A STUDY OF THE THEORY OF APPRAISAL FOR SELECTION By ...

The courts thus enter the realm of probabilities and the
apportioning of probative value. Because of the limitations
surrounding the evidence of past events, the conclusion of the
court "is much more likely to be a conclusion as to what probably
happened than a conclusion as to what actually did happen."7
Courts, therefore, must rely on degrees of persuasion, on
"somebody's evaluation of the likelihood of a future event
happening, or of a past event having happened. . . ."8 The
determination of degrees of probabilities, which range from
certainty to improbability, is dependent on the concept of the
"reasonable" person. Its central failing is that reason cannot
be precisely or consistently identified or evaluated within the
context of probabilities. In this manner, the identification of
subjective probabilities becomes inexorably tied to the seemingly
contradictory notion of subjective reason.
As several judgements demonstrate, "reasonableness" is
rarely self-evident, particularly within the framework of the
more stringent requirements of criminal law for proof beyond a
reasonable doubt. The concept of a rational conclusion in the
context of a court setting is a fluid one because the jury sets
the logical parameters in which reason is established:
A rational conclusion and a rational
explanation cannot be equated in the
administration of the criminal law with a
reasonable conclusion and a reasonable
explanation. The jury set for themselves the
7 Eggleston, Proof, 33.
8 Ibid, 10.
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