The Probative Function of Punishment: Criminal Sanctions in the Defense of the Innocent

Ehud Guttel, Duke University School of Law

Abstract

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 sufficient size, the legal system can induce factfinders to convict only if sufficient admissible evidence proves the defendant’s guilt. This Article applies this theoretical framework to three concrete contexts that involve a high risk of erroneous convictions: the right to silence, inchoate crimes and the punishment of recidivists. It is shown that a sanctioning regime that is attuned to the probative function of punishment can protect innocent defendants from unsubstantiated convictions while not sacrificing the dictates of both deterrence and retribution.