Ambiguity Aversion and the Criminal Process

55 Pages Posted: 14 Nov 2005  

Alex Stein

Brooklyn Law School

Uzi Segal

Boston College - Department of Economics

Abstract

Ambiguity-aversion is a person's rational attitude towards the indeterminacy of the probability that attaches to his future prospects, both favorable and unfavorable. An ambiguity-averse person increases the probability of the unfavorable prospect, which is what criminal defendants typically do when they face a jury trial. The prosecution is not ambiguity-averse. Being a repeat player interested in the overall rate of convictions, it can depend upon any probability, however indeterminate it may be. The criminal process therefore is systematically affected by asymmetric ambiguity aversion, which the prosecution can exploit by forcing defendants into harsh plea bargains. Professors Segal and Stein examine this issue theoretically, empirically and doctrinally. They demonstrate that asymmetric ambiguity aversion foils criminal justice and propose a law reform that will fix this problem.

Keywords: ambiguity-aversion, risk-aversion, indeterminate probabilities, criminal law, criminal procedure, jury, bench trial, grand jury, double jeopardy, plea bargaining, empirical legal studies

JEL Classification: D63, D80, D81, K00, K14, K40, K41

Suggested Citation

Stein, Alex and Segal, Uzi, Ambiguity Aversion and the Criminal Process. Notre Dame Law Review, Vol. 81, 2006; Cardozo Legal Studies Research Paper No. 142. Available at SSRN: https://ssrn.com/abstract=846044

Alex Stein (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States
718-780-0615 (Phone)

Uzi Segal

Boston College - Department of Economics ( email )

140 Commonwealth Avenue
Chestnut Hill, MA 02467
United States

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