Legal proof: why knowledge matters and knowing does not

Abstract

I discuss the knowledge account of legal proof in Moss (2023) and develop an alternative. The unifying thread throughout this article are reflections on the beyond reasonable doubt (BRD) standard of proof.  In Section 1, I will introduce the details of Moss’s account and how she motivates it via the BRD standard. In Section 2, I will argue that there are important disanalogies between BRD and knowledge that undermine Moss’s argument. There is however another motivation for the knowledge account: combined with auxiliary claims, that is probabilistic knowledge and moral encroachment, it can provide a general solution to the puzzle of statistical evidence. Section 3 spells out the details. In Section 4, I suggest to combine the knowledge account with pragmatic encroachment, instead of moral encroachment, in order to stay clear of the thorny issues whether corporations have moral rights. In Section 5, I argue that the verdicts of Moss’s account in cases of false justified beliefs and non-luminous knowledge conflict with the BRD standard and thus call for abandoning the account. Based on the social function of the BRD standard, I suggest a replacement for the knowledge account that is also just as potent as a general solution for the puzzle of statistical evidence. While I will grant that knowledge is neither always necessary nor always sufficient for convictions, I will argue that the concept of knowledge nonetheless plays a significant and ineliminable role in legal decision-making.