Hypothetical Vaccination Scenario and Paternalism

In this essay I will discuss a new vaccine that can treat and prevent cocaine addiction. I will explain why a hypothetical public policy of compulsory inoculation of infants against the effects of cocaine would be paternalistic. I will then present some reasons why the paternalistic policy should not be implemented for ethical and pragmatic reasons, while considering rebuttals to these objections in a largely point-counterpoint fashion.

The cocaine vaccine

Celtic Pharma is a company that specialises in ‘novel’ pharmaceutical products in ‘the late stages of clinical and regulatory development’.[1] TA-CD is a new vaccination is being developed by Celtic Pharma. The molecular structure of TA-CD is designed in such as way that it mimics a certain class of antibodies that attach to cocaine molecules as they pass through the blood stream, making them, at this stage, too large to pass into the Central Nervous System. Subsequently the user does not gain any pleasure from ingesting cocaine. This is because the mechanism that creates a surge of dopamine in the brain is short-circuited. Due to the negation of pleasurable effects that usually accompanies cocaine addiction, Celtic Pharma foresee that the implementation of TA-CD into a patient management program can improve the chances that cocaine abusers will kick their habit and become valuable members of society.[2]

A separate study, in this field has been undertaken by a group of medical researchers not related to Celtic Pharma's research effort. This study has shown promising results for a vaccine which stimulates the subject’s immune system to produce a store of actual antibodies that similarly prevents cocaine from actually reaching the brain.[3] In light of these recent and dramatic developments, it seems that the reality of cocaine ‘vaccination’ is not very far away.

Considering the social impact of cocaine addicts, vaccines like TA-CD seems destined to be a valuable tool towards their rehabilitation when it is released. While cocaine isn’t as prevalent a drug as it once was (for instance, the crack cocaine epidemic that swept America in the 1980s and early 1990s), it is still a problem on our streets and it is likely that this vaccine would be welcomed by many to help deal with the issue.

Vaccination against the threat of disease is an important defence against morbidity. Immunization is a remarkably successful and cost effective strategy of preventing infectious diseases by preventing contraction and slowing contagion. Infant immunization has resulted in a decline in and, in some cases, eradication of previously common contagious diseases, such as: polio, smallpox, rubella, tetanus, and measles. Infant immunization programs have had such success that Sir Sandy Macara, the former chairman of the British Medical Association has called for them to be compulsory.[4]

So, why not a compulsory cocaine vaccine? To see the potential public policy implications of this vaccine, we have to place ourselves in the realm of (plausible) hypotheticals. Imagine that the TA-CD vaccination clears clinical trials and is approved by the medical authorities as a treatment and preventative medication. Now imagine that a state puts forward a bold policy proposal which makes if compulsory for all children to be vaccinated against the effects of cocaine, therefore mitigating future potential cocaine addiction in these individuals.[5]

Why a compulsory narcotics inoculation policy for infants would be paternalistic

The Stanford Encyclopedia of Philosophy describes paternalism as the interference of a state or an individual with another person, against their will, and justified by a claim that the person interfered with will be better off or protected from harm.[6] Paternalism can draw justification from Mill’s Harm Principle which states that, “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”[7] Typical examples of paternalistic policies are seatbelt laws to prevent road deaths, laws against suicide (eg. forfeiture of insurance benefits), and high taxes on cigarettes to incentivise healthy living. [8]

Paternalism mimics a parent’s relationship with their child by applying a ‘Mother (father?) knows best’ policy framework. What then are the relevant moral considerations, in this situation? Do parents who inhabit a certain social-class or live in a certain social environment have a duty to vaccinate themselves and their kids from cocaine?[9] Would to not get the vaccine be reckless endangerment? What role should the state play? Does the state have extra special obligations to protect its citizens from potential harm?

It could be questioned whether compulsory inoculation against the effects of cocaine would actually be a paternalistic policy. Feinberg argues that when most of the individuals affected by a policy actually approve of the policy then the policy cannot be called paternalistic. If popular support endorses a policy then Feinberg states that the law can be construed as, “…fair or unfair, wise or unwise, but in either case, it will not be ‘paternalistic’.”[10] This upsets the view of compulsory inoculation as paternalistic. This is because most of the public could hypothetically endorse a government that implemented this policy. However, it must be remembered that the individuals who are the subject of this policy are infants and so do not have any say in democratic deliberation or procedure. For this reason, it would be a stretch to say that they consent to the policy. Therefore, the policy may be classified as paternalistic. But which type of paternalism?

There are two types of paternalism, hard and soft. A policy is said to be hard paternalistic if it asserts that it is legitimate to interfere with individuals’ actions even if the person is fully aware of the repercussions of those actions. Inversely, a policy is said to be soft paternalistic if it asserts that it is legitimate to interfere with individuals’ choices only if it is unclear if the person is fully aware that they are acting contra to their best interests.

Lowenstein sees a role for soft-paternalism in influencing health behaviour because the aim is to reinstate the individual’s autonomy by ‘protecting them from themselves’.[11] A soft-paternalistic policy would be, for instance, a €500 tax rebate if you agreed to have your blood checked at a clinic every three months and were found to have no traces of cocaine in your system. Incentivising individuals to stop them from making the harmful decisions that are associated with cocaine is one way of decreasing the burden on scarce public resources while mitigating the chance that the individual will make compromised choices that they wish they would not make.

However, soft-paternalistic policies can be cumbersome to implement. For instance, the monetary and productivity costs associated with setting up checking-up systems are not trivial. Take for example the German healthcare system which is set up with nudge elements. There is much disgruntlement among doctors in Germany who are made to supervise their patients’ push-ups in order for them (the patients) to claim an insurance rebate.[12] A cocaine blood-test tax-rebate scheme is likely to put similar ‘policing’ burdens on social institutions.

Hard paternalism, on the other hand erects greater boundaries to a choice set. The idea is that a hard paternalistic policy tries to place a choice completely out-of-bounds, rather than needing constant incentivisation, coercion, deception, supervision, and policing. Compulsory infant inoculation against the effects of cocaine would be a hard paternalistic policy as it will lead to adults being constrained against their will.

When framed like this, it seems that a policy of inoculating babies at birth against cocaine addiction may seem to be a worthy paternalistic policy.

Why this paternalistic policy may not justified

There is something intuitively discomforting about the thought of inoculating babies against cocaine addiction, in this author at least. While paternalism may have a role to play in broader health policy, it seems that this is taking paternalism too far. There are a number of reasons that this is the case, which I discuss below in no particular order.

Firstly, infants should not be the primary targets of policy-makers’ concern. They are not yet making the sub-optimal decisions that would have harmful effects on their own lives and the lives of others. They are a blank slate when in terms of decision-making. In contrast, cocaine addicts should be the targets of paternalistic policies as they have established themselves in a position where they are making sub-optimal decisions by being unable to break their habit. A policy which stipulates that criminals that are found to be cocaine addicts should be involuntarily inoculated would be more ethically acceptable, as it is easy to identify them as a direct harm to themselves and to others.

A possible retort to this objection to this could be based on intergenerational justice grounds. It could be claimed that it is unfair to future generations to leave them to deal with problems when we currently have the medical knowledge to prevent them from happening. However, I do not think that this is a strong argument for two reasons: firstly, because we are leaving future generations no worse off than we are now – i.e. every generation has to deal with addicts so our inaction is defendable (though admittedly weakly) on egalitarian terms; and secondly, for the further reasons explored below.

Secondly, it has been argued that, in some cases, paternalism can be interpreted as problematic because it does nothing to build moral character. Bovens’ argues that such policies may not increase our capacity for self-control. For instance, he reminds us of the paradox that capital punishment may contribute to a more violent culture and may increase violent crime in the long run.[13] In the hypothetical case of TA-CD inoculation of infants, if we have manipulated people’s bodies to make them immune from the effects of cocaine when they come-of-age does this mean that we are creating more moral people with self-control. No. We might have strong reasons to believe that these people will seek their thrills elsewhere and may instead substitute cocaine for heroin, crystal-meth, ecstasy, ketamine, or others. They might even be more psychologically disposed to rebellion and counterculture. By vaccinating with TA-CD we are shifting the problem around, failing to see the bigger picture, and not enhancing individuals’ moral character and perhaps contribute to the deterioration of future generations morality.

A possible response to this rejection is that perhaps those inoculated infants will grow up to be less inclined to try addictive substances and would be inspired by their government’s moral heavy-handedness to be morally virtuous and abstain from a wider array of drugs. This is unsubstantiated conjecture and strikes this author as intuitively problematic.

Thirdly, even if such a policy of inoculations at birth were ethically defensible, it would not be a pragmatic policy decision. While there are no solid figures on addiction rates, according to the European Monitoring Centre for Drugs and Drug Addiction that monitors drug use in the EU, only 3% of Britons between 15-65 had tried cocaine between 2007-2008, a fraction of which would experience complications or become addicts.[14] The amount of money that would need to be spent on infant inoculation would seem to be an extravagantly wasteful measure for marginal benefit.

A possible objection to this is that inoculation could be cost-effective if it were mandatory for those born into a particular social class or borough where the prevalence of cocaine use is high. However, this is an even less appealing policy prospect. Those in these groups would likely be humiliated and insulted for being singled out for treatment. This policy is likely to be received as offensive to the integrity of the individuals of these groups and the perceived presumption of future akrasia of their children. The consequences for the ‘marked’ person of being singled out by others, even in their infancy, may be both socially disruptive and psychological in nature for the individual concerned, leading to a significant potential for negative externalities.

Finally, there is a potential social, artistic, and intellectual value to the euphoria that cocaine produces that potentially outweighs the costs of treating those who become addicted. Sir Arthur Conan Doyle, Sigmund Freud, U.S. President Ulysses S. Grant[15], and Brian Wilson of the Beach Boys[16] were all cocaine users and, because of the nature of the drug, likely addicts. Counter-culture revolutions such as those experienced in the United States in the 1960s owe a debt to the mind-altering addictive drugs. Addictive substances inspired a wealth of music and literature, from Dylan’s seminal album ‘Bringing It All Back Home’ to Kerouac’s ‘On The Road’, both directly or indirectly. In a sense, we may push that they weren’t making sub-optimal decisions at all. Do we really want to neuter such a rich nectar of artistic inspiration that has inspired millions of non-drug-abusing individuals?

A possible objection to this is that, there are numerous artists, writers, and musicians who have been successful without the aid of strong narcotics. Surely, it would be non-virtuous to praise those whose creative powers were artificially stimulated. I think that this is disputable. The effects of cocaine allow access to something which acts as the muse of creativity and stirs passions. Our society praises those who create works and ideas that are ‘authentic’ and create value through entertainment and education, regardless of drug influence. Western society seems, at least to this author, to extend a somewhat relaxed attitude by ignoring, excusing, or celebrating drug-culture’s association with the arts and important social movements.

Conclusion

I have shown that, given new medical developments, it is possible to imagine a hard paternalistic policy of compulsory TA-CD vaccination for infants. Despite its face-value virtue (eradication of future cocaine addicts), I have shown that a number of ethical and pragmatic concerns make this hard paternalistic policy unwise to pursue and is not a satisfying solution to the problem of cocaine addiction.

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[1] Celtic Pharma, “The Firm – Overview”, Accessed at: http://www.celticpharma.com/thefirm/index.html

[2] Celtic Pharma, “The Portfolio – TA-CD”, Accessed at: http://www.celticpharma.com/theportfolio/ta-cd.html

[3] Weill Cornell Medical College, “Press Release - Vaccine Blocks Cocaine High in Mice”, (Jan. 4, 2011) Accessed at: http://weill.cornell.edu/news/releases/wcmc/wcmc_2011/01_04_11.shtml

[4] Smith, R., “Childhood vaccinations should be compulsory, says former head of BMA”, The Telegraph, (Jun. 4, 2009), Accessed at: http://www.telegraph.co.uk/health/children_shealth/5436636/Childhood-vaccinations-should-be-compulsory-says-former-head-of-BMA.html

[5] Note that a cocaine vaccination would appear have close-to-no implications for the effectiveness of on any established medication. The use of cocaine based treatments for medical purposes is very rare. It is only approved as a local anaesthetic in rare cases and has been almost fully replaced nowadays with synthetic alternatives.

[6] Dworkin, G., “Paternalism”, in The Stanford Encyclopedia of Philosophy, Accessed at: http://plato.stanford.edu/entries/paternalism/

[7] Mill, J.S., “On Liberty”, (1859)

[8] Kleinig, J., “Paternalism”, Manchester: Manchester University Press, (1983)

[9] This does not imply a low socio-economic background. Because of its cost, cocaine is a drug often associated with affluent socio-economic backgrounds also.

[10] Feinberg, J., “The Moral Limits of the Criminal Law, Volume 3: Harm to Self”, Oxford: Oxford University Press, (1989), pg. 19

[11] Loewenstein, G., “Asymmetric Paternalism to Improve health Behaviours”, Journal of the American Medical Association, Vol. 298, No. 20, (2007)

[12] Schmidt, H., “Draft PhD. Dissertation - Chpt. 2: Responsibility, ‘Carrots’ And ‘Sticks’ In Health Care Policy in Germany and the USA”, pg. 33, Accessed at: http://moodle.lse.ac.uk/mod/resource/view.php?id=197150

[13] Bovens, L., “The Ethics of Nudge”, in Grüne-Yanoff, T. & Hansson, S.O., “Preference Change: Approaches from Philosophy”, Berlin and New York: Springer, Chapter 10, (2008)

[14] European Monitoring Centre for Drugs and Drug Addiction, “Country Overview: United Kingdom”, Accessed at: http://www.emcdda.europa.eu/publications/country-overviews/uk/data-sheet

[15] Radenkova–Saeva, J., “Review Article: Recreational Drugs and its Impact on Music, Literature, and Art”, Biotechnology & Biotechnological Equipment, Vol. 22, No. 2, (2008)

[16] Levine, B., “Brian Wilson: A Cork on the Ocean”, Scientific American Mind, (Dec. 2005)

Bayesian Judicial Policy: What role for character evidence in criminal trials?

I believe that the strong reason for excluding character evidence is that juries may apply undue weight to this form of evidence. This may cause the jury to misinterpret if they have achieved a necessary threshold for attaining ‘proof without reasonable doubt.’

In this post, I present two arguments that support the thesis that undue weighting can make jury decisions unreliable. Despite this, I believe that strong grounds exist for this type of evidence to be included in legal trials. I present two rebuttals to the two arguments against inclusion of this form of evidence. These rebuttals form my argument that the problems raised can be overcome.

Introduction

The inclusion of certain kinds of evidence in a legal trial must be sufficiently deliberated-over. In the case of character evidence, on one hand character evidence has logically probative value,[1] however, it may be that the potentially prejudicial effect of this type of evidence outweighs that probative value.

From a Bayesian perspective, it makes sense to take prior probability in the general into account when determining the likelihood of an event being true or false in the particular. The Bayesian method of statistical inference may be able to inspire some confidence in our self-perception of our probabilities of doubt and certainty. For Bayesian estimation we rely on a priori probability, and then adapt it when some new evidences are presented. This gives us a wider frame of reference when determining likely probabilities. In a legal trial, incidences of prosecutors’ fallacy are hoped to be avoided. The aim is to keep the number of false-positives low so that innocent people do not get unjustly condemned. Surely then, if character evidence can help achieve greater confidence in our judgements it should be used in legal trials to inform juries whether or not they can confidently satisfied the condition of ‘proof without reasonable doubt’. Probative

However, it has been shown by Kahneman et al that it is not uncommon for individuals to commit basic mistakes when reasoning about probability.[2] For example, they show that people place undue weight on information that is easily retrievable or highly available. An example of this could be, for instance, a drop in the number of airline passengers after a highly publicized plane crash. The fact that the 24-hour news cycle has a propensity to keep emphasising the crash can make people imagine that it is very unsafe to travel by air, even though it has been proven that fatal accidents occur one hundred times more frequently when travelling by road.[3] As the memory of the crash slips out of consciousness, the number of flights sold increases, even though the probability of dying in a plane crash essentially remains constant throughout. The plausibility of this made-up example lies in its similarity to patterns we observe in real life situations. We often observe individuals, including ourselves, incorrectly applying too much probability on the chance of certain events heppening. Equally, this problem affects juries too.

In the next section, I will show that increased jury fallibility, by applying undue weight to character evidence, provides the strongest grounds for exclusion of character evidence. The placing of undue weight on this form of evidence can stem from a juror’s: a. uncertainty as to what a reasonable burden of proof threshold should be, and b. exposure to limited reference class of the defendant.

Grounds for Exclusion of Character Evidence

a. Character evidence alone could satisfy the burden-of-proof threshold for some Jurors.

It can be argued that introducing character evidence into legal trials can push a juror’s conception of guilt over a unreasonably low threshold of ‘proof beyond reasonable doubt’. This argument draws from the ambiguity of what constitutes ‘beyond reasonable doubt’ for a jury member.

Reasonable doubt refers to the doubt that prevents one from being firmly convinced of a defendant's guilt or the belief of the real possibility that the defendant is not guilty. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.[4] It is the level of proof demanded by the legal system to allow a juror to support the conviction of an accused person in a criminal case.[5] However, it does not require absolute certainty.

There have been some strides towards quantifying the ‘proof beyond reasonable doubt’ standard of criminal law as a percentage probability. For example, one prosecutor (in People v. Ibarra 2001) attempted to explain it using a bar chart showing different sublevels of doubt: 60%: beyond a reasonable doubt; 70%: beyond a shadow of doubt; 80%: beyond all doubt; 90%: absolute certainty. Besides the arbitrary nature of the milestones, needless to say 60% is a very low bar for beyond reasonable doubt, as 40% chance of being wrong is a very significant minority.

I believe that it is conceivable that a jury member with this particular low threshold of ‘proof’ (60% certainty) could decide on a verdict of guiltymerely from hearing character evidence! This is especially worrying when it is known that some individuals have even lower conceptions of what constitutes proof ‘beyond reasonable doubt’. For instance, a survey of over one hundred adults was conducted to gauge their attitudes towards presumptions of guilt and innocence and what probability constituted ‘beyond reasonable doubt’. All but two respondents replied that they required between 50% and 99.9% (some lying below the 60% threshold) with most respondents replied with higher probability preferences ranging from 80% to 99%. One interesting outlier was an individual who only required 30% to make a conviction!

This is interesting when we take pre-trial presumption of guilt into consideration. Weinstein notes that the innocent until proven guilty principle is theoretically sound but in practice it can only be weakly adhered to. Following from the principle, it is expected that prior to hearing any evidence in court, the members of the jury should start with the presumption that the probability of the defendant being guilty is close to 0%. However, in practice, Weinstein suggests the probability of guilt or innocence is probably much higher than zero. This is true for a number of reasons, namely that the juror would not believe the case could have come to trial had the civil authorities not amassed substantial evidence of guilt and judicial authorities had not deemed their case weak or frivolous. Weinstein suggests that “It is not unlikely that many jurors begin hearing evidence believing that it is roughly 50% probable that the defendant committed the offense charged with the state having the responsibility to drive up this probability.”[6]

To summarise this argument: Jury members may have very low burden of proof thresholds. This is not helped by the abstractness of the concept and differentiating views of legal scholars on what a reasonable threshold should be, including one suggestion of as low as 60%. Add to the fact that jurors often have a pre-trial presumption of guilt of 50%, I think it is plausible that such an individual could decide on a verdict of guilty merely from hearing character evidence alone!

Even, if one thinks that this could be permissible, the next argument deals specifically with why character evidence is not satisfactory evidence.

b. Exposure to a limited reference class of the defendant

The reference class problem refers to the problem of deciding which ‘class’ I should make inferences from. For example, if I want to think about the probability of Hannah failing her Evidence and Objectivity exam, do I consider: The frequency of exam failures pertaining to all students in the previous year’s module; The frequency that Hannah has failed exams in other modules; The frequency that Hannah has received a failing grade on her coursework this semester; Or some completely different reference class altogether, such as Hannah’s frequency of turning up late to big examinations? It is difficult to decide which reference class is most appropriate to use. Jury’s who are presented with reference class data pertaining to character, may not be aware of the implications of the reference class problem, causing them to apply undue or unfair weight to the evidence presented to them.

Empirical data in the form of recidivism rates, for example, could potentially alter conceptions of prior probability significantly. Recidivism is the continued, habitual or compulsive relapse into undesirable patterns of behaviour. In other words, it is describes the behaviour of repeat offenders. I argued that if jurors had access to information on the ‘reference class’ of a defendant, their knowledge of prior probability of guilt on this information alone would significantly affect their confidence of guilt or innocence. However, recidivism rates are weak evidence in the sense that it could be presented that x percentage of felons will commit the same crime again during their lifetime. However, it may be the case that this percentage is an aggregate, and reoffending is less likely amongst older felons. A better way of presenting this evidence would be to tell the jury thaty is the percentage of felons who reoffend before they reach the defendant’s age group.

However it is easy to imagine that an incorrect reference class can be easily, and either innocently or maliciously, presented. Therefore, there is a huge potential for juries to put undue weight on this type of character evidence if presented with misleading reference class data. It is not surprising then that there is anxiety over reference class based decision-making and that the issue has been flagged in the courts as objectionable.

Shinoubi presents a classic example. Shonubi is a Nigerian citizen who transported illegal heroin by stuffing the heroin-larded paste into balloons, and then swallowing the balloons. He was arrested at JFK airport in New York and tried in the district court presided over by Judge Weinstein. There was reason to suspect that Shonubi had made eight trips in total, although he was only tried for the trip on which he was caught. This was significant, as Weinstein decided the suitable punishment for Shonubi based on the amount of heroin imported illegally. Weinstein used information known about ‘other drug-smuggling balloon swallowing Nigerians’ as a reference class for drawing inferences about Shonubi and sentenced him to a more lengthy spell of incarceration than would otherwise be allowed. [7]

This reliance on a reference class was later deemed unjustified in an appeal court. Re-iterating the anxiety with this approach, the problem with relying on reference class to determine a priori probability of guilt is that, Colyvan et al point out, “Shonubi is a member of many (in fact infinitely many) reference classes; some of these classes consist largely of unsavory types while others consist largely of saints.”[8] Judge Weinstein had assumed that Shonubi was no different to his ‘peers’ and thus had convicted him without knowing which other reference classes he may have belonged. If a judge, and legal scholar, can be so narrowly focused on a singular reference class then it is not a stretch to suggest that a jury made up of ordinary members of the public could make similar assumptions. We can now see that, when presented with evidence of a character, the problem of reference class assigning can be alarmingly prejudicial.

Grounds for Inclusion of Character Evidence

The two charges presented above rightly identify some of the issues with including character evidence in trials. However, I will now respond with three short rebuttals, which serve to show that is possible to mitigate the possibility of jurors apportioning disproportionate weight to character evidence.

c. Uncertainty over burden of proof threshold- Rebuttal

In section a., it was shown that there was some shortcomings to the consensus on high should the burden of proof be and that a low burden of proof threshold could, in a sense, amplify the effect of character evidence. To mitigate this, we must simply insist on jurors that they exercise a high proof-beyond-reasonable-doubt threshold.

It is argued that the law tilts in favour of defendants; it prefers that some guilty go free rather than that some innocents be convicted.[9] In other words, a low false positive rate is more desirable than a low false negative rate in the legal realm. This suggests that a quite high burden of proof is desirable in any society that holds that particular value, as to protect the innocent from being incorrectly convicted. However, it is difficult to pin down exactly how high to push that threshold. The inclusion of character evidence, can be non-toxic, if the burden of proof is high enough so that character evidence cannot stand on its own as the basis for a conviction.

A fair assumption is that the majority of stakeholders in our systems of justice have a desire not to have questions of guilt or innocence decided prematurely, where premature decisions could conclude in a way that might cause undue public controversy. The remedy for this is for judges to adequately convey to the jury members what their burden of proof is, whether it is to be 99%, 90%, 80%, or whatever percentage, to be convinced. Secondly the Jury could go through a pre-trial training and assessment to confirm that they do not fall into the category of individuals who only need to be, for instance, 30% convinced of guilt to convict.

A series of comments on the matter recently appeared in the Journal of Law, Probability, and Risk. Franklin suggested, “any probability less than 0.8 should be declared less than proof beyond reasonable doubt in all circumstances.”[10] Weinstein stated that, “In my opinion, a probability of guilt of no less than 95% should be necessary to support a conviction.”[11] Tillers and Gottfried give a similar appraisal and provide allow that a jury should be permitted to condemn a defendant “only if the juror believes that there is more than a 95% chance that the defendant is guilty.”[12] Perhaps a consultation paper that brought together the views of all legal scholars in a district could be compiled that would then be used as a basis for giving jurors clear guidance on what proof threshold they should exercise.

d. Exposure to a limited reference class of the defendant - Rebuttal

The use of reference classes as a basis for establishing guilt should be admissible in court. Franklin points out that the fact that 99% of drivers cut a particular corner cannot stand as evidence in a court of law that a particular driver cut that corner at a particular time in question. Franklin argues that it is ‘absurd’ that this is inadmissible evidence, as this constitutes logically relevant evidence! [13] Weinstein agrees with Franklin, signalling that he finds it difficult to comprehend why juries are prohibited from considering such easily quantifiable, empirical research on recidivism rates.[14]

In terms of mitigation of the reference class problem: firstly, judges could use their discretion and many years of legal experience to throw-out arguments that appeal to unconvincing or too narrowly defined reference classes; and secondly, it is the prerogative of the defendant’s barrister to present a reference class that shows his client in a good light, therefore balancing the prosecution’s use of reference class data as character evidence.

Conclusion

The inclusion of character evidence has probative value. The reasons for excluding it from trials rely on pragmatic concerns: namely, that jurors may put too much weight on this type of evidence. I have argued that these concerns can be mitigated. Therefore, I conclude that character evidence should be included in legal trials.

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[1] I will not directly defend this assumption of probative value of character evidence in this essay.

[2] Kahneman, D., Slovic, P., & Tversky, A., “Judgment under Uncertainty: Heuristics and Biases”, Cambridge: Cambridge University Press, (1982)

[3] Gottdiener, M., “Life in the Air: Surviving The New Culture of Air Travel”, Lanham, MD: Rowman & Littlefield Publishers, (2001), pg. 2

[4] Anderson T., Shum, D.A., Twinning, W.L., & Twinning, W., “Analysis of Evidence – 2^nd Ed.”, Cambridge: Cambridge University Press, (2005)

[5] Glendinning, P., “View from the Pennines: Beyond A Reasonable Doubt”, Mathematics Today, Vol. 45, (2009)

[6] Weinstein, J.B. &Dewsbury, I., “Comment On The Meaning Of ‘Proof Beyond A Reasonable Doubt’”, Journal of Law, Probability and Risk, Vol. 5, No. 2, (2006)

[7] Tillers, P., “United States v. Shonubi: A Statistical Oddity?”, Cardozo Law Review, Vol. 18, (1997)

[8] Colyvan, M., Regan, H.M., & Ferson, S., “Is It a Crime to Belong to a Reference Class?”, Journal of Political Philosophy, Vol. 9, No. 2, (2001)

[9] Weinstein, J.B. &Dewsbury, I., “Comment On The Meaning Of ‘Proof Beyond A Reasonable Doubt’”, Journal of Law, Probability and Risk, Vol. 5, No. 2, (2006)

[10] Franklin, J., “Case Comment—United States V. Copeland, 369 F. Supp. 2d 275 (EDNY 2005): Quantification Of The ‘Proof Beyond Reasonable Doubt’ Standard”, Journal of Law, Probability and Risk, Vol. 5, No. 2, (2006)

[11] Weinstein, J.B. &Dewsbury, I., “Comment On The Meaning Of ‘Proof Beyond A Reasonable Doubt’”, Journal of Law, Probability and Risk, Vol. 5, No. 2, (2006)

[12] see Ibid.

[13] Franklin, J., “Case Comment—United States V. Copeland, 369 F. Supp. 2d 275 (EDNY 2005): Quantification Of The ‘Proof Beyond Reasonable Doubt’ Standard”, Journal of Law, Probability and Risk, Vol. 5, No. 2, (2006)

[14] Weinstein, J.B. &Dewsbury, I., “Comment On The Meaning Of ‘Proof Beyond A Reasonable Doubt’”, Journal of Law, Probability and Risk, Vol. 5, No. 2, (2006)