Discussion in this paper focuses on how strongly we should prefer non-punishment of persons guilty of serious crimes to punishment of persons innocent of them. William Blackstone's version of that preference, expressed as a ten to one ratio, is first shown to be untenable on standard accounts of legal punishment's justifying aims. Somewhat weaker versions of that ratio also appear suspect. More to the point, Blackstone's adage obscures the crucial way in which there are risks to be assessed in setting (...) up a criminal justice system - the risk that it will not be eff ective enough at apprehending and punishing serious off enders, as well as the risk that it will expose innocent persons to harsh punishment. I urge a balancing of such risks, and argue that the salient features of many contemporary criminal justice systems can be plausibly interpreted as attempting to achieve and maintain such a balance. We do not grant criminal defendants a presumption of innocence that the state must overcome with proof of guilt beyond a reasonable doubt in order to institutionally express a strong degree of preference for non-punishment of the guilty to punishment of the innocent. Instead, we do so in order to ensure that institutions of legal punishment have suffi cient scope while preserving their ability to accurately sort the guilty from the innocent. (shrink)

How can a system of criminal punishment be justified? In particular can it be justified if the moral demand that we respect each other as autonomous moral agents is taken seriously? Traditional attempts to justify punishment as a deterrent or as retribution fail, but Duff suggests that punishment can be understood as a communicative attempt to bring a wrong-doer to repent her crime. This account is supported by discussions of moral blame, of penance, of the nature of the law's demands, (...) and of the proper meaning and purpose of the criminal process of trial and verdict: it deals both with the ideals that should inform a system of criminal law and the extent to which those ideals are actualised in existing institutions and practices. The conclusion is pessimistic: punishment cannot be justified within our legal system; and this gap between the ideal and the actual presents us with serious moral dilemmas. (shrink)

Beginning with the premise that the principal function of a criminal trial is to find out the truth about a crime, Larry Laudan examines the rules of evidence and procedure that would be appropriate if the discovery of the truth were, as higher courts routinely claim, the overriding aim of the criminal justice system. Laudan mounts a systematic critique of existing rules and procedures that are obstacles to that quest. He also examines issues of error distribution by offering the first (...) integrated analysis of the various mechanisms - the standard of proof, the benefit of the doubt, the presumption of innocence and the burden of proof - for implementing society's view about the relative importance of the errors that can occur in a trial. (shrink)