Abstract

The criminal defendant is presumed innocent and his guilt must be proved beyond reasonable doubt for conviction. On some issues, however, the defendant must prove his innocence on the balance of probabilities to avoid conviction. Commentators have despaired of reconciling reverse burdens with the presumption in a principled way. Andrew Stumer has made a fresh attempt; however, his solution is overly rigid and rule bound. The presumption is engaged in a dynamic enterprise—minimizing the expected cost of error, mistaken acquittals as well as wrongful convictions. Stumer’s fixed criminal standard and stringent restrictions on reverse burdens work against this goal. A more flexible approach is required, reflecting the calculus of error management. Where the cost or probability of wrongful conviction is relatively low, and the cost or probability of mistaken acquittal relatively high, it may be necessary to lower the standard of proof, or even to reverse the burden of proof. To inhibit these strategies is to increase the expected cost of error at trial