*STS Circle at Harvard* *[image: line.gif] * * * *Talia Fisher* *Taubenschlag Institute of Criminal Law, Tel Aviv University* * * on
*Probabilistic Sentencing: Conviction without Conviction * ** Monday, March 28th 12:15-2:00 p.m. 124 Mt. Auburn Street, Suite 100, Room 106 [image: line.gif] Lunch is provided if you RSVP. Please RSVP to sts <s...@hks.harvard.edu>@hks.harvard.edu<s...@hks.harvard.edu> by 5pm Thursday, March 24th. * * *Abstract:* The decision-making processes underlying the determination of guilt and punishment in criminal trials are governed by the “threshold model.” Under this model, conviction is construed as a binary, on-off decision leading to an all-or-nothing sentencing regime. Failure to meet the beyond-a-reasonable-doubt evidentiary threshold results in categorical acquittal and no punishment. Satisfaction of this standard of proof leads to the polar-opposite result of categorical conviction and to criminal punishment that is absolute in the sense that its severity is detached from any residual epistemic doubt as to the defendant’s guilt. The purpose of the paper, that I will be presenting, is to challenge the threshold model, as it emerges in the context of both guilt and sentencing. The paper will reassess the idea of guilt as a purely binary phenomenon that is limited to an on-off configuration. It will also reconsider the derivative distribution of punishment, whereby no punishment is imposed in the epistemic space below the beyond-a-reasonable-doubt threshold, while from the threshold and upwards, the severity of punishment is detached from any remaining doubt regarding guilt. The threshold model will be challenged by pitting it against an alternative regime of “probabilistic decision-making”. Under the probabilistic model, criminal guilt and punishment will be construed in a linear manner, supporting a plurality of conviction categories along the evidentiary spectrum (such as ‘conviction on guilt beyond a reasonable doubt’, ‘conviction on guilt by clear and convincing evidence’, and ‘conviciton on guilt by preponderance of the evidence’). Severity of punishment would then be correlated with the corresponding certainty of guilt. *Biography*: Talia Fisher joined TAU Law School in 2004, after receiving her LL.B., LL.M., and LL.D. from the Hebrew University of Jerusalem. She is currently a senior lecturer (with tenure) and the director of the Taubenschlag Institute of Criminal Law. Her primary research interests include private supply of legal institutions and probabilistic applications in procedural law. She teaches Evidence Law, Evidence Law Theory, ADR and Negotiation Theory. In 2009 she received the Tzeltner Award for Young Scholar, and was a member of the Young Scholars Forum of the Israeli Academy of Sciences and Humanities. She was a visiting professor at the University of Toronto Faculty of Law, a visiting scholar at Harvard Law School, and a visiting researcher at Boston University School of Law. A complete list of STS Circle at Harvard events can be found on our website: http://www.hks.harvard.edu/sts/events/sts_circle/ Follow us on Facebook: STS@Harvard <http://www.facebook.com/HarvardSTS> --------------------------------- Samuel A. Evans, DPhil Postdoctoral Fellow & Chair of the STS Circle Harvard University Program on Science, Technology, & Society Kennedy School of Government http://www.hks.harvard.edu/sts +1 (617) 496-0807
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