The Optimal Evidence Threshold: Balancing the Frequency and Severity of Wrongful Punishment

41 Pages Posted: 10 May 2018

See all articles by Richard M. Hynes

Richard M. Hynes

University of Virginia School of Law

Date Written: May 2018

Abstract

Prior literature argues that optimal sanctions are fixed and maximal and that the optimal evidence threshold balances the social costs of wrongful convictions (lost deterrence) and wrongful acquittals (chilling of benign behavior). This chilling argument is an externality argument. If punishment only affects the punished and there are no other externalities, the net social value of the chilled behavior is zero. Even without chilling costs, differences in how punishment affects defendants and third parties can justify non-maximal sanctions. When optimal sanctions are non-maximal, the optimal evidence threshold depends on these differences because this threshold balances the frequency against the severity of wrongful punishment.

Suggested Citation

Hynes, Richard M., The Optimal Evidence Threshold: Balancing the Frequency and Severity of Wrongful Punishment (May 2018). Supreme Court Economic Review, Forthcoming, Virginia Law and Economics Research Paper No. 2018-08, Available at SSRN: https://ssrn.com/abstract=3176633

Richard M. Hynes (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-3743 (Phone)

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