Law, Probability and Risk - Advance Access

Statistics in the law

Braun, W. J. — Tue, 10 Nov 2009 08:10:38 PST

The limits of social framework evidence

Monahan, J., Walker, L., Mitchell, G. — Fri, 21 Aug 2009 05:00:15 PDT

An important debate is brewing over the proper scope of expert witness testimony that purports to summarize general social science evidence to provide context for the factfinder to decide case-specific questions. In a recent article, we argued that experts who provide this ‘social framework’ testimony should be restricted from making any linkages between general social science research findings and specific case questions unless such linkages are supported by scientifically reliable methods and principles. A response to our article by Professors Hart and Secunda argued that experts should be given much more latitude to match the facts of a particular case to findings from social science research. In this paper, we show that Hart and Secunda mischaracterized our arguments for restricting the scope of social framework evidence, ignored the actual practices of experts who are providing the expert opinions that we question, and misconstrued the motivations behind and likely implications of our arguments. We encourage courts to reject the approach that Hart and Secunda advocate, which would permit both plaintiff and defense experts to link general research to specific cases through nothing other than the expert's subjective judgments and intuition.

Is the civil 'higher standard of proof ' a coherent concept?

McBride, E. — Thu, 14 May 2009 12:49:11 PDT

The standard of proof used in criminal cases is that of proof ‘beyond reasonable doubt’, whereas in civil cases it is that of the ‘balance of probabilities’. It is commonly accepted that these standards are coherent ones but a problem arises where criminal conduct has to be proved in civil proceedings: which standard of proof should be used then? The courts have attempted to resolve this problem by rejecting the use of a third, intermediate standard of proof for such cases, while at the same time requiring a ‘higher standard’ of proof in them. This article argues that consideration of this enhanced standard of proof demonstrates a problem with the concept and questions whether it is a coherent one, with reference to the various interpretations of the ‘higher standard’ commonly proposed to account for legal decision making. In particular, a critique is presented of two recent decisions of the House of Lords, purporting to settle the issue definitively.