Base-rates of negative traits: instructions for use in criminal trials

Decision-makers in institutional and non-institutional contexts are sometimes confronted with the issue of whether to use generalisations expressing the statistical incidence of a negative trait in a disadvantaged and discriminated-against social group in order to draw an inference concerning a member of that group. If a criminal court were confronted with such a question, what answer should it give? First, the paper argues that, our qualms notwithstanding, morality does not demand that these generalisations be disregarded. In doing so, the paper addresses the relationship between factual accuracy and the demands of morality in criminal trials. Second, the paper considers the implications of this conclusion for the legal question as to whether the evidence at issue should be excluded, in particular, on grounds of unfairness – pursuant to section 78(1) of the Police and Criminal Evidence Act 1984

Innocence and burdens of proof in English criminal law

Since the Human Rights Act 1998, scholars and courts have dedicated considerable attention to the presumption of innocence. A major strand of the ensuing debate has focused on the scope of this safeguard. Many academics have argued in favour of according to the presumption a substantive- as opposed to a procedural-role. In otherwords, these scholars maintain that the presumption set in art. 6(2) of the European Convention on Human Rights (ECHR) should have some influence on the definition of criminality. Courts seemsympathetic to this approach, albeit not following it to the full extent. The article, instead, defends a procedural understanding of the presumption of innocence, on the basis of interpretive arguments concerning art. 6(2) ECHR. Besides, it shows that adopting this conception does not entail lowering the protection of the individual before the substantive criminal law

Do theories of punishment necessarily deliver a binary system of verdicts? An exploratory essay

Scholars writing on theories of punishment generally try to answer two main questions: what human behaviour should be punished and why? Only cursorily do they concern themselves with the question as to how confident in the occurrence of criminal behaviour we must be prior to punishing - i.e., the question of the criminal standard of proof. Theories of punishment are ultimately theories about choices of action - in particular, about how to treat individuals. If this is correct, it seems that they should not overlook one of the fundamental variables governing human decision-making: the uncertainty about the facts relevant to our acting. Now, the question as to whether existing theories of punishment require a standard of proof as high as 'proof beyond a reasonable doubt' is gaining increasing attention in the scholarship. However, scholars working on theories of punishment give little attention to a particular way in which human decision-making handles the problem of uncertainty. In our everyday lives, we often decide in a many-valued, rather than a binary, fashion. Instead of having a single evidential threshold, the satisfaction of which determines whether we act or stay put, we tend to adjust our actions to our degree of confidence in certain states of affairs. In other words, we decide based on a ladder of evidential thresholds: the features of our actions vary according to the evidential threshold that we have satisfied. Notably, criminal trials do not follow this structure and theorists generally take this departure for granted. Why shouldn't trials work as 'ex post facto bets,' whereby the response that the state is willing to 'wager' depends on the fact finder's confidence in the defendant's guilt? The paper explores this question; in particular, it assesses whether the main theories of punishment (consequentialist, retributive, and communicative) necessarily deliver a binary system of verdicts. The work is part of a long-term research project on the comparison between the binary and the many-valued models of the system of criminal verdicts

The threshold lies in the method: instructing jurors about reasoning beyond reasonable doubt

The last few decades have seen several scholars and courts striving to understand the meaning of the reasonable doubt standard and, in particular, to produce instructions that would enlighten jurors in this regard. The focus has been on defining the standard as a threshold indicating the quality and quantity of evidence sufficient for a finding of fact, or the degree of confidence that the fact finder should have before convicting. The results of these endeavours have not been satisfactory and nowadays it is still frequent that juries ask the court for clarification on the meaning of the standard. The paper argues that the reasonable doubt standard is better conceived and explained to the jury as requiring a particular method of reasoning, rather than merely a threshold. A direct explanation of the threshold is elusive and potentially encroaches on the fact finder’s role. Reference to a method of reasoning, instead, promises to provide useful directions to the jury, which promote compliance with the threshold itself. The paper advances methodological directives inspired by works in philosophy of the mind and virtue epistemology. The paper then concludes with practical recommendations for devising a new instruction on the standard of proof

Author's replies

During a symposium at the University of Edinburgh and, again, in this issue of the Edinburgh Law Review, Antony Duff, Fiona Leverick, Martin Smith and Gabrielle Watson raised a number of challenges to my book Justice In-Between. A Study of Intermediate Criminal Verdicts.1 I feel honoured by the opportunity to converse about the book with such distinguished scholars and I am very grateful for the attention they have given to the work. In the space at my disposal, I endeavour to answer the most serious of these challenges. Unless stated otherwise, references to chapters, sections and pages are references to my book

The denial of procedural safeguards in trials for regulatory offences: a justification

Regulatory offences are a complex phenomenon, presenting problematic aspects both at the level of criminalisation and at the level of enforcement. The literature abounds in works that study the phenomenon. There is, however, an aspect that has remained largely unexplored. It concerns the relationship between the regulatory framework within which the crime occurs and the procedural safeguards that defendants normally enjoy at trial or at the pre-trial stage: defendants tried for regulatory offences are often denied safeguards that are generally considered as important constituents of trial fairness. Relying on a new conceptualisation of regulatory offences, this paper advances a theory that justifies these exceptional rulings

Evidential reasoning, testimonial injustice and the fairness of the criminal trial

The article argues that the assessment of the relevance and of the probative value of an item of evidence is susceptible to an evaluation on moral grounds (such as fairness), rather than just to an evaluation on epistemic grounds (such as accuracy). In particular, the article shows that an assessment of relevance and of probative value is unfair, and renders the trial unfair, when this assessment instantiates epistemic injustice of the testimonial kind; and that it instantiates such an injustice when, due to identity prejudice against a social group to which one of the parties in the proceedings belongs, the evidence is assessed without considering the experience and stock of knowledge of this party. The article offers several examples of this phenomenon. The upshot is that higher courts, whose role includes checking that proceedings have been fair, should dirty their hands more readily than they are currently doing with the evidential reasoning of the first-instance adjudicator. However, the focus should be on preventing unfairness, rather than treating it

Can the Crime of "Persecution" Encompass Hate Speech?

El presente artículo discute los intentos de los fiscales y de los tribunales penales internacionales de encuadrar el discurso de odio dentro del tipo penal del crimen de "persecución". La vaguedad de la definición de este crimen le permite al intérprete utilizarlo como un contenedor en el cual poner actos criminales que, debido a fallas sustanciales o probatorias, no puede de otra manera ser penalizado. Esta situación, junto con las condiciones que presupone, pone en peligro el principio de legalidad, y por lo tanto demanda un análisis cuidadoso por parte de los juristas, con el fin de probar la precisión de aplicaciones inciertas tales como aquella con respecto al discurso de odio