The Consequences of Error in Criminal Justice

87 Pages Posted: 9 Jul 2014 Last revised: 11 Feb 2015

See all articles by Daniel Epps

Daniel Epps

Washington University in St. Louis - School of Law

Date Written: February 10, 2015


“Better that ten guilty persons escape, than that one innocent suffer” is a revered adage in the criminal law. It serves as shorthand for an important rule about punishment: minimizing wrongful convictions is more important than overall accuracy. This “Blackstone principle” accords with most people’s deeply felt intuitions about criminal justice.

This Article challenges that fundamental precept. It begins by situating the Blackstone principle in the history of Anglo-American criminal law. That history shows how the principle gained prominence — most notably, because in Blackstone’s time and earlier death was the exclusive penalty for many crimes — but provides no compelling justification today.

The leading modern argument for the Blackstone principle is that false convictions are simply more costly than false acquittals. But that argument is incomplete, because it focuses myopically on the costs of errors in individual cases. A complete analysis of the Blackstone principle requires taking stock of its dynamic effects on the criminal justice system as a whole. The Article conducts that analysis, which reveals two significant but previously unrecognized drawbacks of the Blackstone principle: First, its benefits to innocent defendants are smaller than usually assumed; it could even make those defendants worse off. Second, the principle reinforces a widely recognized political process failure in criminal justice, hurting not just defendants but society as a whole. The magnitude of these effects is uncertain, but they could more than cancel out the principle’s putative benefits.

The Article then analyzes alternative justifications for the Blackstone principle. None is satisfactory; each rests on dubious empirical assertions, logical errors, or controversial normative premises. There is thus no fully persuasive justification for the principle. Rejecting the Blackstone principle would require us to rethink — although not necessarily redesign — various aspects of our criminal-procedure system.

Keywords: criminal law, criminal procedure, punishment theory, false convictions, false acquittals, Blackstone, error costs

JEL Classification: K14, K40

Suggested Citation

Epps, Daniel, The Consequences of Error in Criminal Justice (February 10, 2015). Harvard Law Review, Vol. 128, No. 4, pp. 1065-1151, 2015, Harvard Public Law Working Paper No. 14-30, Available at SSRN:

Daniel Epps (Contact Author)

Washington University in St. Louis - School of Law ( email )

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