Benefits of Error in Criminal Justice

Note — Volume 102, Issue 1

102 Va. L. Rev. 237
Download PDF

Enroll in law school and you will be taught, within the first year, a revered maxim of criminal law: “[B]etter that ten guilty persons escape, than that one innocent suffer.” This particular articulation belongs to English jurist William Blackstone, but the general notion that the criminal justice system should prefer false acquittals to false convictions predates Blackstone. Nevertheless, the maxim is generally referred to as the Blackstone principle. The ratio itself is unimportant. No one contends that we ought to ensure exactly ten guilty defendants are acquitted for every innocent defendant that is convicted. Rather, the slogan is recited to convey a more general principle: When imposing criminal punishment, we ought to tip the scales to favor false negatives (acquittals of the guilty) for the sake of minimizing false positives (convictions of the innocent), despite a likely decrease in overall accuracy.

The Note contains three Parts that proceed as follows. Part I traces the historical origins of the Blackstone principle, lays out the traditional justifications, and introduces Epps’s dynamic critique. Part II challenges the assumptions on which Epps’s analysis relies and raises significant doubts that the Blackstone principle creates negative systemic effects for defendants. Part III then introduces an affirmative rationale by arguing that the Blackstone principle benefits innocent defendants because it promotes equality

Click on a link below to access the full text of this article. These are third-party content providers and may require a separate subscription for access.

  Volume 102 / Issue 1  

Statutory Domain and the Commercial Law of Intellectual Property

By John F. Duffy and Richard Hynes
102 Va. L. Rev. 1

The Divorce Bargain: The Fathers’ Rights Movement and Family Inequalities

By Deborah Dinner
102 Va. L. Rev. 79

A Declaratory Theory of State Accountability

By James E. Pfander and Jessica Dwinell
102 Va. L. Rev. 153

Benefits of Error in Criminal Justice

By Joel S. Johnson
102 Va. L. Rev. 237