论立案与侦查的关系——关于初查的法律思考

我国侦查部门一直以来是采用先立案后侦查的提起侦查方式。然而,执法实践证明,一切侦查活动都必须在立案之后才能进行是不可能的。立案不能作为提起侦查的条件,提起侦查的条件应概括为侦查主体获得犯罪线索之后,只要认为有可能存在犯罪事实时,就可以提起侦查。立案则可以在侦查的任何一个阶段,它标志着要追究犯罪嫌疑人的刑事责任。     

论职务犯罪初查的归位

检察机关将职务犯罪“主观立案条件”错解为“客观立案条件”，为满足“客观立案条件”的要求，最高人民检察院将职务犯罪初查定位为立案前的审查和调查，这实际上属于越权立法，而初查中有局限性的调查手段，导致变相地放纵了职务犯罪。职务犯罪初查的本质是侦查，有必要于立案之后先开展初步侦查，待获取一定证据之后再开展正式侦查。     

在迷失中探寻路径的回归——职务犯罪初查中适用强制到案措施的思考

对职务犯罪被调查对象采取强制到案措施十分必要，但是相关法律条文却对此作出了禁止性规定。职务犯罪“客观立案条件”思想的存在衍生了职务犯罪初查无法克服的缺陷。检察机关应树立正确的“主观立案条件”思想，将职务犯罪初查定位为立案之后的初步侦查，在初步侦查中可以对被查对象采取强制到案措施。应立足于职务犯罪侦查的法律监督属性，树立“职务犯罪侦查权威观”，检察机关在初步侦查中对证人也可以采取强制到案措施。     

在迷失中探寻路径的回归——职务犯罪初查中适用强制到案措施的思考

从职务犯罪初查工作的实践出发，对被调查对象采取强制到案措施十分必要．但是相关法律条文却对此作出了禁止性规定。检察机关解决实践需求与法律禁止之间冲突的路径皆行不通．根本原因在于职务犯罪“客观立案条件”思想的存在衍生了职务犯罪初查无法克服的缺陷。检察机关应树立正确的“主观立案条件”思想．将职务犯罪初查定位为立案之后的初步侦查．检察机关在初步侦查中可以对被查对象采取强制到案措施。应立足于职务犯罪侦查的法律监督属性．针对职务犯罪的现实危害性，树立“职务犯罪侦查权威观”．检察机关在初步侦查中对证人也可以采取强制到案措施。     

刑事诉讼程序的启动——对侦查立案制度存在价值的质疑

从我国《刑事诉讼法》的结构体例上看,我国的刑事诉讼(公诉案件)大致包括这样几个程序:立案、侦查、起诉、审判、执行,且各程序之间呈一种层级递进状态。侦查立案是《刑事诉讼法》规定的整个刑事诉讼活动的第一级程序,是刑事诉讼程序启动的标志和基础,在我国的刑事诉讼程序中具有重要的地位。在法条结构上《刑事诉讼法》以专节的形式对侦查立案进行了详尽的规定,包括立案的条件、管辖、程序、监督等内容。我国诉讼法理论学界认为,立案是每个刑事案件都必须经过的法定程序。只有经过立案,其他诉讼阶段才能依次进行,公安司法机关进行侦查、起诉、审判活动才有法律依据,才能产生法律效力。对此,笔者不完全认同,认为将立案作为刑事诉讼程序启动的标志和基础使侦查机关诸多的立案前行为无法得到合理的解释。综观世界各国有关刑事诉讼立法,除前苏联,东欧和蒙古等国与我国一样,将提起刑事诉讼即立     

自侦经济案件 立案标准再认识

一、在执行立案标准上的偏颇立案,是指人民检察院按刑事案件管辖范围,对控告、检举和自首的材料进行审查,认为有犯罪事实并需要追究刑事责任时,依照法律规定,交付侦查的一种诉讼活动,即提起刑事案件。立案是     

对自侦案件立案的思考

自侦案件的立案是检察机关发现和认为有犯罪事实和犯罪嫌疑人，需要追究刑事责任时，决定作为刑事案件侦查的一项诉讼活动，是刑事诉讼的第一个环节。能否正确把握立案条件，关系到案件质量和案件侦查的成败。一、立案条件的把握长期以来，受立案指标等因素牵制，侦查机关...     

对立案与侦查关系的再认识

刑事诉讼法规定了具有独立诉讼地位的立案程序,并将其作为侦查程序启动的一个前置程序.然而,由于现行的立案条件过高,而侦查机关又缺乏达到该"条件"所必须的"合法"手段,由此不仅严重影响了对犯罪的有效追诉,也容易滋生"立案不实"等问题.而且,它也根本无法有效防范侦查权的滥用.在刑事诉讼法的再修改这一大背景之下,需要突破长期以来对"立案是侦查的前提"这一不恰当的认识,并必须承认,不仅立案之前需要进行必要的侦查活动,立案本身实际上也只是侦查的一个有机组成部分.     

司法信箱

对于不需要侦查的轻伤案件,检察机关做出不起诉决定,被害人可否另行向法院自诉?对此有两种意见:一种意见认为,被害人可以提起自诉,理由是不需要侦查的轻伤案件,属于人民法院直接立案受理范围。检察机关不能作出有关起诉或不起诉     

初查若干法律问题研究

初查是在立案之前对案件线索进行初步的筛选和过滤,以判断是否达到立案条件,并为正式侦查作准备的调查活动,它已成为刑事办案中不可或缺的前置程序.初查属于任意侦查的范畴,因此,"法无规定得行使,法有规定更得行使";立案仅是强制侦查的启动要件,并非任意侦查的启动要件,因此初查可以先于立案而进行.在初查中,可以采取询问、同意搜查、同意扣押和调取证据材料等各种任意侦查措施,但不得采用可能强制性干预当事人重要权益的侦查手段,也不得在初查中采用行政调查手段.基于初查程序的合法性,初查中所获的证据,不论是实物证据,还是言词证据,均自始即具有证据能力,无须经过转化.     

THE IDENTIFICATION OF "CAREER CRIMINALS" FROM "CHRONIC OFFENDERS" IN A COHORT

The findings by Wolfgang et al. that 6.3% of their cohort had 52% of the recorded police contacts is well known. This retrospective analysis has been used to suggest that imprisoning these "chronic" offenders will avert a correspondingly disproportionate amount of crime. On prospective analysis of the arrest histories, however, the recidivism probability is found to be constant after the third contact, suggesting that prior record has little predictive value regarding future criminality. These observations raise important questions about the benefits of "career criminal" programs and their incapacitative effects.     

"Sentinel effect" shows fraud control effort works

The author analyzes the fraud and abuse track record of his agency in the past years, and discuss why that effort has had beneficial results for the healthcare industry and the federal fisc. The benefits of this enforcement effort flow directly from the specific enforcement actions, and indirectly from the response of others in the industry to the standards set forth in those actions. Mr. Thornton disputes assertions of some in the industry that the enforcement efforts are unfair, arbitrary, or draconian. Rather, they are an appropriate response to a documented problem with which the government is justifiably concerned.     

The "Middle Ground" Perspective on the Expropriation of Indian Lands

In How the Indians Lost Their Land, Law and Power on the Frontier (2005), Stuart Banner weaves together a perceptive interpretation of the historical record, with a novel economic analysis of conflicts, to create a sophisticated narrative of the process by which European colonists took control of the lands that now comprise the United States. Banner's view of expropriation falls somewhere between the parsimony of an economic model and the richness of a traditional historical account. It forms part of a growing trend to focus on finding positive facts about the taking of Indian lands, as opposed to making normative judgments.     

"Theory of Mind" and Executive Functioning in Forensic Patients with Schizophrenia

Abstract:  Previous studies in forensic patients with schizophrenia have shown that delinquent patients may outperform nondelinquent patients with regards to "theory of mind" (ToM). Findings were, however, confounded by a lack of control for executive functioning. We examined 33 forensic patients with schizophrenia regarding ToM, intelligence, executive functioning, and psychopathology. Results were compared with a nonforensic schizophrenia sample and a group of healthy controls. Both patient groups performed more poorly on most measures compared with controls. Forensic and nonforensic patients did not differ in task performance. In the forensic group ToM correlated inversely with "excitement" and cognitive symptoms. When "excitement" was covaried out, forensic patients outperformed nonforensic patients with regards to ToM. This study supports the hypothesis that schizophrenic patients with a criminal record are equally impaired in their ability to infer mental states compared with nonforensic patients, but for different reasons associated with a divergent psychopathological profile.     

The dynamic development of the muzzle imprint by contact gunshot: high-speed documentation utilizing the "skin-skull-brain model"

Many contact gunshots produce a muzzle imprint in the skin of the victim. Different mechanisms have been discussed in literature as being responsible for the creation of the muzzle imprint. Experimenting upon the synthetic non biological skin-skull-brain model, our goal was to document and study the creation of the muzzle imprint with the aid of high-speed photography. In our experiments, we could document with our high-speed photography (at exposure rates in the range of nanoseconds) the bulging, the pressing against the muzzle, and the splitting of the artificial skin. Furthermore, it was possible to photographically record the back pattern of synthetic tissue particles. And, the soot and gunpowder cavity could be reproduced experimentally. In conclusion the experiments completed with the skin-skull-brain model, using high-speed photography for documentation, show the promising possibilities of experimental ballistics with body models.     

How to overcome the cost of a criminal record for getting hired

Many theories emphasize how employment is protective against criminal recidivism, yet a criminal record is a major barrier for getting hired. We asked 591 managers to make hypothetical hiring decisions between two applicants whose key difference was the presence or absence of a criminal conviction. In addition, we randomly manipulated the education, references, wage, or experience of the applicant with the criminal record to identify which manipulations can offset the cost of the record on an applicant's probability of being selected. We found that, when credentials were the same, the applicant with a criminal record was unlikely to be hired. That applicant, however, could become likely to be hired (i.e., the likelihood crossed 50 percent) by having at least 1 year of relevant experience, a GED or a college degree, or references from a former employer or a professor. Incomplete degrees, references from criminal justice professionals, or wage discounts did not make the applicant with the record likely to be hired. Findings confirm that a criminal record carries a high employability cost but also indicate that this cost can be superseded by specific credentials that signal an applicant's reliability, which can be provided by existing programs and institutions.     

Towards a "crime pollen calendar" - pollen analysis on corpses throughout one year

A palynological study was carried out on 28 corpses brought in one year (June 2003-May 2004) to the morgue of the Institute of Legal Medicine of Parma (Northern Italy). This preliminary research focuses on the date of death, which was known for all corpses examined. Pollen sampling and analyses were made with the first aim of comparing the pollen grains found on corpses with those diffused in the atmosphere in the region in the same season as the known date of death. Eyebrows, hair-line near the forehead, facial skin and nasal cavities were sampled. Most of the corpses had trapped pollen grains, with the exception of two December corpses. All pollen grains were found with cytoplasm and in a good state of preservation. In this way, a series of reference data was collected for the area where the deaths occurred, and we examined whether pollen grains on corpses could be an index of the season of death. To verify this hypothesis, the pollen analyses were compared with data reported in the airborne pollen calendars of Parma and the region around. Pollen calendars record pollen types and their concentrations in the air, month by month. The quantity of pollen recorded on corpses did not prove to be directly related to the quantity of pollen in the air. But qualitatively, many pollen types which are seasonal markers were found on corpses. Main corpse/air discrepancies were also observed due to the great influence that the local environmental conditions of the death scene have in determining the pollen trapped by a corpse. Qualitative plus quantitative pollen data from corpses appeared helpful in indicating the season of death. A preliminary sketch of a "crime pollen calendar" in a synthetic graphic form was made by grouping the corpse pollen records into three main seasons: A, winter/spring; B, spring/summer; C, summer/autumn. Trends match the general seasonal trend of pollen types in the air.     

Evaluating the impact of prior record on judges' sentencing decisions: A seven-city comparison

There is much agreement among social scientists that the prior criminal records of defendants are important in explaining the sentences given by judges. That being so, it is crucial to control for prior record when examining sentence discrepancies, such as between black and white defendants. However, when examining sentencing patterns, a remarkable variety of indicators has been used to measure prior record. It is very likely that different measures of prior record have different relationships to sentencing. Only fragmentary evidence of these differential relationships has been offered, however. We will add to our knowledge about the efficacy of different measures of prior record by examining numerous measures and analyzing their relationship to sentences levied on black and white defendants. Data from seven cities will be used in the analysis in order to try to understand the variation that might exist in these relationships.     

Examining the “virtual”; publication as a “newspaper of record”;

Newspapers as a record of the day's events and chronicle for public business have been part of the United States' unofficial governing system for several hundred years. The expression “newspaper of record”; has specific meaning and import for librarians, historians and lawyers. This article compares the statutory characteristics of “newspapers of record”; with the qualities of modern electronic newspapers delivered by on‐line delivery services. The article concludes that the definitions of “newspapers of record”; used by librarians, historians and statutes may not be met yet by electronic editions of newspapers. Thus, on‐line newspapers may not be able to carry legal notices.     

NIBRS Data Available for Secondary Analysis

The NIBRS data program currently being implemented by the FBI and local lawenforcement agencies has by now produced sufficient data for archiving anddistribution. Although not representative of crime in the United States, existing NIBRS data can be used to investigate the nature of crimesknown to the police compared to the traditional UCR data. The Bureau ofJustice Statistics has requested the National Archive of Criminal JusticeData to store and make NIBRS data available to interested users. The datafrom 1996 will shortly be available from the NACJD web site. The 1996 datacontain almost 6.5 million records and the FBI's full file includes about 361 Mbytes of data. The data have been disaggregated from the FBI's complex single file into 11 segment levels or record types. This makes theindividual record types easier and faster to analyze than using the fullfile, which more closely resembles a relational database than a hierarchicalfile. However, splitting apart the record types requires that specialprocedures be used to merge files of different record types, which would benecessary if a user were interested in analyzing variables appearing in morethan one record type (e.g., comparing offender and victim ages). These procedures are described, and a test comparing the time to run a simple frequencycount using the full file against the merged files shows that using themerged files is considerably more efficient. Also discussed are some futuredevelopments to facilitate the analysis of NIBRS data.