hypothesis meaning in criminal law

Hypothesis Testing in Law and Forensic Science: A Memorandum

Forensic Commentary Series

David H. Kaye
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This Forum Commentary series presents views on a memorandum from a group of lawyers and judges advising the Organization of Scientific Area Committees for Forensic Science (OSAC). 1 In response to calls for improving the practices of forensic science, 2 the National Institute of Standards and Technology (NIST) created the Scientific Area Committees in 2014 to promote and develop standards “that are fit-for-purpose and based on sound scientific principles.” 3 The memorandum from the Legal Resource Committee (LRC) 4 responds to a question from a scientist on OSAC’s governing board about whether the criminal law’s concern with avoiding false convictions at the expense of false acquittals should affect the choice of a “significance level” for deciding whether pieces of glass match in their chemical composition (and hence might have a common origin). Must a criminalist favor the hypothesis that similarities are coincidental over the hypothesis that the fragments have a common origin? The underlying issue applies to many forms of identification evidence, including fingerprints, fibers, paint chips, bullets, and biological fluids. Indeed, arguments over the choice of a significance level arise for statistical evidence of all sorts, from econometrics to epidemiology. 5

This Introduction is a preamble to the memorandum. Part I describes the technical standard that prompted the memorandum. Part II sketches the statistical ideas in the memorandum by using glass comparisons to illustrate the three main statistical approaches to reasoning about the implications of evidence. This Introduction is followed by the memorandum itself and two commentaries.

* Associate Dean for Research and Distinguished Professor of Law, Penn State Law. This Introduction benefited from discussions with José Almirall, Karen Kafadar, and members of the Legal Resource Committee (LRC) of the Organization of Scientific Area Committees for Forensic Science (OSAC). The views expressed here are the author’s. They should not be attributed to NIST, OSAC, the LRC, or any other individual or organization.

^ See Memorandum from the Legal Res. Comm. to the Org. of Sci. Area Comms. for Forensic Sci., Nat’l Inst. of Standards & Tech., Question on Hypothesis Testing in ASTM 2926-13 and the Legal Principle that False Convictions Are Worse than False Acquittals 6 (rev ed. Oct. 7, 2016), reprinted in 130 Harv . L . Rev. F . 137 (2017) [hereinafter LRC Memo].

^ See, e.g. , Comm. on Identifying the Needs of the Forensic Sci. Cmty ., Nat’l Research Council, Strengthening Forensic Science in the United States: A Path Forward 53 (2009).

^ About OSAC , OSAC Newsletter (Nat’l Inst. of Standards & Tech., Gaithersburg, Md.), Oct. 2015, at 3, 3, https://www.nist.gov/sites/default/files/documents/forensics/OSACNewsLetterOctober2015.pdf [ https://perma.cc/29QA-XRJC ].

^ When the memorandum was written, the LRC was composed of ten individuals from prosecutor and public defender offices, the judiciary, the Innocence Project, and law school faculty. The LRC comments on proposed standards and advises OSAC on legal issues. The scientific committees need not follow the LRC’s recommendations or give effect to its opinions. OSAC-approved standards go to private standards-development organizations for possible adoption (perhaps with modifications). If OSAC approves of standards adopted by these external groups, NIST incorporates them into a registry of approved standards. For more information about the LRC, see OSAC Roles and Responsibilities , Nat’l Inst. Standards & Tech . (Jan. 26, 2016), https://www.nist.gov/forensics/osac-roles-and-responsibilities [ https://perma.cc/3V99-CJ5L ]. How much influence these standards will have on forensic laboratories, courts, or legislatures remains to be seen.

^ See, e.g. , David H. Kaye et al ., The New Wigmore: A Treatise on Evidence: Expert Evidence § 12.8.3, at 563–64 (2d ed. 2011).

March 10, 2017

More from this Issue

Legal resource committee memorandum.

Question on Hypothesis Testing in ASTM 2926-13 and the Legal Principle that False Convictions Are Worse than False Acquittals

No Room for Error: Clear-Eyed Justice In Forensic Science Oversight

Erin Murphy

The Burden of Proof and the Presentation of Forensic Results

Edward K. Cheng

The Law Dictionary

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HYPOTHESIS Definition & Legal Meaning

Definition & citations:.

A supposition, assumption, or theory; a theory set up by the prosecution,on a criminal trial, or by the defense, as an explanation of the facts in evidence,and a ground for inferring guilt or innocence, as the case may be, or asindicating a probable or possible motive for the crime.

This article contains general legal information but does not constitute professional legal advice for your particular situation. The Law Dictionary is not a law firm, and this page does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

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Words have precise meanings in science. For example, "theory," "law," and "hypothesis" don't all mean the same thing. Outside of science, you might say something is "just a theory," meaning it's a supposition that may or may not be true. In science, however, a theory is an explanation that generally is accepted to be true. Here's a closer look at these important, commonly misused terms.

A hypothesis is an educated guess, based on observation. It's a prediction of cause and effect. Usually, a hypothesis can be supported or refuted through experimentation or more observation. A hypothesis can be disproven but not proven to be true.

Example: If you see no difference in the cleaning ability of various laundry detergents, you might hypothesize that cleaning effectiveness is not affected by which detergent you use. This hypothesis can be disproven if you observe a stain is removed by one detergent and not another. On the other hand, you cannot prove the hypothesis. Even if you never see a difference in the cleanliness of your clothes after trying 1,000 detergents, there might be one more you haven't tried that could be different.

Scientists often construct models to help explain complex concepts. These can be physical models like a model volcano or atom or conceptual models like predictive weather algorithms. A model doesn't contain all the details of the real deal, but it should include observations known to be valid.

Example: The Bohr model shows electrons orbiting the atomic nucleus, much the same way as the way planets revolve around the sun. In reality, the movement of electrons is complicated but the model makes it clear that protons and neutrons form a nucleus and electrons tend to move around outside the nucleus.

A scientific theory summarizes a hypothesis or group of hypotheses that have been supported with repeated testing. A theory is valid as long as there is no evidence to dispute it. Therefore, theories can be disproven. Basically, if evidence accumulates to support a hypothesis, then the hypothesis can become accepted as a good explanation of a phenomenon. One definition of a theory is to say that it's an accepted hypothesis.

Example: It is known that on June 30, 1908, in Tunguska, Siberia, there was an explosion equivalent to the detonation of about 15 million tons of TNT. Many hypotheses have been proposed for what caused the explosion. It was theorized that the explosion was caused by a natural extraterrestrial phenomenon , and was not caused by man. Is this theory a fact? No. The event is a recorded fact. Is this theory, generally accepted to be true, based on evidence to-date? Yes. Can this theory be shown to be false and be discarded? Yes.

A scientific law generalizes a body of observations. At the time it's made, no exceptions have been found to a law. Scientific laws explain things but they do not describe them. One way to tell a law and a theory apart is to ask if the description gives you the means to explain "why." The word "law" is used less and less in science, as many laws are only true under limited circumstances.

Example: Consider Newton's Law of Gravity . Newton could use this law to predict the behavior of a dropped object but he couldn't explain why it happened.

As you can see, there is no "proof" or absolute "truth" in science. The closest we get are facts, which are indisputable observations. Note, however, if you define proof as arriving at a logical conclusion, based on the evidence, then there is "proof" in science. Some work under the definition that to prove something implies it can never be wrong, which is different. If you're asked to define the terms hypothesis, theory, and law, keep in mind the definitions of proof and of these words can vary slightly depending on the scientific discipline. What's important is to realize they don't all mean the same thing and cannot be used interchangeably.

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The Law Dictionary

TheLaw.com Law Dictionary & Black's Law Dictionary 2nd Ed.

A supposition, assumption, or theory; a theory set up by the prosecution, on a criminal trial, or by the defense, as an explanation of the facts in evidence, and a ground for Inferring guilt or Innocence, as the case may be, or as indicating a probable or possible motive for the crime.

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Theories of Criminal Law

Any theory of criminal law must explain why criminal law is distinctive—why it is a body of law worthy of separate attention. This entry begins by identifying features of criminal law that make this so (§1). It then asks what functions that body of law fulfills (§2), and what justifies its creation and continued existence (§3). If criminal law should be retained, we must consider its proper limits (§4). We must consider the conditions under which agents should be criminally responsible for whatever falls within those limits (§5). And we must ask which rules of procedure and evidence should govern efforts to establish criminal responsibility (§6). The focus of this entry is Anglo-American criminal law and scholarship thereon. Many of the questions raised, and many of the answers considered, are nonetheless of general application.

1. Features of Criminal Law

2. functions of criminal law, 3. justifications of criminal law, 4. the limits of criminal law, 5. criminal responsibility, 6. criminal procedure and evidence, other internet resources, related entries.

The life of the criminal law begins with criminalization. To criminalize an act-type—call it $\phi$ing—is to make it a crime to commit tokens of that type. Many claim that if it is a crime to $\phi$ then $\phi$ing is legally wrongful—it is something that, in the eyes of the law, ought not to be done (Hart 1994, 27; Gardner 2007, 239; Tadros 2016, 91). On this view, we are not invited to commit crimes—like murder, or driving uninsured—just as long as we willingly take the prescribed legal consequences. As far as the law is concerned, criminal conduct is to be avoided. This is so whether or not we are willing to take the consequences.

It is possible to imagine a world in which the law gets its way—in which people uniformly refrain from criminal conduct. Obviously enough this is not the world in which we live. Imagine $D$ is about to $\phi$. If $\phi$ing is a crime, reasonable force may permissibly be used to prevent $D$ $\phi$ing. Police officers and private persons alike have powers to arrest $D$, and reasonable force may permissibly be used to make arrests effective.

These powers and permissions exist ex ante —prior, that is, to the commission of crime. We can add those that exist ex post —once crime has been committed. Imagine now that $D$ has $\phi$ed. As well as the power to arrest $D$, the criminal law confers a set of investigative powers designed to help generate evidence of $D$’s criminality: these include powers to stop and search, to carry out surveillance, and to detain suspects for questioning. If sufficient evidence is produced, and it is in the public interest to do so, $D$ may be charged with a crime. To exercise these powers is to impose new duties on $D$—$D$ must submit to the search, remain in detention, and turn up in court when required. For $D$ to do otherwise—absent justification or excuse—is itself criminal. So reasonable force can permissibly be used against $D$ if she refuses to co-operate.

The powers and permissions mentioned so far help $D$’s accusers put together their case against $D$. By the time cases reach the courts those accusers are typically state officials (or those to whom the state has delegated official power). Some legal systems do make space for private prosecutions. But such prosecutions can be discontinued or taken over by state officials (and their delegates). Those officials (and delegates) can also continue proceedings in the face of private opposition, even when the opposition comes from those wronged by $D$. In this way, the state exercises a form of control over criminal proceedings that is absent from legal proceedings of other kinds (Marshall and Duff 1998).

It may seem from the above that criminal proceedings are tilted heavily in favour of the accusing side. But the criminal law also confers rights on the accused that help protect $D$ against her accusers (Ashworth and Zedner 2010, 82). These typically include the right to be informed of the accusations in question, the right to confidential access to a lawyer, and the privilege against self-incrimination. Most important of all, perhaps, is the right to be tried before an independent court that respects the presumption of innocence—that requires the prosecution to prove beyond a reasonable doubt that $D$ committed the crime.

At least on paper, the procedural protections on offer in criminal proceedings are more robust than those available to the accused in legal proceedings of other kinds. This is explained in large part by the consequences of criminal conviction. If $D$ is found guilty in a criminal court, $D$ gains a criminal record. Depending on the crime, $D$ may be disenfranchised, banned from certain professions, refused entry to other countries, and declined access to insurance, housing, and education (Hoskins 2014; 2016). This is to say nothing of criminal sentences themselves. Those sentences are typically punishments: the object of the exercise is that $D$ suffer some harm or deprivation; $D$ is to be made worse off than she otherwise would have been. This is not to say that suffering or deprivation must be the ultimate end of those who punish. That $D$ suffer or lose out may be a means to any number of ultimate ends, including deterrence, restoration, or rehabilitation. What it cannot be is a mere side-effect. This is one thing that distinguishes criminal sentences—at least of the punitive kind—from the reparative remedies that are standard fare in civil law. Those remedies are designed to benefit $P$—to wipe out losses the plaintiff suffered in virtue of the defendant’s wrong. True, $D$ often loses in the process of ensuring that $P$ gains. But we can imagine cases in which this is not so: in which an award of damages leaves $D$ no worse off than $D$ was before. The award may remain a reparative success. It cannot be anything other than a punitive failure (Boonin 2008, 12–17; Gardner 2013).

We can now see that criminalizing $\phi$ing does much more than make $\phi$ing a legal wrong. It also makes it the case that $\phi$ing triggers a set of legal rights, duties, powers, and permissions, the existence of which distinguishes criminal law from the rest of the legal system. Those rights, duties, powers, and permissions are constitutive of a criminal process via which suspected $\phi$ing turns into arrest, charge, trial, conviction, and punishment. Obviously suspicions are sometimes misplaced. Innocent people’s lives are sometimes ruined in consequence. So it is no surprise that the most destructive powers and permissions are jealously guarded by the criminal law. Trials held in a university’s moot court might be meticulously fair to defendants. But a moot court has no power to detain us in advance, to require us to appear before it, or to sentence us to imprisonment. Force used to achieve any of these things would itself be criminal, however proportionate the resulting punishment might be. As this example shows, criminal law is characterised by an asymmetry—it bestows powers and permissions on state officials (and delegates) which are withheld from private persons, such that the latter are condemned as vigilantes for doing what the former lawfully do (Thorburn 2011a, 92–93; Edwards forthcoming). This remains the case—often to the great frustration of victims and their supporters—even if the official response, assuming it comes at all, will be woefully inadequate.

Few deny that one function of criminal law is to deliver justified punishment. Some go further and claim that this is the sole function of criminal law (Moore 1997, 28–29). Call this the punitive view . Rules of criminal procedure and evidence, on this view, help facilitate the imposition of justified punishment, while keeping the risk of unjustified punishment within acceptable bounds. Rules of substantive criminal law help give potential offenders fair warning that they may be punished. Both sets of rules combat objections we might otherwise make to laws that authorize the intentional imposition of harm. To combat objections, of course, is not itself to make a positive case for such laws. That case, on the punitive view, is made by the justified punishments that criminal courts impose. This is not to say anything about what the justification of punishment is . It is merely to say that criminal law is to be justified in punitive terms.

Some object that this focus on punishment is misplaced. The central function criminal law fulfills in responding to crime, some say, is that of calling suspected offenders to account in criminal courts (Gardner 2007, 80; Duff 2010c, 16). This view puts the criminal trial at the centre, not just of criminal proceedings, but of criminal law as a whole (Duff 2013a, 196). Trials invite defendants to account for themselves either by denying the accusation that they offended, or by pleading a defence. The prospect of conviction and punishment puts defendants under pressure to offer an adequate account. Call this the curial view . It differs from the punitive view in two ways. First, part of the positive case for criminal law is independent of the imposition of punishment. Second, part of the positive case for imposing criminal punishment is dependent on the punishment being part of a process of calling to account. The following two paragraphs expand on both these claims.

As to the first, we often have reason to account for our actions to others. We can leave open for now the precise conditions under which this is so. But it is plausible to think that if Alisha steals from Bintu she has reason for account for the theft, and that if Chika intentionally kills Dawn she has reason to account for the killing. Defenders of the curial view argue that criminal proceedings are of intrinsic value when defendants (are called to) offer accounts of themselves that they have reason to offer in criminal courts (Gardner 2007, 190–191; Duff 2010c, 15–17). Imagine Alisha stole from Bintu because she was under duress. Imagine Chika intentionally killed Dawn to defend herself or others. Neither of these defendants, we can assume, is justifiably punished. On the punitive view, criminal law’s function does not stand to be fulfilled. On the curial view, things are different. Alisha and Chika both have reason to account for their behaviour—to explain what they did and why they did it. Criminal proceedings invite each to provide that account and put each under pressure to do so. Assuming Alisha and Chika have reason to account in a criminal court, proceedings in which they (are called to) do so are of intrinsic value. One of criminal law’s functions is fulfilled even if no-one is, or should be, punished.

To endorse the curial view is not, of course, to say that we should do away with criminal punishment. But it is to say that the connection between trial and punishment is not merely instrumental. Some think that the facts that make punishment fitting—say, culpable wrongdoing—obtain independently of criminal proceedings themselves (Moore 1997, 33). We use those proceedings to ensure that said facts are highly likely to have obtained—that $D$ is highly likely to have culpably committed a wrong. On the curial view, the fact that $D$ has been tried and found guilty (or has entered a guilty plea) is itself part of what makes it fitting that $D$ is punished. The fitting way to respond to criminal wrongdoing, on this view, is to call the wrongdoer to account for her wrong. To call $D$ to account is to attempt to both (a) get $D$ to answer for wrongdoing (as occurs in court), and (b) get $D$ to confront wrongdoing for which she has no satisfactory answer (as occurs when $D$ is punished). So it is only because $D$ has first been tried and found guilty (or has entered a guilty plea) that punishment counts as a fitting response to $D$’s wrong (Gardner 2007, 80; Duff 2013a, 205). We can see the implications of this view by imagining a world in which trials are abolished, because some new-fangled machine allows us to identify culpable wrongdoers with perfect accuracy. Having no doubt that $D$ is guilty, we simply impose punishment on $D$. On the curial view, the punishments we impose are inherently defective: they are not imposed as part of a process of calling to account. Though our new-fangled machine might justify doing away with trials—once we factor in how expensive they can be—we would lose something of value in doing away with them.

If criminal law does have a particular function, we can ask whether that function is distinctive of criminal law. We can ask, in other words, whether it helps distinguish criminal law from the rest of the legal system. It has been claimed that criminal law is distinctive in imposing punishment (Moore 1997, 18–30; Husak 2008, 72). One might also claim that criminal law alone calls defendants to account. But punishments are imposed in civil proceedings—exemplary damages are the obvious case. And it is arguable that civil proceedings also call defendants to account—that they too invite defendants to offer a denial or plead a defence; that they too use the prospect of legal liability to put defendants under pressure to account adequately (Duff 2014a).

In response, one might try to refine the function that is distinctive of criminal law. Perhaps criminal law’s function is to respond to public wrongs (whether by calling to account or punishing such wrongdoers), whereas the function of civil law is to respond to private wrongs. What we should make of this proposal depends on what a public wrong is (Lamond 2007; Lee 2015; Edwards and Simester 2017). To make progress, we can distinguish between primary duties—like duties not to rape or rob—and secondary duties—like duties to answer, or suffer punishment, for rape or robbery. We incur duties of the latter kind by breaching duties of the former.

If the public/private distinction is cashed out in terms of primary duties, then responding to public wrongs cannot be distinctive of criminal law. Many wrongs are both crimes and torts. So the two bodies of law often respond to breaches of the same primary duty. A more promising proposal looks to secondary duties. Perhaps criminal law’s distinctive function is to respond to wrongs on behalf of us all —to discharge secondary duties owed to the community as a whole (Duff 2011, 140). Perhaps the function of civil law is to respond to wrongs on behalf of some of us —to discharge secondary duties owed to particular individuals. This might be thought to explain why criminal proceedings, unlike civil proceedings, are controlled by state officials: why officials can initiate proceedings that individual victims oppose, and discontinue proceedings that victims initiate.

The view described in the previous paragraph conceives of criminal law as an instrument of the community—a way of ensuring that the community gets what it is owed from wrongdoers. Call it the communitarian view . If we combine this with the curial view, the distinctive function of criminal law is to seek answers owed to the community as a whole. One might doubt that the functions of criminal and civil law can be so neatly distinguished. It is arguable that civil law sometimes responds to wrongs on behalf of all of us—civil proceedings can be brought against $D$ on the basis that her conduct is a nuisance to the public at large, or on the basis that $D$ is a public official whose conduct is an abuse of power. More importantly, one might claim that in the case of paradigmatic crimes—like robbery, rape, or battery—criminal law responds to wrongs on behalf of particular individuals—on behalf of those who have been robbed, raped, or battered. On this view, a positive case for criminalization need not await the finding that $D$ owes something to the whole community. It is at least sometimes enough that $D$ owes something to those $D$ has wronged, which $D$ would fail to provide in the absence of criminal proceedings.

Those who reject the communitarian view might be thought to face the following difficulty: they might be thought to lack an explanation of official control over how far criminal proceedings go. If criminal law seeks what is owed by wrongdoers to the wronged, doesn’t official control amount to theft of a conflict properly controlled by the two parties (Christie 1977)? Not necessarily. First, we should not always require the wronged to have to pursue those who have wronged them. Second, we should not always support those who think themselves wronged in pursuing alleged wrongdoers. As to the first point, some are trapped in abusive relationships with those who wrong them. Others are susceptible to manipulation that serves to silence their complaints. Some wrongdoers can use wealth and social status to stop accusers in their tracks. As to the second point, the temptation to retaliate in the face of wrongdoing is often great. It is all too easy for the pursuit of justice to become the pursuit of revenge, and for the perceived urgency of the pursuit to generate false accusations. Official control can help vulnerable individuals—like those described above—to get what they are owed. And it can mitigate the damage done by those trying to exact vengeance and settle scores (Gardner 2007, 214–216). It can ensure that those in positions of power cannot wrong others with impunity, and reduce the likelihood that vindictiveness begets retaliation, which begets violent conflict from which all lose out (Wellman 2005, 8–10). We can add that criminal proceedings may help protect others against being wronged in future. Those wronged may have a duty to give up control of proceedings in order to provide this protection (Tadros 2011c, 297–299).

These remarks suggest an alternative to the communitarian view. According to the alternative, the secondary duties of concern in civil and criminal proceedings are typically one and the same. The positive case for criminal law’s involvement is not that it discharges duties of interest to the criminal law alone, but that it enables duties of general interest to be discharged less imperfectly than they otherwise would be—than they would be if the criminal law took no interest in them. Call this the imperfectionist view . What is distinctive of criminal law, on this view, is not its function but its mode of functioning: the manner in which it fulfills functions shared with other bodies of law.

Some writers seek criminal law’s distinctiveness in a different place. What is distinctive about criminal law, they claim, is that it publicly censures or condemns. This expressive function is sometimes associated with criminal punishment (Husak 2008, 92–95). Because other bodies of law sometimes punish, and because punishment typically—perhaps necessarily—expresses censure (Feinberg 1970), the expressive function is at least partly shared. But the message sent by criminal law is not sent only at the sentencing stage. It is sent the moment a guilty verdict is reached by a criminal court—by the declaration that $D$ has been criminally convicted (Simester 2005, 33–36). The social significance of conviction is very different to that of (say) the verdict that $D$ is a tortfeasor: the former verdict conveys, in and of itself, that $D$’s conduct reflects badly on $D$. Though additional detail may generate the same conclusion in the case of a civil verdict, such detail is not required in the case of criminal conviction. If this is right, the distinctiveness of criminal law turns out not to consist in the fact that it provides for punishment. It turns out to consist (at least in part) in the provision of a technique for condemning wrongdoers which does not require that we punish in order to condemn.

So far, we have focused on the functions criminal law fulfills in response to the commission of crime. It is plausible to think, however, that criminal law’s functions include preventing crime from occurring. We can see this by asking what success would look like for the criminal law. Would criminal law have succeeded if all thieves and murderers were tried and punished? Or would it have succeeded if there was no theft or murder, because criminalization resulted in would-be thieves and murderers refraining from such wrongs? Notice that to pose these two questions as alternatives is not to deny that punishment might be justified in preventive terms. It is rather to suggest that resorting to punishment to achieve prevention is already a partial failure for the criminal law. It is a failure to deter those who, ex hypothesi , have already committed criminal offences. Had the creation of those offences been an unqualified success, there would have been nothing for which to punish anyone.

One might hold that criminal law’s sole function is to prevent criminal wrongdoing. Call this the preventive view . Defenders of this view need not say that we should enact whatever laws will achieve the most prevention. That $X$ is the function of $Y$ does not entail that we are justified in doing whatever will achieve most of $X$ with $Y$. That cutting is the function of knives does not entail that knife-holders are justified in cutting whatever they see. Holders of the preventive view can, in other words, accept the existence of constraints on prevention, that are not themselves justified in preventive terms (Hart 1968, 35–50). What they cannot accept is a positive case for criminal law that is not preventive.

Some hold a mixed view that combines elements of those considered above (Alexander and Ferzan 2009, 3–19; Simester and von Hirsch 2011, 3–18; Tadros 2016, 159–172). One way to construct such a view is by distinguishing between primary and secondary functions. Primary functions are those that, when all else is equal, we have most reason to want the law to fulfil. Secondary functions are those we have reason to want the law to fulfil if it fails to fulfil its primary functions. Criminal law’s primary functions, it is plausible to think, are preventive. Ceteris paribus , we have most reason to want criminal law to bring about a world in which wrongs like theft or murder do not occur. Failing that, we have reason to want criminal law to call thieves and murderers to account, and to punish those who have no adequate account to offer.

There is some scepticism about mixed views. For some, the worries are conceptual. Moore claims that justified punishment must be imposed for reasons of desert, and that for this reason the punitive and preventive functions cannot be combined. We are unable to ‘kill two birds with the proverbial one stone, for by aiming at one of the birds we will necessarily miss the other’ (Moore 1997, 28). Several replies are available. First, even if this is a problem for a mixed view of punishment , it need not be for a mixed view of criminal law . Grant that punishment must be imposed for reasons of desert. It does not follow that criminal offences cannot be created for reasons of prevention. Criminalization and punishment are different acts, and can be performed for different reasons (Edwards and Simester 2014). Second, to claim that $X$ is part of the positive case for criminal law—that it is one of criminal law’s functions —is not to claim that $X$ should be part of the mission of every criminal justice official (Gardner 2007, 202). Reasons that help make a positive case for our actions are often reasons for which we should not act. That one will be financially secure is a reason to get married, but one should not get married in order to be financially secure. Similarly, to say that prevention helps make a positive case for criminal law—and for punishment—is not to say that judges should punish for that reason.

Other worries about mixed views are pragmatic (Duff 2010a). As criminal wrongdoing will persist whatever we do, the preventive function sets criminal law an insatiable goal. There is a standing risk that law-makers who pursue that goal will deprive us of a criminal law that fulfills its other functions. Consider again the curial view. Plausibly, we have reason to account for wrongs like theft and fraud in criminal court, but no reason to account for every interaction with property or all misleading statements from which we stand to gain. If defendants are to be called to account for the wrongs, it is these that must be criminalized. To criminalize trivialities—in pursuit of preventive ends—is to drain criminal proceedings of their intrinsic value (Duff 2010b). No doubt these are important worries. But they do nothing to suggest that we should reject a mixed view. At most, they show that law-makers also should not take prevention to be part of their mission. As we already saw, this conclusion does not show that prevention is not part of the positive case for criminal law. And it may anyway be too strong. Law-makers who exclude prevention from their mission may refuse to create crimes that would prevent a great deal of harm. The cost of refusing to create these crimes might be greater than the cost of calling people to account for trivialities, and this might be so even when alternative means of prevention are factored in. If it would, criminal law’s preventive function should be part of the law-making mission: it is a function law-makers should indeed aim to fulfil.

In light of the resources it consumes, and the damage it does to people’s lives, it is far from clear that we are justified in having criminal law. If we should not be abolitionists, criminal law must be capable of realizing some value that gives us sufficient reason to retain it. To offer an account of this value is to offer a general justification of criminal law. Obviously enough, the functions of criminal law tell us something about what this might be. If the punitive view is correct, criminal law’s value consists in delivering justified punishment. If the curial view is correct, that value consists (in part) in people offering answers that they have reason to offer. If the preventive view is correct, it consists in preventing criminal wrongs. So stated, however, these views do not tell us what the value of fulfilling each function actually is. The punitive view tells us nothing about what justifies criminal punishment. The curial view tells us nothing about the value of calling people to account in criminal courts. The preventive view tells us nothing about the value of preventing crime. A general justification of criminal law fills this explanatory gap.

We can make progress by distinguishing between value of different kinds. Some value is relational—it exists in virtue of relationships in which people stand. That a relationship has such value is a reason to do what will bring it into existence. The value of friendship is a reason to make friends. The value of egalitarian social relations is a reason to break down barriers of status and rank. Some argue that we have sufficient reason to have criminal law because it helps us enter a valuable relationship: it helps transform our relations with one another from relations of mutual dependence, to relations of independence from the power of others (Ripstein 2009, 300–324; Thorburn 2011a, 2011b).

This argument can be developed as follows. Just as slaves are dependent on their masters, so we are dependent on one another in the absence of a framework of legal rights: just as masters wrong their slaves, however well they treat them, so we are doomed to wrong one another if no such framework exists. To avoid this, we need more than just rights that exist on paper. We need sufficient assurance that our rights will be respected, and we need a mechanism by which their supremacy can be reasserted in the face of wilful violation. Criminal law’s value lies in giving us what we need. Criminal punishment amounts to reassertion. Crime prevention provides reassurance. At the level of function, this is what the last section called a mixed view. But the value of fulfilling both functions is one and the same: it is the value of securing our independence from one another, so we cease to relate to one another as master and slave, and begin to do so as independent beings. As it is often associated (rightly or wrongly) with Kant’s political philosophy, we can call this the Kantian view .

It is sometimes suggested that criminal law’s general justification is exhausted by its contribution to our independence. It is not clear why we should accept this claim. One source of doubt is the fact that some agents are unavoidably dependent—they lack the capacities required to live as independent beings. This is true of some non-human animals, and some of those with serious disabilities. Precisely because of the capacities they lack, these agents are especially vulnerable to being abused or exploited. Part of criminal law’s general justification is that it protects the vulnerable against such wrongs. Ex hypothesi , this does nothing to secure independence. So it is not something that can be accommodated by (the exhaustive form of) the Kantian view (Tadros 2011b).

For defenders of the Kantian view, criminal law’s value derives from a relationship it helps create. On another view, the value of criminal law derives from a relationship that pre-exists it: the relationship in which we stand as members of a political community (Duff 2011). Any such community has values in terms of which it is understood by its members. If this self-understanding is to be more than a charade, the community must actually value its defining values—it must do what those values are reasons to do. Imagine that life is one such value, and a member takes another’s life. Part of what it is for a community to value life is for it to respond to the taking: for the killer to be required to account to fellow members, thereby communicating the community’s judgment that the killing was wrong. Criminal law is a body of law that requires the accounting. Functionally, this is a version of the curial view. But the value of fulfilling that function is relational: it is the value of making the community one that is true to itself—one that does not betray the values in terms of which members understand what it is and who they are (Duff and Marshall 2010, 83–84). This line of thought lends support to what I earlier called the communitarian view. On that view, criminal proceedings discharge secondary duties owed to the community as a whole. That such duties are part and parcel of a valuable form of relationship helps explains why we should think that they exist.

One objection to the view described in the previous paragraph is that it is unduly conservative . What justifies criminalizing a wrong—on that view—is that the wrong has a pre-existing foothold in the defining values of the community: it is because of that foothold that failing to criminalize would be a form of self-betrayal. Some communities, however, are characterised by systematic neglect of important values—by patriarchy, or racism, or distributive inequality. When this is so, part of the justification for criminalization is not that it helps the community remain true to itself, but that it helps transform the community by reconstituting it in valuable ways (Dempsey 2009; 2011). One source of criminal law’s value, on this alternative view, is its ability to help alter social morality, such that neglected values come to be taken seriously by community members (Green 2013a). Where this is successful, criminal law can largely disappear from members’ motivational horizons: we come to refrain from conduct for the moral reasons that make it wrong, without reference to the fact that the conduct is criminal.

Both versions of the relational view—Kantian and communitarian—face another doubt. Imagine $D$ robs $V$. It is plausible to think that this wrong is of concern to the criminal law in its own right . It is plausible to think that whatever further effects it might have, preventing the wrong of murder itself helps justify criminalizing murder, and bringing criminal proceedings against murderers. On both the Kantian and communitarian views this is not the case. What justifies criminalizing wrongs, and bringing criminal proceedings against wrongdoers, is that this contributes to some larger social good—to the framework of legal rules we need for independence, or to the community remaining true to itself. We may reasonably doubt that wrongs like murder matter to the criminal law only for these further reasons. In claiming that this is why they matter, both versions of the relational view instrumentalize criminal law’s concern with wrongdoing: both hold that we have reason to prevent wrongs via the criminal law only because this is a means of establishing healthy relations in which all share.

The above remarks concern the kind of value that justifies having criminal law. We can also ask who is capable of realizing that value. On both the views sketched above, criminal law’s value is grounded in a relationship in which all stand. If that value is to be realised, someone must act on behalf of those who stand in the relationship. In most systems of criminal law, the job is done by the state—agents of the state create, apply, and enforce criminal laws. Some argue that in a legitimate system of criminal law this is the only possibility. Criminal law’s value, it is claimed, is essentially public —it is value that can only be realised, even in principle, by agents of the state. This view can be developed in a number of ways. Consider again the Kantian view. Some claim that coercion secures independence only if the coercer speaks for all those coerced. Otherwise it is just another independence violation. Only state agents can speak for all of us. So the enforcement of the criminal law must remain in their hands (Thorburn 2011a, 98–99). Defenders of the communitarian view tell a similar story. If the value of criminal proceedings is that they express the community’s judgment about wrongdoing, and if only state agents can convey our collective judgment, trials must be carried out, and punishments imposed, by those agents (Duff 2013a, 206). On both views, it is impossible for private persons to realise the values that justify criminal law. If these arguments go through, they have obvious implications for debates about the privatization of prison and police services (Dorfman and Harel 2016). They also offer us a sense in which criminal law theory must be political. It must face up to the question of whether there are essentially public goods, and ask what role they play in justifying the existence of criminal law (Harel 2014, 96–99).

Some find criminal law’s general justification in value that is neither relational nor essentially public. Consider the prevention of harm, or the prevention of moral wrongdoing. A number of writers appeal to one or both values to justify the existence of criminal law (Feinberg 1987, 146–155; Alexander and Ferzan 2009, 17; Simester and von Hirsch 2011, 29–30). Because there are wrongless harms (think of sporting injures caused without foul play) and harmless wrongs (think of botched conspiracies or undiscovered attempts) the aforementioned values do not always wax and wane together. One possibility is that criminal law’s concern with wrongs is derivative of its concern with harms: criminal law should prevent wrongs (e.g., conspiracy to injure) when and because harm is thereby prevented (e.g., injury itself). Another possibility is that criminal law’s concern with harms is derivative of its concern with wrongs: criminal law should prevent harms (e.g., physical injury) when and because those harms are wrongfully caused (e.g., by assault) (Feinberg 1987, 151–155; Moore 1997, 647–649). A third possibility is that harms and wrongs provide two independent sources of general justification (compare Tadros 2016, 162–166). Whatever the answer, this preventive value is impersonal in two ways: it is not grounded in any special relationship; and it is value that might in principle be realised by any of us.

Anyone who seeks criminal law’s justification in the coin of impersonal value must also account for what the criminal law does when prevention fails. Imagine $D$ assaults $V$, thereby causing $V$ physical injury. Some claim that $D$ thereby incurs secondary moral duties, not in virtue of any relationship in which $D$ stands, but simply in virtue of facts about the wrong $D$ committed (Moore 1997, 170–172; Tadros 2011c, 275–283). Criminal law’s responses to crime discharge these duties, it is claimed, and this is what justifies those responses.

It is worth distinguishing between two versions of this view. According to Moore, all culpable wrongdoers incur a duty to allow themselves to suffer. Retributive justice is done when punishment imposes that suffering, and this is what justifies the imposition of criminal punishment (Moore 1997, 70–71). Moore argues that the suffering of culpable wrongdoers is intrinsically good. On a rival view, suffering is always intrinsically bad. We must accept, however, that in some cases not all suffering can be avoided. Sometimes we must choose between wrongdoers suffering now and others suffering at the hands of wrongdoers later. Only by imposing the former can we protect against the latter. It might look as though punishing wrongdoers for these protective reasons amounts to treating them as mere means. But this is not necessarily so. Tadros argues that some wrongdoers incur duties to protect others at the cost of some harm to themselves. We can justify imposing punishments that come at this cost to these wrongdoers, when the punishments protect others by preventing future wrongs. As those punished are only doing their duty, we can reasonably claim that they are not treated as mere means (Tadros 2011c; 2016). Though Moore and Tadros disagree on many things, their views also have something in common. Both claim that, as a matter of principle, anyone might impose punishment that discharges wrongdoers’ secondary duties. The value to which both appeal to justify punishment is impersonal: it is neither relational nor essentially public (Moore 2009a, 42; Tadros 2011c, 293).

General justifications of criminal law like those sketched in the last few paragraphs face a number of criticisms. One objection has it they are unduly expansive : much moral wrongdoing—even much that generates secondary duties to suffer or protect—is no business of the criminal law. Failing to help one’s friend move house because one is lazy is a culpable wrong. But as the failure is a private matter—to be resolved by the friends themselves—there is no reason for law-makers to criminalize the wrong (Duff 2014b; Husak 2014, 215–216). There is certainly no reason for them to criminalize it when the friends are both citizens of another state, and the failure occurs in the other jurisdiction (Duff 2016). Reasons to criminalize exist, as it is often put, only where law-makers have standing . And the mere fact that a wrong generates the aforementioned secondary duties does not itself give law-makers standing to criminalize it.

According to a second objection, the focus on moral wrongdoing is unduly restrictive : much that is not morally wrong—and which generates no secondary duties—is the business of the criminal law. According to one argument for this conclusion, the stable existence of (almost) any valuable social institution—be it financial, educational, familial, military, or political—depends on widespread compliance with its rules. Under realistic conditions, criminal liability for violation is necessary for stability. It is the value of stable institutions, not the moral wrongfulness of violating their rules, that justifies bringing criminal law into existence (Chiao 2016).

A third objection returns us to the asymmetry discussed at the end of section 1. Many of the powers and permissions by means of which criminal justice is done are withheld from private persons. Most obviously, private persons are not typically permitted to use force to punish others for crime. Few think that this should be changed. Vigilantism should remain criminal. If the values that justify having criminal law are essentially public, we appear to have an easy explanation of this fact: private persons cannot, even in principle, realise the values that justify criminal punishment; so they should not be permitted to punish. If those values are not essentially public, things are more difficult. There will surely be cases in which private persons are best placed to discharge $D$’s secondary duties—in which the state will not punish $D$, but our imagined moot court would fine $D$ a proportionate amount. It is not immediately clear that those who find criminal law’s general justification in impersonal values can explain why the moot court may not extract the money (Thorburn 2011a, 92–93).

Let us take the third objection first. If impersonal values justify having criminal law, we have reason to opt for whichever set of legal rules will realise those values most efficiently. If one set of powers and permissions will achieve more of the value in question at a lower cost, we should—all else being equal—opt for that set. Now compare two sets of rules. One permits state officials and private persons alike to use force to punish criminals. Another withholds the permissions granted to the former from the latter. We have good reason to think that the first set of rules would bring with it significant costs. Private persons are likely to make more mistakes about who committed crimes, and about how much punishment is appropriate for criminality. Different private punishers are unlikely to punish similarly placed offenders in similar amounts. And as their actions are less easily subjected to public scrutiny, private persons are less easily compelled to punish for the right reasons—in order to do justice rather than settle scores, get revenge, or maximise their profit margins (Moore 2009a, 42; Edwards forthcoming). Avoiding these costs is a strong reason to opt for the second set of rules. True, that set prevents proportionate punishment being imposed by our imagined moot court. But it is plausible to think that this benefit is outweighed by the aforementioned costs. If it is, those who appeal to impersonal values to justify criminal law can explain why the moot court is not permitted to force us to give up our money.

According to the second objection, what justifies having criminal law is its role in stabilizing valuable institutions. Notice, however, that if violating the rules of a valuable institution contributes to its destabilization, we will often have a moral duty to conform to the institution’s rules. By preventing these wrongs, and holding wrongdoers responsible, we stabilize the institutions. The contrast between a general justification focused on moral wrongdoing, and one focused on institutional stability, therefore turns out to be a false contrast (Tadros 2016, 135). These observations help make a more general point. We can accept that criminal law is a tool properly used to support financial, educational, familial, military, and political institutions. We can also accept that it is not any old tool—that criminal law is ‘a great moral machine, stamping stigmata on its products, painfully “rubbing in” moral judgments on the people who entered at one end as “suspects” and emerged from the other end as condemned prisoners’ (Feinberg 1987, 155). It is precisely because criminal law is a tool of this special kind—a ‘morally loaded sledgehammer’ (Simester and von Hirsch 2011, 10)—that its general justification is plausibly found in preventing and responding to moral wrongs (cf. Tadros 2016, 68–70).

If this kind of general justification is not too restrictive, is it nonetheless too expansive? This was the first of the three objections raised above. Let us grant that some moral wrongs are not the criminal law’s business. We need not infer that criminal law is unconcerned with moral wrongness. We need only accept that there are facts about criminalization which give law-makers a duty not to criminalize some moral wrongs. There are many such facts, and their force varies depending on the wrong (Simester and von Hirsch 2011, 189–211; Moore 2014). In some cases, criminalizing a wrong will inevitably result in selective enforcement, raising concerns about selection being made on discriminatory grounds. In others, enforcement would necessitate gross invasions of privacy, and require the law to take sides in conflicts better resolved by the parties themselves. There is often value in freely choosing not to act wrongly, and in so choosing for the right reasons, rather than because one was coerced: criminalizing a wrong may result in this value disappearing from the world. It will almost inevitably divert scarce resources from other valuable priorities. And there is often reason to think that criminalization will not result in there being less wrongdoing in the world. Criminal conduct may be driven underground rather than made less common. Institutions of punishment may house unseen abuse and victimization. Ex-offenders may be driven towards crime by their reduced prospects in life. Where reasons like these generate a duty not to criminalize a wrong, the conduct in question is no business of the criminal law. There is nothing here to cast doubt on the thought that criminal law’s general justification consists in preventing, and holding people responsible for, moral wrongs.

No-one denies that some things should not be criminalized. What is less clear is how we are to work out what these things are. One approach is to seek constraints on permissible criminalization. Even if the values that justify having criminal law count in favour of criminalization, our reasons to do so may be defeated by reasons that count against. A constraint identifies conditions under which the latter reasons always win. Consider, for example, the wrongfulness constraint:

Principles like (W) give us a line we can draw without reference to (at least some) morally salient particulars. Conduct that falls outside the line may not be criminalized come what may. Imagine we are considering whether to make it a crime to possess guns. Doing so will prevent a great deal of harmful wrongdoing that cannot be prevented otherwise. This is a powerful moral reason to criminalize. But if (W) is sound, and gun possession is not morally wrongful, that powerful reason is irrelevant to the decision with which we are faced. We are not permitted to criminalize, however much harm criminalization would prevent (Moore 1997, 72–73; Simester and von Hirsch 2011, 22–23; Duff 2014b, 218–222).

Some suspect that all purported constraints on criminalization fail (Duff et al 2014, 44–52; Tadros 2016, 91–107). This is not to say that anything goes. It is rather to say that we cannot use a line like that drawn by (W) to work out what is permissibly criminalized. To trace the limits of the criminal law, we must engage in a more complex normative exercise: we must consider all morally salient particulars of proposed criminal laws—giving those particulars due weight in our deliberations—and thereby determine whether each proposal should be enacted. The limits of the criminal law cannot be traced in advance of this exercise. Instead, they are determined by it.

The constraint to which most attention has been paid is the so-called harm principle. It is nowadays widely recognised that there is no single such principle. Rather, there are many harm principles (Tadros 2011a; Tomlin 2014b; Edwards 2014). One important distinction is between the harmful conduct principle (HCP) and the harm prevention principle (HPP):

These principles have very different implications. That conduct is harmful, or unreasonably risks harm, does not show that we will prevent a proportionate amount of harm by criminalizing it. Conversely, we may be able to prevent harm only by criminalizing conduct that is harmless, and that does not unreasonably risk harm.

To see the first point, consider the use of drugs. Criminalizing use may turn a drug into forbidden fruit that is more attractive to potential consumers, and place production in the hands of criminal gangs who make consumption ever more harmful. Users may become less willing to seek medical treatment for fear of exposing their criminality, and may end up with criminal records that lead to social exclusion, and damage their employment prospects for years to come (United Nations 2015). Where criminalization does have these effects, the harm it does is out of all proportion to any harm prevented. Even if (HCP) is satisfied, (HPP) is not.

To see the second point, consider the possession of guns. Possessing a gun is not itself harmful. And many possess guns without unreasonably risking harm. If one endorses (HCP), one must either weaken one’s chosen principle or accept that gun possession cannot be criminalized. If one endorses (HPP), things are different. What matters is not the effect of each instance of gun possession, but the effect of criminalizing all of them: if criminalizing possession will prevent harm that would not otherwise be prevented—and do so at a not disproportionate cost—the fact that some owners possess guns safely is beside the point. Whether or not (HCP) is satisfied, (HPP) is.

Constraints like (W), (HCP), and (HPP) require clarification. To apply (W) we need to know what makes something morally wrongful. Plausibly enough, it is morally wrongful to $\phi$ only if there is decisive reason not to $\phi$. But while this is necessary, it may not be sufficient. I have decisive reason not to go out in the rain without my umbrella. But it does not seem morally wrongful to do so (Tadros 2016, 11–46). Whatever the correct criterion, we must ask how law-makers are to apply it. Are law-makers to ask whether most members of society believe $\phi$ing to be morally wrongful—a matter of conventional morality—or are they to ask whether this is what members would ideally believe—a matter of critical morality (Hart 1963; Devlin 1965)? We must also ask whether just any morally wrongful act will do. Some wrongful acts also violate rights, such that those who commit them wrong others. On one view, it is only when $\phi$ing meets this additional test that it is permissible to criminalize $\phi$ing (Feinberg 1984; Stewart 2010).

Some crimes are mala in se —they criminalize conduct that is morally wrongful independently of the law. Most crimes are mala prohibita —they criminalize conduct that, if morally wrongful at all, is morally wrongful partly in virtue of the fact that it is unlawful. Is (W) compatible with the existence of mala prohibita ? That depends on the extent to which changes in the law can produce changes in morality. The rules of the road are the classic case. Apart from the law, it is morally wrongful to drive dangerously. Such conduct is malum in se . What we should do to conform to this moral norm is not always obvious. To help, the law puts in place rules that tell us which side of the road to drive on, when to stop, and how fast we may go. Imagine we obey these rules. In doing so, we drive more safely than we otherwise would have: we better conform to the moral norm that prohibits dangerous driving. One proposal is that it is morally wrongful to violate legal norms that have this effect: that help us better conform to moral norms that exist independently of the law (Gardner 2011, 19–21). Mala prohibita of this kind would then be compatible with (W). Of course, things are not so straightforward. Even if legal conformity generally improves our moral conformity, there may be exceptional cases in which it does not—in which we can violate the rules of the road without putting anyone in danger, or in which violation helps keep everyone safe. And there may be people for whom even the generalization is not true—whose expertise enables them to systematically violate legal norms without creating risks any greater than those created by the rest of us. Can an explanation be given of why these violations are nonetheless morally wrongful? If not, (W) implies that even morally beneficial mala prohibita —like the rules of the road—must ultimately be removed from the criminal law (Husak 2008, 103–119; Simester and von Hirsch 2011, 24–29; Wellman 2013).

To apply (HCP) and (HPP) we need a conception of harm. Most views are comparative: we are harmed by some event if and only if that event renders us worse off in some way relative to some baseline. One challenge is to identify the relevant baseline. Are we harmed by an event if we are worse than we would have been if things had been different? If so, different how? Are we harmed if we are worse off than we were immediately beforehand? Or should we focus not on the position we were or would have been in, but on the position we should have been in morally speaking (Holtug 2002; Tadros 2016, 187–200)? A second challenge is to determine in what way we must be worse off. The wider our answer to this question, the more likely it is that harm principles collapse into their supposed rivals. Some say we are harmed when our interests are set back (Feinberg 1984, 31–64). But it is plausible to think that we have interests in avoiding disgust, annoyance, and dismay. Many people are disgusted, annoyed, or dismayed by what they take to be morally wrongful. On an interest-based view, they are also harmed. Any harm principle that uses this notion of harm thus threatens to permit criminalization of much conventional immorality (Devlin 1965). A narrower view has it that we are harmed only if our future prospects are reduced, because we are deprived of valuable abilities or opportunities (Raz 1986, 413–414; Gardner 2007, 3–4; Simester and von Hirsch 2011, 36–37). Disgust, annoyance, and offence need not—and often do not—have this effect. So they need not be—and often are not—harmful. But as blinding pain also need not reduce one’s prospects in life, it is arguable that this view avoids collapse only at the cost of underinclusion (Tadros 2016, 179–180).

Whatever view of harm we take, we must also decide whether all harms count for the purposes of a given harm principle. People sometimes harm themselves, they are sometimes harmed by natural events, and harm is sometimes done consensually. Recall that if we endorse (HPP), we must decide whether the harm criminalization prevents is proportionate to the harm it does. Can we include all the aforementioned harms in our calculations? Or must we only include harm done to others without their consent (Mill 1859; Dworkin 1972; Feinberg 1986; Coons and Weber 2013)? Some point out that whatever law-makers’ aims, most criminal laws will prevent some non-consensual harm (Feinberg 1986, 138–142; Tadros 2016, 103). Be that as it may, whether we take into account other harms remains important: where the scales would otherwise point against criminalization, giving weight to a wider range of harms may tip the balance decisively in its favour.

As well as asking how constraints might be clarified, we must ask how they might be defended. One type of defence proceeds from within our theory of ideals. A theory of ideals includes an account of the values that bear upon how we should act, and of the priority relations between those values (Hamlin and Stemplowska 2012). To see how such a theory might generate constraints, consider (W). One argument for that principle is the argument from conviction (Simester and von Hirsch 2011, 19–20):

A second argument is the argument from punishment (Husak 2008, 92–103):

One response to these arguments is that criminal law does not always censure or stigmatize. Another is that the arguments rely on priority claims that cannot be sustained. The argument from conviction depends on our accepting that moral defamation cannot be justified. The argument from punishment depends on our accepting that those who do not act wrongly have an absolute right not to be punished. These claims may be too strong. To test the second, think again about possession of guns. Imagine that we criminalize possession, and that we have good reason to think that we can thereby save many lives. $D$ possesses a gun safely because $D$ likes how it looks hanging on the wall. We can grant that $D$ would act wrongly if $D$’s conduct risked harm to others, or prevented the state from saving others’ lives. But as $D$’s possession is safe, and the state has in fact criminalized possession, neither is the case. Would the state violate $D$’s rights if it punished $D$? It is plausible to think not. $D$ could very easily have refrained from possessing the gun. And if the state were to refrain from punishing safe possessors like $D$, more people would be likely to possess guns in the mistaken belief that this was safe. This would likely result in some lives being lost. The fact that not punishing safe possessors would probably have this effect is a good reason to think that safe possessors lack a valid complaint if they are punished. It is a good reason to think that it sometimes is permissible to punish the morally innocent. If it is, premise (3) of the argument from punishment is false (Tadros 2016, 329–333).

Now consider (HPP). We can imagine a world in which we could flick a switch, sending an electronic signal to $D$’s brain, the only effect of which would be that $D$ would not act wrongly. Whatever one thinks of this means of prevention, it is not the means we utilize when we make use of criminal law. Absent perfect compliance, criminal law prevents wrongs by publicly making accusations, condemning people as wrongdoers, and punishing them for their wrongs. Public accusations often stick even if nothing comes of them. Punishment is harmful by its very nature. The lives of $D$’s family and friends are collateral damage as $D$’s prospects are reduced. Some claim that we can justify causing such harm—at least when the state does the harming—only if this is a necessary and proportionate means of preventing people being harmed. So it is impermissible to criminalize when this condition is not satisfied. Hence (HPP) (Raz 1986, 418–420; Edwards 2014, 259–262).

One might reply that the harm internal to justified punishment is harm we lack reason not to impose. Leaving this aside, it is far from obvious that harm has lexical priority over other values. The above argument for (HPP) seems to depend on this claim. But there is wrongdoing that is both serious and harmless. Imagine $D$ violates the bodily integrity or sexual autonomy of an unconscious $V$, but this is never discovered and has no further effects (Gardner and Shute 2000; Ripstein 2006, 218–229). It is plausible to think that the value of preventing such wrongs, even when this does not prevent harm, is at least sometimes capable of justifying the harm done by criminalization (Tadros 2016, 106–107).

A second defence of constraints proceeds from within non-ideal theory : from our account of what should be done when some people will not act as they should. One might say that all criminal law theory is part of non-ideal theory—that we have reason to have criminal law precisely because people will (otherwise) act wrongly. Be that as it may. As well as fallible agents who (would otherwise) commit crimes, there are fallible agents who make, apply, and enforce criminal laws. Any non-ideal theory must also take account of the errors the latter are disposed to make. Some are errors of application and enforcement—errors made when police officers arrest, prosecutors charge, and courts punish the innocent. More important for present purposes are the errors law-makers are disposed to make when creating crimes. These errors matter here for the following reason. Prescriptive norms are often justified on the grounds that they prevent/mitigate errors that would be made in their absence (Schauer 1991, 135–166). If followed, speed limits prevent some drivers from driving in ways that are impeccable in isolation. But the limits are justified if they prevent/mitigate errors that drivers would make if we did without speed limits, and if preventing/mitigating the errors is worth the cost of preventing some driving that is otherwise impeccable. Let us grant that, when followed, constraints like (W) or (HPP) prevent some law-makers from criminalizing in ways that are impeccable in isolation. The constraints may be justified if they prevent/mitigate errors law-makers would make if they did without them, and if preventing/mitigating the errors is worth the cost of preventing criminalization that is otherwise impeccable.

Many defenders of (HPP) offer defences that proceed in the manner just described. One error is that of underestimating the value in lives very different from our own: of mistaking the virtues required to succeed in those lives for vices, and of concluding that these supposed vices ought to be suppressed (Raz 1986, 401–407; Gardner 2007, 118–120). A second error is that of underestimating the value of toleration. That value includes making space for experiments in living, which both help combat prejudice by exposing people to the unfamiliar, and help people develop deliberative faculties by exposing them to that with which they disagree (Mill 1859; Brink 2013). A third error is that of underestimating the harm one’s policies do to those who live in very different circumstances (Green 2013b, 202). If the main effects of criminalizing drug use are felt in communities the affluent shun, it is not hard to see how law-makers could be blind to the amount of damage criminalization does. Law-makers who make each of these errors will be tempted to create criminal laws that are anything but impeccable—laws designed to suppress activities the value in which has been missed, which do much more harm than their designers anticipated. The case for (HPP) is that it stands in the way of this temptation. Those who follow it must tolerate conduct—however offensive or immoral they deem it to be—unless they can show that criminalization is a necessary and proportionate means of preventing harm.

Harm-based arguments are nowadays ubiquitous when proposed criminal laws are discussed. Some think this shows that (HPP) is no constraint at all (Harcourt 1999). But it is no surprise that those who merely pay lip service to a principle are not constrained by it. The argument of the previous paragraph was an argument that (HPP) should be followed . To follow that principle is to take seriously the need for an empirical showing—grounded in adequate evidence—that a given law is necessary to prevent a proportionate amount of harm. A better objection is that the error-based argument is incomplete. How widespread would error be if law-makers took themselves to be free of (HPP)? When are the benefits of following (HPP)—in errors prevented—worth the costs—in otherwise impeccable criminal laws? Might there be some other rule that brings us those benefits at a lower cost than (HPP)? We need answers to all these questions, and more, to know if an argument from within non-ideal theory can support (HPP) (Tadros 2016, 94–96).

A number of other possible constraints on the criminal law have been proposed (Dan-Cohen 2002, 150–171; Ripstein 2006). As mentioned earlier, some are skeptical of all such principles. To determine the limits of the criminal law, they think, we must refer to a ‘more disorderly set of considerations’, none of which gives us anything as simple as a (set of) constraint(s): the resulting account of criminal law’s limits will be ‘messier’ than its rivals; but this is ‘what the messy worlds in which we live require’ (Duff et al 2014, 51–52). The correct response to this skepticism remains unclear. One possibility is that a defensible general line can indeed be found. The question is where the line is, and how it is to be defended against objections like those sketched above. A second possibility is that we need the ‘messier’ theory. If so, we must ask what shape that theory ought to take, and how lofty should be the ambitions of those who construct it. We need to know how much order can be imposed, at the theoretical level, on the ‘disorderly set of considerations’ with which we are confronted (for one answer, see Tadros 2016, 159–172). As the criminal law’s scope in many jurisdictions continues to expand at a dizzying pace, these remain the most urgent questions facing today’s philosophers of criminal law.

Imagine that $D$ takes $V$’s property without $V$’s consent. Is $D$ criminally responsible for the taking? Not necessarily. In English law, $D$ commits the offence of theft only if $D$ acts dishonestly, and intends for $V$ to be deprived of her property permanently. Theft is one of many offences commission of which depends on one’s state of mind. Elements of offences that require particular mental states are known as mens rea elements. Other elements are known as actus reus elements.

Some claim that if $D$ satisfies all elements of an offence—if D commits the actus reus with mens rea —this suffices to make $D$ criminally responsible , but not to make D criminally liable . Responsibility is understood here as answerability (Duff 2007, 19–36). While we are answerable to the courts for committing offences, we may avoid liability by offering satisfactory answers in the form of defences. This account of criminal responsibility—call it the answerability account —relies on a distinction between offence and defence to which we will return. One argument for the answerability account invokes rules of criminal procedure and evidence. To obtain a conviction, the prosecution must prove that $D$ committed the offence beyond a reasonable doubt. $D$ can safely remain silent in the absence of such proof. If the prosecution makes its case, $D$ has strong prudential reasons to prove a defence: without one, $D$ will be convicted and punished. The best explanation of these rules, so the argument goes, is that offending acts generate a duty to answer that is otherwise absent. This duty explains why, when we have strong reason to believe $D$ to be an offender, we put $D$ under extra rational pressure to explain herself in court.

Some think that, on closer inspection, our rules of procedure and evidence fail to support the answerability account, and help to undermine it. Those rules tell prosecutors to consider evidence both that $D$ committed an offence and that $D$ lacks a defence. If there is strong evidence that $D$ killed in self-defence, D should not be prosecuted. This matters here for the following reason. When prosecutors decide whether to prosecute, they are deciding whether D should be called to answer for what $D$ did. The fact that prosecutors should not prosecute if $D$ clearly killed in self-defence, suggests that those who have defences are not answerable in court. It suggests that we owe the criminal courts answers not for acts that are offences but for acts that are crimes —for offending acts which do not satisfy an available defence. Obviously enough, it is for crimes that we are criminally liable. If responsibility is answerability, and we are answerable for crimes, the conditions of criminal responsibility and the conditions of criminal liability are one and the same. The answerability account, as described above, then fails (Duarte d’Almeida 2015, 239–267).

5.1 Mens Rea

On any view, the conditions under which $D$ commits an offence are conditions of criminal responsibility. What should these conditions be? There has been much discussion of the mens rea principle (MR):

Standard mens rea requirements include intention and recklessness. Paradigmatically, we intend $X$ if, and only if, $X$ is one of our reasons for acting: if, and only if, we act in order to bring $X$ about. We are reckless about $X$ if, and only if, (i) we are aware there is a risk of $X$, and (ii) running the risk of which we are aware is unjustified.

Whether criminal responsibility should require mens rea , and what mens rea it should require, both depend on the reasons we have to accept (MR). Perhaps the most familiar defence appeals to the culpability principle (C):

Culpability, as that term is used here, is a moral notion. It is synonymous with moral fault or moral blameworthiness. Mens rea is not sufficient for culpability—even intentional killings are sometimes excused. But it may well be necessary—culpability may presuppose at least some element of mens rea (Simester 2013; cf. Gardner 2007, 227–232). If this is so, the debate shifts to whether we should accept (C). One worry about this principle is its generality. The consequences of criminal liability are not always especially burdensome. And the benefits of liability without culpability may be especially significant. To take but one example, think of regulations that govern the activities of corporations, and which protect the health and safety of the public at large. Making it a criminal offence to violate these regulations, and imposing hefty fines, need have none of the destructive effects of imprisoning individuals. Dispensing with culpability requirements may increase the deterrent effects of the law, by making it harder for violators to escape conviction. Whether (C) is sound depends on whether effects like these—which, ex hypothesi , protect the health and safety of many—can justify imposing criminal liability without culpability.

That (C) may admit of exceptions does not, of course, show that (C) is not generally sound. I suggested above that, where (C) does apply, it entails (MR). How much mens rea (C) requires is a further question. Take the offence of causing death by dangerous driving. The actus reus of the crime requires two things: $D$’s driving must exhibit deficiencies that we reasonably expect a qualified driver to avoid, and those deficiencies must cause the death of another person. Some think that (C) calls for two mens rea requirements: $D$ must have been aware of the deficiencies that made her driving dangerous, and she must have been aware of a risk that they would cause death. The idea that each actus reus element should have a corresponding mens rea element is known as the correspondence principle (Ashworth 2008). Whether (C) in fact supports that principle is a matter of debate. It is sometimes the case that the risk of causing some harmful outcome (like death) helps make it the case that an act (like dangerous driving) is wrongful. There is an internal connection, in these cases, between our assessment of the act and the risk of the outcome. Some claim that where this internal connection exists, $D$’s awareness that she was engaged in the wrongful act establishes that she is culpable for the harmful outcome. If this is right, $D$ need not have any mens rea as to that outcome in order to be culpable for it when it occurs: the correspondence principle cannot be derived from (C) (Simester 2005, 44–46; Duff 2005, 143–147).

A second defence of (MR) appeals to the rule of law (RL):

Conformity to (RL) is a matter of degree. But an especially high degree of conformity is expected of the criminal law. One reason for this is the special powers criminal law confers on $D$’s accusers. Another is the damage a guilty verdict does to the life of the accused. The connection between (RL) and (MR) is clearly stated by Gardner:

According to the ideal known as the rule of law, those of us about to commit a criminal wrong should be put on stark notice that that is what we are about to do. The criminal law should not ambush us unexpectedly. Of course, to avoid unexpected ambushes we all need to know what the law requires of us. For that reason, criminal laws should be clear, open, consistent, stable, and prospective. … Even all this, however, is not enough to ensure that those of us about to violate the criminal law are put on stark notice that we are about to violate it. For we may know the law and yet have no grasp that what we are about to do might constitute a violation of it. That is because often we have no idea which actions we are about to perform. I make a light-hearted remark and (surprise!) I offend one of my guests. I turn on my oven and (surprise!) I blow all the fuses. The mens rea principle is the principle according to which such actions – the self-surprising ones – should not be criminal wrongs (Gardner 2005, 69–70).

If $D$ must be aware of those aspects of her actions that make them of interest to the criminal law, she is less likely to be ambushed by criminal offences that prohibit those actions. In this way, mens rea requirements contribute to personal autonomy by increasing our ability to steer our lives away from criminal conviction and punishment. So (RL) supports (MR). Does it also support the correspondence principle? This is less clear. One view has it that $D$’s awareness of the facts that made her driving dangerous disqualifies $D$ from complaining that she was ambushed by liability for $V$’s death (at least as long as said liability was adequately publicized). On another view, $D$’s autonomy not only counts in favour of helping $D$ to anticipate criminal liability, it also counts in favour of helping $D$ to anticipate its legal consequences, such that $D$ can decide if the price of those consequences is worth paying (Hart 1968, 47; Ashworth 2008). If it does not occur to $D$ that $\phi$ing might cause death, it also does not occur to $D$ that $\phi$ing might result in her suffering the additional punishment prescribed for causing it. $D$ is more likely to factor this information into her decision-making if the criminal law insists that $D$ is aware of the risk—if it insists on correspondence between actus reus and mens rea .

A third argument for (MR) appeals to liberty (Simester and Chan 2011, 393–395). Consider an offence that prohibits damaging other people’s property. If the mens rea requirement is one of intent, $D$ is free to knowingly take risks with $V$’s possessions. If the mens rea requires awareness, $D$ is free to put $V$’s possessions in harm’s way without giving thought to the risks. If there is no mens rea at all, no amount of care will help $D$ if she causes property to be damaged. These examples help show that mens rea requirements affect the range of options legally available to $D$. Obviously enough, the degree to which we should care about taking options off the table depends on how much value they have. This makes the liberty-protecting role of mens rea especially important where criminal responsibility extends beyond paradigmatic cases of wrongdoing. Consider the law of complicity. Under what conditions should S be criminally responsible for participating in wrongs committed by P? Imagine it is sufficient that S realises P might act wrongly. Anyone who sells goods that are liable to misuse is then in danger of being turned into a criminal by their customers. Shopkeepers must run the gauntlet or close their doors. Narrower mens rea requirements enable them to both stay in business and ensure they remain on the right side of the law (Simester 2006, 591–592).

It is worth concluding this section by returning to two questions distinguished at its outset: (i) should criminal responsibility require mens rea ? (ii) what mens rea should it require? Question (i) is often discussed under the heading of strict liability. The literature distinguishes between various senses in which liability can be strict (Duff 2005; Gardner 2005, 68–69; Simester 2005, 22–23). Criminal liability for $\phi$ing is substantively strict if we can $\phi$ without being culpable for $\phi$ing. It is formally strict if $\phi$ing lacks elements of mens rea. This second category can itself be subdivided. Liability is formally strict in the strong sense when there is no mens rea element at all. Liability is formally strict in the weak sense when at least one actus reus element has no corresponding element of mens rea. If (C) is a sound principle, criminal liability should not be substantively strict. If (MR) is sound, there should be no criminal liability that is formally strict in the strong sense. If the correspondence principle is sound, liability that is formally strict in the weak sense also should not exist.

So much for question (i). What about question (ii)? The above discussion assumed that mens rea at the very least requires awareness. But criminal liability sometimes turns not on what D noticed, but on what $D$ failed to notice—on circumstances that would have caused a reasonable person to refrain from doing what $D$ did. It is where such circumstances exist that $D$’s actions are negligent. Some writers claim that negligence has no place in criminal law. If (C) is sound, and culpability requires awareness, then criminal liability should require recklessness at the very least. Others take a different view. They claim that when we are unaware of risks because of vices like arrogance or indifference, this makes us culpable for running those risks. So (C) is compatible with at least some instances of negligence liability in criminal law (Hart 1968, 136–157; Simester 2000, Alexander and Ferzan 2009, 69–85; Moore and Hurd 2011).

5.2 Actus Reus

Whether or not mens rea should be necessary for criminal responsibility, it is rarely claimed that it should be sufficient. The widespread belief that we should not countenance thought crimes, leads most writers to claim that there should be an actus reus element to each criminal offence. Paradigmatically, this element is satisfied only if $D$ acts in a way that causes some outcome, such as death, or property damage, or fear of violence. This paradigm does, of course, admit of a number of exceptions. As well as inchoate offences—like attempts or conspiracies—most systems of criminal law include liability for some omissions. Imagine $D$ sees $V$ drowning in a shallow pond and chooses to do nothing. There is no prior connection between $D$ and $V$. If the pond is in London, $D$ commits no offence. Move the drama to Paris and we have ourselves a crime. As this example suggests, both academics and legal systems remain divided over the positive obligations that should be imposed by criminal law (Alexander 2002; Ashworth 2015).

Exceptions aside, the building blocks of our paradigm are each open to interpretation. Consider, for instance, the need for causation. Is the conclusion that $D$ caused $V$’s death a matter of physical fact—something that is, in Hume’s well-known phrase, part of the cement of the universe? Or do the rules of causation—at least in criminal law—lie downstream of moral judgments about the fair attribution of responsibility? Does the truth, perhaps, lie somewhere in between? (Hart and Honoré 1959; Moore 2009b; Simester 2017). The criminal liability of many—as well as the punishments they face—turns on the answer we give to such questions.

Academic debate about causation and omissions largely takes our paradigm for granted. Some writers, however, take a more radical view: they favour a paradigm shift in our thinking about criminal responsibility. One group of radicals focuses on outcomes. Imagine D shoots at $V$, intending to cause death. In any system of criminal law this is an attempt. The radicals claim that what happens next should make no difference: $D$ should be convicted of the same crime whether or not $V$ is killed. Criminal responsibility, in short, should be insensitive to the outcomes of what we do (Ashworth 1993; Alexander and Ferzan 2009, 171–196). Consider again what I earlier called (C):

If this principle is sound, we can offer the following argument:

This argument relies on the following suppressed premise:

It is only if (2$'$) is true that we never control outcomes. Alas, (2$'$) has unpalatable implications. Uncontrolled factors do not only bear on whether we succeed. They also bear on whether we try, on the choices we make, and on the character traits that influence our choices. (2$'$) implies that we are never culpable for any of these things—for our successes, our endeavours, our choices or our character. Pursued to its logical conclusion, it implies that we are never culpable for anything (Nagel 1979; Moore 1997, 233–246). If, as most people believe, we sometimes are culpable for what we do, (2$'$) must be false. We can add that (3) radically understates the conclusion of the argument offered above. When combined with (C), that argument does not imply that we should not be criminally responsible for outcomes. It implies that no one should ever be criminally responsible.

We might try to salvage the argument from (1)–(3) by revising our account of control:

This revision avoids the unpalatable implications of (2$'$). But it also renders the argument from (1)–(3) invalid. If (2$''$) states the correct account of control, we do sometimes have control over outcomes. Imagine $D$ holds a loaded gun to $V$’s head and pulls the trigger. $D$ has a reasonable chance—indeed, an extremely high chance—of killing $V$. On this account of control, (1) and (2) do not support (3): they give us no reason to accept that we are never criminally responsible for outcomes (Moore 2009, 24–26).

5.3 Defences

We have already seen that, for some, we are criminally responsible for committing offences and criminally liable for committing crimes . This distinction relies on a further distinction between offences and defences: crimes are committed by those who satisfy all the elements of an offence, without satisfying all the elements of any available defence.

One account of the offence/defence distinction is procedural . Offence elements must be proved if conviction is to be the legally correct verdict of the court. So if absence of consent is an offence-element—as it is in the offences created, in England and Wales, by the Sexual Offences Act 2003—it must be proved that consent was absent or $D$ must be acquitted. The same is not true of defence elements, like those that make up the defence of duress. For a conviction to be correctly entered, it need not be proved that $D$ did not act under duress. It is enough that there is no evidence that $D$ acted under duress. The same is true where consent is a defence-element—as it is in the offences created, in England and Wales, by the Offences Against the Person Act 1861. If $D$ punches $V$ and is charged with assault occasioning actual bodily harm, the court need not be convinced that $V$ did not consent. If the issue of consent never comes up, a conviction may still be the legally correct verdict of the court. Simply put, that $D$ satisfied each offence element is something that must be proved. Whether $D$ satisfied each defence element can remain uncertain. It is in this procedural distinction, on the view under consideration, that the offence/defence distinction consists (Duarte d’Almeida 2015).

This last claim is denied by those who believe that the offence/defence distinction is substantive . These writers accept that offences and defences are governed by different procedural rules. Their claim is that the distinction between offences and defences explains why those rules differ. Perhaps the most well-known version of this view runs as follows. Offence elements are individually necessary, and jointly sufficient, to describe an act that there is general reason not to perform. Defence elements block the transition from the existence of that reason to the conclusion that $D$ ought to be convicted of a crime. On this view, whether we should think of the absence of consent as an element of the offence of sexual assault, depends on whether we think that there is a general reason not to have consensual sex with others. If there is no such reason, the absence of consent is necessary to give us an act we have general reason not to perform. So it is an element of the offence of sexual assault. If, on the other hand, there is a general reason not to have consensual sex, consent is properly thought of as a defence to sexual assault (Campbell 1987; Gardner 2007, 144–149).

In addition to distinguishing between offences and defences, many writers distinguish between types of criminal defence. The most familiar distinction is between justifications and excuses. The most familiar account of the distinction has it that while justified actors deny wrongdoing, excused actors deny either responsibility or culpability (Austin 1956; Fletcher 1978; Greenawalt 1984; Baron 2005). Two questions are worth asking here. Is the familiar distinction worth drawing? If so, is the familiar account of the distinction the right way to draw it?

There are two reasons to answer the first question in the affirmative. One invokes (C). If courts are to develop criminal defences so that their contours track culpability, they need to know why each defence makes it the case that those who plead it are not culpable. Is there a defence of necessity because we sometimes do the right thing by choosing the lesser of two evils? Or does the defence exist because actors sometimes make wrongful choices under enormous pressure, and because there is sometimes nothing culpable about giving into the pressure? How courts should develop the defence depends on how they answer these questions. It depends on whether they conceive of the defence as a justification or an excuse.

A second reason to make the familiar distinction invokes the idea that criminal trials call defendants to account. On this view, trials are in one way continuous with life outside the law—they institutionalize our ordinary moral practice of making and replying to accusations (Gardner 2007, 177–200; Duff, 2010c; 2011; 2013a). When accused of wrongdoing in our everyday lives, most of us do not only care about whether we end up being blamed. Where we did nothing wrong, we try to convince our accusers that this is the case: it matters to us that others not add wrongs to the story of our lives, even if we know that they will otherwise conclude that we acted blamelessly. There is no reason to think that things are different in criminal courts: that those accused of crime should, or do, care only about getting off the hook. By retaining distinct justificatory and excusatory defences, the criminal law gives effect to our interests in presenting ourselves—to our accusers and to others—in the best available rational light (Gardner 2007, 133).

Let us turn, then, to the second of our questions. Is it true that justifications deny wrongdoing? Is it true that excuses deny responsibility? Some think both questions should at least sometimes be answered in the negative. True, those who act in self-defence plausibly benefit from an exception to the duty not to harm others. Having placed $D$ under attack, many think, $V$ has no right that $D$ not use necessary and proportionate force against $V$ (McMahan 2005). But the same is not true when $D$ harms an innocent bystander, even if this is the only way to prevent even greater harm to others. $V$’s right remains, it is often thought, but is sometimes overridden. So $D$ still wrongs $V$. That wrong is justified when and because $D$ has undefeated reasons to commit it—reasons given by the greater harm prevented by $D$. If this is right, those who plead a justification do not always deny, but sometimes concede, wrongdoing. It is the wrong that they then try to justify (Gardner 2007, 77–82).

The familiar account might be thought to be on firmer ground when it comes to excuses. Grant that to plead an excuse is indeed to deny culpability. The same is true of a justification. So there is nothing here to distinguish the two. Do excuses, then, deny responsibility? At least sometimes, they do not. True, those who plead insanity deny that they were capable of responding to reasons when they acted. But this is not true of other excusatory pleas. Imagine $T$ bursts into $D$’s house and threatens to shoot $D$ unless $D$ shoots $V$. If $D$ pleads duress, $D$ relies on the fact that her capacity to respond to reasons remained intact: her plea is that she offended in order to avoid the harm threatened by $T$, and in doing so lived up to our reasonable expectations. $D$ thereby asserts rather than denies responsibility for an offending act (Gardner 2007, 82–87). This does not mean that duress is a justification. $V$’s right to life defeats the reasons $D$ has to save her own. $D$ has a defence because we do not expect any more from someone in $D$’s predicament—because we can understand why saving her own life seemed a good enough reason to $D$ (Simester 2012, 105).

Two points emerge from these remarks. One is that the familiar account of the justification/excuse distinction should be rejected. The second is that a bipartite classification of criminal defences obscures distinctions we have reason to make. Some respond by distinguishing denials of responsibility (like insanity) from excuses (like duress), and distinguishing both from justifications (like self-defence and necessity). Excuses and justifications, so understood, are both assertions of responsibility and denials of culpability. Justified actors have undefeated reasons for their actions. Excused actors live up to reasonable expectations despite lacking such reasons (Gardner 2007, 91–139; Simester 2012, 99–108). Though this tripartite classification is an improvement, some maintain that further distinctions should be drawn (Duff 2007, 263–298; Simester 2012). Just how numerous the categories of criminal defence are (or ought to be) is a topic for future work.

Imagine there are reasons to believe that $D$ is criminally responsible for having $\phi$ed. What may officials of the criminal justice system do in response to those reasons? What should they do, and refrain from doing?

As a matter of law, the answer depends on norms of criminal procedure and evidence. Some of these norms confer powers and permissions that help officials build their case against $D$. Think of stop and search, intrusive forms of surveillance, and pre-trial detention. Other norms regulate the kinds of evidence that may be used against $D$ in court. Think of hearsay, or statistical evidence, or evidence of $D$’s bad (or good) character (Ho 2008; Redmayne 2015). Yet other norms govern the way in which one aspect of the criminal justice system should respond to the misconduct of others. Imagine evidence against $D$ was gathered illegally, or that $D$ was entrapped, or that $D$’s case should have been discontinued according to the guidelines prosecutors set for themselves. Should the courts throw out $D$’s case, even where the evidence against $D$ is strong? If so, on what grounds should they do so? (Ashworth 2000; Duff et al 2007, 225–257).

The norms I have mentioned are somewhat neglected by philosophers of criminal law. Things are different when it comes to the so-called presumption of innocence (PI). The most well-known judicial formulation of (PI) is found in Woolmington v. DPP [1935] UKHL 1:

Throughout the web of the English Criminal Law one golden thread is always to be seen … No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

So understood, (PI) allocates the burden of proof in criminal trials to those on the accusing side. Many add that $D$’s accusers must meet an especially high standard of proof—they must eliminate all reasonable doubt to secure a conviction. Though these points are widely accepted, they leave open a range of further questions about the scope and basis of (PI). The following remarks touch on just some (for an overview, see Lippke 2016).

One question is whether (PI) has implications for criminal procedure that extend beyond the criminal trial. On one view, (PI) just is a norm that governs the burden and standard of proof at trial. On another, (PI) is something more expansive: it is a norm that tells criminal justice officials—and, perhaps, the rest of us too—how to interact with others, including those suspected of crime (Stewart 2014, Duff 2013b). That norm of course has implications for the moment of trial. But its implications extend both backwards and forwards from that point in time. They extend backwards to decisions about whether to arrest, prosecute, or detain those suspected of criminality (Ashworth 2006, 249; Duff 2013b, 180–185; Stewart 2014, 414). And they extend forwards to decisions both about how much to punish (Tomlin 2014a), and about the appropriate collateral consequences of conviction and punishment (Duff 2013b, 185–192).

A second question is whether (PI) has implications for the substantive criminal law. Some writers—and most courts—think not. They give (PI) a purely procedural interpretation (Roberts 2005; Lippke 2016). It has been argued, however, that all such interpretations are implausibly narrow (Tadros 2007; 2014; Tomlin 2013). Imagine it is an offence to possess information of a kind that might be useful to terrorists, with the intention of committing acts of terror. Intentions like this are often difficult to prove. Legislators might respond by shifting the burden of proof to D: they might make it the case that, once the prosecution proves possession, it is for $D$ to prove the absence of intention. The Woolmington formulation suggests that this move violates (PI). Now imagine a creative legislature simply eliminates the requirement of intention from the law: it becomes a crime to possess information of a kind that might be useful to terrorists, whatever the possessor’s intentions might be . Assuming that the prosecution must prove every element of the revised offence, this move brings the law into conformity with a purely procedural (PI). Now most writers—and most human rights treaties—consider (PI) to be an important right that protects criminal suspects against the state. Examples like the above show that the purely procedural interpretation has the following implication: legislators who offer suspects less protection somehow better conform to the right. Not only is this counterintuitive, it renders the right toothless in the face of legislative creativity (Tadros 2014). This is, some conclude, sufficient reason to reject the purely procedural (PI).

Imagine $D$ is charged with a criminal offence and pleads not guilty. On the purely procedural view, (PI) makes it a precondition of conviction and punishment that the prosecution prove $D$ satisfied all elements of the offence. What those elements are is a separate question. Some endorse a revised view that makes (PI) more demanding. These writers distinguish between elements of offences, and the wrongs taken by offence-creators to justify convicting and punishing offenders. (PI), they claim, not only requires proof that $D$ satisfied the former; it also requires proof that $D$ committed the latter (Tadros 2007; 2014).

To see the difference this revision makes, imagine legislators make it an offence to possess information that might be useful to terrorists. An intention to commit acts of terror is no element of the offence as legislated. Our legislators do not, however, think that all those who possess such information should be convicted and punished. This, they know, would be ridiculous overkill. They think that possessors who intend to commit acts of terror should be convicted and punished. This element of intention is omitted from the offence, because omitting it makes securing convictions easier for prosecutors, thereby reducing the risk that those planning acts of terror will get off the hook. (PI), on the revised view, nonetheless requires proof of the intent: ex hypothesi , it is possession with an intention to commit acts of terror that is taken by law-makers to justify convicting and punishing offenders. To comply with (PI), criminal courts must demand proof that $D$ committed this wrong as a precondition of conviction and punishment.

So understood, (PI) is anything but toothless. It is often claimed, nowadays, that too few suspected wrongdoers are convicted of crimes, and that new criminal laws are needed to help secure more convictions. On the revised view, legislators can create as many criminal laws as they want in pursuit of this objective. But no-one who pleads not guilty may be convicted under them without proof that they are the wrongdoers they are suspected of being. That it provides anyone who faces criminal charges with this kind of protection against the law, is what makes the case for the revised (PI).

Alexander, L., 2002, “Criminal Liability for Omissions – An Inventory of Issues” in S. Shute and A.P. Simester (eds.), Criminal Law Theory: Doctrines of the General Part , Oxford: Oxford University Press.
Alexander, L. and Ferzan, K.K., 2009, Crime and Culpability: A Theory of Criminal Law , Cambridge: Cambridge University Press.
Ashworth, A., 1993, “Taking the Consequences”, in S. Shute, J. Gardner, and J. Horder (eds.), Action and Value in Criminal Law , Oxford: Oxford University Press.
–––, 2000, “Testing Fidelity to Legal Values: Official Involvement and Criminal Justice”, Modern Law Review , 63: 633–659.
–––, 2006, “Four Threats to the Presumption of Innocence”, International Journal of Evidence & Proof , 10: 241–278.
–––, 2008, “A Change of Normative Position: Determining the Contours of Culpability in Criminal Law”, New Criminal Law Review , 11: 232–256.
–––, 2015, Positive Obligations in Criminal Law , Oxford: Oxford University Press.
Ashworth, A., and L. Zedner, 2010, “Preventive Orders: A Problem of Under-Criminalization?”, in R.A. Duff, et al. (eds.), The Boundaries of the Criminal Law , Oxford: Oxford University Press.
Austin, J. L., 1956, “A Plea for Excuses”, Proceedings of the Aristotelian Society , 57: 1–30.
Baron, M., 2005, “Justifications and excuses”, Ohio State Journal of Criminal Law , 2: 387–406.
Boonin, D., 2008, The Problem of Punishment , New York: Cambridge University Press.
Brink, D., 2013, Mill’s Progressive Principles , Oxford: Oxford University Press.
Campbell, K., 1987, “Offence and Defence”, in I. Dennis (ed.), Criminal Law and Justice , London: Sweet and Maxwell.
Chalmers, J. and F. Leverick, 2008, “Fair Labelling in Criminal Law”, Modern Law Review , 71: 217–246.
Chiao, V., 2016, “What is the Criminal Law For ?”, Law and Philosophy , 35: 137–163.
Christie, N., 1977, “Conflicts as Property”, British Journal of Criminology , 17: 1–15.
Coons, C., and M. Weber (eds.), 2013, Paternalism: Theory and Practice , Cambridge: Cambridge University Press.
Dan-Cohen, M., 2002, Harmful Thoughts: Essays on Law, Self, and Morality , Princeton: Princeton University Press.
Dempsey, M. M., 2009, Prosecuting Domestic Violence , Oxford: Oxford University Press.
–––, 2011, “Public Wrongs and the Criminal Law’s Business: When Victims Won’t Share”, in R. Cruft, M.H. Kramer, and M.R. Reiff (eds.), Crime, Punishment and Responsibility: The Jurisprudence of Antony Duff , Oxford: Oxford University Press.
Devlin, P., 1965, The Enforcement of Morals , Oxford: Oxford University Press.
Dorfman, A., and A. Harel, 2016, “Against Privatisation As Such”, Oxford Journal of Legal Studies , 36: 400–427.
Duarte d’Almeida, L., 2015, Allowing for Exceptions: A Theory of Defences and Defeasibility in Law , Oxford: Oxford University Press.
Duff, R. A., 2005, “Strict Liability, Legal Presumptions, and the Presumption of Innocence”, in A. P. Simester (ed.), Appraising Strict Liability , Oxford: Oxford University Press.
–––, 2007, Answering for Crime: Responsibility and Liability in the Criminal Law , Oxford: Hart Publishing.
–––, 2010a, “A Criminal Law for Citizens”, Theoretical Criminology , 14: 293–309.
–––, 2010b, “Perversions and Subversions of Criminal Law”, in R.A. Duff, et al. (eds.), The Boundaries of the Criminal Law , Oxford: Oxford University Press.
–––, 2010c, “Towards a Theory of Criminal Law”, Aristotelian Society Supplementary Volume , 84: 1–28.
–––, 2011, “Responsibility, Citizenship and Criminal Law”, in R.A. Duff and S.P. Green (eds.), Philosophical Foundations of Criminal Law , Oxford: Oxford University Press.
–––, 2013a, “Relational Reasons and the Criminal Law”, in L. Green and B. Leiter (eds.), Oxford Studies in Philosophy of Law (Volume 2), Oxford: Oxford University Press.
–––, 2013b, “Who Must Presume Whom To Be Innocent of What?”, Netherlands Journal of Legal Philosophy , 42: 170–92.
–––, 2014a, “Torts, Crimes and Vindication: Whose Wrong Is It?”, in M. Dyson (ed.), Unravelling Tort and Crime , Cambridge: Cambridge University Press.
–––, 2014b, “Towards a Modest Legal Moralism”, Criminal Law and Philosophy , 8: 217–235.
–––, 2016, “Legal Moralism and Public Wrongs”, in K.K. Ferzan and S.J. Morse (eds.), Legal, Moral and Metaphysical Truths: The Philosophy of Michael S. Moore , Oxford: Oxford University Press.
Duff, R.A. and S. Marshall, 2010, “ Public and Private Wrongs” , in J. Chalmers, F. Leverick, and L. Farmer (eds.), Essays in Criminal Law in Honour of Sir Gerald Gordon , Edinburgh: Edinburgh University Press.
Duff, R.A. et al., 2007, The Trial on Trial (Volume 3), Oxford: Hart Publishing.
Duff, R.A. et al. (eds.), 2014, Criminalization: The Political Morality of the Criminal Law , Oxford: Oxford University Press.
Dworkin, G., 1972, “Paternalism”, The Monist , 56: 64–84.
Edwards, J.R., 2014, “Harm Principles”, Legal Theory , 20: 253–285.
–––, forthcoming, “Criminal Law’s Asymmetry”, Jurisprudence .
Edwards, J.R., and A.P. Simester, 2014, “Prevention with a Moral Voice”, in A.P. Simester, A. du Bois-Pedain, and U. Neumann (eds.), Liberal Criminal Theory: Essays for Andreas von Hirsch , Oxford: Hart Publishing.
–––, 2017, “What’s Public About Crime?”, Oxford Journal of Legal Studies , 37: 105–133.
Feinberg, J., 1970, “The Expressive Function of Punishment”, in J. Feinberg, Doing and Deserving , Princeton: Princeton University Press.
–––, 1984, Harm to Others , New York: Oxford University Press.
–––, 1986, Harm to Self , New York: Oxford University Press.
–––, 1988, Harmless Wrongdoing , New York: Oxford University Press.
Fletcher, G., 1978, Rethinking Criminal Law , Boston: Little, Brown and Company.
Gardner, J., 2005, “Wrongs and Faults”, in A. P. Simester (ed.), Appraising Strict Liability , Oxford, Oxford University Press.
–––, 2007, Offences and Defences , Oxford: Oxford University Press.
–––, 2011, “What is Tort Law For? Part 1. The Place of Corrective Justice”, Law and Philosophy , 30: 1–50.
–––, 2013, “Punishment and Compensation: A Comment”, in R.L. Christopher (eds.), Fletcher’s Essays on Criminal Law , Oxford: Oxford University Press.
Gardner, J. and S. Shute, 2000, “The Wrongness of Rape” in J. Horder (ed.), Oxford Essays in Jurisprudence: Fourth Series , Oxford, Oxford University Press.
Green, L., 2013a, “Should Law Improve Morality?”, Criminal Law and Philosophy , 7: 473–494.
–––, 2013b, “The Nature of Limited Government”, in J. Keown and R.P. George (eds.), Reason, Morality and Law: The Philosophy of John Finnis , Oxford: Oxford University Press.
Greenawalt, K., 1984, “The Perplexing Borders of Justification and Excuse”, Columbia Law Review , 84: 1897–1927
Hamlin, A., and Z. Stemplowska, 2012, “Theory, Ideal Theory and the Theory of Ideals”, Political Studies , 10: 48–62.
Harcourt, B.E., 1999, “The Collapse of the Harm Principle”, Journal of Criminal Law and Criminology , 90: 109–192.
Harel, A., 2014, Why Law Matters , Oxford: Oxford University Press
Hart, H. L. A., 1963, Law, Liberty and Morality , New York: Random House.
–––, 1968, Punishment and Responsibility , Oxford: Oxford University Press.
–––, 1994, The Concept of Law , 2 nd edition, Oxford: Oxford University Press.
Hart, H.L.A., and A.M. Honoré, 1959, Causation in the Law , Oxford: Clarendon Press.
Ho, H.L., 2008, A Philosophy of Evidence Law: Justice in the Search for Truth , Oxford: Oxford University Press.
Holtug, N., 2002, “The Harm Principle”, Ethical Theory and Moral Practice , 5: 357–89.
Hoskins, Z., 2014, “Ex-Offender Restrictions”, Journal of Applied Philosophy , 31: 33–48.
–––, 2016, “Collateral Restrictions”, in C. Flanders and Z. Hoskins (eds.), The New Philosophy of Criminal Law , London: Rowman Littlefield.
Husak, D., 2008, Overcriminalization , Oxford: Oxford University Press.
–––, 2014, “Polygamy: A Novel Test for a Theory of Criminalization” in R. A. Duff, et al. (eds.), Criminalization: The Political Morality of the Criminal Law , Oxford: Oxford University Press.
Lamond, G., 2007, “What is a Crime?”, Oxford Journal of Legal Studies , 27: 609–32.
Lee, A.Y.K., 2015, “Public Wrongs and the Criminal Law”, Criminal Law and Philosophy , 9: 155–170.
Lippke, R., 2016, Taming the Presumption of Innocence , Oxford, Oxford University Press.
Marshall, S. E., and R.A. Duff, 1998, “Criminalization and Sharing Wrongs”, Canadian Journal of Law & Jurisprudence , 11: 7–22.
McMahan, J., 2005, “The Basis of Moral Liability to Defensive Killing”, Philosophical Issues , 15: 386–405.
Mill, J. S., 1859, On Liberty , London: Parker.
Moore, M. S., 1997, Placing Blame: A Theory of Criminal Law , Oxford: Oxford University Press.
–––, 2009a, “A Tale of Two Theories”, Criminal Justice Ethics , 28: 27–48.
–––, 2009b, Causation and Responsibility , Oxford: Oxford University Press.
–––, 2014, “Liberty’s Constraints on What Should be Made Criminal”, in R. A. Duff, et al. (eds.), Criminalization: The Political Morality of the Criminal Law , Oxford: Oxford University Press.
Moore, M. S., and H. Hurd, 2011, “Punishing the Awkward, the Stupid, the Weak, and the Selfish: The Culpability of Negligence”, Criminal Law and Philosophy , 5: 147–198.
Nagel, T., 1979, Mortal Questions , New York: Cambridge University Press.
Raz, J., 1986, The Morality of Freedom , Oxford: Oxford University Press.
Redmayne, M., 2015, Character in the Criminal Trial , Oxford: Oxford University Press.
Roberts, P., 2005, “Strict Liability and the Presumption of Innocence: An Expose of Functionalist Assumptions” in A. P. Simester (ed.), Appraising Strict Liability , Oxford: Oxford University Press.
Ripstein, A., 2006, “Beyond the Harm Principle”, Philosophy and Public Affairs , 34: 215–45.
–––, 2009, Force and Freedom , Cambridge, MA: Harvard University Press.
Schauer, F., 1991, Playing By The Rules , Oxford: Oxford University Press.
Simester, A. P., 2000, “Can Negligence Be Culpable?” in J. Horder (ed.), Oxford Essays in Jurisprudence: Fourth Series , Oxford: Oxford University Press.
–––, 2005, “Is Strict Liability Always Wrong?”, in A. P. Simester (ed.), Appraising Strict Liability , Oxford: Oxford University Press.
–––, 2006, “The Mental Element in Complicity”, Law Quarterly Review , 122: 578–601.
–––, 2012, “On Justifications and Excuses”, in L. Zedner and J. Roberts (eds.), Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth , Oxford: Oxford University Press.
–––, 2013, “A Disintegrated Theory of Culpability”, in D.J. Baker and J. Horder (eds.), The Sanctity of Life: The Legacy of Glanville Williams , Cambridge: Cambridge University Press.
–––, 2017, “Causation in (Criminal) Law”, Law Quarterly Review , 113: 416–441.
Simester, A. P., and W. Chan, 2011, “Four Functions of Mens Rea”, Cambridge Law Review , 70: 381–396.
Simester, A. P., and A. von Hirsch, 2011, Crimes, Harms, and Wrongs: On the Principles of Criminalization , Oxford: Hart Publishing.
Stewart, H., 2010, “The Limits of the Harm Principle”, Criminal Law and Philosophy , 4: 17–35.
–––, 2014, “The Right to Be Presumed Innocent”, Criminal Law and Philosophy , 8: 407–420.
Tadros, V., 2007, “Rethinking the Presumption of Innocence”, Criminal Law and Philosophy , 1: 193–213.
–––, 2011a, “Harm, Sovereignty and Prohibition”, Legal Theory , 17: 35–65.
–––, 2011b, “Independence Without Interests”, Oxford Journal of Legal Studies , 31: 193–213.
–––, 2011c, The Ends of Harm: The Moral Foundations of Criminal Law , Oxford: Oxford University Press.
–––, 2014, “The Ideal of the Presumption of Innocence”, Criminal Law and Philosophy , 8: 449–467.
–––, 2016, Wrongs and Crimes , Oxford: Oxford University Press.
Thorburn, M., 2011a, “Constitutionalism and the Limits of the Criminal Law”, in R. A. Duff, et al. (eds.), The Structures of the Criminal Law , Oxford: Oxford University Press.
–––, 2011b, “Criminal Law as Public Law”, in R.A. Duff and S.P. Green (eds.), Philosophical Foundations of Criminal Law , Oxford: Oxford University Press.
Tomlin, P., 2013, “Extending the Golden Thread? Criminalisation and the Presumption of Innocence”, Journal of Political Philosophy , 21: 44–66.
–––, 2014a, “Could the Presumption of Innocence Protect the Guilty?”, Criminal Law and Philosophy , 8: 431–447.
–––, 2014b, “Retributivists! The Harm Principle is Not For You!”, Ethics , 124: 274–298.
United Nations Office on Drugs and Crime, 2015, “Briefing Paper: Decriminalisation of Drug Use and Possession for Personal Consumption”.
Wellman, C.H., 2005, “Samaritanism and the Duty to Obey the Law”, in C.H. Wellman and A.J. Simmons (eds.), Is There A Duty to Obey the Law? For and Against , Cambridge: Cambridge University Press.
–––, 2013, “Rights Forfeiture and Mala Prohibita”, in R.A. Duff, et al. (eds.), The Constitution of the Criminal Law , Oxford: Oxford University Press.
Williams, G., 1982, “Offences and Defences”, Legal Studies , 2: 233–256.

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Theories of Criminalization

Comments on A.P. Simester/Andreas von Hirsch: Crimes, Harms and Wrongs. On the Principles of Criminalisation . Hart Publishing: Oxford and Portland, Oregon. 2011

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Published: 11 April 2014
Volume 10 , pages 301–314, ( 2016 )

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In this article, I comment on Simester and von Hirsch’s theory of criminalization and discuss general principles of criminalization. After some brief comments on punishment theories and the role of moral wrongdoing, I examine main lines of contemporary criminalization theories which tend to focus on the issues of harm, offense, paternalism and side-constraints. One of the points of disagreement with Simester and von Hirsch concerns the role of the harm principle. I rely on a straightforward normative concept of “rights of others,” not in the sense of rights granted in positive law but in the sense of rights which are to be justified in political philosophy. With a rights-centered rather than a harm-centered approach, a prima facie reason for criminalization is the violation of others’ rights. It is unnecessary to develop a separate category of “offense to others,” and paternalistic interventions can be criticized straightforwardly because rights can be waived.

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Consequentialist Theories of Punishment

Giving Wrongdoers What They Deserve

Legal punishment of immorality: once more into the breach, explore related subjects.

Medical Ethics

Kant (1797, 1974 : 337).

See Peršak ( 2007 : 95–125).

Harcourt ( 1999 ).

See Gardner and Shute ( 2000 ).

See for instance Zieschang ( 1998 ).

See Roxin ( 2006 : § 11).

Wohlers ( 2000 ), Hörnle ( 2005 : 179–193).

This is not an empirical claim; just suppose there was clear evidence.

Nagel ( 1986 ).

Hörnle ( 2006 : 133–148).

See Goffmann ( 1961 ).

See Hörnle ( 2012 ).

Only to forego punishment, not to allow it, see Simester and von Hirsch ( 2011 : 181); the politically cautious proposal did not dare to do away with “wrongful”.

Bundesratsdrucksache 515/12.

Only prohibited if it reaches the threshold of severe methods of coercion such as violence, see § 177 German Penal Code.

Neither a criminal offence in England nor in Germany.

The exemption for marital rape was abolished in 1997, 33. Strafrechtsaenderungsgesetz from July 1, 1997.

Referencess

Gardner, J. and Shute, S. (2000). The Wrongness of Rape. In: J. Horder (ed.), Oxford Essays in Jurisprudence . Oxford: Oxford University Press, 193–217.

Google Scholar

Goffmann, E. (1961). Asylums. Essays on the Social Situation of Mental Patients and Other Inmates . Garden City, N.Y.: Random House.

Harcourt, B. (1999). The Collapse of the Harm Principle, J. Crim. L. & Criminology 90, 109–194.

Article Google Scholar

Hörnle, T. (2005) Grob anstössiges Verhalten. Strafrechtlicher Schutz von Moral, Gefühlen und Tabus. Frankfurt/M.: Klostermann.

Hörnle, T. (2006). Legal Regulation of Offence, in: Incivilities: Regulating Offensive Behavior (von Hirsch and Simester, ed.), Oxford: Hart.

Hörnle, T. (2012). Criminalizing Behavior to Protect Human Dignity, Criminal Law and Philosophy 6, 307–325.

Kant, I. (1974, originally published in 1797). Metaphysik der Sitten (Metaphysics of Morals) in: Werkausgabe (W. Vossenkuhl, ed.), Vol. VII. Frankfurt/M.: Suhrkamp.

Nagel, T. (1986). The View from Nowhere . Oxford: Oxford University Press.

Peršak, N. (2007). Criminalising Harmful Conduct . New York: Springer.

Roxin, C. (2006). Strafrecht Allgemeiner Teil , 4th ed., Muenchen: C.H. Beck Verlag.

Simester, A.P. and von Hirsch, A. (2011). Crimes, Harms, and Wrongs . Oxford: Hart.

Wohlers, W. (2000). Deliktstypen des Präventionsstrafrechts—zur Dogmatik „moderner“Gefährdungsdelikte . Berlin: Duncker & Humblot.

Zieschang, F. (1998). Die Gefährdungsdelikte . Berlin: Duncker & Humblot.

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4 Chapter Four: Adjudication Decisions

Sections in chapter 4.

Deciding to Convict Legal “Proof” and Reasonable Doubt Evidence Sufficiency and Elements of Offenses A System of Pleas Appellate Adjudication: Ways to Revise Criminalization, Enforcement, or Conviction Decisions Key Decisions and Key Arguments End of Chapter Review

Deciding to Convict

After a criminal statute has been enacted, and after enforcement officials have brought charges against a specific individual under that statute, there is still one more key legal decision to be made: someone must decide whether the defendant is guilty of the charged offense. In one standard account of the criminal process, this adjudication decision is made by a jury after evidence is presented at trial. Adjudication by trial does sometimes occur in criminal law, but it is rare. Instead, most criminal convictions are the result of guilty pleas. And in some states, even the trials that do take place are typically bench trials, or trials in which a judge rather than a jury serves as the fact-finder. This chapter seeks to illuminate all of these various types of adjudication decisions, and to prompt reflection on the systemic consequences of the fact that adjudication is almost always a matter of pleas rather than trials.

The types of decisions examined in the previous two chapters—criminalization and enforcement decisions—have significant influence at the adjudication stage. As you know, criminalization decisions are made by a legislature in the first instance, expressed in the form of a statute that should define precisely the conduct designated as a crime. Criminal statutes structure adjudication decisions by identifying the key factors – the “elements” of the offense – that must be established in order to convict a defendant. Legislative decisions about how to define a crime, and enforcement decisions about which particular statute to charge, thus play an important role in shaping the adjudication decision. Indeed, a prosecutor’s power to select which statute(s) to use to charge the defendant is a key factor influencing guilty pleas, as discussed below. Moreover, enforcement decisions by police officers will often determine what evidence is available at the adjudication stage. When officers decide to question or search an individual based on “reasonable suspicion” or “probable cause,” the legal standards for enforcement decisions discussed in Chapter Three, police may then discover evidence that can meet the higher legal standards applicable to adjudication decisions. Recall Copenhaver from Chapter One, where a sheriff’s decision to stop a car for an expired registration led to the discovery of evidence of drug offenses.

In the next section of this chapter, we consider a phrase that is probably already familiar to you: “proof beyond a reasonable doubt.” In the rare instances in which criminal adjudication occurs at a trial, the fact-finder (whether judge or jury) is directed to find the defendant guilty only upon proof beyond a reasonable doubt. We will examine both the concept of proof in criminal law, comparing it to the suspicion thresholds discussed in the last chapter, and the concept of reasonable doubt. Examining proof requirements also gives us another opportunity to practice statutory analysis: you will need to be able to identify the separate elements of a statute that need to be proven to establish guilt.

Although it is important to understand the beyond a reasonable doubt standard, and to be able to analyze questions of proof in relation to specific statutory elements, it is also important to know that most criminal adjudication occurs by means of a guilty plea. When a defendant pleads guilty, he or she waives the right to a trial and relieves the prosecution of the burden to prove guilt. In this chapter, we will examine the basic legal requirements of a guilty plea, and we will consider some of the features of the criminal legal system that make guilty pleas so common.

A decision by a jury to convict, or a decision by a defendant to plead guilty, is a decision made and recorded at the trial court. That is where most adjudication decisions are made, and where most criminal cases end. But a minority of criminal cases do go to an appeals court, and appellate court opinions comprise a disproportionate share of the judicial opinions you will read to learn criminal law. After considering adjudication through trials or plea bargaining, this chapter turns to appellate adjudication, both to help you put the appellate opinions you read into context, and to illustrate the ways that appellate judges can review and revise criminalization, enforcement, and adjudication decisions made by other actors.

This chapter concludes Unit One, which has introduced you to three types of key decisions in criminal law: criminalization, enforcement, and adjudication decisions. But even as you learn about the decisions made by public officials, you should also be thinking about the arguments that lawyers make to try to influence those decisions. A concluding section of this chapter reviews the main types of arguments that lawyers have raised in the cases you’ve read so far in this book. Familiarity with these arguments will be useful as you begin to study specific categories of criminal offenses in Unit Two.

Legal “Proof” and Reasonable Doubt

A note about statutes: the next case, In re Winship , concerns a juvenile defendant who was charged with “the equivalent of larceny.” That means he was alleged to have committed acts that would constitute larceny were he an adult. The text of New York’s larceny statute is not important to the opinion below and not reprinted here, but larceny is discussed in detail in Chapter Five. In general, you should continue to look closely at the relevant statutes when they are included before or within a judicial opinion. The next section of this chapter will examine proof requirements in relation to the “elements” of criminal statutes, and the statutory text is always the place to start as you seek to identify the elements of a crime.

In the Matter of Samuel WINSHIP, Appellant

Supreme Court of the United States 397 U.S. 358

Decided March 31, 1970

Mr. Justice BRENNAN delivered the opinion of the Court.

Constitutional questions decided by this Court concerning the juvenile process have centered on the adjudicatory stage at “which a determination is made as to whether a juvenile is a ‘delinquent’ as a result of alleged misconduct on his part, with the consequence that he may be committed to a state institution.” In re Gault , 387 U.S. 1 (1967). Gault decided that, although the Fourteenth Amendment does not require that the hearing at this stage conform with all the requirements of a criminal trial or even of the usual administrative proceeding, the Due Process Clause does require application during the adjudicatory hearing of “the essentials of due process and fair treatment. ” This case presents the single, narrow question whether proof beyond a reasonable doubt is among [those essentials of due process] required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult.

 …[ A judge in New York Family Court found that appellant, then a 12-year-old boy, had entered a locker and stolen $112… The petition which charged appellant with delinquency alleged that his act, “ if done by an adult, would constitute the crime or crimes of Larceny. ” The judge acknowledged that the proof might not establish guilt beyond a reasonable doubt, but rejected appellant ’ s contention that such proof was required by the Fourteenth Amendment. [ Section 744(b) of the Family Court Act ] provides that “ (a) ny determination at the conclusion of (an adjudicatory) hearing that a (juvenile) did an act or acts must be based on a preponderance of the evidence. ” …

The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The “demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, (though) its crystallization into the formula ‘beyond a reasonable doubt’ seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.” …

Expressions in many opinions of this Court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required. Mr. Justice Frankfurter [identified] “the duty of the Government to establish … guilt beyond a reasonable doubt. This notion—basic in our law and rightly one of the boasts of a free society—is a requirement and a safeguard of due process of law in the historic, procedural content of ‘due process.’” Leland v. Oregon , 343 U.S. 790 (1952) (dissenting opinion). In a similar vein, the Court said in Brinegar v. United States (1949) that “(g) uilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property. ” … This Court [has] said … “ No man should be deprived of his life under the forms of law unless the jurors who try him are able, upon their consciences, to say that the evidence before them … is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged.”

The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock “axiomatic and elementary” principle whose “enforcement lies at the foundation of the administration of our criminal law.” As the dissenters in the New York Court of Appeals observed, and we agree, “a person accused of a crime … would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case.”

The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interest of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt. … “T here is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value—as a criminal defendant his liberty—this margin of error is reduced as to him by the process of placing on the other party the burden of … persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of … convincing the factfinder of his guilt.” To this end, the reasonable-doubt standard is indispensable, for it “impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.”  

Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.

Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

We turn to the question whether juveniles, like adults, are constitutionally entitled to proof beyond a reasonable doubt when they are charged with violation of a criminal law. The same considerations that demand extreme caution in factfinding to protect the innocent adult apply as well to the innocent child. … [ Gault ] made clear … that civil labels and good intentions do not themselves obviate the need for criminal due process safeguards in juvenile courts, for “(a) proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.”

… Finally, we reject the Court of Appeals’ suggestion that there is, in any event, only a “ tenuous difference ” between the reasonable-doubt and preponderance standards. The suggestion is singularly unpersuasive. In this very case, the trial judge’s ability to distinguish between the two standards enabled him to make a finding of guilt that he conceded he might not have made under the standard of proof beyond a reasonable doubt. Indeed, the trial judge ’ s action evidences the accuracy of the observation of commentators that “ the preponderance test is susceptible to the misinterpretation that it calls on the trier of fact merely to perform an abstract weighing of the evidence in order to determine which side has produced the greater quantum, without regard to its effect in convincing his mind of the truth of the proposition asserted. ”

In sum, the constitutional safeguard of proof beyond a reasonable doubt is as much required during the adjudicatory stage of a delinquency proceeding as are those constitutional safeguards applied in Gault —notice of charges, right to counsel, the rights of confrontation and examination, and the privilege against self-incrimination. We therefore hold, in agreement with Chief Judge Fuld in dissent in the Court of Appeals, “ that, where a 12-year-old child is charged with an act of stealing which renders him liable to confinement for as long as six years, then, as a matter of due process … the case against him must be proved beyond a reasonable doubt. ”

Reversed.

Mr. Justice HARLAN, concurring.

…I begin by stating two propositions, neither of which I believe can be fairly disputed. First, in a judicial proceeding in which there is a dispute about the facts of some earlier event, the factfinder cannot acquire unassailably accurate knowledge of what happened. Instead, all the fact-finder can acquire is a belief of what probably happened. The intensity of this belief—the degree to which a factfinder is convinced that a given act actually occurred—can, of course, vary. In this regard, a standard of proof represents an attempt to instruct the fact-finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. Although the phrases ‘preponderance of the evidence’ and ‘proof beyond a reasonable doubt’ are quantitatively imprecise, they do communicate to the finder of fact different notions concerning the degree of confidence he is expected to have in the correctness of his factual conclusions.

A second proposition, which is really nothing more than a corollary of the first, is that the trier of fact will sometimes, despite his best efforts, be wrong in his factual conclusions. In a lawsuit between two parties, a factual error can make a difference in one of two ways. First, it can result in a judgment in favor of the plaintiff when the true facts warrant a judgment for the defendant. The analogue in a criminal case would be the conviction of an innocent man. On the other hand, an erroneous factual determination can result in a judgment for the defendant when the true facts justify a judgment in plaintiff ’ s favor. The criminal analogue would be the acquittal of a guilty man.

The standard of proof influences the relative frequency of these two types of erroneous outcomes. If, for example, the standard of proof for a criminal trial were a preponderance of the evidence rather than proof beyond a reasonable doubt, there would be a smaller risk of factual errors that result in freeing guilty persons, but a far greater risk of factual errors that result in convicting the innocent. Because the standard of proof affects the comparative frequency of these two types of erroneous outcomes, the choice of the standard to be applied in a particular kind of litigation should, in a rational world, reflect an assessment of the comparative social disutility of each.

… In this context, I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free. It is only because of the nearly complete and long-standing acceptance of the reasonable-doubt standard by the States in criminal trials that the Court has not before today had to hold explicitly that due process, as an expression of fundamental procedural fairness, requires a more stringent standard for criminal trials than for ordinary civil litigation.

[Dissenting opinions of BURGER, STEWART, and BLACK omitted.]

Notes and questions on Winship

Winship has been called “the civil case at the heart of criminal procedure,” and that phrase captures an oddity of the decision: it was technically a civil case, since New York (like other states) had created a separate juvenile court to address wrongdoing by minors and had classified these juvenile proceedings as civil rather than criminal. See W. David Ball, The Civil Case at the Heart of Criminal Procedure: Winship, Stigma, and the Civil-Criminal Distinction , 38 Am. J. Crim. L . 117 (2011). Since the creation of juvenile courts, the extent to which juvenile defendants in these ostensibly civil proceedings are entitled to the same constitutional protections as adult criminal defendants has been a recurring question. In the decision you’ve just read, the Supreme Court determined that the consequences of being labeled “delinquent” as a juvenile were sufficiently similar to the consequences of being labeled “guilty” as an adult that the same standard of proof should apply in both contexts. And although, prior to 1970, the Court had not formally declared “proof beyond a reasonable doubt” to be a constitutional requirement in criminal cases, it used Winship to make that declaration.
T he Winship majority refers at times to “ proof beyond a reasonable doubt,” which is a phrase you have probably heard before. But the Court also describes this legal standard as “the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt” (emphasis added). Is there a difference between proving a fact, on one hand, and persuading or convincing another person that the fact is true? If so, what is that difference?
To expand on the question in the last note, consider how the legal concept of “proof” may differ from a mathematical or scientific conception of proof. As Justice Harlan emphasizes in his concurring opinion in Winship , fact-finders do not and cannot “acquire unassailably accurate knowledge of what happened. Instead, all the fact-find can acquire is a belief of what probably happened. ” ( This observation seems especially true with regard to mental states. A fact-finder cannot discover or know with certainty exactly what a defendant was thinking at the time of the alleged crime. ) Thus, in Justice Harlan’s words, a legal standard of proof “ represents an attempt to instruct the fact-finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” A legal standard of proof has to do with the confidence of a human decisionmaker. In a sense , legal proof is a state of mind – the adjudicator’s state of mind . The conviction (in the sense of firmly held belief) of the fact-finder produces the conviction (in the sense of legal designation as guilty) of the defendant. Although the phrase “ proof beyond a reasonable doubt” has become the usual description of the standard of proof in criminal cases, especially after Winship , some courts before and even after Winship describe the issue as whether the factfinder is “ convinced beyond a reasonable doubt.” Look closely at the Court’s definition of proof here : “ Winship presupposes as an essential of … due process … that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof—defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” Jackson v. Virginia , 443 U.S. 307, 316 (1979).
The Winship Court argues that individuals must have confidence that the government will not be able to convict anyone “without convincing a proper factfinder of … guilt with utmost certainty.” Many defendants have cited this language to argue that juries should be instructed that they should not vote to convict unless they have “utmost certainty” of the defendant’s guilt. Courts routinely refuse this request, however. Several years after Winship , the Supreme Court described the requisite degree of certainty as “near certitude” rather than “utmost certainty.” Jackson v. Virginia , 443 U.S. 307, 315 (1979). More generally, the Court has treated “beyond a reasonable doubt” as a constitutional requirement without a fixed meaning. The Court has refused to require states to adhere to any specific definition of “beyond a reasonable doubt,” and it has allowed states to refuse to define the term or to allow conflicting definitions. See Miller W. Shealy, Jr., A Reasonable Doubt About “Reasonable Doubt,” 65 Okla. L. Rev. 225 ( 2013). As Shealy reports, “[o]ne very frustrated trial judge, instructing the jury on ‘reasonable doubt,’ deftly summarized the current state of the law when he said, ‘ [W] ho are we to tell you what is reasonable and what is not? That is wholly within your province.’” Id. at 228.

The defendant appealed his conviction, arguing that the jury instruction was erroneous. The Rhode Island Supreme Court found no reversible error, but expressed reservations about the trial judge’s explanation:

Although we agree that the “beyond a reasonable doubt” standard cannot be reduced to a single percentage figure to represent the likelihood that a defendant is guilty, it is still true, as the trial justice instructed the jury, that if the level of certainty needed to convict were subject to quantification the figure would be appreciably greater than 50 percent but still less than 100 percent. Here, the trial justice merely defined the range, by stating that “[t]he scale must go down significantly more [than 50 percent], but not all the way.”

Yet, although we conclude that the trial justice did not commit reversible error in giving this instruction, use of a scale metaphor, even if it is invoked merely to define a range, may misleadingly tend to quantify the reasonable-doubt standard by suggesting that, within a certain range, a single percentage figure exists beyond which the jury would have to conclude that they were convinced of a defendant’s guilt beyond a reasonable doubt. Therefore, we hold that although the trial justice did not commit reversible error by adverting to the scale metaphor in defining reasonable doubt to the jury, his “characterization of the standard as quantitative rather than qualitative might better have been omitted.”

Be sure to understand the difference between two separate issues: the standard of proof, on one hand, and allocation of the burden of proof, on the other. “Beyond a reasonable doubt,” “preponderance of the evidence,” and “clear and convincing evidence” are typical formulations of standards of proof. Again, these phrases describe the degree of confidence that the fact-finder should hold. Beyond a reasonable doubt requires the highest degree of confidence, while preponderance of the evidence requires only that the factfinder think the fact in question is more likely than not to be true. Clear and convincing evidence is an intermediate standard between beyond a reasonable doubt and preponderance. (All of these standards of proof are understood to require much greater levels of confidence than the suspicion standards discussed in Chapter Three, “reasonable suspicion” and “probable cause.”)The allocation of the burden of proof refers not to the factfinder’s degree of confidence, but to which party is obligated to convince the factfinder. In criminal cases, the prosecution carries the burden of proof with regard to each element of the charged offense, which means that it is up to the prosecution to present evidence that persuades the factfinder of guilt (unless, of course, the defendant pleads guilty and relieves the prosecution of this burden). But there are specific kinds of claims raised by defendants called affirmative defenses, and for these claims a state can require the defendant to carry the burden of proof. We will discuss affirmative defenses and defendants’ burdens of proof in relation to Patterson v. New York in Chapter Six, and again as they arise in later cases.
In addition to the two issues just discussed (standard of proof, and allocation of burden), adjudication raises a third issue: who will serve as the fact-finder, or the person who must be convinced that the necessary facts have been established? In Winship itself, a family court judge had served as the factfinder, not a jury. Shortly after Winship , the Supreme Court considered whether juvenile defendants have the same constitutional right to a jury trial that the Sixth Amendment grants to adult criminal defendants, and ultimately decided that the right to a jury did not apply in juvenile proceedings. McKeiver v. Pennsylvania , 403 U.S. 528, 545-548 (1971). For adult defendants in criminal proceedings, however, the Court has recognized a right to have a jury serve as fact-finder if the potential penalty is six months imprisonment or longer. See Blanton v. City of North Las Vegas , 489 U.S. 538 (1989); Duncan v. Louisiana , 391 U.S. 145 (1967). As previously emphasized, however, and as discussed further in the next section of this chapter, most criminal defendants waive this right to a jury.
It is often said that a standard of proof allocates the risk of error. How does the Winship Court use this claim in support of its conclusion that the reasonable doubt standard is a constitutional requirement in criminal cases (and thus also in a juvenile delinquency proceeding)?
In his concurrence, Justice Harlan quoted a famous evidence scholar, John Henry Wigmore, who had examined courts’ attempts to describe the reasonable doubt standard and concluded, “The truth is that no one has yet invented or discovered a mode of measurement for the intensity of human belief. Hence there can be yet no successful method of communicating intelligibly … a sound method of self-analysis for one’s [own] belief.” 9 J. Wigmore, Evidence 325 (3d ed. 1940), quoted in Winship, 397 U.S. 358, 369 (Harlan, J., concurring). Harlan seemed to share some of Wigmore’s skepticism, noting that standards of proof were “not a very sure guide to decisionmaking,” but he ultimately agreed with the Winship majority that it was important to adopt “beyond a reasonable doubt” in criminal cases. As Harlan explained, “the choice of the standard of proof for a particular variety of adjudication does, I think, reflect a very fundamental assessment of the comparative social costs of erroneous factual determinations.” Id. at 370.
The previous two notes recount a frequently repeated rationale for a beyond-a-reasonable-doubt standard in criminal cases: the standard allocates the risks of error in a way that favors the defendant, and this allocation reflects a societal assessment that the costs to an individual of a wrongful conviction are so high that we want the government to bear the greater risk of error. This idea is often expressed with the claim that it is better that ten guilty men go free than one innocent man be convicted. As a historical matter, though, “beyond a reasonable doubt” may have entered the law for very different reasons. Legal historian James Whitman has argued that the standard first as a response to a reluctance to convict among medieval Christians, who feared that to convict a fellow human would expose themselves to eternal damnation. The beyond a reasonable doubt standard emerged to provide “moral comfort” to jurors by reassuring them that God would not condemn them for convicting a defendant when the evidence was sufficiently persuasive. James Whitman, The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (2008).

Evidence Sufficiency and Elements of Offenses

Winship requires proof beyond a reasonable doubt, but proof of what, exactly? In the Supreme Court’s words, “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Winship , 397 U.S. at 364. Elsewhere, the Court said that the reasonable doubt standard was “the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.” Id. at 361. Thus, under Winship , it is important to identify the separate “elements” of a criminal offense, or the specific facts that must be established to support a conviction. Owens v. State , below, will help you think about how to identify all the elements of an offense and how to determine whether the evidence is sufficient to prove those elements.

Md. Transportation Art. § 21-902. Driving while intoxicated, under the influence of alcohol, or under the influence of a drug, a combination of alcohol and a drug, or a controlled dangerous substance.

(a) Driving while intoxicated. —A person may not drive or attempt to drive any vehicle while intoxicated.

Md. Transportation Art. § 21-101.1

(a) In general. —The provisions of this title relating to the driving of vehicles refer only to the driving of vehicles on highways, except …

(b) Applicability to private property. —(1) A person may not drive a motor vehicle in violation of any provision of this title on any private property that is used by the public in general.

Christopher C. OWENS, Jr.

STATE of Maryland

Court of Special Appeals of Maryland 93 Md. App. 162

Sept. 3, 1992

MOYLAN, Judge.

This appeal presents us with a small gem of a problem from the borderland of legal sufficiency. It is one of those few occasions when some frequently invoked but rarely appropriate language is actually pertinent. Ironically, in this case it was not invoked. The language is, “[A] conviction upon circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence.” West v. State, 539 A.2d 231 (1988) (emphasis in original).

We have here a conviction based upon circumstantial evidence alone. The circumstance is that a suspect was found behind the wheel of an automobile parked on a private driveway at night with the lights on and with the motor running. Although there are many far-fetched and speculative hypotheses that might be conjured up (but which require no affirmative elimination), there are only two unstrained and likely inferences that could reasonably arise. One is that the vehicle and its driver had arrived at the driveway from somewhere else. The other is that the driver had gotten into and started up the vehicle and was about to depart for somewhere else.

The first hypothesis, combined with the added factor that the likely driver was intoxicated, is consistent with guilt. The second hypothesis, because the law intervened before the forbidden deed could be done, is consistent with innocence. With either inference equally likely, a fact finder could not fairly draw the guilty inference and reject the innocent with the requisite certainty beyond a reasonable doubt. We are called upon, therefore, to examine the circumstantial predicate more closely and to ascertain whether there were any attendant and ancillary circumstances to render less likely, and therefore less reasonable, the hypothesis of innocence. Thereon hangs the decision.

The appellant, Christopher Columbus Owens, Jr., was convicted in the Circuit Court … by Judge D. William Simpson, sitting without a jury, of driving while intoxicated. Upon this appeal, he raises the single contention that Judge Simpson was clearly erroneous in finding him guilty because the evidence was not legally sufficient to support such finding.

The evidence, to be sure, was meager. The State ’ s only witness was Trooper Samuel Cottman , who testified that at approximately 11 P.M. on March 17, 1991, he drove to the area of Sackertown Road … in response to a complaint that had been called in about a suspicious vehicle. He spotted a truck matching the description of the “suspicious vehicle.” It was parked in the driveway of a private residence.

The truck ’ s engine was running and its lights were on. The appellant was asleep in the driver ’ s seat, with an open can of Budweiser clasped between his legs. Two more empty beer cans were inside the vehicle. As Trooper Cottman awakened him, the appellant appeared confused and did not know where he was. He stumbled out of the vehicle. There was a strong odor of alcohol on his breath. His face was flushed and his eyes were red. When asked to recite the alphabet, the appellant “mumbled through the letters, didn ’ t state any of the letters clearly and failed to say them in the correct order.” His speech generally was “slurred and very unclear.” When taken into custody, the appellant was “very argumentative … and uncooperative.” A check with the Motor Vehicles Administration revealed … that the appellant had an alcohol restriction on his license. The appellant declined to submit to a blood test for alcohol.

After the brief direct examination of Trooper Cottman … defense counsel asked only two questions, establishing that the driveway was private property and that the vehicle was sitting on that private driveway. The appellant did not take the stand and no defense witnesses were called. The appellant ’ s argument as to legal insufficiency is clever. He chooses to fight not over the fact of drunkenness but over the place of drunkenness. He points out that his conviction was under the Transportation Article, which is limited in its coverage to the driving of vehicles on “highways” and does not extend to driving on a “private road or driveway.”

We agree with the appellant that he could not properly have been convicted for driving, no matter how intoxicated, back and forth along the short span of a private driveway. The theory of the State ’ s case, however, rests upon the almost Newtonian principle that present stasis on the driveway implies earlier motion on the highway. The appellant was not convicted of drunken driving on the private driveway, but of drunken driving on the public highway before coming to rest on the private driveway.

It is a classic case of circumstantial evidence. From his presence behind the wheel of a vehicle on a private driveway with the lights on and the motor running, it can reasonably be inferred that such individual either 1) had just arrived by way of the public highway or 2) was just about to set forth upon the public highway. The binary nature of the probabilities — that a vehicular odyssey had just concluded or was just about to begin — is strengthened by the lack of evidence of any third reasonable explanation, such as the presence beside him of an inamorata or of a baseball game blaring forth on the car radio. Either he was coming or he was going.

The first inference would render the appellant guilty; the second would not. Mere presence behind the wheel with the lights on and the motor running could give rise to either inference, the guilty one and the innocent one. For the State to prevail, there has to be some other factor to enhance the likelihood of the first inference and to diminish the likelihood of the second. We must look for a tiebreaker.

The State had several opportunities to break the game wide open but failed to capitalize on either of them. As Trooper Cottman woke the appellant, he asked him what he was doing there. The appellant responded that he had just driven the occupant of the residence home. Without explanation, the appellant ’ s objection to the answer was sustained. For purposes of the present analysis, therefore, it is not in the case. We must look for a tiebreaker elsewhere.

In trying to resolve whether the appellant 1) had just been driving or 2) was just about to drive, it would have been helpful to know whether the driveway in which he was found was that of his own residence or that of some other residence. If he were parked in someone else’s driveway with the motor still running, it would be more likely that he had just driven there a short time before. If parked in his own driveway at home, on the other hand, the relative strength of the inbound inference over the outbound inference would diminish.

The driveway where the arrest took place was on Sackertown Road. The charging document (which, of course, is not evidence) listed the appellant ’ s address as 112 Cove Second Street. When the appellant was arrested, presumably his driver ’ s license was taken from him. Since one of the charges against the appellant was that of driving in violation of an alcohol restriction on his license, it would have been routine procedure to have offered the license, showing the restriction, into evidence. In terms of our present legal sufficiency exercise, the license would fortuitously have shown the appellant ’ s residence as well. Because of the summary nature of the trial, however, the license was never offered in evidence. For purposes of the present analysis, therefore, the appellant ’ s home address is not in the case. We must continue to look for a tiebreaker elsewhere.

Three beer cans were in evidence. The presence of a partially consumed can of beer between the appellant ’ s legs and two other empty cans in the back seat would give rise to a reasonable inference that the appellant ’ s drinking spree was on the downslope rather than at an early stage. At least a partial venue of the spree, moreover, would reasonably appear to have been the automobile. One does not typically drink in the house and then carry the empties out to the car. Some significant drinking, it may be inferred, had taken place while the appellant was in the car. The appellant ’ s state of unconsciousness, moreover, enforces that inference. One passes out on the steering wheel after one has been drinking for some time, not as one only begins to drink. It is not a reasonable hypothesis that one would leave the house, get in the car, turn on the lights, turn on the motor, and then, before putting the car in gear and driving off, consume enough alcohol to pass out on the steering wheel. Whatever had been going on (driving and drinking) would seem more likely to have been at a terminal stage than at an incipient one.

Yet another factor would have sufficed, we conclude, to break the tie between whether the appellant had not yet left home or was already abroad upon the town. Without anything further as to its contents being revealed, it was nonetheless in evidence that the thing that had brought Trooper Cottman to the scene was a complaint about a suspicious vehicle. The inference is reasonable that the vehicle had been observed driving in some sort of erratic fashion. Had the appellant simply been sitting, with his motor idling, on the driveway of his own residence, it is not likely that someone from the immediate vicinity would have found suspicious the presence of a familiar neighbor in a familiar car sitting in his own driveway. The call to the police, even without more being shown, inferentially augurs more than that. It does not prove guilt in and of itself. It simply makes one of two alternative inferences less reasonable and its alternative inference thereby more reasonable.

The totality of the circumstances are, in the last analysis, inconsistent with a reasonable hypothesis of innocence. They do not, of course, foreclose the hypothesis but such has never been required. They do make the hypothesis more strained and less likely. By an inverse proportion, the diminishing force of one inference enhances the force of its alternative. It makes the drawing of the inference of guilt more than a mere flip of a coin between guilt and innocence. It makes it rational and therefore within the proper purview of the factfinder. We affirm.

Notes and questions on Owens

The Maryland drunk driving statute, § 21-902, is reprinted just before the court’s opinion and seems short and simple. It requires that the defendant a) drive or attempt to drive, b) any vehicle, c) while intoxicated. But the defense argued that because the statute was part of the Transportation Article, which applied to “highways,” there was an additional element of the offense: the prosecution had to show that the driving (or the attempt to drive) took place on a public roadway rather than private property. The Owens court apparently accepted this interpretation of the statute (but the state supreme court later disagreed, as explained in the last note below). One lesson to take from Owens is the fact that criminalization decisions—the precise definition of an offense—are designed to structure adjudication decisions. The factfinder is not supposed to make his own determination of whether a man attempting to drive on a private driveway is guilty of a crime; rather, the factfinder is supposed to take the specific elements of the offense as defined by the legislature, and then determine whether the evidence establishes those pre-defined elements.

Stephen E. Arthur & Robert S. Hunter, Federal Trial Handbook: Criminal , 41:3 (2020). Although this federal instruction says direct and circumstantial evidence should be given the same weight, some states do treat direct and circumstantial evidence differently, as discussed below.

Would you have voted to convict Christopher Columbus Owens? Why or why not? Which facts or details seem most important to you? Notice that some facts (such as the defendant’s statement that he had just given someone a ride home) are known to the court, but are not officially “in evidence.” Which facts that are “in evidence” seem most important to your vote to acquit or convict?

Why does the Owens court mention facts not in evidence – that is, facts supposedly not relevant to its decision? Keep in mind that judges are human decisionmakers, and judicial opinions are carefully crafted documents. Are the facts not officially in evidence—such as the fact that Owens was not at his own residence, or that Owens stated that he had just driven a friend home—included to influence the reader of the opinion, even as the court claims that these facts must not influence its own decision?
The appellate court says that it is looking for a “tiebreaker” to choose between two possible inferences, one of innocence and one of guilt. It ultimately finds “the totality of the circumstances” to be “inconsistent with a reasonable hypothesis of innocence” even if they do not “foreclose” a hypothesis of innocence. The inference of guilt, the court says, is “more than a mere flip of a coin.” Are the concepts of a “tiebreaker” or a coin flip consistent with proof beyond a reasonable doubt? Is this court applying a reasonable doubt standard?
In relation to the question raised in the previous note, it is important to see that the appellate court is not in the same position as a jury or a trial judge serving as fact-finder, and it is not applying exactly the same legal standard. When an appellate court reviews a conviction for sufficiency of the evidence, the appellate judges are not asking themselves whether they are convinced beyond a reasonable doubt. Rather, the usual standard for a sufficiency of the evidence claim is whether there is enough evidence of guilt so that a reasonable factfinder could have been convinced. Put differently, an appellate court will not typically reverse a conviction for insufficiency of evidence unless the court concludes that the evidence is so weak that no reasonable factfinder could have been convinced beyond a reasonable doubt. (Of course, the issue raised by Wigmore and referenced in Winship still remains: how do human decisionmakers measure the intensity of their own beliefs? And we could now add with regard to appellate review, how do appellate judges evaluate the reasonableness of the intensity of a hypothetical juror’s beliefs?)
The Owens court states, in the last paragraph of the opinion, that the evidence need not “foreclose the hypothesis” of innocence in order to be sufficient. Some states adopt a more rigorous standard for convictions based on circumstantial evidence. For example, Georgia law provides that if an element of a crime is established only by circumstantial evidence, “the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of guilt of the accused.” Ga. Code. Ann. § 24-4-6. In other words, in contrast to the federal instruction quoted in the first note above, Georgia purports to treat circumstantial evidence differently than direct evidence.
A few years after the Court of Special Appeals (an intermediate appellate court) decided Owens , the Maryland Court of Appeals (the state’s highest court) considered a similar case, Rettig v. State , 639 A.2d 670 (Ct. App. Md. 1994). The defendant in that case, Craig Rettig, was represented by the state public defender, the same office that had represented Owens. And Rettig’s attorney raised a similar argument against a drunk driving conviction. Rettig was arrested after he got in an accident while driving an all-terrain vehicle on his own property in the early morning hours; by his own admission, Rettig was “toasted” at the time of the accident. Though Rettig argued (through his attorney) that he could not be convicted because the state drunk driving law applied only to public roadways, the state supreme court rejected this argument, overruling this aspect of Owens . The state supreme court noted that still another provision of the Transportation Article, one not mentioned in Owens , stated “The provisions of this subtitle apply throughout this State, whether on or off a highway.” After Rettig , Maryland prosecutors do not need to show that drunk driving occurred on a public roadway in order to secure a conviction. Owens and Rettig can thus remind us that statutes are subject to different interpretations—especially if different parts of a statute contain seeming contradictory language! Within a given jurisdiction, an interpretation by a higher court displaces a contrary interpretation by a lower court. We look again at statutory interpretation by appellate courts at the end of this chapter with Yates v. United States .

Check Your Understanding (4-1)

Expand on Your Understanding (4-2)

A System of Pleas

The two cases you’ve read so far in this chapter both involved trials, albeit bench trials to a judge serving as fact-finder rather than jury trials. But most criminal defendants do not go to trial, either jury trial or bench trial. Instead, most criminal cases are resolved without a trial. If the case ends in a conviction, that conviction is almost always the result of a guilty plea rather than a trial. Given that a defendant has a constitutional right to a jury trial, and a due process right to demand that the prosecution prove each element of the offense beyond a reasonable doubt, why do so many defendants plead guilty? To begin to understand the dynamics of criminal prosecutions and the prevalence of pleas, consider the next case. The applicable statutes are reprinted before the opinion, but please note that neither statute is still in force today.

Ky Rev. Stat. § 434.1 30.

Any person who forges or counterfeits any writing in order to obtain fraudulently the possession of or to deprive another of any money or property, or to cause another to be injured in his estate or lawful rights, or any person who utters and publishes such an instrument as true, knowing it to be forged and counterfeited, shall be confined in the penitentiary for not less than two nor more than ten years.

Ky. Rev. Stat. § 431.190. Conviction of felony; punishment on second and third offenses.

Any person convicted a second time of felony shall be confined in the penitentiary not less than double the time of the sentence under the first conviction; if convicted a third time of felony, he shall be confined in the penitentiary during his life….

Don BORDENKIRCHER Superintendent, Kentucky State Penitentiary, Petitioner

Paul Lewis HAYES

Supreme Court of the United States 434 U.S. 357

Decided Jan. 18, 1978

Justice STEWART delivered the opinion of the Court.

The question in this case is whether the Due Process Clause of the Fourteenth Amendment is violated when a state prosecutor carries out a threat made during plea negotiations to reindict the accused on more serious charges if he does not plead guilty to the offense with which he was originally charged.

The respondent, Paul Lewis Hayes, was indicted by a Fayette County, Ky., grand jury on a charge of uttering a forged instrument in the amount of $88.30, an offense then punishable by a term of 2 to 10 years in prison. Ky. Rev. Stat. § 434.130 (1973) (repealed 1975). After arraignment, Hayes, his retained counsel, and the [prosecutor] met … to discuss a possible plea agreement. During these conferences the prosecutor offered to recommend a sentence of five years in prison if Hayes would plead guilty to the indictment. He also said that if Hayes did not plead guilty and “save[d] the court the inconvenience and necessity of a trial,” he would return to the grand jury to seek an indictment under the Kentucky Habitual Criminal Act, which would subject Hayes to a mandatory sentence of life imprisonment by reason of his two prior felony convictions. Hayes chose not to plead guilty, and the prosecutor did obtain an indictment charging him under the Habitual Criminal Act. It is not disputed that the recidivist charge was fully justified by the evidence, that the prosecutor was in possession of this evidence at the time of the original indictment, and that Hayes’ refusal to plead guilty to the original charge was what led to his indictment under the habitual criminal statute.

A jury found Hayes guilty on the principal charge of uttering a forged instrument and, in a separate proceeding, further found that he had twice before been convicted of felonies. As required by the habitual offender statute, he was sentenced to a life term in the penitentiary…

It may be helpful to clarify at the outset the nature of the issue in this case. While the prosecutor did not actually obtain the recidivist indictment until after the plea conferences had ended, his intention to do so was clearly expressed at the outset of the plea negotiations. Hayes was thus fully informed of the true terms of the offer when he made his decision to plead not guilty. This is not a situation, therefore, where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original indictment had ended with the defendant’s insistence on pleading not guilty. As a practical matter, in short, this case would be no different if the grand jury had indicted Hayes as a recidivist from the outset, and the prosecutor had offered to drop that charge as part of the plea bargain.

The Court of Appeals nonetheless drew a distinction between “concessions relating to prosecution under an existing indictment,” and threats to bring more severe charges not contained in the original indictment—a line it thought necessary in order to establish a prophylactic rule to guard against the evil of prosecutorial vindictiveness. Quite apart from this chronological distinction, however, the Court of Appeals found that the prosecutor had acted vindictively in the present case since he had conceded that the indictment was influenced by his desire to induce a guilty plea. The ultimate conclusion of the Court of Appeals thus seems to have been that a prosecutor acts vindictively and in violation of due process of law whenever his charging decision is influenced by what he hopes to gain in the course of plea bargaining negotiations.

We have recently had occasion to observe: “[W]hatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country’s criminal justice system. Properly administered, they can benefit all concerned.” Blackledge v. Allison (1977). The open acknowledgment of this previously clandestine practice has led this Court to recognize the importance of counsel during plea negotiations, the need for a public record indicating that a plea was knowingly and voluntarily made, and the requirement that a prosecutor’s plea-bargaining promise must be kept. The decision of the Court of Appeals in the present case, however, did not deal with considerations such as these, but held that the substance of the plea offer itself violated the limitations imposed by the Due Process Clause of the Fourteenth Amendment. For the reasons that follow, we have concluded that the Court of Appeals was mistaken in so ruling.

This Court held in North Carolina v. Pearce (1969) that the Due Process Clause of the Fourteenth Amendment “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” The same principle was later applied to prohibit a prosecutor from reindicting a convicted misdemeanant on a felony charge after the defendant had invoked an appellate remedy, since in this situation there was also a “realistic likelihood of vindictiveness.” Blackledge v. Perry (1974).

In those cases the Court was dealing with the State’s unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction—a situation “very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power.” …[I]n the “give-and-take” of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.

Plea bargaining flows from “the mutuality of advantage” to defendants and prosecutors, each with his own reasons for wanting to avoid trial. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial.

While confronting a defendant with the risk of more severe punishment clearly may have a “discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable”—and permissible—“attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.

It is not disputed here that Hayes was properly chargeable under the recidivist statute, since he had in fact been convicted of two previous felonies. In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. Within the limits set by the legislature’s constitutionally valid definition of chargeable offenses, “the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation” so long as “the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” To hold that the prosecutor’s desire to induce a guilty plea is an “unjustifiable standard,” which, like race or religion, may play no part in his charging decision, would contradict the very premises that underlie the concept of plea bargaining itself. Moreover, a rigid constitutional rule that would prohibit a prosecutor from acting forthrightly in his dealings with the defense could only invite unhealthy subterfuge that would drive the practice of plea bargaining back into the shadows from which it has so recently emerged.

There is no doubt that the breadth of discretion that our country’s legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse. And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise. We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment.

Accordingly, the judgment of the Court of Appeals is

Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.

…It might be argued that it really makes little difference how this case, now that it is here, is decided. The Court’s holding gives plea bargaining full sway despite vindictiveness. A contrary result, however, merely would prompt the aggressive prosecutor to bring the greater charge initially in every case, and only thereafter to bargain. The consequences to the accused would still be adverse, for then he would bargain against a greater charge, face the likelihood of increased bail, and run the risk that the court would be less inclined to accept a bargained plea. Nonetheless, it is far preferable to hold the prosecution to the charge it was originally content to bring and to justify in the eyes of its public.

[Blackmun added in a footnote:] That prosecutors, without saying so, may sometimes bring charges more serious than they think appropriate for the ultimate disposition of a case, in order to gain bargaining leverage with a defendant, does not add support to today’s decision, for this Court, in its approval of the advantages to be gained from plea negotiations, has never openly sanctioned such deliberate overcharging or taken such a cynical view of the bargaining process. Normally, of course, it is impossible to show that this is what the prosecutor is doing, and the courts necessarily have deferred to the prosecutor’s exercise of discretion in initial charging decisions.

Even if overcharging is to be sanctioned, there are strong reasons of fairness why the charges should be presented at the beginning of the bargaining process, rather than as a filliped threat at the end. First, it means that a prosecutor is required to reach a charging decision without any knowledge of the particular defendant’s willingness to plead guilty; hence the defendant who truly believes himself to be innocent, and wishes for that reason to go to trial, is not likely to be subject to quite such a devastating gamble since the prosecutor has fixed the incentives for the average case.

Second, it is healthful to keep charging practices visible to the general public, so that political bodies can judge whether the policy being followed is a fair one. Visibility is enhanced if the prosecutor is required to lay his cards on the table with an indictment of public record at the beginning of the bargaining process, rather than making use of unrecorded verbal warnings of more serious indictments yet to come.

Finally, I would question whether it is fair to pressure defendants to plead guilty by threat of reindictment on an enhanced charge for the same conduct when the defendant has no way of knowing whether the prosecutor would indeed be entitled to bring him to trial on the enhanced charge. Here, though there is no dispute that respondent met the then-current definition of a habitual offender under Kentucky law, it is conceivable that a properly instructed Kentucky grand jury, in response to the same considerations that ultimately moved the Kentucky Legislature to amend the habitual offender statute, would have refused to subject respondent to such an onerous penalty for his forgery charge. There is no indication in the record that, once the new indictment was obtained, respondent was given another chance to plead guilty to the forged check charge in exchange for a five-year sentence.

Mr. Justice POWELL, dissenting.

Although I agree with much of the Court’s opinion, I am not satisfied that the result in this case is just or that the conduct of the plea bargaining met the requirements of due process.

… It seems to me that the question to be asked under the circumstances is whether the prosecutor reasonably might have charged respondent under the Habitual Criminal Act in the first place. The deference that courts properly accord the exercise of a prosecutor’s discretion perhaps would foreclose judicial criticism if the prosecutor originally had sought an indictment under that Act, as unreasonable as it would have seemed. But here the prosecutor evidently made a reasonable, responsible judgment not to subject an individual to a mandatory life sentence when his only new offense had societal implications as limited as those accompanying the uttering of a single $88 forged check and when the circumstances of his prior convictions confirmed the inappropriateness of applying the habitual criminal statute. I think it may be inferred that the prosecutor himself deemed it unreasonable and not in the public interest to put this defendant in jeopardy of a sentence of life imprisonment.

There may be situations in which a prosecutor would be fully justified in seeking a fresh indictment for a more serious offense. The most plausible justification might be that it would have been reasonable and in the public interest initially to have charged the defendant with the greater offense. In most cases a court could not know why the harsher indictment was sought, and an inquiry into the prosecutor’s motive would neither be indicated nor likely to be fruitful. In those cases, I would agree with the majority that the situation would not differ materially from one in which the higher charge was brought at the outset.

But this is not such a case. Here, any inquiry into the prosecutor’s purpose is made unnecessary by his candid acknowledgment that he threatened to procure and in fact procured the habitual criminal indictment because of respondent’s insistence on exercising his constitutional rights….

The plea-bargaining process, as recognized by this Court, is essential to the functioning of the criminal-justice system. It normally affords genuine benefits to defendants as well as to society. And if the system is to work effectively, prosecutors must be accorded the widest discretion, within constitutional limits, in conducting bargaining. This is especially true when a defendant is represented by counsel and presumably is fully advised of his rights. Only in the most exceptional case should a court conclude that the scales of the bargaining are so unevenly balanced as to arouse suspicion. In this case, the prosecutor’s actions denied respondent due process because their admitted purpose was to discourage and then to penalize with unique severity his exercise of constitutional rights. Implementation of a strategy calculated solely to deter the exercise of constitutional rights is not a constitutionally permissible exercise of discretion. I would affirm the opinion of the Court of Appeals on the facts of this case.

Check Your Understanding (4-3)

Notes and questions on Bordenkircher v. Hayes

A guilty plea is a waiver of the defendant’s right to a trial. It relieves the prosecution of the burden of convincing a factfinder that the defendant is guilty. About 97% of criminal convictions in the federal system, and about 94% of state convictions, are the product of guilty pleas. These numbers have led the Supreme Court to observe, “[C]riminal justice today is for the most part a system of pleas, not a system of trials.” Lafler v. Cooper , 566 U.S. 156 (2012). In the federal system, guilty pleas are not only a large portion of convictions, but also a large portion of all cases: in 2018, about 90% of all federal defendants pled guilty. See John Gramlich, Only 2% of Federal Defendants Go To Trial, and Most Who Do Are Found Guilty (Pew Research Center, June 11, 2019). Because it involved a guilty plea, Hayes is far more representative of criminal cases than the many appellate opinions in this book that follow a bench or jury trial.
A guilty plea is also a waiver of the defendant’s constitutional right against self-incrimination and the right to confront witnesses. The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself,” and a guilty plea is a literal and direct act of self-incrimination. The general legal requirement for waivers of constitutional rights is that the waiver must be voluntary, knowing, and intelligent. But the courts’ interpretations of “voluntary,” “knowing,” and “intelligent” vary depending on the context. The Supreme Court has made clear that the threat of a more severe sentence if one goes to trial does not render a plea involuntary. See Brady v. United States , 397 U.S. 742 (1970). In that case, Robert Brady was charged with the federal offense of kidnaping in 1959. At that time, the federal statute authorized the death penalty as a possible punishment for kidnaping, but only “if the verdict of the jury shall so recommend.” (See 18 U.S.C. § 1201(a), reprinted in footnote 1 of the opinion.) This meant that a defendant could avoid the risk of a death sentence by pleading guilty. Robert Brady later argued that the possibility of a death sentence if he went to trial created so much pressure to plead guilty that his plea was involuntary, but the Court rejected his claim.

(a) Entering a Plea.

(1) In General. A defendant may plead not guilty, guilty, or (with the court’s consent) nolo contendere. …

(b) Considering and Accepting a Guilty or Nolo Contendere Plea.

(1) Advising and Questioning the Defendant. Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, the following:

(A) the government’s right, in a prosecution for perjury or false statement, to use against the defendant any statement that the defendant gives under oath;

(B) the right to plead not guilty, or having already so pleaded, to persist in that plea;

(D) the right to be represented by counsel—and if necessary have the court appoint counsel—at trial and at every other stage of the proceeding;

(E) the right at trial to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses;

(F) the defendant’s waiver of these trial rights if the court accepts a plea of guilty or nolo contendere;

(G) the nature of each charge to which the defendant is pleading;

(H) any maximum possible penalty, including imprisonment, fine, and term of supervised release;

(I) any mandatory minimum penalty;

[various other sentencing considerations…]

(N) the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence; and

(O) that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.

(2) Ensuring That a Plea Is Voluntary. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement).

(3) Determining the Factual Basis for a Plea. Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.

(1) In General. An attorney for the government and the defendant’s attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will:

(A) not bring, or will move to dismiss, other charges;

(B) recommend, or agree not to oppose the defendant’s request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request does not bind the court); or

(C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).

(2) Disclosing a Plea Agreement. The parties must disclose the plea agreement in open court when the plea is offered, unless the court for good cause allows the parties to disclose the plea agreement in camera.

(3) Judicial Consideration of a Plea Agreement.

(A) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report.

(B) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(B), the court must advise the defendant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request. …

F.R.C.P. 11. Notice that the federal rule requires the court to determine that there is “a factual basis” for the guilty plea. Most states have a similar “factual basis” requirement, at least as a matter of written guidelines for pleas. In practice, there is considerable evidence of “fictional pleas.” Professor Thea Johnson describes a fictional plea as “a plea bargain agreement in which a defendant pleads guilty to a crime he did not commit, with the consent and knowledge of multiple actors in the criminal justice system.” Thea Johnson, Fictional Pleas , 94 Ind. L.J. 855, 857 (2019). Like other guilty pleas, a fictional plea may be a way for a defendant to obtain a more favorable outcome than would otherwise be available.

Note 2 above described the Supreme Court’s approach to voluntariness in Brady v. United States (1970); the Brady Court rejected the defendant’s argument that the fact that he could be sentenced to death if he went to trial, but not if he pled guilty, rendered his guilty plea involuntary. In Brady , the different penalties were determined by the applicable federal kidnapping statute. Hayes , decided several years after Brady , involved a slightly different situation in which the prosecutor could alter the potential sentence by choosing to charge under one statute rather than another. When a defendant who exercises the right to trial faces a more severe sentence than one who pleads guilty, commentators often characterize the situation as a “trial penalty,” or a “plea discount.” Whether penalty or discount is the better characterization depends in part on one’s view of the appropriate baseline. Do we assume each defendant will be sentenced to the harshest available penalty, in which case anything less is a discount? Or do we assume that most defendants will be sentenced to something less than maximum, in which case more severe sentences for those who go to trial does seem to punish the choice to go to trial? Whatever the best name for the practice, the Hayes Court found the imposition of a more severe sentence on a defendant who refused to plead guilty to be acceptable, in part because the Court characterized plea bargaining as a “give-and-take negotiation” in which “the prosecution and defense … possess relatively equal bargaining power.” In sharp contrast to the Supreme Court’s view of plea bargaining as a negotiation between equals, critics have characterized plea bargaining as coercive for decades. One memorable article compares plea bargaining to the medieval European use of judicially supervised torture to induce confessions. “There is, of course, a difference between having your limbs crushed if you refuse to confess, or suffering some extra years of imprisonment if you refuse to confess, but the difference is of degree, not kind. Plea bargaining, like torture, is coercive.” John Langbein, Torture and Plea Bargaining , 46 U. Chi. L. Rev. 3, 12-13 (1978).
Consider Hayes in relation to the aspects of prosecutorial discretion that you studied in Chapter Three. When more than one statute is potentially applicable to a defendant’s conduct, and when different statutes carry different penalties, what rules, if any, apply to the prosecutor’s charging decision?

In the majority of criminal cases, a defense lawyer only meets her client when or shortly after the client is arrested, so that, at the outset, she is at a considerable informational disadvantage to the prosecutor. If, as is very often the case … bail is set so high that the client is detained, the defense lawyer has only modest opportunities, within … limited visiting hours and other arduous restrictions imposed by most jails, to interview her client and find out his version of the facts.

The prosecutor, by contrast, will typically have a full police report, complete with witness interviews and other evidence, shortly followed by grand jury testimony, forensic test reports, and follow-up investigations. While much of this may be one-sided and inaccurate … it not only gives the prosecutor a huge advantage over the defense counsel but also makes the prosecutor confident, maybe overconfident, of the strength of his case.

Against this background, the information-deprived defense lawyer, typically within a few days after the arrest, meets with the overconfident prosecutor, who makes clear that, unless the case can be promptly resolved by a plea bargain, he intends to charge the defendant with the most severe offenses he can prove. Indeed, until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved—unless, of course, the defendant was willing to enter into a plea bargain. If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge—but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources). Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case.

In this typical situation, the prosecutor has all the advantages. He knows a lot about the case (and, as noted, probably feels more confident about it than he should, since he has only heard from one side), whereas the defense lawyer knows very little. Furthermore, the prosecutor controls the decision to charge the defendant with a crime. Indeed, the law of every US jurisdiction leaves this to the prosecutor’s unfettered discretion…. But what really puts the prosecutor in the driver’s seat is the fact that he—because of mandatory minimums, sentencing guidelines … and simply his ability to shape whatever charges are brought—can effectively dictate the sentence by how he publicly describes the offense. For example, the prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines range of twenty years or more. Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.

The defense lawyer understands this fully, and so she recognizes that the best outcome for her client is likely to be an early plea bargain, while the prosecutor is still willing to accept a plea to a relatively low-level offense. Indeed, in 2012, the average sentence for federal narcotics defendants who entered into any kind of plea bargain was five years and four months, while the average sentence for defendants who went to trial was sixteen years.

The first paragraph of the Rakoff excerpt above mentions bail and pretrial detention, noting that pretrial detention often makes it difficult for defense attorneys to gather necessary information about their clients. Bail practices are related to guilty pleas in other ways: a number of empirical studies have found that defendants who are detained pretrial are both more likely to be convicted (including convictions at trial) and more likely to plead guilty. It appears to be the detention itself, and not other factors such as prior offenses or severity of the charges, that increases the likelihood of a guilty plea. See, e.g., Samuel Wiseman, Bail and Mass Incarceration , 53 Ga. L. Rev. 235, 250252 (2018) (citing and summarizing research). Critics have pointed out that money bail systems disproportionately impact poor people of color, who often must choose between an extended jail stay as they wait for trial or a quick guilty plea and the ensuing consequences of conviction. See, e.g., Jocelyn Simonson, Bail Nullification , 115 Mich. L. Rev. 585 (2017).
Paul Lewis Hayes, the defendant in the case above, was sentenced to life imprisonment for forging a check in the amount of $88.30. The life sentence was mandated by Kentucky’s Habitual Criminal Act, a statute akin to the “Three Strikes” laws you may have heard discussed today. These laws provide for severe sentences when a defendant is convicted of a third (or greater) offense. The Kentucky law made a life sentence “mandatory” upon a third felony conviction, but it is important to identify the discretion – the enforcement choices – that led to Hayes’s life sentence. The prosecutor could choose whether to seek an indictment under the Habitual Criminal Act, and he initially did not do so. The “mandatory” life sentence was thus a product of the prosecutor’s choice, after Hayes refused to plead, to apply the Habitual Criminal Act.
At least one of Hayes’s prior convictions was itself the product of a guilty plea obtained when Hayes was 17 years old; in that case Hayes had denied participating in the crime but agreed to plead guilty anyway. For more background on Bordenkircher v. Hayes and a discussion of the case’s contribution to mass incarceration, see William J. Stuntz, Bordenkircher v. Hayes: Plea Bargaining and the Decline of the Rule of Law , in Criminal Procedure Stories (Carol Steiker ed., 2006). Stuntz gives some background on the racial dynamics of the case – Hayes was a Black man with prior convictions, and Kentucky in 1973 was “not a racially enlightened place.” Id. at 355. At the federal appeals court, Judge Wade McCree Jr., the first Black judge on the Sixth Circuit Court of Appeals, agreed with Hayes that the prosecutor’s choice to pursue a life sentence was “vindictive” and unconstitutional. Of course, the Supreme Court later reversed Judge McCree. More broadly, Stuntz argues that Bordenkircher v. Hayes helped contribute to mass incarceration: Even if Hayes’s lawyers had made precisely the right arguments at precisely the right times, and even if the Court had heeded those arguments, ours would still be a society where criminal punishment is a massive industry, of a size and severity unknown anywhere else in the democratic world. But the Court’s decision does bear some responsibility for the punitive turn America’s criminal justice system has taken—for its harshness, for the sheer magnitude of our two-million-plus inmate population. Also for the inexorable rise of plea bargaining, now the means by which nearly nineteen of every twenty convicted felons reach that status. … As the prisoners have multiplied, laws have multiplied as well, adding more criminal prohibitions and harsher sentences to criminal codes. As those bodies of law have grown in size, they have shrunk in consequence. In the criminal justice system, the men and women who work in district attorneys’ offices increasingly rule. The law no longer does. Anyone who wants to understand how that happened would do well to start by studying an obscure case from the 1970s in Lexington, Kentucky.

Stuntz, Plea Bargaining and the Decline of the Rule of Law , at 379.

Appellate Adjudication: Ways to Revise Criminalization, Enforcement, or Conviction Decisions

So far, this chapter has focused on adjudication decisions at the trial court level: the decision of a jury or a judge serving as fact-finder in a bench trial to convict a defendant, or the decision of a defendant to plead guilty and waive the right to a trial. But none of the judicial opinions you’ve read thus far come from trial courts; almost every case in this book comes from an appellate court. It may be a good time to think again about the role of appellate opinions in this book. As explained in Chapter One, most criminal cases don’t go to an appellate court or produce an appellate opinion, but appellate court opinions make good teaching tools and are standard fare for law school courses. This book does not depart from the tradition of teaching law primarily through appellate opinions, but it does seek to put those opinions in context. Again, you should think of the cases in this book as case studies. They are not assigned to you because the words of appellate courts are the only or most important sources of criminal law; rather, appellate cases are selected and included here because each provides a concrete illustration of various aspects of criminal law in practice. Cases give us stories and real-world examples through which to learn criminal law—a concrete set of facts, a particular statute, specific pieces of evidence, and the actual decisions of various actors within the criminal legal system. Moreover, appellate opinions, more than many other important legal documents, often make explicit the arguments that lawyers have made on behalf of their clients. Making arguments about statutes, or about evidence, or about constitutional principles, is one of the key skills that you need to learn, and close analysis of appellate opinions can help you develop this skill.

There is an additional reason to read appellate cases: appellate adjudication—in that fraction of criminal cases where it does take place—is an important part of the legal process, in part because it gives appellate courts a chance to revise or reverse earlier criminalization, enforcement, or adjudication decisions. The cases in this book provide you with many different types of appellate arguments, but a few standard types of argument will recur often, such as sufficiency of evidence claims (as you saw in Owens ), challenges to jury instructions (as in State v. O’Brien , discussed in the notes after Winship , above), constitutional challenges (as you have seen in Winship , City of Chicago v. Morales , Lambert v. California , and other cases); and statutory interpretation arguments (as you saw in Morissette in Chapter Two). Because crimes are defined by statute, statutory interpretation is an important skill in criminal law. The next case offers a much deeper look at statutory interpretation, and also illustrates the power of appellate courts in the criminal process.

[The key statutory provision is quoted at the beginning of the opinion below.]

John L. YATES, Petitioner

UNITED STATES

Supreme Court of the United States 574 U.S. 528

Decided Feb. 25, 2015

Justice GINSBURG announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, Justice BREYER, and Justice SOTOMAYOR join.

John Yates, a commercial fisherman, caught undersized red grouper in federal waters in the Gulf of Mexico. To prevent federal authorities from confirming that he had harvested undersized fish, Yates ordered a crew member to toss the suspect catch into the sea. For this offense, he was charged with, and convicted of, violating 18 U.S.C. § 1519, which provides:

“Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.”

… Yates … maintains that fish are not trapped within the term “tangible object,” as that term is used in § 1519.

Section 1519 was enacted as part of the Sarbanes–Oxley Act of 2002, legislation designed to protect investors and restore trust in financial markets following the collapse of Enron Corporation. A fish is no doubt an object that is tangible; fish can be seen, caught, and handled, and a catch, as this case illustrates, is vulnerable to destruction. But it would cut § 1519 loose from its financial-fraud mooring to hold that it encompasses any and all objects, whatever their size or significance, destroyed with obstructive intent. Mindful that in Sarbanes–Oxley, Congress trained its attention on corporate and accounting deception and coverups, we conclude that a matching construction of § 1519 is in order: A tangible object captured by § 1519, we hold, must be one used to record or preserve information.

On August 23, 2007, the Miss Katie, a commercial fishing boat, was six days into an expedition in the Gulf of Mexico. … Officer John Jones of the Florida Fish and Wildlife Conservation Commission decided to board the Miss Katie to check on the vessel’s compliance with fishing rules. … Because he had been deputized as a federal agent…, Officer Jones had authority to enforce federal, as well as state, fishing laws.

Upon boarding the Miss Katie, Officer Jones noticed three red grouper that appeared to be undersized hanging from a hook on the deck. At the time, federal conservation regulations required immediate release of red grouper less than 20 inches long. Violation of those regulations is a civil offense punishable by a fine or fishing license suspension.

Suspecting that other undersized fish might be on board, Officer Jones proceeded to inspect the ship’s catch…. Officer Jones ultimately determined that 72 fish fell short of the 20–inch mark. A fellow officer recorded the length of each of the undersized fish on a catch measurement verification form. With few exceptions, the measured fish were between 19 and 20 inches; … none were less than 18.75 inches. After separating the fish measuring below 20 inches from the rest of the catch by placing them in wooden crates, Officer Jones directed Yates to leave the fish … in the crates until the Miss Katie returned to port. Before departing, Officer Jones issued Yates a citation for possession of undersized fish.

Four days later, after the Miss Katie had docked… Officer Jones measured the fish contained in the wooden crates. This time, however, the measured fish, although still less than 20 inches, slightly exceeded the lengths recorded on board…. Under questioning, one of the crew members admitted that, at Yates’s direction, he had thrown overboard the fish Officer Jones had measured at sea, and that he and Yates had replaced the tossed grouper with fish from the rest of the catch.

For reasons not disclosed in the record before us, more than 32 months passed before criminal charges were lodged against Yates. On May 5, 2010, he was indicted… By the time of the indictment, the minimum legal length for Gulf red grouper had been lowered from 20 inches to 18 inches. No measured fish in Yates’s catch fell below that limit. The record does not reveal what civil penalty, if any, Yates received for his possession of fish undersized under the 2007 regulation.

Yates was tried on the criminal charges in August 2011 [and convicted. The court] sentenced Yates to imprisonment for 30 days, followed by supervised release for three years. For life, he will bear the stigma of having a federal felony conviction….

The Sarbanes–Oxley Act, all agree, was prompted by the exposure of Enron’s massive accounting fraud and revelations that the company’s outside auditor, Arthur Andersen LLP, had systematically destroyed potentially incriminating documents. The Government acknowledges that § 1519 was intended to prohibit, in particular, corporate document-shredding to hide evidence of financial wrongdoing….

In the Government’s view, § 1519 extends beyond the principal evil motivating its passage. The words of § 1519, the Government argues, support reading the provision as a general ban on the spoliation of evidence, covering all physical items that might be relevant to any matter under federal investigation.

Yates urges a contextual reading of § 1519…. Section 1519, he maintains, targets not all manner of evidence, but records, documents, and tangible objects used to preserve them, e.g., computers, servers, and other media on which information is stored….

The ordinary meaning of an “object” that is “tangible,” as stated in dictionary definitions, is “a discrete … thing,” Webster’s Third New International Dictionary 1555 (2002), that “possess[es] physical form,” Black’s Law Dictionary 1683 (10th ed. 2014). From this premise, the Government concludes that “tangible object,” as that term appears in § 1519, covers the waterfront, including fish from the sea.

Whether a statutory term is unambiguous, however, does not turn solely on dictionary definitions of its component words. Rather, “[t]he plainness or ambiguity of statutory language is determined [not only] by reference to the language itself, [but as well by] the specific context in which that language is used, and the broader context of the statute as a whole.” … Ordinarily, a word’s usage accords with its dictionary definition. In law as in life, however, the same words, placed in different contexts, sometimes mean different things.

We have several times affirmed that identical language may convey varying content when used in different statutes, sometimes even in different provisions of the same statute…. “Where the subject matter to which the words refer is not the same in the several places where [the words] are used, or the conditions are different, or the scope of the legislative power exercised in one case is broader than that exercised in another, the meaning well may vary to meet the purposes of the law, to be arrived at by a consideration of the language in which those purposes are expressed, and of the circumstances under which the language was employed.” In short, although dictionary definitions of the words “tangible” and “object” bear consideration, they are not dispositive of the meaning of “tangible object” in § 1519.

Supporting a reading of “tangible object,” as used in § 1519, in accord with dictionary definitions, the Government points to the appearance of that term in Federal Rule of Criminal Procedure 16. That Rule requires the prosecution to grant a defendant’s request to inspect “tangible objects” within the Government’s control that have utility for the defense. Rule 16’s reference to “tangible objects” has been interpreted to include any physical evidence. Rule 16 is a discovery rule designed to protect defendants by compelling the prosecution to turn over to the defense evidence material to the charges at issue. In that context, a comprehensive construction of “tangible objects” is fitting. In contrast, § 1519 is a penal provision that refers to “tangible object” not in relation to a request for information relevant to a specific court proceeding, but rather in relation to federal investigations or proceedings of every kind, including those not yet begun. See Commissioner v. National Carbide Corp., 167 F.2d 304, 306 (2 nd Cir.1948) (Hand, J.) (“words are chameleons, which reflect the color of their environment”). Just as the context of Rule 16 supports giving “tangible object” a meaning as broad as its dictionary definition, the context of § 1519 tugs strongly in favor of a narrower reading.

Familiar interpretive guides aid our construction of the words “tangible object” as they appear in § 1519.

We note first § 1519’s caption: “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy.” That heading conveys no suggestion that the section prohibits spoliation of any and all physical evidence, however remote from records. …[T]he title of the section of the Sarbanes–Oxley Act in which § 1519 was placed refers to “Criminal penalties for altering documents,” [and] the only other provision [in that section] is titled “Destruction of corporate audit records”…. While these headings are not commanding, they supply cues that Congress did not intend “tangible object” in § 1519 to sweep within its reach physical objects of every kind, including things no one would describe as records, documents, or devices closely associated with them. If Congress indeed meant to make § 1519 an all-encompassing ban on the spoliation of evidence, as the dissent believes Congress did, one would have expected a clearer indication of that intent.

… The contemporaneous passage of § 1512(c)(1), [in another] section of the Sarbanes–Oxley Act … is also instructive. Section 1512(c)(1) provides: “Whoever corruptly … alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding … shall be fined under this title or imprisoned not more than 20 years, or both.” … The Government argues, and Yates does not dispute, that § 1512(c)(1)’s reference to “other object” includes any and every physical object. But if §1519’s reference to “tangible object” already included all physical objects, as the Government and the dissent contend, then Congress had no reason to enact § 1512(c)(1): Virtually any act that would violate § 1512(c)(1) no doubt would violate § 1519 as well. See Marx v. General Revenue Corp . (2013) (“[T]he canon against surplusage is strongest when an interpretation would render superfluous another part of the same statutory scheme.”).

… The words immediately surrounding “tangible object” in § 1519—“falsifies, or makes a false entry in any record [or] document”—also cabin the contextual meaning of that term. As explained in Gustafson v. Alloyd Co. (1995), we rely on the principle of noscitur a sociis— a word is known by the company it keeps—to “avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving unintended breadth to the Acts of Congress.” In Gustafson, we interpreted the word “communication” in § 2(10) of the Securities Act of 1933 to refer to a public communication, rather than any communication, because the word appeared in a list with other words, notably “notice, circular, [and] advertisement,” making it “apparent that the list refer[red] to documents of wide dissemination.” And we did so even though the list began with the word “any.”

The noscitur a sociis canon operates in a similar manner here. “Tangible object” is the last in a list of terms that begins “any record [or] document.” The term is therefore appropriately read to refer, not to any tangible object, but specifically to the subset of tangible objects involving records and documents, i.e., objects used to record or preserve information….

This moderate interpretation of “tangible object” accords with the list of actions § 1519 proscribes. The section applies to anyone who “alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the requisite obstructive intent. (Emphasis added.) The last two verbs, “falsif[y]” and “mak[e] a false entry in,” typically take as grammatical objects records, documents, or things used to record or preserve information, such as logbooks or hard drives. See, e.g., Black’s Law Dictionary 720 (10th ed. 2014) (defining “falsify” as “[t]o make deceptive; to counterfeit, forge, or misrepresent; esp., to tamper with (a document, record, etc.)”). It would be unnatural, for example, to describe a killer’s act of wiping his fingerprints from a gun as “falsifying” the murder weapon. But it would not be strange to refer to “falsifying” data stored on a hard drive as simply “falsifying” a hard drive….

A canon related to noscitur a sociis, ejusdem generis, counsels: “[W] here general words follow specific words in a statutory enumeration, the general words are [usually] construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” … Had Congress intended “tangible object” in § 1519 to be interpreted so generically as to capture physical objects as dissimilar as documents and fish, Congress would have had no reason to refer specifically to “record” or “document.” The Government’s unbounded reading of “tangible object” would render those words misleading surplusage.

Having used traditional tools of statutory interpretation to examine markers of congressional intent within the Sarbanes–Oxley Act and § 1519 itself, we are persuaded that an aggressive interpretation of “tangible object” must be rejected. It is highly improbable that Congress would have buried a general spoliation statute covering objects of any and every kind in a provision targeting fraud in financial recordkeeping.

The Government argues, however, that our inquiry would be incomplete if we failed to consider the origins of the phrase “record, document, or tangible object.” Congress drew that phrase, the Government says, from a 1962 Model Penal Code (MPC) provision, and reform proposals based on that provision. The MPC provision and proposals prompted by it would have imposed liability on anyone who “alters, destroys, mutilates, conceals, or removes a record, document or thing.” Those proscriptions were understood to refer to all physical evidence. See MPC § 241.7, Comment 3 (1980)… Accordingly, the Government reasons, and the dissent exuberantly agrees, Congress must have intended § 1519 to apply to the universe of physical evidence.

The inference is unwarranted. True, the 1962 MPC provision prohibited tampering with any kind of physical evidence. But unlike § 1519, the MPC provision did not prohibit actions that specifically relate to records, documents, and objects used to record or preserve information. The MPC provision also ranked the offense as a misdemeanor and limited liability to instances in which the actor “believ[es] that an official proceeding or investigation is pending or about to be instituted.” Yates would have had scant reason to anticipate a felony prosecution, and certainly not one instituted at a time when even the smallest of the fish he caught came within the legal limit. A proposed federal offense in line with the MPC provision, advanced by a federal commission in 1971, was similarly qualified.

Section 1519 conspicuously lacks the limits built into the MPC provision and the federal proposal. It describes not a misdemeanor, but a felony punishable by up to 20 years in prison. And the section covers conduct intended to impede any federal investigation or proceeding, including one not even on the verge of commencement. Given these significant differences, the meaning of “record, document, or thing” in the MPC provision and a kindred proposal is not a reliable indicator of the meaning Congress assigned to “record, document, or tangible object” in § 1519. The MPC provision, in short, tells us neither “what Congress wrote [nor] what Congress wanted,” concerning Yates’s small fish as the subject of a federal felony prosecution.

Finally, if our recourse to traditional tools of statutory construction leaves any doubt about the meaning of “tangible object,” as that term is used in § 1519, we would invoke the rule that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” That interpretative principle is relevant here, where the Government urges a reading of § 1519 that exposes individuals to 20–year prison sentences for tampering with any physical object that might have evidentiary value in any federal investigation into any offense, no matter whether the investigation is pending or merely contemplated, or whether the offense subject to investigation is criminal or civil. See Liparota v. United States (1985) (“Application of the rule of lenity ensures that criminal statutes will provide fair warning concerning conduct rendered illegal and strikes the appropriate balance between the legislature, the prosecutor, and the court in defining criminal liability.”). In determining the meaning of “tangible object” in § 1519, “it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.”

For the reasons stated, we resist reading § 1519 expansively to create a coverall spoliation of evidence statute, advisable as such a measure might be. Leaving that important decision to Congress, we hold that a “tangible object” within § 1519’s compass is one used to record or preserve information. The judgment of the U.S. Court of Appeals for the Eleventh Circuit is therefore reversed, and the case is remanded for further proceedings.

It is so ordered.

[Opinion of Justice ALITO, concurring in the judgment, omitted.]

Justice KAGAN, with whom Justice SCALIA, Justice KENNEDY, and Justice THOMAS join, dissenting.

… This case raises the question whether the term “tangible object” means the same thing in § 1519 as it means in everyday language—any object capable of being touched. The answer should be easy: Yes. The term “tangible object” is broad, but clear…. I would apply the statute that Congress enacted and affirm the judgment below.

While the plurality starts its analysis with § 1519’s heading, I would begin with § 1519’s text. When Congress has not supplied a definition, we generally give a statutory term its ordinary meaning. As the plurality must acknowledge, the ordinary meaning of “tangible object” is “a discrete thing that possesses physical form.” A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960). So the ordinary meaning of the term “tangible object” in § 1519, as no one here disputes, covers fish (including too-small red grouper).

That interpretation accords with endless uses of the term in statute and rule books…. Dozens of federal laws and rules of procedure (and hundreds of state enactments) include the term “tangible object” or its first cousin “tangible thing”—some in association with documents, others not….

That is not necessarily the end of the matter; I agree with the plurality (really, who doesn’t?) that context matters in interpreting statutes. We do not “construe the meaning of statutory terms in a vacuum.” Rather, we interpret particular words “in their context and with a view to their place in the overall statutory scheme.” And sometimes that means, as the plurality says, that the dictionary definition of a disputed term cannot control. But this is not such an occasion, for here the text and its context point the same way. Stepping back from the words “tangible object” provides only further evidence that Congress said what it meant and meant what it said.

Begin with the way the surrounding words in § 1519 reinforce the breadth of the term at issue. Section 1519 refers to “any” tangible object, thus indicating (in line with that word’s plain meaning) a tangible object “of whatever kind.” Webster’s Third New International Dictionary 97 (2002). This Court has time and again recognized that “any” has “an expansive meaning,” bringing within a statute’s reach all types of the item (here, “tangible object”) to which the law refers. And the adjacent laundry list of verbs in § 1519 (“alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry”) further shows that Congress wrote a statute with a wide scope. Those words are supposed to ensure—just as “tangible object” is meant to—that § 1519 covers the whole world of evidence-tampering, in all its prodigious variety….

Still more, “tangible object” appears as part of a three-noun phrase (including also “records” and “documents”) common to evidence-tampering laws and always understood to embrace things of all kinds. The Model Penal Code’s evidence-tampering section, drafted more than 50 years ago, similarly prohibits a person from “alter[ing], destroy[ing], conceal[ing] or remov[ing] any record, document or thing ” in an effort to thwart an official investigation or proceeding. The Code’s commentary emphasizes that the offense described in that provision is “not limited to conduct that [alters] a written instrument.” Rather, the language extends to “any physical object.” Consistent with that statement—and, of course, with ordinary meaning—courts in the more than 15 States that have laws based on the Model Code’s tampering provision apply them to all tangible objects, including drugs, guns, vehicles and … yes, animals.

… And legislative history, for those who care about it, puts extra icing on a cake already frosted. Section 1519, as the plurality notes, was enacted after the Enron Corporation’s collapse, as part of the Sarbanes–Oxley Act of 2002. But the provision began its life in a separate bill, and the drafters emphasized that Enron was “only a case study exposing the shortcomings in our current laws” relating to both “corporate and criminal” fraud. The primary “loophole[ ]” Congress identified [in the law prior to Sarbanes-Oxley was that it] prohibited a person from inducing another to destroy “record[s], document[s], or other object[s]”—of every type—but not from doing so himself. Congress … enacted § 1519 to close that yawning gap…. And so § 1519 was written to do exactly that—“to apply broadly to any acts to destroy or fabricate physical evidence,” as long as performed with the requisite intent. “When a person destroys evidence,” the drafters explained, “overly technical legal distinctions should neither hinder nor prevent prosecution.” Ah well: Congress, meet today’s Court, which here invents just such a distinction with just such an effect. …

As Congress recognized in using a broad term, giving immunity to those who destroy non-documentary evidence has no sensible basis in penal policy. A person who hides a murder victim’s body is no less culpable than one who burns the victim’s diary. A fisherman, like John Yates, who dumps undersized fish to avoid a fine is no less blameworthy than one who shreds his vessel’s catch log for the same reason. Congress thus treated both offenders in the same way. It understood, in enacting § 1519, that destroying evidence is destroying evidence, whether or not that evidence takes documentary form.

The plurality searches far and wide for anything— anything —to support its interpretation of § 1519. But its fishing expedition comes up empty.

The plurality’s analysis starts with § 1519’s title: “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy.” That’s already a sign something is amiss. I know of no other case in which we have begun our interpretation of a statute with the title, or relied on a title to override the law’s clear terms. Instead, we have followed “the wise rule that the title of a statute and the heading of a section cannot limit the plain meaning of the text.” …The reason for that “wise rule” is easy to see: A title is, almost necessarily, an abridgment.…

The plurality’s [reliance] on the surplusage canon[] at least invokes a known tool of statutory construction—but it too comes to nothing. Says the plurality: If read naturally, § 1519 “would render superfluous” § 1512(c)(1) which Congress passed “as part of the same Act.” But that is not so: Although the two provisions significantly overlap, each applies to conduct the other does not. … Overlap—even significant overlap—abounds in the criminal law. This Court has never thought that of such ordinary stuff surplusage is made. …

… Section 1512(c)(1) criminalizes the destruction of any “record, document, or other object”; § 1519 of any “record, document, or tangible object.” On the plurality’s view, one “object” is really an object, whereas the other is only an object that preserves or stores information. But “[t]he normal rule of statutory construction assumes that identical words used in different parts of the same act,” passed at the same time, “are intended to have the same meaning.” And that is especially true when the different provisions pertain to the same subject. The plurality doesn’t—really, can’t—explain why it instead interprets the same words used in two provisions of the same Act addressing the same basic problem to mean fundamentally different things.

Getting nowhere with surplusage, the plurality switches canons, hoping that noscitur a sociis and ejusdem generis will save it. The first of those related canons advises that words grouped in a list be given similar meanings. The second counsels that a general term following specific words embraces only things of a similar kind. According to the plurality, those Latin maxims change the English meaning of “tangible object” to only things, like records and documents, “used to record or preserve information.” But understood as this Court always has, the canons have no such transformative effect on the workaday language Congress chose.

As an initial matter, this Court uses noscitur a sociis and ejusdem generis to resolve ambiguity, not create it. Those principles are “useful rule[s] of construction where words are of obscure or doubtful meaning.” But when words have a clear definition, and all other contextual clues support that meaning, the canons cannot properly defeat Congress’s decision to draft broad legislation.

Anyway, assigning “tangible object” its ordinary meaning comports with noscitur a sociis and ejusdem generis when applied, as they should be, with attention to § 1519’s subject and purpose. Those canons require identifying a common trait that links all the words in a statutory phrase. In responding to that demand, the plurality characterizes records and documents as things that preserve information—and so they are. But just as much, they are things that provide information, and thus potentially serve as evidence relevant to matters under review. And in a statute pertaining to obstruction of federal investigations, that evidentiary function comes to the fore. The destruction of records and documents prevents law enforcement agents from gathering facts relevant to official inquiries. And so too does the destruction of tangible objects—of whatever kind. Whether the item is a fisherman’s ledger or an undersized fish, throwing it overboard has the identical effect on the administration of justice. For purposes of § 1519, records, documents, and (all) tangible objects are therefore alike….

Finally, when all else fails, the plurality invokes the rule of lenity. But even in its most robust form, that rule only kicks in when, “after all legitimate tools of interpretation have been exhausted, ‘a reasonable doubt persists’ regarding whether Congress has made the defendant’s conduct a federal crime.” No such doubt lingers here. The plurality points to the breadth of § 1519 as though breadth were equivalent to ambiguity. It is not. Section 1519 is very broad. It is also very clear. Every traditional tool of statutory interpretation points in the same direction, toward “object” meaning object. Lenity offers no proper refuge from that straightforward (even though capacious) construction.

If none of the traditional tools of statutory interpretation can produce today’s result, then what accounts for it? The plurality offers a clue when it emphasizes the disproportionate penalties § 1519 imposes if the law is read broadly. Section 1519, the plurality objects, would then “expose[ ] individuals to 20–year prison sentences for tampering with any physical object that might have evidentiary value in any federal investigation into any offense.” That brings to the surface the real issue: overcriminalization and excessive punishment in the U.S. Code.

Now as to this statute, I think the plurality somewhat—though only somewhat—exaggerates the matter. The plurality omits from its description of § 1519 the requirement that a person act “knowingly” and with “the intent to impede, obstruct, or influence” federal law enforcement. And in highlighting § 1519’s maximum penalty, the plurality glosses over the absence of any prescribed minimum. (Let’s not forget that Yates’s sentence was not 20 years, but 30 days.) Congress presumably enacts laws with high maximums and no minimums when it thinks the prohibited conduct may run the gamut from major to minor. That is assuredly true of acts obstructing justice. Compare this case with the following, all of which properly come within, but now fall outside, § 1519: United States v. McRae (5 th Cir. 2012) (burning human body to thwart murder investigation); United States v. Maury (3 rd Cir. 2012) (altering cement mixer to impede inquiry into amputation of employee’s fingers); United States v. Natal (D.Conn., Aug. 7, 2014) (repainting van to cover up evidence of fatal arson). Most district judges, as Congress knows, will recognize differences between such cases and prosecutions like this one, and will try to make the punishment fit the crime. Still and all, I tend to think, for the reasons the plurality gives, that § 1519 is a bad law—too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I’d go further: In those ways, § 1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.

But whatever the wisdom or folly of § 1519, this Court does not get to rewrite the law. “Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.” If judges disagree with Congress’s choice, we are perfectly entitled to say so—in lectures, in law review articles, and even in dicta. But we are not entitled to replace the statute Congress enacted with an alternative of our own design.

I respectfully dissent.

Check Your Understanding (4-4)

Notes and questions on Yates

The Supreme Court’s opinion focuses on 18 U.S.C. § 1519, but Yates was also charged and convicted with a violation of another federal statute, 18 U.S.C. § 2232(a), which criminalizes destruction of property to prevent a seizure and authorizes a maximum penalty of five years. The § 2232(a) conviction was not part of the appeal to the Supreme Court. Why might enforcement officials have chosen to charge both offenses? Why might Yates have appealed only the § 1519 conviction?
“A fish is no doubt an object that is tangible,” Justice Ginsburg writes for the plurality, but the Court concludes that a fish is not “[a] tangible object captured by § 1519” (emphasis added). That is, “tangible object” within the statute may not have the same meaning that the phrase would have outside of the specific statutory context. Or, as put by Judge Learned Hand and quoted by the Yates plurality, “words are chameleons, which reflect the color of their environment.”
Because words are chameleons, they need to be interpreted. We first considered statutory interpretation when we were considering criminalization decisions in Chapter Two. Recall the Supreme Court’s analysis of the federal knowing conversion statute in Morissette v. United States . Through statutory interpretation, appellate courts participate in criminalization decisions (because they decide what types of conduct are covered by a given statute), enforcement decisions (because they decide whether a statute applies to a particular defendant), and adjudication decisions (because the reviewing court has the power to reverse a conviction on the ground that the initial decision to convict was based on an incorrect interpretation of the statute). But notice: appellate courts are not the only actors that engage in statutory interpretation. Long before this case reached the Supreme Court, a federal prosecutor had to decide that the Sarbanes-Oxley Act, which was indeed passed to address corporate fraud after the collapse of Enron, was also applicable to a fisherman who discarded undersized fish. That is, statutory interpretation is often part of an enforcement decision . When you consider whether a given statute might apply to a particular defendant’s conduct, you should think about the different ways the statute might be interpreted by enforcement officials, defense attorneys, and (eventually) a court . How might a prosecutor interpret it to apply to the defendant’s conduct? Is there a different plausible interpretation that a defense lawyer might urge, one that would make the statute inapplicable to the defendant?
Both the plurality and dissenting opinions refer to “traditional tools of statutory construction.” What are these tools of construction? You should identify the various principles or canons applied throughout the case, and try to be sure you understand each one. These “tools” will be hammers, screwdrivers, and wrenches that you may need as you analyze a statute and construct your own arguments about what the statute means. Among the tools to consider: noscitur a sociis , ejusdem generis , ordinary meaning, surplusage, and legislative history.
Justice Kagan says (twice! In Part I, and again in Part II of her dissent) that the plurality “starts” or “begins” its analysis with the title of § 1519—with the brief title of the section of the statute. To Kagan, this initial focus on the title is a mistake, because statutory interpretation should begin with the text of the operative portion of the statute. But look again at the plurality opinion. The discussion of the title, or “caption,” of 1519 comes in Part II.B of the plurality opinion, after the plurality has discussed the “ordinary meaning” of the phrase “tangible object” in Part II.A. Did the plurality reorganize its opinion after seeing a preliminary draft of Justice Kagan’s dissent? Or did Justice Kagan just not notice that the plurality did, in fact, discuss the plain language of § 1519 before discussing the title or caption? It’s difficult to know, but either way, this contradiction should remind us that judicial opinions are the work of human beings, crafted to persuade their readers of the rightness of their conclusions. Keep this in mind as you read appellate opinions. All judges, even the most brilliant judges in the country, are human beings, and the proclamations of appellate courts should not be mistaken for the mechanical product of an impersonal, extra-human adjudicator.
Consider Part III of Justice Kagan’s dissent carefully. She says that she agrees with the plurality that § 1519 is “a bad law,” and “an emblem of a deeper pathology within the federal criminal code.” What is this pathology, and why doesn’t Justice Kagan think the Court can do anything about it? (But also, compare Part III of Kagan’s dissent to the last paragraph of Part I. In Part I of the dissent, does Kagan suggest that § 1519 is a bad law, or a necessary and wise one?)

Key Decisions and Key Arguments

You have now looked closely at three types of decisions that are important to criminal law: decisions to criminalize conduct, decisions to enforce a statute against a particular person, and decisions to convict (or acquit) a defendant at the adjudication stage. You should be able to see all of these types of decisions at work in the cases you read in the remainder of the book. Now that you know the key types of decisions that public officials must make to convict someone of a crime, it may be useful to begin thinking explicitly about types of arguments that lawyers make to try to influence those decisions.

Start with the prosecutor, who is both a public official empowered to make enforcement decisions and also a lawyer who must make arguments to courts. At the most basic level, the prosecutor must argue that the evidence presented establishes proof of each element of any offense charged. Of course, to make this argument, the prosecutor must have an interpretation of the relevant statute and an argument about what elements are included within the statute. Sometimes, the elements will be clear and uncontested; at other times, the prosecution may advance a more novel or controversial reading of a statute.

Now consider defense arguments. So far, you have seen a few cases involving what might be called “failure of proof” arguments, and also cases involving constitutional challenges. A failure of proof argument is a claim that the prosecution has not met its burden to prove each element of the crime beyond a reasonable doubt. A failure of proof argument could focus on the sufficiency of the evidence, on the correct interpretation of the statute, or both. In Owens in this chapter, the defense argued that the drunk driving statute, properly interpreted, required proof of driving on public roads, and then the defense argued that the prosecution had not introduced sufficient evidence that the defendant had actually driven on a public road while intoxicated. Failure of proof arguments sometimes are framed as challenges to jury instructions, as in Morissette v. United States . The defense argued that the federal knowing conversion statute, properly interpreted, required proof that the defendant knew he was taking property that belonged to someone else. The defense then argued that since Morissette’s jury had not been instructed properly about the mental state elements of the offense, the jury’s decision to convict was not legally sound – the jury had not determined that the prosecution had proven all relevant elements (since the jury did not know all the relevant elements).

You have also read several cases in which the defense does not focus on the elements of the charged offense, but instead makes an argument that the criminalization, enforcement, or adjudication decisions made in his case violate some aspect of the federal constitution. For example, in Lambert v. California , the defense argued that to criminalize inaction of malum prohibitum conduct (failure to register), without requiring knowledge of a duty to act, was a violation of the Due Process Clause of the Fourteenth Amendment. In City of Chicago v. Morales , the defendants challenged both criminalization and enforcement decisions, arguing that the city of Chicago had enacted a statute that was so broad that it gave enforcement officials unconstitutionally wide discretion. In United States v. Armstrong , the defense argued that prosecutors had selected Armstrong for prosecution on the basis of his race, in violation of the Equal Protection Clause of the federal constitution. And in Winship in this chapter, the defense argued that the New York state juvenile court had reached its adjudication decision in violation of the Due Process Clause, since it had used a preponderance of the evidence standard rather than proof beyond a reasonable doubt.

Of course, each side needs to respond to the arguments of the other side. Once the defense raises constitutional arguments, the prosecution will need to respond to them.

In the next chapters, you will encounter another type of defense argument: the affirmative defense. Criminal law includes some doctrines, such as self-defense and insanity, that permit a defendant to concede that evidence establishes the elements of the charged offense, but argue against conviction nonetheless. These doctrines are called affirmative defenses, and we’ll explore them in more detail in later chapters.

For now, your goal should be to begin thinking about the types of arguments lawyers make to influence legal decision-makers – including prosecutors, trial courts, juries, and appellate courts. Think about the types of arguments, and how different arguments might be combined. Examples of defense arguments from the cases you’ve read:

Given a correct interpretation of the relevant statute, the jury was not properly instructed and thus the prosecution cannot show that it met its burden of proof. ( Morissette )
Given a correct interpretation of the relevant statute, the evidence presented to the fact-finder was insufficient to prove all elements beyond a reasonable doubt. ( Owens ; Yates )
The enforcement decisions of the prosecutor violated a constitutional right. ( Cissell ; Armstrong ; Bordenkircher v. Hayes ) (But note that the defense claim was not successful in any of these particular cases.)

As a lawyer, you’ll need to make arguments on behalf of your client – and also, anticipate the arguments likely to be made by the other side. To develop this skill, it’s important to become familiar with typical categories of argument.

End of Chapter Review

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An assumption or theory.

During a criminal trial, a hypothesis is a theory set forth by either the prosecution or the defense for the purpose of explaining the facts in evidence. It also serves to set up a ground for an inference of guilt or innocence, or a showing of the most probable motive for a criminal offense.

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The Legal Quotient

In Legal Matters, Legal Quotient Matters

Hypothesis: Meaning, Significance and Types

Adv Hemant More

Research is the careful and systematic investigation and consideration of study regarding a particular concern or research problem using scientific methods. Research can also be considered as the process of discovering new knowledge. This knowledge can be either the development of new concepts or the advancement of existing knowledge and theories, leading to a new understanding that was not previously known. According to the American sociologist Earl Robert Babbie, “research is a systematic inquiry to describe, explain, predict, and control the observed phenomenon. It involves inductive and deductive methods.” Inductive methods analyze an observed event, while deductive methods verify the observed event. Inductive approaches are associated with qualitative research, and deductive methods are more commonly associated with quantitative analysis. While research can be carried out by anyone and in any field, most research is usually done to broaden knowledge in the physical, biological, and social worlds. In this article we shall study important step in research i.e. hypothesis.

The phrase ‘systematic investigation’ represents how research is normally conducted – a hypothesis is formed, appropriate research methods are designed, data is collected and analysed, and research results are summarised into one or more ‘research conclusions’. These research conclusions are then shared with the rest of the scientific community to add to the existing knowledge and serve as evidence to form additional questions that can be investigated. It is this cyclical process that enables scientific research to make continuous progress over the years; the true purpose of research.

Objectives of Research

To generate new knowledge.
To gain familiarity or to develop a new insight into some phenomenon.
To investigate some existing situation or problem.
To construct or create a new procedure or system.
To explore and analyze more general issues.
To investigate some existing situations or problems.
To test a hypothesis or theory.

Kinds of Research:

Based on the nature of research studies, it can be classified as follows:

Theoretical Research: “Applied research” tackles a “real world” question and attempts to solve a problem.
Applied Research: “Theoretical research” attempts to gather knowledge about a phenomenon or idea whose conclusions may not have any immediate real-world application.
Descriptive Research: Descriptive research expands knowledge of a research problem or phenomenon by describing it according to its characteristics and population. Descriptive research focuses on the ‘how’ and ‘what’, but not on the ‘why’.
Explanatory Research: Explanatory research is conducted to determine how variables interact, i.e. to identify cause-and-effect relationships. Explanatory research deals with the ‘why’ of research questions and is therefore often based on experiments.
Exploratory: Exploration research aims to gain a better understanding of the exact nature of the problem and not to provide a conclusive answer to the problem itself. This enables us to conduct more in-depth research later on.
Qualitative Research: Quantitative research seeks to understand the causal or correlational relationship between variables through testing hypotheses.
Quantitative Research: Qualitative research seeks to understand a phenomenon within a real-world context through the use of interviews and observation.
Conceptual Research: Conceptual research is a type of research that is generally related to abstract ideas or concepts. It doesn’t particularly involve any practical experimentation. However, this type of research typically involves observing and analyzing information already present on a given topic.
Empirical Research: Empirical research is basically a research that uses empirical evidence. Empirical evidence refers to evidence verifiable by observation or experience rather than theory or pure logic. Thus, empirical research is research studies with conclusions based on empirical evidence. Moreover, empirical research studies are observable and measurable.

Hypothesis:

Hypothesis is usually considered as an important mechanism in Research. Hypothesis is a tentative assumption made in order to test its logical or empirical consequences. If we go by the origin of the word, it is derived from the Greek word- ‘hypotithenai’ meaning ‘to put under’ or to ‘to suppose’. Etymologically hypothesis is made up of two words, “hypo” and “thesis” which means less than or less certain than a thesis. It is a presumptive statement of a proposition or a reasonable guess, based upon the available evidence, which the researcher seeks to prove through his study. A hypothesis will give a plausible explanation that will be tested. A hypothesis may seem contrary to the real situation. It may prove to be correct or incorrect. Hypothesis need to be clear and precise and capable of being tested. It is to be limited in scope and consistent with known or established facts and should be amenable to testing within the stipulated time. It needs to explain what it claims to explain and should have empirical reference.

Nature of Hypothesis:

It is conceptual in nature. Some kind of conceptual elements in the framework are involved in a hypothesis
It is a verbal statement in a declarative form. It is a verbal expression of ideas and concepts, it is not merely idea but in the verbal form, the idea is ready enough for empirical verification.
It has the empirical referent. A hypothesis contains some empirical referent. It indicates the tentative relationship between two or more variables.
It has a forward or future reference. A hypothesis is future oriented. It relates to the future verification not the past facts and information’s.
It is the pivot of a scientific research. All the research activities are designed for its verification.

Characteristics of Good Hypothesis:

A good hypothesis must possess the following main characteristics:

Clear Verbalization: A good hypothesis shows very clear verbalization. If the hypothesis is not clear and precise, the inferences drawn on its basis cannot be taken as reliable. Hypothesis should be stated as far as possible in most simple terms so that the same is easily understandable by all concerned. But one must remember that simplicity of hypothesis has nothing to do with its significance.
In No Conflict with the Laws of Nature: A good hypothesis does not conflict with any law of nature which is known to be true. Hypothesis should be consistent with most known facts i.e., it must be consistent with a substantial body of established facts. In other words, it should be one which judges accept as being the most likely. A good hypothesis maintains a very apparent distinction with what is called theory law, facts, assumption and postulate.
Testable: Hypothesis should be capable of being tested. A good hypothesis is in agreement with the observed facts. In a swamp of untestable hypotheses, many a time the research programs have bogged down. Some prior studies may be done by researchers in order to make the hypothesis a testable one. A hypothesis “is testable if other deductions can be made from it which, in turn, can be confirmed or disproved by observation.”
Limited Scope: Hypothesis should be limited in scope and must be specific. A researcher must remember that narrower hypotheses are generally more testable and he should develop such hypotheses. A good hypothesis takes into account the different types controls which are to be exercised for the purpose of verification. Narrow scope ensures that the methods of verification are under control of the investigator. It guarantees that available tools and techniques will be effectively used for the purpose of verification.
Well Defined Variables: A good hypothesis indicates clearly the role of different variables involved in the study. It should state the relationship between variables if it happens to be a relational hypothesis. A good hypothesis ensures that the sample is readily approachable. A good hypothesis permits of the application of deductive reasoning.
Amenable to Testing: Hypothesis should be amenable to testing within a reasonable time. One should not use even an excellent hypothesis, if the same cannot be tested in a reasonable time for one cannot spend a lifetime collecting data to test it.
Clear Objective: Hypothesis must explain the facts that gave rise to the need for explanation. This means that by using the hypothesis plus other known and accepted generalizations, one should be able to deduce the original problem condition. Thus hypothesis must actually explain what it claims to explain; it should have the empirical reference.

Importance of Hypothesis:

Development of Research Techniques: There are various types of social problems which are complex in nature. For this research is very difficult. We cannot cover it with a single technique but it requires many techniques. These techniques are due to hypothesis provided to a researcher. Hypothesis though an important part of research may not be required in all types of research. The research which are based on fact finding (historical or descriptive research) do not need hypothesis. Whenever possible, a hypothesis is recommended for all major studies to explain observed facts, conditions or behaviour and to serve as a guide in the research process.
Direction to Research: Hypothesis provides direction to the research. Hypothesis makes a research activity to the point and destination, Research without hypothesis is like a sailor in the sea without compass. So, research is to the point enquiry of problem due to the guidance of hypothesis. It directs a scientist to know about the problematic situation and its causes.
Separating Relevant from Irrelevant Observation: A Researcher during study will take the observations and facts which are accordance to the condition and situation.During study a researcher come across many factors but he confined himself to the selection of required facts through formulation of hypothesis. Hypothesis helps him in selection of relevant facts regarding to the problematic situation. Thus, hypothesis defines what is relevant and what is irrelevant. The hypothesis tells the researcher what he needs to do and find out in his study. Thus it prevents the review of irrelevant literature and provides a basis for selecting the sample and the research procedure to be used in the study.
Prevents Blind Research: It gives difference between scientific and unscientific, false and true research.Hypothesis provide the researcher with rational statements, consisting of elements expressed in a logical order of relationships which seeks to describe or to explain conditions or events, that have yet not been confirmed by facts. The hypothesis enables the researcher to relate logically known facts to intelligent guesses about unknown conditions. It is a guide to the thinking process and the process of discovery.
Provides Tentative Explanation: Hypothesis facilitates the extension of knowledge in an area. They provide tentative explanations of facts and phenomena, and can be tested and validated. It sensitizes the investigator to certain aspects of the situations which are relevant from the standpoint of the problem in hand.
Use of Scientific Techniques: Hypothesis provides the basis of proper Data Collection Relevant and correct information collected by a researcher is the main function of a good formulated hypothesis. Hypothesis uses the statistical techniques needed in the analysis of data, and the relationship between the variables to be tested. It also helps to delimit the study in scope so that it does not become broad or unwieldy.
Proper Conclusion: A proper formulated hypothesis may lead to a good reasonable, utilized and proper conclusion. If the hypothesis is better than the conclusions drawn by a researcher would be better for solution of a problem. Hypothesis provides the basis for reporting the conclusion of the study. It serves as a framework for drawing conclusions. In other word, we can say that it provides the outline for setting conclusions in a meaningful way.
Saves Time, Money & Energy: Hypothesis save time, money and energy of a researcher because it is a guide for him and help him in saving these basic things.

So, Hypothesis has a very important place in research although it occupies a very small place in the body of a thesis.

Separating a Hypothesis from a Prediction:

A hypothesis and prediction are guesses at their core, there are many differences between them. A hypothesis is an educated guess or even a testable prediction validated through research. It aims to analyze the gathered evidence and facts to define a relationship between variables and put forth a logical explanation behind the nature of events. While predictions are assumptions or expected outcomes made without any backing evidence. Hypothesis sticks to the scientific method rather than pure guesswork.

Types of hypotheses

Null Hypothesis: This can be thought of as the implied hypothesis. “Null” meaning “nothing.” This hypothesis states that there is no difference between groups or no relationship between variables. Thus, it proposes no relationship between two variables. The null hypothesis is a presumption of status quo or no change. It is denoted by H0. It is a negative statement like “Attending physiotherapy sessions does not affect athletes’ on-field performance.” Here, the author claims physiotherapy sessions have no effect on on-field performances. Even if there is, it’s only a coincidence.
Alternative Hypothesis: An alternative hypothesis is an opposing theory to the null hypothesis. For example, if the null hypothesis predicts something to be true, the alternative hypothesis predicts it to be false. The alternative hypothesis often is the statement you test when attempting to disprove the null hypothesis. It is denoted as H1 or Ha. It explicitly states that the dependent variable affects the independent variable. For example: “Water evaporates at 100°C.”. The alternative hypothesis further branches into directional and non-directional.
Simple Hypothesis: A simple hypothesis is a statement made to reflect the relation between exactly two variables. Thus a simple hypothesis is a hypothesis that there exists a relationship between two variables. One is called a dependent variable, and the other is called an independent variable. Consider the example, “Smoking is a prominent cause of lung cancer.” The dependent variable, lung cancer, is dependent on the independent variable, smoking.
Complex Hypothesis: A complex hypothesis implies the relationship between multiple independent and dependent variables. For instance, “Individuals who eat more fruits tend to have higher immunity, lesser cholesterol, and high metabolism.” The independent variable is eating more fruits, while the dependent variables are higher immunity, lesser cholesterol, and high metabolism.
Associative Hypothesis: An associative hypothesis predicts that two variables are linked but does not explore whether one variable directly impacts upon the other variable. In an associative hypothesis, changing any one variable, dependent or independent, affects others. For example: Just because there are a lot of sick people in a hospital, it doesn’t mean that the hospital made the people sick. There is something going on there that’s causing the issue. So, in an associative hypothesis, researcher note correlation between an independent and dependent variable but do not make a prediction about how the two interact. He/she stops short of saying one thing causes another thing.
Casual Hypothesis: A causal hypothesis predicts that two variables are not only associated, but that changes in one variable will cause changes in another. Thus, in a casual hypothesis, the independent variable directly affects the dependent. A causal hypothesis is harder to prove than an associative hypothesis because the cause needs to be definitively proven.
Empirical Hypothesis: Also referred to as the working hypothesis, an empirical hypothesis claims a theory’s validation via experiments and observation. This way, the statement appears justifiable and different from a wild guess. It is one that professionals accept as a basis for future research in order to formulate a theory for testing. For example: the hypothesis is “Women who take iron tablets face a lesser risk of anaemia than those who take vitamin B12.” This is an example of an empirical hypothesis where the researcher the statement after assessing a group of women who take iron tablets and charting the findings.
Statistical Hypothesis: In a statistical hypothesis, the statement should be logical or illogical, and the hypothesis is verified statistically. The point of a statistical hypothesis is to test an already existing hypothesis by studying a population sample. Hypothesis like “44% of the Indian population belong in the age group of 22-27.” leverage evidence to prove or disprove a particular statement.

Sources of Hypothesis:

A good hypothesis can only be derived from experience in research. Though hypothesis should precede the collection of data, but some degree of data collection, literature review or a pilot study will help in the development and gradual refinement of the hypothesis. A researcher should have quality of an alert mind to derive a hypothesis and quality of critical mind of rejecting faulty hypothesis. The following sources can help the researcher in coming up with a good hypothesis:

Review of literature.
Discussion with the experts in the given field to understand the problem, its origin and objectives in seeking a solution.
Intuition of the researcher also sometimes helps in forming a good hypothesis.
Previous empirical studies done on the given area.

How to Formulate an Effective Research Hypothesis

A testable hypothesis is not a simple statement. It is rather an intricate statement that needs to offer a clear introduction to a scientific experiment, its intentions, and the possible outcomes. However, there are some important things to consider when building a compelling hypothesis.

The first step before constructing a hypothesis is a thorough review of existing literature on the topic of research. After the literature review, identify gaps in the literature. Then narrow down the research problem to fulfill the gap.
State the problem that you are trying to solve. The research problem needs to be stated in terms of research objectives or research questions.
Following the research question, identify the dependent and the independent variables. Dependent variables, as the name suggests are dependent on other factors of the study. They are influenced by the change in independent variable. Independent variables are the ones that are manipulated, controlled, or changed. Independent variables are isolated from other factors of the study.
Frame statements or hypotheses that reflect a prediction and are testable. Make sure that the hypothesis clearly defines the topic and the focus of the experiment. Try to write the hypothesis as an if-then statement. Follow this template: If a specific action is taken, then a certain outcome is expected.
Scrutinize the hypothesis. The results of hypothesis testing directly help to answer the research questions and draw conclusions for the study.

Testing of Hypothesis:

There are 5 main steps in hypothesis testing:

State your research hypothesis as a null hypothesis and alternate hypothesis (Ho) and (Ha or H1).
Collect data in a way designed to test the hypothesis.
Perform an appropriate statistical test.
Decide whether to reject or fail to reject your null hypothesis.
Present the findings in your results and discussion section.

Though the specific details might vary, the procedure you will use when testing a hypothesis will always follow some version of these steps.

Conclusion:

A hypothesis is defined as a formal statement, which gives the explanation about the relationship between the two or more variables of the specified population. It helps the researcher to translate the given problem to a clear explanation for the outcome of the study. It clearly explains and predicts the expected outcome. It indicates the types of experimental design and directs the study of the research process. A scientific hypothesis is a foundational element of the scientific method. It’s a testable statement proposing a potential explanation for natural phenomena. In the setting of scientific research, a hypothesis is a tentative explanation or statement that can be proven wrong and is used to guide experiments and empirical research.

This is the Difference Between a Hypothesis and a Theory

What to Know A hypothesis is an assumption made before any research has been done. It is formed so that it can be tested to see if it might be true. A theory is a principle formed to explain the things already shown in data. Because of the rigors of experiment and control, it is much more likely that a theory will be true than a hypothesis.

As anyone who has worked in a laboratory or out in the field can tell you, science is about process: that of observing, making inferences about those observations, and then performing tests to see if the truth value of those inferences holds up. The scientific method is designed to be a rigorous procedure for acquiring knowledge about the world around us.

In scientific reasoning, a hypothesis is constructed before any applicable research has been done. A theory, on the other hand, is supported by evidence: it's a principle formed as an attempt to explain things that have already been substantiated by data.

Toward that end, science employs a particular vocabulary for describing how ideas are proposed, tested, and supported or disproven. And that's where we see the difference between a hypothesis and a theory .

A hypothesis is an assumption, something proposed for the sake of argument so that it can be tested to see if it might be true.

In the scientific method, the hypothesis is constructed before any applicable research has been done, apart from a basic background review. You ask a question, read up on what has been studied before, and then form a hypothesis.

What is a Hypothesis?

A hypothesis is usually tentative, an assumption or suggestion made strictly for the objective of being tested.

When a character which has been lost in a breed, reappears after a great number of generations, the most probable hypothesis is, not that the offspring suddenly takes after an ancestor some hundred generations distant, but that in each successive generation there has been a tendency to reproduce the character in question, which at last, under unknown favourable conditions, gains an ascendancy. Charles Darwin, On the Origin of Species , 1859 According to one widely reported hypothesis , cell-phone transmissions were disrupting the bees' navigational abilities. (Few experts took the cell-phone conjecture seriously; as one scientist said to me, "If that were the case, Dave Hackenberg's hives would have been dead a long time ago.") Elizabeth Kolbert, The New Yorker , 6 Aug. 2007

What is a Theory?

A theory , in contrast, is a principle that has been formed as an attempt to explain things that have already been substantiated by data. It is used in the names of a number of principles accepted in the scientific community, such as the Big Bang Theory . Because of the rigors of experimentation and control, its likelihood as truth is much higher than that of a hypothesis.

It is evident, on our theory , that coasts merely fringed by reefs cannot have subsided to any perceptible amount; and therefore they must, since the growth of their corals, either have remained stationary or have been upheaved. Now, it is remarkable how generally it can be shown, by the presence of upraised organic remains, that the fringed islands have been elevated: and so far, this is indirect evidence in favour of our theory . Charles Darwin, The Voyage of the Beagle , 1839 An example of a fundamental principle in physics, first proposed by Galileo in 1632 and extended by Einstein in 1905, is the following: All observers traveling at constant velocity relative to one another, should witness identical laws of nature. From this principle, Einstein derived his theory of special relativity. Alan Lightman, Harper's , December 2011

Non-Scientific Use

In non-scientific use, however, hypothesis and theory are often used interchangeably to mean simply an idea, speculation, or hunch (though theory is more common in this regard):

The theory of the teacher with all these immigrant kids was that if you spoke English loudly enough they would eventually understand. E. L. Doctorow, Loon Lake , 1979 Chicago is famous for asking questions for which there can be no boilerplate answers. Example: given the probability that the federal tax code, nondairy creamer, Dennis Rodman and the art of mime all came from outer space, name something else that has extraterrestrial origins and defend your hypothesis . John McCormick, Newsweek , 5 Apr. 1999 In his mind's eye, Miller saw his case suddenly taking form: Richard Bailey had Helen Brach killed because she was threatening to sue him over the horses she had purchased. It was, he realized, only a theory , but it was one he felt certain he could, in time, prove. Full of urgency, a man with a mission now that he had a hypothesis to guide him, he issued new orders to his troops: Find out everything you can about Richard Bailey and his crowd. Howard Blum, Vanity Fair , January 1995

And sometimes one term is used as a genus, or a means for defining the other:

Laplace's popular version of his astronomy, the Système du monde , was famous for introducing what came to be known as the nebular hypothesis , the theory that the solar system was formed by the condensation, through gradual cooling, of the gaseous atmosphere (the nebulae) surrounding the sun. Louis Menand, The Metaphysical Club , 2001 Researchers use this information to support the gateway drug theory — the hypothesis that using one intoxicating substance leads to future use of another. Jordy Byrd, The Pacific Northwest Inlander , 6 May 2015 Fox, the business and economics columnist for Time magazine, tells the story of the professors who enabled those abuses under the banner of the financial theory known as the efficient market hypothesis . Paul Krugman, The New York Times Book Review , 9 Aug. 2009

Incorrect Interpretations of "Theory"

Since this casual use does away with the distinctions upheld by the scientific community, hypothesis and theory are prone to being wrongly interpreted even when they are encountered in scientific contexts—or at least, contexts that allude to scientific study without making the critical distinction that scientists employ when weighing hypotheses and theories.

The most common occurrence is when theory is interpreted—and sometimes even gleefully seized upon—to mean something having less truth value than other scientific principles. (The word law applies to principles so firmly established that they are almost never questioned, such as the law of gravity.)

This mistake is one of projection: since we use theory in general use to mean something lightly speculated, then it's implied that scientists must be talking about the same level of uncertainty when they use theory to refer to their well-tested and reasoned principles.

The distinction has come to the forefront particularly on occasions when the content of science curricula in schools has been challenged—notably, when a school board in Georgia put stickers on textbooks stating that evolution was "a theory, not a fact, regarding the origin of living things." As Kenneth R. Miller, a cell biologist at Brown University, has said , a theory "doesn’t mean a hunch or a guess. A theory is a system of explanations that ties together a whole bunch of facts. It not only explains those facts, but predicts what you ought to find from other observations and experiments.”

While theories are never completely infallible, they form the basis of scientific reasoning because, as Miller said "to the best of our ability, we’ve tested them, and they’ve held up."

More Differences Explained

Epidemic vs. Pandemic
Diagnosis vs. Prognosis
Treatment vs. Cure

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Criminal behavior and age: a test of three provocative hypotheses, additional details, no download available, availability, related topics.

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Understanding Hypothesis testing based on True Crime incidence
The tools used in Statistics often get in the way of understanding the big picture. It is a lot easier and interesting to understand Hypothesis testing in a context of the Judicial system. The purpose here is to provide a beginner's level understanding of Hypothesis testing using an example of a true crime incidence. Criminal Case
PDF Understanding Hypotheses, Predictions, Laws, and Theories
Definitions. A (causal) hypothesis is a proposed explanation. A prediction is the expected result of a test that is derived, by deduction, from a hypothesis or theory. A law (or rule or principle) is a statement that summarises an observed regularity or pattern in nature.
The values of prediction in criminal cases
A fudged hypothesis seems well-supported by the evidence, but this support is an illusion. ... Journal of Criminal Law & Criminology 95(2): ... Allen RJ (2008). Juridical proof and the best explanation. Law and Philosophy 27(3): 223-268. Crossref. Web of Science. Google Scholar. Pennington N, Hastie R (1991). A cognitive theory of juror ...
Scientific Method and Criminal Investigation
This article describes the scientific method and how it is applied to criminal investigation. The scientific method, which has evolved from the work of many persons over the course of 2,500 years, is a way of observing; then thinking about; and finally solving problems in an objective, systematic fashion. There are five main steps involved in ...
What's the Difference Between a Fact, a Hypothesis, a Theory, and a Law
A hypothesis is a tentative explanation about an observation that can be tested. It's just a starting point for further investigation. Any one observation usually comes with an array of hypotheses. If you observe that a swan is white, your hypothesis could be that it's painted, or it was bleached by the sun, or its feathers just lack pigment.
Theory vs. Hypothesis vs. Law
Criminal Justice ; Geography ; Law ; ... A hypothesis is a possible explanation that can be tested. This simple definition needs some further explanation. ... hypothesis, law, and theory - let's ...
Hypothesis Testing in Law and Forensic Science: A Memorandum
David H. Kaye. Volume 130. Issue 5. March 2017. See full issue. Download. See Footnotes. This Forum Commentary series presents views on a memorandum from a group of lawyers and judges advising the Organization of Scientific Area Committees for Forensic Science (OSAC). 1 In response to calls for improving the practices of forensic science, 2 the ...
Structured Hypothesis Development in Criminal Investigation: A method
SHDCI builds on theory and principles from cognitive psychology, scientific methodology, logical reasoning, law and criminal investigation best practice. The method is developed in a Norwegian context, but builds on universally accepted legal principles, and SHDCI may therefore be relevant for implementation in other jurisdictions.
PDF Hypothesis Formation and Testing in Legal Argument
Definitions. Hypothesis ≡ tentative assumption made in order to draw out and test its normative, logical or empirical consequences. Hypothetical ≡ an imagined situation that involves a hypothesis; used to help draw out those consequences. In Supreme Court oral arguments, hypotheticals perform an important function.
HYPOTHESIS Definition & Meaning
Find the legal definition of HYPOTHESIS from Black's Law Dictionary, 2nd Edition. A supposition, assumption, or theory; a theory set up by the prosecution,on a criminal trial, or by the defense, as an explanation of the facts in...
Scientific Hypothesis, Theory, Law Definitions
A scientific theory summarizes a hypothesis or group of hypotheses that have been supported with repeated testing. A theory is valid as long as there is no evidence to dispute it. Therefore, theories can be disproven. Basically, if evidence accumulates to support a hypothesis, then the hypothesis can become accepted as a good explanation of a ...
Hypothesis Testing in Law and Forensic Science: A Memorandum
To account for measurement error, the standard uses statistical hypothesis tests that presume that two fragments are identical unless the measurements are far apart. This procedure seems to give an advantage to the prosecution position that the fragments came from the crime scene.A member of OSAC's Forensic Science Standards Board therefore ...
PDF HYPOTHESIS: MEANING, TYPES AND FORMULATION
An Open Access Journal from The Law Brigade (Publishing) Group 148 JOURNAL OF LEGAL STUDIES AND RESEARCH Volume 6 Issue 6 - ISSN 2455 2437 December 2020 www.thelawbrigade.com MEANING The word hypothesis is made up of two Greek roots which mean that it is some sort of 'sub- statements', for it is the presumptive statement of a proposition, which the investigation seeks
Definition of HYPOTHESIS • Law Dictionary • TheLaw.com
A supposition, assumption, or theory; a theory set up by the prosecution, on a criminal trial, or by the defense, as an explanation of the facts in evidence, and a ground for Inferring guilt or Innocence, as the case may be, or as indicating a probable or possible motive for the crime. No related posts found.
Theories of Criminal Law
Theories of Criminal Law. First published Mon Aug 6, 2018. Any theory of criminal law must explain why criminal law isdistinctive—why it is a body of law worthy of separateattention. This entry begins by identifying features of criminal lawthat make this so (§1). It then asks what functions that body oflaw fulfills (§2), and what justifies ...
Theories of Criminalization
Agreeing with the definition of criminal law as a "morally-loaded regulatory tool," I nevertheless deviate from Simester and von Hirsch's path in some respects. For one, I have concerns regarding the use of the term "wrongful". Simester and von Hirsch do not distinguish between "morally wrongful" and "wrongful".
Chapter Four: Adjudication Decisions
The second hypothesis, because the law intervened before the forbidden deed could be done, is consistent with innocence. ... a word's usage accords with its dictionary definition. In law as in life, however, the same words, placed in different contexts, sometimes mean different things. ... Criminal law includes some doctrines, such as self ...
Hypothesis legal definition of Hypothesis
During a criminal trial, a hypothesis is a theory set forth by either the prosecution or the defense for the purpose of explaining the facts in evidence. It also serves to set up a ground for an inference of guilt or innocence, or a showing of the most probable motive for a criminal offense. West's Encyclopedia of American Law, edition 2.
PDF EXAMPLES IN LEGAL REASONING: LEGAL HYPOTHETICALS Edwina L ...
s, linguistics and computer science, examples are crucial to reasoning. In the law, cases play the role of examples; many of the examples considered are "hypothetical. as opposed to "real", that is cases that have been actually litigated. In particular it is the "fact situation", that is, a short summ. ry of the relevant facts of the case, that ...
Theories of Criminalization
This chapter examines theories of criminalization. It first considers the impact of constitutional law on criminalization and constitutional courts' tendency to avoid declaring criminal prohibitions unconstitutional, democracy as a substitute for criminalization theory, and the link between criminalization theory and constitutional theory.
Hypothesis: Meaning, Significance and Types
Hypothesis: Hypothesis is usually considered as an important mechanism in Research. Hypothesis is a tentative assumption made in order to test its logical or empirical consequences. If we go by the origin of the word, it is derived from the Greek word- 'hypotithenai' meaning 'to put under' or to 'to suppose'.
Hypothesis vs. Theory: The Difference Explained
A hypothesis is an assumption made before any research has been done. It is formed so that it can be tested to see if it might be true. A theory is a principle formed to explain the things already shown in data. Because of the rigors of experiment and control, it is much more likely that a theory will be true than a hypothesis.
Criminal Behavior and Age: A Test of Three Provocative Hypotheses
The invariance hypothesis, i.e., that the relationship between age and crime is of an inverted-J form for all types of crime, proved problematic, because tax cheating, a white-collar crime, is visually related to age in a curvilinear manner, with the highest level during the middle ages; however, patterns for four of the five crime measures ...

Hypothesis Testing in Law and Forensic Science: A Memorandum

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4 Chapter Four: Adjudication Decisions

Deciding to Convict

Legal “Proof” and Reasonable Doubt

Evidence Sufficiency and Elements of Offenses

A System of Pleas

Appellate Adjudication: Ways to Revise Criminalization, Enforcement, or Conviction Decisions

Key Decisions and Key Arguments

End of Chapter Review

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