ERROR AVERSIONS AND DUE PROCESS.

• Author: Garrett, Brandon L.

TABLE OF CONTENTS INTRODUCTION I. THE DISTRIBUTION OF TRIAL ERROR AVERSIONS IN THE GENERAL PUBLIC A. Prior Survey Data on Trial Error Aversions B. New Survey Data on Americans' Trial Error Aversions C. Summary II. INDIVIDUAL CHARACTERISTICS AND ERROR AVERSIONS A. Demographic and Political Differences B. Experiences with, and Perceptions of, the Criminal Justice System III. JUROR BEHAVIOR AND ERROR AVERSIONS A. Error Aversions and Conviction Rates B. Evidence Skepticism or Burden of Proof Adjustments? IV. THE LARGER CONSEQUENCES OF THE PUBLIC'S ERROR AVERSIONS A. Rethinking the Burden of Proof as the Primary Safeguard of Defendants B. Implications for Constitutional Criminal Procedure C. Implications for Crime Policy CONCLUSION INTRODUCTION

Christopher Michael Sanchez had the right idea. During voir dire in his trial for assault on a public servant, Mr. Sanchez's lawyer sought to ask the venire "to rate on a scale of one to five whether it agreed or disagreed with the statement that it is better for ten people [to] go free than one be convicted." (1) The judge disallowed use of the scale but permitted counsel to ask prospective jurors whether they agreed or disagreed with "Blackstone's ratio," (2) that it is "better that ten guilty persons escape, than that one innocent suffer." (3)

The appellate court concluded that this alteration in questioning was not so important as to have affected Mr. Sanchez's substantial rights. (4) The court correctly noted that prospective jurors might have disagreed with Blackstone's ratio because they rejected the idea that any error was acceptable or because they disagreed with the particulars of the math--that the posited ratio was too high or too low. (5) Thus, no matter how the initial question was posed, further questioning was needed to understand how jurors' views on the Blackstone ratio might have affected their interpretation of the state's "beyond a reasonable doubt" burden of persuasion. (6) Because counsel did not seek to ask further questions on the topic, the judge's restriction on voir dire did no harm. (7)

Despite the somewhat flawed execution, Mr. Sanchez and his counsel were on to something important, for many prospective jurors do not share Blackstone's view. (8) Still more troubling, those who do not share that view are unlikely to give the defendant the same benefit of the doubt as those who agree with Blackstone.

We establish both propositions empirically. Across several national surveys, we have found that far more Americans reject Blackstone's view than endorse it: a majority equate the harms of false acquittal and false conviction, and a sizeable minority deem false acquittals more harmful to society than false convictions. (9) The majority of Americans are unwilling to trade multiple false acquittals to avoid one false conviction, and many are willing to accept multiple false convictions to avoid one false acquittal. (10) These value differences matter greatly: those who see false acquittals on par with, or worse than, false convictions are more receptive to the prosecution's evidence and are easier for the prosecution to persuade. (11) We observe these value and behavioral differences in multiple samples of the U.S. population through various trial error aversions measurements, and the pattern holds across political groups. (12) Perhaps still more surprising, we find that this is not necessarily a partisan preference. Majorities of Democrats, Republicans, and Independents all view false convictions and false acquittals to be errors of equal magnitude. (13)

Our empirical evidence establishes that the error aversions held by the general public depart dramatically from long-accepted constitutional norms. (14) Blackstone proffered his famous ratio in 1765, (15) but the notion that false convictions constitute a greater injustice than false acquittals animated the law at least as early as biblical times. Blackstone's 10:1 ratio is just one of many formulations of the idea that false convictions outweigh false acquittals morally and legally. (16) In the United States, the Supreme Court first invoked the Blackstone principle in 1895 to justify the presumption of innocence (17) and again in 1970 to justify incorporating the requirement of the beyond-a-reasonable-doubt burden of persuasion in criminal cases under the Due Process Clause of the Fourteenth Amendment. (18) The fundamental due process protections for criminal defendants at trial--the presumption of innocence and the requirement of proof of guilt beyond a reasonable doubt--arise from the principle that the state should impose punishment only on the clearest of proof that the accused committed the crime charged, even if this high bar means some wrongdoers will escape punishment. In a very real sense, the Supreme Court understands due process as a manifestation of the Blackstone principle: "With reputation, liberty, and at times even life on the line, every legal and moral precept counsels caution in bringing down the hammer of justice on a criminal defendant." (19)

Although occasionally questioned, (20) for the most part, judges, lawyers, and legal scholars accept as correct the proposition that the need to minimize wrongful convictions justifies procedural asymmetries that favor the defendant. (21) Indeed, one scholar labeled Blackstone's ratio the "Mount Everest of legal mantras." (22) Perhaps because legal education inculcates this mantra, (23) rarely do judges, lawyers, or legal scholars question whether nonlawyers agree with it. (24) The prevailing wisdom seems to be that while jurors may not always agree a high burden of proof should apply in every case, jurors will follow the standard jury instructions and err in favor of the accused. (25)

Our first results showing widespread rejection of the Blackstone ratio were so surprising and potentially disruptive that we tested their robustness multiple times, using a series of large samples drawn from the entire U.S. population and multiple measurement methods. (26) The picture remained consistent and clear: far more Americans view false acquittals and false convictions to be errors of equal magnitude than those who view false convictions to be the more serious error, and a sizeable minority consider false acquittals to be the more serious error. We detail these results in Part I and explain why prior studies missed this important finding.

In Part II, we examine the demographic, experiential, and ideological correlates of these different error aversions. (27) We find that people's error aversions defy simple ideological assumptions: a majority of Democrats, Republicans, and Independents all see false convictions and false acquittals as equally harmful, and many Democrats deem false acquittals more harmful than false convictions. Concerns about the criminal justice system are better predictors of error aversions: those equally averse to the two trial errors tend to have greater fears of being a crime victim and of being falsely accused of a crime, and these fears transcend party labels.

In Part III, we address the behavioral consequences of these different error aversions. We show that a person's error aversions are important predictors of how they will behave as jurors. For example, in one of our recent studies, the conviction rate among people who prioritize the avoidance of false acquittals was 58 percent, compared to a conviction rate of 25 percent among those who prioritize the avoidance of false convictions, even though these two groups were exposed to the same evidence. (28) We find similar results in other studies examining how jurors respond to expert evidence and eyewitness evidence. (29)

In Part IV, we turn to the larger implications of our findings for legal doctrine and crime policy. Herbert Packer famously described two competing models of criminal justice: (1) the crime control model, emphasizing the need to repress criminal conduct and an outright "presumption of guilt," and (2) the due process model, which emphasizes the presumption of innocence, the risk of convicting the innocent and procedural protections for the accused. (30) Our results suggest that most people view both models as equally important. This finding has substantial implications for legal doctrine, from evidence rules to criminal procedure more broadly, which assume the trial is the "main event" and a beyond-a-reasonable-doubt standard is the key protection for the accused.

Put simply, our findings suggest that legal doctrines that assume the median juror is more averse to false convictions than false acquittals proceed from an empirically false premise. Lawyers should rethink how they select jurors and present evidence, and judges should reconsider how due process protections are implemented. Courts should not presume jurors will follow an instruction to find guilt beyond a reasonable doubt. Jurors may fully understand the burden of persuasion and seek to implement it in good faith, but their error aversions may affect how they view evidence and how they decide whether it exceeds the prosecution's burden. As a result, jury instructions regarding burdens of proof may not be adequate to secure the values underlying due process protections. Instead, we suggest courts consider nontrial protections, like more stringent pretrial screening of criminal cases, similar to the process courts already use for civil cases. Or courts could more carefully limit what evidence gets admitted. For far too long, constitutional criminal procedure, evidence law, and trial practice have assumed jurors will impartially test a prosecution case. We call into question that assumption and suggest a different path for criminal procedure.

The error aversions we document may also affect a range of broader policy decisions that define our criminal justice system. Public policy advocates who assume the median voter will support initiatives to minimize the risk of false convictions...