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February 1, 2023

"Criminal Proof: Fixed or Flexible?"

The title of this post is the title of this new paper authored by Lewis Ross and now available via SSRN.  Here is its abstract:

Should we use the same standard of proof to adjudicate guilt for murder and petty theft?  Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law.  This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes.  I reject consequentialist arguments for a radically flexible standard of proof, instead defending a modestly flexible approach on non-consequentialist grounds.  The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments.  This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society.

February 1, 2023 at 05:49 PM | Permalink


Part of the problem in discussing burden of proof is that we are dealing with two different things: 1) the standard that the jury should use in assessing evidence; and 2) the standard that appellate courts use in determining submissibility. Using proof beyond a reasonable doubt in both contexts leads to a lot of unneeded lack of clarity in the discussion.

At they jury level, there is an argument for requiring the level of certainty to go up as the consequences increase. But I think most jurors understand that regardless of what we tell them.

At the appellate level, we are somewhat trapped by our own language. The desire is to avoid suggesting that defendant has the legal obligation to do anything. But the reality is that, once a court finds sufficient evidence to let the jury decide, the defendant then faces the choice of whether to put on evidence to rebut the State's evidence. And so what we are looking for is how much evidence do we need before we are willing to accept the inference (which is actually reasonable long before we reach the point of sufficiency) that a defendant is guilty and implicitly tell the defendant that he needs to rebut that inference if he wants an acquittal. But we do not want to use language suggesting that we are shifting the burden to the defendant to prove his innocence.

Posted by: tmm | Feb 1, 2023 6:13:10 PM

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