Re-Thinking The Criminal Standard of Proof
Re-Thinking The Criminal Standard of Proof
Re-Thinking The Criminal Standard of Proof
~11,000
words
Re‐Thinking
the
Criminal
Standard
of
Proof:
Seeking
Consensus
about
the
Utilities
of
Trial
Outcomes
Larry
Laudan1
Harry
Saunders2
For
many
people,
utility
assessments
for
trial
outcomes
and
threshold
probabilities
are
not
well
developed
and
closely
articulated.—Terry
Connolly3
Summary/Abstract:
For
more
than
a
half‐century,
evidence
scholars
have
been
exploring
whether
the
criminal
standard
of
proof
can
be
grounded
in
decision
theory.
Such
grounding
would
require
the
emergence
of
a
social
consensus
about
the
utilities
to
be
assigned
to
the
four
outcomes
at
trial.
Significant
disagreement
remains,
even
among
legal
scholars,
about
the
relative
desirability
of
those
outcomes
and
even
about
the
formalisms
for
manipulating
their
respective
utilities.
We
attempt
to
diagnose
the
principal
reasons
for
this
dissensus
and
to
suggest
ways
in
which
a
broadly
shared
evaluation
might
be
forged,
both
with
respect
to
the
appropriate
equations
for
defining
the
standard
of
proof
and
with
respect
to
the
appropriate
utilities
to
associate
with
the
various
trial
outcomes.
Where
consensus
cannot
be
forged,
we
hold
that
remaining
differences
can
probably
be
finessed.
We
also
suggest
ways
to
elicit
the
utilities
of
individuals
on
these
matters
so
as
to
avoid
the
usual
flaws
of
such
surveys.
Along
the
way,
we
note
a).
the
disproportionate
role
that
the
Blackstone
ratio
of
errors
continues
to
play
in
appraisals
of
the
utilities
of
trial
outcomes
(despite
its
unintelligibility
in
the
context
of
utilities)
and
b).
the
persisting
belief
–for
which
there
is
no
theoretical
basis—that
every
plausible
assignment
of
utilities
will
inevitably
result
in
a
very
high
standard
of
proof.
Finally,
we
examine
some
of
the
technical
features
associated
with
a
proposed
rank
ordering
of
the
utilities
of
trial
outcomes.
Introduction
Ever
since
the
abandonment
of
trials
by
ordeal
in
the
thirteenth
century,
Western
legal
systems
–whether
Roman
or
common
law—have
shared
the
view
that
a
just
finding
of
guilty
requires
a
very
high
degree
of
confidence
in
guilt
on
the
part
of
the
trier
of
fact.
Accordingly,
through
the
late
Middle
Ages
and
early
modern
era,
certainty
or
full
proof
was
required
to
convict
the
accused.
By
the
late
seventeenth
century,
this
overly
exacting
demand
had
given
way
in
the
English‐speaking
world,
1
Instituto de Investigaciones Filosóficas, Universidad Autónoma de México.
2
Managing Director, Decision Processes Incorporated.
3
Terry Connally et al., JUDGMENT AND DECISION MAKING (2nd ed.), Cambridge University Press (2000), p.
239.
2
largely
under
the
influence
of
Locke
and
other
empiricist
theorists
of
knowledge,
to
the
idea
that
high
probability
or
moral
certainty
was
the
right
threshold
for
a
conviction.
By
the
early
nineteenth
century,
Roman
law
had
signed
on
to
this
weakening
of
the
traditional
standard
as
well,
with
an
“intimate
conviction
of
guilt”
replacing
certainty
or
“full
proof”
as
the
standard
in
criminal
trials.
One
of
the
key
ideas
driving
the
belief
that
the
standard
must
be
very
demanding
was
the
thought
that
falsely
convicting
someone
of
a
felony
(and
thus,
in
those
days,
condemning
them
to
death)
was
an
unacceptably
egregious
harm
and
that
the
best
way
to
prevent
it
was
to
set
the
standard
of
proof
at
the
limits
of
what
mere
mortals
could
achieve
by
way
of
proof
about
matters
of
fact.
From
early
on,
scholars
understood
that
an
exacting
standard
of
proof,
while
holding
false
convictions
to
a
minimum,
would
exact
an
abundant
harvest
of
false
acquittals.
This
is
a
price
that
they
thought
society
should
be
willing
to
pay.
William
Blackstone
famously
encapsulated
this
idea
in
the
aphorism
that
“it
is
better
that
ten
guilty
persons
escape,
than
that
one
innocent
suffer.”4
Demanding
moral
certainty
(or,
later:
proof
beyond
a
reasonable
doubt),
Blackstone
and
many
of
his
successors
evidently
thought,
would
respect
and
reproduce
that
result:
to
wit,
at
least
ten
false
acquittals
for
every
false
conviction.5
Prominent
French
theorists
took
the
idea
one
step
further,
calculating
that
it
would
be
unjust
to
have
a
trial
that
exposed
an
innocent
person
to
a
greater
risk
of
false
conviction
than
he
ran,
in
his
daily
life,
of
dying
prematurely
within
the
next
twenty‐four
hours.
Using
this
touchstone,
Condorcet
surmised
that
the
standard
of
proof
in
a
criminal
trial
should
be
a
confidence
of
guilt
exceeding
144,767/144,768
or
99.9993%;
otherwise,
the
legal
system
would
be
unjust.6
He
was
evidently
not
overly
concerned
about
how
one
might
assemble
a
proof
of
guilt
that
was
this
powerful.
We
have
to
fast
forward
to
the
middle
of
the
20th
century
before
this
idea
of
quantifying
the
standard
of
proof
takes
on
a
more
realistic
form.
Modern
evidence
scholars
of
a
quantitative
bent
have
pursued
the
idea
that
one
could
define
the
criminal
standard
of
proof
much
more
precisely
and
less
ambiguously
than
“moral
certainty”
or
“proof
beyond
a
reasonable
doubt”
does
by
representing
it
as
a
specific
probability
or
clearly‐delimited
range
of
probabilities.
More
than
that,
they
have
4
4 William Blackstone, COMMENTARIES 352 (1769).
5
Recent writers on this subject would be quick to point out that this move from a demanding standard of
proof to any claim whatever about the actual frequency of ensuing errors is a very perilous hypothesis. (See
below as well as Michael DeKay, “The Difference between Blackstone-like Error Ratios and Probabilistic
Standards of Proof,” 21 LAW AND SOC. INQUIRY, 95 (1996) and Ronald Allen, “Clarifying the Burden of
Persuasion and Bayesian Decision Rules,” 4 INTL. J. EVID. & PROOF, 246 (2000)) Among other things, the
frequency of error will depend on the (unknowable) distribution of guilt and innocence among those who are
brought to trial.
6
For details on the rivalry among French intellectuals in the eighteenth century to see who could offer the
most preposterous definition of the standard of proof, see Lorraine Daston, Classical Probability in the
Enlightenment (Princeton: Princeton University Press, 1988), chapter six. For Condorcet’s proposal in
particular, see his Essai sur l’application de l’analyse à la probabilité des decisiones rendues à la pluralité
des voix (Paris, 1785), p. cix.
3
maintained
that
we
can
derive
the
appropriate
probabilistic
standard
from
a
consideration
of
the
costs
or
utilities
of
the
pertinent
outcomes
at
trial.
One
of
the
first
attempts
to
derive
the
standard
of
proof
from
utilities
is
associated
with
John
Kaplan,
whose
widely
cited
paper,
“Decision
Theory
and
the
Factfinding
Process”
(1968),
offered
“a
formula
for
determining
the
probability
necessary
to
return
a
verdict.”7
He
arrived
at
the
conclusion
that
the
criminal
standard
of
proof
would
be
given
by
, (1)
where
is
the
threshold
or
standard
of
proof,
is
the
disutility
of
a
false
acquittal
and
is
the
disutility
of
a
false
conviction.
In
effect,
Kaplan’s
proposal
was
that
the
standard
of
proof
was
a
function
of
the
ratio
of
the
(dis)utilities
of
the
two
erroneous
outcomes
of
a
trial.
If
we
could
fix
the
value
of
that
ratio,
he
thought,
we
would
have
a
unique
and
precise
value
for
the
point
at
which
a
criminal
conviction
was
rational.
One
trouble
with
Kaplan’s
proposal
‐‐as
subsequently
pointed
out
by
Tribe8,
Lillquist9,
and
several
others10‐‐
is
that
it
is
an
incomplete
application
of
the
theory
of
rational
decisions
to
the
problem
at
hand.
There
are
not
only
two
outcomes
at
trial
but
four.
Kaplan’s
analysis
ignores
the
utilities
of
correct
verdicts.
Unless
those
positive
outcomes
have
negligible
utility
‐‐which,
as
we
shall
see
below
is
wildly
improbable—their
exclusion
from
the
calculation
of
the
standard
of
proof
vitiates
this
way
of
conceiving
the
problem.
Not
long
after
the
Kaplan
proposal,
Laurence
Tribe
produced
(in
1971)
a
more
plausible
way
of
relating
trial
outcomes
to
the
theory
of
utilities.11
Specifically,
Tribe
argued
that
if
we
take
all
four
utilities
seriously
into
account,
we
could
locate
the
threshold
of
proof
at
that
point
of
indifference,
where
the
product
of
the
utilities
of
a
conviction
times
its
probability
was
the
same
as
the
utility
of
an
acquittal
times
its
probability.
Tribe’s
formula
for
the
threshold
of
proof
thus
becomes:
, (2)
where
is
the
utility
of
a
true
acquittal,
is
the
utility
of
a
false
acquittal,
is
the
utility
of
a
true
acquittal
and
is
the
utility
of
a
false
conviction.
Clearly,
Tribe’s
7
John Kaplan, “Decision Theory and the Factfinding Process,” 20 STAN L REV 1065 at 1071ff. (1967-68).
8
Laurence
Tribe,
“Trial
by
Mathematics:
Precision
&
Ritual
in
the
Legal
Process,
84
HARV.
L.
REV.
1329,
1375
(1971).
9
Erik Lillquist, “Recasting Reasonable Doubt: Decision Theory and the Virtues of Variability,” 36 U.C.
Davis L. Rev., 85 (2002).
10
See especially, Richard Friedman, “Standards of Persuasion and the Distinction between Fact and Law,” 86
NW. U. L. REV. 916 (1992).
11
Laurence Tribe, op. cit. Interestingly, Tribe believes that Kaplan already incorporated all four utilities. He
also correctly credits Alan Cullison, along with Kaplan, with having formulated the four-utility model. See
Alan Cullison, “Probability Analysis of Judicial Fact-Finding: A Preliminary Outline of The Subjective
Approach,” U. TOL. L. REV. 538 (1969).
4
version
explicitly
incorporates
the
utilities
that
Kaplan
had
ignored.
12
Equally
clearly,
Tribe’s
version
reduces
to
Kaplan’s
only
if
the
utilities
of
a
true
conviction
and
a
true
acquittal
are
zero.
What
(2)
suggests
is
that
if
society,
presumably
through
its
legislators,
can
reach
agreement
about
assigning
plausible
values
to
the
costs
and
benefits
of
the
four
possible
outcomes
at
trial,
then
we
will
have
a
nonarbitrary
mechanism
for
setting
a
standard
of
proof
that
makes
us
indifferent
as
between
acquitting
or
convicting
someone
accused
of
a
crime.
Many
evidence
scholars
continue
to
propose
variants
of
the
Kaplan
approach
of
deriving
the
standard
of
proof
from
only
two
utilities
rather
than
Tribe’s
four,
despite
powerful
arguments
from
DeKay
and
Lillquist
about
the
dangers
of
ignoring
the
utilities
of
positive
outcomes.
We
believe
that
the
case
for
grounding
the
standard
of
proof
on
(2)
rather
than
on
(1)
is
overwhelming.
We
also
believe,
however,
that
far
too
little
care
has
been
paid
by
scholars
to
the
question
of
how
we
might
figure
out
what
utilities
ordinary
citizens
would
and
should
assign
to
those
outcomes.
In
this
paper,
we
have
four
aims:
a).
to
review
succinctly
the
arguments
already
in
the
literature
about
the
relative
merits
of
(1)
and
(2);
b).
to
strengthen
the
case
for
(2)
by
elaborating
additional
reasons
for
regarding
(1)
as
founded
on
fundamental
confusions
about
the
nature
of
utilities
and
the
theory
of
decisions;
c).
to
explain
why
(1),
despite
its
evident
lack
of
merit,
continues
to
enjoy
a
large
following
in
the
field;
and
d).
to
attempt
to
remedy
the
inattention
to
methods
of
empirically‐ascertaining
the
utilities
involved
in
(2)
by
proposing
a
wholly
new
way
of
eliciting
those
utilities.
Calculating
the
Standard
of
Proof
from
Societal
Utilities
We
begin
by
reprising,
in
somewhat
more
detail
than
Tribe
gave,
how
the
standard
of
proof
can
be
derived.
The
following
diagram
illustrates
the
decision
faced
by
a
juror:
12
It is crucial to point out that Tribe, having cleaned up the utilities-based formula for the standard of proof,
proceeded to reject the enterprise categorically because of its putative conflict with basic value commitments
of the administration of criminal justice. For instance, it explicitly admits that we are prepared to convict
persons even when there is some non-zero probability that they are innocent, an admission that Tribe believes
would undermine the acceptance of the results of trial by the general population. It strikes us as curious that
Tribe thinks that the unwashed multitudes cannot comprehend that mistakes at trial are inevitable and that,
accordingly, we must take intellectually dishonest steps to conceal this information from them.
5
Figure
1.
Decision
Faced
by
a
Trial
Juror
In
this
diagram
is
the
probability
of
guilt
of
the
defendant
as
perceived
by
the
juror.
Given
the
following
four
societal
utilities:
The
expected
societal
utility
of
conviction
as
a
function
a
juror’s
perceived
probability
of
guilt
is:
(3)
Similarly,
the
expected
societal
utility
of
acquittal
as
a
function
of
this
perceived
probability
is:
(4)
Given
the
four
societal
utilities,
the
quantified
standard
of
proof
is
calculated
as
the
perceived
probability
of
guilt
that
makes
society
indifferent
between
conviction
and
acquittal,
that
is,
the
probability
that
makes
these
two
expected
utilities and
equal:
(5)
This
result
says
that
society
would
like
individual
jurors
to
vote
to
convict
if
and
only
if
their
perceived
probability
of
the
defendant’s
guilt
is
greater
than
or
equal
to ,
and
would
like
them
to
vote
acquittal
if
and
only
if
their
perceived
probability
of
guilt
is
less
than
this
threshold.
Relationship
between
the
Standard
of
Proof
and
Societal
Utilities
Figure
2.
Determining
the
Desired
Societal
Standard
of
Proof
The
green
line
is
the
expected
societal
utility
of
an
acquittal
(Not
Guilty
verdict)
as
a
function
of
the
perceived
probability
of
guilt
and
the
red
line
is
the
expected
societal
utility
of
a
conviction
(Guilty
verdict)
as
a
function
of
the
perceived
probability
of
guilt.
The
intersection
point
of
these
two
lines
shows
the
desired
standard
of
proof .
Note
that
if
the
juror
perceives
the
probability
of
guilt
of
the
defendant
to
be ,
equation
(3)
shows
the
expected
societal
utility
of
a
conviction
to
be ;
that
is,
society
will
deem
a
conviction
to
be
entirely
inappropriate
if
the
juror
perceives
it
to
be
certain
that
the
defendant
is
innocent.
This
is
shown
in
the
lower
left
of
Figure
2
as
the
point ,
the
intersection
of
the
Guilty
line
with
the
axis .
Similarly,
if
the
juror
perceives
the
probability
of
guilt
of
the
defendant
to
be ,
equation
(4)
shows
the
expected
societal
utility
of
an
acquittal
to
be ;
that
is,
society
will
deem
an
acquittal
to
be
entirely
unjustified
if
the
juror
perceives
it
to
be
certain
that
the
defendant
is
guilty.
This
is
shown
in
the
upper
right
of
Figure
2
as
the
point .
7
The
other
utilities and can
be
likewise
derived
from
the
other
intersection
points
shown.
An
Erroneous
Criticism
of
the
Four‐utility
Model
Tribe13
argues
that
the
utilities
of
trial
outcomes
are
themselves
functions
of
the
perceived
probability
of
guilt,
making
the
fully
correct
version
of
the
standard
of
proof
formula
intractable
and
of
little
use.
DeKay14
evidently
accepts
this
claim
that
outcome
utilities
depend
on
the
probability,
and
creates
an
elaborate
argument
that
purports
to
show
it
does
not
create
difficulties
with
the
standard
of
proof
formula
given
certain
assumptions
he
argues
are
reasonable
about
the
functional
form
of
this
relationship.
Confusion
on
this
issue
appears
to
arise
from
a
misconception
of
utility
theory.
Tribe
summarizes
the
perceived
problem
as
“…the
trier
might
justly
regard
as
worse
the
erroneous
conviction
of
a
man
to
whose
guilt
he
had
attached
a
probability
of
just
over
4/7
than
the
erroneous
conviction
of
one
whose
guilt
had
seemed
to
be
virtually
certain.”
This
is
essentially
identical
to
DeKay’s
statement
of
the
problem:
“…the
disutility
associated
with
acquitting
a
truly
guilty
defendant
might
be
perceived
as
greater
if
the
subjective
probability
of
guilt
equaled
0.70
at
the
time
of
acquittal
than
if
the
subjective
probability
of
guilt
equaled
0.30
at
the
time
of
acquittal.”
Both
these
authors
confuse
outcome
utilities
with
expected
utilities.
The
utilities
associated
with
the
outcomes,
,
reflect
the
societal
value
of
these
outcomes
given
that
they
happen
with
absolute
certainty.
In
contrast,
the
expected
utilities
of
each
verdict,
and
,
are
functions
of
the
perceived
probability
of
guilt
as
shown
in
equations
(3)
and
(4).
Figure
2
shows
graphically
the
expected
utility
of
each
verdict
as
a
function
of
the
juror’s
perceived
probability
of
guilt
(and
just
to
be
precisely
clear,
this
is
the
juror’s
posterior
assessment
of
the
likelihood
of
guilt
–
after
hearing
all
the
evidence,
arguments
of
the
attorneys,
and
views
of
his
or
her
fellow
jurors).
In
Figure
2
it
is
seen
that
the
expected
utility
of
a
guilty
verdict
is
an
increasing
function
of
,
and
the
expected
utility
of
a
not
guilty
verdict
is
a
decreasing
function
of
.
Both
functions
are
linear.
Consider
the
first
line,
the
expected
utility
of
a
guilty
verdict.
This
line
says
that
the
higher
the
juror’s
perceived
probability
of
guilt,
the
higher
is
the
expected
utility
of
voting
conviction.
Similarly,
the
not
guilty
line
says
that
the
higher
the
juror’s
perceived
probability
of
guilt,
the
lower
is
the
expected
utility
of
voting
acquittal.
Together,
they
entail
that
the
upper
v‐shaped
envelope
of
these
two
lines
depicts
the
13
Laurence Tribe, op.cit., n. 168 (1971).
14
Michael DeKay, “The Difference between Blackstone-Like Error Ratios and Probabilistic Standards of
Proof,” Law & Doc. Inquiry 95(n.21) at 114 n. 46 (1996).
8
than
conviction.
If
,
the
situation
reverses
and
a
higher
expected
societal
utility
is
delivered
by
conviction.
In
other
words,
the
model
fully
accounts
for
the
fact
that
societal
expected
utilities
may
depend
strongly
on
.
But
these
are
expected
utilities.
There
is
no
need
to
adjust
the
outcome
utilities
to
reflect
any
dependence.
The
case
is
made
even
clearer
by
considering
two
extreme
cases.
If
a
juror’s
perceived
probability
of
guilt
is
zero,
it
can
be
seen
from
equation
(3)
that
the
expected
utility
of
conviction
is
simply
.
That
is,
if
the
juror
is
absolutely
certain
the
defendant
is
innocent,
society
would
like
him
or
her
to
behave,
in
their
decision
making,
as
if
the
utility
of
voting
conviction
is
precisely
the
utility
society
places
on
a
certain
false
conviction;
and
society
would
like
him
or
her
to
behave
as
if
the
utility
of
voting
acquittal
is
precisely
the
utility
society
places
on
a
certain
true
acquittal.
Similarly,
for
,
the
expected
utilities
of
conviction
and
acquittal
are
precisely
the
raw
outcome
utilities
and
.
This
is
entirely
consistent
with
the
assertion
that
the
outcome
utilities
reflect
the
societal
value
of
these
outcomes
given
that
they
happen
with
absolute
certainty.
In
summary,
Tribe’s
assertion
that
a
proper
accounting
would
require
making
the
outcome
utilities
a
function
of
perceived
probability
of
guilt
is
an
erroneous
one,
and
the
fully
comprehensive
formula
for
calculating
the
standard
of
proof
remains
that
shown
in
equation
(2).
Despite
a
broad,
but
by
no
means
universal,
acquiescence
in
this
principled
mechanism
for
setting
the
standard
of
proof
non‐arbitrarily,
there
are
precious
few
serious
discussions
in
the
literature
of
what
the
values
for
these
four
utilities
might
or
should
be.
We
will
examine
some
of
those
shortly.
For
now,
it
is
important
to
note
that
the
majority
of
scholars
who
have
conjectured
about
these
utilities
continue
to
focus
their
attention
on
only
two
of
the
four
outcomes:
false
convictions
and
false
acquittals.15
There
are
doubtless
many
reasons
why
this
is
so.
Among
them:
a).
it
simplifies
the
calculation,
requiring
consensus
only
on
the
costs
of
two
of
the
four
outcomes;
b).
it
speaks
to
the
centuries‐long
tendency
to
suppose
that
the
only
outcomes
at
trial
that
really
matter
are
the
erroneous
verdicts16;
and
c).
it
obviates
the
need
to
reach
a
15
This tactic of giving short shrift to the utilities of correct outcomes is succinctly summed up by Schauer and
Zeckhauser when they write: “[W]e believe that a properly conceived regret matrix, which measures
comparative utility losses from different mistakes, fully captures the proper comparison between two
decisions.” (Frederick Schauer and Richard Zeckhauser, “On the Degree of Confidence for Adverse
Decisions,” 25 J LEGAL STUD, 27 at 34n.9 (1996). Or, stressing the same point: “It is well understood [sic]
that a legal system’s choice among these standards [of proof] is an exercise in trading off the harms that flow
from different types of error.” (Ibid. at 34) The same simplification can be seen in the influential evidence text
by Richard Lempert and Stephen Saltzburg, A MODERN APPROACH TO EVIDENCE (2nd ed., 1982).
16
A search among scholarly articles on LexisNesis vividly illustrates the syndrome. While ‘false conviction”
and ‘wrongful conviction’ yield 497 hits, ‘true’ and ‘rightful conviction’ yield a total of 83. While ‘false’ or
10
consensus
about
the
specific
utilities
for
the
erroneous
verdicts,
since
it
is
sufficient
merely
to
decide
what
the
ratio
of
their
(dis)utilities
is.
The
last
point
is
especially
salient
because
the
legal
profession
continues
to
believe
(wrongly,
in
our
opinion)
that
Blackstone
already
settled
that
question
a
long
time
ago.
Blackstonian
Fantasies
We
will
argue
in
this
section
that
focusing
exclusively
on
the
utilities
of
the
erroneous
outcomes
is
not
just
an
oversimplification
of
a
complex
situation
but
a
seriously
distorting
mistake.
Indeed,
it
commits
numerous
errors
at
the
same
time
‐‐some
already
identified
by
other
writers,
others
not‐‐
and
at
several
distinct
levels.
We
will
attempt
to
disentangle
several
of
them.
a).
The
Blackstone
thesis,
which
has
long
been
a
key
article
of
faith
among
legal
scholars,
does
not
have
anything
to
say
about
the
utilities
of
the
outcomes
of
a
trial,
strictly
speaking.
Rather,
as
one
can
see
by
its
very
formulation
("Better
that
ten
guilty
persons
escape
than
that
one
innocent
suffer,"17),
it
addresses
itself
to
the
relative
frequency
with
which
errors
of
false
conviction
and
false
acquittal
should
occur.
It
tells
us
that
a
necessary
condition
for
an
acceptable
system
of
criminal
justice
is
that
there
are
at
least
ten
false
acquittals
for
every
false
conviction.
This
proportion,
of
course,
has
become
known
as
the
Blackstone
ratio.
Blackstone
did
not
fathom
that
there
is
no
way
of
guaranteeing
in
advance
that
this
ratio
of
mistakes
will
ever
occur
in
any
long,
random
sequence
of
criminal
trials.
This
is
because
the
ratio
of
false
acquittals
to
false
convictions
not
only
depends
on
the
standard
of
proof
that
we
employ
but
also
on
such
uncontrollable
variables
as
the
de
facto
proportion
of
truly
innocent
and
truly
guilty
defendants
who
are
brought
to
trial,
the
robustness
of
the
evidence
presented
by
the
two
sides,
and
the
perspicacity
of
particular
juries
in
evaluating
that
evidence.18
However,
many
scholars
have
thought
that,
with
a
subtle
twist
in
the
content
of
Blackstone’s
thesis,
we
can
circumvent
that
problem.
Instead
of
reading
Blackstone
as
specifying
an
acceptable
frequency
of
errors,
they
instead
suppose
that
the
Blackstone
ratio
addresses
the
values
that
should
drive
the
selection
of
the
verdict
in
a
criminal
trial.
Specifically,
they
think
that
the
Blackstone
thesis
is,
or
could
be,
saying
that
the
disutilities
of
a
false
conviction
are
ten
times
greater
than
the
disutilities
of
a
false
acquittal.
19
If
that
were
what
he
is
saying,
and
if
we
likewise
were
to
accept
Kaplan’s
‘wrongful’ acquittal produces 194 hits, ‘true’ or ‘rightful’ acquittal yields only 21. In sum, the ratio of
references to erroneous verdicts to references to true verdicts is just shy of 7:1. Blackstone would presumably
be pleased.
17
4 William Blackstone, COMMENTARIES 358.
18
See Larry Laudan, “The Elementary Epistemic Arithmetic of Criminal Justice,” 5 EPISTEME, 282 (2008).
19
It should be noted, as we will argue below, that this way of speaking of ratios may not even be intelligible.
Just as it would be silly to say that it is half as cold this afternoon (4 degrees F) as it was this morning (wen it
was 2 degrees F, so it will generally be opaque what we mean by saying that a utility of twenty is ten times
greater than a utility of two.
11
simplified
utility
calculation,
then
we
would
have
all
we
needed
to
calculate
a
“rational”
standard
of
proof.
Doing
the
requisite
calculation
(while
assuming
that
the
disutilities
of
a
false
conviction
are
ten
times
worse
than
those
of
a
false
acquittal),
we
discover
that
the
standard
of
proof
for
criminal
trials
should
be
about
91%.
One
of
the
attractions
of
this
approach
has
been
its
intuitive
appeal;
it
shows
that
we
have
been
right
in
using
a
very
demanding
standard
like
proof
beyond
a
reasonable
doubt.
Prior
to
the
emergence
of
all
these
calculations,
of
course,
no
one
had
ever
suggested
specifically
that
BARD=91%
but
it
is
clear
that
both
BARD
(which
is
usually
glossed
by
scholars
as
falling
within
the
90‐95%
range)
and
a
standard
of
91%
apparent
guilt
are
close
neighbors.20
In
sum,
a
utility
calculation
–viewed
from
this
perspective‐‐exonerates
what
we
believed
all
along;
to
wit,
that
a
careful
appraisal
of
the
respective
costs
of
the
two
errors
at
trial
would
show
that
the
standard
must
be
demanding
and
much
more
prone
to
one
sort
of
error
than
the
other.
No
one
quite
shouted,
“Long
live
the
status
quo!”
when
these
results
emerged.
Still,
the
congruence
between
what
the
legal
system
has
long
held
as
sacred
and
the
reduction
of
the
utility
calculation
to
the
only
outcomes
recognized
in
the
Blackstone
ratio
has
done
nothing
but
reinforce
the
conventional
wisdom.
b).
This
myopic
focus
on
the
expected
losses,
and
thus
on
the
ratio
of
erroneous
verdicts
as
the
only
determinant
of
the
standard
of
proof,
is
really
quite
stunning
when
one
thinks
about
it.
Specifically,
we
are
asked
to
put
wholly
to
one
side
any
consideration
of
the
respective
utilities
associated
with
correct
outcomes
at
trial.
Having
defined
the
standard
exclusively
in
terms
of
the
supposedly
acceptable
ratio
of
errors,
we
happily
discount
altogether
the
benefits
of
true
acquittals
and
true
convictions.
That
would
appear
to
be
an
egregious
miscalculation.
After
all,
it
is
likely
that
true
convictions
have
important
deterrent
effects
and
it
is
indisputable
that
they
have
important
incapacitative
consequences.
Likewise,
acquittals
for
the
truly
innocent
would
seem
to
have
important
moral,
practical
and
symbolic
consequences.
Leaving
such
weighty
matters
out
of
the
calculation
of
the
standard
of
proof
would
be
a
bad
joke,
were
it
not
so
ubiquitous.
Clearly,
something
has
gone
badly
awry
in
this
on‐going
preference
for
(1)
over
(2)
as
the
definition
of
the
standard
of
proof.
Author
uTC
uFC
uFA
uTA
Implied
SoP
Rank
Ordering
of
Outcomes
Tribe
1
0
.5
.67
57%
uTC>uTA>uFA>uFC
Lillquist
1
‐10
‐1
0
83%
uTC>uTA>uFA>uFC
Milanich
.9
0
.1
1
55%
uTA>uTC>uFA>uFC
Nagel
10
‐100
‐10
100
95%
uTA>uTC>uFA>uFC
Figure
3.
Estimates
of
Utilities
of
Outcomes
by
Various
Scholars21
20
See below, where we point out that most existing empirical studies of the meaning of proof beyond a
reasonable doubt [hereafter: BARD] that assess utilities suggest that jurors locate it at a much lower level than
academic lawyers generally think they should.
21
The relevant sources are: Tribe, op. cit.; Lillquist, op. cit.; Patricia G. Milanich, Decision Theory and
12
To
get
a
quick
and
dirty
sense
of
just
how
misleading
it
can
be
to
leave
the
positive
utilities
out
of
the
calculation,
consider
three
examples
deriving
from
the
recent
literature.
In
the
article
already
cited,
Tribe
explored
the
following
utilities
for
the
four
outcomes:
uTC=1
uFC=0
uFA=.5
uTA=.67.
The
standard
of
proof
that
would
follow
(using
(2))
from
Tribe’s
utilities
is
57%,
even
though
the
utility
of
a
false
conviction
proposed
by
Tribe
is
sharply
lower
than
the
utility
of
a
false
acquittal.
Years
later,
Erik
Lillquist
explored
a
not
implausible
ranking
of
these
utilities
that
would
appear
to
be
fully
Blackstone
compliant:
uTC=1
uFC=‐10
uFA=‐1
uTA=0.22
Using
the
same
formula
as
before,
the
standard
of
proof
unique
to
this
set
of
utilities
is
83%.
To
jack
the
standard
up
into
the
range
of
90%,
we
would
have
to
set
the
disutility
of
a
false
conviction
at
about
‐20,
thereby
doubling
“the
Blackstone
ratio.”
One
further
example
should
secure
the
point.
Suppose
that,
recognizing
that
a
true
conviction
is
a
very
desirable
outcome
and
that
a
false
conviction
is
a
very
undesirable
one,
we
consider
this
set
of
assignments:
uTC=10
uFC=‐10
uFA=‐1
uTA=0.
The
only
change
here
from
the
previous
set
is
an
increase
in
the
utility
of
a
true
conviction.
Now
we
have
a
standard
of
proof
of
about
48%,
even
though
the
disutility
of
a
false
conviction
is,
in
the
spirit
of
Blackstone,
vastly
greater
than
the
disutility
of
a
false
acquittal.
What
this
example
shows,
as
would
indefinitely
many
others,
is
that
the
neo‐Blackstonian
strategy
of
assigning
much
higher
disutilities
to
false
convictions
than
to
false
acquittals
need
not
guarantee
that
the
appropriate
standard
of
proof
will
be
very
high,
provided
that
the
standard
takes
into
account
prima
facie
plausible
utilities
for
true
outcomes.
Indeed,
the
situation
is
even
more
extreme
than
these
examples
suggest.
It
is
provable
that,
even
if
we
make
the
disutility
of
a
false
conviction
ten
times
greater
then
the
disutility
of
a
false
acquittal,
any
desired
standard
of
proof
between
0
and
1
can
be
generated
by
an
appropriate
assignment
of
utilities
to
the
two
positive
outcomes.23
In
short,
the
use
of
the
Blackstone
ratio
is
not
a
sufficient
condition
for
guaranteeing
a
demanding
standard
of
proof.
Neither
is
the
Blackstone
ratio
a
necessary
condition
for
a
tough
standard,
since
standards
of
proof
greater
than
90%
can
be
generated
when
the
uFC=
2
x
uFA.
For
instance,
the
set
(uTC=1,
uFC=‐2,
uFA=‐
Standards of Proof, 5 LAW & HUM. BEHAV. 87, 93 (1981);
and
Stuart Nagel et al., Decision Theory and
Juror Decision-Making, in THE TRIAL PROCESS
22
Lillquist, op cit., at 109.
23
Given any set of four utilities (provided uFC<uFA), which generates any particular standard of proof
(however low), it is possible to convert that set into one in which uFC=10 x uFA, while preserving the
standard of proof at its prior level. For instance, by multiplying each utility in the set by ten and then adding
a (defined as a= {10 x uFA)-uFC)/9} to each utility –both operations permitted by the rules governing
manipulation of utilities—we obtain a set of utilities that is Blackstone compliant and that produces a standard
of proof equal to the standard derived from the prior, unBlackstonian utilities.
13
1,
and
uTA=20)
generates
a
standard
of
about
92%.
Even
if
we
assign
the
same
disutilities
to
false
acquittals
and
false
convictions,
it
is
possible
to
have
a
standard
of
proof
of
90%
(for
instance,
uTC=1,
uFC=uFA=‐2,
and
uTA=25).
For
such
reasons,
we
must
lay
to
one
side
the
idea
that
we
can
read
off
the
appropriate
standard
of
proof
from
a
knowledge
(supposing
we
had
such
knowledge)
of
what
society
takes
to
be
an
appropriate
value
for
the
Blackstone
ratio.
Assigning
much
higher
disutilities
to
false
convictions
than
to
false
acquittals
in
and
of
itself
does
nothing
to
locate
the
standard
close
to
1.0.
We
have
to
take
all
four
utilities
into
account;
fixing
the
value
for
any
pair
of
them
–which
is
what
Kaplan’s
(1)
urges
on
us—leaves
the
standard
drastically
underdetermined.
c).
It
is
bad
enough
that
respecting
the
Blackstone
ratio
does
not
guarantee
a
demanding
standard
of
proof
(once
we
factor
in
plausible
values
for
the
utilities
of
the
positive
outcomes).
Worse
still,
there
is
a
serious
conceptual
error
going
on
in
the
rush
to
embrace
some
version
or
other
of
the
Kaplan
formula
for
the
standard
of
proof.
It
is
clear
that
formula
(1)
invites
us
to
consider
a
ratio
of
two
utilities.
The
trouble
is
that
utilities,
like
temperatures,
do
not
readily
lend
themselves
to
division
by
other
utilities.
Consider,
by
way
of
illustration,
the
four
utilities
proffered
by
Lillquist.
Here,
the
ratio
formed
by
dividing
the
disutility
of
a
false
acquittal
by
the
disutility
of
a
false
conviction
appears
to
be
1:10.
However,
it
is
a
feature
of
all
utility
sets
that
operations
like
multiplication
and
addition
can
be
performed
on
each
member
of
the
set
without
changing
the
matrix.
So,
if
we
add
20
to
each
of
Lillquist’s
utilities,
we
get
the
following
configuration
of
utilities:
uTC=21
uFC=10
uFA=19
uTA=20.
Substituted
into
the
Tribe
formula
for
the
standard
of
proof,
these
utilities
yield
precisely
the
same
standard
as
Lillquist’s
original
values
(83%).
But
note
what
has
happened
to
the
erstwhile
“Blackstone
ratio.”
A
“ratio”
of
1:10
has
become
a
ratio
of
almost
1:2.
Yet,
from
the
point
of
view
of
decision
theory,
this
set
of
utilities
and
the
original
Lillquist
set
are
formally
indistinguishable.
The
general
point
is
that
whether
the
utilities
of
a
false
acquittal
and
a
false
conviction
exhibit
an
order
of
magnitude
difference
between
them
is
of
no
significance
whatever
for
the
calculations
of
utility
theory,
since
that
proportion
can
be
changed
at
will
by
suitable
additions
and
multiplications.
The
moral
is
that
ratios
of
utilities
are
very
ephemeral
things.
We
should
be
leery
of
any
definition
of
a
standard
of
proof
that,
like
Kaplan’s,
invokes
such
ratios
since
such
ratios
themselves
are
ill‐defined.
Still,
even
though
ratios
of
utilities
are
suspect
creatures,
ratios
of
differences
between
select
utilities
are
not.
That,
indeed,
is
a
key
attraction
of
equation
(2).
As
we
can
see
in
the
denominator,
there
is
a
ratio
of
two
utility
differences.
The
numerator
of
that
ratio
signifies
the
differences
between
the
utilities
associated
with
guilty
defendants;
the
denominator
is
formed
by
differences
in
the
utilities
of
what
can
befall
innocent
defendants.24
This
ratio
of
differences
is
absolutely
fundamental
for
reasons
we
shall
24
Multiplication of, or additions to, the utilities making up this ratio do not alter the value of the ratio itself.
14
see
shortly.
For
now,
it
is
sufficient
to
note
that
ratios
of
utility
differences
don’t
suffer
from
the
problems
that
ratios
of
utilities
do
and
that
the
smaller
this
ratio
of
differences
is
(that
is,
the
larger
the
denominator
relative
to
the
numerator),
the
higher
the
standard
of
proof
will
be.
Thus
far,
we
have
suggested
that
there
is
no
clear
connection
between
the
preoccupations
driving
the
classical
Blackstone
ratio
and
the
task
of
settling
on
a
plausible
set
of
utilities.
That
doesn’t
yet
exhaust
the
errors
in
the
use
of
equation
(1)
to
define
the
standard
of
proof
but
it
does
show,
we
think,
that
one
important
motive
for
finding
(1)
attractive
–namely,
that
it
seems
readily
to
incorporate
something
like
the
Blackstone
concerns—is
a
chimera.
d).
There
is,
however,
one
option
open
to
those
who
are
committed
to
the
idea
that
the
standard
should
be
derived
from
the
ratio
of
errors.
We
have
stressed
that
the
utilities
of
positive
outcomes
should
not
be
ignored.
There
would
appear
to
be
one
way
in
which
the
proponents
of
(1)
could
accommodate
this
concern.
The
ratio
formulated
in
(1)
is
a
ratio
of
the
disutilities
of
the
two
erroneous
outcomes.
There
is
nothing
whatever
that
prevents
us
from
taking
the
positive
attributes
of
the
correct
outcomes,
stripping
them
away
from
the
positive
outcomes,
and
assigning
their
contraries
to
the
two
negative
outcomes
that
figure
in
(1).
Consider
an
example.
One
prominent
virtue
of
a
true
conviction
is
that
the
guilty
party
receives
his
just
deserts.
We
could
count
that
among
the
utility‐enhancing
attributes
of
a
true
conviction;
alternatively,
we
could
say
that
falsely
acquitting
a
guilty
defendant
fails
to
give
him
his
just
deserts
and
count
that
as
a
disutility‐enhancing
feature
of
false
acquittals.
If
we
applied
this
strategy
to
all
the
traits
of
true
verdicts,
transforming
them
from
utility‐enhancing
properties
of
those
true
verdicts
into
disutility‐enhancing
traits
of
false
verdicts,
we
could
try
to
arrive
at
a
situation
in
which
the
true
verdicts
–stripped
of
all
their
assets,
as
it
were—come
to
exhibit
a
utility
of
zero
while
the
disutilities
of
false
verdicts
continue
to
rise.
If
this
strategy
were
successful,
we
could
reduce
equation
(2)
to
equation
(1)
since
the
ratio
of
differences
in
(2)
would
simply
be
transformed
to
the
ratio
uFA/uFC,
as
in
(1).
This
tactic
quickly
becomes
unglued,
however.
It
is
easy
enough
to
say
that
we
will
debit
“failure
to
deliver
just
deserts”
to
a
false
acquittal
instead
of
crediting
the
delivery
of
just
deserts
to
a
true
conviction.
The
problem
arises
as
soon
as
we
realize
that
it
is
not
only
false
acquittals
that
fail
to
give
just
deserts
to
the
truly
guilty.
So
do
true
acquittals
and
false
acquittals.
We
could
readily
add
to
the
liabilities
of
a
false
acquittal
that
it
too
fails
to
give
just
deserts.
Still,
how
do
we
capture
in
this
Kaplan‐esque
scenario,
the
fact
that
a
positive
outcome
‐‐a
true
acquittal—fails
to
deliver
an
important
benefit
associated
with
a
true
conviction?
The
only
reasonable
way
to
do
that
is
to
reduce
the
utility
of
a
true
acquittal
relative
to
a
true
conviction
(or,
alternatively,
raise
the
utility
of
the
latter).
But
either
modification
would
undermine
the
whole
enterprise,
since
the
object
of
this
maneuver
was
to
render
true
convictions
and
true
acquittals
as
neutered
and
thus
dispensable,
each
possessing
a
utility
of
zero.
15
For
such
reasons,
we
conclude
that
there
is
no
avoiding
taking
the
utilities
of
all
four
outcomes
into
account
in
shaping
a
rational
standard
of
proof.
It
is
the
ratio
of
utility
differences
rather
than
the
ratio
of
the
utilities
of
the
erroneous
verdicts
that
should
be
our
focus.
Making
a
Stab
at
Fixing
the
Utilities
of
the
Outcomes
If
we
are
minded
to
try
to
determine
what
all
four
utilities
are,
there
are
at
least
two
different
general
directions
in
which
we
might
go.
One
of
them
would
be
purely
descriptive:
we
could
ask
citizens
or
jurors
or
legislators
questions
that
would
elicit
what
utilities
they
implicitly
assign
to
these
outcomes.
The
other
tactic
would
be
much
more
normative;
it
would
involve
trying
to
settle
what
utilities
it
would
be
rational
to
assign
to
these
outcomes,
given
a
careful
assessment
of
what
consequences
are
associated
with
each.
We
think
a
combination
of
both
these
approaches
is
preferable.
Ultimately,
it
is
(we
suppose)
legislators
who
have
to
make
the
decision
about
what
utilities
to
assign
to
these
outcomes,
for
they
are
the
ones
who
bear
the
responsibility
for
setting
the
standard
of
proof.
It
manifestly
should
not
be
judges
or
jurors
who
are
left
to
make
such
decisions.
Still,
legislators
cannot
responsibly
discharge
that
task
until
and
unless
they
have
reflected
carefully
upon
the
costs
and
benefits
of
the
four
outcomes.
To
that
end,
we
think
it
would
be
helpful
to
identify
the
kinds
of
factors
that
might
shape
a
rational
agent’s
assignment
of
utilities
to
the
outcomes
and
thus
those
crucial
appraisals
of
difference.
We
will
do
so
in
terms
of
figure
4.
Consequence
TC
FC
TA
FA
Felon
gets
just
deserts
Yes↑
No↓
No↓
No↓
Crime
reduction
by
incapacitation
Yes↑
No↓
No↓
No↓
Crime
reduction
by
deterrence
Yes↑
Yes↑
No↓
No↓
Grievous
harm
to
innocent
defendant
No↑
Yes↓
No↑
No↑
Closure
for
victims
Yes↑
Yes↑
No↓
No↓
Modifiable
on
appeal
Yes↓
Yes↑
No↑
No↓
Truth
and
justice
served
Yes↑
No↓
Yes↑
No↓
Partial
restoration
of
defendant’s
reputation
No↑
No↓
Yes↑
Yes↓
Figure
4.
Some
Salient
Consequences
of
the
Four
Outcomes
(The
upward
arrows
indicate
benefits
that
can
be
associated
with
the
outcome
in
question;
downward
arrows
point
to
costs.)
Focus,
first,
on
the
two
elements
in
the
numerator
of
the
ratio
in
(2):
true
convictions
and
false
acquittals.
True
convictions
have
a
host
of
attractions.
Justice
is
done;
victims
are
given
closure;
the
interests
of
truth
are
served;
bad
people
get
their
just
deserts;
crimes
are
prevented
by
incarcerating
wrong‐doers,
many
of
whom
are
already
repeat
offenders;
and
crimes
by
third
parties
are
possibly
deterred
by
the
example
set.
By
contrast,
false
acquittals
16
possess
precious
few
redeeming
features.
On
the
other
hand,
they
don’t
have
many
terrible
features
either.
It
is
true
that
a
false
acquittal
means
that
a
guilty
person
will
not
receive
his
just
deserts,
will
be
released
back
onto
the
streets
to
commit
additional
crimes,
and
that
victims
will
not
get
any
sense
of
closure.
But
we
have
already
included
the
avoidance
of
these
features
among
the
benefits
of
a
true
conviction.
Counting
them
again
under
the
costs
of
a
false
acquittal
would
be
an
unacceptable
case
of
double
counting,
and
so
should
be
firmly
resisted.
One
could
argue,
of
course,
that
these
negative
features
would
as
appropriately
be
included
under
the
costs
of
a
false
acquittal
as
under
the
benefits
of
a
true
conviction.
The
fact
is
that
it
doesn’t
matter
in
which
column
we
count
them,
since
what
we’re
after
here
is
the
difference
between
the
utilities
of
a
true
conviction
and
those
of
a
false
acquittal.
Those
differences
will
not
be
affected
by
where
we
locate
one
or
other
of
these
traits.
In
any
event,
we
can
see
powerful
reason
to
expect
that
the
difference
in
their
respective
utilities
will
be
rather
large.
Since
this
difference
forms
the
numerator
of
the
ratio
in
the
denominator
of
(2),
it
should
already
be
clear
that
we
should
not
expect
the
value
of
that
ratio
to
be
very
small.
And
if
it
is
not,
then
clearly
the
resulting
standard
of
proof
is
not
apt
to
be
very
high.
Let
us
turn
now
to
the
denominator
of
the
ratio:
the
difference
in
the
utilities
of
true
acquittals
and
false
convictions.
True
acquittals
clearly
have
advantages:
truth
and
justice
are
served;
an
innocent
defendant’s
reputation
is
at
least
partially
restored.
But
such
verdicts
do
nothing
to
help
control
crime
or
to
salve
the
wounds
of
victims.
False
convictions,
by
contrast,
have
almost
nothing
to
be
said
in
their
favor
and
a
great
deal
to
be
said
against
them.
On
the
positive
side,
it
might
be
claimed
that,
being
convictions,
they
help
to
deter
future
criminals
and,
if
undiscovered
as
counterfeit,
they
can
give
a
sense
of
closure
to
victims.
On
the
other
hand,
they
come
at
an
enormous
price.
Above
all,
they
involve
depriving
an
innocent
person
of
his
liberty,
his
reputation
and
perhaps
his
self‐respect.
They
also
mean
that
the
real
felon
is
left
at
liberty
to
continue
his
life
of
crime.
If
a
true
conviction
seems
the
most
valuable
of
all
the
verdicts,
a
false
conviction
obviously
is
the
worst
of
the
four
outcomes.
Since
a
true
acquittal
is
a
positive
outcome
but
not
a
stunning
success,
it
seems
reasonable
to
suppose
that
the
difference
in
utilities
between
a
true
acquittal
and
a
false
conviction
will
likewise
be
large.
What
does
all
this
mean
for
the
standard
of
proof?
Both
differences
appear
to
be
nontrivial.
But
we
must
focus
on
the
ratio
of
those
differences.
Defenders
of
the
idea
that
the
standard
of
proof
must
be
very
demanding
(>90%)
have
to
hold
that
the
difference
in
the
utilities
in
the
denominator
is
at
least
ten
times
greater
than
the
difference
of
utilities
in
the
numerator.
That
strikes
us
as
both
arbitrary
and
a
priori.
It
is
unfounded
in
anything
resembling
an
assessment
of
societal
representatives’
beliefs
about
the
utilities
of
various
trial
outcomes.
Even
if
you
hold
that
a
false
conviction
has
a
disutility
three
or
four
times
greater
than
the
utility
of
a
true
conviction,
this
gets
us
nowhere
near
what
would
be
needed
to
justify
a
standard
like
proof
beyond
a
reasonable
doubt
(assuming
the
latter
to
be
>90%),
since
the
absolute
17
utilities
of
a
true
acquittal
and
a
false
acquittal
are
not
likely
to
differ
by
a
vast
amount.
Return,
briefly,
to
the
examples
we
have
already
cited
of
scholars
who
have
explored
in
print
specific
utilities
for
the
four
outcomes.
If
we
look
at
the
ratio
of
differences
in
their
respective
proposals,
they
work
out
as
follows:
Tribe,
0.75;
Lillquist,
0.2;
Milanich,
0.8;
and
Nagel,
0.1.
All
agree
that
uFC
is
less
than
the
other
outcomes
and
that
the
uFA
is
less
than
the
utility
of
a
true
conviction
or
a
true
acquittal.
In
terms
of
rank
ordering
of
the
outcomes,
the
only
disagreement
surfaces
about
whether
a
true
acquittal
or
a
true
conviction
has
the
higher
utility.
All
that
said,
it
remains
true
that
the
ratios
of
the
differences
(and
thus
the
standard
of
proof
entailed)
range
all
over
the
map.
Nagel’s
and
Lillquist’s
utilities
put
the
ratio
of
the
differences
rather
low,
thus
ensuring
a
relatively
high
standard
of
proof
(95%
and
83%
respectively).
Tribe
and
Milanich,
by
contrast,
are
committed
to
a
relatively
high
value
for
the
ratio
of
differences
and
thus
to
a
much
lower
standard
of
proof
(respectively
57%
and
55%).
Given
such
discrepancies
among
estimates
of
the
ratio
of
differences
by
legal
scholars
(a
phenomenon
that
shows
up
alike
in
studies
of
ordinary
jurors
or
citizens),
one
might
conclude
that
there
simply
are
profound
and
irreconcilable
disagreements
about
what
the
criminal
standard
of
proof
should
be,
deriving
from
disagreements
about
the
underlying
utilities
of
the
outcomes
at
trial.
We
think
it
much
too
early
to
draw
that
pessimistic
conclusion,
though
neither
would
we
wish
to
rule
it
out.
What
we
propose,
in
its
place,
is
a
more
serious
empirical
investigation
as
to
what
the
relevant
utilities
of
the
general
population
are.
The
design
of
such
a
study
would
have
to
be
relatively
subtle,
since
the
ordinary
citizen
hasn’t
a
clue
what
a
util
is.
Worse,
since
everyone
can
scale
his
own
utilities,
translations
between
the
utility
sets
proposed
by
different
people
require
careful
interpretation.
(For
instance,
Tribe
and
Lillquist
both
give
a
true
conviction
a
utility
of
1.0.
Still,
in
Tribe’s
case,
1.0
represents
the
highest
point
on
the
scale:
nothing
could
be
more
valuable;
while
in
Lillquist’s
case,
a
utility
of
1.0
suggests
a
modest
positive
advantage
and
nothing
more.)
Several
researchers
have
conducted
experiments
to
figure
out
what
utilities
ordinary
citizens
would
assign
to
each
of
the
four
outcomes
at
trial.25
Nagel
reports
respondents
adopting
utilities
that
yield
a
standard
of
proof
of
55%.
Francis
Dane
reports
juror
utilities
compatible
with
a
standard
of
proof
of
about
51%.26
As
Lillquist
properly
stresses:
“relying
on
values
assigned
by
‘society’
for
the
utility
functions,
appears
to
lead
to
a
much
lower
standard
of
proof
than
is
conventionally
assumed.”27
25
Probably the best know study of this sort is Stuart Nagel et al., “Decision Theory and Juror Decision-
As interesting
as
such
work
is,
we
think
it
possible
to
fix
the
standard
of
proof
without
inquiring
explicitly
and
in
a
one‐by‐one
fashion
about
the
utilities
that
jurors
or
legislators
would
assign
to
each
of
the
four
utilities.
Indeed,
the
structural
features
of
equation
(2)
enable
us
to
short‐circuit
the
process.
Instead
of
eliciting
empirical
data
about
individual
utility
assignments,
we
can,
as
(2)
makes
clear,
infer
what
someone’s
implicit
standard
of
proof
should
be
once
we
know
what
values
he
assigns
to
the
differences
in
the
relevant
outcomes
specified
in
(2).
In
short,
we
needn’t
inquire
directly
about
someone’s
utility
assignments
if
we
know
what
values
the
two
sets
of
differences
take
on.
One
possibility
would
be
to
solicit
those
differences
directly,
asking
for
instance:
“How
much
would
you
pay
if
we
could
transform
a
given
false
acquittal
into
a
true
conviction?”
(This
would
give
us
the
value
of
the
numerator
of
the
ratio
of
differences.)
A
similar
question
would
elicit
information
about
the
other
difference
and
together
the
two
answers
would
reveal
the
standard
of
proof
to
which
that
individual’s
implicit
utilities
commit
him.
Still,
there
is
an
even
cleaner
solution
to
the
problem.
We
think
one
could
get
at
the
answer
to
our
conundrum
by
posing
a
single
question,
for
its
answer
implicitly
embodies
all
four
utilities.
As
(2)
makes
clear,
the
standard
of
proof
to
which
one
is
committed
is
specified
once
we
know
the
value
of
the
ratio
of
differences
in
the
denominator
in
(2).
It
would
seem
we
could
elicit
the
size
of
that
ratio
directly
simply
by
posing
the
following
question:
“You
have
just
been
given
$100,000,
tax‐free.
You
can
keep
it
all,
or
you
can
spend
some
or
all
of
it
in
the
following
way:
A
felon
has
just
been
acquitted
of
a
homicide
that
he
actually
committed.
In
the
next‐door
courtroom,
an
innocent
person
has
just
been
sentenced
to
prison
for
15
years
for
a
murder
he
didn't
commit.
There
is
an
infallible
appellate
Wizard
who
can
always
identify
the
guilty
and
the
innocent.
By
examining
a
criminal
case,
he
can
with
certainty
determine
whether
the
defendant
is
guilty
or
innocent
and
he
has
the
legal
authority
to
change
the
verdict.
You
know
nothing
about
either
of
the
defendants.
You
can
use
some
of
your
$100,000
to
pay
the
Wizard
to
convert
the
false
acquittal
to
a
true
conviction,
and
you
can
use
some
of
it
to
pay
the
Wizard
to
convert
the
false
conviction
into
an
acquittal.
What
is
the
maximum
amount
you
would
pay
the
Wizard
to
convert
the
false
acquittal
to
a
true
conviction?
And
what
is
the
maximum
you
would
pay
the
Wizard
to
convert
the
false
conviction
into
an
acquittal?”?
This
question
is
structured
to
take
advantage
of
the
fact
that
it
reflects
the
value
one
puts
on
the
difference
in
utilities
between
false
verdicts
and
true
ones.
The
respondent’s
answers
give
us
his
valuation
of
the
ratio
of
differences
in
(2).
From
the
mean
of
the
answers
of
multiple
respondents,
we
could
compute
the
standard
of
19
proof,
at
least
in
the
case
of
trials
for
homicide.28
The
value
of
the
ratio
will
likely
differ
substantially
for
different
people;
until
such
time
as
this
(or
a
similar)
question
is
posed
to
legislators,
a
value
for
the
standard
of
proof
of
90%
or
95%
is
wholly
capricious.
It
is
vital
to
stress
that
this
question
does
not
ask
the
respondent
to
determine
the
relative
costs
of
a
false
conviction
and
a
false
acquittal.
It
asks,
rather,
what
are
the
differences
in
utility
between
two
false
verdicts
and
their
respective
true
counterparts.
Even
if
one
believes
that
a
false
conviction
is
ten
times
worse
than
a
false
acquittal,
it
will
not
follow
that
one
should
be
willing
to
“pay”
ten
times
more
to
convert
a
false
conviction
into
a
true
acquittal
than
one
would
pay
to
convert
a
false
acquittal
into
a
true
conviction,
for
those
“payments”
should
reflect
not
only
the
disutilities
of
false
verdicts
but
also
the
positive
utilities
of
true
ones.
RankOrdering
the
Outcomes.
Even
while
(we
have
argued)
it
is
not
necessary
to
know
what
specific
utilities
respondents
would
assign
to
which
outcomes,
it
would
be
interesting
to
know
whether
a
normative
consensus
could
be
forged
about
how
the
utilities
of
those
outcomes
should
be
ranked
in
terms
of
their
desirability.
With
such
knowledge,
we
would
have
a
set
of
plausible
constraints
or
restrictions
to
impose
on
respondents’
specific
assessments
of
utility.
We
have
already
argued
that
true
verdicts
are
preferable
to
false
ones,
so
we
can
already
say
that
specific
utilities
must
obey
these
relations:
uTC>uFC
uTC>uFA
uTA>uFC
uTA>uFA
It
is
also
clear
that
there
is
a
very
broad
consensus
that
false
acquittals,
while
undesirable,
are
clearly
preferable
to
false
convictions.29
We
share
that
sense,
since
a
false
conviction,
especially
for
a
serious
crime,
visits
enormous
undeserved
harm
on
an
innocent
defendant.
More
than
that,
a
false
conviction
fails
to
bring
to
book
the
true
perpetrator
of
the
crime
and
thereby
makes
it
highly
unlikely
that
he
will
never
be
punished.
While
false
acquittals
clearly
have
their
drawbacks
‐‐not
the
least
of
which
is
the
release
of
a
guilty
person
back
onto
the
streets—they
are
less
undesirable
than
false
convictions.
Indeed,
the
only
point
about
which
there
appears
to
exist
controversy
has
to
do
with
the
relative
utilities
of
true
convictions
and
true
acquittals.
We
believe
that
the
correct
relation
here
is
.
Still,
as
Figure
3
shows,
there
is
controversy
about
this
in
the
literature,
and
various
scholars
would
reverse
the
inequality
sign
here,
insisting
28
Although we have, for ease of exposition, written in this paper as if there were a single standard of proof
that would apply alike to all crimes, we deliberately leave that question open to empirical research. It may
turn out that the acceptable ratios of differences for (say) shoplifting, drug possession, aggravated assault and
homicide are quite different. For further discussion, see below.
29
Judging by the attributes shown in Figure 4, false acquittals have precious few redeeming features.
20
that
the
utility
of
a
true
acquittal
is
greater
than
that
of
a
true
conviction.
Tribe
argues,
as
we
will,
in
favor
of
,30
whereas
Milanich
argues
for
its
reverse, ,
asserting
that
“acquitting
the
innocent
is
the
expressed
highest
value
of
our
legal
system.”31
a).
The
subtleties
involved
here
can
be
brought
into
sharper
focus
by
considering
the
following
two
very
different
questions
aimed
at
eliciting
relative
preference
between
the
two
outcomes.
The
first
is,
“If
there
were
two
different
trials
underway,
one
of
which
involves
a
defendant
who
is
actually
guilty
and
the
other
a
defendant
who
is
actually
innocent,
would
I
rather
see
the
guilty
defendant
convicted
or
the
innocent
defendant
acquitted?”
For
most
respondents,
the
answer
to
this
question
will
probably
reflect
the
sentiment
expressed
by
Milanich.
That
is,
were
one
able
to
assure
the
outcome
of
only
one
of
these
trials,
most
would
probably
choose
to
have
the
innocent
defendant
acquitted.
This
suggests
a
utility
ranking .
But
now
consider
the
second
question,
“Would
I
rather
have
society
bring
to
trial
an
innocent
person
and
then
acquit
that
person
or
have
society
bring
to
trial
a
guilty
person
and
then
convict
that
person?”
It
can
be
seen
that
the
answer
to
this
question
will
almost
certainly
be
opposite
the
answer
to
the
first
one.
For
most,
the
clear
winner
would
be
to
bring
to
trial
a
guilty
person
and
then
convict
that
person.
This
is
consistent
with
the
restriction
.
While
this
highlights
the
tension,
neither
of
these
questions
actually
gives
us
sufficient
clarity.
The
problem
with
the
first
question
is
that
it
surreptitiously
introduces
as
pertinent
considerations
that
are,
in
fact,
ancillary
to
it
and
thus
need
to
be
distinguished
from
it.
To
illustrate,
consider
two
extreme
cases:
First,
suppose
it
were
the
case
that
we
knew
all
juries
performed
perfectly
and
without
error
in
acquitting
innocent
defendants
and
imperfectly
in
convicting
guilty
defendants.
Then
there
would
be
no
value
to
causing
the
innocent
defendant
to
be
acquitted
and
we
would
undoubtedly
prefer
to
assure
that
the
guilty
defendant
is
convicted.
This
suggests
a
utility
ranking .
Secondly,
suppose
juries
were
perfect
in
convicting
guilty
defendants
and
imperfect
in
acquitting
innocent
defendants.
In
this
case
we
would
choose
to
have
the
innocent
defendant
acquitted,
indicating
that
my
utility
ranking
is .
The
core
problem
here
is
that,
cast
this
way,
the
utilities
depend
on
prior
beliefs
about
the
performance
of
juries.
This
is
arguably
unknowable,
and
could
even
change
with
time
and
locale.
It
would
be
far
preferable
to
have
a
utility
ranking
that
avoids
this
complication
and
somehow
reflects
society’s
pure
preferences
on
the
outcomes
themselves,
independent
of
considerations
as
to
their
likelihood.
The
problem
with
the
second
question
is
even
subtler.
While
it
avoids
the
complicating
considerations
of
the
first
question,
it
embeds
in
it
a
certain
“sunk
cost”
consideration
with
respect
to
the
task
juries
are
asked
to
perform.
That
is,
by
the
time
society
calls
upon
a
jury
to
make
a
decision
to
convict
or
acquit
a
defendant,
that
defendant
has
already
suffered
the
cost
of
being
charged
and
brought
to
trial.
In
the
30
Tribe, 84 Harv. L. Rev. at 1379-80.
31
Patricia G. Milanich, “Decision Theory and Standards of Proof,” 5 LAW & HUM. BEHAV. 87, at 93 (1981).
21
case
of
an
innocent
defendant,
that
cost
can
be
severe
even
given
acquittal
–
given
the
BARD
standard,
an
acquittal
tells
the
public
only
that
there
was
insufficient
evidence
to
convict,
not
that
this
person
has
been
wrongly
brought
to
trial,
so
acquittal
can
carry
with
it
a
serious
stigma,
not
to
mention
the
expenses
required
to
mount
a
defense.
And
here
is
the
problem
with
this:
in
Decision
Theory,
correct
decision
making
requires
the
decision
maker
to
consider
only
those
things
that
the
decision
can
affect
going
forward,
and
to
ignore
those
events
that
have
already
happened,
and
in
particular
any
costs
or
benefits
associated
with
those
events.
Avoiding
the
“sunk
cost
fallacy”
can
be
most
easily
illustrated
by
reference
to
a
business
example.
In
this
example,
a
business
executive
has
made
a
$500
million
acquisition,
which
at
the
time
looked
to
be
a
prudent
way
to
increase
earnings
substantially.
A
few
years
down
the
road,
things
have
not
gone
as
well
as
expected.
An
analysis
shows
the
net
present
value
of
expected
future
cash
flows
from
this
entity
to
now
be
$200
million.
The
executive
is
approached
by
someone
who
offers
to
buy
the
entity
for
$300
million.
Psychologically,
the
executive
is
heavily
disinclined
to
accept
the
offer
–
she
knows
she
will
be
required
to
take
a
write‐down
(i.e.,
publicly
admit
to
a
bad
outcome
for
a
major
decision
she
made).
She
is
inclined
to
say,
“I
don’t
want
to
take
a
penny
less
than
I
paid
for
it.”
But
this
latter
is
not
among
the
options
available
to
her.
Her
decision
is
a
choice
between
two
alternatives:
one,
continue
operating
the
entity
at
a
present
value
of
$200
million
to
her
shareholders;
or
two,
accept
a
$300
million
payment
now
for
her
shareholders.
The
clear
choice
is
to
accept
the
offer,
the
goal
being
to
maximize
value
given
the
options
available
going
forward.
The
$500
million
initial
outlay
is
irrelevant
to
this
decision.
And
it
would
be
irrelevant
whether
the
$500
million
were
$700
million
or
$10
billion.
The
jury
decision
has
similar
characteristics.
By
the
time
a
jury
is
empanelled,
several
important
decisions
have
already
been
made,
including
decisions
on
whether
to
remand
into
custody
or
release
with
bail,
whether
to
bind
over
for
trial
or
dismiss,
whether
to
charge
the
individual
or
not,
and
whether
to
arrest
the
individual
or
not.
Each
is
a
separate
decision
carrying
its
own
outcomes
and
its
own
considerations
of
the
societal
utilities
and
disutilities
of
these
outcomes,
but
the
important
point
is
that
for
the
jury
decision
itself
society
should
not
allow
jurors
to
consider
any
of
these
sunk
costs
if
the
objective
is
to
maximize
social
utility.
Instead,
the
outcome
utilities
jurors
should
use
(indirectly,
as
argued
here,
by
adhering
to
a
societally‐specified
standard
of
proof),
should
ignore
all
the
sunk
costs
that
the
defendant
has
brought
to
the
courtroom,
including
jail
time,
bond
cost,
attorneys’
fees,
and
the
stigma
of
being
brought
to
trial.
This
is
in
conflict
with
the
second
question,
which
is
cast
in
terms
of
being
brought
to
trial
to
begin
with,
“Would
I
rather
have
society
bring
to
trial
an
innocent
person
and
then
acquit
that
person
or
have
society
bring
to
trial
a
guilty
person
and
then
convict
that
person?”
That
question
unfortunately
brings
into
consideration
what
to
a
jury
will
be
the
sunk
cost
of
bringing
the
person
to
trial,
and
so
cannot
form
a
basis
for
assessing
the
correct
societal
utilities.
b).
Hence,
if
such
questions
don’t
carry
us
to
the
nub
of
the
issue,
we
need
to
consider
a
different
strategy
for
resolving
the
question
of
the
relative
ranking
of
true
convictions
and
true
acquittals.
We
conjecture
that
those
minded
to
rank
true
acquittals
as
more
valuable
than
true
convictions
do
so
because
they
are,
in
effect,
22
double‐counting
the
costs
and
benefits,
thereby
exaggerating
the
gaps
between
the
utilities
that
we
are
trying
to
estimate.
If
we
look
at
Table
3,
true
acquittals
appear
to
be
much
less
valuable
than
true
convictions.
They
don’t
bring
closure
to
victims;
they
don’t
visit
his
just
deserts
on
the
real
felon;
they
don’t
deter
crime
or
incapacitate
the
guilty.
They
don’t
even
provide
a
robust
exoneration
to
the
acquitted
defendant.
While
truth
and
justice
have
triumphed
(and
that
is
never
to
be
underestimated),
that
virtue
does
not
mark
off
a
true
acquittal
from
a
true
conviction.
Why,
then,
might
anyone
suppose
that
a
true
acquittal
is
more
valuable
than
a
true
conviction,
which
exhibits
multiple,
impressive
virtues?
The
most
plausible
answer
to
this
question
goes
as
follows:
when
someone
is
asked
to
judge
how
valuable
a
true
acquittal
is,
he
may
well
say
to
himself:
“Well,
if
a
truly
innocent
person
is
not
acquitted,
the
only
alternative
is
that
he
is
falsely
convicted.
Since
that
outcome
is
horrendous,
a
true
acquittal
must
be
a
very
good
thing
as
it
prevents
something
very
bad.”
But
this
inference
is
precisely
an
instance
of
double
counting.
A
false
conviction
is
indeed
very
costly;
it
sends
to
jail
an
innocent
person,
depriving
him
of
his
liberty,
his
reputation,
and
any
prospect,
at
least
in
the
short
and
medium
term,
for
a
normal
life.
That
is
why
almost
anyone
would
agree
that
the
disutility
of
a
false
conviction
is
very
high.
Still,
since
we
have
already
packed
all
those
nasty
features
into
our
appraisal
of
the
disutilities
of
a
false
conviction,
we
cannot
consistently
backload
our
fears
about
that
outcome
into
our
appraisal
of
other
trial
outcomes.
It
makes
no
sense
whatever
to
say
that
a
true
acquittal
is
highly
desirable
chiefly
because
its
counterpart,
a
false
conviction,
is
so
otiose.
Consider
a
homely
example:
suppose
one
is
contemplating
a
skiing
holiday.
The
alternative
is
to
stay
home.
It
might
be
pertinent,
in
drawing
up
the
pros
and
cons
of
this
decision,
to
factor
in
the
possibility
that
one
might
break
one’s
neck
on
the
ski
slopes.
One
could
either
count
that
as
a
reason
not
to
go
skiing
or
as
a
reason
to
stay
home.
But
if
we
count
it
both
as
a
reason
not
to
go
skiing
and
as
a
reason
to
stay
home,
we
are
distorting
the
real
nature
of
the
choice
between
the
alternatives.
We
make
the
gap
between
the
respective
utilities
of
the
two
options
much
wider
than
it
should
be.
Returning
to
our
example
of
the
valuation
of
a
true
acquittal,
one
likewise
has
two
choices:
one
could
favor
a
true
acquittal
as
the
best
possible
outcome
on
the
grounds
that
it
would
avoid
all
the
nasty
consequences
of
a
false
conviction
or
one
could
leave
all
the
nasty
consequences
in
the
debit
column
of
a
false
conviction.
But
one
cannot
do
both.
That
is,
we
can
either
give
a
very
high
utility
to
a
true
acquittal
(thus
robbing
a
false
conviction
of
all
those
horrors
that
give
it
such
a
high
disutility)
or
we
can
give
a
high
disutility
to
false
convictions
and
judge
true
acquittals
by
what
they
are
rather
than
what
they
are
not.
Interestingly,
many
scholars
who
have
addressed
these
issues
have
apparently
sought
to
do
both.
They
have
held
both
that
a
false
conviction
is
the
most
otiose
of
outcomes
and
that
a
true
acquittal
is
the
most
desirable
of
outcomes,
chiefly
–we
conjecture‐‐because
the
latter
precludes
a
false
conviction.
Our
reply
is
that
if
the
principal
virtue
of
a
true
acquittal
were
simply
that
it
avoids
a
false
conviction,
then
one
can
either
rank
true
acquittals
at
the
top
of
the
scale
of
desirable
outcomes
(thereby
precluding
oneself
from
being
able
to
put
false
convictions
in
the
cellar
of
the
ratings)
or
one
can
accept
that
true
acquittals
are
fairly
23
inert,
low
utility/low
disutility
verdicts
and
that
false
convictions
are
the
outcomes
to
be
most
avoided.
For
such
reasons,
we
believe
that
the
rational
rank
ordering
of
the
outcomes
is
as
follows:
uTC>uTA>uFA>uFC.
An
important
aside:
we
have
so
far
been
somewhat
cavalier
in
our
treatment
of
the
required
utilities
(or
more
precisely,
the
utility
differences)
in
regard
to
the
exact
nature
of
the
crime
involved,
beyond
characterizing
it
as
“serious.”
The
objection
might
legitimately
be
raised
that
assessed
utility
differences
may
depend
on
the
exact
crime
under
consideration
and
will
likely
differ
as
between
a
homicide
and
an
armed
robbery.
Moreover,
if
the
methodology
is
purported
to
be
applicable
to
all
criminal
cases,
it
is
not
difficult
to
put
forward
a
conjecture
that,
for
many
respondents,
their
expressed
utility
differences
will
differ
as
between
a
homicide
and
shoplifting,
thus
calling
into
question
the
methodology.
But
in
fact,
this
is
a
strength
of
the
methodology,
not
a
weakness.
If
the
objective
is
to
provide
more
rational
standards
of
proof
to
jurors,
the
methodology
can
readily
accommodate
different
standards
of
proof
for
different
classes
of
crime.
By
specifying
the
crime
(and
associated
punishment)
in
advance
of
assessing
the
utility
differences,
we
open
the
door
to
a
natural
association
of
classes
of
crimes
with
different
standards
of
proof.
It
is
easy
to
speculate
that
society
may
prefer
to
require
a
different
standard
of
proof
for
a
capital
crime
than
for
shoplifting.
While
it
cannot
be
so
claimed
in
advance,
actual
assessments
of
utility
differences
from
legislators
may
point
to
the
need
for
different
standards
of
proof
for
different
classes
of
crime.
This
would
be
a
natural
outcome
of
the
methodology,
not
a
limitation
of
it.
Some
Formal
Rationality
Restrictions
on
Societal
Utilities:
We
have
presented
the
case
that
utilities
themselves
are
not
necessary
to
establishing
a
standard
of
proof
for
trial
juries,
but
rather
a
more
readily‐assessed
difference
in
utilities.
However,
if
the
problem
is
viewed
more
generally
as
establishing
standards
of
proof
for
the
justice
system,
including
decisions
regarding
arrest
or
don’t
arrest,
file
charges
or
don’t,
bind
over
for
trial
or
dismiss,
and
remand
into
custody
or
release,
it
will
likely
be
the
case
that
outcome
utilities
will
need
to
be
assessed
rather
than
simple
differences.
Accordingly,
it
behooves
us
to
comment
on
plausible
restrictions
that
should
be
placed
on
these
outcome
utilities.
While
citizens
and
legislators
are
free
to
assign
whatever
subjective
utilities
to
the
four
outcomes
they
find
appropriate,
that
activity
should
nonetheless
be
subject
to
some
formal
constraints.
For
instance,
we
would
want
to
exclude
any
utility
assignments
that
allowed
for
the
value
of
the
standard
of
proof
to
take
on
a
negative
value
or
that
allowed
for
probabilities
greater
than
1.0.
Likewise,
we
would
find
it
bizarre
if
someone
assigned
higher
utilities
to
false
verdicts
than
they
did
to
true
ones.
24
We
have
already
claimed
that
no
one
who
would
dispute
that
true
verdicts
are
preferable
to
false
ones.
So,
we
can
be
sure
that
,
,
,
,
and
that
.
These
four
inequalities
assure
that
a
standard
of
proof
will
always
exist,
and
that
it
will
be
between
0
and
1.32
They
also
insure
that
the
societal
appeal
of
each
verdict
changes
in
a
sensible
way
with
respect
to
the
juror’s
perceived
probability
of
guilt, .
That
is,
these
restrictions
imply
that
the
societal
expected
utility
of
a
guilty
verdict
increases
as
the
juror’s
perceived
probability
of
guilt
goes
up,
and
that
the
societal
expected
utility
of
a
not
guilty
verdict
decreases
as
juror’s
perceived
probability
of
guilt
goes
up.
More
formally,
with
these
two
restrictions,
and .
This
result
relies
on
the
fact
that
the
two
expected
utility
functions
are
linear
and
strictly
monotonic.
However,
these
restrictions
do
not
alter
the
feasible
range
of .
This
can
be
seen
by
considering
Figure
5,
below.33
32
Existence
Theorem
A
formal
proof
is
not
required
as
the
result
is
evident:
by
looking
at
Figure
2
it
is
apparent
that
if has
strictly
larger
value
than (consider
the
left‐hand
intercepts
at )
and has
strictly
larger
value
than (consider
the
right‐hand
intercepts
at ),
the
two
lines
must
cross
somewhere
between and .
This
would
hold
even
if
the
two
lines
were
highly
non‐linear,
provided
only
that
the
functions
determining
these
lines
were
continuous.
Here,
the
expected
utility
lines
are
both
linear
and
continuous.
Note
that
given
these
two
restrictions,
and ,
the
value
of is
not
restricted
at
all,
except
to
be
bounded
by
.
Note
also
that
these
conditions
are
a
sufficient
(but
not
necessary)
condition
for
the
existence
of
p*.
33
This figure is essentially identical to Figure 3 of DeKay, op. cit.
25
Figure
5.
Relationship
between
Utility
Differences
and
the
Standard
of
Proof
Figure
5
shows
how
the
standard
of
proof
depends
on
the
ratio
of
to
.
If
one
visualizes
shrinking
the
distance
(indicated
as
the
right‐hand
brace)
relative
to
(indicated
as
the
left‐hand
brace),
one
can
see
that
this
increases
the
threshold
standard
of
proof
;
similarly,
shrinking
the
left‐hand
brace
relative
to
the
right‐hand
brace
decreases
the
standard
of
proof
.
It
can
be
seen
that
appropriate
reductions
in
the
two
utility
differences
can
lead
to
a
very
large
range
for
the
value
of
.
Thus,
as
we
have
argued
previously,
there
is
no
foundation
for
arguing
that
the
standard
of
proof
must
necessarily
be
anything
like
the
value
of
around
90%
commonly
proposed
by
other
researchers.
A
cautionary
theoretical
note:
The
core
of
what
we
are
trying
to
accomplish
is
bringing
rationality
and
clarity
to
the
standard
of
proof
in
criminal
law
using
decision
and
utility
theory.
It
is
argued
elsewhere
that
this
is
foundational
to
securing
equal
protection
and
due
process
and
that
it
can
be
practically
accomplished.34
But
achieving
this
goal
requires
establishing,
directly
or
indirectly,
society’s
utilities
on
the
four
outcomes.
However,
there
is
a
profound
conceptual
and
logical
problem
with
this
requirement
having
to
do
with
the
meaning
of
“societal
utilities.”
As
famously
demonstrated
by
Arrow35
in
his
Impossibility
Theorem,
there
is
no
way
to
consistently
and
with
surety
obtain
the
overall
utility
of
any
group
on
any
set
of
outcomes
based
on
the
utilities
of
the
individuals
in
that
group.
Practically
speaking,
society
tries
to
accomplish
this
goal
of
reflecting
societal
utilities
by
means
of
representative
governance
and
various
voting
procedures.
If
the
case
is
compelling
34
Harry D. Saunders, “Quantifying Reasonable Doubt: A Proposed Solution to an Equal Protection Problem,”
The Berkeley Electronic Press, Paper 881, http://law.bepress.com/expresso/eps/881 (2005).
35
Ken Arrow, “A Difficulty in the Concept of Social Welfare,” JOURNAL OF POLITICAL ECONOMY 58(4), 328-
346 (1950).
26
enough
to
replace
the
current
standard
with
a
better,
clearer
one,
a
similar
approach
will
need
to
be
adopted
to
establish
these
societal
utilities.
As
argued
elsewhere36
the
constitutionally‐correct
forums
for
this
in
the
United
States
are
the
State
Legislatures
and
the
US
Congress
(where
federal
crimes
are
concerned).
A
future
study
will
address
methods
for
facilitating
the
assessment
of
societal
utilities
from
State
legislators
and/or
their
designates
and
facilitating
the
creation
of
a
consensus
recommendation
leading
to
a
quantified
standard
of
proof
that
reflects
as
accurately
as
is
feasible
the
societal
utilities
of
that
particular
State.
Conclusions
This
analysis
is
based
on
the
presumption
that
standards
of
proof
can
be
quantified
in
criminal
law.
The
analysis
demonstrates
that
while
the
magnitude
of
a
utility‐based
standard
of
proof
is
highly
dependent
on
societal
utilities
of
the
four
possible
outcomes
of
a
criminal
trial,
given
all
the
rational
restrictions
on
the
ranking
of
these
societal
utilities
there
are
no
inherent
restrictions
on
the
magnitude
of
that
standard
beyond
.
It
also
shows
that,
even
if
we
impose
on
the
utility
structure
a
set
of
unabashedly
Blackstonian
sensibilities
about
the
respective
costs
of
a
false
conviction
and
a
false
acquittal,
and
add
a
sop
to
those
who
think
true
acquittals
are
better
than
true
convictions,
it
does
not
follow
that
the
criminal
standard
of
proof
need
be
anywhere
near
the
high
levels
associated
with
proof
beyond
a
reasonable
doubt
in
the
academic
literature.37
36
Harry D. Saunders, op.cit.
37
One final caution: The fact that we have spoken throughout this paper as if the standard of proof were best
expressed as a probability should not necessarily be taken to mean that we are advocating that it should be so
formulated for consumption by fact-finders. Some, including one of the authors of this paper, have voiced the
suspicion that qualitative, verbal standards of proof may be more accessible and intelligible to jurors than
quantitative ones are. If true, the height of the standard should be set by using probabilities and then
‘translated’ into a verbal expression. Others, including the other author of this paper, have argued that explicit
quantification of the standard is the only way to overcome serious equal protection and due process problems,
and to avoid a logical conundrum faced by jurors cognizant of widely disparate interpretations of verbal
statements of the standard. But either way, we offer that the analysis of this paper should help point a way
forward to a more rational, and honestly articulated, standard of proof in criminal law.