Presumption Of Innocence Research Articles

'De Minimis' and the Structure of the Criminal Trial

The Model Penal Code’s “De Minimis” provisions (§ 2.12) cover different kinds of case in which, for reasons of equity, a prosecution should be dismissed. An exploration of these different cases illuminates some important general issues about the structure of the criminal process, and about the processes of criminalization. These include the significance of the difference between dismissing a case and acquitting the defendant, and of the distinction between offences and defenses; whether criminal offences should always be so defined that they specify at least a pro tanto wrong, or may sometimes legitimately specify only a prima facie wrong — and whether this is consistent with the presumption of innocence; what kinds of conduct we can properly be expected to answer for in a criminal court; and the proper division of labor, and of responsibilities, between legislatures, prosecutors and courts in determining what kinds of conduct are to be defined and treated as criminal wrongs.

The Issue of Complicity with a Non-Identified Person in Lithuanian Case Law

The article aims to reveal the issues of complicity with an unidentified person and to analyze the peculiarities of the application of this institute in the practise of the courts of all levels after the plenary session of the Supreme Court of Lithuania on January 6, 2009 when the position was formed. The issues include assumptions based on court decisions, a possible breach of the presumption of innocence against an unidentified person, and the principle of the inevitability of criminal liability is also discussed. The analysis highlighted the incompatibility of some court decisions with the provisions of criminal law, the importance of the wording used by courts and pre-trial officers, prosecutors for the presumption of innocence, and the need to maintain a balance when convicting an identified accused who was associated with an unidentified person.

Kirmse , Stefan B. The Lawful Empire: Legal Change and Cultural Diversity in Late Tsarist Russia (review)

REVIEWS 777 Despite this, Ammon’s account of the historical facts and events of Georgian history is generally accurate, and is supported by rich and diverse bibliographic material. The multiple sources in four different languages Ammon has drawn upon in his research include more than 200 books and magazine articles, as well as dozens of dictionaries, encyclopaedias, websites and other reference works in a wide range of areas directly or indirectly connected with the subject of his book. One of the main advantages of Philipp Ammon’s book is that it not only describes the important historical events but also examines the significant processes that have fuelled the political, cultural and military clashes between Russia and Georgia. This makes it an asset for a wide-ranging readership, from students of Georgian history to diplomats and politicians who seek a balanced perspective and objective information on the background to the long-lasting conflict in one of the most sensitive regions of the world. The significance of Ammon’s book is further magnified by the fact that the history of Georgia still remains an under-studied and under-researched field, as there is still not enough scholarly literature on this subject available in the West in general and even less so in German-speaking countries. University of Calgary Andrew Andersen Kirmse, Stefan B. The Lawful Empire: Legal Change and Cultural Diversity in Late Tsarist Russia. Cambridge University Press, Cambridge and New York, 2019. xiii + 341 pp. Maps. Illustrations. Notes. Bibliography. Index.£75.00. Drawing on exhaustive research, Stefan B. Kirmse develops case studies on late-tsarist judicial reform’s implementation in Kazan´ and the Crimea. His focus is ‘the ways in which ethnic and religious minorities interacted with the courts and related institutions’ and how they related to their Russian neighbours (p. 31). Chapter one provides context. Jurists in the new courts were sticklers for procedure. Individual legal responsibility and the presumption of innocence were paramount concepts. Legal authorities encouraged jurors to judge based on conscience. Thus, even confessed criminals could be seen as ‘not guilty’. This approach won popular support but also led to high acquittal rates — higher in urban than rural areas. Social, economic and cultural background on the Crimea and Kazan´ is given in chapter two. Infrastructure and cultural institutions were much less developed in the Crimea (though things started to change after the imperial family bought a palace outside Yalta in 1860). In chapter three, Kirmse argues that the judicial reform created a tension between zealous, procedurally meticulous jurists and administrative officials SEER, 98, 4, OCTOBER 2020 778 who persisted in the belief that their word should be law. This attitude was well captured in the bewildered ejaculation of the governor of Kazan´ province, Nikolai Skariatin: ‘I should work for Mr. Prosecutor? What sort of head of the province can I be after this?’ (p. 128). Yet even vehement administrative resistance could not undermine the reform’s success, though fiscal constraints were another matter. Despite claims of earlier scholars, only a minority of jurors were peasants and peasant jurors tended toward greater harshness than did urban dwellers. The following chapter focuses on the pageantry of the court. Unlike in the pre-reform era, the government spared little expense on court houses, so as to inspire reverence. Portraits of the emperor and religious symbols were held crucial. Religious authorities — mostly Russian Orthodox, even in majority Muslim areas — heightened the sanctity of the proceedings. Nevertheless, many Muslims participated as informal legal practitioners, jurors, defendants and plaintiffs. Moreover, ordinary people gained status, as even nobles had to rise when jurors entered the courtroom. The remainder of the book deals with interactions of Muslims in the Crimea and Kazan´ with the new court system. Although they ‘did not necessarily hold the imperial state and its local representatives in high esteem’ (p. 210), they made extensive use of the court system, primarily when informal and local means of adjudication seemed unlikely to yield desired results. As the state grew more concerned with registering and controlling persons and property, people’s interactions with the state grew more frequent. Kirmse concludes that negotiation and persuasion were the main approaches the authorities took. ‘Violence did occur...

Presumption of innocence – Awareness And Constitutional Provisions

Presumption of innocence that until now has been recognized as universal human rights norm, has been adopted and guaranteed in many national constitutions. Despite some limitations in comprehension, first 10 Amendments of the US Constitution is the first legal instrument that ever adopted this principal in the world. The history of constitution making in Vietnam also shows a complicated development in awareness on the principal, after 5 times of amendment, presumption of innocence was finally recognized in the Constitution.
 Keywords: Presumption of innocence, awareness, constitutional provisions.

범죄보도와 무죄추정원칙

범죄보도와 무죄추정원칙

The Right to Silence in the EU Directive 2016/343 on the Strengthening of Certain Aspects of the Presumption of Innocence from the Perspective of Polish Criminal Proceedings

The right to remain silent is one of the most fundamental principles of domestic and international criminal law. It’s is also closely related to the presumption of innocence. As the responsibility is placed on the prosecution to prove the guilt of a person it follows that the accused should not be forced to assist the prosecution by being forced to speak. The right to remain silent expresses the individual’s right not to be compelled to testify against himself or to confess guilt. Its core component is the freedom to choose whether or not to give answers to individual questions or to provide explanations. To use against the suspected silence under police questioning and his refusal to testify during trial amounted to subverting the presumption of innocence and the onus of proof resulting from that presumption: it is for the prosecution to prove the accused’s guilt without any assistance from the latter being required. This article has to objectives. Firstly, to interpret the right to remain silent in the light to of the Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceeding. Secondly, the Directive 2016/343 can be used as reference to evaluate a degree to which Polish legal solutions conform to the Directive in question, giving rise to several postulates in that matter. The analysis will also include shortages and problems resulting from imperfect Polish criminal process in that field.

COVID-19 en portada: radiografía ética de la cobertura fotográfica de la pandemia en España

Introducción: La cobertura informativa de las emergencias sanitarias se enfrenta a la tentación de sucumbir al alarmismo y el morbo. Objetivos: El propósito de la investigación fue valorar el grado de cumplimiento de los principios éticos del periodismo en la información sobre la COVID-19 en las portadas de la prensa española. Metodología: Análisis de contenido de las fotografías de portadas (n=344), publicadas entre el 1 de enero y el 15 de abril de 2020 (n=608) en periódicos de información general (n=6) cuya difusión abarca el 43,9% del número total de lectores diarios. Resultados: El 3,5% de imágenes cuestionó o vulneró preceptos deontológicos, en especial con relación al derecho a la intimidad y a la propia imagen. La cobertura resultó apropiada dado que no fueron significativas las violaciones en torno al dolor y sufrimiento, el alarmismo, la presunción de inocencia, la seguridad o la presión política. Conclusiones: El despliegue gráfico resultó contenido, respetuoso y se optó por amplias instantáneas metafóricas. Los mecanismos de protección frente a la pandemia —equipos de protección individual (EPI), mascarillas o gafas— dificultaban con frecuencia el reconocimiento de los protagonistas. Además, se recurrió con profusión al pixelado del rostro para impedir la identificación personal.

The Purposes of Pre-Trial Detention and the Quest for Alternatives

In this article, we take issue with the echr standards on pre-trial detention. These standards are considered panacea for the reported overuse of pre-trial detention in Europe. They focus on the legitimate purposes of detention as safeguards to ensure the principle of ultima ratio. Yet these purposes are heterogeneous as pre-trial detention protects the pending proceedings but also averts risks pertinent to criminal policy. In our analysis we discuss the shortcomings of the echr standards to fully protect from abusive detention. Moreover, we reveal internal inconsistencies with the presumption of innocence. One major example is the use of pre-trial detention to prevent re-offending, which blurs the boundaries between custody on remand and preventive detention. Additionally, we delve deeper into the obligation to use milder measures as part of the echr standards, which remains superficial and vague. Conclusively, we encourage the reflection and re-examination of the echr standards for pre-trial detention, instead of focusing merely on their better enforcement.

Crítica científica de "Redefinindo o trânsito em julgado a partir da soberania dos veredictos: a coisa julgada parcial no tribunal do júri”

Trata-se de crítica científica ao artigo “Redefinindo o trânsito em julgado a partir da soberania dos veredictos”, em que se defende a execução imediata da pena aos condenados pelo Tribunal do Júri. A partir da delimitação do conceito de democracia no direito processual penal, a crítica aborda os problemas da inversão ideológica do discurso em torno das garantias processuais que, na hipótese do artigo analisado, conduziu ao uso argumentativo da soberania dos veredictos para fins de ampliação do poder penal. Além disso, a crítica trabalha o conceito de culpabilidade jurídica da presunção de inocência, categoria chave para compreensão do estatuto normativo dos recursos e da impossibilidade de execução imediata ou antecipada da pena, antes do trânsito em julgado da sentença penal condenatória.

Учет мнения потерпевшего при назначении наказания как реализация принципа презумпции невиновности

Учет мнения потерпевшего при назначении наказания как реализация принципа презумпции невиновности

Incorporating implicit knowledge into the Bayesian model of prior conviction evidence: some reality checks for the theory of comparative propensity

Abstract The theory of comparative propensity, championed by the late Mike Redmayne, has been an influential theory underpinning normative models of the probative value of evidence of previous convictions in criminal trials. It purports to generalize an approximate probative value by means of a Bayesian model in which the likelihood of an innocent person having a criminal record is calculated by reference to general population statistics, and the hard evidence underpinning the prior probability is treated as unknown. The theory has been criticized on the ground that it fails to take account of bias against past offenders in the selection of cases for prosecution. This article analyses the model and these criticisms and concludes that both the model and the criticisms are flawed because they fail to address the evidence on which the prior odds are based. We find that, not only are such mathematical models unsound, but they can only be ‘repaired’ by making assumptions about the typical case which run counter to the legal presumption of innocence. Analysing the flaws in these models, however, does provide some insight into issues affecting the value of prior convictions evidence.

Rethinking Federal Bail Advocacy to Change the Culture of Detention

The federal bail system is in crisis, with three out of every four people locked in a cage despite the presumption of innocence. Disheartening as the numbers are, we defense attorneys have the power to free our clients through zealous advocacy at bail hearings. Bond advocacy is all the more important now. As the COVID-19 pandemic ravages federal jails, pretrial release has become a matter of life or death. All of us who represent clients in federal court have a responsibility to redouble our efforts to defend our clients’ fundamental right to liberty. To change the culture of detention, we need to radically rethink our advocacy and ensure that all of the players follow the Bail Reform Act’s defense-friendly rules. This article provides statistics to illustrate the contours and costs of the federal pretrial detention crisis and action steps for bringing federal pretrial detention practices back in line with the law. We can change the culture of detention by using the action steps, tethering our arguments to the statute and the data, and filing more bond motions.

SUPREMO TRIBUNAL FEDERAL E A PRESUNÇÃO DE INOCÊNCIA: ATIVISMO, CONTEXTO E AÇÃO ESTRATÉGICA

Este artigo explora o julgamento do Supremo Tribunal Federal (STF) que reverteu seu posicionamento anterior sobre a presunção de inocência, passando a admitir a execução da pena a partir da decisão condenatória em segunda instância. Como explicar essa mudança de interpretação constitucional? Procedeu-se à análise qualitativa dos votos e julgamentos, orientada pelo exame i) do modo pelo qual se operou o poder de agenda da Corte; ii) da coerência (ou sua falta) dos argumentos expostos nos votos dos ministros; e iii) de possíveis efeitos da decisão sobre os rumos da operação Lava Jato. A análise permite concluir que a ratio decidendi da Corte passou de questões técnico-jurídicas para a busca de efetividade da jurisdição penal. Não sem agregar elementos contextuais na explicação, o artigo sugere que a ação do STF visou remodelar o arranjo institucional da justiça criminal, sob o impacto da operação Lava Jato, reforçando especialmente o estímulo à celebração de colaborações premiadas, diante do risco mais iminente de encarceramento decorrente da nova jurisprudência. A ação estratégica da Corte leva a um debate que vai além da judicialização da política e envolve o ativismo judicial na remodelagem de regras institucionais, no campo do combate à criminalidade de colarinho branco e da classe política.

Iteratively Questioning and Answering for Interpretable Legal Judgment Prediction

Legal Judgment Prediction (LJP) aims to predict judgment results according to the facts of cases. In recent years, LJP has drawn increasing attention rapidly from both academia and the legal industry, as it can provide references for legal practitioners and is expected to promote judicial justice. However, the research to date usually suffers from the lack of interpretability, which may lead to ethical issues like inconsistent judgments or gender bias. In this paper, we present QAjudge, a model based on reinforcement learning to visualize the prediction process and give interpretable judgments. QAjudge follows two essential principles in legal systems across the world: Presumption of Innocence and Elemental Trial. During inference, a Question Net will select questions from the given set and an Answer Net will answer the question according to the fact description. Finally, a Predict Net will produce judgment results based on the answers. Reward functions are designed to minimize the number of questions asked. We conduct extensive experiments on several real-world datasets. Experimental results show that QAjudge can provide interpretable judgments while maintaining comparable performance with other state-of-the-art LJP models. The codes can be found from https://github.com/thunlp/QAjudge.

Presumptuous or pluralistic presumptions of innocence? Methodological diagnosis towards conceptual reinvigoration

This article is a contribution to interdisciplinary scholarship addressing the presumption of innocence, especially interdisciplinary conversations between philosophers and jurists. Terminological confusion and methodological traps and errors notoriously beset academic literature addressing the presumption of innocence and related concepts, such as evidentiary presumptions, and the burden and standard of proof in criminal trials. This article is diagnostic, in the sense that its primary objective is to highlight the assumptions—in particular, the disciplinary assumptions—implicit in influential contributions to debates on the presumption of innocence. It advocates a methodologically pluralistic approach, according to which definitions of the presumption of innocence are necessarily sensitive to purpose and method. These relationships and their implications are not always appreciated, and are seldom explicitly elucidated. Notably, philosophers (and some legal scholars) routinely treat the presumption of innocence as (in some sense) epistemic, evidentiary or otherwise featuring directly in practical reasoning. This article identifies jurisprudential and practical reasons why legal scholars and practitioners (and possibly others) concerned with criminal procedure and evidence should reject evidentiary interpretations of the presumption of innocence. By encouraging finer-grained engagement with the history and institutional details of common law procedural traditions, the article aims to show why legal scholars might think that philosophical approaches to the presumption of innocence are already methodologically-loaded and, for our purposes, address the wrong questions with deficient concepts.

Portaria N° 666, do Ministério da Justiça e Segurança Pública: uma análise à luz dos Direitos Humanos

O presente estudo vislumbra analisar a mitigação causada aos direitos inerentes ao imigrante em razão da elaboração da Portaria MJ n° 666/2019, tendo como parâmetro as disposições normativas pautadas na defesa dos direitos humanos. Nessa perspectiva, este artigo, através da pesquisa descritiva, método dedutivo, coleta de dados documental e bibliográfica, procedeu-se de modo a realizar uma análise jurídica da Portaria MJ n° 666/2019 à luz da Declaração Universal dos Direitos Humanos, bem como da Constituição Federal de 1988 e da Lei N° 13.445/2017. Não obstante, elucidou também as principais incongruências no que tange à violação dos princípios da legalidade, do devido processo legal e seus corolários, com a criação de termos indeterminados e genéricos de “pessoa perigosa” e “ato contrário aos princípios e objetivos dispostos na Constituição Federal”, como também do instituto da deportação sumária. Por fim, diante da problemática exposta, buscou-se, embasado não só nos princípios supramencionados, como também nos da presunção de inocência, ampla defesa e contraditório, acesso à justiça e da duração razoável do processo, elucidar a necessidade do Estado, pautado na defesa dos direitos humanos e no respeito ao bem-estar do imigrante, buscar um ordenamento de fronteiras e controle migratório adequado, tendo em vista os incômodos substanciais causados ao Estado Democrático de Direito pela não observância dessas garantias.

Removal of the Governor by the President of the Russian Federation due to the Loss of Trust for Corruption and Improper Performance of Duties : Problems of Theory and Implementation

The paper has examined the federal legislation, as well as law enforcement related to such a measure of constitutional and legal responsibility of the head of the constituent entity of the Russian Federation as removal from the position of the governor by the President of the Russian Federation due to loss of trust. The paper analyzes the evolution of legal consolidation and application of this constitutional and legal sanction for the period from 2005, the bases and mechanism of its implementation, as well as a number of problems related to the practice of its application in Russia. The author has identified gaps and conflicts (contradiction of the grounds of this constitutional sanction to the main and basic legal principles of direct democracy and presumption of innocence), has analyzed “uncertainty” (revealed the legal fictiousness of the grounds for the loss of trust) and “amorphousness” of its application (inconsistency of the procedure of prosecution with the principles of federalism, norms of criminal procedure legislation and internal conflict of norms of law, i.e. “corruptional” grounds of the loss of trust). The author suggests a different model of application of such a sanction as removal from the position of the head of the constituent entity. Thus, he suggests that deprivation of the President of the right to remove the governor of the constituent entity due to the loss of trust for corruption contradicts the foundations of the federal system and the legal nature of the institute of higher official of a constituent entity. It is proposed to assign the right to apply this sanction to the highest representative (legislative) body of the constituent entity of the Federation, permitting the President of Russia to remove the senior officer for promulgation of legal acts that do not comply with the Constitution and federal laws (confirmed by a court decision) and failure to comply with the decisions of the Constitutional Court of the Russian Federation.

A review of likelihood ratios in forensic science based on a critique of Stiffelman “No longer the Gold standard: Probabilistic genotyping is changing the nature of DNA evidence in criminal trials”

Stiffelman [1] gives a broad critique of the application of likelihood ratios (LRs) in forensic science, in particular their use in probabilistic genotyping (PG) software. These are discussed in this review.LRs do not infringe on the ultimate issue. The Bayesian paradigm clearly separates the role of the scientist from that of the decision makers and distances the scientist from comment on the ultimate and subsidiary issues.LRs do not affect the reasonable doubt standard. Fact finders must still make decisions based on all the evidence and they must do this considering all evidence, not just that given probabilistically.LRs do not infringe on the presumption of innocence. The presumption of innocence does not equate with a prior probability of zero but simply that the person of interest (POI) is no more likely than anyone else to be the donor.Propositions need to be exhaustive within the context of the case. That is, propositions deemed relevant by either defense or prosecution which are not fanciful must not be omitted from consideration.

Principle of Equality in Decisions of the Constitutional Court of Ukraine

The article analyzes the implementation of the principle of equality in the constitutional legal proceedings of Ukraine nowadays. It has been established that this principle is reflected in the decisions of the Constitutional Court of Ukraine: 1) equality of citizens before the law, which does not exclude differentiation of legal regulation, is guaranteed by the prohibition of «negative discrimination» and is not absolute in scope; 2) equality of everyone (i.e. citizens of Ukraine, foreigners, stateless persons) before the court, including equality of all participants of the judicial process; 3) equality of citizens in duties, which means their equal subordination to the laws of Ukraine; 4) equality (equal significance) of rights and freedoms, the manifestation of which is the equality of material and procedural rights, the equality of positive and negative rights. On the basis of the analysis of the decisions of the Constitutional Court of Ukraine, a number of «ontological factors» that determine the principle of equality and are considered methodologically important for legal characterization, have been identified. The first of the proposed factors is the sphere of social life, i.e. the part of the public space that has become «discriminatorily vulnerable», and in light of this the legal positions of the Constitutional Court of Ukraine in respect of the principle of equality in the sphere of realization of electoral rights, labor rights, property rights etc. have been systematized. The second factor can be considered the peculiarities (nature) of legal rights that are «in the area of discriminatory risk», which affects the functions of certain legal means of ensuring equality, in particular, the functions of the so-called legislative qualifications. A third reviewed factor is the relationship between human and civil rights. The dependence of the content and scope of the principle of equality on the joint realization of the right to education and the right to free development of one’s personality; the right to housing and freedom of movement and free choice of place of residence. The fourth factor of the substantive content of the principle of equality is the criteria of differentiation of legal regulation, namely, «appropriateness» (economic, political, social), «justifiability in a democratic society» and «relevance». The fifth factor is associated with the specificity of guarantees of ensuring the principle under consideration, among which — «accessibility», «free-of-charge» basis of education and health care. As the sixth factor, the correlation of the principle of equality with other principles of law, in particular, with the principles of justice, freedom, presumption of innocence and inadmissibility to hold a person responsible for refusing to testify against him/her, has been substantiated. Keywords: rule of law, legal principles, human rights and freedoms, The Constitutional Court of Ukraine, principle of equality.

A CRIMINOLOGIA MIDIÁTICA COMO UM ARAUTO DA GUERRA ÀS DROGAS

O presente artigo investiga a criminologia produzida pelos telejornais brasileiros, a chamada Criminologia Midiática, com enfoque nas discussões em torno do tráfico de drogas, delineando o conteúdo e a forma do discurso apresentado pelo programa Brasil Urgente, transmitido pela Rede Bandeirantes de Televisão. As edições do programa foram escolhidas de maneira aleatória entre os meses de setembro de 2017 e janeiro e março de 2018, para abarcar o máximo de variedade. Para o recorte específico foram escolhidas as matérias referentes a supostos delitos de tráfico de drogas, artigo 33 da Lei nº 11.343 de 2006. Dessa forma, foi possível perceber a formação de um contexto de “guerra”, a partir construção da figura de inimigo acerca do traficante de drogas, signo este construído a partir dos ditos e não ditos no programa Brasil Urgente, de maneira a violar garantias fundamentais, como a presunção de inocência, espetacularizando o processo penal.