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The Sources and Limitations of the Criminal Law

However, courts usually uphold a statute against a vagueness challenge if it would alert the ordinary person that there is a reasonable risk that his conduct would violate the law. As Justice Holmes said in Nash v. United States, “the law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree.” [26]Finally, a court can construe the statute more narrowly so that, as interpreted by the court, it is not unconstitutionally vague.[27]

The Burden of Proof

A final “limit” on the criminal law’s reach is the procedural protections afforded a criminal defendant. In this book, we discuss only one[28]—the high standard of proof required in criminal cases.

In virtually all legal proceedings, the person who wishes to change the status quo must demonstrate that there is good reason for doing so. Thus, she must carry the burden of proof that some legal harm has been inflicted, and that some legal remedy should be provided. In most civil lawsuits, the standard by which this proof must be established is articulated as a “preponderance” of the evidence. In a few suits, the standard is “clear and convincing,” which is assumed to be “more than” a mere preponderance. In 1972 the United States Supreme Court confirmed in In re Winship [29] what had been the rule in the United States for over two centuries: In a criminal case the United States Constitution requires that the prosecution has the burden of proof, and the standard of proof is beyond a reasonable doubt (BRD). The Court gave two reasons for this requirement: (1) defendants might face loss of liberty if convicted; (2) defendants would certainly be stigmatized as having committed immoral acts. In later cases, the Court made clear that both of these factors must be present to require this level of proof. In civil commitment cases, where there is a potential loss of liberty but no stigmatization as a criminal, for example, the standard is “clear and convincing,” not BRD.[30]

It is fairly easy to quantify the preponderance standard: 50.01 percent of the probabilities. And “clear and convincing” is “somewhat more” (70 percent?). But how much is “beyond a reasonable doubt”? In United States v. Fatico, 458 F. Supp. 388 (S.D.N.Y. 1978), a United States district court judge polled his colleagues and found that they “quantified” BRD as low as 76 percent and as high as 95 percent.


[26] 229 U.S. 373, 377 (1912).
[27] Winters v. New York, 333 U.S. 507 (1948).
[28] See R. Bloom & M. Brodin, Criminal Procedure: Examples and Explanations (4th ed. 2005), for a discussion of many others. R. Singer, Criminal Procedure II: From Bail to Jail: Examples and Explanations (3d ed. 2012).
[29] 397 U.S. 358 (1972).
[30] Addington v. Texas, 449 U.S. 418 (1979).

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