Avoidance, Errors and the Optimal Standard of Proof

Mungan, Murat C.; Samuel, Andrew

doi:10.2139/ssrn.3166118

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Avoidance, Errors and the Optimal Standard of Proof

George Mason Law & Economics Research Paper No. 18-18

15 Pages Posted: 20 Apr 2018 Last revised: 10 Jul 2018

See all articles by Murat C. Mungan

Murat C. Mungan

George Mason University - Antonin Scalia Law School, Faculty

Andrew Samuel

Loyola University Maryland

Date Written: April 20, 2018

Abstract

Criminals often engage in costly avoidance to lower their probability of being detected and sanctioned. Such avoidance, in turn, affects the optimal enforcement policy. This paper studies the impact of avoidance on a specific type of enforcement policy - the standard of proof. We show that when avoidance is possible the optimal standard of proof is weaker than preponderance of the evidence. This stands in contrast to much of the literature, which shows that non-deterrence costs usually cause the standard of proof to be stronger than preponderance. Our results suggest that it is important not to ignore criminals' secondary behavior when determining the optimal standard of proof.

Keywords: Standard of Proof; Deterrence; Avoidance; Preponderance of the Evidence

Suggested Citation: Suggested Citation

Mungan, Murat C. and Samuel, Andrew, Avoidance, Errors and the Optimal Standard of Proof (April 20, 2018). George Mason Law & Economics Research Paper No. 18-18, Available at SSRN: https://ssrn.com/abstract=3166118 or http://dx.doi.org/10.2139/ssrn.3166118