Better that Ten Guilty Persons Escape: Punishment Costs Explain the Standard of Evidence

32 Pages Posted: 6 Jul 2009 Last revised: 20 May 2011

See all articles by Matteo Rizzolli

Matteo Rizzolli

LUMSA University

Margherita Saraceno

University of Pavia - Department of Law

Date Written: July 9, 2010

Abstract

The conviction of an innocent person (type-I error) should be avoided even at the cost of allowing a consistent number of acquittals of crim- inals (type-II error). This principle is reflected by the high standard of evidence required in criminal procedure. Conversely the established model of optimal deterrence shows that the two types of error are equally bad in terms of social welfare and prescribes the minimization of the sum of the two errors. This paper explains that when the costs of punishment are positive, and guilty individuals are, on average, more likely to be found guilty than innocent ones, wrongful convic- tions are more socially costly than wrongful acquittals. This justifies the bias against wrongful convictions without resorting to any ad hoc assumption about the relative weight of the two errors.

Keywords: wrongful convictions, type I errors, wrongful acquittals, type II errors, evidence, optimal under-deterrence, prosecution, procedure

JEL Classification: K14, K41, K42

Suggested Citation

Rizzolli, Matteo and Saraceno, Margherita, Better that Ten Guilty Persons Escape: Punishment Costs Explain the Standard of Evidence (July 9, 2010). CLEA 2009 Annual Meeting Paper. Available at SSRN: https://ssrn.com/abstract=1430281 or http://dx.doi.org/10.2139/ssrn.1430281

Matteo Rizzolli

LUMSA University ( email )

Via Pompeo Magno
Roma, Rome 00191
Italy

Margherita Saraceno (Contact Author)

University of Pavia - Department of Law ( email )

Pavia, I-27100

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