Decisions concerning proof of facts in criminal law must be rational because of what is at stake, but the decision-making process must also be cognitively feasible because of cognitive limitations, and it must obey the relevant legal-procedural constraints. In this topic three approaches to rational reasoning about evidence in criminal law are compared in light of these demands: arguments, probabilities, and scenarios. This is done in six case studies in which different authors analyze a manslaughter case from different theoretical perspectives, plus four commentaries on these case studies. The aim of this topic is to obtain more insight into how the different approaches can be applied in a legal context. This will advance the discussion on rational reasoning about evidence in law and will contribute more widely to cognitive science on a number of topics, including the value of probabilistic accounts of cognition and the problem of dealing with cognitive biases in reasoning under uncertainty in practical contexts.
The law speaks clearly on the standards of proof, but listeners often misunderstand its words. This article tries, with some common sense, to explain how the law expects its standards to be applied, and then to show how the law thereby avoids such complications as the conjunction paradox. First, in accordance with belief function theory, the factfinder should start at zero belief. Given imperfect evidence, the factfinder will end up retaining a fair amount of uncommitted belief. As evidence comes in, though, the factfinder will form a belief in the truth of the disputed fact but also form a disbelief, or a belief in the fact’s falsity. At the close of evidence, the standard of proof requires only comparing belief and disbelief. For example, the civil standard, rather than asking whether a fact more likely than not happened according to traditional probability theory, asks whether the factfinder believes the fact more than the factfinder believes that the fact did not happen. The burdened party need not push proof above 50% by dispelling the phantoms of every possibility, while the opponent need not generate a competing version of truth but can instead rely on denial to demand that the burdened party generate a belief.Second, belief and disbelief being nonadditive partial truths, the mathematical result is that one cannot combine beliefs by traditional probability theory, as by using the product rule designed for conjunction of betting odds. Instead, one must use multivalent logic, including its rule that conjoined likelihood equals the likelihood of the least likely element. Linking the elements in a chain tells a story that is as likely as its weakest link. Consequently, if each element of a claim or defense passes the standard of proof, the conjunction of elements will pass the standard of proof. The conjunction paradox thus vaporizes for factfinding, just as the law has always maintained. The law has found the way to decide in accord with our best knowledge of the facts.
The standard of proof in criminal trials in many liberal democracies is proof beyond a reasonable doubt, the BARD standard. It is customary to describe it, when putting a number on it, as requiring that the fact finder be at least 90% certain, after considering the evidence, that the defendant is guilty. Strikingly, no good reason has yet been offered in defense of using that standard. A number of non-consequentialist justifications that aim to support an even higher standard have been offered; all are morally unsound. Meanwhile, consequentialist arguments plausibly support a substantially lower standard — in some cases so low as to undermine the idea that punishment is what is at stake. In this paper, I offer a new retributive justification that supports excluding the instrumental benefits of punishment from the balance that sets the standard. The resulting balance supports a standard arguably in the ballpark of the customary understanding of BARD: a standard requiring that the fact finder have a high, though not maximally high, degree of confidence that the defendant is guilty.
Canadian courts use simple probability reasoning inconsistently in personal injury litigation, subjecting litigants to irregular legal principles and potentially improper compensation. Turning to foundational principles of tort litigation, I suggest a new framework for the availability of simple probability that would promote greater coherence. Simple probability reasoning is understood as an alternative standard of proof that enables compensation for a loss proportional to the likelihood that the loss will occur. Accordingly, the availability of simple probability is thought to depend on which types of facts (past vs. future vs. hypothetical facts) are amenable to balance of probabilities proof versus simple probability. This is the ‘type of fact’ framework, but it is not applied consistently. Part 1 argues that the inconsistency is rooted in the mischaracterization of simple probability reasoning as a standard of proof. It is better conceived of as a method of enabling chances, in their own right, to become legally relevant facts. Understood this way, simple probability is available only where chances are relevant to the legal determination at stake. I apply this characterization in Part 2, concluding that while simple probability reasoning is irrelevant to liability determinations, it is crucial in appropriately assessing damages.
The optimal stringency of the burden of proof is characterized in a model in which relaxing the proof burden enhances deterrence but also chills desirable behavior. The result are strikingly different from those in prior work that uses a simpler model in which individuals only choose whether to commit a harmful act (so only deterrence is at stake). Moreover, the qualitative differences between the optimal rule and the familiar preponderance of the evidence rule—and related rules that look to Bayesian posteriors—are great, much more so than revealed by prior work.
Occasionally investigations by state boards1 take longer than desired. Sometimes complainants take months or even years to file a complaint with a medical board. Cases may be complex and finding witnesses and obtaining expert opinions can lengthen the time it takes to complete a case. Sometimes the medical board must wait for another entity to complete its criminal investigations before the board can begin an investigation or bring charges. A delay, however, may prejudice a physician's ability to defend against the charges. This installment of Legal Briefs looks at the doctrine of laches (pronounced “latches”) and its applicability to state boards, as well as alternatives to laches.First, what exactly is laches? In legal terms, it is the concept of unreasonable delay in pursuing a right or claim — in a way that prejudices the opposing party. When asserted in litigation, it is in the category of “an equitable defense” or “doctrine.” The person invoking laches asserts that an opposing party has “slept on its rights,” and that during the elapsed time period, circumstances have changed and a plaintiff's original claim should not be granted.The courts have five methods for handling cases that have become stale in this way. The first is to apply any applicable statute of limitation. The second is to apply the Due Process clause in the U.S. Constitution. The third is to distinguish precatory suggestions from mandatory requirements. The fourth is to use the equitable remedy of estoppel. The fifth is to use the doctrine of laches. After reviewing the first four, this article will focus on the doctrine of laches. While reviewing laches, it must be remembered that the purpose of a medical board's administrative proceeding is not disciplinary but public protection.2Brown v. State Personnel Board established that statutes of limitation, “like the equitable doctrine of laches, in their conclusive effects are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.”3Nevertheless, Lindsey v. Miller's Lessee concluded that “[i]t is a well settled principle that the statute of limitations does not run against a state.”4 Specifically, “It has been held that there are no statutes of limitation applicable to [professional] disciplinary proceedings.”5Courts, however, may apply a statute of limitation to administrative proceedings.6 Sahu v. Iowa Board of Medical Examiners concluded that “if an administrative proceeding is in the public interest, such as disciplinary proceedings against a medical professional, courts will not apply the general statute of limitations.”7 Therefore, “courts have held without exception that in the absence of a statute which applies specifically to medical license revocation proceedings, statutes of limitations do not apply to such disciplinary proceedings.”8It is a well-established proposition that procedural due process requires notice and the opportunity to be heard in a meaningful time and in a meaningful manner.9 Due process applies when the government seeks to deny a person of a property or liberty interest.10 Physicians have a property interest in their license. Therefore, due process applies to disciplinary proceedings. As one court stated, “[i]t is fundamentally unfair to make a physician defend a nine-year-old complaint when the complaint was not delayed by fraud or the lack of ability to discover the misconduct. To hold otherwise would be to hold that there is no constitutional outer time limit, and we will not do that. Due process is the New Hampshire Constitution's version of the principles of equity, and application of a laches-type doctrine is deemed a part of the process due a person whose economic life and professional career are on the line.”11Precatory language in statutes and regulations is merely a set of recommendations. Precatory language does not create an imperative obligation. Mandatory language in a statute or regulation establishes a duty that the agency must follow. Generally, if the statute does not contain a consequence for the agency's failure to act, then the statute is precatory. If the statute does contain a repercussion for failure to act, then the statute is mandatory.12One court concluded that a legislature, in implementing timeframes, could not have meant for the state to lose jurisdiction.13 Here as elsewhere the public policy of public protection predominates over an individual's desire for a quick resolution.Lake Havasu City v. Arizona Dept. of Health Services established that “uses of the word ‘shall’ in statutes and rules does not mean the language is mandatory because such a construction would undermine the authority of the government.”14 In holding that the secretary of labor, who failed to investigate a claim within a statutory timeframe, did not bar him from continuing with the case, the Supreme Court provided several factors for determining when timeframes divest agencies from acting outside a legislative timeframe. These are legislative history, the statutory consequences for failure to act within the period and the availability of less drastic remedy.15Thus, as established in Sierra Pacific Industries v. Lyng, “[a] statutory time limit is not mandatory unless it both expressly requires an agency or public official to act within a particular period and specifies a consequence for failure to comply with the provision.”16 Nonetheless, even if the language is precatory, laches may still apply.Equitable estoppel is used when a party seeks to enforce a right or perform a duty after the other party has relied upon the inaction. Equitable estoppel requires proof of reliance upon another's conduct to one's detriment.17 Brown v. State Personnel Board found that “The policy to expedite justice underlying the rule exists where the proceeding is before a local administrative agency exercising quasi-judicial functions such as the board… Thus, the administrative agency must diligently pursue the disciplinary action as if it were seeking equitable relief. In measuring diligence the courts will apply notions of laches borrowed from the civil law.”18 Estoppel is very similar to laches; however, laches is the better method for analyzing stale claims. Equitable estoppel focuses on detrimental reliance, while laches focuses on delay and prejudice.Laches is an “equitable doctrine premised on unreasonable delay in asserting a right, which causes disadvantage or prejudice to another.”19 Laches cannot be inferred by the passage of time alone. It must be determined from all of the circumstances of the case, one of which must be the existence of harm caused by the delay. According to Bash v. Board of Medical Practice, “The party asserting laches bears the burden of proving both that the delay was unreasonable and that prejudice resulted from the delay.”20In the administrative law arena, statutes of limitation do not apply, and it is not clear if the doctrine of laches applies. On the one hand, “[laches] has been made applicable to quasi-adjudicative proceedings as a common law policy pursuant to the inherent power of the courts.”21 On the other hand, as in State v. Josefsberg, “the contrary has been held, by the weight of authority, the defense of laches is not available against the government, state or national, in a suit by it to enforce a public right or to protect a public interest…”22If laches applies, the public may be exposed to harm because the board would be stopped from proceeding with the case. If laches does not apply, however, a physician may have to defend against charges that are many years old. In calculating the time to apply to laches, the party must look at both the time it took for the complainant to complain and the time it took for the agency to act upon the complaint.23The first element in demonstrating laches applies is unreasonable delay. What makes the delay unreasonable in the case of laches is that it results in prejudice.24 As noted in Brown v. State Personnel Board: “It is said, ‘[t]here is no fixed rule as to the circumstances that must exist or as to the period of time which must elapse before the doctrine of laches can be appropriately applied.’”25 Ordinarily delay alone does not constitute laches. “Thus ‘[d]elay is not a bar unless it works to the disadvantage or prejudice of other parties.’”26In Stebbins, the court rejected an insurance salesman's argument that he was denied a “speedy trial” because of a 10-month delay while the State Insurance Commission investigated a complaint against him before filing a charge.27 The court agreed that the investigation could have been conducted more expeditiously. As noted in Caldwell v. State Bar: “However, petitioner has cited no cases, nor have we found any, which invalidate an administrative decision solely on the ground that there was a period of unreasonable delay during an agency investigation that preceded the initiation of formal proceedings.”28However, the courts, using their inherent authority, have applied laches to quasi-judicial administrative actions.29 Therefore, the delay must be unreasonable, but delay by itself is not sufficient to apply laches to an agency action or inaction.The second element in demonstrating that laches applies is prejudice because of the delay. Prejudice “cannot be inferred merely from the passage of time.”30 As established in Brown v. State Personnel Board: “Because of the relationship between prejudice and delay, the circumstances which give rise to laches vary widely depending upon their interplay in the specific case.”31 Miller v. Eisenhower Medical Center viewed it this way: “Prejudice is never presumed; rather it must be affirmatively demonstrated by the defendant in order to sustain his burdens of proof and the production of evidence on the issue.”32Excuse is a defense against a laches claim. Occasionally a state agency may have a compelling excuse as to why a significant amount of time elapsed between receiving the complaint and filing charges. Brown v. State Personnel Board found that “In order to excuse delay, [the responsible party] must show exceptional circumstances prevented earlier action.”33 In Sahu, “the Board properly delayed filing the complaint during the pendency of the federal criminal charges, the disciplinary proceeding was commenced within a reasonable time after the conclusion of the criminal trial.”34 Therefore, excuse provides a valid response to a laches claim.Agency mistake may excuse delay. Fahmy v. Medical Board of California noted: “It is matter of common knowledge that statutes of limitation do not run against the State. That no laches can be imputed to the king, and that no time can bar his rights, was the maxim of the common law, and was founded on the principle of public policy, that as he was occupied with the cares of government he ought not to suffer from the negligence of his officers and servants.”35The principle applies to state and national governments, which necessarily act through its agents to preserve the public's interests.36 U.S. v. Nashville stated: “It is settled beyond doubt or controversy, upon the foundation of the great principle of public policy…which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided…”37Lake Havasu City v. Arizona Department of Health Services established that “The United States Supreme Court [held] that there is and must be a strong public policy against allowing the mistakes of an agency or employee to limit the government's ability to enforce its laws.”38 And Brock v. Pierce County noted “We would be most reluctant to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action, especially when important public rights are at stake.”39The government acts within its sovereign authority when it acts to protect the public. Galang v. State Medical Examining Board concluded: “It is well established that the objectives of professional discipline include the rehabilitation of the licensee, the protection of the public, and deterrence to other licensees from engaging in similar conduct.”40 Thus, when the state regulates the medical profession, it is acting in its sovereign capacity and for the public good.41When acting in its sovereign capacity, laches is not a defense. The court has noted the general principle of laches on the part of the government in bringing suit is not to be a defense in the case of a claim which is founded on a sovereign right and held that since this action was brought by the state in its sovereign capacity to protect a public right, the doctrine of laches was not available.42 These are all within the states' sovereign authority to protect the public. Thus, a medical board's disciplinary proceeding should not be barred by laches.Even when, as noted in Webb v. West Virginia Board of Medicine, “there [are] circumstances in a physician discipline proceeding when…a substantial degree of prejudice to a physician that is caused by an unreasonable delay not of the physician's making might nevertheless be outweighed by the strong interests of the state, the public and the profession in fully addressing allegations of serious professional misconduct — so as to tip the equitable balance in favor of continuing with a proceeding.”43Fahmy v. Medical Board of California concluded: “There is without a doubt a realization on the part of the Legislature that administrative agencies such as the Medical Board take action for the public welfare rather than for their own financial gain, and should not be hampered by time limits in the execution of their duty to take protective remedial action. That is particularly true in the case of the Medical Board, which is charged with protecting the lives and health of the citizenry from incompetent or grossly negligent medical practitioners. It is apparent that the Legislature wishes to have the Board protect California patients from physicians who are incapable of providing appropriate services in life or death situations, regardless of how long it takes the Board to act.”44Although its application is rare, occasionally laches is successfully applied in administrative cases. There can be no doubt that time does not bar a sovereign entity when it is acting to protect the public. State government protects the public through medical and osteopathic boards. Therefore, the state boards are just one means for the government to exercise its sovereign authority. Thus, laches should not apply to state board administrative proceedings. The centuries-old axiom Nullum Tempus Occurrit Regi — No Time Runs Against the King — should continue to be the rule.