Thursday, October 29, 2009
Talia Fisher (Tel Aviv University - Buchmann Faculty of Law) has posted Rethinking the Bipolar Structure of the Criminal Verdict on SSRN. Here is the abstract:
On the normative plane, the paper will point to the sub-optimality of the bipolar all-or-nothing regime, which dictates the uniformity of punishment in the epistemic space above the reasonable doubt threshold, and the absence of any punishment below this threshold. The paper will show that correlating the size of the punishment with the certainty of guilt is preferable to uniform punishment in the epistemic space above the reasonable doubt threshold. It will also demonstrate that when the certitude level as to the defendant's guilt does not reach the beyond reasonable doubt standard of proof, the imposition of partial punishment, reflective of the epistemic doubt, can also lead -in certain circumstances- to better outcomes than the existing alternative of full acquittal and no punishment.
The criminal trial is conducted in two phases: The guilt-innocence phase, in which the issue of the defendant's culpability is addressed, and the sentencing phase, in which the punishment is determined. There is an underlying assumption of acoustic separation between the decision making processes in each of these phases, in the sense that the severity of the punishment is considered to be detached from the probative strength of the evidence underlying the conviction. The paper will challenge the acoustic separation ideal both descriptively and normatively, and will reconsider the derivative bipolar verdict regime: On the descriptive front, the paper will demonstrate that prevailing criminal law doctrines and practices effectively demolish the boundaries between the decision making processes in the two phases of the trial, creating a de facto correlation between certainty of guilt and severity of punishment.