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The search for El Dorado

The rationalist conception of evidence and the formulation of precise and objective standards of proof
Raymundo Gama
This article is a translation of:
En búsqueda de El Dorado [es]

Abstract

This paper examines the rationalist conception of evidence as advocated by Jordi Ferrer and its proposal to formulate precise and objective standards of proof. First, three concerns are raised about the characterization of the rationalist conception as discussed in: i) its historical background, ii) its defining features, and iii) the contrast between a rationalist conception that focuses exclusively on evidence and a persuasive conception that focuses on the beliefs of the trier of facts. Second, it is argued that the search for an objective and precise standard of proof should be abandoned, both because it is futile and because it contradicts the probabilistic nature of evidential reasoning. Finally, it is suggested that an adequate theory of the sufficiency of evidence should be able to accommodate and explain (a) the current formulation of standards of proof notwithstanding the problems of subjectivity and imprecision, (b) a rigorous analysis of evidence that includes both an individual and an overall evaluation of evidence, and (c) the beliefs of the trier of facts. I argue that a theory of evidence should integrate evidence and persuasion as two basic components of evidential reasoning.

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1 Introduction

  • 1 See Lucerna 1986.

1Soon after the Spaniards reached South America in the early 16th Century, a story about a golden city hidden in the depths of the Amazon jungle began to circulate. As the explorers advanced, they formed expeditions to find the lost city. They encountered a series of misfortunes, some pieces of gold, but no trace of the golden city. Some testimonies suggested that El Dorado was a person, rather than a city.1 According to these testimonies, the ceremony to appoint the new Muisca Chief took place at Guatavita Lake in what is now Colombia. The new chief was covered in gold dust and sailed into the center of the lake on a wooden raft. Standing in the middle of the lake, the cacique threw some pieces of gold and emeralds into the water, while chanting some words. He then washed himself with some plants and all the gold that covered his body fell into the water. The explorers were captivated by this story and attempted to drain the lake several times without success. The quest for El Dorado continued for five centuries. All attempts were in vain.

  • 2 Ferrer 2007 and 2019.
  • 3 Ferrer 2019: 254.

2In evidence scholarship, some jurists set themselves the task of finding a precise and objective standard of proof. The standard of proof indicates the level of sufficiency of evidence required to consider a fact proven. The most developed attempt to formulate precise and objective standards of proof in Continental Law has been put forward by Jordi Ferrer.2 According to Ferrer, the standard of proof represents a cornerstone for a rational system of proof: “A system without standards of proof is a system without rules to justify a decision”.3 Without standards of proof, the very idea of the justification of legal decisions about facts is just nonsense.

3Despite of their importance, Jordi Ferrer argues that the traditional standards of proof present two fundamental problems. On the one hand, they appeal to psychological considerations or mental states. On the other hand, they are extremely imprecise. They employ vague concepts such as “beyond any reasonable doubt” and “serious signs of guilt” that prevent a precise identification of the level of sufficiency that is considered justified. To solve these problems, as well as to provide rationality to legal decisions about facts, Jordi Ferrer argues that the standards of proof should be precise and objective.

4This paper examines the rationalist conception of evidence advanced by Jordi Ferrer and his proposal to formulate precise and objective standards of proof. In the following section I examine two assumptions underlying his theory. First, the distinction between a rationalist and a persuasive conception of evidence. Second, the distinction between three moments in evidentiary activity (the production of evidence, the evaluation of evidence and the decision about facts). Later, I analyze his argument in favor of the objectivity and precision of standards of proof.

5Throughout this paper I will argue that the search for an objective and precise standard of proof should be abandoned. It is based on an artificial distinction between a rationalist conception that is exclusively focused on evidence, and a persuasive conception focused on the persuasion of the trier of facts. I will suggest, despite Ferrer’s view, that a theory of evidence should integrate evidence and persuasion as two basic components of evidential reasoning.

6The standard of proof is not hidden somewhere waiting to be found. Instead of attempting to find a precise and objective standard of proof (a futile task), we should focus both on the justification of decisions about facts and on the design of methodologies for the analysis and evaluation of evidence.

2 The grounds of Jordi Ferrer’s theory of evidence

  • 4 The study of Evidence in the Continental legal culture is a collective enterprise to which differen (...)

7In the last twenty years, Jordi Ferrer and other legal scholars have reexamined the conceptual and epistemological foundations of the study of evidence in Continental Law.4 Ferrer’s scholarly work on evidence rests on two pillars: (1) the rationalist conception of evidence and (2) the distinction between three moments in evidentiary activity: the production of evidence, the evaluation of evidence, and the decision about facts. In the following sections I provide a quick summary of these assumptions followed by some commentaries.

2.1 The rationalist conception of evidence

8The rationalist conception of evidence rests on three assumptions: A historical background (2.1.1), a set of defining features (2.1.2), and a rival conception of evidence (2.1.3).

2.1.1 Historical background

  • 5 Ferrer 2019: 7.

9According to Jordi Ferrer, the rationalist conception of evidence descends from the rationalist tradition of evidence in Common Law and is built upon the contributions of Bentham, Wigmore, and Thayer, the “founding fathers” of this conception. In Continental Law, he argues that Michele Taruffo and Marina Gascón are the forerunners of a rationalist conception of evidence.5

2.1.2 Defining features

  • 6 Ferrer 2007: 64 and 2019: 7.

10The rationalist conception of evidence has four defining features.6

  • 7 Ferrer 2007: 64 and 2019: 7. In other words the statement “it is proven that p” should be understoo (...)

11(1) The rationalist conception appeals exclusively to evidence as the definite criteria to determine if a hypothesis has been proven. It is the evidence and the degree of corroboration of the hypothesis that determines if a fact has been proven or not.7 The statement “it is proven that p” means that the hypothesis (the hypothesis of culpability, the hypothesis of innocence, the hypothesis of the plaintiff, or the hypothesis of the defendant) has been sufficiently corroborated by evidence.

  • 8 Ferrer 2019: 65. According to Iacoviello, “orality-immediacy is a technique for the formation of ev (...)

12(2) The rationalist conception of evidence endorses a weak version of immediacy. The principle of immediacy requires the presence of the adjudicator in the presentation of the evidence. It rejects a strong version of immediacy according to which immediacy would also be a mechanism for assessing the evidence. In a rationalist conception of evidence, immediacy cannot be used as a substitute for a rational and motivated assessment of the evidence in the case.8

  • 9 Ferrer 2019: 65.

13(3) The rationalist conception endorses an analytical evaluation of evidence in which the evidential weight of each piece of evidence is individually examined. It is followed by a joint assessment of all the evidence in the case and their relations with the hypothesis.9

  • 10 Ferrer 2007: 66 and 2019: 292.

14(4) Finally, the rationalist conception endorses a strong mechanism of judicial control of the legal decision about facts by appellate tribunals.10

2.1.3 A rival conception

  • 11 Ferrer 2007: 63-64 and 2019: 291.

15The rationalist conception of evidence stands in stark contrast to a persuasive conception of evidence.11 The latter conception endorses an opposed view of each of the defining features defined above.

16(1) The persuasive conception appeals to the persuasion of the judge as the defining criteria to determine if a fact has been proved. It is the persuasion of the judge that matters for the legal decision about facts, not the evidence in the case. According to Ferrer, the persuasive conception maintains that the propositional attitude in the statement “it is proved that p” is the belief of the judge about the occurrence of the fact, not the acceptance of the fact as proved as a result of the evidence supporting the hypothesis.

  • 12 Ferrer 2019: 63.

17(2) The persuasive conception endorses a strong version of the principle of immediacy. If the final objective of the evidentiary activity is to persuade the judge, the best way to obtain this objective is through the presentation of the evidence. The principle of immediacy not only requires the presence of the judge in the presentation of the evidence, it is also an instrument for the evaluation of evidence. The trier of facts is in a privileged epistemological position to examine the evidence presented by the parties.12

18(3) The persuasive conception poses weak or inexistent demands for justification of the decision about facts. Once the judge has been persuaded about the facts of the case, the justification of the decision is reduced to the expression of the mental process of the trier of facts.

  • 13 Ferrer 2007: 64.

19(4) The persuasive conception blocks the possibility of control of judicial decisions about facts by higher-level courts. Persuasion of the trier of facts, immediacy, and motivation as expression of the causes that produced the persuasion, complement each other harmoniously to reduce the margin of revision of evidential reasoning at higher levels. In the words of Jordi Ferrer, “it is clear that if the objective of the evidential reasoning is to produce the persuasion of the trier of facts, once it has been reached, there remains little space for revising the decision”.13

2.2 The difference between three stages of evidentiary activity

20The distinction between three stages of evidentiary activity is the second distinctive sign of Jordi Ferrer’s proposal. These stages are: (i) the production of evidence, (ii) the evaluation of evidence, and (iii) the legal decision about proven facts according to the standard of proof.

  • 14 Ferrer 2007: 67.

21According to Jordi Ferrer, this distinction is useful for classifying evidentiary subjects as well as examining the rationality of the rules of evidence in each stage.14

22(a) First, the production of evidence includes the presentation, inclusion, and exclusion of evidence. Relevance, admissibility, evidentiary powers of the judge, exclusionary rules, and exclusion of illegally obtained evidence are examined at this first stage.

23(b) The second stage of evidentiary activity consists in the evaluation of evidence. In this stage, Jordi Ferrer points out the probabilistic nature of evidentiary reasoning. Evidentiary reasoning is based on the notion of inductive probability in opposition to a quantification of probability. The evaluation of evidence starts with a careful examination of the credibility of each piece of evidence followed by an overall assessment of the evidential weight of the hypotheses in the case.

  • 15 The assessment of evidence provides a criteria of decision when the legal system is indifferent to (...)
  • 16 Ferrer 2007: 139.

24(c) Finally, the legal decision about proven facts is distinguished from the evaluation of evidence. The evaluation of evidence indicates the degree of evidential support for a hypothesis. Nevertheless, the evaluation of evidence does not provide criteria to decide whether the facts have been proven.15 Additional criteria are required to determine the level of support that has to be reached to consider a fact as proven. For this reason, Jordi Ferrer argues that “it is indispensable to set a threshold from which to accept a hypothesis as proved. That is to say, we should determine the degree of probability sufficient to declare a hypothesis proved.”16

  • 17 Ferrer 2019: 8.

25The rationalist conception of evidence purports to explain the rationality of each of these moments. Given these assumptions, Jordi Ferrer proposes developing a rationalist conception of evidence in each of the moments of evidentiary activity.17

3 Some remarks on Jordi Ferrer’s theory of evidence

3.1 Three difficulties faced by the rationalist conception of evidence

3.1.1 Some remarks on the historical backgrounds

  • 18 Ferrer 2007: 64.
  • 19 Aguilera 2016.

26In the Continental tradition, there is a tendency to use the labels “rationalist conception”, “rationalist tradition” or “cognitive conception” as interchangeable. Jordi Ferrer states that they are equivalent: “The expression ‘rationalist conception’ is equivalent to what Twining calls ‘rationalist tradition’. However, other authors prefer to talk about the ‘cognitive conception’”.18 In a recent study, Edgar Aguilera refers generically to the “rationalist tradition” and he situates Jordi Ferrer in the Latin or Continental trend of this tradition.19

27The use of these expressions as interchangeable is problematic, since it loses sight of the historical context in which these notions arise, their background, as well as the characteristics of these notions in each legal culture.

28Additionally, Jordi Ferrer’s account of the origins of the rationalist conception is problematic. In his view, the rationalist conception of evidence descends directly from the Common Law. This conception did not have a presence in Continental Law before such authors as Michele Taruffo and Marina Gascón, who he refers to as “forerunners” of this conception. The rationalist conception is indebted to the works of Bentham, Thayer, and Wigmore, but Ferrer did not acknowledge any influence from the Continental legal tradition.

  • 20 Accatino 2020.
  • 21 Accatino 2020: 86.

29This account of the rationalist conception of evidence overlooks the intellectual history of the studies on evidence in the Continental legal tradition. Daniela Accatino’s article “Legal evidence theory: are we all ‘rationalists’ now?” faces similar difficulties.20 In her work, Accatino identifies a set of assumptions shared by a rationalist conception of evidence in both the Common and Civil Law traditions. Accatino states that the notion of a “rationalist tradition” was coined by William Twining to refer to “a set of assumptions shared explicitly and implicitly by the great modern scholars of evidence law (from Gilbert and Bentham in the 19th century to Thayer and Wigmore in the 20th century)”.21

  • 22 Twining 2006.

30However, notwithstanding her efforts to identify these basic assumptions, Accatino overlooks that the rationalist tradition has both a historical and an analytical thesis. The historical thesis represents a long tradition in the studies on evidence, starting with the publication of Gilbert’s The Law of Evidence in 1734, up to the death of Wigmore in 1943.22 The analytical thesis implies an effort to elaborate an “ideal model” from a collection of fairly homogeneous assumptions to be found in the main specialized works on evidence from Gilbert to Bentham, Thayer, Wigmore, MacCormick, and Rupert Cross. The analytical component is not autonomous. It goes hand in hand with a historical study. Jordi Ferrer and Daniela Accatino’s work represent an important effort to clarify the assumptions of a rationalist conception of evidence. However, their efforts are weakened by the little importance they give to the intellectual origins of the rationalist conception of evidence in the tradition of civil law.

  • 23 Gascón 1999: 30. This thesis is examined in the comparative study by Jackson and Summers (2012: 11) (...)

31Marina Gascón’s Los hechos en el Derecho. Bases argumentales de la prueba represents a clear exception. Rather than a forerunner, Gascón and other authors (Michele Taruffo, Juan Igartua, Perfecto Andrés Ibáñez, Daniel González Lagier, Jordi Ferrer himself, along with Ferrua and Ubertis in Italy) inaugurate a new stage in the studies on evidence. In her now classic monograph, Marina Gascón documented the historical background of a cognitivist conception of evidence. First, in the tradition of British empiricism. Second, and closer to the continental tradition, the jurists and philosophers of the Enlightment: Voltaire, Condillac, Forner, Filangieri, Beccaria, Carrara, Pagano, etc. In the words of Gascón “the philosophy of the Enlightenment echoed the dominant epistemology. For this reason, the mention of facts and observation is as important as the probable nature of knowledge”.23

  • 24 Twining 2020.

32Evidence scholars in Continental Law have focused on the assumptions of a rational study of evidence and proof. They have not, however, paid sufficient attention to the studies on evidence from a historical point of view, either from a theoretical or procedural point of view, to their intellectual origins, affinities and differences, nor the ruptures and continuities. Procedural works on evidence and studies on evidence by legal philosophers are largely divided, almost without any contact. Paraphrasing Twining, a historical analysis on the study of evidence at a local and comparative level is especially relevant in our context.24

3.1.2 Some remarks on the defining features

33As we have seen, Jordi Ferrer argues that the rationalist conception of evidence in the Civil Law descends from the rationalist tradition of evidence in Common Law. However, the defining features presented by Ferrer hardly fit in the rationalist tradition.

  • 25 Accatino 2020: 91.
  • 26 Accatino 2020: 91.
  • 27 Jordi Ferrer subscribes the first two thesis about evidence in legal reasoning and the first thesis (...)

34Accatino argues that both traditions share the same set of assumptions. She classifies these assumptions in two groups. The first group refers to legal evidence. The second group refers to the philosophical assumptions of the notion of truth and the possibility of knowledge of facts.25 In the first group (legal evidence) Accatino includes a) the teleological relation between evidence and truth and b) the thesis of evidentiary justification as a special case of general epistemic justification.26 In the second group (the philosophical assumptions) she identifies a) the assumption of a correspondence theory of truth and b) the assumption of a critical epistemological objectivism that rejects both naïve realism and radical skepticism.27

35However, Daniela Accatinos’s framework faces some difficulties when we add the defining features of the rationalist conception presented by Ferrer. The allegedly common ground between the rationalist tradition and the rationalist conception tends to disappear.

  • 28 This thesis would not be shared by Wigmore 1937: 3. The study of the principles of Evidence, for a (...)

36The defining features of Jordi Ferrer’s rationalist conception are scarcely shared by the rationalist tradition of evidence in Common Law. The rationalist tradition does not take evidence as the only criteria for decision making about facts, excluding the beliefs or persuasion of the trier of facts.28 It does not seem plausible to assert that the rationalist tradition is committed to a weak version on immediacy, that it requires a large amount of justification of legal decision about facts, or that it endorses a strong mechanism of revision over the decision about facts by upper-level courts.

37These observations could be developed further. Yet, for the purpose of this article it may suffice to say that the thesis of the common ground has clear limitations if the defining features of the rationalist conception are incorporated. The defining features of the rationalist conception seem to be more suitable for an institutional or procedural design of a system of evidence, rather than a series of suppositions of a rational study on proof.

3.1.3 Some remarks on the rival conception

  • 29 Ferrer 2019: 257.

38According to Jordi Ferrer, the rationalist conception stands in stark contrast to the persuasive conception since the latter would be focused exclusively on the persuasion of the trier of facts. For the persuasive conception, a fact is proved when the trier of facts is convinced of its existence. The proof of a fact depends only on one single criterion: the belief or persuasion of the trier of facts. In contrast, the rationalist conception focuses entirely on evidence. It is the evidence in the case rather than the persuasion of the trier of facts that matters in establishing whether a fact has been proved. The beliefs and persuasion of the trier of facts do not play any role in evidentiary reasoning. As Ferrer himself points out “from the point of view of the justification of the judicial decision, the persuasion of the trier of facts is irrelevant”.29

39As we shall see in examining Jordi Ferrer’s theory of standards of proof, the distinction between a rational and a persuasive conception leads to defending a theory of standards of proof that eliminates any reference to beliefs or mental states. The sole presence of the beliefs and persuasion of the trier of facts makes both the theory of evidence and the theory of the standards of proof irrational. Jordi Ferrer presents the opposition between evidence and beliefs as one excluding the other. As we shall see, however, this is a false dichotomy that affects not only his theory of standards of proof, but also the rationalist conception of evidence from which it comes.

40In this section I raise some doubts about the relation between a rationalist and a persuasive conception of evidence:

41(1) In the first place, it is not clear at what level of analysis the distinction between a rationalist conception and a persuasive conception of proof arises. Is this distinction made at the level of an abstract theory of evidence, at the level of a procedural design about a rational system of evidence, or as a working theory for participants?

  • 30 Ferrer 2007: 62.
  • 31 An analysis of Perelman’s non-cognitivist theory of evidence could be found in Sucar & Cerdio 2017: (...)

42At first glance, it would seem that the opposition is produced at the level of theories about evidence. According to Ferrer, Perelman is a paradigmatic representative of the persuasive conception of evidence.30 However, this characterization is problematic because the defining features of the persuasive conception hardly fit in Perelman’s theory of evidence.31

  • 32 Taruffo 2002: 350.
  • 33 Taruffo 202: 350.

43(2) Second, the distinction between the persuasive conception and the rationalist conception may overlap with the distinction posited by Taruffo between the persuasive and cognitive function of evidence. According to the former “evidence is not an instrument used to know anything rationally, but a persuasive argument directed toward making one believe something about the relevant facts for a decision”.32 In Taruffo’s view, Alessandro Giuliani is the main exponent of the persuasive conception of evidence. According to Taruffo, Giuliani “had put forward a theory of evidence as a rhetorical argument, opposing it to the theory of evidence as a specific instrument of knowledge and identifies its grounds in historical and comparative perspectives”.33

44However, the association of Giuliani’s work with a persuasive theory of evidence is based on an uncharitable reading of the thesis of that author. As suggested by Sucar and Cerdio:

  • 34 Sucar and Cerdio 2017: 321.

Taruffo’s reading is extreme because although it is possible to find an analysis of the rhetorical elements in the use of evidence in different legal traditions in Giuliani’s work, it is not plausible to attribute to him a rhetorical conception of evidence as a mere persuasive instrument as opposed to a conception of evidence as an instrument for knowledge. As a matter of fact, Giuliani’s work presents a theory of evidence that articulates rhetoric and dialectic with a strong commitment to the search and argumentation of truth in the judicial process.34

  • 35 Procedural scholars hardly believe nowadays that the decision about proven facts exclusively depend (...)

45These reflections raise awareness about the possibility of a persuasive theory of evidence. Taruffo himself recognizes the presence of persuasive or rhetorical elements in evidential reasoning, yet he denies the sufficiency of these elements to ground a persuasive theory of evidence. Consequently, the theory behind the persuasive conception of evidence is unclear. The distinction seems to arise at the level of the institutional and procedural design of a system of evidence rather than at the level of theories of evidence.35

  • 36 Dei Vecchi 2016: 269.

46(3) Third, the contrast between a persuasive and a rationalist conception of evidence is problematic in light of Diego Dei Vecchi’s critical remarks.36 As Dei Vecchi suggests, the association of persuasion with irrationality is unwarranted:

47(a) In the first place, the trier of facts could be persuaded by epistemic reasons.

48(b) The persuasion of the trier of facts is not necessarily incompatible with the criteria of truth by correspondence. Truth by correspondence could be one of the factors for the persuasion of the trier of facts.

49(c) The persuasion of the trier of facts is not necessarily incompatible with the pursuit of truth. The trier of facts could be persuaded when there are reasons to hold that a statement corresponds with reality.

  • 37 Cfr. Dei Vecchi 2016: 281.
  • 38 One of the reviewers suggests that this criticism could be based on an uncharitable reading of Jord (...)

50These observations question the association of persuasion with irrationality.37 The persuasion of the trier of facts would be irrational when it is not based on evidence. On the contrary, Jordi Ferrer argues that the sole presence of the persuasion of the trier of facts turns the decision irrational.38

51Finally, in Twining’s work, the contrast between rational and irrational conceptions of evidence does not take the presence of beliefs or conviction as the distinctive criteria. He aims to separate the rational approaches to evidence (in general) from irrational approaches such as ordeals, battles, or God’s judgment.

3.2 The dissociation of evidence assessment and the decision upon the standard of proof

52As we have seen, Jordi Ferrer distinguishes three moments of evidentiary activity: the moment of the production of evidence, the moment of the evaluation of evidence, and the moment of decision making about the proved facts based on the standard of proof. For the purposes of this paper, I will focus only on the second and third moments.

  • 39 Cfr. Gascón 1999.
  • 40 González 2005.
  • 41 Cfr. Gascón 1999: 197.
  • 42 Gascón 1999: 185.

53Jordi Ferrer introduces a distinction between two operations that have usually been presented together: the evaluation of evidence and the decision about which facts have been proved. The latter was understood as part of the evaluation of evidence. Marina Gascón39 and Daniel González Lagier40 works are a paradigmatic example of this approach. According to Gascón, “a hypothesis can be accepted if it has not been refuted by the available evidence and such evidence makes it probable (confirmed); or rather, more probable than any other alternative hypothesis about the same facts”.41 Gascón recognizes that at the end of the process of confirmation and refutation there could be more than one “sufficiently founded” hypotheses. In these cases, Gascón suggests that the criteria of simplicity and coherence could be used to decide which of the hypotheses is most acceptable.42 In her analyses there are no additional criteria to sustain the decision about proven facts.

  • 43 González Lagier 2005: 79.

54In Daniel González Lagier’s view, the sufficiency of evidence results from the soundness of the evidential inference in each of its component parts: the evidentiary fact, the fact to be proved, and the link based on generalizations. For González Lagier, when the two hypotheses have a similar degree of confirmation, the coherence and simplicity of the hypothesis tips the balance toward the hypothesis that is considered proven.43

  • 44 Abel Lluch 2012: 20.
  • 45 STS, Sala 1ª, May 30 2011, FJ 3.0 (RJ 2011/3994. See Seoane Spiegelberg, 2002: 247 and Muñoz Sabaté (...)

55In the analyses of both Marina Gascón and Daniel González Lagier, the decision about proven facts were the result of the evaluation of evidence. But there is more. Until a few years ago, the very notion of a standard of proof was absent in Continental legal discourse. As Xavier Abel Lluch argues, “the notion of ‘standard of proof’ is alien to the tradition of the Continental systems”.44 Abel Lluch argues that the notion that would be closest to the standard of proof is the “coefficient of elasticity of proof”, an expression used by the Supreme Court of Spain and some procedure scholars.45 However, as Abel Lluch points out, we are not dealing with a fixed threshold or an exact amount of evidence but with a flexible operation of the sufficiency of evidence that varies according to the circumstances of each case. On the contrary, as we shall see in the following section, Jordi Ferrer sustains that legal standards of proof should be precise (fixed) standards, not an elastic operation.

  • 46 See Nieva 2010 and Nieva 2013.

56Until recently, the sufficiency of evidence did not include the notion of standard of proof. Instead, there were expressions that referred to the conditions for doubt, reasonable doubt, grounded conviction, and other similar expressions that appealed to beliefs or psychological states.46 But even in these cases, the doubt was associated with the evaluation of evidence not with an operation related to the standard of proof.

  • 47 Taruffo 2005.
  • 48 Igartua 2005.
  • 49 Gascón 2005.
  • 50 In 2006 the Italian Procedural Code of Criminal Law introduced the standard of beyond any reasonabl (...)

57Two elements contributed to the use and diffusion of the notion of the standard of proof. First, the influence of Larry Laudan’s works in the theory of evidence in Continental Law, after the publication of his article “Por qué un estandar subjetivo y ambiguo no es un estándar” (Why is a subjective and ambiguous standard not a standard?) in 2005 in Doxa, and the discussion with Michele Taruffo,47 Juan Igartua,48 and Marina Gascón.49 This article was followed by the publication of Truth and Error in Criminal Law in 2006 and its Spanish translation in 2013. Second, several criminal procedure codes introduced the standard of proof “beyond any reasonable doubt”.50

  • 51 Ferrer 2007; Accatino 2011; Gascón 2012; Bayón 2009; González 2014 and 2020; Tuzet 2020 and Dei Vec (...)
  • 52 Ferrer 2007: 139. See also Bayón: 2009 y González 2014: 109.

58Since then, Jordi Ferrer, Juan Carlos Bayón, Daniela Accatino, Marina Gascón, Daniel González Lagier, Giovanni Tuzet, and Diego dei Vecchi, among others, have remarked on the conceptual and functional distinction between the evaluation of evidence and the decision according to the standard of proof.51 The evaluation of the evidence consists in attributing degrees of evidential corroboration to a hypothesis. It establishes the degree of inductive probability of a hypothesis in light of the evidence. The standard of proof, in turn, indicates a threshold of sufficiency from which a hypothesis could be accepted as proven.52

  • 53 Juan Carlos Bayón correctly identifies this position as a "more than minimum sensitivity" of the di (...)

59From this perspective, the assessment of evidence would suffice to explain situations in which the legal system requires that one hypothesis be more probable than another, but it fails to explain situations in which the legal system requires a higher degree of probability.53 However, as we shall see in the following section, it is not clear that it is possible to formulate a precise and objective standard of proof.

4 Jordi Ferrer’s arguments about the objectivity and precision of the standards of proof

  • 54 Jordi Ferrer formulates a third requirement that will not be dealt with in here: the standard of pr (...)

60Jordi Ferrer’s theory of the standards of proof is the result of the application of a rationalist conception of evidence at the moment of the decision about proven facts. According to Ferrer, the formulation of standards of proof should meet both the requirement of objectivity and the requirement of precision.54 I first present the arguments that Ferrer put forward in order to make a few comments later.

4.1 The argument of objectivity

  • 55 Ferrer 2019: 257.

61Jordi Ferrer argues that the standards of proof in procedural codes or in judicial practices refer to mental states or psychological states of mind of the trier of facts, such as intime conviction, moral certainty, reasonable doubt, or a grounded level of persuasion. In his opinion, these standards do not allow for an intersubjective control of the decision since it remains hidden and inscrutable. In addition, the degree of conviction may vary from person to person. The decision becomes completely subjective and unjustified. A fact is proven because the trier of fact is convinced of it. However, as Ferrer argues, the fact that the trier of fact has a certain belief or conviction does not provide any support to the hypothesis.55

  • 56 Ferrer 2007: 146.
  • 57 Ferrer 2009: 257.

62To solve this problem, Ferrer sustains that the standard of proof should be objective. On the one hand, this requires that the formulation of the standard of proof should avoid any reference to the conviction of the trier of facts. In Ferrer’s words “from the point of view of the justification of the decision about facts, the conviction of the trier of facts is irrelevant”.56 On the other hand, the standard of proof should be formulated in a way that refers exclusively to the evidence and its characteristics. The standard of proof should what to search for in the evidence and what characteristics it should have indicate to the trier of facts. It should not require the trier of facts to perform an exercise in introspection. The standard of proof should appeal only to “criteria regarding the justificatory capacity of the evidence to support evidentiary conclusions”.57

4.2 The argument of precision

63For Jordi Ferrer, eliminating any reference to the mental states of the trier of facts from the construction of standards of proof is insufficient. The standard of proof should express the level of evidential sufficiency required for a hypothesis to be considered proved with precision.

  • 58 Ferrer 2019: 255-256.

64In his view, the requirement of precision arises in response to a second problem in the formulation of mental standards. In Ferrer’s view, “the formulation of intended standards of proof in most of the current legal systems have a level of vagueness incompatible with the function of establishing a threshold of evidential sufficiency (even approximately)”.58 The following count as examples: “sufficient reasons to prosecute”, “enough motives to believe…”, “serious signs of guilt” and “beyond all reasonable doubt”.

65In Ferrer’s opinion, none of these standards provide the trier of the facts with a precise indication of the degree of sufficiency required to justify decisions on the facts. These standards are empty or at best incomplete. They do not indicate what they should: when and under what conditions there are sufficient motives; when there are serious signs of guilt; when have they exceeded the standard of ‘beyond all reasonable doubt’.

  • 59 Ferrer 2019: 248.

66 If the standard of proof is undetermined there is no way of proving that the required level of sufficiency has been met satisfactorily. In Ferrer’s words, “It is the very structure of evidential reasoning that demands that determined level of corroboration of a factual hypothesis has been reached in order to consider it proved, but, for this, one must know what that level is”.59 If it is impossible to set the level with precision, the very idea of standard of proof fails. It is not possible to establish a standard of proof, nor any other rules and procedural guarantees related to standards of proof.

67 The imprecision of a standard of proof raises additional problems. If the formulation of the standard of proof does not allow for a precise indication for a standard of proof, there is no way to prove that one has reached the level of sufficiency. Different judges will consider hypotheses proven with distinct levels of confirmation or support. Conversely, different judges will consider the hypotheses not proved despite achieving a high level of corroboration. In sum, if the standard of proof is imprecise, it is impossible to justify a decision about the facts.

  • 60 Ferrer 2019: 258.

68 The solution to these problems is the requirement of precision of the standards of proof. In the words of Jordi Ferrer, “The criteria that are used in the standard of proof should fulfill the function of establishing a threshold as precise as possible from which a factual hypothesis can be considered sufficiently corroborated for the effect of the decision to be made”.60

5 Some remarks on the objectivity and precision of standards of proof

5.1 Evidence or persuasion. A false dilemma

69Despite its apparent attractiveness and simplicity, the thesis on the objectivity of standards of proof is problematic for several reasons.

  • 61 Giovanni Tuzet has formulated a similar critique. See Tuzet 2020: 12.

70(i) Ferrer argues that the incorporation of beliefs or states of mind of the trier of facts in the standard of proof necessarily leads to an irrational conception of evidence. It does not matter whether the beliefs are frivolous or justified. A genuine theory of standards of proof must eliminate any reference to the beliefs or states of mind of the trier of facts. Ferrer’s criticism would be justified if the belief or conviction of the trier of facts were formed without considering the evidence or even against the evidence. However, his argument fails when the conviction of the trier of facts is the result of the analysis and justification of the evidentiary reasoning.61

  • 62 See González 2020b: 48 ss. González points out the confusion between two meanings of “subjective”. (...)

71Therefore, contrary to what Ferrer sustains, the incorporation of beliefs or convictions in evidential reasoning does not necessarily lead to an irrational conception of the proof.62 On the contrary, a theory of evidence should explain the role that the beliefs and convictions of the trier play in evidential justification. For this reason, a theory that does not include the beliefs and convictions of the jurisdictional organ is incomplete, since it artificially separates evidence and conviction, leaving out an important element of evidentiary reasoning. Evidence and conviction should be integrated in a theory of evidential reasoning. To be clear, there is an objective component established by evidence and the motivation of the judge, but there is also a subjective component, which consists in the state of mind that the analysis of evidence generates. Ferrer’s theory fails to incorporate one element: the beliefs or conviction of the trier of facts. This criticism affects Ferrer’s theory of evidence as a whole. It weakens both his proposal of a rationalist conception of evidence and his theory of standards of proof.

72(ii) The thesis of objectivity of the standards of proof is the result of applying the rationalist conception of evidence at the moment of the decision about proved facts. As we have seen, Jordi Ferrer puts us in the dilemma of choosing between a rationalist conception focused on evidence and a persuasive conception focused on the beliefs of the trier of facts. According to Ferrer:

  • 63 Ferrer 2007: 66.

The rationalist conception grounds the justification of the decision about facts in the method of corroboration of hypotheses, not on the beliefs of anyone but rather on whether the thesis about the occurrence which was declared proved, has been sufficiently corroborated. It is true that nobody can escape their beliefs: then, the relevant question is: What justifies the decision, the fact of having beliefs or the fact that the content of the hypothesis has been corroborated? Now, only if we choose the second option will we have the mechanism to assess the evidence that justifies the decision about the facts, and will we have the criteria to say that the judge made a mistake.63

  • 64 See also Vitor de Paula (2019). He identifies a subjective model of evidential reasoning grounded o (...)

73 But this is a false dilemma. Ferrer reduces the justification of the evidentiary decision to two possibilities. We either choose a rational system based on evidence, or we choose an irrational evidentiary system based on beliefs.64 With a few clicks on the keyboard, Ferrer eliminates the beliefs of the trier of facts from evidentiary reasoning and condemns any theory of evidence that includes them without examining and finding if these beliefs operate separately from or because of the evidence as irrational. Ferrer thus draws an artificial gap between evidence and beliefs or mental states as if these were not complementary or could not be presented together. He also overlooks a third reconstruction, which is in fact simpler: the persuasion of the trier of facts as a result of the evidence and the justification of the facts.

  • 65 There are, however, some exceptions. The time is ripe for the development of methodologies for the (...)
  • 66 I share Daniel González rejection of a sharp distinction between subjective and objective conceptio (...)

74There is nothing new in this approach. Continental adjudicators often justify their decisions about facts by appealing to persuasion as the result of evidentiary justification.65 Continental procedural scholars also refer to the conviction of the jurisdictional organ, not as a separate and independent conviction of the evidence, but as a conviction grounded on evidence.66

  • 67 For a discussion on whether intime conviction could be understood as assessment of evidence or as a (...)
  • 68 Gascón 1999: 159. See also, Andrés Ibáñez 2008.

75(iii) Upon opting for an objective standard of proof that excludes beliefs and convictions of the trier of facts, Jordi Ferrer overlooks the original sense of a judge’s free convictions.67 In this sense, Marina Gascón has identified exactly two ways of understanding the free conviction of the judge.68 These two senses are conceptually and historically sustained. As Gascón explains the principle of free conviction arose as a reaction to the system of legal proof. In the first sense, free conviction was understood as a negative methodological principle that “simply consists in rejecting legal proof as sufficient criteria to determine a decision”. In this first sense, “free” means free of any legal ties.

  • 69 Gascón 1999: 159.

76However, the principle of free conviction was transformed into a positive principle of assessment of evidence, according to which the assessment of the evidence was not held to any rule (rational or otherwise). The adjudicator was free to accept an intimate conviction lacking any justification.69

  • 70 Gascón 1999: 159.

77From these two senses, Marina Gascón rescues the first sense of free conviction. In a cognitivist model of adjudication about facts, free assessment should not be interpreted beyond its original meaning: “the model of legal assessment of evidence is proscribe. In its place it is established a system of free assessment of evidence, interpreted as a (negative) methodological principle that allows the judge not to accept as proved factual statements that he considers insufficiently proved”.70

  • 71 Giovanni Tuzet has criticized the extremely subjective interpretation of intime conviction by Tarif (...)

78The error made by Jordi Ferrer and other evidential scholars who discard any theory of evidence that alludes to mental states of the trier of facts as subjectivist consists in overlooking the conviction of the trier of facts as an exercise in reasoned and justified persuasion as the result of the analysis of evidence and evidential reasoning.71

5.2 The incompatibility between the demand of precision and the inductive nature of evidentiary reasoning

79Jordi Ferrer’s thesis about the precision of the standards of proof faces several challenges. First, it is surprising that Ferrer is particularly worried about the problem of vagueness in the sphere of evidence and proof when it is present in all legal areas. Apart from the standards of proof, many legal rules are vague. However, this does not imply that they are irrational. Unlike Ferrer’s view, vagueness is widely accepted throughout the Law.

  • 72 One of the reviewers of this paper observed that this criticism could be based on an uncharitable r (...)

80Against Ferrer’s view, the vagueness in the formulation of legal standard of proof does not preclude the justification of decisions about facts. We are not dealing with a situation of racial indeterminacy where no guidelines are given to adjudicators. The formulation of current standards of proof provides guidelines to determine whether facts are proved or not, although these guidelines are not completely defined. Both the justifications of judicial decisions about facts as well as the idea of law as a guide of conduct are not frustrated.72

  • 73 Bayón 2008 and González Lagier 2014. This criticism was original raised by Bayón 2009. See also Gon (...)
  • 74 The inductive nature of evidential reasoning is incompatible with a precise formulation of the stan (...)

81Second, the level of precision demanded by Jordi Ferrer is incompatible with the inductive and probabilistic nature of evidential reasoning. Ferrer’s proposal for formulating standards of proof would be viable if, and only if, 1) it were possible to precisely identify the threshold of sufficiency in the probabilistic spectrum, 2) we were capable of precisely formulating the required degree of sufficiency demanded (not more and no less) through natural language (with the inevitable problems of vagueness and ambiguity that goes with it), and 3) the required degree of sufficiency results from its application.73 Nevertheless, none of this is possible and Ferrer does not provide any guidance regarding how to overcome these difficulties without ignoring the probabilistic nature of evidential reasoning.74

  • 75 This is a reformulation of the first standard of proof presented by Jordi Ferrer 2019: 271.

82Third, the proposal to formulate objective standards of proof is incompatible with the very idea of the standards in Law. Jordi Ferrer seems to be thinking of a rule that would establish ex ante when and under what conditions a fact can be considered proved. A rule that would give exact indications to the adjudicator by means of closed conditions of application. As an example, “If the hypothesis can explain the available data, integrating them in a coherent manner, the derived hypothesis is confirmed and all the other plausible hypotheses compatible with the innocence of the defendant are refuted, then you should convict. Otherwise, you should acquit.”75 These are the conditions, and no others, that would indicate when the standard of proof has been satisfied.

83However, the standards of proof that are usually found in legislation or in adjudicative practice do not pre-determine ex ante a group of closed conditions of application. Rather, they establish a set of relevant and potentially imprecise considerations to be taken into account in their application. Unlike the rules, the standards transfer the decision about the proof of the facts to the trier of facts, within certain limits and under certain controls and constraints.

  • 76 As one of the reviewers suggests a similar position could be found in Lillquist 2002. The idea of a (...)

84Jordi Ferrer’s proposal for objective standards of proof is problematic for an additional, fourth reason. There are an infinite number of evidentiary situations in adjudicative practice. This diversity makes it almost impossible to precisely regulate beforehand when a fact has been proved. And even if it were possible, it is not desirable. It does not matter if there were fifty or several hundred standards of proof, these standards would not be capable of covering the variety of evidential situations that arise in practice. The complexity of evidential reasoning is obscured when the decision about facts is reduced to an allegedly precise formula.76 This type of formulation may work for a jury, but not for judges who have to justify their decisions. This does not imply adhering to a particularistic approach to evidentiary reasoning. We have rules in the form of standards of proof that despite of their imprecision makes the decision about facts possible. The imprecision of the standards of proof fits in with the inductive and probabilistic nature of evidentiary reasoning.

  • 77 Ferrer 2019: 271-272.
  • 78 González 2020a: 94.
  • 79 See also Dei Vecchi 2018: 56. He argues that the formulation of standards of proof advanced by Ferr (...)

85Fifth, the specific construction of standards of proof that Jordi Ferrer proposes does not meet the very requisite of precision that he himself proposes. Ferrer used criteria for assessment of the proof to construct standards of proof, which by itself becomes problematic when attempting to construct a standard of proof by means of criteria for assessment. In the example examined previously, a fact is considered proved when the hypothesis is corroborated by the elements of proof available, the derived hypotheses are confirmed, and the alternative hypotheses are eliminated.77 However, as González Lagier states, the criteria of assessment of proof are gradual in a double sense. First, each of them can be satisfied to a greater or lesser degree. Second, although they may not meet those criteria, they could meet other criteria, managing to reach the same level of corroboration or similar. As Lagier states, “None of the sub-groups of criteria of assessment is, in the abstract, a sufficient condition, nor necessary, to reach a certain degree of confirmation”.78 With other criteria one can reach that degree of confirmation or higher. Nothing assures us that we are demanding a higher or lower degree of confirmation. There is no way of making sure that a sufficient level of confirmation is met - sufficient for what is supposedly the required standard of proof.79

86In sum, the question about when a fact is considered sufficiently sustained to consider it proven cannot be established precisely.

6 Conclusions

87In recent years Jordi Ferrer has contributed to rehabilitating the study of evidence from solid conceptual and epistemological bases. In my opinion, his main contribution has consisted in positioning the subject of Evidence in the center of jurists’ interest and in spreading the importance of its study. Evidence now has an outstanding position in the continental legal culture and its potential development in the coming years is promising. This is precisely why I think it is convenient to show some of the difficulties his theory will encounter.

88In the first place, the background of the rationalist conception of evidence in the Continental jurisdictional tradition should be revised. Jordi Ferrer recognizes the influence of Bentham, Thayer, and Wigmore as the founding fathers of the rationalist conception about evidence, but he did not acknowledge any legal thinker from the continental tradition. The intellectual roots of the studies on evidence in the Latin world are obscured in Ferrer’s characterization of the rationalist conception of evidence. Neither the influence of the jurists of the Enlightenment, nor the influence of contemporary legal scholars is fully recognized.

89Second, the contrast between a rationalist conception and a persuasive conception of evidence should be substituted by a proposal that integrates both the objective and the subjective elements of evidentiary reasoning. Despite Ferrer’s view, the incorporation of beliefs and persuasion of the trier of facts does not necessarily lead to an irrational conception of evidence.

90Third, the request for precision of the standards of proof is incompatible with the probabilistic and evidentiary nature of evidential reasoning. It is not possible to formulate with the threshold of sufficiency with precision. Jordi Ferrer’s proposal is destined to fail.

  • 80 Fernández 2007; Bayón 2009 and González 2014.

91Mercedes Fernández, Juan Carlos Bayón, and Daniel González Lagier have argued that since it is impossible to formulate precise and objective standards of proof, we should distribute the error of proof with rules of evidence.80 But this is also a false dilemma. It is possible to reject both options: on the one hand, the need for precise and objective standards of proof and, on the other, to reject that this rejection necessarily leads to the creation of rules evidence.

  • 81 See also Dei Vecchi 2020: 232.

92The problem of the sufficiency of the standard of proof cannot be solved exclusively by the legislature (either through precise and objective standards of proof or with legal rules of evidence) or exclusively by the courts. My hypothesis, which has to be tested in further research, is that the problem of sufficiency of evidence requires articulating several components: (i) the applicable standard of proof, despite the imprecision and subjectivity problems it may raise, (ii) the evaluation of evidence with a rigorous analysis of the facts,81 and (iii) the persuasion of the trier of facts. Evidence and persuasion are two components to be harmonized. This hypothesis is not new. It is present in everyday judicial practice. We should therefore focus our attention on judicial decisions so as to work out a methodology for the analysis of evidence and argumentation about facts.

Acknowledgments.— A preliminary version of this paper was presented at the III Encuentro Internacional de Filosofía Jurídica “Debate sobre los estándares de prueba”, Universidad Blas Pascal (Córdoba, Argentina, October 4th, 2019). I appreciate the valuable observations from all the friends and colleagues in Córdoba. I discussed some ideas of this work at the Encuentro ITAM-Girona de razonamiento probatorio at ITAM (Mexico City, December 2nd, 2019). I especially appreciate Jordi Ferrer’s openness for debate and dialogue. Daniel González Lagier helped me to clarify some ideas in the final version in this work. I appreciate the poignant observations of two anonymous reviewers of this work. Mariana Díaz provided great help with the final formatting of the English version of this work.

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Bibliography

Abel, X. (2012). La dosis de prueba. Entre el common law y el civil law. Doxa, Cuadernos de Filosofía del Derecho, 35, 173-200.

Accatino, D. (2020). Legal evidence theory: are we all "rationalists" now? Revus. Journal for constitutional theory and philosophy of law, 40, 85-101.

Aguilera, E. (2016). Jordi Ferrer y la tradición racionalista de la prueba jurídica: una mirada crítica. Isonomía, 44, 163-189.

Andrés Ibáñez, P. (2003). Sobre el valor de la inmediación (una aproximación crítica), Jueces para la Democracia. Información y debate, 46, 57-66.

Andrés Ibáñez, P. (2008). Prueba y convicción judicial en el proceso penal. Hammurabi.

Bayón, J.C. (2009). Epistemología, moral y prueba de los hechos: hacia un enfoque no benthamiano, Analisi e Diritto 2008, 14-34.

Dei Vecchi, D. (2016). La prueba judicial como conocimiento: una caracterización poco persuasiva. In J. Ferrer & C. Vázquez (Eds.), Debatiendo con Taruffo (pp. 273-295). Marcial Pons.

Dei Vecchi, D. (2018). Problemas probatorios perenes. Un análisis a la luz del nuevo proceso penal mexicano. Fontamara.

Dei Vecchi, D. (2020). Los confines pragmáticos del razonamiento probatorio. Zela-CEJI.

Fernández, M. (2006). La carga de la prueba en la práctica judicial civil. La Ley.

Fernández, M. (2007). La valoración de pruebas personales y el estándar de la duda razonable, Cuadernos Electrónicos de Filosofía del Derecho, 15.

Ferrajoli, L. (1995). Derecho y razón. Teoría del garantismo penal (Trans. Perfecto Andrés Ibáñez et al.). Trotta.

Ferrer, J. (2005). Prueba y verdad en el derecho (2nd ed.). Marcial Pons.

Ferrer, J. (2007). La valoración racional de la prueba. Marcial Pons.

Ferrer, J. (2019). Prueba y racionalidad de las decisiones judiciales. CEJI.

Gascón, M. (1999). Los hechos en el derecho. Bases argumentales de la prueba (1. ed.). Marcial Pons.

Gascón, M. (2012). Cuestiones probatorias. Universidad Externado.

González, D. (2005). Quaestio facti. Ensayos sobre prueba, causalidad y acción. Fontamara.

González, D. (2014). Presunción de inocencia, verdad y objetividad. En Prueba y razonamiento probatorio en Derecho. Comares.

González, D. (2020a). ¿Es posible formular un estándar de prueba preciso y objetivo? Algunas dudas desde un enfoque argumentativo de la prueba. Revista Telemática de Filosofía del Derecho, 23, 79-97.

González, D. (2020b). What is Foundherentism, and what can it contribute to the Theory of Evidence in The Law? Cosmos and Taxis, 8(6-7), 44-54. URL: https://cosmosandtaxis.org/ct-8-34/

Haack, S. (2014). Evidence Matters. Cambridge University Press.

Iacoviello, F. M. (1997). La motivazione della sentenza penale e il suo controllo in cassazione. Giuffrè.

Igartua, J. (2005). Prolongaciones a partir de Laudan. Doxa, Cuadernos de Filosofía del Derecho, 28, 141-150.

Igartua, J. (2010). Valoración judicial de la prueba y motivación racional. In A. González & J. del Río (Eds.), Discusión jurídica contemporánea desde Michoacán (pp. 79-101). Tribunal Electoral de Michoacán.

Jackson, J.D., & Summers, S.J. (2012). Internationalization of criminal evidence. Cambridge University Press.

Laudan, L. (2005). Porqué un estándar subjetivo y ambiguo no es un estándar, Doxa, Cuadernos de Filosofía del Derecho, 28, 95-113.

Laudan, L. (2006). Truth, Error, and Criminal Law. An Essay in Legal Epistemology. Cambridge University Press. Spanish translation: Verdad, error y proceso penal. Un ensayo de epistemología jurídica (2013; trans. Carmen Vázquez & Edgar Aguilera). Marcial Pons.

Lillquist, E. (2002). Recasting Reasonable Doubt: Decision Theory and the Virtues of Variability, UC Davis Law Review, 36, 85-197

Lucerna, M. (1985). El mito de El Dorado. Historia, 16(101), 3-40.

Muñoz, L. (2001). Fundamentos de prueba judicial civil. J. M. Bosch.

Nieva, J. (2010). La valoración de la prueba. Marcial Pons.

Nieva, J. (2013). La duda en el proceso penal. Marcial Pons.

Paula, V. (2019). La prueba testimonial. Del subjetivismo al objetivismo, del aislamiento científico al diálogo con la psicología y la epistemología. Marcial Pons.

Ricaurte, C. (2019). Argumentación y teoría de la prueba en el mundo latino. Un punto de partida. Tesis doctoral. Universidad de Alicante.

Seoane, J.L. (2002). La Prueba en la Ley de Enjuiciamiento Civil 1/2000. Aranzadi.

Sucar, G., & Cerdio, J. (2017). Derecho y verdad (Volumen IV. Problemas). Tirant.

Taruffo, M. (2002). La prueba de los hechos (Trans. Jordi Ferrer). Trotta.

Taruffo, M. (2005). Tres observaciones sobre "Por qué un estándar de prueba subjetivo y ambiguo no es un estándar", de Larry Laudan. Doxa. Cuadernos de Filosofía del Derecho, 28, 115-126.

Tuzet, G. (2020). Assessment criteria or standards of proof? An effort in clarification. Artificial Intelligence & Law, 28(1), 99-109.

Twining, W. (1985). Theories of Evidence: Bentham and Wigmore. Stanford University Press.

Twining, W. (2006). Rethinking Evidence (2. ed). Cambridge University Press.

Twining, W. (2020). La prueba como un ámbito de estudio multidisciplinar: ¿De qué manera puede el Derecho y su estudio contribuir a esta empresa? (Trans. Raymundo Gama). In C. Vázquez & J. Ferrer (Eds.), El razonamiento probatorio en el proceso judicial (pp. 19-39). Marcial Pons.

Wigmore, J. (1938). The Science of Judicial Proof: As Given by Logic, Psychology, and General Experience, and Illustrated in Judicial Trials (3. ed). Littlebrown & Company.

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Notes

1 See Lucerna 1986.

2 Ferrer 2007 and 2019.

3 Ferrer 2019: 254.

4 The study of Evidence in the Continental legal culture is a collective enterprise to which different jurists have contributed. The list of jurists includes Luis Muñoz Sabaté, Michele Taruffo, Juan Igartua, Perfecto Andrés Ibáñez, Marina Gascón, Daniel González Lagier, and Jordi Ferrer. A recent study of the contribution of these authors can be found in Catherine Ricaurte’s PhD’s dissertation entitled Argumentación y teoría de la prueba en el mundo latino. Un punto de partida. Catherine Ricaurte’s work represents a significant contribution to the historical reconstruction of evidence studies in the last few decades. There are certainly other intellectual strands to explore.

5 Ferrer 2019: 7.

6 Ferrer 2007: 64 and 2019: 7.

7 Ferrer 2007: 64 and 2019: 7. In other words the statement “it is proven that p” should be understood to mean that there are sufficient elements to support p. The propositional attitude involved in this statement is the acceptance of a fact as proved by the trier of facts, not the belief in p. Cfr. Ferrer 2005: 32.

8 Ferrer 2019: 65. According to Iacoviello, “orality-immediacy is a technique for the formation of evidence, not a method to persuade the judge”. Iacoviello 1997: 151, cited by Andrés Ibáñez 2003: 157.

9 Ferrer 2019: 65.

10 Ferrer 2007: 66 and 2019: 292.

11 Ferrer 2007: 63-64 and 2019: 291.

12 Ferrer 2019: 63.

13 Ferrer 2007: 64.

14 Ferrer 2007: 67.

15 The assessment of evidence provides a criteria of decision when the legal system is indifferent to the distribution of error between the parties. However, the assessment of evidence does not provide any help when the legal system attempts to avoid a certain type of error for moral or political reasons (e.g., the conviction of an innocent person). In the latter case, an additional criterion indicating a higher level of corroboration to consider a fact as proved and, as a result to distribute the error asymmetrically, is needed. See Bayón 2009.

16 Ferrer 2007: 139.

17 Ferrer 2019: 8.

18 Ferrer 2007: 64.

19 Aguilera 2016.

20 Accatino 2020.

21 Accatino 2020: 86.

22 Twining 2006.

23 Gascón 1999: 30. This thesis is examined in the comparative study by Jackson and Summers (2012: 11). They identify to intellectual traditions that would have some point in common. On the one hand, the rationalist tradition of evidence in the Common Law. On the other hand, the intellectual tradition of human rights in the Civil Law. According to Jackson and Summers, both traditions are “historically grounded”, the former in British empiricism while the latter in the jurists and philosophers of the Enlightenment.

24 Twining 2020.

25 Accatino 2020: 91.

26 Accatino 2020: 91.

27 Jordi Ferrer subscribes the first two thesis about evidence in legal reasoning and the first thesis about the philosophical assumptions of evidence (Ferrer 2007). Daniel González Lagier endorses a critical objectivism conception of evidence and proof.

28 This thesis would not be shared by Wigmore 1937: 3. The study of the principles of Evidence, for a lawyer, falls in two distinct parts. One is Proof n the general sense, -the part concerned with the ratiocinative process of contentious persuasion, mind to mind, counsel to Judge or juror, each partisan seeking to move the mind of the tribunal”.  Cesar Higa called my attention that this thesis could also be found in Bentham. According to Twining, for Bentham The task of the judge is to assess the probative force of the relevant evidence in terms of the degree of persuasion it produces in his mind (Twining 1985: 53). See also Postema 2019: 202.

29 Ferrer 2019: 257.

30 Ferrer 2007: 62.

31 An analysis of Perelman’s non-cognitivist theory of evidence could be found in Sucar & Cerdio 2017: 325-331.

32 Taruffo 2002: 350.

33 Taruffo 202: 350.

34 Sucar and Cerdio 2017: 321.

35 Procedural scholars hardly believe nowadays that the decision about proven facts exclusively depends on the belief or conviction of the trier of facts without considering the available evidence.

36 Dei Vecchi 2016: 269.

37 Cfr. Dei Vecchi 2016: 281.

38 One of the reviewers suggests that this criticism could be based on an uncharitable reading of Jordi Ferrer’s work since he could accept that the person who has p as proved additionally believes that p is true. I agree with this. However, I insist that the decision about having a fact as proved not only involves the evidence but also the beliefs or conviction of the trier of facts.

39 Cfr. Gascón 1999.

40 González 2005.

41 Cfr. Gascón 1999: 197.

42 Gascón 1999: 185.

43 González Lagier 2005: 79.

44 Abel Lluch 2012: 20.

45 STS, Sala 1ª, May 30 2011, FJ 3.0 (RJ 2011/3994. See Seoane Spiegelberg, 2002: 247 and Muñoz Sabaté 2001: 69; cited by Mercedes Fernández 2006: 33.

46 See Nieva 2010 and Nieva 2013.

47 Taruffo 2005.

48 Igartua 2005.

49 Gascón 2005.

50 In 2006 the Italian Procedural Code of Criminal Law introduced the standard of beyond any reasonable doubt.

51 Ferrer 2007; Accatino 2011; Gascón 2012; Bayón 2009; González 2014 and 2020; Tuzet 2020 and Dei Vecchi 2018 and 2020.

52 Ferrer 2007: 139. See also Bayón: 2009 y González 2014: 109.

53 Juan Carlos Bayón correctly identifies this position as a "more than minimum sensitivity" of the distribution of error. Cfr. Bayón 2009: 23-24.

54 Jordi Ferrer formulates a third requirement that will not be dealt with in here: the standard of proof should be formulated through qualitative criteria (Ferrer 2019: 258).

55 Ferrer 2019: 257.

56 Ferrer 2007: 146.

57 Ferrer 2009: 257.

58 Ferrer 2019: 255-256.

59 Ferrer 2019: 248.

60 Ferrer 2019: 258.

61 Giovanni Tuzet has formulated a similar critique. See Tuzet 2020: 12.

62 See González 2020b: 48 ss. González points out the confusion between two meanings of “subjective”. On the one hand, “subjective” as relative to a subject. On the other hand, “subjective” as arbitrary. He rightly observes that the former does not necessarily imply the latter.

63 Ferrer 2007: 66.

64 See also Vitor de Paula (2019). He identifies a subjective model of evidential reasoning grounded on the beliefs of the adjudicator as well as an objective model grounded on evidence and the corroboration of a hypothesis. This critique can be found in González 2020b: 46.

65 There are, however, some exceptions. The time is ripe for the development of methodologies for the analysis of evidence and the justification of decisions about facts. See Andrés 2008 and Igartua 2010.

66 I share Daniel González rejection of a sharp distinction between subjective and objective conceptions of proof. He favors an intermediate conception that incorporates evidence and beliefs of the adjudicator in the justification of decision about facts. According to González, “‘P is proven’ can mean that ‘The judge justifiably believes p’ (where p can mean the fact subject to the evidence or the fact that there are reasons for accepting this as a premise of judicial syllogism).” (González 2020b: 49).

67 For a discussion on whether intime conviction could be understood as assessment of evidence or as a standard of proof see Tuzet 2020: 100.

68 Gascón 1999: 159. See also, Andrés Ibáñez 2008.

69 Gascón 1999: 159.

70 Gascón 1999: 159.

71 Giovanni Tuzet has criticized the extremely subjective interpretation of intime conviction by Tariff, Laudan, Ferrer, and Bayón. This subjective interpretation fails to acknowledge the role of evidence in the conviction of the adjudicator. According to Tuzet, “we should not take intime conviction as a legitimation of any kind of subjectively-formed or emotionally-driven decision” (Tuzet 2020: 100).

72 One of the reviewers of this paper observed that this criticism could be based on an uncharitable reading of Ferrer Beltrán’s work since he is fully aware of the vagueness of the standards of proof including the standards he formulates. The point is to reduce vagueness. I agree with this. However, Jordi Ferrer does not aim to propose strategies to reduce the vagueness of standards. He argues that these standards should be eliminated and substituted by other standards of proof.

73 Bayón 2008 and González Lagier 2014. This criticism was original raised by Bayón 2009. See also González 2014 and González 2020a, as well as Dei Vecchi 2020: 202.

74 The inductive nature of evidential reasoning is incompatible with a precise formulation of the standard of proof. I am aware that this criticism is not new. I just want to observe that this accepted view has not been rightly addressed by Ferrer Beltrán.

75 This is a reformulation of the first standard of proof presented by Jordi Ferrer 2019: 271.

76 As one of the reviewers suggests a similar position could be found in Lillquist 2002. The idea of an imprecise and flexible standard of proof is close to the “coefficient of elasticity of evidence”. See Fernández 2006: 33 and Abel 2012: 198.

77 Ferrer 2019: 271-272.

78 González 2020a: 94.

79 See also Dei Vecchi 2018: 56. He argues that the formulation of standards of proof advanced by Ferrer are either redundant or are radically undetermined.

80 Fernández 2007; Bayón 2009 and González 2014.

81 See also Dei Vecchi 2020: 232.

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References

Electronic reference

Raymundo Gama, “The search for El Dorado”Revus [Online], 43 | 2021, Online since 23 June 2021, connection on 20 October 2021. URL: http://journals.openedition.org/revus/7353; DOI: https://doi.org/10.4000/revus.7353

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About the author

Raymundo Gama

Associate Professor, Department of Law, ITAM (México).

Address: ITAM - Departamento Académico de Derecho - Río Hondo 1, Altavista, Álvaro Obregón - 01080 Ciudad de México, CDMX - México

E-mail: raymundo.gama@itam.mx

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