False Acquittals Research Articles

Accuracy and Preferences for Legal Error

Abstract Legal procedures used to determine liability trade-off type-1 errors (e.g., false convictions) against type-2 errors (e.g., false acquittals). After noting that people’s relative preferences for type-1 errors (compared to type-2 errors) appear to be negatively correlated with technological advancements, we study how the accuracy of evidence collection methods may affect the trade-off between these two errors. Counter-intuitively, we find that under some conditions, greater accuracy may result in a higher probability of type-1 error (or type-2 error) maximizing deterrence. Then, assuming both errors are decreasing in accuracy, we characterize the type-1 error that emerges under electoral pressures (when the median voter’s preferences are implemented): convictions occur more often than is socially optimal but less often than is necessary to maximize deterrence. Moreover, as the harm from crime increases, the median voter becomes less tolerant of type-1 errors as the legal system’s accuracy increases. We also show that, because the median voter is less averse toward type-1 errors than the average citizen, an increase in accuracy may reduce welfare.

Finding the missing: using statement analysis to assist in missing persons cases

PurposeThe purpose of this paper is to address the complexity of missing persons cases and highlight the linguistic differences that arise in this type of crime. Missing persons cases are typically very complex investigations. Without a body, crime scene forensics is not possible, and police are often left only with witness and suspect statements. Forensic linguistics methods may help investigators to prioritise or remove suspects. There are many competing approaches in forensic linguistic analysis; however, there is limited empirical research available on emerging methods.Design/methodology/approachThis research investigates Statement Analysis, a recent development in linguistic analysis that has practical applications in criminal investigations. Real-world statements of individuals convicted of or found to be not guilty of their involvement in missing persons cases were used in the analyses. In addition, Behaviour Sequence Analysis was used to map the progressions of language in the suspects' statements.FindingsResults indicated differences between the guilty and innocent individuals based on their language choices, for example, guilty suspects in missing [alive] cases were found more likely to use passive language and vague words because of high levels of cognitive load associated with the several types of guilty knowledge suspects in missing persons cases possess. Of particular interest is the use of untruthful words in the innocent suspects’ statements in missing [murdered] cases. While typically seen in deceptive statements, untruthful words in innocent statements may result because of false acquittals.Originality/valueThis research provides some support for Statement Analysis as a suitable approach to analysing linguistic statements in missing persons cases.

Error Aversions and Due Process

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone’s view, the citizen jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions. Across multiple national surveys sampling more than 12,000 people, we find that a majority of Americans consider false acquittals and false convictions to be errors of equal magnitude. Contrary to Blackstone, most people are unwilling to err on the side of letting the guilty go free to avoid convicting the innocent. Indeed, a sizeable minority view false acquittals as worse than false convictions; this group is willing to convict multiple innocent persons to avoid letting one guilty person go free. These value differences translate into behavioral differences: we show in multiple studies that jury-eligible adults who reject Blackstone’s view are more accepting of prosecution evidence and are more conviction-prone than the minority of potential jurors who agree with Blackstone. These findings have important implications for our understanding of due process and criminal justice policy. Due process currently depends on jurors faithfully following instructions on the burden of proof, but many jurors are not inclined to hold the state to its high burden. Courts should do away with the fiction that the reasonable doubt standard guarantees due process and consider protections that do not depend on jurors honoring the law’s preference for false acquittals, such as more stringent pretrial screening of criminal cases and stricter limits on prosecution evidence. Further, the fact that many people place crime control on par with, or above, the need to avoid wrongful convictions helps explain divisions in public opinion on important policy questions like bail and sentencing reform. Criminal justice proposals that emphasize deontic concerns without addressing consequentialist concerns are unlikely to garner widespread support.

Battling to a draw: Defense expert rebuttal can neutralize prosecution fingerprint evidence

SummaryThe present study examined whether a defense rebuttal expert can effectively educate jurors on the risk that the prosecution's fingerprint expert made an error. Using a sample of 1716 jury‐eligible adults, we examined the impact of three types of rebuttal testimony in a mock trial: (a) a methodological rebuttal explaining the general risk of error in the fingerprint‐comparison process; (b) a new‐evidence rebuttal concluding the latent fingerprint recovered in this case was not suitable for use in a comparison; and (c) a new‐evidence rebuttal excluding the defendant as the source of the latent fingerprint. All three rebuttals significantly altered perceptions of the prosecution's fingerprint evidence, but new‐evidence rebuttals proved most effective. The effectiveness of the rebuttals depended, however, on whether jurors were more concerned about false acquittals or false convictions.

The Limits of Antitrust in the 21st Century

In recent months, commentators and policymakers have called for expanded antitrust enforcement to address a number of novel harms. As Judge Frank Easterbrook famously observed in 1984, however, antitrust is an inherently limited enterprise, and improvident antitrust enforcement can create greater harm than benefit. To optimize antitrust’s effectiveness, Easterbrook proposed a set of screening mechanisms that would constrain the law’s reach. This Article examines Easterbrook’s prescriptions in light of recent economic learning and market developments. It concludes that Easterbrook’s overarching prescription—that antitrust policies should be calibrated to minimize the sum of error and decision costs—remains fundamentally sound. However, his assertion that false convictions are systematically worse than false acquittals is questionable, and several of his specific screening mechanisms appear unwarranted. As courts and enforcers respond to calls for a bigger and bolder antitrust, they should embrace a revised version of Easterbrook’s approach and supplement it with four additional screening mechanisms. They should intervene only (1) to address consumer harm (2) stemming from behavior that extends market power, where (3) the harm is unlikely to be addressed in a less distortive manner by another body of law or by private ordering, and (4) the intervention does not require extensive knowledge by central planners or confer a great deal of discretionary authority on government officials.

,,,The Limits of Antitrust in the 21st Century

In recent months, commentators and policymakers have called for expanded antitrust enforcement to address a number of novel harms. As Judge Frank Easterbrook famously observed in 1984, however, antitrust is an inherently limited enterprise, and improvident antitrust enforcement can create greater harm than benefit. To optimize antitrust’s effectiveness, Easterbrook proposed a set of screening mechanisms that would constrain the law’s reach. This Article examines Easterbrook’s prescriptions in light of recent economic learning and market developments. It concludes that Easterbrook’s overarching prescription—that antitrust policies should be calibrated to minimize the sum of error and decision costs—remains fundamentally sound. However, his assertion that false convictions are systematically worse than false acquittals is questionable, and several of his specific screening mechanisms appear unwarranted. As courts and enforcers respond to calls for a bigger and bolder antitrust, they should embrace a revised version of Easterbrook’s approach and supplement it with four additional screening mechanisms. They should intervene only (1) to address consumer harm (2) stemming from behavior that extends market power, where (3) the harm is unlikely to be addressed in a less distortive manner by another body of law or by private ordering, and (4) the intervention does not require extensive knowledge by central planners or confer a great deal of discretionary authority on government officials.

The impact of proficiency testing information and error aversions on the weight given to fingerprint evidence.

Fingerprint examiners regularly participate in tests designed to assess their proficiency. These tests provide information relevant to the weight of fingerprint evidence, but no prior research has directly examined how jurors react to proficiency testing information. Using a nationally representative sample of American adults, we examined the impact of proficiency testing information on the weight given to the opinions of fingerprint examiners by mock jurors considering a hypothetical criminal case. The fingerprint examiner's level of performance on a proficiency test (high, medium, low, or very low), but not the type of error committed on the test (false positive identifications, false negative identifications, or a mix of both types of error), affected the weight that jury-eligible adults gave to an examiner's opinion that latent fingerprints recovered from a crime scene matched the defendant's fingerprints, which in turn affected judgments about the defendant's guilt. Jurors who had no information about proficiency gave similar weight to the testimony as jurors exposed to highly proficient examiners, suggesting that jurors assume fingerprint examiners perform at high levels of proficiency unless informed otherwise. We also found that a plurality of Americans deems false acquittals just as aversive as false convictions and a significant minority deems false acquittals more serious. These differences in error aversions predicted differences in evidentiary assessments, suggesting that error aversions of jurors may play an important role in criminal trials.

Error value tradeoffs in social decision-making, and beyond: Do personality values consistently map onto tradeoff preferences?

Many decisions in life involve tradeoffs between two incommensurate options, so that one's choice reveals the values placed on the options. For example, judicial decisions weigh the possibilities of false convictions versus false acquittals. Using a signal detection model, this research demonstrate that Americans generally prefer a judicial error value tradeoff that favors relatively more false acquittals, a pattern generally consistent with the “Blackstone ratio” (i.e., 10:1) in legal history. At the same time, there is substantial variation in these error value tradeoffs and several individual difference measures were assessed as potential factors to account for this variation. Contrary to expectations, judicial error value tradeoff preferences were not significantly related to political liberalism/conservatism, individualism/communalism, social dominance orientation, or political party affiliation. There was, however, a significant relationship between greater authoritarianism and preference for less bias to avoid false convictions. A third study replicated this finding and extended the research scope to other error value tradeoff contexts (e.g., in military, immigration, and business regulation settings). Additionally, Study 3 found significant relationships between context-specific attitudes and libertarianism/authoritarianism, liberalism/conservativism, and social dominance orientation for immigration, military, business regulation contexts.

Reducing Error in the Criminal Justice System

Larry Laudan’s recent work, including his most recent book, previous articles, and now his article and presentation for this Symposium, give us cause to reflect on the fundamental goals of the criminal justice system, and on whether our institutions, and the research surrounding them, are raising the right questions and resolving them in the most accurate and effective ways. For Professor Laudan, the primary purpose of the criminal justice system is to minimize harm—whether harm committed by the state against innocent individuals (conviction of the innocent—the problem of false positives), or harm caused by individuals engaging in crime (which is exacerbated by what he calls false acquittals, or the false negative problem).

Online Platforms and Antitrust: Where Do We Go From Here?

Competition policy faces new challenges in its application to digital markets and online platforms. This article develops an analytical framework that rests on three pillars: (a) only conduct that, by restricting competition, reduces long-term social welfare should be prohibited; (b) in applying such a rule, it is important to bear in mind that, under imperfect information, a decision-maker’s task is to minimise the risk and cost of both false convictions and false acquittals: (c) dynamic efficiency is a key driver of long-term social welfare, economic growth and productivity. The article goes on to apply this framework to three specific issues that are debated in relation to digital markets and online platforms: (a) market definition; (b) barriers to entry, including data and Big Data; (c) innovation.

Different Strokes for Different Folks

This paper argues that the false acquittals of serial offenders are much costlier than the false acquittals of first-time offenders. Because that is so, it is plausible to entertain the idea that different standards of proof should be used in trying criminal cases of the two sets of defendants. First-time offenders should continue to be tried using proof beyond a reasonable doubt. Known serial felony offenders should be tried by the clear and convincing evidence standard.

Wrongful Acquittals of Sexual Abuse.

Ross Cheit's book The Witch-Hunt Narrative highlights the difficulties of prosecuting child sexual abuse. Drawing examples from a single case, Alex A., we examine the ways in which false acquittals of sexual abuse are likely to occur. First, prosecutors tend to question children in ways that undermine their productivity and credibility. Second, prosecutors have difficulty in explaining to juries the dynamics of sexual abuse and disclosure, making children's acquiescence to abuse and their failure to disclose when abuse first occurs incredible. Third, attorneys undermine children's credibility by pushing them to provide difficult to estimate temporal and numerical information. A post-script to the Alex A. case illustrates the costs of wrongful acquittals.

Eyewitness Identification and the Accuracy of the Criminal Justice System

This article addresses the problem of eyewitness identification errors that can lead to false convictions of the innocent and false acquittals of the guilty. At the heart of our analysis based on signal detection theory is the separation of diagnostic accuracy—the ability to discriminate between those who are guilty versus those who are innocent—from the consideration of the relative costs associated with different kinds of errors. Application of this theory suggests that current recommendations for reforms have conflated diagnostic accuracy with the evaluation of costs in such a way as to reduce the accuracy of identification evidence and the accuracy of adjudicative outcomes. Our framework points to a revision in recommended procedures and a framework for policy analysis.

Hits, Misses, and False Alarms in Simultaneous and Sequential Lineups

Studies indicate that sequential lineups decrease the rate of false alarms at the cost of increasing the rate of lost hits. This paper discusses how policymakers should assess this data, considering measures of probative value and the preference for false acquittals over false convictions. It compares sequential to simultaneous lineups and discusses the compromise position of allowing a second lap to witnesses who do not make an identification after first viewing a sequential lineup.

Justifying the Proof Structure of Criminal Trials

During criminal trials, defendants enjoy a presumption of innocence, the burden of proof is on the government, and the standard of proof it must meet—beyond a reasonable doubt—is exacting. This ‘proof structure’ of trials is usually justified with an error distribution rationale. Yet there are well-known difficulties in establishing the optimal ratio of errors of false conviction to errors of false acquittals and with determining whether the proof structure enables us to obtain that ratio over a sufficiently lengthy run of cases. According to an alternative justification of the proof structure, individuals have a second-order moral right to demand rigorous, independent evaluations of the evidence that they have committed crimes before their primary moral rights are curtailed by legal punishment. The proof structure of criminal trials is one way to honour this right. Various objections to this defence of the proof structure are considered.

A Safety Doctrine for the Criminal Justice System

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.

Detecting Error, Learning from Our Mistakes, and the Appellate Asymmetry

This paper investigates the epistemic obstacles posed by a legal system that prevents reversal of acquittals. Because such prevention disincentivizes appeals of non-guilty verdicts by prosecutors, false acquittals are virtually impossible to identify. Apart from entailing that such errors cannot be corrected (since they are not detected), this policy has a more egregious consequence; to wit, that appellate courts have little or no opportunity to learn what kinds of flaws lead to false acquittals. Without such knowledge, the courts are in no position to make or to recommend the sorts of changes that would otherwise allow the system to reform itself by learning from its mistakes. Finally, the appellate asymmetry arguably creates a situation in which rulings from lower court judges are much more likely to favor the defendant than the prosecution. All these problems could be resolved if double jeopardy protection were seriously rethought.

The Roberts Court and the Limits of Antitrust

Antitrust is back in vogue at the U.S. Supreme Court. Whereas the Rehnquist Court decided few antitrust cases in its latter years (only one from 1993 to 1995, one each year from 1996 through 1999, and none from 2000 to 2003), the Roberts Court issued seven antitrust decisions in its first two years alone. Numerous commentators have characterized the Roberts Court’s antitrust decisions as radical departures that betray a pro-business, anti-consumer bias. While some of the decisions do represent significant changes from past practice (see, e.g., Leegin, which overruled the 1911 Dr. Miles rule of per se illegality for minimum resale price maintenance, and Twombly, which abrogated the infamous “no set of facts” pleading standard set forth in the 1957 Conley v. Gibson decision), the “pro-business/anti-consumer” characterization of the Roberts Court’s antitrust decisions is inaccurate. The characterization - caricature, really - fails to appreciate the fundamental limits of antitrust, a body of law that requires judges and juries to make fine distinctions between procompetitive and anticompetitive behaviors that frequently resemble each other. While false acquittals of anticompetitive conduct may harm consumers, so may false convictions of procompetitive actions. And efforts to eliminate errors in liability judgments are themselves costly. Optimal antitrust rules will therefore aim to minimize the sum of decision costs (the costs of reaching a liability decision) and expected error costs (the social losses from false convictions and false acquittals). Each of the Roberts Court’s antitrust decisions can be defended in light of this “decision-theoretic” approach, an approach calculated to maximize the effectiveness of the antitrust enterprise, to the ultimate benefit of consumers. This Article first describes the fundamental limits of antitrust and the decision-theoretic approach such limits inspire. It then analyzes the Roberts Court’s antitrust decisions, explaining how each coheres with the decision-theoretic model. Finally, it predicts how the Court will address three issues likely to come before it in the future: tying, loyalty rebates, and bundled discounts.

CRESSE SYMPOSIUM ON COMPETITION POLICY: PROCEDURES, INSTITUTIONS, INTELLECTUAL PROPERTY RIGHTS INTRODUCTION

THE COMPETITION AND REGULATION EUROPEAN SUMMER SCHOOL AND CONFERENCE (CRESSE) is an informal network of academics and professionals with an interest in competition policy and sectoral regulation. It was initiated by Yannis Katsoulacos (Athens University of Economics and Business) in 2005 and has since grown to become an important event in the competition and regulation annual conferences calendar, with the continuous support ofMassimoMotta (EuropeanUniversity Institute, Florence), Patrick Rey (University of Toulouse) and David Ulph (University of St. Andrews). The objective is to provide a forum in which the latest research in the areas of competition and regulation is presented and discussed. CRESSE Conference themes have been ‘Abuses of Dominance’ (2006), ‘Competition and Regulation in Network Industries’ (2007), ‘Competition Policy: Procedures, Institutions, IPR’s’ (2008) and ‘Advances in the Analysis of Competition Policy’ (2009). Presentations in the two-day annual Conference include 3–5 invited papers and a limited number (typically 25%–30%) of papers selected from those submitted following a call in the major IO journals. The annual CRESSEConference is held in early July inGreece, the institution responsible for its organization being the Athens University of Economics and Business. CRESSE also organizes an annual summer school in which visiting faculty from a large number of European and U.S. universities provide high quality training topractitioners of competitionpolicy and sectoral regulationwhowish to be up to date with new economic literature and recent legal developments. It is also active in disseminating research in the areas of competition policy and regulation and in contributing, through the organization of special policy sessions and round tables, to public debates on specific policy issues. The annual CRESSE Conference typically has two keynote lectures (the Jean-Jacques Laffont Lecture and theCRESSEConference PolicyLecture),

Taking the Ratio of Differences Seriously: The Multiple Offender and the Standard of Proof, or, Different Strokes for Serial Folks

This paper analyzes the case for utilizing different standards of proof for trying cases involving, respectively, serial offenders and first-time offenders. It argues that, if we expect the standard in a trial to reflect the costs and benefits of the four possible outcomes at trial, then the empirical data leave no room for doubt that the profiles of all four outcomes -- true and false convictions and true and false acquittals -- are strikingly different for serial offenders than for those without prior convictions. Moreover, it is shown how the phenomenon of widespread and prolonged recidivism poses insuperable problems for those who subscribe to a retributionist or just deserts theory of crime and punishment.