A Safety Doctrine for the Criminal Justice System

Abstract

Criminal law, unlike other risk-creating fields, currently lacks any modern safety doctrine. In light of the proven phenomenon of wrongful convictions and the severe harm it causes to both those wrongly convicted and society, this Essay focuses on the necessary preliminary stages in developing a safety doctrine for the criminal justice system. Under our conception criminal law is a "safety-critical system": it deals with matters of life and death. We view false conviction to be a type of accident, similarly to a crash of a fighter airplane. This comparison is not only metaphorical, but quite literal when the damage is assessed from an economic standpoint. Care and safety in criminal law do not merely operate to raise the beyond-reasonable-doubt threshold in that the number of acquittals increases at the expense of the number of convictions. Rather, care is an investment of resources in reasonable safety measures whose cost is less than their expected harm, since the number of both false acquittals and false convictions will be reduced. The divergence in safety awareness between the aviation, engineering, and medical fields, on the one hand, and the criminal justice system, on the other, is linked to what we term as the "Hidden Accident Principle" of criminal law. False convictions are typically unseen. We demonstrate how the legal system is completely unaware of its poor safety practice. Accordingly, we propose some preliminary principles for safety in criminal law, in particular, the idea of understanding modern safety from other fields such as engineering.