The economic case for conviction multiplicity
| Published date | 01 October 2023 |
| DOI | http://doi.org/10.1177/13657127231178962 |
| Author | Talia Fisher |
| Date | 01 October 2023 |
| Subject Matter | Articles |
The economic case for conviction
multiplicity
Talia Fisher*
Tel Aviv University, Tel Aviv, Israel
Abstract
Evidence law categorises convictions in purely binary terms, excluding the possibility of judg-
ment of degree. The derivative allocation of punishment also assumes a similarly binary, ‘all or
nothing’structure: punishment can be calibrated, but not with the established probability of
guilt. The article will use economic analysis to formulate the deterrence-based case for desert-
ing this binary conceptualisation, in favour of a multiplicity of conviction categories. The dis-
cussion will be devoted both to the context of plea bargaining and to the realm of the
criminal trial: with respect to plea bargaining, the article will present the economic case for
converting the criminal standard of proof into a negotiable feature of trial. In the trial context,
the article will make the deterrence-based argument for calibrating the size of the sanction
with the level of proof, in a manner which accommodates a host of conviction categories.
Using these examples and the tools of economic analysis, the article will demonstrate how
a multiplicity of conviction categories and derivative distribution of punishment could allow
for a better realisation of the deterrence goals underlying the criminal justice system.
Keywords
BARD, economic analysis, plea bargain, standard of proof, waiver
Introduction
Evidence law categorises convictions in purely binary terms, excluding the possibility of judgment of
degree. The resulting allocation of punishment also assumes a similarly binary, ‘all or nothing’structure:
punishment can be calibrated, but not with the established probability of guilt. The article will use eco-
nomic analysis to formulate the deterrence-based case for deserting this binary conceptualisation, in
favour of a multiplicity of conviction categories. The discussion will be devoted both to the context of
plea bargaining and to the realm of the criminal trial: with respect to plea bargaining, the article will
* Anny and Paul Yanowicz Professor of Human Rights, Tel Aviv University Faculty of Law. I’d like to thank…Some of the
arguments raised in the article are consolidated from: Fisher (2007, 2012a, 2012b, 2021).
Corresponding author:
Talia Fisher, Law, Tel Aviv University, Ramat Aviv 6997801, Tel Aviv, Israel.
Email: tafisher@tauex.tau.ac.il
Article
The International Journal of
Evidence & Proof
2023, Vol. 27(4) 260–278
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/13657127231178962
journals.sagepub.com/home/epj
present the economic case for converting the criminal standard of proof into a negotiable feature of trial.
In the trial context, the article will make the deterrence-based argument for calibrating the size of the
sanction with the level of proof, in a manner which accommodates a host of conviction categories.
Using these examples and the tools of economic analysis, the article will demonstrate how a multiplicity
of conviction categories and derivative distribution of punishment could allow for a better realisation of
the deterrence goals underlying the criminal justice system.
The article will proceed as follows: Part A will introduce the prospect of turning the standard of proof
into a negotiable feature of trial, and the derivative non-binary conceptualisation of guilt and punishment
in the context of plea bargaining. Part B will discuss the economic viability of shifting to this evidentiary
regime. It will identify the situations in which plea bargains, involving concessions in the standard of
proof in return for mitigation of punishment upon conviction, are likely to emerge between the prosecu-
tion and defence. Part C will turn to the trial arena, and formulate the deterrence-based case for deserting
the binary decision-making regime in favour of correlating the size of punishment with a multiplicity of
proof levels and conviction categories. In Part D the article will contend with some of the potential objec-
tions that can be levelled against basing convicting upon standards of proof lower than BARD, and
against the shift to a non-binary conceptualisation of guilt and punishment. This will be followed by a
brief conclusion.
Part A. Multiple conviction categories through plea bargaining
Plea bargains have come to dominate the criminal justice system.
1
Many features of the criminal process
have turned into default rules and ‘bargaining chips’in the hands of the defence (King, 1999: 113–114).
This includes the Fifth Amendment right against self-incrimination (DeVaney, 2001: 942), the Sixth
Amendment right to legal counsel and a jury trial (Mazzone, 2003: 801) and the right to appeal
(Krent, 2001: 1692). In exchange for deviation from, and waiver of, these rights, the defendant may
receive various concessions from the prosecution, including mitigation in the charge or the sentence.
This allows for the efficient resolution of the criminal case load. It enables both the prosecution and
defence to cut back on the costs of trial. If criminal convictions are no longer construed in binary
terms, additional features of the criminal trial –most notably the standard of proof –can be turned
into negotiable default rules, enhancing the benefit-generating capacity of plea bargaining for both sides.
The BARD standard of proof is currently regarded as a non-negotiable evidentiary safeguard in crim-
inal trials.
2
Placing the burden of proving all elements of guilt beyond a reasonable doubt on the pros-
ecution, as a prerequisite to conviction, dates back to the eighteenth century (Antkowiak, 2005: 560)
and constitutes a ‘bedrock’principle of evidence law and criminal procedure (Minhas, 2003: 109).
The US Supreme Court explicitly adopted this standard—as a constitutional requirement—in the 1970
case of In re Winship
3
(Gabriel and Barski, 1995: 73–74). The Court held that the due process clauses
of the Fifth and Fourteenth Amendments require the protection of the accused against conviction
‘except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged’. Justice Frankfurter viewed the reasonable doubt rule as playing ‘a vital role in
the American scheme of criminal procedure’(In re Winship, 1970).
Given that the standard of proof in criminal proceedings is considered a non-negotiable and fixed evi-
dentiary feature of trial, the prosecution and defence are limited to two polar options in the resolution of
1. Resnik (2005) describes a similar shift from adjudication to negotiation in the civil procedural landscape.
2. The United States Supreme Court has repeatedly held that the due process clause prohibits the conviction of a defendant except
upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which she is charged. See, e.g., United
States vGaudin 1995, 515 U.S. 506 at 509–510.
Fisher 261
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