Defense Attorneys Research Articles

Blaming Children: How Rape Myths Manifest in Defense Attorneys' Questions to Children Testifying About Child Sexual Abuse.

Since rape myths were codified in 1980 (Burt, 1980), scholars have shown that individuals who endorse rape myths perceive victims as less credible and more responsible for rape and perpetrators as less responsible. Studies also show that rape myths hinder successful adjudication of rape cases by influencing juries' assessments of perpetrator guilt (Dinos et al., 2015). While most of this research focuses on sexual assaults involving adult victims, some scholars have found that victims as young as 12 are blamed for rape. If rape myths influence the perceptions of sex offenses even when victims are children, then defense attorneys in child sexual abuse (CSA) cases may be motivated to highlight rape myth in CSA trials. In the current study, we conducted a content analysis of the cross-examinations of 122 children, aged 6 to 17, alleging CSA to determine if and how defense attorneys question children about rape myths. We looked for questions about force and resistance, motives to lie, victim precipitation, and character issues (e.g., habitual drug use). We found that defense attorneys commonly referenced rape myths in CSA trials. A total of 10% of all defense attorneys' lines of questioning referenced a rape myth, and attorneys asked 77% of children at least one rape myth line of questioning. Whether or not attorneys asked about different myths and the content of these questions varied by children's age. Our findings indicate that defense attorneys use rape myths strategically to undermine children's credibility in CSA trials, but they adapt (adult) rape myths in ways that are plausible in the CSA context. Policies formed to prevent the prejudicial impact of rape myths at sexual assault trials involving adults (e.g., rape shield laws) may not adequately prevent their impact in CSA trials. Prosecutors, therefore, should address rape myths at CSA trials.

Did Your Mom Help You Remember?: An Examination of Attorneys' Subtle Questioning About Suggestive Influence to Children Testifying About Child Sexual Abuse.

Researchers studying children's reports of sexual abuse have focused on how questioners overtly assess coaching and truthfulness (e.g., "Did someone tell you what to say?"). Yet attorneys, and defense attorneys, in particular, may be motivated to ask about suggestive influence and truthfulness in subtle ways, such as with implied meaning (e.g., "Did your mom help you remember?"). Such questions may be particularly challenging for children, who may interpret statements literally, misunderstanding the suggested meaning. The purpose of this study was to examine and categorize how attorneys' ask about suggestive influence and truthfulness. We wanted to learn how attorneys subtly accuse suggestive influence, and how frequently this occurred. We hypothesized that questions indirectly accusing suggestive influence would be common, and that defense attorneys would ask more subtle questions, and fewer overt questions, than prosecutors. We examined 7,103 lines of questioning asked by prosecutors and defense attorneys to 64 children testifying about alleged child sexual abuse. We found that 9% of all attorneys' lines of questioning asked about suggestive influence or truthfulness. The majority (66%) of these were indirect accusations. Indirect accusations of suggestive influence spanned a range of subtleties and topics, including addressing conversational influences (e.g., coaching), incidental influences (e.g., witnessing abuse), and others. We also found defense attorneys were less likely than prosecutors to ask about suggestive influence and truthfulness overtly. We conclude that attorneys commonly ask about suggestive influence and truthfulness in subtle ways that developing children may struggle to understand, and which may result in affirmations of influence, even when allegations are true.

Mistrust as Grounds for Recusation

Traditionally, the grounds for recusation are objective circumstances established in the course of criminal proceedings, which exclude the participation of certain subjects in the trial, regardless of the discretion and expression of the will of the parties. The paper substantiates that "other circumstances giving grounds to believe that they are personally, directly or indirectly, interested in the outcome of this criminal case" provided for by Part 2 of Art. 61 of the Criminal Procedure Code of the Russian Federation as a basis for challenging a judge and other persons do not imply the mandatory establishment of interest, it is enough that there are circumstances giving grounds to believe its existence. It is in this interpretation of the law that the general idea underlying the institution of recusation is realized, i.e. ensuring confidence in the composition of the court. Ignoring mistrust in the composition of the court as a basis for recusation leads to violations of the law when resolving recusations in the event of an interpersonal conflict in court, when establishing a corporate relationship between a party and the composition of the court, when recalling a defense attorney, etc.

Emotional Order in the Court! Defense Attorneys and Emotional Labor

Emotional Order in the Court! Defense Attorneys and Emotional Labor

Procedural justice and legal socialization among juvenile offenders: The role of defense attorneys

AbstractResearch is increasingly focusing on how young people interpret their experiences with the legal system and whether and how this shapes attitudes and beliefs about the system. This study adds to the extant literature by examining the relationship between perceptions of procedural justice and attitudes toward the law and legal system for a sample of youth (N = 227) in residential placements. Specifically, it focuses on how youths’ perceptions of their defense attorneys shape their attitudes toward the legal system. Results demonstrate that youth who feel they were treated more fairly by their defense attorneys viewed the police and courts as more legitimate. White youth viewed the police as more legitimate than did youth of color and girls viewed courts as less legitimate than did boys. Attitudes toward the legal system were also related to other contextual characteristics.

Особенности непрямого коммуникативного воздействия адвоката и прокурора на жюри присяжных во время судебного заседания (на материале английских кинофильмов)

The paper aims to prove that during a trial, a defence attorney and a prosecutor use the same communicative techniques to influence the jurors. The author differentiates the notions “communicative behaviour” and “verbal behaviour”. Scientific originality of the study lies in the fact that the researcher for the first time analyses the suggestive tactics used by English-speaking defence attorneys and prosecutors to exert indirect verbal influence on the jurors. English-language feature films served as the research material. As a result, it is proved that during direct examination and cross-examination, defence attorneys and prosecutors use verbal manipulation techniques aiming to discredit the opponent and his trial strategy in the jurors’ eyes.

Stolen innocence? Observance of the EU Directive on presumption of innocence by Spanish crime reporting

This paper examines the compliance of Spanish crime reporting with the principles of the 2016 EU Directive on presumption of innocence, which aims at preventing the publication of information that might bias the public and the jurors against the suspect. A content analysis applied to a sample of 200 crime news stories published by eleven of the most popular print and online news platforms in 2018 reveals that the Spanish press coverage of crime is centered around the pre-trial and sentence stages, with little attention to the oral trial. The full name and the face portrait of the suspect appear in roughly one-third of the stories, but this overwhelmingly happens in news stories reporting on the court’s decision, so that the presumption of innocence is generally protected. Interestingly, the legacy media are more likely to report on the victim’s full name and the crime details that online digital media. One-fourth of the stories include accusations of guilt, as prosecutor attorneys and other officials are more frequently cited than defense lawyers. Although the Spanish press is largely compliant with the recommendations of the EU Directive, the lack of attention to the oral phase, where the arguments of both parts are deployed and contrasted, leads to a bias in the coverage against the suspect.

Institutional Determinants for Representation of Indigent Defendants: Evidence from Russia

Abstract Little is known about the motives of lawyers who provide free legal assistance in countries that lack both a developed professional community and developed institutions related to the rule of law. Based on a survey of 3,317 criminal defense lawyers (advokaty) in 35 regions of Russia, we analyze the provision of two types of free legal services: participation in legal proceedings “on appointment” (po naznacheniyu) and the provision of pro bono legal assistance. We show that work on appointment usually involves lawyers with low social capital and a lack of regular clients. In contrast, pro bono legal assistance is encouraged by lawyers’ organizations. It is typically provided by professionals with a high level of social capital and with values aimed at maintaining an excellent professional reputation. We conclude that the provision of free legal services might best be stimulated within the professional community rather than by the government.

Racial Bias and In-Group Bias in Virtual Reality Courtrooms

AbstractWe filmed videos of criminal trials using three-dimensional virtual reality (VR) technology, prosecuted by actual prosecutors and defended by actual defense attorneys in a real courtroom. T...

Оценка заключения эксперта защитником

Being a multifaceted issue, the assessment of an expert’s statement in different types of legal proceedings by various institutions has been the subject of the scientific debate for many years. This article is devoted to the scientific-theoretical and applied analysis of the issue of assessing the expert’s statement by the defense lawyer. Based on the analysis of the materials of judicial practice, the authors assess various situations associated with the exclusion of the expert’s opinion from the evidence. Certain stages of assessing the expert’s opinion as evidence are proposed. The conducted research actualizes the necessity to develop scientifically based recommendations for assessing the expert’s statement by the defense lawyer, and develops the practical significance of the active role of defense lawyers in the assessment of forensic expertise. The conclusions and suggestions formulated in the article can be used in scientific activity, in the development of practical recommendations, and in rulemaking while improving the legislation governing the assessment of the expert’s opinion.

Использование стороной защиты приема визуализации при представлении доказательств и изложении позиции в судебном разбирательстве по уголовному делу

The article analyzes the possibility of using visualization by the defense side when presenting evidence and stating a position in a criminal proceeding. The cross-sectoral nature of this area of research is noted, which is of interest for scientific visualization, forensic science, cognitive psychology, and criminal procedural law. The content of visualization in court proceedings, the relationship between external visualization (the process of reproducing information using various demonstration means and methods) and internal visualization (the process of cognition, i.e., comprehending, reproducing, evaluating, and storing information in consciousness) are disclosed. The means of external visualization are given, with the help of which persuasion and suggestion to the court and the jury of the position of the defense are achieved. The problematic aspects of the introduction of this tactical technique into the practice of defense in a criminal case at the stage of trial are considered. Among which there are both technical problems associated with the lack of the necessary equipment in the Russian courts, and the problems caused by the accusatory bias of the court, and the lack of proper legal regulation of the possibility of a defense attorney playing presentations when providing evidence and substantiating his position. A judgment is made about the prospects for the use by the defense side of the reception of visualization in criminal proceedings at the present time.

IMPLEMENTATION OF THE RIGHT TO PROTECTION IN THE PROCEEDINGS OF THE INQUIRY IN AN ABBREVIATED FORM

The article deals with the problems of ensuring the right to protection of suspects in criminal proceedings on crimes investigated in a reduced form of inquiry. The authors draw attention to the need to exclude the formal approach in ensuring the right to a defense in the production of an inquiry in a shortened form, since subsequently the criminal case is considered in a court session in the order of chapter II. 40 of the Code of Criminal Procedure of the Russian Federation, in which there is no judicial investigation, in connection with which the accused, who does not understand the subtleties of the procedural form, becomes its hostage, the defender must ensure the protection of his rights. The authors substantiate the need for mandatory involvement of a defense lawyer to resolve the issue of conducting an inquiry in a shortened form and its subsequent mandatory participation in the criminal proceedings. The position on the inadmissibility of making a decision on the use of an inquiry in a shortened form in the presence of a lawyer on duty, in the presence of a lawyer by agreement, if the latter could not appear for the first interrogation of the suspect, is defended. The authors propose a procedure for admission to participation in the case of a defense lawyer in the course of conducting an inquiry in a reduced form, making a decision on the possibility of conducting an inquiry in this form, and highlight the features of exercising the right to a defense when familiarizing with the materials of a criminal case.

Mt. Everest—we are going to lose many: a survey of fingerprint examiners’ attitudes towards probabilistic reporting

AbstractOver the past decade, with increasing scientific scrutiny on forensic reporting practices, there have been several efforts to introduce statistical thinking and probabilistic reasoning into forensic practice. These efforts have been met with mixed reactions—a common one being scepticism, or downright hostility, towards this objective. For probabilistic reasoning to be adopted in forensic practice, more than statistical knowledge will be necessary. Social scientific knowledge will be critical to effectively understand the sources of concern and barriers to implementation. This study reports the findings of a survey of forensic fingerprint examiners about reporting practices across the discipline and practitioners’ attitudes and characterizations of probabilistic reporting. Overall, despite its adoption by a small number of practitioners, community-wide adoption of probabilistic reporting in the friction ridge discipline faces challenges. We found that almost no respondents currently report probabilistically. Perhaps more surprisingly, most respondents who claimed to report probabilistically, in fact, do not. Furthermore, we found that two-thirds of respondents perceive probabilistic reporting as ‘inappropriate’—their most common concern being that defence attorneys would take advantage of uncertainty or that probabilistic reports would mislead, or be misunderstood by, other criminal justice system actors. If probabilistic reporting is to be adopted, much work is still needed to better educate practitioners on the importance and utility of probabilistic reasoning in order to facilitate a path towards improved reporting practices.

The Litigation Complexity of Posttraumatic Headaches.

This review explores the workings of the legal process in posttraumatic headache (PTH) claims by discussing representative court cases, the approaches taken by both plaintiff and defense attorneys in evaluating a client with PTH, and the role of the expert witness. This discussion also examines the question of whether or not litigation prolongs the symptoms of PTH and concussion, looking at the issues of malingering and the psychological effect of litigation. Litigation prolongs recovery of PTH, primarily not from malingering but rather due to the psychological mindset of the plaintiff as created by the litigation process. Just as the medical community struggles with PTH diagnosis, mechanism, and treatment, the legal system grapples with identifying valid claims for PTH. Psychological support is an important component for PTH recovery to more effectively deal with the psychological impact of litigation and the concept of perceived injustice.

COVID-19 exacerbates existing system factors that disadvantage defendants: Findings from a national survey of defense attorneys.

COVID-19 has impacted many facets of daily life and the legal system is no exception. Legal scholars have hypothesized that the effects of the pandemic may contribute to more coercive plea bargains (Cannon, 2020; Johnson, 2020). In this study, we explored defense attorneys' perceptions of whether and how the plea process has changed during the COVID-19 pandemic. This study was exploratory, and we made no a priori hypotheses. We surveyed 93 practicing United States defense attorneys about their perceptions of whether and how the pandemic has affected court procedures, plea-bargaining and prosecutorial behavior, and defendant decision-making. We conducted semistructured follow-up interviews with 13 defense attorneys to help contextualize the survey responses. The majority of defense attorneys (81%, n = 76) reported that the plea process had changed during the COVID-19 pandemic, and that they experienced difficulty contacting and communicating with their clients, especially those who were detained. Two thirds of defense attorneys (n = 42) who said the plea process had changed thought that prosecutors were offering more lenient deals. One third of defense attorneys with detained clients (n = 23) reported having had clients plead guilty due to COVID-19 related conditions who might not have under normal circumstances. The majority of defense attorneys reported that the COVID-19 pandemic has impacted their ability to access and advise clients, and they believed that leverage in plea negotiations had shifted further to individual prosecutors. At the same time, the attorneys reported that prosecutors were offering more lenient deals, painting a complex picture of the plea negotiation process during the pandemic. (PsycInfo Database Record (c) 2021 APA, all rights reserved).

Значение категории «благоприятные мотивы» для обжалования приговора

The article discusses cases of compulsory appeal of the sentence by defense lawyer if there are grounds for canceling or changing the sentence for favorable reasons for the client. As a result of the analysis of legislation and judicial practice the author proposed approaches to determine favorable motives, given a non-exhaustive list of situations where such motives may be present.

Negotiating with parents: Attorney practices in the juvenile plea bargain process.

Research on plea bargaining is increasing, yet much of this work examines how the process unfolds in adult court. Plea bargaining in juvenile court has several notable differences such as parental involvement. Including parents throughout the adjudicatory process is encouraged but ultimately left up to the attorney. Research has not explored whether attorneys include parents in plea bargain discussions with their clients. The present study examined parental involvement in the juvenile plea bargain process. We did not have any formal a priori hypotheses for this exploratory study. The first author conducted qualitative interviews with eighteen defense attorneys from the juvenile division of a public defender's office on the East Coast where we discussed their most recent case that resulted in a plea bargain. Parents were included in plea negotiations and hearings. Attorneys described seeking parental input because parents may be impacted by the terms of the plea and because the court often seeks parental approval. During hearings, parents offered input regarding their child's ability to plea, the disposition plan, and whether they support their child's decision to plead guilty. Pleas might impact parents, so it may be impractical to overlook their interests. However, parent and child interests may conflict, and parents often lack understanding of their children's rights and pleading generally. Therefore, attorneys must not only advocate for their clients, but also educate and manage parents' interests both inside and outside the courtroom. (PsycInfo Database Record (c) 2021 APA, all rights reserved).

Электронное досье по уголовному делу в эпоху цифровизации

The article is devoted to the creation of an electronic dossier of a defence lawyer. It shows the significance of the dossier in the law practice, its content, the disadvantages of the «dossier in paper» and the advantages of the «electronic dossier». The article analyzes the «Methodological recommendations for conducting legal proceedings by attorneys», usage of the investigator’s automated workplace and the judge’s automated workplace. It presents some related foreign experience. The various capabilities of digital dossier and its potential are described.

Типичные ошибки адвокатов-защитников в применении уголовного закона при квалификации по объекту и предмету преступления

Analyzing the current legal situation in Russia, the author comes to the conclusion that in the field of qualification of crimes there are not enough acts of official interpretation of the norms of the criminal law and there is no unified approach to understanding the basic concepts and rules of legal assessment. These circumstances directly affect the effectiveness of the criminal law and affect the accuracy of legal qualifications. The article examines the typical mistakes of defense lawyers in the application of the criminal law when qualifying for the object and subject of the crime.

Дисциплинарные органы адвокатских палат как субъекты защиты профессиональных прав адвокатов

The article reveals the role of the Qualification Commission and the Council of the Bar Chamber of the subject of the Russian Federation in the protection of the professional rights of the lawyer in carrying out disciplinary proceedings against him. In particular, the author singles out procedural and substantial ways of defense lawyers’ rights protection by disciplinary bodies of the chamber, the analysis of corresponding norms of the Code of Professional Ethics of Lawyers.