The Optimal Standard of Proof in Criminal Law When Both Fairness and Deterrence Matter
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.
|Date of creation:||08 Aug 2000|
|Date of revision:|
|Contact details of provider:|| Postal: |
Phone: +45 3815 3815
Web page: http://www.cbs.dk/departments/finance/Email:
More information through EDIRC
Please report citation or reference errors to , or , if you are the registered author of the cited work, log in to your RePEc Author Service profile, click on "citations" and make appropriate adjustments.:
- 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.
- 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.
- Steven Shavell, 2003.
"Economic Analysis of Accident Law,"
NBER Working Papers
9694, National Bureau of Economic Research, Inc.
- Miceli, Thomas J., 1991. "Optimal criminal procedure: Fairness and deterrence," International Review of Law and Economics, Elsevier, vol. 11(1), pages 3-10, May.
- Steven Shavell & A. Mitchell Polinsky, 2000.
"The Economic Theory of Public Enforcement of Law,"
Journal of Economic Literature,
American Economic Association, vol. 38(1), pages 45-76, March.
- 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.
- 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.
- 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.
- Gary S. Becker, 1968.
"Crime and Punishment: An Economic Approach,"
Journal of Political Economy,
University of Chicago Press, vol. 76, pages 169.
- Garoupa, Nuno, 1997. " The Theory of Optimal Law Enforcement," Journal of Economic Surveys, Wiley Blackwell, vol. 11(3), pages 267-95, September.
- 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.
- Diamond, P.A., 1997. "Integrating Punishment and Efficiency Concerns in Punitive Damages for Reckless Disregard of Risks to Others," Working papers 97-19, Massachusetts Institute of Technology (MIT), Department of Economics.
- 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.
- repec:att:wimass:8908 is not listed on IDEAS
- 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.
- 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.
When requesting a correction, please mention this item's handle: RePEc:hhs:cbsfin:2000_007. See general information about how to correct material in RePEc.
For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: (Lars Nondal)
If references are entirely missing, you can add them using this form.