Requiring a Jury Vote of Censure to Convict

BY Richard E. Myers II

This Article proposes changing the way juries (and judges) render their verdicts in criminal cases by explicitly requiring a separate finding before a defendant can be convicted: censure. Under mandatory jury censure, the criminal trial jury (or judge, if serving as factfinder), would be required to make a specific finding of censure in addition to any factual finding required under the law before a defendant could be convicted, as opposed to the current system of a general verdict finding the defendant guilty or not guilty. In this context, censure means an explicit finding that the facts proven in the case at trial are worthy of the moral condemnation of the community. The Article explains how a simple change in the way juries are charged and instructed can force new and useful information into the light, permitting lawmakers, law enforcers, and the public to determine which laws are in accord with public sentiment. Mandated jury censure will separate the currently ambiguous general verdict of guilty or not guilty in criminal cases into more specific factual and moral findings. Acquittals will be more likely to reflect actual innocence rather than mere failure to convict, and convictions will be based on firm juror commitments regarding the factual and moral guilt of the accused. The article also incorporates comparative law lessons from the Scottish experience with three verdicts.

DOWNLOAD PDF | 88 N.C. L. Rev.137 (2009)