If a legal system regulates adjudication (or investigation), free proof is impossible.

Proof is constrained even in the absence of legal rules.

There are constraints on evidence, inference, and proof. The only question is, "What are those constraints?"

Posted by Peter Tillers at 9:52 PM
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Monday, May 03, 2004
Ill-Considered Massachusetts Reasoning about the Death Penalty in Massachusetts

Today's NYTimes reports that a gubernatorial commission in Massachusetts has recommended that Massachusetts establish capital punishment along with a set of procedures that the commission thinks will eliminate any chance of an erroneous imposition of the death penalty. See http://www.nytimes.com/2004/05/03/national/03DEAT.html.

Methinks the commission got off on the wrong foot. There is no procedure known to humankind that can altogether eliminate any chance of error in any (human or non-human) decision making procedure -- unless, of course, the proposed procedure rules out the possibility of a false positive (unwarranted imposition of the death penalty) by ruling out the possibility of a positive, the possibility of capital punishment -- which, it appears, is not what the commission had in mind.

But put aside this false start -- and consider two other missteps made by the gubernatorial commission:

1. The commission proposes that juries be required to find that there is no doubt of the defendant's guilt. This is reminiscent of Prof. Laurence Tribe's suggestion some decades ago (in 1972) that juries be told (in all criminal cases) that they must be "sure" of the defendant's guilt. The trouble is that any such requirement is either patronizing or unworkable: either the jury must be told to find that which we smart people know is impossible -- certainty about factual questions -- or the jury must be told to arrive at a level of probability (certainty) that at least some jurors will understand is impossible to achieve -- and these jurors will thus have the job of making sense of a nonsensical, or incoherent, legal requirement. This is progress?

2. Another troublesome suggestion is the proposed requirement that juries be warned that "nonscientific evidence, like testimony and witness identification, can be unreliable." The trouble here is that scientific evidence -- regardless of how carefully it is is scrutinized and reviewed -- can also be unreliable. Consistency requires that juries be warned that all evidence can be unreliable. But any such admonition about the fallibility of all evidence would be inconsistent -- no? -- with the requirement that juries be told they must be sure of the defendant's guilt.

Folks, let's just admit that if human beings ever use the death penalty, there is always a chance that a mistake will be made. If you are a believer in the death penalty, the proper question about errors in capital cases is how big the chance of a mistake (false positive) can be. My plea: let's be honest with ourselves about what human beings and societies are capable and incapable of doing. The human condition rules out the possibility of certainty about criminal guilt. (We can get close, but we can't get all the way there.)
Posted by Peter Tillers at 9:27 AM
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