Federico Picinali

Federico Picinali

Email: F.Picinali@lse.ac.uk
Administrative support: Michele Sahrle
Room: New Academic Building 5.10
Tel. 020-7955-7265

I earned a Degree in Legal Sciences and a Specialized Degree in Law at the Università degli Studi di Milano. Afterward, I studied at the Yale Law School and at the Università degli Studi di Trento, where I earned an LL.M. and a Ph.D. in law, respectively. During these formative years I was an exchange student at the UC Berkeley School of Law and a visiting researcher at the UC Hastings College of the Law, at the Cardozo School of Law, and at Penn Law. Just prior to becoming an Assistant Professor, I was a visiting fellow at the LSE Department of Law and a LSE Fellow.

I have been admitted to the Italian Bar.

Research Interests

I am a scholar of evidence law and criminal law. My main interest is in the philosophy underlying these two areas of law. My research involves insights into epistemology, inductive logic, statistics, moral philosophy, and philosophy of mind.

Selected articles
and chapters in books

'The Denial of Procedural Safeguards in Trials for Regulatory Offences: A Justification ' Criminal Law and Philosophy (2016)

Regulatory offences are a complex phenomenon, presenting problematic aspects both at the level of criminalisation and at the level of enforcement. The literature abounds in works that study the phenomenon. There is, however, an aspect that has remained largely unexplored. It concerns the relationship between the regulatory framework within which the crime occurs and the procedural safeguards that defendants normally enjoy at trial or at the pre-trial stage: defendants tried for regulatory offences are often denied safeguards that are generally considered as important constituents of trial fairness. Relying on a new conceptualisation of regulatory offences, this paper advances a theory that justifies these exceptional rulings.

'Generalisations, causal relationships and moral responsibility' The International Journal of Evidence & Proof (2016) 20 (2) pp.121-135

In Chapter 4 of his book Character in the Criminal Trial, Mike Redmayne addresses a series of non-epistemic arguments against the use of bad character evidence. Redmayne is particularly successful in debunking arguments focusing on the defendant’s autonomy. Inspired by the early drafts of Chapter 4—which I had the honour to read—I published an article trying to contribute to the debate. At the time of writing, however, I was not aware of a beguiling argument concerning the use of behavioural generalisations, formulated and defended by Amit Pundik in a recent research paper. According to this argument, we should not prove guilt using generalisations that presuppose a causal relationship between an antecedent factor and individual behaviour, if this relationship negates the freedom of the individual under any theory about determinism and free will that one may adopt—be it a libertarian or a compatibilist theory. In this article I critically assess this argument and attempt to show that it does not succeed.

'Base-rates of Negative Traits: Instructions for Use in Criminal Trials' Journal of Applied Philosophy (2016) 33 (1) pp.69-87

Decision-makers in institutional and non-institutional contexts are sometimes confronted with the issue of whether to use generalisations expressing the statistical incidence of a negative trait in a disadvantaged and discriminated-against social group in order to draw an inference concerning a member of that group. If a criminal court were confronted with such a question, what answer should it give? First, the article argues that, our qualms notwithstanding, morality does not demand that these generalisations be disregarded. In doing so, the article addresses the relationship between factual accuracy and the demands of morality in criminal trials. Second, the article considers the implications of this conclusion for the legal question as to whether the evidence at issue should be excluded, in particular, on grounds of unfairness — pursuant to section 78(1) of the Police and Criminal Evidence Act 1984.

'The threshold lies in the method: Instructing jurors about reasoning beyond reasonable doubt' The International Journal of Evidence and Proof (2015) 19 (3) 139-153

The last few decades have seen several scholars and courts striving to understand the meaning of the reasonable doubt standard and, in particular, to produce instructions that would enlighten jurors in this regard. The focus has been on defining the standard as a threshold indicating the quality and quantity of evidence sufficient for a finding of fact, or the degree of confidence that the fact finder should have before convicting. The results of these endeavours have not been satisfactory and nowadays it is still frequent that juries ask the court for clarification on the meaning of the standard. This paper argues that the reasonable doubt standard is better conceived and explained to the jury as requiring a particular method of reasoning, rather than merely a threshold. A direct explanation of the threshold is elusive and potentially encroaches on the fact finder’s role. Reference to a method of reasoning instead promises to provide useful directions to the jury which promote compliance with the threshold itself. The paper advances methodological directives inspired by works in philosophy of the mind and virtue epistemology. The paper then concludes with practical recommendations for devising a new instruction on the standard of proof.

'Legal Reasoning as Fact Finding? A Contribution to the Analysis of Criminal Adjudication' (2014) 5(2) Jurisprudence 299–327

This paper attempts to shed light on the dynamics of criminal adjudication. It starts by exploring some significant—and often ignored—similarities and dissimilarities between the practices and disciplines of, respectively, legal reasoning and fact finding. It then discusses the problem of defining the nature of these processes—legal reasoning, in particular—in terms of their being instances of practical or theoretical reasoning. Thus understood, the problem is shown to be distinct from two traditional questions of jurisprudence, namely whether law consists of facts and, if so, whether these facts are social or (also) moral. Two theses are proposed as solutions to the problem: (T1) 'in the majority of cases legal reasoning is theoretical', and (T2) 'when legal reasoning is practical it generally involves complex theoretical operations'. Finally, the paper shows how T1 and T2 can make sense of the phenomena presented at the outset.

'Innocence and burdens of proof in English criminal law' Law, Probability and Risk (2014) 13 (3-4): 243-257

Since the Human Rights Act 1998, scholars and courts have dedicated considerable attention to the presumption of innocence. A major strand of the ensuing debate has focused on the scope of this safeguard. Many academics have argued in favour of according to the presumption a substantive—as opposed to a procedural—role. In other words, these scholars maintain that the presumption set in art. 6(2) of the European Convention on Human Rights (ECHR) should have some influence on the definition of criminality. Courts seem sympathetic to this approach, albeit not following it to the full extent. The article, instead, defends a procedural understanding of the presumption of innocence, on the basis of interpretive arguments concerning art. 6(2) ECHR. Besides, it shows that adopting this conception does not entail lowering the protection of the individual before the substantive criminal law.

‘Le Narrazioni nella Giustizia Penale’, in Diritto Penale Contemporaneo, 15 October 2013

'Two Meanings of "Reasonableness": Dispelling the "Floating" Reasonable Doubt'  Modern Law Review (2013) 76 (5) pp.845-875

‘La Decisione della High Court Inglese nel Caso Nicklinson: Confermata l’Illiceità dell’Eutanasia Attiva’ – Comment to Tony Nicklinson v. Ministry of Justice, [2012] EWHC 2381 (Admin), in Diritto Penale Contemporaneo, 9 October 2012

‘Regno Unito: un Nuovo Importante ‘Right-to-Die Case’ in Materia di Eutanasia Attiva’ – Comment to Tony Nicklinson v. Ministry of Justice and Others [2012] EWHC 304 (QB), in Diritto Penale Contemporaneo, 13 April 2012

'Nascere e Risiedere in Italia non Basta per Essere Cittadino Italiano…’, in Questione Giustizia (2012), 5, pp. 153-156

'Structuring Inferential Reasoning in Criminal Fact Finding: An Analogical Theory' in Law, Probability & Risk (2012) 11 (2/3) pp.197-223

The article proposes a normative theory of inferential reasoning for criminal fact finding, centred on the concept of ‘analogy’. While evidence law scholars have devoted little attention to the topic, the article maintains that analogy deserves more consideration. In particular, it argues that an analogical theory of inferential reasoning has three main advantages. First, the theory makes it possible to incorporate within a single coherent framework the important insights of different approaches to ‘reasoning under uncertainty’; indeed, it welcomes both the Pascalian notion of ‘relevance’ based on the Bayesian likelihood ratio and the Baconian concept of ‘weight’. Secondly, it helps advance the conventional understanding of the reference class problem, an evidential conundrum widely discussed in the recent legal scholarship. Finally, the theory allows for a functional taxonomy of reasonable doubts.

'A Retributive Justification for not Punishing Bare Intentions or: on the Moral Relevance of the ‘Now-Belief' in Law and Philosophy (2012)

According to criminal law a person should not be punished for a bare intention to commit a crime. While theorists have provided consequentialist and epistemic justifications of this tenet, no convincing retributive justification thereof has yet been advanced. The present paper attempts to fill this lacuna through arguing that there is an important moral difference between a future-directed and a present-directed intention to act wrongfully. Such difference is due to the restraining influence exercised in the decisional process by the ‘now-belief’, i.e. the belief that the time has come to act, which is exclusively involved in the latter type of intention.

'Factual Inference as Analogical Reasoning. A Comment on Peter Tillers’s "The Structure of Proof in Modern Trials"’ in Law, Probability & Risk, 10, p. 7 (2011)

Diritto Penale, Patteggiamento e Ragionevole Dubbio, in Rivista Italiana di Diritto e Procedura Penale, 52, p. 1457 (2009)

‘Lo Stato d’Ebbrezza tra Accertamento Sintomatico e Soglie di Rilevanza Penale’, in La Prova dei Fatti Psichici (Carmela Piemontese and Emma Venafro eds., Giappichelli, 2009)

L’Accertamento Sintomatico nella Nuova Fattispecie di Guida Sotto l’Influenza dell’Alcool alla Prova del Ragionevole Dubbio, in Corriere del Merito, 23, p. 601 (2008)