Reconstructing Jury Instructions in Homicide

This book offers critical analysis for jury instructions in the United States. Supported by court decisions, careful interpretation of the United States Constitution, and jurist's arguments, Hisham M. Ramadan thoroughly examines the mental elements in crime, the burden of proof in criminal trials, and the doctrine of reasonableness.

Hisham M. Ramadan is the international criminal court project coordinator at the International Human Rights Law Institute, DePaul University College of Law.

FOREWORD

ix

PREFACE

xi

ACKNOWLEDGMENTS

xiii

CHAPTER 1 The Standard of Proof in Criminal Trials

(The Challenge of Explaining "Reasonable Doubt")

1

(34)

I. Introduction

1

(2)

II. Is "Beyond a Reasonable Doubt" A Self-Explanatory Concept?

3

(3)

III. The Impact of an Undefined Standard of Proof in Criminal Trials

6

(7)

A. "To A Moral Certainty" Approach

8

(2)

B. The Analogy Approach

10

(1)

C. "Beyond Substantial Doubt" Approach

11

(2)

IV. The Basic Concepts in "Beyond a Reasonable Doubt" Instructions

13

(13)

A. Historical Background

13

(2)

B. The Modem Analysis of the Presumption of Innocence

15

(2)

C. Proposed Alternative Interpretation of the Presumption of Innocence

17

(4)

1. Contrasting Theories of Innocence: Canadian versus American

17

(1)

2. The Deficiencies in the American Approach

18

(3)

D. The Quantum of Proof

21

(5)

V. Some Practical Considerations

26

(3)

VI. Conclusion

29

(1)

VII. Proposed Jury Instructions

30

(24)

A. Version One(Adopting the Canadian Approach)

31

(1)

B. Version Two(Reflecting the Existing Law)

32

(3)

CHAPTER 2 Reconstructing Reasonableness in Criminal Law

35

(22)

I. Introduction

35

(1)

II. The Rise and Fall of Reasonableness in Criminal Law

36

(4)

III. Policies That Underlie the Reasonableness Standard

40

(1)

IV. The Failure to Achieve the Objectives of the Reasonableness Standard

41

(3)

V. Rule of Substance versus Rule of Evidence

44

(3)

VI. Presumptions and Inferences in Criminal Law as Verification to a Reasonable Person Standard

47

(6)

VII. Conclusion

53

(1)

VIII. Proposed Jury Instructions

54

(3)

A. Reasonableness as Permissive Inference

54

(1)

B. Reasonableness as Mandatory Presumption

54

(4)

1. Type One, Which Merely Shifts the Burden of Production to the Defendant

54

(1)

2. Type Two, Which Shifts the Ultimate Burden of Proof to the Defendant

55

(2)

CHAPTER 3 Recklessness

57

(34)

I. Introduction

II. Problems with Setting Recklessness Boundaries

57

(1)

III. Outlining Recklessness Boundaries

58

(29)

A. Nature of the Risk: Subjective versus Objective Awareness

64

(3)

B. The Necessity of Knowledge in Criminal Law

67

(6)

C. Historical Overview of Knowledge: The Four Prongs of Knowledge

73

(2)

D. The Modern Application of Knowledge Prongs

75

(8)

1. Knowledge of the Circumstances in Statutory Construction

75

(2)

2. Knowledge of the Consequences: The Necessity of Knowledge of the Consequences

77

(4)

3. Knowledge of the Nature and the Quality of the Conduct: The Existence of Knowledge of the Conduct in the Penal Codes

81

(1)

4. Knowledge of Law

81

(2)

E. Degrees of Recklessness Instructions

83

(3)

F. The Relationship between the Concept of Unjustified Risk Taking and the Prongs of Knowledge

86

(1)

IV. Analysis and Conclusion

87

(1)

V. Proposed Jury Instructions

88

(3)

A. Reckless Homicide Instructions That Qualify For Manslaughter

88

(1)

B. Reckless Indifference Homicide Instructions That Qualify for Murder

88

(3)

CHAPTER 4 Intentional Homicide

91

(14)

I. Introduction

91

(1)

II. The Cognitive State of Desire: Desire to Cause Death versus Desire to Cause an Act That Ultimately Causes Death

92

(3)

III. The Cognitive State of Belief "Knowingly"

95

(4)

IV. Intentional Homicide with Aggravating Circumstances: Premeditation and Deliberation

99

(2)

V. Conclusion

101

(1)

VI. Proposed Jury Instructions

102

(3)

A. With Knowledge/Knowingly

102

(1)

B. Purpose/ Purposely

103

(1)

C. Premeditation and Deliberation

104

(1)

CHAPTER 5 Negligence

105

(14)

I. Introduction

105

(1)

II. The History of the Fault Element in Negligence: Awareness of Fault

106

(2)

III. Modern Analysis of Fault in Culpable Negligence

108

(5)

A. Two Concepts Breed Several Approaches: Recklessness and Breach of Duty of Care

108

(2)

B. Justifying Punishment of the Negligent

110

(3)

IV. Redefining Culpable Negligence: Integrating Negligence within the Theory of Knowledge

113

(4)

V. Conclusion

117

(1)

VI. Proposed Jury Instructions

117

(2)

INDEX

119

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Reconstructing Jury Instructions in Homicide Offenses Rethinking Homicide Law

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Author Biography

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