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68 Stan. L. Rev. 511 (2016)
Probable Cause Revisited

handle is hein.journals/stflr68 and id is 541 raw text is: ARTICLE
Probable Cause Revisited
William Ortman
Abstract. Most judges, lawyers, and scholars take it for granted that to charge a criminal
defendant, the government needs only probable cause of guilt. But in fact, probable cause
represents a choice, not a fixed element of our legal tradition.
This Article begins with the history of the probable cause standard. It presents novel
evidence that many Founding-era American judges rejected the idea, urged by a group of
English lawyers and judges a century earlier, that criminal charges require only a
probable ground for accusation. Many insisted that grand jurors should be certain of a
suspect's guilt before returning an indictment, a charging standard that was well suited to
the Founding generation's anxiety about concentrations of power and their informal
criminal trials. Probable cause gained traction as a charging standard in the United States
in the late nineteenth and twentieth centuries, when the criminal trial gained the
appearance of reliability. Grand juries and magistrates no longer needed to be certain of a
suspect's guilt because a trial jury would be. Or so it must have seemed at the time.
The puzzle is that the probable cause standard survived even after the rise of plea
bargaining exploded this logic. This Article offers three explanations for probable cause's
survival as a charging standard. First, policymakers may not have valued certainty of guilt,
or, for that matter, constraint on prosecution, as much as they once did. Second,
voluntary guilty pleas may have provided-or appeared to provide-adequate certainty of
guilt. Third, policymakers may have failed to examine the fit between plea bargaining and
probable cause, making probable cause's survival a matter of unreflective path dependence.
But while these explanations are descriptively plausible, they are also normatively
troubling. Worse, the probable cause standard exacerbates plea bargaining's innocence
problem and its propensity for prosecutorial control of criminal justice. The time has
come to revisit it.
* Climenko Fellow and Lecturer on Law, Harvard Law School. Many thanks to Albert
Alschuler, Douglas Baird, Rachel Barkow, Jason Bates, Stephanos Bibas, Josh Bowers,
Andrew Crespo, Daniel Epps, Daniel Farbman, Joseph Fishman, Janet Halley, Elizabeth
Papp Kamali, Michael Klarman, Stanton Krauss, Benjamin Levin, Leah Litman,
Susannah Tobin, Simon Stern, David Sklansky, Matthew Wansley, and the editors of
the Stanford Law Review for helpful comments.


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