Bayes wars redivivus - An exchange

International Commentary on Evidence

Volumn 8, Issue 1, 2010, Pages

  Park, Roger C ^a   Tillers, Peter ^b   Moss, Frederick C ^c   Risinger, D Michael ^d   Kaye, David H ^e   Allen, Ronald J ^f   Gross, Samuel R ^g   Hay, Bruce L ^h   Pardo, Michael S ⁱ   Kirgis, Paul F ^j  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b YESHIVA UNIVERSITY   (United States)

^c Southern Methodist University   (United States)

^d SETON HALL UNIVERSITY   (United States)

^e PENNSYLVANIA STATE UNIVERSITY   (United States)

^f NORTHWESTERN UNIVERSITY   (United States)

^g UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

^h HARVARD LAW SCHOOL   (United States)

ⁱ UNIVERSITY OF ALABAMA   (United States)

^j ST JOHN'S UNIVERSITY   (United States)

more..

Author keywords

Bayesianism; inference; probative value; relevancy

Indexed keywords

EID: 78649957987     PISSN: 15544567     EISSN: 15544567     Source Type: Journal    
DOI: 10.2202/1554-4567.1115     Document Type: Article

References (41)

1. Wigmore's "chart" method of inference mapping, originally outlined in 1913, is well known. See JOHN HENRY WIGMORE, THE PRINCIPLES OF JUDICIAL PROOF AS GIVEN BY LOGIC, PSYCHOLOGY AND GENERAL EXPERIENCE AND ILLUSTRATED IN JUDICIAL TRIALS, 744-58 (1913).
2. By far the most ambitious program of symbolization is to be found in JEROME MICHAEL AND MORTIMER J. ADLER, THE NATURE OF JUDICIAL PROOF: AN INQUIRY INTO THE LOGICAL, LEGAL, AND EMPIRICAL ASPECTS OF THE LAW OF EVIDENCE (1931).
3. However, this work was privately printed, and merely précised in the two-part law review article based on it, Jerome Michael and Mortimer J. Adler, The Trial of an Issue of Fact, (pts 1&2) 34 COLUM. L. REV. 1224, 1462 (1934) so that their system of symbolization was of limited circulation and even more limited impact. For the curious, the original full treatment is now available in the Hein-on-Line treatise database.
4. The earliest explicit attempt to assimilate formal probability theory to evidence and proof in English appears to be Appendix I of Best's 1844 treatise on "presumptions, " WILLIAM M. BEST, A TREATISE ON PRESUMPTIONS OF LAW AND FACT, WITH THE THEORY AND RULES OF PRESUMPTIVE OR CIRCUMSTANTIAL EVIDENCE IN CRIMINAL CASES, 353-58 (1844). It is an acknowledged borrowing of LaPlace's similar attempts in French a quarter century earlier. It is perhaps telling that this invocation of formal probability theory was to be found only in an appendix. However, that was more than any other evidence work in English for well over a century.
5. John Kaplan, Decision Theory and the Factfinding Process, 20 STAN. L. REV. 1065 (1968).
6. Michael O. Finkelstein & William B. Fairley, A Bayesian Approach to Identification Evidence, 83 HARV. L. REV. 489 (1970).
7. Lawrence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 HARV. L. REV. 1329 (1971).
8. The general outlines are well reported in Roger C. Park and Michael J. Saks, Evidence Scholarship Reconsidered: Results of the Interdisciplinary Turn, 47 B. C. L. REV. 949, 984-995 (2006).
9. At least in the pages of most American law reviews. Contributions to the debates have been more likely to be seen in specialized journals such as LAW, PROBABILITY AND RISK, and in specialized volumes such as HENDRIK KAPTEIN, HENRY PRAKKEN AND BART VERHEIJ, EDS, LEGAL EVIDENCE AND PROOF: STATISTICS, STORIES, LOGIC (2009).
10. Moderated by Professor Roger C. Park, evid-fac-l@chicagokent.kentlaw.edu.
11. -75 MICH. L. REV. 1021 (1977).
12. 1 is the same as its probability on evidence h." J. M. KEYNES, A TREATISE ON PROBABILITY 55 (1921) (footnote omitted).
13. E.g., 1 MCCORMICK ON EVIDENCE § 185 (Kenneth S. Broun ed., 6th ed. 2006).
14. An example of this error can be found in Deborah Davis & William C. Follette, Rethinking the Probative Value of Evidence: Base Rates, Intuitive Profiling, and the "Postdiction" of Behavior, 26 LAW & HUMAN BEHAV. 133 (2002).
15. For some attempts to clarify the matter, see Richard D. Friedman & Roger C. Park, Sometimes What Everybody Thinks They Know Is True, 27 LAW & HUMAN BEHAV. 629 (2003);
16. David H. Kaye & Jonathan J. Koehler, The Misquantification of Probative Value, 27 LAW & HUMAN BEHAV. 645 (2003);
17. Gary L. Wells, Murder, Extramarital Affairs, and the Issue of Probative Value, 27 LAW & HUMAN BEHAV. 623 (2003).
18. Davis and Follette defend their unusual interpretation of probative value in Toward an Empirical Approach to Evidentiary Ruling, 27 LAW & HUMAN BEHAV. 661 (2003).
19. -519 U. S. 172 (1997).
20. -519 U. S. 172 (1997)
21. D. Michael Risinger, Inquiry, Relevance, Rules of Exclusion and Evidentiary Reform, 75 BROOK. L. REV. 1355 (2010).
22. I put it this way in McCormick: [L]eeway is allowed even on direct examination for proof of facts that merely fill in the background of the narrative and give it interest, color, and lifelikeness. Maps, diagrams, charts, and videotapes can be material as aids to the understanding of other material evidence. Moreover, the parties may question the credibility of the witnesses and, within limits, produce evidence assailing and supporting their credibility. [¶] The second aspect of relevance is probative value, the tendency of evidence to establish the proposition that it is offered to prove.
23. McCormick, supra note 11, § 185. The likelihood ratio merely captures the probative value of circumstantial evidence.
24. Id.
25. As examples of such reasoning, consider Richard Lempert, Some Caveats Concerning DNA as Criminal Identification Evidence: With Thanks to the Reverend Bayes, 13 CARDOZO L. REV. 303-341 (1991);
26. Thomas D. Lyon & Jonathan Koehler, The Relevance Ratio: Evaluating the Probative Value of Expert Testimony in Child Sexual Abuse Cases, 82 CORNELL L. REV. 43 (1996);
27. NATIONAL RESEARCH COUNCIL, COMMITTEE ON DNA TECHNOLOGY IN FORENSIC SCIENCE: AN UPDATE, THE EVALUATION OF FORENSIC DNA EVIDENCE (1996).
28. If you want to pursue the past-future distinction, see, for example, Vaughn C. Ball, The Moment of Truth: Probability Theory and Standards of Proof, 14 VAND. L. REV. 807 (1961)
29. reprinted in ESSAYS ON PROCEDURE AND EVIDENCE 84, 101 (1961);
30. Laurence Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 HARV. L. REV. 1329 (1971).
31. See, e.g., D. H. Kaye, Introduction: What is Bayesianism? in PROBABILITY AND INFERENCE IN THE LAW OF EVIDENCE: THE LIMITS AND USES OF BAYESIANISM 1 (Peter Tillers & Eric D. Green eds., 1988)
32. reprinted as What is Bayesianism? A Guide for the Perplexed, 28 JURIMETRICS J. 161 (1988).
33. For a nice exposition of this connection, see BRIAN SKYRMS, CHOICE AND CHANCE: AN INTRODUCTION TO INDUCTIVE LOGIC (4th ed. 2000);
34. see also WESLEY SALMON, THE FOUNDATIONS OF SCIENTIFIC INFERENCE (3d ed. 1986).
35. E.g., L. JONATHAN COHEN, THE PROBABLE AND THE PROVABLEX (1977);
36. Ronald J. Allen & Sarah A. Jehl, Burdens of Proof in Civil Cases: Algorithms vs. Explanations, 2003 MICH. ST. DCL L. REV. 893
37. A. P. Dawid, The Difficulty About Conjunction, 36 THE STATISTICIAN 91 (1987).
38. D. H. Kaye, Do We Need a Calculus of Weight to Understand Proof Beyond a Reasonable Doubt?, 66 B. U. L. REV. 657 (1986) (describing the connection between legal elements and narratives of events);
39. Saul Levmore, Conjunction and Aggregation, 99 MICH. L. REV. 723 (2001);
40. Dale A. Nance, Naturalized Epistemology and the Critique of Evidence Theory, 87 VA. L. REV. 1551 (2001);
41. cf. Kevin M. Clermont, Standards of Proof Revisited, 43 VT. L. REV. 469 (2009) (questioning the "relative plausibility" theory as a solution to the conjunction problem).