Probabilities in probable cause and beyond: Statistical versus concrete harms

Law and Contemporary Problems

Volumn 73, Issue 3, 2010, Pages 69-105

  Colb, Sherry F ^a  

^a MIT Sloan School of Management   (United States)

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EID: 78751638148     PISSN: 00239186     EISSN: None     Source Type: Journal    
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References (107)

1. NAT'L HIGHWAY TRAFFIC SAFETY ADMIN., TRAFFIC SAFETY FACTS RESEARCH NOTE: DRIVER ELECTRONIC DEVICE USE IN 2008 1 (2009), available at http://www-nrd.nhtsa.dot.gov/Pubs/811184.PDF (showing that 812,000 vehicles are driven by someone using a hand-held cell phone at any given daylight moment).
2. See Erik Lillquist, Recasting Reasonable Doubt: Decision Theory and the Virtues of Variability, 36 U.C. DAVIS L. REV. 85, 112 (2002) (citing empirical studies showing that the degree of certainty jurors require for proof beyond reasonable doubt varies greatly from 0.92 to 0.51).
3. See Karen E. Jenni & George Loewenstein, Explaining the "Identifiable Victim Effect," 14 J. RISK & UNCERTAINTY 235, 236 (1997) (listing sources discussing the distinction).
4. One might conceive of such a split as reflecting a consequentialist approach to large groups, coupled with a deontological approach to specific victims. This could also be described as the distinction between a legislative approach (in which costs and benefits are widespread and in the future) and an adjudicative approach (in which harms have already taken place and must be addressed in their fully-realized form). John Jeffries has argued that Section 1983 injunctive relief might work better than compensatory relief for certain constitutional violations because juries will not be as concerned about inflicting large costs on particular defendants.
5. See John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 VA. L. REV. 47, 50-51 (1998) ("Juries confronting a flesh-and-blood defendant may be less quick to play Robin Hood.").
6. See also John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 YALE L.J. 87, 110 (1997) ("Most importantly, injunctions promote reforms, not reparations. They direct societal resources toward investments in future growth and development, not toward cash outlays for past harms.").
7. Brinegar v. United States, 338 U.S. 160, 175 (1949) (emphasis added) (citations omitted).
8. Gerstein v. Pugh, 420 U.S. 103, 121 (1975) (emphasis added).
9. Spinelli v. United States, 393 U.S. 410, 419 (1969).
10. Illinois v. Gates overruled Spinelli in favor of a more lenient standard, thereby leaving the absence of any need for a prima facie showing undisturbed. 462 U.S. 213 (1983), 238-39.
11. Texas v. Brown, 460 U.S. 730, 742 (1983) (emphasis added).
12. Despite this language, it may be that in one class of cases, the probable-cause standard requires a preponderance of the evidence. This class consists of situations in which police uncertainty extends to whether or not a crime was even committed. If, in other words, police suspect but are not sure that a crime was committed at all, then it may be-under one reading of lower-court decisions-that police must acquire a basis for concluding that a crime probably did take place before arresting a suspect in connection with that crime.
13. See 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT 69-70 (3d ed. 1996) (claiming that lower courts apply a preponderance-like standard when there is uncertainty about whether a crime was even committed but a less-than-preponderance standard when the crime is certain and the only uncertainty revolves around the identity of the criminal).
14. see also Sherry F. Colb, "Whodunit" vs. "What Was Done": When to Admit Character Evidence in Criminal Cases, 79 N.C. L. REV. 939, 948-54 (2001) (discussing the distinction between "whodunit" versus "what was done" crimes and how our evidentiary system does and should distinguish at trial between evidence of a crime in which the prosecution must prove who committed it versus evidence of a crime in which the prosecution must prove that there was a crime at all).
15. In personal communication, my colleague, Joel Atlas, raised the provocative question of how one can "reasonably believe" that something is true, as an officer must do prior to arresting a suspect, if one is not persuaded that, at the very least, the thing in question is more likely to be true than it is to be false.
16. See Sherry F. Colb, Innocence, Privacy, and Targeting in Fourth Amendment Jurisprudence, 96 COLUM. L. REV. 1456, 1472, 1505 (1996).
17. If the standard were greater than fifty percent, of course, one could still envision, with similar discomfort, a police officer who knows that two of three people are guilty and that one is innocent and arrests all three. One does not, in other words, escape the problem simply by raising the standard for probable cause.
18. I thank Steve Shiffrin for proposing that the doctrine of double effect (DDE) may explain our intuitions here. The DDE observes a moral distinction between intentionally and directly causing a harmful result (for example, by deliberately killing a person to transplant life-saving organs to five people), and indirectly but knowingly causing a harmful result as an incidental or collateral effect of engaging in otherwise justifiable and properly directed conduct (for example, by swerving a trolley away from hitting a group of five people, knowing that it will consequently hit one person). In the first case, we deliberately and impermissibly use another person as a means of saving five; in the latter, our intentional act is to avoid killing five people, and the death of the one is deemed an unfortunate but undesired (and conceptually severable) effect of that act. Using a person as an organ donor necessarily involves intentionally harming the one person, while swerving out of the way of five people does not.
19. See Sophia Reibetanz, A Problem for the Doctrine of Double Effect, 98 PROC. ARISTOTELIAN SOC'Y 217, 217-18 (1998).
20. When we arrest one person on the basis of probable cause, Shiffrin suggests, we do not intentionally use an innocent person as a means of ensuring that we arrest a guilty person, because we do not know that we have an innocent person in custody. If the person is innocent (as he will often be), that is an incidental effect of our arresting without certainty (collateral damage of an otherwise legitimate act). On the other hand, when we arrest two people, knowing that one is innocent, we are intentionally arresting an innocent in order to make sure that we bring in the guilty person. The known innocent person in the latter example is thus analogous to the organ donor, while the occasional (or even frequent) innocent person in the former example is more like the individual hit by the trolley swerving out of the way of the five. Though fascinating, the DDE is both under- and over-inclusive regarding the abstract-concrete distinction; the statistical-concrete disparity in intuitions occurs even when the DDE would not treat the circumstances differently. First, imagine a house on fire containing six people. Five of the people will die if the fire is not put out immediately. The sixth is in a separate part of the house with a respirator and could survive the fire but because of his location will drown if firefighters spray enough water to extinguish the fire. The DDE would treat this as a "double effect" situation (because the firefighters spray the water at the fire to put it out, thereby saving lives, and only collaterally cause the drowning of the one person). Yet the harm to the sixth person is concrete rather than statistical and thus intuitively more disturbing to people than, for example, equipping cars with air bags that will predictably cause some number of passenger deaths, because it will save more lives. Second, consider a military draft system in which a lottery determines which individuals are to go to war to protect the rest of the population. The abstract-concrete distinction does not attach special condemnation to such a system, because the people to be harmed are yet to be determined and accordingly lack concreteness. The DDE, however, would treat such a system as unjust in the same way as the doctor's decision to kill a particular patient to supply organs to another five patients is unjust- both intentionally and directly inflict harm on one individual as a means of helping or protecting others. The harm is not collateral to the purpose but is an inherent part of it. Hence, the statistical-concrete distinction captures moral intuitions that slip through the cracks of the DDE.
21. 540 U.S. 366, 372 (2003) ("Pringle's attempt to characterize this case as a guilt-by-association case is unavailing.").
22. JOSHUA DRESSLER & GEORGE C. THOMAS III, CRIMINAL PROCEDURE: PRINCIPLES, POLICIES AND PERSPECTIVES 158 (3d ed. 2006).
23. See JEROLD H. ISRAEL & WAYNE R. LAFAVE, CRIMINAL PROCEDURE: CONSTITUTIONAL LIMITATIONS 70 (7th ed. 2006) (distinguishing the two cases and the probable-cause determination with respect to each)
24. see also L. Jonathan Cohen, Subjective Probability and the Paradox of the Gatecrasher, 1981 ARIZ. ST. L.J. 627 (1981) (example of analysis focusing on the issue of which person committed the offense).
25. See Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Blinking on the Bench: How Judges Decide Cases, 93 CORNELL L. REV. 1, 19-29 (2007) (describing evidence of judges' intuitive decisionmaking).
26. See Charles R. Nesson, The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts, 98 HARV. L. REV. 1357, 1378-79 (1985) (recounting the blue-bus hypothetical). The hypothetical case is based on Smith v. Rapid Transit, Inc., 58 N.E.2d 754 (Mass. 1945). There the defendant operated the only bus line that had a route on the relevant street. Id. at 755.
27. See Roger C. Park & Michael J. Saks, Evidence Scholarship Reconsidered: Results of the Interdisciplinary Turn, 47 B.C. L. REV. 949, 986-87 (2006) ("Sometimes naked statistical evidence seems intuitively insufficient to justify a judgment. If the only proof that the plaintiff was injured by the defendant's bus instead of another company's bus was mere evidence that a majority of the blue busses in town belonged to the defendant, many of us would hesitate to find that identification sufficient.").
28. See Jonathan J. Koehler & Daniel N. Shaviro, Veridical Verdicts: Increasing Verdict Accuracy Through the Use of Overtly Probabilistic Evidence and Methods, 75 CORNELL L. REV. 247, 263 (1990) ("After all, both epistemologically and in most cases practically, how can one ever 'really' know anything? For example, how can eyewitness testimony convince us that Sally Smith 'really' was a gatecrasher, rather than that she was probably one? All evidence is probabilistic, requires inferences to support an ultimate conclusion, and involves a risk of error if thought to establish that conclusion.").
29. See, e.g., Lea Brilmayer, Second-Order Evidence and Bayesian Logic, 66 B.U. L. REV. 673, 675- 76 (1986).
30. See McCleskey v. Kemp, 481 U.S. 279, 295 n.15 (1987) ("[A]ny inference from statewide statistics to a prosecutorial 'policy' is of doubtful relevance.").
31. see DAVID C. BALDUS ET AL., EQUAL JUSTICE AND THE DEATH PENALTY 141 (1990) (finding that black defendants who killed white victims have the greatest likelihood of receiving the death penalty).
32. Randall L. Kennedy, McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court, 101 HARV. L. REV. 1388, 1420 (1988) ("[R]ace-of-the-victim disparities in sentencing [indicated by the Baldus study] probably reflect racially selective empathy more than racially selective hostility.").
33. McCleskey, 481 U.S. at 292-93 ("[T]o prevail under the Equal Protection Clause, McCleskey must prove that the decisionmakers in his case acted with discriminatory purpose. He offers no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence.").
34. People seem to have a similarly difficult time processing evidence that eyewitnesses frequently make mistakes in identifying a perpetrator. Despite such evidence, jurors continue to find eyewitness identifications compelling and persuasive.
35. See Sherry F. Colb, The Problems of Eyewitness Identification: A Personal Account, FINDLAW, Mar. 18, 2009, http://writ.news.findlaw.com/colb/20090318.html (reviewing some of the problems with eyewitness identification)
36. see also James Lang, Note, Hearsay and Relevancy Obstacles to the Admission of Composite Sketches in Criminal Trials, 64 B.U. L. REV. 1101, 1138 n.203 (citing psychological studies according to which evidence of eyewitness identification increased a jury's willingness to convict from eighteen percent to sixty-eight percent even after the eyewitness was discredited by further evidence that his eyesight was 20/400 and he had not been wearing his glasses at the time he observed the offender). Courts are often aware of this problem.
37. See State v. Hunt, 69 P.3d 571, 576-77 (Kan. 2003) ("[J]uries usually attach great weight to eyewitness identification, while others involved in a trial know and other disciplines have documented that such identification is often unreliable.").
38. 607 P.2d 924, 925 (Cal. 1980).
39. For similar reasons, the two defendants in Summers v. Tice, 199 P.2d 1, 2 (Cal. 1948), who both shot their guns at the victim at the same time were both held responsible for the victim's death, even though it was impossible to attribute the death distinctly to one rather than the other defendant. Unlike in Sindell, of course, there really was not one actual cause in Summers v. Tice-both shooters were sufficient conditions for the death, and neither was a necessary condition (in the "but for" causation sense). By distributing liability between the two shooters, then, the two people who had caused the concrete death would pay equally for the damages, a result that feels "concretely" satisfying and requires no comfort with statistical models.
40. For a description of the blue-bus scenario, see text accompanying notes 24-28.
41. An example is the gatecrasher case described in Cohen, supra note 22, at 627. In the gatecrasher scenario, we know that more than half of the 1,000 people who entered a stadium did not pay for a ticket, but we do not know anything more specific that would allow us to distinguish between the large number of people who did and the even larger number of people who did not pay. Though the odds that any one member of the crowd entered without paying are greater than fifty percent in this scenario, people faced with the hypothetical facts typically oppose the idea of allowing a jury to award damages against an individual in the stadium on the basis of this information. These reactions, however, may well reflect impatience with the plaintiff's failure to watch the door and thereby facilitate the discovery of which people in the crowd entered without paying. David Kaye offers a similar explanation when he argues that in the gatecrasher case "a factfinder should consider the fact that plaintiffs... are relying on statistical evidence and nothing more. Unless there is a satisfactory explanation for the plaintiffs' failure to do more than present the gross statistic, a rational juror might well arrive at a subjective probability of less than one-half that the defendant was one of the 501 gatecrashers."
42. David Kaye, The Paradox of the Gatecrasher and Other Stories, 1979 ARIZ. ST. L.J. 101, 106 (1979).
43. See United States v. Leon, 468 U.S. 897, 935 (1984) (Brennan, J., dissenting) ("For my part, '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures' comprises a personal right to exclude all evidence secured by means of unreasonable searches and seizures.").
44. Bram v. United States, 168 U.S. 532, 557-58 (1897) (holding that the Fifth Amendment requires exclusion of statements given in response to coercive interrogation)
45. Marcy Strauss, Torture, 48 N.Y.L. SCH. L. REV. 201, 248 (2004).
46. This may help explain why the federal government has been quite reluctant to place most terrorism-related detainees on trial in criminal court.
47. See Tung Yin, Ending the War on Terrorism One Terrorist at a Time: A Noncriminal Detention Model for Holding and Releasing Guantanamo Bay Detainees, 29 HARV. J.L. & PUB. POL'Y 149, 176-77 (2005) (suggesting that the government's choice of military tribunals was motivated in part by the inadmissibility of evidence obtained through coercive interrogation).
48. See, e.g., Leon, 468 U.S. at 906 ("[T]he use of fruits of past unlawful search or seizure '[works] no new Fourth Amendment wrong'" (quoting United States v. Calandra, 414 U.S. 338, 354 (1974)))
49. see also Sherry F. Colb, Kansas v. Ventris: The Supreme Court Misconstrues the Right to Counsel, FINDLAW, June 10, 2009, http://writ.news.findlaw.com/colb/20090610.html (discussing the significance of when a violation took place, in the Fourth, Fifth, and Sixth Amendment contexts).
50. See Herring v. United States, 129 S. Ct. 695, 699 (2009) ("The Fourth Amendment... 'contains no provision expressly precluding the use of evidence obtained in violation of its commands.'" (quoting Arizona v. Evans, 514 U.S. 1, 10 (1995))).
51. The Court, of course, regularly denies that there is even this cost to future search victims when illegally obtained evidence is admitted.
52. See, e.g., Hudson v. Michigan, 547 U.S. 586, 596 (2006) ("It seems to us not even true, as Hudson contends, that without suppression there will be no deterrence of knock-and-announce violations at all."); Herring v. United States, 129 S. Ct. 695, 704 (2009) ("[W]hen police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not 'pay its way.'"). In Hudson, police arrived at the defendant's home with a search warrant for drugs and firearms. They announced their presence but waited only a short time before opening the unlocked door and entering the defendant's home. Inside the home they discovered large quantities of drugs and a gun. The Court determined that the exclusionary rule was inapplicable and suppression of the evidence was not warranted. In Herring, police arrested the defendant after failing to update a computer database to reflect the recall of the arrest warrant. The Court found that the mistake was due to negligence and that error, by itself, was insufficient to require exclusion under the Fourth Amendment.
53. It is possible that people are not outraged because they do not realize that the exclusionary rule has been watered down. One study suggests that a majority of the public supports the exclusionary rule
54. see SHMUEL LOCK, CRIME, PUBLIC OPINION, AND CIVIL LIBERTIES: THE TOLERANT PUBLIC 45 (1999) (showing that, across all levels of education, less than thirty-five percent of those surveyed were likely to allow illegally obtained material into evidence), although it is difficult to assess whether people like it in theory but find it offensive and undesirable in concrete cases, an approach that would seem to mirror the Supreme Court's jurisprudence (which has yet to overrule exclusion altogether).
55. People v. Defore, 150 N.E. 585, 587 (N.Y. 1926) ("The criminal is to go free because the constable has blundered.").
56. See, e.g., Kimmelman v. Morrison, 477 U.S. 365, 383-87 (1986) (holding that an attorney's unreasonable failure to file a suppression motion for evidence obtained in violation of the Fourth Amendment constitutes ineffective assistance of counsel).
57. As some have noted, one asset of a § 1983 suit, as compared to suppression, is that an innocent person is particularly well situated to make use of such a remedy.
58. See Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 797-98, 812-14 (explaining that suppression benefits the guilty and arguing for direct government-entity liability under § 1983 as the solution)
59. see also Jon O. Newman, Suing the Lawbreakers: Proposals to Strengthen the Section 1983 Damage Remedy for Law Enforcer's Misconduct, 87 YALE L.J. 447, 449 n.6 (1983) (arguing that unlike "the guilty person whose conviction is precluded by the exclusionary rule [and who] has, in a sense, obtained a 'remedy' for the violation of his rights," the exclusionary rule provides no remedy to the innocent).
60. Mapp v. Ohio, 367 U.S. 643, 657 (1961) (holding that "the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments")
61. Olmstead v. United States, 277 U.S. 438, 462 (1928) ("The striking outcome of the Weeks Case and those which followed it was the sweeping declaration that the Fourth Amendment, although not referring to or limiting the use of evidence in courts, really forbade its introduction, if obtained by government officers through a violation of the amendment.")
62. Dodge v. United States, 272 U.S. 530, 532 (1926) ("If the search and seizure are unlawful as invading personal rights secured by the Constitution those rights would be infringed yet further if the evidence were allowed to be used.")
63. Weeks v. United States, 232 U.S. 383, 391-92 (1914) ("[T]he Fourth Amendment... put the courts of the United States... in the exercise of their power and authority, under limitations and restraints [and]... forever secure[d] the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law.")
64. see also Colb, supra note 11, at 1524 (arguing that even in the case of a guilty defendant, "[t]hough [he] does not deserve to be free of punishment, he has still suffered the harm of being punished without a procedurally sound determination of his guilt")
65. see generally Yale Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a "Principled Basis" Rather Than an "Empirical Proposition"?, 16 CREIGHTON L. REV. 565 (1983). According to Kamisar, "[t]he likely explanation for the failure of the Fourth Amendment to provide explicitly for an 'exclusionary rule' is that the framers thought little, if at all, about after the fact judicial control."
66. See Colb, supra note 11, at 1468-73 (elaborating a hypothetical case to support this argument).
67. See, e.g., Amar, supra note 51, at 797 ("[I]f deterrence is the key, the idea is to make the government pay, in some way, for its past misdeeds, in order to discourage future ones. But why should that payment flow to the guilty? Under the exclusionary rule, the more guilty you are, the more you benefit.")
68. L. Timothy Perrin et al., If It's Broken, Fix It: Moving Beyond the Exclusionary Rule: A New and Extensive Empirical Study of the Exclusionary Rule and a Call for a Civil Administrative Remedy to Partially Replace the Rule, 83 IOWA L. REV. 669, 752 (1998) ("The exclusionary rule bestows the greatest benefit on those accused of the most heinous crimes (and thus facing the most severe sentences) and not those who suffer the most significant injury.")
69. Andrew E. Taslitz, Respect and the Fourth Amendment, 94 J. CRIM. L. & CRIMINOLOGY 15, 18 (2003) ("'The criminal is to go free because the constable has blundered' is the rallying cry.")
70. Patrick Tinsley, N. Stephan Kinsella & Walter Block, In Defense of Evidence and Against the Exclusionary Rule: A Libertarian Approach, 32 S.U. L. REV. 63, 71 (2004) ("[T]he exclusionary rule gives rights to the guilty they do not deserve and does nothing for innocent victims of illegal searches.").
71. See United States v. Leon, 468 U.S. 897, 906 (1984) ("[T]he exclusionary rule is neither intended nor able to 'cure the invasion of the defendant's right which he has already suffered.' The rule thus operates as 'a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.'" (citation omitted)).
72. See Sherry F. Colb, Standing Room Only: Why Fourth Amendment Exclusion and Standing Can No Longer Logically Coexist, 28 CARDOZO L. REV. 1663, 1694-96 (2007).
73. 129 S. Ct. 2658 (2009).
74. Id. ("Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race.").
75. Ricci v. DeStefano, 530 F.3d 88 (2d Cir. 2008).
76. Ricci, 129 S. Ct. at 2695-96 (Ginsburg, J., dissenting).
77. 180 F.3d 42 (2d Cir. 1999).
78. Ricci, 129 S. Ct. at 2696 (Ginsburg, J., dissenting) (quoting Hayden, 180 F.3d at 51).
79. 476 U.S. 267 (1986).
80. E.g., Daniel Kahneman, Jack L. Knetsch & Richard H. Thaler, Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias, 5 J. ECON. PERSP. 193, 194 (1991).
81. See Christine Jolls, Cass R. Sunstein & Richard Thaler, A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471, 1483-84 (1998) (describing the endowment effect as an irrational tendency)
82. see also Daniel Kahneman, Jack L. Knetsch & Richard H. Thaler, Experimental Tests of the Endowment Effect and the Coase Theorem, 98 J. POL. ECON. 1325, 1326-28 (1990) (summarizing psychological studies of the endowment effect).
83. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 282 (1986) (emphasis added).
84. 506 U.S. 390 (1993).
85. Alan M. Dershowitz, Scalia's Catholic Betrayal, THE DAILY BEAST, Aug. 18, 2009, http://www.thedailybeast.com/blogs-and-stories/2009-08-18/scalias-catholic-betrayal, ("If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: 'Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she's dead, and as for you, Mr. Innocent Defendant, you're dead, too, since there is no constitutional right not to be executed merely because you're innocent.'")
86. See Crawford v. Washington, 541 U.S. 36, 61-62 (2004) ("Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined.... Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty.").
87. In re Davis, 130 S. Ct. 1, 2 (2009) (Scalia, J., dissenting).
88. See, e.g., N.Y. PENAL LAW § 120.10(1) (Consol. 2010) (defining the crime of assault in the first degree as intentionally causing physical injury).
89. United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) (Hand, J.).
90. See Neil Meltzer, Comment, Helling v. Carey: Landmark or Exception in Medical Malpractice
91. Compliance with the Medical Standard of Care May Not Protect the Specialist from Liability, 11 NEW ENG. L. REV. 301, 304-05, 305 n.27 (1975) (noting that the medical profession typically sets its own standard of care, and the debate within the profession about glaucoma testing)
92. but see Helling v. Carey, 519 P.2d 981, 983 (Wash. 1974) (finding liability when medical custom was not supported by cost-benefit analysis).
93. See Eric Nagourney, Safety: As Speed Limits Rise, So Do Death Tolls, N.Y. TIMES, July 21, 2009 at D6 (citing study showing that a ten-mile-per-hour increase in speed limit, from 55 mph to 65 mph, was to blame for 12,500 highway deaths over a ten-year period)
94. see also EUROPEAN FEDERATION FOR TRANSPORT AND ENVIRONMENT, FACT SHEET: LOWER URBAN SPEED LIMITS (2001), available at http://www.transportenvironment.org/Publications/prep_hand_out/lid:132 (showing that even at lower speeds, lowering the speed limit from 30 mph to 20 mph lowers the number of accidents by twenty percent).
95. E.g., LEO KATZ, BAD ACTS AND GUILTY MINDS: CONUNDRUMS OF THE CRIMINAL LAW 35 (1987)
96. Tom Stacy, Acts, Omissions, and the Necessity of Killing Innocents, 29 AM. J. CRIM. L. 481, 506 (2002)
97. Judith Jarvis Thomson, The Trolley Problem, 94 YALE L.J. 1395, 1396 n.3 (1985).
98. 174 Cal. Rptr. 348, 361-62 (Cal. Ct. App. 1981).
99. See Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. REV. 1659, 1688 (1992).
100. Hampton, supra note 98, at 1689.
101. For example, a Mercedes-Benz C-Class sedan is safer than a Smart car in a collision.
102. See Cheryl Jensen, Small Cars Rate Poorly in New Crash Tests, N.Y. TIMES, Apr. 14, 2009, http://wheels.blogs.nytimes.com/2009/04/14/small-cars-rate-poorly-in-new-crash-tests/ (citing Insurance Institute for Highway Safety test showing that when a Smart car collided with a Mercedes-Benz C-Class sedan, "the little Smart car went airborne and did what amounted to a pirouette").
103. Grimshaw, 174 Cal. Rptr. at 358.
104. Jenni & Loewenstein, supra note 3, at 236-40.
105. Several of my colleagues, including Steve Shiffrin, identify the "double effect" argument for distinguishing the officer who arrests two (one of whom is innocent) from the officer who arrests one (with a 0.5 chance of innocence). In the first case, on this approach, the officer intentionally arrests an innocent person as a means of finding the guilty person, and it is impermissible, under Catholic doctrine, intentionally to commit a harm against an innocent as a means of accomplishing even an equally or more beneficial objective. In the second case, by contrast, the officer arrests someone he believes to be guilty, so there is no knowing arrest of any innocents. The Doctrine of Double Effect (DDE) does not entirely track the statistical-concrete distinction because there are cases which violate DDE but which fall on the "statistical" side of the disparity (and accordingly trigger less intuitional discomfort than comparable concrete cases), and there are other cases that satisfy DDE, even though they produce concrete, determinate, and particular harm (and trigger a correspondingly greater moral discomfort).
106. See supra note 12. Nonetheless, DDE does appear to map onto the probable-cause scenario here described, and I accordingly want to respond to it, in this limited scenario. For an individual police officer, it is true that any specific arrest on probable cause will leave uncertain whether the suspect is actually innocent (by contrast to the arrest of the two people, one of whom is known to be innocent). If we consider the dilemma at the level of policymaking, however, rather than at the level of the particular police officer carrying out a particular arrest, some commonalities between the two sorts of arrest scenarios become evident. First, our decision as a policymaker to select a standard with a higher error rate commits us to arresting some number of innocent people, and we nonetheless choose to authorize all of these arrests-like the officer who arrests the two people, one guilty and one innocent-as a means of ensuring the arrest of more guilty people than we could accomplish with a higher standard of proof. In other words, when we select fifty percent odds as our probable cause standard, the individual police officer may not be using his particular suspect (whom he believes is guilty) in any specific case, but we, in selecting the standard, are deciding to arrest thousands of innocent people to ensure that thousands of guilty people are arrested, and we therefore are using the innocent to get at the guilty. Furthermore, the officer is in fact implicated too. Like the policymaker who authorizes the arrest of a large number of people, at least half of whom will be innocent, the officer who arrests hundreds or thousands of people in the course of a career, employing the probable-cause standard, knows that she is arresting a significant number of innocent people. She can avoid doing so by implementing a stricter standard for arrest (for example, proof beyond a reasonable doubt), which would reduce the number of guilty and innocent people apprehended. By the standard she applies, she accordingly, and knowingly, sacrifices some number of innocent people-or, at least, their liberty for the period of arrest-as a means of apprehending a larger number of guilty people. Their sacrifice therefore serves as a means of enabling the apprehension of the additional guilty, and the calculus is knowing rather than merely negligent or reckless with respect to the arrest of the innocent. For a comprehensive discussion of "double-effect" moral reasoning
107. see generally THE DOCTRINE OF DOUBLE EFFECT: PHILOSOPHERS DEBATE A CONTROVERSIAL MORAL PRINCIPLE (P. A. Woodward ed., 2001).