Monday, July 25, 2022
Professor Ronald J. Allen (Northwestern Pritzker School of Law) and Christopher Smiciklas (a recent graduate of the Northwestern Pritzker School of Law) have posted The Law’s Aversion to Naked Statistics and Other Mistakes (forthcoming in Legal Theory) on SSRN. Here is the abstract:
A vast literature has developed probing the law’s general aversion to statistical/probability evidence in general and its rejection of naked statistical evidence in particular. This literature rests on false premises. At least so far as U.S. law is concerned, there is no general aversion to statistical forms of proof and even naked statistics are admissible when the evidentiary proffer meets the normal standards of admissibility, the most important of which is reliability. The belief to the contrary rests upon a series of mistakes: most importantly, mismodeling of the structure of legal systems and the nature of common law decision making. Contributing to these mistakes is the common methodology in this literature of relying on weird hypotheticals that mismodel the underlying legal relations and contain impossible epistemological demands. Collectively, these phenomena have distracted attention from issues that actually affect real legal systems.
Allen and Smiciklas present a strong rebuttal to this claim, arguing, inter alia, that
-Not even in Massachusetts does Smith stand for what it is cited for in the literature. Instead, the Massachusetts cases break down over the quality of the evidence. If a court concludes the evidence is reliable enough, the evidence is admitted even if probabilistic, and in cases without reliable statistics, the evidence is excluded.
-The modern treatment of statistics in American litigation involves overwhelming acceptance of the evidence so long as it reliable and helpful—even when the evidence is as close to being “naked” as possible.
-There is almost no contemporary support in the various American jurisdictions for the categorical exclusion of naked statistical evidence as the basis for a verdict. Even before the advent of DNA, the general approach across the United States either was or was evolving to admit evidence critical to a judgment in statistical form where an adequate foundation had been laid and to allow experts to explain the evidence to the factfinder.
I found this to be an article that was extremely well researched and argued, and I strongly recommend it to readers interested in Evidence law.