Lottery judgments: A philosophical and experimental study

Philos Phenomenol Research

2019

Recently, the practice of deciding legal cases on purely statistical evidence has been widely criticised. Many feel uncomfortable with finding someone guilty on the basis of bare probabilities, even though the chance of error might be stupendously small. This is an important issue: with the rise of DNA profiling, courts are increasingly faced with purely statistical evidence. A prominent line of argument-endorsed by Blome-Tillmann 2017; Smith 2018; and Littlejohn 2018-rejects the use of such evidence by appealing to epistemic norms that apply to individual inquirers. My aim in this paper is to rehabilitate purely statistical evidence by arguing that, given the broader aims of legal systems, there are scenarios in which relying on such evidence is appropriate. Along the way I explain why popular arguments appealing to individual epistemic norms to reject legal reliance on bare statistics are unconvincing, by showing that courts and individuals face different epistemic predicaments (in short, individuals can hedge when confronted with statistical evidence, whilst legal tribunals cannot). I also correct some misconceptions about legal practice that have found their way into the recent literature. 0. Overview Recently, the practice of deciding legal cases on purely statistical evidence has been widely criticised. 2 Many feel uncomfortable with finding someone guilty on the basis of bare probabilities, even though the chance of error might be stupendously small. This is an important issue: with the rise of DNA profiling, courts are increasingly faced with purely statistical evidence. In a series of prominent papers, various philosophers appeal to epistemic norms governing individual inquirers to argue that legal verdicts should never be based on statistical evidence alone. My project is to show that not only have recent discussions mischaracterised how the law actually treats purely statistical evidence, but also argue that there are cases in which relying on such evidence is justifiable. In developing these claims, I demonstrate why we cannot solve jurisprudential questions by simply appealing to the norms found in theorising about individual epistemic agents. Rather, settling issues of legal theory requires us to look further afield, taking into the account the unique tasks and challenges that face legal systems. 3 This argument will be developed over five sections. In §1, I present the intuitive case against purely statistical evidence, explain why it creates a jurisprudential puzzle, and separate out different responses to this puzzle. In §2, I introduce key concepts of evidence law necessary to fully appreciate legal treatment of statistical evidence. In §3, I demonstrate why DNA profiling is properly characterised as statistical evidence before showing that-contrary to recent assertions-legal systems do not generally prohibit basing verdicts on bare statistics. In §4, I introduce and reject a range of arguments against the use of purely statistical evidence which appeal to epistemic norms that govern individual ...

Section: Smith's Argumentmentioning

confidence: 99%

Section: Rehabilitating Statistical Evidencementioning

confidence: 99%

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Rehabilitating Statistical Evidence

Philos Phenomenol Research

2019

“…2 2 The reluctance to ascribe liability on the basis of statistics is known as the Wells Effect after an empirical study of mock‐jurors (Wells, 1992). This is a piece with a broader phenomenon, often illustrated with lotteries , whereby subjects are reluctant to treat statistical evidence on par with other types of evidence (see Ebert, Smith, & Durbach, 2018). …”

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confidence: 99%

Recent work on the proof paradox

2020

Philosophy Compass

Recent years have seen fresh impetus brought to debates about the proper role of statistical evidence in the law. Recent work largely centers on a set of puzzles known as the “proof paradox.” While these puzzles may initially seem academic, they have important ramifications for the law: raising key conceptual questions about legal proof, and practical questions about DNA evidence. This article introduces the proof paradox, why we should care about it, and new work attempting to resolve it.

“…SeeBackes (2019) for a discussion of the other direction: using legal cases as evidence for theories in epistemology.18 In addition to the papers cited in-text, seeBuchak (2014) for an early influential endorsement of this analogy.19 For empirical study of attitudes towards lottery propositions under different conditions, seeEbert et al (2018).…”

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confidence: 99%

Legal proof and statistical conjunctions

2020

Philos Stud

A question, long discussed by legal scholars, has recently provoked a considerable amount of philosophical attention: 'Is it ever appropriate to base a legal verdict on statistical evidence alone?' Many philosophers who have considered this question reject legal reliance on bare statistics, even when the odds of error are extremely low. This paper develops a puzzle for the dominant theories concerning why we should eschew bare statistics. Namely, there seem to be compelling scenarios in which there are multiple sources of incriminating statistical evidence. As we conjoin together different types of statistical evidence, it becomes increasingly incredible to suppose that a positive verdict would be impermissible. I suggest that none of the dominant views in the literature can easily accommodate such cases, and close by offering a diagnosis of my own.