In No Uncertain Terms


Professor Youngjae Lee’s probing questions about the very fundamentals of criminal law help us see difficulties previously unobserved.

When asked where he was raised, Fordham Law professor and criminal law philosopher Youngjae Lee likes to say he “grew up twice.”

Lee was raised in Seoul, but he and his family moved to Seattle during his teen years. Although he characterizes his childhood in South Korea as happy and uneventful, the country’s capital was a tumultuous place in the 1970s, marked by political dissent, student protests, and government oppression. While cautious not to overclaim a causal link, Lee concedes that growing up surrounded by this frenzy of civic activity probably has a connection to his current preoccupation with issues of authority, state power, and suppression of dissent.

In spite of his growing up in Seoul, Seattle is as much a part of him as Korea—and the disparity between these two places helps to explain his adaptability and versatility as a teacher and scholar.

Lee’s transition from Asia to America proved something of a shock at first. “I grew up all over again,” he says, “learning a new language and adapting to a very different culture during an extremely formative period in my life.”

This adaptability served him well. A “restless college student,” Lee took such a variety of courses during his time at Swarthmore that he could as likely have wound up in psychology, philosophy, engineering, or economics as law. While this kind of course record might seem desultory and unfocused, it was in fact “pretty good training to be a law student and a legal academic,” Lee explains. This is because the most difficult questions in the philosophy of criminal law often demand an appreciation for plurality, nuance, and contradiction—matters with which Lee was familiar.

At the core of Lee’s research is one particularly thorny conundrum: On the one hand, “the state should not take sides on questions of morality”; yet, on the other, “criminal law is a heavily moral enterprise.”

In his recent writing, Lee has explored this conflict within the context of reasonable doubt. In his article “Reasonable Doubt and Moral Elements,” published in the Journal of Criminal Law and Criminology, he explores what happens when jurors agree on the facts but can’t come to an agreement on moral or evaluative terms.

One of the shibboleths of American law is that “in order to convict a person of a crime, every element of the crime with which he is charged must be proven beyond a reasonable doubt.” In Lee’s view, however, “this fundamental proposition of American law is wrong,” because many crimes are defined not only by factual elements about which most reasonable people may agree but also by moral and evaluative claims about which people may not agree.

Consider, for example, such elastic terms as “reckless,” “heinous,” or “cruel,” the definitions of which people are likely to disagree. Looking for certainty beyond a reasonable doubt on moral terms, he argues, “limits the scope of crime definitions” and compels jurors to acquit over moral disputes, even when factual agreements prevail.

One reason that moral doubt is such a fraught issue in criminal law is that a society’s normative stances often change over time.

“As attitudes toward homosexual conduct, miscegenation, and adultery have changed,” Lee explains by way of example, “the state’s responses to them through criminal law have changed.”

One such shift is occurring at this very moment, as the national conversation following the #MeToo movement is raising awareness of sexual misconduct. “As to whether the #MeToo movement will have an impact on the law, the answer is absolutely yes,” Lee says emphatically.

“Take the hashtag #IBelieveYou,” he says, “and think about how many decisions cops, prosecutors, judges, and jurors make could come out in a different way once they adopt ‘I Believe You’ as at least a guiding principle, given that in many cases of sexual assault, whom you believe is the decisive issue.”

Lee also explains, “In many jurisdictions, whether a person is convicted of rape turns on the question of what ‘a reasonable person’ would think, and the #MeToo movement can change people’s understanding of the reasonable person’s definition of ‘consent.’”

Recently, Lee has taken his contemplation of the reasonable doubt standard to new places.

In “Reasonable Doubt and Disagreement,” just published in Legal Theory, he explores the relationship between the reasonable doubt standard and a jury’s requirement of unanimity. He suggests that the unanimity-voting rule is necessitated by the reasonable doubt standard because any disagreement among jurors should cause each juror to reduce his or her confidence in a conviction, resulting in acquittal. The outcome produced by the unanimity rule, he argues, “best approximates the world in which jurors are rational and honest about the epistemic significance of disagreement.”

In “Criminal Jury and Moral Judgments,” forthcoming in the University of Illinois Law Review, he explores the extent to which a jury should represent the “conscience of the community.” What happens, Lee wonders, when a juror’s personal values are at odds with the perceived values of his or her community? “Does the juror, as a representative,” he asks, “have an obligation to vote according to the community perspective, or is the juror supposed to vote according to his or her own perspective?”

These are complicated questions, and maybe Lee will arrive at the answers. But his conclusions are just as likely to spur more questions. When asked if there are topics in his field that deserve more scrutiny, he says, “One topic that gets overlooked is how to think about obligations of different legal actors in the system: judges, prosecutors, defense lawyers, jurors, cops, and so on.” He observes that “lawyers and legal scholars tend to focus on positive and negative incentives to induce people to behave in desirable ways,” as opposed to “right and wrong ways to behave as judges, lawyers, and jurors.”

“If we are not used to thinking about such role obligations as genuine obligations that make demands on different actors regardless of consequences that follow from violating such obligations,” he cautions, “then we would not know how to respond if one day a person rises to power and declares himself simply not bound by any of the myriad obligations that hold the legal system and the rule of law together.”


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