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Can the Reasonable Doubt Standard be Justified? A Reconstructed Dialogue

Published online by Cambridge University Press:  03 August 2018

Federico Picinali
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Abstract

The justification of the reasonable doubt standard has been hotly debated in recent years. Deontologists—including retributivists—have generally defended the standard, whilst consequentialists have generally argued for a lower standard of proof. Captivating arguments have been produced from both sides. The paper narrates this debate through a dialogue between ideal representatives of these different camps. In doing so, it recasts—and, hopefully, improves—some of the arguments presented thus far. Then, the paper introduces a new participant in the debate, the Intermediary. The Intermediary is under the impression that the debate has reached an impasse, due to fundamental moral disagreements between the parties involved. Therefore, she presents them with a challenge: to find a common ground that allows the parties to justify to each other the choice of a standard of proof, notwithstanding their different basic moral commitments. The Intermediary takes up this challenge, and provides a justification for the reasonable doubt standard based on the value of respecting defendants and on rules of instrumental rationality.

Keywords

Reasonable doubtstandard of proofcriminal trialevidence lawrespectinstrumental rationality
Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 31 , Issue 2 , August 2018 , pp. 365 - 402
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2018 

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Footnotes

I am grateful to Jules Holroyd, Alec Walen, Youngjae Lee, and Joseph Spooner for their helpful comments and criticisms. I am especially grateful to Mike Redmayne. Our original plan was to write a paper together on this topic. We did manage to conduct some joint research, which played an important role in the development of my ideas. Needless to say, this paper would be of much higher quality if Mike were still here.

References

1. In England, the Crown Court Compendium advises judges to instruct jurors by using the “being sure of guilt” standard. However, it clarifies that proof beyond reasonable doubt “means the same thing as being sure.” See Judicial College, “The Crown Court Compendium. Part I: Jury and Trial Management and Summing Up”, online (May 2016) at 5-1, https://www.judiciary.gov.uk/wp-content/uploads/2016/05/crown-court-compendium-part-i-jury-and-trial-management-and-summing-up.pdf.

2. See Jeffrey Reiman’s contribution in Reiman, Jeffrey & van den Haag, Ernest [Reiman], “On the Common Saying that it is Better that Ten Guilty Persons Escape than that One Innocent Suffer: Pro and Con” (1990) 7:2 Social Philosophy & Policy 226;Google Scholar Kitai, Rinat, “Protecting the Guilty” (2003) 6:2 Buff Crim L Rev 1163;Google Scholar Stein, Alex, Foundations of Evidence Law (Oxford University Press, 2005) at 172–213;CrossRefGoogle Scholar Duff, Antony et al, The Trial on Trial: Volume Three: Towards a Normative Theory of the Criminal Trial (Hart, 2007) at 17–54;Google Scholar Lippke, Richard L, “Punishing the Guilty, not Punishing the Innocent” (2010) 7:4 J Moral Philosophy 462;Google Scholar Lee, Youngjae, “Deontology, Political Morality, and the State” (2011) 8:2 Ohio St Crim L 385;Google Scholar Walen, Alec, “Proof Beyond a Reasonable Doubt: A Balanced Retributive Account” (2015) 76:2 La L Rev 355.Google Scholar

3. See Wertheimer, Alan, “Punishing the Innocent—Unintentionally” (1977) 20 Inquiry 45;Google Scholar Ernest van den Haag’s contribution in Reiman, supra note 2; Allen, Ronald J & Laudan, Larry, “Deadly Dilemmas” (2008) 41 Tex Tech L Rev 65;Google Scholar Laudan, Larry, “The Rules of Trial, Political Morality, and the Costs of Error: Or, Is Proof Beyond a Reasonable Doubt Doing More Harm than Good?” in Green, Leslie & Leiter, Brian, eds, Oxford Studies in Philosophy of Law (Oxford University Press, 2011) 195;CrossRefGoogle Scholar Laudan, Larry, The Law’s Flaws: Rethinking Trial and Errors? (College Publications, 2016) at 88–109;Google Scholar Epps, Daniel, “The Consequences of Error in Criminal Justice” (2015) 128 Harv L Rev 1065;Google Scholar Epps, Daniel, “One Last Word on the Blackstone Principle” (2016) 102 Va L Rev 34.Google Scholar

4. In particular, Walen, supra note 2; Laudan, “The Rules of Trial”, supra note 3; and Laudan, The Law’s Flaws, supra note 3.

5. Consider the role of public reason as a standard of evaluation of moral and political principles in pluralistic societies in Rawls, John, “Lecture VI. The Idea of Public Reason” in Political Liberalism (Columbia University Press, 2005) 212 andGoogle Scholar Quong, Jonathan, Liberalism Without Perfection (Oxford University Press, 2011) at 256–89.Google Scholar

6. Inevitably, I had to make a selection, but the reader will find in the footnotes references to works and arguments that are not directly dealt with in the dialogue. A previous comprehensive account of the debate is offered in Walen, supra note 2.

7. Blackstone, William, Commentaries on the Laws of England, vol. 4 (University of Chicago Press, 1979) at 352.Google Scholar

8. Of course, the actual relative frequency of trial outcomes depends also on factors other than the standard of proof. These include the base rates concerning guilty and innocent individuals who go to trial, the quality of the evidence available in such trials, and the skills of the fact finders. See Laudan, Larry, Truth, Error and Criminal Law: An Essay in Legal Epistemology (Cambridge University Press, 2006) at 73CrossRefGoogle Scholar; Hamer, David, “Probabilistic Standards of Proof, Their Complements and the Errors that are Expected to Flow from Them” (2004) 1:1 U New England LJ 71 at 87–96;Google Scholar Dekay, Michael L, “The Difference Between Blackstone-Like Error Ratios and Probabilistic Standards of Proof” (1996) 21 Law & Soc Inquiry 95.Google Scholar

9. A justification following approximately this pattern is given by Justice Harlan in his concurring opinion in In re Winship [1970] 397 US 358 at 371-72.

10. This is not to suggest that Blackstone’s maxim may not be, or has not been, used to provide non-consequentialist justifications of the standard. As used in this and the following paragraph, though, the maxim is an element of a consequentialist argument.

11. Cf Laudan, “The Rules of Trial”, supra note 3 at 197. For a discussion on the quantification of the reasonable doubt standard see Tillers, Peter & Gottfried, Jonathan, “Case comment—United States v. Copeland, 369 F. Supp. 2d 275 (E.D.N.Y. 2005): A Collateral Attack on the Legal Maxim That Proof Beyond A Reasonable Doubt Is Unquantifiable?” (2006) 5:2 Law, Probability & Risk 135.Google Scholar

12. Notably, the full version of the model would require taking into account also the values of the possible true outcomes of the trial. Doing so, however, would hardly undermine the Consequentialist’s conclusion that we should lower the standard of proof. Consider also that Laudan, “The Rules of Trial”, supra note 3 at 206-07 (the work that I most heavily rely on in formulating the Consequentialist’s argument) uses the simplified version of the model, i.e., that including only the values of the false outcomes. In light of these considerations, and especially in order to keep things as simple as possible, I decided to present the simplified version. Some commentators, like Walen in supra note 2 at 407-08, suggest that there may be reasons, besides simplicity, for leaving the values of the true outcomes out of the decision-theoretic formula. An argument in favour of the comprehensive formula, instead, is offered in Dekay, supra note 8 at 115-17. For an extensive treatment of the decision-theoretic model see Kaplan, John, “Decision Theory and the Factfinding Process” (1968) 20:6 Stan L Rev 1065;Google Scholar Tribe, Laurence H, “Trial by Mathematics: Precision and Ritual in the Legal Process” (1971) 84:6 Harv L Rev 1329 at 1378ff;Google Scholar Lillquist, Erik, “Recasting Reasonable Doubt: Decision Theory and the Virtues of Variability” (2002) 36:1 UC Davis L Rev 85;Google Scholar Hamer, supra note 8 at 81-86; Laudan, Larry & Saunders, Harry D, “Rethinking the Criminal Standard of Proof: Seeking Consensus about the Utilities of Trial Outcomes” (2009) 7:2 Int l Commentary on Evidence 1;Google Scholar Picinali, Federico, “Two Meanings of ‘Reasonableness’: Dispelling the ‘Floating’ Reasonable Doubt” (2013) 76:5 Mod L Rev 845;Google Scholar Walen, supra note 2 at 400ff; Nance, Dale A, The Burdens of Proof: Discriminatory Power, Weight of Evidence, and Tenacity of Belief (Cambridge University Press, 2016) at 21–42.CrossRefGoogle Scholar

13. According to the simplified version of the formula, if we express the probability of guilt with p, the probability of innocence with 1 – p, and the utility measurement of any outcome with U, the adjudicator should decide to convict the defendant only when the following inequality is verified: (1 – p)Uci ≥ pUag—where ‘ci’ stands for ‘convicting the innocent’ and ‘ag’ stands for ‘acquitting the guilty’. In other words, the adjudicator should convict when the expected utility of conviction is equal to, or higher than, the expected utility of acquittal. Thus, given a utility measurement for each of the two false outcomes the probability of guilt that must be either met or surpassed for a conviction to be warranted is that rendering the expected utility of convicting equal to the expected utility of acquitting. In other words, it is that probability which makes the decision-maker indifferent between the two courses of action. This threshold may easily be derived from the above inequality. Indeed, leaving the intermediate workings aside, it is p* = 1/[1 + Uag/Uci]. If we use the values in Blackstone’s formula to express the utility of Uag and Uci—thus assigning ˗1 to the former and ˗10 to the latter—the standard of proof p* is .909, which we may round down to .9 for the sake of simplicity. See the previous note—and the works cited therein—for further details, especially on the full version of the decision-theoretic model. See Dekay, supra note 8 for a criticism of the interpretation of Blackstone’s maxim according to which the maxim provides the relative utilities of the erroneous outcomes.

14. Laudan, “The Rules of Trial”, supra note 3 at 202 [italics added]. As regards the added words within square brackets see infra note 18.

15. Ibid at 204.

16. Epps, “The Consequences of Error”, supra note 3 at 1090. Epps advances a different consequentialist argument for lowering the standard of proof. His argument does not focus on the costs of the false outcomes, but on the effects that the reliance on Blackstone’s formula produces on the behaviour of actors in the criminal justice system, often to the detriment of innocent defendants. For criticisms to Epps’ argument and for a rejoinder from Epps, see Epps, “One Last Word”, supra note 3.

17. Epps, “The Consequences of Error”, supra note 3 at 1090-92; Walen, supra note 2 at 415-16; especially, Gardiner, Georgi, “In Defence of Reasonable Doubt” (2017) 34:2 J Applied Philosophy 221.Google Scholar Consider also Risinger, Michael D, “Tragic Consequences of Deadly Dilemmas: A Response to Allen and Laudan” (2010) 40:3 Seton Hall L Rev 991 at 1014ff.Google Scholar I am not going to address the issue of the accuracy of Laudan’s calculations, that is, the calculations on which the Consequentialist relies. This is, in part, because such issue has already been dealt with convincingly in the works just mentioned. However, the main reason for leaving this issue aside is that my aim here is to assess possible in-principle arguments against Laudan’s consequentialist attack on the reasonable doubt standard. This aim is made explicit and clarified in the first contribution by the Deontologist.

18. Laudan’s calculations of the relative value of the two false outcomes of the trial are based on the mistaken assumption that individuals who are incarcerated do not commit crimes. As a result of overlooking the phenomenon of prison crime, Laudan underestimates the cost of convictions, and of false convictions in particular. (See Gardiner, supra note 17 at 232-33). For a comprehensive critical assessment of Laudan’s calculations see the works cited in supra note 17.

19. Indeed, whilst criticising some of Laudan’s calculations, Alec Walen nonetheless concludes that someone adopting Laudan’s consequentialist approach should defend a standard considerably lower than proof beyond a reasonable doubt. Walen, supra note 2 at 411-16.

20. See Picinali, supra note 12; Lillquist, supra note 12. In Picinali, supra note 12 I have presented a descriptive argument to the effect that the reasonable doubt standard is a fixed, rather than flexible, standard of proof and that, therefore, it is not compatible with the decision-theoretic model—which, as explained by the Consequentialist, requires that the standard of proof vary depending on the circumstances of the case. Here the Consequentialist agrees with this understanding of the reasonable doubt standard and, as a result, criticises this standard for being incompatible with her model.

21. See the works cited in note 17 above.

22. For a critical discussion of this argument see Walen, supra note 2 at 378-81. For a discussion of the moral principle mentioned in the penultimate sentence of the Deontologist’s contribution see, in particular, Tadros, Victor, The Ends of Harm: The Moral Foundations of Criminal Law (Oxford University Press, 2011) at 113–38.CrossRefGoogle Scholar But see Lazar, Seth, “In Dubious Battle: Uncertainty and the Ethics of Killing” (2018) 175 Philos Stud 859 at 863,Google Scholar stating that most deontologists believe “that intentionally killing the innocent is sometimes permissible, if the good achieved thereby is great enough”.

23. On the distinction between identified (or identifiable) and statistical lives see Wertheimer, supra note 3 at 52ff, and Hare, Caspar, “Obligations to Merely Statistical People” (2012) 109 J Philosophy 378.Google Scholar

24. Wertheimer, supra note 3 at 53; Hare, supra note 23 at 379. For arguments denying the moral relevance of the distinction between statistical and identified (or identifiable) lives see Brock, Dan W, “Identified Versus Statistical Lives: Some Introductory Issues and Arguments” in Cohen, I Glenn, Daniels, Norman & Eyal, Nir, eds, Identified Versus Statistical Lives: An Interdisciplinary Perspective (Oxford University Press, 2015) 43;CrossRefGoogle Scholar Otsuka, Michael, “Risking Life and Limb: How to Discount Harms by Their Improbability” in Cohen, I Glenn, Daniels, Norman & Eyal, Nir, eds, Identified Versus Statistical Lives: An Interdisciplinary Perspective (Oxford University Press, 2015) 77.CrossRefGoogle Scholar

25. Possibly with the exception of cases where the adjudicator is in a position to tell that the most likely victim of a possible future crime committed by the defendant is the alleged victim of the crime charged.

26. Sinnott-Armstrong, Walter, “Consequentialism” (2015) Stanford Encyclopedia of Philosophy (website), online: https://plato.stanford.edu/entries/consequentialism/#WhiConActVsExpCon.Google Scholar Some philosophers, though, argue that consequentialism can incorporate an agent-relative perspective. See, for instance, Portmore, Douglas W, “Position-Relative Consequentialism, Agent-Centered Options, and Supererogation” (2003) 113:2 Ethics 303.Google Scholar

27. With the term “certainty” I refer to a probability of 1 that the relevant statement is true.

28. See Hamer, David “A Dynamic Reconstruction of the Presumption of Innocence” (2011) 31:2 Oxford J Legal Stud 417 at 422–24;Google Scholar Tribe, supra note 12 at 1374; Kitai, supra note 2 at 1164.

29. See Morano, Anthony A, “A Reexamination of the Development of the Reasonable Doubt Rule” (1975) 55:3 BUL Rev 507 at 513-15; cfGoogle Scholar Whitman, James Q, The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (Yale University Press, 2008).Google Scholar

30. But see Kitai, supra note 2 at 1175-77, claiming that we owe our best efforts also to the guilty defendant.

31. Stein, supra note 2 at 172-78; Tribe, supra note 12 at 1374; see also Kitai, supra note 2.

32. See Laudan, “The Rules of Trial”, supra note 3 at 214-15; Laudan, supra note 8 at 51-54, 79-81. One may corroborate this claim by referring to empirical studies showing that mock jurors associate the reasonable doubt standard with different probability thresholds. (See Lillquist, supra note 12 at 111-17). On the definition of the reasonable doubt standard see also Picinali, supra note 12 and Picinali, Federico, “The Threshold Lies in the Method: Instructing Jurors About Reasoning Beyond Reasonable Doubt” (2015) 19:3 Int’l J Evidence Proof 139.Google Scholar

33. Cf Hamer, supra note 28 at 422-24.

34. A similar objection is raised in Laudan, “The Rules of Trial”, supra note 3 at 215ff. However—as the contribution from the Intermediary will make clear—the Consequentialist is not immune from a parallel criticism: lowering the standard of proof may not be the most effective means to achieving the Consequentialist’s goal of securing more true convictions.

35. Cf ibid at 216.

36. The Deontologist, though, does not want to abolish the criminal justice system. Thus, the Deontologist is willing to put some effort in order to protect citizens from crime, including the crimes committed by the falsely acquitted.

37. As we will see later, the Intermediary will come back to this point in their contribution.

38. See Williams, Bernard, “A Critique of Utilitarianism” in Smart, JJC & Williams, Bernard, Utilitarianism: For and Against (Cambridge University Press, 1973) 77Google Scholar at 109, stating that “it is not easy to think of any moral outlook which could get along without making some use of [the distinction]”. However, Williams is quick to remark that the distinction is “unclear, both in itself and in its moral applications, and the unclarities are of a kind which precisely cause it to give way when, in very difficult cases, weight has to be put on it.”

39. Cf Hosein, Adam Omar, “Doing, Allowing and the State” (2014) 33:2 Law & Phil 235 at 243–45;Google Scholar Lee, supra note 2 at 387-93, arguing that the two distinctions are not equivalent and discussing the implications that this difference has for the current debate.

40. Hosein, supra note 39 at 238 [italics in the original].

41. Cf Walen, supra note 2 at 390-94.

42. After all, as we saw earlier according to the Deontologist another contributing factor is the moral intuition concerning the distinction between statistical and identified lives.

43. One may object, though, that pre-trial procedures—which involve, e.g., police interviews, the gathering of trace evidence, identification procedures—occur “in the shadow of the trial”, such that if the standard of proof is relaxed, the investigative authorities may relax these procedures as well—with the possible detrimental consequences that this may have on the innocent. After all, the quantity and the quality of the evidence needed to achieve a conviction have become lower. This is a fair objection to the Consequentialist’s claim. However, the Consequentialist may reply that the presence of standards governing pre-trial procedures and the implementation of these standards by the court may limit the effect that the lowering of the standard of proof may produce on the behaviour of investigative authorities.

44. Although the distinction between doing and allowing harm is not characteristically part of the consequentialist’s toolkit. See McMahan, Jeff, “Intention, Permissibility, Terrorism, and War” (2009) 23 Philosophical Perspectives 345 at 352,Google Scholar describing the distinction between doing and allowing and the distinction between intending an effect and bringing it about knowingly but unintentionally as “the mutually reinforcing foundations, or twin pillars, of traditional nonconsequentialism.”

45. Cf Holmes, Stephen & Sunstein, Cass R, The Cost of Rights: Why Liberty Depends on Taxes (WW Norton & Company, 1999) at 77–84.Google Scholar

46. See Kitai, supra note 2; Dworkin, Ronald, A Matter of Principle (Clarendon Press, 1985)Google Scholar ch 3, and Lee, supra note 2, in particular at 392.

47. See Kitai, supra note 2; Reiman, supra note 2 at 237-40. For further criticisms of these arguments see Epps 1138-40, Walen, supra note 2 at 386-90, and Allen & Laudan, supra note 3 at 81ff.

48. Cf Sunstein, Cass R & Vermeule, Adrian, “Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs” (2005) 58:3 Stan L Rev 703 at 724–26.Google Scholar

49. Cf Walen, supra note 2 at 430-32.

50. In fact, in some cases—i.e., when a crime has indeed been committed—convicting the innocent also involves letting the guilty go free.

51. Cf Hosein, supra note 39 at 246-53.

52. Ashworth, Andrew & Horder, Jeremy, Principles of Criminal Law, 7th ed (Oxford University Press, 2013) at 108-13.CrossRefGoogle Scholar

53. But see ibid at 104, 110. See also Alec Walen, “The Right to Cause Harm as an Alternative to Being Sacrificed for Others; An Exploration of Agent-Rights with a Special Focus on Intervening Agency” San Diego L Rev [forthcoming]; Alexander, Larry & Ferzan, Kimberly Kessler, Reflections on Crime and Culpability: Problems and Puzzles, Chapter 2 (Cambridge University Press) [forthcoming in November 2018],Google Scholar suggesting that an agent may not be held responsible for an action when not engaging in that action because of the foreseen risk of a downstream intervening act of a third party would amount to an unwarranted restriction of the agent’s autonomy, in particular, to self-sacrifice.

54. Alexander, Larry & Ferzan, Kimberly Kessler, Crime and Culpability: A Theory of Criminal Law (Cambridge University Press, 2009) at 7–10.CrossRefGoogle Scholar See also White, Mark D, ed, Retributivism: Essays on Theory and Policy (Oxford University Press, 2011) 1 ff.CrossRefGoogle Scholar

55. Reiman, supra note 2 at 231; Walen, supra note 2 at 426ff. In crafting the position of the Retributivist, I have drawn mainly from Walen’s theory. However—to the extent that it would not create inconsistencies with Walen’s key contributions—I enriched the Retributivist’s position with claims made by other authors, including Reiman. This was done with the aim of producing a comprehensive account of the retributivist views on the matter.

56. This is a point of disagreement between Walen and Reiman, the latter claiming that the trade-off should only involve what he calls the “direct relative impact” of the two false outcomes (Reiman, supra note 2 at 232). As to Walen’s position on this point, see the remaining of the Retributivist’s contribution.

57. A retributivist justification for this claim not mentioned in the text—which only applies to cases in which a crime has indeed been committed—is that in the case of a false conviction, two individuals do not get what they deserve—that is, the innocent who is convicted and the guilty who is at large. In the case of a false acquittal, instead, only the guilty does not get what they deserve. This would show that the intrinsic evil of a false conviction is worse—possibly, substantially worse—than the intrinsic evil of a false acquittal. Cf Lippke, supra note 2 at 467.

58. For a possible criticism of this claim see infra note 59.

59. The argument just presented is developed in Reiman, supra note 2 at 232-34. One may contend that this argument only works if proportionality is understood as “cardinal” rather than “ordinal.” Cardinal proportionality would demand that if a crime has value n, punishment must have value n as well. Ordinal proportionality, instead, would demand that given two crimes with values a and b, respectively, a punishment for the first crime with value c, and a punishment for the second crime with value d, the following equality obtains: a/c = b/d. Notably, the value of a crime reflects the harm or wrong that it produces as well as the culpability of the wrongdoer. The value of punishment reflects, instead, its harshness and its duration. The problem with the argument from proportionality just presented in the text is that a retributivist need not understand proportionality as cardinal—indeed, few retributivists probably understand it in this way. This is a reasonable objection to make, but I leave its discussion to those who—like Reiman—advance such an argument. For a discussion of proportionality within the context of retributive justice see Walen, Alec, “Retributive Justice” (2014) (2015) Stanford Encyclopedia of Philosophy (website), online: https://plato.stanford.edu/entries/justice-retributive/.Google Scholar

60. See Reiman, supra note 2 at 232-34.

61. Walen, supra note 2 at 431.

62. See Reiman, supra note 2 at 233-34.

63. See Walen, supra note 2 at 431-34.

64. See the commentary and works cited in supra notes 17, 18, 19.

65. See Walen, supra note 2 at 426-27. Cf Alexander and Ferzan’s notion of “moderate retributivism”, supra note 54 at 7-10; Husak, Douglas, “Why Punishing the Deserving?” in The Philosophy of Criminal Law: Selected Essays (Oxford University Press, 2010) 393 at 394–99.CrossRefGoogle Scholar According to these views desert is a necessary and sufficient condition for punishment, but it does not mandate punishment. Once desert is established, the consideration of the consequences of punishment will determine whether punishment should be inflicted or not. But see Husak, Douglas, “Retributivism In Extremis” (2013) 32:1 Law & Phil 3 at 15-16,Google Scholar countenancing the intentional punishment of the innocent

66. Walen, supra note 2 at 427.

67. Ibid.

68. See Walen, supra note 2 at 430-34. At times Walen seems to accept that all detrimental consequences of punishment should be factored into the trade-off. Other times he seems to refer exclusively to the detrimental consequences of punishing the innocent.

69. See Husak, “Why Punishing the Deserving”, supra note 65 at 394-99.

70. Walen, supra note 2 at 434.

71. To be true, the number of false convictions is inaccessible, which obviously casts a doubt on the Consequentialist’s objection. At best one can make an estimate of this number. A good starting point for this estimate are the available data on exonerations. The obvious reference is the Innocence Project (website), online: http://www.innocenceproject.org/dna-exonerations-in-the-united-states/, providing data on DNA exonerations. More comprehensive data—in particular, data including non-DNA exonerations—are provided by the National Registry of Exonerations (website), online: http://www.law.umich.edu/special/exoneration/Pages/about.aspx. Both sets of data refer to the US only. See also Risinger, Michael D, “Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate” (2007) 97:3 J Crim L & Criminology 761,Google Scholar which calculates the wrongful conviction rate for capital rape-murders in the 1980s in the US, relying on data concerning DNA exonerations; Laudan, The Law’s Flaws, supra note 3 at 50-56.

72. Of course, whilst the frequency of trial outcomes depends on the standard of proof—thus, on the value attributions underlying the choice of the standard—it also depends on other factors. See note 8 above.

73. For an overview of the causes of false convictions, see the Innocence Project (website), online: http://www.innocenceproject.org/#causes.

74. See the empirical studies discussed in Lillquist, supra note 12 at 111-17.

75. See above the third and the sixth contribution by the Deontologist.

76. To be fair, this is something that Walen himself does to a certain extent when criticising Laudan’s calculations. See Walen, supra note 2, in particular at 411-16. However, Walen’s main criticism to Laudan seems based on moral intuitions. He writes at 424: “the problem with this consequentialist response is not conceptual or formal, it is substantive and moral. The problem is that punishing without using guilt as a robust precondition for punishment blurs important moral lines. Moreover, blurring those lines cuts short moral inquiry in a way that is inconsistent with showing respect for the rights and dignity of individuals”. Without further elaboration such a criticism may leave the consequentialist indifferent, for a consequentialist simply may not recognise the moral lines that Walen assumes. Consider also the following footnote.

77. Walen attempts to do this when he criticises a justification of the reasonable doubt standard based on the communicative theory of punishment. According to this justification, the communicative content of punishment—in particular its condemnatory content—requires that the fact finder knows that the defendant is guilty. The proponents of this view argue that this knowledge may only be achieved by satisfying a standard as high as proof beyond a reasonable doubt. (See Duff et al, supra note 2 at 87-91). Walen’s strongest argument against this justification is that it does not provide a reason as to why the state may focus on the interests of the defendant, at the expense of the claims of those who want to be protected from being victimised by the falsely acquitted. (See Walen, supra note 2 at 398-99.) Of course, the reason provided by Walen’s retributive theory is the transistor-like function of desert, explained earlier. Walen’s criticism, though, does not go very far. The supporter of a communicative theory of punishment has a reason to disregard—or to value less—the claims at issue, the reason being precisely that condemnation requires knowledge and that knowledge requires proof beyond a reasonable doubt. Let’s assume that this argument and Walen’s are both internally coherent—i.e., that their conclusion follows from their premises. If so, neither is stronger than the other: both of them are simply irrelevant to—or of limited importance for—the alternative theory. Walen and the supporter of a communicative theory of punishment are talking past each other, because they don’t agree on the relevant premises. Consider also the previous footnote.

78. In particular, even if the Deontologist or the Retributivist were able to show that consequentialist calculations support the reasonable doubt standard in some cases—something that a retributivist like Walen in supra note 2 at 411-16 denies—they would have a hard time showing that these calculations support the adoption of a single standard of proof across the criminal law, without appealing to deontological ideals such as the proportionality between crime and punishment—as Walen himself does in supra note 2 at 436-37. On the question as to whether the standard of proof should vary depending on the circumstances of the case see note 20 above and the works cited therein.

79. The assumption is that the criminal justice system chiefly concerns the distribution of punishment and that punishment is for a crime. On this last point see the Intermediary’s response to the Deontologist, infra. If the crime became utterly irrelevant, in other words, if we did not aim at punishing the guilty, but instead sanctioned individuals indiscriminately, it would seem improper to speak in terms of punishment, thus of criminal justice. Needless to say, we would not aim at punishing the guilty if we did not consider it valuable.

80. The focus in the dialogue has been mainly on the false outcomes, but see note 12 above.

81. Of course, this sentence assumes that the value of trial outcomes is calculated also by reference to their consequences, with the limits that each normative framework may put to the assessment of these consequences. One may consider, though, that the choice of the standard of proof should also reflect considerations of practicality, for instance, that the standard of proof should be easily applicable by lay people. Admittedly, it seems that these considerations cannot be factored into the assessment of the relative value of trial outcomes. As we will see, the Intermediary’s justification of the reasonable doubt standard appeals to considerations other than the relative value of trial outcomes.

82. Of course, other factors influence the relative frequency of trial outcomes. See note 8 above.

83. For such an account see Dillon, Robin S, “Respect” (2018) Stanford Encyclopedia of Philosophy (website), online: https://plato.stanford.edu/entries/respect/.Google Scholar

84. The idea that persons are owed respect qua persons is central to Kant’s ethics. In a nutshell, according to Kant persons are owed respect because, as ends in themselves, they have dignity; to respect persons qua persons is to value them in themselves and to recognise that their dignity creates constraints on our treatment of them; in particular, it enjoins us never to treat them merely as means. See Kant, Immanuel, Groundwork of the Metaphysics of Morals, edited and translated by Gregor, Mary J, Immanuel Kant: Practical Philosophy (Cambridge University Press, 1996) 37;CrossRefGoogle Scholar and Kant, Immanuel, The Metaphysics of Morals, edited and translated by Gregor, Mary J, Immanuel Kant: Practical Philosophy (Cambridge University Press, 1996) 353.CrossRefGoogle Scholar

85. Having the opportunity to defend oneself is generally considered a fundamental right of the defendant. See the European Convention on Human Rights, article 6(3). See also Trechsel, Stefan, Human Rights in Criminal Proceedings (Oxford University Press, 2005) at 242–66;Google Scholar Roberts, Paul & Zuckerman, Adrian, Criminal Evidence, 2nd ed (Oxford University Press, 2010) at 21, 51–52;Google Scholar Duff et al, supra note 2 at 97-102, 199-224.

86. As this passage shows, the kind of respect involved in the Intermediary’s minimalist account of respect for the defendant on the part of the state is akin to what Feinberg called “observantia” and Darwall called “recognition respect”. Given a subject and an object, observantia consists in the subject seeing the object “as deserving of consideration in [its] own right”, as being “in a moral position to make claims against [the subject’s] conduct”, as having a “moral power” over the subject ( Feinberg, Joel, “Some Conjectures about the Concept of Respect” (1973) 4:2 J Social Philosophy 1 at 2).Google Scholar The similar notion of recognition respect is defined by Darwall as “a disposition to weigh appropriately in one’s deliberations some feature of the [object] in question and to act accordingly” ( Darwall, Stephen L, “Two Kinds of Respect” (1977) 88:1 Ethics 36 at 40).Google Scholar

87. Of course, there may be cases where a person lacks the capacity to contribute to a decision-making process involving their own agency and life, and yet such process must take place in order to protect the well-being of this person. Consider the case of a family having to decide whether one of its members suffering from severe dementia should be moved to a care home. Importantly, the decision involved in criminal trials does not respond to a similar pressing need to provide for the well-being of the defendant. Indeed, in some jurisdictions if the defendant is unfit to participate in the trial, the trial takes place with special forms that do not allow for a full adjudication of the defendant’s behaviour or for the consequences that may result from a normal trial.

88. See supra note 85. Giving defendants the opportunity to defend themselves seems particularly valuable to some deontologists. Consider those who subscribe to theories of the trial according to which the trial should offer defendants the opportunity to answer the charges against them and, if the charges are proved, to account for their criminal behaviour. (See Duff et al, supra note 2). Consider also those who subscribe to theories of punishment according to which punishment should aim at eliciting a response from the wrongdoer, e.g., in terms of repentance, reform and reconciliation. (See Duff, RA, Punishment, Communication, and Community (Oxford University Press, 2001) at 75–98.)Google Scholar For the trial and for punishment to be successful in engaging the defendant and the wrongdoer as these theories wish, it is crucial that the state gives defendants an opportunity to be heard and that it treats them as reasonable interlocutors, or, using these authors’ words, “with the respect that is due to them as responsible agents” and “as fellow members of a normative community” (Duff et al, supra note 2 at 138).

89. For a brief discussion of the claim that consequentialism can accommodate the idea of respect for persons—indeed, that it does so better than Kant’s moral theory—see Dillon, supra note 83 at 32-33.

90. Notably, it does not seem that similar considerations apply to civil cases—at least not in England and Wales. The concluding statements of a civil judgment are generally about the evidence presented in the case and/or the attitudes of the court vis-à-vis the parties and/or the action the court takes. They are not statements about the facts of the case—not to mention categorical attributions of responsibility. For instance—just to mention a few common expressions—a court may ‘agree’ with a party that the opponent’s claim should be struck out; it may ‘come to the conclusion’ that it has to ‘reject a claim’; it may state that ‘the claimants failed to establish their case’; it may be ‘satisfied, on the evidence adduced, that the claimants are entitled to judgment’; it may ‘issue, enter or give judgment’ in favour of a party. True, the judgment may include assertions to the effect that a party is, e.g., liable or negligent. However, these assertions occur in a context where the account of this party is mentioned and assessed. For these reasons, it seems that even if civil cases are decided on the basis of a standard that is lower than proof beyond a reasonable doubt, they are not vulnerable to the argument that the Intermediary is setting out. Even if one disagreed with this interpretation of civil judgments and of their concluding statements—arguing, instead, that they do involve categorical attributions of responsibility—it would not follow that the Intermediary’s argument about the relationship between respect and the reasonable doubt standard is wrong. It may, instead, be the case that civil judgments are themselves disrespectful of the party against whom they are issued. As the remaining of the dialogue suggests, though, this would not necessarily mean that civil trials should adopt the reasonable doubt standard. Civil courts may simply have to be more careful in their choice of words, avoiding possible categorical attributions of responsibility—something that, as the Intermediary will show, does not seem feasible in the criminal justice context.

91. Not always, of course, given that a reasonable innocent account may not exist.

92. On the relationship between the reasonableness of, and the reasons for, an argument see Picinali, supra note 12 at 855-62, where I address the questions of the definition of “reasonableness” and of the reasonable doubt standard. On the definition of the reasonable doubt standard see also Picinali, supra note 32; Picinali, Federico, “Legal Reasoning as Fact Finding? A Contribution to the Analysis of Criminal Adjudication” (2014) 5:2 Jurisprudence 299.Google Scholar

93. Proof beyond a reasonable doubt does not exclude fanciful doubts. Therefore, the reasonable doubt standard allows for a categorical statement of guilt in the presence of such doubts. I concede that also fanciful doubts may be supported by reasons—e.g., the claim according to which the crime was committed by an alien is based on the rational view that we are not alone in the universe. However, these reasons and/or the arguments they support have such a limited capacity to influence our understanding of, and agency in, the relevant case that the fact that a categorical statement of guilt ignores them should not be seen as problematic.

94. Consider that we often adjust our actions so as to reflect the evidence that we have concerning the truth of some state of affairs—in other words, in order to reflect the reasons in favour or against believing that such a state of affairs has obtained or will obtain. Our decision making is, in this respect, ‘many-valued’: rather than adopting a single probability threshold and countenancing two possible actions only—depending on whether the threshold is met or not—we seem to adopt a ladder of probability thresholds and a corresponding ladder of actions. For instance, my decision as to whether to cycle to work and, if so, with what garments, may depend on the probability of rain: as this probability changes, my choice of garments changes accordingly. Only when the probability of rain is very high, I may decide not to ride. I am currently conducting a separate research on the pros and cons of adopting a system of criminal verdicts where both the formula of the verdict and the sanction reflect the available evidence. See Picinali, Federico, “Do Theories of Punishment Necessarily Deliver a Binary System of Verdicts? An Exploratory Essay” (2017) Crim Law & Philosophy, DOI: https://doi.org/10.1007/s11572-017-9440-y.CrossRefGoogle Scholar

95. Borrowing a compelling metaphor from Jenny McEwan, I would say that with guilty verdicts, the state speaks so loud that the defendants can be heard—as respect for them would require—only if the system adopts the reasonable doubt standard. Jenny McEwan, “From Adversarialism to Managerialism: Criminal Justice in Transition” (2011) 31:4 LS 519 at 546.

96. See Duff et al, supra note 2 at 153. Here, Duff et al argue that respect for the defendant as a participant in the process demands “that the defendant has a proper opportunity to present arguments concerning his criminal liability, and to have those arguments acted on insofar as they are convincing”.

97. The connection between reasonable doubt and respect for the defendant drawn in this paragraph builds upon a thread in political and moral philosophy, which consists in recognising the value of heeding reasonable disagreement. See Rawls, John, “Lecture II. The Powers of Citizens and Their Representation” in Political Liberalism (Columbia University Press, 2005) at 47–88;Google Scholar Scanlon, Thomas M, “The Structure of Contractualism” in What We Owe to Each Other (Harvard University Press, 2000) at 189–247;Google Scholar Spragens, Thomas A, “Democratic reasonableness” in Young, Shaun P, ed, Reasonableness in Liberal Political Philosophy (Routledge, 2009) 85.Google Scholar

98. Cf Hart, HLA, Punishment and Responsibility: Essays in the Philosophy of Law (Clarendon Press, 1995) at 4–6;Google Scholar Boonin, David, The Problem of Punishment (Cambridge University Press, 2008) at 17–21,CrossRefGoogle Scholar addressing, and rejecting the possible consequentialist objection according to which punishment should not be defined so as comprising this element, otherwise consequentialist theories of punishment—for which the link between punishment and deed is not essential—are ruled out as a matter of definition rather than being assessed for their qualities.

99. Ibid at 19-20, suggesting that punishment requires that the defendant be believed to have broken the law.

100. Ibid.

101. See above the fourth contribution by the Deontologist.

102. Ibid.

103. Notably, consequentialists who value true convictions for their preventative role are chiefly concerned with achieving the final end of crime prevention. If so, they should consider that there are means to prevent crime in addition to those that are instrumental to securing true convictions. These include investing resources in education, and social and cultural integration. These means too should be considered, before arguing for a lower standard of proof.

104. Some of those means may require reallocation of funds that would otherwise contribute to realise other valuable goals, or they may be in tension with some things that we value—consider the possible tension between the use of surveillance systems and privacy. But there seems to be no relationship of entailment between using one such means and rejecting outright something that we value. Even if it turned out that such a relationship exists for some means, it may not exist for all of them, or it may not involve something that we value as much as respecting defendants.

105. Of course, protecting innocent defendants from false convictions is another shared goal. However—as was suggested by the Intermediary earlier—the consideration of this goal in the previous part of the dialogue proved incapable of undermining the Consequentialist’s argument. This was largely because this goal was treated as being susceptible to a trade-off with the goal of securing more true convictions—see the end of the Intermediary’s contribution for a criticism of this approach. As the Intermediary is about to show, the goal of avoiding routine disrespect of defendants does not invite such a trade-off.

106. Wallace, RJ, “Normativity, Commitment, and Instrumental Reason” (2001) 1:3 Philosophers’ Imprint 1 at 1.Google Scholar

107. Ibid at 14-20; Bratman, ME, “Intention, Practical Rationality, and Self-Governance” (2009) 119 Ethics 411 at 413, 421–22.Google Scholar Notably, Wallace and Bratman differ in their accounts of the normative force of the instrumental principle. According to Wallace, supra note 106 at 20-21, the normative force of the principle derives from norms of theoretical rationality: being instrumentally incoherent involves an incoherent set of beliefs concerning one’s intentions and the necessary means to fulfil them. On the other hand, Bratman argues that conformity to the instrumental principle is a necessary constituent of our self-governance, and that we have an intrinsic reason to govern ourselves (ibid at 430-34).

108. My intuition is that these alternative means would be more effective in achieving the desired result, as they would bring guilty people to court and increase the quality of the evidence—both things that a standard of proof cannot do—without presenting additional costs in terms of false convictions—costs which would be produced by lowering the standard. In fact, improving the quality of the evidence should be expected to lower the rate of false convictions. In any case, even if it turned out that these means are less effective, the drop in effectiveness resulting from adopting them instead of lowering the standard of proof may easily be outweighed by the value of respecting defendants—a value that we would protect by retaining the reasonable doubt standard.

109. Of course, a similar problem concerns the justification of punishment itself. This issue, though, lies beyond the scope of this paper.