Module 9: Probability and Litigation

This module explores the connection between statements that involve probabilities and those phrases used for evidentiary purposes in the courts. We begin with Jack Weinstein, a federal judge in the Eastern District of New York, and his views on the place that probability has in litigation. Jack Weinstein may be the only federal judge ever to publish an article in a major statistics journal; his primary interests center around subjective probability and how these relate, among others, to the four levels of a “legal burden of proof”: preponderance of the evidence; clear and convincing evidence; clear, unequivocal, and convincing evidence; and proof beyond a reasonable doubt. The broad topic area of probability scales and rulers is discussed in relation to several more specific subtopics: Jeremy Bentham and his suggestion of a “persuasion thermometer”; some of Jack Weinstein’s legal rulings where probabilistic assessments were made: the cases of Vincent Gigante, Agent Orange, and Daniel Fatico. An appendix gives a redacted Weinstein opinion in this later Fatico case. Two other appendices are also given: the text of Maimonides’ 290th Negative Commandment, and a District of Columbia Court of Appeals opinion “In re As.H” (2004) that dealt with the assignment of subjective probabilities and various attendant verbal phrases in eyewitness testimony.