Better that ten innocent persons suffer than that one guilty escape. Evidentiary standards for investigating and charging defendants (original) (raw)

The Optimal Standard of Proof in Criminal Law When Both Fairness and Deterrence Matter

This paper addresses the issue of the optimal standard of proof in criminal law. It is assumed that people in society care about both fairness and deterrence. It is important to punish those who are guilty and only those. However, error is unavoidable and hence a trade-o¤ emerges between the three aims of punishing the guilty, not punishing the innocent and deterring potential criminals. It is shown that when only deterrence matters the optimal standard of proof is a preponderance-of-the-evidence standard (given some other assumptions) while if fairness is an issue the standard will generally be stricter and involve Bayesian updating. When both fairness and deterrence matter the standard of proof will (generally) lie in between the two standards. An example illustrates how the model might be applied in practice to determine the optimal standard of proof for a given crime.

Convictions versus Conviction Rates: The Prosecutor's Choice

American Law and Economics Review, 2009

It is natural to suppose that a prosecutor's conviction rate-the ratio of convictions to cases prosecuted-is a sign of his competence. Prosecutors, however, choose which cases to prosecute. If they prosecute only the strongest cases, they will have high conviction rates. Any system which pays attention to conviction rates, as opposed to the number of convictions, is liable to abuse. As a prosecutor's budget increases, he allocates it between prosecuting more cases and putting more effort into existing cases. Either can be socially desirable, depending on particular circumstances. We model the tradeoffs theoretically in two models, one of a benevolent social planner and one of a prosecutor rewarded directly for his conviction rate as well as caring about convictions and personal goals. We also look at anecdotal evidence from Japan and detailed U.S. data drawn from county-level crime statistics and a survey of all state prosecutors by district. We find that prosecution rates vary little with budget, but conviction rates do increase, and that the conviction rate declines in the number of cases prosecuted and with the crime rate of a district.

Truth, Knowledge, and the Standard of Proof in Criminal Law

Synthese

Could it be right to convict and punish defendants using only statistical evidence? In this paper, I argue that it is not and explain why it would be wrong. This is difficult to do because there is a powerful argument for thinking that we should convict and punish defendants using statistical evidence. It looks as if the relevant cases are cases of decision under risk and it seems we know what we should do in such cases (i.e., maximize expected value). Given some standard assumptions about the values at stake, the case for convicting and punishing using statistical evidence seems solid. In trying to show where this argument goes wrong, I shall argue (against Lockeans, reliabilists, and others) that beliefs supported only by statistical evidence are epistemically defective and (against Enoch, Fisher, and Spectre) that these epistemic considerations should matter to the law. To solve the puzzle about the role of statistical evidence in the law, we need to revise some commonly held assumptions about epistemic value and defend the relevance of epistemology to this practical question.

The Presumption of Innocence and its Role in the Criminal Process

Criminal Law Forum, 2016

Many international instruments proclaim that those who face criminal prosecution ought to be afforded a 'presumption of innocence', and the importance and central role of this presumption is recognized by legal systems throughout the world. There is, however, little agreement about its meaning and extent of application. This article considers the purposes of legal presumptions in general and explores various, sometimes contradictory, conceptions of this most famous one. It is equated by many scholars to the requirement that the prosecution prove guilt beyond a reasonable doubt. As such, it is merely a rule of evidence (albeit an important one), with no application pre-or post-trial. The article advocates adoption of a broader, normative approach, namely that the presumption reflects the relationship which ought to exist between citizen and State when a citizen is suspected of breaching the criminal law. As such, it should be promoted as a practical attitude to be adopted by the key protagonists in the justice system, for the duration of the criminal process.

Note: Burdens of Proof, Presumptions and Standards of Proof in Criminal Cases

Mizan Law Review, 2015

Worku Yaze Wodage * In jurisdictions that subscribe to adversarial mode of litigation, burdens and standards of proof have significant roles in the adjudication and determination of criminal cases. The operation of the principle of presumption of innocence in such jurisdictions determines issues of who bears what burden and the extent thereof. The Ethiopian criminal procedure system predominantly exhibits adversarial features, and there is the need for the comprehension and enforcement of the respective burdens and standards of proof borne by litigants. The constraints in clarity are more pronounced in those criminal law provisions that embrace some form of presumptions such as provisions on corruption offences. This note highlights how issues of burden and standard of proof are allocated as between prosecuting authorities and accused persons. Apart from explaining the nexus between the principle of presumption of innocence, burdens of proof and standards of proof, it indicates the implications of the operation of the principle of presumption of innocence upon the allocation of evidential and persuasive burdens of proof as between the state and the accused. It further outlines the effects of the various forms of presumptions upon the different kinds of burdens of proof.

Prevention of Crime and the Optimal Standard of Proof in Criminal Law

Review of Law & Economics, 2009

The standard of proof in criminal law a®ects retributive justice through the number of wrong convictions and wrong acquittals. It also a®ects the level of crime, since a higher standard of proof implies less deterrence and less incapacitation. This article derives an expression for the optimal standard from a trade-o® between these e®ects, and applies the expression to the crime of sexual violation against women. For this crime, social preferences for justice versus prevention of crime are elicited through a survey and inserted into the expression for the optimal standard. The result indicates that the concern for prevention of crime may have a signi¯cant e®ect on the optimal standard of proof. ¤ I wish to thank Steven Levitt for providing empirical estimates of the preventive e®ect of sanctions, and Clas Wihlborg for extensive comments. Also, I thank participants at the

The role of evidentiary weight in judicial sentencing determinations

2016

THE ROLE OF EVIDENTIARY WEIGHT IN JUDICIAL SENTENCING DETERMINATIONS by ESTHER NIR A Dissertation submitted to the Graduate School-Newark Rutgers, The State University of New Jersey in partial fulfillment of the requirements for the degree of Doctor of Philosophy Graduate Program in Criminal Justice Written under the direction of Dr. Elizabeth Griffiths and approved by _____________________________________

Legal Risk, Legal Evidence and the Arithmetic of Criminal Justice

It is argued that the standard way that the criminal justice debate regarding the permissible extent of wrongful convictions is cast is fundamentally flawed. In particular, it is claimed that there is an inherent danger in focussing our attention in this debate on different ways of measuring the probabilistic likelihood of wrongful conviction and then evaluating whether these probabilities are unacceptably high. This is because such probabilistic measures are clumsy ways of capturing the level of risk involved, to the extent that a defendant can be subject to an unacceptably high level of legal risk in this regard even where the relevant probabilities are very low. An alternative conception of legal risk⎯one that is primarily cast along modal rather than probabilistic lines⎯is set out which offers a much better way of framing the debate regarding what would be an acceptable level of wrongful conviction. It is further argued that with this modal conception of legal risk in play we can capture an important necessary condition that should be imposed on legal evidence, one that has application beyond the context of the criminal trial.