The Social Contract and the Rules of Trial: Re-Thinking Procedural Rules
65 Pages Posted: 17 Dec 2007 Last revised: 17 Aug 2008
Date Written: February 25, 2008
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.
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