Abstract

In a variation on Jonathan Cohen's gate-crasher paradox, Humpty, an enthusiastic football fan, is sued for gate-crashing a local football match. He was seen by Alice sneaking through the fence. Alice's visual identification ability is tested and shown to be accurate in nine times out of ten. This case seems straight forward and finding Humpty liable in private law seems intuitively right. In another football match, Hatter, another enthusiastic football fan, is also sued for gate-crashing. This time, the only evidence available is that just one hundred tickets had been sold whilst yet a thousand spectators were counted. Hatter being sued for gate-crashing is based on the fact that nine out of ten spectators gate-crashed. Surprisingly, this case is relatively straightforward too: finding Hatter liable based on this statistical evidence alone seems intuitively wrong. It is surprising because in both cases, at least prima facie, the risk of error is similar. In both cases, there is a probability of one in ten that finding liability would be mistaken. Numerous accounts have suggested in the literature to explain the difference between the cases and to justify some restrictions (either inadmissibility or insufficiency) on the use of statistical evidence in court. A dominant direction is the idea that the statistical evidence in the second case lacks a certain quality which makes it epistemologically unwarranted to establish the fact this evidence is brought to prove. Amongst the qualities suggested are luck, appropriate causal connection (Thomson 1986, Wright 1988), weight (Cohen 1977), case-specificity (Stein 2005), and relevance (Cohen 1981 and Stein 2005). The epistemic accounts are thus attempts to identify a quality that non-statistical evidence (e.g. eyewitnesses, confessions, the individual's medical records) has but statistical evidence lacks. These attempts are grouped as the epistemic accounts because they share the view that making inference from the statistical evidence to the particular case epistemologically deficient. To the existing debate around these accounts (e.g. Schoeman 1987, Pundik 2006), this paper adds three generic and inherent problems from which any epistemic account suffers. First, using statistical evidence improves accuracy and thus it is epistemologically unwarranted to restrict the use of such information. Second, an epistemic account should apply similarly in any discipline. However, some types of statistical evidence are only objectionable when used in court. Last, evidential rules require moral/political justification (Stein 2005). Yet it is unclear how an epistemic account can ever provide such a moral/political justification. Based on these three generic problems, it is concluded that the epistemic direction lacks potential. If there is any reason to restrict the use of statistical evidence in court, it cannot be epistemic.