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The Probative Function Of Punishment: Criminal Sanctions In The Defense Of The Innocent, Ehud Guttel

Ehud Guttel

Under the formal procedural rules, factfinders are required to apply a uniform standard of proof in all criminal cases. Experimental studies as well as real world examples indicate, however, that factfinders often adjust the evidentiary threshold for conviction in accordance with the severity of the applicable sanction. All things being equal, the higher the sanction, the higher the standard of proof factfinders will apply in order to convict. Building on this insight, this Article introduces a new paradigm for criminal punishments—a paradigm that focuses on designing penalties that will reduce the risk of unsubstantiated convictions. By setting mandatory penalties of …