Guilt vs. Guiltiness: Are the Right Rules for Trying Factual Innocence Inevitably the Wrong Rules for Trying Culpability?

8 Pages Posted: 24 Mar 2009

Date Written: 2008


It is an asserted principle of ancient lineage dating at least to the 17th century that, while standards of proof may vary depending on the kind of case or issue involved, rules of admissibility (at least those not explicitly based on policies extrinsic to rectitude of decision) ought ideally to be the same in every context, civil or criminal. It was an explicit policy of Wigmore to bring the rules of evidence more in line with this ideal. The reason given has always been that information tending to prove a fact has that same tendency whether the fact is a material issue in a criminal case or in a civil case, for the plaintiff, prosecution or defense.

If all we asked the factfinder to do in our system of litigation was to deal with fact reconstruction strictly speaking, and if contextual pressures on factfinders attempting to evaluate evidence were the same in every context, there would be some force to this argument. But it is clear that our trial system assigns other important functions to the jury besides fact reconstruction strictly defined, and that the pressures and potential distortions of contextual atmosphere in which we expect factfinders to work varies greatly from case to case.

To be sure, we ask factfinders to determine the empirical details of facts in the world. But we also ask factfinders to make some determinations which are clearly not facts (e.g. negligence; insanity), but are rather value judgments about facts. And we ask factfinders to determine other things (states of mind) whose factual status is epistemically different from (and less clear than) exterior facts in the world, and which are generally inseparable from normative evaluations of responsibility and guilt. Might the kinds of information which are appropriate for one function be inappropriate to the proper performance of other functions? In addition, in the criminal setting, might the mindset which is directed toward investigating and producing evidence of guiltiness not be that best suited to investigating and producing reliable evidence of guilt? Can the proper structuring of the trial, and adjustments in the rules of evidence, help resolve this and similar conflicts, or by the time the trial starts is it already too late, given the potentials for the pre-trial distortion of information which are inevitably a part of a system run largely by partisan adversaries?

Keywords: Evidence, trial, Evidence, criminal evidence, expert evidence, scientific evidence, adversary system, legal process

JEL Classification: K14, K41

Suggested Citation

Risinger, D. Michael, Guilt vs. Guiltiness: Are the Right Rules for Trying Factual Innocence Inevitably the Wrong Rules for Trying Culpability? (2008). Seton Hall Law Review, Vol. 38, No. 3, 2008. Available at SSRN:

D. Michael Risinger (Contact Author)

Seton Hall University School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States
(973) 642-8834 (Phone)

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