What’s So Special About General Verdicts? Questioning the Preferred Verdict Format in American Criminal Jury Trials

2021 ◽  
Vol 22 (2) ◽  
pp. 55-84
Author(s):  
Avani Mehta Sood
Keyword(s):  
Decision Making ◽  
Legal Status ◽  
Due Process ◽  
Empirical Test ◽  
Criminal Liability ◽  
The United States ◽  
Status Quo ◽  
Reasonable Doubt ◽  
Criminal Cases ◽  
Constitutional Right

Abstract Criminal juries in the United States typically deliver their decisions through a “general verdict,” expressing only their ultimate conclusion of “guilty” or “not guilty,” rather than through a “special verdict” that identifies whether each element of the charged crime has been proven beyond a reasonable doubt. American courts have broadly favored the use of general verdicts in criminal cases due to concerns that the special verdict will curtail the jury’s decision-making autonomy, including its power to nullify the law in favor of the defense, potentially undermining the criminal defendant’s constitutional right to trial by jury. This Article confronts the legal status quo on verdict format and its underlying, untested assumptions. Drawing upon prior psychology findings and legal professionals’ anecdotal observations, it questions whether the general verdict poses its own under-acknowledged threats to the rights of criminal defendants and the decision-making agency of jurors. While the more guided special verdict format is presumed to threaten nullifying acquittals, the unguided general verdict format might be enabling convictions that violate constitutional norms of due process, impartial adjudication, and equal protection. Given the high-stakes values potentially implicated in the choice of verdict format in criminal cases, it is time to put the conventional wisdom in favor of general verdicts to an empirical test. This Article therefore proposes a methodological framework for investigating whether the legal status quo accurately reflects (1) current stakeholders’ preferences and predictions, and (2) experimentally testable legal and cognitive effects of general versus special verdicts in lay determinations of criminal liability. A data-informed understanding is needed to assess whether the general verdict is optimizing the integrity, fairness, and constitutionality of criminal jury decision making.

scholarly journals The legal status of Uncertainty

2011 ◽  
Vol 11 (3) ◽  
pp. 797-806 ◽  
Author(s):  
M. Altamura ◽  
L. Ferraris ◽  
D. Miozzo ◽  
L. Musso ◽  
F. Siccardi
Keyword(s):  
Health Care Providers ◽  
Forest Fires ◽  
Legal Status ◽  
Due Process ◽  
Weather Prediction ◽  
The United States ◽  
Reasonable Doubt ◽  
Civil Protection ◽  
Care Providers ◽  
Prediction And Prevention

Abstract. An exponential improvement of numerical weather prediction (NWP) models was observed during the last decade (Lynch, 2008). Civil Protection (CP) systems exploited Meteo services in order to redeploy their actions towards the prediction and prevention of events rather than towards an exclusively response-oriented mechanism1. Nevertheless, experience tells us that NWP models, even if assisted by real time observations, are far from being deterministic. Complications frequently emerge in medium to long range forecasting, which are subject to sudden modifications. On the other hand, short term forecasts, if seen through the lens of criminal trials2, are to the same extent, scarcely reliable (Molini et al., 2009). One particular episode related with wrong forecasts, in the Italian panorama, has deeply frightened CP operators as the NWP model in force missed a meteorological adversity which, in fact, caused death and dealt severe damage in the province of Vibo Valentia (2006). This event turned into a very discussed trial, lasting over three years, and intended against whom assumed the legal position of guardianship within the CP. A first set of data is now available showing that in concomitance with the trial of Vibo Valentia the number of alerts issued raised almost three folds. We sustain the hypothesis that the beginning of the process of overcriminalization (Husak, 2008) of CPs is currently increasing the number of false alerts with the consequent effect of weakening alert perception and response by the citizenship (Brezntiz, 1984). The common misunderstanding of such an issue, i.e. the inherent uncertainty in weather predictions, mainly by prosecutors and judges, and generally by whom deals with law and justice, is creating the basis for a defensive behaviour3 within CPs. This paper intends, thus, to analyse the social and legal relevance of uncertainty in the process of issuing meteo-hydrological alerts by CPs. Footnotes: 1 The Italian Civil Protection is working in this direction since 1992 (L. 225/92). An example of this effort is clearly given by the Prime Minister Decree (DPCM 20/12/2001 "Linee guida relative ai piani regionali per la programmazione delle attivita' di previsione, prevenzione e lotta attiva contro gli incendi boschivi – Guidelines for regional plans for the planning of prediction, prevention and forest fires fighting activities") that, already in 2001, emphasized "the most appropriate approach to pursue the preservation of forests is to promote and encourage prediction and prevention activities rather than giving priority to the emergency-phase focused on fire-fighting". 2 Supreme Court of the United States, In re Winship (No. 778), No. 778 argued: 20 January 1970, decided: 31 March 1970: Proof beyond a reasonable doubt, which is required by the Due Process Clause in criminal trials, is among the "essentials of due process and fair treatment" 3 In Kessler and McClellan (1996): "Defensive medicine is a potentially serious social problem: if fear of liability drives health care providers to administer treatments that do not have worthwhile medical benefits, then the current liability system may generate inefficiencies much larger than the costs of compensating malpractice claimants".

scholarly journals The Europeanisation of Spanish Administrative Law through the Principle of Legitimate Expectations

2020 ◽  
Vol 13 (2) ◽  
pp. 55-86
Author(s):  
Luis Arroyo Jiménez ◽  
Gabriel Doménech Pascual
Keyword(s):  
Decision Making ◽  
General Principle ◽  
Legal Status ◽  
Case Law ◽  
Administrative Law ◽  
Status Quo ◽  
Eu Law ◽  
National Legislation ◽  
Legitimate Expectations ◽  
The Eu

This article describes the Europeanisation of Spanish administrative law as a result of the influence of the EU law general principle of legitimate expectations. It examines, firstly, whether the formal incorporation of the principle of legitimate expectations into national legislation and case law has modified the substance of the latter, and if so, secondly, whether this has led to a weaker or a more robust protection of the legal status quo. To carry out that examination, the article considers the influence of the principle of legitimate expectations in two different areas: in individual administrative decision-making, and in legislative and administrative rulemaking. Our conclusion is that the Europeanisation of Spanish administrative law through the principle of legitimate expectations has been variable and ambiguous.

Of General Principles and Trojan Horses — Procedural Due Process in Immigration Proceedings under EU Law

2010 ◽  
Vol 11 (9) ◽  
pp. 1006-1024 ◽  
Author(s):  
Jürgen Bast
Keyword(s):  
Decision Making ◽  
Legal Status ◽  
Due Process ◽  
Legal Order ◽  
Fundamental Rights ◽  
Eu Law ◽  
Procedural Due Process ◽  
Scope Of Application ◽  
Legal Position

AbstractThe present paper concerns procedural guarantees in immigration proceedings, thus addressing the broader question of the role of the general principles of EU law in respect of administrative decision-making. The main assertion is that certain requirements of procedural due process are recognized in EU law as fundamental rights. They must therefore be observed by Member State authorities when decisions significantly affecting the legal position of a person are taken, provided that the decision is at least partly determined by EU law. The relevant immigration proceedings involve measures related to the termination of residence as well as decisions related to denial or loss of a particular legal status. In effect, the actual scope of application of the EU's administrative fundamental rights is determined by the actual scope of activity of the European legislator. The author concludes that even a relatively ‘shallow’ harmonization of laws can lead to a ‘deep’ reshaping of the domestic legal order, by becoming a Trojan Horse for fundamental rights heretofore alien to some national immigration regimes.

Rights in Twentieth-Century Constitutions: The Case of Welfare Rights

1994 ◽  
Vol 6 (1) ◽  
pp. 140-156
Author(s):  
Mary Ann Glendon
Keyword(s):  
Due Process ◽  
The United States ◽  
Constitutional Rights ◽  
Economic Rights ◽  
Welfare Rights ◽  
Government Grants ◽  
Procedural Due Process ◽  
Constitutional Right ◽  
1960S And 1970S ◽  
The 1960S

In the 1960s and 1970s, when the judicial rights revolution was in full swing in the United States, poverty lawyers and allied legal scholars urged the courts to add to the expanding catalog of constitutional rights certain social and economic rights—to housing, education, and a minimum decent subsistence. The advocates of welfare rights were not deterred by the absence of pertinent constitutional language. After all, if the Court could find a right to privacy in the “penumbra” of the Bill of Rights, who knew what else might be discovered there? Those efforts to constitutionalize what were historically matters of legislative discretion had only partial success. The Supreme Court did hold that, once government grants certain statutory entitlements such as welfare and disability benefits, the recipients have a constitutional right not to be deprived of those benefits without procedural due process. The Court declined, however, to find that the entitlements themselves were constitutionally required.

Loosening the law’s bite: Law, fact, and expert evidence in R v JA and R v NS

2017 ◽  
Vol 21 (3) ◽  
pp. 242-261
Author(s):  
Dana Erin Phillips
Keyword(s):  
Social Life ◽  
Legal Status ◽  
Status Quo ◽  
Expert Evidence ◽  
Criminal Cases ◽  
Relevant Issue ◽  
Marginalised Groups ◽  
Form Part ◽  
Judicial Reasoning ◽  
Prohibitive Cost

Faced, in the wake of the Canadian Charter of Rights and Freedoms, with decisions that bear upon unfamiliar realms of social life, Canadian courts have turned to making factual determinations based on social science and other expert evidence. Such evidence can help litigants from marginalised groups to challenge exclusionary norms and ‘common sense’ assumptions that form part of judicial reasoning. However, litigants seeking to disrupt the legal status quo in this way face a number of challenges. While many commentators have emphasised the prohibitive cost of bringing expert evidence, this article points to a prior challenge—the need to convince the court to see the relevant issue as a fact amenable to proof in the first place. To illustrate the significance of this initial framing challenge, I examine two recent criminal cases— R v JA and R v NS—where expert evidence may have been useful but was scant.

scholarly journals ALGORITHMIC LEGAL METRICS

2020 ◽  
Author(s):  
Dan Burk
Keyword(s):  
Legal Status ◽  
Due Process ◽  
Criminal Liability ◽  
Social Processes ◽  
Social Effects ◽  
Legal Analysis ◽  
Legal Decisions ◽  
Predictive Algorithms ◽  
Default Rules ◽  
Algorithmic Bias

Predictive algorithms are increasingly being deployed in a variety of settings to determine legal status. Further applications have been proposed to determine civil and criminal liability or to “personalize” legal default rules. Deployment of such artificial intelligence systems has properly raised questions of algorithmic bias, fairness, transparency, and due process. But little attention has been paid to the known sociological costs of using predictive algorithms to determine legal status. Many of these interactions are socially detrimental, and such corrosive effects are greatly amplified by the increasing speed and ubiquity of digitally automated algorithmic systems. In this paper I link the sociological and legal analysis of AI, highlighting the reflexive social processes that are engaged by algorithmic metrics. Specifically, this paper shows how the problematic social effects of algorithmic legal metrics extend far beyond the concerns about accuracy that have thus far dominated critiques of such metrics. It additionally demonstrates that corrective governance mechanisms such as enhanced due process or transparency will be inadequate to remedy such corrosive effects, and that some such remedies, such as transparency, may actually exacerbate the worst effects of algorithmic governmentality. Third, the paper shows that the application of algorithmic metrics to legal decisions aggravates the latent tensions between equity and autonomy in liberal institutions, undermining democratic values in a manner and on a scale not previously experienced by human societies. Illuminating these effects casts new light on the inherent social costs of AI metrics, particularly the perverse effects of deploying algorithms in legal systems.

REASONABLE DOUBT AND DISAGREEMENT

Legal Theory ◽  
2017 ◽  
Vol 23 (4) ◽  
pp. 203-257 ◽  
Author(s):  
Youngjae Lee
Keyword(s):  
Criminal Law ◽  
Due Process ◽  
Reasonable Doubt ◽  
Equal Weight ◽  
Criminal Cases ◽  
Equal Weight View ◽  
Unanimity Rule ◽  
Normative Issues ◽  
The Right ◽  
Jury Decision

ABSTRACTThe right to trial by jury and the requirement of proof beyond a reasonable doubt are two of the most fundamental commitments of American criminal law. This article asks how the two are related, that is, whether disagreement among jurors implies anything about whether the beyond a reasonable doubt standard has been satisfied: Does the due process requirement of the beyond a reasonable doubt standard also require jury unanimity in criminal cases? Drawing on literature about the epistemological significance of disagreement, 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 implies, this article concludes, 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 about both historical facts and normative issues through moral terms like “reckless,” “unjustifiable,” “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 it 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.

Implying a Federal Constitutional Right to Education

2019 ◽  
pp. 135-163
Author(s):  
Derek W. Black
Keyword(s):  
United States ◽  
Due Process ◽  
The United States ◽  
United States Constitution ◽  
Equal Protection ◽  
Right To Education ◽  
Federal Constitutional ◽  
Substantive Due Process ◽  
Constitutional Right

In this chapter, Derek W. Black surveys the various litigation, judicial, and scholarly theories through which courts might recognize a right to education under the United States Constitution. He begins by sorting those theories into their major doctrinal categories and subcategories and explaining their basic arguments, including substantive due process, equal protection, privileges and immunities, citizenship, and originalism. Black then critically evaluates those theories, examining both the positives and negatives of the leading theories. He concludes that while a number of theories are plausible, scholarly theories have tended toward originalism in recent years and are the most likely to be successful before the courts.

scholarly journals Conscientious Objection to Military Service and Laborde’s Exemption Test

2019 ◽  
Vol 1 (1) ◽  
pp. 142-152
Author(s):  
Élise Rouméas
Keyword(s):  
Decision Making ◽  
Military Service ◽  
Legal Status ◽  
Conscientious Objection ◽  
Status Quo ◽  
Historical Case ◽  
Normative Reasoning ◽  
Geopolitical Context

Abstract This paper applies Laborde’s theory of the justice of exemptions to what has become a relatively uncontroversial case, the exemption to military service. It assesses how the exemption test designed by Laborde can guide decision-making relative to a specific historical case, focusing on the French example. The exercise sheds light on how contextual considerations—the legal status quo, the geopolitical context, the number of objectors—decisively influence our normative reasoning about the justifiability of exemptions.

scholarly journals International Corporate Prosecutions

2019 ◽  
pp. 418-436
Author(s):  
Brandon Garrett
Keyword(s):  
United States ◽  
Corporate Crime ◽  
Criminal Liability ◽  
The United States ◽  
Criminal Cases ◽  
The World ◽  
Settlement Negotiations ◽  
Corporate Criminal Liability

This chapter deals with corporate prosecutions around the world, focusing on the approach adopted by federal prosecutors in the United States in which settlement negotiations with companies are resolved, either through a plea agreement or agreements entered largely out of court and without judicial oversight. These agreements, called deferred and non-prosecution agreements, have added new flexibility but also some additional uncertainty to the practice of corporate prosecutions. Before discussing how this U.S. approach has altered the international corporate prosecution landscape, the article considers varying standards for corporate criminal liability. It then examines underlying corporate crimes and how standards and enforcement approaches may vary depending on the type of crime, settlement approaches toward corporate criminal cases, criticisms of corporate crime settlement approaches, and international approaches and cooperation in corporate crime cases. It also explains how corporate or entity-based criminal liability is limited and unavailable for many types of crimes in most countries.

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