Legal epistemology has been an area of great philosophical growth since the turn of the century. But recently, a number of philosophers have argued the entire project is misguided, claiming that it relies on an illicit transposition of the norms of individual epistemology to the legal arena. This paper uses these objections as a foil to consider the foundations of legal epistemology, particularly as it applies to the criminal law. The aim is to clarify the fundamental commitments of legal epistemology (...) and suggest a way to vindicate it. (shrink)

Philosophical Issues, Volume 31, Issue 1, Page 146-166, October 2021.

Philosophical Issues, Volume 31, Issue 1, Page 85-103, October 2021.

While many of us would not want to abandon the requirement that a defendant can only be found guilty of a serious criminal offence by a unanimous jury, we should not expect epistemology to give us the resources we need for justifying this requirement. The doubts that might prevent jurors from reaching unanimity do not show that, say, the BARD standard has not been met. Even if it were true, as some have suggested, that rationality requires that a jury composed (...) of epistemic peers should coalesce around one view about the defendant’s guilt, the failure to reach unanimity might be a good reason to worry about the epistemic failings of some small number of jurors but no reason to worry that we’ve failed to protect the defendant from an unjustified imposition of, say, the risk against wrongful conviction. The arguments for the unanimity requirement will need to come from outside of epistemology. (shrink)

I argue that traditional views on which beliefs are subject only to purely epistemic assessment can reject demographic profiling, even when based on seemingly robust evidence. This is because the moral failures involved in demographic profiling can be located in the decision not to suspend judgment, rather than supposing that beliefs themselves are a locus of moral evaluation. A key moral reason to suspend judgment when faced with adverse demographic evidence is to promote social equality—this explains why positive profiling is (...) dubious, along with more familiar cases of negative profiling, and why profiling is suspect even when no particular action is at stake. My suspension-based view, while compatible with revisionary normative positions, does not presuppose them. Philosophers of all stripes can reject demographic profiling both in thought and deed. (shrink)

A question, long discussed by legal scholars, has recently provoked a considerable amount of philosophical attention: ‘Is it ever appropriate to base a legal verdict on statistical evidence alone?’ Many philosophers who have considered this question reject legal reliance on bare statistics, even when the odds of error are extremely low. This paper develops a puzzle for the dominant theories concerning why we should eschew bare statistics. Namely, there seem to be compelling scenarios in which there are multiple sources of (...) incriminating statistical evidence. As we conjoin together different types of statistical evidence, it becomes increasingly incredible to suppose that a positive verdict would be impermissible. I suggest that none of the dominant views in the literature can easily accommodate such cases, and close by offering a diagnosis of my own. (shrink)

Recent years have seen fresh impetus brought to debates about the proper role of statistical evidence in the law. Recent work largely centres on a set of puzzles known as the ‘proof paradox’. While these puzzles may initially seem academic, they have important ramifications for the law: raising key conceptual questions about legal proof, and practical questions about DNA evidence. This article introduces the proof paradox, why we should care about it, and new work attempting to resolve it.

A jury needs “proof beyond a reasonable doubt” in order to convict a defendant of a crime. The standard is vexingly difficult to pin down, but some legal epistemologists have given this account: knowledge is the standard of legal proof. On this account, a jury should deliver a guilty verdict just in case they know that the defendant is guilty. In this paper, I’ll argue that legal proof requires more than just knowledge that a defendant is guilty. In cases of (...) “merely predictive evidence,” a jury knows that the defendant is guilty but does not have legal proof. What are they missing? Evidence that is causally downstream from the crime. Legal proof requires a “smoking gun.” The point generalizes outside of the courtroom. A professor needs to read a term paper before assigning a grade, even if she knows the student will produce A + work. You may know that your roommate will forget to water the plants while you are away—she is scatterbrained and always forgets these things—but you can’t blame her until you get back home and see that the plants are wilting. In order to have appropriate reactions or reactive attitudes, we must respond causally to what other people have done. (shrink)

Do privacy rights restrict what is permissible to infer about others based on statistical evidence? This paper replies affirmatively by defending the following symmetry: there is not necessarily a morally relevant difference between directly appropriating people’s private information—say, by using an X-ray device on their private safes—and using predictive technologies to infer the same content, at least in cases where the evidence has a roughly similar probative value. This conclusion is of theoretical interest because a comprehensive justification of the thought (...) that statistical inferences can violate privacy rights is lacking in the current literature. Secondly, the conclusion is of practical interest due to the need for moral assessment of emerging predictive algorithms. (shrink)

Philosophical debates over statistical evidence have long been framed and dominated by L. Jonathan Cohen's Paradox of the Gatecrasher and a related hypothetical example commonly called Prison Yard. These examples, however, raise an issue not discussed in the large and growing literature on statistical evidence – the question of what statistical evidence is supposed to be evidence of. In actual practice, the legal system does not start with a defendant and then attempt to determine if that defendant has committed some (...) unspecified or under-specified act, as these examples appear to suppose. Rather, both criminal and civil litigation start with a sufficiently specified act and then attempt to determine if the defendant has committed it. And when we start with a more fully specified act, the statistics look very different, and these prominent examples no longer present the paradox they are claimed to support. Examining the issue of specification, however, does more than simply undercut the prominent examples in a long and extensive literature. The examination also raises normative issues challenging the legal system's traditional reluctance to base liability on the conjunction of probabilities. (shrink)

This paper aims to answer the following question: what is the normative connection between paternalism and the paternalist’s belief about the recipient’s agency? I consider the following two views. _The Robust View_ says that paternalism is _pro tanto_ wrong insofar as the paternalist’s belief about the recipient’s agency is always disrespectful. _The Less Robust View_ says that whenever the paternalist’s belief about the recipient’s agency is disrespectful, paternalism is _pro tanto_ wrong. I interpret the major motive-based theories of paternalism as (...) endorsing the Robust view. While this view is susceptible to a devastating criticism, I argue that the Less Robust view is true. To make my case, I elucidate three ways in which the paternalist may come to hold a disrespectful belief about the recipient’s agency. I then argue that any paternalistic action which is predicated on or motivated by a disrespectful belief about the recipient’s agency is _pro tanto_ wrong. Consequently, I suggest that motive-based theorists endorse the Less Robust view instead. (shrink)