Rethinking the Probative Value of Evidence: Base Rates,Intuitive Profiling,and the “Postdiction” of Behavior

It is argued that American courts may be routinely admitting evidence with little to no probative value and great potential for prejudicial impact. This may be particularly likely with regard to what is essentially intuitive profiling or stereotype related evidence, defined herein as evidence suggesting that the defendant (or other party), or his (her) behavior, fits intuitive profiles (or stereotypes) of the type of person likely to commit the crime or behavior in question. In other words, intuitive profiling evidence is admitted to postdict behavior. Formal empirically based profiling evidence (testimony regarding the fit of a defendant's characteristics or behaviors to formal or scientific profiles of the typical perpetrator of the crime in question for use to prove guilt is inadmissible in American courts. However, we suggest that everyday use of informal intuitive profiles underlies both judicial determinations of probative value diagnosticity, and thus admissibility, of evidence, and jurors' use of the evidence in determining guilt. Demonstrations of the use of base rate information to evaluate the probative value of such intuitive profiling evidence both as evidence of guilt and as evidence of innocence are provided. Demonstrations of both how to evaluate the actual probative value of evidence (when all necessary values are known), and the theoretical limit of its probative value (in circumstances where some values are not known) are provided. It is argued that such evaluations may provide the basis for (1) support of motions to either admit or to exclude evidence, (2) testimony to the jury to help them weigh or interpret evidence, (3) exculpatory profiling (profiling evidence of innocence), (4) pretrial research to establish probative versus prejudicial value of evidence, and (5) sufficiency analyses to determine maximum likelihood of guilt, given multiple items of evidence. Among these, the first two are considered most important, as it can be demonstrated that many profiling characteristics currently admitted in trial (such as evidence of battery to support a murder charge) are not probative of guilt.     

The Myth of Personal Security: Criminal Gangs, Dispute Resolution, and Identity in Rio de Janeiro's Favelas

This article examines the politics of how drug traffickers resolve disputes and maintain order in the favelas of Rio de Janeiro. Much popular discourse and some scholarly studies argue that drug traffickers play a major role in controlling crime and minimizing conflicts there. This article shows that traffickers enforce community norms under a variable political calculus in which well-connected and respected residents are less likely to be punished for rule violations than are individuals who are marginal to the life of the community. This allows many favela residents who conform to local norms to feel a degree of control over their own safety, a "myth of personal security" in otherwise violent neighborhoods.     

The effectiveness of regulatory disclosure policies

Regulatory transparency—mandatory disclosure of information by private or public institutions with a regulatory intent—has become an important frontier of government innovation. This paper assesses the effectiveness of such transparency systems by examining the design and impact of financial disclosure, nutritional labeling, workplace hazard communication, and five other diverse systems in the United States. We argue that transparency policies are effective only when the information they produce becomes “embedded” in the everyday decision‐making routines of information users and information disclosers. This double‐sided embeddedness is the most important condition for transparency systems' effectiveness. Based on detailed case analyses, we evaluate the user and discloser embeddedness of the eight major transparency policies. We then draw on a comprehensive inventory of prior studies of regulatory effectiveness to assess whether predictions about effectiveness based on characteristics of embeddedness are consistent with those evaluations. © 2006 by the Association for Public Policy Analysis and Management     

Struggling through the web of impunity—The Jorge Carpio Nicolle case

Through the lens of Guatemala’s Jorge Carpio Nicolle case I analyze the mechanisms that preserve impunity in Latin American nations struggling to emerge from violent conflict and embrace, the rule of law. I reveal how the infective influence of parallel powers, the ineffectiveness of the judicial process, and obstructive legal doctrine destroy domestic efforts to prosecute those responsible for human rights violations. The Carpio case exposes the role of international courts in providing justice when domestic courts fail to do so, and it demonstrates the importance of human rights groups in pursuing this justice. The author would like to thank Roxanna Altholz, Adriana Beltran, and Soraya Long for their invaluable assitance in conducting this research.