Re-Thinking the Criminal Standard of Proof: Seeking Consensus About the Utilities of Trial Outcomes

26 Pages Posted: 31 Mar 2009

See all articles by Larry Laudan

Larry Laudan

University of Texas School of Law

Harry Saunders

Decision Processes Incorporated; The Breakthrough Institute

Date Written: March 29, 2009


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.

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

Suggested Citation

Laudan, Larry and Saunders, Harry, Re-Thinking the Criminal Standard of Proof: Seeking Consensus About the Utilities of Trial Outcomes (March 29, 2009). Available at SSRN: or

Larry Laudan (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

Harry Saunders

Decision Processes Incorporated ( email )

3409 Michael Drive
Newbury Park, CA 91320
United States

The Breakthrough Institute ( email )

436 14th Street, Suite 820
Oakland, CA 94612
United States

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