Indiana Law Journal

Document Type


Publication Date

Winter 2014

Publication Citation

89 Indiana Law Journal 195 (2014)


A large body of studies suggests that people are reluctant to impose liability on the basis of circumstantial evidence alone, even when this evidence is more reliable than direct evidence. Current explanations for this pattern of behavior focus on factors such as the tendency of fact finders to assign low subjective probabilities to circumstantial evidence, the statistical nature of such evidence, and the fact that direct evidence can rule out with greater ease any competing factual theory regarding liability. This Article describes a set of four new experiments demonstrating that even when these factors are controlled for, the disinclination to impose liability based on indirect evidence remains. While these findings do not necessarily refute the existing theories, they indicate that these theories are incomplete and point to the existence of a deep-seated bias against basing liability on inferences—an antiinference bias. The Article discusses the potential policy implications of the new findings for procedural and substantive legal norms.