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Abstract:
This essay explores the connections between the criminal standard of proof, the rules of evidence and procedure, and the social contract. It argues that the deontological reification of existing procedures and standards into fixed, inviolable rights rests on an egregious misreading of what protections the contract obliges the state to provide to its citizens. It further shows that a proper definition of the appropriate standard of proof in criminal trials - which this paper purports to provide - has nothing to do with the famous Blackstone ratio and very little to do with the vexed question of the ratio of errors at trial.

Abstract:
The implications of errors and error rates are examined in this paper. It is demonstrated that the reliance on comparing the number of false acquittals to false convictions at trial (the Blackstone Ratio) as an estimate of how well a criminal justice system is operating is ill-advised in that generates very peculiar results (including at times no results at all), and can lead to morally perverse results. Other estimates of errors at trial (such as comparing the number of false convictions to total convictions) likewise lead to curious results. Focusing on such ratios neglects that social welfare depends on the total outcome of the trial process (false and true acquittals and convictions) and on the relationship between such outcomes, pleas, and crime rates. Some modest suggestions are made concerning ways in which these relationships may be optimized.

Abstract:
This paper analyses the multiple tensions and confusions in appellate-court efforts to explain the criminal standard of proof. It concludes that the ambiguous and highly subjectivist character of the Supreme Court's recent glosses on this conception render it virtually meaningless. It is virtually indistinguishable from a standard saying that any doubt whatever, even inarticulable doubts, can justify an acquittal.

reasonable doubt, moral certainty, standard of proof

Abstract:
It has long been recognized that the yardsticks for assessing the reliability and the fairness of the criminal justice system must be quantitative in nature. This essay explores some of the key ratios pertinent to any system of criminal justice. It shows why the ratios commonly invoked divert attention away from the relationships that should be our primary concern.

Blackstone ratio, false convictions, social contract

Abstract:
Several philosophers and evidence scholars have recently suggested that both the criminal and civil standards of proof could be modeled using the schema known as inference to the best explanation. This paper challenges that proposal, showing that being the best explanation of a certain set of facts is too weak to serve as an explication of proof beyond a reasonable doubt and too strong to capture the meaning of the preponderance of the evidence.

best explanation, reasonable doubt, standard of proof, preponderance of the evidence, abduction

Abstract:
This paper explores the tension between the official assignment of the burden of proof to the prosecutor in criminal trials and the fact that most state courts require the defendant to proof any excuse defense he offers to at least a preponderance of the evidence. It likewise argues that the rule in federal courts that defendants propounding a defense must raise a reasonable doubt before the jury can be instructed to consider their defense offends against both the presumption of innocence and the prosecutorial burden of proof.

affirmative defense, reasonable doubt, presumption of innocence, burden of proof

Abstract:
The presumption of innocence is not, and cannot be, a doctrine enjoining triers-of-fact to believe that the defendant did not commit the crime with which he is charged. It is, rather, a message that jurors must begin a trial believing that defendant's guilt has not been proven and that defendant must be acquitted unless the state proves his guilt to the relevant standard.

presumption of innocence, proof, guilt

Abstract:
This paper examines the costs and benefits associated with current bail-granting policies and concludes that the granting of bail awaiting trial to those accused of serious crimes of violence and who have a record of prior convictions is unacceptably dangerous, accounting, among other things, for one in every ten homicides. We propose an overhaul of existing bail practices so that those accused of a violent crime have a claim on bail just in case they have two or fewer prior felony convictions. We claim that such a policy would respect both the rights of innocent defendants not to have their liberty curtailed without powerful reasons for doing so and the rights of innocent citizens not to be exposed to an unacceptably high risk of victimization by accused felons on bail. We flatly deny that pretrial liberty for those accused of a violent crime is an absolute right and refute the claim that behavior on bail is wholly unpredictable.

bail, preventive detention, prior convictions, violent crimes, serial felons

Abstract:
The verdict system in place in most countries utilizes a nominally exculpatory verdict (typically: 'not guilty', or 'guilt not proven') when the threshold for conviction has not been satisfied. This verdict fails in two important senses: for genuinely innocent defendants, it provides only a weak exoneration; for defendants who are probably guilty, but not guilty beyond a reasonable doubt, it is insufficiently inculpatory. This paper explores the possibility of rendering verdicts more discriminating and more informative by making additional choices available to the triers of fact. It begins by examining the Scottish system of three verdicts and finding it wanting in multiple respects. The bulk of the paper explores how a system of four verdicts could work to communicate more effectively to the public about the likelihood of defendant's guilt or innocence and to bring legal sanctions to bear on those defendants whose guilt seems more likely than not. The compatibility of such verdicts with traditional legal principles such as the presumption of innocence and the prosecutorial burden of proof are likewise examined.

verdict, probable guilt, Scottish verdict, innocence, burden of proof

Abstract:
This paper analyzes the case for utilizing different standards of proof for trying cases involving, respectively, serial offenders and first-time offenders. It argues that, if we expect the standard in a trial to reflect the costs and benefits of the four possible outcomes at trial, then the empirical data leave no room for doubt that the profiles of all four outcomes -- true and false convictions and true and false acquittals -- are strikingly different for serial offenders than for those without prior convictions.

Moreover, it is shown how the phenomenon of widespread and prolonged recidivism poses insuperable problems for those who subscribe to a retributionist or just deserts theory of crime and punishment.

serial felons, standard of proof, recidivism, utilities, just deserts, consequentialism, false convictions, reasonable doubt

Abstract:
For more than a half-century, evidence scholars have been exploring whether the criminal standard of proof can be grounded in decision theory. Such grounding would require the emergence of a social consensus about the utilities to be assigned to the four outcomes at trial. Significant disagreement remains, even among legal scholars, about the relative desirability of those outcomes and even about the formalisms for manipulating their respective utilities. We attempt to diagnose the principal reasons for this dissensus and to suggest ways in which a broadly shared evaluation might be forged, both with respect to the appropriate equations for defining the standard of proof and with respect to the appropriate utilities to associate with the various trial outcomes. Where consensus cannot be forged, we hold that remaining differences can probably be finessed. We also suggest ways to elicit the utilities of individuals on these matters so as to avoid the usual flaws of such surveys. Along the way, we note a). the disproportionate role that the Blackstone ratio of errors continues to play in appraisals of the utilities of trial outcomes (despite its unintelligibility in the context of utilities) and b). the persisting belief -for which there is no theoretical basis-that every plausible assignment of utilities will inevitably result in a very high standard of proof. Finally, we examine some of the technical features associated with a proposed rank ordering of the utilities of trial outcomes.

standard of proof, Blackstone, ratio of errors, utilities, decision theory