In this paper we provide an economic justification for the pro-defendant bias in American Criminal Procedure that we argue paints a more complete picture of the extent and breadth of these pro-defendant procedures than the most commonly forwarded justifications to date. The most commonly forwarded rationale for the pro-defendant bias in American Criminal Procedure is that the costs associated with false convictions (i.e., sanctioning and deterrence costs associated with the erroneous imposition of criminal sanctions) are greater than the costs associated with false acquittals. We argue that on closer inspection this rationale does not justify the extent of our pro-defendant criminal procedures. We offer another justification for these protections: to constrain the costs associated with abuses of prosecutorial or governmental authority. In a nutshell, our claim is that these procedural protections make it more costly for self-interested actors, whether individuals or government enforcement agents, to use the criminal process to obtain their own ends. Such protections help to reduce the rent-seeking and deterrence costs associated with abuses of prosecutorial or governmental authority in the criminal sphere. The theory developed here explains several key institutional features of American Criminal Procedure and provides a positive theory of the case law as well. The theory is also corroborated by empirical evidence on corruption from several countries.

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Keith N. Hylton Contact Information

knhylton@bu.edu
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
USA
(617) 353-8959

Vikramaditya S. Khanna Contact Information

vkhanna@umich.edu (email address for Vikramaditya S. Khanna)
who is now at The University of Michigan Law School.

University of Michigan at Ann Arbor - Law School
625 South State Street
Ann Arbor, Michigan 48109-1215
(734) 615-6959 (Phone)
(734) 764-8309 (Fax)

Presentation and Publication Information:

To be announced.

This paper has also been presented in the Harvard John M. Olin Discussion Paper Series (http://www.law.harvard.edu/programs/olin_center/) as Discussion Paper No. 318, The Center for Law, Economics, and Business, Harvard Law School, Cambridge, Massaschusetts 02138.

The Social Science Research Network Electronic Paper Collection:
http://ssrn.com/abstract_id=265795

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