1981 Ariz. St. L.J. 627 (1981)
Subjective Probability and the Paradox of the Gatecrasher

handle is hein.journals/arzjl1981 and id is 645 raw text is: DIALOGUE
Subjective Probability and the
Paradox of the Gatecrasher
L. Jonathan Cohen*
In a recent book, I put forward several arguments why the concept of
probability that is implicit in the civil and criminal standards of forensic
proof should not be regarded as a Pascalian one, i.e., as conforming to the
axioms of the mathematical calculus of chance. One of these arguments
related to an imaginary rodeo where it is known that only 499 have paid
for entry, but 1000 people are on the seats. The management picks one
person at random off the seats and sues for non-payment. A Pascalian
analysis would indicate that, if those are the only facts before the court,'
the balance of probability lies in favor of the plaintiff. Yet our intuitions
of justice revolt against the idea that the plaintiff should be awarded
judgment on such grounds.
Different defenders of the Pascalian analysis have since sought to re-
solve this paradox in different ways. For example, Professor Glanville
Williams' postulates a legal rule requiring that evidence should be given
which singles out the defendant from other possible culprits. But such a
defense of the Pascalian analysis is ad hoc and an unsatisfactory justifica-
tion, in the absence of independent evidence supporting the existence of
* Fellow of The Queen's College, Oxford.
1. L. COHEN, THE PROBABLE AND THE PROVABLE 49-120 (1977).
2. Perhaps the defendant was prevented by death from giving evidence on his own behalf and the
relentless management pursued the case against his estate.
3. Williams, The Mathematics of Proof-I, 1979 CRIM. L. REV. 297. For the subsequent contro-
versy which arose between Professor Williams and myself see Cohen, The Logic of Proof. 1980 CRIM.
L. REV. 91; Williams, A Short Rejoinder, 1980 CRIM. L. REV. 103; Letter to Editor by L. Cohen,
reprinted in 1980 CRIM. L. REV. 257.

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