Page 204 [204]
OCR
MIRJAN DAMASKA likely that criminal cases will be decided by overwhelming statistical evidence, although due to the magic of numbers statistics is the most serious candidate for replacing ordinary reasoning in adjudication. This seems to follow from differences between testimonial (anecdotal) and statistical evidence. Witnesses testify about concrete facts they perceived concerning relevant events, while statistical experts are ignorant of these facts and merely inform the court about the frequency of relevant events (quod plerumque fit). And while the probability of error in witness testimony remains unexpressed, it is clearly indicated in the statement of statistical experts. If the latter claim that the probability of the defendant’s guilt is 99%, for example, the possibility still remains that the defendant falls in the remaining statistical 1% niche. He can claim that he belongs in this niche and can object that he should not be sacrificed on the altar of statistically optimal decisionmaking. Since judges strive in criminal cases to deliver individualized justice, it is hard for them to disregard this argument. It is hard for them to disregard it, even though statistical reasoning would in a large number of cases yield the greater number of accurate results. This shows that the opposition to decisionmaking on statistical evidence stems less from epistemic reasons than from moral, political and cultural background considerations. It has in fact been persuasively argued that ordinary cognition represents the ethical and political predicate of justice as presently conceived, and that judicial surrender of ordinary to expert reasoning that requires sailing over deep mathematical waters would undermine the legitimacy of criminal proceedings.® All things considered, then, it seems unlikely that law will obligate judges to disregard their native reasoning processes and decide cases on the basis of expert findings and opinions. The imperialism of science is not likely to extend so far. What one should expect in the not too distant future, however, is the increased acceptance of negative proof rules based on scientific insight, and especially acceptance of their presently disliked corroboration kind. This is because legal rules of this kind, although based on scientific insights and technological achievements, preserve the space for judges to assess the value of evidence by using ordinary cognitive processes. Judges are not compelled by these rules to establish the defendant’s guilt contrary to their beliefs, but are prohibited from convicting him or her without the imprimatur of science.’ An example of such a rule has already been given: a legal provision can easily be imagined requiring that the testimony ® Jonathan Cohen, Freedom of Poof, in William Twining (ed.), Facts and Law, 16 Archives for Philosophy of Law and Social Philosophy, Hudson, NY, Steiner Books, 1983, 1-6. ° Rules of this genre illustrate Karoly Bärd’s contention that some norms serve neither concerns about fact-finding accuracy, nor the protection of substantive values (such as privacy or human dignity). Their purpose is instead to reduce the danger of wrongful convictions. See Bärd, Fairness in Criminal Proceedings, 55. + 202 +
