Miceli, Thomas J. --- "Criminal Procedure" [2009] ELECD 458; in Garoupa, Nuno (ed), "Criminal Law and Economics" (Edward Elgar Publishing, 2009)

Book Title: Criminal Law and Economics

Editor(s): Garoupa, Nuno

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847202758

Section: Chapter 5

Section Title: Criminal Procedure

Author(s): Miceli, Thomas J.

Number of pages: 20

Extract:

5 Criminal procedure
Thomas J. Miceli*


Introduction
Criminal procedure is the legal process by which a criminal defendant's
guilt or innocence is ascertained. It thus encompasses the set of proce-
dures and rules that apply to criminal defendants from the time of arrest
through the adjudication of guilt, and, in the event of a conviction, the
imposition of a legal sanction. Key features of this process include pretrial
bargaining between the defendant and prosecutor (potentially resulting in
a plea bargain), the bail system, the standard for determining guilt at trial,
rules of evidence (including constitutional protections of the defendant's
rights), and the appeal process. An economic approach to criminal pro-
cedure views these various elements within a common framework whose
goal is to minimize the sum of the cost of legal error plus the administra-
tive cost of operating the system.1
Regarding legal error, two types are possible: type 1 errors, or con-
viction of innocent defendants, and type 2 errors, or acquittal of guilty
defendants. We will argue that the rules governing conduct of a criminal
trial can best be understood as reflecting a strong bias against committing
type 1 errors. This bias, for example, explains the strict standard of proof
for conviction (beyond a reasonable doubt), as well as the various legal
protections afforded to defendants, such as the exclusionary rule and the
right against self-incrimination.2 As for administrative costs, the perva-
sive use of plea bargaining to dispose of criminal cases in ...