84 Harv. L. Rev. 1810 (1970-1971)
A Further Critique of Mathematical Proof

handle is hein.journals/hlr84 and id is 1836 raw text is: A FURTHER CRITIQUE OF
Laurence H. Tribe *
N a recent article in this Review,' I undertook to assess the
usefulness, limitations, and possible dangers of employing
mathematical methods in the legal process, both in the conduct of
individual trials, and in the design of procedures for the trial
system as a whole. Michael Finkelstein and William Fairley,
addressing themselves exclusively to that part of my discussion
of the use of mathematical methods in the conduct of trials which
criticized their earlier work,' reply to several of my criticisms by
suggesting that their intentions were far more modest than the
methods of mathematical proof I examined.3 Indeed, if the tech-
nique they advocated were as carefully confined as they had
evidently intended, some of the problems I discussed would not
Yet their good intentions do not diminish the force of my
criticisms. I realized, in writing my article, that by investigating
irrational as well as rational uses of theoretically sound methods,
I would open myself to the charge that . . . I have confused
the avoidable costs of using a tool badly with the inherent costs
of using it well. ' As I went on to say, however, the costs of
abusing a technique must be reckoned among the costs of using
it at all to the extent that the latter creates risks of the former. I
To illustrate the ease with which the techniques proposed by
Finkelstein and Fairley could be misused, I turned to the com-
putations that they performed in their hypothetical case and
argued that those computations overlooked several critical vari-
ables.' In the hypothetical, a palm print similar to the defendant's
was found on the knife that was used to kill his girlfriend, with
whom he had quarreled violently the night before. Finkelstein
and Fairley proposed the use of Bayes' Theorem to inform the
jury of the precise incriminating significance of the finding that
similar prints appear in no more than one person in a thousand.
According to their proposal, each juror would first estimate the
* Assistant Professor of Law, Harvard University. A.B., Mathematics, Harvard,
1962; J.D., Harvard, 1966.
'Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84
HARV. L. REv. 1329 (1971) [hereinafter cited as Tribe].
2 Finkelstein & Fairley, A Bayesian Approach to Identification Evidence, 83
HARV. L. REV. 489 (1970) [hereinafter cited as Finkelstein & Fairley].
a See p. i8oi supra.
4Tribe 1331.
aId. at 1358-68.

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