Professor Larry Laudan
Lecturer in Law and Philosophy
University of Texas at Austin
“When the ‘Not-Guilty’ Falsely Pass for Innocent” by Larry Laudan
While it is a belief deeply ingrained in the legal community (and among the public) that false negatives are much more common than false positives (a 10:1 ratio being the preferred guess), empirical studies of that question are very few and far between. While false convictions have been carefully investigated in more than two dozen studies, there are virtually no well-designed studies of the frequency of false acquittals. The disinterest in the latter question is dramatically borne out by looking at discussions among intellectuals of the two sorts of errors. (A search of Google Books identifies some 6.3k discussions of the former and only 144 treatments of the latter in the period from 1800 to now.) I’m persuaded that it is time we brought false negatives out of the shadows, not least because each such mistake carries significant potential harms, typically inflicted by falsely-acquitted recidivists who are on the streets instead of in prison.
In criminal law, false negatives occur under two circumstances: when a guilty defendant is acquitted at trial and when an arrested, guilty defendant has the charges against him dropped or dismissed by the judge or prosecutor. Almost no one tries to measure how often either type of false negative occurs. That is partly understandable, given the fact that the legal system prohibits a judicial investigation into the correctness of an acquittal at trial; the double jeopardy principle guarantees that such acquittals are fixed in stone. Thanks in no small part to the general societal indifference to false negatives, there have been virtually no efforts to design empirical studies that would yield reliable figures on false acquittals. That means that my efforts here to estimate how often they occur must depend on a plethora of indirect indicators. With a bit of ingenuity, it is possible to find data that provide strong clues as to approximately how often a truly guilty defendant is acquitted at trial and in the pre-trial process. The resulting inferences are not precise and I will try to explain why as we go along. As we look at various data sources not initially designed to measure false negatives, we will see that they nonetheless provide salient information about when and why false acquittals occur, thereby enabling us to make an approximate estimate of their frequency.
My discussion of how to estimate the frequency of false negatives will fall into two parts, reflecting the stark differences between the sources of errors in pleas and the sources of error in trials. (All the data to be cited here deal entirely with cases of crimes of violence.) Continue reading