“It is better that ten guilty persons escape than that one innocent person suffer.”
Known as Blackstone’s Ratio, expressed by the English jurist William Blackstone in the 1760’s, this idea of protecting and safeguarding an innocent person, even at the expense of many guilty people going free, is a concept rooted deep within our legal system.
Other legal commentators have used numbers other than “ten”, in terms of how many guilty people should go free to safeguard one innocent person. Benjamin Franklin referred to “one hundred persons”, and the Jewish legal theorist Moses Maimonides wrote in the 1100’s, “it is better and more satisfactory to acquit a thousand guilty persons that to put a single innocent one to death.”
I think I can safely assume that I speak on behalf of all criminal defence lawyers when I say … we need more judges like Maimonides!
Or, perhaps more fitting in this month of Easter, we defence lawyers dream of judges like Jesus, who said to the mob looking to lynch the woman accused of adultery, “he that is without sin among you, let him cast the first stone at her.” One by one the mob slinked away as they considered their own misdeeds, and Jesus said to the woman, “go and sin no more.”
In criminal law cases, Blackstone’s Ratio is intertwined with the concepts of the presumption of innocence and proof beyond a reasonable doubt.
To be found guilty of a criminal offence, the proof needs to be more than just a balance of probabilities (51%), which is the standard applied in civil law matters. And, the proof needs to be more than just that the accused person is probably guilty.
However, it does not have to be proof to an absolute certainty (100%), although the actual standard leans much closer to 100% than it does to 51%. A United States case describes the reasonable doubt analysis as follows:
It is not required that the government prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense—the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs.
Disturbingly, many authoritarian states take the exact opposite view to Blackstone’s Ratio. From Bismarck to Pol Pot to Communist China, the concept has been turned upside down, “better to kill ten innocent people than let a guilty person escape”.
And interestingly, former US Vice President Cheney commented on the controversial torture techniques used by the CIA on suspected terrorists, up to 25% who were later proven to be innocent, “I’m more concerned with bad guys who got out and released, than I am with a few that in fact were innocent.”
Hmm. Let’s leave the last word on this topic to the wise philosopher who answered, when asked whether it’s better that ten guilty people go free so long as one innocent person does not suffer, “better for who?”