I discuss the epistemic status of algorithmic predictions in the legal realm. My main claim is that algorithmic predictions do not give us knowledge, not even probabilistic knowledge. The situation, however, is relevantly different from the one in which we find ourselves at the time of assessing statistical evidence in general, and it is rather related to the fact that algorithmic fairness in legal contexts is essentially undetermined. In the light of this, we have to settle for justified beliefs and (...) justified credences. I end by drawing some morals for the Knowledge Norm of action. (shrink)

The proof paradox results from conflicting intuitions concerning different types of fallible evidence in a court of law. We accept fallible individual evidence but reject fallible statistical evidence even when the conditional probability that the defendant is guilty given the evidence is the same, a seeming inconsistency. This paper defends a solution to the proof paradox, building on a sensitivity account of checking and settling a question. The proposed sensitivity account of legal proof not only requires sensitivity simpliciter but sensitivity (...) of each relevant step of the proof procedure and/or sensitivity concerning all relevant alternatives. This account avoids problems that have been identified for other sensitivity views of legal proof. Moreover, it is argued that sensitivity, rather than safety, is the crucial modal condition for legal proof. It is, finally, shown that the provided account can fruitfully support very different existing views on the relationship between knowledge and legal proof. (shrink)

In epistemology, the concept of knowledge is of distinctive interest. This fact is also reflected in the discussion of epistemic value, which focuses to a large extend on the value problem of knowledge. This discussion suggests that knowledge has an outstanding value among epistemic standings because its value exceeds the value of its constitutive parts. I will argue that the value of knowledge is not outstanding by presenting epistemic standings of checking, transferring knowledge, and proving in court, whose values exceed (...) the value of knowledge in certain contexts. Moreover, the values of these other epistemic standings do not always rely on the value of knowledge. In terms of value, knowledge is not an outstanding epistemic concept. Hence, in terms of value we cannot find support for the privileged position that knowledge enjoys in epistemology. (shrink)

This essay presents a unified account of safety, sensitivity, and severe testing. S’s belief is safe iff, roughly, S could not easily have falsely believed p, and S’s belief is sensitive iff were p false S would not believe p. These two conditions are typically viewed as rivals but, we argue, they instead play symbiotic roles. Safety and sensitivity are both valuable epistemic conditions, and the relevant alternatives framework provides the scaffolding for their mutually supportive roles. The relevant alternatives condition (...) holds that a belief is warranted only if the evidence rules out relevant error possibilities. The safety condition helps categorise relevant from irrelevant possibilities. The sensitivity condition captures ‘ruling out’. Safety, sensitivity, and the relevant alternatives condition are typically presented as conditions on warranted belief or knowledge. But these properties, once generalised, help characterise other epistemic phenomena, including warranted inference, legal verdicts, scientific claims, reaching conclusions, addressing questions, warranted assertion, and the epistemic force of corroborating evidence. We introduce and explain Mayo’s severe testing account of statistical inference. A hypothesis is severely tested to the extent it passes tests that probably would have found errors, were they present. We argue Mayo’s account is fruitfully understood using the resulting relevant alternatives framework. Recasting Mayo’s condition using the conceptual framework of contemporary epistemology helps forge fruitful connections between two research areas—philosophy of statistics and the analysis of knowledge—not currently in sufficient dialogue. The resulting union benefits both research areas. (shrink)

A vast literature has developed probing the law's aversion to statistical/probability evidence in general and its rejection of naked statistical evidence in particular. This literature rests on false premises. At least so far as US law is concerned, there is no general aversion to statistical forms of proof and even naked statistics are admissible and sufficient for a verdict when the evidentiary proffer meets the normal standards of admissibility, the most important of which is reliability. The belief to the contrary (...) rests upon a series of mistakes: most importantly, mismodeling of the structure of legal systems and the nature of common law decision making. Contributing to these mistakes is the common methodology in this literature of relying on weird hypotheticals that mismodel the underlying legal relations and contain impossible epistemological demands. Collectively, these phenomena have distracted attention from issues that actually affect real legal systems. (shrink)

The notion of individualised evidence holds the key to solve the puzzle of statistical evidence, but there’s still no consensus on how exactly to define it. To make progress on the problem, epistemologists have proposed various accounts of individualised evidence in terms of causal or modal anti-luck conditions on knowledge like appropriate causation, sensitivity and safety. In this paper, I show that each of these fails as satisfactory anti-luck condition, and that such failure lends abductive support to the following conclusion: (...) once the familiar anti-luck intuition on knowledge is extended to individualised evidence, no single causal or modal anti-luck condition on knowledge can succeed as the right anti-luck condition on individualised evidence. This conclusion casts serious doubts on the fruitfulness of the move from anti-luck conditions on knowledge to anti-luck conditions on individualised evidence. I expand on these doubts and point out further aspects where epistemology and the law come apart: epistemic anti- luck conditions on knowledge do not adequately characterise the legal notion of individualised evidence. (shrink)

In legal proceedings, a fact-finder needs to decide whether a defendant is guilty or not based on probabilistic evidence. We defend the thesis that the defendant should be found guilty just in case it is rational for the fact-finder to believe that the defendant is guilty. We draw on Leitgeb’s stability theory for an appropriate notion of rational belief and show how our thesis solves the problem of statistical evidence. Finally, we defend our account of legal proof against challenges from (...) Staffel and compare it to a recent competitor put forth by Moss. (shrink)

Philosophical Issues, Volume 31, Issue 1, Page 188-209, October 2021.

Philosophical Issues, Volume 31, Issue 1, Page 128-145, October 2021.

Philosophical Issues, Volume 31, Issue 1, Page 167-187, October 2021.

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

This paper defends the heretical view that, at least in some cases, we ought to assign legal liability based on purely statistical evidence. The argument draws on prominent civil law litigation concerning pharmaceutical negligence and asbestos-poisoning. The overall aim is to illustrate moral pitfalls that result from supposing that it is never appropriate to rely on bare statistics when settling a legal dispute.

For the past half-century, both jurisprudence and epistemology have been haunted by questions about why individual evidence (i.e., evidence which picks out a specific individual) can sufficiently justify a guilty or liable verdict while bare statistical evidence (i.e., statistical evidence which does not pick out a specific individual) does not sufficiently justify such a verdict. This thesis examines three popular justifications for such a disparity in verdicts – Judith Jarvis Thomson’s causal account, Enoch et al.’s sensitivity account, and Sarah Moss’ (...) knowledge-first account, before critiquing each in turn. After such an analysis, the thesis then defends the claim that legal verdicts require the factfinder (e.g., the judge or jury) to have a justified de re belief (i.e., a belief about a specific object – namely the defendant), and that this doxastic requirement justifies the disparity in rulings, as it is epistemically insufficient to justify a de re belief based on bare statistical evidence alone. A brief account of how these beliefs are formed and spread is also given. After making such a distinction, the thesis then formalizes the burdens of proof of the preponderance of the evidence and beyond a reasonable doubt using the de re/de dicto distinction. Finally, the thesis pre-empts possible objections, namely by providing an account of DNA evidence as individual evidence and giving an account of how false convictions can occur on the de re view of legal proof. (shrink)

Statistical evidence—say, that 95% of your co-workers badmouth each other—can never render resenting your colleague appropriate, in the way that other evidence (say, the testimony of a reliable friend) can. The problem of statistical resentment is to explain why. We put the problem of statistical resentment in several wider contexts: The context of the problem of statistical evidence in legal theory; the epistemological context—with problems like the lottery paradox for knowledge, epistemic impurism and doxastic wrongdoing; and the context of a (...) wider set of examples of responses and attitudes that seem not to be appropriately groundable in statistical evidence. Regrettably, we do not come up with a fully general, fully adequate, fully unified account of all the phenomena discussed. But we give reasons to believe that no such account is forthcoming, and we sketch a somewhat messier account that may be the best that can be had here. (shrink)

Using pure statistical evidence about a group to judge a particular member of that group is often found objectionable. One natural explanation of why this is objectionable appeals to the moral notion of respecting individuality: to properly respect individuality, we need individualized evidence, not pure statistical evidence. However, this explanation has been criticized on the ground that there is no fundamental difference between the so-called “individualized evidence” and “pure statistical evidence”. This paper defends the respecting-individuality explanation by developing an account (...) of what it means to respect individuality. It combines an idealistic account of respecting individuality and a prioritization account of respecting individuality, and offers a principled way to distinguish individualized evidence from non-individualized evidence. (shrink)

Discrimination is a central epistemic capacity but typically, theories of discrimination only use discrimination as a vehicle for analyzing knowledge. This paper aims at developing a self-contained theory of discrimination. Internalist theories of discrimination fail since there is no compelling correlation between discriminatory capacities and experiences. Moreover, statistical reliabilist theories are also flawed. Only a modal theory of discrimination is promising. Versions of sensitivity and adherence that take particular alternatives into account provide necessary and sufficient conditions on discrimination. Safety in (...) contrast is not sufficient for discrimination as there are cases of safety that are clearly instances of discrimination failure. The developed account of discrimination between objects will be extended to discrimination between kinds and between types. (shrink)

This essay introduces the ‘she said, he said’ paradox for Title IX investigations. ‘She said, he said’ cases are accusations of rape, followed by denials, with no further significant case-specific evidence available to the evaluator. In such cases, usually the accusation is true. Title IX investigations adjudicate sexual misconduct accusations in US educational institutions; I address whether they should be governed by the ‘preponderance of the evidence’ standard of proof or the higher ‘clear and convincing evidence’ standard. -/- Orthodoxy holds (...) that the ‘preponderance’ standard is satisfied if the evidence adduced renders the litigated claim more likely than not. On this view, I argue, ‘she said, he said’ cases satisfy the ‘preponderance’ standard. But this consequence conflicts with plausible liberal and feminist claims. In this essay I contrast the ‘she said, he said’ paradox with legal epistemology’s proof paradox. I explain how both paradoxes arise from the distinction between individualised and non-individualised evidence, and I critically evaluate responses to the ‘she said, he said’ paradox. (shrink)

According to the Rational Threshold View, a rational agent believes p if and only if her credence in p is equal to or greater than a certain threshold. One of the most serious challenges for this view is the problem of statistical evidence: statistical evidence is often not sufficient to make an outright belief rational, no matter how probable the target proposition is given such evidence. This indicates that rational belief is not as sensitive to statistical evidence as rational credence. (...) The aim of this paper is twofold. First, we argue that, in addition to playing a decisive role in rationalizing outright belief, non-statistical evidence also plays a preponderant role in rationalizing credence. More precisely, when both types of evidence are present in a context, non-statistical evidence should receive a heavier weight than statistical evidence in determining rational credence. Second, based on this result, we argue that a modified version of the Rational Threshold View can avoid the problem of statistical evidence. We conclude by suggesting a possible explanation of the varying sensitivity to different types of evidence for belief and credence based on the respective aims of these attitudes. (shrink)

In some cases, there appears to be an asymmetry in the evidential value of statistical and more individualized evidence. For example, while I may accept that Alex is guilty based on eyewitness testimony that is 80% likely to be accurate, it does not seem permissible to do so based on the fact that 80% of a group that Alex is a member of are guilty. In this paper I suggest that rather than reflecting a deep defect in statistical evidence, this (...) asymmetry might arise from a general constraint on rational inquiry. Plausibly the degree of evidential support needed to justify taking a proposition to be true depends on the stakes of error. While relying on statistical evidence plausibly raises the stakes by introducing new kinds of risk to members of the reference class, paradigmatically `individualized' evidence---evidence tracing back to A's voluntary behavior---can lower the stakes. The net result explains the apparent evidential asymmetry without positing a deep difference in the brute justificatory power of different types of evidence. (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.

Martin Smith has recently proposed, in this journal, a novel and intriguing approach to puzzles and paradoxes in evidence law arising from the evidential standard of the Preponderance of the Evidence. According to Smith, the relation of normic support provides us with an elegant solution to those puzzles. In this paper I develop a counterexample to Smith’s approach and argue that normic support can neither account for our reluctance to base affirmative verdicts on bare statistical evidence nor resolve the pertinent (...) paradoxes. Normic support is, as a consequence, not a successful epistemic anti-luck condition. (shrink)

ABSTRACTIn a recent paper, Michael Pardo argues that the epistemic property that is legally relevant is the one called Safety, rather than Sensitivity. In the process, he argues against our Sensitivity-related account of statistical evidence. Here we revisit these issues, partly in order to respond to Pardo, and partly in order to make general claims about legal epistemology. We clarify our account, we show how it adequately deals with counterexamples and other worries, we raise suspicions about Safety's value here, and (...) we revisit our general skepticism about the role that epistemological considerations should play in determining legal policy. (shrink)

Recently, the practice of deciding legal cases on purely statistical evidence has been widely criticised. Many feel uncomfortable with finding someone guilty on the basis of bare probabilities, even though the chance of error might be stupendously small. This is an important issue: with the rise of DNA profiling, courts are increasingly faced with purely statistical evidence. A prominent line of argument—endorsed by Blome-Tillmann 2017; Smith 2018; and Littlejohn 2018—rejects the use of such evidence by appealing to epistemic norms that (...) apply to individual inquirers. My aim in this paper is to rehabilitate purely statistical evidence by arguing that, given the broader aims of legal systems, there are scenarios in which relying on such evidence is appropriate. Along the way I explain why popular arguments appealing to individual epistemic norms to reject legal reliance on bare statistics are unconvincing, by showing that courts and individuals face different epistemic predicaments (in short, individuals can hedge when confronted with statistical evidence, whilst legal tribunals cannot). I also correct some misconceptions about legal practice that have found their way into the recent literature. (shrink)

Smith argues that, unlike other forms of evidence, naked statistical evidence fails to satisfy normic support. This is his solution to the puzzles of statistical evidence in legal proof. This paper focuses on Smith’s claim that DNA evidence in cold-hit cases does not satisfy normic support. I argue that if this claim is correct, virtually no other form of evidence used at trial can satisfy normic support. This is troublesome. I discuss a few ways in which Smith can respond.

There is much to like about the idea that justification should be understood in terms of normality or normic support (Smith 2016, Goodman and Salow 2018). The view does a nice job explaining why we should think that lottery beliefs differ in justificatory status from mundane perceptual or testimonial beliefs. And it seems to do that in a way that is friendly to a broadly internalist approach to justification. In spite of its attractions, we think that the normic support view (...) faces two serious challenges. The first is that it delivers the wrong result in preface cases. These cases suggest that the view is either too sceptical or too externalist. The second is that the view struggles with certain kinds of Moorean absurdities. It turns out that these problems can easily be avoided. If we think of normality as a condition on *knowledge*, we can characterise justification in terms of its connection to knowledge and thereby avoid the difficulties discussed here. The resulting view does an equally good job explaining why we should think that our perceptual and testimonial beliefs are justified when lottery beliefs cannot be. Thus, it seems that little could be lost and much could be gained by revising the proposal and adopting a view on which it is knowledge, not justification, that depends directly upon normality. (shrink)

Suppose one hundred prisoners are in a yard under the supervision of a guard, and at some point, ninety-nine of them collectively kill the guard. If, after the fact, a prisoner is picked at random and tried, the probability of his guilt is 99%. But despite the high probability, the statistical chances, by themselves, seem insufficient to justify a conviction. The question is why. Two arguments are offered. The first, decision-theoretic argument shows that a conviction solely based on the statistics (...) in the prisoner scenario is unacceptable so long as the goal of expected utility maximization is combined with fairness constraints. The second, risk-based argument shows that a conviction solely based on the statistics in the prisoner scenario lets the risk of mistaken conviction surge potentially too high. The same, by contrast, cannot be said of convictions solely based on DNA evidence or eyewitness testimony. A noteworthy feature of the two arguments in the paper is that they are not confined to criminal trials and can in fact be extended to civil trials. (shrink)

In this article, I argue that faith’s going beyond the evidence need not compromise faith’s epistemic rationality. First, I explain how some of the recent literature on belief and credence points to a distinction between what I call B-evidence and C-evidence. Then, I apply this distinction to rational faith. I argue that if faith is more sensitive to B-evidence than to C-evidence, faith can go beyond the evidence and still be epistemically rational.

In order to perform certain actions – such as incarcerating a person or revoking parental rights – the state must establish certain facts to a particular standard of proof. These standards – such as preponderance of evidence and beyond reasonable doubt – are often interpreted as likelihoods or epistemic confidences. Many theorists construe them numerically; beyond reasonable doubt, for example, is often construed as 90 to 95% confidence in the guilt of the defendant. -/- A family of influential cases suggests (...) standards of proof should not be interpreted numerically. These ‘proof paradoxes’ illustrate that purely statistical evidence can warrant high credence in a disputed fact without satisfying the relevant legal standard. In this essay I evaluate three influential attempts to explain why merely statistical evidence cannot satisfy legal standards. (shrink)

There is something puzzling about statistical evidence. One place this manifests is in the law, where courts are reluctant to base affirmative verdicts on evidence that is purely statistical, in spite of the fact that it is perfectly capable of meeting the standards of proof enshrined in legal doctrine. After surveying some proposed explanations for this, I shall outline a new approach – one that makes use of a notion of normalcy that is distinct from the idea of statistical frequency. (...) The puzzle is not, however, merely a legal one. Our unwillingness to base beliefs on statistical evidence is by no means limited to the courtroom, and is at odds with almost every general principle that epistemologists have proposed as to how we ought to manage our beliefs. (shrink)

Hay dos supuestos sobre el valor epistémico que guían las discusiones más recientes sobre éste. El primero es que hay algo bueno con respecto a la creencia verdadera. El segundo supuesto es que es posible que dos creencias difieran en su valor incluso si ambas creencias son igualmente correctas. El veritista tiene fácil explicar el primer supuesto, pero tiene más difícil explicar el segundo. Para explicarlo, el veritista tiene que mostrar que las creencias verdaderas pueden diferir en su valor porque (...) encarnan diferentes valores de bienes derivativos. El veritista tiene que proporcionarnos una historia de cómo es posible que pares de creencias verdaderas difieran en su valor epistémico no-instrumental. La forma más prometedora que una explicación de este tipo puede tomar, en mi opinión, apela al trabajo de Sosa (2007) sobre el valor epistémico y la naturaleza del conocimiento. Según la postura de Sosa, el conocimiento es un tipo de logro, un tipo de éxito que es atribuible al sujeto y a sus habilidades. Estos logros, nos sugiere, son más valiosos que un caso de éxito atribuible a la suerte y que no constituye un logro. Presentaré algunas dificultades potenciales para su postura y consideraré si tiene los recursos para lidiar con ellas. Voy a delinear los detalles de una postura alternativa que evade estas dificultades. Tal postura retiene el análisis del conocimiento de Sosa, pero requiere que revisemos algunas propuestas veritistas sobre el valor epistémico. La postura revisada nos proporciona algunas herramientas que serán útiles al tratar de ofrecer una teoría de la creencia racional o diestra. (shrink)

Could it be right to convict and punish defendants using only statistical evidence? In this paper, I argue that it is not and explain why it would be wrong. This is difficult to do because there is a powerful argument for thinking that we should convict and punish defendants using statistical evidence. It looks as if the relevant cases are cases of decision under risk and it seems we know what we should do in such cases (i.e., maximize expected value). (...) Given some standard assumptions about the values at stake, the case for convicting and punishing using statistical evidence seems solid. In trying to show where this argument goes wrong, I shall argue (against Lockeans, reliabilists, and others) that beliefs supported only by statistical evidence are epistemically defective and (against Enoch, Fisher, and Spectre) that these epistemic considerations should matter to the law. To solve the puzzle about the role of statistical evidence in the law, we need to revise some commonly held assumptions about epistemic value and defend the relevance of epistemology to this practical question. (shrink)

What is it for the verdict of a criminal trial to be just? It is widely agreed that a Guilty verdict is just only if the defendant did the relevant deed, and only if his rights were not violated in the process of apprehending, charging, and convicting him. I argue that more is required: he must be found Guilty because he is guilty, and not solely for other reasons. The conviction must be based on the guilt. I argue that many (...) rules of evidence and procedural rules designed to protect a defendant's rights also encourage fulfillment of this basing condition and that the condition helps to explain how an erroneous conviction involving no misconduct can nevertheless be a moral wrong. I argue that the condition also gives an explanation (among others) of why a naked statistic is insufficient for a just conviction. (shrink)

An orthodox sceptical hypothesis claims that one’s belief that “I am not a brain-in-a-vat (BIV)” (or any other ordinary anti-sceptical belief) is insensitive. A form of sensitivity-based scepticism, can thus be constructed by combining this orthodox hypothesis with the sensitivity principle and the closure principle. Unlike traditional solutions to the sensitivity-based sceptical problem, this paper will propose a new solution—one which does not reject either closure or sensitivity. Instead, I argue that sceptics’ assumption that one’s ordinary anti-sceptical beliefs are insensitive (...) will give rise to self-contradiction. The orthodox sceptical hypothesis is thus revealed to be incoherent and arbitrary. Given that there is no coherent reason to presuppose our ordinary anti-sceptical beliefs to be insensitive, the argument for sensitivity-based scepticism can thus be blocked at a lower epistemological cost. (shrink)

The primary aim of this paper is to defend the Lockean View—the view that a belief is epistemically justified iff it is highly probable—against a new family of objections. According to these objections, broadly speaking, the Lockean View ought to be abandoned because it is incompatible with, or difficult to square with, our judgments surrounding certain legal cases. I distinguish and explore three different versions of these objections—The Conviction Argument, the Argument from Assertion and Practical Reasoning, and the Comparative Probabilities (...) Argument—but argue that none of them are successful. I also present some very general reasons for being pessimistic about the overall strategy of using legal considerations to evaluate epistemic theories; as we will see, there are good reasons to think that many of the considerations relevant to legal theorizing are ultimately irrelevant to epistemic theorizing. (shrink)

ABSTRACTThis article defends the importance of epistemic safety for legal evidence. Drawing on discussions of sensitivity and safety in epistemology, the article explores how similar considerations apply to legal proof. In the legal context, sensitivity concerns whether a factual finding would be made if it were false, and safety concerns how easily a factual finding could be false. The article critiques recent claims about the importance of sensitivity for the law of evidence. In particular, this critique argues that sensitivity does (...) not have much of an effect on the value of legal evidence and that it fails to explain legal doctrine. By contrast, safety affects the quality of legal evidence, and safety better explains central features of the law of evidence, including probative value, admissibility rules, and standards of proof. (shrink)

Epistemologists have posed the following puzzle, known as the proof paradox: Why is it intuitively problematic for juries to convict on the basis of statistical evidence and yet intuitively unproblematic for juries to convict on the basis of far less reliable, non-statistical evidence? To answer this question, theorists have explained the exclusion of statistical evidence by arguing that legal proof requires certain epistemic features. In this paper, I make two contributions to the debate. First, I establish the Criminal Verdict Asymmetry, (...) a previously-unarticulated asymmetry between the epistemic norms of guilty and not guilty verdicts. I argue that the prosecution and defense’s different epistemic burdens influence whether statistical evidence can generate the type of verdict each side pursues. Second, I point out a mistake in how theorists have understood the role of statistical evidence in criminal trials. Though epistemologists have primarily focused on whether statistical evidence can generate specific epistemic features required for convictions, I consider whether statistical evidence can demonstrate a lack of such features. I find that there are epistemic advantages to allowing the defense to introduce statistical evidence which can reveal the prosecution’s failure to prove the defendant’s guilt. (shrink)

© The Author 2018. Published by Oxford University Press on behalf of The Analysis Trust. All rights reserved. For Permissions, please email: [email protected] article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model...Philosophy of law was until recently dominated by abstract investigation into the nature of law, a pursuit known as ‘general jurisprudence’. In this way, it resembled a branch of metaphysics or mid-twentieth century philosophy of mind, seeking to uncover the essential properties (...) of a general and multiply realizable phenomenon. Today, philosophers study law with a sharper focus, and with a more specialized lens – that of ethicists, for example, or epistemologists, or philosophers of action.That is not to say there has been a drop in groundbreaking work in general jurisprudence (see, for... (shrink)

In this paper, we put forth an analysis of sensitivity which aims to discern individual from merely statistical evidence. We argue that sensitivity is not to be understood as a factive concept, but as a purely epistemic one. Our resulting analysis of epistemic sensitivity gives rise to an account of legal proof on which a defendant is only found liable based on epistemically sensitive evidence.

Various real and imagined criminal law cases rest on “naked statistical evidence”. That is, they rest more or less entirely on a probability for guilt/liability derived from a single statistical model. The intuition is that there is something missing in these cases, high as the probability for guilt/liability may be, such that the relevant standard for legal proof is not met. Here we contribute to the considerable debate about how this intuition is best explained and what it teaches us about (...) evidential reasoning in the legal setting. We part ways with the recent scholarship, however. Unlike most others, our diagnosis is not that there is an important qualitative property that some evidence or bodies of evidence have, and that naked statistical evidence, most strikingly, lacks. Rather, we see cases resting on naked statistical evidence as lying at the extreme of a continuum of cases that are vulnerable to challenge due to “meta-uncertainty” about the underlying model. (shrink)

This paper offers an articulation and defence of the modal account of legal risk in light of a range of objections that have been proposed against this view in the recent literature. It is argued that these objections all trade on a failure to distinguish between the modal nature of risk more generally, and the application of this modal account to particular decision-making contexts, such as legal contexts, where one must rely on a restricted body of information. It is argued (...) that once the modal account of legal risk is properly understood as involving information-relative judgements about the modal closeness of the target risk event, the objections to the view are neutralized. (shrink)

This article examines Smith’s recent treatment of the problem of statistical evidence and the conception of epistemic justification that he puts forward. Two possible solutions to the problem of statistical evidence that result from his analysis of cases involving a contrast between statistical and individual evidence are considered. The solution resulting from Smith’s conception of epistemic justification is shown to be inferior to the solution calling for an explanationist conception of epistemic justification. As a result, Smith’s analysis of cases illustrating (...) the problem of statistical evidence, given his own standards of theory choice, is shown to support an explanationist conception of epistemic justification as an alternative to the probabilistic conception that he urges us to reject. (shrink)

This paper concerns recent attempts to use the epistemological notions of sensitivity and safety to shed light on legal debates about so-called “bare” statistical evidence. These notions might be thought to explain either the outright inadmissibility of such evidence or its inadequacy for a finding of fact—two different phenomena that are often discussed in tandem, but that, I insist, we do better to keep separate. I argue that neither sensitivity nor safety can hope to explain statistical evidence’s inadmissibility, since neither (...) offers a plausible criterion of admissibility that would exclude such evidence; both are subject to copious counterexamples, especially given their factivity, and it is difficult even to state a coherent criterion of admissibility in terms of either sensitivity or safety. The possibility remains, though, that either notion might explain statistical evidence’s inadequacy for a finding of fact; I express some doubts about this possibility but do not rule it out. (shrink)