I’m not sure I like the “reasonable doubt” paradigm. The result of this is many criminals going free, or victims not trusting the courts and taking revenge themselves. Its very hard to prove something beyond a reasonable doubt. You usually need the body, a murder weapon, blood and hair samples in the crime scene, a coroborated motive, and no alibi. Its very difficult to prove all of these elements, yet without all, or almost all of them, there is I think always a reasonable doubt. Now maybe I misunderstand what reasonable doubt is, but in my head its something next to 5%. So if I am 95% sure that the guy committed the crime, I still have a reasonable doubt. Maybe a better paradigm would be to punish less severely when you are only 90%+ sure? Think about it, will you convict a man for taking vengeance upon an alleged murderer of his son with murder just because there was a reasonable doubt and the murderer was not convicted? I’m not sure you will.
Even with such a standard of proof, the public criminal law system convicts the wrong people and lets the real perpetrators go free more often than not.
The normal standard of evidence in private law disputes is a balance of probabilities. That’s why OJ was acquitted of murder, but found liable in tort for wrongful death.
I don’t think it’s useful to attempt percentages here. It’s not perfectly quantifiable. The decision depends on the nature of the evidence lead.
As James said, BRD is only valid in criminal cases, which wouldn’t probably no longer even exist in a free society. Something more like balance of probabilities could than become the decent standard. We’ll have to wait and see what the arbitration market comes up with.
“Even with such a standard of proof, the public criminal law system convicts the wrong people and lets the real perpetrators go free more often than not.”
You don’t really believe that, do you?
Eugene, the “beyond a reasonable doubt” standard came about because of the possibility of convicting an innocent person. The interesting thing is, not using this standard doesn’t necessarily mean catching more guilty people. It actually leads to more innocent people being convicted, because the point then is to match people up to crimes. After all, if you don’t care whether a person is actually guilty, then why bother with guilt? You can just come up with a story that seems convincing enough to the gullible jury, which makes your working life a whole lot easier.
This problem is easily solved without resorting to collectivist probabilities… two words: unlimited liability. You are liable for your actions at all times, without limits, even in the prosecution of a tort. That means that if you lie in arbitration or give false testimony, you may be committing a new tort for which you would then be liable. Such a system is naturally self-balancing. Standards of evidence/proof become purely technical concerns of professional arbitrators who simply help their clients understand industry standard practices in this regard.
Clayton -
This. Limited liability really is a bane of our existence. Unfortunately, it has a much longer history than most people seem to think.