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Full-Text Articles in Law
Crime, Punishment, And Legal Error: A Review Of The Experimental Literature, Kathryn Zeiler, Erica Puccetti
Crime, Punishment, And Legal Error: A Review Of The Experimental Literature, Kathryn Zeiler, Erica Puccetti
Faculty Scholarship
When individuals violate the law, detection and verification of the violation are rarely, if ever, perfect. Before the state can dole out punishment, it must first identify a suspect and then produce sufficient evidence to persuade a judge and/or jury beyond some threshold level of confidence that the suspect, in fact, violated the law. The court might be uncertain that the state has the right person. If the suspect is undoubtedly the one who caused the harm, the court might be unsure about whether his act constitutes a violation of the law (e.g., whether the suspect was, in fact, speeding). …
The Language Of Mens Rea, Kenneth Simons, Matthew R. Ginther, Francis X. Shen, Richard J. Bonnie
The Language Of Mens Rea, Kenneth Simons, Matthew R. Ginther, Francis X. Shen, Richard J. Bonnie
Faculty Scholarship
This article answers two key questions. First: Do jurors understand and apply the criminal mental state categories the way that the widely influential Model Penal Code (MPC) assumes? Second: If not, what can be done about it?
Ignorance And Mistake Of Criminal Law, Noncriminal Law, And Fact, Kenneth Simons
Ignorance And Mistake Of Criminal Law, Noncriminal Law, And Fact, Kenneth Simons
Faculty Scholarship
After clarifying the distinction between mistakes of fact and mistakes of law, this article explores in detail an important distinction within the category of mistake of law, between mistake about the criminal law itself and mistake about noncriminal law norms that the criminal law makes relevant - for example, about the civil law of property (in a theft prosecution) or of divorce (in a bigamy prosecution). The Model Penal Code seems to endorse the view that mistakes about noncriminal law norms should presumptively be treated as exculpatory in the same way as analogous mistakes about facts. Case law on the …
Retributivism Refined - Or Run Amok?, Kenneth Simons
Retributivism Refined - Or Run Amok?, Kenneth Simons
Faculty Scholarship
What would the criminal law look like if we took retributivist principles very seriously? In their book, Crime and Culpability: A Theory of Criminal Law, the authors - Larry Alexander and Kimberly Kessler Ferzan, with contributions by Stephen J. Morse - provide a controversial set of answers. Whether a criminal act does ordoes not result in harm should not affect the actor’s punishment. Only the last act of risk creation should suffice for liability. Conscious awareness of risk should always be necessary. And all of criminal law, each and every category of mens rea and actus reus, should be reduced …
Self-Defense: Reasonable Beliefs Or Reasonable Self-Control?, Kenneth Simons
Self-Defense: Reasonable Beliefs Or Reasonable Self-Control?, Kenneth Simons
Faculty Scholarship
The reasonable person test is often employed in criminal law doctrine as a criterion of cognitive fault: Did the defendant unreasonably fail to appreciate a risk of harm, or unreasonably fail to recognize a legally relevant circumstance element (such as the nonconsent of the victim)? But it is sometimes applied more directly to conduct: Did the defendant depart sufficiently from a standard of reasonable care, e.g. in operating a motor vehicle, that he deserves punishment? A third version of the reasonable person criterion, which has received much less attention, asks what degree of control a reasonable person would have exercised. …