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