Should We Be Convicting People We Don't Believe to Be Guilty?

It is doubtful that knowledge of guilt is a necessary condition for a criminal conviction. More plausibly, justified belief is required. But a criminal conviction is not grounded in belief as straightforwardly as is sometimes assumed. While epistemology sheds light on legal proof, a full understanding would require also taking on board considerations of practical reasoning and political morality. What is necessary for a criminal conviction is not first-personal belief in the accused’s guilt. Instead, the judge is required to make a third-personal judgment of whether one would be justified in believing − on the evidence adduced before the court and within legal constraints − that the accused is guilty as charged. If the judge concludes that one would not be justified in believing in any of the facts which must exist to constitute the offence, the judge cannot claim as his or her reason for convicting the accused that the accused has committed the offence. The law should not allow the judge to convict the accused in these circumstances as his or her motivating reason would fall short of the normative reason needed for the conviction. Exceptionally, though, the law permits a lack of congruence between the motivating reason and the normative reason. This is unsettling because it undermines an important aspect of the rule of law.