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Professor Peter Tillers
Questions about Winship and the Reasonable Doubt Standard
.A
1. Does the reasonable doubt standard demand that the trier of fact be certain of a criminal defendant's guilt?
2. If not, does the reasonable doubt standard require that the guilt of the defendant be very (extremely?) likely?
3. If so, does the reasonable doubt standard instruct the trier of fact exactly how likely the guilt of the defendant must be?
4. If not, does the reasonable doubt standard tell the trier of fact approximately how likely guilt must be?
5. If so, ROUGHLY how likely must guilt be? And Please explain how you arrived at your rough figure.
B.
6. If the reasonable doubt standard does not tell the trier of fact how likely
guilt must be, may the trier of fact decide how likely guilt must be?
7. If not, please explain how the trier of fact can avoid deciding how likely
guilt must be?
8. If the trier of fact decides the probability of guilt that is necessary
for conviction, may the trier of fact convict on a lesser probability of guilt
when the adverse consequences of a conviction are significantly less severe
than in the garden variety criminal case or when the trier believes that the
harm of an erroneous acquittal would be much greater than in the garden variety
case? Does the due process clause allow the use of a lower standard of proof
in trials for minor criminal offenses?
C.
9. Is it better for the world to perish than for one innocent person to suffer criminal punishment?
10. If not, is it better for nine (9) criminals to escape punishment than for one (1) innocent person to suffer criminal punishment?
11. If so, is it better for 99 criminals to escape punishment than for one innocent person to suffer criminal punishment? 999? 9,999? 99,999? 999,999,999?
12. In roughly 90% of the cases that go to trial, the defendant is convicted. Does it follow that the law believes that it is better for nine (9) innocent people to suffer punishment than for one guilty person to escape punishment?
Note (a): The 90% statistic does not show how many people are weeded out of the criminal process prior to trial or how many people are not even prosecuted.
Note (b): The 90% statistic and similar statistics about rates of conviction and acquittal say nothing about the relative frequency of erroneous convictions or acquittals.
Note (c). There are three classes of lies: (i) lies, (ii) damned lies, and (iii) statistics.
13. TAKE YOUR CHOICE:
Option (a): If the relative frequency of erroneous convictions were extremely low -- e.g., .000001% --, would it matter if the relative frequency of erroneous acquittals were somewhat lower -- e.g., 0000005%?
Option (b): Would the demands of due process be satisfied if the rate of erroneous acquittals i murder cases were 99% and the rate of erroneous convictions were 5%?
Sub-Question: Is this unlikely and perverse scenario logically possible? (Answer: Yes.)
14. If your answer to either Q. 13(a) or Q. 13(b) is "no," does the reasonable doubt standard necessarily reflect the judgment that it is "far worse to convict an innocent man than to let a guilty man to go free"? (Harlan, J., concurring in In re Winship). Does the reasonable doubt standard reflect some other judgment? If so, what?
15. Notwithstanding your answers to Q. 14, is it probably true that as the standard of proof required for conviction increases, the frequency or chances of erroneous acquittals also increase and the frequency or chances of erroneous convictions decrease?
16. If so does it follow that the reasonable doubt standard produces many more erroneous acquittals than erroneous convictions? (Reconsider Qs. 12 & 13. The answer to Q. 16 is "not necessarily.")
17. Is there a necessary tradeoff between the goal of reducing erroneous convictions and the goal of reducing erroneous acquittals? If so, is it the sort of tradeoff that Justice Harlan envisioned? Did Justice Harlan leave something out of his equations? If so, what? (See the next series of questions for a partial answer.)
D
18. TAKE YOUR CHOICE:
Option (a): Is the rate of erroneous convictions or the rate of erroneous acquittals solely a function of the standard telling the trier of fact how certain it must be of a defendant's guilt?
Answer: No.
Option (b): Assume that an increase in the standard of proof required for conviction tends to increase the frequency of erroneous acquittals. Is it nevertheless possible to reduce simultaneously the frequency of erroneous acquittals and the frequency of erroneous convictions?
Answer: Yes.
19. Is it likely as the amount and quality of evidence available to the trier of fact increase, the chances of erroneous convictions decrease (provided, of course, that everything else is held equal)?
Answer: This seems likely.
20. Is it true that more and better evidence in criminal cases is likely to reduce the frequency of both wrongful convictions and wrongful acquittals?
Answer: This also seems likely.
E
In Winship the Court said that the reasonable doubt standard is directed against "the risk of convictions resting on factual error." (emphasis added). Why isn't it equally important to protect defendants against the risk of convictions based on legal error? Isn't it the case that if there is reasonable doubt of the criminality of the conduct alleged by the state, there is reasonable doubt about the defendant's guilt? Why does it matter whether the kind of uncertainty involved is factual uncertainty or legal uncertainty?
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