TRIBE'S ARTICLE ON THE USE OF MATHEMATICAL TECHNIQUES IN THE LEGAL PROCESS
This essay critiques Lawrence Tribe's article: "Trial by Mathematics: Precision and Ritual in the Legal Process." On the whole, Tribe does not make a convincing case for the wholesale exclusion of statistically based evidence based on probability theory from civil and criminal trials. Many of his arguments are based on implicit or explicit premises and a priori notions which he does not adequately support logically or with empirical data. Others are tortuously or turgidly reasoned and some suffer from their metaphysical nature. He makes a more effective case for not allowing mathematical theory to govern the legal process. He also makes a number of valid points, especially when they are supported and developed (as they are) by other sources, concerning the pitfalls involved in using such evidence and the need to adopt procedural safeguards against the misuse of statistically-based probability data as evidence.
The basic issues in controversy, which are addressed in Tribe's article and elsewhere, are whether and under what conditions and subject to what procedural safeguards expert testimony or other types of evidence based on the use of statistical or mathematical tools and, in particular probability theory, should be admissible as part of the factfinding process in civil and criminal trials in the United States. Tribe's article and, therefore this essay, deal with statistical or mathematical evidence, but there are many other kinds of scientific evidence the use of which in trials present the same or similar issues. Tribe also devotes about one fifth of his article to attacking the use of mathematical models "in the design of trial systems as a whole," an idea which has not gained much acceptance since Tribe's article appeared, and which will be dealt with briefly near the end.
Tribe's article is chiefly aimed at the arguments advanced in a...