Sense and "Sensitivity": Epistemic and Instrumental Approaches to Statistical Evidence

By Enoch, David; Fisher, Talia | Stanford Law Review, March 2015 | Go to article overview

Sense and "Sensitivity": Epistemic and Instrumental Approaches to Statistical Evidence


Enoch, David, Fisher, Talia, Stanford Law Review


INTRODUCTION I.   A Critical Review of Proposed Solutions to the Statistical      EVIDENCE PUZZLE      A. Exogenous-Factor Claims      B. About-Relation Claims      C. The Causal-Connection Argument      D. Defendant-Specific Claims      E. Justice-in-the-Particular-Case Claims      F. Autonomy Considerations      G. Social-Acceptability Considerations      H. The Guaranteed-False-Conviction Argument II.  THE THEORETICAL FRAMEWORK      A. Justifying Beliefs or Actions?: We Require an Epistemic,         Not a Practical, Framework      B. Some Epistemology: Introducing "Sensitivity"      C. From Epistemology to More Practical Concerns: Should         the Law Care About Sensitivity (or Knowledge)?         1. The remaining puzzle: why care about knowledge?         2. Sanchirico on character evidence         3. Solution: the instrumental significance of being            sensitive III. SOLVING SOME DOCTRINAL PUZZLES      A. DNA Evidence      B. Propensity-for-Crime Evidence at the Guilt Phase of Trial      C. Incriminating Versus Exonerating Statistical Evidence      D. Admissibility Versus Sufficiency of Statistical Evidence IV.  PRESCRIPTIVE ANALYSIS CONCLUSION 

INTRODUCTION

"For nearly twenty years, law journals have been the forum for a bitter debate about the use at trial of overtly probabilistic evidence and methods," wrote Jonathan J. Koehler and Daniel N. Shaviro in 1990. (1) More than two decades have passed since then, but these words still hold true. Despite the voluminous body of literature dedicated to the issue of statistical evidence, it continues to generate great controversy in evidence law scholarship. Questions regarding the admissibility and sufficiency of statistical evidence arise in court with ever-growing frequency, with seemingly inconsistent treatment in the case law. (2) The aim of this Article is to dispel some of the confusion surrounding the use of statistical evidence in the legal arena by connecting the statistical evidence debate to broader epistemic discussions and by highlighting "Sensitivity"--that is, the requirement that a belief be counterfactually sensitive to the truth--as a way of epistemically explaining the suspicion toward statistical evidence. After exposing the epistemic distinctions between statistical and individualized evidence, the Article turns to examining their implications for the legal arena. We will use the epistemic discourse on Sensitivity as well as an instrumental analysis to address the descriptive and prescriptive challenges that statistical evidence poses.

One starting point for the statistical evidence debate is the classic Blue Bus hypothetical, (3) which is a variant of Smith v. Rapid Transit, Inc., (4) a seminal case in modern evidence law. The hypothetical consists of two cases. In both cases, a runaway bus injures the plaintiff, and the case goes to trial against the eponymous bus company. In the first case, the evidence includes eyewitness testimony that one of the Blue Bus Company's buses caused the injury. The witness, however, is imperfectly reliable. To illustrate, let us assume her to be 70% reliable in such circumstances. In the second case, however, there is no eyewitness to the accident. Instead, the plaintiff seeks to introduce evidence about the Blue Bus Company's market share in the area where the accident took place. The uncontested market share data show that the Blue Bus Company owns 70% of the buses in the relevant area. This, the plaintiff argues, shows that it is more likely that one of the Blue Bus Company's vehicles was involved in the accident, because Blue Bus is the largest bus company in the area with the greatest number of buses on the road.

Even though the evidence in both cases may be of equal probative value, our responses to the two cases are very different. Most people (lawyers and laypeople alike) find nothing problematic in basing a finding on the eyewitness evidence in the first case but are very reluctant to ground a finding on the market share evidence in the second case. …

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