Stein Sp07 Evidence Group Outline_v1

Stein Sp07 Evidence Group Outline_v1 - Evidence Outline –...

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Unformatted text preview: Evidence Outline – Spring 2007 (Stein) 1 Week 1 - Fact-Finding and Risk of Error The Uncertainty Problem : Allocating the Risk of Error Stein , 141-53 • Premise: adjudicative fact-finders need to be cost-efficient • Cost Efficiency: Minimizing the Aggregate Cost of Accuracy and Errors o Costs of error avoidance: includes aggregate cost of trial and pre-trial procedures • Problems: (1) divergence b/w private and social benefits of adjudication – guilty Ds don’t want evidence discovered; innocent Ds want exculpatory evidence at all costs; (2) problem of asymmetric information. • Four categories of rules: (1) decisional rules – determine burdens and standards of proof; minimize aggregate cost of accuracy of errors by skewing the risk of error in the desirable direction (e.g. by preferring false positives over false negatives); (2) process rules – determine what evidence is admissible and what fact-finding methodologies are allowed; (3) credibility rules – adjusts carrots and sticks to try to elicit private information; (4) evidential damage doctrine – places the risk of error on the litigant best position to minimize that risk – i.e. the least cost avoider. • Decisional rules : o If we consider false positives and false negatives to be equally socially objectionable, then the decisional rule that minimizes societal harm is preponderance of the evidence (i.e. p>50%). This rule predominates in civil law where P and D are on theoretically equal footing. o If we take into account that people value losses of money more than gains and diminishing marginal returns (JB – and presumably if we assume that everyone has the same amount of $ to begin with) then we find that total damage is minimized by intermediate payment solution where claimant only receives p 1 D rather than D. (See Stein p. 146) Problems: (1) expected-value rule systematically reduces the payments that the law ordinarily exacts from transgressors; (2) rule erodes difference b/w transgressing and not transgressing o Formal model: Action taken by transgressor if: g – p(1 – e 2 )f > -pe 1 f Where g = expected gain from harmful action; p = prob. of detection; f = pecuniary sanction (fine); e 1 = probability of Type I error (i.e. non-liable D mistakenly found liable); e 2 = probability of Type II error (i.e. liable D mistakenly found not liable) Can rewrite as: Take action if: • g > pf(1-e 2-e 1 ) o Excusatory defenses: Essentially forms of societal leniency; include insanity, infancy, duress, diminished responsibility etc. Society holds the act unexcusable, but excuses the person/grants 2 them leniency. Stein notes that in these cases, because Ds are not altogether innocent, false negatives would not generate more harm than false positives (JB – what? I totally don’t follow this reasoning). Says it’s irrational to apply the same likelihood std. for Ds w/ excusatory defenses as those claiming innocence....
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This note was uploaded on 02/14/2008 for the course LAW 7330 taught by Professor Lushing during the Spring '05 term at Yeshiva.

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Stein Sp07 Evidence Group Outline_v1 - Evidence Outline –...

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