by Casey J. Bastian

As we evolve our systems of criminaljustice, it becomes apparent that we must first agree what constitutes “justice.” And when we focus on what is justice within the criminal procedures for adjudicating guilt, an old maxim is frequently cited by many people — it is “better that ten guilty persons escape than one innocent suffer.” This famous 1765 dictum is attributed to English Jurist William Blackstone. It has been referred to as the “Mount Everest of Legal Mantras.” Sometimes called “Blackstone’s ratio,” or “the Blackstone Principle,” this 10:1 ratio implies that a society should be willing to accept the acquittal of many who may be guilty to avoid even one wrongful conviction. Is this still an acceptable view in our modern era? Research suggests it is not. Americans today reject this principle. Results from multiple national surveys of over 10,000 people demonstrate that convicting the innocent and allowing the guilty to go free are viewed as equally serious errors. The public demands accuracy.

A study of recent survey data related to these concepts, as well as the practical implications on our systems of justice, was conducted by Brandon L. Garret and Gregory Mitchell. Their report titled “Error Aversions and Due Process” (“Report”) was published in January 2022. The Report notes that “first results showing widespread rejection of the Blackstone ratio were so surprising and potentially disruptive that we tested their robustness multiple times, using a series of large samples drawn from the full U.S. population and multiple measurement methods.” The results also have implications beyond jury trials as the evolution of modern due process must involve protections for those who may eventually plead guilty.

A belief that wrongful convictions are a greater injustice than wrongful acquittals within criminal justice systems goes as far back as Biblical times. The Blackstone principle was first invoked by the Supreme Court of the United States (“SCOTUS”) in 1895 to justify the “presumption of innocence.” SCOTUS again used the rationale to incorporate a “beyond a reasonable doubt” standard under the Fourteenth Amendment’s Due Process Clause in criminal proceedings. Today, the presumption of innocence and the proof beyond a reasonable doubt standard are considered fundamental rights for criminal defendants. Each arising from the premise that clear and convincing proof shall be found before the government may impose any punishment. This shall be true even if some guilty persons might escape punishment.

It is quite evident that SCOTUS views the Blackstone principle as being embodied in our nation’s ideas of due process: “With reputation, liberty, and at times even life on the line, every legal and moral precept counsels caution in bringing down the hammer of justice on a criminal defendant.” On the whole, legal scholars, lawyers, and judges accept the Blackstone principle in that it supports procedural asymmetries that extend protections to the defendant. As researcher Daniel Epps writes, “[S]erious and sustained discussions of the principle’s costs and benefits are few and far between. Most simply treat it as a self-evident truth.” Indeed, legal scholars, lawyers, and judges rarely even question whether the laymen, who are our arbiters of truth, might agree. This may be the result of legal education inculcating this perspective; to the educated, it is simply obvious.

The overarching belief is that jurors will simply err in favor of the accused when following jury instructions, even if they may not believe that a higher burden of proof should apply to a given case. As the Report notes: “For far too long, constitutional criminal procedure, evidence law, and trial practice have assumed jurors will impartially test a prosecution case. We call into question that assumption and suggest a different path for criminal procedure.”

Christopher Sanchez was on trial for assault on a public servant. During voir dire, Sanchez’s lawyer proposed the following to be inquired of the prospective jurors, asking if they were “to rate on a scale of one to five whether [they] agreed or disagreed with the statement that it is better for ten people to go free than one be convicted.” The judge did not allow the rating scale but did permit counsel to question if they agreed or disagreed with the Blackstone ratio. On appeal, the appellate court determined that the disallowing of the scale by the trial court did not affect Sanchez’s substantial rights. The conclusion being that jurors may disagree with the ratio for multiple reasons. Perhaps they disagree with the posited ratio because it may either be too low or too high; maybe jurors find any errors unacceptable. As such, it is necessary to look closer into the views of prospective jurors towards the principle and its effect on their interpretation of the beyond a reasonable doubt standard.

The Report’s authors assert that Sanchez had revealed an important belief held by jurors — many do not share Blackstone’s perspective. Worse, those who disagree are less likely to afford as much reasonable doubt to a defendant than those who agree. Such revelations implicate our current understanding of criminal justice policies and due process. Modern standards of due process depend on jurors faithfully adhering to the high burden placed on government’s evidence. The Report argues that the fiction that is the reasonable doubt standard should be reconsidered by courts and policy makers as a means of guaranteeing due process. Installing protections that do not rely on jurors honoring our laws’ preference for wrongful acquittals should be done instead. We should also consider enforcing stricter limits on prosecutor evidence and adding stringent pretrial screening of criminal cases. This is even more important when criminal trials are vanishing, and our justice system is one primarily made up of plea bargaining. As SCOTUS determined in Lafler v. Cooper, 566 U.S. 156 (2012), “Criminal Justice today is for the most part a system of pleas, not a system of trials.” Robert Scott and William Stuntz wrote in Plea Bargaining as Contract, “To a large extent ... horse trading determines who goes to jail and for how long.... [I]t is not some adjunct to the criminal justice system; it is the criminal justice system.”

While it is true that a majority of criminal cases are resolved without ever reaching the petit jury, we must still consider how the people tasked with being arbiters of truth operate. Jurors are not explicitly told to err on the side of freeing the guilty. Nor are they told to resolve all doubts or ambiguities in favor of the accused. Judges simply instruct the jurors that the “defendant is presumed innocent of the charges.” Jurors are then advised that this presumption “is not overcome unless you are convinced beyond a reasonable doubt that the defendant is guilty as charged.” Given the abstract nature of such judicial admonishments, it shouldn’t be surprising that juror interpretations of the subjective reasonable doubt instruction vary widely. Understanding why jurors seem to apply varying thresholds for conviction is crucial to protecting rights under the Due Process Clauses. This understanding also allows for determining which legal procedures reduce this variability. Researchers of juror interpretation have found that education levels and differences in demographics do not wholly explain why jury instructions are applied differently. It appears that differences flow primarily from differing “legal personalities.”

The Report finds that “differences in jurors’ levels of cynicism about the justice system and its protection of offenders, their willingness to disregard civil liberties to maintain order, and their beliefs about the frequency of criminal behavior and the need for punishment to control it translate into pro-prosecution versus pro-defense biases that in turn affect how jurors weigh evidence and decide whether the evidence is sufficient for conviction.” Jurors react differently to jury instructions because they bring a variety of goals and preconceptions to the jury task. If the legal personality is one of strong aversion to wrongful convictions, they are likely to ensure due process by holding the government to its high burden of proof. If the legal personality is one of strong aversion to wrongful acquittals, we must be concerned that they will not require strict proof of guilt, presume evidence, and may lend too much weight to evidence of prior bad acts. Judge Jack Weinstein speculates that jurors “may evaluate the same evidence differently and adjust the burden of proof based on personal experience.” Weinstein attributes these differences as ones arising from the juror’s “degree of confidence in the police, the prosecutor, the court and the justice system as a whole.” While not foolproof, any attorney would do well to inquire of potential jurors about their beliefs and determine their individual “legal personality.”

As to quantifying error aversion regardless of legal personality, several large samples and measurement methods exist. Each revealing that a great percentage of survey respondents are equally averse to either error if given the response choice. The General Social Survey (“GSS”) is a “nationally representative survey of adults in the United States conducted since 1972” that “collects data on contemporary American society in order to monitor and explain trends in opinions, attitudes and behaviors.” Since 1985, the GSS has periodically asked which is worse, and 75% believe wrongful convictions are worse in a forced-choice response method. It is a similar forced-choice error aversion question found in the International Society Survey (“ISS”). The ISS finds that as of 2016, 61% of respondents find wrongful convictions to be the worst mistake. However, when you remove the forced-choice response scenario and add consideration of if the errors are equally bad, 57%, or 5,296 of 9,000 respondents in a Garrett et al. survey, select the equally bad response. This is overwhelmingly found across considerations regardless of offense conduct and demographics of gender, age, education, and political party. What did not seem to matter either were prior personal experiences with the criminal justice system, whether the prior experience was positive or negative. It was revealed that many equally fear their friends or family being victimized by offenders and the system itself. This lends to supporting the conclusion that most want fairness, accuracy, and accountability in our systems of criminal justice.

The final section of the Report discusses the broader consequences arising from the public’s error aversions. If our Constitution theoretically incorporates the Blackstone principle into due process protections, the data should be alarming. If the law is serious about ensuring accurate findings of guilt, the focus should be more on what evidence the prosecutors present than on burden of proof. The focus should be on truth-seeking and substantive justice instead of procedural protections. This may be the most necessary in the plea-bargaining stage, which does not occur “in the shadow of likely trial outcomes.” As such, procedural protections during the pretrial plea stage have more impact than protections meant strictly for the trial stage. Better results arise from pretrial protections that accomplish goals relative to accuracy of outcomes, including “enhanced criminal discovery during the plea process and enhanced pretrial screening of the reliability of evidence.”

The appellate level is another area where reforms should occur. Currently, appellate courts view the evidence in the light most favorable to the prosecution. This assumes that jurors “reasonably determined guilt,” a romantic notion. Jurors are not infallible. It would be better to apply special appellate scrutiny especially to the evidence in cases that carry risk of wrongful convictions, like when there is a single eyewitness or one involving recovered memories.

The rise of mass incarceration resulted from lawmakers and the public desiring more strict sentences. Due process and accuracy should be complementary within any system of justice. Americans agree: a large percentage believe that reforms in the criminal justice system are needed. The focus should be on rehabilitation, not solely punishment. Courts and reform advocates must incorporate the idea of error aversions when evaluating how our system works, and how it should evolve into a more just system. As the Report concludes: “Americans across the political spectrum want both fairness and safety — they want to avoid convicting the innocent and acquitting the guilty.” 

Source: Virginia Public Law and Legal Theory Research Paper No. 2022-08, Duke Law School Public Law & Legal Theory Series No. 2022-02, Michigan Law Review, (forthcoming)

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