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This article responds to L. Jonathan Cohen's critique of the author's position regarding the problem of naked statistical evidence. Cohen argues that the kind of probability at work in litigation does not conform to the axioms of mathematical probability. The author responds by suggesting that the familiar theory of probability needs no revision to account for the reluctance of a few courts to permit plaintiffs to prevail on the strength of background statistics alone. One need not adopt Dr. Cohen's esoteric mathematical structure to explain the burden of proof in civil cases. The article shows that whether or not one accepts the subjective interpretation of probability, nothing in Cohen's most recent paper establishes that forensic probabilities are incommensurable with the usual mathematical axioms. It also considers Cohen's claim that the subjective interpretation is a dangerously inappropriate paradigm for the courts.


This article was originally published at 1981 Ariz. St. L.J. 635.