Unlike the rest, this paper is not part of my doctoral research project; this is part of a second research project in legal epistemology. I argue that the canonical way of arguing for our adoption of a particular standard of proof in criminal trials – which posits an ideal ratio between two or more trial outcomes (i.e. false positive, false negative, true positive, true negative) and then attempts to reverse-engineer the standard of proof that is most likely to yield this ratio in the long run – is scuppered by skeptical difficulties in determining the distributions of apparent guilt both among genuinely guilty and genuinely innocent defendants, and that the extent of this problem has not been fully appreciated. I argue that optimism about this issue is unwarranted in the face of information regarding the prevalence of misleading evidence and juror biases in our trial system. I then suggest three responses to the problem and explain I do not find any of them fully satisfactory.
I previously presented this paper at the second Harvard Graduate Legal Philosophy Colloquium in 2016, and to Scott Hershovitz's Introduction to Philosophy of Law class at Michigan in Winter 2018. I am grateful to participants in these discussions for their formative feedback.