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Rationality and Accuracy in the Criminal Process - A Discordant Note on the Harmonizing of the Justices' Views on Burdens of Persuasion in Criminal Cases

NCJ Number
Journal of Criminal Law and Criminology Volume: 74 Issue: 4 Dated: (Winter 1983) Pages: 1147-1170
R J Allen
Date Published
24 pages
This paper critiques Stephen Saltzburg's rationale for applying the constitutional burden of proof (beyond a reasonable doubt) in criminal cases, as well as Saltzburg's application of his view to jury instructions on inferences and presumptions in jury decisionmaking.
In response to the reasonable doubt burden of proof in criminal cases being appropriate to justify the sentence associated with conviction, Saltzburg argues that the stigmatization of the defendant is just as important a concern as a sentence of imprisonment. Saltzburg reasons from this position that any element of a charge that has the effect of stigmatizing the defendant must be proven beyond a reasonable doubt by the prosecution. The author argues that Saltzburg relies heavily on the concept of stigmatization in his reasoning but does not define what he means by the term. This is said to produce an ambiguity that fails to provide the external standard required to determine which facts must be proven beyond reasonable doubt. Saltzburg is indicated to be constructing a scheme that would require the prosecutor to bear the burden of persuasion on every fact legislatively specified as relevant to a crime. The author states that such a theory has no obvious constitutional referent, and Saltzburg does not supply one. In applying his view to jury instructions on presumptions and inferences, Saltzburg notes that instructions that do not explicitly shift burdens of proof to the prosecutor are comments on the evidence. The author finds merit in some of Saltzburg's reasoning, but concludes that the dynamics of jury instructions and their effect is more complicated than Saltzburg's reasoning suggests. The author concludes with a summary discussion of issues involved in the achieving of accuracy and rationality in jury decisionmaking according to the burden of proof requirement. Ninety-six footnotes are listed.


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