The 'mirror of evidence' and the plausibility of judicial proof. (January 2017)

• Record Type: Journal Article
• Authors: Zhang, Baosheng; Cao, Jia
• Other Names: Caruso David R. A. guest-editor.
• Is Part Of: International journal of evidence & proof. Volume 21:Number 1/2(2017:Jan.)
• Page Start: 119
• Page End: 132
• Publication Date: 2017-01
• Subjects: judicial proof -- mirror of evidence -- plausibility -- probability -- stone of generalisation; Evidence (Law) -- Periodicals; 347.06
• DOI: 10.1177/1365712716674795
• Languages: English
• ISSNs: 1365-7127

Abstract

In the process of judicial proof, the court has to make findings of fact concerning events that happened in the past. But the triers of fact have no direct knowledge of the past events. Therefore, the triers can only find the truth by means of the 'mirror of evidence', which inevitably differs from the original facts of the case. It is the truth reconstructed in the trier's mind, and only a product of thought. The 'mirror of evidence' doctrine explains that what the fact-finder could find is only a plausible account of the truth. As the evidence-based information cannot be entirely achieved, the facts reconstructed under the 'mirror of evidence' doctrine seem like 'flowers in a mirror'. The judicial proof process is mostly deemed to be a probabilistic reasoning process. But its deepest foundation is the plausibility approach. The plausibility approach properly explains judicial proof better than the probability explanation. Compared with the western countries' undergoing evolvement of the judicial proof theory from probability to plausibility, Chinese scholars are fighting against the statutory determination of evidence doctrine. The research on probability and plausibility will provide significant enlightenment in China in terms of rejecting the traditional theory of pursuing absolute certainty in judicial proof. We hope that by progressively renewing the understanding of judicial proof, the plausibility of judicial proof can be recognised and applied gradually in the judicial practice in China.