Darryl Brown

Strict Liability in the Shadow of Juries

SMU Law Review

UVA Law Faculty Affiliations


American and English criminal law is characterized by wider use of strict liability than one finds in the criminal law of many European jurisdictions. With respect to English law, scholars have suggested that the use of lay juries explains the prevalence of strict liability offenses. This paper investigates that idea in American law and finds some evidence for it. Courts and legislatures sometimes worry that mens rea is difficult to prove when the only available evidence is circumstantial — it must be inferred from conduct and circumstances. Just as the evidence rules reflect a concern with the limits of jurors’ abilities to handle certain kinds of evidence, the regarding strict liability as well as reverse burdens of proof (under which defendants must prove defenses) manifests a concern that juries worse than judges at inferring culpability from available evidence. One way to address this deficiency is to eliminate the requirement for mens rea altogether.
But then what safeguards remain to ensure that only the culpable are criminally punished? The answer in American law, broadly, is that adversarial criminal procedure is thought to compensate for this deficiency in substantive criminal law. Courts identify, somewhat obliquely, two procedural components in particular: the use of prosecutorial discretion, and — paradoxically — the jury. While courts are somewhat skeptical of the jury’s capacity to accurately recognize proof of culpability, they profess faith in the lay jury’s “common sense” instincts — or political judgments — to prevent convictions of the non-culpable. On that view, strict liability addresses the jury’s weakness regarding a challenging issue of proof, while the jury’s purportedly strong capacity for normative judgment, in turn, provides a safeguard against unjustified punishment.


Darryl K. Brown, Strict Liability in the Shadow of Juries, 67 SMU Law Review 525-543 (2014).

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