Towards a Continuous Burden of Proof

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The burden of proof is an essential mechanism to ensure that cases are decided fairly. Our existing form of proof burdens, unfortunately, has a number of surprising downsides. Conventional burdens of proof are mathematically discontinuous. This means that a tiny shift in a jury’s confidence in guilt can lead to a dramatic change in consequences for the parties in a case. This article explores the costs and benefits of an alternative approach to deciding cases, the continuous burden of proof, and concludes that adopting the right kind of continuous burden would help make our justice system fairer, more equitable, and more effective at deterring wrongdoing. Existing scholarship has analyzed one type of continuous burden of proof, the linear burden, which scales the amount of damages in direct proportion to a jury’s confidence level that the defendant has engaged in the charged offense. Unfortunately, the choice between linear continuous burdens and traditional burdens involves a hard-to-reconcile tradeoff between the values of deterring wrongdoing and reducing the expected rate of errors at trial. I offer two ways in which we might move beyond this apparent stalemate. First, I enumerate previously unexplored advantages of continuous burdens, including their ability to minimize the impacts of biases and other forms of structural unfairness at trial. Second, I offer the first exploration of the logistic continuous burden of proof. This novel means of deciding cases strikes a better balance between deterrence and expected errors than either a traditional burden or a linear continuous burden does. After making the case for the adoption of a logistic continuous burden of proof, this article will consider some challenges that would stand in its way and some reasonable steps we could take towards the continuous approach.