LA PRUEBA PREDICTIVA EN LOS PROCESOS PENALES: ¿POR QUÉ EL DERECHO PENAL DEBE TRATAR A LAS PERSONAS COMO SI TUVIERAN LIBRE ALBEDRÍO IMPREDECIBLE?

When determining whether an individual performed a certain culpable action, predictive evidence is often ignored in criminal proceedings. For example, the high rate of crimes involving illegal firearms in a certain neighbourhood is not used to support the conviction of an individual re-sident in a crime involving an illegal firearm. This article seeks to explain and justify the hostility of criminal proceedings toward predictive evidence by suggesting that criminal fact-finding implicitly adheres to the view that culpable conduct requires free will that is necessarily unpredictable. It fur-ther argues that criminal law should treat people based on the assumption that they have unpredictable free will, even if this assumption is unfounded or even false. The argument proceeds by showing how the use of predictive evidence undermines the effectiveness of condemnation. It is also shown that this justification has a considerable advantage over the popular incentive-based justification.