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

Bohlander, Michael

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. https://doi.org/10.1177/00220183211035179

• 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
• DOI: https://doi.org/10.1177/00220183211035179
• Public URL: https://durham-repository.worktribe.com/output/1247055