Re-Imagining the Criminal Standard of Proof: Lessons from the ‘Ethics of Belief’

Abstract

On a standard view, the criminal standard of ‘proof beyond reasonable doubt’ is a statement of probabilities, the pre-set benchmark of evidential support that must be crossed before a contested hypothesis of guilt can be accepted as true. Where to set that benchmark calls into play the calculation of social costs and benefits. This article proposes an agent-centred interpretation, one that involves viewing trial deliberation as a mental activity and the acquisition of an ethical vocabulary with which to express standards of excellence for the conduct of that activity. Our moral exemplar would, in her deliberation on the criminal verdict, exhibit relevant virtuous traits, and be guided by practical wisdom in the contextual operation of those traits. In judging the application of the standard of proof, there is a sense in which we should ultimately be making an ethical judgment of the person who applies it.