Aggregation and law.

• Author: Porat, Ariel
• Position: III. Criminal Law through Conclusion, with footnotes, p. 34-69

3. CRIMINAL LAW

   1. Factual Aggregation

      Aggregation in criminal law resembles aggregation in tort law but raises special concerns because of sensitivities about the rights of the accused. (79) Consider the following example:

      Example III.1. Two Unproven Charges. The defendant is charged with pickpocketing and rape, two unrelated offenses allegedly committed by him at different times and places. The evidence suggests that the probability that he committed each one of these offenses is 90%. Assume that the required probability necessary to satisfy the beyond-a-reasonable-doubt standard is 95%. (80)

      Under prevailing law, the defendant would be acquitted of both offenses. Yet there is a 99% probability (81) that he committed at least one offense, which is higher than the 95% probability necessary for conviction in a criminal trial. If instead the court engaged in cross-claim factual aggregation, it could convict the defendant of one unspecified offense and impose on him, at a minimum, the sanction of the less severe of the two offenses, pickpocketing. (82) Example III.1 raises a straightforward dilemma: individuals are routinely convicted for committing a single offense on the basis of evidence that establishes guilt with a lower probability (95% under our assumption) than the probability that the defendant in Example III.1 committed at least one offense (99%). Arguably, it is not just that the Example III.1 defendant is acquitted while, at the same time, a defendant charged with a single offense that can be proven at a lower probability (95% under our initial assumption) is convicted.

      Example III.1 illustrates how cross-claim factual aggregation could result in more convictions than with no aggregation. But aggregation could also result in fewer convictions, as is illustrated in Example III.2.

      Example III.2. Two Proven Charges. The defendant is charged with pickpocketing and rape, two unrelated offenses, allegedly committed by him in different times and places. The evidence suggests that the probability that he committed each one of these offenses is 95%. Assume that the required probability necessary to satisfy the beyond-a-reasonable-doubt standard is 95%.

      Under prevailing law, the defendant would be convicted of both charges because the probability that he committed each of the offenses (95%) is sufficient for conviction. Yet, the probability that the defendant committed both offenses is only 90%, which is lower than 95%. (83) Therefore, with cross-claim factual aggregation, the court would convict the defendant of only one offense: while the probability that he committed at least one offense is greater than 95%, which is sufficient for conviction, the probability that he committed two offenses is insufficient. The court would then need to decide which offense to convict the defendant of. In our view, the correct decision would be to convict the defendant only of the more severe offense, since the probability that he committed that offense is 95%. (84) However, it could well be appropriate for the court to nudge the sentence for the more severe offense up a bit to reflect the fact that there is a 90% probability that the defendant committed both offenses. (85)

      Cross-claim factual aggregation in cases illustrated by Example III.1 would arguably improve deterrence (assuming, as we must, that the beyond-a-reasonable-doubt standard should be taken as fixed). Under current law, when defendants are charged with several offenses, and the probability that they committed at least one of those offenses is very high, they still often escape conviction just because no specified offense can be attributed to them with sufficient certainty. Those defendants could be considered underdeterred under current law, and would then be better deterred with cross-claim factual aggregation. In contrast, cross-claim factual aggregation in cases illustrated by Example III.2 would reduce false convictions (that is, convictions of the innocent). Under current law, defendants who are charged with several offenses are often convicted of all of those offenses, even if the aggregated probability that they committed all of them is too low to meet the beyond-a-reasonable-doubt threshold. With cross-claim factual aggregation, those defendants will be convicted of fewer offenses, and many false convictions will be avoided. (86)

      Cross-claim factual aggregation in criminal law might be regarded as more objectionable than in torts and contracts, because of the concern that it would curtail the accused's rights (although, as illustrated by Example III.2, aggregation could also favor the accused). Allowing aggregation would require changes in procedure that many would consider undesirable. In particular, aggregation would require that the prosecution be allowed to bring several charges of different natures against the accused at the same trial, since it is hard to imagine that aggregation could take place if each charge were brought before a different jury or judge. (87) Aggregation could increase the burden on the defense, since defending against several charges, even if each has a low probability, could be harder and more costly than defending against one high-probability charge. Aggregation could also encourage abuse and strategic behavior by the prosecution because it is typically easier--maybe too easy--to bring many low-probability charges against the defendant than to bring one high-probability charge against him. (From a different perspective, however, bringing several low-probability charges together could reduce the expense of criminal litigation by economizing on enforcement costs.)

      Furthermore, prosecutors might strategically avoid bringing two high-probability charges together (as in Example III.2) if they believe that they have enough evidence to establish guilt for each of the charges, out of fear that the court would aggregate the probabilities and convict the defendant of only one charge. This concern could be mitigated, however, if the accused were allowed to force the prosecution to bring the two charges in a single trial. (88)

      Finally, a more substantive objection to aggregation could be that it would dilute the expressive function of criminal law. Thus, in Example III.1, with aggregation, the accused would be convicted of being either a rapist or a pickpocket, and his criminal record might literally list his offense as "rape or larceny." Some commentators may consider that outcome intolerable: punishing a person for an offense that the person may or may not have committed rather than for the offense that the person actually committed dilutes the expressive, educational, and communicative messages of punishment. But, on the other hand, it is hard to see why acquittal of both offenses would be preferable, even from an expressivist point of view. (89)

      Cross-element aggregation is also an issue in criminal law. (90) If several elements of the same offense must be proven to establish the defendant's guilt, then cross-element aggregation could generate a different outcome than if each element were considered separately. For instance, if convicting a person for burglary requires both trespass and intent to commit a crime, it is possible that even if each element of the offense (trespass and intent) can be proven beyond a reasonable doubt, reasonable doubt could still exist with respect to the cumulative presence of the two elements. Will the court convict the defendant under such circumstances? The answer is unclear. (91) As in tort and contract law, however, within-element factual aggregation is permissible and appears routine. (92)

      Cross-claim factual aggregation should be distinguished from two existing doctrines in criminal law: the prior-acts and similar-crimes doctrines. (93) Under both of these doctrines, past similar behavior on the part of the defendant can be used as evidence supporting conviction. (94) But these two doctrines, termed the "pattern-of-behavior" doctrines, are distinct from the aggregation discussed above. Whereas the pattern-of-behavior doctrines are based on the probabilistic dependence of the offenses attributed to the defendant, the aggregation we have discussed is most appropriately (but not only) applied when those offenses are entirely independent of one another.

      Under the prior-acts doctrine, which was adopted in Rule 404(b) of the Federal Rules of Evidence, the prosecution can bring evidence of other crimes, wrongs, or acts that can be attributed to the defendant to establish "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." (95) Such prior acts cannot be used as propensity evidence, (96) however, and courts are required to instruct the jury accordingly. (97) Interestingly, under Rule 404(b), as interpreted by the Supreme Court, even conduct that has been the subject of a prior acquittal can be submitted as evidence by the prosecution in a subsequent trial in order to support conviction. (98)

      The similar-crimes doctrine, adopted in Rules 413 and 414 of the Federal Rules of Evidence, applies to sexual assault and child molestation offenses. (99) Under this doctrine, if the defendant is accused of one of these types of offenses, "the court may admit evidence that the defendant committed any other" offense of the same type, and "[t] he evidence may be considered on any matter to which it is relevant." (100)

      The superficial similarity between the pattern-of-behavior doctrines and aggregation stems from their shared feature, namely, that all three consider the past behavior of the defendant and affirm that past behavior can influence the likelihood of conviction. (101) But, this resemblance notwithstanding, there is a substantial difference between them. The pattern-of-behavior doctrines are rooted in the premise that a person who has committed several offenses in the past could be more likely to have either intended to commit or...