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The Optimal Standard of Proof in Criminal Law When Both Fairness and Deterrence Matter

  • Lando, Henrik

    (Department of Finance, Copenhagen Business School)

This paper addresses the issue of the optimal standard of proof in crim-inal law. It is assumed that people in society care about both fairness and deterrence. It is important to punish those who are guilty and only those. However, error is unavoidable and hence a trade-o¤ emerges between the three aims of punishing the guilty, not punishing the innocent and deterring potential criminals. It is shown that when only deterrence matters the op-timal standard of proof is a preponderance-of-the-evidence standard (given some other assumptions) while if fairness is an issue the standard will gen-erally be stricter and involve Bayesian up-dating. When both fairness and deterrence matter the standard of proof will (generally) lie in between the two standards. An example illustrates how the model might be applied in practice to determine the optimal standard of proof for a given crime.

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File URL: http://openarchive.cbs.dk/cbsweb/handle/10398/7144
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Paper provided by Copenhagen Business School, Department of Finance in its series Working Papers with number 2000-7.

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Length: 32 pages
Date of creation: 08 Aug 2000
Date of revision:
Handle: RePEc:hhs:cbsfin:2000_007
Contact details of provider: Postal: Department of Finance, Copenhagen Business School, Solbjerg Plads 3, A5, DK-2000 Frederiksberg, Denmark
Phone: +45 3815 3815
Web page: http://www.cbs.dk/departments/finance/
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  1. Png, I. P. L., 1986. "Optimal subsidies and damages in the presence of judicial error," International Review of Law and Economics, Elsevier, vol. 6(1), pages 101-105, June.
  2. Lando, Henrik, 1997. "An attempt to incorporate fairness into an economic model of tort law," International Review of Law and Economics, Elsevier, vol. 17(4), pages 575-587, December.
  3. A. Mitchell Polinsky & Steven Shavell, 1999. "The Economic Theory of Public Enforcement of Law," NBER Working Papers 6993, National Bureau of Economic Research, Inc.
  4. Peter Diamond, 2002. "Integrating Punishment and Efficiency Concerns in Punitive Damages for Reckless Disregard of Risks to Others," Journal of Law, Economics and Organization, Oxford University Press, vol. 18(1), pages 117-139, April.
  5. repec:att:wimass:8908 is not listed on IDEAS
  6. Garoupa, Nuno, 1997. " The Theory of Optimal Law Enforcement," Journal of Economic Surveys, Wiley Blackwell, vol. 11(3), pages 267-95, September.
  7. 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.
  8. Miceli, Thomas J, 1990. "Optimal Prosecution of Defendants Whose Guilt Is Uncertain," Journal of Law, Economics and Organization, Oxford University Press, vol. 6(1), pages 189-201, Spring.
  9. Polinsky, A Mitchell & Shavell, Steven, 1989. "Legal Error, Litigation, and the Incentive to Obey the Law," Journal of Law, Economics and Organization, Oxford University Press, vol. 5(1), pages 99-108, Spring.
  10. Miceli, Thomas J., 1991. "Optimal criminal procedure: Fairness and deterrence," International Review of Law and Economics, Elsevier, vol. 11(1), pages 3-10, May.
  11. Steven Shavell, 2003. "Economic Analysis of Accident Law," NBER Working Papers 9483, National Bureau of Economic Research, Inc.
  12. Grossman, Gene M & Katz, Michael L, 1983. "Plea Bargaining and Social Welfare," American Economic Review, American Economic Association, vol. 73(4), pages 749-57, September.
  13. Gary S. Becker, 1968. "Crime and Punishment: An Economic Approach," Journal of Political Economy, University of Chicago Press, vol. 76, pages 169.
  14. Ehrlich, Isaac, 1982. "The optimum enforcement of laws and the concept of justice: A positive analysis," International Review of Law and Economics, Elsevier, vol. 2(1), pages 3-27, June.
  15. 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.
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