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. (shrink)

With each of our three criminal-law topics—defining offenses, apprehending suspects, and establishing punishments—we feel, I believe, strong moral resistance to the idea that our practices should be settled by a prospective-participant perspective. This becomes quite clear when we look at how the “reforms” suggested by institutional viewing might combine once we consider all three topics together: imagine a more extensive and swifter use of the death penalty in homicide cases coupled with somewhat lower standards of evidence; or think of backing (...) a strict-liability criminal statute with the death penalty. Of course, such “reforms” would increase the execution of innocents; but, their proponents will tell us, any penal system involves the punishment of some innocents, and, if it provides for the death penalty, the execution of some innocents. Moreover, why is it worse for innocents to be punished than for innocents to suffer an equivalent harm in some other way? Formulated from a prospective-participant perspective: Why not run a small risk of being innocently executed in exchange for reducing, much more significantly, the risk of dying prematurely in other ways? (shrink)