A risk science perspective on liability/guilt and uncertainty judgements in courts

Abstract

This article aims to provide new insights about risk and uncertainty in law contexts, by incorporating ideas and principles of contemporary risk science. The main focus is on one particular aspect of the law: its operation in courts where a defendant has been charged with a violation of civil or criminal law. Judgements about risk and uncertainty—typically using the probability concept—and how these relate to the evidence play a central role in such situations. The decision on whether the defendant is liable/guilty or not may strongly depend on how these concepts are understood and communicated. Considerable work has been conducted to provide theoretical and practical foundations for the risk and uncertainty characterizations in these contexts. Yet, it can be argued that a proper foundation for linking the evidence and the uncertainty (probability) judgements is lacking, the result being poor communication in courts about risk and uncertainties. The present article seeks to clarify what the problems are and provide guidance on how to rectify them.