Punishment and the Burden of Proof in Criminal Cases: A Modest Proposal

Iowa Law Review, Vol. 66, p. 899, 1981

32 Pages Posted: 25 Jun 2009  

Robert D. Bartels

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: 1981

Abstract

One of the fixtures of American jurisprudence - and a requirement of the due process clause of the fourteenth amendment - is the rule that the trier of fact in a criminal case must find the defendant guilty "beyond a reasonable doubt" in order to convict. A second rule of law is almost as firmly fixed: that the jury should not be informed, prior to its deliberations on guilt or innocence, of the penalties that the defendant may suffer if convicted. This article will examine the rationales of these two legal principles; argue that they are inconsistent with one another; and present a pragmatic approach to making the "reasonable doubt" standard more meaningful through jury instructions, limited argument by counsel concerning possible penalties on conviction, or both.

Keywords: criminal law, criminal procedure, reasonable doubt

Suggested Citation

Bartels, Robert D., Punishment and the Burden of Proof in Criminal Cases: A Modest Proposal (1981). Iowa Law Review, Vol. 66, p. 899, 1981. Available at SSRN: https://ssrn.com/abstract=1415885

Robert D. Bartels (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

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