The abstract for Amit’s talk at the Summer of V’s event.
Both inside and outside the courtroom we infer facts about individuals using generalizations about how similar people tend to behave in similar situations. However, some types of generalization seem intuitively objectionable. For example, using the high rate of crimes involving illegal firearms in a certain neighbourhood to support the conviction of an individual resident in a crime involving an illegal firearm seems highly objectionable. The objection is not only aimed at the sufficiency of such generalizations but also requires that they should be inadmissible in criminal proceedings.
This paper seeks to propose a new approach to the use of generalizations in order to identify which uses are objectionable and to explain why this is the case. This new approach seeks to connect the problem of generalization to the issue of free will. The crux of the argument is that using some types of generalization requires presupposing that the individual’s behaviour was determined by a certain causal factor which renders her behaviour unfree. Yet, in some contexts, it is necessary to presuppose the exact opposite: that the individual is free to determine her own behaviour. Using these generalizations in such contexts is objectionable because it involves inconsistent presuppositions about the individual’s behaviour. The paper focuses on one context in which it is clearly necessary to presuppose that the individual acted freely: fact-finding conducted in criminal proceedings for the purpose of determining the individual’s culpability. The paper thus provides a normative principle to guide the formation of specific rules of criminal evidence.