scholarly journals Can the Reasonable Doubt Standard be Justified? A Reconstructed Dialogue

2018 ◽  
Vol 31 (2) ◽  
pp. 365-402 ◽  
Author(s):  
Federico Picinali
Keyword(s):  
Common Ground ◽  
Instrumental Rationality ◽  
Reasonable Doubt ◽  
Standard Of Proof ◽  
Lower Standard

The justification of the reasonable doubt standard has been hotly debated in recent years. Deontologists—including retributivists—have generally defended the standard, whilst consequentialists have generally argued for a lower standard of proof. Captivating arguments have been produced from both sides. The paper narrates this debate through a dialogue between ideal representatives of these different camps. In doing so, it recasts—and, hopefully, improves—some of the arguments presented thus far. Then, the paper introduces a new participant in the debate, the Intermediary. The Intermediary is under the impression that the debate has reached an impasse, due to fundamental moral disagreements between the parties involved. Therefore, she presents them with a challenge: to find a common ground that allows the parties to justify to each other the choice of a standard of proof, notwithstanding their different basic moral commitments. The Intermediary takes up this challenge, and provides a justification for the reasonable doubt standard based on the value of respecting defendants and on rules of instrumental rationality.

scholarly journals Kejanggalan Beberapa Putusan Korupsi Pengadaan dan Kaitannya dengan Konstitusi

2016 ◽  
Vol 13 (1) ◽  
pp. 213
Author(s):  
Richo Andi Wibowo
Keyword(s):  
Criminal Law ◽  
Public Procurement ◽  
Reasonable Doubt ◽  
Constitutional Court ◽  
Court Decisions ◽  
Private Law ◽  
Financial Loss ◽  
Standard Of Proof ◽  
Lower Standard

This paper aims at highlighting some odd court decisions on corruption typed “state financial loss” in public procurement sector. It is odd because of the following reasons: (i) the nature of the case is more about administrative or private law instead of criminal law; (ii) some consider that it will be unjust to sentence guilty the accused; (iii) the cases ensnare persons who are perceived as reformist and clean. The first point will be the focus of elaboration. It will be argued that the encroachment of criminal law towards the area of administrative and private laws are caused by the lower standard of proof for the corruption typed “state financial loss”. Currently, the applied standard is “more likely than not” instead of “beyond reasonable doubt”. The situation which some people are jailed while their faults are more about administrative and private is a justice issue. As the upright of justice is the mandate of the constitution, therefore, articles that create this injustice (Article 2 section (1) and Article 3 of the Eradication Corruption Act) should be re-reviewed by the Constitutional Court. Although the court has previously reviewed the Articles and, therefore, this should be seen as a final and binding; this paper will give some arguments which explain the needs for the court to re-settle this matter.

scholarly journals Uncertain Certainty?: Making Sense of the European Court of Human Rights’ Standard of Proof

2019 ◽  
Vol 8 (2) ◽  
pp. 155-187
Author(s):  
Christine Bicknell
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Detailed Examination ◽  
Reasonable Doubt ◽  
Standard Of Proof ◽  
Making Sense ◽  
European Court ◽  
Single Standard ◽  
High Level

The European Court of Human Rights (ECtHR) declares a single standard of proof (‘SoP’): proof beyond reasonable doubt (‘brd’). Yet the accuracy of this claim and the threshold’s appropriateness have both been challenged. This article uniquely considers and clarifies the Court’s interpretation and application of its SoP. Demonstrating SoP is capable of both broad and narrow interpretations, it shows the Court interprets SoP only narrowly. This understanding confirms brd as the applicable standard, whose use is then considered through detailed examination of the case law. The analysis shows that although the Court’s conception and approach to brd necessarily accommodate some doubt, violations are found with a consistently high level of certainty. There is however, a striking inconsistency in references made to the Rules of Court. Moreover, the Rules do not fully capture the Court’s approach. Addressing this, as the article proposes, would strengthen both the consistency and legitimacy of relevant decisions.

scholarly journals A Value-Critical Policy Analysis of Georgia’s Beyond a Reasonable Doubt Standard of Proof of Intellectual Disability

2019 ◽  
Vol 30 (1) ◽  
pp. 56-64
Author(s):  
Lauren A. Ricciardelli ◽  
Kristina Jaskyte
Keyword(s):  
Intellectual Disability ◽  
Adaptive Functioning ◽  
Professional Associations ◽  
Reasonable Doubt ◽  
Critical Policy Analysis ◽  
The Public ◽  
Standard Of Proof ◽  
A Value ◽  
Increased Risk ◽  
Critical Policy

The U.S. Supreme Court’s Atkins v. Virginia decision barred the execution of persons with intellectual disability, but provided minimal specification regarding adjudication. One exception to the lack of instruction was the recommendation that states generally conform to accepted clinical practice and norms, positioning professional associations to take an important role in this discourse. This study uses Chambers and Wedel’s value-critical method of analysis to examine the policy element, standard of proof of intellectual disability, within Georgia’s 1988 statute prohibiting the execution of persons with intellectual disability. Owing to the public outcry that followed Georgia’s controversial execution of Jerome Bowden, who evidenced significant impairments in intellectual and adaptive functioning, the 1988 statute was the first in the nation to bar such executions, and predated the Atkins decision by 14 years. However, due to a drafting error, Georgia was also the only state to invoke the highest standard of proof, beyond a reasonable doubt. When states use a standard of proof of intellectual disability that is higher than the lowest standard, a preponderance of the evidence, capital defendants with intellectual disability are at an increased risk for unlawful execution. We present findings and recommendations across the identified analytical contexts.

Pseudo-Adversarialism: A Theoretical Comparison Between the U.S. and Japanese Criminal Procedures

2012 ◽  
Vol 12 (1) ◽  
Author(s):  
Keisuke Nakao ◽  
Masatoshi Tsumagari
Keyword(s):  
Theoretical Framework ◽  
Reasonable Doubt ◽  
Adversarial System ◽  
Standard Of Proof ◽  
Theoretical Comparison ◽  
Defense Systems ◽  
Meiji Restoration ◽  
Jury Trials ◽  
Bona Fide ◽  
The U.S

Abstract This article offers a unified theoretical framework to address two distinctive forms of adversarial procedure: the bona fide adversarial system and the pseudo-adversarial system. In the former, a harsh contest between the prosecution and the defense is promoted, and an acquittal is rendered with substantial likelihood. In the latter, the prosecution overpowers the defense so that defendants are almost always convicted. We explain this procedural dichotomy as a result of optimal incentive designs institutionalized through controlling a judge's standard of proof beyond a reasonable doubt, a prosecutor's discretionary rule for indictment, and a defendant's right to counsel. Our theory suggests that the bona fide adversarial system performs suitably with jury trials, publicly-elected prosecutors, and government-based defense systems, while the pseudo-adversarial system is shaped by bench trials, career prosecutors, and court-appointed defense counsels. The Japanese pseudo-adversarial system might still be influenced by the defunct inquisitorial system initiated during the Meiji Restoration.

Forcible Rape

1977 ◽  
Vol 23 (2) ◽  
pp. 136-153 ◽  
Author(s):  
Gerald D. Robin
Keyword(s):  
Criminal Justice ◽  
Sexual Assault ◽  
Criminal Justice System ◽  
Justice System ◽  
Reasonable Doubt ◽  
Rape Victims ◽  
Basic Definition ◽  
Standard Of Proof ◽  
Legal Position ◽  
Definition Of

Forcible rape is unique among crimes in the manner in which its victims are dealt with by the criminal justice system. Raped women are subjected to an institutionalized sexism that begins with their treatment by the police, continues through a male-dominated criminal justice system influenced by pseudo-scientific notions of victim precipitation, and ends with the systematic acquittal of many de facto guilty rapists. The codification of sexism centers in the legal elements involved in proving guilt and obtaining convictions. In effect, the law's focus upon corrob oration, consent, and character has established a standard of proof in rape cases that is more stringent than "beyond a reasonable doubt." Nonetheless, the processing of rape victims by the criminal justice system is gradually becoming more sensitive, facilitative, and reflective of the trauma experienced by the women involved. The legal position toward the crime is also becoming less sexist and more responsive to the realities involved in sexual assault. Both of these changes have come about through the efforts of the women's liberation movement. The most promising means for achieving more humane and dignified treatment of rape victims in the arms of the law have been "rape crisis centers." This approach to eliminating institutionalized sexism surrounding forcible rape has been significantly aided and abetted by successful attempts to modify the basic definition of the crime and to revise the legal elements needed for conviction.

scholarly journals Repeated proceedings against suspected illicit wealth – justifiable protection of public interest or violation of human rights?

2021 ◽  
Vol 8 ◽  
pp. 38-56
Author(s):  
Skirmantas Bikelis
Keyword(s):  
Public Interest ◽  
Criminal Liability ◽  
Organised Crime ◽  
Reasonable Doubt ◽  
Legal Certainty ◽  
Criminal Proceedings ◽  
Standard Of Proof ◽  
Res Judicata ◽  
Legal Strategies ◽  
Repeated Assessment

The internationally acknowledged need for effective legal measures against illicit enrichment that is perceived as the key policy tool against organised crime and corruption triggered rapid developments in the variety of those legal measures. Lithuania may serve as a sole-standing example of a jurisdiction that enacted a great variety of legal strategies against illicit enrichment – criminal liability both for money laundering and illicit enrichment and also extended powers of confiscation, civil confiscation and tax fines for unexplained income. This diversity of measures leads to the issue of competition arising between them and also carries the risk that measures may be used repeatedly and arbitrarily against persons and their property.The paper focuses on the issue of the legitimacy of repeated investigation and assessment of suspicious assets in civil confiscation proceedings and extended powers of confiscation.The analysis is divided into two parts where fundamentally different legal situations are discussed. In the first situation, repeated assessment of the origin of the assets takes place in proceedings of similar legal nature (proceedings aiming to restore legal order). The second situation appears where reassessment takes place in proceedings of a different nature – in the restorative proceedings after failure to prove the illicit origin of the assets in the punitive proceedings.While the first situation rather clearly falls within the scope of the principle of legal certainty and the rule res judicata that prohibit repeated proceedings for the same issue in the same circumstances against the same person, the second situation is more open to debate. Punitive proceedings use the standard of proof beyond reasonable doubt and the presumption of innocence is in play. These safeguards are designed to protect defendants from unfounded conviction, but they may be considered excessive for other legal issues such as the recovery of damages or the proceeds of illicit activities. In addition, in the context of civil confiscation, public interest in effective protection from organised crime and corruption comes into play. Therefore, there are strong arguments for giving priority to public safety over the principle of legal certainty that would protect defendants from repeated assessment of their assets in other proceedings with a lower standard of proof or even the reversed presumption of the illegality of unexplained wealth.Finally, the paper addresses the question of whether extended powers of confiscation qualify for restorative or punitive proceedings. The answer to this question is the key argument of whether civil confiscation proceedings can legitimately follow criminal proceedings where the court failed to confiscate the assets on the grounds of extended powers of confiscation. The paper argues that extended powers of confiscation are of a restorative nature. Therefore, when assets have already been investigated in proceedings of civil confiscation and their origin has been assessed as lawful in the light of extended powers of confiscation, re-consideration of their origin should be deemed as infringing the principle of legal certainty, unless the decision in the criminal proceedings was barred by lack of formal grounds.

‘When Rescuers become Refoulers: Closing Kenya’s Refugee Camps amid Terrorism Threats’ and leaving vulnerable groups out in the cold

2020 ◽  
Vol 8 (1) ◽  
pp. 1-29
Author(s):  
Charles A Khamala
Keyword(s):  
Attorney General ◽  
Reasonable Doubt ◽  
Vulnerable Groups ◽  
National Commission ◽  
Refugee Camps ◽  
Standard Of Proof ◽  
Freedom Of Movement ◽  
The Status ◽  
United Nations Convention ◽  
Failure To Protect

Kenya’s counter-terrorism measures, following entry into Somalia, relocated refugees to designated camps. However, by violating a refugee’s freedom of movement, mass relocation contravenes the African Charter on Human and Peoples’ Rights (ACHPR). Regional jurisprudence informed the Kenyan High Court’s Kituo cha Sheria v Attorney General decision holding that mass refugee relocation is indeed refoulement. It necessarily discriminates, punishes disproportionately, and may amount to a ‘failure to protect’ refugees against torture, a crime against humanity. However, the United Nations Convention Relating to the Status of Refugees (Refugees Convention) merely prohibits hosts from returning escapees to countries where they are targeted for persecution. Conversely, refugees who are either reasonably regarded as threatening national security or reasonably suspected of serious crimes are deemed to ‘waive’ their non-refoulement right. Nonetheless, the court’s legal moralism insisted that states should prove ‘waiver’ and never torture refugees. Invoking an ‘individual criminality’ principle required proof of a refugee’s dangerousness. Suspects can furthermore not be condemned unheard. Therefore, establishing whether ‘mass waiver’ is possible, is problematic. Are blanket relocation directives justifiable simply because proving ‘reasonable belief’ of refugees committing terror acts or serious crimes are difficult? Although Samow Mumin Mohamed v Cabinet Secretary, Ministry of Interior Security and Co-Ordination condoned mass refugee relocation Refugee Consortium of Kenya v Attorney did not. Curiously, to clarify the ambiguity Kenya National Commission on Human Rights v Attorney Genera elevated the required standard of proof for ‘waiver’ under the Refugees Convention to one of ‘beyond reasonable doubt.’ Previously, in Coalition for Reform and Democracy (CORD) v Republic of Kenya legislative caps on refugee numbers were rejected. Subsequently, a new Refugee Bill (2019) proposes to legalise confining refugees to designated camps. This article applies common-law principles of the duty on rescuers to evaluate whether mass refugee relocation refoules.

Proof of Causation in Tort Cases

2020 ◽  
Vol 82 ◽  
pp. 149-160
Author(s):  
Bohdan Karnaukh
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Burden Of Proof ◽  
Reasonable Doubt ◽  
Criminal Cases ◽  
Ways Of Coping ◽  
Law System ◽  
Standard Of Proof ◽  
Civil Cases ◽  
Civil Law System

The article addresses the problem of uncertainty over causation in tort cases. It reveals the interconnection between burden of proof and standard of proof. The author provides a comparative overview of approaches to standard of proof in common law and civil law systems. It is argued that while in common law there are two different standards viz: beyond-reasonable-doubt-standard for criminal cases and balanceof-probabilities standard for civil cases in civil law system there is only one standard applicable both to criminal and civil cases. With comparative analysis in the background the article also reveals the peculiarities of Ukrainian law in the respect of the issue raised. The problem is approached in a pragmatic manner: using a hypothetical case the author models practical outcomes entailed by each of the approaches being applied to the case. Eventually the conclusion is made that there are four ways of coping with uncertainty over causation: (1) to reverse the burden of proof; (2) to calibrate the standard of proof for certain cases; (3) to recognize the very creation of the abnormal risk as a compensable damage; and (4) to multiply damage plaintiff sustained by the probability factor indicating the likelihood of the damage being actually caused by the defendant.

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