Ten years in the life of an expert witness

American Courts are experiencing increased use of expert testimony based upon psychological research. Ten years ago, I began testifying about my own research on human perception, recollection, and eyewitness accounts. The growing acceptance of this testimony percipitated a backlash from some psychologists. This essay describes the chronology of these events, and their relevance for the more general use of psychological research as evidence in court.     

Ten years after Daubert: the status of the states

This paper examines how many of the states have changed their respective scientific-evidence admissibility standards under the influence of the United States Supreme Court's 1993 Daubert decision. The authors offer a definition of what constitutes a Daubert state, and using this definition classify the fifty states into three categories. These are: Frye states (15 states, 10 with codified evidence rules patterned after the Federal Rules of Evidence (FRE)); Daubert states (26 states, 24 with FRE-based rules), and non-Frye/non-Daubert states (9 states, 7 with FRE-based rules). The authors discuss how the reliability requirement varies among the non-Frye states, and examine how particular types of evidence have fared in the Daubert era. Finally, the authors offer some predictions for the scientific evidence trends of the states.     

The wonderful world of patent drafting

To anyone involved in patent litigation, it is clear that thetask of drafting is not for the faint-hearted. Those who draftpatents are acutely aware of the pitfalls which await theirclients following even a mere slip of the pen. This commentator,who is daily involved in the pre-filing review and prosecutionof patents and, alongside clients, assisting lawyers in manycountries with patent litigation,     

Garner plus five years: An examination of Supreme Court intervention into police discretion and legislative prerogatives

This paper examines legislative changes, state attorney general activities, and early federal case law following the 1985 United States Supreme Court holding inTennessee v. Gamer that laws authorizing police use of deadly force to apprehend fleeing, unarmed, non-violent felony suspects violated the Fourth Amendment. Only four of the 23 states apparently affected by this decision have brought their statutes into line with it. Only two of the attorneys general in the remaining 19 states have advised police of the decision. These findings indicate that control of police discretion in use of deadly force has been assumed by police administrators, and that criminal law definitions and the legal advice of attorneys general are largely irrelevant to effective control of police behavior     

Ten years of "body packers" in New York City: 50 deaths

We reviewed all 50 body packer deaths in New York City from 1990 to 2001. The majority (37/50) of deaths were caused by acute intoxications due to open or leaking drug packets in the gastrointestinal tract. The number of packets recovered ranged from 1 to 111 (average 46). The weight of the combined packets ranged from 9.4 to 1,200 g (average of 377). The age ranged from 19 to 57 years (mean 37.1). The decedents were: 82% male, 66% Hispanic, 24% Black, and 10% White. The manners of death were 47 accidents, 1 homicide, 1 natural, and 1 undetermined. The causes of death included 42 acute intoxications, 5 intestinal obstructions/bowel perforations, 1 gunshot wound, 1 intracerebral hemorrhage due to hypertensive disease, and 1 undetermined. Of the 50 decedents, 42 were transporting opiates, 4 cocaine, and 4 both opiates and cocaine. There were 9 deaths from 1990-1995 and 41 from 1996-2001. Of the 41 deaths between 1996 and 2001, only 6 involved cocaine. In New York City there has been an increase in body packer deaths from the early 1990s to the late 1990s. Along with this increase is a marked predominance of opiate body packer deaths with few cocaine deaths.     

Discriminatory decision making at the legislative level

This paper is an analysis of the Comprehensive Drug Abuse Prevention and Control Act of 1970. Consistent with value-conflict perspectives, previous research on the social origins of drug legislation suggests that coercive laws occur when the behavior of minority and other subordinate groups become threatening. Liberalizing drug legislation is enacted when the interests of dominant groups seem juxtaposed to existing punitive legislation. The present analysis explores the process of legislative decision making when both subordinateand superordinate groups engage in drug-related behaviors which run counter to dominant norms and values. To do so, a detailed analysis of the congressional committee hearings and floor debates which preceded enactment of the 1970 Act was conducted. This analysis revealed that Congress did not pass a strictly coercive drug control policy at the risk of stigmatizing superordinate groups. Nor did it choose to liberalize drug penalties across the board. Congress perceived that strictly liberal policies might undermine both the instrumental goal of reducing illicit drug activity, and the symbolic goal of expressing general societal disapproval of illicit drug use. Instead, the legislation that emerged from congressional debates contained both liberal and coercive provisions reflecting the requirements of dealing with two targeted populations: young middle and upper class white drug users who became identified as victims of drug traffickers; and large-scale and professional drug dealers who became identified as enemy deviants—the true source and symbol of the drug problem. Liberal, and essentially discriminatory, provisions permitted the protection of the former from stigmatization as criminal felons. Coercive, but apparently nondiscriminatory, provisions provided the threat and potential for severe punishment of the latter. The discriminatory features of the 1970 Act are identified and explicated. And, the implications of the Act's provisions for race- or class-based decisions in the application of sanctions are discussed.     

浅析腐败犯罪刑事追诉程序的立法完善

2003年10月31日,第58届联合国大会审议通过了《联合国反腐败公约》(以下简称《公约)》。我国参加了《公约》的起草和谈判的全过程,并于2003年12月10日签署了该《公约》。作为《公约》的缔约国,目前的当务之急是认真研究《公约》的内容,迎接《公约》给我国反腐败法律机制所带来的挑战,为《公约》的实施及时做好必要的法律准备。     

司法鉴定立法权属初探

司法鉴定立法权属如何界定,是直接影响司法鉴定立法的关键问题.文章从现行法津规定、法学理论、司法实践等角度对司法鉴定的实质进行了分析,提出司法鉴定除启动、采信属诉讼制度外,鉴定活动、鉴定机构、鉴定人的管理就是行政职能范畴,地方可以通过立法对面向社会服务司法鉴定进行规范.     

The legislative choice on the right of priority

The right of priority, or preemption, is the security interest of priority claim enjoyed by the creditor to the ordinary or particular properties of the debtor provided directly by law. It can be distinguished clearly from similar rights and can be stipulated in the Law on Property Rights. The right of priority falls into the category of security interests. Though it differs from the guaranteed security interest or lien, the right of priority, taking the property as its object, the guarantee of the performance of particular creditor’s right as its aims, possesses the basic characteristics of the security interests. Thus, such a rule shall be stipulated in the Law of Property Right. The right of priority is instituted directly by the law in consideration of the social legislative policies. Such considerations are necessary to the realization of social fairness and justice and the protection of public interests and social welfare. From the perspective of legislative polices and techniques, it is more reasonable to institute the right of priority in the Law of Property Right than resort to other replacing rules in order to secure particular creditor’s right. Instituting the right of priority in legislation will not increase the risk of deals; on the contrary, it will help the parties concerned foresee risks. Therefore, it helps safeguard the safety of the deals.     

中国《航运法》制定中几个基本理论问题之研究

针对中国正在制定的《航运法》,运用法理学和经济法的基本理论,结合航运经济和航运市场的特点,分析和探讨《航运法》的基本理论问题,包括《航运法》的调整对象、定义、地位、与其他法律的关系、立法指导思想、立法目的和立法基本原则。     

时运渐具、时机未成：《海洋基本法》热的冷思考

近年来制定《海洋基本法》的呼声渐隆。综合各方面情况而言,《海洋基本法》的立法内容尚未形成共识,改进现行海洋法体系并不必然需要《海洋基本法》,提高海洋法律意识及促进海洋法律研究与《海洋基本法》亦无直接关系,而且,制定《海洋基本法》并非世界海洋法发展潮流。因此,《海洋基本法》立法时机难言成熟。     

Sterilisation of the intellectually disabled: the need for legislative reform

This article examines the recent decision of the Full Court of the Family Court in Re Marion dealing with the question of sterilisation of intellectually disabled minors and in particular, the question of whether a parent or guardian can lawfully consent to a sterilisation operation upon an intellectually disabled minor or whether court approval is required before such an operation can lawfully be performed. The article goes on to critically examine legislation in force in various Australian jurisdictions concerning involuntary sterilisations and substituted consent as well as legislative reforms that have been proposed in this area.     

论强迫性商业邮件及其立法规制

互联网的快速发展和广泛应用,尤其是网站提供的电子邮箱服务,在便利人们信息交流、传播的同时,也滋生了诸多问题,其中Spam问题尤为显著。由于各国在立法和司法中对Spam的理解不一,各国对其立法的不协调性等原因导致无法统一全球共同治理的步调,而成为困扰人类的全球性问题。界定合理的概念,用“强迫性商业邮件”予以替代,赋予确定统一的内涵,在此前提下确立以“立法规制为主,技术限制为辅”的综合治理方式,是减少进而达到消除的科学路径。