Studies On Probability Theory’s Application In Judicial Proof

In the early1960s, the common law scholars had started the attempt of using non-law disciplines to evaluate evidence. Under the background of rational tradition, the common law scholars pushed the evidence law onto path of scientific method and delicate inference. Thereby, the application of mathematical theory of probability in judicial proof has been the focus areas for a long time. Nowadays, the common law scholars have both admitted the role of probability theory in judicial proof and been rethinking of its limitations as a rational analysis method. In recent years, as establishing scientific evidence system has became a hotspot of Chinese evidence law research, the probability theory is also being paid attention by scholars. However, the research literature of this interdisciplinary field is not rich at present. Aiming at such a situation, this article pitches in this interdisciplinary field and pays attention to questions of how to recognize and use probability theory in judicial proof properly.The first part started with an insider trading case, introduced the problems of using probability in judicial proof and the research status at home and abroad. After that, here comes the discussing subject and research significance.The second part listed and analyzed the existence of probability in the field of judicial proof. Probability that present in fields such as probative force and standard of proof is be discussed, author’s own opinion on relevant theories are putted forward in this part of article.The third part interprets the essence of probability in judicial proof form the point of probability philosophy. After the interpretation of the current mainstream theory, this article made a tentative definition of the judicial probability. The conclusion is that the judicial probability which involved the knowledge of probability should be explained by the inter-subjective theory, and the part involves the scientific evidence should be explained by the propensity theory.In the fourth part of this article, a few common problems of applying probability in judicial proof are discussed, such as Bayes theorem, problem of conjunction and the inference chain. Bayes theorem requires us to adjust the subjective reliability when dealing with evidences. And some knowledge of probability can also give us a way to solve the conjunction problem and redundancy evidence.The fifth part summarizes the previous discussion, proves the necessity of scientific evidence system, expresses the author’s idea of judicial probability, then proposes the rethinking of rationalism. This part is the conclusion of this article.