Criminal Arena Research Articles

Half the Guilt

Abstract Criminal law conceptualizes guilt and the finding of guilt as purely categorical phenomena. At the end of trial, the defendant is pronounced either “guilty” or “not guilty” of the charges made against her, excluding the possibility of judgment of degree. Judges or juries cannot calibrate findings of guilt to various degrees of epistemic certainty by pronouncing the defendant “probably guilty,” “most certainly guilty,” or “guilty by preponderance of the evidence.” Nor can decision makers qualify the verdict to reflect normative or legal ambiguities. Findings of guilt are construed as asserting factual and legal truths. The penal results of conviction assume similar “all or nothing” properties: punishment can be calibrated, but not with the established probability of guilt. The prevailing decision-making model, with its ‘on-off’ formulation of guilt, is so broadly established that it is considered an axiom— but there is nothing natural or pre-political about it, nor about the derivative distribution of punishment. This Article attempts to expose the hidden potential rooted in the construal of criminal verdicts as judgments of degree, by drawing three hypothetical manifestations of a linear conceptualization of conviction and punishment in the criminal trial and plea-bargaining arena. It also offers a normative assessment of converting criminal verdicts from categorical decisions to continuities.

Study of violence against women

In the early 90s, the Violence in the cases of dowry was the crux, and later it gave vent to the other sort of violence against women as domestic violence and wife battering as per its incessant giant like growing form. In the last two decades, domestic violence has captured the attention of all sorts of social and judicial authorities. It is crucial to gauge the structure of violence against women in India through the generic pattern, which remains more or less similar across the world. The narrative of victimhood is vital to get the proper solution of all sorts of violent acts against women in society. In Hyderabad, India has women police for such cases, and there are many statistics that we need to understand in the context of this matter of violence against women. The active collaboration between the NGOs and the government authorities is indispensable to control such criminal arenas. Family and friends can do work at a deeper level to eradicate this problem to make the society free from the clutches of domestic violence or wife battering. The discrimination of caste, race, or between man and women can be traced in the religious scriptures.

Legal review of the civil, criminal, and administrative consequences of informed consent violation in medical practice

Introduction: The informed consent (IC) ensures respect of the patient's rights to information, freedom, and autonomy. However, when the physician neglects the obligation to inform, legal consequences may follow, including the award of damages or even imprisonment. Objective: To analyze the legal implications for a medical practitioner who fails to obtain the patient's IC. Methodology: Based on the relevant jurisprudence and legal decisions. With regards to the former, the decisions and legal precedents of the Colombian High Courts with regards to IC and medical practice were studied, emphasizing the rulings of the State Council and the Supreme Court of Justice (civil and penal chambers). With regards to the legal decisions, the analysis enabled the review, systematization and interpretation of the discussions generated around the topic of interest, pursuant to the doctrine or research on civil administrative, and criminal law. Results: There is consensus in the Colombian jurisprudence about the liability of the healthcare professional and of the state when the IC or any of its component parts is missing in the doctor-patient relationship. Nevertheless, there are different standpoints, particularly in the criminal arena, where a lack of unanimity exists with regards to this issue. Conclusion: Any violation of the IC or the lack of an IC, could give rise to the practitioner's civil liability and disciplinary actions, in addition to the administrative liability of the State, but there should be no criminal liability for the physician.

Black Mirror: The Darker Side of Technology in the Criminal Arena

Black Mirror: The Darker Side of Technology in the Criminal Arena

Controlling the Law: Legal Pluralism in China's South-West Minority Regions

AbstractMillions of China's ethnic minority citizens remain subject to competing legal standards, even as state officials strive to strengthen a unified notion of state law. Minority customary law continues to bind many minority citizens in both civil and criminal arenas and often conflicts directly with state law. What happens when these laws conflict? Based on fieldwork in Yunnan, this article shows how local officials and communities navigate legal pluralism and what legal and policy provisions guide them. Granting local judges discretionary authority to set aside state law in favour of customary law, although seemingly undermining law enforcement, may in the long run be the best path to strengthening rule of law in China's minority regions.

A ação política como caso de polícia no Brasil

Vivemos no Brasil pouco mais de um século de uma deficiente República, marcada por dois longos processos ditatoriais que contribuíram para a conformação das características da repressão estatal diante dos movimentos sociais. Nesse bojo, o presente artigo analisa como 2013 pode ser compreendido como um momento de inflexão pós-redemocratização, no qual cresceu a desvinculação entre os detentores do poder e os cidadãos, apresentando-se como um de seus aspectos o deslizamento da ação política para a arena penal. Em associação com o tratamento dos ativistas como caso de polícia, pode-se identificar avanços institucionais posteriores na tipificação penal dos repertórios de confrontação dos movimentos sociais. Além da revisão da literatura do campo, este artigo parte da análise documental legislativa, bem como da cobertura midiática para demarcação dos principais acontecimentos desde 2013. Como aporte teórico será utilizada a Teoria do Confronto Político, a partir da qual pretende-se enxergar o período iniciado em junho de 2013 na qualidade de um processo, com o olhar voltado para a relação entre ativistas e os agentes estatais para uma leitura do complexo cenário nacional.

Conclaves and concurrent expert evidence: a positive development in Australian legal practice?

Many Australian courts now prefer pre-hearing meetings of experts (conclaves) being convened to prepare joint reports to identify areas of agreement and disagreement, followed by concurrent expert evidence at trial. This contrasts to the traditional approach where experts did not meet before trial and did not give evidence together. Most judges, lawyers and expert witnesses favour this as a positive development in Australian legal practice, at least for civil disputes. This new approach affects medical practitioners who are called on to give expert evidence, or who are parties to disputes before the courts. Arguably, it is too soon to tell whether the relative lack of transparency at the conclave stage will give rise to difficulties in the coronial, disciplinary and criminal arenas.

Lay participation: the paradox of the jury

Lay participation in the form of the jury has been integral to the administration of justice in England at all levels and in both civil and criminal arenas since the Middle Ages and is popularly regarded as a legacy of Magna Carta by dint of the constitutional significance attributed to the Great Charter over the centuries. Arguably juries provide a bastion against the potential harshness of the state and a buffer against arbitrariness on the part of the judge as well as injecting an element of amateurism to combat the increased professionalism of the legal system. Yet, for all the perceived benefits, serious inadequacies in jurors and even in the apparent fairness of the system have been exposed. Jury decisions, too, have come under scrutiny. This paper examines the paradox of the jury in criminal trials and compares their role in the modern legal system with the historical past.

JUDICIAL DECISION-MAKING IN INTERNATIONAL CRIMINAL COURTS: "EFFECTIVE" JUSTICE?

The past two decades have witnessed the re-emergence of a system of international justice mechanisms, and the “institutionalisation” and “judicialisation” of international criminal justice, principally through the operation of formalised international and hybrid courts and tribunals. This followed a long period of impunity, during which there was virtually no legal accountability for the commission of atrocities and international crimes. After a slow beginning, several of these mechanisms then became active in the implementation of criminal justice against those accused of the most egregious crimes. All of a sudden, judges were required to adjudicate on complex and emotional factual and legal issues, largely without the benefit of significant practical experience. Over time, and particularly more recently, questions have been publically raised — even by judges themselves — as to the validity of several significant decisions. Highly visible controversies have emerged that have highlighted the difficulties in the judicial decision-making processes within these mechanisms of international justice. These challenge perceptions as to the “efficiency” of the justice being handed down. This article will discuss the applicable law used to determine and interpret legal rules in the international criminal arena, and then explore how these are increasingly challenged by both internal and external factors associated with the overarching context of the specific conflicts, and their political and social consequences.

Neuropsychological Evaluation of Competency in Criminal Forensic Contexts

Competency issues can arise at any point beginning with an individual’s initial interaction with the justice system until the same individual is facing the imposition of a sentence. Neuropsychologists are commonly introduced to the criminal arena through referrals related to competence issues, and much can be gained from understanding how cognitive and psychological functioning can impact an individual’s ability to understand and appreciate current circumstances. The present article focuses on three less frequently explored domains of competency, including competence to waive Miranda rights, competence to consent to or refuse treatment, and competency for execution. Pertinent diagnostic considerations are discussed, and relevant legal standards and ethical issues are described. Lastly, evaluation procedures for each type of competence evaluation are discussed. This primer on competency assessment offers a review of the current practices, and limitations, in this burgeoning intersection of law, brain–behavior relationships, and psychology.

The Neuropsychologist as Expert Witness: Testimony in Civil and Criminal Settings

The niche of forensic neuropsychology and use of neuropsychologists as expert witnesses has proliferated over the past two decades. Neuropsychologists conduct evaluations or provide consultation to assist triers of fact in both civil and criminal arenas. This article delivers a succinct overview of an array of factors that warrant consideration from the time of referral for a neuropsychological evaluation through the delivery of a verdict or settlement and receipt of payment for services. Readers are offered a primer on relevant legal criteria, distinctions between court settings, and applicable ethical standards and guidelines. Suggestions are made regarding the expert witness retention agreement and strategies for direct and cross examination are reviewed. Logistical and liability considerations are also explored. Real world examples are included to illustrate some of the obstacles that neuropsychologist expert witnesses may encounter.

Who Watches the Watchmen? Why Recording Citizen-Police Encounters Can Help Reduce Fourth Amendment Violations

This comment addresses the hurdles that a citizen will face in attempting to remedy violations of their Fourth Amendment rights in both the civil and criminal arena. Ultimately, the comment suggests that on-officer recording of citizen-police encounters would be a valuable tool to criminal defendants and civil rights plaintiffs in combating the hurdles of: (1) judicial over weighing of police testimony; (2) police perjury; (3) implicit bias against the citizen; and (4) the low credibility of the citizen versus the friendly and familiar officer. The comment also addresses a variety of potential criticisms against the use of on-officer recording and why these concerns or critiques are either misplaced or outweighed by the potential benefits of on-officer recording. It concludes that although the solution is imperfect, on-officer recording would act as a deterrent to law enforcements agents against violating the Fourth Amendment because it would allow for more effective section 1983 claims and/or criminal suppression motions. In turn, the use of the devices will result in fewer Fourth Amendment violations and soothe tensions between law enforcement and citizens particularly in the neighborhoods and cities where law enforcement presence is needed the most.

Basic rights and substantive criminal law: The Incest Case

To what extent do constitutional basic rights limit the legislator in the field of substantive criminal law? This is the main question of this article. Its dilemma is that, at least from a continental view, we have two ‘disciplines’ dealing with them: constitutional law and criminal law. The divergence culminates in the concept of the Rechtsgut (public value or interest), which serves as a starting point in the criminal law arena. This difference was decisive in a case where the German Constitutional Court stated that the punishment of incest between natural siblings is not contrary to the German Basic Law. Criminal lawyers disagree with that ruling because the criminal law provision does not protect a legitimate Rechtsgut. The ‘criminal law school’ of the Rechtsgut puts all aspects of legitimate criminalization into one and only box: ‘the’ Rechtsgut. This is not convincing from the point of view of constitutional law.

Detecting malingered memory problems in the civil and criminal arena

Feigning a psychiatric or neurological disorder may be an attractive strategy to obtain all sorts of privileges or disability benefits. In the criminal arena, feigning memory loss for a crime (crime‐related amnesia) may be a way for defendants to gain sympathy or to promote a diminished capacity defence. Although crime‐related amnesia may, under some circumstances, be genuine, in many cases it is more likely to be malingered. Malingered memory problems are a subtle form of deception and what is true for deceptive behaviour in general is also true for malingering memory loss: on the basis of clinical intuition alone, it is difficult to detect. Fortunately, there are methods and tools to evaluate the authenticity of memory problems. It is important that forensic and clinical psychologists familiarize themselves with these techniques.

Criminal Jurisdiction in United States Indian Country: A Practical Guide

In the United States, much of the litigation arising involving Indian tribes and territories revolves around one issue: jurisdiction. Because of the complex inter-weaving of tribal, federal, and state (including county governments and municipalities) jurisdiction in United States Indian country, it can be difficult to determine which entity or entities have the authority to adjudicate a particular case or controversy. Indeed, even the term Indian Country, as used here, has been subject to much dispute. In the criminal arena, the intersection of tribal, state and federal jurisdiction is particularly problematic. For our nation's co-existing criminal justice systems to operate as efficiently as possible, it is imperative that all individuals working in or with criminal justice systems in Indian country have an understanding of the jurisdictional rules that apply to criminal offenses occurring in United States Indian country. The purpose of this article is to provide a framework for determining which governmental authority has jurisdiction over a specific crime committed in Indian country as a guide for anthropologists and practitioners working with Native Americans.

Pricking the Lines: The Due Process Clause, Punitive Damages and Criminal Punishment

The Supreme Court has recently devoted substantial attention to the question of what limits the Constitution places on the permissible amount of punishment. The Court has offered both substantive and procedural answers to this question. In decisions involving challenges to the length of criminal sentences, the Court has identified constraints that are doctrinally independent of one another: a proportionality principle under the Eighth Amendment that forbids a sentence grossly disproportionate to the defendant's crime and a due process principle requiring that any facts that increase the authorized sentence a defendant faces be proved beyond a reasonable doubt to a jury. By contrast, in cases involving challenges to the amount of a punitive damages award, the Court has taken a more doctrinally integrated approach. Substantively, the Court has again adopted a test that centers on proportionality, this time locating the requirement within the due process clauses. But with respect to damages, the Court's procedural solution takes power away from juries and provides for de novo review. This article looks at the sentencing and punitive damages decisions in tandem. Here, as in several other areas, the Court's approaches to similar questions in the civil and criminal arenas take very different turns. Part I considers the Court's articulation of proportionality tests under the Eighth Amendment (for criminal sentences and fines) and the due process clauses of the Fifth and Fourteenth Amendments (for punitive damages). It shows that proportionality is both an inherently alluring and an inevitably unsatisfactory measure of constitutionality, particularly with respect to a judicially enforceable rule. Part II looks at the Court's procedural decisions. Given the convergence of substantive constitutional principles in the sentencing and damages cases, what accounts for the sharp divergence in the role the Supreme Court accords juries, reallocating authority to them and away from judges in criminal cases, while doing exactly the opposite in civil ones? I suggest that differences between the two kinds of litigation may explain why proportionality review is relatively more attractive in punitive damages cases. First, the Court may perceive the existence of more objective indicia of excessiveness in the punitive damages cases. Second, the punitive damages cases may raise reverse federalism concerns that are absent from criminal prosecutions. Third, the Supreme Court may think the level of federal intrusion can be better controlled in the civil context. And finally, criminal cases may involve better oversight by politically accountable actors.

On organized crime and police cooperation in the European union - Lessons learned. An interview with Professor Cyrille Fijnaut.

Professor Fijnaut sheds new light on understanding organized crime from a multifaceted perspective. Organized crime in Europe, as in America, confronts law enforcement agencies with new challenges which demands new and different perspectives in order to effectively fight current and future threats. By focusing on the violence associated with organized criminals and on formal mechanisms involving control and trust as basis for inter-agency linkages, he circumscribes two of the most challenging issues in dealing with organized crime. He points out that organized crime groups are not necessarily hierarchical, stable and functional in the way they conduct their business. Professor Fijnaut makes the point that the impact of organized crime groups' activities extend well beyond the strictly criminal arena.

FORENSIC NEUROPSYCHOLOGY: FUNDAMENTALS AND PRACTICE.

This is a very good book, covering all aspects of neuropsychological practice from basic psychometrics to the neuropsychologist as expert witness. The book is aimed at practising clinical neuropsychologists who wish to venture into the territory of the expert witness. That said, the book will also be of relevance to academic psychologists and professionals of related disciplines. Perhaps the biggest drawback of the book for a British audience is its title. In the UK, \`forensic' infers that it has something to do with the criminal justice system or offending. This is not the case with this book. Here \`forensic' refers to the broad definition, meaning \`public'. Hence the authors go beyond neuropsychology as it applies to civil and criminal legal cases, and include all potential activities of the neuropsychologist relating to public discussion and debate. This includes \`worker's compensation, disability determination, education, personal injury, criminal, child custody, impaired professional and “fitness for duty” competency'. This is an advantage of the book, as it gives the reader a broad overview of how and where neuropsychological principles can be applied, and in what domains. However, I suspect that the title will attract forensic psychologists who are seeking something more specifically related to the criminal arena (who will be disappointed) and may also simultaneously repel neuropsychologists working in the civil, educational and …

Protection for Whom?

The protection of individuals with learning difficulties or learning disabilities (hereafter learning disabilities) would appear to be at the heart of legal intervention where sexual and intimate relationships are concerned. The legal perception of the need to protect may be changing within civil law but this is not matched within the criminal law arena. In this article the differences between these areas is explored, together with discussion on whether a right exists to such a relationship for individuals with learning disabilities. This article was developed following work with, and for, SCOPE (a UK registered charity) that looked at enabling individuals with learning disabilities to express their sexuality. The authors would like to emphasize that this approach excludes consideration of issues such as `tolerated' sexual relationships and has as its focus what may be termed `wanted' sexual relationships.

What's up doc? Jaffee v. Redmond and the psychotherapeutic privilege in criminal justice

This article addresses the Supreme Court's decision in Jaffee v. Redmond, 518 U.S. 1 (1996), which created a federal psychotherapist-patient privilege and extended that privilege to social workers engaged in psychotherapy. Jaffee was a civil case, though its ramifications extended to the criminal arena as well. The following discussion presents the effects of Jaffee on criminal justice at both the state and federal levels by examining cases citing Jaffee as precedent and provides insight into future implications and unresolved issues surrounding this case.