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http://ssrn.com/abstract=1611248
 
 

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Fear and Trembling in Criminal Judgment


Samuel H. Pillsbury


Loyola Law School Los Angeles

May 18, 2010

Ohio State Journal of Criminal Law, Vol. 2, 2010
Loyola-LA Legal Studies Paper No. 2010-23

Abstract:     
This review describes James Whitman's argument that the beyond a reasonable doubt standard for conviction in Anglo-American criminal law was developed to solve a moral and theological dilemma arising from the medieval change from clergy-directed trials by ordeals to the secular jury trial. Whitman writes that the beyond a reasonable doubt standard, like the jury unanimity rule, was designed primarily to assuage what he calls moral doubt, the concern that a decision-maker might condemn himself in the eyes of God by wrongfully convicting an accused of a capital offense. Whitman contends that this concern with decision-maker salvation was greater than any concern with an erroneous determination of the facts and that the greatest challenge for early modern decision-makers was not resolving contested facts but overcoming fear of the spiritual consequences of condemning another human being to death. Whitman contends that this makes the beyond a reasonable doubt standard ill-suited to the challenges of modern litigation, where the hard cases involve fact-finding and decision-makers generally do not fear for their souls in rendering a legal verdict. After considering this argument in both legal and theological terms, the reviewer develops a suggestion of the book’s author, that the early juror experience of "fear and trembling" in judging the most serious crimes might have a useful application to contemporary American criminal justice with its predilection for long terms of incarceration, especially by mandatory sentencing laws.

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Date posted: May 18, 2010  

Suggested Citation

Pillsbury, Samuel H., Fear and Trembling in Criminal Judgment (May 18, 2010). Ohio State Journal of Criminal Law, Vol. 2, 2010; Loyola-LA Legal Studies Paper No. 2010-23. Available at SSRN: http://ssrn.com/abstract=1611248

Contact Information

Samuel H. Pillsbury (Contact Author)
Loyola Law School Los Angeles ( email )
919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-1093 (Phone)
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