Proof Beyond a Reasonable Doubt: A Balanced Retributive Account

Louisiana Law Review 76 (2):355-446 (2015)
  Copy   BIBTEX

Abstract

The standard of proof in criminal trials in many liberal democracies is proof beyond a reasonable doubt, the BARD standard. It is customary to describe it, when putting a number on it, as requiring that the fact finder be at least 90% certain, after considering the evidence, that the defendant is guilty. Strikingly, no good reason has yet been offered in defense of using that standard. A number of non-consequentialist justifications that aim to support an even higher standard have been offered; all are morally unsound. Meanwhile, consequentialist arguments plausibly support a substantially lower standard — in some cases so low as to undermine the idea that punishment is what is at stake. In this paper, I offer a new retributive justification that supports excluding the instrumental benefits of punishment from the balance that sets the standard. The resulting balance supports a standard arguably in the ballpark of the customary understanding of BARD: a standard requiring that the fact finder have a high, though not maximally high, degree of confidence that the defendant is guilty.

Links

PhilArchive

External links

  • This entry has no external links. Add one.
Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library

Similar books and articles

Criminal Proof: Fixed or Flexible?Lewis Ross - 2023 - The Philosophical Quarterly.
Criminal Proof: Fixed or Flexible?Lewis Ross - 2023 - Philosophical Quarterly (4):1-23.
In Defence of Reasonable Doubt.Georgi Gardiner - 2017 - Journal of Applied Philosophy 34 (2):221-241.
Certainty Beyond a Reasonable Doubt.Giovanni Tuzet - 2023 - Contemporary Pragmatism 20 (4):398-423.

Analytics

Added to PP
2016-05-06

Downloads
208 (#99,658)

6 months
99 (#49,205)

Historical graph of downloads
How can I increase my downloads?

Author's Profile

Alec Walen
Rutgers University - New Brunswick

Citations of this work

Criminal Proof: Fixed or Flexible?Lewis Ross - 2023 - Philosophical Quarterly (4):1-23.
Against legal probabilism.Martin Smith - 2021 - In Jon Robson & Zachary Hoskins (eds.), The Social Epistemology of Legal Trials. Routledge.
In dubious battle: uncertainty and the ethics of killing.Seth Lazar - 2018 - Philosophical Studies 175 (4):859-883.
In Defence of Reasonable Doubt.Georgi Gardiner - 2017 - Journal of Applied Philosophy 34 (2):221-241.

View all 8 citations / Add more citations

References found in this work

In Defence of Reasonable Doubt.Georgi Gardiner - 2017 - Journal of Applied Philosophy 34 (2):221-241.

Add more references