Abstract

http://ssrn.com/abstract=1789060
 
 

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Criminal Sanctions in the Defense of the Innocent


Ehud Guttel


Hebrew University of Jerusalem - Faculty of Law

Doron Teichman


Hebrew University of Jerusalem - Faculty of Law

March 17, 2011

Michigan Law Review, Forthcoming

Abstract:     
Under the formal procedural rules, fact-finders are required to apply a uniform standard of proof in all criminal cases. Experimental studies as well as real world examples indicate, however, that fact-finders often adjust the evidentiary threshold for conviction in accordance with the severity of the applicable sanction. All things being equal, the higher the sanction, the higher the standard of proof fact-finders will apply in order to convict. Building on this insight, this Article introduces a new paradigm for criminal punishments – a paradigm that focuses on designing penalties that will reduce the risk of unsubstantiated convictions. By setting mandatory penalties of sufficient size, the legal system can induce fact-finders to convict only if sufficient admissible evidence proves the defendant’s guilt. This Article applies this theoretical framework to three concrete contexts that involve a high risk of erroneous convictions: the right to silence, inchoate crimes and the punishment of recidivists. It is shown that a sanctioning regime that is attuned to the probative function of punishment can protect innocent defendants from unsubstantiated convictions while not sacrificing the dictates of both deterrence and retribution.

Number of Pages in PDF File: 58

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Date posted: March 24, 2011  

Suggested Citation

Guttel, Ehud and Teichman, Doron, Criminal Sanctions in the Defense of the Innocent (March 17, 2011). Michigan Law Review, Forthcoming . Available at SSRN: http://ssrn.com/abstract=1789060

Contact Information

Ehud Guttel (Contact Author)
Hebrew University of Jerusalem - Faculty of Law ( email )
Mount Scopus, 91905
Israel

Doron Teichman
Hebrew University of Jerusalem - Faculty of Law ( email )
Mount Scopus, 91905
Israel

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