an expantion to this question: How/could a legal system whose punishments were based off of "level of certainty" that crime occured function?

The basic idea is that there are different levels of proof that a prosecution can be found to have reached, with the potential punishment being based off of what level of proof the jury finds has been met. The lower levels of proof have far lower minimum and maximum punishments. The higher levels of proof tend to keep the same or only slightly higher minimum punishments, but expand the potential maximum. See above question for more details. Most important is that this is not exactly an even scale, the difference between first and second level of proofs maximum punishment is far more drastic then 3 and 4th level, because the system prefers to err on the side of presumption of innocence by being less strict on someone who we are less confident actually committed the crime.

James made a good point that this would encourage more people to go to trial, as they may be willing to gamble on being found innocent if they think that, even if found guilty, they will only hit a low burden of proof and thus get a much smaller punishment.

Plea bargains are important to our legal system. We can't afford to send even a fraction of convicts to court, the number of judges and courhouses required would add a massive expense on the goverment; that's why we plea bargain more then 90% of federal cases now of days.

So this leads to my question, how does one handle plea bargaining in such a system, such that we don't have too many court cases for people gambling on either innocent verdict or a slap-on-the-wrist punishment associated with lowest burden of proof?

On the other hand, since the difference of punishment is more significant at lower levels allowing plea bargaining a crime down to the lowest level of burden of proof would allow criminals to bargain away the majority of their punishment. This brings up the question of rather a plea bargain should be capable of so drastically lowering the potential punishment for the crime.

So, what would be a good system for handling offering and accepting of plea bargains, which prevents flooding the system with people gambling due to the belief that they will only risk the lower severity punishments while still ensuring criminals face an appropriate punishment and aren't bargaining away to trivial punishments?

The answer may be to adjust to a more linear affect of proof vs punishment to make the lower burdens less tempting to gamble for, but I would prefer to avoid that option if another viable option exists.

For now assume that the minimum burden of proof is "clear and convincing evidence" (current burden for civic cases in the US); though some crimes require a higher burden to be reached to find someone guilty. While I use USA court system for examples this doesn't have to stick to US system or rules, but presume something similar to common law as the basis of the legal system

  • $\begingroup$ Would pleading guilty imply maximum certainty, bumping the punishment up to maximum? Guilty pleas may not even work in your system except as an oddity. $\endgroup$
    – Cyrus
    Commented Nov 17, 2015 at 17:28
  • $\begingroup$ @cyrus a good point. I would be inclined to say that a guilty plea without a plea bargain is set to what I defined as my level 4 burden, basically equal to what we currently consider minimum to find someone guilty in our system. I could think that through some more, perhaps based off of the answers below. Generally most guilty pleas include plea bargains as I understand it. As to how those work, that's up to how the plea bargain is handled. Perhaps it's possible to bargain a plea of guilt with a lower burden for instance. I'm interested in seeing what options come up. $\endgroup$
    – dsollen
    Commented Nov 17, 2015 at 17:40
  • $\begingroup$ I would expect the difference between 2/3 to be less than 3/4 ("we're somewhat sure, so you get 2 years. If we were more sure, we'd give you 3 years, and if we were even more sure we'd give you 10 years.") $\endgroup$
    – iAdjunct
    Commented Nov 18, 2015 at 14:16
  • $\begingroup$ A plea bargain may take the form of "we're confident that we can swing the jury to 30%-60% confident, so we'll let you plea out at 40%" $\endgroup$
    – iAdjunct
    Commented Nov 18, 2015 at 14:17

1 Answer 1


Your question isn't completely hypothetical. In the US civil system, the standard is a "preponderance of the evidence" (50.0...01%) level of certainty that a tort has occurred. However, the jury also gets to determine the amount of damages they award, and can set that number independently of what any law or contract might say about the amount that is supposed to be due. To the extent that a contract (for example) sets a minimum and maximum but the jury can ignore either or both of those, each party has an incentive to go to trial based on the possibility that the jury could ignore the limit in their favor and a disincentive based on the possibility that the jury could go the other way.

In most cases (civil and criminal), there's also a disincentive to go to trial based on the costs to the person who wants to go to trial. There is a public defender system in the US, but not everybody qualifies and for those who do, the attorneys generally don't have the time or resources to go beyond the plea bargain, and defendants in those jurisdictions face high costs of trying to get an attorney who can prepare for and go to trial. In 43 states, defendants can also have to pay the costs of their public defenders (and even the other side's attorney's fees!), especially if convicted. See John Oliver's coverage of the topic here.

The shortest answer to your question is probably that the penalty agreed to in the plea bargain is likely to be proportional to the weight of the evidence the prosecution has and what they think they can prove.

In many ways, that's not much different than the current system, especially for trials where a person might be charged with multiple crimes at different levels in the same case, where some charges might have slightly more elements than others (e.g. malice, intent) and the jury can choose the level of the charge where they think all the elements have been proven (e.g. someone might be convicted of manslaughter instead of murder). Prosecutors already factor this in when deciding what to offer in a plea bargain.

  • $\begingroup$ welcome to the site. we always welcome new folks to the site :) $\endgroup$
    – dsollen
    Commented Nov 18, 2015 at 16:19
  • 1
    $\begingroup$ John Oliver is fantastic...welcome to the site Burned. $\endgroup$
    – James
    Commented Nov 18, 2015 at 16:37
  • $\begingroup$ I agree, this is basically what I was going to answer. The plea bargain will work based on the probability of getting convicted compared to the evidence offered and penalties faced. It's no real difference to how they work in the real world. $\endgroup$
    – Tim B
    Commented Nov 18, 2015 at 17:15

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