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January 6, 2022

"Error Aversions and Due Process"

The title of this post is the title of this notable new paper now on SSRN authored by Brandon Garrett and Gregory Mitchell. Here is its abstract:

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty.  This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions.  While most legal elites share Blackstone’s view, the citizen-jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions.

Across multiple national surveys, sampling more than 10,000 people, we find that a majority of Americans views false acquittals and false convictions to be errors of equal magnitude.  Contrary to Blackstone, most people are unwilling to err on the side of letting the guilty go free to avoid convicting the innocent.  Indeed, a sizeable minority views false acquittals as worse than false convictions; this group is willing to convict multiple innocent persons to avoid letting one guilty person go free.  These value differences translate into behavioral differences: we show in multiple studies that jury-eligible adults who reject Blackstone’s view are more accepting of prosecution evidence and more conviction prone than the minority of potential jurors who agrees with Blackstone.

These findings have important implications for our understanding of due process and criminal justice policy.  Due process currently depends on jurors faithfully following instructions on the burden of proof, but many jurors are not disposed to hold the state to its high burden.  Courts should do away with the fiction that the reasonable doubt standard guarantees due process and consider protections that do not depend on jurors honoring the law’s preference for false acquittals, such as more stringent pre-trial screening of criminal cases and stricter limits on prosecution evidence.  Furthermore, the fact that many people place crime control on par with, or above, the need to avoid wrongful convictions helps explain divisions in public opinion on important policy questions such as bail and sentencing reform.  Criminal justice proposals that emphasize deontic concerns without addressing consequentialist concerns are unlikely to garner widespread support.

January 6, 2022 at 03:36 PM | Permalink


I draw a different conclusion about the remedy. Us lawyers tend to speak in legal jargon that does not fit well with the way non-lawyers think. Anybody who has ever done voir dire in a criminal case understands that jurors can express their ability to follow the instructions, but jurors interpret the language of the instructions differently than lawyers do (as shown by the questions that we get during deliberations asking about things that the attorneys think are adequately covered in the instructions).

The bottom line is that, however we explain it to the jury, the distinction between various levels of proof -- preponderance of the evidence, clear and convincing, and beyond a reasonable doubt -- are not going to make much sense to the jury. At the end of the day, the only issue is whether they think that the defendant is guilty (criminal) or at fault (civil). We can say all we want about the burden being on the State, but, at some point, the evidence becomes strong enough that the jury is going to convict unless the defense gives them a reason to doubt that evidence.

The best place to check these tendencies is at the appellate level. But the Jackson standard of sufficiency of the evidence for criminal cases sounds a lot like the civil standard for sufficient evidence. It would be beneficial if we stopped using the legal fiction that the burden never shifts and analyze cases by looking at if the evidence is such that the burden should shift. In other words, what might be enough to allow the burden to shift in a civil case is not enough in a criminal case even though a reasonable juror could find that an element in the instruction is true. A perfect example of how this implicitly occurs in current law is in "joint possession" cases. It takes very little evidence for a reasonable person to infer that either or both people who are in joint possession of an item knowingly possessed the items, but appellate courts require more. The opinions by falling back on the reasonable inference language fail to do an adequate job of explaining why the inference that most people would make is unreasonable. If we simply said that, because this is a criminal case, it takes something more than a reasonable inference before we are willing to allow a jury convict, perhaps similar logic might apply to other types of cases.

Posted by: tmm | Jan 7, 2022 10:11:21 AM

Did anyone see how utterly ignorant Sonia sotomayor is? Blood borne virus. “Even though no one else ever saw theme.

Posted by: Funny | Jan 7, 2022 12:55:02 PM

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