Standards of Judgement

How do we make a decision? What kinds of evidence and certainty do we use to make a judgement?  And do those standards vary from one context to another?

This discussion came out of a conversation on current events I had with my uncle. I am interested in the underlying principles involved, not in the specific issue, and so I am going to focus on abstractions rather than on specifics.

As an aside: I believe that political discourse should focus on principles, not on partisanship, because partisanship influences decision making, and specifically pulls attention away from crucial factors. It would be best, I believe, if we judged plans on their merits, rather than on who proposed them.

The abstract principles that I want to discuss are related to the different contexts in which different standards of judgement apply.  I don’t have a full general theory, but obviously one wants to apply more stringent standards of judgement for more consequential decisions.

One would reasonably want, for example, more evidence and greater confidence when buying a $500 object than when buying a $5.00 object because the cost of error is 100 times greater (obviously financial impacts are partly measured in relative terms: a billionaire might not give more thought to the $500 than to the $5.00, but the general principle holds even if we have to adjust the numbers).

One would reasonably want, for example, more confidence in the reason behind an active plan (e.g., a healthcare intervention) than in presenting a research conclusion about that active plan because healthcare interventions ought to be supported by the conclusions of several studies. Each individual piece of research has to live up to one standard; implementation of a policy or intervention requires that several pieces of research all live up to that same standard.

One would reasonably want, for example, a higher standard of confidence before convicting an individual to loss of freedom or loss of life than convicting them to a financial penalty. This distinction is held in U.S. courts, where criminal cases are held to a standard of being beyond a reasonable doubt, but civil cases can be decided by the preponderance of evidence.  This legal distinction is the one that is of direct concern to the current event that interested me and my uncle.

Let’s talk generally about the situation: a man is accused of a crime. What standards of evidence do we want to apply to this man? Obviously, I’m going to argue that this is contextually sensitive.  If we are talking about getting a conviction in a criminal court, then the standard of judgement is clear: the guilt of the accused must be determined beyond a reasonable doubt.  On the principle that “it is better that ten guilty persons escape than that one innocent suffer” (Blackstone’s formulation), we want to be absolutely certain that the accused is actually guilty.  It’s not enough to have a credible accuser and circumstantial evidence. The burden of proof is very high when we are speaking of meting out punishment.

If we were speaking of rendering a conviction of this man in a civil case, where the penalties are generally financial, a lower standard of proof would be required in U.S. courts—a  preponderance of evidence, which is could be interpreted as saying that guilt is more likely than innocence, even if there is significant doubt.

What about some other situations in which someone might render judgement on this man? What if the accused asks a person out on a date? What standard of confidence does that person need to apply? I would argue that she/he doesn’t need anything close to a preponderance of evidence. All a person needs to reject a potential suitor is the slightest reservation.

What about a business considering hiring the accused? What standard of judgement should that company apply?  There may be legal statutes that restrict businesses’ choices, but on the whole, businesses hiring individuals should should have some discretion to reject a candidate about whom they have doubts, even if there is less than a preponderance of evidence.  The situation is inverted because now the question is about presenting an award, not about meting out punishment. Indeed, I would go so far as to say that it might be reasonable for a company to assume something like the “beyond a reasonable doubt” standard, but in reverse: the company might reasonably say “We will not hire the accused unless his innocence can be proved beyond a reasonable doubt.”  That’s pretty stringent, but a company is looking for the best performer, and if there is any reasonable doubt about a person’s guilt—even if there is a preponderance of evidence suggesting innocence—that might be a good reason to choose an alternate applicant.  

In that last phrase, I added a consideration that has not been previously mentioned, but that is certainly relevant in many situations.  Sometimes, the standard of judgement is not absolute, but is relative, and the focus is no longer on the individual accused but the organization that is looking for someone to fill a position. For a desirable job, there might be several applicants. In such a situation, the standard of judgement with respect to a person accused of a crime is reduced due to the presence of other job applicants: if the accused individual is no more qualified than some other person who is not accused of any crimes, a company might well decide to choose the person who has never been accused over the person who has been accused with no evidence beyond the accusation. The company might be very concerned to maintain the image of probity that is supported by choosing an applicant who has not been accused of any crime.

And if the job in question is a seat on the Supreme Court of the U.S., what standards should we apply? If there are a list of several candidates, amongst whom you are otherwise indifferent (Leonard Leo of the Federalist society said that the Federalist Society had a list of many potential candidates to fill the seat vacated by Justice Kennedy, and the “The list is really good…You can throw a dart at that list and in my view you would be fine.”), what standard needs to be applied to a candidate accused of a crime?  Can a candidate be rejected because of an unproven accusation? 

On the principles that I have discussed, the “beyond a reasonable doubt” standard is not the appropriate standard. A candidate accused of a crime need not be proven guilty beyond a reasonable doubt, as would be required for a criminal conviction. A candidate accused of a crime might reasonably be passed over even if the accusation is unfounded because, as noted before, the question is not of punishment but of reward, and because there are several equally qualified candidates who do not stand accused of a crime.