Towards a Normative Assessment of Probative Value in International Criminal Adjudication

Abstract

The trial is an epistemic event. Yet, the manner in which the probative value of legal evidence is calculated remains largely unarticulated. Thus, in the face of an urgent requirement to advance a normative model of evidential reasoning which serves the needs of decision-makers, practitioners, and experts, this article assesses the utility of three dominant approaches, founded upon the exposition of inferences, scenarios, and probabilities. These find expression in Wigmorean, Narrative, and Bayesian network models, and a number of hybrid approaches. Through an analysis and critique of the foregoing models, the article attempts to discern the optimal normative model of evidential reasoning to be applied in international criminal trials, consonant with Twining’s formulation of rational adjudication, and assessed in accordance with a set of rational evaluation criteria drawn from New Evidence scholarship and its historical forbears.