the southeast side of the house with other smashed pieces”; and “I collected and took away the smashed glass slags with a piece of plastic found near the chicken cottage in the courtyard after killing Xing.” See Legal Daily (2006). 13 Even when there is a need for witnesses in collecting and extracting the objective evidence, it is the investigation organ that decides and controls such a candidate unilaterally, excluding the lawyers’ participation, which fails to achieve the goal of supervising and witnessing the legality of evidence collection.

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For example, according to the record of criminal investigation in Nian Bin case, the interrogation process is as follows: Police 1: Bin NIAN: Police 1: Bin NIAN: Police 1: Bin NIAN: Police 1: Police 2: Bin NIAN: Police 1: Police 3: Bin NIAN: Police Bin NIAN: Police Bin NIAN: Police Bin NIAN: Police Bin NIAN: Police Police 2: Bin NIAN: Police Bin NIAN: Police

Whom did you plan to poison with that rat poison? I just put it in the water. Was the water usually for people to drink? No, the water is used for washing. For washing the pot? I don’t know. Then you threw the poison in it? Is it a scoop or a kind of pot? Apot with the handle. Is it the kind of pot that can be lifted? Is it the one out on the coal stove, right? Yes. Is the water kettle an iron one or other material? An Iron one. Is it an Al-iron or something else? Is it an aluminum one? Yes. What color is the handle of the pot? I don’t know. Ah? I didn’t notice it. How can you say you did not notice it? Does that kettle have a spout, right? It can be lifted. Is that water bottle an iron one, or an aluminum one? An aluminum one. An aluminum one

In this case, it is obvious that the interrogation process did not only reflect the strong sense of inducing or pointing to the confessions that the police wanted, but also the finalized record of the interrogation was simplified into the following: “I walk to Yunxia DING (victim)’s cooking pot, there was a coal stove facing the right side of the cooking table, there was an aluminum pot on the stove with some water inside. I poured a bottle of mineral water mixed with the poison into the pot.”14 Specifically speaking, the procuratorate as the agent of the State occupies an absolute dominant position in the evidence-gathering process. By contrast, the accused has been the “object of the prosecution in the criminal proceeding”, and were more often seen as source of the evidence rather than the litigation subject. Such deformed procedural structure may bring negative effects in two aspects regarding legitimacy of evidence collection: On the one hand, there is a lack of due process to support the process of evidence collection. The CPL (2012) provides that the lawyer can get

14 Quoted

from Ma (2014).

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involved in a criminal case as defender after the police’s “first interrogation”,15 but just as what the findings of empirical researched showed, “the high confession rate in criminal investigation especially after the first interrogation is a commonplace phenomenon in China; moreover, there is no change regarding such trend in near twenty years.”16 Therefore, such subjective evidence as the confessions of suspects (especially the first statement) was extorted in most cases without the presence of defence lawyers during the interrogation. In addition, in the term of norms, although Article 33 of the CPL (2012) revised the lawyers’ rights at the investigation stage to “defence” from the term “legal assistance” as provided in the Criminal Procedure of the People’s Republic of China (1996) [hereinafter the “CPL” (1996)], there is no substantive difference between the two versions if observing specific provision of Article 36 of the CPL (2012): During the period of criminal investigation, a defense lawyer may provide legal assistance for a criminal suspect, file petitions and accusations on behalf of a criminal suspect, apply for modifying a compulsory measure, learn the charges against a criminal suspect and relevant case information from the criminal investigation authority, and offer opinions.

Even in present judicial practice, if there is lawyers’ involvement at the evidencegathering stage, their role is quite limited due to various restrictions, letting alone the fact of difficulties of such participation at the investigation stage in China. On the other hand, there are also flaws regarding the legitimacy of the consolidated form of evidence collected. In practice, after completing evidence collection at the investigation stage, the evidence investigators collected and the findings of fact shall be consolidated in the form of investigative case folders, which will be generally admitted by the court in the trial procedure unless there are some serious contradictions in logics and the facts in the case. Such case folder-centered proceedings involve many legitimate issues. For example, there are only a few pages of record of criminal interrogation produced by the investigators after the interrogation lasted for several hours, and the records of various interrogations are highly consistent of consensus, which means there is a possibility of “false content” between the record and real situation of the interrogation in practice. This will also lead to a situation that the defence can do nothing in the trial against such seamless records, apart from being unable to cross-examine prosecution witnesses in court,17 and consequently a lot of questionable evidences are used as the basis for determination of the case. In short, such unilateral and documentary evidence-gathering mechanism has significantly deviated from the fundamental principle of equal arms, and makes the whole proceeding imbalanced due to lack of adversarial elements in reality. One major problem arising from such a mode of proof is that the investigation organ pays excessive attention to the evidence construction and ignores the legitimacy and legality of evidence production process (procedure of evidence extraction). 15 Article

33 of the CPL (2012). (2007: 38–64). 17 On the low of witness court appearance, see, for example, Ye (2014: 111–115), He (2013: 186– 191). 16 Zuo

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Accordingly, in order to realize the goal of convictions, the investigation and prosecution organs will “produce” some subjective evidences18 whose authenticity deserves serious challenges but can “corroborate” with other objective evidences,19 based on the evidence insufficient but available. As a result, even if the case is able to achieve “mutual corroboration” between evidences and reach the “only conclusion” of factum probandum finally, such manmade “corroboration” and “the only conclusion” are of fatal defects. Moreover, even in the ordinary criminal cases, it is the investigators that collect and consolidate the evidence with strong subjective sense (confessions and statements); and they are very likely to “produce” rather than “collect” the evidence needed for the conviction in the context of lacking external supervision and in a closed environment. It should be noted that, the guiding philosophy of politics and law20 and the judicial system21 also contribute to the highly biased nature of the evidence in the “corroborative” mode of proof in China, as the criminal procedure is just like an assembly line that is prone to producing a series of chain of evidence of guilt consistently. In this context, the basic pattern of “corroboration” may only be the “mutual verification” and self-reinforcing of those evidences of guilt. In judicial practice, such matters as what evidence is collected prior to the trial, and any evidence submitted in the trial are basically determined by the investigation and prosecution organs, while the judges often tend to admit all the prosecution evidences completely or generally. In other words, even if the “corroborative” mode of proof imposes a high demand on the standard of proof, but the whole evidence system is inherently biased towards the prosecution’s evidence of guilt, in which its subjectivity cannot be removed in the criminal trial. Another major problem with this mode is that, due to deep influence of the investigation-centered and writing mode, there is no effective procedural mechanism in the trial when testing the corroboration of evidence. In fact, the corroboration in the trial becomes a unilateral activity of judges who often conduct this through reading and extracting prosecution files, discussing the case and making judgments, letting alone if they have had an adequate thinking and reasoning on the evidence. This is reflected in two ways: One is the exclusiveness of the subject for corroboration of evidence. In the “corroborative” process, the prosecution and the defence have no or limited opportunity to explain, examine and cross-examine the evidences in the criminal trial, which means to a large extent judge’s self-determination of the corroboration of evidence based on the case files. Second, the corroboration method and process are not fully developed, nor in a legitimate manner. The trial prima facie 18 For example, confessions of the defendants Shubin Nie and Shujin Wang and statement of witness Yu XX, victim’s sister-in-law in Shubin Nie [Shujin Wang] case. 19 These are usually objective evidences, mostly material evidence, such as the victim’s corpse, colored shirt surrounding the victim’s neck and keys left on the crime scene in Shubin Nie [Shujin Wang] case. 20 Here refers that the power of criminal investigation and evidence collection is exercised by specialized State bodies. 21 The Public Security Bureaus, procuratorates and courts should cooperate with each other in handling criminal cases.

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can be seen as the process of corroboration of evidence, for example, the prosecution presents the evidence to prove their claims, and the defence refutes the prosecution, but the proceeding is in fact just a formality, as it is difficult for us to see a thorough, critical and detailed corroborative process in judicial practice. Perhaps the authors’ argument is somewhat arbitrary, but it makes sense regarding the judge’s relationality on the corroborative mode of proof in China. Specifically speaking, the problem is first reflected in defence activities: It is difficult for the defence to break through the evidentiary system in the trial which is characterized with the unilateral and guilt-biased evidence constructed by the investigation and prosecution organs in advance in the context of low degree of lawyers’ participation in evidence collection. On the other hand, the defendant’s self-justification or defence cannot effectively contest the prosecution due to lack of lawyers’ participation in a large number of criminal cases without a lawyer. Even if lawyers are involved in the criminal cases, their activities concentrate more on the debate, but less on the production and cross-examination of evidence during the court investigation stage is obviously insufficient, and the effect of the defence mainly lies in the sentencing aspect.22 Furthermore, the problem also arises in the prosecution’s production of evidence. In the light of the CPL 1979, the prosecutors were not responsible for production of evidence in the trial. After the reforms of the CPL in 1996 and 2012, the prosecution began to take the responsibility of burden of proof, but such production of evidence is still limited in the courtroom. In judicial practice, for the sake of efficiency, the prosecutors use a simple method of presenting the evidences. For example, they may present the evidences in groups to prove the same fact in accordance with the statements, testimony, documentary evidence and expert opinions in the trial and will not explain or present specific content of each evidence in detail. Finally, as far as the judge is concerned, it lacks a public and external procedural supporting mechanism in the criminal cases. In other words, the analysis and discussion of the evidence and facts is conducted in a closed environment, and there are more cases of admitting all the prosecution evidences in judicial practice. Although the free evaluation process reflected showed some progress in the judgment, the reasoning on evidentiary and factual analysis by the judges is still not explicit and comprehensive enough, and they even “selectively omit” the reasons for not admitting the evidence or opinion of the defence. It is worth pointing out that, the “corroborative” mode requires the evidence of proving the same facts to “embedding same or consistent information” if observing from the perspective of internal structures. Every fact of the case does not only need the support of both objective and subjective evidences, but also we need objective and subjective evidence of “mutual corroboration” of the two types of evidences, which can confirm the direction of a guilty verdict. But as we already mentioned above, this requirement often induces the investigation and prosecution organs to “manufacture” evidence in violation of due process under the pressure of crime control. Even without considering the legality of such (apparently illegal) practice, it is quite difficult to 22 Zuo

and Ma (2012: 60–73).

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realize the “corroboration” of evidences in the criminal cases, as the prosecution’s evidence supporting the guilty charge is not fully tested and contested in the trial. In Gaoping Zhang and Hui Zhang case, the conclusion of DNA’s appraisal before the trial of first instance pointed out that “the mixed DNA bands in the end of 8 nails of Wang XX consisted of those of both the deceased and another male, excluding the possibility of the mixed DNA bands of the deceased and the suspect Hui ZHANG or Gaoping ZHANG.”23 Regretfully, neither the prosecution nor the judges gave a reasonable explanation on such key evidence of acquittal; instead, the judges in the judgements of first and second instances held that the evidences could be “corroborated” in that case.24 Likewise, in Shubin Nie [Shujin Wang] case, the two defendants’ confessions and physical evidence on the crime scene seemed to be “mutually corroborative”, if applying the “corroborative” mode, but such “corroboration” cannot justify contradictions between the confessions and the material evidence. In fact, Ronald Allen, an American jurist of evidence, has pointed out that the nature of modern judicial proof can best explain the process of deduction. In his view, the proof is a kind of interpretation rather than a kind of cognition.25 Thus, “a reasonable (and unrefuted) story” is required to be constructed in the criminal proceedings in order to realize (guilty) determination of facts. Such “corroborative” mode of proof will fail to function in such complicated and important criminal cases as Shubin Nie [Shujin Wang] case. To sum up, the “corroborative” mode of proof is “a rootless tree” without the support external procedural support as far as the external mechanism and the internal structure are concerned. Such seemingly refined corroboration in fact is a kind of haste, declaratory and functional proving process by the judge on the basis of unilaterally constructed guilty evidences provided by the investigation and prosecution organs. Therefore, no matter how the “corroborative” mode emphasizes on the truth of evidence and facts, it cannot make up for such fatal flaws on the legitimacy of evidence gathering process in the criminal trial.

4 Solutions: Programmed Mode of Proof Given the problems of “corroborative” mode existed in some important and complicated criminal cases, it is important to transform the mode of criminal proof in China on the basis of continuing to recognize the necessity of “corroboration” mode and maintaining its advantages,26 as this is an essential (perhaps more fundamental) measure to prevent wrong convictions and consolidate fairness of the criminal justice. 23 Fu

(2013).

24 Ibid. 25 Allen

(2014: 95).

26 In fact, certain similar factors in the “corroborative” mode are not excluded even in some developed

countries. Professor Mirjan Damaska has systematically discussed the advantages of the holistic mode of proof many years ago. For detailed discussion, see Damaska (2003: 46–49).

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For example, China should build a new mode of proof that can integrate the procedural rules and the proof mechanism, which can provide adequate and rational procedural support and play the function of free judgment of judicial staff on the objective evidence.27 In essence, firstly, China should break the national monopoly, unilateral and secret nature during the process of evidence collection, and allow the participation of various subjects in the proceedings, and constitute a mechanism of other party’s controlling the legitimacy of evidence collection. This means to allow the defence to play an important role in evidence collection, particularly in the process of collecting statements of witnesses. Secondly, the evidentiary “corroboration” process should be legitimate, in due process and in substance, which can fully reflect Bentham’s statement of “the orality, cross-examination and openness of adversarial procedure”, and the court should allow the defence to make challenges in cross-examining the prosecution evidence and safeguard appearance of the witnesses, appraisers and investigators in the trial.28 Thirdly, the basic information under the corroboration mode of proof should reflect its diversity in nature, the court should not only review the authenticity of prosecution evidence, but also the defence evidence and its opinion on the examination of prosecution evidence, in order to change the past practice of judicial judgment based on the evidence unilaterally collected and provided by the prosecution. Fourthly, the judges should make fully show of the facts finding and reasoning process in the judgment, which should reflect the contesting process of the two parties in the trial, especially their opinions on the defence evidence, and should give reasons no matter if they will admit such evidence.29 It is particularly worthy of noting that, both the Fourth Plenary Session of the 18th Communist Party of China Central Committee and the Supreme People’s Court required to promote the procedural reform centered on the trial issues.30 Some Chinese scholars argued that the trial-centered doctrine that can meet the situation

27 Chen

(2012: 147–163). (2015: 73). 29 Specifically speaking, first, China should fully realize legitimacy of the evidence collecting process, in order to construct a balanced (powers and rights) mechanism of evidence production, move the adversary procedure to the pre-trial evidence collection stage so as to allow the defence to express opinions on the evidence collected by the investigation organ. In fact, one of the important trends on reforming the criminal procedure in continental Europe is that the defence can extensively get involved in the criminal investigation procedure. For detailed discussion, see Lin (2012: 409–431). Moreover, China should secure the information integrity of case evidence in the whole process so as to avoid the investigation and prosecution organs’ random and unilateral filtering of the evidence during the transfer of case files. The reason that the current “corroborative” mode of proof failed to prevent miscarriage of justice in China lies in the prosecution’s improper filtering of case files. Furthermore, China should update the “corroborative” mode of proof that the judges, prosecutors and defenders can substantively play their roles in criminal cases. In addition, it should realize “free evaluation” in the process of fact finding and allow the judges to identify the facts according to the deduction and certainty in their mind, thereby changing the rigid corroboration mode of proof and reducing excessively higher standard on the evidence. 30 People’s Daily (2014), Xu (2014). 28 Twining

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of China is a kind of “technical trial-centered” approach.31 This requires China to change its past practice of case handling in paper; that is, all the evidences shall be produced and cross-examined in the courtroom before they are admitted by the judges as the basis of convictions. As a matter of fact, the extraterritorial judicial practice has shown that, although such procedural mechanism may lead to miscarriages of justice, it is more likely to expose those problems on the defective evidence covered by the “corroborative” mode of proof, which can guarantee accuracy in determination of facts to a certain extent. The purpose of realizing the legitimacy of evidence collection and introducing an adversarial mechanism at the investigation stage is to enhance the objectivity of investigation files in content and the openness of specific process of evidentiary formation. Concretely, there are two specific dimensions of measures in this regard: One is passive confrontation—mechanism of procedural restriction on evidence collection, for example, providing the accused right to silence and legal assistance and allowing lawyer’s presence during police interrogation. Another is active confrontation—to provide the positive and effective right to collect evidence, and to break the state’s unilateral and monopolized evidence collection. Despite of legal provisions on lawyers’ right to defence, they cannot contest with the state power in judicial practice.32 Therefore, in order to realize the real contest between the prosecution and the defence, China needs provide more defence rights (except those compulsory measures restricting citizens’ personal and property rights), for instance, lawyers should have more compulsory rights in evidence collection apart from the right to participation and supervision in the formation of case files of the accused and the defence in order to remove the closed and secret nature of investigation files in the past practice.33 The basic requirement of constructing a legitimate procedural support mechanism for the corroborative mode of proof and realizing the refinement and rationalization in the corroboration process is that, the judges’ judgment of the evidence and facts finding should conducted on the basis of full contest, argument and debate between 31 Long

(2015: 846–860).

32 For example, Article 41 of the CPL (2012): “A defense lawyer may gather information regarding

a case from a witness or any other relevant entity or individual with the consent thereof, and may also apply to the people’s procuratorate or people’s court for gathering or submission of evidence or apply to the people’s court for notifying a witness to testify before court. A defense lawyer may gather information regarding a case from a victim or his or her close relatives or a witness provided by a victim with the consent thereof and permission of the people’s procuratorate or people’s court.” Article 35 of the Lawyers Law of the People’s Republic of China: “An entrusted lawyer may, in line with the details of a case, request the people’s procuratorate and the people’s court to collect and search for evidence, or request the people’s court to inform witnesses of appearing in court as witnesses. If the lawyer takes evidence by himself or herself, he or she may investigate the circumstances related to the legal affairs he or she undertakes from related units or individuals by presenting the certificate for law practice and the certificate issued by the law firm.” From these provisions we can find that there is prerequisite for defence lawyers to collect evidence or conduct investigation: Consent or approval of the units concerned, the victims and their family members or relatives, or the court or procuratorate, which in fact put those provisions into a formality. 33 Guo (2010: 137–143).

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the prosecution and the defence, and the court should make use a variety of techniques to improve participation of the prosecution and the defense in the process of fact finding, especially the defence side. Therefore, China needs to conduct the substantive reforms focusing on the trial in the following aspects: First, the court should pay attention to the review and judgment of individual evidence in the trial. What the “corroboration” mode of proof emphasizes is the interrelationship between the evidence and factum probandum and between evidences in the holistic context, ignoring to review individual evidence to a certain extent. In judicial practice, the false confessions may also corroborate with false evidence, and sometimes perfectly. Given the impossibility of removing such “corroborative” mode of proof in criminal justice within a short period, it is extremely important for the judges to conduct comprehensive and thorough review and judgment of the evidence. This requires the judges to review carefully objectivity and authenticity of the evidences based on the information available and logics of the case on the precondition of maintaining certain doubts on the prosecution evidences. Second, the judge should make a clear distinction between the prosecution evidence and the defense evidence, they should set the defense evidence as the source of information and facts finding. In current practice, what the judge relies to a large extent is the evidence provided by the prosecution which is obvious biased as such evidence often indicates the guilt of the defendant. This may require safeguard and encourage the defence to exercise their right in evidence production, contributing to prevent from monopoly of the prosecution in evidence collection and thus procedural fairness and facts finding in criminal cases. Third, China should improve the methods of evidence production and crossexamination during the court investigation and enhance effectiveness of the trial. In order to protect full and substantive participation of the defence and effective cross-examination of evidence in the trial, it should make clear limits on currently popular practice of presenting prosecution evidence in groups or batches, especially the practice in a selective or summarized manner, which is particularly important in those disputed cases. On the other hand, the court should respect and secure the defence right to cross-examination and should not forbid the defence to express any opinions on the evidence or end the court investigation or debate stage randomly. Fourth, China should improve relevant rules of evidence and cut links between the investigation and the interrogation moderately in criminal cases. In a sense, the conclusion on the evidentiary corroboration that the judge will draw largely relies on reading case files before or after the trial. This means that there is a possibility for the judge to have the first impression being the strongest—the evidentiary rules fail to play its due role in judicial practice. Accordingly, it is essential for China to improve relevant evidentiary rules. For example, application of improved exclusionary rules will help the judges to effectively review source of the evidence and exclude illegal evidence before the trial, which can prevent its improper influence on judges in free evaluation and corroboration process. Moreover, it should actively promote the practice of witnesses’ and police’ testifying in court and try its best to put into effect the verbal principle and hearsay rules. Some literatures available showed that failure

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of appearance of key witnesses in court is an important reason for the miscarriage of justice in China.34 Last but not the least, we did not argue to completely deny the values of the “corroborative” mode of proof in China although it has various flaws in structure or mechanism. On the contrary, we should not neglect the positive aspect of such mode. What we argued is that China should establish the mode of proof that can secure a due process of full participation of and active contest between the prosecution and the defence, and the judgment is made based on a comprehensive review and evaluation process of the prosecution and defence evidences regarding the authenticity.35

5 Conclusion In the previous discussions, most Chinese researchers argued the positive side of the “corroborative” mode of proof as it emphasizes the doctrine that “one single evidence cannot determine guilt of the defendant in a criminal case”, which is in line with the basic human cognitive and logic rules and can reduce the miscarriages of justice to a certain extent.36 Moreover, most practitioners believed emphasis of mutual corroboration between various evidences would help judges to make a correct judgment that can accept the test of history.37 However, our deconstructive analysis shows that such “corroborative” mode of proof is actually a mechanism with the monopolized power adapted to the judicial system (litigation system) and investigation-centered mode, lacking of support of proper procedure in a non-refined manner. Therefore, it reflected its fatal defects in major and complicated criminal cases, conflicting with the target of current reform of procedural system. In a sense, the argument of having a new programmed mode is just a “by-product on knowledge” after the in-depth analysis of such “corroborative” mode of proof. The advantage of such mode covers not only the practical rationality, but also reflection of due process, and even saving justice resources, whose essence is to break the monopoly of power in the procedure system and to introduce effective participation of the parties. Of course, it does not mean that we believe that this is the “miraculous medicine” of curing the defects of such “corroborative” mode of proof, nor that a 34 He

(2014).

35 Several points should be stressed in the application of the “corroborative” mode of proof in China:

First, it should admit effectiveness of such “corroborative” mode in the construction of basic facts of the case. Second, ideally speaking, such “corroborative” mode of proof shall exclude an evidence formation mechanism based on the suspect/defendant’s statements or confessions and establish a participatory and adversarial mode in evidence formation, such as strengthening the systems of lawyer’s presence, videotaping or recording during police interrogation. Third, direct verbal principle and free evaluation in the trial-centered reform should become an important method of addressing and modifying the defects of “corroborative” mode of proof in China. Fourth, it should distinguish the applicable scope between the corroboration and free evaluation in practice. 36 Further discussions, see Long (2004: 107–115), Li (2005: 20–32). 37 Niu (2010: 4–7).

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new concept or mode can solve all the problems. After all, effective solution to the problems on the “corroborative” mode of proof is a complicated project, and any theory of innovation requires the test in judicial practice, and reasonable practical elements need to be woven into and activated in the theory of such mode. The purpose of discussion on the “corroborative” mode of proof in this paper aims to make a theoretical exploration, hoping to attract the attention, alert and reflections of the theoretical and practical circles in China. What we can do is to further study the “corroborative” mode of proof in China in order to modify and improve its effectiveness from the perspective of preventing or at least reducing the number of miscarriages of justice in the future.

References Allen, Ronald. 2014. Professor Allen on Evidence, trans. Baosheng Zhang and Jinxi Wang. Beijing: Renmin University of China Press. Cao, Yin. 2015. Nian Faces Delay Over Cash Verdict. China Daily, February 17. http://www.chi nadaily.com.cn/china/2015-02/17/content_19611701.htm. Accessed 21 Mar 2016. Chen, Ruihua. 2012. New Doctrine of Legal Evidence with the Focus of Restricting the Capacity of Proof. Chinese Journal of Law (Faxue Yanjiu) 6: 147–163. Cui, Jia. 2013. Zhejiang Plans to Probe Men’s Wrongful Conviction. China Daily, April 10. http:// www.chinadaily.com.cn/china/2013-04/10/content_16388176.htm. Accessed 12 Mar 2016. Damaska, Mirjan R. 2003. Evidence Law Adrift, trans. Li Xuejun. Beijing: China University of Political Science and Law Press. Fu, Dalin. 2005. Construction of the Action Mechanism of Death Penalty and Wrong Convictions— Discussion on the ‘Presumption’ in Shubin NIE Case. Human Rights [Renquan] 3: 53–55. Fu, Xiangjun. 2015. The Shubin Nie Case Review: Making Justice Public. China.org.cn, March 25. http://www.china.org.cn/opinion/2015-03/25/content_35152051.htm. Accessed 12 Mar 2016. Fu, Xiaoying. 2013. Miscarriage of the Decade: The Story of Hui Zhang and Gaoping Zhang Case. Sanlian Life Weekly [Sanlian Shenghuo Zhoukan], April 8. Fullerton, Jamie. 2014. Rare Acquittal for China Murder Convict on Death Row Raises Judicial Reform Hopes. Independent, August 24. http://www.independent.co.uk/news/world/asia/rareacquittal-for-china-murder-convict-on-death-row-raises-judicial-reform-hopes-9687773.html. Accessed 21 Mar 2016. Guo, Song. 2010. Perspective: The ‘Investigation of Case Files as the Center’. Legal Forum [Faxue Luntan] 4: 137–143. He, Jiahong. 2014. How Does Grievance Is Produced. Caixin Net [Caixin Wang], December 18. http://opinion.caixin.com/2014-12-18/100764618_all. Accessed 12 Mar 2016. He, Li. 2013. Suggestions on Dealing with the Failure of Witness Presenting at Court System in Perspective of Criminal Procedure Amendment. Hebei Law Science [Hebei Faxue] 6: 186–191. Hua, Xuan. 2013. On the Fog of the Evidence in Shubin Nie Case. China Newsweek [Zhongguo Xinwen Zhoukan] 16: 38–40. Ifeng Net. 2013. Reference: Investigator Haifen Nie Talks About Mr. Zhang and His Nephew Confessed the Fact of Crime. Ifeng Net [Fenghuang Wang], March 29. http://News.ifeng.com/mai nland/special/zhangshiyuanan/content-4/detail_2013_03/29/23683056_0.shtml. Accessed 12 Mar 2016. Legal Daily. 2006. A Farmer Was Misjudged as Murderer and Imprisoned for Eight Years. Legal Daily [Fazhi Ribao], November 7. http://news.sina.com.cn/c/2006-11-07/020110428768s.shtml. Accessed 15 Mar 2016.

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Li, Jianming. 2005. The Rationality and the Reasonable Limit of Criminal Confirmation Evidence. Chinese Journal of Law [Faxue Yanjiu] 6: 20–32. Li, Qian. 2014. Executed Teenager’s Case to Be Reopened. Shanghai Daily [Shanghai Ribao], October 31. http://www.shanghaidaily.com/national/Executed-teenagers-case-to-be-reopened/ shdaily.shtml. Accessed 22 Mar 2016. Li, Yang. 2009. The Game of Rights and Power—Discussion of the Lack and Correction of Criminal Procedural Right in China Based on Shubin Nie Case. Criminal Science [Xingshifa Zazhi] 1: 73–78. Lin, Huiya. 2012. Justice and Order of the Law-Reflection of the Shubin Nie Case. Folk Art and Literature [Qunwen Tiandi] 5: 221–226. Lin, Yu-Hsiung. 2012. Criminal Procedure and International Human Rights. Taipei: Angle Publishing Co. Ltd (Taiwan). Long, Zongzhi. 2004. Confirmation and Free Evaluation: Proving Mode of Criminal Litigation in China. Chinese Journal of Law [Faxue Yanjiu] 6: 107–115. Long, Zongzhi. 2013. Legal Analysis of the Shubin Nie Case. Law Science [Faxue] 8: 3–11. Long, Zongzhi. 2015. The Reform Toward ‘Proceedings Centered on Trial’ and Its Limits. Peking University Law Journal [Zhongwai Faxue] 4: 846–860. Ma, Jing. 2013. The Parties Tried Their Best to Prove the Crime Occurred in Shijiazhuang Was Not Committed by Wang in the Third Session of Trials. Legal Daily [Fazhi Ribao], July 11. http://www.legaldaily.com.cn/News-Center/content/2013-07/11/content_4646803.htm? node:3390. Accessed 12 Mar 2016. Ma, Jinghua. 2014. Case of Wrong Conviction or Grievance?—Comments and Analysis of the Opinion of the Defence Lawyer on Cross-examination of Evidence in Bin NIAN Case, August 27. http://scxsls.com/a/20140827/103874.html. Accessed 22 Mar 2016. Niu, Keqian. 2010. Mutual Corroborative Rules of Evidence and Determination of the Details of Facts in Cases involving Death Penalty. People’s Judicature [Renmin Sifa] 14: 4–7. People’s Daily. 2014. Decisions of the Central Committee of the Communist Party of China on Several Major Issues of Promoting the Rule of Law. People’s Daily [Renmin Ribao], October 29. http://paper.people.com.cn/rmrb/html/2014-10/29/nw.D110000renmrb_2 0141029_2-01.html. Accessed 12 Mar 2016. Sui, Liangtian. 2014. The Subject System of Chinese Criminal Retrial Procedure—Take Shubin Nie and Shujin Wang Case for Example. Journal of China University of Petroleum (Edition of Social Sciences) [Zhongguo Shiyou Daxue Xuebao (Zhexue Shehuiban)] 1: 60–64. Twining, William. 2015. Theories of Evidence: Bentham and Wigmore, trans. Hongqi Wu and Guodong Du. Beijing: Renmin University of China Press. Wu, Hailang. 2014. The Hugejiletu Case: Two Contradictory Legal Instruments. Legal Evening News [Fazhi Wanbao], November 28. http://m.sohu.com/n/406475552/. Accessed 23 Mar 2016. Wu, Huai, and Yang Ju. 2005. Execution of the Innocent, the ‘Real Murderer’ Helped You to Prove Your Grievance After Ten Years. Legal System and Society [Fazhi yu Shehui] 6: 21–23. Xiao, Han. 2011. Why so Difficult in Correcting Judgment of Shubin Nie Case. Caixin Century [Xinshiji Zhoukan] 37: 88–89. Xu, Jun. 2014. The Outlines of People’s Court of Fourth Five-Year Reform (2014–2018). People’s Daily [Renmin Ribao], July 10. http://he.people.com.cn/n/2014/0710/c197043-21624195.html. Accessed 12 Mar 2016. Ye, Yang. 2014. Study of Problems on the Witness Court Appearance for Testifying After Implementation of the New Criminal Procedure Law. Social Scientist [Shehui Kexuejia] 9: 111–115. Zhang, Qianfan. 2013. From Shujin Wang to Shubin Nie: The Misuse of ‘Presumed Innocent’ Until Proven Guilty. Democracy & Science [Minzhu yu Kexue] 5: 48–49. Zhao, Xuguang. 2008. The Necessity of Timely and Informed Decisions in Criminal Cases—The Proof of Shubin Nie Case. Criminal Science [Xingshifa Zazhi] 3: 58–63.

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Zhou, Hongbo, and Xin Miu. 2015. The Fuzzy Logic—Comments and Analysis of the Evidentiary Rules on the Interpretation of the Supreme People’s Court on the Application of Criminal Procedure Law of the People’s Republic of China. Journal of Southwest University for Nationalities (Natural Science Edition) [Xi’nan Minzu Daxue Xuebao (Renwen Shehui Kexueban)] 1: 79–90. Zuo, Weimin. 2007. Empirical Study on the Operation Mechanism of Criminal Procedure in China [Zhongguo Xingshi Susong Yunxing Jizhi Shizheng Yanjiu]. Beijing: Law Press China. Zuo, Weimin, and Jinghua Ma. 2012. Effect and Paradox: Empirical Study on the Mechanism of Chinese Criminal Defense—Take D County of S Province as Example. Tribune of Political Science and Law [Zhengfa Luntan] 2: 60–73.

Towards Evidence and Fact in Criminal Investigation Ming Liu

1 Introduction: Evidence and Fact Research Beginning with the Evidence Theories by Professor Twining The Chinese translated of professor Twining’s three works on EPF research have been published. They are Analysis of Evidence (Second Edition),1 Theories of evidence: Bentham and Wigmore, and Rethinking Evidence: Exploratory Essays (Second Edition). In the introduction of Rethinking Evidence, professor Twining mentioned, choice of evidence research came from an interest in “broadening the study of law from within”.2 In the evidence research, it seems that professor Twining has more preference for the research approach from Bentham and Wigmore. And he devoted himself to the systematic research approach of evidence, proof and fact. Based on those three evidence works, professor Twining sketched his evidence theories frame from two levels. One is the basic theory level. (1) From the history review of Anglo-American evidence, Professor Twining provided the rationalist tradition of evidence scholarship,3 and he insisted the rationalist tradition is the sharing foundation of the vast majority of evidence researchers. (2) He tried to map the evidence theory. With the Information in Litigation (IL),4 he and his colleagues explored wider range evidence theory which can be applied to more fields beyond court. The other is operation or application level. Professor Twining and his cooperators 1 Coauthors

are Terence Anderson and David Schum. (2006, 1–4). 3 The “rationalist tradition” is discussed in all his three works. Most of his analysis is in the Chapter 3 of Rethinking Evidence, Id., 35. 4 Supra note 2, 238–41. 2 Twining

This research is supported by humanities and social science research YFP-15YJC820034 from Ministry of Education in China. M. Liu (B) National Police University of China, Shenyang, China © China University of Political Science and Law Press 2021 B. Zhang et al. (eds.), Facts and Evidence, https://doi.org/10.1007/978-981-15-9639-1_18

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(Professor Anderson and Professor Schum) inherited and developed the chart method of Wigmore, and tried to provide basic evidence analysis tools for legal practice and other fields which are based on complex evidences analyzing.5 More ambitions are in the evidence science project of the interdisciplinary research team by Professor Twining and Professor Schum. The project includes 9 subprojects. By and large, they can be divided into three classes. The first is metaphysical macroscopic research, including the disciplinary construction theories of evidence science. The second is middle level research, such as offering evidence analysis tools. The third is microscopic research, including the specific application of evidence science.6 The contributions of Professor Twining in the evidence research are significant. Although there are many controversies, his research provided basic propositions, academic map, evidence analysis tools, and a new macroscopic view for the present evidence research. For beginner in the evidence field, Professor Twining gave a digest about the history and nowadays of evidence research. And for evidence scholars, his research contributed to clear up thoughts and enlighten a new beginning. Although benefited from Professor Twining’s evidence theories, I explore the question of evidence and fact from a different angle in this paper. Twining’s Theories of Evidence takes a macro perspective, and provide an inclusive evidence frame. However, I will take a micro view in this paper to analyze evidence and fact finding in criminal investigation and distinguish them in trial. Turning back to China, our discussion will begin with the differentiation between ascertaining in criminal investigation and proving in trial. In 1980s, definition of proving was the litigation activities that public security organization, people’s procuratorate and people’s court verify the truth of the criminal case. The definition of prove has changed greatly since 1990s with the heated debate on the basic theories of litigation and evidence. The definition of proving in the new century is the litigation activities that the parties of prosecution and defense provide evidence to courts and illuminate fact in issue according to laws and rules. In the new definition, terms (such as burden of proof, fact in issue, etc.) have appeared and prove have been limited in trial. Furthermore, differentiation between ascertaining in criminal investigation and proving in trial appeared.7 The advantages of differentiation includes: (1) it points out the difference between trial and pretrial process and contributes to clearing up basic concepts; (2) it draws special attention to the research of evidence and proving. However, the disadvantages are: (1) the discussion of evidence and proving in criminal investigation almost has been expelled out of evidence and proving research; (2) researchers have only analyzed the ascertaining in investigation, but neglected the interaction between ascertaining and proving. About the questions of evidence and fact in criminal investigation, the preliminary research plan includes 3 parts: (1) static analysis of evidence and fact, which will differentiate between ascertaining and proving with more details; (2) dynamic 5 See

Anderson et al. (2005). Anderson et al. (2005). 7 See, e.g., He (2008, 41–43), Chen (2014, 260–62). 6 See

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analysis of evidence and fact, which will concentrate on how to connect the evidence and fact between investigation and trial; (3) coherence analysis, which will try to put ascertaining and proving into the same frame for attaining more inclusive theories, especially in the background of Chinese criminal justice practices. I will focus on the first part in this paper.

2 Evidence Identification in Criminal Investigation 2.1 Goals of Evidence Identification Criminal investigation begins with obtaining and distinguishing of case information. Not all the information can become the evidences for the courts, and most of them will surely be discarded in the identification and reidentification process. The criminal procedure is the process of continuously identification and elimination the information or evidences coming from outside of litigation space.8 Especially in the stage of investigation, the character is more prominent. Evidence identification is the activities that the detectives obtain useful information or evidence from all kinds of mixed and disorderly materials. The useful information may be mixed in some testimonies, or be implied in the characteristics, forms and positions of things or objects. And the useful evidences will be provided for fact finding in the future court. The goals of evidence identification can be different according to different stages. In fact inquiry, the goal of identification is finding truth and verifying (or falsifying) investigation hypothesis. In the preparing process for the subsequent litigation, the goal of identification is screening evidence according to evidence rules and other values worthy of pursuit.

2.2 Stages of Evidence Identification In the early phase of investigation, the direction of investigation is led by the investigation hypothesis. In order to form more reliable investigation hypothesis, it is important to obtain more information and preliminarily identification information. So the key point in the first stage of investigational evidence identification is discerning evidences based on exoteric, extensive and all-sided obtaining and accepting information and materials. The more information and materials the identification is based on, the better quality it has. Evidence identification contains two branches. One is relevancy of evidence. It needs to filter the useless, superfluous, or fuzzy information and materials. There are a 8 See

Liu (2008, 94–100).

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lot of activities for screening and shrinking the scope of suspects and affairs gradually in the stage. And then, the detectives should try to link the scattered information or evidences for some assumptions of case. Sometimes, linking them does not depend on rationality and logicality but non-rational thinking, such as intuition, sudden enlightenment, and so on. The links are often unstable, and the completion of evidence identification requires repeating trials. The course of identifying evidences by linking scattered information is similar with the simple analysis in investigation by professor Twining, that is the task of “connecting the dots”.9 But it is regretful that there are too few words to analyze the part in professor Twining’s book, which may be rooted from his limited analysis tool in the field of investigation. The other is credibility of evidence. In this branch, the detectives will estimate whether the materials come from reliable and clear sources, whether the witnesses are in good perception, and whether the instruments are enough sensitivity for examination, etc. In this course, authenticity and reliability of evidences are the focal point of inspection. Sometimes, the importance of the form requirements such as signatures will be neglect. The more credible evidences which contain more information are selected out by the first stage of investigational evidence identification. These evidences will be the cornerstones of investigation hypothesis. The second stage is to identify the new evidences that can verify or falsify the investigation hypothesis. Following the investigation hypothesis, more and more supplementary information or materials are collected. Evidence identification in this stage mainly screens the supplementary information and materials. Identification in this stage also inspects the relevancy and the credibility of the information and materials, which is the same with the first stage. However, compared with the first stage, the information and materials which are identified in this stage have smaller range and more clear direction of collection. While the information and materials collected in the first stage are more scattered, and they are more accidentally and more randomly collected or linked. The third stage of evidence identification is preparing for the subsequent procedure. In this stage, the key point is to re-identify the evidence according to the evidence rules and the need of justifying the procurator’s claim. Unlawfully obtained evidence will be filtered out in this stage, then, evidences will be systemized for the future prosecution.

2.3 Distinguishing Between Evidence Identification and Evidence Explanation in Trial Exoteric, extensive and all-sided obtaining and accepting information and materials are the features in investigation evidence identification. But, in trial, the materials obtained are limited. Fewer impetuses can urge judges and parties to find evidences from the outside of litigation space. And the approaches of obtaining materials in trial 9 See

supra note 5, 46–53.

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are also limited. They mainly depend on the evidences already obtained before the trial. Compared with the investigation, the evidences collected outside the litigation space are accidental and supplementary in trial. The main activities in trial are the judge and the parties’ evidence explanation. The objects of explanation are the evidences which have been provided to court by the parties. Compared with the huge amount of information and materials identified in the investigation, the objects of explanation in trial are limited. Professor Ji claimed that the procedure has open structure and constrictive process.10 As a typical legal procedure criminal procedure has these traits. Evidence and fact in the criminal procedure are constrictive little by little. In the end, they appeared in trial systematically and limitedly. The goals of explanation are different for different roles in trial. The goal of prosecutors’ evidence explanation is to justify the crime written in the criminal indictment. The goal of defenders’ evidence explanation is to justify refutation or weaken the prosecutors’ charges. The goal of judges’ evidence explanation is to reproduce the fact in trial. The realistic foundation of the evidence explanation in trial includes the diversification of relevance and proof weight and the ambiguity of fact cognition.11 The theoretical foundation of the evidence explanation in trial includes all kinds of theories such as rhetoric, story theory and so on. Evidence explanation in trial mainly includes selecting evidences by values weigh and excluding contradictory evidences. The typical example of selecting evidences by values weighing is excluding the unlawfully obtained evidences. And excluding contradictory evidences depends on the analysis of information proved by evidences. The evidence explanation of the prosecutor or the defender has prominent tendentiousness. Because of the discrepancies of evidences credibility and the ambiguity of evidences, even the explanations of the same evidence by different parties are totally opposite. To some extent, evidence explanation directly affects whether the evidence is admissible and how it helps the judge to attain inner conviction.

2.4 Limitations of Evidence Identification Investigation is the process in which information and materials obtained from extensively outside litigation space and evidences are accumulated by identification and re-identification. In investigation evidence identification, we should pay close attention to the following two aspects in future criminal procedure. (1) To most of the detectives, since the main goal of investigation evidence identification is to find truth, groping the fact and arresting the criminal suspect will be more important than other values. Even some important values such as protection of rights in criminal procedure will be ignored. (2) The detectives will unconsciously overlook information or materials which are contradictory with investigation hypothesis in the process of 10 Ji

(2004, 15). (2013, 32–33).

11 Allen

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evidence identification. But sometimes these ignored materials could be the turning points of fact finding. On the other hand, the concept of evidence identification has its weakness. The concept is intended to emphasize selecting evidences from abundant information and materials in the investigation and to compare with the stage of trial. It neglects the fact that there is evidence explanation in the investigation, whereas there is evidence identification in trial. The concept is limited to disclose evidence and fact in criminal investigation.

3 Fact Inquiry in Criminal Investigation 3.1 Metaphor of Fact Forming in Investigation Fact forming in investigation is just like a game of jigsaw. In the process of the jigsaw puzzle, the player needs to refer to the target picture, and then he or she fits the pieces together to complete the target picture. The target picture is the fact of the case, and the pieces are the evidences of the case. But there is no ready-made target picture for the detectives. They have to form a hypothesis as a provisional direction for the investigation. Investigation hypothesis is an imaginary target picture. It need be amended in the course of investigation. On the other hand, the pieces for jigsaw puzzle have the given quantity and stationary shapes, and they can fit together exactly to built-up a perfect target picture. But in investigation, the evidences obtained through identification vary in degrees of credibility and relevancy. Fitting them together for a perfect fact is difficult or unachievable.

3.2 Stages of Investigation Fact Inquiry The first stage of investigation fact inquiry is to collect information and materials as far as possible information and materials as many as possible, which is the process of collecting the pieces for the jigsaw. In this step, the tools in Analysis of Evidence are limited. The evidence analysis method based on Wigmore’s chart contributes to evidence analysis in court but not fitting itself to evidence collecting. The tools for this step can be found in the works of criminal investigation science. Investigation thinking is a combination of rational thinking and irrational thinking. While investigation methods are the combination of logical methods and illogical methods.12 Many books in the field of investigation thinking science see the illogical methods, such as intuition, the sixth sense, and so on, as important as logical methods. Sometimes the clues and direction of investigation come from the long-term 12 See

Li (2007, 78).

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experience accumulation or the sudden inspiration. Seldom are there clear logical processes.13 But the crime investigative activities could not depend on the illogical methods entirely, since many detectives do not have the long-term experience and the outcomes come from illogical methods are not always right. The basic ways to collect evidences are logical ways. We need to explore more logical and conventional ways for most of detectives and most cases. By these means, there are some differences between the traditional criminal investigation and the new criminal investigation. The traditional criminal investigation such as the investigative activities for murder, poisoning, sexual assault and so on, begins with crime scene investigation. There are many systematic ways of evidence collection in the crime investigation science. Take the logic tree theory14 by Henry Chang-Yu Lee for example. Doctor Lee considered that logical and systematic analysis method is necessary to crime scene investigation. He provided the different systematical ways of crime scene investigation according to different types of cases in this book. For sexual assaults, the important evidences the detectives have to collect and identify include body evidences coming from forensic examination, testimonies coming from victims, criminal suspects and eye-witnesses, physical evidences, biological evidences and so on. For arson, the important evidences the detectives have to collect and identify include the information of ignition points, morphologic evidences, combustion improver and so on. By the tree branches and their subbranches, the directions of getting information and materials and evidence types on the main types of crimes scene investigation are comprehensively demonstrated in the tree diagram. The advantages of the logic tree theory are: (1) insuring the all-sidedness of evidences collecting especially for the green hands; (2) pointing out the cores and important evidences according to different types of cases based on the long-term experience; and (3) sketchily analyzing and organizing evidences along the tree structures. Both the traditional criminal investigation and the new criminal investigation need comprehensive and vast information and materials as the foundation of evidence identification at the early stage of investigation. The differences between them are the approaches and ways to get the information and materials. Take intelligence-led investigation, which is a part of intelligence-led policing, for example. It regards analysis of cases and data of suspects as crime intelligence.15 Police decision-making is based on the collection, analysis, and utilization of crime intelligence.16 By inputting the elements of people, thing and information into intelligence database for searching, querying and comparing, the detectives obtain more case information and investigation clues. Especially with the application of big data, big-data-led investigation17 will realize enormous information search and comparison. Compared with the traditional criminal investigation, big-data-led investigation will bring the innovation of

13 See

Zhang (2002, 76). Lee et al. (2006, 169). 15 See Ratcliffe (2010, 77). 16 See Li (2010, 21). 17 He (2015, 73–74). 14 See

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investigation thinking and ways. Collecting information and materials for criminal investigation is just like exploring in the information ocean. In addition, we should note that the capacity and boundary of the first step of investigation fact inquiry are closely related with the level of science development and technology application in criminal investigation, just like the application of DNA research result enhanced the capacity and efficiency of the criminal investigation. The second step of fact inquiry is forming investigation hypothesis and verifying or falsifying the hypothesis with the new evidences. In the science of criminal investigation, the step is called the C-H-D (conclusion-hypothesis-deduction) model.18 In this step, the evidence analysis tools provided by Analysis of Evidence can be used and more other evidence analysis ways based on adversarial procedure can be applied. The third step is a selective step in the investigation. Sometimes the case is special and complicated, so the initial hypothesis in the second step may be wrong. When the investigation hypothesis needs reconstruction, the first two steps will be repeated. But the key in this step is how to estimate the appearance of investigative impasse and when the investigation hypothesis should be reconstructed or revised. Here the evidence analysis tools are out of order again. The existing analysis tools can help to find the weaknesses of evidences, but they cannot answer the above-mentioned questions. At present solving these problems mainly depend on the experience of the detectives. The forth step is a supplementary step. It is the step of preparing and organizing evidences for the trial. The jobs in this step are beyond the meaning of fact inquiry. The focus of evidence identification turns to value weighing and the requirement of admissibility based on the evidence rules. The existing evidence analysis tools can be applied in this step well.

3.3 Distinguishing Between Fact Inquiry and Fact Selection in Trial The patterns of fact finding in different countries are greatly different. But it is the same in the most of modern countries on that the fact finding in trial is based on the evidences provided by different parties. This is called the principle of evidentiary adjudication. So fact finding for the judges is the course of fact selection. The judges select fact among the frames of fact provided by the parties. There is neither information extensively collected which exists in the first step of investigation fact inquiry, nor hypothesis reconstruction which exists in the third step of investigation fact inquiry. The fact finding in investigation is just like exploration which is full of unknown and diversification. The fact finding in trial is limited. And the judges seldom searches information and materials outside the litigation. 18 Supra

note 13, 36–42.

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3.4 Limitations of Fact Inquiry In the investigation fact inquiry, we should pay attention to two aspects in future criminal procedure. (1) Because of the shortage of evidence, the weak proof weight, and the deficiency of credibility and so on, the detectives have to fill up case fact with imagination. When evidences are replaced with too much imagination, there will be risk of making mistakes/wrong judgments. (2) A lot of information and materials may be overlooked and excluded in the stages of evidence identification. The overlooked and excluded evidences or information can be the key points to the truth. So the dangers of investigation fact inquiry still exist in many cases. On the other hand, most of crimes are not complex. They can be settled according to the routine ways of investigation. The concept of fact inquiry also has its weakness. The concept is intended to emphasize the spirit of exploration in the investigation and to compare with the stage of trial. It neglects limitations in investigation and breakthroughs in trial, and it is also limited to disclose evidence and fact in the criminal investigation, just like the concept of evidence identification.

4 Conclusion In the view of evidence, investigation is a process of evidence identification and reidentification. The feature of investigation is to identify and select evidences from the mixed and disorderly information and materials. But the trial is a process of evidence explanation by the judge and the parties. In the view of fact, investigation is a process of fact inquiry. Through collecting information, forming hypothesis, and verifying investigation hypothesis, the investigation fact is inquired. But the trial is a process of fact selection among the fact claimed by the accuser and the defender. As a brief summary, I’ll use a table (Table 1) to show the distinctions. Table 1 Evidence and fact in investigation and in trial Investigation

Trial

Evidence Identification 1. Openness

Fact

Inquiry

Explanation 1. Closure

2. Non-directivity

2. Obvious directivity

3. Devoting to truth finding

3. Considering about admissibility, legality, value balance and so on

1. Open

Selection

1. Conservative

2. Both irrational thinking and rational thinking

2. Rational persuasion

3. Initiative

3. Passive

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Back to the introduction, the discussion in this paper clarified the differences of the issues on evidences and fact in investigation and trial. But the stage of investigation and the stage of trial are successive. The evidences and fact coming from investigation will go on in the criminal procedure. Finally, they will be the base of the evidences and fact in trial in some extent. So the next question is how to link up the evidences and fact in investigation and in trial. We have to analyze the cohesive relation between evidence identification. And we need to know the cohesive relation between fact inquiry and fact selection. Furthermore, in the systematic research of evidence and fact, the existing analysis tools are limited. The existing analysis tools are mainly suitable for trial. We should find more analysis tools which are suitable for both investigation and trial. And we should know the advantages and disadvantages of every analysis tools. In the view of this paper, it is necessary to pay more attention to the innovation in the field of investigation and to absorb more theories and methods in the science of criminal investigation. A real systematic research on evidence-proof-fact (EPF) need embrace all the processes from investigation to trial based on learning their differences well.

References Allen, Ronald J. 2013. Rationality Cognition Evidence, trans. Zheng Li and Jia Wang, 32–33. Beijing: Law Press China. Anderson, Terence, David Schum, and William Twining. 2005. Analysis of Evidence, 2nd ed. Cambridge University Press. Chen, Ruihua. 2014. Criminal Evidence Law, 2nd ed., 260–62. Peking University Press. He, Jiahong. 2001. On the Goals and the Standards of Judicial Proof. Chinese Journal of Law 6: 41–43. He, Jun. 2015. Study on Big Data and Reform of Investigation Model. Journal of People’s Public Security University of China (Social Sciences Edition) 173: 73–74. Ji, Weidong. 2004. Meaning of the Legal Procedure, 15. Beijing: China Legal Publishing House. Lee, Henry C., et al. 2006. Henry Lee’s Crime Scene Investigation Handbook, 1st ed., trans. Hongkui Hao et al., 169. Beijing: Publishing House of China People’s Public Security University. Li, Shunwan. 2007. Restoring the Crime: Investigation Logical and Way, 78. Chongqing Press. Li, Yinong. 2010. Analysis and Utilization of Crime Intelligence, 21. Jinan: Shandong People Publishing House. Liu, Ming. 2008. Towards Space of Litigation. Contemporary Law Review 132: 94–100. Ratcliffe, Jerry. 2010. Intelligence-Led Policing, trans. Song Cui, 77. Beijing: Publishing House of China People’s Public Security University. Twining, William. 2006. Rethinking Evidence: Exploratory Essays, 2nd ed., 1–4. Cambridge University Press. Zhang, Chengmin. 2002. Cases History: Western Classics and Logic, 76. Beijing: China Procuratorate Press.

The Multidimensional Studies of the Theory of the Standard of Criminal Proof Under the Principle of Trial Centered Criminal Procedure Bo Yang

The court is the capital of the legal empire, the judge is the prince of the empire. —Ronald Dworkin

1 Preface “If there is a trial, it must be proved”, so trial is based on proof and the proof is directed by legal standard of criminal proof, judges make judgments only when arriving the standard of criminal proof. The legitimacy of trial is closely related to the achievement of legal standard of criminal proof: under the system of divinity evidence, the legitimacy of judicial decision resorts to the indication of gods; under the system of legal evidence, formal legal reality intensifies the legitimacy of trial; under the discretionary evaluation system, the legitimacy of trial performances as formation of discretional evaluation of evidence of judge. Actually, In modern criminal procedure, the trail is the reconstruction process of the judge’s thought for the facts, which is ended up with the judge’s assurance or uncertainty finally. And this is a process of the judge’s self persuasion, what extent the judgments can be made to judges, there is no external standard to measure, so it all depends on inner heart of judges. But in the legal space, the judgments that are according to the inner conviction of judges directly relates to the redistribution of right and obligation of each party. “The duty of court is to judge cases—through the application of law to make legal effect 1 Huang

(2001, p. 243).

The third part of the article had been published on the Jilin University Journal, Social Sciences Edition. Associate professor of Jilin University, Doctor of law. Research direction is criminal procedure law, evidence law. B. Yang (B) Jilin University, Changchun, China © China University of Political Science and Law Press 2021 B. Zhang et al. (eds.), Facts and Evidence, https://doi.org/10.1007/978-981-15-9639-1_19

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that regulated in the law act on a concrete legal fact.”1 From this, it is necessary for judges to draw the line on inner conviction, if so the court is not endless process but a limited activity, which can adapt the actual need of the finality of litigation. As Bayless remarks: “Appealing to legal procedure for solving dispute, so the dispute must be finally solved at a certain stage, or it means nothing.”2 The line is the standard of criminal proof. In this sense, it is necessary for a trial to draw a line for the facts confirmation that is subjective with the standard of criminal proof. However, it is awkward. How to draw a line with the standard of criminal proof for the subjective facts confirmation, how to be suitable, how to provide security for making a judgment? As for case facts, the optimist view judicial personnel as omnipotent, they believe that judicial personnel can overcome all of them to make case facts clearly, even there are so many difficulties, therefore viewing reality as bottom line, the standard of criminal proof must beyond the reasonable doubt, so any opinions or methods that pursue to debase the standard is unjustifiable, and it is irresponsible for criminal judicial judgments. For those who are prudent, facing to case facts that is difficult and historical, judicial resource and judicial personnel is limited, which means absolute reality is nearly impossible, so the standard of criminal proof should be objective and reasonable, higher level is enough but not the highest. Legal truth is the standard that is based on truth, merely is second best. Over the years, arguments on the standard of theory circle get into trouble, whether we can discover the truth or not, which is confused and innocuous about cognitive ability. However, with a view to epistemology, it is insignificance for us to consider the possibility of factual cognition, which seems like a fierce argument, but in fact, all road lead to Rome.3 Judicial problems return to judicature in final. Facts in judicial process form from the procedure space, in Modern Legal Society, procedure means a lot to facts just like both sides of river, that constraints the depth, width and the direction of facts. Procedure is the condition and the limitation of facts, it is necessary for enactment and accomplishment of the standard of criminal proof, with different procedure, the standard of criminal proof is different. Take two legal systems for instance, adversary system of Anglo-American law constraints the process of facts with due process, two-mechanism of judicial organization method and jury verdict are running in Anglo-American law, which means beyond reasonable doubt that focus on externality and operability is the standard of criminal proof. Continental law system adopts inquisitorial, through intensify judicial function to discover truth of the matter, and judge’s trial emphasizes the inner conviction, so differences between them are clear.4 In 2014, a major decision according to The Fourth Plenary Session of the Eighteenth CPC Central Committee to promote the trial centered litigation system reform, which means China abandons pretrial investigation centered criminal procedure and towards to the Principle of Trial centered Criminal Procedure. This is an important 2 Bayless

(1996, p. 37). a long time, the arguments about the standard of criminal proof, that is the argument between the legal truth and the objective truth. 4 Wu (2014, p. 150). 3 For

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adjustment for criminal procedure, it must lead to great changes for fact formation mechanism. Under the Principle of Trial centered Criminal Procedure, content of case facts is not enslaved to investigation any more, but shaped by court, it is a huge difference for the standard of criminal proof that the facts formed in pretrial procedure or in the court. If facts formed in pretrial procedure, especially in investigation, the succedent procedure will lose efficacy for construction of facts, and the standard will be simplified as the highest one. In practice, it is unnecessary to satisfy the objective evidence, because “facts are clear and evidence is irrefutable and sufficient” is operable and it makes judgments equip with surface justice and authority. On the contrary, if case facts are formed in the court, it will keep judges away from pretrial procedure. Trial procedure is the beginning for judges to cognize the facts, with fluctuant construction of facts, weather guilty or not needs to combine with trial procedure and according to the inner conviction of judges. Authenticity is the only standard to measure weather judges can judge. Because the facts that established by judgments are formed in the court, not in the pretrial procedure, so the centralized and the objective proof standard is not only useless but also betrays the need of trial centered criminal procedure. In summary, the Principle of Trial centered Criminal Procedure is distinct for the Chinese problem, it is necessary for Chinese characteristic judicature to consider the possibility of danger and dilemma when to design system. It can be predicted that great changes will occur to the fact formation mechanism, with the promotion of the Principle of Trial centered Criminal Procedure, and the standard of criminal proof will be prominent. If the theory of the standard of criminal proof is stagnant without breaking through or keeping up with the times, it will obstruct the promotion of the Principle of Trial centered Criminal Procedure conversely. Recently, personnel of practical departments propose: take trials as the center, it is essentially to take the standard of judicial trial as the center in the criminal procedure, the core of it is uniting the standard of criminal proof.5 The paper is based on the relation of procedure construction of trial and the standard of criminal proof, but the conclusion is worthy of discussing. So, according to that, this paper endeavors to promote the reform of the litigation system of the Principle of Trial centered Criminal Procedure in our country, and this is the background. Then analysing the difference of proving system between the pretrial investigation centered criminal procedure and the Principle of Trial centered Criminal Procedure, the aim is to explore the changes of theory and practice of criminal proof standard in our country from objective corroboration to subjective inner conviction, and then reconstruct the system of the standard of criminal proof to look into the future.

5 Shen

(2015, p. 5).

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2 From Facts Fixed Before the Court Trial to the Facts Formed in the Court Trial 2.1 Fact Formation Mechanism Under the Investigation Centrism The investigation centrism is a typical generalization of relationship among three organs in the criminal procedure under the “assemble-line” style, and the result derived from the “assemble-line” style.6 Three organs under the “assemble-line” style ought to have equal status and be independent mutually, i.e. different function and same target. For a criminal case, three major organs are only regarded as three stations on the production line. Obviously, the internal requirement of the “assembleline” style rejects the judicial supremacy. Meanwhile, our criminal procedure usually lays emphasis on fighting crimes, and insists on exploring the truth of the case. It is known that, objectively the investigation is the best phase for discovering the truth of the case. It is closest to the occurrence of the criminal case. It is relatively convenient to collect and fix the evidence. Subjectively, the design of our domestic investigation procedure is mainly centered on conveniently collecting the evidence, effectively fighting criminals, and finding out the truth of the cases. In this way, the target of seeking the truth raises the status of the investigation, so the central status of the investigation becomes prominent. The investigation-centered procedure refers that the investigation possesses the core status in the whole course of the criminal procedure. The evidence collected during the investigation tends to be the direct basis for the judgment. The quality of the investigation activities determines the quality of the judgment. The judges’ judgment on the truth of the case is mostly based on what the procuratorial organ hands over, which is reflected on the suspects’ interrogation records in the investigation file, verbal evidence from inquiring the witness, expert opinion, inquisition, record of examination, physical evidence, documentary evidence and others collected by the investigation organ. It is centered on the investigation. The function of the examination before prosecution and judicial procedure is severely weakened. Although the evidence mentioned above is incomplete, defective and even disobedient severely, it is still difficult to deny the following procedure. The prosecution procedure of the procuratorial organ becomes a middle link of strengthening the investigation function. The decision for prosecution or no prosecution is subjected to the demands of the public security organ’s fighting criminals to a great extent. The court trial procedure descends to a typical investigation confirmation procedure, which lacks autonomy. So, it cannot form effective investigation and restriction on the investigation power. The difficulty of implementing the exclusionary rule of illegally obtained evidence is 6 Strictly

speaking, the investigation centralism and the trial centralism are not in corresponding categories. The latter one is corresponding to the “assemble-line” style, while the former one is the product derived from the “assemble-line” style. Based on the demands of the theoretical evidence, this paper directly makes them correspond to each other.

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one of the cases in point. It is known that, since the foundation of the exclusionary rule of illegally obtained evidence in 2010, it has been incorporated into the legislation through the criminal procedure law of 2012, and it has been strengthened through the judicial interpretation. However, in the practice, there was so little illegal evidence excluded. No matter the procuratorial organ or the court, both of them shrink back at the sight of the illegal act of collecting the evidence against law, or have a tacit understanding even when clearly detecting their illegal act, as the premise of excluding the illegally obtained evidence is to deny and crack down on the investigation act, and it may weaken the strength of fighting criminals. centered criminal procedure does not provide the authority and space like the court. Therefore, under the difficulties, to let matters drift is the best choice. Finally, the truth obtained during the investigation procedure directly flows to the court hearing through the review and prosecution, and then the judge provides judicial decision. Therefore, this paper holds that, under the investigation centrism, the fact is fixed in the investigation procedure, and it is obtained through the investigation organ’s investigating activities rather than be formed through the in-court justification procedure. The testification activity in court is formalistic. It does not have the capability of shaping and building the case facts. Instead, it only adds legal stamp to the investigational act. Replace the fact proof with the fact confirmation. The formalization of the court proof is mainly reflected on the testification, cross-examination and authentication links. Firstly, the formalization of the trial proof is reflected on the formalization of the public prosecution party’s testification, and it cannot completely perform the burden of proof. In the court, the public prosecution party tends to summarize and sort out the evidence obtained by the investigation organ, and provide it to the court. However, the problem lies in that the presentation of the grouping testification or one-by-one evidence is to complete the handing over of the evidence. In practice, the accuser does not make effort to carry out deep analysis and demonstrate the relationship among the evidence, and between the evidence and factum probandum. Besides, he does not focus on explaining to the court how the accused corpus delicti is established, so as to make the judge accept own side’s proposition and make a guilty verdict. He does not substantially perform the burden of proof and complete the proof with guaranteed quality and quantity. With regard to the cases that have authenticity and legality problem, the accuser tends to neglect making a thorough investigation on the facts, and just muddle along. Once the evidence is submitted, the burden of proof is completed. Thus, the defendant’s guilty fact background does not achieve powerful evidence support. The reason is that the central status of the investigation and irreplaceable value presetting of the investigation evidence make the accuser automatically relax the tension of the proof performing. Secondly, the formalization of the trial testification reflects the cross-examination formalization. The cross-examination activities are not completely performed. It is the core link of the trial testification. It not only deepens the proving activities, but also determines whether the facts can be ultimately affirmed to some extent. However, the witness and identifier in the practice basically do not appear in court. What is presented in court is basically the content recorded by the investigation organ, which lacks necessary mating system support and even weakens the accuser’s proving force. At the same

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time, in practice, most defense parties lack cross-examination capability. The crossexamination cannot be studied further or deeper. Due to the influence of the pre-trial investigation centered criminal procedure, the powerful status of the investigation power constrains the power of the defense party (with relatively weak power). To strengthen the implementation of the convenient investigation power, the lawyer does not have the right to collect evidence in the investigation phase, and the evidence he can collect during the criminal procedure is extremely limited. In the court trial, the defense party is also subjected to the accuser’s power, so the former one has quite limited debating chances and space. Under the circumstance that the defense party’s power is so weak, it is really quite difficult to substantially adapt the facts presented by the accuser. The defense party cannot do cross-examination, even though he poses doubt for the authenticity of the testimony, and notes a protest towards the authenticity and legality of the testimony. Therefore, the cross-examination procedure is too difficult to be performed and deepened. The court tends to temporarily put such doubt and objection aside, and leave them for being discussed after trial. However, the result of the post-trial discussion is always affirmed by the judge according to the evidence and information included in the accuser’s archive. Finally, the formalization of the trial testification reflects the formalization of the proving. Like what has mentioned above, the investigation archive plays the leading role in the fact affirmation. The authentication activity of the trial is to legally confirm the evidence in the investigation archive. The evidence obtained during the investigation, especially the recordings in the archive, is the direct basis of the court verdict. The formalized authentication reflects the pre-trial archive borrowing, asking for instructions from the superior or subordinate, waiting for the archive transfer after trail (after 1996, China abolished whole case transfer method; strictly speaking, the judge cannot see the archive before the trial; till the modification of the criminal procedure law in 2012, the archive transfer method was modified into whole archive transfer), so as to avoid the authentication at court, and then thoroughly carry out the centered status of the investigation. There is so little chance to judge the criminal case to be guiltless in China. Besides, it is difficult to be changed through the trial. So, at last, the judges allowing for unforeseen circumstances come into being as per the demands. Some cases are typical, such as She Xianglin Case, Zhao Zuohai Case, etc. To sum up, the investigation centrism gives rise to the formalization of the trial authentication, while the latter one strengthens the status of the former one. The investigation-centered procedure strengthens the targets of fighting criminals and finding out the facts, but it deprives the function of the trial’s constructing facts. Our domestic legislation and practice are not endowed with the court trial procedure to construct the case facts, reviewing the legality of the pre-trial activities, especially restricting the status of the abuse of the investigation power. The fact is fixed in the investigation procedure, and the fact content is subjected to the cognition result of the investigation organ. Such fact formation mechanism has key impact on the proof standard. With the investigation centrism, the legitimacy of the arbitration decision is completely based on guaranteeing the authenticity of the case facts. Therefore, from the conclusion of the investigation to the first-instance judgment, no matter the common procedure or simple procedure, both of them comply

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with the highest and centralized proof standard related to “fully proved facts, true and sufficient evidence”, which is a necessary and inevitable choice. Only if the centralized and highest proof standard governs all links and procedures of the whole criminal procedure, can it provide justification for the legitimacy of the arbitration decision to the greatest extent under the investigation centrism. Meanwhile, only if such proof standard is externalized in the requirements of many objective evidence elements as possible, can it be favorable for carrying out this standard to the end. For instance, our judicial circle and legislation circle has made great effort on refining the proof standard, and provided a series of specific explanation for “true and sufficient evidence”: each case fact is proved by the evidence; single evidence has the evidence capability and proving capability; the evidence is corroborated mutually; the whole-case evidence forms complete authentication system; the direct evidence is supplemented by other evidence; the conclusion has uniqueness and exclusiveness. The investigation centrism does not require the judges to appeal to the fact judgment internally. Besides, it does not leave any space for the judge’s subjective proving. It is feasible to judge the case if they understand the case according to the external proof requirement, and it is unnecessary to accept moral torture. In brief, in China, centralized and objective proof standard is the inevitable choice for the fact formation mechanism under the investigation centrism.

2.2 Change of Fact Formation Mechanism Under Trial Centrism In China, trial centrism is proposed firstly for investigation centrism under “assembleline” style and its drawbacks. The Fourth Plenary Session of the Eighteenth CPC Central Committee pointed out that “(we should) promote the reform of trial-centered procedural system to ensure that the fact and evidence of cases after detection and prosecution can stand the test of law. (We should) fully implement the rule of evidence-based adjudication, strictly collect, fix, save, review and use evidence according to law, improve the system of witness and expert witness appearing in court to ensure the trial can play a decisive role during the process of ascertaining fact, authenticating evidence, protecting the right of action and judging fairly.” It’s obvious that the reason why China wants to promote the reform of trial-centered procedural system is to change the formalization problem of proof at trial under investigation centrism, making the trial function work and the trial process substantive through improving a series of reform measures, such as the system of witness and expert witness appearing in court. Trial centrism is significant for the change of mechanism of fact formation. First, trial centrism show the autonomy of the trial clearly, strengthen the function of trial during the fact formation. In the modern criminal proceedings, the reason why we resort to trial to solve a dispute is that the trial procedure can provide a space for both the prosecution and the defense to fully display evidence, exchange views and argue claims. The space is open, fair and transparent,

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an ideal place for the formation of fact. In this space, judges experience trial personally, complete thoughts reconstruction of the fact, and then make a final judgment. Trial centrism takes the recognition of trial procedure’s function as premise, and its core is to require the whole criminal procedure to take trial activities as center, then by adducing evidence, cross-examination, authentication and other proof activities to reconstruct fact of criminal cases and complete the test for pretrial investigation and prosecution activities at the same time. Under trial centrism, accompanied by the activation of the trial procedure, fact is formed in the court, factual judgments are made based on conclusions in the court, and eventually judicial activities return to the law of justice to meet the essential requirements of judicial activities. Second, taking trial as center helps to weaken the strong position of pretrial procedure, especially investigation procedure, redefines the relationship among investigation, prosecution and trial activities. Taking trial as center, investigation and prosecution activities are actually preparation activities for trial, the factual conclusions and corresponding evidence which are formed in the respective stage of criminal proceedings have no direct binding force on judgment, and everything should be tested in the court. In the court, there is only evidence, no established fact, everything is pending. Third, taking trial as center helps to enhance the subjective status of the accused, make it possible that the accused views affect the contents of the facts and the judge’s decisions. Actually, what the core of trial centrism points to is the protection of the defendant’s right to a fair trial. With the promoting of the subjective status of the accused, the accused views will be respected and valued during the facts confirmation. Facts formation during the trial will not only include allegation, but also the accused views which is more and more important. Trial centrism leads to a great shift of fact formation mechanism from frozen fact in investigation to fact constructed in the court, thus, the change of factual proof from formalization to substantiation is inevitable. Taking the realization of trial centrism as guidance, the substantiation of proof in the court should include the following aspects: Firstly, strictly review the evidence ability to restrict pretrial activities by judicial procedure. “Evidence must have evidence ability first, in other words, evidence must be competent, or it must be admissible, after that, the question of the weight of evidence comes up.”7 The premise of substantive proof is the review of evidence ability. In terms of factual proof, only after the test of evidence ability, can we talk about the issue of the weight of evidence. The evidence without evidence ability can not be heard in the court, neither can it be used to prove the fact to be proved, to construct the content of fact. The proof of case facts must be established on the basis of legal and valid evidence. China does not yet have conditions for establishing mechanism of judicial review, so it can not directly regulate the investigation organ’s behavior of obtaining evidence by the intervene of judge before trial. But it is the inherent requirement of the substantiation of trial proof to realize the function of filtering out evidence with the help of effective implement of the exclusionary rule of illegal evidence and form the radiation influence on pretrial activities. Secondly, improve the procedures of adducing evidence, cross-examination and authentication, 7 Li

(1992, p. 464).

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and promote the full development of proof activities in the court. In the aspect of adducing evidence, the prosecution need to not only submit evidences to the court but fully explain and illustrate the relationship between evidence and facts to be proved, as well as the relationship among evidence, in order to present a clear picture of facts that the accused is guilty to the court by completely fulfilling its burden of proof. In this case, the prosecution must be responsible for competency and probative force of all kinds of evidence, and complete the activities of adducing evidence meeting the requirement of quality and quantity. In the stage of cross examination, all kinds of evidence submitted by both the prosecution and the defense must be examined strictly, and the probative force as well as the correlation and functions of evidence must be reviewed carefully. Therefore, in the future, the reform of proof procedures should focus on the reform of cross-examination procedures as well as how to arrange procedures to review evidence more efficiently to the benefit of the formation of facts. At the same time, pay attention to implementing the system of witness and expert witness appearing in court, strengthen guarantee of the defense’s right to read case files, enhance the defender’s ability for cross-examination and strengthen the effect of cross-examination, so as to provide sufficient conditions and guarantee for the full implement of cross-examination in trial. The reason why the Criminal Procedure Law (2012) regulates the system of witness and expert witness appearing in court, is to lay the foundation for China’s reform of trial-centered procedural system. But the practice of witnesses and expert witnesses appearing in court is so unsatisfactory that this system needs further promotion. As to authentication, further strengthen the demand for authentication in court, and try to make all objections to be solved in court and reduce or cancel such practice that shelves disputes temporarily by deliberating a case after court with best effort. Only in this way can judge’s dependence on the investigation files be completely cut off, to make facts really form in court. Finally, strengthen the guarantee and exercise of the right to defend to ensure that the defense can be deeply involved in factual proof activities. The substantiality of trial proof relies on the formation of the tripartite structure. If the defense’s power is too weak, there can be no substantive proof. As mentioned above, trial centrism is basically to ensure that the accused can have the right to be judged fairly, which means both aspects, no matter from giving the defense rights or deeply participating in trial activities, are bound to be strengthened and protected. Only in this way can the defense be able to question and contradict the doubts as well as leaks existed in the prosecution’s evidence materials, so as to rewrite factual content partly or entirely. Under trial centrism, the factual content of cases at court trial will no longer be just limited to the proof of the prosecution’s evidence materials, but also maximize the integration of the defense’s voices. So strengthen the protecting of the rights of reading file, meeting right and the right of investigation and evidence collection, enhance the ability of the cross examination, strengthen the effect of the cross examination which is the inevitable requirement of the trial centralism. In conclusion, the process of fact formation in trial ought to be a process of factual proof. in the court, the judge can verify the quality and quantity of evidence from pretrial activities, and finally decide whether to support the prosecution’s claims, to make a verdict of guilty. To take trial as center, which means the original central

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position of investigation will be broken, the judge’s dependence on pretrial activities will be cut off, the pretrial procedures will be activated, and the function of pretrial procedures will work again. The start of trial procedures is the logical beginning of factual construction activities, and the basic symbol of the end of trial procedure is the determination and evaluation of facts formed in the court. Both the prosecution and the defense present a vivid picture of facts to the judge by adducing evidences, cross-examination, authentication and other activities, completing judge’s thoughts reconstruction of case facts. The facts established through court trial are alive. The judge can only question his inner heart according to the trial he experienced personally, whether to be convinced of the defendant’s guilty, and finally make a definite verdict. Therefore, fact is formed in court, not frozen in investigation, and the standard of proof can be grasped only by judge by depending on his inner heart. From the whole process of proceedings, even the evidence materials acquired in pretrial activities are sufficient and meet a very high requirement of proof, they still need to be tested by court trial procedure. The judge can no longer judge cases by the means of objective and unified standard of proof as usual. The formation of facts in court calls for the return of the judge’s free evaluation of evidence, and that is inevitable and inseparable (from fact formation). Faced with rigorous requirements of court trial and possible variable in substantive court trial, unified objective standard is obviously inadequate and Ineffective. Hence, in this sense, insisting on unified standard of proof under trial centrism is undoubtedly self-deception. Rather than appealing to good intentions, it would be better to respect the law and reality of justice, making justice return to justice itself. Meanwhile, the great shift of proof standard also asks China’s future judicial reform to really return power to the judge so that the judge has the ability and courage to judge on the basis of facts and evidence. The standard of proof won’t be put aside only when the judge dare to bear responsibility.

3 From the Objective Verification to the Subjective Evaluation Standard of Proof is subjective or objective, academic debate about the problem lasted for more than ten years in our country. Since “beyond reasonable doubt” was introduced into the code of criminal procedure law in 2012, obvious changes have taken place about the controversy between the subjectivity and objectivity, namely from emphasis on the objectivity of the standard of proof to the subjectivity of the standard of proof and tries to make objective factors combine with subjective factors.8 This paper argues that the debates about the subjectivity and objectivity of standard of proof largely is an opposition because of misunderstanding, the function and the character of the standard of proof is not clear, but the relationship between the objectivity and subjectivity is not smoothed. In fact, the emphasis on objectivity of standard of proof is not the preference of the research, the legislation and the practice; 8 Such

the typical article, Long (2004), Chen (2012).

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it is actually related with the procedure structure of criminal procedure in our country. The procedure structure of criminal procedure is significant for the standard of proof. Under contrasting the investigative centralism with the trial centralism, this article reveal the reason and the main problems of the standard of proof, and prove that how to return to the subjective proof standards under trial centralism.

3.1 Objective Verification Under Investigative Centralism 3.1.1

The Pursuit of Objective Truth Under Investigation Centralism Reinforced Objective Verification

For a long time, the highest standard of proof of the legislation and practice about the criminal procedure in our country is that “facts are clear and evidence is irrefutable and sufficient”, and we try to make the standard of proof into a series of objective verification requirements: each facts has been proved, each evidence has the weight and the admissibility, evidence to support each other, all the evidences can verify each other and form a complete proof system, direct evidence is reinforced for other evidences, the conclusion has the uniqueness and exclusiveness.9 In cases, practice department headed by the court make the subjective judgments outside into the objective verification between each evidence, which makes subjective evaluation into the consistency of prove direction and the overlapping or coincidence of proof content between many evidences. For example, in intentional homicide cases, when we have the witness testimony of the neighbors, the defendant’s confession, fingerprints, footprints, blood and other material evidence, etc., and then meeting with the requirements of the evidence chain, the conclusion obtained automatically. This article holds that the objective verification stems from investigative centralism. Under investigative centralism, it emphasized the importance off act finding, the task and the target of investigation radiate to the entire process of criminal procedure. Objective verification requires that the proof must be based on the interaction between the multiple evidence, the proof direction between each evidence must be identical, the contents are overlap, which means the truth have been revealed to the greatest extent. This proves that investigative centralism has the inner consistency with objective verification for the seeking the truth. Therefore, in course of facts confirmation, the judge’s subjective evaluation is alienated into objective verification, The prosecution needs only perform the burden of proof from outside, focusing on the evidence collection, attaching great importance to the coordination and connection between evidences, make great efforts to reach the objective verification.

9 Chen

(2014b, pp. 179–181).

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Under Investigative Centralism, the Separation Between the Trial and the Judgment Make the Objective Verification Necessary

For a long time, under investigative centralism, in order to ensure the accuracy of the facts, the working mechanism of judicial office always carry out examination and approval system for handing the case. In practice, chief judge, head direction and members of the audit committee make the decision for the case, but the judge of collegiate bench can not, the trial without judgment, judgment without trial. These people did not appear the trial, they learn the facts by investigators’ report and archival materials, and make the objective verification as the determine standard of evidence objectivity and facts confirmation. As professor Zongzhi Long says, the distinction between the trial and the judgment makes the objective verification necessary. It is because that the judge didn’t personally experience the trial process, therefore, facts confirmation can only realize through a number of evidence that can verify each other, and the objective verification is necessary. At the same time, collegiate bench numbers who experience trial have no right to decide cases, the trial becomes formal, which can’t form the evaluation. Judgments are not based on the judge’s evaluation, it is direct and convenient to judge with verification method, so it leads to the objective verification.

3.1.3

Under Investigative Centralism, Formal Proof in Trial Provides the Space for the Objective Verification

The judge’s evaluation relies on the procedure, only the judge participate the courth earings, such as contacting evidence, listening to the witness statements directly, the evaluation can formed and the judgment can be made. For a long time, under investigative centralism, the proof in trail becomes much formalized, such as adducing evidence is formalized, the prosecutor is often difficult to fulfill the burden of proof; cross-examination is formalized, witnesses and expert witness did not appear in the court, so the trial relied mainly on the written files; authentification is formalized, the disputed facts and evidences are reviewed after the trail. The judge’s cognizance for the facts didn’t derive from the trial, but from the written files of the prosecutor. The judge need not make judgments in according to the cognizance from the trial, the trial didn’t provide the necessary procedure space and conditions for the judge’s subjective evaluation. The judge can make judgments in according to the objective verification, and will not be tortured from moral.

3.1.4

Under Investigative Centralism, Relying on the Rules of the Weight Intensifies the Objective Verification

Under investigative centralism, fact-finding pay close attention to the weight of the evidence. Under investigative centralism, It is inevitable trend that the weight of the evidence is attached greater importance, the Admissibility of the evidence is ignored.

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The rules of objective verification stressed on the weight of each evidence, the relationship between evidences and the whole weight of all the evidences of the case, so it gets the recognition and reinforcement. In fact, the weight of evidence belongs to the factual judgment, it relies on the empirical rules and the logical reasoning, law is limited. Making the weight of evidence statutory will lead to a kind of formalized and mechanized proof, which may even be on the road of the system of legal evidence, and it needs to be payed special attention when using the method of objective verification. In practice, relying on the rule of the weight embodies that the judge don’t dare to make evaluation of the evidence, the judge wants to be bound, uses verification requires instead of subjective evaluation, which lead to the objective verification. In conclusion, under investigative centralism, the objective verification covers the subjective evaluation, overheads the real the standard of proof, which do great harm to the judicial practice. First, the objective verification means that the judge determine the case without the subjective evaluation, the fact confirmation always remained in the quantity of the evidence, but the quality of the evidence was neglected or ignored, and even appeared different degree of fraud, so wrongful convictions were formed. The stack of the evidence seems very absurd in according to the logical reasoning, but becomes the basis of verdicts. In order to obtain the objective evidence, The three organs try their best. The investigation organ is busy with forging torture and the procuratorial organ is busy with formal examination, returns the cases many times in order to obtain the new evidence and wants to settle a lawsuit quickly. While the court ascertains facts rigidly and mechanically, the court dare not use the discretion, the evidences of the decisions are pilled up, lacking of the connection of inner chains. Hard cases can’t be finalized, the objective verification is useless for the cases of lacking of evidences. The three organs make their own in trouble and shirk responsibility each other. Second, it is much more difficult to cope with the complexity of the judicial practice for the objective verification, and more and more cases can’t be finalized because of lacking of evidences which leads to the result that crimes attacking hasn’t done its best eventually. Obviously, the using of the objective verification is already beyond its function in our judicial practice. As rights consciousness of the parties enhancement, the requirement of criminal procedure is higher and higher, the development of due process will sacrifice some evidences that previously can be used to finalize the case. For example the application of the exclusionary rules of illegal evidence which will reduce the numbers of testimonies, in the case of zero testimony, the objective verification will be difficult to sustain. In a sense, the objective verification is incompatible with the power restriction and right protection, as the latter’s improving, the objective verification will be difficult much more. If the standard of proof doesn’t return to the subjective evaluation, many cases will getting in a mess. It will be a huge pressure for the judicial practice. At the same time, with the development and the progress of the society, the concealment of the means of committing crime is much more concealed and it is difficult to collect evidences in many cases. The objective verification will make it hard to finalize the cases, or set into misjudged cases. In a word, the objective verification is necessary as a method of proof, but with the

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development of the society, the limitations of the analysis methods about evidence is obvious, it needs to be further perfected to adapt to the requirement of fighting Criminals in modern society. But subjective evaluation can’t be instead of the objective verification, it is avoid using the subjective evaluation. Under trial centralism, the facts form in the court and being tested on the court, which calls for the return of the subjective evaluation. Third, the objective verification leads to the returning for supplemental investigation often and it also causes the phenomena of the reveres Procedure, which infringes upon the rights of the suspects. Because the objective verification highlight the sufficiency of the quantity of evidence, if it can’t satisfy the requirements on the quantity, it is difficult to form the objective verification, which will make he subsequent public prosecution and trial become more difficult. In judicial practice, the objective verification is often be satisfied mechanically. Once finding the absence of evidence in prosecute stage, it tends to be returned to supplemental investigation. The returning for supplemental investigation belongs to a kind of substantive remedial measures. After the case returning, some evidences can be supplemented, but in some cases, the investigation organ will ignore the returning, the lawsuit resource was wasted and it will do harm to the rights of the parties. Because it need recalculate term of detention when returning for supplemental investigation, it lengthens the duration of the suspect in custody virtually. In fact, for the substantive remedial of returning for supplemental investigation, generally, it must be limited. The objective verification increases the risk of the returning for supplemental investigation, so it doesn’t accord with the requirement of justice and efficiency of the procedure.

3.2 Under Trial Centrism, the Regression of Subjective Evaluation As mentioned before, from the meaning of “ought to be”, the standard of criminal proof is the demarcation for the fact-finding of the judge, judges make judgments only when cognitive activities achieve the standard of criminal proof, so the judgments is acceptable and justifiable. Measuring whether or not to reach the standard of criminal proof, can not only be based on the pile-up of objective elements, it must be through the analysis of objective elements and the logical deduction of the judge, and then to form a subjective impression and the judgment, the standard of criminal proof implements the inner heart of the judge finally. The famous British jurist of evidence—Murphy considers: “The standard of criminal proof means the range and the extension that disburdens the burden of proof must achieve, actually, it is the measuring scale that is the deterministic or probability of the evidence in the brains of the judge; before the party in burden of proof wins the lawsuit or the proven argument fact acquires favorable judgment, it must through evidence form the standard of trust for the judge.”10 As for the subjectivity of the standard of criminal 10 Murphy

(1997, p. 109).

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proof, code of criminal procedure in France has the classic statement: according to law doesn’t require assessors to report their method of establishing assurance: law doesn’t preestablish rules to make assessors follow them and decide whether the evidence is complete and sufficient or not; what the law requires to assessors is concentration, and to seek the impression that in their sense about the evidence against the defendant and the means of defense of the accused. Law doesn’t tell them: “You should regard how much about the fact that witnesses prove as real.” It also doesn’t say to them: “You should not regard the record of words, files, witnesses or evidence of crime…as fully confirmed.” Law only puts forward one question for them that could summarize the full scale of their position: “Are you sincerely convinced?” Forming the inner conviction through evidence, the standard of proof should be the extent for the facts of the judge, it also means that judges could make judgments according to the inner conviction without burden and doubts, this belongs to subjective category. But in our country, for quite some time, referring to the standard of criminal proof, no matter theory or practice, there is a puzzle of objectivity, between subjectivity and objectivity, people prefer to choose objectivity, if not so, the aim of exploring the truth can not be achieved, and the justification of the judgment can not be guaranteed. With the transformation from the investigation centrism to trial centrism, the subjective aspect of the standard of criminal proof is more and more clear, so it is time for us to clarify the question.

3.2.1

Under the Trial Centrism, the Standard of Criminal Proof Should Regress Subjective Evaluation

Under the trial centrism, the roof of facts will turn from static verification to dynamic confirm, trial procedure is activated, both the prosecution and the defense produce evidence and cross-examination positively in the court, try their best to describe the picture of facts, and convince the judge to accept their proof and confirm the establishment of their claims. Facts are formed in the court, for the judge, their cognition about the facts also begins in the court, no matter how perfect the evidence that the prosecution prepares before is and how tight the chain of evidence is, the evidence also needs to be presented in the court, described by language, and demonstrate to convince the judge to approve their claim of facts. As for the defense, even more so, courts are the most crucial and ideal program space that lawyers can gather strength and fight, weight of evidence and admissibility of evidence that puts forward by the prosecution, the contradiction and the conflict between the evidences, omissions and deficiencies of evidence of whole case could be attacked and denied, which brings infinite uncertain to court trial, precisely because the defense, the uncertain of court trial is expected and unexpected. With the fierce battle in trial of both the prosecution and the defense, judge need to judge and choose the weight of every evidence, and also need to weigh the weight of the evidence of whole case, evidence and process of the trial will form huge shock and impression for the inner heart of judge, whether convince or not, inner heart is clear. The change of trial centrism makes facts form in the court, the judgments of facts need to be done in substantial proof activities,

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judges could not draw the conclusion automatically that only recur to verification, could not ignore the content of the trial and reverie the content of facts out of the trial. In this sense, the trial centrism calls the regression of subjective evaluation, subjective evaluation needs substantial process of proof to support. After the standard of criminal proof regresses to subjective, it leaves space for judicial discretion. Whether judges will adopt or banish the evidence, why they draw this conclusion, but not others? The judgment of single evidence and corroboration between evidence are not achieve the achieved aim that interpret the standard of criminal proof. Because no matter how reliable the single evidence is, no matter how corresponding between evidences, it could not touch the standard of inner conviction in deeper level. As mentioned above, in this sense, whether achieve the inner conviction or not and objective verification, they are different judgments. In China, there is objective verification without inner conviction in many cases, professor Zongzhi Long once illustrated, because the deletion of what called crucial evidence or the quantity of evidence is not enough, so judges don’t dare to pronounce guilty according to the requirement of verification, but if achieve the standard of subjective evaluation, it can be sentenced. In practice, judges choose the former, it has to say that our judges evade the subjective evaluation, and they don’t dare to take responsibility. Turn objective verification to subjective evaluation can release judges, for the cases that the quality of evidence is unsatisfactory, it can reinforce the subjective evaluation of judges through sufficient trial, return the power to judges, give them the space of discretion. At the same time, the most important is the subjectivity’s regression of the standard of criminal proof could realize system function of the standard of criminal proof sufficiently. This text thinks, the system function of the standard of criminal proof is to justify the justification of the verdict. The standard of criminal proof is the bottom line for judges on fact-finding, only when achieve this, judges can sentence, and the judgments are justifiable. The justification of different evidence system resorts to different standard of criminal proof, the indication of gods, the quantity of legal evidence that is rigescent. Under the modern discretionary evaluation system, the standard of criminal proof draws a line for the subjective fact-finding and finally comes down to discretional evaluation. The standard of criminal proof regresses to subjective and resorts to certainty, the form of subjective evaluation verifies the justification of judgment. Only when achieving the legal standard of criminal proof, can judges make judgments, and judgments can be accepted by parties and the public. On the contrary, objective verification only enhances the justification of judgment on surface, without the discretional evaluation of judges, it could not disburden the burden of heart of judges, in a way, it is the expression of the standard of criminal proof under the system of legal evidence.

3.2.2

The System Guarantee of Subjective Evaluation

Judges according to their evaluation to judge, we should build a system space to ensure that judges dare to make judgments without arbitrariness. First of all, we should ensure judicial justice and aim for risk sharing and reform collegiate bench.

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Under the Trial centrism, facts are formed in the court, evidence is applied in the court, judgment is concluded in the court. Consequently, on the one hand, it is necessary to change the passive situation that what collegiate bench do their hearing without judging, it is necessary to make collegiate bench take the responsibility to determine the facts of a case and judge positively. The party’s Third Plenary Session of eighteen has put forward that judges judge and take the responsibility. In the past, facing to difficult cases, we adopt the Judicial Committee system to discuss cases, but the judicial committee is judging without attending. Some scholars put forward that we must reform collegiate bench and the people’s jury system so as to impel the members of collegiate bench to take part in the judgment of the facts and then call collective wisdom, it not only benefits to guarantee the justification of cases, but also can divide coverage that judgment could bring to.11 On the other hand, we must reform the constitution of collegiate bench to make the judge who undertake the case with people juror accomplishes fact-finding, solve the problem that people juror do not judge. Decision of the Central Committee of the Communist Party of China on major issues concerning the overall promotion of the rule of law puts: “Improve the people’s jury system and protect the rights of jury of citizens, expand the scope of participation, improve random way, enhancing public trust of people’s jury system. People jurors only judge the fact-finding and do not judge application of laws any more.” It can break stiff objective verification that is habitually practiced by professional judges on proof of court trial, play wisdom of citizens on beyond reasonable doubt with logical thinking. For the case that with larger social impact, we can resolve the mystery of the ordinary people on trial through the people juror judging fact-finding and eliminate their unnecessary doubts, so as to alleviate the effect of judge risk objectively.12 At the same time, it could expand the quantity of members of collegiate bench, increase the participation of the jury, it can also divides coverage of cases that judged by collegiate bench through jury system. Next, it is necessary to reassess liability system of misjudged cases and regulate the responsibility system of judges carefully. It is an important subject of modern judicial judgment that how to judge without mental load. Judicial responsibility system easily becomes incantation for judges, so they have a lingering fear and dare not to judge, which is wrong. All the time, for requirements of the truth in our country, the definition of misjudged cases is too wide, the responsibility is too strict, the responsibility that is based on facts is seen everywhere in practice: remand for new trial, second instance cases for amend a judgment and so on, for the judge of first instance, they also need to take the responsibility of determining case facts that is wrong. The judicial responsibility system that centers on finding out the truth it is unfair for judges, the result is that judges avoid risk through various ways, get rid of responsibility, causing the dissimilation of judge-system, and finally getting into trouble. In 2015, The Supreme People’s Court punishes Some opinions on improving the judicial responsibility system of the people’s courts, the paper makes it clear that what is the operation mechanism of trial power, the duty and authority of judicial personnel, 11 Min 12 Min

(2015, p. 42). (2015, p. 42).

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and the determination and investigation of trial responsibility, it strengthens the guarantee of judges performing responsibility, it also makes it clear what is the premise, foundation, scope, rule, procedure and safeguard of trial responsibility. It is clear that the premise of judicial responsibility is duty incentive mechanism. That could encourage judicial personnel to perform duties positively, and avoid delay in law enforcement, who can be investigated only in the case of intentional violation. So, as far as possible to avoid the judicial responsibility system of judicial personnel become head of the sword of Damour Chris. Through the judicial responsibility to make sure that judges dare to judge and to take the responsibility. Finally, the regression of subjective evaluation also needs to strengthen the reasoning system in judgment. Subjective evaluation also needs external institutional constraints in order to prevent it becoming a judge’s subjective judgment and arbitrariness. As for the process and extend of discretionary evaluation, there is no objective measure of a ruler. But it could be limited by the reasoning system in judgment that is the restriction mechanism. Reform of reasoning system in judgment have been promoting for years in the reform process of the Supreme People’s court, but, because in the past the trial and judgment of the separation mechanism leading to the reform of reasoning system in judgment is only superficial, for many years there is no real advance. With the subjective evaluation and regression of the standard of criminal proof, it is imperative to reform the reasoning system in judgment, through the requirements to strengthen the reasoning system in judgment, restricting arbitrariness of evaluation of judges. To this point, we can learn from the reasoning system in judgment of civil law countries. In the continental law system countries, fact reasoning not only for the court of appeals provides a examination based on the first instance judgment, as well as provides a mechanism of self censorship for a trial judge. Due to the existence of duty of reasoning, before judges judge the fact, he must be prior consideration whether the judgment results can be explained to the public in an appropriate manner.13 That is to say, the reasoning in judgment can not only to restrict the arbitrariness of judges, but also can be opportunities for judges to be self censorship. If the judge finds a conclusion that based on evaluation can not be appropriated by facts reasoning, he would reconsider the conclusion. Through the self censorship of judges, the fact reasoning plays a role in excluding arbitrariness, and identifies the correctness of facts—or to say acceptability—controlling within a certain range.

13 Wu

(2014, p. 158).

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4 From the Unified Standard of Proof to the Establishment of the Hierarchical Evidence Requirement Legislation and practice of unified proof standards are bound up with the investigation centralism. Under the investigation centralism, trial procedure is one confirmed procedure that investigation and prosecution, its primary mission is review of investigative results. Trial procedure is short of autonomy, shaping case facts independently, function of evidence review and judgment. Facts are formed in pre-trial procedure instead of trial procedure, the judges only review basing on objective verification, it’s unnecessary to listening to themselves, naturally, review in a unified standard is the most convenient and effective. Therefore, the judgment of facts is united to the legal proof standard that the fact of the crime is distinct and evidence is reliable and sufficient.

4.1 The Unified Standard of Proof and Criticism Under Investigation Centralism In China’s context, “the unified standard of proof” is special requirements which criminal procedure legislation make demands on criminal action activities, the concentrated embodiment is that centralized standard of proof of investigative termination procedure, removal for prosecution, guilty verdict in Chinese criminal procedure code. At investigation stage, rule 160 of Criminal Procedure Law states: “To close the investigation of a case, a public security authority shall ensure that the facts of a crime are clear and evidence is hard and sufficient… be transferred to the People’s Procuratorate at the same level for examination and decision.” At prosecution stage, rule 172 of Criminal Procedure Law states: “Where a People’s Procuratorate deems that the facts of a criminal suspect’s crime are clear, that evidence is hard and sufficient, and that the criminal suspect shall be subject to criminal liability, it shall make a decision to initiate a public prosecution…initiate a public prosecution in a people’s court.” At the trial stage, rule 195, paragraph 1 of Criminal Procedure Law states: “if the facts of a case are clear, evidence is hard and sufficient, and the defendant is found guilty in accordance with law, the collegial panel shall render a guilty sentence.” Rule 53 of Criminal Procedure Law explain “evidence is hard and sufficient”: (I) All facts for conviction and sentencing are supported by evidence; (II) All evidence used to decide a case has been verified under legal procedures; (III) All facts found are beyond reasonable doubt based on all evidence of the case. Accordingly, judicial explanation of detection organ, intensify the unity with standards of proof in guilty judge of the court. Rule 63 of People’s Procuratorate criminal procedure rules states: “After a People’s Procuratorate has concluded its investigation or public prosecution initiation of a case, evidence is reliable and sufficient.” The following practices should be adequate: (I) All facts for conviction and sentencing are supported by evidence; (II) All evidence used to decide a case has been verified

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under legal procedures; (III) All facts found are beyond reasonable doubt based on all evidence of the case. Rule of the program rules for the criminal cases handled by the public security organ states: “The case file transferred for examination and prosecution, the facts of a case are clear, evidence is hard and sufficient.” The following practices should be adequate: (I) All facts for conviction and sentencing are supported by evidence; (II) All evidence used to decide a case has been verified under legal procedures; (III) All facts found are beyond reasonable doubt based on all evidence of the case. Above all, legislation provide a unified standard of proof of investigative conclusion, public prosecution initiation and guilty sentence: “the facts of a case are clear, evidence is hard and sufficient”, and receive a positive response in practice, investigation organ and procuratorial organ emphasize, from the origin of the criminal procedure, according to the standard of proof of guilty sentence without exception, develop evidential investigation and public prosecution activities. The three major organs, three lawsuit stage pursue the goals of objective facts together, and regard putting unified standard of proof into effect as the key points of insuring judicial fairness. In 2014, the fourth plenary session of the 18th CCCP make a big decision, promoting reform of the litigation system under the trial centralism, investigation organ and procuratorial organ respond one after another: collect and investigate evidence strictly, standard of proof of investigation and prosecution should keep up with the standard of proof of trial. A comrade writes articles, indicates: under the trial centralism, the essence is carrying out the centre of judicial standard through the whole criminal procedure, the core is unifying proof standard in the criminal procedure.14 In our country, the stipulation of unified standard of proof in criminal litigation legislation, the implement and stress of unified standard of proof in juridical practice, basically, is the pursuit of objective facts from investigation centralism. Objective facts is ideality and goal of every judiciary, our criminal litigation system has preference for it especially. With the goal of exploring the facts, collection, investigation, application of evidence are required to be the level of the facts of a crime clear and evidence hard and sufficient. The original intention and wish are good, but unrealizable, and it goes against procedural laws. Firstly, the requirement of unified standard of proof goes against the rules of litigation cognition. Criminal procedure is a procedure which apply evidence to prove the facts, the procedure isn’t accomplishment, it’s a series of procedures which is collection, examination and supplement of evidence through the phase of investigation and examining prosecution, make full preparation, clarify and demonstrate to the judicators in the court finally. It’s a procedure from investigation to certification, during the process, the facts are increasingly clear, the truth are increasingly abundant. On the basis of the above, the activities of collecting evidence of investigation organ are investigation instead of certification, that is facts’ investigation activities, it’s a kind of active find of unknown facts and proposition.15 Specifically, in investigation activities, supposing a crime, through the application of compulsory measures 14 Shen 15 Chen

(2015, p. 5). (2014a, p. 254).

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and the expansion of investigation activities, carry out evidence collecting activities, in the end of investigating the facts and finding out the suspect. In the unilateral activity of investigating facts, all kinds of direct and indirect evidence collected by the investigators, only draw the outline of the basic shape of the case, it’s impossible to reach the level of the final standard. It’s impossible for investigation procedure to discard the dross and keep the finer part, eliminate the false and retain the true, high requirements of the investigation organs’ evidence collection, can only lead to abuse of investigation power, illegal evidence, false and erroneous case on the contrary. Examining prosecution is farther continuation of investigation, prosecutors find problems though evidence review and judgment, deeply investigating evidence by supplementary investigation, and that, prosecutors use legal thinking to further make up and perfect the facts of case according to the requirement of prosecution, but, still enslaved to the limitation of unilateral facts investigation activities, as well, to procuratorial organs, shouldn’t make high requests as guilty sentence. Entering trial stage, facts investigation is transferred to facts certification, in cases of presence of the prosecutor, the defendant and the trial, in complete certified procedure, through contradiction of the accuser and the defender, judicators’ listening to both sides, the facts are present, the highest standard of proof of guilty sentence is reliable. In a word, litigation activities have their special recognizing rules, the facts of case circulate through procedures, with the advance of the program, the facts are increasingly clear, the unified standard of proof goes against the litigant recognizing rules. Second, the requirement of unified standard of proof ignored the differences and functions between different procedures. Fact forms in a certain procedure space. In the society ruled of law, the procedures has the vital significance for the fact, it just like the both sides of river, which restricts the depth, breadth and the final direction of fact water flow in them. Procedure itself is conditions and limitation of a fact, different procedure has different functions and goals, the contents formed in the procedure are different. standard of proof corresponds to a certain procedure arrangement, only during a complete procedure arrangement, we can achieve the highest standard of proof. Investigation is the first procedure after the criminal lawsuit activity, the function of investigation procedure is to obtain evidence which related to the case in a timely and effective manner, to find out the facts and to fight against crime. In investigation activities, unless the compulsory measures of arrest, the powers of investigation are mandatory and unilateral, the facts and evidences are mostly one-dimension, it is difficult to achieve the highest requirements. Review and prosecution is the middle of the procedure connected with the investigation and the trial, the function is to review the cases of investigative termination, to determine whether the criminal suspect should be committed for trial. In Review and prosecution procedures, it is necessary to interrogate criminal suspects, question witnesses and listen to the opinions of the lawyers, the requirements of evidence review is higher and the facts are also more clearly than unilateral investigation procedure. However, the review and prosecution activity is still in preparation for prosecuting crimes, if prosecutors think that there is a larger possibility, they can initiate a public prosecution. In pretrial procedure, evidence investigation, seized a criminal suspect,

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review and prosecution procedures is unilateral and tortious, authorization and limitation of power are in parallel, fact-finding is limited, it is impossible to reach the highest requirements of evidence. The function of trial is to construct the facts, to apply the power of criminal penalty accurately in order to end the lawsuit, and give the conclusion. At the same time, especially, the procedural justice is emphasized in the trial, and it should protect the defendant’s right of obtaining trialed by court. In order to realize the function and goal, the design of the procedure in trial is the most complete in all, the judges can experience the trial and are centered. The both sides are equal, and the proof procedure is delicate. It is an ideal procedure space for the construction of the facts. Therefore, the highest standard of proof can be realized in it. In short, the function and goals of each procedure are different and evidence requirement also should be different. Again, the unified standard of proof further strengthened the central position of the investigation and weakened the authority of judicial judgment. We should adhere to the unified standard of proof in the investigation, the review and prosecution and the trial. At each stage, the investigators, prosecutors and judges for the fact can claim that they all have reached the requirement which evidence is hard and sufficient. Once their understandings are different in practice, especially judge think that the evidence of the case is not enough to be finalized, it is still hard to overthrow the prosecution and make a acquittal. Instead, as the investigation and the procuratorial organs will force judge to accept the legitimacy of the criminal investigation and reach a guilty verdict. the reason will be that they have reached the certificate standard of proof in investigation and prosecution stage. So the verdict is forced to leave room in the practice, the illegal evidence exclusion rule is difficult to come true. Moreover, the implementation of misjudged-case-investigating mechanism, the existence of various performance indicators in the judicial organs, the sanctions of state compensation make the court announce a verdict of “not guilty” difficultly. Statistics show that the rate of China’s verdict of “not guilty” is long-term zero, after the investigation and prosecution of the cases, it’s hard to announce aacquitted. Trial is lack of autonomy, the function of its error correction and relief is difficult to play. Obviously, the unified standard of proof will strengthen the central position of the investigation and aggravate the formalization of the trial, the authority of judicial judgment will also be wrecked a lot. Furthermore, the unified standards of proof further strengthen the pursuit of objective truth, and weaken the achievement of other goals. Investigation and review and prosecution activities are used to accuse crime and fight against the crime, and their persisting goal is to find out the objective truth. Unified standards of proof compel the whole prosecution to focus on the realization of the goal, pursuing of truth at all costs. In practice, it is frequent to extort a confession by torture, threat and induce the witnesses to testify and violate the legal proceedings to collect material evidences. With the background that putting rule of law into force, procedural justice, human rights protection and other valuable targets appeal increasing attention. The Fourth Plenary Session of the 18th Congress of the Communist Party of China explicitly pointed out that it was imperative to strengthen the judicial protection of human rights to prevent forced confession and illegal evidence collection from the source.

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The premise of achieving these goals is to unleash investigation organs, break the limitation of unified standard of proof, and respect rules of the lawsuit. Only in this way, can the pursuit of diversification of criminal proceedings come true. Finally, the unified standards of proof compress the defensive space, and inhibit the exercise of the accused individuals’ rights to defend. In criminal proceedings, the accusation and the defense are both important. The rights of defense are the most basic rights of the accused, including the rights of positive defense and negative defense. Positive defense right refers that the defendants have the rights to participate in litigation activities, putting forward evidences to prove their innocence and misdemeanor, cross-examination for the witnesses, and debating equally with prosecutors. The right of getting lawyers’ help has become a constitutional right of the defendant in many countries, which is an important guarantee of defendants to exercise the right to defend. Negative defense right refers that the individual has the right not to prove self-guilty by force, namely, having the rights whether to state the case and how to state. Defendants have fundamental rights to keep silent in the lawsuit. The judicial organs shall inform defendants and protect this right of the defendants. Because of the presence of the right to defend and fully exercise of the right to defend, the generation of defense evidences may increase the uncertainty of public prosecution consequences. The criminal justice of any country allows the existence of innocent rate to some degrees, otherwise, it is unfair that prosecution is everything. Therefore, it is a matter of course that evidences of initiating a public prosecution are slightly less than guilty verdict criteria, otherwise there’s no need of the defense system. Unified standard of proof means that the evidences for prosecution are hard and sufficient, achieving the standard of the guilty verdict. The defense in court hardly has the opportunity to change the facts and the exercise of the right to defend becomes dispensable, with defense having a negligible effect. Therefore, the implementation of unified standard of proof severely compress the defense space. Because of the inhibition the exercise of the right to defend, there is a close relation between quite low acquittal rate and defense effect in china. With the advance of the trial centralism and the improvement of legislations for defense system, the defense space in court will increase in the future and the legislations for unified standard of proof must be adjusted again.

4.2 The Establishment and Perfection of the Level of Evidence Requirements Under the Trial Centralism The trial is the center, the pretrial activities and trial activities are strictly distinguished, accordingly, in different stages, the evidence requirements or standard of proof should be different, only in this way, the fact-finding in the trial is strict and its finality can be highlighted. It makes the procedural activities to follow the requirements of its nature.

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Clear the Difference Between Evidence Requirements and Standard of Proof

In the Rules with the Evidence in Death Penalty Cases, the second rule is “The factfinding must be based on evidence”, it is the first time expressly establish the principle of evidence referee. It is deepen the principle that is “based on facts and take the law as the criterion”. Since the criminal procedure law was modified in 2012, the Supreme Court Interpretation of the provisions of article sixty-one is the fact-finding must be based on evidence. The article sixty-two is judges collect, examine, verify and affirm the evidences should be in accordance with legal procedures. The article sixtythree is evidence without the court investigation procedure such as present, identify, cross-examine to be verified shall not be used as the basis for finalized, except as otherwise provided by laws and the explanation. The Supreme Procuratorate rules of the provisions of article sixty-one is The People’s procuratorate report of placing a case on file, review of arrest, review of prosecution and case activities, to determine the case facts should be based on evidence. Some scholars pointed out accordingly, the principle of evidence referee of provisions in China legislation is carried out in the entire criminal procedure always, so, the use of evidence including investigation and prosecution activities also belong to evidence referee activities, should be applied to rules of the standard of proof as well. And then, there are other academic and practical departments’ comrades proposed to unify standard of proof of three stages, towards reflecting high standards and strict requirements of criminal proceedings on the truth and quality of evidence. This article thought, this is a misunderstanding. In China, criminal pretrial procedure, the investigative and the procuratorial organs make every litigation decision, the evidence has to meet certain requirements and reach a certain standard.16 But, The evidence requirements shall be consistent with the investigation and prosecution procedure, considering the procedure itself conditions and procedure goal, it is impossible to expect inner sense of investigators, and prosecutors to reach the highest level, as long as according to the acquired evidence, the possibility of suspect committing a crime more likely than not committing, or there is sufficient evidence to show that suspect do it, they can make conclusion of investigation or refer the case to trial. Here, the significance of distinguishing the evidence requirements and the standard of proof lies in: clear procedure space of the existence of the standard of proof, respect function and goal of different procedures, respect for the rule of the judicial activities. This unified standard of proof essentially means evidence requirements of the investigation, prosecution should be consistent with the standard of proof in trial. But as previously mentioned, because of the different procedure space, the cognition for the case is different. It is not realistic to be conformity. Fundamentally, evidence requirements and standard of proof are two different categories, there is a large difference in aspects such as existing field, target orientation, unified standard of proof in itself is false. First of all, Evidence requirements is a requirement for investigation, prosecution in order to find out facts, such activities is just a kind of unilateral evidence 16 Chen

(2014a, p. 260).

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collection activities, lacking of rebuttal and attack from another side, it doesn’t have condition to form a higher inner conviction. On the contrary, the standard of proof produced from facts proof activities, in the trial, the prosecution, defense and judge are all present, is the result of the argument and persuasion, especially can fully absorb the opinions of the defense, forming a powerful and targeted cross-examine and rebuttal for the prosecution’s evidence, let the judge from the angle of the inner conviction to judge on facts. Secondly, their goal orientation is different. Evidence requirement is a requirement for investigation, prosecution activity, demands investigators, prosecutors must master a certain amount of evidence in the process of finding out facts, performing their duties, can’t abuse their power and delay in performance of their responsibilities, preventing from infringing rights of suspects in investigation, prosecution activity. The standard of proof is the requirement for the prosecution, if they don’t reach the legal standard of proof, they will be lost. Meanwhile, the standard of proof also provides a measure of the scale for judge’s inner conviction, not meet legal standards, the conclusion isn’t reasonable and acceptable. After all, the standard of proof provides legal explanation for judgment’s legitimacy. Finally, the concrete requirements for evidence is different. Evidence requirements in investigation, prosecution activity is a requirement for investigators, prosecutors to find facts, so evidence requirements of pretrial procedure more focus on the consideration of factors of objective evidence, mainly through the external evidence elements to determine whether reached the statutory requirements. In addition, From the rule of finding out the facts of case, based on a series of the collection of evidence factors, to find the criminal suspect, finding out the facts of case is the rule for investigation and prosecution activity. The standard of proof is the highest requirement for the burden of proof of prosecution, and also the highest requirement for the level of inner conviction of the judge, which is a kind of subjective judgment of the inner conviction. Even if the objective factors of evidence are enough, the judgment based on the objective evidence elements can form the inner conviction or not is also unknown, these are two closely related and mutually independent links, conforming to the evidence requirements isn’t equal to reaching the standard of proof. Even if it has reached the statutory evidence requirements of investigation, prosecution, it should be examined in the trial. According to T the results of the trail to measure whether the defendant is guilty. So, the standard of proof ultimately comes down to subjective valuation, evidence requirements and the standard of proof can’t be the same, can’t be unified.

4.2.2

Specifically Amplify on the Level of Evidence Requirements

Along with the advance of the trial centralism, for procuratorial organs, whatever pretrial activities are, all need to be inspected on the court, as far as possible to improve the quality of handling a case, it’s necessary to collect and examine evidence solidly. But, the results are uncertain, setting higher requirements and the same as standard of proof is meaningless, even if the quality of evidence in the pretrial activities has reached the requirement of the trial, it also must be tested in the trial and make

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a decision. Against rules of litigation, set unified standard of proof artificially, the original purpose may enable the judiciary personnel to make efforts to improve the quality of handling a case, but its drawback is obvious, in order to achieve the socalled high standard, regardless of collecting evidence illegally and damaging human rights, we have already seen the lesson in the past judicial practice. Meanwhile, under the trail centralism, it’s difficult to kidnapping court through the unified standard of proof, overhead the trial, falsified the standard of proof. So, under centralism, starting from rules of litigation, rebuilding the level of system of evidence requirements. The level of evidence requirements refer to the evidence requirements of investigation, prosecution and the standard of proof should be progressive type-gradually increased. Specifically, the level of evidence requirements are as follows: Firstly, the requirements of evidence for investigative termination. As previously mentioned, the requirements for evidence in investigation, review of prosecution and trial should be an increasing level. The investigative termination was the last procedure of the investigation stage in which they review and summarize various investigation activities and work, and which is that the mark of investigation task has been completed. To determine the evidence requirements at the end of investigation, we should consider two aspects of the situation: On the one hand, correct and timely investigative termination can lay the foundation for initiating a public prosecution and proceeding the trail exactly. It can provide reliable basis and safeguard for punishing crime accurately and timely, protect the innocent, and the law shall not be subject to criminal people from criminal investigation, protecting citizens’ legitimate rights and interests. So, requirements on collecting evidence of investigation organs should be strict. On the other hand, as the lawyer’s intervention in trial early and the essentialism of court trial, some evidences can’t be obtained in the investigation stage, the standard of investigation can’t be equate with the evidence requirements of the investigative termination and the review and prosecution should be different from the standard of proof of the guilty verdict. Then, actually how to describe the evidence requirements? Some scholars suggested that the standard of proof in criminal procedure should be defined as five levels: the standard of proof for the criminal register is “reasonable suspects”; the standard of proof for the arrest is “there are hard evidences to prove”; the standard of proof for transferring to review and prosecute is “advantage of probability to prove”; the standard for initiating a prosecution is “clear evidence to prove”; the standard of proof for a guilty verdict is “proof beyond a reasonable doubt”.17 Among them, the standard of proof for transferring to prosecute is “advantage of probability to prove”. Actually, the advantage of probability to prove is refers to “the possibility of guilty” should be roughly fifty percent of conviction according to the evidence that the investigate organs have mastered. Secondly, the requirements of evidence for review and prosecution. Review and prosecution is to review and supplement for results of investigation activities. So, evidence requirement of it should be higher than the investigative termination. But, in fact, prosecution is just a kind of right of judicial claim, it can’t dispose the case substantively. Therefore, the standard of proof for prosecution should be between 17 He

(2001, p. 54).

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investigative termination and the guilty verdict.18 What need to be aware of when determining the evidence requirements for prosecution is that we should reduce the existing requirement of evidence for prosecution, which is favorable for procuratorial organs to realize its function. Because, procuratorial organs is an organ that actively, positively maintain the law and order. It should have the power to prosecute all the illegal criminals, to maintain the rule of law. But it should also be noted that affected by accusation function and its litigation stage, procuratorial organ’s determination at this time inevitably has some one-sided and bias. If the procuratorial organ masters this standard too widely, prosecutes a case which in insufficient for evidences, it will be not only a waste of judicial resources, and seriously damage the rights and interests of the parties. So, we must determine the proper standard of proof for prosecution. According to the regulations of the second paragraph of article 152 of the criminal procedure code in Germany, “procuratorial organ, when on the basis of sufficient facts, has the obligation to act for all can be investigated on criminal behavior.” The conditions that the prosecutor should have to bring up a public prosecution, Japanese law exists controversy. At present, the mainview argue that prosecutors must have certain evidence to prosecute, prosecutors don’t have evidence of guilty or the evidence is very inadequate to prosecute, which is the behavior of abuse power. But not necessarily to reach the standard of proof for guilty verdict. In practice, the requirement of evident is commonly the criminal suspect. And according to the certain evidence, there is a considerable degree of certainty suspect that may make a guilty verdict. In Anglo-American evidence law, according to the degree of certainty required of proof, there is a total of nine grades from high to low of the standard of proof, among them the standard of prosecution is “reasonable basis”.19 In conclusion, in the future, the evidence requirement for prosecution should be defined as “there is sufficient evidence”, that is based on available evidence to prove the defendant’s guilty, according to the percentage, it should be roughly seventy percent for the evidence. As for whether the defendant is guilty or not, only in the trial stage, after the cross-examination of the prosecution and the defense, it can be determined. So, it is different from the t standard of proof for a guilty verdict. Of course, after establishing the requirement, we should also need to establish the judicial review procedure in our country, in order to prevent prosecutors abusing the power of prosecution. Finally the standard of proof for a guilty verdict. In the progressive level of evidence requirements, the standard of proof for a guilty verdict is located in the highest point. Obviously, in the trial, there have the conditions for fact-finder the forming subjective evaluation, in the process of confrontation of both sides, whether the judge formed the subjective evaluation and the degree of the evaluation for the defendant’s guilty, according to the standard of proof to measure. The standard of proof is an subjective judgment, the judge make sure that it is existence or it is not. When the judge can’t be sure if it is existence or not, he should give an innocent verdict, and that is innocence presumption. In 2012, in criminal procedure law, retaining the standard of proof: in the facts of a criminal suspect’s crime are clear, 18 Li

and Wang (2001, p. 126). (1999, p. 301).

19 Long

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that evidence is hard and sufficient, and interpreting the standard of proof as “beyond a reasonable doubt”, realizing the change of the standard of proof from objective evidence requirements to the subjective evaluation. This paper argues that the change is very important, as mentioned above, the standard of proof is the minimum line of fact-finding, it is a judgment of the judge who experiencing the trial and hearing the confrontation of both sides by himself, out of subjective judgment, completely putting the standard of proof into requirements of objective evidence elements can only lead tousing the standard of proof rigidly, and can’t manifest the particularity and the authority of justice. At present, admitting the subjectivity of the standard of proof during the trial, then designing system and procedure to regulate the subjective evaluation on this basis.

4.2.3

The Guarantee of Hierarchies Requirements of Evidence

The use of evidence needs to rely on certain procedures. The unified standard of proof is suitable with the investigation centralism. The realization of the hierarchies requirements of evidence needs the guarantee of trial centralism. At the same time, it also needs to establish the necessary procedure division mechanism, in order to avoid the other problems. Firstly, carry out the trial centralism, realizing the substantiation of the trial proof. The unified standard of proof is suitable with the investigation centralism. In order to realize the hierarchies requirements of evidence, we must change the investigation centralism. Under the investigation centralism, the investigation is at the heart of the whole process of criminal procedure, the evidences obtained in the investigation are often the direct foundation of a judgment, and the quality of the investigation decides the quality of the judgment. Investigation file centralism is the direct embodiment of investigation centralism, a judge’s fact-finding are mostly based on interrogation, witness’s testimony, as well as the expert opinion collected and obtained by the investigation organ, an inquest or examination record and material evidence, documentary evidence and some other evidences, which are all reflected in the file. Under the investigation centralism, the function of the review and prosecution and the trial has been severely weakened, even if the evidence is not complete, omissions, and even serious illegal flawed, the follow-up processes are also difficult to deny. The review and prosecution procedures becomes the intermediate links, of which strengthen the investigation functions. A lot of the decisions of whether to prosecute or not are enslaved to the needs of fighting the crime. The court proof is formalized, and standard of proof is unpractical. Trial procedures become the typical procedures of confirming the result of the investigation, lacking of the autonomy which can’t form effective review and restriction. under investigation centralism, the facts are fixed in the investigation, and being flowed into court trial directly through the review and prosecution, the three phase apply unified standards, all makes sense. The legislation of unified standard of proof strengthened the investigation centralism, investigation centralism covered up the complexity and diversity of the procedure,

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killing function of the trial’s formation the facts, strengthening the unity of standard of proof. In conclusion, investigation centralism must be changed in practice, and which provide an appropriate procedure space for the realization of the hierarchies requirements of evidence. Under the trial centralism, on the one hand, we should relocation the relationship between investigation, prosecution and trial, make the trial activities as the center, and so that the investigation and prosecution serve to the trial, which is determined by the trial. On the other hand, we should strengthen the substantiation of the trial. According to the requirements of the fourth plenary session of the eighteenth, carry out the system of the witness to appear in court, increase the defense rate in court, in order to prevent walking through the procedure in court, increase the number of sentence rate in court. Only under the trial centralism, realizing the substantiation of the trial, the facts can be constructed through the proof of the trial which is on the basis of the evidence collected in investigation and prosecution, and a higher standard of proof can be reached, and the hierarchies requirements of evidence can be carried out. Secondly, establishing the system of leniency on the basis of the defendant’s pleas of guilty, realize the procedure division. With the distinction of the requirement of evidence of the investigative termination, prosecution and the standard of proof of guilty verdict, which means that a large number of cases which did not reach the standards of proof of guilty verdict inflow into the trial. Even after the trial, it is still hard to achieve the standard of guilty verdict, and cannot be condemned. So, it is bound to have the following consequences: first, increasing the judicial cost and effort. A large number of cases which did not reach standards of proof of guilty verdict inflow into the court, wasting the judicial resource, making the situation that many cases but insufficient staff worse. Second, the innocent judgment rate will increase, which aggravates the social contradictions and makes victim dissatisfied. Under the judicial independence, maybe there is another possibility that the court was kidnapped and the unjust case was formed which is unthinkable for the consequences. Finally, it also may increase the cases of the remand for retrial. The caseload in the trial is the upstream problem of the caseload of retrial, which will inevitably increase the caseload of retrial. At the same time, if the court trial can not ensure the quality of the case well, it can also cause the retrial, which will waste the judicial resources and do harm to the judicial authority. In conclusion, with the distinction of the requirement of evidence of the investigative termination, prosecution and the standard of proof of guilty verdict, we must establish the system of leniency on the basis of the defendant’s pleas of guilty. The defendant’s pleas of guilty is a kind of legal act, which may make the defendant obtain considerable interest in return from the substantive law and procedural law respectively. On the substantive law, giving the defendants’ pleas of guilty to lenient punishment is the criminal policy in many countries in the world. Because it can save the judicial resources effectively if the defendants giving up their part of the litigation rights and substantive rights for the country. On the procedural law, the defendants’ pleas of guilty can end the procedure rapidly and timely, the cases of the defendants’

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pleas of guilty should adopt the simple procedure which is the widespread practice of criminal lawsuit system in various countries. On the issue of the standard of proof, simple procedure and common procedure should have obvious differences. In general, the standard of proof in the simple procedure is significantly lower than the common procedure, because of the simplify of the procedure and the defendant’s pleas of guilty, it is hard to reach the higher subjective evaluation and it is not necessary. The simple procedure provides an outlet for the cases that flowing into the trial but not reaching standards of proof, and which can largely avoid above-mentioned problems. Recently, the supreme people’s court, the supreme people’s procuratorate has set 2016 key points of judicial reform, of which is the exploration of the different standard of proof for the cases of the defendants’ pleas of guilty, difference of the severity of the crime and other different types of cases. Carrying out the system of leniency on the basis of the defendant’s pleas of guilty in some places. The reform conforms to the distinguish between requirements of evidence and standard of proof, which can provide the necessary safeguard mechanism from the procedures for its implementation.

5 Conclusion: Realizing the Legitimacy of the Judgment Through the Proof Standard The litigation is emerged for resolving the dispute, however, the solution of the dispute can not accomplish in an action, it should realize in a certain procedure. Procedure bears the mission of resolving disputes, it will also influence the effect of resolving disputes to some extent. The fact for the judgment formed in a certain procedure space, the start of the proceedings means that the start of searching for the facts, through the facts fragments to the panoramic view, the facts of case become gradually fresh and clear. However, the formation mechanisms of the facts are different under different procedure structures, which have different influences for the judgments. From the investigation centralism to the trial centralism, it is an important change for fact formation mechanism, which will cause a series of reforms for the standard of proof in the legislation and practice of criminal procedure. The standard of proof will also regress the subjectivity evaluation while judicial activities returning to the nature of the justice. Along with the regression of the subjectivity for the standard of proof, the legislation and practice of the unified standard of proof will collapse, it is inevitable to establish the hierarchies standard of proof. It is the change from the investigation centralism to the trial centralism that caused the author’s reflection for the function of the standard of proof. Does the standard of proof solve the truth of the case facts or the legitimacy of the judgment? Since ancient times, the standard of Proof is the subjective standard, meeting with this legal standard, the judgment has its legitimacy. Under different evidence systems, the legitimacy of judgment resorts to different evidence requirements, the revelation of god, the requirement of the evidence’s quantity, returning to the subjective itself,

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and resorting to subjective evaluation. In our country, under the trial centralism, proof is an open process, which is supported by evidence and guaranteed by procedures, after the tortuous exploration, the standard of proof returns to the subjective itself finally, facing with the problem that how to realize the subjective evaluation.

References Bayless, Michael D. 1996. The Principle of Law, trans. Wenxian Zhang etc., 37. Encyclopedia of China Publishing House. Chen, Ruihua. 2012. Research on the Rule of Objective Verification. Studies in Law and Business 2. Chen, Ruihua. 2014a. Criminal Evidence Law, 2nd ed., 254, 260. Peking University Publisher. Chen, Ruihua. 2014b. The Relationship Between the Subjective Factor and the Objective Factor. China Legal Science 3: 179–181. He, Jiahong. 2001. Research on the Aim and the Standard: Also on the Basic Concept and Category. Peking University Law Journal 6: 54. Huang, Maorong. 2001. Method of Jurisprudence and Modern Civil Law, 243. China University of Political Science and Law Press. Li, Xuedeng. 1992. A Comparative Study of Evidence Law, 464. Wu-Nan Book Publishing Company. Li, Xuekuan, and Haiyan Wang. 2001. Research on the Hierarchies of Standard of Proof. China Legal Science 5: 126. Long, Zongzhi. 1999. Research on the Relative Rationalism, 301. China University of Political and Law Press. Long, Zongzhi. 2004. The Objective Verification and the Subjective Evaluation: The Two Kind of Pattern of Criminal Proof. Chinese Journal of Law 2. Min, Chunlei. 2015. The Trial Centralism: The Understanding of Its Connotation and Realization Rath. Science of Law 3: 42. Murphy, Peter. 1997. Murphy on Evidence, 6th ed., 109. Blackstone Press Limited. Shen, Deyong. 2015. On the Reform of the Litigation System of the Principle of Trial Centered Criminal Procedure. China Legal Science 3: 5. Wu, Zeyong. 2014. ‘Justice’ or ‘Utopia’?—Civil Procedural Proof Standard in Comparative Perspective. The Jurist 3: 150, 158.

A Philosophical Analysis of Different Types of Standards of Criminal Proof Hongbo Zhou

1 Foreword Almost everyone knows that in the traditional theories and practice of Chinese criminal procedure, in order to show the advantages of socialist legal system and due to the idealist expectation, the Chinese people in a long time stuck to a standard of criminal proof different from and higher than those of Western countries.1 They held that the standard of criminal proof in Chinese procedure law, expressed as “The facts of the case are clear and the evidence is irrefutable and sufficient”, requires that proof for a conviction should reach “objective truth” or “absolute truth”, so that the final decision can bear any examination. Meantime, they said that the common standards of proof in Western countries, whether “inner conviction” or “beyond a reasonable doubt”, require “subjective truth” or “relative truth”, thus can not avoid misjudged decisions.2 However, in the past decade, although there were still some scholars insist on the traditional standard of proof,3 there appeared an obvious academic trend questioning the traditional view. Skeptics hold that it is impossible to reach “objective truth” or “absolute truth” in the proof of any procedure, and it is simply self-consolation. Therefore, we must look squarely at the fact that people can only reach “subjective truth” or “relative truth” in proof, and China should borrow from Western laws to restate and re-interpret our standard of proof for conviction. In order to prove the profoundness and correctness of their opinions, Chinese scholars usually cite some philosophical theories to support their points. However, 1 Here, the idealism of the law is that the law should be able to achieve the best results and complete

justice. This differs from Western countries traditional wisdoms that that, as Rawls says, due to many limitation of factors, the criminal justice can achieve only an incomplete justice. 2 See Fan (1991, pp. 190–203). 3 See Chen et al. (2001). H. Zhou (B) Southwest University for Nationalities School of Law, Chengdu, China © China University of Political Science and Law Press 2021 B. Zhang et al. (eds.), Facts and Evidence, https://doi.org/10.1007/978-981-15-9639-1_20

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both supporters for traditional standard of proof and their opponents misuse and abuse philosophical theories. Undoubtedly, the ideology of “objective truth” or “absolute truth” is a historical burden that we need to get rid of in the reform of our criminal procedure, and we should no longer use it as the lowest standard for fact-finding, because the proof of most facts can not reach this standard, and actually the guilty proof in many crimes in China has never reached such standard. However, it is not right to attack the traditional standard of proof by the reason that it is impossible to reach “objective truth” or “absolute truth” in any procedure, because such opinion neglects that in some situations, people can attain “objective truth” or “absolute truth”, and it neglects that “objective truth”/“absolute truth” and “subjective truth”/“relative truth” are actually two types of truth in epistemology. Such opinion is contrary to common sense, but it is not easy to keep it at distance in academic arguments, because it seems that it can gain philosophical support. Although philosophical theories may prove that we can achieve objective truth under certain circumstances, it does not mean that we can use objective truth as our standard of criminal proof. Supporters of traditional position mostly use the theory of knowability in dialectical materialism to defense themselves, but their view can not meet the need of judicial practice, and their philosophical basis is questionable. Philosophy is abstruse to many people. Hence, people are perplexed by the philosophical mist in their debate about the standard of criminal proof in china. In view of this, this article tends to clarify the essential differences between the standards of criminal proof in China and Western countries, and to point out their misunderstanding and misuse of philosophical theories, so that people can study some new and more important issues on this basis.

2 Differences Between the Chinese Standard of Criminal Proof and Those of Western Countries Proof of facts in a judicial procedure is to prove past facts rather than current acts. In other words, it is to make retrospective inference and judgment about past facts. Sometimes the result of proof is inner conviction, while sometimes it isn’t inner conviction but simply a conclusion of possibility. The rule in dubio pro reo (no punishment in doubtful cases) is a basic rule in modern criminal justice, it requires the fact-finder to form inner conviction about the guilty facts. Hence, in order to explain the differences between the Chinese standard of proof and the those of Western countries, we need to discuss the types of inner conviction. Conviction of facts can be divided into two types: one is the so called objective conviction, a conviction of absolute truth that can’t be wrong and is also called “objective truth” or “absolute truth”. For example, with the fingerprint left by the defendant, we can say for sure that the defendant has ever been at the crime scene; with a surveillance video we can know for sure that a robbery has happened at a bank…Another inner conviction is reasonable conviction. It means a reasonable conclusion that is not absolutely true,

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because such a conviction is formed partly through speculation of the fact-finder, thus it may be untrue. So we call such conviction “subjective truth” or “relative truth”. For example, sometimes although we know that a witness may have lied, we are willing to think his testimony to be true. The former conviction corresponds to the Chinese standard of criminal proof of “objective truth” or “absolute truth”, and the latter conviction corresponds to the Western standard of criminal proof of “inner conviction” or “beyond a reasonable doubt”, which is usually marked by the Chinese academic circle as “subjective truth” or “relative truth”. Such differences of comparative law can be clearly explained through the discussion of the following case: the police in a Chinese city stopped a man riding a bicycle at midnight, and found a naked woman’s body in a sack on the rear of the bike. The man explained that he saw the sack on a rubbish dump and thought there might be something valuable in it, so he planned to take it home to have a look, but he had no idea of the naked body. The police didn’t believe his “bullshit”, and took him to the police station for interrogation. After the interrogation, the man admitted that he had raped and killed the woman. However, the defendant later changed his testimony at court trial, saying that he was forced to admit his “crime” by torture during interrogation. By interviewing the personnel of the detention house, the judge concluded that the defendant had been tortured during interrogation. The court finally sentenced life imprisonment. In a forum of evidence law between Chinese and American scholars, an American judge said that the judgment was correct, because no one would take a body at midnight except an undertaker. Although the reason provided by the defendant was not impossible, such possibility was not a reasonable doubt before there was evidence to prove it. However, some Chinese scholars held that the conclusion was not exclusive, thus the defendant should not be convicted.4 Obviously, the American judge thought that there was a reasonable conviction of guilt, while the Chinese scholars thought there wasn’t an objective conviction of guilt. The Chinese judge sentenced life imprisonment not because he had formed an objective conviction of guilt, but because he applied a strategy of “a light sentence in a doubtful case” which is often seen in Chinese criminal justice.

3 Misuse of Skepticism About the Self-Explanatoriness of the Subjects of Cognition As to the question whether the subject of cognition can be self-explanatory, there are some famous questions. Such as the “Demon Argument”—is all we see in the world a false impression and a fraud used by a demon to achieve our confidence? “Brains in a Vat”—how can we know whether or not our brains are kept in a vat controlled by an evil scientist with scientific instruments? “Zhuang Chou Dreaming a Butterfly”— whether it was Chuang Chou who dreamed about a butterfly or whether a butterfly dreamed about Chuang Chou…According to such skepticism, what people think is 4 See

Chen (2002).

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true—whether their knowledge of present facts or their knowledge of past facts—is “subjective truth” or “relative truth”. However, commonsense is not bothered by such ontological questions. An person is self explanatory in cognition, one believes that he can know whether he is clear-headed in life and his mind is not controlled by a demon or a machine. Although there’s no reliable philosophical answers to such questions, and people can only use David Hume’s Belief Theory (people depend on their belief rather than transcendental logical proof to believe and accept reality) to defense against such challenge—which Kant regarded as “a shame to philosophy and human reason”, people generally use them as a way to train our minds, and don’t use them to test the correctness of our daily cognition. Obviously, people are optimistic about their self-explanatoriness in their proof in litigation. Because no matter how well people can prove past facts, people at court don’t doubt the progress of litigation. On rare occasions people who doubt whether proof can attain “objective truth” or “absolute truth” use such extreme skepticism to support their argument, mostly people use common sense as the basis for their argument. Therefore, we can’t use skepticism to discuss the truthfulness of proof.

4 Misuse of Dualism of Subject and Object As a normal form of thinking, dualism has long existed in the Western ontology philosophy. It holds that subject and object are two different types of existence, and there is a insurmountable gap between the two. Thus what we see is not the world itself (noumenon), but its appearance (phenomenon). For example, the world in human eyes is different from that in bat eyes, so we say what people see is not the world itself. According to dualism, “noumenon” is transcendental “existence”, experience derives from it and is the “shadow” or “copy” of “noumenon”. Hence, dualism often regard transcendental existence as “pure object” or “objective fact”, and regard experience knowledge as “experiential object” or “experiential fact”. “Objective fact” is self existence (it can never be directly faced and observed), while “experiential fact” is a fact under human observation. Because what people can observe is a kind of “phenomenon”, we can say that the so-called objective fact we have observed in daily life is subjective or relative fact, is “subjective truth” or “relative truth” of ontology. Even so, however, we can still separate noumenon from phenomenon, and discuss the cognition of phenomenon alone. Like some scholars say, the reality forms a kind of phenomenon in bats’ eyes and forms another kind of phenomenon in human eyes, and we always talk about truth and falsity at certain image level. Although we can only observe the phenomena of the world, at certain image level, there can still be “absolute” truth and falsity.5 Therefore, we can obviously discuss the truth or falsity of proof in litigation on the basis of the existence or non-existence of phenomenon. It can be said that under certain conditions, proof in litigation can achieve “objective

5 See

Chen (2001, p. 153).

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truth” or “absolute truth” concerning the existence of phenomenon. And the socalled “subjective truth” or “relative truth” in proof in litigation means that there is a reasonable conviction that certain phenomenon should exist or ever existed, but such conviction might be wrong. In this sense, it is improper for some scholars to deny “objective truth” or “absolute truth” in proof in litigation and see Western standards of proof as “subjective truth” or “relative truth”.

5 Misuse of Theories About Fragmentary Cognition and Ambiguity of Facts According to many philosophers, facts are judgments of phenomenon in words. Thus what we call facts is not simply experiential phenomenon, but a “combination” of experience and language.6 In this sense, phenomenon has several important characteristics: one is the artificial fragmentariness of cognition. In other words, people always observe the world with certain targets or at certain angles of view, and when judging a specific fact we use words to “intercept” certain fragments or parts of the phenomenon, but not reflect the whole body of the phenomenon. That is to say, our cognition of phenomena is always partial and limited. For example, in a theft case, the statement that “the defendant has stolen 20,000 from the victim” can only reflect quite limited phenomena, because it can not reflect the kind of money, the color the defendant wore when committing the crime, the way he entered the victim’s room, etc. Another characteristic is the ambiguity of facts. The “boundary” of facts is established by artificial language,7 thus the boundaries of facts are often indistinct. Of course, in the sense of artificial fragmentation of cognition, we can say that any judgment of facts is “subjective truth”, and in view of the ambiguity of the boundary of facts we can call such judgment “relative truth”. Some scholars apply this cognitive theory to question the argument that people can achieve “objective truth” or “absolute truth” in proof, and further argue that we can only achieve “subjective truth” or “relative truth”. This is not a correct argument, because proof in fact-finding concerns the existence or non-existence of certain phenomenon, rather than the wholeness of facts or whether the boundaries of facts are clear. In view of this, the so called “objective truth” or “absolute truth” in the Chinese standard of proof requires people to prove whether certain facts exist or ever existed, but not the exact details of each fact, and the so-called “subjective truth” or “relative truth” in Western standards of proof means a reasonable belief in the existence or non-existence of certain facts.

6 See 7 See

Jin (1983, pp. 608, 738–748), Peng (1996, pp. 124–125), Chen (2001b, pp. 173–182). Chen (2003, pp. 393–396).

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6 Misuse of the Philosophical Theories on the Subjectivity of Language in the Description of Facts In modern philosophy, the two frequently mentioned aspects concerning the subjectivity of language in the description of facts are: First, although we use words to describe experiential objects, the meaning of the words doesn’t come from the experiential objects. For example, Saussure holds that concepts are established through distinctions8 ; Wittgenstein holds that a word is its usage in a language9 ; Foucault thinks that the meaning of a word is affected by the specific context.10 Second, description of a phenomenon in words is always an interception of the phenomenon, but not a reflection of the whole phenomenon. Description in words is always targeted. Due to these two aspects of subjectivity, Mr. Chen Jiaying says that the function of a language lies not in the “reflection” of the world, but in the “reaction” to the world.11 Such subjectivity of the language used to describe facts is actually subjectivity in an ontology sense. The definitions of cognitive objects are determined by humans rather than the objects themselves. Even so, philosophically people often say that language brings about epistemological objectivity in fact-finding. Many “subjective feelings” are unique, they can’t be the same between different people. However, language is a “common experience” or “neutral experience”.12 A specific linguistic community can form “objectivity among subjects” in the description of facts, and form the language norms for the description of facts by any member of the community. Due to the subjectivity of language, we can call the judgment of facts “subjective truth”. However, it is wrong for many people to say that all the proof in criminal procedure is subjective truth, because proof in litigation is to prove the existence or non-existence of certain phenomena, but not the definition of those phenomena. The subjectivity in the judgment of existence or non-existence of a phenomenon means that the conviction in the existence or non-existence has some room for subjective discretion.

7 Confusion Between Facts and Values and Misuse of Theories on the Subjectivity of Values There are a lot of debates about the relationship between facts and values. In the history of modern philosophy, positivism has long been the main stream. It holds that facts and values are two different fields. The former is the description of physical/natural domain while the latter is an emotional/cultural evaluation. However, 8 See

(Switzerland) de Saussure (1999, p. 103). Wittgenstein (2000, p. 31). 10 See (France) Foucault (1998, pp. 23–95; 2001, pp. 103–164). 11 See Chen (2003, p. 188). 12 See Chen (2003, pp. 358–360). 9 (English)

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such positivism which separate facts and values is challenged frequently. The idea that facts and values are entangled has become a popular philosophical view. For example, a historian “describe” some Roman emperor to be “cold-hearted”, and this description actually contains ethical evaluation.13 Hence, philosophically people often say facts are subjective due to such entanglement. On the other hand, even facts and values are entangled and values are subjective, some philosophers point out that the descriptive aspect and the evaluative aspect of a fact can be handled separately as different questions.14 For example, when describing some Roman emperor as “cold-hearted”, we can ask in an analytical way: what “behavioral facts”—such as he “had killed numerous lives”—has led to the evaluation of “cold-hearted”? It is necessary to separate fact and value analytically, because without facts, there would be no evaluation, and one can’t replace fact judgment with value evaluation. Hence, although facts are often entangled with values, we can still separate facts and values in analysis. It is misleading to say that all fact judgments are “subjective truth” because facts are entangled with values.

8 Misuse of the Probability of Inferential Propositions There is a well known idea in philosophy that all universal propositions are probabilistic. One famous example is that even all the swans one has seen are white, he can not conclude that all swans in the world are white. Many arguers argue in this way. They hold that since proof in litigation is to establish an inferential relationship between evidence and facts to be proved according to universal propositions, so all results of proof in litigation are probabilistic, i.e. “relative truth”. This argument is incorrect because the propositions applied in the proof in litigation are “general propositions” (see Yuelin Jin) rather than “universal propositions”.15 The concept of “general proposition” raised by Professor Yuelin Jin is similar to the concept of “accidental generalization” proposition raised by Hemple.16 The use of the concept “general proposition” can well distinguish itself from other types of propositions. It is not the special positions we usually use to describe facts, or the universal propositions without time or space limit. It is in the middle between the two, such as “People in the Qing Dynasty had pigtails” and “all stones in this box have iron content”. Experiential cognition contains both induction and deduction.17 Even according to the induction theories of empiricism, the universal propositions without time and space limits are all probabilistic. As to the “general propositions” limited to specific time and space, some are probabilistic and some are necessary. We say that many “general propositions” can be necessary propositions because induction at certain 13 See

(US) Putnam (2006, pp. 37–53). (US) Putnam (2006, pp. 20–21). 15 See Jin (1983, pp. 836–837, 872). 16 See Peng (1996, pp. 145–150). 17 See the (US) Rand (2007, p. 23). 14 See

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time and space can be complete induction.18 Undoubtedly, in the proof in litigation, people can usually establish an inferential relationship between evidence and facts to be proved according to necessary “general propositions”, and form “factual convictions”, i.e. the objective conviction. For example, when charging a defendant for robbery with a surveillance video of the bank, if the defendant argues that “the video is faked by the police”, usually people can firmly believe that the defendant’s defense is contrary to the “objective facts”. In this example, people’s apply some necessary “general propositions” to make their judgments, for example, “video can’t be faked”. Such “general propositions” are necessary because they can be complete induction with certain time and space limits. In other words, at a special time and in a special space people are not able to fake a video. Of course, a conviction formed by probabilistic general propositions can only be a reasonable conviction. It should be pointed out that both Chinese and Western scholars often make such mistake in saying that since universal propositions can also be probabilistic, proof in litigation can only achieve “relative truth” or “subjective truth” (because in probabilistic judgment there is subjective speculation).

9 Misuse of Other Philosophical Theories During the debate about the Chinese standard of criminal proof, both supporters and discommenders of the traditional position try to use some kind of philosophical theory to support their views. They tend to think that different philosophical theories determine different positions on the standard of proof. Supporters of traditional position generally think that if one accepts dialectical materialism, he should accept objective truth or absolute truth as the standard of criminal proof, because the epistemology of dialectical materialism is knowability which holds that the world can be known. On the contrary, discommenders of the traditional position base their views on empiricism, pragmatism, hermeneutics, postmodernism, etc. They think that according to these philosophical schools, proof in litigation can only achieve “subjective truth” or “relative truth”. The practice to classify standards of proof into different philosophical schools is misleading, because the debate between philosophical schools has nothing to do with the choice of standard of proof. The division of philosophical schools derived from different answers to such questions as whether the world we see is the world itself, what is the relationship between phenomena and the world itself, whether we can know the world itself. Different from such questions, proof in litigation needs to prove whether certain phenomena exist. Ayer points out that it is a basic question of Western philosophy whether and to what extent can we describe things disregard the relationship between such things and us, and the different answers to this question determines the differences between various philosophical schools.19

18 See 19 See

Zhang (2005, pp. 160–161). (English) Ayer (1987, p. 7).

A Philosophical Analysis of Different Types …

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The differences between various philosophical schools mentioned by Ayer is basically an issue of ontology rather than an issue of epistemology. What Kant tried to do was, on the one hand, to limit the ability of reason (not able to know the world itself), on the other hand, to maintain the dignity and confidence of reason (able to know the world itself). In this sense, we can put aside the ontology questions and only discuss the certainty and truthfulness of epistemology at phenomenal level. If so, there would be no essential gap between different philosophical schools concerning the cognition of phenomena and the nature of proof in litigation, all will agree to discuss the issue of truth within the range of science and common sense, and all will agree that there are two types of conviction—objective conviction and reasonable conviction. For those who apply dialectical materialism to defend our traditional standard of proof, they should realize that dialectical materialism does say that the world can be known by us, but it does not say that we can obtain objective conviction at any time about anything, nor does it say that the determination of any fact (including convicting facts) should be based on objective conviction. For the discommenders of our traditional standard of proof, however, it should be pointed out that their theoretical basis, such as empiricism, pragmatism, hermeneutics, postmodernism, etc., does contain agnosticism and subjectivism, but they are in an ontological sense, saying that the noumenon of the world can not be known. We can not, based on such theories, say that the standards of proof in Western countries are “relative truth” or “subjective truth”. What should be explained here is, the philosophy of pragmatism, which is favorable to many scholars, has two types of “pragmatism”: one is the pragmatism of cognitive objects. We only need to know useful objects (phenomena) and don’t need to know useless objects (noumenons). In this aspect, it is not different from other modern philosophical schools; another is the pragmatism in the reasons for actions. We don’t need to have an absolutely certain cognition as the basis for our actions. And this is no longer a pure epistemological argument, but a choice of value.

10 Conclusion: New Issues Needed to Be Studied Through the philosophical analysis above, we have made clear that the long-held position about the criminal standard of proof in China not only is an ideological slogan, but also has essential differences from the standards of proof in Western countries. This leads to some new aspects need to be studied: First, what are the differences between the two types of inner convictions in epistemological logics or approaches to proof? We all know that different targets determine different ways to the targets, so there must be significant differences in the epistemology and approaches to proof between the two types of conviction. For example, objective conviction and reasonable conviction have different scopes of evidence. The former scope of evidence is surely smaller than the latter one, because some evidence does not have the potential or real ability to accomplish objective conviction. For example, character evidence can often help people judge

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the truthfulness of witness testimony, but can not guarantee absolute credibility of judgment. It is very important to conduct research in this field. Second, what legal effects will the different approaches to proof corresponding to the two types of conviction produce? Different approaches to proof usually match different legal procedures. For example, if we can not judge the truthfulness of a testimony according to the performance of the witness at court, there’s no need to require the witness to appear at court; if we must determine a fact by objective conviction, we can’t determine case facts in a way in which the minority is subordinate to the majority…There are many issues to be studied in this field. Third, can we look at the differences between Chinese and Western criminal procedures and the premises for the reform of Chinese criminal procedure from the angle of legal effects of approaches to proof? With the results of the former two aspects, it will be easy to accomplish this research. For example, the low rate of witnesses appearing at court is not due to lack of protection measures, but due to lack of necessity for their appearance. I have published some preliminary researches in the above three aspects. I’m not going to talk about them in detail here, but undoubtedly, my research is quite limited, and I genuinely hope there could be more scholars who will participate in the discussion of these issues.

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