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Ambiguity Aversion and the Criminal Process

Alex Stein
Yeshiva University - Benjamin N. Cardozo School of Law

Uzi Segal
Boston College - Department of Economics



Notre Dame Law Review, Vol. 81, 2006
Cardozo Legal Studies Research Paper No. 142

Abstract:     
Ambiguity-aversion is a person's rational attitude towards the indeterminacy of the probability that attaches to his future prospects, both favorable and unfavorable. An ambiguity-averse person increases the probability of the unfavorable prospect, which is what criminal defendants typically do when they face a jury trial. The prosecution is not ambiguity-averse. Being a repeat player interested in the overall rate of convictions, it can depend upon any probability, however indeterminate it may be. The criminal process therefore is systematically affected by asymmetric ambiguity aversion, which the prosecution can exploit by forcing defendants into harsh plea bargains. Professors Segal and Stein examine this issue theoretically, empirically and doctrinally. They demonstrate that asymmetric ambiguity aversion foils criminal justice and propose a law reform that will fix this problem.

Keywords: ambiguity-aversion, risk-aversion, indeterminate probabilities, criminal law, criminal procedure, jury, bench trial, grand jury, double jeopardy, plea bargaining, empirical legal studies

JEL Classifications: D63, D80, D81, K00, K14, K40, K41

Accepted Paper Series

Date posted: November 14, 2005 ; Last revised: March 23, 2006

Suggested Citation

Stein, Alex and Segal, Uzi, Ambiguity Aversion and the Criminal Process. Notre Dame Law Review, Vol. 81, 2006; Cardozo Legal Studies Research Paper No. 142. Available at SSRN: http://ssrn.com/abstract=846044


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Contact Information

Alex Stein (Contact Author)
Yeshiva University - Benjamin N. Cardozo School of Law ( email )
55 Fifth Ave.
New York, NY 10003
United States
Uzi Segal
Boston College - Department of Economics ( email )
140 Commonwealth Avenue
Chestnut Hill, MA 02467
United States
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