Reference Classes and Legal Evidence
| Date | 01 October 2007 |
| DOI | 10.1350/ijep.2007.11.4.255 |
| Published date | 01 October 2007 |
| Author | Michael S. Pardo |
| Subject Matter | Article |
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2007) 11 E&P 255–258 255
REFERENCE CLASSES AND LEGAL EVIDENCE
Reference classes and
legal evidence
By Michael S. Pardo*
Assistant Professor, University of Alabama School of Law
n a recent article,1Ron Allen and I argued that the problem of reference
classes places limits on the ability to model mathematically the
probative value of particular items of legal evidence. The limitations are
epistemological in nature and undermine conclusions that formal models of
evidence can measure, discover, articulate, or otherwise capture the correct value
of evidence: or so we contend. We attempted to illustrate these general limitations
by reconsidering recent scholarship in which contributors modelled the value of
evidence relating to DNA, carpet fibres, infidelity and impeachment.2We also
discussed the reference class problem as it arose in the context of United States v
Shonubi, in which a defendant convicted of drug smuggling was sentenced based,
in part, on data concerning the behaviour of other drug smugglers.3In this special
issue of E & P, we are now fortunate to have four responses by Dale Nance, Mark
Colyvan and Helen Regan, Robert Rhee, and Larry Laudan. We are truly grateful to
I
1 Ronald J. Allen and Michael S. Pardo, ‘The Problematic Value of Mathematical Models of Evidence’
(2007) 36 Journal of Legal Studies 107.
2 We discussed primarily the following articles: Dale A. Nance and Scott B. Morris, ‘Juror
Understanding of DNA Evidence: An Empirical Assessment of Presentation Formats for Trace
Evidence with a Relatively Small Random-Match Probability’ (2005) 34 Journal of Legal Studies 395;
Michael O. Finkelstein and Bruce Levin, ‘On the Probative Value of Evidence from a Screening
Search’ (2003) 43 Jurimetrics Journal 265, 266; Deborah Davis and William C. Follette, ‘Toward an
Empirical Approach to Evidentiary Ruling’ (2003) 27 Law and Human Behavior 661; Richard D.
Friedman and Roger C. Park, ‘Sometimes What Everybody Thinks They Know is True’ (2003) 27 Law
and Human Behavior 629; Deborah Davis and William C. Follette, ‘Rethinking the Probative Value of
Evidence: Base Rates, Intuitive Profiling, and the “Postdiction” of Behavior’ (2002) 27 Law and
Human Behavior 133, 156; Dale A. Nance and Scott B. Morris, ‘An Empirical Assessment of Presen -
tation Formats for Trace Evidence with a Relatively Large and Quantifiable Random Match
Probability’ (2002) 42 Jurimetrics Journal 403.
3United States vShonubi, 962 F Supp 370 (EDNY 1997); United States vShonubi, 103 F 3d 1085 (2d Cir.
1997); United States vShonubi, 895 F Supp 460 (EDNY 1995); United States vShonubi, 998 F 2d 84 (2d Cir.
1993); United States vShonubi, 802 F Supp 859 (EDNY 1992).
* Email: mpardo@law.ua.edu. My thanks to Dean Ken Randall and the University of Alabama Law
School Foundation for generous research support.
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