CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, October 26, 2015

Nunn on Due Process and Naked Statistical Evidence

Alex Nunn has posted The Incompatibility of Due Process and Naked Statistical Evidence (Vanderbilt Law Review, Vol. 68, No. 5, 2015) on SSRN. Here is the abstract:

Numerous articles and commentaries have grappled with an undeniable feeling of injustice that comes from wrestling with naked statistical evidence. Even if, from a purely quantitative standpoint, the weight of the evidence supports the imposition of liability on a defendant, the sole use of probabilities to assess this liability seems innately unfair. This tension has spawned a great debate that questions the role of naked statistical evidence in today’s legal system.

Contributing to this discourse, this Note argues that, in certain circumstances, the use of naked statistical evidence constitutes a due process violation. United States circuit courts have held that the use of “inherently factually contradictory theories violates the principles of due process.” In other words, a due process violation occurs when a prosecutor advances irreconcilable theories for a case against multiple defendants in an attempt to simultaneously secure mutually exclusive verdicts for a single, “lone gunman” crime. The absolute certainty that the prosecutor has presented a false impression in at least one of these trials renders each trial fundamentally unfair.

Extrapolating from this principle, this Note argues that due process violations take a form unique to naked statistical evidence: if the same naked statistical evidence could be used to impose liability on any randomly selected member of a population, and the subsequent imposition of liability on the entire population would constitute a due process violation because of factual impossibility, then imposing liability on even one defendant constitutes a due process violation.

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