Rethinking the Use of Statistical Evidence to Prove Causation in Criminal Cases: A Tale of (Im)Probability and Free Will

Amit Pundik*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

4 Scopus citations

Abstract

Whenever a litigant needs to prove that a certain result was caused in a specific way, what could be more compelling than citing the infinitesimal probability of that result emanating from an alternative natural cause? Contrary to this intuitive position, in the present article, I argue that the contention that a result was due to a certain cause should remain unaffected by statistical evidence of the extremely low probability of an alternative cause. The only scenario in which the low probability of a natural cause would be relevant to the case at hand is if it were contrasted with another piece of statistical evidence: the frequency of the criminal activity among people who are similar to the accused. However, by connecting the use of probabilistic generalisations in legal fact-finding to the issue of free will, I hold that, in Criminal Law, contrasting frequencies in this manner is objectionable—as a matter of principle—regardless of how reliable the statistical analysis is. Consequently, if the low probability of a natural cause is probative only if contrasted with another piece of statistical evidence that is objectionable, then neither piece of evidence should be admitted in criminal trials.

Original languageEnglish
Pages (from-to)97-128
Number of pages32
JournalLaw and Philosophy
Volume40
Issue number2
DOIs
StatePublished - Apr 2021

Funding

FundersFunder number
London School of Economics, Lund University
Tel Aviv University

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