On the Inadmissibility of the Aggregated Probabilities Principle

DOI10.1350/ijep.2014.18.4.461
Date01 October 2014
Published date01 October 2014
Subject MatterArticle
ON THE INADMISSIBILITY OF THE AGGREGATED PROBABILITIES PRINCIPLE
On the inadmissibility of
the Aggregated
Probabilities Principle
By Doron Menashe*
Associate Professor, Faculty of Law, Haifa University, Israel
Abstract This article is a response to the argument that, under certain
conditions, courts should be permitted to convict a defendant even though the
prosecution failed to prove beyond reasonable doubt that the defendant
committed any specific offence of which he was accused. This new decision
principle has been described as the Aggregated Probabilities Principle (APP).
However, a correct mathematical approach to probabilistic interdependence
among offences would render APP impractical. It is also doubtful whether
adopting APP would actually lead to a reduction of enforcement costs or to
minimising adjudication errors, and it would require that we choose between a
reduction in equality or in deterrence.
Keywords Distinct Probabilities Principle, Aggregated Probabilities Principle;
Standard of proof
ecently some authors have argued that the positive law adheres to the
Distinct Probabilities Principle (DPP) according to which the court
examines whether each individual charge has been proved beyond a
reasonable doubt.1When no specific offence can be proved the defendant should be
doi:10.1350/ijep.2014.18.4.461
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2014) 18 E&P 291–309 291
R
1 A. Harel and A. Porat, ‘Aggregating Probabilities Across Cases: Criminal Responsibility for
Unspecified Offenses’ (2009) 94 Minn L Rev 261. Cf. A. Pundik, ‘Should Criminals Be Convicted of
Unspecific Offences? On Efficiency, Condemnation, and Cognitive Psychology’ Crim L & Phil
(forthcoming 2014).
* Email: dmenashe9@gmail.com.
acquitted. The adherence of positive law to this purported principle is attributed
by those authors to the expressivist nature of criminal punishment.2
Alon Harel and Ariel Porat go on to propose the adoption of an alternative
principle, at least in circumstances where the expressive justification for the DPP
weakens. According to their Aggregated Probabilities Principle (APP) the
fact-finder would decide whether there is any reasonable doubt that the
defendant committed at least one offence from among those of which he is accused
even if it is impossible to specify which of them he committed. The arguments
offered in support of the APP were that it would advance the principle of retrib-
utive justice,3and would better serve the social objectives of criminal law:
deterrence, cost-effective enforcement, and minimising adjudication errors.
This article is a critical analysis of the APP and the distinction between the APP and
the DPP. It shows that the assumption that the positive law adheres to the DPP is
unwarranted. Indeed, conviction by mere aggregation of charges that have not
been proved beyond a reasonable doubt is barred in positive law. However, the
reason for this is not DPP but the fact that the positive law is not underpinned by a
292 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
ON THE INADMISSIBILITY OF THE AGGREGATED PROBABILITIES PRINCIPLE
2 Expressivist theories of punishment emphasise the nature of punishment as a form of communi-
cation (see, e.g., J. Feinberg, ‘The Expressive Function of Punishment’ in J. Feinberg, Doing &
Deserving: Essays in the Theory of Responsibility (Princeton University Press: Princeton NJ, 1970) 95; J.
Hampton, ‘The Moral Education Theory of Punishment’ (1984) 13 Phil & Pub Aff 208). Harel and
Porat argue that:
… expressivist theories would likely reject the APP because, under it, no specific act can be
attributed to the individual being punished and, consequently, no act can be effectively
condemned. To condemn a person for an act that he may not have committed simply because
the act is part of a disjunction of acts diverges significantly from condemning a specific act.
Only condemning a person for a specific act can meet expressivist concerns. (Harel and Porat,
above n. 1 at 305)
Cf. Pundik, above n. 1 for a different expressivist justification of DPP.
3 In this context, I would remark that I am somewhat sceptical of this claim. Some retributive
approaches emphasise the conduct that is being punished. Such narrow retributivism emphasises
that the perpetrator must be punished because he committed the offence. Thus, e.g., Michael
Moore writes:
[T]o achieve retributive justice, the punishment must be inflicted because the offender did the
offence. To the extent that someone is punished for reasons other than that he deserves to be
punished, retributive justice is not achieved. (M. S. Moore,Placing Blame: A Theory of Criminal Law
(Oxford University Press: Oxford, 1997) 28)
Like the doubt that arises as to the willingness of expressivist approaches (see Harel and Porat,
above n. 1 at 306) to accept condemnation for all offences without any connection to a specific
offence, it is also questionable whether narrow retributivist theories would deem punishment
imposed for an undefined offence as meeting the requirements of retributive theory.

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