The Embedded Epistemologist

I was startled to read, in the 6th edition of a well-known textbook, McCormick on Evidence, that the “reasonable doubt” formula “points to what we are really concerned with, the state of the jury’s mind,” whereas “preponderance of the evidence” and “clear and convincing evidence” “divert attention to the evidence.” This has things exactly backwards: As the “reasonable” in “beyond a reasonable doubt” signals, the evidence, and whether it is strong enough, is precisely what the fact-finder should be attending to (and a juror who is absolutely certain the defendant is guilty—but not because of the admissible evidence presented at trial but because of something he learned outside the courtroom, or because of evidence that was presented at trial but that the court instructed the jury to disregard—has an obligation to vote to acquit nonetheless). Legal degrees of proof are not degrees of credence; they are degrees of rational credibility or warrant.

— article available in Ratio Juris