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

Bohlander, Michael (2021) 'Abandoning Dishonesty – A Brief German Comment on the State of the Law after Ivey.', The Journal of Criminal Law .

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.

Item Type:Article
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Status:Peer-reviewed
Publisher Web site:https://doi.org/10.1177%2F00220183211035179
Publisher statement:This article is distributed under the terms of the Creative Commons Attribution-NonCommercial 4.0 License (https://creativecommons.org/licenses/by-nc/4.0/) which permits non-commercial use, reproduction and distribution of the work without further permission provided the original work is attributed as specified on the SAGE and Open Access pages (https://us.sagepub.com/en-us/nam/open-access-at-sage).
Date accepted:11 June 2021
Date deposited:16 June 2021
Date of first online publication:27 July 2021
Date first made open access:16 June 2021

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