Quaestio facti. Revista Internacional sobre Razonamiento Probatorio
Quaestio facti. International Journal on Evidential Legal Reasoning
Sección: Conjeturas y refutaciones
Vol 4, núm 1 | 2023 pp. 249-271
Madrid, 2022
DOI: 10.33115/udg_bib/qf.i1.22809
Marcial Pons Ediciones Jurídicas y Sociales
© Sarah J. Summers
ISSN: 2604-6202
Recibido: 22/07/2022 | Aceptado: 10/01/2023 | Publicado online: 23/01/2022
Editado bajo licencia Reconocimiento 4.0 Internacional de Creative Commons

The Epistemic Ambitions of the Criminal Trial: Truth, Proof, and Rights

Sarah J. Summers

School of Law
University of Zurich, Switzerland
sarah.summers@rwi.uzh.ch

Abstract: This paper sets out to examine the epistemic ambitions of the criminal trial. It argues for an understanding of criminal evidence and proof which is inextricably connected to the demands of justified punishment and fair trials in the rule of law. Criminal trials must prioritise the individual rights of the accused, but they also define more generally the manner in which those subject to the law are to be treated in order to engender public acceptance of the verdict. In this sense, it is sceptical of instrumental accounts of criminal adjudication and, in particular, of the feasibility of any sort of separation of outcome and process. It subscribes instead to the notion that (true) belief in the necessity of imposing punishment in the rule of law will only be warranted if it is based on appropriate reasons, understood as reasons which are formed following a distinct type of process.

Keywords: criminal evidence, procedure, human rights, punishment.

SUMMARY: 1. INTRODUCTION.— 2. Truth, Proof, and Adjudication in the Rule of Law: 2.1. Truth in Legal Adjudication. 2.2. The Standard and Sufficiency of Proof.— 3. Truth, Proof and Rights in Criminal Adjudication: 3.1. The Distinctiveness of Criminal Adjudication. 3.2. The Standard and Sufficiency of Proof in Criminal Adjudication.— 4. Conclusions: The Epistemic Ambitions of the Criminal Trial.— BIBLIOGRAPHY.

«To relate with some reality the events of that afternoon
would be difficult and perhaps unrighteous.»
Jorge Luis Borges, Emma Zunz, p. 164.

«Glauben können sie in der Kirche.
Was wir brauchen sind Beweise.»
Jasmin Winterstein, Tatort Mainz: In seinen Augen.

1. Introduction

Any discussion of the epistemic ambitions of the criminal trial must examine not just the aims of the law of procedure and those of evidence but also the expectations governing the relationship between adjudication and proof. It is usual for the goal of the trial process to be characterized as focused on «truth»: the aim is to establish whether a disputed claim—in the criminal context, the prosecution’s assertion that the accused is guilty of the commission of a crime—is true or not 1. Criminal trials are seen as instrumentally valuable in that they enable the determination of those who can be held liable for and punished for their crimes 2. The rules of evidence are designed to facilitate this exercise. According to the «rationalist tradition of evidence scholarship», the «rectitude of the decision» lies at the heart of adjudication and «the pursuit of the truth as a means of justice under the law is to be pursued by rational means» (Twining, 2006, p. 199). On what might be described as the received view, the instrumental characterisation of the trial is mirrored by a Lockean or «veritist» conception of epistemic value, understood in terms of a high degree of confidence in the accuracy or inaccuracy of the probative facts 3.

A direct consequence of this conception of evidence and procedure is the expectation that proceedings are designed to maximise the likelihood of accurate outcomes. Factfinders are expected to follow those procedures which are most likely to result in accurate outcomes, because following such procedures makes it more likely that the outcomes will in fact be accurate 4. Many, if not all, instrumental accounts of the criminal trial also accept the importance of other values or goals, but these are seen as secondary to the principal aim of the trial as understood in terms of allowing the fact finder to establish the truth, framed in terms of the rectitude or accuracy of the verdict 5. Rules which limit the use of evidence in pursuit of other values are characterised as «side constraints» on the process of proof, as promoting values which are essentially «extrinsic» and which (potentially at least) interfere with the principal (proper) epistemic ambitions of the trial. Even those accounts which clearly argue for an understanding of criminal trials as following multiple aims, such as Roxin and Schünemann’s vision of criminal trials as equally committed to the aims of truth finding, procedural fairness and restoring the peace (2017, p. 2), seem to accept the characterisation of fairness as extrinsic to the matter of truth finding. The suggestion is that, in some circumstances, procedural rules may require the prohibition on the use of what might be understood as evidence of probative value, even if this is at the expense of the truth. The symmetry between the epistemic and procedural aims of the trial is disturbed—albeit necessarily, perhaps 6—in the pursuit of these «other» goals. Whereas rules of evidence support «rationality» and accuracy, «exclusionary type» rules, which guarantee other values like procedural fairness, constitute departures from these values. Much of the discussion in evidence law focuses on the extent to which such rules serve or interfere with the aim of accuracy and, in the context of comparative evidence law, on consideration of the extent to which systems following the common law or civilian law traditions are better placed to meet accuracy’s demands.

It is useful at the outset to highlight four aspects of this standard account of evidence and procedure which are particularly important for the consideration of the epistemic ambitions of the criminal trial. First, there is recognition of the fact that the aims of the law of evidence are closely tied to the values or aims of legal adjudication more broadly. Second, evidential principles are seen as common to all forms of legal adjudication; it is not considered necessary to distinguish between different types of proceedings, reflecting a vision of evidential decision making as a matter of logic and «rationality». Third, legal adjudication is understood as capable of being divided into a process involving «accurate outcomes» as distinct from «fair procedure». Fourth, «truth» is characterised in terms of a high degree of confidence in the accuracy (or inaccuracy) of probative facts.

This conceptualisation of legal evidence and procedure has come under pressure, however, from the rights-based regulation of criminal evidence and procedure law developed by the European Court of Human Rights (ECtHR). This vision of legal adjudication calls into question the feasibility of the separation of process and outcome. In addition, the ECtHR has insisted on the establishment of a distinct normative framework for criminal adjudication, thereby demonstrating that there is something special about the process of fact finding in criminal cases. This is important. If it is accepted that any theory of evidence will necessarily depend on the underlying theory of adjudication, and there is a long tradition from Bentham to Twining of assuming that this is in fact the case (Twining, 2006, p. 30; Postema, 1977, p. 1393 ff.), then there seems to be space for a distinct theory of criminal evidence and proof.

This paper sets out to examine the epistemic ambitions of the criminal trial at first instance. It argues for an understanding of criminal evidence and proof which is inextricably connected to the demands of justified punishment and fair trials in the rule of law. Criminal trials must prioritise the individual rights of the accused, but they also define more generally the manner in which those subject to the law are to be treated in order to engender public acceptance of the verdict. In this sense, it is sceptical of purely instrumental accounts of criminal adjudication and, in particular, of the feasibility of any sort of separation of outcome and process. It subscribes instead to the notion that (true) belief in the necessity of imposing punishment in the rule of law will only be warranted if it is based on appropriate reasons, understood as reasons which are formed following a distinct type of process.

In making the case for a distinct understanding of proof in criminal cases, it begins by considering the distinctiveness of decision making in legal adjudication. It argues that trials are not merely justified but are also defined by the nature of the participation afforded to the parties to the proceedings. This calls into question the characterisation of procedural rules as extrinsic to the decision-making process. In addition, it gives rise to a number of questions, not least regarding the relevance of the correctness of the verdict and more generally the conceptualisation of a «successful outcome». Consideration of the relationship between proof and process allows for an analysis of the extent to which the reasonableness of the verdict will depend on the nature of the regulation of the proceedings at issue. This discussion provides the basis for an examination of the distinct regulation of criminal proceedings and of the relevance of this for the regulation of proof in criminal trials.

2. Truth, Proof, and Adjudication in the Rule of Law

2.1. Truth in Legal Adjudication

Legal adjudication differs from other forms of decision making, such as that achieved by negotiation or by the holding of elections, principally with regard to the procedure followed and the extent and nature of the participation of those involved (Fuller and Williams, 1978, p. 363). Adjudication in the rule of law is essentially defined by the distinct institutional framework in which it operates. It implies a certain institutional setting involving proceedings supervised by a judge. Its defining characteristic is the «particular form of participation that it accords to the affected party», namely an «institutionally protected opportunity to present proofs and arguments for a decision in his favor» (Fuller, 1960, p. 2). An important implication of this is that adjudication must take place within a «framework of accepted or imposed standards of decision before the litigant’s participation in the decision can be meaningful» (p. 5). Meaningful participation thus demands acceptance of pre-existing or pre-determined «principles» which regulate how the court will determine the case: «Just as the judge cannot be impartial in a vacuum, so the litigant cannot join issue with his opponent in a vacuum. Communication and persuasion pre-suppose some shared context of principle» (p. 6).

Unsurprisingly, perhaps, this understanding of legal adjudication aligns closely with the vision of fair trials set out in Article 6 ECHR. A trial, by definition, is a public forum supervised by an independent and impartial authority, at which evidence and arguments are heard in pursuance of a verdict 7. At the same time, the ECtHR has interpreted the notion of fairness in Article 6(1) ECHR principally in terms of the participatory rights of the parties to present their case at a public hearing in front of an independent and impartial judge. The parties are to have an adequate opportunity to present their case—including their evidence—under conditions which do not put them at a substantial disadvantage vis-à-vis their opponent 8. There is thus some overlap between the definition and the justification of the trial. Indeed, there is an important sense in which a process, which does not meet the core definitional elements of the trial, is to be understood not just as unfair but essentially as not «legal», as failing to meet the defining characteristics of legal adjudication. It might be tempting to skip over this point as self-evident, particularly in the context of European jurisdictions which claim firm commitment to the rule of law. And yet, there are several examples of proceedings in Europe, which are of considerable important in practice, which seem to fail this fundamental test. Swiss plea-bargaining proceedings, for instance, allow for the imposition of punishment (including up to six months’ imprisonment) by prosecutors following proceedings which do not guarantee any sort of automatic judicial supervision of the decision and substantially restrict the right to be heard 9.

Trial proceedings are principally governed by the demands of fairness, but this notion operates within the distinct institutional framework implied by the rule of law 10. Underpinning this conception of legal adjudication is some sort of normative consensus on the underlying values. Of central importance in this regard is the link between respect for individuals and fair procedures. The rights-based regulation of process in Article 6 ECHR suggests that procedures will be fair if they lead to fair treatment; the nature of this treatment will be determined in accordance with the relevant legal standards governing the different types of process 11. This type of «dignitarian» account, which emphasises the intrinsic, non-instrumental value of procedures to upholding an individual’s dignity, is susceptible to criticism that it fails to explain why the «absence of a hearing entails an injustice or “moral harm”, which is in some sense distinct from that entailed by an accurate substantive decision» (Dworkin, 1986, p. 101-103). Equally, any suggestion that outcome is essentially irrelevant, providing that the procedures followed are appropriate or fair, seems intuitively wrong. One (common) response to this type of criticism is to switch to, or adopt, a broadly instrumental position according to which «accurate decisions themselves constitute an important element of fair treatment, which in turn constitutes an important element of respect for persons» 12. This approach might be criticised, though, as paying insufficient attention to the intrinsic importance of the fair treatment of individuals in the rule of law and in particular to an individual’s legitimate normative expectations to be treated in accordance with distinct legal standards.

Legal proceedings must do justice to individual autonomy, but they must also be capable of engendering public acceptance in both the process and the verdict. The significance of the legal verdict extends beyond the immediate case at issue, in that it also carries the weight of legitimising the system of legal adjudication more broadly. This highlights the importance of ensuring that the verdict is capable of securing general acceptance and suggests some sort of commitment to a commonly understood conception of reason. In reaching a verdict, the factfinder is not just asserting that he or she believes that the claim being asserted is true but is also asserting that everyone who believes otherwise is wrong 13. The legal verdict—and with it the idea of truth or true belief on which it rests—should thus be seen as distinctive in the way it calls to be justified. In the «post-metaphysical» age, the legitimacy of law rests on notions of rationality and reason 14 which are secured principally through the manner in which legal decisions are reached. Reason in legal adjudication is guaranteed in large part by the manner in which information is gathered and processed rather than through any sort of commitment to the subjective belief of the factfinder.

The process of adjudication takes on central importance, not just in defining the criteria according to which proceedings are to be understood as fair but also in relation to establishing what constitutes a «successful outcome». 15 If it is accepted, for instance, that trials in the rule of law are by definition to be supervised by an impartial judge, then a verdict issued by a non-impartial authority will not have succeeded as a legal verdict (and will also not be fair). This highlights the difficulty (or perhaps even the impossibility) of separating matters of procedure from the verdict itself.

The relationship between process and outcome is illustrated too by the case law of the ECtHR on the obligation to provide reasons for the verdict. The ECtHR has held that the «proper administration of justice» requires that «judgments of courts and tribunals should adequately state the reasons on which they are based» 16. The giving of reasons is of fundamental importance to treating individuals with dignity and allowing them to determine whether or not an exercise of authority is in fact justified 17. This requirement to give reasons might be seen as purely procedural in nature, as demanding simply that the reasons be provided, but not implying anything about the reasons themselves. In its early case law, the ECtHR seemed to take this type of approach, noting that it was «not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention» 18. The focus was very much on the existence of reasons; the right was to a «reasoned» not a «reasonable» judgment. And yet, the purpose of the obligation to provide reasons must be to allow some sort of control of the «reasonableness» of the decision. This inevitably lends the requirement a «substantive» element and emphasises the connection to lawfulness or legality. If the reasons provided are unintelligible, the refusal to acknowledge the impact of this on the fairness of the trial would call into question the sense of the requirement. It would also call into question the ability of the verdict to meet the demands of legitimacy inherent in the notion of legal adjudication.

It is unsurprising, thus, that the ECtHR has since read a «substantive» element into this obligation to give reasons. This is framed in terms of ensuring that the individual «and indeed the public» is able to «understand the verdict» and is described as a «vital safeguard against arbitrariness» 19. Legal verdicts—regardless of whether they involve the determination of civil rights or obligations or of a criminal charge—must be free from arbitrariness. The ECtHR has explained this in terms of the rule of law: «One of the fundamental components of European public order is the principle of the rule of law, and arbitrariness constitutes the negation of that principle. Even in the context of interpreting and applying domestic law, where the Court leaves the national authorities very wide discretion, it always does so, expressly or implicitly, subject to a prohibition of arbitrariness» 20. Judicial decisions will be qualified as arbitrary if they are manifestly «unreasonable» 21. This will be the case, for instance, if they are based on a «manifest factual or legal error committed by the domestic court, resulting in a “denial of justice”» 22.

The aim of legal adjudication might thus be framed in terms of enabling a determination of the truth of a disputed claim. The notion of truth in this context, however, is specific to legal adjudication, not least because the legal verdict carries expectations, which do not apply to other epistemic endeavours. The true belief of the factfinder in the claim asserted can only be lawfully established in a particular institutional context in which the rights of the parties are sufficiently protected. In addition, this process encompasses an important substantive element. The determination of the «unreasonableness» of a verdict necessarily suggests some sort of normative consensus on the notion of reason. This relates closely to the idea of correspondence or «match» between «our statements about the world and the world itself» 23. True belief in legal proceedings might thus be characterised in terms of ensuring that the factfinder believes in the right way. This is not to dispute the central importance of truth in legal adjudication. It is not so much that the aim of truth is believing in the right way, regardless of whether the «right way» reliably leads to signficant truth 24, but rather that true belief in the rule of law is in some sense defined by this process. Legal truth as embodied in the verdict is a normative concept and should be conceptualised as indivisible from the process of adjudication.

2.2. The Standard and Sufficiency of Proof

This overview of truth in legal adjudication highlights not just the importance of the factfinder believing in the right way but also that, according to the ECtHR, this process entails at the very least a prohibition on manifest unreasonableness. This in turn involves an appeal to some substantive component of reason. Of central importance is determination of when true belief in the claim asserted might be considered to have been established. This focuses attention on the regulation of the standard and sufficiency of proof. Legal proof is undoubtedly an epistemic endeavour in that it is concerned with the establishment of the existence or non-existence of facts «to the satisfaction of a legal tribunal» charged with the determination of the matter in issue 25. This has led to a significant body of literature dedicated to legal epistemology and to the idea not just of some sort of correspondence between epistemic and legal norms, but also of «legal verdicts as susceptible to evaluation by the very same normative categories used to assess beliefs» 26.

Belief is a psychological state and aims at truth in the sense that to believe that p is to believe that p is true 27. There are obvious parallels between the forming of factual beliefs in everyday life and in the legal context 28. The factfinder in legal proceedings—like an individual engaged in factual deliberations in everyday life—might be said to be concerned with the establishment of true belief. Nevertheless, there might be said to be some important differences 29. Just as legal evidence clearly differs from «the ordinary concept of evidence» (Ho, 2021) and from notions of evidence discussed in the philosophical literature 30, so too might the belief of the factfinder in legal proceedings be said to differ from that established in other contexts.

An important issue in this regard is the suggestion that it makes little sense to reconstruct the propositional attitude of the factfinder in legal proceedings implied in formulating that p is true in terms of belief (or other particularly successful kinds of belief like knowledge) 31. This rests on the argument that legal truth (or proof) is not concerned with the factfinder’s belief in the propositions deemed proven but rather with his or her acceptance of the propositions: «In all those cases in which the judge can or must decide on the facts of the case contrary to what he or she believes, we still cannot say that the judge is declaring as proven something that he or she knows or believes he or she knows» (Ferrer Beltrán, 2006, p. 303) 32. This author refers to the following example to illustrate the problem in criminal trials: «There are many cases in which, in fact, judges pronounce sentences contrary to their beliefs, not only as a result of the application of legal premises but also in determining the factual premises of their reasonings. It is not difficult to imagine in this sense that a judge or jury may have the conviction that A has carried out the deed that led to him being accused of crime Y, but that in the light of the evidence brought to trial, the principle of the presumption of innocence must be applied» (p. 297).

There seems to be something in this argument, but equally it might be said to take insufficient account of the normative asymmetry in the formation of belief in legal proceedings. The factfinder in criminal trials, for instance, is not equally interested in establishing belief in the guilt and in the innocence of the accused. The question to be determined is solely whether the factfinder believes that the accused is guilty. This does not necessitate any belief in relation to the individual’s innocence. These may be opposite propositions but in the legal context they do not (necessarily) negate each other: the truth of one does not necessitate the falsehood of the other 33. In criminal adjudication, there is no normative expectation that acquittals meet the standards for warranted true belief that the accused is innocent 34. In this sense, warranted (legal) true belief that the accused is not guilty does not imply anything about the factfinder’s (subjective) belief in the innocence of the accused.

In any event, there can be little doubt that the subjective belief of the factfinder is insufficient to meet the requirement of warranted true belief in the context of legal adjudication 35. This is guaranteed, as we have seen, by the way the evidence is gathered and processed, rather than in some sort of commitment to the subjective belief of the fact finder. The legal factfinder is bound by the normative demands of adjudication in the rule of law.

Factual beliefs can be based on evidence and the content of the belief can be «probabilified or supported by certain evidential propositions» (Williams, 1973, p. 141). In this type of case, the rationality of the belief is related to the relationship between the belief and the evidence 36. It is a feature of inductive, evidential argument, though, that such determinations will admit degrees: «Probable evidence is essentially distinguished from demonstrative by this, that it admits degrees; and all Variety of them, from the highest moral Certainty, to the very lowest presumption» (Butler, 1736: 361). In this sense, it will often be a case of «more or less and not simply of yes-or-no» (Rescher and Joynt, 1959, p. 562). This emphasises the relationship between probability and belief, the scope for error and the relevance of the legal standard of proof. Of central importance here is the determination of when the legal factfinder might be said to be justified in accepting a belief as true 37. Much of the weight of the justification of true belief in legal adjudication is carried the standard of proof and the underlying conception of reason. This is sometimes expressed in terms of statistical or mathematical probabilities (such as more than 50% certainty in the civil context) but is probably better understood in more general terms as a standard of belief regarding the truth of the facts at issue (Wright, 1988; Taruffo, 2003, p. 658).

Commitment to a standard of proof underlines the fact that a legal verdict pursues some epistemic goal and that a «legal verdict that fails to acknowledge this goal misses its mark and fails, regardless of the particular beliefs or acts of acceptance that comprise or underline it» (Pardo, 2010, p. 40). The fact that the true belief of the legal factfinder is warranted obviously does not preclude fallibility in this belief 38. Verdicts will not always be correct, but equally, it is important that verdicts are not wrong too often: «[B]elievers want to acquire true beliefs and avoid false ones» (Littlejohn, 2020, p. 5262). The law should «care about truth or the avoidance of error» (Enoch et al., 2012, p. 212).

If there is consensus that the law of evidence must be concerned with matters of truth, there is less agreement about whether the law should worry about epistemological debates about the justification of true belief. The question, in particular, is whether there is any need for the establishment of any sort of epistemic property beyond some degree of confidence in the accuracy (or inaccuracy) of the claim. Enoch et al. have framed the issue in the following terms: why, they ask, should we «ever sacrifice accuracy to ensure that legal verdicts possess some additional epistemic property?» (p. 212) 39.

Framing the issue in these terms seems to presuppose that a successful outcome is to be measured principally in terms of an accurate determination of the facts. If one accepts the instrumental account of trials as focused on the determination of a claim in a specific case, then this seems to call into question the relevance of additional «epistemic properties», not least because the determination of the success of the outcome is determined in terms of accuracy. If, though, one sees the purpose of adjudication in the rule of law in terms of the intrinsic value of process to upholding a person’s dignity by ensuring a certain type of treatment, then the success of the outcome cannot be characterised as sufficiently guaranteed by the factfinder’s true belief in the accuracy or inaccuracy of the probative facts. True belief will only be warranted if the factfinder believes in the right way. The verdict must be «rational» in the sense that its conclusion must be «correctly inferred from its premises» 40, but it must also meet the broader (moral and epistemic) demands of reason in legal adjudication. Here there seems to be space for consideration of other epistemic concerns, of the sort of justification or evidence which will be required to ensure that the conclusion of the factfinder constitutes warranted true belief in the rule of law 41. There is a tendency, connected to the focus on the logic of proof as a matter of «rationality» and «rectitude», to treat evidential and epistemic concerns as common to all types of legal fact finding (Ho, 2008, p. 86). In view of the fact, though, that the regulation of proof is tied to the regulation of the type of proceedings at issue, the reasonableness of the verdict, and the right of an individual to a substantive outcome, will necessarily depend on the nature of the proceedings. It is necessary, thus, to first consider the distinctiveness of criminal adjudication. This will allow for specific consideration of the regulation of criminal evidence and proof.

3. Truth, Proof and Rights in Criminal Adjudication

3.1. The Distinctiveness of Criminal Adjudication

Criminal proceedings are subject to a distinct regulatory framework. Before considering why this is the case, it is useful to illustrate this point by briefly considering some differences in the human rights regulation of civil and criminal proceedings 42. The regulation of criminal proceedings differs expressly from that applicable to civil proceedings in several important respects. First, the right to be heard in Article 6(1) ECHR is expressly bolstered in criminal cases by the various rights set out in Article 6(3) ECHR, namely the right to information on the charge, to sufficient time to prepare, to the assistance of counsel or an interpreter if necessary, and to question witnesses. While the ECtHR has confirmed that these rights may also apply mutatis mutandis in civil proceedings 43, it has stressed that the requirements inherent in the concept of «fair hearing» are not the same in cases involving civil proceedings as in those concerning the determination of a criminal charge 44. In a similar sense, the ECtHR has indicated that the duty to give reasons is more onerous in criminal cases and that the courts are to employ more rigorous scrutiny in assessing arbitrariness 45.

Second, the ECtHR has read into the right to be heard in criminal cases, the right to remain silent and to respect for the privilege against self-incrimination. It has repeatedly underscored the central importance of these guarantees, referring to them as lying at the heart of the notion of fair procedure under Article 6 ECHR 46. Those accused of criminal offences can be compelled to attend the proceedings, but there can be no expectation of any sort of active participation. The ECtHR has expressly linked the right not to incriminate oneself with the presumption of innocence 47.

Third, according to Article 6(2) ECHR, the accused is to be presumed innocent until proven guilty according to law. Article 6(2) ECHR «requires, inter alia, that when carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the offence charged; the burden of proof is on the prosecution, and any doubt should benefit the accused. It also follows that it is for the prosecution to inform the accused of the case that will be made against him, so that he may prepare and present his defence accordingly, and to adduce evidence sufficient to convict him» 48. There is considerable disagreement about the scope of the presumption of innocence. Some suggest that there is consensus only as regards the core element of the guarantee, namely the protection of the in dubio pro reo principle 49. To the extent, though, that in dubio pro reo might be said to regulate both the burden and the standard of proof, it is questionable whether there can be said to be agreement even on this point 50. It is widely acknowledged that the burden of proving the charge lies on the State. There is less agreement about whether the presumption of innocence encompasses a standard of proof requirement. There are indications in the case law that the presumption of innocence will be violated if «it can be established from the judgment that the court convicted the accused despite lingering doubts as to his or her guilt» 51. Trechsel (2005) notes that the proposal during the drafting process of Article 6(2) ECHR that the words ‘beyond reasonable doubt’ be added to ‘qualify the standard of proof’ ‘was (rightly) rejected because it was felt that this was already implied by the words “presumed innocent until proved guilty”’ (p. 154). Picinali (2021), on the other hand, has argued that the presumption of innocence should be understood as encompassing exclusively a rule on the burden of proof (p. 709). He suggests that while the received view of the presumption of innocence is that it is designed to protect the innocent from the improper use of State power and wrongful conviction, it is better conceptualised as stemming from a prior requirement of rationality—namely the principle of inertia in argumentation (Picinali, 2021 p. 710).

Fourth, leaving aside the proper scope of the presumption of innocence, the values underpinning legal adjudication and in particular the commitment to reason imply some standard of proof. That this takes on particular importance in the criminal law context is illustrated by the relationship between the presumption of innocence and legality 52. In Salabiaku, the ECtHR held that the presumption of innocence as an element of the «right to a fair trial» was «intended to enshrine the fundamental principle of the rule of law» 53. The presumption of innocence and the prohibition on punishment without law are linked by the common commitment to «lawfulness» and the idea of law as a constraint on State power 54. Article 7(1) ECHR prohibits the imposition of punishment in the absence of law, while according to Article 6(2) ECHR a person is to be presumed innocent until «proved guilty by law» 55. The express prohibition on punishment in the absence of law in Article 7(1) ECHR emphasises the particular importance of legality in the criminal context. State punishment in the rule of law will only be justified if it is imposed on a culpable individual for a clearly and prospectively defined prior criminal act or omission 56. This explains why «the Contracting States have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases» 57.

Finally, the obligation on the State to ensure that trials are fair, and that punishment is justified, might be said to give rise to an obligation on the State to avoid wrongful convictions. The extent of this obligation is controversial. It is sometimes said that there will be a «miscarriage of justice whenever an innocent man is convicted» (Williams, 1980, p. 104) and there can be little doubt that people have a «profound right not to be convicted of crimes of which they are innocent» (Dworkin, 1985, p. 72 f.). This gives rise to difficult questions, though, as regards what to do in situations of uncertainty as to guilt or innocence, about whether individuals have a right to a particular level of certainty, and the extent to which procedures must be established to maximise certainty in decision making (p. 79 ff.). Dworkin (1985) puts it like this: «If people are not entitled to the most accurate trials possible, hang the cost, then to what level of accuracy are they entitled?» (73 f.). The regulation of trials and punishment in the rule of law suggests an alternative understanding of miscarriages of justice, though, which is less focused on matters of accuracy. A conviction will be wrongful whenever the factfinder’s belief in the guilt of the accused is not formed in the correct way. There will be a miscarriage of justice whenever a conviction is imposed in proceedings which do not meet the standards for the establishment of warranted (legal) belief in the guilt of the accused. Seen in this light there is no contradiction between the right not to be wrongfully convicted and the right to fair procedures which run the risk of a conviction 58.

The distinct regulatory framework reflects recognition of the fact that criminal proceedings raise normative issues which differ from those that arise in other types of proceedings, such as those involving the determination of civil rights and obligations. The State assumes responsibility on behalf of the victim and society more broadly for holding offenders accountable and imposing punishment. The distinctiveness of criminal adjudication stems in part from the power of the State and in particular the State monopoly on the prosecution and punishment of crime. States are afforded considerable space to define conduct as criminal and to impose sanctions. At the same time, the State is subject to obligations which both impose limits on, and in certain cases require, the prosecution and punishment of certain types of behaviour 59. Criminal trials are distinctive because they allow for the attribution of liability and the imposition of punishment for behaviour labelled as of public concern 60.

3.2. The Standard and Sufficiency of Proof in Criminal Adjudication

Any conception of the success of the verdict framed in terms of accuracy will be too narrow because it fails to account for the importance of process 61. Nevertheless, there can be little doubt that confidence in the veracity of the verdict is important to the legal notion of warranted true belief 62. True belief in legal adjudication implies, as we have seen, commitment to substantive as well as procedural guarantees and in particular to a normative standard of proof. There is a plausible empirical claim that the standard of proof is higher in criminal cases than civil cases 63. This reflects fundamental differences in the regulatory frameworks of the various types of legal proceedings. In cases involving the determination of civil rights and obligations, for instance, the State’s obligation is principally to ensure that the right of access to court is practical and effective and to ensure equality between the private parties to the proceedings. A high standard of proof might well make it (too) difficult for a party to assert their civil rights 64. This explains the «more likely than not» type standard in such cases.

In the context of criminal adjudication, the obligations on the State are radically different. Punishment will only be justified if it is imposed by a factfinder who is warranted in believing, following a distinct process, that the accused is in fact culpable of a prior criminal act or omission. Of particular importance in this regard is the «backwards-looking» nature of the imposition of punishment. State punishment will only be justified in the sense of Article 7(1) ECHR if the sanctions imposed are imposed on a culpable individual for, in the sense of as a response to, the prior act of wrongdoing. Justified punishment therefore depends on the factfinder establishing true belief for distinct reasons following a particular process 65. Punishment imposed for the wrong reasons is both wrongful and unlawful. Here the State is under an obligation to take proper account of the imbalance which derives from the conception of crime and punishment as matters reserved to the State. This is reflected in the stringent procedural requirements, the express commitment to legality and the more robust standard of proof.

The higher standard of proof is usually considered in consequentialist terms as a response to recognition that wrongful convictions are more problematic than wrongful acquittals and that it serves to guarantee a higher degree of confidence in the accuracy of the conviction 66. An alternative justification, however, can be derived from the distinctiveness of criminal proceedings and in particular the State imposition of punishment. The State is under an obligation from fairness and equality to ensure that it does not impose on any individual a greater risk of harm (such as the harm of being wrongfully convicted or punished) than it imposes on other individuals 67. A standard of proof which requires a high standard of belief, such as that «beyond a reasonable doubt», has more potential to meet the requirement of standardised or equal application across all cases than the fuzzier «more likely or not» type standards.

Conceptualising the stricter standard of belief in these terms highlights the relevance of the legal epistemological discussion on the justification of true belief and the scope for consideration of goals accuracy. Fair treatment in criminal proceedings encompasses both procedural and substantive rights and invokes epistemic goals which are stricter than those which apply to other types of proceedings, such as those involving the determination of civil rights and obligations. Ross (2022) has outlined a vision of (criminal) legal doxasticism according to which: «Guilty verdicts are appropriate only if full belief in guilt would possess a specific rationality-conferring property, given admissible evidence»(p. 5). The question then is what sort of «specific rationality-conferring property» or epistemic support beyond belief is necessary 68. Duff et al. (2007) have argued that only knowledge will do, «for what a verdict of “Guilty” means is not simply that the defendant committed the offence, but that we, the factfinders, know that he committed it; and whilst the former claim is indeed true in this case, the latter is not»; «proof beyond reasonable doubt is thus part of the very purpose of the trial, rather than (as on the instrumentalist view) a means to the end of truth: conviction is appropriate only if the factfinder knows that the defendant is guilty» (p. 89). Littlejohn (2020) takes a similar position, arguing that there is good reason to call into question the depiction of the decision problem as one about decision under risk, not least because there is no uncertainty about which outcome is objectively best (p. 5275) 69. He argues that the epistemic value in criminal trials ought to be understood not simply in terms of the probability of guilt or innocence but rather in terms of knowledge and failed attempts at knowing (p. 5275 f.). This suggests that «justification of (full) beliefs concerning a defendant’s guilt require more than grounds that would warrant a high degree of confidence in the defendant’s guilt» (p. 5275 f.). The State will only be justified in convicting the accused and imposing punishment if it knows that the defendant is guilty.

The rule of law account of trials and punishment supports these views. The requirement that criminal evidence be gathered and evaluated in a distinct process, designed to ensure fair treatment by guaranteeing individual rights, means that the success of the verdict cannot be framed simply in terms of accuracy of outcome. The attribution of liability and imposition of punishment inherent in the criminal verdict will only be fair if imposed for the right reasons. This notion of process implies commitment not just to procedural but also to certain substantive guarantees, including a commitment to a robust standard of proof. The State authorities are only entitled to hold an individual liable and impose punishment if they know that the accused committed the offence.

4. Conclusions: The Epistemic Ambitions of the Criminal Trial

Any account of criminal evidence and proof must be situated with a broader theory of criminal adjudication. Criticism of the narrow instrumental focus of standard accounts of criminal adjudication seems well placed (Duff et al., 2007, 62 ff.). The problem, though, might be seen to be less the focus on fairness 70 and more the tendency to rely on an overly proceduralist conception of the process of prosecution and punishment. Any (solely) proceduralist theory of criminal adjudication is likely to be too narrow to capture the distinctiveness of criminal proceedings. The rule of law account of criminal adjudication must, however, be understood as encompassing substantive as well as procedural requirements. This calls into question the necessity or desirability of appealing to other concepts such as integrity to justify a coherent theory of criminal evidence and procedure 71.

The aim of criminal adjudication in the rule of law should be understood in terms of enabling the establishment of a distinct kind of truth, which is to be determined in line with the substantive and procedural requirements governing justified punishment and fair process. True belief in the rule of law cannot be separated from the process in which it is established, not least because its justification rests in large part in the way evidence is gathered and processed. The fairness of the process is of intrinsic, non-instrumental value and cannot properly be characterised as a side constraint or as serving only to ensure accurate application of the rules but must instead be seen as integral to criminal adjudication 72. This, though, is not to deny the relevance of the veracity of the verdict. Legality implies a commitment to reason which is guaranteed in large part by the standard of proof requirement. This takes on particular importance in the context of punishment. The State is only entitled to impose punishment when it can demonstrate to an appropriate standard of proof that an individual is to be held culpable for the commission of a prior criminal act or omission. The stringent nature of the standard reflects both the distinctiveness of the concept of State punishment and the obligation on the State to ensure that an individual is not exposed to a greater risk of being wrongfully convicted or punished than that imposed on other individuals. This all speaks for a vision of criminal adjudication as committed to the more ambitious epistemic goal of knowledge rather than simply a high degree of confidence in the accuracy (or inaccuracy) of the probative facts. Warranted true belief in the necessity of imposing punishment will only be justified if guided by appropriate reasons following a distinct process.

It is important to stress the relevance of this understanding of truth and proof in criminal adjudication in practice 73. The characterisation of the epistemic ambitions of the trial in terms of a high degree of confidence in the accuracy or in accuracy of the prosecution’s claim means that in the event that this outcome is subsequently called into question, the verdict need not be seen as having failed in reaching its epistemic ambitions. This can have significant legal and procedural consequences.

The issue is well illustrated by the US Supreme Court judgment in Shinn v Ramirez 74. The case involved two men, David Ramirez and Barry Jones, both convicted of murder and sentenced to death. Ramirez argued that poor legal representation had meant that evidence about his intellectual disability and childhood abuse had not been presented to the court, while Jones argued that ineffective assistance of counsel had meant that evidence of his innocence had not been put to the court. It is notable that four federal appeal court judges had held, on account of the new evidence of innocence, that Jones had been wrongfully convicted 75. The USSC, however, was unmoved. It overturned its earlier position 76, and held that federal courts could not consider evidence of ineffective counsel if that evidence had not been presented to a state court, even if the failure to do so was on account of the ineffectiveness of the legal assistance. The majority referred to the task of deciding «within the limits of human fallibility, the question of guilt or innocence of its citizens» as principally falling to the states and characterised the potential for subsequent intervention by the federal courts as «an affront to the State and its citizens who returned a verdict of guilt after considering the evidence before them. Federal courts, years later, lack the competence and authority to relitigate a State’s criminal case» 77.

This case demonstrates the very real practical importance of the different conceptions of the aims and character of legal truth and proof. If the aim of the verdict is to ensure a sufficient degree of confidence in the accuracy (or inaccuracy) of the probative facts, then such verdicts might be regarded as having succeeded, even if they are subsequently called into question. If though, the aim of the verdict is true belief guided by appropriate reasons in the context of a fair process such as to amount to knowledge, then the verdicts clearly failed. The reasons for the imposition on the punishment were flawed in that the factfinder’s belief patently did not amount to knowledge that the accused committed the crime. In such circumstances, the verdict is to be regarded as void ab initio.

The ECtHR has had to grapple with similar issues in the context of outcome and process. In an important case on the right to confrontation, for instance, it tempered the right to confront witness evidence by introducing an incoherent balancing standard in response to criticism from the UK Supreme Court (UKSC) 78. The UKSC had determined, after conducting an extensive review of the Strasbourg case law, that the aim of the right to confrontation was essentially to ensure the reliability of the evidence 79. This was of central importance to its decision to reject the more stringent approach of the Strasbourg court on the regulation of untested witness evidence 80. The subsequent judgment of the Grand Chamber essentially accepted the interpretation of the UKSC and should be understood as a capitulation to simple instrumentalism 81. Similar issues of (in)coherence and of a failure to clearly outline the fundamental values underpinning Article 6(1) ECHR have emerged in the context of the ECtHR’s «fairness as a whole» doctrine, which has led to frankly inexplicable restrictions on some of the central rights of the accused 82. Such cases highlight uncertainty in the case law of the ECtHR as to the fundamental principles and values underpinning the rights of the accused and emphasise the importance of engaging with and indeed explaining the intrinsic value of process inherent in Article 6 ECHR and Article 7(1) ECHR.

Finally, it seems important to note that a conception of the legal truth which accentuates the connection between process and outcome seems to provide more space for acknowledgment of the limitations and inherent fallibility of adjudicative factfinding. Facts in the courtroom are in the words of Jerome Frank (1949, p. 22) «twice refracted». The ways in which those involved in the proceedings interpret events or situations will often depend on a number of factors including «prior experience, on the ways in which people have organised their own sense-making and observation, on the patterns that have emerged in the past for them as meaningful in living daily life […] Stories may diverge, then, not because one is true and another false, but rather because they are both self-believed descriptions coming from different points of view informed by different background assumptions about how to make sense of events» (Lane Schepple, 1989, p. 2082). In addition, many aspects of factfinding, such as evaluations of culpability, are highly evaluative in nature, «so that it is not really accurate to say that only truth is at stake» (Summers, 1999 p. 508). Within this context, the regulation of the way evidence is gathered and processed takes on central importance in ensuring the success of legal verdicts generally and of criminal verdicts in particular.

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