Proof Beyond a Reasonable Doubt: A Balanced Retributive Account

• Author: Alec Walen
• Pages: 355-446

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.