Statistical Evidence is Random Picking Evidence: A Solution to Problems of Legal Proof

Abstract

A particular type of puzzle arises from the intuitive thought that it is a mistake to find someone liable merely because purely statistical evidence indicates that the probability the offence was committed meets the standard of proof. The proof paradox is the problem of explaining why we ordinarily think that basing legal verdicts on individual evidence is appropriate while basing them on bare statistical evidence is not, even when both are of equivalent quality. One prima facie explanation is that “individual evidence is about the individual in a way that statistical evidence is not” (Enoch et al. n. 5). I aim to vindicate this intuition by making precise the way in which bare statistical evidence fails to be about the individual, and how this makes its use objectionable. To do so, I will propose that the notion of random picking is the criterion that distinguishes bare statistical evidence from individual evidence. The supposed paradox will be shown to arise from the ways in which the involvement of random picking is (to a greater or lesser degree) obscured by the structure of the examples.