SelectedWorks @ Rutgers School of Law-Newark
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Conditional Rights and Comparative Wrongs: More on the Theory and Application of Comparative Criminal Liability
No full textThis article continues to develop an argument in favor of comparative criminal liability started in Victims and Perpetrators: An Argument for Comparative Liability in Criminal Law, (http://law.bepress.com/rutgersnewarklwps/fp/art19/) Buff. Crim. L. Rev. 385 (2005). The essence of my argument is that people’s rights are not static but depend on their actions, and victims may reduce their right not to be harmed either voluntarily, by consent, waiver or assumption of risk, or involuntarily, by an attack on some legally recognized rights of the perpetrator. If that happens, perpetrators should be entitled to a defense of complete or partial justification, which would eliminate or diminish their criminal liability. In this second piece, I respond to the commentaries by Dean Hurd and Professors Harel, Husak and Simons. At the same time I further develop the theory of comparative criminal liability by focusing mainly on three groups of issues: conceptual questions involving the underlying theory of rights; application of the principle of conditionality of rights to particular areas of criminal law (e.g., assumption of risk, contributory negligence, attempts and endangerment, and multiple perpetrators); and practical implementation of the defense of comparative criminal liability
Justice Story Cuts the Gordian Knot of Hung Jury Instructions
No full textConstitutional law grows more complex over time. The complexity is due, in large part, to the rule of stare decisis. When faced with precedents that it does not wish to follow, the Court usually distinguishes the case before it. Thus, the constitutional landscape is littered with cases that do not fit well together. Navigating past these shoals is often difficult for courts following the Supreme Court’s lead. One example is the law governing instructions that a trial judge can give a deadlocked jury in a criminal case. The right to a jury trial entails the right to have the jury reach a verdict without pressure from the judge, but giving voice to that principle has resulted in a bewildering array of approved instructions. This article argues that the law of 1824, manifested in Justice Story’s opinion in United States v. Perez, was superior to today’s morass. In 1824, judges had virtually uncontrolled discretion to decide when to declare a hung jury. We argue for a return to 1824 with one twist: that judges give deadlocked juries the instruction: “Please continue to deliberate.” This simple change will result in fewer hung juries and far fewer appeals about whether the instructions were too coercive