TIPPINS AND WITTMANN ASKED THE WRONG QUESTION:

Tippins and Wittmann (2005) provide an important analysis of the limitations of child custody evaluations, but they are wrong to propose that court-appointed evaluators should be precluded from making recommendations about best interests decisions. While some of the evidence of evaluators may fail to meet the high standard of reliability expected for "expert evidence," the role of court-appointed evaluators in child-related cases is not the same as the role of party-retained experts in other types of litigation, and the legal basis for their involvement in the family law dispute resolution process is very different. The family courts should not apply the "expert evidence" standard when deciding how to use the evidence of a court-appointed evaluator, but rather should use a more flexible standard that takes account of the family law context. If the Tippins and Wittmann proposal is adopted, it will have negative implications for the resolution of family law cases, including making settlements less common, thereby deleteriously affecting children.     

英国专家证据可采性问题研究

现代科学技术的突飞猛进,使社会分工越来越细,专业化要求越来越高,在刑事诉讼中专家证据的作用也越来越明显.英美法系国家的专家证人制度起源于英国,经过几个世纪无数判例的积累和发展,有关专家证据的可采性问题已形成一整套相当具体、完备的规则,如专家资格规则、有用性规则,专业技术领域规则、普通知识规则以及终局性问题规则等.在现代刑事诉讼中,专家证据的重要性越来越明现,其在改革中的发展趋势,可以为我国亟待完善的司法鉴定制度提供一些有价值的借鉴作用.     

Is the Expert Admissibility Game Fixed?: Judicial Gatekeeping of Fire and Arson Evidence

Anecdotal evidence claims that in criminal cases, trial judges admit the prosecution's expert witnesses more readily than the defendants', and in civil cases the reverse is true; judges exclude plaintiffs' experts more often than civil defendants' experts. This occurs despite the fact that, with few exceptions, the same rules of admissibility apply to all parties and, in most jurisdictions, across criminal and civil cases. This article empirically tests this differential by reviewing judicial decisions to admit or exclude evidence holding the type of expert testimony constant, fire and arson evidence, across criminal and civil cases in the United States. The study examines the admissibility of fire and arson investigation experts in criminal and civil cases across all legal parties in fifty‐seven federal and state opinions in the United States. The findings offer empirical support of a bias in criminal cases and in civil cases which present expert witnesses at trial, and is less pronounced, but still evident, on appeal. Specifically, the role of the party that offers the evidence has a profound effect on whether arson evidence is admitted, even when factors around the judge's political affiliation, attorney experience, expert qualifications, and rules of evidence are taken into account.     

Children's involvement in contested custody cases: Practices and experiences of legal and mental health professionals

The experiences and practices of family law attorneys, trial judges, and mental health professionals regarding the involvement of children in contested custody cases were investigated through a systematic and detailed survey. Results revealed that the level and manner of children's involvement was linearly related to a child's age as reported by all groups. Judicial jurisdiction was also related to whether children's wishes were sought and in what manner; specifically, Michigan judges were significantly more likely to interview children using flexible due process than Virginia judges. In addition, interview procedures used by mental health professionals and judges, such as length, making of records, and the presence of other individuals, differed significantly. The amount and complexity of children's involvement suggest that further research is needed to explore these complexities and their effects on children.     

Canada’s First Integrated Domestic Violence Court: Examining Family and Criminal Court Outcomes at the Toronto I.D.V.C.

This is the first quantitative study to examine Canada’s only Integrated Domestic Violence Court. The methodology used a quasi-experimental design with parallel groups with baseline equivalence. Results demonstrate that when support services are provided to victims of domestic violence during family separation, children benefit from greater involvement with both parents. There was more compliance with child support in the integrated court than the comparison group and compliance in custody and access were two variables that predicted the type of final custody orders. There were fewer judges involved in the IDVC court than comparison group; however, there were no differences in the number of court appearances between groups. The IDVC demonstrates a promising intervention to address domestic violence that involves both criminal and family law courts. Future research is needed to explore the views of children, victims and offenders about their experiences with the IDVC.     

THE BEST SEAT IN THE HOUSE: THE COURT ASSIGNMENT AND JUDICIAL SATISFACTION

A survey of 355 judges examined the differences in judicial satisfaction between those assigned to problem-solving courts—such as drug treatment and unified family—and judges in other more traditional assignments such as family law and criminal courts. The unified family court systems, like drug treatment courts, have generally adopted the principles of therapeutic jurisprudence. Significant differences were found on each of the three survey scales: (1) helpfulness, (2) attitude toward litigants, and (3) positive effects of assignment. The judges who were in the problem-solving courts (drug treatment and unified family court) scored higher on all three scales than those who were not (traditional family and criminal court). The group of problem-solving court judges consistently scored higher than the other group of judges, with the drug treatment court judges scoring the highest. The group of traditional criminal court and family court judges scored less positively, with the criminal court judges having the lowest scores. The problem-solving court judges were more likely to report believing that the role of the court should include helping litigants address the problems that brought them there and were more likely to observe positive changes in the litigants. They were also more likely to believe that litigants are motivated to change and are able to do so. They felt more respected by the litigants and were more likely to think that the litigants were grateful for help they received. The problem-solving court judges were also more likely to report being happy in their assignments and to believe that these assignments have a positive emotional effect on them.     

犯罪故意认定的证据法学解读

实体法上广为讨论的犯罪故意认定问题,最终要在司法证明过程中进行.在罪过难辨的疑案中,裁判者应坚持无罪推定原则,作为区分故意与过失的最后一道屏障.对于故意这种“无法定义只能描述”的复杂心理现象,以实体法上的抽象概念去界定不如以证据法上直观的类型化判断来把握.故意“概念的类型化”,是以认识程度和意志程度之强度互补的弹性组合...     

非法证据为何难以有效排除——兼及中国非法证据排除的未来

既往的研究太多从非法证据排除规则粗疏这一制度层面解释非法证据难以有效排除的原因,但这并不充分。从结果层面而言,非法证据没有被排除在很大程度上意味着被采纳。对非法证据难以有效排除的研究必须深入解析法官采纳非法证据的内在原因。法官证据运用的形式主义化、刑法的主观主义倾向以及司法实务部门对证明力规则的过度追求等因素,是诱发法官采纳非法证据的重要原因,并由此造成了非法证据难以有效排除。在非法证据排除的问题上,我们不能仅限于非法证据排除规则的完善,还需将证据信息的供给、刑事实体法的调整、证明方法的转换以及证据能力规则的建设等均纳入视野。     

AUTISM IN CHILDREN AND PARENTS:

Family court professionals are increasingly involved with divorces between parents of autistic children where the parents themselves may also have either diagnosed or undiagnosed autistic spectrum disorder (ASD). Yet, there have been no published guidelines for the court professionals who are managing these cases (National Autistic Society, 1991; Singer, 2003 ). The goal of this article is to familiarize divorce professionals with the growing phenomenon of autism and to delineate specific recommendations for the management of these cases in the family law context.     

Narratives of Feeling and Majesty: Mediated Emotions in the Eighteenth-Century Criminal Courtroom

This article considers the role of emotion in the eighteenth-century courtroom. It discusses the work of judges and magistrates in constituting and upholding a ‘grand narrative’, which legitimized English criminal law. This grand narrative was inherently emotional, activating patriotism and love of justice, but also fear of punishment through the performance of ‘emotional labour’ from the judgment seat. However, while performing the majesty of the law, judges attempted to balance a number of complicating factors, such as the rise of sensibility, the role of the press, and their own emotions about criminal justice. The growing presence of professional counsel from the end of the century also complicated the emotional tenor of criminal trials. Moreover, the majesty of the law was undermined and even corrupted by the representation of trials and executions in the popular press. Far from viewing displays of emotion as inappropriate, it appears that many contemporaries held emotion to be an integral part of trial process, and of the majesty of the law.     

Contact disputes and allegations of gender violence in Spain

ABSTRACT

In Spain, progress is being made to restrict contact between aggressors and their children in cases of gender violence. However, visits and communication, even shared custody, are still granted by judges despite shared custody being prohibited by law in such cases since 2005. Under recent legal reforms, children are now considered primary victims of gender-based violence. However, even today, Spanish judges frequently allow contact and even grant shared custody to the aggressor. This is despite the fact that in cases of gender violence, there are usually measures in force that include restraining orders and prohibitions against communicating with the mother. In these cases, communication between the father and his children is effected through grandparents or at the so-called ‘family meeting points’ – neutral spaces supervised by professionals. Insufficient budgets and shortcomings in the management of these meeting points have led to many problems, including women being murdered by their partners after leaving one of these meeting places.     

Decision Making and Justice

This article considers how judges can improve decision making, especially in cases that involve children in the family court. It looks specifically at improvements that are being implemented in England and Wales following a major review of family justice in 2011. All judges need to be well‐trained and well‐informed if they are to make the best‐quality decisions they can. Three principles underpin the approach to improving judicial decision making, which must be systematic, evidence based, and tested, and the evidence that informs judicial decisions must be robust. Collaboration among professionals in the development of good practice, its dissemination, and its application should be the acknowledged goal, and it should involve the views and perceptions of the young people and families involved.     

刑事证明标准中主客观要素的关系

我国刑事证据法将"排除合理怀疑"引入证明标准之中,是从过去注重外在的、客观化的证明要求走向重视裁判者内心确信程度的重要立法尝试。这种立法尝试既不是对"证据确实、充分"标准的简单解释,也不是要降低我国刑事诉讼中的证明标准,而是从裁判者主观认识的角度重新确立裁判者认定犯罪事实的证明标准。在一定程度上,我国刑事证据法尽管仍然保留了"事实清楚,证据确实、充分"的形式化证明要求,但其内核已经被"排除合理怀疑"标准所取代。     

英美两国刑事法官的证据调查权评析

人们长期认为,英美法系的法官在法庭上一般是消极、被动地听审,却不能积极调查证据。事实上,英美两国的立法与审判实践却表明:法官可以询问证人、传唤证人出庭,或进行"庭外勘验"。尤其在没有陪审团参与的审判中,法官能更加主动地调查证据。这说明,英美两国的刑事法官并非完全消极、被动,特别是当庭审主体变为一元的职业法官时,他因对案件事实最终负责,而更加具有调查证据的天然冲动。由此可见,中国刑事法官在庭审中无需亦不能塑造成纯粹的仲裁者角色,而应保留适当的且受到法律合理规制的证据调查权。     

Gatekeeping by Allegations: An Examination of Verified,Unfounded, and Fabricated Allegations of Child Maltreatment Within the Context of Resist and Refusal Dynamics

Allegations of child maltreatment and neglect, including child sexual abuse, in the context of child custody disputes pose particular challenges for child protection services, family law professionals and the courts to identify children at risk of harm, as well as children impacted and exposed to other risk factors. Accurately identifying child maltreatment requires assessing the background, the history and the context of the allegations in order to differentiate confirmed, unfounded, and fabricated allegations. The paper provides a review of the history and current understanding of allegations within the context of child custody disputes by considering the connections of fabricated allegations to the theory of alienation and the role of gatekeeping. The paper then examines the social science literature regarding allegations within child protection investigations (the prevalence, types of maltreatment, reporter of allegations, and case outcomes) and explores the factors that have contributed to the challenges faced by child protection services to investigate and make determinations regarding allegations within the context of child custody disputes. We argue for early assessment protocols for child protection services to screen child custody cases, to differentiate allegations of alienation from other types of harm, to enhance role clarity in these volatile situations, to refrain from “taking sides” and to work collaboratively with the family law community. Lastly, we offer legal implications to improve collaboration between child protection services and the family law field to better respond to these complex cases.     

移动电话“靓号”应成为盗窃罪的犯罪对象——全国首例“靓号黑客案”的物权法解读

全国首例“靓号黑客案”二审判定移动电话“靓号”不属于刑法上的财物范畴,从而否定其成为盗窃罪的犯罪对象。这是二审法院受刑法学理论界关于盗窃罪犯罪对象的“有体性说”错误指导的结果。“有体性说”的错误根源在于对民法中无体物与有体物相区分理论的错误理解。我国刑事司法实务界应该主动舍弃“有体性说”,并应从盗窃罪犯罪对象的几个基本特征入手,认定移动电话“靓号”可以成为盗窃罪的犯罪对象。     

Tippins and Wittman Revisited: Law,Social Science,and the Role of the Child Custody Expert 14 Years Later

It has been 14 years since Tippins and Wittmann ( 2005 ) voiced concern for the overreaching role the expert may play in matters of family law. This article sets their levels of inference within the context of the culture of both law and social science. We examine how inferences are impacted by the relative emphasis child custody experts give to the five stakeholders involved in child custody evaluations (CCEs): courts, lawyers, parents, children, and professional governing bodies. Acculturation of the assessor to law contributes to more egregious inferences, versus the more modest ones Tippins and Wittmann advocated. How evaluators prioritize stakeholders shapes their opinion and methodology. We offer an expanded perspective that views how their levels of inference are manifest in reports, methodology, and recommendations and the influence of the culture of law and the mindset of the clinician. We hope to encourage clinicians to find ways to operationalize clinical humility, assume their proper role, and remain true to their master identity as licensed mental health professionals and their proper sphere of authority.     

刑事程序中法官与鉴定人事实认知的冲突

当今时代科技与法律的关系尤为密切,在刑事诉讼中表现为具备最终事实认定权的法官日益面临着鉴定人科技知识的挑战,因而其事实认知权存在被分享的危险.对于这一问题人们关注甚少,面对该困境法官应通过如下策略对之回应:对鉴定人可靠性进行审查;加快鉴定人及其机构之间的竞争、进行适当的责任追究来保证鉴定人作出可靠的鉴定结论;通过程序处理疑难的科学鉴定.     

Contamination of forensic DNA evidence in the light of Hungarian court decisions – A review of 25 years

The evaluation of forensic DNA expert opinions (in some countries expert witness testimonies) and the way it affects criminal judgement is of paramount importance. We have selected one of the largest challenges when it comes to the evaluation of forensic DNA evidence, contamination of DNA samples, and examined how it influences the decisions judges make about the credibility of DNA evidence in Hungary.     

The Process is the Punishment: Criminal Libel and Political Speech in Canada

The number of U.S. states with criminal libel laws has been steadily declining since the 1960s, and the offense has been struck down in the United Kingdom and several former British colonies. In Canada, however, criminal libel not only continues to exist, but appears to be enjoying a resurgence, albeit one that has flown beneath the radar of Canadian lawyers, judges, and journalists, who frequently assert that criminal libel prosecutions are rare. The research reported in this article found more than 400 prosecutions since the beginning of the twenty-first century. While many of these cases were brought against people who disseminated sexual slurs against former romantic partners, in a substantial number of cases criminal libel law was used to punish citizens’ political speech, particularly speech critical of police or other justice system officials, a use wholly inconsistent with the Canadian Charter of Rights and Freedoms.