Why Asymmetric Rules of Procedure Make It Impossible to Calculate a Rationally Warranted Standard of Proof

Abstract

Numerous prominent legal scholars (Kaplan, Tribe, Lillquist et al.) have pioneered the idea that one can derive a probabilistic version of the standard of proof by factoring in the costs of erroneous verdicts (or the respective utilities of trial outcomes). Commendable as that project is, this paper argues that it will produce a highly misleading, and irrationally high threshold for proof since many rules of procedure -- apart from the standard itself -- typically distribute errors in favor of the defendant. Until and unless those asymmetric advantages are removed, the decision-theoretic machinery for calculating a rational standard of proof must be put to one side. This paper enumerates some thirty rules of procedure that strongly favor the defendant and make it harder for the prosecutor to satisfy the standard itself.

Keywords: burden-shifters, standard of proof