Toward an Empirical Approach to Evidentiary Ruling.

Abstract

This paper responds to criticisms/misconstruals of our measure of the maximum probative value of evidence (D. Davis & W. C. Follette, 2002), and our conclusions regarding the potentially prejudicial role of "intuitive profiling" evidence, including motive. We argue that R. D. Friedman and R. C. Park's (2003) criticisms and example cases are largely based on inappropriate violation of the presumption of innocence. Further, we address the merits of our absolute difference measure of probative value versus those of the Bayesian likelihood ratio championed by D. H. Kaye and J. J. Koehler (2003). We recommend methods for presentation of measures of evidence utility that convey complexities of interdependence between new and existing evidence. Finally, we propose a "probable cause" standard for admission of potentially prejudicial evidence, dictating that admissibility of such evidence should be contingent upon other substantial evidence of guilt.

Grounding legal proof

“…One possibility suggested was to rely on objective data (typically, relative frequencies) to quantify the strength of the evidence (e.g. Finkelstein & Levin, 2003; Davis & Follette, 2003). Such data however, do not exist for the vast majority of items of evidence 19 .…”

Book Review: Character Evidence in the Criminal Trial

“… 21. As Davis and Follette (2003: 663) observe, actuarial associations with crime need to weighed against the undesirability of profiling that infringes upon the presumption of innocence, otherwise members of social groups will suffer even greater danger than present to becoming victims of biasing assumptions. …”