Criminal Law Cases Research Articles

Chinese Practice in Public International Law: 2006 (II)

Continued from Part II published last year, this part of the Survey covers materials reflecting Chinese practice in 2006 relating to: XI. Outer Space Law (Definition and Delimitation of Outer Space; Draft Protocol on Matters Specific to Space Assets to the Convention on International Interests in Mobile Equipment; The Status and Application of Five UN Treaties on Outer Space; Practice of States and International Organizations in Registering Space Objects; The Establishment of the Disaster Management International Space Coordination Organization; The Policy of Peaceful Use of Outer Space; The Cooperative Approach to the Peaceful Use of Outer Space; The Convention of Asia-Pacific Space Cooperation Organization); XII. International Law on Diplomatic and Consular Relation (Preconditions for the Establishment of Diplomatic Relation; Vienna Convention on the Consular Relations; Diplomatic Protection and Consular Assistance); XIII. International Criminal Law (Universal Jurisdiction in Absentia; Treaty and Judicial Practice on Extradition and Criminal Judicial Assistance; The ''East Turkistan'' Terrorists in Guantanamo Bay; The LAI Cheong Sing (LAI Changxing) Case in Canada; The Position Towards Tokyo Trial; Illegal Migrants; Trafficking of Persons; Anti-Corruption); XIV. Inter- national Law on Environment (Environment and Development; Climate Change; Dam-building on International Rivers; Songhuajiang River Pollution Accident; Tro- pical Rain Forest in Southeast Asia; Animal Fur Trade; Auction of Dinosaur Egg); XV. International Organization (United Nations; World Health Organization; Shanghai Cooperation Organization); XVI. International Economic Law (International Trade Law; International Protection of Intellectual Property Rights; International Financial Law); XVII. International Law on Energy (Energy and Development; Energy Policy); XVIII. International Law on Natural Disaster (Tsunami Warning System; Inter- national Humanitarian Donation and Assistance); XIX. International Law on Health (The Issue of SARS; the Issue of Avian and Human Pandemic Influenza).

Sexual Abuse of Children Abroad – A German Perspective on the Antalya Case

In recent months a criminal law case has strained relations between Germany and Turkey. A 17 year-old German citizen, who had been vacationing in a Turkish seaside resort town of Antalya with his parents was arrested there in Spring 2007 for allegedly having sexually abused a 13 year- old girl, also a tourist on holiday in Turkey with her parents. Presently, court proceedings are still underway in Antalya. Although the suspect has admitted to having had a sexual encounter with the girl, tests indicated that the intercourse was consensual. Initially both politicians and parts of the media expressed their shock at the arrest and detention of the suspect rather than the alleged crime itself. At the present time of writing there is insufficient information to adequately assess the facts of the case and it is important to note that the young man has not yet been convicted of any crime. Yet, based on media reports concerning statements made by the suspect himself, the case presents a number of interesting questions from the perspective of German law. These questions require a closer look, particularly in the light of the criticism directed at Turkish authorities from German politicians and media and since the Staatsanwaltschaft (Office of the Prosecutor) in Lüneburg (the suspect's hometown) is now investigating as well. This article considers, as a revealing comparative exercise, how the alleged crime would be addressed under German law.

Trading Signs: Semiotic Practices in Law and Medicine

Lawyers write, blog and are otherwise producers of words; they structure public life through legal discourse and integrate all issues that reinforce legal reasoning. Even if one is inclined not to justify the power of their words in the context of a democratic theory, one is hardly able to challenge its public acceptance. But semiotic analyses harden the question whether these emperors wear nothing but robes. That attitude intensifies where medicine becomes increasingly relevant for legal discourse, as becomes clear where for instance US political viewpoints bring bioethical issues to the Courts. One major theme in today’s medicine pertains to identity in its psychological, philosophical and social dimensions. Identity thus becomes a groundbreaking semiotic issue in law and medicine; both discourses are particular important to the otherness of the other. A US criminal law case interests here (Harrington v. State of Iowa, 2003; cited as: 659N.W.2d 509). The case is decided with “information about what the person has stored in his brain”. A chain of signs is involved: from “brain-function” to “brain-storage” via “brain-scan” to “brain-fingerprint”, for which the case became famous. A long series of signs and meanings belong here to intertwined discourses. Central is a particular sign in each discourse: “brain” means brain scan, and “fingerprint” means law! The two display trading mechanisms, which determine the otherness of the other and the self! The chain of signs in the Harrington case shows inter-disciplinarity in law and inter-discursivity among law and medicine. The trading itself underlines the semiotic dimensions in cyberspace, in particular the semiotics of the virtual (Hayles, Kurzweil) and their effects on legal discourse.

From Talk to Text: The Interactional Construction of a Police Record

In the Netherlands, police records are routinely drawn up in the course of the interrogation. As a result, recording practices are closely interwoven with interrogation activities. The interrogation is organized to accommodate the recording, and the recording informs the interrogation. The record is not merely a document in which what is said is written down, it actively informs and directs the interrogation: The record-thus-far is used by the interrogator as a resource to carry on the interrogation. Consequently, what gets written down in the record and is eventually used as evidence in a criminal law case is not just a reflection of what the interrogator has asked and the suspect has answered but also a result of the interrogator's solutions to problems of coordinating the talk and the typing. Thus, police records can only be understood fully by taking into account the practices of their construction.

'A Shining City on a Hill': American Exceptionalism and the Supreme Court's Practice of Relying on Foreign Law

This is a tale of two cultures. The first culture is that of the United States Supreme Court and of the lawyerly elite. In that culture, it is not only socially acceptable for the Court and law professors to rely on foreign law in deciding American cases, it is obligatory that the Court do so. Operating within the confines of this elite culture, the Justices have struck down laws as being unconstitutional since at least the time of Chief Justice Warren's famous 1958 plurality opinion in Trop v. Dulles. More strikingly, the Court has relied on foreign law in deciding U.S. constitutional cases more generally at least since Dred Scott and arguably since the Marshall Court era. So all-encompassing is the Supreme Court's practice of relying on foreign law that some of the most famous and consequential Supreme Court cases in American history have been decided with reference to foreign law. Among the cases so decided are: federalism cases, like The Legal Tender Cases and The Selective Draft Law Cases; separation of powers cases like O'Malley v. Woodrough, dealing with taxation of judge's salaries; criminal law cases from 1820 to 2005; famous criminal procedure cases, like Hurtado v. California, Palko v. Connecticut; Wolf v. Colorado, and Miranda v. Arizona; and even economic liberty cases like Block v. Hirsh, a case involving the constitutionality of rent control. In the elite culture of the U.S. Supreme Court, references to foreign law to determine the scope of U.S. constitutional rights are totally commonplace.

ASSESSMENTS FOR POSTSEPARATION PARENTING DISPUTES IN CANADA

There is controversy in Canada about the use of assessments by mental health professionals to assist in the resolution of postseparation disputes between parents about their children. Although the principles developed by the Supreme Court of Canada to govern the admission of expert evidence in criminal law cases provides guidance for judges in family law cases, in deciding whether to order an assessment or admit expert evidence, family law judges must also take account of the child‐related context. Mental health professionals can provide valuable information that would otherwise be unavailable when making prospective decisions about children. Court‐appointed assessors also have a significant institutional role in the family law cases that has no equivalent in the criminal law context. Assessors are important not only for the relatively rare cases that go to trial, but they also play a central role in helping to resolve the much larger number of cases that are settled.

Protocols, practices, and the reproduction of technique in molecular biology.

Protocols are one of the main organizational resources in molecular biology. They are written instructions that specify ingredients, equipment, and sequences of steps for making technical preparations. Some protocols are published in widely used manuals, while others are hand-written variants used by particular laboratories and individual technicians. It is widely understood, both in molecular biology and in social studies of science, that protocols do not describe exactly what practitioners do in the laboratory workplace. In social studies of science, the difference between protocols and the actual practices of doing them often is used to set up ironic contrasts between 'messy' laboratory practices and the appearance of technical order. Alternatively, in ethnomethodological studies of work, the difference is examined as a constitutive feature, both of the lived-work of doing technical projects, and of the administrative work of regulating and evaluating such projects. The present article takes its point of departure from ethnomethodology, and begins with a discussion of local problems with performing molecular biology protocols on specific occasions. The discussion then moves to particular cases in criminal law in which defense attorneys cross-examine forensic technicians and lab administrators. In these interrogations, the distinction between protocols and actual practices animates the dialogue and becomes consequential for judgments in the case at hand. The article concludes with a discussion of administrative science: the work of treating protocols and paper trails as proxies for actual 'scientific' practices.

Parisian Scholars in the Early Fourteenth Century: A Social Portrait (review)

Parisian Scholars in the Early Fourteenth Century: A Social Portrait. By William J. Courtenay. [Cambridge Studies in Medieval Life and Thought, Fourth Series, 41.1 (New York: Cambridge University Press. 1999. Pp. xix, 284. $64.95.) This is William J. Courtenay's third book on medieval universities, students, and masters. It is definitely his most unusual; in its mix of urban topography, prosopography, university financial records, and a criminal law case, it is even a path-breaking book. The genesis of the book came about with Courtenay's recovery or re-discovery of a document from the University of Paris, a computus (financial record) from 1329-30. Written on the last quire of the oldest surviving register of the proctors of the English-German nation at Paris, it is a list of university faculty and students who contributed money for a special legal fund for the defense of a student accused of rape. Part I consists of three chapters describing the computes (its text is contained in App. 1), how such collections were made, and the precipitating event: the rape of a woman named Symonette. The quire containing the computes had been folded incorrectly when it was inserted into its codex; by rearranging it Courtenay could, for the first time, ascertain its meaning and significance. It is a document that lists students, faculty, and university associates residing near the university who contributed between December 29, 1329, and March, 1330, to a legal defense fund for the appeal of the case of Jean le Fourbeur. It begins with a street-by-street survey of the Latin quarter. As an individual contributed to the fund, his name and the amount of the donation were noted. Later sections of the document simply record names and amounts donated, with no location. Courtenay surmises these might be individuals missed during the house-tohouse collection. Symonette, a jongleuse (singer/entertainer), accused Jean le Fourbeur (John the Rascal) of raping her in the summer of 1329 somewhere in the diocese of Meaux, to the east of Paris. A student at Paris, Jean had since returned to Paris, where he was arrested and imprisoned by the Bishop of Paris, Hugh of Besanqon, who released him into the custody of his master. Although Jean denied the charges, he was re-imprisoned until he could pay a substantial fine of 400 pounds. After Jean paid the fine and was released, he pointed out that the fine was actually illegal because the university and its members enjoyed papal immunity from monetary fees. …

Not Simply Black and White: Jury Power and the Law in Late Nineteenth-Century Chicago

Until the early twentieth century juries in Illinois had the power to decide the law as well as the facts in criminal law cases. This power allowed them to apply their own sense of what was just, rather than follow the rule of law. The result was a legal system responsive to a popular sense of justice, and often guided by public opinion or prejudice.

Placing blame : Criminal law and constitutional narratives in revolutionary Boston

How did the American Revolution shape the emergence of a robust, often sophisticated language of law ? This essay argues that legal language in the formative era of American law can best be understoot by examining public responses to highly publicized criminal trials. Such an approach marks a significant departure from the received historiography. Most traditional historians have portrayed American resistance to British domination as anti-nomian, involving largely riots and extra-legal civil disobedience.This article shows the opposite was the case. Revolutionary Americans were not antinomian, but deeply concerned with legal norms. These legal norms did not await the ratification of the Constitution, but were constructed from the fabric of political, and even ordinary, criminal law cases which became deeply contested causes célèbres. The essay consists of two close readings of inter wining cases that took place in Boston during the 1760s. During the course of these two courtroom trials, a ground-swell of extra-official examinations of these cases-many of them aimed at a popular audience-served to create a criminal law jurisprudence with a revolutionary cast.

Une analyse pluraliste des conceptions juridiques autochtones devant les tribunaux de juridiction pénale au Canada

RésuméCet article consiste en une brève synthèse des résultats d'analyse des décisions jurisprudentielles canadiennes en matière pénale à l'égard des accusés autochtones au cours des cent dernières années. L'objectif de cette analyse est de mesurer l'ouverture du droit canadien à certaines formes de pluralisme juridique, à l'aide du concept de «dialogisme», c'est-à-dire une situation où l'ordre juridique étatique (le droit criminel canadien) intègre ou reconnaît l'application de valeurs ou de normes émanant d'un autre ordre juridique (les conceptions juridiques des peuples autochtones). L'analyse des décisions à révélé une lente évolution du droit criminel canadien vers un pluralisme juridique à faible intensité. D'abord, les premiers contacts entre les tribunaux canadiens et les autochtones se caractérisent par une absence de dialogue culturel, à l'exception des décisions de la Cour itinérante des Territoires du Nord-Ouest. Les décisions plus récentes révèlent quant à elles une réticence de la part des tribunaux à accepter que les valeurs autochtones aient une influence sur la composition du jury, l'emplacement du procès et la responsabilité criminelle. En revanche, en matière de détermination de la peine, on dénote une ouverture à l'égard du pluralisme juridique dans les cas de plus en plus nombreux où les tribunaux délèguent une partie de leur pouvoir décisionnel aux communautés autochtones.

A Critical View from the inside: An Application of Critical Legal Studies to Criminal Law

Critical Legal Studies (CLS) provides a theoretical critique of the law in operation. To date, very few CLS analyses have focused upon criminal law. This phenomenon is particularly glaring given the prominence of criminal law in the American judicial system. This paper provides an overview of the CLS movement and a discussion of the value of deconstructing criminal law cases. Four legal formalisms are then used to critique the McCleskey v. Kemp1 decision. A fifth formalism, the sociology of race relations, is offered and applied to critique McCleskey.

Human Biology and Criminal Responsibility: Free Will or Free Ride?

This article examines the role of the possible biological deficiency defenses in the criminal law. The topic is inspired by the renewed interest in biological and genetic research on behavior and the possible use of this research in a variety of criminal defenses in the United States and other countries. In general, the article presents three major arguments concerning biological deficiency defenses, using, respectively, a critique of biosocial science research, a statistical model of biological and sociological data, and an examination of theories and philosophies on causation and behavior. The first of this article’s arguments states that there should be no defense to mitigate criminal responsibility except in the less that one percent of cases eligible for the insanity defense. Mitigating factors may be considered at the sentencing stage, not for determining the length of the sentence, but only to determine the type of facility for detaining or treatment of a convicted defendant. The second argument contends that social science research has not successfully demonstrated sufficiently strong links between biological factors and criminal behavior to warrant major consideration in determining criminal responsibility. This conclusion is based upon the results of one of this country's largest studies of the biological and sociological development of individuals from the time of their birth to young adulthood. Social science research, however, can be valuable in other contexts, such as predicting bias in death penalty sentencing, in which measures are better defined and there is a lesser burden of statistical proof. The article’s third argument suggests that there is no strong evidence to support either a strictly free will or a strictly deterministic philosophy in the criminal law regarding either the causes of crime or the determinants of criminal responsibility. Moreover, the notion of ‘cause’ has varying implications depending on the context. Statistical models of biosociological research support a philosophy of ‘degree determinism,’ however, that spans a lifetime. The criminal law should reflect this philosophy rather than a free will fiction.The article has four Parts. Part I outlines some selected theories and research on genetic, biological, sociological, and environmental influences on criminal behavior. Criminal law cases and defenses that have used this research are discussed and criticized. Likewise, many of these theories are tested together in Part II, which examines research results from a longitudinal study of juvenile and adult crime in order to assess the rationale and desirability of a biological deficiency defense. This article then applies the results of this study's statistical model to develop a probability theory of behavior, which is discussed in Part III in the context of arguments supporting both free will and deterministic notions of criminal responsibility. Part III argues that a theory of ‘degree determinism’ more accurately reflects what have previously been called cause-and-effect relationships. Part III also assesses the feasibility of a biological deficiency defense given the problems posed by other proposed criminal defenses, such as Vietnam Stress Syndrome. Part IV concludes with a commentary on the appropriate and inappropriate uses of social science research and its relation to the goals and philosophy of the criminal justice system.

Environmental and Structural Variables as Determinants of Issues in State Courts of Last Resort

The linkage between state socioeconomic and political environments and issues found in decisions of state courts of last resort is explored. It is found that, in general, state courts of last resort in rural, politically undifferentiated states tend to decide larger proportions of private litigation than courts within more highly industrialized, politically competitive states. These latter courts of last resort tend to focus upon criminal law, civil liberties, and economic regulation cases. Multiple regression analysis shows that the six environmental descriptors and one court system variable-the presence or absence of an intermediate appellate court-explain a substantial portion of the variance in the distribution of issues among the states. The study demonstrates that environmental variables are important predictors to the kinds of decisions rendered by courts, and underscores the need for more systematic, comparative analysis of state judicial systems. A considerable body of research published in the last several years has demonstrated the important effects of socioeconomic and political diversification upon political processes and policy outputs. (Dye, 1966; Sharkansky and Hofferbert, 1972). Yet little research has been conducted on the impact of environmental differences on judicial processes and policy. This is not to suggest, however, than the linkage between environmental conditions and courts has been totally ignored. On the contrary, most models of the judicial processes make some reference to this linkage, and the systems model in particular underscores the effects of the flow of demands and conflict from the environment towards the judicial system. (Sigler, 1968; Goldman and Jahnige, 1970). However, while reference is often made to these relationships, the literature is still devoid of empirical research that systematically examines the impact of environment upon judicial action. To remedy this omission, the present study will offer a comparative examination of the relationship between socioeconomic and political conditions within the fifty American states, on the one hand, and issues decided by state courts of last resort on

Recent Developments in Criminal Law

Before considering some of the recent criminal law cases which are significant as indices of the present course of criminal law, let us briefly review some of the major inherent difficulties attending the administration of criminal law. The degree of efficiency that can be attained in enforcing rules governing human conduct is intimately associated with the extent to which such precepts lend themselves to enforcement.' It is virtually inevitable that whenever society burdens the law with an extensive program of regulation of many phases of conduct whose very nature does not permit of simple objective treatment there will follow loud complaints of the breakdown of the traditional enforcing agencies. The problem of enforcing the criminal law is in reality a problem of the intrinsic limitations upon effective legal action. Crime is a relative concept, varying both with the society in which it is prohibited and the time at which it is prohibited.2 To the fact that the evolution of the criminal law lacked scientific guidance we may ascribe the great number of vestigial penal laws, both substantive and adjective, which so frequently mire the enforcing agencies. Often, strict compliance with the technical requirements of criminal procedure stemmed from the endeavor of the courts to ameliorate the excessive severity of the punishments for the old common law crimes. Our modern criminal codes are not unified by a single consistent underlying concept but rather consist of a mixture of principles derived from diverse schools of philosophy. Each generation has accepted the criminal law as it was bequeathed by its fathers, rarely troubling to examine its heritage for the purpose of culling out those portions which were based upon outmoded theories. Each generation has sought to build upon the foundation of the old criminal laws regardless of whether or not the foundation could accommodate the structure. This accounts

Leading Cases in Criminal Law. Being the sixth edition of Warburton's Leading Cases in Criminal Law. By W. Blake Odgers, of the Middle Temple, and A. H. Armstrong, of the Inner Temple, Barristers-at-Law. London: Stevens & Sons, Ltd.1932. 8vo. xxviii and 476 pp. (15s. net.)

Leading Cases in Criminal Law. Being the sixth edition of Warburton's Leading Cases in Criminal Law. By W. Blake Odgers, of the Middle Temple, and A. H. Armstrong, of the Inner Temple, Barristers-at-Law. London: Stevens & Sons, Ltd.1932. 8vo. xxviii and 476 pp. (15s. net.)