Do Exclusionary Rules Convict the Innocent? (original) (raw)
Related papers
Exclusionary Rules Convict the Innocent
2008
Extended Abstract: Several constitutional rights are enforced by exclusionary rules that prevent criminal juries from learning of certain evidence probative of the defendant's guilt. An example is the exclusion of evidence taken in violation of the Fourth Amendment right against unreasonable searches and seizures. Some statutory rules also exclude probative evidence, such as (we contend) the limit on the admission of" past bad act" evidence.
2019
In most legal systems, a very high standard of evidence is established to reach a verdict of guilty. Accused individuals may not be convicted unless the prosecution proves their guilt beyond a reasonable doubt. This contrasts with the much lower standards of evidence required to make pre-trial decisions. This paper contributes to the law and economics literature on standards of proof in criminal law by extending the analysis to pretrial decisions on whether the criminal investigation (proceedings) against a person should go ahead or be terminated. The paper shows why optimal standards for these decisions should be lower than that for conviction: false negatives (e.g., wrongful non-indictments) have a more adverse impact on deterrence than false positives (e.g., wrongful indictments). The paper analyzes as well how those standards should vary depending on certain circumstances.
Conviction Paradox and Compensatory Punishment in Criminal Trials
2013
Does a conviction for a serious crime require less evidence than one for a minor offence? Subsequently, if judges render a guilty verdict while having doubts, will they compensate for it with a more lenient sentence? A case of simple or aggravated assault was presented with a low or high probative value of evidence to four groups of judges. Their sentencing sheds light on the pitfalls of judicial reasoning.
Proof Beyond a Reasonable Doubt: A Balanced Retributive Account
The standard of proof in criminal trials in many liberal democracies is proof beyond a reasonable doubt, the BARD standard. It is customary to describe it, when putting a number on it, as requiring that the fact finder be at least 90% certain, after considering the evidence, that the defendant is guilty. Strikingly, no good reason has yet been offered in defense of using that standard. A number of non-consequentialist justifications that aim to support an even higher standard have been offered; all are morally unsound. Meanwhile, consequentialist arguments plausibly support a substantially lower standard — in some cases so low as to undermine the idea that punishment is what is at stake. In this paper, I offer a new retributive justification that supports excluding the instrumental benefits of punishment from the balance that sets the standard. The resulting balance supports a standard arguably in the ballpark of the customary understanding of BARD: a standard requiring that the fact finder have a high, though not maximally high, degree of confidence that the defendant is guilty.