Error Aversions and Due Process

Michigan Law Review, Forthcoming

Virginia Public Law and Legal Theory Research Paper No. 2022-08

Duke Law School Public Law & Legal Theory Series No. 2022-02

52 Pages Posted: 5 Jan 2022 Last revised: 8 Feb 2022

See all articles by Brandon L. Garrett

Brandon L. Garrett

Duke University School of Law

Gregory Mitchell

University of Virginia School of Law

Date Written: January 4, 2022


William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone’s view, the citizen-jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions.

Across multiple national surveys, sampling more than 10,000 people, we find that a majority of Americans views false acquittals and false convictions to be errors of equal magnitude. Contrary to Blackstone, most people are unwilling to err on the side of letting the guilty go free to avoid convicting the innocent. Indeed, a sizeable minority views false acquittals as worse than false convictions; this group is willing to convict multiple innocent persons to avoid letting one guilty person go free. These value differences translate into behavioral differences: we show in multiple studies that jury-eligible adults who reject Blackstone’s view are more accepting of prosecution evidence and more conviction prone than the minority of potential jurors who agrees with Blackstone.

These findings have important implications for our understanding of due process and criminal justice policy. Due process currently depends on jurors faithfully following instructions on the burden of proof, but many jurors are not disposed to hold the state to its high burden. Courts should do away with the fiction that the reasonable doubt standard guarantees due process and consider protections that do not depend on jurors honoring the law’s preference for false acquittals, such as more stringent pre-trial screening of criminal cases and stricter limits on prosecution evidence. Furthermore, the fact that many people place crime control on par with, or above, the need to avoid wrongful convictions helps explain divisions in public opinion on important policy questions such as bail and sentencing reform. Criminal justice proposals that emphasize deontic concerns without addressing consequentialist concerns are unlikely to garner widespread support.

Suggested Citation

Garrett, Brandon L. and Mitchell, Gregory, Error Aversions and Due Process (January 4, 2022). Michigan Law Review, Forthcoming, Virginia Public Law and Legal Theory Research Paper No. 2022-08, Duke Law School Public Law & Legal Theory Series No. 2022-02, Available at SSRN: or

Brandon L. Garrett (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7090 (Phone)


Gregory Mitchell

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-243-4088 (Phone)

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