In criminal trials, judges or jurors have to decide whether the facts described in the indictment are proven beyond a reasonable doubt. However, these decision-makers cannot always imagine every relevant sequence of events—there may be unconceived alternatives. The possibility of unconceived alternatives is an overlooked source of reasonable doubt. I argue that decision-makers should not consider the defendant’s guilt proven if they have good reasons to believe that plausible, unconceived scenarios exist. I explore this thesis through the lens of the (...) two most influential accounts of rational criminal proof—Bayesian and explanation-based approaches. I draw on related ideas from the philosophy of science to show why and when unconceived alternatives lead to reasonable doubt on either account. (shrink)

This paper offers an alternate explanation of cases from the doxastic wronging literature. These cases violate what I call the degree of inquiry right—a novel account of zetetic obligations to inquire when interests are at stake. The degree of inquiry right is a moral right against other epistemic agents to inquire to a certain threshold when a belief undermines one’s interests. Thus, the agents are sometimes obligated to leave inquiry open. I argue that we have relevant interests in reputation, relationships, (...) and the well-being of our social groups. These interests generate obligations against others to “do their homework” before closing inquiry. This alternate account makes better sense of puzzles that accounts of doxastic wronging fall prey to. (shrink)

In this paper I respond to Marcello Di Bello’s criticisms of the ‘normic account’ of the criminal standard of proof. In so doing, I further elaborate on what the normic account predicts about certain significant legal categories of evidence, including DNA and fingerprint evidence and eyewitness identifications.

Not only is the common‐law standard of proof of mere likelihood in ordinary civil cases justifiable, but its justifiability supports the conclusion that there is no general norm that one must assert that p only if p is known. An argument by Voltaire is formalized to show that the mere likelihood standard is rational. It is also shown that no applicable norm preempts the common‐law rule. An objection that takes the pertinent knowledge‐norm to be honoured in the breach is rejected (...) by appeal to the absence of blameworthiness in alleged breaches of interest. An objection that takes civil verdicts to be manifestations of acceptance, rather than assertoric, is considered and rejected. (shrink)

Ratio, Volume 34, Issue 4, Page 261-276, December 2021.

Legal epistemology has been an area of great philosophical growth since the turn of the century. But recently, a number of philosophers have argued the entire project is misguided, claiming that it relies on an illicit transposition of the norms of individual epistemology to the legal arena. This paper uses these objections as a foil to consider the foundations of legal epistemology, particularly as it applies to the criminal law. The aim is to clarify the fundamental commitments of legal epistemology (...) and suggest a way to vindicate it. (shrink)

Recent years have seen fresh impetus brought to debates about the proper role of statistical evidence in the law. Recent work largely centres on a set of puzzles known as the ‘proof paradox’. While these puzzles may initially seem academic, they have important ramifications for the law: raising key conceptual questions about legal proof, and practical questions about DNA evidence. This article introduces the proof paradox, why we should care about it, and new work attempting to resolve it.

I argue that traditional views on which beliefs are subject only to purely epistemic assessment can reject demographic profiling, even when based on seemingly robust evidence. This is because the moral failures involved in demographic profiling can be located in the decision not to suspend judgment, rather than supposing that beliefs themselves are a locus of moral evaluation. A key moral reason to suspend judgment when faced with adverse demographic evidence is to promote social equality—this explains why positive profiling is (...) dubious, along with more familiar cases of negative profiling, and why profiling is suspect even when no particular action is at stake. My suspension-based view, while compatible with revisionary normative positions, does not presuppose them. Philosophers of all stripes can reject demographic profiling both in thought and deed. (shrink)

A question, long discussed by legal scholars, has recently provoked a considerable amount of philosophical attention: ‘Is it ever appropriate to base a legal verdict on statistical evidence alone?’ Many philosophers who have considered this question reject legal reliance on bare statistics, even when the odds of error are extremely low. This paper develops a puzzle for the dominant theories concerning why we should eschew bare statistics. Namely, there seem to be compelling scenarios in which there are multiple sources of (...) incriminating statistical evidence. As we conjoin together different types of statistical evidence, it becomes increasingly incredible to suppose that a positive verdict would be impermissible. I suggest that none of the dominant views in the literature can easily accommodate such cases, and close by offering a diagnosis of my own. (shrink)

This paper defends the heretical view that, at least in some cases, we ought to assign legal liability based on purely statistical evidence. The argument draws on prominent civil law litigation concerning pharmaceutical negligence and asbestos-poisoning. The overall aim is to illustrate moral pitfalls that result from supposing that it is never appropriate to rely on bare statistics when settling a legal dispute.

Should we use the same standard of proof to adjudicate guilt for murder and petty theft? Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law. This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes. I reject consequentialist arguments for a radically flexible standard of proof, (...) instead defending a modestly flexible approach on non-consequentialist grounds. The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments. This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society. (shrink)

This paper offers an articulation and defence of the modal account of legal risk in light of a range of objections that have been proposed against this view in the recent literature. It is argued that these objections all trade on a failure to distinguish between the modal nature of risk more generally, and the application of this modal account to particular decision-making contexts, such as legal contexts, where one must rely on a restricted body of information. It is argued (...) that once the modal account of legal risk is properly understood as involving information-relative judgements about the modal closeness of the target risk event, the objections to the view are neutralized. (shrink)

Philosophical Issues, Volume 31, Issue 1, Page 280-298, October 2021.

Do privacy rights restrict what is permissible to infer about others based on statistical evidence? This paper replies affirmatively by defending the following symmetry: there is not necessarily a morally relevant difference between directly appropriating people’s private information—say, by using an X-ray device on their private safes—and using predictive technologies to infer the same content, at least in cases where the evidence has a roughly similar probative value. This conclusion is of theoretical interest because a comprehensive justification of the thought (...) that statistical inferences can violate privacy rights is lacking in the current literature. Secondly, the conclusion is of practical interest due to the need for moral assessment of emerging predictive algorithms. (shrink)

A theory of rational belief should get the cases right. It should also reach its verdicts using the right theoretical assumptions. Leading theories seem to predict the wrong things. With only one exception, they don't accommodate principles that we should use to explain these verdicts. We offer a theory of rational belief that combines an attractive picture of epistemic desirability with plausible principles connecting desirability to rationality. On our view, it's rational to believe when it's sufficiently likely that you'd know (...) because believing when it's sufficiently likely that you'd know minimises expected objective epistemic undesirability. (shrink)

Our epistemology can shape the way we think about perception and experience. Speaking as an epistemologist, I should say that I don’t necessarily think that this is a good thing. If we think that we need perceptual evidence to have perceptual knowledge or perceptual justification, we will naturally feel some pressure to think of experience as a source of reasons or evidence. In trying to explain how experience can provide us with evidence, we run the risk of either adopting a (...) conception of evidence according to which our evidence isn’t very much like the objects of our beliefs that figure in reasoning (e.g., by identifying our evidence with experiences or sensations) or the risk of accepting a picture of experience according to which our perceptions and perceptual experiences are quite similar to beliefs in terms of their objects and their representational powers. But I think we have good independent reasons to resist identifying our evidence with things that don’t figure in our reasoning as premises and I think we have good independent reason to doubt that experience is sufficiently belief-like to provide us with something premise-like that can figure in reasoning. We should press pause. We shouldn’t let questionable epistemological assumptions tell us how to do philosophy of mind. I don’t think that we have good reason to think that we need the evidence of the senses to explain how perceptual justification or knowledge is possible. Part of my scepticism derives from the fact that I think we can have kinds of knowledge where the relevant knowledge is not evidentially grounded. Part of my scepticism derives from the fact that there don’t seem to be many direct arguments for thinking that justification and knowledge always requires evidential support. In this paper, I shall consider the three arguments I’ve found for thinking that justification and knowledge do always require evidential support and explain why I don’t find them convincing. I think that we can explain perceptual justification, rationality, and defeat without assuming that our experiences provide us with evidence. In the end, I think we can partially vindicate Davidson’s (notorious) suggestion that our beliefs, not experiences, provide us with reasons for forming further beliefs. This idea turns out to be compatible with foundationalism once we understand that foundational status can come from something other than evidential support. (shrink)

While many of us would not want to abandon the requirement that a defendant can only be found guilty of a serious criminal offence by a unanimous jury, we should not expect epistemology to give us the resources we need for justifying this requirement. The doubts that might prevent jurors from reaching unanimity do not show that, say, the BARD standard has not been met. Even if it were true, as some have suggested, that rationality requires that a jury composed (...) of epistemic peers should coalesce around one view about the defendant’s guilt, the failure to reach unanimity might be a good reason to worry about the epistemic failings of some small number of jurors but no reason to worry that we’ve failed to protect the defendant from an unjustified imposition of, say, the risk against wrongful conviction. The arguments for the unanimity requirement will need to come from outside of epistemology. (shrink)

I defend the thesis that legal standards of proof are reducible to thresholds of probability. Many have rejected this thesis because it seems to entail that defendants can be found liable solely on the basis of statistical evidence. I argue that this inference is invalid. I do so by developing a view, called Legal Causalism, that combines Thomson's (1986) causal analysis of evidence with recent work in formal theories of causal inference. On this view, legal standards of proof can be (...) reduced to probabilities, but deriving these probabilities involves more than just statistics. (shrink)

Philosophical Issues, Volume 31, Issue 1, Page 167-187, October 2021.

Most legal evidence scholars agree that proof of guilt beyond a reasonable doubt requires the belief that the defendant probably committed the alleged acts. However, they also agree that this is not a sufficient condition, as this belief may be unreasonable. I focus on two popular proposals for additional conditions: (i) that the degree of belief should be robust and (ii) that it should be reasonable given the available evidence (should be an evidential probability). Both criteria face difficulties regarding their (...) meaning and utility. I propose an interpretation which overcomes these difficulties and which combines the two conditions into a single criterion on which both conditions are about the possibility of overlooked, exculpatory information. Proof of guilt beyond a reasonable doubt requires that we are sufficiently certain that we did not miss such information for the sake of achieving accurate beliefs and a just error distribution. How certain we can be that we did not miss anything relevant depends on our higher-order evidence. One important type of higher-order evidence is whether the hypotheses under consideration are sufficiently detailed. This point leads to a novel way of combining the Bayesian and explanation-based accounts of rational legal proof. (shrink)

Sometimes epistemologists theorize about belief, a tripartite attitude on which one can believe, withhold belief, or disbelieve a proposition. In other cases, epistemologists theorize about credence, a fine-grained attitude that represents one’s subjective probability or confidence level toward a proposition. How do these two attitudes relate to each other? This article explores the relationship between belief and credence in two categories: descriptive and normative. It then explains the broader significance of the belief-credence connection and concludes with general lessons from the (...) debate thus far. (shrink)

This guide accompanies the following article(s): Jackson, E., Philosophy Compass 15/6 (2020) pp. 1-13 10.1111/phc3.12668.x.

Philosophical Issues, Volume 31, Issue 1, Page 146-166, October 2021.

Statistical criteria of fairness are formal measures of how an algorithm performs that aim to help us determine whether an algorithm would be fair to use in decision-making. In this paper, I introduce a new version of the criterion known as “Equalized Odds,” argue that it is a requirement of procedural fairness, and show that it is immune to a number of objections to the standard version.

This essay presents a unified account of safety, sensitivity, and severe testing. S’s belief is safe iff, roughly, S could not easily have falsely believed p, and S’s belief is sensitive iff were p false S would not believe p. These two conditions are typically viewed as rivals but, we argue, they instead play symbiotic roles. Safety and sensitivity are both valuable epistemic conditions, and the relevant alternatives framework provides the scaffolding for their mutually supportive roles. The relevant alternatives condition (...) holds that a belief is warranted only if the evidence rules out relevant error possibilities. The safety condition helps categorise relevant from irrelevant possibilities. The sensitivity condition captures ‘ruling out’. Safety, sensitivity, and the relevant alternatives condition are typically presented as conditions on warranted belief or knowledge. But these properties, once generalised, help characterise other epistemic phenomena, including warranted inference, legal verdicts, scientific claims, reaching conclusions, addressing questions, warranted assertion, and the epistemic force of corroborating evidence. We introduce and explain Mayo’s severe testing account of statistical inference. A hypothesis is severely tested to the extent it passes tests that probably would have found errors, were they present. We argue Mayo’s account is fruitfully understood using the resulting relevant alternatives framework. Recasting Mayo’s condition using the conceptual framework of contemporary epistemology helps forge fruitful connections between two research areas—philosophy of statistics and the analysis of knowledge—not currently in sufficient dialogue. The resulting union benefits both research areas. (shrink)

The epistemology of risk examines how risks bear on epistemic properties. A common framework for examining the epistemology of risk holds that strength of evidential support is best modelled as numerical probability given the available evidence. In this essay I develop and motivate a rival ‘relevant alternatives’ framework for theorising about the epistemology of risk. I describe three loci for thinking about the epistemology of risk. The first locus concerns consequences of relying on a belief for action, where those consequences (...) are significant if the belief is false. The second locus concerns whether beliefs themselves—regardless of action—can be risky, costly, or harmful. The third locus concerns epistemic risks we confront as social epistemic agents. I aim to motivate the relevant alternatives framework as a fruitful approach to the epistemology of risk. I first articulate a ‘relevant alternatives’ model of the relationship between stakes, evidence, and action. I then employ the relevant alternatives framework to undermine the motivation for moral encroachment. Finally, I argue the relevant alternatives framework illuminates epistemic phenomena such as gaslighting, conspiracy theories, and crying wolf, and I draw on the framework to diagnose the undue skepticism endemic to rape accusations. (shrink)

Corroborating evidence supports a proposition that is already supported by other initial evidence. It bolsters or confirms the original body of evidence. Corroboration has striking psychological and epistemic force: It potently affects how people do and should assess the target proposition. This essay investigates the distinctive powers of corroborating evidence. Corroboration does not simply increase the quantifiable probability of the adjudicated claim. Drawing on the relevant alternatives framework, I argue that corroboration winnows remaining uneliminated error possibilities. This illuminates the independence, (...) weight, and non-fungibility of corroborating evidence. I compare corroborating evidence to prudential safeguards, like fire doors, that forfend against non-epistemic harms. I thereby sketch a general, non-quantificational model of risk management. Finally, I turn to legal corroboration requirements and the epistemic significance of corroboration for legal proof. (shrink)

Philosophical Issues, Volume 31, Issue 1, Page 85-103, October 2021.

The aim of this paper is to show that the meaning and significance of legal evidence is being constituted throughout the course of a singular instance of legal proceedings. This is to be achieved by describing what legal agents _do_ while appealing to different propositions of fact and inferring from them throughout the course of legal proceedings. The authors claim that the process of applying the law is ultimately rooted in the inferential discursive practices of exchanging reasons on the part (...) of the participants of legal proceedings. Therefore, they set forth a model of legal proceedings that consists of an interplay between three types of reasons, which are exchanged by the participants of legal proceedings: i.e. legal reasons, epistemic reasons and stake reasons. To illustrate this interplay, the authors deploy a metaphor of law as a game, and provide a description of legal proceedings as a particular instance of playing a game of law. The conclusion is that the legal concept of evidence is (at least in part) constituted by the role that evidence plays in affecting which reasons for action the participants to legal proceedings choose to act on. The other final assumption of this paper is metatheoretical: authors want to show that when analyzing what legal evidence is, one should begin from the perspective of a singular instance of legal proceedings, rather than from the perspective of law in general. (shrink)

Many philosophers have pointed out that statistical evidence, or at least some forms of it, lack desirable epistemic or non-epistemic properties, and that this should make us wary of litigations in which the case against the defendant rests in whole or in part on statistical evidence. Others have responded that such broad reservations about statistical evidence are overly restrictive since appellate courts have expressed nuanced views about statistical evidence. In an effort to clarify and reconcile, I put forward an interpretive (...) analysis of why statistical evidence should raise concerns in some cases but not others. I argue that when there is a mismatch between the specificity of the evidence and the expected specificity of the accusation, statistical evidence—as any other kind of evidence—should be considered insufficient to sustain a conviction. I rely on different stylized court cases to illustrate the explanatory power of this analysis. (shrink)

According to the relational egalitarian theory of justice, justice requires that people relate as equals. To relate as equals, many relational egalitarians argue, people must (i) regard each other as equals, and (ii) treat each other as equals. In this paper, we argue that, under conditions of background injustice, such relational egalitarians should endorse affirmative action in the ways in which (dis)esteem is attributed to people as part of the regard-requirement for relating as equals.

Why can testimony alone be enough for findings of liability? Why statistical evidence alone can’t? These questions underpin the “Proof Paradox” (Redmayne 2008, Enoch et al. 2012). Many epistemologists have attempted to explain this paradox from a purely epistemic perspective. I call it the “Epistemic Project”. In this paper, I take a step back from this recent trend. Stemming from considerations about the nature and role of standards of proof, I define three requirements that any successful account in line with (...) the Epistemic Project should meet. I then consider three recent epistemic accounts on which the standard is met when the evidence rules out modal risk (Pritchard 2018), normic risk (Ebert et al. 2020), or relevant alternatives (Gardiner 2019 2020). I argue that none of these accounts meets all the requirements. Finally, I offer reasons to be pessimistic about the prospects of having a successful epistemic explanation of the paradox. I suggest the discussion on the proof paradox would benefit from undergoing a ‘value-turn’. (shrink)

For the past half-century, both jurisprudence and epistemology have been haunted by questions about why individual evidence (i.e., evidence which picks out a specific individual) can sufficiently justify a guilty or liable verdict while bare statistical evidence (i.e., statistical evidence which does not pick out a specific individual) does not sufficiently justify such a verdict. This thesis examines three popular justifications for such a disparity in verdicts – Judith Jarvis Thomson’s causal account, Enoch et al.’s sensitivity account, and Sarah Moss’ (...) knowledge-first account, before critiquing each in turn. After such an analysis, the thesis then defends the claim that legal verdicts require the factfinder (e.g., the judge or jury) to have a justified de re belief (i.e., a belief about a specific object – namely the defendant), and that this doxastic requirement justifies the disparity in rulings, as it is epistemically insufficient to justify a de re belief based on bare statistical evidence alone. A brief account of how these beliefs are formed and spread is also given. After making such a distinction, the thesis then formalizes the burdens of proof of the preponderance of the evidence and beyond a reasonable doubt using the de re/de dicto distinction. Finally, the thesis pre-empts possible objections, namely by providing an account of DNA evidence as individual evidence and giving an account of how false convictions can occur on the de re view of legal proof. (shrink)