According to legal probabilism, a legal standard of proof (such as “preponderance of evidence” or “beyond a reasonable doubt”) is met just in case the probability of guilt or liability given the evidence is above some threshold. One common objection to legal probabilism is that it wrongly treats “non-individualized” evidence such as character evidence or statistical evidence as on a par with “individualized” evidence. I consider what I take to be the most prima facie compelling version of this objection, namely that the use of predictive evidence—evidence that is not causally downstream from the hypothesis of guilt—in criminal convictions is in tension with the goal of providing disincentives to criminal behaviour. Contra this objection, I show that incorporating predictive evidence strengthens the deterrence effect of the law, by tailoring its incentives so that the people most disincentivized from committing a particular crime are those whose profiles mark them out as most antecedently likely to commit it. Thus, consideration of the incentive function of law in fact provides a strong reason in support of the equal treatment of predictive evidence in legal cases.

Nevin Climenhaga is a Senior Lecturer in Philosophy in the Institute for Religion and Critical Inquiry at Australian Catholic University. Nevin's research engages a wide variety of topics across epistemology, philosophy of science, philosophy of religion, and ethics. Nevin has published articles on the nature of knowledge, the nature of probability, the use of probability in historical reasoning, Bayesian measures of confirmation, inference to the best explanation, causal inference, the use of intuitions in philosophy, non-textual narrative in art, infinite value, divine providence and human free will, and the problem of evil.