I think this is all pointless without giving actual time to what the ramifications of being not guilty beyond reasonable doubt but "probably guilty" actually are.

Is someone going to be on the sex offenders' register because they were found "probably guilty"? Prison time?

The entire point of guilt beyond reasonable doubt is to prevent the state from punishing people without proper proof. And it's not a standard that emerged in a vacuum.

As for rape victims specifically, there's all sorts of things we don't do or do poorly that could be worked on before we lower the standards of proof for convictions.

Proper support for the accuser (both community and state, before, during, and after a trial), proper investigation and processing from police, and so on.

You say it wouldn't, I think it would. The problem is easily big enough to make it worth serious consideration.

One thing it would be is official and public knowledge. Sentencing is debatebale but previous probably guilty convictions would be taken into account when sentencing for further similar crimes.

Agree with that except for the 'before' bit which should be 'as well as'. There's always going to be a fundamental difficulty proving many types of rape case beyond a reasonable doubt. Specifically date rape type cases where there's no dispute that sex took place and it's all about consent.

Nope. Lowering the burden of proof for such a serious crime is absolutely not worth serious consideration.


Then you don't get convictions, that's just the way it is.

I dont subscribe to that view at all. Soemtimes it better to be able to just say "that's the way it was"

There are very good reasons to have a high standard of proof for criminal convictions and the government punishing innocent people in significant numbers is simply unacceptable.

The justice systems problem with rape prosecutions is also simply unacceptable.

Real politcs is often about having to balance simply unacceptable things. I'm skeptical it would result in innocent people being punished in significant numbers. A counter-argument that concerns me more is that people who would have been found guilty might start to get found probably guilty because it's an easier decision for the jury.

So your suggestion is to tell the public that someone hasn't been found guilty but it was a coin flip so have at it?

Sounds bad.

Err...no. Lowering standards of evidence for conviction obviously requires a different argument to "we should properly investigate accusations".

I think we'll just have to both agree that I am right and you are wrong.

No not a coin flip. As I said in my first post "(maybe a fair bit more than 51% but still less of a burden than beyond reasonable doubt)"


That doesn't imply we shoudn't do both or should do one before the other.

I think it is incumbent on you to state where the threshold should lie. And why. With as much precision as you can muster.

If the threshold is to be stated numerically, I think it is further incumbent on you to describe exactly how a jury or justice is supposed to take an accounting of the evidence.

I also request that you steel up your argument and describe for me the 3 most likely negative consequences of reducing the standard of guilt in an criminal proceeding.

What exactly is the problem(s) that are caused by requiring a high standard of confidence of guilt?

The first one that comes to my mind is that some victims are reluctant to come forward with accusations that appear to carry no physical evidence.

Are there others? Can you enumerate the 3 most important?

It is today (in the US) because the burden of proof is high. Because the current system requires physical evidence, corroborative circumstantial evidence, corroborating witnesses. To wit -- actual evidence.

If the burden of proof was low(er), necessarily the number of prosecutions would go up.

Obviously, the prosecution of actual crimes is a great thing. But this isn't how human nature works. You always have people gaming the system.

I know whenever I encounter regular people who think previous Roulette spins affect the next spin, or that the Martingale is a way to print money, or that a 3:2 sports favorite is a 100% LOCK BET IT ALL, or [insert the thousands of ******ed things most people believe about probability], I think to myself, "Man, the justice system would be much better if this person were on a jury estimating whether there's a 51% chance of guilt with someone's life at stake."

At least "probably guilty" is somewhat definable in the manner we do preponderance of evidence in arbitration and such. Quite how "66% sure" could ever be properly evaluated I don't know.



It certainly doesn't imply we should. You actually have to make that case, and it's a very different case to how investigations and trials are handled. We already know that reports of sexual violence go up when victims feel safe to do it. We know that police fail to take victims seriously. We know that backlogs lead to improper handling and processing of evidence. We know that continued support throughout empowers victims to go to trial.

And we don't need to talk about this in the abstract. When you look at recent cases like the Rotherham scandal, it's immediately obvious that the reason for the lack of prosecutions was nothing to do with the burden of proof required. It was that it took years and eventual huge public pressure to get the authorities to pull their thumbs out and do it.

Just maybe it would be a good idea to get the basics, the stuff we know works, right before an a Sklansky and Chez driven overhaul to the fundamentals of the justice system.

I woudnt put a number on it (I guess DS is a better person to put that question to) anymore than 'beyond reasonable doubt' has a number. Instruction to the jury would be somethign like 'very likely' - no doubt better people than me can chose better words/instructions.

2 Negative consequence are that:

some innocent people who would have been found 'not guilty' will now be found 'probably guilty'

some guilty people who would have been found 'guilty' will now be found 'probably guilty'

Not sure I can think of a 3rd. No doubt there are some


Victims deterred (even with some physical evidence)

Police/prosecution services not wanting to bother with cases they dont expect to win very often.

Failure of those who do prosecute to win. The conviction rate (I believe it's ~60) doesn't sound too bad in itself but given that so many victims are deterred from proscuting it's more like 60% of the most easy to win cases.


Everything has to be balanced. I'm skeptical that people will game the system by bringing forward significantly more malicious prosecutions but if it does then I'd agree we shouldn't ignore the evidence and would have to adjust or tackle it somehow.

I say throw them all into Schrödingers cat boxes!

Look, if you are going to call for a change to the existing system, you probably should be capable of describing how you want things changed.

Of course, I'd be interested to hear what David has to say on precisely how one defines "very likely" guilty. I wonder if it would come down to "grossly negligent" vs. "extremely careless"?

Regardless, better people then you have already chosen better words. In fact, they were basically geniuses (imperfect as they were). They decided that a system employing a jury of peers to the defendant, who were charged to come to a unanimous decision of guilt or not, beyond a reasonable doubt, was the best mechanism in the pursuit of justice.

1) Suppose you were interviewing a prospective new employee. You do a background check and you find that the person was found "very likely" to have committed a crime. How would that affect your hiring decision?

2) How do you suppose a minority community would be treated under a judicial system where the standard of guilt is a spectrum of probability?


Back to an earlier point I made in this thread. Very few adult defendants in the courts are first time offenders. Perhaps instead of weakening the standard of a guilty verdict, should we increase penalties?

If you are truly concerned about criminals getting away with crimes, make penalties much longer and harsher for those that you do catch.

probably guilty verdicts that carry probation as opposed to prison sentences would likely be better for groups that you think people are prejudiced against (or any group really). If I didn’t commit a crime and knew it could never be proven I would much rather a certain outcome of probation than roll the rice for even a small chance of a prison sentence from a jury of people who’re prone to vote guilty because they’re scared of the alternative.

Severity of penalties for proven offenders is kind of a separate issue.

You make a good point...

Instead of "stop and frisk", we could have "stop and probation".

That sounds way better.

What do you think?

I think you're having difficulties conceptualizing the issue.

If you think that people are prejudiced to that degree, stop and probation should be a step up from stop and probably lock 'em up. The most devastating outcomes by far are when innocent people get locked up. The tradeoff is more people have to check in with POs, some of whom were mistakenly labelled "probably guilty" due to prejudice, others who were legitimately probably guilty who otherwise would have walked free with no steps taken to reduce the likelihood of reoffending.

Again, if I'm a not guilty person i would gladly accept a significantly higher chance of being monitored in order to reduce the chance of mistakenly being put in prison. I don't think any sane person would feel otherwise.

You're only saying that because that's the way things have been for a long time. There're people who revere religious scripture because it's been around a long time and therefor must be infallible, do you believe that too or are you only religious when it comes to civics?

Beyond a reasonable or shadow of a doubt is so ambiguous that you can inject whatever you want into it based on feelz which makes peopel far more at the mercy of prejudicial juries, not less. It also creates arbitrary choke points that are needlessly high variance for decisions that are life changing. If someone is very likely guilty but not beyond the necessary doubt threshold you may not think it appropriate to send them to prison but there is something tangibly different in terms of how you'd want to deal with the situation than if the jury decided there's no chance the person did it.

Probation is not a cake walk by any means and if you were deemed “probably guilty” due to prejudice then there is a chance that can happen again, so then what. Is part of the plan to change the penalty of breaking probation or will we just toss someone in jail for violating a “probably guilty” probation? What if the odds of that happening are greater than the chance of an innocent person getting convicted of a crime under the current system, then this probably guilty thing wouldn’t look so good.

Also I still don’t know how you’re getting jurors to understand what x% chance of someone being guilty even means unless we are letting everyone go with their feeling on whatever percentage they feel is right.

I'm calling for serious consideration. That would as a minimum involve expert committees, law makers, scrutiny of the legislation and democratic accountability. I don't think the exact wording is necessary to argue for starting that ball rolling.

Personally I'm unequivocally for a qualitative rather than a quantitative judgement. DS may well see it differently. I'd also much prefer it to being found clearly guilty under a lower standard such as 'very likely' than the more messy concept of 'probably guilty'

That's a different standard of guilt rather than better words. I agree they did a good job but I hope they would be extremely unhappy to see how the justice systems have performed so appalling in various areas and would be arguing for reform.

As I said I would argue for it as being found guilty of committing a crime at a lower standard. They would have troubles getting hired but would it be a worse situation than having been found guilty in a civil court at an even lower standard?

Measures to address systemic racism at all levels of the justice system and society should be an urgent priority. Despite the geniuses from past we need to look at extremely radical ways to address it. I don't however think we can ignore the problem with justice for rape victims because the system is racist - on that basis I'd abolish prison first, it's a ****ing outrage how badly that hurts some minorities.

That's not generally how I see it but in this case, if found guilty to a very likely standard multiple times, then these people need to be kept away from the opportunity to re-offend.

Really, this is one of the more reasonable posts in this thread. It isn't all that much more absurd than the way things work now. At least in day to day practice.

The whole system is based on nonsense. The core idea that a random group of twelve people can by observation reliably assess the credibility of a witness is on par with reading chicken entrails.

What if the odds are greater of what, someone being found probably guilty violating parole and being sent in prison despite being innocent vs being found guilty despite being innocent? You can dream up parole enforcement so aggressive and arbitrary that 100% of people end up violating the terms and are sent to prison.

I don't know what the relative probability would be, just as i don't know what violating those conditions implies about their guilt since we're not actually dealing in specifics. Ideally the parole conditions are set in a way such that violating them suggests guilt or bad intent, not because someone was 15 minutes late to meet their PO.


You're doing that to far greater of a degree by using ambiguous phrases like "beyond a reasonable doubt".

You can define the parameters in any number of ways. ie:

>90% = definitely guilty
66-90% = probably guilty
33-66% = unsure
10-33% = probably not guilty
<10% = definitely not guilty

Even if they have no capacity to grasp what probability is the labels themselves are much more clear.

It makes it a lot easier to avoid deadlocks, costly retrials and strong willed jurors browbeating others to vote one way to get the trial over with.