In Dubio Pro Reo. Behavioral explanations of pro-defendant bias in procedures
The standard model of optimal deterrence predicts that the probability of wrongful conviction of the innocent is, at the margin, as detrimental to deterrence as the probability of wrongful acquittal of guilty individuals. We extend the model in several directions: using expected utility as well as non-expected utility to consider the role of risk aversion, non-linear probability weighting and loss aversion. We also consider how relevant emotions such as guilt, shame and indignation play out. Several of these factors support the intuition that wrongful convictions of the innocent do have a larger detrimental impact on deterrence and thus the policy implications are reconciled with the widely shared maxim in dubio pro reo. We then draw some theoretical implications such as a novel justification for the different standards of proof in criminal vs civil law as well as other policy implications.
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- Alon Harel & Alon Klement, 2005. "The Economics of Shame: Why More Shaming may Deter Less," Discussion Paper Series dp401, The Federmann Center for the Study of Rationality, the Hebrew University, Jerusalem.
- James Andreoni, 1991.
"Reasonable Doubt and the Optimal Magnitude of Fines: Should the Penalty Fit the Crime?,"
RAND Journal of Economics,
The RAND Corporation, vol. 22(3), pages 385-395, Autumn.
- Andreoni, J., 1989. "Reasonable Doubt And The Optimal Magnitude Of Fines: Should The Penalty Fit The Crime," Working papers 8908, Wisconsin Madison - Social Systems.
- Okan Yilankaya, 2002. "A model of evidence production and optimal standard of proof and penalty in criminal trials," Canadian Journal of Economics, Canadian Economics Association, vol. 35(2), pages 385-409, May.
- A. Mitchell Polinsky & Steven Shavell, 2005.
"The Theory of Public Enforcement of Law,"
NBER Working Papers
11780, National Bureau of Economic Research, Inc.
- Schrag, Joel & Scotchmer, Suzanne, 1994. "Crime and Prejudice: The Use of Character Evidence in Criminal Trials," Journal of Law, Economics and Organization, Oxford University Press, vol. 10(2), pages 319-42, October.
- Jon Elster, 1998. "Emotions and Economic Theory," Journal of Economic Literature, American Economic Association, vol. 36(1), pages 47-74, March.
- Sanjit Dhami & Ali al-Nowaihi, 2010. "The Behavioral Economics of Crime and Punishment," Discussion Papers in Economics 10/14, Department of Economics, University of Leicester, revised Jul 2010.
- Funk, Patricia, 2004. "On the effective use of stigma as a crime-deterrent," European Economic Review, Elsevier, vol. 48(4), pages 715-728, August.
- Harris, John R, 1970. "On the Economics of Law and Order," Journal of Political Economy, University of Chicago Press, vol. 78(1), pages 165-74, Jan.-Feb..
- George Loewenstein, 2000. "Emotions in Economic Theory and Economic Behavior," American Economic Review, American Economic Association, vol. 90(2), pages 426-432, May.
- Lando Henrik, 2009. "Prevention of Crime and the Optimal Standard of Proof in Criminal Law," Review of Law & Economics, De Gruyter, vol. 5(1), pages 33-52, January.
- Dominique Demougin & Claude Fluet, 2004.
"Deterrence vs Judicial Error: a Comparative View of Standards of Proof,"
Cahiers de recherche
- Dominique Demougin & Claude Fluet, 2004. "Deterrence vs Judicial Error: A Comparative View of Standards of Proof," CIRANO Working Papers 2004s-38, CIRANO.
- Dominique Demougin & Claude Fluet, 2008.
"Rules of proof, courts, and incentives,"
RAND Journal of Economics,
RAND Corporation, vol. 39(1), pages 20-40.
- Kaplow, Louis, 1994. "The Value of Accuracy in Adjudication: An Economic Analysis," The Journal of Legal Studies, University of Chicago Press, vol. 23(1), pages 307-401, January.
- Ali al-Nowaihi & Ian Bradley & Sanjit Dhami, 2006. "The Utility Function Under Prospect Theory," Discussion Papers in Economics 06/15, Department of Economics, University of Leicester.
- Ognedal, Tone, 2005. "Should the Standard of Proof be Lowered to Reduce Crime?," International Review of Law and Economics, Elsevier, vol. 25(1), pages 45-61, March.
- Tversky, Amos & Kahneman, Daniel, 1992. "Advances in Prospect Theory: Cumulative Representation of Uncertainty," Journal of Risk and Uncertainty, Springer, vol. 5(4), pages 297-323, October.
- Craswell, Richard & Calfee, John E, 1986. "Deterrence and Uncertain Legal Standards," Journal of Law, Economics and Organization, Oxford University Press, vol. 2(2), pages 279-303, Fall.
- Viktor J. Vanberg, 2008. "The Economics of Moral Preferences," American Journal of Economics and Sociology, Wiley Blackwell, vol. 67(4), pages 605-628, October.
- Davis, Michael L, 1994. "The Value of Truth and the Optimal Standard of Proof in Legal Disputes," Journal of Law, Economics and Organization, Oxford University Press, vol. 10(2), pages 343-59, October.
- Henrik Lando, 2006. "Does Wrongful Conviction Lower Deterrence?," The Journal of Legal Studies, University of Chicago Press, vol. 35(2), pages 327-337, 06.
- Gary S. Becker, 1968.
"Crime and Punishment: An Economic Approach,"
Journal of Political Economy,
University of Chicago Press, vol. 76, pages 169.
- Miceli, Thomas J., 1991. "Optimal criminal procedure: Fairness and deterrence," International Review of Law and Economics, Elsevier, vol. 11(1), pages 3-10, May.
- Garoupa, Nuno, 1997. " The Theory of Optimal Law Enforcement," Journal of Economic Surveys, Wiley Blackwell, vol. 11(3), pages 267-95, September.
- Dominique Demougin & Claude Fluet, 2005. "Deterrence versus Judicial Error: A Comparative View of Standards of Proof," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 161(2), pages 193-, June.
- 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.
- Dacey, Raymond & Gallant, Kenneth S., 1997. "Crime control and harassment of the innocent," Journal of Criminal Justice, Elsevier, vol. 25(4), pages 325-334.
- Ali al-Nowaihi & Sanjit Dhami, 2010. "Composite Prospect Theory: A proposal to combine ‘prospect theory’ and ‘cumulative prospect theory’," Discussion Papers in Economics 10/11, Department of Economics, University of Leicester.
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