Review Essay: Thomas More's Trial by Jury (original) (raw)
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Trial by Jury or Judge: Transcending Empiricism
1992
Pity the civil jury, seen by some as the sickest organ of a sick system. Yet the jury has always been controversial. One might suppose that, with so much at stake for so long, we would all know a lot about the ways juries differ from judges in their behavior. In fact, we know remarkably little. This Article provides the
The Courts and Conscience Claims
Religious Beliefs and Conscientious Exemptions in a Liberal State, 2019
In J. Adenitire (ed), Religious Beliefs and Conscientious Exemptions in a Liberal State (Hart, June 2019), ch. 6 ISBN 9781509920938 (submitted version). This work was undertaken with the assistance of the British Academy and the Wolfson Foundation under a British Academy Wolfson Professorship. I am grateful to John Adenitire for his helpful comments on an earlier draft. In places I have drawn on the following:
The Rule of Law and Jury Trials
Stance: an international undergraduate philosophy journal
In The Rule of Law in the Real World, Paul Gowder presents a new account of the rule of law based on three conditions: publicity, regularity, and generality. In this essay, I examine two closely related questions that are prompted by Gowder’s version of the rule of law. First, does the rule of law require citizens to follow the law? Second, what does Gowder’s account mean for jury nullification? I argue that the rule of law does not require citizens to follow the law, but it does prohibit jury nullification. A discussion of some moral implications and objections follow.
The Gideons and the Gallows: Against the "Typical Juror" Standard in Capital Cases
Case Western Reserve law review, 2007
See 3 CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 248 (2d. ed 1994). s This may not be the attorneys' fault. Actual effect testimony may come from questions not designed to adduce it. A juror, in describing their experience in the jury room will likely include details that describe the actual effect of extraneous information. See Fields v. Brown, 431 F.3d 1186, 1207 (9th Cir. 2005) ("[Defendant] presented a number of juror declarations that the district court ultimately struck to the extent that the information contained in them was inadmissible under Rule 606(b)."); McNair v. Campbell, 416 F.3d 1291, 1308 (11 th Cir. 2005) (juror testimony showed that readings from the bible and prayers merely encouraged juror to take their responsibility seriously); People v. Wadle, 77 P.3d 764, 771 (Colo. Ct. App. 2003) ("In summary, we discern a reasonable possibility that the introduction of extraneous information about Paxil, in direct violation of the court's denial of the same request by the jury, may well have influenced the verdict."). 9 FED. R. EVID. 606(b). 10 See Gregg v. Georgia, 428 U.S. 153, 222 (1976) (plurality opinion) (White & Rehnquist, JJ., Burger, C.J.) (arguing that mercy in capital cases involves "factors too intangible to write into a statute"). Some object to this feature of capital sentencing because it deviates from the "rule of law" when its protection is arguably needed most. For a defense of this feature,
6. Playing God: An Essay on Law, Philosophy, and American Capital Punishment
Jewish Law and American Law, Volume 1
for helpful conversations, and Fraida Liba and Yehudah Tzvi for their encouragement. NEW MEXICO LAW REVIEW sentencer's decision: determination of a defendant's moral worth, ostensibly through an examination of every aspect of that person's life. Finally, part III critiques the assumption that the capital sentencer can predict with substantial accuracy the future dangerousness of a defendant. Thus, the essay argues that the American capital sentencer is asked to "play God," an expectation that, by its very nature, carries with it a daunting and unreasonable responsibility. 6 I. CULPABILITY, FREE WILL, AND MORAL LUCK According to the Supreme Court, and in the view of many scholars, one of the main factors that a capital sentencer should consider in deciding whether to impose the death penalty is the level of the defendant's culpability. As Professor Garvey has put it, "Itihe more culpable a capital defendant is for his conduct, the more deserving he is of death." 7 Consistent with this understanding of the concept of culpability and its relationship to capital punishment, the Supreme Court has authorized a capital sentencer to take into account broad indicia of culpability or a lack thereof. The factors to be considered include "any aspect of a defendant's character... and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." ' In support of the Court's approach, Professor Louis Bilionis has explained that "[the Constitution permits only morally appropriate impositions of the death penalty; it requires in every case that the capital sentencer reliably determine that death is indeed the morally appropriate penalty." 9 Indeed, in a number of cases the Court has expressly emphasized the need 6. For examples of commentators who have viewed the implementation of the death penalty as an exercise in "playing God" in a different sense, see, e.g..
Law, Culture and the Humanities , 0
In recent decades, the U.S. Supreme Court has increasingly privileged religious beliefs in determining the applicability of U.S. laws. To sustain these claims, the Court has turned to the distant past. This paper explores a medieval parallel to the Texas “future dangerousness” standard which requires jurors to predict whether a capital defendant will pose a future threat to society. Framed as a secular issue, the standard’s religious overtones were made manifest with the conversion of death-row inmate, Karla Faye Tucker. Certain Texas officials justified denying her clemency petition by asserting that judgments about the soul are reserved for divine authority. Medieval Christian sources provide support for this belief, but operate to constrain state power--especially where the potential punishment is death. Juxtaposing the medieval reasoning against the Supreme Court’s recent use of historical and religious sources raises some provocative questions.
Journal of the American Academy of Religion, 2006
This is a balanced book. I do not necessarily mean that as a compliment. It comprises seventeen chapters written by eighteen people (one chapter is co-authored), plus a foreword, an introduction (coauthored), and an afterword, bringing the total number of contributors to twenty-two. Usually when I read a book about the death penalty, I assess the argument in part by asking whether the author is a death penalty foe or proponent. As I read this book, however, I found that I needed four categories, instead of the usual two: (1) abolitionists, who oppose the death penalty categorically; (2) opponents, who oppose the death penalty generally, but either support it in some limited cases, or are open-minded about its morality; (3) agnostics, who are not opposed to it, but who do not favor it either; and (4) retentionists, the outright proponents of the death penalty. Of the twenty contributions (seventeen chapters, plus the foreword, the introduction, and the afterword), here's the tally: seven abolitionists (or perhaps six; one author was hard to pin down); two opponents (or perhaps three; see the previous parenthetical); two agnostics; five retentionists (or maybe four; one person was slippery); and four whose personal views I cannot ascertain. So if you add the abolitionists to the opponents, they do outnumber the agnostics plus the retentionists, but only by a vote of nine to seven. This scorecard makes at least one thing clear: Religious texts are no different from other nonscientific and nonmathematical texts-meaning that different people will read identical words yet reach different conclusions. Justice Jackson has a famous few lines in the Youngstown case, which involved a constitutional challenge to President Truman's authority to seize the steel mills during the Korean War. Jackson was not persuaded that the Constitution provided a straightforward answer to the legal question presented. Those who believed that President Truman did have authority to take over the mills could quote language from the Constitution and from the framers that tended to support their conclusion. But those who believed that Truman lacked the authority could also quote constitutional language and sentences from the framers
Moral Judgment, Criminal Law and the Constitutional Protection of Religion
Supreme Court Law Review (2d), 2008
What, if any, is the conceptual relationship between the constitutional protection of religious conscience and the criminal law in a modern liberal democracy? This article examines this issue in the context of contemporary Canadian criminal law and the protection of religious freedom and equality in the Canadian Charter of Rights and Freedoms. The author argues that there is a deep, though heretofore unexamined, conceptual tension between these two fields of law: the constitutional protection of religious freedom and substantive criminal law are both centrally concerned with the role of the state in making and enforcing moral judgments, but are contesting this boundary from different directions. This article first traces a variety of modes of interaction between the constitutional protection of religion and substantive criminal law since the introduction of the Charter in 1982. The author then examines certain turns in the Supreme Court's approach to both religious freedom and the criminal law, offering critical reflections on the current conception of religion, the role of Charter values in contemporary constitutional adjudication, and modern debates about harm in the criminal law. Concluding that all of these developments suggest that the deep moral tension between these two areas is bound to grow in years to come, the article examines examples drawn from contemporary issues in Canadian criminal law - the role of religion in the defence of provocation and the constitutionality of the criminal offence of polygamy.