Empathy and objectivity in the legal procedure: the case of Swedish prosecutors

The role of empathy, the capacity to read someone else’s emotions, in the legal context has previously been studied in relation to primarily judges’ decision-making, often with a concern for objectivity. Our purpose is to study professional emotion management in the legal process through an analysis of Swedish prosecutors’ use of empathy. An ethnographic data collection took place between 2012 and 2015, including shadowing, observations and interviews with 36 prosecutors from 3 prosecution offices. The analysis shows that during the investigation, empathy helps identify the prerequisites of a crime and deciding if and how to prosecute. When preparing for trial, empathy is used to anticipate the situation in court. During the trial, the empathic process includes management of the emotions of others in order to stage credible testimonies, convince the judge and calm victims. The empathic process is oriented and restricted by the emotive–cognitive judicial frame through which prosecutors are rewarded by emotions of comfort and pride in demonstrating expertise of legal coding. We conclude that empathy is integral to prosecutors’ professional performance, including the requirement to be objective. The study points to the problems with silencing emotions and maintaining a positivist notion of objectivity in the legal system.     

A higher bar: Institutional impediments to hate crime prosecution

Why are hate crime cases so rarely prosecuted? Most states and the federal government have hate crime laws on their books, yet available data indicate few prosecutions in most jurisdictions. Drawing on case files and interviews with police and prosecutors in one jurisdiction, three institutional impediments to hate crime prosecution are identified: evidentiary inflation, by which law enforcement uses a higher burden of proof than what is required by statute; loose coupling between police departments and prosecutors' offices; and cultural distance between law enforcement and victims. Findings also reveal that advocacy groups and media can successfully increase the visibility of cases and draw the attention of prosecutors. The findings align with aspects of legal endogeneity theory and enhance our understanding of the role of organizations in constructing the meaning of law. The results also help explain why some laws are rarely enforced, even when they have support from key personnel in an organization.     

‘No,buddy, I will not speak to the press – I am working!’: criminal justice and the interprofessional dynamics of communication production in the Chilean Public Prosecutorial Office

This article analyses the interprofessional dynamics of communication production in the criminal justice system. Through 26 in-depth interviews, we investigate the production of media information on prosecutorial work in Chile, tracking the relationships between internal communication agents, prosecutors, and external legal journalists. Previous scholarship has shown the success of police organizations in defining the content of crime communication based on asymmetrical power relations with the media. By contrast, our study reveals that legal journalists can bypass attempts to control the flow of information from the prosecutorial office and impose extra-organizational goals. Lawyers regularly dismiss the work of journalists, particularly those working as strategic communication advisors with prosecutors, but the asymmetrical relationship between the criminal justice agency and the media plays in favour of external legal journalists. Our article considers several explanations for this configuration, including interprofessional values, transactional relationships between journalists and prosecutors, and local legal culture.     

From devil’s advocate to crime fighter: confirmation bias and debiasing techniques in prosecutorial decision-making

ABSTRACT

This research examines the role of confirmation bias in prosecutorial decisions before, during and after the prosecution. It also evaluates whether confirmation bias is reduced by changing the decision maker between arrest and prosecution. In Experiment 1, Swedish prosecutors (N?=?40) assessed 8 scenarios where they either decided themselves or were informed about a colleague’s decision to arrest or not arrest a suspect. Participants then rated how trustworthy the suspect’s statement was as well as the strength of new ambiguous evidence and the total evidence. They also decided whether to prosecute and what additional investigative measures to undertake. In Experiment 2 the same method was used with Law and Psychology students (N?=?60). Overall, prosecutors’ assessments before the prosecution indicated that they were able to act as their own devil’s advocate. Also, their assessments while deciding about whether to prosecute were reasonably balanced. However, after pressing charges, they displayed a more guilt-confirming mindset, suggesting they then took on the role as crime fighters. This differed from the student sample in which higher levels of guilt confirmation was displayed in relation to arrested suspects consistently before, during and after a prosecution decision. The role of prosecutors’ working experience is discussed.     

Cross-border crime in Belgium

Conclusion In summary we can state that judicial assistance stands to lose further ground with respect to police cooperation. The Schengen Agreement authorized and legitimized the autonomy of the police which they themselves had already assumed in the legal assistance process. At national level the situation is worsened by the insufficient statutory regulation of the investigation prior to prosecution and by the absence of a well functioning judicial control thereof. Above all the research indicated that not all magistrates/prosecutors showed the same amount of interest in direct involvement in the international legal civil system, a disturbing conclusion in the light of the increasing internationalization of crime phenomena (De Ruyver, 1992).The manner in which the judicial assistance functions fails to deal with geographically determined and limited types of group crime, as in the study area. Crime organized in a businesslike manner and at the same time requiring greater expertise and cooperation with respect to the investigation prior to prosecution, remains a fortiori beyond concern.     

Epistemic emotions in prosecutorial decision making

The article examines epistemic emotions as part of the emotive-cognitive processes of prosecutors’ knowledge seeking and decision making in preliminary investigation and court proceedings. Drawing on ethnographic fieldwork, interviews, and shadowing of prosecutors in Sweden, we show how emotions motivate and orient prosecutors’ inquiries and the fundamental role of the ‘certainty–doubt spiral’ for ‘doing objectivity’. In conclusion, we discuss the centrality of emotions for conscientious and well-considered decisions in legal work. The study contributes to the field of law and emotion by exploring the epistemic quality of emotions, notably the certainty–doubt spiral, in legal work.     

Construction of the problem of Latin gangs in Spain and response of the law enforcement system

Recently, since their official recognition as criminal organizations by Spanish law enforcement authorities, stricter prosecution of Latin street gangs has been observed. The toughening of legal regulations, new models of police conduct and the increasingly active role of prosecutors have contributed to greater punitive pressure on the gangs. This article has two main objectives: first, to describe changes in Spanish criminal policies for the treatment of Latin American street gangs; second, to analyse to what extent these changes are in consonance with empirical findings on criminal involvement and the organizational nature of these groups. The results show that despite the recent increase in criminal activity these groups cannot be viewed as the only parties to blame for local street crime. The opinion of the law enforcement authorities that Latin American street gangs are a form of organized crime is far from reality. These groups do not have the required combination of characteristics inherent to criminal organizations, and their purposes are not always exclusively criminal.     

Precursor Crimes to Terrorism and the Local Prosecutor's Role in Disruption

Much of the discussion of terrorism prosecution focuses on the federal judicial system or the use of military tribunals. The passage of state anti‐terrorism legislation in response to September 11, 2001, raises the issue of what role local prosecutors might play in responding to terrorism. Of particular interest is the role that local prosecutors have in identifying offenders who have committed crimes that may be precursors to terrorism and how they gather and share information. Using data from a survey of the 112 largest prosecutors’ offices in the country and information gained from case studies, this study explores the local prosecutor's role in responding to terrorism, how they are involved in the identification and prosecution of precursor crimes, and the overlap between federal and state prosecution.     

非法占用农用地犯罪的司法认定及其反映出的法治问题研究——以重庆市某基层检察院办理的此类案件为样本

非法占用农用地罪是国家土地政策在《刑法》上的直接体现,它表达了特定历史阶段和社会环境下国家意志对农用地使用最有力的指引和控制,能够最直接和真实地反映出作为第一产业的农业和依附于土地之上的农民的生存状况。就法律适用而言,本罪在犯罪数额、共同犯罪、追诉时效等方面的争议亟待厘清;就农用地保护而言,需对涉案群体的利益诉求做进一步关注,对社会发展及其造就的法治环境做深入的分析研究,破解非法占用农用地罪的立法困境,有效解决农村土地问题。     

Sense-making and secondary victimization among unsolved homicide co-victims

Sense-making is a form of meaning-making that focuses on understanding loss which then contributes to identity reconstruction. This qualitative study examines how perceived communication with the criminal justice system can inhibit sense-making among unsolved homicide co-victims. One-time intensive interviews were conducted with 37 co-victims about their interactions with police and prosecutors. A grounded theory approach suggest that co-victims held negative views of the police and prosecutors because they perceived them as inhibiting their ability to adequately locate information needed to understand the crime and achieve justice. Results also suggest that race and ethnicity play a role in reducing sense-making because constructions of meaning were based on perceptions of discrimination. In the end, the intense desire for information, resolution, and justice led several co-victims to investigate their loved one's murder. Policies that law enforcement should adopt to promote better communication with co-victims and facilitate sense-making are examined.     

Compatible victims? Prison overcrowding and penal reform in Belgium

The Belgian criminal justice system has recently gone through a period of unprecedented legislative reform. One of the major innovations has been the establishment of a new type of tribunal which is responsible for decision-making and follow-up related to the execution of penal sanctions (tribunal de l’application des peines/strafuitvoeringsrechtbank). This new institution is created and regulated by two pieces of legislation, formally approved in May 2006. The paper discusses the Parliamentary trajectory of this reform and pays special attention to how a victim's perspective (that is, the enactment of certain types of information and hearing rights for certain categories of victims of crime) came to be included in the new regulation. It is argued that one of the most important implications of the whole reform (that is, the future loss of Ministerial control with respect to managing the prison population) has contributed to the legal construction of the victim in the legal proposal as submitted by the Government to the Senate. The provisions in this legal proposal which related to victims of crime needed to be ‘compatible’ with an age-old problem of serious prison overcrowding. The legal proposal, therefore, was oriented towards defining victims in such a way that giving them a role in the post-sentencing phase would not hamper the smooth release of inmates out of the Belgian prison system.     

Problems of definition: What is organized crime?

What do most people, or at least most Americans, think of when they hear, see, or read the term “organized crime”? What do they know about it? And from whence do they get their information? What about law enforcement practitioners, prosecutors, judges, and politicians? And, what about academics and journalists, the folks who study and write about organized crime? Agreeing upon a commonly accepted definition of just what is organized crime has been a continuing problem for both research and policy. The discussion that follows addresses various dimensions of this problem, looks at the implications, and makes certain recommendations.     

Sentences and prosecutors’ demands for aggravated drunk driving in Finland

ABSTRACT

Sentences and prosecutors’ demands for aggravated drunk driving are categorised into three classes: The sentence is more lenient than, is compatible with, or is harsher than the prosecutor’s demand. The probability of a sentence falling into one of the three ordered categories is explained by a cumulative logit model. The following circumstances affect the probability of a more lenient or harsher sentence, in decreasing order of importance: driving a truck, facing at least four counts, having a legal assistant, and being present in the trial. The hypothesis that factors known by the prosecutor, at the time of writing the demand, should not systematically affect sentences is refuted. The judges assess circumstances differently than the prosecutors. The prosecutors’ role is nevertheless prominent in the sense that the sentences follow, to a great extent, their demands. Notable gender effects of the actors in the courtroom are found.     

PREVENTIVE DETENTION

The authors suggest that the probability of an arrestee engaging in violent crime before trial should be recognized as on independent and legitimate concern of the courts. Some of the major practical and legal considerations in implementing a pretrial detention option are discussed. A model is proposed which would give prosecutors a uniform basis for the decision to request a judicial order to detain pending trial. The model is based upon a modification of the Sellin-Wolfgang index of seriousness.     

疫情防控中妨害公务罪的法教义学解析

为了个人自由而抗拒防疫管控,是对国家公务活动正常秩序的公然侵犯,具有法益侵害性。对于妨害公务罪之"暴力、威胁",应结合其侵害法益、实务经验予以合理界定。参与疫情管控的基层工作人员能否作为妨害公务罪之对象,需根据司法解释的规定,紧扣从事疫情防控职权之公务性质深入分析。以暴力、威胁方法抗拒不当防疫措施的,因防疫执法之合法性丧失,不构成妨害公务罪。行为人对防疫执法行为合法性的认识错误,属于对构成要件的事实认识错误,阻却犯罪故意的成立。     

再论律师在场权——以台湾地区为参照

在台湾地区刑事诉讼中,在场权被视为律师一项独立的权利,具有重要的价值。台湾地区在司法警察、检察官及法官实行某些调查行为时均给予律师以在场权,同时设置一些例外,能够在保障人权与控制犯罪维持一种均衡,此外,与在场权相配套的程序设置也相对比较完善,值得学习与借鉴。     

论侦查权配置的内在原理

刑事侦查权的配置应当围绕检察官为中心而进行.作为侦查权的法定主体,检察官具有控制警察活动的合法性,负有防止警察国家重现的重要使命.我国目前一定程度上存在着警察权恣意、失范,侦查程序缺乏监督、制约的情况,在这样的背景下,强化检察机关的权限和地位,将其塑造成为审前程序的主导者和警察权力的控制者,就成为必然的路径选择.     

Discretion at the Pre-Trial Stage: A Comparative Study

This study aims to explore the discretion of the police and prosecutors during the pre-trial stage based on six systems of criminal justice: England and Wales, the United States, France, Germany, Japan, and South Korea. In criminal proceedings, discretion plays a significant role in supplementing as statutes cannot provide for every circumstance. In particular, at the pre-trial stage, public prosecutors can conclude their cases by exercising considerable discretion. Such discretion differs depending on the jurisdiction. The differences demonstrate distinctive prosecutorial roles. Based upon these findings, I propose that in general, the public prosecution service plays a filtering role. Unlike other jurisdictions, in Korea the prosecutors act as monopolists. However, justice cannot be achieved by the monopoly of one legal actor in the criminal proceedings.     

When anti-corruption norms lead to undesirable results: learning from the Indonesian experience

This paper analyzes how and why adverse side-effects have occurred in the implementation of two articles of Indonesia’s anti-corruption law. These articles prohibit unlawful acts which may be detrimental to the finances of the state. Indeed, the lawmakers had good intentions when they drafted the two articles. They wanted to make it easier to convict corrupt individuals by lowering the standard of evidence required to prove criminal liability. The implementation of these articles has raised legal uncertainty. The loose definition of the elements of the crime enables negligence and imperfection of (public) contracts to be considered as corruption. The Constitutional Court has issued two rulings to restrict and guide the interpretation of these articles. However, law enforcement agencies (Supreme Court and public prosecutors) have been unwilling to adhere to the rulings. There are two possible reasons for this. First, as has been argued by several commentators, the law enforcement agencies have misinterpreted the concept of “unlawfulness”. Besides, the law enforcement agencies wish to be seen to be committed to prosecuting and delivering convictions in corruption cases. To do so, they need to maintain looser definitions of the elements of the offence. This paper endorses the Constitutional Court rulings and provides additional reasons in support of their stance. The paper can be considered as a case study for other countries that may be contemplating similar legislation.     

The Prosecutor and the Presumption of Innocence

In what ways is the conduct of prosecutors constrained by the presumption of innocence? To address this question, I first develop an account of the presumption in the trial context, according to which it is a vital element in a moral assurance procedure for the justified infliction of legal punishment. Jurors must presume the factual innocence of defendants at the outset of trials and then be convinced beyond a reasonable doubt by the government’s evidence before they convict defendants. Prosecutors’ responsibilities to promote the integrity of this moral assurance procedure are then divided into pre-trial, during-trial, and post-trial phases. Since most charge adjudication is effected through plea bargaining, the ways in which plea procedures must be modified to conform to this moral assurance procedure, and thus honor the presumption of innocence, are also discussed.