Aim or preference? Reflections on the commitment to the truth in the criminal process

Law and Philosophy https://doi.org/10.1007/s10982-024-09511-6  The Author(s) 2024 FEDERICO PICINALI AIM OR PREFERENCE? REFLECTIONS ON THE COMMITMENT TO THE TRUTH IN THE CRIMINAL PROCESS (Accepted 22 May 2024) ABSTRACT. It is widely accepted that the criminal process aims at the truth. It is also widely accepted that convicting the innocent is worse than acquitting the guilty. While apparently unrelated, these two claims are in tension with one another. The latter claim is traditionally used to justify a standard of proof that is skewed in favour of the defendant, aimed at protecting the innocent from conviction. A skewed standard, however, is not the standard of proof that minimises expected errors; that is, it is not the standard to choose if truth-finding is indeed the aim of the criminal process. The article attempts to overcome this tension. It argues that, if someone seeks consistency between the commitment to the truth and the commitment to protecting the innocent from conviction, they should treat true outcomes as a preference on which the process is based, not as a/the aim of the process. Notably, a preference entails a more modest practical commitment than that entailed by an aim. Taking this more modest commitment to the truth has implications for the regulation of any phase of the criminal process in which the value of truth appears to be in tension with non-epistemic values. I. INTRODUCTION Imagine that you are a fact finder in a criminal trial, and that you are asked to decide truthfully. In other words, you should aim for decisions that are a true representation of the relevant state of affairs: you should aim at issuing a ‘not guilty’ verdict only if the defendant is, in fact, not guilty; and you should aim at issuing a ‘guilty’ verdict only if the defendant is, in fact, guilty. Imagine that you are also asked to reflect, in your decision-making, the value judgement that * I am very grateful to Lewis Ross and Neil Duxbury for their helpful comments on an earlier draft. I presented this work at the Dickson Poon School of Law, King’s College London, during a workshop on ‘Complexity theory and the law of evidence’. I thank the participants for their valuable feedback. FEDERICO PICINALI convicting the innocent is the worse of the two possible mistaken outcomes of a trial (the other being acquitting the guilty). Because of this, you commit to adopting a standard of proof that is markedly skewed in favour of the defendant. According to this standard, the prosecution cannot obtain a conviction merely by presenting a case that is stronger than the case supporting the hypothesis of innocence. The prosecution’s case must be substantially stronger than the latter for conviction to be warranted. Being a demanding evidential threshold, the standard you choose reflects the above value judgement: it contains the risk of convicting the innocent within limits that you find acceptable, even if this comes at the cost of a more significant risk of acquitting the guilty. As expected, while you adjudicate the long sequence of trials that have been assigned to you, the skewed standard requires that you issue a ‘not guilty’ verdict in many cases in which the evidence of guilt is stronger than that of innocence. These are cases in which you would have issued a ‘guilty’ verdict if the only directive you had received had been that of aiming for truthful decisions. After all, in these cases you have greater chances of getting it right if you convict the defendant. This simple fictional scenario shows that there is a tension between the reasonable aim of truth-finding and the reasonable value judgement that false conviction is worse than false acquittal. This article is an attempt to clarify, and to overcome, this tension. In the next section I introduce and elucidate the claim that the criminal process aims at the truth, as well as the claim that false conviction is worse than false acquittal. With the claims properly laid out, I proceed to define the scope and the plan of the work. II. SETTING THE STAGE It is widely accepted that the criminal process aims at the truth: it aims to determine whether propositions concerning criminal behaviour are true. This claim about the process is so widespread to AIM OR PREFERENCE? warrant the label of ‘platitude’, a claim repeated so frequently to be uninteresting.1 It is due to this platitude that the analogy between legal fact-finding, on the one hand, and historical and scientific research, on the other, makes intuitive sense and has frequently occupied scholars.2 These practices share the commitment to truthfinding. Ronald Allen put the point emphatically: ‘Notwithstanding the differences in fact finding among science, law, and history, one commonality stands out: without accurate fact finding, the rest of the process is useless’.3 As already pointed out by others,4 to make sense of the commitment to truth-finding it is unnecessary to delve into the longstanding, complex, philosophical discourse on the concept of truth. It suffices to rely on the plain Aristotelian correspondence theory of this concept, according to which ‘to say of what is that it is, and of what is not that it is not, is true’.5 Therefore, to claim that the criminal process – like historical and scientific research – aims at the truth is simply to claim that it aims at issuing only assertions such that things are as is asserted. Accordingly, a procedural outcome that involves a false assertion frustrates the aim, whereas a procedural outcome that involves a true assertion fulfils it. The claim about truth-finding is often expressed with an ordinary verb alone (e.g., to aim, to pursue), as if it provided a description of the actual regulation and practice of criminal procedure. However, 1 Endorsements of the claim are ubiquitous, and the claim informs old and recent classics in evidence law theory, including J. Bentham, Rationale of Judicial Evidence. Specially Applied to English Practice. In Five Volumes (Hunt and Clarke 1827), L. Laudan, Truth, Error, and Criminal Law. An Essay in Legal Epistemology (CUP 2006), H. L. Ho, A Philosophy of Evidence Law. Justice in the Search for Truth (OUP, 2008), M. Taruffo, La Semplice Verità. Il Giudice e la Costruzione dei Fatti (Editori Laterza 2009) and D. A. Nance, The Burdens of Proof. Discriminatory Power, Weight of Evidence, and Tenacity of Belief (CUP 2016). The claim imbues the assumptions characterising what Twining has called the rationalist tradition of evidence scholarship. See W. Twining, Rethinking Evidence. Exploratory Essays (CUP 2006, 2nd ed.), at 76– 77. For further endorsements of the claim – including judicial endorsements – and for a critical discussion of dissenting views see Ho, id, at 51–70 and H. L. Ho, ‘Evidence and Truth’ in C. Dahlman et al., Philosophical Foundations of Evidence Law (OUP, 2021). 2 See, among others, C. Ginzburg, The Judge and the Historian. Marginal Notes on a Late-TwentiethCent (...truncated)