Friday, July 24, 2015
Given a prosecutor’s demanding burden of proof, most people believe the prosecutor has a tougher time winning a case than does a civil plaintiff. But the opposite is likely true. This seems counter-intuitive until one considers underlying conditions that animate each forum. A civil plaintiff operates within a competitive forum. This makes winning more difficult. Conditions unique to criminal law, however, give the prosecutor asymmetrical control over resources, facts, and process. In addition, racial and class bias gives special force to narratives of guilt. Under these conditions, the prosecutor’s burden becomes a paper tiger.
The prosecutor has ultimately become the chief beneficiary of her own burden. Though the prosecutor faces little resistance in securing a conviction, her burden is perceived as demanding. This mismatch between perception and reality confers concrete benefits. Easy kills are nevertheless afforded a high degree of legitimacy. Prosecutors also use the burden as shield to deflect criticism for a failure to charge and for convicting the wrong defendant. The burden is also used to slow expansion of due process under the rationale that protections are superfluous in light of the burden’s error-correcting power.
Though conferring little benefit to defendants, the burden is viewed as a core component of due process. Much is invested in the idea that the burden is tough taskmaster. Those who argue the criminal justice system is a fair one link the demanding nature of the burden to the legitimacy of criminal law outcomes, asserting that the reasonable-doubt standard zeros out system-wide defects. The burden’s function, however, is subverted by those very defects. This article identifies the structural, institutional, and procedural conditions that undermine the function of the prosecutor’s burden and proposes reforms that would go some distance to fulfill the intended promise of the burden to reduce error.