A Note on Reasonable Doubt
The founding statute of the International Criminal Court requires that “the Court must be convinced of the guilt of the accused beyond a reasonable doubt.”[1] The probability content of that standard is ambiguous[2] in light of the logically true statement that guilt of any accused is to some degree uncertain. Registering a probability standard from that language is impossible with legal reasoning; the pragmatist might bridge the gap by interpreting “reasonable” as “socially optimal.” On this welfare-economic view, the reasonable-doubt standard can be treated as an endogenous variable in the maximization of social welfare via efficient criminal deterrence. If the standard is too high, the expected costs of crime are reduced and the crime rate increases; if the standard is too low, socially beneficial activities are deterred, reducing social welfare. Establishing an optimal evidentiary standard thus serves broader goals of international criminal law.
While this sense of reasonable doubt provides a useful heuristical frame, it is probably infeasible in practice. Adjudicators of reasonable doubt instead draw on cognitive intuitions, perhaps influenced by emotional or social processes. Because individuals can have widely different intuitions about reasonable doubt, twelve heterogeneous jurors will be more likely to approximate the social average than three homogenous judges.
Application of reasonable doubt is thus one area of international criminal law that jurors might perform more effectively than judges. At the same time, the absence of juries in international criminal law has been unquestioned by few. Bearing in mind the epistemological gap between legal concepts and real-world objects discussed yesterday, though, the absence of juries is problematic. Decisions of criminal liability by judges are unfortunate because it requires the illegitimate leap from law to facts through legal reasoning; juries can blamelessly appeal to their cognitive and emotional intuitions without pretending to do otherwise. Even more troubling is that illegitimate leaps from law to facts are codified in precedent-setting judicial opinions. Legal reasoning from empirical facts exerts power on future cases notwithstanding that legal reasoning was not responsible for the initial decision.
But the question of whether to use judge or jury in international criminal law turns, for the pragmatist, on quality of outcomes. The leading concern is to ensure accuracy of the proceedings, because erroneous judgments undermine criminal deterrence[3] as well as the tribunal’s political legitimacy worldwide. Notwithstanding the concerns noted here, it could very well be the case that the professionalism of judges is a better guarantor of optimal outcomes than the majoritarianism of juries. This is an empirical question that deserves further investigation.
[1] ICC Statute Art. 66(3).
[2] James Franklin, “Case comment—United States v. Copeland, 369 F.Supp 2s 275: quantification of the ‘proof beyond a reasonable doubt’ standard,” Law, Probability, and Risk vol. 10 (2007).
[3] Richard Posner, “An Economic Approach to the Law of Evidence” (1998). As far as criminal deterrence goes, the inconsistent prosecution of international crimes is probably far more undermining than its evidentiary standards could ever be.