PROOF BEYOND A REASONABLE DOUBT DOESN’T EXIST: EXCEPT AS AN EMERGENT PROPERTY OF A COMPLEX ADAPTIVE SYSTEM.
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| Title: | PROOF BEYOND A REASONABLE DOUBT DOESN’T EXIST: EXCEPT AS AN EMERGENT PROPERTY OF A COMPLEX ADAPTIVE SYSTEM. |
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| Authors: | ALLEN, RONALD J., ELLIOTT-SMITH, NICOLAS |
| Source: | Journal of Criminal Law & Criminology. 2026, Vol. 115 Issue 4, p783-820. 38p. |
| Subjects: | Complexity (Philosophy), Burden of proof, Plea bargaining, Nonlinear systems, Evidentialism, Federal Rules of Evidence (U.S.), American law |
| Abstract: | The pursuit of knowledge is undergoing a transformation. Scientists and scholars are rejecting standard reductionist efforts, popularly captured by "the scientific method" and embracing the framework of complexity theory and complex adaptive systems. That framework is invaluable to understand both the law of evidence and the nature of Anglo-American legal systems. It also has significant implications for the ongoing debate over the concept of law. This Article demonstrates how "proof beyond a reasonable doubt" (BARD) does not exist in any knowable form, except as an emergent property of a complex adaptive system—the criminal process. First, what constitutes BARD will vary within any jurisdiction. BARD is a linguistically vague and indeterminate standard. Second, evidentiary and procedural regimes will differ from state to state and from country to country. Differences in such regimes will functionally affect what constitutes BARD. We demonstrate how plea bargaining, declination, and diversionary programs will affect what constitutes BARD by affecting the proportion of factually guilty and innocent defendants that proceed to trial (incidentally affecting any distribution of errors). Third, we account for and respond to how the debate surrounding BARD is imbued with a deterministic focus on solving what BARD is and should be, which has proven to be a futile quest. Scholars must embrace—not ignore—the complexity that permeates our evidentiary and procedural regimes. [ABSTRACT FROM AUTHOR] |
| Copyright of Journal of Criminal Law & Criminology is the property of Northwestern University School of Law and its content may not be copied or emailed to multiple sites without the copyright holder's express written permission. Additionally, content may not be used with any artificial intelligence tools or machine learning technologies. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.) | |
| Database: | Psychology and Behavioral Sciences Collection |
| FullText | Links: – Type: pdflink Text: Availability: 0 |
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| Header | DbId: pbh DbLabel: Psychology and Behavioral Sciences Collection An: 191277890 AccessLevel: 6 PubType: Academic Journal PubTypeId: academicJournal PreciseRelevancyScore: 0 |
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| Items | – Name: Title Label: Title Group: Ti Data: PROOF BEYOND A REASONABLE DOUBT DOESN’T EXIST: EXCEPT AS AN EMERGENT PROPERTY OF A COMPLEX ADAPTIVE SYSTEM. – Name: Author Label: Authors Group: Au Data: <searchLink fieldCode="AR" term="%22ALLEN%2C+RONALD+J%2E%22">ALLEN, RONALD J.</searchLink><br /><searchLink fieldCode="AR" term="%22ELLIOTT-SMITH%2C+NICOLAS%22">ELLIOTT-SMITH, NICOLAS</searchLink> – Name: TitleSource Label: Source Group: Src Data: <searchLink fieldCode="JN" term="%22Journal+of+Criminal+Law+%26+Criminology%22">Journal of Criminal Law & Criminology</searchLink>. 2026, Vol. 115 Issue 4, p783-820. 38p. – Name: Subject Label: Subjects Group: Su Data: <searchLink fieldCode="DE" term="%22Complexity+%28Philosophy%29%22">Complexity (Philosophy)</searchLink><br /><searchLink fieldCode="DE" term="%22Burden+of+proof%22">Burden of proof</searchLink><br /><searchLink fieldCode="DE" term="%22Plea+bargaining%22">Plea bargaining</searchLink><br /><searchLink fieldCode="DE" term="%22Nonlinear+systems%22">Nonlinear systems</searchLink><br /><searchLink fieldCode="DE" term="%22Evidentialism%22">Evidentialism</searchLink><br /><searchLink fieldCode="DE" term="%22Federal+Rules+of+Evidence+%28U%2ES%2E%29%22">Federal Rules of Evidence (U.S.)</searchLink><br /><searchLink fieldCode="DE" term="%22American+law%22">American law</searchLink> – Name: Abstract Label: Abstract Group: Ab Data: The pursuit of knowledge is undergoing a transformation. Scientists and scholars are rejecting standard reductionist efforts, popularly captured by "the scientific method" and embracing the framework of complexity theory and complex adaptive systems. That framework is invaluable to understand both the law of evidence and the nature of Anglo-American legal systems. It also has significant implications for the ongoing debate over the concept of law. This Article demonstrates how "proof beyond a reasonable doubt" (BARD) does not exist in any knowable form, except as an emergent property of a complex adaptive system—the criminal process. First, what constitutes BARD will vary within any jurisdiction. BARD is a linguistically vague and indeterminate standard. Second, evidentiary and procedural regimes will differ from state to state and from country to country. Differences in such regimes will functionally affect what constitutes BARD. We demonstrate how plea bargaining, declination, and diversionary programs will affect what constitutes BARD by affecting the proportion of factually guilty and innocent defendants that proceed to trial (incidentally affecting any distribution of errors). Third, we account for and respond to how the debate surrounding BARD is imbued with a deterministic focus on solving what BARD is and should be, which has proven to be a futile quest. Scholars must embrace—not ignore—the complexity that permeates our evidentiary and procedural regimes. [ABSTRACT FROM AUTHOR] – Name: AbstractSuppliedCopyright Label: Group: Ab Data: <i>Copyright of Journal of Criminal Law & Criminology is the property of Northwestern University School of Law and its content may not be copied or emailed to multiple sites without the copyright holder's express written permission. Additionally, content may not be used with any artificial intelligence tools or machine learning technologies. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract.</i> (Copyright applies to all Abstracts.) |
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| RecordInfo | BibRecord: BibEntity: Languages: – Code: eng Text: English PhysicalDescription: Pagination: PageCount: 38 StartPage: 783 Subjects: – SubjectFull: Complexity (Philosophy) Type: general – SubjectFull: Burden of proof Type: general – SubjectFull: Plea bargaining Type: general – SubjectFull: Nonlinear systems Type: general – SubjectFull: Evidentialism Type: general – SubjectFull: Federal Rules of Evidence (U.S.) Type: general – SubjectFull: American law Type: general Titles: – TitleFull: PROOF BEYOND A REASONABLE DOUBT DOESN’T EXIST: EXCEPT AS AN EMERGENT PROPERTY OF A COMPLEX ADAPTIVE SYSTEM. Type: main BibRelationships: HasContributorRelationships: – PersonEntity: Name: NameFull: ALLEN, RONALD J. – PersonEntity: Name: NameFull: ELLIOTT-SMITH, NICOLAS IsPartOfRelationships: – BibEntity: Dates: – D: 01 M: 01 Text: 2026 Type: published Y: 2026 Identifiers: – Type: issn-print Value: 00914169 Numbering: – Type: volume Value: 115 – Type: issue Value: 4 Titles: – TitleFull: Journal of Criminal Law & Criminology Type: main |
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