Convicting With Reasonable Doubt: An Evidentiary Theory of Criminal Law

Doron Teichman*

This Article presents an evidentiary theory of substantive criminal law according to which sanctions are distributed in proportion to the strength of the evidence mounted against the defendant. It highlights the potential advantages associated with grading penalties in proportion to the probability of wrongdoing and situates this claim within both consequentialist and deontological theories of punishment. Building on this analysis, the Article reviews the doctrinal tools used to achieve the goal of evidentiary grading of sanctions and shows that key factors in criminal law are geared towards dealing with evidentiary uncertainty. Finally, the Article explores the underlying logic of the evidentiary structure of criminal law and argues that this structure can be justified on psychological, economic, and expressive grounds.

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© 2017 Doron Teichman. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Vice Dean and Jacob I. Berman Chair in Law, Faculty of Law, the Hebrew University of Jerusalem. For helpful comments I am grateful to Hadar Dancig-Rosenberg, Anthony Duff, David Enoch, Miri Gur-Arie, Ehud Guttel, Adam Kolber, Murat Mungan, Henrik Lando, and participants of workshops at Bar Ilan University, Haifa University, the Hebrew University, Tel-Aviv University, and the annual meeting of the European Law and Economics Association. Valuable research assistance has been provided by Ben Levko. This study was supported by the I-CORE Program of the Planning and Budgeting Committee and the Israel Science Foundation (Grant No. 1821/12).