Aim or preference? Reflections on the commitment to the truth in the criminal process

Abstract It is widely accepted that the criminal process aims at the truth. It is also widely accepted that convicting the innocent is worse than acquitting the guilty. While apparently unrelated, these two claims are in tension with one another. The latter claim is traditionally used to justify a standard of proof that is skewed in favour of the defendant, aimed at protecting the innocent from conviction. A skewed standard, however, is not the standard of proof that minimises expected errors; that is, it is not the standard to choose if truth-finding is indeed the aim of the criminal process. The article attempts to overcome this tension. It argues that, if someone seeks consistency between the commitment to the truth and the commitment to protecting the innocent from conviction, they should treat true outcomes as a preference on which the process is based, not as a/the aim of the process. Notably, a preference entails a more modest practical commitment than that entailed by an aim. Taking this more modest commitment to the truth has implications for the regulation of any phase of the criminal process in which the value of truth appears to be in tension with non-epistemic values.