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Notes -
I seem to be missing vital context, necessary to follow the law review article. In the United Kingdom the problem of "who pulled the trigger" is solved by the notion of joint enterprise
Thinking about that myself, it strikes me that even UK law is not quite ruthless enough. Here is my theory of how a "two robbers, one shot" case should go.
"proof beyond reasonable doubt" is not a terminal value. The actual goal is to solve an optimization where the two big desiderata pull in opposite directions. First, one wants to live under a justice system that suppresses robbery and murder, so that one does not get robbed or murdered. Second, one notices that justice systems tend to turn into injustice systems. A naively designed justice system will turn into a graver risk than that posed by robbers and murders constrained by no justice system at all. At least in the absence of a justice system one may possess weapons and fight back.
The social dynamic is that a naively designed justice system that suppresses robbery and murder is a power honey pot that attracts the worst kind of people. In time the police force is manned by two kind of people. The first are smart criminals who join the police to abuse police powers and rob and murder under color of law. The second kind of person starts of good, but is corrupted by absolute power and the malign influence of the first kind of person.
We have solutions to these problems. We split the justice system into three parts. The police investigate. The Crown Prosecution Service presents the case to the judge. The judge listens attentively to the defense explaining why the prosecutor is wrong. The instrumental value "proof beyond reasonable doubt" is there to poison the honey pot. Only nerdy, wannabe Sherlock Holmes become detectives and their personal motivation is to crack the case and find out who really did it. Needing to provide convincing proof for the prosecutor to present to the judge filters out personality types who would otherwise be draw to the power wielded by the justice system. The wrong kind of person is filtered out because the system wields power as a system; no individual gets to indulge their personal power trip.
Return to the "two robbers, one shot" conundrum. We don't actually care which one pulled the trigger, and are happy to hang both of them. That works well to further the first goal of suppressing robbery and murder. If we care who pulled the trigger, a smart robber might find himself a stupid and violent partner, to do the bloody part and take the drop if the victim dies. Ugh! We don't want that. But what of the second, more troubling goal, of poisoning the power honey pot, to avoid attracting the sort of person, attracted to police work for power and personal gain? The prosecution still need to prove the robbery element beyond reasonable doubt. And they still need to prove the murder, except for exact attribution, beyond reasonable doubt. I think that the honey pot remains poisoned, even without needing to say which robber fired the fatal shot.
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