Individual and Group Decision Making: Current Issues

By N. John Castellan Jr. | Go to book overview

CHAPTER
8
THE NORMATIVE STATUS
OF BASE RATES AT TRIAL

Jonathan J. Koehler University of Texas

Quantitative probability . . . is not proof, nor even probative evidence of the proposition to be proved. That in one throw of the dice there is a quantitative probability, or greater chance, that a less number of spots than sixes will fall uppermost is no evidence whatever that in a given throw such was the actual result. Without something more, the actual result of the throw would still be utterly unknown. The slightest real evidence that sixes did in fact fall uppermost would outweigh all the probability otherwise.

-- Day v. Boston and Maine R.R., 1902, p. 774

Although poorly reasoned and written long before the recent surge in the use of quantitative evidence at trial (see Fienberg, 1989), the conclusions of the Day court reflect a judicial wariness of probability evidence that persists today. Some courts and legal scholars believe that the use of probabilistic evidence and methods at trial is inconsistent with certain goals and values of the judicial process ( Cohen, 1977; for an early judicial opinion along these lines, see Virginia v. Hawk, 1908). It has been argued, for example, that the notion of individualized justice is compromised when probabilistic arguments-- arguments that obtain their force from factors and situations other than those immediately at issue in the present case--are used to help convict a defendant ( Nesson, 1985; Tribe, 1971).

A second set of arguments regards the introduction of probability evidence to be at once confusing and seductive. Accordingly, jurors will be overly impressed with probabilities and statistics and underweight other probative (i.e.,

-137-

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