Trial lecture - time and place
Adjudication committee
- Professor Alf Petter Høgberg, University of Oslo
- Professor Christian Dahlman, Lunds university (1. opponent)
- Professor Eivind Kolflaath, University of Bergen (2. opponent)
Chair of defence
Supervisors
Summary
All court decisions have a legal and a factual side. They are based on an understanding of the law and an apprehension of reality – or about what has happened – for example, that the accused has committed the murder he is accused of. Both are in principle equally important for the decision, and they can both be significantly uncertain. But despite this, Norwegian judges are given no training in how to rationally assess the evidence being brought before court, and Norwegian law students learn nothing about evidence assessment during their study. The assessment of evidence in Norwegian courts is instead left to the discretion of the judge and the judges’ gut feelings. This dissertation is intended as a contribution to rectify this imbalance by laying a foundation for a more precise and rational assessment of evidence in Norwegian courts.
Language plays a central role in the thesis. It is through language that we communicate and argue, and it is through language that we describe and understand reality. An accurate and rational assessment of the evidence requires that we speak as precisely as possible about what we know, about the evidence and what it can tell us, and about the uncertainty that will always be present in legal cases. One of the aims of this thesis is to give lawyers a better and more accurate understanding of central and familiar concepts such as 'fact', 'evidence' and 'probability'.
An accurate and rational assessment of the evidence also requires a precise comprehension of the answer to some basic evidence theoretical questions: "What is to be proved?", "Who has to prove it?" And "How strong should the proof be?" What is to be proved, we call the "factum probandum" (Norwegian: "bevistemaet"). Whoever must prove this has "the burden of proof," while the "standard of proof" indicates how strong the evidence must be. The factum probandum, the burden of proof and the standard of proof has not been thoroughly analyzed in newer, Norwegian legal theory. Instead, the words are used imprecisely in ways that lead to confused mix ups and obfuscation. Illustrative of such mix ups, is that the factum probandum is confused with other factual assertions that has been raised before the court, and that the legal burden of proof is mixed together with burdens of proof that are a product of presented evidence and legal or factual presumptions. The dissertation presents new analyzes of these concepts, which are intended to give lawyers a more precise understanding of the legal framework of evidence assessment, allowing for a more precise assessment of the evidence.