Pretrial Hearings Research Articles

Assessing the Risks of Risk Assessments: Institutional Tensions and Data Driven Judicial Decision-Making in U.S. Pretrial Hearings

Abstract Risk assessments, which are predictive technologies designed to augment organizational decision-making processes, are expanding globally. The use of risk assessments may lend legitimacy to official actors who routinely adjudicate highly consequential decisions alongside competing institutional pressures. But because these tools are laden with measurement errors, using them may also magnify institutional tensions and erode the legitimacy of official actors’ decision-making practices. In this article, I use interviews with judges in four large U.S. criminal courts to reveal how they strategically engaged with risk assessment scores to navigate tensions within and among different institutional logics. In pretrial hearings, judges selectively invoked risk scores to legitimate punitive sanctions that mitigated tensions from bureaucratic logics to process high caseloads with limited resources, legal logics to protect public safety and impose the least restrictive conditions, and political logics to follow the law while facing public scrutiny. I discuss the implications of these findings for future research on penal change and the uses of discretion in the age of big data.

Reconstruction of Regulation of Giving False Testimony at Pretrial Sessions in CaCorruptionses in Indonesia Based on Pancasila Justice

Based on the Constitutional Court Decision Number 21/PUU-XII/2014 Determination of the suspect as one of the objects of pretrial which in practice the trial process presents fact witnesses which has an impact on giving false information as referred to in Article 22 Jo Article 35 of Law Number 31 of 1999 concerning Eradication of Acts Corruption Crime. This study aims to analyze and find a reconstruction of the determination of the suspect in giving false testimony at the pretrial hearing in Article 22 of the Corruption Crime Law in Indonesia based on Pancasila justice. This research is a qualitative descriptive research. The approach used in this research is social legal research. In this study it was found that the Regulation of giving false testimony at the Pretrial hearing in Article 22 of the Corruption Crime Law in Indonesia after the Constitutional Court decision Number 21/PUU-XII/2014 has not been based on Pancasila values of justice, because law enforcement is against witnesses who give false statements in pretrial hearings. Corruption has not been regulated clearly and unequivocally in Article 22 of Law 31/1999, so that in practice there are differences in perceptions between investigators who are given the authority to determine suspects and judges who examine the principal case. Reconstruction of Regulations The regulation for the determination of suspects for giving false testimony at the Pretrial hearing in Article 22 of the Corruption Law becomes Paragraph (1). Everyone as referred to in Article 28, Article 29, Article 35, or Article 36 who intentionally does not provide information or provides information that is not true, shall be punished with imprisonment for a minimum of 3 (three) years and a maximum of 12 (twelve) years and/or a fine of at least Rp. 150,000,000.00 (one hundred fifty million rupiahs) and a maximum of Rp. 600,000,000.00 (six hundred million rupiahs). Paragraph (2). Punished with the same punishment as paragraph 1 (one) if the act is committed at a pretrial hearing.

Narratives and Practices in Pre-Trial Hearings: A Legal Anthropological Approach to Judicial Efficiency

This article aims to shed light on the practical organization of judicial operators in the pre-trial hearings of local Mexico City courts. Firstly, the aim is to describe cognitive, social, and objective formations, both conscious and volitional, linked to achieving the goals of the judicial bureaucracy in the practice of preliminary hearings in the justice system (the distribution, organization, and interpretation of the work) that take place and shape the social-judicial domain. Ethnographic observation and the narratives of agents in this field yield a theoretical framework formed by the actor-network theory, anthropological concepts from Garfinkel’s ethnomethodology and Bourdieu’s ideas of social field to provide a better description of agent practices in the field that produce a judicial “efficiency” that sustains, maintains, and drives the bureaucracy of the justice system, specifically during pre-trial hearings.

Sometimes the Snitch Recants

We analyzed the role that jailhouse informants have played in DNA exoneration cases. Thus, for the first 375 DNA exoneration cases compiled by the Innocence Project (IP), we reviewed the IP information relevant to jailhouse informant testimony. We supplemented the information from IP with that from the National Registry of Exonerations (NRE) and the Convicting the Innocent (CTI) databases. We found that 15% of these cases included jailhouse informant testimony. In 13% of the cases, the only evidence supporting a conviction was the word of the jailhouse informant. We also found that in 24% of cases which had at least one jailhouse informant, the informant recanted, and in 13% percent of these cases, the jailhouse informant had provided the only evidence supporting a conviction. There has recently been an effort in some jurisdictions for reform with regard to informant testimony. Reforms have taken many forms (e.g., pretrial hearings, jury instructions). While states should continue to consider adopting procedures in an effort to curb the reliance on unreliable informants (and researchers should continue to test what reforms will best achieve these goals), we recommend that any reform with regard to informants should include a consideration of recanting informants.

THE IMPLEMENTATION OF THE SUSPECT'S RIGHTS IN THE LEGALITY OF PRETRIAL INVESTIGATION

The purpose of this study is examine the legality of the investigative process at pretrial hearings and their constraints. The normative legal research method supported by empirical legal research is used in this study. The results of the study found that the suspect's right to test the legality of the investigation process at the pretrial hearing has been implemented through legal procedures in accordance with the provisions of Article 77, Article 79, Article 82 and Article 95 of the Criminal Procedure Code. In its implementation, out of a total of 40 cases, 15 cases were rejected, 7 cases were granted, 7 cases were withdrawn, 4 cases could not be accepted, 6 cases were declared disqualified, 1 case was still in trial. As a result, it was found that there were procedural errors and violations of rights committed by investigators, so that during the examination the pretrial hearing was declared invalid. Obstacles for a legality test for the investigation process through a pretrial hearing include: the pretrial request was declared invalid, declared unacceptable, the difficulty for the suspect to find legal counsel who could win his case, the high cost of paying attorneys, the suspect's ignorance and ignorance of legal issues.

Between the legal technique and the social question: the plural commitments of public defenders in Argentina

The criminal process in the Province of Buenos Aires has been affected by radical reforms in the last decades. Beginning with the complete replacement of the criminal procedure code in 1998 to the introduction of pre-trial hearings and simplified procedures for cases declared in flagrante delicto in 2004 the reforms have impacted more than legal procedures; they have changed the way judicial actors perceive themselves and their relations with the institution. Based on interviews with ten public defenders of the PBA this article offers an exploratory analysis on how public defenders’ perceptions have been impacted by those reforms and to what extent those internal changes have affected the internal dynamics of the PD. Drawing from the sociology of Bernard Lahire and Laurent Thenevot we identify in the public defenders’ responses how these changes affected their personal commitments. Mapping those commitments allow us to describe the subjective folds of the PD through which it is possible to better understand the decisions of public defenders by considering the internalization they make of the judicial world and its relationship with the institutional context.

“There's really almost nobody there who's trying to make sense of it”

“There's really almost nobody there who's trying to make sense of it”

PRE-TRIAL: THE SUSPECTS' ULTIMATE WEAPON AND CORRECTION TOOL FOR INVESTIGATORS TO BE MORE PROFESSIONAL FROM THE PERSPECTIVE OF LEGAL EXPEDIENCY

This study aims to determine the practice of holding pretrial hearings in Indonesia changed in the aftermath of the 2014 constitutional court ruling 21 / PUU-XII / 2014 as well as legal expediency accrue from pre-trial actions against suspects' determinations, both for the suspect himself and for the suspect. This study is a descriptive qualitative research with the use of normative legal research with primary data collection namely Court Decisions, Legislations which are analyzed using Legislative approaches, Case Approaches and Analytical Approaches. The findings reveal that Pretrial hearings were implemented in Indonesia following the constitutional court's decision Number: 21 /PUU-XII/2014, creating a new legal phenomenon in which suspects flocked to file pretrial legal efforts, which naturally clogged up relevant state institutions such as POLRI, KPK, the Prosecutor's Office as well as the District Court, where pretrial which had previously been viewed as a less popular legal effort, was instantly weakened as if it Advocates defending suspects and on the other hand, related institutions can prepare themselves by enacting a series of regulations requiring increased prudence in determining suspects in order to "survive" the new weapons of suspects known as Pretrial. However, when viewed through the lens of legal expediency, it is a positive thing for investigators because it means that Pretrial can be used as a tool of correction.

PUTUSAN PRAPERADILAN YANG MENYIMPANG SECARA FUNDAMENTAL

Pretrial hearing is designed for a simple issue, no more than to control administrative proceedings of criminal enforcement. This can be seen from the simplicity of the pretrial hearing concept in Article 77 of the Criminal Procedure Code. Demands for justice for suspects/defendant led to developments in the pretrial system. However, these developments have a negative side, resulting in idealized norms being modified in such a way as to meet sociological interests, which are not necessarily in line with their philosophical and juridical aspects. The most visible impact is that the Judicial Review against Article 77 of the Criminal Procedure Code results in broading the object of pretrial hearing that has serious implications for the procedure law. The problem in this research is whether the decision of pretrial in assessing the core issue of the case includes "pretrial decisions that are considered fundamentally deviant"? This type of legal research is a normative with a prescriptive nature that re-testing vague of norms against legal theory. The results of the research are the decision of pretrial hearings that assess the core issue of the case is fundamentally deviant, because pretrial hearing only have the authority to "examine" and "decide" meaning that they can only move within the scope / realm of administration only. It is different when a judge is given the authority to "adjudicate", then the court will be allowed to examine the subject matter of the case.

Observing Justice at Guant\xe1namo Bay: Human Rights NGOs and Trial Monitoring at the US Military Commissions

The article critically considers the role of NGOs at the US naval base in Guantánamo Bay, Cuba. On the basis of observation of pre-trial hearings for the case against Khalid Sheik Mohammed et al.—those allegedly responsible for the September 11 attacks—the article analyses NGOs as trial monitors of the US military commissions set up to deal with ‘alien unprivileged enemy belligerents’. In spite of continued efforts by human rights NGOs and incremental improvements in the military commissions’ institutional arrangements and practice, the article shows how NGOs have become so much a part of the everyday operation of justice at ‘Gitmo’ that they legitimate the military commissions’ claim to be delivering fair and transparent justice.

Innovative principles of forensic support of law enforcement activity: issues of concept formation

Theoretical and methodological principles of development and formation of concept of innovative bases of forensic support of law enforcement activity are still insufficiently studied. The main tasks, prospects of implementation and further directions of research of this concept are defined. It is substantiated that innovative bases of forensic support of law enforcement activities should be considered, on the one hand, as creating conditions for effective application of new forensic knowledge and means (technical, tactical, methodological and forensic ones), on the other hand, as a specific type of innovative forensic activity, carried out in order to optimize, improve efficiency and quality of the process of investigation of criminal offenses, hearings and law enforcement in general.
 Possibilities and prospects for a significant expansion of boundaries of forensic support, outlining the innovative foundations of forensic support in various areas of law enforcement (in particular, in pre-trial investigation and hearings; in criminal and civil proceedings; administrative proceedings; in prosecutors, lawyers and notaries). It is noted that innovations in forensic support of law enforcement agencies should be identified both as a whole and by individual entities. With regard to the subjects whose activities need forensic support, certain levels and directions of such activities are identified. New scientific approaches to the solution of the researched discussion questions are substantiated and perspective directions of their research are defined.

Penggunaan Daluwarsa sebagai Dasar Gugatan Praperadilan di Indonesia: Antara Formil atau Materiil

This article aims to answer what is the scope of pretrial in statutory regulations and whether expiration can be used as an excuse to file a pretrial lawsuit. By using legal research methods through statutory, conceptual, and case-based approaches, this article concludes that the absence of a clear categorization regarding the formal and material aspects of the expiration case creates a dilemma. In its development, expiration has begun to be recognized as a formal reason which incidentally does not touch the subject matter of the case, an thus can be used as a pretrial excuse. This can be seen in the Pre-trial Decision Number: 143/Pid.Prap/2016/PN.Jkt.Sel. Ultimately, this article suggests the need for a clear regulation in the Perma regarding the categorization of formal and material aspects in pretrial hearings.

Kewenangan Pengadilan Negeri Memutus Perkara Praperadilan Mengenai Tidak Sahnya Penetapan Tersangka

Abstrak—Praperadilan memiliki tujuan untuk memberikan kepastian dan mengontrol penyalahgunaan wewenang oleh aparat penegak hukum. Upaya paksa seperti penangkapan, penahanan, penggeledahan, penyitaan, penuntutan, dan penetapan tersangka yang dilakukan tidak sesuai dengan ketentuan peraturan perundang-undangan sering kali digunakan oleh aparat penegak hukum untuk dapat memperoleh alat-alat bukti. Permasalahan yang diangkat adalah bagaimanakah pengaturan kewenangan pengadilan negeri memutus gugatan praperadilan? Bagaimanakah tata cara pemeriksaan sidang praperadilan? Penelitian ini adalah merupakan penelitian yang mengkaji aturan perundang-undangan sebagai upaya untuk menjawab permasalahan yang ada. Kewenangan pengadilan negeri memeriksa dan memutus suatu perkara praperadilan sesuai dengan yang diatur dalam pasal 77 KUHAP. Sedangkan tata cara pemeriksaan sidang praperadilan adapun prosedur yang harus dipenuhi yaitu Pengajuan permohonan praperadilan, Permohonan registrasi dalam perkara praperadilan, ketua Pengadilan Negeri Segera Menunjuk Hakim dan Panitera, pemeriksaan dilakukan dengan hakim tunggal. Lembaga penegak hukum, dalam hal ini kepolisian sebagai salah satu lembaga penegak keadilan harus dijalankan oleh anggotanya dengan bertanggungjawab dan dilaksanakan dengan sepenuh hati serta sesuai dengan peraturan perundang-undangan. Masyarakat sebagai yang diayomi harus memiliki sifat kritis dan paling tidak mengetahui prosedur pemeriksaan dikepolisian sehingga paham akan hak-haknya apabila berurusan dengan hukum.

And Justice for None: How COVID-19 is Crippling the Criminal Jury Right

The jury trial is the cornerstone of the criminal justice system in the United States. Amid the COVID-19 pandemic, however, access to fair and constitutional jury trials has largely come to a halt. Courts correctly decided to stop all jury trials and other in-person proceedings as the nation learned more about a new and deadly virus. Nevertheless, this decision denied access to an important constitutional right. In response, some courts employed video conference technology such as Zoom and WebEx to conduct arraignments, general court appearances, and some pretrial hearings. Six months into the pandemic, some criminal courts are beginning to consider and test two adaptations of jury trials to attempt to meet the needs of the system: (1) trials that are both in-person and compliant with social distancing policies and (2) trials conducted exclusively via video conference. This Essay argues that at best, these solutions are grossly unfair to all of those who participate in the criminal justice system. At worst, they likely violate the Sixth Amendment rights of the accused and create ethical concerns for prosecutors, defense attorneys, judges, and jurors. Yet, even with these legitimate concerns, courts should attempt to mitigate the risks and resume jury trials that are both in-person and compliant with social distancing policies to provide the criminal justice system with the best opportunity to ensure fair jury trials.

Multilevel Access to Justice in a World of Vanishing Trials a Conflict Resolution Perspective

English Abstract: This paper proposes a novel approach to access to justice by introducing a complex multilevel model that addresses the stages of conflicts in an age of vanishing trials. It provides a nuanced understanding of various modes of access to justice that correspond with different needs of disempowered populations before they enter the legal system and as they make their long journey within it. Parties trying to resolve their disputes through the civil justice system end up nowadays drifting through an incoherent, inconsistent and opaque process generally resulting in some form of reluctant compromise. ADR processes such as mediation do not necessarily help in providing a genuine alternative throughout the legal process, in which reliable data regarding expected case disposition and outcome (on the basis of similar cases) are not made available to the parties. No systematic screening mechanism directs parties to holistic conflict resolution alternatives. The involvement of judges in promoting consensual disposition of legal cases is rare and limited in scope. Accordingly, many people who initiate lawsuits as default find themselves within an adversarial and incoherent negotiation process in the shadow of the courts. This problem is particularly true for unrepresented litigants, a growing population that seeks access to justice in contemporary court systems. It is also true for conflicts that never reach the court or any legal processing due to the barriers of cost and legal information. To address the question of access to justice in an age of vanishing trials, in light of the failure of ADR to become the prevailing paradigm for resolving conflicts and the decline of litigation, this paper develops an interdisciplinary multilevel model that draws on legal theory together with methodology from law and society scholarship. This model addresses ways for improving access to justice during each stage of the civil conflict, focusing specifically on the stage of pretrial hearings, as it is currently the main public sphere in which parties seek justice. Our findings regarding the role of judges in pretrials, based on court observations and interviews, suggest that that judges develop their own methods and perspectives to promote access to justice in an age of vanishing trials and in this paper we outline some of them. We propose to expand the horizons of access to justice by adopting our modular multilevel model embedded within a coherent Dispute System Design approach and inspired by public health perspectives on law.

Streamlined Forensic Reporting

The Criminal Justice System Efficiency Program aims to deal ‘promptly and efficiently’ with ‘low-level, straightforward cases’ in order to dispense ‘swift and sure justice’. To meet these objectives, the Ministry of Justice places a duty on defence solicitors to reduce the ‘costs and delay associated with forensic evidence’. It justifies its requirements with reference to the Criminal Procedure Rules, highlighting the need for solicitors to actively manage criminal cases, to take part in pre-trial hearings and to engage with forensic evidence through a new form of discourse: Streamlined Forensic Reporting (SFR). The SFR scheme operates ‘by taking a more proportionate approach to forensic evidence through the early preparation of a short report that details the key forensic evidence the prosecution intends to rely upon’. The aim is to avoid the costs associated with thorough forensic analysis by encouraging an early guilty plea. In circumstances where such a plea cannot be elicited, the scheme aims to secure agreement on forensic issues at the earliest stage. It places an obligation on the defence to identify these problematic areas. Drawing on comparative ethnographic research within the forensic science and criminal justice sectors, this article questions the safety or utility of these attenuated and instrumental forms of ‘efficient’ forensic discourse. It demonstrates that streamlined reports are often compiled by non-expert administrators, lack contextual evaluation or technical explanation and are frequently inaccurate or misleading. It asks whether the veiled and incremental approach to the issue of disclosure forms an adequate basis for proper scrutiny or legal challenge, and questions whether this scheme, which exhibits a marked ambivalence towards forensic expertise, may ultimately subvert the duty placed on the courts to place forensic evidence in its proper context.

Разрешение хозяйственных споров в Италии: краткий обзор

The article contains the outline of the commercial litigation implemented in Italy taking into account the relevant amendments and changes adopted with the aim of rendering a “faster” justice. The author describes the Italian judicial system which involves courts of first instance (Giudice di Pace/Tribunale), the Court of Appeal (Corte d’Appello), and the Supreme Court or the Court of Cassation (Corte di Cassazione), indicating the statutorily prescribed criteria for referring a specific category of cases to the jurisdiction of each of those. The author dwells on the stages of civil proceedings, which include: pre-trial hearings, civil proceedings and judgment, appeal and cassation stages, as well as enforcement of judgments and orders. The special attention is paid for the procedure of the recognition and enforcement of foreign judgment and arbitration awards used in Italy. The author notes the tendency for a gradual replacement of the most of the old bilateral treaties in Europe by the European Regulations, at least in civil and commercial matters.

Blurred Lines: Are Non-Attorneys Who Represent Parties in Arbitrations Involving Statutory Claims Practicing Law?

Over the last thirty years, businesses have increased their use of arbitration, while, at the same time, expanding the types of disputes that are subject to arbitration. As statutory claims are routinely moved to arbitral forums, concerns may arise about the potential impact on party representation. Historically, parties in arbitration did not need and were not required to utilize legal representation in arbitration because arbitrators used customs and norms to evaluate and resolve parties' claims. Today, arbitration differs considerably from this model. In addition to evaluating statutory claims, modern arbitrators often assist the parties in conducting expansive discovery, rule on motions and preside over pretrial hearings. If, as a practical matter, the majority of consumer and employee claims against businesses will be heard in arbitration, representation of parties in arbitration is likely to require considerably greater legal knowledge and expertise than it has in the past. Disputants attempting to arbitrate statutory claims will need legal counsel to properly present their cases in the arbitration forum.The need for more frequent legal representation in arbitration likely extends to all forms of arbitration, including consumer, labor, securities, and employment arbitration. While critics focus on whether arbitrators are capable of adjudicating such claims, scant attention has been paid to whether non-lawyer representatives, who commonly appear in these kinds of arbitral proceedings, can properly traverse the increasingly complex landscape of legal claims at issue in arbitration. As statutory claims become increasingly prevalent in arbitration, concern and focus on who is representing parties in arbitration must change. The current practice of permitting non-lawyer representation in arbitrations involving statutory claims is sanctioning the unauthorized practice of law. This burgeoning problem, perhaps unlike those that have come before it, may provide the impetus needed for Congress to consider realistic reform of the Federal Arbitration Act to ensure that arbitration agreements do not become a mechanism by which vulnerable populations are further harmed. This Article explores the problem, evaluating the consequences of non-legal representation for parties in arbitration and considers what steps legislatures, courts, lawyers and bar associations might take to address this growing concern.

Participation of Citizens in Pre-Trial Hearings. Review of an Experiment in the Netherlands

In 2011 the Dutch Central Appeals Tribunal, the highest Dutch court of appeal in legal areas pertaining to social security and the civil service, started consulting the parties of a dispute at an early stage in the procedure, in order to include them in the decisions about the procedural steps to be taken in the settlement of the appeal. One of the underlying rationales is that the involvement of the parties will lead to more acceptance of and contentment with the result. Since the acceptance of court decisions is considered as a criterion for the quality of the procedure, this approach should result in a better quality of the case treatment. In this article the initial results of this new case treatment are presented in the light of expectations from the literature on citizen participation in policy processes of public agencies. The data indicate that the New Case Management Procedure at the Central Appeals Tribunal can lead to an improvement of the quality of the case treatment, by inviting citizens to discuss with the judge about the case treatment. However, the procedure itself does not guarantee this increased quality.

The evolution of the modern criminal trial: a plethora of change

This paper explores changes over recent decades to the law governing a Queensland criminal trial, from committal through to the Judge’s summing up. Reforms have included: substantial removal of the accused’s entitlement to a committal hearing; the restriction of the exposure of child witnesses in relation to sexual offences; the prosecution’s enhanced duty of disclosure; the 1997 introduction of a facility for pre-trial directions hearings; the increasing scope for judges to instruct the jury, from trial commencement, since the 1980s; 1995 reforms in relation to jury empanelment, removing parties’ unlimited peremptory rights of challenge without cause; and changes to trial evidence presentation, with growing use of audiovisual technologies and restrictions on the cross-examination of rape complainants. The paper raises further possible reforms, such as strengthening the disclosure requirements of the defence and empowering judges to assist jurors’ understanding of what constitutes ‘beyond reasonable doubt’, with Victorian legislation as a model.