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July 10, 2014

"The Consequences of Error in Criminal Justice"

The title of this post is the title of this new article by Daniel Epps now available via SSRN. Here is the abstract:

"Better that ten guilty persons escape, than that one innocent suffer," William Blackstone’s famous adage, stands for a powerful idea in the criminal law: that it’s essential to minimize wrongly convicting the innocent even at the expense of overall accuracy. This "Blackstone principle" accords with most people’s deeply felt intuitions about criminal justice.

This Article challenges that fundamental precept. It begins by situating the Blackstone principle in the history of Anglo-American criminal law. That history shows how the principle gained prominence — most notably, because in Blackstone’s time and earlier death was the exclusive penalty for many crimes — but provides no compelling justification today.

The leading modern argument for the Blackstone principle is that false convictions are simply more costly than false acquittals. But that argument is incomplete, because it focuses myopically on the costs of errors in individual cases. A complete analysis of the Blackstone principle requires taking stock of its dynamic effects on the criminal justice system as a whole. The Article conducts that analysis, which reveals two significant but previously unrecognized draw-backs of the Blackstone principle: First, its benefits to innocent defendants are smaller than usually assumed; it could even make those defendants worse off. Second, the principle reinforces a widely recognized political process failure in criminal justice, hurting not just defendants but society as a whole. The magnitude of these effects is uncertain, but they could more than cancel out the principle’s putative benefits.

The Article then analyzes alternative justifications for the Blackstone principle. None is satisfactory; each rests on dubious empirical premises, logical errors, or controversial premises. There is thus no fully persuasive justification for the principle. Rejecting the Blackstone principle would require us to re-think — although not necessarily redesign — various aspects of our criminal-procedure system.

July 10, 2014 at 09:51 AM | Permalink


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The presumption of innocence is an unstated premise in each of the Bill of Rights.

I am a state public defender.

Posted by: Barry | Jul 10, 2014 10:52:55 AM

Article misses the real rebuttal of the Gladstone Doctrine.

1) The ten guilty guinsurance of the judge and prosecutor.are clients of the lawyer, of course. The author missed that conflict of interest. They were far more procedural in the old days. Any case that reached substance disgraced the lawyer. So, all criminals could get off after hiring a lawyer.

2) Letting 10 criminals loose is a catastrophe, with $ millions in damages.

3) Errors should be addressed in professional liability, and from the assets or insurance of the judge and prosecutor, not from the innocent taxpayer.

Posted by: Supremacy Claus | Jul 10, 2014 1:33:19 PM

3) Errors should be addressed in professional liability, and from the assets or insurance of the judge and prosecutor, not from the innocent taxpayer.
by Supremacy Claus on 10 July 2014 Thursday 13:33:19

SC makes a good point ; though an effective legal preemptive strike against rogue judges and prosecutors seems doable to STOP an intentional miscarriage before it occurs.

In Nineteen Sixty-Two I consumed a beer in a motor vehicle .
Fast forward several months ...
In Nineteen Sixty-Three it became illegal to consume beer in a motor vehicle .

The judge who heard the case repeatedly and intentionally had been redefining statutory definitions to create punishable "offenses".

Today , is the fifty-first anniversary of the effective date , 07-11-1963 , of Amended House Bill No. 88 (130v1000) of Ohio's 104th General Assembly ; which amended existing legislation to forbid consuming beer in a motor vehicle .

The rogue judge died three days later on Bastille Day , a fitting date.

Posted by: Docile Jim Brady 43209 | Jul 11, 2014 4:10:19 AM

Is this the omlet-broken eggs doctrine we hear here from time to time in different guises? Does its author hang out with Bill Otis?

It only withstands scrutiny to the extent the 10 presumed guilty defendants are evil, dangerous actors. My intuition is that more than one of every ten citizens who end up caving to the powerful forces arrayed against them are somehow less threatening to society than academics and former prosecutors who pedal the broken-egg counter argument to Blackstone would have us believe.

Posted by: John K | Jul 12, 2014 8:38:58 AM

John K. Can you agree that those who commit one of the 8 FBI Index felonies may be considered guilty?

Willful homicide

Forcible rape



Aggravated assault

Larceny over $50

Motor vehicle theft


Posted by: Supremacy Claus | Jul 13, 2014 9:56:49 AM

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