Qualitative evidence is a cornerstone of the modern trial system. Parties often invoke eyewitness testimony, character witnesses, or other forms of direct and circumstantial evidence when seeking to advance their case in the courtroom, enabling jurors to reach a verdict after weighing two competing narratives.' But what if testimonial, experience-based evidence were removed from trials? In a legal system that draws its legitimacy from centuries of tradition-emphasizing notions of fairness even above absolute accuracy. Would a jury, not to mention the public at large, reject a verdict that imposes liability or guilt on a defendant in the complete absence of qualitative evidence? More specifically, does a judgment that rests solely on probabilities or other quantitative evidence offend deep-rooted notions of fairness, especially when that quantitative evidence fails to establish a coherent narrative for the plaintiffs case as a whole? In at least one situation, the answer appears to be yes.
G. Alexander Nunn,
The Incompatibility of Due Process and Naked Statistical Evidence,
68 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol68/iss5/6