Proof Beyond a Reasonable Doubt: A Balanced
Retributive Account
Alec Walen*
TABLE OF CONTENTS
Introduction .................................................................................. 356
I. Background on the BARD Standard—Groundwork .................... 362
A. The Legal Background of the BARD Standard ..................... 363
B. The Lessons of History and Epistemological Nonsense ........ 367
C. The BARD Standard in Contemporary Practice .................... 373
II. The Failure of Maximalist Arguments ......................................... 376
A. Accidental Versus Deliberate False Convictions ................... 378
B. Equality and Fairness ............................................................. 381
1. The “Equal Best” Standard and Weighty Evidence ........ 382
2. The Argument from Fairness ........................................... 384
C. The Social Contract ................................................................ 386
D. The Distinction Between Causing and Allowing Harm ......... 390
E. The Expressive Significance of Condemnation ..................... 395
III. Consequentialist Rejection of the BARD Standard ...................... 400
A. Preliminary Remarks on Consequentialism ........................... 403
B. Primary Consequentialist Considerations for the
SOP in Criminal Cases ........................................................... 406
Copyright 2015, by ALEC WALEN.
* This Article is a more thorough exploration of ideas that I have previously
explored. See Mattias Kumm & Alec D. Walen, Human Dig nity and
Proportionality: Deontic Pluralism in Balancing, in PROPORTIONALITY AND THE
RULE OF LAW: RIGHTS, JUSTIFICATION, REASONING 67 (Grant Huscroft et al. eds.,
2014). Special thanks to Erin Islo, Khushboo Shah and Adam Klein for their
research help on this project, and Paul Baier, Charles Barzun, Nick Beckstead,
Corey Brettschneider, Tim Campbell, Kim Ferzan, Georgi Gardiner, Stuart
Green, Adil Haque, Debbie Hellman, Douglas Husak, Leora Katz, Adam Kolber,
Hallie Liberto, Mattias Kumm, Larry Laudan, Seth Lazar, John Leubsdorf,
Maggie Little, Dan Markel, Jeff McMahan, Olivier Moreteau, Alain Pé-Curto,
Walter Perron, David Plunkett, Emily Podhorcer, Ralf Poscher, Re’e m Segev,
Holly Smith, Rolf Stürner, Larry Temkin, Silja Vöneky, Thomas Weigend, and
Yuan Yuan. Thanks also to the audiences at the University of Virginia School of
Law, LSU Paul M. Hebert Law Center, the University of Amsterdam School of
Law, the Max Planck Institute for Criminal Justice, the KoRSE Program at
Freiburg University, and the ICON-S Conference 2014 for their helpful
discussions and comments on earlier versions of this Article.
356 LOUISIANA LAW REVIEW [Vol. 76
1. Deriving the Equation for the SOP .................................. 406
2. Objections and Replies Regarding the Use
of Numbers ...................................................................... 408
3. Filling in Values for the SOP .......................................... 411
C. Variable Standards of Proof ................................................... 416
D. Drawing Moral Lessons About Consequentialism
and the SOP ............................................................................ 423
IV. A Retributive Justification for the BARD Standard ..................... 426
A. Overview of the Retributive Framework
for the BARD Standard .......................................................... 426
B. What is New in the New Retributive Solution ....................... 430
C. The Intrinsic Value of Deserved Punishment ........................ 432
D. The Relative Weakness of the Intrinsic Value of
Punishing the Guilty Compared to the Harm of Punishing
the Innocent ............................................................................ 432
E. The Retributive Balance and the BARD Standard ................. 434
Conclusion .................................................................................... 438
Appendix ...................................................................................... 439
INTRODUCTION
The standard of proof (“SOP”) for criminal convictions in the United
States—and in many other jurisdictions1—is proof beyond a reasonable
doubt (the “BARD” standard). The Supreme Court held that this standard
was a constitutional requirement in 1970 in In re Winship.2 The standard,
which is customarily thought to require the fact finder to be at least 90%
1. S ee infra notes 29–34.
2. 397 U.S. 358, 364 (1970). Winship was not a unanimous opinion, but all
of the Justices agreed on the substantive conclusion. Justices Burger and Stewart
dissented on the ground that “[t]he original concept of the juvenile court system
was to provide a benevolent and less formal means than criminal courts could
provide for dealing with the special and often sensitive problems of youthful
offenders.” Id. at 376 (Burger, J., dissenting). They avoid requiring the BARD
standard, then, by distinguishing convictions in juvenile courts from “criminal”
convictions. Justice Black also dissented, but his reasons were grounded in concerns
about judicial restraint. Id. at 385–86 (Black, J., dissenting). Substantively, he
agreed that “a strong, persuasive argument can be made for a standard of proof
beyond a reasonable doubt in criminal cases—and the majority has made that
argument well.” Id. at 385.
2015] PROOF BEYOND A REASONABLE DOUBT 357
certain of the defendant’s guilt to convict,3 is now part of American legal
folklore. But neither the BARD standard’s proper interpretation nor its
theoretical justification are settled and clear.4 This Article aims to address
both of these deficits.
To address these deficits, it will be helpful to have a clear sense of
what an SOP does. Understood most generally, an SOP provides an agent
with a practical standard for determining that an action is sufficiently
likely to be objectively justified for her to permissibly and blamelessly
perform it.5 This concept applies not only to judicial actions, such as
convicting a criminal defendant, but to any action that an agent might perform,
and that might, depending on facts that are not known to her, be objectively
justifiable. That is, it applies not only to convictions but also to acts such as
self-defense. It also implies both that an agent can act permissibly and
blamelessly even if she does what is objectively unjustifiable, and that she can
act impermissibly and in a way that warrants blame even if she does what is
objectively justifiable. The focus in this Article, however, will be determining
when criminal convictions are impermissible because the likelihood of
punishing an innocent person is too high.
To be clear, punishing an innocent person wrongs that person.
Nonetheless, if the state’s fact finder has found him guilty using the morally
correct SOP, then the state acts permissibly and blamelessly. It acts
permissibly and blamelessly, despite the unfortunate result, because its
agents took all the care that they were required to take.6 Thus, the challenge
for a theory of the SOP for a criminal conviction is to determine: (1) how
stringent the SOP must be before a fact finder meeting the standard acts
3. See, e.g., Christopher Slobogin, Dangerousness and Expertise Redux, 56
EMORY L.J. 275, 306 (2006).
4. One dispute that this Article does not pursue further concerns the standard
for mixed questions of law and fact. See United States v. Gaudin, 515 U.S. 506,
522–23 (1995) (finding that courts must use the BARD standard to answer mixed
questions of law and fact); but see Youngjae Lee, Reasonable Doubt and Moral
Elements, 105 J. CRIM. L. & CRIMINOLOGY (forthcoming 2015) (where the law
involves making vague moral judgments, such as that a person’s actions were
“cruel,” the state should not have to meet the BARD standard).
5. See T.M. SCANLON, MORAL DIMENS IONS: PERM ISSIBILIT Y, MEANING,
BLAME 49–52 (2008) (treating permissibility as an action guiding term).
Permissibility and blame can come apart; it can be permissible to do the right thing
for the wrong reason and thereby merit blame. But such worries are outside the
scope of this Article.
6. If the state discovers later that the person was actually innocent, the state
should recognize that it owes compensation for the wrong done. But this
compensation is analogous to a kind of strict liability debt for faultless
wrongdoing, and one should not interpret the state’s owing compensation as
implying that the state was at fault for the wrong done.