Towards a Continuous Burden of Proof
48 Pages Posted: 16 Jul 2019
Date Written: March 1, 2019
Conventional burdens of proof take the form of discontinuous step-functions, switching from zero consequences below a threshold level of juror confidence in guilt to full consequences above that threshold. This article explores the costs and benefits of an alternative approach to deciding cases, the continuous burden of proof, which is more consistent with the inherent uncertainty of the jury’s task. The discontinuous approach is rooted in earlier beliefs about the trial process that we have largely abandoned, such as the assumption that juries are capable of determining the truth in disputed cases beyond any doubt, so that any erroneous outcomes must be a result of deliberate misconduct. The continuous burden, by contrast, is better aligned with the modern view, which is that verdicts about past events are necessarily uncertain and capable of error. After making the case for the adoption of a continuous burden of proof, this article will consider some challenges that would stand in its way and some smaller steps we could take towards the continuous approach.
Keywords: burden of proof, fact-finding, probability, wrongful convictions, error costs, deterrence, equality, spoliation, jury, judge, continuous
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