Faculty Scholarship Repository
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| Article |
| Laws of Probability and the Law of the Land |
| David Kaye |
| 47 U. Chi. L. Rev. 34 (1979) |
| Library Access |
|
Abstract: Some years ago, a lawyer-statistician team, Michael Finkelstein and William Fairly, suggested a modest use of an elementary formula of probability. They suggested a modest use of an elementary formula of probability theory, known as Bayes’s formula, to aid jurors in assessing statistical identification evidence. This article attempts to show that the new wave of skepticism about the application of probability theory to legal fact finding rests on fundamental misconceptions about the philosophical debate over the meaning of probability, the character of rational decision-making, and the values of the legal system. It analyzes some of the more general arguments against using probability axioms in the legal context. It rejects the contention that discrepancies in the way facts are proved in court and the way mathematical probabilities that probability theory, subjectively can be interpreted. It also argues that probability theory, subjectively interpreted, can be applied meaningfully to legal fact finding. The article also suggest that disputations about the “real†meaning of probability have little bearing on the logical propriety of using accepted probability formulae to explain the significance of legally admissible statistical evidence to a judge or jury. Finally, the article considers the claim that there may be more rational methods to evaluate statistical evidence that those based ont eh mathematical theory of probability. In the end, the epistemological brief against probabilistic models of legal factfinding is far from convincing. |
| 279 |
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