Predictive Evidence in Criminal Trials

Abstract

In previous works, I have sought to explain and justify the hostility of criminal proceedings toward statistical evidence by suggesting that criminal fact-finding implicitly adheres to the view that culpable conduct requires free will that is necessarily unpredictable. In this paper, I argue that Criminal Law should treat people based on the assumption that they have unpredictable free will, even if this assumption is unfounded or even false. I first show how the use of predictive evidence undermines the effectiveness of stigmatisation, based in part on the phenomenon of ‘bypassing’. I then claim that my justification has a considerable advantage over the popular incentive-based justification.

Keywords

• Condemnation
• bypassing
• statistical evidence
• relevance
• proof