Re-Imagining the Criminal Standard of Proof: Lessons from the ‘Ethics of Belief’

AuthorH. L. Ho
DOI10.1350/ijep.2009.13.3.322
Published date01 July 2009
Date01 July 2009
Subject MatterArticle
RE-IMAGINING THE CRIMINAL STANDARD OF PROOF Re-imagining the
criminal standard of
proof: lessons from the
‘ethics of belief’
By H. L. Ho*
Associate Professor, Faculty of Law, National University of
Singapore
Abstract On a standard view, the criminal standard of ‘proof beyond reasonable
doubt’ is a statement of probabilities, the pre-set benchmark of evidential
support that must be crossed before a contested hypothesis of guilt can be
accepted as true. Where to set that benchmark calls into play the calculation of
social costs and benefits. This article proposes an agent-centred interpretation,
one that involves viewing trial deliberation as a mental activity and the
acquisition of an ethical vocabulary with which to express standards of
excellence for the conduct of that activity. Our moral exemplar would, in her
deliberation on the criminal verdict, exhibit relevant virtuous traits, and be
guided by practical wisdom in the contextual operation of those traits. In
judging the application of the standard of proof, there is a sense in which we
should ultimately be making an ethical judgment of the person who applies it.
Keywords Criminal trial; Standard of proof; Judgment of probabilities; Social
costs and benefits; Ethical standards
I
he latter part of my title is appropriated from the heading of an 1877
essay by William Kingdon Clifford. Clifford was a mathematician and
philosopher. He began his essay with this scenario: a ship owner is about
to send to sea a ship full of passengers. He knows that the vessel is old, not
doi:1350/ijep.2009.13.3.322
198 (2009) 13 E&P 198–211 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
T
* Email: lawhohl@nus.edu.sg. This short essay is based on a talk given at my home university. I thank
the audience for their reactions. I am also indebted to George Wei, Paul Roberts and Roger Leng for
their valuable comments on earlier versions of this article. The support of research grant (ARF
R-241-000-063-112) is gratefully acknowledged.

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