The Lightness of the Prosecutor's Burden

Abstract

In this paper, I will explore our reliance on a demanding burden of proof to ensure that criminal law outcomes are legitimate. The beyond a reasonable doubt standard is considered corrective. Under this view, the trial and the imposition of a demanding burden of proof provides a final checkpoint in the process that corrects factual error and ensures that a defendant’s guilt is proven with virtual certainty. The paper identifies vulnerabilities to this theory. As the burden does not regulate the quantity and quality of evidence that shapes the record, pretrial defects potentially undermine efforts to ensure that criminal law outcomes are legitimate.