Novel facts

The relevance of predictions in criminal law

How can alternative scenarios be analysed and compared? The theory of anchored narratives or scenario-theory emphasises the importance of discriminating facts, i.e. facts that are only or better explained by one scenario and fit less well or conflict with the alternative. In this paper, I argue that the distinction between the explanation of known facts and the prediction of unknown, i.e. novel facts should also play a role in the assessment of scenarios. The central question of this paper is: should novel evidential facts have more probative force than known evidential facts and if so why?

1 Introduction – a case

Let me1 begin by introducing a simplified case2 that I will use throughout this paper to illustrate my question.

1.1 Scenario

A woman is found dead in the living room of her house. The guilt-scenario (S) underlying the indictment hypotheses is that the woman was killed by her husband by stabbing her 70 times with a knife. There is, however, not much evidence against him. The main piece of evidence is a stain of his wife’s blood on his clothes.

1.2 Statement of defendant

At first the defendant only states that at the time of the killing he was with a friend and that he found his wife dead when he got home. From then on he invokes his right to remain silent. There is no doubt that he has been at his friend’s place; there is sufficient reliable evidence among which a reliable testimony of the…

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