The Black Swan: Second Edition: The Impact of the Highly Improbable: With a New Section: On Robustness and Fragility: 2 (Incerto)

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Suppose that the defendant’s story is weak and that the prosecution’s case is strong. This means that if no further evidence or arguments were adduced, the defendant would most likely lose the case and be found guilty beyond a reasonable doubt. So, if the defendant tells a story that is initially improbable, he risks losing the case if no new evidence confirms his story. The defendant may then have a burden to introduce new arguments or evidence that would make the court decide in his favor or he risks losing the case. 9

At the heart of the Supreme Court’s ruling is the idea that courts can reject a defendant’s explanation even in cases where the evidence does not refute this explanation. While rejecting the story by referring to a ‘smoking gun’ (i.e. refuting evidence) may be the ideal, other responses are possible too. The Supreme Court distinguishes three categories. First, some explanations can be rejected because they ‘did not become plausible’. I argued that whether an explanation needs to ‘become plausible’ during the criminal proceedings depends on its inherent plausibility at the time it is offered—its prior probability. If an explanation with a low prior probability does not become probable by means of the evidence, then the explanation fails to create a reasonable doubt. Second, some explanations are ‘incredible’. Whether an explanation offered by a defendant is probable partially depends on evidence about the credibility of the defendant. Finally, some explanations are so ‘highly improbable’ that the court does not have a duty to respond to them. I argued that what distinguishes these explanations from explanations that the court should respond to is that their improbability is obvious. When an explanation is obviously improbable, the court would not serve the goals of making its decision understandable by offering a response. A duty to respond would then only reduce the efficiency of the decision process. But they can never, ever take this stupid, staggering achievement away – and that’s the greatest feeling of all. Feels, for the first time, like we're genuinely moving into 'big game' territory here. I don't like it. #lcfc In fact, Leicester have won an incredible 14 matches by a single strike this season – seven more than Arsenal, and eight better than Tottenham and Manchester City. It will surely never happen again – not just the case of a team in such despair as last season reviving themselves to challenge, but bulldozing past not one or two but six footballing giants and beyond to live out the most sensational of storylines. Under the manager who never should have been appointed, they said, Leicester would be relegated. 5,000/1, the bookmakers said.In the following sections I will argue that prior probability only plays a key role in one of the three criteria that the Supreme Court mentioned, namely whether the explanation needs to ‘become plausible’. I will look at this criterion next. For the other two criteria we need different concepts, which I discuss in Sections 4 and 5 respectively. In Section 4 I argue that whether an explanation is ‘incredible’ depends on the credibility of the defendant. Finally, in Section 5 I argue that whether an explanation is ‘highly improbable’ depends on how obvious it is that the explanation is improbable. 4. Implausible explanations fail to become probable

These benefits of justification also occur when courts justify why they reject an alternative explanation. In such cases the justification gives both the court and the audience insight into why that explanation is improbable enough not to create a reasonable doubt. However, there are cases in which this kind of insight is not required. In particular, some stories that defendants tell are so obviously improbable that we would gain little by arguing against them. For example, take a (real) case in which the defendant pleaded that he was not accountable for the child porn on his computer because his mind was controlled by aliens. 16 It seems fair to say that no reasonable audience would consider the ‘alien’ explanation remotely probable. Furthermore, a defendant who offers such an explanation would either be delusional or insincere. So, it is improbable that arguments would sway him. Hence, the court would (most likely) gain little by justifying why it rejects this alternative explanation, with respect to the parties, legal community and general audience’s understanding of it. According to the Supreme Court, courts can reject an explanation if it ‘did not become plausible’ during the criminal proceedings. 8 The obvious question when interpreting this statement is why some explanations need to ‘become plausible’. The answer to this lies in the proof standard. As mentioned, in the Netherlands the proof standard states that the court should be convinced of the defendant’s guilt based on the admissible evidence. However, in practice, many legal scholars believe that the standard is actually similar to that of common law countries—that guilt has to be proven beyond a reasonable doubt ( Ter Haar & Meijer, 2018, 7.4; Nijboer et al., 2017, pp. 73–74). So, if the defendant hopes to be acquitted by telling an alternative story, that story needs to be good enough to create a reasonable doubt about his guilt (assuming that the prosecution’s case is in itself strong enough).

So, there is little gain to justifying why we reject obviously improbable explanations. Yet spelling out such arguments does take time and effort and impedes the efficiency of decision-making. The costs of explicit justification will then outweigh the benefits. What about justifications other benefit of reflecting on one’s reasoning? My proposal is that the more difficult it is to see why an explanation is improbable, the more room for error there is. However, when an explanation’s improbability is obvious, the reasoning required to understand its probability does not require much thought. Hence, there is less to be gained by carefully spelling out one’s reasoning to see whether this reasoning is sound. For instance, the court does not have to carefully reflect on whether they might be making an error when they assume that mind controlling aliens do not exist. They know that much of their success this campaign has been down to other sides failing miserably, and that next season offers them all a shot at redemption; Manchester City and Chelsea with incoming managers, Manchester United too if Jose Mourinho gets his way, Arsenal in what might be Arsene Wenger’s final season at the club, and even Liverpool where Jurgen Klopp now has a full summer of fine-tuning ahead. Mauricio Pochettino’s Tottenham, who ran them so close, are built to last. The club, too, have done themselves proud as a whole: Leicester’s owners have learned the hard way of running one – lest we forget that they allowed Sven-Goran Eriksson to burn many of their millions before Nigel Pearson arrived to clean up the Swede’s mess in 2011 – but this season they have been vindicated in their unwavering support.