Justifying the Proof Structure of Criminal Trials
| Date | 01 October 2013 |
| Author | Richard L. Lippke |
| Published date | 01 October 2013 |
| DOI | 10.1350/ijep.2013.17.4.435 |
| Subject Matter | Article |
JUSTIFYING THE PROOF STRUCTURE OF CRIMINAL TRIALS
Justifying the proof
structure of criminal
trials
By Richard L. Lippke*
Department of Criminal Justice, Indiana University
Abstract During criminal trials, defendants enjoy a presumption of innocence,
the burden of proof is on the government, and the standard of proof it must
meet—beyond a reasonable doubt—is exacting. This ‘proof structure’ of trials is
usually justified with an error distribution rationale. Yet there are well-known
difficulties in establishing the optimal ratio of errors of false conviction to
errors of false acquittals and with determining whether the proof structure
enables us to obtain that ratio over a sufficiently lengthy run of cases. According
to an alternative justification of the proof structure, individuals have a
second-order moral right to demand rigorous, independent evaluations of the
evidence that they have committed crimes before their primary moral rights are
curtailed by legal punishment. The proof structure of criminal trials is one way
to honour this right. Various objections to this defence of the proof structure are
considered.
Keywords Error distribution; Legal punishment; Reasonable doubt; Burden of
proof; Presumption of innocence
n contemporary legal systems, individuals accused of crimes are entitled
to public trials during which they enjoy a presumption of innocence, the
burden of proving guilt is on the government, and the standard of proof
that the government must meet is high—typically, ‘beyond a reasonable doubt’.1
This ‘proof structure’ of criminal trials seems designed to make it hard for the
doi:10.1350/ijep.2013.17.4.435
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2013) 17 E&P 323–346 323
I
1 These familiar elements of criminal trials are found, with slight variations, in most modern legal
systems. Further, Art. 6(1) of the European Convention on Human Rights and Art. 14(1) of the
International Covenant on Civil and Political Rights guarantee the right to fair, public and
impartial hearings on criminal charges. See J. D. Jackson and S. J. Summers, The Internationalisation
of Criminal Evidence: Beyond the Common Law and Civil Law Traditions (Cambridge University Press:
Cambridge, 2012) 96.
* Email: rllippke@indiana.edu.
government to convince judges or juries of the validity of the charges it has lodged
against individuals. It is natural to believe that the purpose of the high standard of
proof, in particular, is to prevent errors of mistaken conviction. In doing so,
however, the standard also makes likely the occurrence of errors of the opposite
kind, that is, ones of mistaken acquittal. And it might produce many more of the
latter kind of errors, than it precludes the former kind. If the two kinds of errors
were equally serious, it would be unclear why we should set the standard of proof
so high and insist that the government bear the burden of meeting it. But
according to long-standing tradition, it is thought worse, and perhaps far worse,
to wrongly convict the innocent than to wrongly acquit the guilty.2Hence, support
for this proof structure, including its high standard of proof, remains firmly
entrenched.
In recent years, some scholars have begun to question the defensibility of this
proof structure. It has been argued that errors of mistaken acquittal are quite bad,
even if not as bad as errors of mistaken conviction, especially if the individuals
wrongly acquitted have continuing violent criminal proclivities.3Also, true
convictions can be shown to have clear societal benefits.4It has therefore seemed
to some scholars a pertinent question to ask whether the proof structure of
criminal trials is socially optimal. If by lowering the standard of proof, we could
gain significantly more true convictions, at the cost of only a few mistaken ones,
should we not consider doing so? Two further questions have been raised as well:
what is the optimal ratio of errors of the two kinds and how can we tell whether
the proof structure of criminal trials is actually yielding it or something close
to it?
Though an error distribution approach to justifying the proof structure is taken by
many legal scholars to be the obviously correct one, my aim is to sketch an alter-
native justification. It is one that builds on the notion that individuals possess
324 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
JUSTIFYING THE PROOF STRUCTURE OF CRIMINAL TRIALS
2 The classical source for this preference is William Blackstone’s Commentaries on the Laws of England
(Beacon Press: Boston MA, 1962) 420. As Alexander Volokh has amusingly shown, there is little
agreement among historical writers about the proper ratio by which we should prefer acquittals of
the guilty to convictions of the guilty in his ‘n Guilty Men’ (1997) 146 U Penn L Rev 173. For a clear,
contemporary statement of the preference, see P. Roberts, ‘Double Jeopardy Reform: A Criminal
Justice Commentary’ (2002) 65 MLR 393.
3 See L. Laudan, ‘The Rules of Trial, Political Morality, and the Costs of Error: Or, Is Proof Beyond a
Reasonable Doubt Doing More Harm Than Good?’ in L. Green and B. Leiter (eds.), Oxford Studies in
Philosophy of Law, vol. 1 (Oxford University Press: New York, 2011) 195.
4 See E. Lillquist, ‘Recasting Reasonable Doubt: Decision Theory and the Virtues of Variability’
(2002–03) 36 U C Davis L Rev 85; M. L. DeKay, ‘The Difference Between Blackstone-Like Error Ratios
and Probabilistic Standards of Proof’ (1996) 21 Law & Social Inquiry 95; L. Laudan and H. Saunders,
‘Re-Thinking the Criminal Standard of Proof: Seeking Consensus About the Utilities of Trial
Outcomes’ (2009) 7 International Commentary on Evidence 1.
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