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How does the probability of wrongful conviction affect the standard of proof?

Author

Listed:
  • Yves Oytana

    (Université Bourgogne Franche-Comté, CRESE)

  • Marie Obidzinski

    (CRED, Université Panthéon-Assas)

Abstract

The paper inquires into the impact of mistakes of identity (ID errors) on the optimal standard of proof. A mistake of identity is defined as an error such that an individual is punished for someone else's crime; and for the same crime, the criminal is falsely acquitted. Therefore, the decision to engage in a criminal activity generates a negative externality, as the expected number of ID errors increases. Thus, our objective is to understand how public law enforcement can deal with this type of error by means of the standard of proof. Our main results are twofold. First, we show that when ID errors occur, the under-deterrence issue is exacerbated. Second, we find that the optimal standard of proof may be higher or lower than without ID errors, depending on the crime rate at equilibrium and on the impact of the standard of proof on (i) the probability of an acquittal error for each crime committed, (ii) the probability of convicting an innocent person when an acquittal error arises, and (iii) the level of deterrence.

Suggested Citation

  • Yves Oytana & Marie Obidzinski, 2017. "How does the probability of wrongful conviction affect the standard of proof?," Working Papers 2017-02, CRESE.
    • Handle: RePEc:crb:wpaper:2017-02
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    References listed on IDEAS

    as
    1. Polinsky, A Mitchell & Shavell, Steven, 1992. "Enforcement Costs and the Optimal Magnitude and Probability of Fines," Journal of Law and Economics, University of Chicago Press, vol. 35(1), pages 133-148, April.
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    3. Antonio Nicita & Matteo Rizzolli, 2014. "In Dubio Pro Reo. Behavioral Explanations of Pro-defendant Bias in Procedures," CESifo Economic Studies, CESifo Group, vol. 60(3), pages 554-580.
    4. Matteo Rizzolli & Margherita Saraceno, 2013. "Better that ten guilty persons escape: punishment costs explain the standard of evidence," Public Choice, Springer, vol. 155(3), pages 395-411, June.
    5. Miceli, Thomas J., 1991. "Optimal criminal procedure: Fairness and deterrence," International Review of Law and Economics, Elsevier, vol. 11(1), pages 3-10, May.
    6. Polinsky, A Mitchell & Shavell, Steven, 1989. "Legal Error, Litigation, and the Incentive to Obey the Law," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 5(1), pages 99-108, Spring.
    7. Murat C. Mungan, 2011. "A Utilitarian Justification for Heightened Standards of Proof in Criminal Trials," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 167(2), pages 352-370, June.
    8. Miceli, Thomas J, 1990. "Optimal Prosecution of Defendants Whose Guilt Is Uncertain," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 6(1), pages 189-201, Spring.
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    Cited by:

    1. Marie Obidzinski & Yves Oytana, 2020. "Presumption of Innocence and Deterrence," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 176(2), pages 377-412.

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    More about this item

    Keywords

    Mistakes of identity; standard of proof; deterrence;
    All these keywords.

    JEL classification:

    • K4 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior

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