Even as we endeavor to give criminal defendants the means and license to raise reasonable doubts -- to put investigations on trial -- we need to think more about when and how those doubts can be allayed. What tools should we give jurors to assess the alleged holes – the “reasonableness” of an alleged doubt? And how can the prosecution try to mend them? How we answer these questions will affect the value of trials as a systemic regulatory mechanism in a world with very few trials. Sparked by Dan Simon’s work on the “diagnosticity” of criminal trials, this essay proposes a quiet reframing of trials as regulatory interventions into a sparsely regulated world.
Daniel C. Richman,
Framing the Prosecution,
Columbia Public Law Research Paper No. 13-361
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1815