Convicting with Reasonable Doubt: An Evidentiary Theory of Criminal Law

By Teichman, Doron | Notre Dame Law Review, December 2017 | Go to article overview

Convicting with Reasonable Doubt: An Evidentiary Theory of Criminal Law


Teichman, Doron, Notre Dame Law Review


INTRODUCTION                                                         758    I. BACKGROUND: THEORIES OF PUNISHMENT AND ERROR  TRADEOFFS        761       A. Theories of Punishment                                      761       B. Error Tradeoffs and the Criminal Process                    765   II. A THEORY OF EVIDENTIARY UNCERTAINTY AND CRIMINAL LIABILITY     771       A. Evidentiary Graded Criminal Sanctions                       771       B. Evidentiary Grading Through the Substantive Rules of          Criminal Law                                                776       C. The Problem of Intentionally Punishing the Innocent         780  III. EVIDENTIARY GRADATION OF SANCTIONS: APPLICATIONS               783       A. The. Objective Elements of the Crime                        783       B. States of Mind                                              791       C. The Interaction Between the Objective and the Subjective          Elements of the Crime                                       798   IV. UNDERSTANDING THE EVIDENTIARY STRUCTURE OF CRIMINAL LAW        800       A. The Psychological Perspective: Relaxing the Burden of          Proof While Adhering to a Rigid Moral Constraint            801       B. The Consequentialist Perspective: Tailoring the Burden of          Proof to Fit the Context                                    803       C. The Expressive Perspective: Sustaining the Social Meaning          of a Conviction                                             805 CONCLUSION                                                           808 

INTRODUCTION

One of the greatest tenets of criminal law is that an individual should be held responsible if and only if his guilt is proven beyond a reasonable doubt. Whether this point is phrased in Blackstone's formulation that it is "better that ten guilty persons escape, than that one innocent suffer" (1) or Benjamin Franklin's more demanding one that "it is better a hundred guilty persons should escape than one innocent person should suffer" (2) or Maimonides's even tougher standard that "it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent man to death once in a way," (3) the core idea is the same, which is that the legal system should strive to minimize the conviction of innocent defendants by taking all feasible precautions against false convictions. (4)

This Article argues that the legal system routinely relaxes the burden of proof in criminal adjudication by adjusting the substantive content of criminal law. More specifically, it suggests that legal prohibitions are designed, among other things, to create a correlation between the severity of the sanction and the degree of certainty that the defendant deserves to be punished. According to this framework, defendants whose guilt is proven to a high level of certainty receive the full penalty they deserve, while defendants whose guilt is proven to a lower degree of certainty are convicted of specially crafted offenses that de facto reduce the evidentiary threshold for a conviction. Given the elevated risk of error associated with these offenses, the punishments attached to them are discounted. The overall picture is one in which penalties are distributed among defendants in proportion to the probability that they deserve to be punished, even when their guilt has not been proven beyond a reasonable doubt.

The bulk of the arguments presented in this Article are positive in nature. They delineate significant doctrinal domains within criminal law that are geared towards dealing with defendants whose culpability has been proven to a high degree of certainty but not beyond a reasonable doubt. More specifically, it will be shown that doctrines relating to both the objective and subjective elements of the crime align punishments with the adjudicator's confidence of wrongdoing. In this regard, the presented analytical framework sheds new light on core questions of criminal law. …

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