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

55 Pages Posted: 18 May 2015 Last revised: 30 Jun 2015

See all articles by David Enoch

David Enoch

Hebrew University - The Philosophy Department and the Law School

Talia Fisher

Tel Aviv University - Buchmann Faculty of Law; Harvard Law School; Harvard University - Edmond J. Safra Center for Ethics

Date Written: May 2, 2015

Abstract

Statistical evidence is the subject of a heated and ongoing debate. Courts and legal scholars often view statistical evidence with suspicion, treating it as inadmissible even when it is probabilistically equivalent to individualized evidence. But attempts to vindicate the suspicion or to dismantle it altogether have been largely unsuccessful. The aim of this Article is to provide a comprehensive answer to the statistical evidence debate. The Article offers a novel explanation for the suspicion toward statistical evidence, pointing to the epistemic inferiority of statistical evidence due to its lack of “Sensitivity” — namely, the requirement that a belief be counterfactually sensitive to the truth as a necessary condition of “Knowledge.” After exposing the epistemic distinctions between statistical and individualized evidence, the Article turns to examining their implications for the legal arena. It claims that while the epistemic story provides an explanation for the suspicion toward statistical evidence, it does not provide a justification for this suspicion, for Sensitivity (like epistemology more generally) is not significant in the legal arena. Instead, this Article proposes an incentive-based vindication of the reluctance to use statistical evidence in court and points to the interesting interaction between the epistemic and the incentive-based approaches. After laying down the theoretical foundation, this Article demonstrates its descriptive potential. It demonstrates the proposed theory’s capacity to explain the prevailing legal doctrine and the rules governing the admissibility and sufficiency of statistical evidence across various categories, including DNA evidence and propensity-for-crime evidence as well as incriminating versus exonerating statistical evidence. On the prescriptive front, the Article provides criteria for legal reform and suggests that the admissibility of statistical evidence should be contingent on the type of offense or misconduct alleged against the defendant.

Suggested Citation

Enoch, David and Fisher, Talia, Sense and 'Sensitivity': Epistemic and Instrumental Approaches to Statistical Evidence (May 2, 2015). Stanford Law Review, Vol. 67, No. 557, 2015. Available at SSRN: https://ssrn.com/abstract=2601806

David Enoch (Contact Author)

Hebrew University - The Philosophy Department and the Law School ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

Talia Fisher

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

Harvard University - Edmond J. Safra Center for Ethics ( email )

124 Mount Auburn Street
Suite 520N
Cambridge, MA 02138
United States

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