A missing piece in the debate about naked statistical evidence

Abstract

In this article, I want to draw attention to a class of cases that is ignored, sometimes deliberately, in the debate about the probative value of naked statistical evidence (NSE). I am talking about cases in which ‘statistical’ propositions are the principal subject of proof. I will show that they are legally relevant and remain immune to the arguments against NSE put forward in the evidence literature. All of this, I will conclude, makes it convenient to pay more attention to them. First, I will highlight the hypothetical cases discussed in the NSE debate and the kind of propositions that must be proved in them: ‘singular’ propositions. Second, I will show that there are other cases, also relevant in legal systems, in which the principal factum probandum are ‘statistical’ propositions. Third, I will argue that this difference is substantial for the NSE debate.