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Abandoning Dishonesty – A Brief German Comment on the State of the Law after Ivey

Bohlander, Michael

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Abstract

The debate about the two-pronged Ghosh test for dishonesty has troubled academics and practitioners alike for some time. Concerns were raised about the jury’s ability to determine both the objective honesty standards and the defendant’s personal compliance with it, which might result in non-meritorious personal views allowing her to escape a dishonesty verdict. In Ivey, followed by Barton and Booth, the subjective test was abandoned altogether. The change has brought no doctrinal improvement, but instead unacceptably broadened criminal liability. Leaving the determination of a nebulous moral concept such as dishonesty to the jury is misguided, as it means determining a normative rule in the first place, which is not the jury’s role. Looking at the German law on theft and fraud as a comparator system, the paper argues that dishonesty should be abandoned and replaced by a lawfulness element to which the rules on mistake of civil law can then be applied.

Citation

Bohlander, M. (2022). Abandoning Dishonesty – A Brief German Comment on the State of the Law after Ivey. Journal of Criminal Law, 86(3), 170-178

Journal Article Type Article
Acceptance Date Jun 11, 2021
Online Publication Date Jul 27, 2021
Publication Date Jun 1, 2022
Deposit Date Jun 15, 2021
Publicly Available Date Jun 16, 2021
Journal The Journal of Criminal Law
Print ISSN 0022-0183
Electronic ISSN 1740-5580
Publisher SAGE Publications
Peer Reviewed Peer Reviewed
Volume 86
Issue 3
Pages 170-178

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