Sunday, May 28, 2017
Youngjae Lee (Fordham University School of Law) has posted two pieces on SSRN. The first is Reasonable Doubt and Moral Elements (Journal of Criminal Law and Criminology, Vol. 105, No. 1, 2016) on SSRN. Here is the abstract:
The law is axiomatic. In order to convict a person of a crime, every element of the crime with which he is charged must be proven beyond a reasonable doubt. This Article argues that this fundamental proposition of American criminal law is wrong. Two types of elements are typically found in crime definitions: factual elements and moral elements. Proving factual elements involves answering questions about historical facts — that is, questions about what happened. By contrast, proving moral elements — such as “reckless,” “unjustifiable,” “without consent,” or “cruel” — involves answering questions not only about what happened but also about the evaluative significance of what happened. This Article argues that the beyond a reasonable doubt requirement should not apply to such moral elements for three reasons. First, the beyond a reasonable doubt requirement applied to normative elements compels overly underinclusive interpretations of crime definitions because the standard requires factfinders to acquit where there are reasonable moral disagreements. Second, by, in effect, thus limiting the scope of crime definitions, the requirement undermines the value of using normative terms in crime definitions as a method of guiding citizens to behave as responsible law-abiding citizens. Third, the requirement produces a situation where important normative decisions are delegated to ultimate factfinders, especially the jury, with excessively restrictive instructions as to when they are allowed to act on their moral beliefs. The Article concludes by discussing some implications of these arguments and exploring general features of criminal law that conspire to produce these problems with the beyond a reasonable doubt standard.
The second is Reasonable Doubt and Disagreement (Legal Theory, Forthcoming). Here is the abstract:
The right to trial by jury and the proof beyond a reasonable doubt requirement are two of the most fundamental commitments of American criminal law. The question this Article asks is how the two are related, that is, whether disagreement among jurors implies anything one way or the other about whether the beyond a reasonable doubt standard has been satisfied. In other words, does the due process requirement of the proof beyond a reasonable doubt standard also require jury unanimity in criminal cases? In recent years, there has been an explosion of interest among philosophers about the epistemological significance of disagreement. Drawing on this literature, this Article considers the “equal weight view” and its implications for the unanimity rule in criminal jury decision-making. The equal weight view says that, roughly speaking, when people disagree on a topic, each view should be given equal weight. This Article concludes that, with certain assumptions, the equal weight view implies that the unanimity rule is required as a way of enforcing the beyond a reasonable doubt requirement. This Article further concludes, however, that jurors should not always be instructed to apply the equal weight view in their deliberation. Jurors, when applying crime definitions to particular cases, make determinations both about historical facts — concerning questions about what happened — and about normative issues — concerning the evaluative significance of what happened — through moral terms like “reckless,” unjustifiable,” “without consent,” “depraved,” “cruel,” and “heinous,” which are common in criminal law. This Article argues that while the equal weight view should guide the jurors in determining factual issues, it is not the correct model for moral issues, not only because the equal weight view would imply that acquittals are appropriate in many cases involving controversial moral questions but also because having the jurors follow it would undermine the basic justification for having the criminal jury as an articulator and enforcer of morality.