Joel Schrag and Suzanne Scotchmer,
Crime and Prejudice: The Use of Character Evidence in Criminal Trials, 10
J. L. Econ. & Org.
Available at: http://scholarship.law.berkeley.edu/facpubs/2152
The task of juries is to dispense ex post justice. While justice requires convicting the guilty and acquitting the innocent, the evidence usually cannot distinguish with certainty. We argue that the jury will be more lenient in acquittals than is optimal for deterring crime whenever its subjective cost of wrongful convictions is at least as high as its subjective cost of wrongful acquittals. However if the jury is prejudiced against habitual criminals, its subjective cost of wrongful convictions will be relatively low, and then the jury may impede deterrence by its punitiveness rather than by its lenience. We investigate whether restricting character evidence can solve this problem.