318. Keith N. Hylton and Vikramaditya S. Khanna, Toward an Economic Theory of Pro-Defendant Criminal Procedure, 03/2001.
Abstract: In this paper we provide a justification for the pro-defendant bias in American Criminal Procedure that we argue paints a more complete picture of the extent and breadth of these pro-defendant procedures than the most commonly forwarded justifications to date. The most commonly forwarded rationale for the pro-defendant bias in American Criminal Procedure is that the costs associated with false convictions (i.e., sanctioning and deterrence costs associated with erroneous imposition of non-monetary or criminal sanctions) are greater than the costs associated with false acquittals. We argue that on closer inspection this rationale does not, by itself, justify the extent of our pro-defendant criminal procedures. We offer another justification for these protections - to constrain the costs associated with abuses of prosecutorial or governmental authority. In a nutshell, our claim is that these procedural protections make it more costly for self-interested actors, whether individuals or government enforcement agents, to use the criminal process to obtain their own ends. The theory developed here explains several key institutional features of American Criminal Procedure and provides a positive theory of the case law as well.