Re-Thinking the Criminal Standard of Proof: Seeking Consensus about the Utilities of Trial Outcomes

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. Along the way, we note: (1) The disproportionate role that the Blackstone ratio of errors continues to play in utility appraisals (despite its unintelligibility in the context of utilities); and (2) The persisting belief—for which there is no theoretical basis—that any plausible assignment of utilities will inevitably result in a very high standard of proof.