Working Papers,
Copenhagen Business School, Department of Finance

Abstract: This paper addresses the issue of the optimal standard of proof in crim-inal

law. It is assumed that people in society care about both fairness and

deterrence. It is important to punish those who are guilty and only those.

However, error is unavoidable and hence a trade-o¤ emerges between the

three aims of punishing the guilty, not punishing the innocent and deterring

potential criminals. It is shown that when only deterrence matters the op-timal

standard of proof is a preponderance-of-the-evidence standard (given

some other assumptions) while if fairness is an issue the standard will gen-erally

be stricter and involve Bayesian up-dating. When both fairness and

deterrence matter the standard of proof will (generally) lie in between the

two standards. An example illustrates how the model might be applied in

practice to determine the optimal standard of proof for a given crime.

Keywords: Law

JEL-codes: A00

32 pages, August 8, 2000

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