PDF | Reasonable doubt (RD) is the standard of proof used in criminal trials. It is, however, a fuzzy concept in most jurors' minds, and several. The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial Beyond Reasonable Doubt and Probable Cause: Historical Perspectives on the. Beyond reasonable doubt (BRD) is the standard of proof used to convict defendants charged with crimes in the English criminal justice system . PDF Document.
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Beyond Reasonable Doubt. Standard of Proof and Evaluation of Evidence in. Criminal Cases. Christian Diesen. The public debate concerning evaluation of. T H E U NI V E R SI T Y OF T E X A S S C H OOL OF L A W Public Law and Legal Theory Research Paper Series Number Is Reasonable Doubt Reasonable. Reasonable Doubt and the Presumption of Innocence: The Case of the Bayesian Juror* Piers Rawling ABSTRACT. There is a substantial literature on the.
Description this book Please continue to the next pageHave You Considered: The burden of proof is upon the prosecutor. Witt, F. Are some sorts of physical evidence more damning than others? Under this instruction, another may demand his reason for so thinking. Another common w ay for judges to describe what it is to believe in guilt beyond a reasonable doubt is to suggest that jurors have such a belief w hen th ey hav e an ab iding co nviction that th e defen dant is guilty. The Case of the Bayesian Juror Topoi,
Full Name Comment goes here. Are you sure you want to Yes No. Be the first to like this. No Downloads. Views Total views. Actions Shares. Embeds 0 No embeds. No notes for slide. Book details Author: Julie VonVett Pages: Search for the Truth Ministry Language: English ISBN Description this book Please continue to the next pageHave You Considered: And exist.
Note evidence for the assignment of prior probabilities, yet also Lindley The one, simple idea: Yet what we want is the probability of in the [0, 1] interval. According to the Bayesian, then, you will have Furthermore, Bayesians are often not unduly worried assigned an initial value to T, prior to witnessing any by the possibility of differences in priors, because of tosses: The probability you assign to T after wit- gent prior opinions but reasonably open minds will be nessing the ten tosses is your posterior probability of forced into arbitrarily close agreement about future T.
What is the relation of prior to posterior? Although, as Edwards et al. And in this circumstance, acknowledge , p. Let E be a piece of evidence already known but anomalous by the lights of old theory. The is initially Note that probabilities of one are never shaken by the For actual historical cases, unlike the coin-flipping case, there is no single counterfactual degree of belief in the evidence ready to evidence: Glymour , p.
This upshot can be extremely close to one, and do not differ by orders of avoided if we accept a counterfactual solution here — magnitude.
We is another difficulty lurking here. As to this latter part, the measure of is the ratio. This can be broken into two dicta: In this section I address the legal interpreta- indictment, and the arraignment, and to reach their conclusion tion of these dicta.
This caution is indeed particularly needed presumptio juris, demonstrates that it is evidence in favor of the in criminal cases. This implication presumption of innocence is closely related to the arises because RDC is taken in a broad sense so as to requirement that conviction requires proof beyond a include the requirement that the burden of proof lies reasonable doubt.
According to the majority of the with the prosecution. Under burden of proof beyond a reasonable doubt were logically separate this construal the Bayesian agrees with former legal and distinct. The Court refers us to, amongst others, Wigmore , who tells us that: Straightforward calculation shows that guilt. How low? Lindley , p. Thus, even assuming that the prosecution is so persuasive as to push the [t]he presumption of innocence is itself an approximation: I shall address the arbitrariness of this figure cumstance of a Bayesian juror with that of a Bayesian below; p G cannot, of course, be zero: The detective faces the issue of whether or p.
How is the prior proba- if and only if her posterior probabilistic estimate of the bility that the suspect is guilty fixed for the detective? In United States v. These people are p.
The upshot in United States v. This is still, I think, too low it is definitely too and p GQ are both close to zero. Another is to reject randomly selected individual. Hence, in order to charge a suspect: This ratio is large, but achievable — particularly with Much of Tribe a is directed against Finkelstein DNA evidence. Finkelstein and Fairley propose that proposition. However, as Tribe a, pp. Lindley , Evett Tribe objects to this on This is insufficient, given our suppositions, to charge various grounds, some of which I have already men- the suspect; but presumably S does not constitute all the tioned — such as the fact that Finkelstein and Fairley evidence.
Tribe also raises, however, more general objections to the application of probability in the legal setting. For IV example, he objects to the quantification of PI on the following grounds: The Bayesian juror, then, will hardly ever convict; but It may be that most jurors would suspect. And that reach the threshold to charge. The at least some jurors sitting in judgment in criminal cases. If judges cannot agree amongst themselves about this crucial notion, and it is clear that they cannot, it is a dangerous act of self-deception or worse to suggest that lay jurors, completely unschooled in the law, will have some common, shared understanding of this doctrine.
We a lso hav e imp ressive, direct evidence that jurors are deeply confused about what the reasonable doubt standard demands of them. In a study of some Michigan jurors, Kramer and Koenig discovered that a quarter of jurors believed that you have a reasonable doubt if you can see any possibility, no matter how slight, that th e defen dant is innoc ent. Appe llate cou rts hav e rejecte d both these c onstru als of BA RD co untles s time s. That is because it is not true that any doubt is a reasonab le doubt, nor is it true that jurors must be fully certain of guilt.
Another study of jurors in Florida discovered that one- in four of them believed that when the weight of evidence was equally balanced betw een p rosecu tion an d defen se, the d efend ant sh ould b e foun d guilty.
Only h alf of the ju rors rea lized th at the d efend ant w as not obliged to offer p roof of h is innocence. If judges can tell jurors no more th an that a guilty verdict requires belief in guilt beyond a reasonable do ubt, we hav e reason to expect that alm ost every jury will contain juro rs who are brin ging inapprop riate construals of that standard to bear. In such circumstances, failure to explain BARD to jurors is unconscionable. For such reasons, it is difficult to resist the conclusion that what really drives the growing reluctance to define BARD is not so much the purported truth that its meaning is clear to all as an abiding worry on the part of the judiciary that th e persist ence o f conflictin g definitio ns of BA RD w ill bring to public notice the fact that no univoca l sense can be attached to the p hrase beyond a reason able doubt.
Rather than concede tha t fact, and do som ething to rem edy it, many co urts especially at the federal level-- seem disposed to paper over the real differences that exist by pretending that the conception requires no further explication or clarification.
There is doub tless another engin e driving the grow ing disinclination of courts to instruct jurors in the subtleties of BARD. I refer to the fact that, if a judge says something to the jury about BARD with which a higher court disagrees, and if the accused is subsequently convicted and the case is appealed, then the guilty verdict may be overturned. Better, apparently, to say nothing --leaving the problem unresolved, the guilty verdict in place, and the jury perplexed-- than to say something that might trigger a successful appeal.
A vacuous BARD instruction is not likely to be reversed, wh ile one with con tent may w ell be.
By the way, m y favorite BARD m isinstruction which w as properly deem ed unaccep table by a higher cou rt comes from a New York state court. Here is how the judge instructed the jury about what a reasonable doub t is: It is not a doubt based upon sympathy or a whim or prejudice or bias or a caprice, or a sentimentality, or upon a reluctance of a weak-kneed, timid , jellyfish of a juror w ho is see king to avoid th e perfo rma nce of a disagreeable duty, namely, to convict another human being of the commission of a serious crime.
The wheels of justice keep grinding, and juries keep produ cing verdicts but the de liberate obscurity and obfusca tion surround ing the standard for conviction does little to inspire confidence in the fairness of the system.
Taking a Step Back from th e Abyss M ost critics familiar with the many twists and turns in the recent handling of BARD by the courts seek the remedy for the problem in a newly crafted set of jury instructions, instructions tha t will, in plain language, explain to juro rs what the idea of beyond a reasonable doubt means. I have to part ways with my fellow c ritics at this point b ecaus e I believe that th e prop er mo ral to dra w from this sordid story is that no can onical n otion o f reason able do ubt is on the tab le.
The sad fact is that we have been expecting one doctrine to do multiple tasks for us. To begin with, we have wanted a way to stress to jurors that the burden of proof in criminal proceedings falls on the state, not the defendant.
Then we have wanted a way to w arn jurors that they m ust not let exaggerated , hyperbolic doub ts stand in the w ay of co nviction. We h ave w anted to ma ke clear that gu ilty verdic ts in criminal trials must depend on much higher levels of proof than those associated with civil actions or practical life. Finally, we have wanted to insure insofar as possible-- uniformity of standards, making sure that every criminal verdict hews to the same bar for conviction.
On most of these scores, BARD is failing. It is time to try to diagnose the causes of that failure. It will probably not have escaped notice that almost all the familiar glosses on BARD as moral certainty, as firm or abiding conviction, as belief on which you w ould base important actions, etc.
He o r she m ust be firmly convinced, almost certain, fully persuaded, with a satisfied conscience about guilt before a vote for conviction is indicated.
It is no accident that almost all the proposed definitions focus on the subjective state of the juror. On several occasions, the Supreme Court has underscored its belief that the right way to characterize the bar for co nviction is in term s of the subjective state of min d that jur ors sho uld be in if they are to condemn or acquit the accused.
Supp ose that we tried to tea ch young scientists how to judg e when a theory was a ccepta ble by te lling the m w hat th eir me ntal sta te shou ld be be fore the y shou ld accep t a theo ry? Su ch ad vice w ould b e seen as mis sing th e poin t, for wh at ma tters is not their men tal state per se, but how they cam e to that state.
You become a scientist, not by learning the state of mind you should be in before accepting a theory, but by learning how to evaluate evidence and its bearing on theory. Likewise, doctors don t decide whether they have the right diagnosis of a puzzling disease by scrutinizing their own mental states but rather by reviewing the clues and symptoms that they have to hand and seeing whether those factors strongly support the diagnosis, according to accepted rules of theory evaluation.
Pharmacologists don t decide whether a proposed new drug is really safe and effective by reaching a certain pre- defined mental attitude. On the contrary, they do so by hewing to accepted principles for designing and assessing clinical trials of new therapies.
Imagine saying to a m athem atician th at he k now s he ha s an im portan t result w hen h e believe s it without the slightest hesitation!
What establishes a mathematical theorem as a theore m is th e robu stness of its proo f, not the con fidence of its disco verer. Even in the law, at least the civil law, we see the same pattern. When John sues Sally for breach of contract, the members of the jury are not told that they can find for John only if they are in a p articular mental state.
Instead , they are told to look to the eviden ce and see w hether the evide nce mak es John s claims mo re powerful, more probable, or better supported, than Sally s.
When civil law borders on to criminal law for instance, if Bill sues Bob on the grounds that Bob committed arson on Bill s warehouse , a new standard comes into play. It insists that a finding in favor of the plaintiff requires clear and convincing evidence that Bob did what Bill alleges.
This bar , like the p repon deran ce of evid ence ru le, chara cterizes w hat is necessary for a jury s finding in terms of the kind of evidence brought into play. These two legal standa rds of proof stand in sh arp contrast to BAR D, which refers to evidence, if at all, only obliquely and which focuses instead on the juror s state of mind. Putting the point a bit more philosophically, we can note that, in most of the areas of life where inquiry after the truth is at stake, the usual kind of advice offered to insure that such inquiry is rational involves specifying the kinds of evidence, or tests, or proofs necessary to justify you in having a well-founded belief.
Such advice explains for instance when an hypothesis is well- or ill-supported by the evidence or when it is proper to infer a certain conclusion from given premises. Contrast this w ith Europ ean, Ta lmu dic, or ch urch la w, w hich, for hun dreds of years , specified precise ly how mu ch pro of or evid ence w as nee ded to convic t. Perhaps one reason why characterizations of BARD seem so vacuous or unsatisfactory is that they studiously avoid saying to juries anything about the structure of proof or about the case the prosecution must present in order for it to be a powerful indicator of the guilt of the accused.
Instead, those characterizations focus single-minde dly on the m ental state of the juror. It is true, every jury is enjoined to attend carefully to the evidence and to weigh it but even the most general features of that process are regarded as a black box, something that happens behind the closed doors of the jury room, as if that territory ought not be invaded by a judge telling the jury what a compelling case looks like.
Instead, the judge in effect simply says Open your m ind to a ll the evid ence a nd th en see if you are fully per suad ed or firm ly convinced, etc.
What this formula ignores, as we have noted before, is th at persu asion is s upp osed to be a pro cess of reasoning throu gh the evidence. Judges don t even hint to jurors as to how they should do that.
Worse, it is not even clear th at jurists b elieve th at jurors shou ld arrive at their v erdict b y reaso ning th eir way to it. If that appraisal seems harsh, remember that the highest court has repeatedly insisted that a doubt can legitimately block conviction even if jurors can give no reasons for it.
David Hume famou sly argued that belief may simply be an animal instinct, beyond the control of one s critical faculties of reason and rational evalua tion. By refusin g to say anyth ing to ju rors ab out h ow th ey to rea ch the ir verdict and by exempting them from the obligation that one has in every other branch of inquiry to explain to one s peers the basis for one s conclusions, the Supr eme Cour t seem s tacitly to concu r.
This would be forgivable if we could suppose that all, or even most, competent jurors already knew how to en gage in the am pliative reasoning as Peirce called it that leads you from the disparate, purported facts of the case presented as evidence to a conclusion about the guilt of the accused.
If everyone were implanted with a kind of natural disposition to reason correctly about complex matters of fact, such information would be sup erfluous. But there is nothing innate about making correct inferences from confused bodies of proto-evidence.
It took scientists more or less two millen nia befo re they figured out ho w to te st their th eories co rrectly. Th e logic governing clinical trials of drugs emerged only in the twentieth century, after eons of the use of medications on only the flimsiest empirical basis. In the law itself, we have learned much about what distinguishes a powerful case for the prosecution from a weak one. I su bmit th at the b ar for con viction w ould b e better defined in term s of the features of the case needed to convict rather than in terms of the jurors inner states of mind, especia lly since the latter if not disciplined by certain guidelines about the appropriate logical conn ection s betw een ev idence and v erdict--, a re apt to be ill-foun ded, p rejudic ial, and irra tional, h owe ver po werfu lly they m ay lead to a firm belief in gu ilt.
There is a different way of approaching the same point. Whatever else BARD might mean, it insists that juries should not convict the accused if they have a rational doubt ab out his guilt. Subjective criteria of the sort that app ellate courts favor get at only half of this demand. Basically, they tell the juror that he must have no doubts. But, precisely because the criteria they offer are purely subjective, they cannot address the question about the rationality of the jurors confidence, or lack of confidence, in the guilt of the accused.
What distinguishes a rational doubt from an irrational one is that the former reacts to a weakness in the case offered by the prose cution , while t he latte r does n ot. Let us remember that in a trial by jury, the jurors are supposed to be the finders of fact.
They are the ones who have to decide whether a crime was com mitted and w heth er the d efend ant co mm itted it. Th e prose cution will gen erally lay out a theory about the crime, that is, a narrative of supposed events in which the defendant participated. The prosecution, if it is savvy, will adduce evidence in the form of testimony or documen ts or physical evidence for every key part of its theory. The aim of presenting the evidence is to corroborate the prosecution s theory of the crime.
For its part, the defense may but is not obliged to present an alternative theory of the events associated with the crime. At a minimum, the defense will seek to iden tify wea k poin ts or im plaus ibilities in th e prose cution s narra tive.
This critique may involve challenging the evidence or testimony or it may focus on the large infe rential le aps req uired to mov e from the evid ence p resent ed to th e thesis that the defendant is guilty.
The task of the jury is to evaluate the prosecution s theory or story, deciding wheth er it points un ambig uously to the conc lusion tha t the defen dant is gu ilty. In making that decision, jurors must decide whether the evidence presented is powerful enough to justify them in concluding that the defendant committed the crime.
The principal question is no t whether th e jurors, individually and co llectively, are convinced by the prosecution. The issue is whether the evidence they have seen and heard should be convincing in terms of the level of support it offers to the prosecution s hypothesis that the defendant is guilty.
The key po int is that the question, How stron gly does the eviden ce support the theory of guilt? The issue at trial should not be w hether, as a conting ent matter of fact, the tw elve jurors are all fully convin ced of th e guilt of th e accu sed. Ins tead, it sh ould b e: Does this eviden ce stron gly sup port th e theo ry that th e defen dant is guilty?
Putting it differen tly: Wou ld a ratio nal an d sobe r-min ded p erson , confro nted w ith this evidence, find that it m ade a com pelling case for guilt? For jurors to be able to answ er such quest ions, it is of little or no a vail to tell th em th at they mu st be firm ly convinced o r have an abidin g conviction of guilt.
Rather, they m ust be able to say to themselves and to one another precisely why the evidence to hand does or does not point unambiguously to the guilt of the accused. Doing so requires them to make a whole series of decisions about whether the evidence supports each key claim of the prose cution s theor y to the requis ite degre e.
What the jurors may w ell be unclear about is how to tell whether the evidence provides powerful or only mild support for the prosecution. For instance, is one credible witness to a crime sufficient to convict? Is circumstantial evidence potentially as powerful as eyewitness testimony?
Are some sorts of physical evidence more damning than others? And so on. Given the practical demands of the criminal justice system, the judg e cannot give a m ini-course in inductive inferen ce to every empaneled jury. Nevertheless, I think that some things that could be said briefly that would p rovide mo dels or paradigm s of powerful form s of argumen t. Armed w ith these paradigm atic examples, jurors cou ld go to the jury room ready to struggle w ith the question whether the case in hand has the sorts of features that make up pow erful pro of.
Consider, for instance, what the presiding judge said to the jury in the famous case of the assassination of President Garfield: If, for example, facts not improbable are attested by numerous witnesses who are cred ible, consistent, and unc ontradicted, and who h ad every opportunity of knowing the truth, a reasonable or moral certainty would be inspired by their testimony.
In such case, a doubt would be unreasonable, or imag inary, o r specu lative, w hich th e book s say it ou ght no t to be. A nd it is not a doub t whether th e party may not possibly be innocent in the face of strong proof of his guilt, but a sincere doubt whether he has been proved guilty, that is called reasonable.
A more compelling example of the judge instructing the jury about the logic of the decision they face comes from the w ay in which, until very recent times, a case resting on circu msta ntial evid ence w as exp lained to jurors.
From early on in Am erican c rimin al trials, it w as com mon for judg es to de fine w hen it w as reaso nable to accept circum stantial evidence as establishing guilt beyond a reaso nable doub t.
Indeed, for almost a century, it was a common law rule in cases involving circumstantial evidence for the judge to give a brief explanation as to when such evidence could be taken as probative. Typically, this instruction would inform the jurors that a case based on circumstantial evidence was pow erful enough to convict only if it ruled out every reasonable hypothesis except that of the guilt of the defendant.
This instruction goes directly to the question of the nature of the evidence and avoids dalliance with characterizing how the jurors should feel about the matter. It tells jurors that they sh ould not con vict unless the eviden ce before them h as refuted every version of the events in the case that would be exculpatory for the defendant. It says to the jurors: Figure out whether the facts established by the prosecution preclude any hypothesis you can think of that would leave the defen dant in nocen t.
If they d o, you shou ld con vict. Oth erwise , you m ust acq uit. Unfortunately in my view , this type of instruction vanished when the Supreme Court decided, and rightly so on other grounds, that circumstantial evidence was on an evidential par with eyewitness testimony and thus required no special instruction in its own right.
In Holland v. On appeal, the Supreme Court responded: The petitioners assail the refusa l of the trial judge to instruc t that w here th e Gov ernm ent's evid ence is circumstan tial it must be such as to exclude every reason able hy poth esis oth er than that of g uilt.
The re is some su pport for this type of instruction in the lower cou rt decision s. But the b etter rule is that w here the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circum stantial evidence is confusing a nd incorrect. Instead, the court has opted for the idea that the mere mention of BARD, construed as describing the subjective state of the jurors mind, is adequate guidance for jurors.
Although such certainty surely alludes to a subjective state of mind, those thinkers w ho were m ost influential in articulating the idea ne ver left it at that. Philosophers from John W ilkins and Robert Bo yle in the seventeen th century through William Whewell in the nineteenth century always identified the kinds of circum stance s in wh ich a m orally ce rtain jud gme nt wo uld be appro priate.
Specifically, they held that you properly reach a morally certain conclusion when and only when you have several independent lines of evidence, no one of which establish es the c onclu sion w ith certa inty bu t each o f which points with lik elihoo d in the same direction. It is important to stress that both the independence and the multiplicity of lines of evidence were required before you were entitled to ho ld that a belief was morally certain.
A single piece of evidence for instance, one eyewitness alleging that an event occurred or one incriminating piece of physical evidence of guilt was never sufficient for moral certainty. Rather, what was required were two, and preferably more, strong indicators of guilt. Their independen ce was likewise important. Two witnesses likely to be in cahoots with one another would not count as two.
Neither w ould two d istinct bloodstains on the accused s knife count for m ore than one sin ce we supp ose tha t they a re not in depe nden t. The idea behind the independence requirement is that you triangulate in on a morally certain conclusion by discovering several distinct lines of inquiry or analysis that point to the same conclusion.
Arguably, it was a rudimentary version of this intuition that provided the rationale for the famous two-witnesses-or-a- confession rule in Roman and Biblical law. One witness to a crime would not be sufficient to convict, for such testimo ny wou ld simply be gains aid by the defend ant s denia l of guilt.
Bu t if several, n on-co lluding witne sses atte sted to the sam e thing , it becam e increa singly d ifficult to do ubt it. Sim ilarly, wh ere circu msta ntial evid ence is concerned, theorists of moral certainty stressed that such certainty could emerge only when a series of independent lines of evidence converged on the same conclu sion. Th is kind o f proof i s by no mea ns un ique to the law. As both Boyle and Wh ewell argued persuasively, powerful theories in the natural sciences likewise exhibit this feature.
The persuasiveness of the so-called Newtonian synthesis is often thought to hinge on Newton s ability to marshal evidence in support of his theory from such different quarters. The sa lient po int is tha t mor al certain ty or pro of beyo nd a re asona ble dou bt, if we id entify th e one w ith the o ther, aris es only in certain special s ituation s. Instead of instructing jurors as to what mental state they should have in order to vote to convict, courts would do better to inform jurors in a ge neral way ab out the epistem ic or logical features that a case must exhibit before that it can properly be regarded as putting the accused s guilt beyond reaso nable doub t.
I do not mean to suggest I hasten to add-- that the evaluation of a complex case can be reduced to a mechanical algorithm or simplistic rule.
Most of them patently cannot. Inevitably, jurors must bring their own judgment to bear. But as things currently stand, they are provided with no examples of inferences that achieve BARD or moral certainty examples which they could use as a baseline for determining whether the case in hand was powerful enough to warrant conviction.
They are simply charged with determining guilt beyond a reasonable doubt, when they generally have only the foggiest notion of what that requires. I have belabored the question of the standard for con viction at such length because the am biguities surroundin g it may be the sing le largest impedim ent to insuring that the criminal justice system acts so as to minimize error and maximize truth.
Beyond reasonable doubt has become a mantra rather than the well-defined standard of proof that it once was. Divested of its entire substantive content by a series of well meaning but ill-advised judicial findings, it now serves at best as an admonition to jurors not to take their tasks lightly. What it does not do in its present form is to prov ide the slightes t clue to jurors a s to wh at a con vincing proof o f guilt shou ld look like. A question w e must face n ow is wh ether, supposin g jurors could be m ade to und erstan d just h ow d ema nding the BA RD sta ndard is mea nt to be , it shou ld be the appropriate standard to use across the board in criminal cases.
At the end of the 18th century, when BARD was introduced in Britain and the United States, the justice system was m uch less nuanced than it now is. All felonies implied the same punishment death , and all were judged to the same standard. Misdemeanors were another matter altogether. As a part of the penal reforms of the 19th century, legislatures and courts accepted the notion that the punishment should fit the crime.
The range of crimes which were potentially capital shrunk drastically, and it continues to do so in our time. If the US has not followed England s example of eliminating the death penalty altogether, it is not very far from it in practice if not yet in theory.
Of the roughly 10, persons convicted of murder every year in the US, about receive the death sentence and, after the process of appeals and pardons, fewer than one quarter of those will actually be executed. When BARD was introd uced , the prin cipal arg um ent for m aking it s uch a tough stand ard to s atisfy depended on a. Mistak enly co nvictin g som eone of a felony, in those times, extracted a very high price.
It was natural, under such circumstances, to set the bar for conviction extremely high for all crimes. It is appropriate to ask whether changed circumstances ought not alter the calculation we do when comparing the relative costs of false acquittals and false convictions.
Given that statistically speaking the death penalty has vanished, and given th at guilty verdicts are rou tinely ve tted by highe r courts , does it re main plausible that it is better that 10 or 20 or 9 9, dependin g upon w hich 18th-cen tury authority you cite guilty persons go free than that one innocent person is convicted?
The question takes on particular force when we are dealing with felonies that have quite m ild pun ishm ents as sociate d with them. Clearly, the costs of false convictions for most crimes are now a great deal less than they once were.
Since there is elaborate appellate machinery for catching and canceling the sometimes-deadly effects of many such convictions, an incorrect conviction is no longe r the guarantee o f a very nasty fate that it once w as.
We co ntinu e to m outh slogan s abou t the eg regiou sly high costs of false convictions slogans that once made a lot of sense even though the introduction of appellate mac hinery and o f a graded scale of pun ishmen ts depriv es thos e slogan s of mu ch of th eir conc eptua l and em otive rat ionale. A convic tion in a court o f law is n o long er the irre vocab le decisio n by so ciety tha t it once was. Moreover, as we just saw, a felony conviction no longer implies the gallows, except in very rare cases.
This change to the once irrevocable character of convictions has, I suspect, yet to be factored into the question of how we think about the relative costs of false convictions and false acquittals. Does it mak e sense to have a one-size-fits-all standard of proof w hen the costs associated with an erroneous finding of guilt are as low as they now are in many cases? It is comm on know ledge that a great m any crimes n ow carry pu nishme nts that are little more than fines. Others, including felonies, can involve nothing m ore than probation or relatively brief times of incarceration.
Are the costs of mistaken guilty verdicts in such circum stances so steep tha t we still want say ten or a hundred guilty defendants to be acquitted for every innocent defendant convicted? One s hunches about the relative costs of mistakes, perhaps crystal clear in the case of capital crimes, become clouded when it we turn to much m ilder punishments.
Such differences invite the suggestion that the standard for conviction, instead of being the same for every crime from homicide to shoplifting, should as the punishment does vary with the severity of the crime. After all, many crimes now carry punishments less harsh than one s potential liability in civil cases, where the standard of proof is simply more probable than not. Civ il procee dings c an --on the stre ngth o f a proo f that is m erely more probable than not-- deny someone their parental rights, commit them indefinitely to a mental institution, and deprive them of their citizenship.
Are these fates less severe than being found guilty of felony dru nk driving and facing a year s probation? If they are not, what is the sense in holding to such different standards of proof in the two cases? It is also worth asking whether it is an efficient use of money and other resources to require the state to mount the same sort of proof to send an embezzler to jail for six months as it invests to convict a serial killer. Part of the problem, of course, is that it is not easy to see how to construct a graded scale of standards of conviction that might be mapped on to a scale of criminal severity.
Essentially, the US court system recognizes only three degrees of proof: BARD, proof by a prepond erance of the eviden ce, and proof by clear an d convincing ev idence. If courts were d isposed to think of stan dards of p roof as prob abilities which they are n ot , you could imagine at least in principle having a graded series of probabilities associa ted w ith incre asingly serious pun ishm ents, pe rhap s reserv ing BA RD for only the most serious.
Since th at prop osal w ould p robab ly go no whe re --given the cou rts proba bly correct aversion to thinking of standards of proo f as degrees of probability--a m ore realistic option would be to use the intermediate standard of proof by clear and convincing evidence for lesser crimes, by which I mean not only misdemeanors but also the less serious felonies. This standard, like BARD, is defendant-friendly in that it require s the sta te to esta blish m uch m ore tha n the b are pro bability o f guilt an d it has the added virtue of presuma bly being intelligible to juries and familiar to judges, since civ il trials alrea dy m ake freq uent u se of it.
It is, m oreov er, fully co mp atible with the much-prized principle of the presumption of innocence. Such a proposal would require the Supreme Court to reverse its famous opinion in In re Wing ate that all criminal defendants are entitled to be tried according to the BARD standard, but as we have already seen there are powerful, independent reasons for believing that the framers of the Constitution never contemplated laying down a specific standard for criminal conviction, let alone did they contemplate using BARD, not the least of which is that BARD was not even entrenched in the common law when the Constitution was adopted.
An ideal case in point of the anomalies produced by an omnibus standard of proof is offered by In re Wing ate itself. In this case, a juvenile of twelve was facing a hearing to determine whether, having committed larceny, he should be sent to reformatory for 18 months. According to then prevailing New York state law, decisions in juvenile hearings could be settled using the preponderance of the evidence standard.
The costs associated with erroneous incarceration under these circumstances were relatively modest. Unlike a normal conviction for theft, the juvenile court s findin g wou ld not fo rm p art of the defen dant s crimin al record.
His incarceration would not involve a loss of any citizenship rights or privileges. All this notwithstand ing, the Suprem e Court declared the New York provision for settling such matters by a preponderance of the evidence unconstitutional. In essence, the Court denied the relevancy of a calculation of the co sts of erro r to a de cision a bout th e stand ard of p roof. This is more than mildly curious since, for more than a century, the Supreme Court itself had justified a standard as tough as BARD precisely on the grounds that the costs of a mistaken conviction are so enormous that the bar for conviction must be set extremely h igh.
Here, confronted b y a case in wh ich the costs were no mo re severe than those imposed in m any civil trials, the Court went out of its way to insist nonetheless on BARD s application across the entire spectrum of punishments, saying that du e proce ss requ ired as m uch. W ith resp ect, I con fess to find ing this ruling unintelligible. If the motive for a tough version of BARD is the importance of avoiding m istakes that can exact ve ry high costs, and n o one den ies that, then there can be no rationale for the insistence on BARD in the adjudication of cases in which the costs of error are comparatively modest.
The same twelve-year-old whom the Court protects from a reformatory with BARD can be sent to a mental institution or denied parental visitations or taken from his parents and put into foster care or an orphanage on the strength of the prepo nderance of the evidence. The attractiveness of the clear and convincing evidence criterion is that, being intermediate between BARD an d a prepon derance of the ev idence, it seems tailor-m ade for cases of this sort.
Against my suggestion, it can be argued, not that it is wrongheaded to link severity of punishment with standard of proof, but rather that it is superfluous. We have already seen th at BAR D is gen erally left q uite vag ue by t he cou rts, usu ally deliberately so.
That means, of course, that jurors have plenty of room for discretion in deciding just how deman ding BARD is in any particular case. Several scholars, most especially Erik Lillquist, have argued that jurors will adjust the standard of proof to the circumstances of the case and of the defendant.
Making a virtue out of the ne cessities im posed by the amb iguities o f BARD , Lillquist h olds th at: The u se of a flexible standard allows the decision maker [that is, the jury] to apply the level of certain ty that is m ost app ropriat e to a pa rticular c ase.
On the contrary, as Lillquist concede s, leaving capital cases aside, there is also reason to believe that the severity of the pu nishme nt has no actu al effect on jurors decision to convic t or acq uit. If we have the standard of proof that we do because we want the height of the bar to reflect the seriousness of the errors w e might be m aking, then the ca se for moving to a standard of clear a nd co nvinc ing evid ence fo r lessor felo nies see ms cle ar-cut.
The Un certain Reach of the B enefit of the Doubt I f it is plausib le to sug gest tha t BARD is not an appro priate st anda rd for jud ging all crime s, it is equa lly imp ortant to stress that BA RD, or s ome thing lik e it, is appropriate for serious crimes. The result has been that many crucial decisions about a defendant s fate hinge on much weaker standards of proof. These weaker standards are especially clear in the case of so-called affirmative or excuse defenses.
When som eone is charged with a crime, his defense may consist in offering an alibi, plea ding d iminis hed re spon sibility, or in sisting th at he w as actin g in self defense. Any one of these excuses, if true, should lead to an acquittal. The question at issue is who carries the burden of proof with respect to these defenses.
Speaking in gen eral term s, Am erican c rimin al law p ermit s the jud ge to ins truct th e jury --in cases where such defenses arise-- that acquittal requires that the defendant must show by a pr epon deran ce of the eviden ce the tru th of his excus e. This p olicy is, in my view, a flagrant violation of both the spirit and the letter of BARD. If, for instance, defendant is charged with the robbe ry of a jewelry store at 1 p.
The demand that the credibility of the alibi mu st reach the civil sta ndard of proo f before th e jury ca n cred it it is plainly incon sistent w ith the c laim th at the p rosecu tion m ust pro ve defe ndan t s guilt beyon d a reas onab le dou bt.
What is curious here is not so much that the defendant propounding an affirmative defense is obliged to assume an evidential burden t hat seems fair enough since the prosecu tion has we are su pposing already established wh at it needs for a conviction.