When Both Sides are Mistaken: Layperson and Legal Professionals’ Misconceptions of Canadian Suspects’ Legal Rights Upon Arrest

Canadian criminal suspects have notably limited access to legal counsel upon arrest compared to suspects in the U.S. Additionally, prior research has shown significant misunderstanding of police warnings informing suspects of their rights upon arrest. This paper presents three studies on Canadians’ comprehension of criminal suspects’ rights upon arrest, with a focus on the right to counsel. Study 1 (N=80) and Study 2 (N=377) examined Canadian layperson’s comprehension, knowledge, and perceptions of legal rights upon arrest. In turn, Study 3 (N=78) investigated Canadian legal professionals’ perceptions of laypersons’ knowledge of those rights. Results from these three studies indicated there is substantial confusion about the right to counsel for Canadian criminal suspects. These results also support previous research demonstrating problems with comprehension of Canadian police cautions. Taken together, the findings of the present research pose significant concern for an increased risk of false confessions from Canadian suspects who enter an interrogation with limited knowledge and understanding of their legal right to counsel.     

Local Governance and Redistributive Policy: Explaining Local Funding for Public Defense

In many American states, public defense is provided at the county rather than state level (Langton & Farole 2009 ). Local governments have discretion over implementing and funding the right to counsel, resulting in considerable variability in programs and funding levels. Placing this issue in the theoretical context of redistributive policies and politics, we investigate decisions on funding this service across upstate New York counties. Using as a point of departure Paul Peterson's classic explication of community politics, we first model variation in funding as a function of counties' fiscal capacity, need for services, and costs of supplying legal representation. We also test Peterson's prediction that local political factors will play little if any role in budget decisions. Second, through interviews with program administrators we explore the characters of twelve defender programs in which expenditures departed from the model's predictions. We find that three factors—which we term “influence,” “infrastructure,” and “ideas"”—also vary directly with levels of funding. We conclude with a discussion of the implications of these findings for theoretical thinking about due process policies and local politics, and for policy debate over how best to ensure adequate counsel in criminal court.     

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.     

侦查程序中律师帮助权若干问题研究

侦查程序中 ,犯罪嫌疑人的人权最容易被忽视。就我国的司法实践而言 ,起诉和审判在很大程度上依赖侦查的结果 ,侦查程序是真正决定犯罪嫌疑人、被告人命运的关键程序。我国刑事诉讼法在增加庭审抗辩色彩的同时 ,却没有相应地增加侦查程序中的对抗因素 ,犯罪嫌疑人在侦查程序中的律师帮助权与其他国家相比尚存在亟待改进之处。     

POLICE DISRESPECT TOWARD THE PUBLIC: AN ENCOUNTER‐BASED ANALYSIS*

We use observations of police encounters with 3,130 suspects in Indianapolis and St. Petersburg to estimate three influences on police disrespect: how suspects behave, their personal characteristics, and the location of the encounter. Logistic regression models show that suspects' behaviors were the most powerful predictors, but the suspect's sex, age, income, and degree of neighborhood disadvantage were also significant. Minority suspects experienced disrespect less often than whites (statistically significant in the hierarchical analysis controlling for degree of neighborhood disadvantage). These effects are concentrated in St. Petersburg, where the chief had made the suppression of police abuses a visible priority. The findings offer partial confirmation of Donald Black's theory of law.     

The Challenge of Universal Norms: Securing Effective Defence Rights Across Different Jurisdictions and Legal Cultures

This article considers the contribution of comparative empirical research in shaping best practice norms for custodial legal advice, and helping to address challenges in their implementation. It traces the role of ECtHR decisions and EU Directives in developing transnational norms to strengthen suspects’ right to legal assistance. Recognizing how these norms are translated into the national context, it considers the value of comparative empirical and socio‐legal research in helping to develop legislative and training measures; how roles and responsibilities are shared out in different legal systems and traditions; and practical arrangements that facilitate or inhibit the effectiveness of custodial legal advice in practice. There is a tension between framing transnational norms that are sufficiently universal to attract support, without being so broad as to lack any transformational force, and sufficiently detailed to ensure respect for core protections without imposing legal requirements too rigid and difficult to be absorbed into diverse processes of criminal justice.     

刑事侦讯的“两方组合”及其相互关系——基于西方刑事侦讯的分析

无论在大陆法国家还是英美法国家,从侦讯运作情况和具体环节来看,侦讯者都居于主导性和支配性地位,而应讯者尽管享有沉默权、律师帮助权等基本权利,也拥有相应的权利保障措施,但其仍处于被动和受支配的地位。在刑事侦讯中,两者不同的地位决定了两者不均衡与不对称的关系:第一,侦讯者与应讯者主体地位的不均衡;第二,侦讯者与应讯者权利(权力)和义务关系的不对称;第三,应讯者对刑事侦讯的心理服从;第四,侦讯者的角色所具有的道德优势。西方刑事侦讯两方组合及其相互关系的基本特征对我国刑事侦讯制度及侦查程序的改革具有借鉴意义。     

关于建立侦查讯问中律师在场制度的尝试与思考

业已进行的讯问犯罪嫌疑人律师在场制度的试验表明:犯罪嫌疑人对此一般表示欢迎,他们在侦查中形成的口供比较稳定,此后没有翻供现象;而另一组没有律师参加讯问的犯罪嫌疑人,侦查终结后有的人进行翻供,并把原因归咎于侦查人员的不当讯问。同时,大多数侦查人员对试验表示理解和支持,并认为对侦查活动没有负面影响,反而有积极意义。试验还表明,建立讯问犯罪嫌疑人律师在场制度,并不需要“一刀切”,且我国目前及今后相当长一段时期也难以做到“一刀切”,因此,需要探索、建立替代性制度,如讯问时录音、录像制度。     

The right to counsel in juvenile court

Research Summary The U.S. Supreme Court in In re Gault granted delinquents the right to counsel in juvenile courts. Decades after Gault, efforts to provide adequate defense representation in juvenile courts have failed in most states. Moreover, juvenile justice administration varies with structural context and produces justice-by-geography. In 1995, Minnesota enacted juvenile law reforms, which include mandatory appointment of counsel. This pre- and post-reform legal impact study compares how juvenile courts processed youths before and after the statutory changes. We assess how legal changes affected the delivery of defense services and how implementation varied with urban, suburban, and rural context. Policy Implications We report inconsistent judicial compliance with the mandate to appoint counsel. Despite unambiguous legislative intent, rates of representation improved for only one category of offenders. However, we find a positive reduction in justice by geography, especially in rural courts. Given judicial resistance to procedural reforms, states must find additional strategies to provide counsel in juvenile courts.     

Constitutional protection of confessions made by mentally retarded defendants

Criminal confessions made in response to custodial questioning are excluded from evidence unless a defendant voluntarily, knowingly and intelligently waived his Miranda rights. In Connelly, the Supreme Court erred by holding that, absent explicit police coercion, a mentally ill individual's waiver is valid. The Court failed to consider the defendant's subjective impairments that might invalidate his waiver. By contrast, the Patterson Court suggested that a defendant's right to counsel may attach at an early stage in a criminal proceeding if the defendant has a significant need for counsel. This Note addresses the special needs of a mentally retarded person in the criminal justice system. The Note argues that mentally retarded suspects require careful explanation of Miranda rights in order to understand them. The intellectual and adaptive deficiencies which characterize mental retardation also necessitate an inquiry into a valid waiver that accounts for these disabilities. Furthermore, the special needs of the mentally retarded mandate that the right to counsel attach as early as the precustodial stage of an investigation. Early access to counsel most effectively assures that a mentally retarded person's waiver of constitutional rights is voluntary, knowing and intelligent.     

Assisting an Accused to Represent Himself: Appointment of Amici Curiae as the Most Appropriate Option

Given the proportion and complexity of international criminalproceedings, allowing an accused to represent himself beforean international criminal court might render his defence ineffective,even if the accused is a lawyer himself. If international criminalcourts are not willing to have the accused bear the consequencesof his choice of self-representation, the measure of appointingexperienced Defence Counsel as amici curiae to make legal contributionsto add to the Judges’ informed decisions seems to entailfewer undesirable ethical consequences for counsel than beingadded as ‘standby counsel’ or ‘court assignedcounsel’. Through occupying a neutral position and notbeing required to represent the accused, the amici's input maybalance the flow of defence and prosecution arguments and thuscontribute to the fairness of international criminal trials.The measure of appointing standby counsel or court assignedcounsel to an accused who wishes to represent himself appearsless appropriate, especially from a legal professional perspective.     

Police interviewing styles and confessions in Japan

Psychological studies of suspects' confessions have been conducted mostly in English-speaking and European countries, and the results may not generalise to countries whose cultures and policing practices differ. In particular, the difference between Japanese and Western laws may affect the roles that police interviewers play in suspects' confessions. This study examined the interviewing techniques used by Japanese police officers and associated features of the suspects' confessions. An extensive questionnaire was completed by 276 police officers across Japan. Detailed ratings of their interview techniques were factor analysed, yielding five factors: Presentation of Evidence, Confrontation, Rapport Building, Active Listening, and Discussion of the Crime. Based on these five factors, we identified four interviewing styles: Evidence-focused, Confrontational, Relationship-focused, and Undifferentiated. When interrogators employed the Relationship-focused interviewing style, suspects were more likely to make full confessions and to provide new information. By contrast, suspects were more likely to make partial confessions and were less cooperative when the police officers employed an Evidence-focused style.     

Contextualizing the Impact of Legal Representation on Juvenile Delinquency Outcomes: A Review of Research and Policy

This study examines the empirical research on legal representation in delinquency proceedings and situates it in the broader investigation of how states provide legal assistance to juvenile defendants. Our review of empirical studies found that attorney presence was an aggravating factor in dispositional decisions. After closely examining state statutory provisions on legal representation in juvenile delinquency proceedings, we suggest that the penalty effect of attorney presence is an artifact of the variation in state laws governing access and oversight of juvenile counsel. We conclude with suggestions for future research, policy, and practice.     

True and false intentions: asking about the past to detect lies about the future

This study is on how to discriminate between true and false intentions, an emerging area within psycholegal research. We argue that asking about the past (the planning phase) might be a promising way to detect lies about the future (intentions). That is, participants who had developed false intentions to mask their criminal intentions were assumed to provide equally long and detailed answers to questions about intentions, compared to participants who told the truth about their intentions. In contrast, we predicted that lying participants would be worse at answering questions about the planning of their stated (false) intentions, compared to participants telling the truth about the planning of their stated (true) intentions. To test our assumptions, we used a newly devised experimental set-up accommodating the main characteristics of intent. Both lying and truth-telling suspects perceived the questions on planning as more unanticipated, and more difficult to answer, compared to the questions about their intentions (future actions). Furthermore, in support of our predictions we found that the truth-telling (vs. lying) suspects' answers to questions on planning were longer and perceived as more detailed and clear, whereas liars' and truth-tellers' answers to questions on intentions were equally long and perceived as equally detailed.     

Legal Decisions of Preadolescent and Adolescent Defendants: Predictors of Confessions,Pleas, Communication with Attorneys,and Appeals

While there is an increasing recognition that developmental differences may exist in legal decision-making, little research has examined this. This study examined the legal judgments of 152 defendants aged 11–17 (73 females, 79 males). Adolescents aged 15 and younger were more likely than older adolescents to confess and waive their right to counsel, and less likely to report that they would appeal their case or discuss disagreements with their attorneys. Also, while adolescents aged 15–17 were more likely to confess, plead guilty, and accept a plea bargain if they perceived that there was strong evidence against them, younger defendants’ legal decisions were not predicted by the strength of evidence. Importantly, defendants with poor legal abilities were more likely to waive legal protections, such as the right to counsel and to appeal. Defendants from below-average socioeconomic backgrounds were more likely to waive their interrogation rights, and defendants from ethnic minority groups were less likely to report that they would disclose information to their attorneys. The advice of attorneys, parents, and peers emerged as important predictors of plea decisions. None of the defendants reported that their parents advised them to assert the right to silence during police interrogation.     

The Social Organization of Legal Services to Indigent Defendants

This article draws together materials portraying appointed counsel services in a variety of jurisdictions to illustrate the role of court organization in shaping legal services to indigent defendants. Many criminal courts are bifurcated into preliminary hearing and trial courts. Legal representation of indigents is frequently organized to parallel these stages. As a result, indigent defendants receive defense services from a succession of different lawyers at different stages of their cases. This occurs in three ways. First, some defendants legally eligible for appointed counsel at the inception of their cases have counsel appointed for them only at the trial court after initially employing their own counsel at the preliminary hearing. The dual court system encourages such one-stage representation by private lawyers by facilitating their withdrawal between stages of a case. Second, indigents may also have different private lawyers appointed to represent them at different stages because judges, interested in efficiently running their court calls, desire that particular lawyers represent indigents in their courtrooms. Finally, defender offices often assign different lawyers to different stages as a result of both the demands by judges that defenders be assigned exclusively to their courtrooms and the costs of delivering continuous legal services in a tiered judicial system. For indigent defendants the sequential system of representation may adversely affect the quality of case preparation and undermine a sound attorney-client relationship.     

论羁押审查方式

羁押是法院作出生效有罪判决之前剥夺人身自由最严重的措施,关涉犯罪嫌疑人、被告人的基本权利,且与无罪推定原则存在高度紧张关系。因此,世界各国和地区大都对羁押采取严格的程序控制。羁押审查方式是羁押审查程序的基本构成要素。域外一般都采取听审或者讯问的方式进行羁押审查。我国的羁押审查采取何种形式,法律没有明确规定。最高人民检察院要求检察机关审查批准逮捕应当讯问嫌疑人,并听取辩护人的意见,但缺少诉讼化的程序保障,实践中难以切实维护犯罪嫌疑人的合法权益,保证羁押决定的程序公正。因此,应当借鉴域外的立法经验,结合我国的实际情况,从立法上明确我国的羁押审查应采取不公开的听审方式,并建立审查机关、申请机关和嫌疑人及其辩护人三方参与的羁押审查程序。     

Is It Legal Representation or Clients? : An Empirical Testing of Clients’ Performance and Their Legal Representation in Tulsa County Drug and DUI Programs

The importance of legal representation to a criminal defendant is widely accepted, but the quality of government-provided counsels (particularly public defenders) has continuously been questioned. Based on data from Tulsa County DUI and Drug programs in Oklahoma, the authors tested the impact of legal representation (public defender versus private counsel) on clients?? performance in program, measured by plea terms and program outcome. Initial bivariate analyses showed disparate effect of legal representation, as clients represented by private counsels received better plea terms and fared better in program outcome. This effect, however, disappeared once other variables were controlled. Instead, factors closely related to the clients themselves (e.g., demographic features and their criminal behaviors) significantly impacted their program performance.     

犯罪嫌疑人的确认

犯罪嫌疑人是刑事诉讼中的诉讼参与人 ,对其进行正确认定既能保障无辜的人不受追诉 ,同时又有利于确实保障被认定为犯罪嫌疑人的诉讼权利的及时行使。分析犯罪嫌疑人与被告人、初查时的犯罪嫌疑对象之间的界限 ,旨在解决确认一个人为犯罪嫌疑人需要具备哪些证据 ,这些证据应该达到一个什么样的标准 ,以及确认犯罪嫌疑人这一法律身份的起始时间和程序等问题 ,从而为正确认定犯罪嫌疑人提供一个具有可操作性的标准和规则     

定罪概念及原则的刑事一体化思考

从刑事一体化的视角将定罪作为动态的司法活动来考察 ,定罪是指国家专门机关依法定程序与证据 ,根据刑法 ,确定犯罪嫌疑人、被告人的行为是否符合刑法规定的犯罪构成的活动。定罪的主体是国家专门机关 ;定罪的对象是犯罪嫌疑人、被告人的行为 ;定罪的根据包括事实根据及法律根据 ;定罪的内容与目标是确定犯罪嫌疑人、被告人的行为是否符合刑法规定的犯罪构成 ;定罪既是司法人员的主观认识过程 ,又充满了法律价值的权衡与选择。定罪的原则包括程序法原则与实体法原则两大组成部分 ,定罪的程序法原则为程序法定原则、证据裁判原则、无罪推定原则 ;定罪的实体法原则包括罪之法定原则、主客观相统一原则、必要性原则。