Law Enforcement and the Rights of the Accused: Are the Police Getting a Bad Rap?

Nationwide, law enforcement professionals have endured increasing scrutiny regarding their treatment of custodial suspects and their alleged abridgement of suspects’ Constitutional rights. At the same time, in the interests of community safety, many members of the public fully expect police officers to function efficiently in arresting and facilitating the prosecution of likely perpetrators. These perspectives reflect due-process and crime-control models respectively. Very little is known, however, about how law enforcement professionals actually view the rights of the accused when not acutely immersed in the cross-currents of public opinion. Using an anonymous survey, the current investigation addresses both Miranda rights as well as the European Union’s (EU) much more comprehensive approach to the rights of the accused. In general, this sample of 209 urban police officers favored protections of criminal suspects that went considerably beyond Miranda safeguards.     

Examining the Role of Interrogative Suggestibility in Miranda Rights Comprehension in Adolescents

This study aimed to further clarify the association between interrogative suggestibility and Miranda rights comprehension in adolescents; in particular, we examined whether intellectual ability (IQ) serves as a mediator of this relationship. Participants completed Grisso’s Miranda Instruments, the Wechsler Abbreviated Scale of Intelligence, and the Gudjonsson Suggestibility Scale. Many youth demonstrated poor comprehension of their rights, particularly younger and less intellectually capable adolescents. Both yield and shift components of interrogative suggestibility were inversely related to rights comprehension; however, IQ fully mediated these relationships. Neither demographic variables (gender, ethnicity, socio-economic status after controlling for IQ, and English as a second language (ESL) status) nor previous police experience were significantly associated with rights comprehension in the present sample. The implications of these findings are discussed.     

Police Interviewing and Interrogation: A Self-Report Survey of Police Practices and Beliefs

By questionnaire, 631 police investigators reported on their interrogation beliefs and practices-the first such survey ever conducted. Overall, participants estimated that they were 77% accurate at truth and lie detection, that 81% of suspects waive Miranda rights, that the mean length of interrogation is 1.6 hours, and that they elicit self-incriminating statements from 68% of suspects, 4.78% from innocents. Overall, 81% felt that interrogations should be recorded. As for self-reported usage of various interrogation tactics, the most common were to physically isolate suspects, identify contradictions in suspects' accounts, establish rapport, confront suspects with evidence of their guilt, and appeal to self-interests. Results were discussed for their consistency with prior research, policy implications, and methodological shortcomings.     

Competence to Waive Interrogation Rights and Adjudicative Competence in Adolescent Defendants: Cognitive Development,Attorney Contact,and Psychological Symptoms

Although there is growing evidence of developmental differences in competency to waive interrogation rights and adjudicative competence, the correlates of adolescents' legal capacities remain unclear. This study examined the relationship of legal capacities to cognitive development, legal learning opportunities, and psychological symptoms. Participants were 152 male and female defendants aged 11–17, who completed Grisso's Instruments for Assessing Understanding and Appreciation of Miranda Rights, the Fitness Interview Test (Revised Edition), the Woodcock-Johnson III Cognitive Assessment Battery, and the Brief Psychiatric Rating Scale for Children. Legal capacities relevant to interrogation and adjudication increased with age. These developmental differences were partially mediated or explained by cognitive development. Of the specific cognitive ilities examined (general intellectual ability, verbal ability, reasoning, long-term retrieval, attention, and executive functioning), verbal ability was a particularly strong predictor of performance on competency measures. Also, defendants obtained lower scores on competency measures if they showed evidence of attention deficits or hyperactivity, had spent limited time with their attorneys, and/or were from low socioeconomic backgrounds.     

The Minimal State and Indigent Defense

Very few scholars discuss the moral basis of the right of persons accused of crimes to be supplied with attorneys if they cannot afford them. More discussion of the topic is needed, in particular because political theorists who prefer a minimal state deny that indigent persons have such a moral right. This article addresses their contentions by developing three arguments for supplying poor persons accused of crimes with defense attorneys. First, doing so will prevent state officials from becoming emboldened in their dealings with the poor, such that they might come to pose a threat to the non-poor. Second, poor persons who believe that the state does not treat them fairly will have reduced incentives to abide by the law, which will, in turn, increase the cost of the minimal state. Third, the better off should show solidarity with the poor in demanding that the minimal state honor all citizens’ rights to life, liberty, and property. Crucial to these arguments is the claim that a right of indigent defense is unlike other welfare rights in that securing it protects other basic moral rights that minimal statists acknowledge.     

An Analysis of Miranda Warnings and Waivers: Comprehension and Coverage

Miranda warnings enshrine the constitutional rights of custodial suspects against self-incrimination. However, the wording and sentence complexity of Miranda warnings and waivers vary dramatically from jurisdiction to jurisdiction. This study is the first extensive investigation of Miranda warning variations examining 560 Miranda warnings from across the United States. With Flesch-Kincaid reading comprehension as a useful metric, Miranda warnings varied from very simple comprehension (i.e., grade 2.8) to requiring postgraduate education. Miranda warnings are composed of five components (e.g., silence and evidence against you); marked variations were also observed in the comprehensibility of individual components. On average, the Miranda warning component on "continuing rights" requires a reading comprehension level six grades higher than the comparatively simple expression of the right to silence. Similar analyses were conducted on Miranda waivers. The content of these warnings differed on such issues as communicating (a) when access to an attorney would be granted (e.g., 45.9% specified only "during questioning") and (b) explicitly that indigent legal services were free (e.g., 31.8% directly informed suspects). Finally, the study identified representative Miranda components at different levels of reading comprehension as a template for further research.     

Examining the effects of the TASER on cognitive functioning: findings from a pilot study with police recruits

Objectives

Despite its widespread adoption by more than two-thirds of police departments in the US, there has not been a single study examining the effects of the TASER on cognitive functioning. This inquiry is important for two reasons. First, research has consistently documented cognitive deficits following exposure to electricity (the TASER is an electrical device). Second, questions have emerged regarding whether TASER exposure impairs suspects’ ability to understand and waive their Miranda rights.

Methods

To explore this issue, the authors carried out a pilot study with 21 police recruits who received a TASER exposure as part of their training at the San Bernardino County (CA) Training Center. Each recruit was given a battery of cognitive tests 3–4 h before TASER exposure, within 5 min after exposure, and again 24 h after exposure.

Results

Recruits experienced statistically significant reductions in several measures of cognitive functioning following TASER exposure. However, all recruits had returned to their baseline levels of functioning within 24 h. Learning effects were documented in several of the cognitive tests.

Conclusions

The questions driving this study involve serious issues including constitutionally protected rights of the accused, use of force by police, and previously unexamined effects of the TASER on the human body. The pilot study represents a critical first step in exploring the effects of the TASER on cognitive functioning. Moreover, the results provided the authors with important information that will guide their larger study, a randomized controlled trial where healthy human volunteers will be randomly assigned to four groups, two of which receive a TASER exposure.     

The Right to Representation by Criminal Defense Counsel in Ethiopia: A Critical Analysis

This paper explores and critically reflects on the legal foundations and the practice of criminal defense in Ethiopia within the overall due process framework of a fair criminal trial. A brief review of Ethiopian constitutional history shows that the right to representation by legal counsel has been one of the fundamental due process rights granted to accused persons in criminal proceedings. The constitutional right to counsel is, however, not specified by detailed legal provisions. A logical consequence of this is that the enjoyment of this right is fraught with legal and practical problems. While the legal problems, among other things, include obscurity regarding the scope and content of the right, the practical problems include absence of public defense offices at district levels where the vast majority of criminal proceedings take place. Consequently, accused persons appear during trials without the aid of legal counsel; they are in fact deprived of their due process rights and marginalized. This has a number of legal ramifications both to the accused and the criminal justice system. In sum, the constitutional provision of the right to criminal defense counsel is undelivered and remains a hollow promise. It is therefore difficult to uphold the constitutional norms which underlie criminal trial process such as procedural justice, as well as the legitimacy of the government. The justice sectors are responsible to ensuring due process and equal protection. Substantial justice reforms are needed at all levels.     

沉默权制度的发展、利弊与限制

沉默权制度作为诸多国家在刑事诉讼中保障犯罪嫌疑人、被告人人权的一项重要制度,有必要对其历史发展、利弊及现今限制等问题予以了解,这对我国正在酝酿的刑事诉讼法的整体修改以及相关问题的废、改、立具有重要意义。     

无罪推定原则的确立与口供制度的完善

无罪推定是被追诉者的一项基本权利,也是被追诉者各项诉讼权利的基础。在刑事诉讼中将无罪推定确立为指导刑事诉讼活动的基本准则,就是无罪推定原则。我国应当在刑事诉讼中彻底确立无罪推定原则。无罪推定及其引申的主要内容应当分为三个层次:证明责任、被追诉者的权利和对被追诉者的权利的保障。由于无罪推定假定被追诉者无罪,对控诉的举证责任应由控方承担,被追诉者不承担无罪的举证责任,所以,被追诉者就没有理由配合控方提供自己犯罪的证据,包括口供。我国刑事诉讼法关于"犯罪嫌疑人对侦查人员的提问,应当如实回答"的规定,违背了无罪推定关于被追诉者不应当承担举证或证明责任的基本精神,使得被追诉者负有帮助侦控方履行举证和证明的义务。这一规定实质上表明我国刑诉法要求被追诉者承担举证或证明责任。因此,从无罪推定的这一层面上说"应当如实回答"是不合理的,应当予以取消。     

Knowing and Intelligent: A Study of Miranda Warnings in Mentally Disordered Defendants

A conservative estimate is that 695,000 mentally disordered offenders are arrested and Mirandized annually in the United States. Past research has focused almost exclusively on cognitive factors affecting the comprehension of Miranda rights. The current study broadens the scope by including diagnostic variables and by extending the investigation to basic elements of Miranda reasoning. A sample of 107 mentally disordered defendants was administered two research measures, the Miranda Statements Scale (MSS) and Miranda Rights Scale (MRS), in addition to standardized tests. Most defendants lacked good comprehension of all but the simplest (Flesch-Kincaid<6th grade) Miranda warnings. Defendants with the poorest understanding (i.e., comprehending about 25% of the warnings) had marked deficits in multiple domains including cognitive abilities (intelligence and comprehension) and general adjustment. Different background and clinical variables predicted defendants' abilities to generate reasons either to exercise or waive their Miranda rights.     

The Role of Suggestibility in Determinations of Miranda Abilities: A Study of the Gudjonsson Suggestibility Scales

Traditionally, high levels of suggestibility have been widely assumed to be linked with diminished Miranda abilities, especially in relationship to the voluntariness of waivers. The current investigation examined suggestibility on the Gudjonsson Suggestibility Scales in a multisite study of pretrial defendants. One important finding was the inapplicability of British norms to American jurisdictions. Moreover, suggestibility appeared unrelated to Miranda comprehension, reasoning, and detainees’ perceptions of police coercion. In testing rival hypotheses, defendants with high compliance had significantly lower Miranda comprehension and ability to reason about exercising Miranda rights than their counterparts with low compliance. Implications of these findings to forensic practice are examined.     

特殊防卫权起因条件的反思——我国逆防卫制度构建的进路

我国1997年的新《刑法》对正当防卫进行了修改并新设立了特殊防卫制度。但新《刑法》在加强对受害人保护力度的同时,无形中对犯罪嫌疑人的人权保障构成了威胁。为实现均衡保障双方的权利,许多学者提出应对措施,试图通过限制防卫人防卫权的方式,来释放因新《刑法》的修改而形成的对犯罪嫌疑人人权保障的威胁。但这种做法又势必会打击广大人民群众同不法行为作斗争,保护自身合法权益的积极性。本文分析了应对措施存在的弊端,提出通过法律构建一座平衡不法侵害人和防卫人权益的桥梁—逆防卫制度,以期达到两者权益保障的动态平衡,构建双方权益的和谐保护。     

Pre-Trial Defence Rights and the Fair Use of Eyewitness Identification Procedures

This paper sets out the normative basis of a claim to procedural rights concerning the fair use of eyewitness identification procedures. It is argued that there are two aspects to suspects' procedural rights. The first aims to secure an opportunity for the suspect to participate in procedures where doing so might result in exculpatory evidence (a participatory right). The second is the state's obligation to take reasonable measures to prevent wrongful conviction on the basis of mistaken identification by providing the suspect with a satisfactory degree of procedural accuracy (a protective right). This normative analysis provides the basis of a claim that Article 6 of the European Convention on Human Rights provides a suspect with similar rights. The final part of the paper considers whether domestic procedure is compatible with these putative rights, and whether it could be said to provide an effective remedy if they were to be breached.     

On deriving rights to goods from rights to freedom

This paper examines a particular type of argument often employed to defend welfare rights. This argument contends that welfare rights are a necessary supplement to liberty rights because rights to freedom become hollow when their bearers are not able to take advantage of their freedom. Rights to be provided with certain goods are thus a natural outgrowth of a genuine concern to protect freedom.I argue that this reasoning suffers from two fatal flaws. First, it rests on an erroneous notion of what it is to have a right, neglecting the fact that the exact source of a person's inability to exercise a right is crucial to determining whether that right is being respected. Second, the argument equivocates as to the freedom that rights are intended to protect, sometimes confusing freedom with ability, sometimes confusing not being free with not having other desired things, and sometimes confusing what a person is able to do with what a person is entitled to do.     

Does methodology matter in eyewitness identification research? The effect of live versus video exposure on eyewitness identification accuracy

The present study examined the effect of mode of target exposure (live versus video) on eyewitness identification accuracy. Adult participants (N=104) were exposed to a staged crime that they witnessed either live or on videotape. Participants were then asked to rate their stress and arousal levels prior to being presented with either a target-present or -absent simultaneous lineup. Across target-present and -absent lineups, mode of target exposure did not have a significant effect on identification accuracy. However, mode of target exposure was found to have a significant effect on stress and arousal levels. Participants who witnessed the crime live had higher levels of stress and arousal than those who were exposed to the videotaped crime. A higher level of arousal was significantly related to poorer identification accuracy for those in the video condition. For participants in the live condition however, stress and arousal had no effect on eyewitness identification accuracy. Implications of these findings in regards to the generalizability of laboratory-based research on eyewitness testimony to real-life crime are discussed.     

探析我国刑事诉讼中测谎权的配置问题

我国刑事诉讼中的测谎权是一种权力,单向配置给追诉机关.这一配置格局既忽视了测谎技术在刑事诉讼中的保护无辜功能,违背了刑事诉讼中控辩平等的基本原则,削弱了辩方的举证权和辩护权,也不能满足被追诉人单方主动提出测谎的现实需求.因此,我国刑事诉讼中的测谎权应当重新配置,赋予被追诉人有条件的独立测谎申请权,坚持测谎申请权与测谎决定权的结合.     

论被追诉人本人的阅卷权

刑事诉讼中被追诉人本人能否行使阅卷权,因关系"发现真实"与"被告作为程序主体"之间的冲突,而争议较大。目前向被追诉人本人开放一定程度的阅卷已成为现代法治发达国家刑事诉讼法的调整方向,我国在"固有权"理论下全面禁止被追诉人本人阅卷的立法与实务值得检讨。被追诉人作为程序主体,应享有阅卷权,尤其是对无辩护人的被追诉人,应赋予其本人直接阅卷的权利。但阅卷权对被追诉人开放所可能带来的制度风险,仍是不可忽视,因此,基于利益的权衡,应根据案件的具体情况对被追诉人本人的阅卷权进行合理限制。     

Factors that influence jury decision making

Investigated whether information regarding the disposition of insanity acquittees and the defendant's mental state at the time of the trial, had a significant effect on mock jurors' verdicts. Two trials were used to assess whether results generalize across cases. participants read excerpts from a trial in which the accused's mental state at the time of the trial (symptom free, neurotic symptoms, or psychotic symptoms) and the disposition instructions (no instructions, indeterminate disposition, and capped disposition) were varied. Participants then rendered a verdict of guilty, not guilty, or not criminally responsible on account of mental disorder (NCRMD). Participants who thought the accused was psychotic at the time of the trial were more likely to render a verdict of NCRMD than guilty, and they were more likely to render a verdict of NCRMD than those who thought the accused was normal. No significant differences were found for disposition. Finally, a significant difference for verdicts was found between trials.     

法院变更起诉罪名之研究

目前国外对法院变更指控罪名问题研究已较成熟,英美法国家以法院不能变更指控罪名为原则,以变更指控罪名为例外.而大陆法系国家的法律规定,法院依职权审判,在事实审判上需要受制于起诉指控的范围,而在法律适用和罪名确定上法院可以自主行动.我国在该问题上虽已有法律规定,但太笼统,简单,面对一些实际问题该法律规定似嫌无能为力.法院应该享有变更指控罪名权,只是要在法院行使该权力时给予必要的规范.法院对指控事实的认定和检察院并无二致,只是在罪名认定上有分歧时可以直接在判决书中将指控罪名加以变更,该变更必须未对被告人辩护权造成实质影响且对其有利;如果指控罪名不当,法院如欲变更会恶化被告人的处境,不宜直接变更,须与检察机关协商后按照一定的程序加以变更.