The Incompatibility of Due Process and Naked Statistical Evidence

27 Pages Posted: 17 Oct 2015

See all articles by G. Alexander Nunn

G. Alexander Nunn

Texas A&M University School of Law

Date Written: October 14, 2015


Numerous articles and commentaries have grappled with an undeniable feeling of injustice that comes from wrestling with naked statistical evidence. Even if, from a purely quantitative standpoint, the weight of the evidence supports the imposition of liability on a defendant, the sole use of probabilities to assess this liability seems innately unfair. This tension has spawned a great debate that questions the role of naked statistical evidence in today’s legal system. Contributing to this discourse, this Note argues that, in certain circumstances, the use of naked statistical evidence constitutes a due process violation. United States circuit courts have held that the use of “inherently factually contradictory theories violates the principles of due process.” In other words, a due process violation occurs when a prosecutor advances irreconcilable theories for a case against multiple defendants in an attempt to simultaneously secure mutually exclusive verdicts for a single, “lone gunman” crime. The absolute certainty that the prosecutor has presented a false impression in at least one of these trials renders each trial fundamentally unfair.

Extrapolating from this principle, this Note argues that due process violations take a form unique to naked statistical evidence: if the same naked statistical evidence could be used to impose liability on any randomly selected member of a population, and the subsequent imposition of liability on the entire population would constitute a due process violation because of factual impossibility, then imposing liability on even one defendant constitutes a due process violation.

Keywords: evidence, statistics, probabilistic, gatecrasher, blue bus problem, due process

JEL Classification: K14, K40, K41,

Suggested Citation

Nunn, Alex, The Incompatibility of Due Process and Naked Statistical Evidence (October 14, 2015). Vanderbilt Law Review, Vol. 68, No. 5, 2015, Available at SSRN:

Alex Nunn (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX Tarrant County 76102
United States

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