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78 J. Crim. L. & Criminology 557 (1987-1988)
Decision Theory and Due Process: A Critique of the Supreme Court's Lawmaking for Burdens of Proof

handle is hein.journals/jclc78 and id is 569 raw text is: 0091-4169/87/7803-557 THE JOURNAL OF CRIMINAL LAW & CRIMINoLory Vol. 78, No. 3 Copyright @ 1987 by Northwestern University, School of Law Printed in IUS.A. DECISION THEORY AND DUE PROCESS: A CRITIQUE OF THE SUPREME COURT'S LAWMAKING FOR BURDENS OF PROOF RICHARD S. BELL* I. DECISION-THEORETICAL FOUNDATIONS In its 1987 decision in Martin v. Ohio,' the United States Supreme Court again engaged in lawmaking for burdens of proof. Although the Court ratified the state's rule in this case,2 the Court has, in the past, prescribed different rules as requirements of due process.3 The Court has justified its lawmaking by asserting that the burden of proof should apportion the risks of error in a way that favors the more important interests at stake in the trial.4 If an erro- neous finding of fact F would harm one set of interests more than an erroneous finding of not-F would harm the other, the burden of proof should lie with the party who alleges F, and the standard of proof for F should be high enough to reduce the risk of an errone- ous finding proportionately. This idea is founded in Bayesian deci- sion theory,5 in which it is formalized as a rule for choice in conditions of uncertainty. It is a cornerstone of the Court's * J.D., Yale University, 1973; M.A., Yale University, 1973; B.A., Northwestern Uni- versity, 1964. Preparation of this Article was facilitated by the generosity of Jeanne Bauer. 1 107 S. Ct. 1098 (1987). 2 Under Ohio law, the accused bears the burden of proving self-defense by the pre- ponderance of the evidence. 3 Santosky v. Kramer, 455 U.S. 745 (1982)(requiring proof by clear and convincing evidence for termination of parental rights); Addington v. Texas, 441 U.S. 418 (1979) (requiring proof by clear and convincing evidence for involuntary civil commit- ment); Mullaney v. Wilbur, 421 U.S. 628 (1975) (requiring that the prosecution bear the burden of proof on the issue of provocation); In re Winship, 397 U.S. 358 (1970)(requir- ing proof beyond a reasonable doubt of the elements of the crime). 4 See Santosky, 455 U.S. at 755-56; Addington, 441 U.S. at 423-24, 427; Patterson v. New York, 432 U.S. 197, 208 (1977); Mullaney, 421 U.S. at 698, 700-01; WVinship, 397 U.S. at 363-64. 5 For a thorough treatment of the decision-theoretical underpinnings, see R. JEF- FREY, THE LOGIC OF DECISION 1-76 (1965). 557

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