Hastings Law Journal


Few ideals reign more supreme than the jury as conscience of our community and moral arbiter of a criminal defendant's conduct. These ideals are no more than myth for most federal criminal cases today. For a wide range of the most commonly charged federal crimes, judges routinely instruct juries to convict defendants regardless of their moral culpability. This issue arises with regulatory or public order crimes, which include drug trafficking, weapons, immigration, and environmental offenses. They are usually general intent crimes, defined by Congress without identifying precisely what the prosecution must prove a defendant knew or intended. General intent crimes differ from specific intent crimes for which Congress requires proof of a defendant's intent to do something wrong or otherwise to violate the law. Today, regulatory crimes represent about 70% of crimes charged in the federal court-and their share of the docket is growing.

The Supreme Court has established an interpretive rule of apparent innocence. However, the apparent innocence rule has fallen far short in practice of ensuring mandatory culpability. The author argues that the Supreme Court should replace the apparent innocence rule with an authentic innocence rule of jury-found culpability for general intent crimes. An authentic innocence rule would free the jury to decide if the defendant knew she was doing the type of wrong that is the target of the criminal statute charged against her.

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