Defense Claims Research Articles

Justifications and Rights-Displacements

AbstractIn articles published ten years apart in 2011 and 2021, Gur-Arye argues that when considering an agent’s explanation for doing something that looks, prima facie, like a criminal offence, we should distinguish between a plea of justification, and an assertion that one acted within one’s power. The former explains an agent’s reasons for having committed a pro tanto offence (i.e., actus reus + mens rea). The latter is a denial that the agent committed any pro tanto offence at all. In this piece, I build on Gur-Arye’s argument, suggesting that her claim about powers can be extended to all instances in which rights are displaced. I argue that in its expanded form, the practical significance of Gur-Arye’s claim goes well beyond what she identifies. It points to important and underappreciated points about the structure and classification of defensive claims in the criminal law, and helps identify errors in some arguments commonly made to support claims about disputed features of justifications.

Essence of the Stipulation in the Roman Private Law

Introduction. The issues of stipulation were widely covered in the ancient Roman Law sources of knowledge. Throughout the history of Roman Law, the institution of stipulation has undergone some changes. The stipulation arose in the archaic period and got the greatest development in the classical era. Within the Roman Private Law course, which is obligatory for substantial study of the Law curriculum, the special place is allocated to the topic of stipulation. The aim of the present study is to provide the scientific analysis of the Roman Law sources of knowledge with regard to the subject matter of the institute of stipulation in the Roman Private Law, finding out its structural features, origin and evolvement in the historical perspective.Materials and Methods. The legal, organisational, worldview, methodological and other aspects of studying the stipulation within the Roman Private Law have been considered by applying the methods of scientific cognition generally accepted in Russia: general scientific (dialectical) and specific scientific (analysis, synthesis, historical case specific, logical, etc.) methods.Results. The stipulation is an unilateral agreement (contract) used in the Roman Law, concluded orally (verbally) between the parties (debtor and creditor) in the form of solemn declarations regarding the proprietary rights of the Roman citizens and foreigners. The mandatory attributes of the stipulation are: the grounds, the subject, the parties, the form and classification. Various juridical factors used to be the grounds for arising the stipulation. Alongside, according to the Roman Law School, the provided obligation was referred to the range of conventional (contractual) ones, was unilateral and had an abstract nature. Any obligation comprising the ownership right as well as the right of possession could constitute the subject of the stipulation. The provisions on monetary assessment timeframe of an object of obligation, various conditions for terminating the stipulation, circumstances excluding the defense's claims in the lawsuit based on the stipulation, and mandatory requirements for making a deal have been considered in the article. The parties to the agreement were both Roman citizens and foreigners. The deal could be made for the benefit of a creditor as well as his heirs. The obligations within the stipulation and the features of slaves’ participation in the agreement have been considered. In such agreements the parties were represented by: guardians, adstipulators, donators. The timeframe for fulfilling an obligation should have been indicated as a condition for concluding an agreement, and the period for claims in the lawsuit began from the moment of detecting the violations of an obligation, which took place during the factual happening of an event in the frame of the agreement. The potential perspective has been highlighted during studying the history of obligations within the stipulation on the territory of the Bosporan kingdom, being the part of the Roman protectorate. The examples of the institution of stipulation acceptance in the current Law of Obligations have been considered.Discussion and Conclusions. The conducted research has theoretical and practical value and is targeted at the educators providing professional training to future lawyers. Thus, one of the topics proposed for including into the Study Module “Roman Private Law” is the stipulation, which is traditionally studied within the Roman Law of Obligations.

Three Fish at One Hook? Future-Oriented, Reconciliatory, and Defensive Claims for Historical Closure as Expressions of the Same Defensive Desire.

Historical perpetrator groups seek to shield themselves from image threat by advocating for closing the discussion of their crimes. However, from a broader theoretical perspective, such demand for historical closure (HC) may also reflect willingness to reconcile with the victim group or to focus on the future rather than the past. In nine studies across four different contexts (Germany, United States, Italy, and Australia; N = 3405), we analyzed whether these three facets of HC (defensive, reconciliatory, and future-oriented) indeed substantially differ. Contrary to expectations, nomological network analyses suggested that all three facets reflect the same defensive desire (Studies 1a-2c) and are perceived as overall similar from a third-party perspective (Study 3). Finally, all three HC facets showed a positive trend toward costly avoidance of confrontation with the ingroup's perpetrator past (Studies 4a-c). We discuss implications for (and against) a more nuanced understanding of the demand for HC.

Combined Anchoring: Prosecution and defense claims as sequential anchors in the courtroom

PurposeWhen making judgements under uncertainty not only lay people but also professional judges often rely on heuristics like a numerical anchor (e.g., a numerical sentencing demand) to generate a numerical response. As the prosecution has the privilege to present its demand first, some scholars have speculated about an anchoring‐based unfair disadvantage for the defence (who has the last albeit less effective word in court). Despite the plausibility of this reasoning, it is based on a hitherto untested assumption that the first of two sequential anchors exerts a greater influence on a later judgement (a primacy effect). We argue that it is also conceivable that the last word in court has a recency advantage (a recency effect) or that order does not matter as both demands even each other out (a combined anchor).MethodsWe report a pre‐registered experiment with German law students (N = 475) who were randomly assigned to six experimental conditions in a study on legal decision‐making order to test these three possibilities.ResultsResults indicate an influence of both the prosecution and the defence recommendation, but no effect of order.ConclusionThis provides strong support for combined anchoring even for knowledgeable participants and rich case material. Specifically, the data are best compatible with the notion that both anchors exert an influence but each on different individuals. The implications of this finding for theory and legal decision‐making are discussed.

Exploring the landscape of psychological threat: A cartography of threats and threat responses.

Over the recent years, research in the field of threat and defense has accumulated evidence on how encounters with various psychological threats influence human behavior, cognition, motivation, affect, and health. Unifying different theoretical threat models, the General Process Model of Threat and Defense claims that different threatening concerns have a similar underlying dynamic. Some years after the publication of this theory, we deem it important to take a comparative look at psychological threat, comparing threats regarding their properties and outcomes on personal and social level. As potential dimensions to describe psychological threats, we discuss the existential nature of concerns, phenomenological worlds involved, and thwarted needs in threat encounters. We also discuss data‐driven approaches to threat classifications, describing first empirical efforts to create threat taxonomies, and suggest directions for future research. This research will enhance our understanding of threat dynamics, and will help us make stronger, more clear‐cut assumptions about human behavior upon experiencing threat.

The use of Bayesian Networks and simulation methods to identify the variables impacting the value of evidence assessed under activity level propositions in stabbing cases

This paper presents a methodology allowing identification of the variables associated with transfer, persistence or recovery of DNA traces that have the most significant impact on the result of an evaluation measured through a likelihood ratio (LR). It builds on a case scenario involving trace DNA recovered from knife handles where the prosecution alleges that the person of interest (POI) stabbed a victim whereas the defence claims that the POI has nothing to do with the incident and the victim was stabbed by an alternative offender (AO). The defence proposition will also be refined to account for the possibility of secondary transfer. The variables having a significant impact on the LR are identified taking advantage of a graphical probabilistic environment (using Bayesian Networks, BN), coupled with simulation techniques. The paper presents (a) a BN, based on previous work Taylor et al. [5]; (b) its parametrization based on the current literature that represents the current state of knowledge used to inform the conditional probability tables of the BN and; (c) the implementation of the simulation methods. Results show that, regardless of the DNA outcome obtained, the most impacting variable is the “DNA match probability” when the defence alleged that the POI has nothing to do with the incident. It means that, given the current state of knowledge, such cases can easily be interpreted considering activity level propositions as they would not require any further data acquisition. When secondary transfer is alleged under the defence’s perspective, the LRs are generally much lower than for the previous case. The DNA match probability has less impact and variables associated with the donor will take the lead on the ranges observed on the LRs. Overall, once extraction and sampling efficiency have been set, the remaining variables that have an impact on the value of the evidence are the DNA quantity on hands and the background. With the most impacting variables so identified, it becomes manageable to direct further data acquisition if so required. Generally, the background that could be present on the knife handle, the environmental conditions are not critical due to their limited impact on the LR value. We note, however, that this identification of the significant variables depends on the obtained DNA results and this selection may be refined on a case by case basis. To allow one to explore all possibilities a dedicated Shiny application has been designed (https://lydie-samie.shinyapps.io/DNA_Activity/).

Justifications, Excuses, and Affirmative Defenses

Abstract A defendant who admits to having committed an offense may nevertheless be acquitted if he can provide a legally cognizable justification or excuse for his actions by raising an affirmative defense. This article explains how affirmative defenses generate social benefits in the form of avoided unnecessary punishment. It then asks what kind of evidentiary standards must be used in order to balance these benefits against potential social costs arising from frivolous defense claims. It thereby provides an economic rationale for the uniformity across US jurisdictions in allocating the burden on the prosecution to prove the commission of the offense, as well as the variation across states in the standards of proof they use in determining the validity of affirmative defenses. The analysis also explains why mere assertions of undeterrability should not be considered as affirmative defenses. (JEL K00, K14, K40, K41, K42)

Different Demands, Varying Responses: Local Government Responses to Workers’ Collective Actions in South China

AbstractWhile Chinese local governments remain extremely wary of workers’ collective actions, they do not always suppress them; sometimes, they tolerate such actions and even seek to placate workers. What accounts for these different government responses to workers’ collective actions? Based on a sample of over 1,491 collective action cases that took place in Guangdong between 2011 and 2016, we find that the types of demands raised by workers during collective actions affect how local governments respond. Local governments are likely to forcefully intervene in collective actions in which workers make defensive claims concerning issues of payment. In contrast, local governments are likely to use non-forceful approaches in response to actions in which workers make defensive claims regarding social security.

Justifications, Excuses, and Affirmative Defenses

A defendant who admits to having committed an offense may nevertheless be acquitted if he can provide a legally cognizable justification or excuse for his actions by raising an affirmative defense. This article explains how affirmative defenses generate social benefits in the form of avoided unnecessary punishment. It then asks what kind of evidentiary standards must be used in order to balance these benefits against potential social costs arising from frivolous defense claims. It thereby provides an economic rationale for the uniformity across US jurisdictions in allocating the burden on the prosecution to prove the commission of the offense, as well as the variation across states in the standards of proof they use in determining the validity of affirmative defenses. The analysis also explains why mere assertions of undeterrability should not be considered as affirmative defenses.

Activity level DNA evidence evaluation: On propositions addressing the actor or the activity

More often than not, the source of DNA traces found at a crime scene is not disputed, but the activity or timing of events that resulted in their transfer is. As a consequence, practitioners are increasingly asked to assign a value to DNA evidence given propositions about activities provided by prosecution and defense counsel. Given that the dispute concerns the nature of the activity that took place or the identity of the actor that carried out the activity, several factors will determine how to formulate the propositions. Determining factors are (1) whether defense claims the crime never took place, (2) whether defense claims someone other than the accused (either an unknown individual or a known person) performed the criminal activity, and (3) whether it is claimed and disputed that the suspect performed an alternative, legitimate activity or has a relation to the victim, the object, or the scene of crime that implies a legitimate interaction. Addressing such propositions using Bayesian networks, we demonstrate the effects of the various proposition sets on the evaluation of the evidence.

Forensic implications of changes in DSM-5 criteria for responses to trauma and stress

DSM-5 significantly changed the diagnostic criteria for Posttraumatic Stress Disorder (PTSD) relative to DSM-IV/DSM-IV-TR. These changes do not alter its basic approach to diagnosing mental disorders, which treats each disorder as a separate category. This article analyzes the strengths and weaknesses of the categorical approach, and reviews empirical evidence regarding the impact of changes within it on the ease or difficulty of receiving the PTSD diagnosis. It especially analyzes the impact of newly included symptoms that are meant to identify cases in which trauma exposure was associated with changes in more serious PTSD cases, known as Complex PTSD (C-PTSD). It proposes some effects that the changes could have on psychological injury claims. Many changes could support plaintiffs' claims while others could support defense claims. Some changes could support either. Overall, DSM-5 PTSD diagnosis is more responsive to individual differences in symptom presentations and appears able to diagnose some C-PTSD cases. The thesis throughout the article is that PTSD diagnostic accuracy could be improved further, especially for C-PTSD cases, by complementing its current exclusive reliance on behavioral symptoms that are characteristic of victims in general with assessment of the meaning that the symptoms have for individual victims. The article proposes some principles to guide interpretation of the individualized meaning of victims' symptoms, which help make the reasoning behind the interpretations explicit.

Creepy-ass cracker in post-racial America: Don West’s examination of Rachel Jeantel in the George Zimmerman murder trial

Abstract This article examines interactions between defense attorney Don West and witness Rachel Jeantel in the 2013 State of Florida v. George Zimmerman trial following the murder of Trayvon Martin. The focus of analysis is how the defense constitutes the term creepy-ass cracker as evidence of violence and aggression on behalf of Trayvon Martin. Their argument is located within an ideological framework of a post-racial American society wherein the defense claims colorblindness (Bonilla-Silva 2014) for their client George Zimmerman. Trayvon Martin’s observation of Zimmerman’s whiteness, as indexed by the word cracker, is positioned as evidence of a culture and an individual with inherently violent, racially motivated intentions. The article examines interactional moments during the defense’s questioning of Rachel Jeantel wherein creepy-ass cracker is positioned as immoral within a post-racial ideological framework, and evidence of racism toward white people. Don West’s use of pauses, hyper-articulated Standard American English, and emblematic deictic terms discursively and linguistically segregate Martin’s and Jeantel’s community from the hegemonic white practices of the courtroom. West’s attempts to assert symbolic control over the semantic meaning of creepy-ass cracker reflect the relative unmarkedness of Standard American English and whiteness in contemporary United States judicial systems and society.

Critical gender studies and international development studies: interdisciplinarity, intellectual agility and inclusion

AbstractCritical gender studies and international development studies are both interdisciplinary, but intellectual agility can ensure they are inclusive sites of knowledge production. To develop intellectual agility, which underpins progressive interdisciplinarity, students must paradoxically venture into more closely defined disciplinary traditions in the social sciences, the humanities and the sciences. Intellectual agility begins by being fully cognizant of epistemological and theoretical framings in substantive debates, such as, for instance, the perpetuation of violence against women or the entrenchment of poverty. I argue that by explicitly tethering ideas to disciplinary traditions, interdisciplinary research and teaching can more successfully address pressing international development concerns in an inclusive manner. International development studies can easily be seen as utilitarian and instrumental just as critical gender studies can easily be seen as impractical and vague. Here, I show how I have worked critical gender studies into international development studies so that students can develop intellectual agility. Underpinning this is the call for progressive interdisciplinary research and teaching delinked from the defensive claims of long-standing scholarly traditions or the aspirational ambitions of newly cast bodies of knowledge. This article is published as part of a thematic collection dedicated to multi- and interdisciplinary perspectives on gender studies.

The double-edged sword of genetic accounts of criminality: causal attributions from genetic ascriptions affect legal decision making.

Much debate exists surrounding the applicability of genetic information in the courtroom, making the psychological processes underlying how people consider this information important to explore. This article addresses how people think about different kinds of causal explanations in legal decision-making contexts. Three studies involving a total of 600 Mechanical Turk and university participants found that genetic, versus environmental, explanations of criminal behavior lead people to view the applicability of various defense claims differently, perceive the perpetrator's mental state differently, and draw different causal attributions. Moreover, mediation and path analyses highlight the double-edged nature of genetic attributions-they simultaneously reduce people's perception of the perpetrator's sense of control while increasing people's tendencies to attribute the cause to internal factors and to expect the perpetrator to reoffend. These countervailing relations, in turn, predict sentencing in opposite directions, although no overall differences in sentencing or ultimate verdicts were found.

Courts, Culture, Bullshit: A Critical Approach to Cultural Defence Claims

The topic of bullshit has gained some notoriety in Australian politics and law in response to claims that certain acts that are offences under crimes legislation are permitted or extenuated by traditional Aboriginal law. This paper examines the role that courts and the Australian Parliament have played in legitimating bullshit law discourses. I accept Harry Frankfurt’s definition of bullshit as including things said without regard to their verity, which I use to criticise courts for their acquiescent approach to bullshit arguments. In trials, uncritical acceptance of these arguments has led judges to claim that Aboriginal defendants are less morally culpable than others on the basis that they did not understand that the offences (including sexual assault of a minor) were wrong. I draw on critical theories, especially Australian feminist theory, to show how courts’ adoption of these arguments fosters a discourse of otherness, presenting Aboriginal men as backward and abusive and Aboriginal women as victims. I argue that this discourse was furthered by the 2007 Intervention, with the Howard Government implying that traditional law provided excuses for criminal acts. My conclusion focuses on how understanding bullshit can contribute to human rights discussions by critically evaluating the verity and merit of customary claims and generating awareness of the power structures involved. Such a critical approach would ensure that culture continues to exist and develop in a manner consistent with human rights.

HPSO report examines pharmacist liability

“The report itself contains a lot of examples of the results of pulling the wrong drug or administering the wrong dosage,” said Mark J. Buczko, Vice President of Affi nity Insurance Services Healthcare. HPSO, a division of Affi nity, is the nation’s largest provider of professional liability insurance and license protection coverage for individual health professionals. In its partnership with CNA, HPSO has provided coverage to pharmacists and pharmacy technicians, regardless of their employment status. HPSO/CNA also provides coverage for small community pharmacies and individually owned franchise pharmacies. As HPSO’s strategic partner, APhA sponsors the organization’s professional liability insurance programs for pharmacists.

Falling from Airstairs while Disembarking from a Commuter Plane

When performing forensic human factors analyses it is imperative to carefully evaluate plaintiff and defense claims to determine if they are consistent with theoretical research and science. This case study concerns a fall from airstairs by a woman who was disembarking an airplane. At face value, the circumstances seemed valid enough that the airline chose to settle with the plaintiff before any kind of expert evaluation was performed. However, when the plane manufacturer was countersued, it chose to hire a human factors expert. A human factors expert analysis revealed that the plaintiff’s description of the incident was inconsistent with the evidence. Also considered were safety factors of airstair and airplane design. This case highlights the importance of evaluating witness descriptions of an incident as part of a forensic human factors analysis.

Bond v. United States: No Inhibiting State Power Precludes the Reach of Congressional Legislation

The United States Supreme Court has accepted the case of Bond v. United States, a case involving a criminal conviction under a federal statute that implemented a multilateral treaty known as the Chemical Weapons Convention. Relying primarily on Missouri v. Holland, 252 U.S. 416 (1920), the Third Circuit affirmed the conviction despite defense claims that the crime was localized, was otherwise normally prosecutable by a state, and conviction under the statute was somehow inconsistent with the Tenth Amendment, a vague implied “federalism” and an allegedly implied “subject matter” limitation that appear no where in the Constitution. For several reasons, defendant’s claim that Congress does not have power under Article I, Section 8, clauses 3, 10, and 18 of the Constitution must not be accepted. In sharp contrast to defendant’s claims, a prior study of the treaty power vis a vis the power or sovereignty of the states that addressed more than ninety cases (thirty-two of which are U.S. Supreme Court cases) reveals that the Tenth Amendment is no barrier and there is a lack of any inhibiting state authority. The thorough study of cases also reveals that there is no imaginary “subject matter” limitation and identifies eighteen general categories or subject areas where the treaty power prevailed over matters that had otherwise been the prerogative of the states, including state criminal law and state criminal procedures.

Litigating Sex Crimes in the United States: Has the Last Decade Made Any Difference?

This comprehensive article reviews the history of advocacy on behalf of adult and child female victims of rape and other sexual assaults, focusing on both long term and short term trends. The first section provides statistical information about victimizations, rape reporting and prosecutions over the last 15 years. The second section explores the variety of issues that arise in the context of rape shields, including the extent of admission of evidence of prostitution and promiscuity, and urges that judges be required to find preliminary facts by a clear and convincing evidence standard before admitting any evidence of the complainant's sexual life that the defense claims is not barred by a rape shield. In addition, a reverse balancing test should also be required prohibiting such evidence of a sexual nature unless its probative value substantially outweighs the danger of harm to the complainant or unfair prejudice to any party. The author argues that these restrictions do not violate the Confrontation Clause.The next major section discusses the admission of the defendant's prior acts to prove propensity and lustful disposition. The author does not support the general admission of propensity evidence, but favors a flexible approach to the admission of Rule 404(b), particularly in child abuse cases, which is currently the prevalent approach. To the extent that propensity evidence is generally permitted, such as under the Federal Rules and in California, the author would also subject its admission to a clear and convincing evidence standard. Other topics addressed include rape counselor privileges; fresh complaint; DNA database issues, Sexual Abuse Response Teams and the use of forensic nurses.The article also explores how the rights of crime victims affect trials of sex crimes, and urges that more attention be given to providing legal assistance to child victims of sexual assaults. The article concludes by looking at evidentiary issues in child abuse cases, such as competency, remote testimony, expert testimony, and discusses the child friendly courtroom in light of Crawford's ban on testimonial statements in the absence of a declarant who has been subjected to cross examination.

Shooting Down a Hijacked Plane—The German Discussion and Beyond

The article examines whether state officials may shoot down a hijacked airplane which carries uninvolved passengers, if it is known that the plane will be used against the lives of other human beings. In its first sections, it explains the German Federal Constitutional Court’s verdict against such a permission, and it scrutinizes the crucial arguments in this ruling (restrictions on the use of military weapons; human dignity arguments). The author then extends the discussion beyond the path taken by the court. She examines the defensive claims of passengers aboard the plane and the protective claims of potential victims who are present at the hijackers’ target zone. In contrast to the German Federal Constitutional Court, she concludes that state officials must take the claims of both groups of potential victims equally serious, and that such conditions allow applying a consequentialist calculus (‘‘save the greater number’’) because it is the only way out of a genuine dilemma.