04-08-2026 | PFCE en Razonamiento Probatorio - Jornada 24

Main ideas, concepts, and lessons

1) Evidence and “reasonable doubt” (earlier discussion segment)

• The discussion questions what “judicial error” means when people leave due to error, and whether the standard targets:
  • procedural error, or
  • condemning/convicting the procedurally innocent or the materially innocent.
• It critiques the vagueness around:
  • “doubt” and “reasonable doubt”—how to define it, measure it, and interpret it.
• It argues that verdict standards often assume certainty, but decisions are typically probabilistic, so “certainty” is not attainable.
• Therefore, condemnation without adequate certainty is treated as a mistake; outcomes should be managed as probability-based risk rather than absolute certainty.

2) Core framework: “moments of evidentiary activity” (main lecture)

The speaker distinguishes evidentiary work into three fundamental moments, emphasizing that procedural design must support the full chain—not just evaluation/valuation.

Three moments

1. Forming the set of elements of judgment (the evidentiary “test set”)
   • Collecting and structuring all information used to decide facts.
   • Includes choices about:
     • what evidence/tests to seek,
     • reliability/admissibility criteria,
     • who proposes evidence,
     • and how evidence is obtained or produced.
2. Evaluation of the test (valuation/assessment)
   • After information is gathered, the court/actors assess it (credibility, weight, etc.).
3. Evidentiary decision / decision on the facts
   • A decision about what the facts are.
   • Note: the “assessment” part is treated as conceptually distinct from the final evidentiary decision.

Key lesson of the framework

• Many evidentiary-reasoning discussions over-focus on step 2 (evaluation) while neglecting step 1 (formation/collection quality).
• If the “raw materials” (evidence/test set) are poor, even excellent evaluation cannot yield good outcomes.

3) Incentives and procedural design for truth-seeking (and why polarization is misleading)

The lecture claims truth-seeking improves when:

• more information is available, and
• the information is higher quality / more reliable.

It insists this should guide:

• procedural legislation (how the procedure is built), and
• behavior of process actors (how parties behave within that procedure).

It criticizes simplistic polarization:

• Advocating truth-seeking is not equivalent to supporting an inquisitorial system.

Argument

• An inquisitorial, judge-centered model is said to be poor for truth because judges are less informed than parties about facts and available evidence.
• A purely party-interested model is also problematic because parties may not prioritize truth.
• Therefore, the system should be designed to create appropriate incentives so parties/actors actually produce the necessary evidence.

4) “Gatekeeping” and relevance: admitting all relevant evidence but filtering out noise

The speaker proposes that step 1 should be built around admitting relevant evidence, not everything.

Relevance filtering: instruction-style approach

• Goal: build the richest evidence set that is relevant and reliable, avoiding “garbage” evidence.
• The admission gatekeeper (judge role) should prevent irrelevant evidence from entering because it causes:
  • procedural delays,
  • management costs,
  • cognitive overload.

What counts as relevant evidence?

• Relevance exists if the evidence’s presence/absence changes the probability that a legally relevant event/fact occurred.

• Relevance requires:

  1. Legally relevant fact connection (direct relevance)
     • Example: a witness about a driver wearing a green tie is irrelevant to accident responsibility unless it connects (directly or indirectly) to a legally relevant fact.
  2. Indirect relevance via inference
     • Example: a non-legal detail (green tie) could help identify the driver in a scenario where identifying the driver is legally relevant.

• Combined notion: “relevance” can be understood as pertinence + utility (using senses common in evidence theory).

Key inclusion/exclusion rule

• The lecture cites Bentham’s “principle of inclusion”:
  • Admit all relevant evidence and exclude irrelevant evidence.
• The speaker argues procedural codes also pursue other goals besides truth, including fundamental-rights protection, so sometimes relevant evidence is still excluded.

5) Illegally obtained evidence: not complacent; doctrine may have holes

The speaker discusses exclusionary doctrine (evidence obtained in violation of rights).

• Originally justified mainly as deterrence (to stop police misconduct).
• Critique:
  • It was copied/expanded from the U.S. model and may not fit other proceedings (e.g., defense vs. accusation; civil/labor processes).

Alternative foundation proposed

• Exclusion may also be justified by:
  • integrity/dignity of the process, and
  • the state’s inability to benefit from rights violations.

Colombian wiretap example

• Court authorization covered a meeting on Monday, but the meeting occurred on Tuesday.
• Because the privacy/secrecy right was affected without authorization for Tuesday, the evidence was excluded as unlawfully obtained.

6) Technology and “mass interception” undermines rights protection via exclusion

The lecture claims modern communications interception often involves:

• massive collection,
• routing through global infrastructure,
• filtering/searching via big data,
• and difficulty tracing to a specific human informant.

Consequence

• Exclusion doctrines may fail to protect rights effectively because the “source” of illegal information can be hidden, laundered, or made unverifiable.

Example

• An Amnesty International lawsuit aimed to stop mass interception (courts allegedly held it compatible with human rights).

Lesson

• Don’t assume “exclusion of illegally obtained evidence” automatically solves rights violations—other remedies and control mechanisms may be needed.

7) Inefficiency also constrains what should be admitted/required

Even if evidence is relevant, it may be excluded or not demanded when it is:

• economically inefficient
  • Example: expert evidence costs more than the value of the dispute.
• temporally inefficient
  • Example: if obtaining evidence takes 1–2 years, it can delay truth-finding beyond usefulness.

8) Dynamic burden of proof: incentives theory may fail empirically

Problem

• Parties may have misaligned incentives:
  • the party who has evidence may not want to produce it (because it harms them),
  • while the party who wants it may not have it.

Proposal

• Use a reverse burden so the holder of evidence must produce it.

Empirical critique

• A Brazil study cited:
  • After reversing burdens in cases where the burden-holder possessed damaging evidence, evidence production remained at zero cases over five years.

Practical critique

• Evidence holders may provide substitutes rather than the decisive evidence (e.g., claiming camera failures, offering other testimony/experts).

9) Alternative mechanisms: duties to produce evidence, compulsory measures, and discovery/disclosure

Instead of relying primarily on burdens, the lecture advocates other tools.

A) Duties to produce/offer evidence

• The court can order production when evidence is:
  • in the other party’s possession, and
  • legally required to be kept/available.
• Non-compliance can trigger penalties such as:
  • financial penalties (large enough to matter), and/or
  • procedural sanctions (e.g., losing the case on facts the evidence was meant to prove).

Examples

• Labor law: companies must keep electronic time records; sanctions can apply if they don’t provide them.
• Paternity: refusal to provide samples could justify compulsory collection or sanctions, but collateral harm must be considered (e.g., protecting the child’s best interests).

B) Compulsory evidence collection (with safeguards)

• Coercive collection may be used when:
  • refusal blocks key fact-finding,
  • infringement of rights is minimal or judicial authorization is available.
• Physical integrity considerations:
  • very slight intrusions may be treated differently than severe ones.
• The lecture contrasts compulsory sample collection in some contexts (e.g., traffic accidents) with reluctance in others (e.g., paternity).

C) Discovery / disclosure as an incentive equalizer

• Discovery (pre-trial evidence exchange):
  • One party can request evidence/information held by the other before proceedings begin.
  • Goal: “reveal your hand” so truth-finding isn’t determined purely by wealth or cleverness.
• Analogy:
  • Not a “boxing match” with a passive referee; framed as a public-interest model focused on correct law application and truth.
• Civil liability example (nightclub glass injury):
  • Plaintiff lacks key data about negligence (staff levels, cleaning practices, capacity).
  • If the defendant holds relevant information, discovery mechanisms can force disclosure.
• Criminal England:
  • Not called “discovery,” but “disclosure” via an official ensuring the defense receives investigation material that could help them.
  • Framed as essential to avoiding wrongful conviction.

10) Limited ex officio evidence powers (judicial initiative as “last resort”)

The speaker supports judge-ordered evidence only as an exceptional measure.

• Risk: if judges become investigators, impartiality can be compromised.

Three conditions (from Joan Pico)

1. Evidence must concern a relevant fact.
2. It must arise from other evidence already requested by the parties (not purely “fishing”).
3. Once acquired, it must be presented to cross-examination so parties can challenge it.

Spain / 2017 Catalonia trial example

• A police chief testifies in a way that reveals documentary/test evidence the parties had not requested.
• The judge can order that evidence because it emerges from evidence already presented, and the defense later can cross-examine.

11) Coherentist vs correspondence theories of truth (Q&A on evidence-as-statements)

• The question asks whether evidence-as-statements and evidentiary decisions relate to a coherentist truth view.
• Response:
  • Evidence is sometimes statements, but not always (material exhibits aren’t statements).
  • Even when statement-like, coherence is only necessary, not sufficient:
    • An incoherent hypothesis is always false,
    • but a coherent account can still be false (fiction examples).
• The speaker aligns truth with correspondence (truth depends on matching reality), with coherence as a constraint.

12) Follow-up Q&A: exclusionary doctrine, proportionality/good faith, and organized crime

• The speaker critiques reliance on exclusion as a blanket rule:
  • There are “holes” (many exceptions); it may effectively become admission in practice.
• Independent source concern:
  • It can function like laundering (evidence becomes “whitewashed”).
• Strong point:
  • Excluding evidence is not enough—illegal searches/wiretaps are criminal and should lead to other liabilities too (penal, disciplinary, civil responsibility), not just evidentiary suppression.

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Speaker(s) / sources featured (as named in the subtitles)

1. Dr. Isabelino Galeano (welcoming remarks / “present to say a few words”)
2. Professor Jordi Ferrer (main speaker; explicitly thanked and credited)
3. Dr. Víctor Ríos (Minister of the Supreme Court; mentioned during institutional welcome)
4. Dr. Joel Melgarejo (Columbia University; mentioned during acknowledgements)
5. Dr. Rufinelli (Catholic University; mentioned during acknowledgements)
6. Dr. Mancuello (University of the East; mentioned during acknowledgements)
7. Dr. Miranda (mentioned in institutional itinerary)
8. Dr. Mendonca (court president; mentioned in acknowledgements)
9. Jorge Peirano (Argentina; discussed re dynamic burden of proof)
10. Vítor de Paula Ramos (Brazilian theorist; empirical study discussed)
11. Manuel Mirandes Trampes (named in discussion of process integrity/dignity foundation)
12. Joan Pico (Catalan procedural law expert; proposed conditions for ex officio evidence)
13. Jean (Jeremy) Bentham (called “Benzam” in subtitles; principle of inclusion referenced)
14. Carnelut(t)i / Carnelut (mentioned as criticizing excluding evidence “at any price”)
15. Amnesty International (lawsuit mentioned regarding mass interception)

Institutional roles (e.g., “President of the Council of the Judiciary” and “Vice President”) are referenced but not individually named in the subtitles.