Eva Schmidt et al. explore the question of whether evidence provided by software systems can serve as a legitimate basis for judicial decisions, focusing on two primary cases: recidivism predictions and DNA cold hit cases. The authors approach this question by analyzing the nature of bare statistical evidence and its relation to individualized evidence. They argue that while bare statistical evidence is generally considered insufficient to meet the standard of proof in criminal and civil cases, software-generated evidence can be individualized and, thus, meet this standard of proof under certain conditions.
In the case of recidivism predictions, the authors discuss the use of software systems such as COMPAS, which rely on bare statistical evidence to estimate the risk of an individual reoffending. They argue that for a sentence to be just and have the potential to serve as an incentive, it must be based on the specific features of the individual concerned, rather than solely on general features of a group that they belong to, which may correlate with high recidivism risk. The authors maintain that bare statistical evidence alone is insufficient for sentencing decisions.
Regarding DNA cold hit cases, the authors propose that statistical evidence generated by software systems like TrueAllele can be individualized through abductive reasoning or inference to the best explanation when it comes to cases of extreme probability. They argue that when the best explanation for the evidence is that the defendant is the source of the crime scene DNA, the evidence can be considered individualized and, thus, meet the standard of proof for criminal cases. This aligns with the normic account of individualized evidence, which posits that the best explanation of a piece of evidence is also the most normal explanation.
The authors’ analysis raises broader philosophical questions concerning the nature of evidence, the role of statistical reasoning in judicial decision-making, and the ethical implications of using software systems in the courtroom. It highlights the importance of distinguishing between different types of support, such as abductive (normic) support and probabilistic support, and of understanding the connections and disconnections between these concepts. Moreover, the paper touches on issues related to transparency, explainability, and fairness in the use of software systems as decision-making aids in the legal context.
Future research could further explore the implications of using software systems for other types of legal evidence and decision-making processes, as well as the ethical and epistemological challenges that these systems pose. Additionally, investigating the relationship between individualized evidence and statistical reasoning could shed light on the nature of evidence itself and the standards of proof required in various legal contexts. Finally, future work could focus on the development of guidelines and best practices for the implementation and evaluation of software systems in the courtroom, addressing issues such as transparency, explainability, and the appropriate weighting of statistical and individualized evidence.
Abstract
Can the evidence provided by software systems meet the standard of proof for civil or criminal cases, and is it individualized evidence? Or, to the contrary, do software systems exclusively provide bare statistical evidence? In this paper, we argue that there are cases in which evidence in the form of probabilities computed by software systems is not bare statistical evidence, and is thus able to meet the standard of proof. First, based on the case of State v. Loomis, we investigate recidivism predictions provided by software systems used in the courtroom. Here, we raise problems for software systems that provide predictions that are based on bare statistical evidence. Second, by examining the case of People v. Chubbs, we argue that the statistical evidence provided by software systems in cold hit DNA cases may in some cases suffice for individualized evidence, on a view on which individualized evidence is evidence that normically supports the relevant proposition (Smith, in Mind 127:1193–1218, 2018).
Bare statistical evidence and the legitimacy of software-based judicial decisions