Decision Theory and Due Process: A Critique of the Supreme Court's Lawmaking for Burdens of Proof

Abstract

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 erroneous 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 erroneous finding proportionately. This idea is founded in Bayesian decision theory,5 in which it is formalized as a rule for choice in conditions of uncertainty. It is a cornerstone of the Court's