Conviction Paradox and Compensatory Punishment in Criminal Trials

2019

May the court resort to speculations of guilt? I.e., may it raise, of its own initiative, hypotheses not posed by the prosecution and not directly arising from the evidence? In the Zadorov case, Justice Amit adopts speculations of guilt to explain away the use of a serrated knife' and foreign shoe prints. Whereas in the view of Justice Danziger, on the other hand, it would seem that when dealing with criminal cases, speculative explanations of guilt should be inadmissible. In this review, we will address the legitimacy of resorting to hypothetical explanations (or "speculations") in order to fill in evidentiary gaps, i.e. situations in which the evidentiary picture is found lacking, and the court must determine, without specific evidence, what has occurred. Our analysis will focus on the filling of such gaps by the prosecution in criminal proceedings. We will distinguish between the general legitimacy of employing hypothetical explanations, on the one hand, and the dis...

Applied Cognitive Psychology

Data from a series of studies presenting video recorded witness statements to laypersons and legal professionals were examined to trace the relationship between judged probability of guilt and the willingness to vote guilty or not guilty in hypothetical trials, in the absence of specific jury instructions. The results show that a majority of jury-eligible young and elderly participants, and police officers, were willing to convict a defendant when the judged probability of guilt exceeded .6. This is considerably below the legally accepted standard of ‘beyond reasonable doubt’, which usually is equated with a very high, around .9 perceived certainty. When jury deliberations were allowed, the threshold for conviction rose, approaching the standard evinced by trial judges under the same conditions. The results suggest that people prefer to vote for guilt according to a balance of probabilities principle, considering only the individual case, and disregarding the implied frequencies of ...

Criminal Law Forum, 2020

In most countries that follow the Anglo-American legal system, the criminal process is based on the existence of only two possible alternative legal outcomes-"guilty" and "not guilty"at the end of a criminal proceeding. That is, a person is acquitted unless the court finds him to be guilty. In contrast, a small number of legal systems, such as those of Scotland, Italy, and Israel, maintain an additional form of acquittal, situated between the two stated polar options. In this paper we review the criminal systems that have adopted more than one type of acquittal while delving specifically into the case of Israel. From a descriptive perspective, we summarize the history of their acquittal options as well as describe the additional option's characteristics when compared to full acquittal as well as the epistemic circumstances in which such an outcome is reached. From a normative perspective, we reject incorporation of this additional type of acquittal due to differences in its expressive implications from full acquittal. We articulate our doubts regarding its necessity and constitutionality, which we do while also addressing the difficulties that this type of verdict engenders. Our main contention is that recognition of this type of acquittal, alongside full acquittal, erodes the fundamental premises of criminal law, contradicts its position regarding the defendant's innocence at the heart of the criminal proceeding, and therefore undermines this proceeding's normative and moral commitment to the defendant's basic rights.

SSRN Electronic Journal, 2008

In criminal cases the task of the judge is to transform the uncertainty about the facts into the certainty of the verdict. In this experiment we examine the relationship between evidence of which the strength is known, subjective probability of guilt and verdict for abstract cases. We look at two situations: (1) all evidence is given and (2) evidence can be acquired. Roughly half of the participants do not base their decision on a subjective belief of the probability of guilt. The others underestimate in general the probability of guilt, but this is more than compensated by a tendency to convict at too low probability of guilt. In the situation where evidence can be acquired, participants do not acquire enough evidence.

Psychiatry, Psychology and Law

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2019

In most legal systems, a very high standard of evidence is established to reach a verdict of guilty. Accused individuals may not be convicted unless the prosecution proves their guilt beyond a reasonable doubt. This contrasts with the much lower standards of evidence required to make pre-trial decisions. This paper contributes to the law and economics literature on standards of proof in criminal law by extending the analysis to pretrial decisions on whether the criminal investigation (proceedings) against a person should go ahead or be terminated. The paper shows why optimal standards for these decisions should be lower than that for conviction: false negatives (e.g., wrongful non-indictments) have a more adverse impact on deterrence than false positives (e.g., wrongful indictments). The paper analyzes as well how those standards should vary depending on certain circumstances.

SSRN, 2008

The concept of a perverse verdict is one that pervades the Criminal justice system of nearly all common law jurisdictions. The English Criminal Justice system is no exception and the concept has become institutionalised as if it were a true occurrence. This paper challenges the idea and argues that it is, technically, a legal non-event given the system of trial by jury. The theory is that besides the jury, no one else is invested with the power and authority to declare a verdict and this position is supported both by legal custom and the mechanism of the criminal justice system. In this paper, I investigate the concept of the perverse verdict, the position of the superior courts and theories on who may legitimately declare a verdict perverse. The paper concludes by alluding to transparency in the system by creating a requirement and an atmosphere of jury accountability in the form of an explained verdict as an antidote to the concept of the perverse verdict.

Law and Human Behavior, 1985

The rationale for allowing into evidence a defendant's criminal record asserts that such evidence can be used for the limited purpose of impeaching a ddfendant witness's credibility and, in accord with .judges' instructions, will not be used to assess likelihood of guilt. The effect that the defendant's prior record has on mock jurors' assessments of credibility and guilt was tested in a two (cases) x four (type of prior conviction) factorial design. Adults' ratings of the defendant's credibility did not vary as a function of prior record and were consistently the lowest of the credibility ratings of ait witnesses. Conviction rates did vary by prior record, however, with the highest conviction rate occurring when the prior conviction was the same as the present charge and the towest conviction rate occurring in the no-prior-conviction condition. Defendants with a previous conviction for perjury or a dissimilar crime were convicted at an intermediate rate. We cor~cluded that the risk of prejudice to the defense under existing policy is greater than the unrealized potential benefit to the prosecution.

CANADIAN CRIMINAL LAW REVIEW [23 C.C.L.R.], 2018

Proof in continental criminal justice systems is controlled by the concept of l'intime conviction which means the free evaluation of evidence according to conscience. This article examines the effect of this concept by starting with its roots in the common law jury system as it operated in the late 18th century. Since then, common law systems have evolved to include the burden of proof on the prosecution beyond a reasonable doubt plus detailed rules of evidence which determine what is admissible according to standards of fairness and reliability. Yet l'intime conviction with no burden of proof on the prosecution continues today to dominate continental systems,. Taking note of rulings of the European Court of Human Rights under Article 6, there is now a European Directive requiring member states to adopt the burden of proof beyond a reasonable doubt by 2018.