“Must Jurors Know the Stakes of Conviction? Sentencing, Encroachment, and Legal Proof”

The title of this post is the title of this new paper now available via SSRN and authored by Colin Bradley and Eleanor Gordon-Smith. Here is its abstract:

A recent view in legal epistemology holds that since knowledge is the standard for proof of criminal guilt, and since there is pragmatic encroachment on knowledge, contrary to current trial practice juries should be told the sentence a defendant would receive if convicted.  We argue against this view. First, pragmatic encroachment on legal proof would produce distorted and unjust trial practice.  Second, even granting pragmatic encroachment on legal proof would not of itself undermine the basic justification for withholding sentencing evidence from juries.  We close on the false allure of epistemology-first arguments for legal reform.