Evidence in Absence: Evaluating the Role of Missing Forensic Traces in Criminal Trials

• In Event: Understanding Criminal Proceedings

Abstract

The absence of forensic evidence in legal proceedings is frequently disregarded, prompting important questions: under what circumstances can the absence of evidence be interpreted as evidence of absence, and what are the implications of overlooking such absences for the criminal justice system? While advances in forensic technology and cultural influences, such as the CSI effect, have heightened expectations for forensic evidence and may lead to overvaluing its absence, cognitive biases such as the feature-positive effect, and What You See Is All There Is (WYSIATI), contribute to undervaluing absent evidence, distorting legal decision-making. This article examines the treatment of absent forensic evidence in criminal trials through theoretical and empirical analyses. Using Bayesian reasoning, it explores how the absence of evidence can inform the evaluation of competing hypotheses about guilt or innocence. The case of State of Israel v. Ashraf Tchimer illustrates the role of fingerprint absence under the prosecution’s hypothesis, highlighting its evidentiary significance. An empirical study further estimates the likelihood of leaving fingerprints under realistic conditions, providing a practical framework for assessing the absence of such evidence. The study concludes that accounting for both the presence and absence of forensic evidence improves judicial decision-making by reducing wrongful convictions and releases.

Authors

• Naomi Kaplan-Damary, The Hebrew University of Jerusalem

• Hagit Lernau, University of Haifa

• Binyamin Oz, University of Auckland, New Zealand / The Hebrew University of Jerusalem, Israel