Interpretative Arguments of Forensic Match Evidence: An Evidentiary Analysis
THE DARTMOUTH LAW JOURNAL, Vol. 8. No. 2, pp. 31-47, 2010
17 Pages Posted: 19 Jan 2010 Last revised: 5 Aug 2019
Date Written: January 19, 2010
The use of forensic match evidence contains an unavoidable paradox: that while it might be more reliable and precise than other forms of evidence, there exists a very real danger that jurors will misapprehend its value, given its quantitative nature. The adversarial process in which attorneys present interpretative arguments designed to bolster their clients’ interests exacerbates this problem. Thompson and Schumann, who coined the Defense Attorney’s Fallacy, conducted the seminal exploration of this issue. This fallacy, along with the Prosecutor’s Fallacy, is pervasive throughout academic literature and has been observed in judicial reasoning. There has been no effort, however, to explore its normative status. By exploring the argument that leads to the Defense Attorney’s Fallacy, this article argues that the underlying reasoning, while intuitively correct, is normatively incongruent. Using an example of database trawling, the article further seeks to elucidate the evidentiary distinction between relevance and sufficiency, which seems lost when commentators discuss the fallacy of the defense attorney. Recognizing this distinction yields refinement in argument and advances clarity in the logical relationship between forensic match evidence and adjudicative determinations of guilt.
Keywords: Defense Attorney Fallacy, Database Trawling, Probative Value, Statistical Reasoning
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