庭前会议：从法理到实证的考察

为了促进集中审理的实现,2012年刑事诉讼法增设了庭前会议程序。从规范分析的视角可见,该程序主要处理与审判相关的程序性争议,具有证据开示、非法证据排除、争点整理、沟通说服、程序分流和调解和解等六项功能。庭前会议既为集中审理做准备,又间接过滤不当起诉,以保障人权。通过样本分析可见,某些地方的司法机关将庭前会议中的证据异议等同于法庭质证,赋予庭前会议以裁决效力,这反映出司法实务部门过度追求效率的倾向。庭前会议制度的生长,应当在程序法定原则之下,既尊重庭审的中心地位,保持庭前会议与庭审的平衡,又充分释放其功能和影响,实现效率的最大化。     

Referring Discovery Tasks to Special Masters: Is Rule 53 a Source of Authority and Restrictions?

The author concludes that federal judges who want to appoint special masters to perform duties related to civil discovery may not look to the Federal Rules of Civil Procedure for authority to do so. By examining the historical backdrop against which the original rules were written, as well as the minutes of the proceedings of the first Advisory Committee, Brazil demonstrates that neither Rule 53 nor any other rule was designed to grant federal trial courts power to assign pretrial discovery tasks to special masters. In fact, the evidence the author marshalls shows that the original Advisory Committee explicitly rejected the idea that the Federal Rules should authorize even a limited role for special masters in connection with discovery depositions.
Finding no authority for such appointments in the Federal Rules, the author turns to the judiciary's "inherent power." Drawing principles from the seminal Supreme Court opinion in this area, Brazil infers that in some circumstances the courts' inherent authority is a sufficient premise for delegating discovery tasks to special masters. Noting that the reported cases contain no clear guidelines about when or how federal judges should use this authority in making pretrial appointments, Brazil concludes by calling for a new federal rule covering this important subject.     

Improving Judicial Controls over the Pretrial Development of Civil Actions: Model Rules for Case Management and Sanctions

This article follows two earlier pieces in which the author reported the findings of a pilot empirical exploration of how well the discovery system in civil litigation is functioning. Brazil begins by focusing on the principal problems his field studies exposed and by suggesting a theory of discovery reform which responds to the nature and sources of those problems. His principal thesis is that too often neither judges nor attorneys assume sufficient responsibility for the discovery system as a system. Most of this article is devoted to two major proposals that are designed to promote in the judiciary and in counsel a sense of responsibility for the pretrial system and to equip the judiciary to convert that sense into action. Brazil proposes a comprehensive model rule that courts could use to manage the pretrial development of civil actions. He then uses his model as a background for suggesting modifications to and extensions of the proposed revision of Rule 16 that the Advisory Committee on Civil Rules has circulated for comment. He also offers a critique of current provisions for sanctions and advances an alternative sanctions rule that acknowledges a right to compensation for damages caused by an opponent's breach of pretrial obligations and that reduces the scope of judicial discretion to refuse to impose compensatory awards.     

Does GPS supervision of intimate partner violence defendants reduce pretrial misconduct? Evidence from a quasi-experimental study

Objectives

This research examines the effect global positioning system (GPS) technology supervision has on pretrial misconduct for defendants facing intimate partner violence charges.

Methods

Drawing on data from one pretrial services division, a retrospective quasi-experimental design was constructed to examine failure to appear to court, failure to appear to meetings with pretrial services, and rearrest outcomes between defendants ordered to pretrial GPS supervision and a comparison group of defendants ordered to pretrial supervision without the use of monitoring technology. Cox regression models were used to assess differences between quasi-experimental conditions. To enhance internal validity and mitigate model dependence, we utilized and compared results across four counterfactual comparison groups (propensity score matching, Mahalanobis distance matching, inverse probability of treatment weighting, and marginal mean weighting through stratification).

Results

Pretrial GPS supervision was no more or less effective than traditional, non-technology based pretrial supervision in reducing the risk of failure to appear to court or the risk of rearrest. GPS supervision did reduce the risk of failing to appear to meetings with pretrial services staff.

Conclusions

The results suggest that GPS supervision may hold untapped case management benefits for pretrial probation officers, a pragmatic focus that may be overshadowed by efforts to mitigate the risk of pretrial misconduct. Further, the results contribute to ongoing discussions on bail reform, pretrial practice, and the movement to reduce local jail populations. Although the cost savings are not entirely clear, relatively higher risk defendants can be managed in the community and produce outcomes that are comparable to other defendants. The results also call into question the ability of matching procedures to construct appropriate counterfactuals in an era where risk assessment informs criminal justice decision-making. Weighting techniques outperformed matching strategies.

     

A survival model of pretrial failure

This paper examines the likelihood of rearrest during the pretrial period with a model that depends on both time elapsed since release and on individual and case characteristics. Using data on a sample of male arrestees released on recognizance in the District of Columbia in 1984, we apply a survival or hazard model to the problem of predicting pretrial rearrest. We are particularly interested in whether drug use, as measured by urinalysis at arrest, is predictive of pretrial rearrest and its timing. Results show, for example, that drug use or a charge for larceny is associated with high risk levels in the period immediately following release. In our data, the number of prior convictions exerts a strong effect on rearrest risk throughout the pretrial period, but the initial high risk associated with being on probation or parole or having pending charges decreases rapidly over the course of a year at risk.     

庭前会议的功能定位与实践反思--以B市40个刑事案件为样本

按照刑事诉讼法和相关规范性文件的设定,刑事庭前会议主要解决程序性争议,基本功能是归纳控辩争议焦点,确定法庭调查范围;拓展功能衍生为推动案件繁简分流,规范撤回起诉程序,协商确定审判方式。通过对B市40个刑事案件的实证分析发现,庭前会议解决程序性争议的功能有限,庭前会议与庭审程序的关系不明,"大庭前会议、小庭审程序"现象值得警惕,制度设计与实践操作存在一定的紧张关系。未来要谨防庭前会议替代、削弱正式庭审,避免辩护权弱化、庭审虚化等不良倾向,回归庭前会议功能,推动庭审实质化。     

Pretrial Detention in India: an Examination of the Causes and Possible Solutions

The average rate of pretrial detention in India is 20 per 100,000 of the general population, which is less than half the global average. However, as of 2013, the number of pretrial detainees as a proportion of all prisoners is 67.6 %—over twice the global average. This article seeks to understand the causes of such a high proportion of pretrial detention. Answering this question will help evaluate the present governmental response to the problem of pretrial detention. The article begins by examining the laws and practice of pretrial detention in India and then tries to explain the disjuncture between the two by analysing, first, the role of various functionaries, namely the police, prosecutors, judiciary and prison officials; second, the profile of the pretrial detainees and their (in)ability to post bail and, finally, the (in)effectiveness of the existing legal aid system. It posits that while partly a result of relatively low overall convict populations, the high incidence of corruption; shortage of human, physical and monetary resources and governance and lack of coordination contribute to the high number of pretrial detainees in the prison population in India. It then concludes by describing existing solutions and referencing the practice in Pakistan and Bangladesh, which face similar problems and have similar laws and institutional structures.     

THE CONCEPTUALIZATION OF DISCRIMINATION IN THE JUVENILE JUSTICE PROCESS: THE IMPACT OF ADMINISTRATIVE FACTORS AND SCREENING DECISIONS ON JUVENILE COURT DISPOSITIONS

Research on race, sex, and social class discrimination in the juvenile justice process has yielded mixed results. These conflicting findings have been attributed to the use of diverse research strategies and various methodological shortcomings. There are, however, two potentially important issues that have not been previously addressed: the need to examine the juvenile justice system as a process, rather than as a series of separate and unrelated decision points, and the failure to control for the impact of administrative factors such as pretrial detention. The purpose of the research reported here is to examine the impact of race, sex, and social class on juvenile court dispositions while controlling for pretrial detention and appropriate legal factors. The analytical strategy employed permits an examination of the impact of these factors over three stages of the juvenile justice process: referral, adjudication, and disposition.
Findings indicate that while legal factors and pretrial detention decline in importance as predictors of disposition as one moves from an examination of all referred to adjudicated youth, race and social class become more important. These results are discussed in terms of their methodological significance and their implications for the conceptualization of discrimination in the juvenile justice process.     

Special Masters in the Pretrial Development of Big Cases: Potential and Problems

This article explores the advantages and disadvantages of referring discovery matters in complex cases to special masters. In the first section Brazil explains how the results of his earlier research into the discovery system exposed problems that the appointment of masters might help solve. He then describes the kinds of pretrial tasks and roles federal courts have assigned to special masters and the ways that using a master can expedite and rationalize the case development process. In the second half of the article, the author assesses the major objections to delegating judicial responsibilities to masters and the problems that frequent appointments might cause. Along the way, Brazil offers practical suggestions to judges about how to avoid potential difficulties and how to maximize the effectiveness of this increasingly popular procedure.     

A Meta-Analytic Review of Pretrial Research: Risk Assessment,Bond Type,and Interventions

This study makes an attempt to aggregate what we currently know about pretrial decision making and jurisdictions’ responses to the pretrial population. This meta-analysis began with an exhaustive search for pretrial research which may have revealed the most prominent finding—that being a distinct lack of research that utilizes any amount of methodological rigor. The findings of this meta-analysis hold several policy implications for the field of pretrial research and practice. First, future research studies in the field of pretrial need to focus on methodological quality and rigor. Second, it appears that some conditions of release may be related to a defendant’s likelihood of failure to appear. Third, it appears that none of the conditions of release reviewed in this study are related to a defendant’s likelihood of re-arrest while on pretrial release. Finally, it is recommended that the field of pretrial develop a sound research agenda and execute that plan with rigor, transparency, and an approach that favors the continued cumulation of knowledge. Strong conclusions about the impact of pretrial release conditions cannot be made as the quality of the pretrial research, overall, is weak at best.     

两大法系行政诉讼审前程序模式比较及对我国的启示——以美国和德国为例

随着我国审判方式改革的推进,行政审判实践中出现了庭前证据交换等审前程序改革的有益探索。但是由于我国行政诉讼审前程序规则的不完善,审前准备工作存在诸多问题,这些问题的存在提示着我国审前准备工作程序化的必要性。本文在比较分析了德国和美国的审前程序后,对我国审前程序模式选择提出了建议。     

Biasing effects of pretrial publicity on judicial decisions

In a four-factor design, the effects on judicial decisions of sample (102 students versus 100 nonstudents), sex of subject, pretrial publicity (damaging and relevant versus irrelevant), and judge's instructions (warning to disregard pretrial publicity versus a neutral statement) were examined. Results indicated that sample and judge's instructions had no effects on verdicts, recommendations for sentencing, or ratings of the strength of the prosecution and defenses' cases. Pretrial publicity, however, exerted a strong influence on verdicts and ratings of the prosecution's case, particularly among females. It is suggested that pretrial publicity may serve to affect evaluations of the evidence presented at the trial.     

论构建我国民事诉讼中的自足性审前程序——审前程序和庭审程序并立的改革观

传统的审前程序是为庭审作准备而存在的 ,其工具性价值成为惟一的功利追求 ,审前程序的功能因此而受到限制。这种功能观也制约了审前程序的模式设置 ,我国审前程序的过分职权化的倾向是与审前程序功能单一化期待有密切联系 ,其结果便造成了审前程序的可有可无及其机能萎缩。我国民事诉讼程序结构应当改变绝对的庭审中心主义 ,要彰显审前程序所具有的化解纠纷和分流讼源的功能 ,将法院实体审判权前移 ,使之贯穿始终 ,只要案件处在成熟的可审判状态 ,法院均应相机行使实体审判权 ,从而化解纠纷     

Bail decision making and pretrial detention

Bail practices became the target of reform efforts during the 1960's and 1970's not only because of issues concerning economic bias against indigent defendants but also because of criticism of the bail decision itself. Questions were raised about the appropriate uses of bail (e.g., to prevent flight or pretrial crime, or to inflict pretrial punishment), the rationality of the criteria relied on by judges in deciding bail, and the discretionary allocation of pretrial detention through high cash bail. In this article, case law and statutes governing bail practices in the United States are reviewed first to characterize the ambiguous legal framework from within which bail judges must operate. Then bail decisions in a large urban jurisdiction are analyzed as a case study to discover the factors most influential in determining pretrial release options. It is inferred that, even after years of reform, community-ties measures do not play a major role in the bail decision or the determination of pretrial custody; rather, the nature of the charged offense appears most influential. A finding of special significance is that a large proportion of these decisions could not be explained systematically (i.e., a large share of variance remained unexplained). The article concludes by suggesting a guidelines approach to bail that could narrow disparity in bail options and the use of detention, enhance the rationality of the decision process and contribute to more equitable pretrial practices.Revised version of a paper presented at the annual meeting of the American Psychological Association, Toronto, August, 1978. This research was supported, in part, by a grant from the Statistics Division of the Law Enforcement Assistance Administration to the Criminal Justice Research Center. Points of view or opinions stated are those of the authors and do not necessarily represent the official position of policies of the U.S. Department of Justice.     

Assessing Pretrial Publicity Effects: Integrating Content Analytic Results

When a case has received pretrial publicity which has the capacity to bias potential jurors in the trial venue, a change of venue is one means of attempting to ensure that the defendant receives a fair trial. Content analysis of the pretrial publicity surrounding a case can provide the court with important information to consider when determining whether prejudice in the relevant community is too great for the defendant to receive a fair trial. This paper presents an approach to content analysis of pretrial publicity that draws upon both legal commentary and past empirical social science research. It is a systematic approach that could be employed by both the prosecution and defense when presenting arguments to the court about whether a change of venue should be granted. Information gleaned from content analysis of the publicity surrounding a specific case fills the gap between information provided by experimental research which has examined pretrial publicity effects and public opinion polls concerning the public's perception of the defendant in a particular case. Results from a content analysis can serve to validate public opinion survey data gathered from the same locales. To exemplify this content analytic approach, a content analysis conducted by the authors in preparation for the change of venue hearing in the case of Timothy McVeigh is presented.     

The effectiveness of public defenders in four Florida counties

Purpose

The present study utilizes data from the Bureau of Justice Statistics to examine the effectiveness of public defenders in Florida to assess whether the case outcomes of defendants with public defenders are similar to the case outcomes of defendants with retained attorneys, controlling for legally-relevant variables.

Methods

The present study utilizes both logistic and OLS regression analysis to examine differences between attorneys for seven different case outcomes.

Results

Results indicate that defendants with public defenders are more likely to be detained pretrial, more likely to be convicted, and less likely to have their cases dismissed. The results dispute previous research which found few, if any, differences between public defenders and retained counsel.

Conclusion

Results suggest that, at least in the counties examined, defendants with public defenders suffer from a lack of quality counsel.     

论民事诉讼审前准备程序的重构

在我国的民事诉讼中,虽然也有审前的准备程序,但从立法和司法的现状来看,该程序存在着严重的功能缺陷,起不到证据整理,争点固定和促成和解的功能。改革审前准备程序应当以公正和效率为价值取向,在诉讼模式的选择上采辩论主义与职权进行主义相结合的模式,审前准备程序的改革不能搞一刀切,在第一审程序中,对不同的案件,应当设计不同的审前准备程序供法院选择适用,对于简单的案件,作必要准备后及时开庭,对于复杂的案件,通常应作充分的审前准备。     

庭前会议中非法证据排除处理方法研究

2013年1月施行的《刑事诉讼法》中增加了庭前会议程序,其中对于非法证据排除的相关内容引起了法学理论界和司法实务部门的广泛关注,对庭前会议司法实践的实证研究表明庭前会议程序本身还存在法规模糊、制度欠缺等问题,其中对于非法证据的处理更是争议的焦点.在系统分析我国现行法律法规体系中有关庭前会议中非法证据排除的相关条款的基础之上,通过对司法实践以及法学理论界的不同观点的考察,本文从我国当前刑事司法体系发展阶段及特点出发,提出除控辩双方争议较大的情况以外,非法证据排除问题原则上应当在庭前会议中解决,同时法律法规应明确庭前会议中非法证据排除决定的效力.     

The Effect of Pretrial Detention on Sentencing in Two Federal Districts

While a substantial body of research indicates that legal variables, such as offense severity and criminal history, principally shape sentencing decisions, other studies demonstrate that extralegal factors such as race, gender, and age influence sentencing outcomes, as well. The handful of studies focusing upon the effect of pretrial detention/release on sentencing outcomes indicate that pretrial detention is associated with greater lengths of incarceration. This study—the first to empirically examine the sentencing consequences of pretrial detention in the United States federal courts—employed a sample of 1,723 cases from two district courts (New Jersey and Pennsylvania Eastern). Pretrial detention and, to a lesser degree, revocation of granted pretrial supervision were associated with increased prison sentences; on the other hand, successfully completing a term of pretrial services supervision was associated with shorter sentence length. Implications for the federal criminal justice system are discussed.     

The biasing impact of pretrial publicity on juror judgments

This study examines three previously unexplored aspects of the biasing impact of pretrial publicity. First, this study tests the differential effects of several different types of pretrial publicity on juror decision making. Second, this study explores the impact the presentation of trial evidence has on biases created by pretrial publicity. Finally, the study explores the psychological processes by which pretrial publicity effects may operate. Results indicate that pretrial publicity, particularly negative information about the defendant's character, can influence subjects' initial judgments about a defendant's guilt. This bias is weakened, but not eliminated by the presentation of trial evidence. Character pretrial publicity, and both weak and strong inadmissible statements appear to operate by changing subjects' initial judgments of the defendant's guilt. This initial judgment then affects the way subjects assess the evidence presented in the trial and the attributions they make about the defendant. Prior record pretrial publicity appears to have its effects by influencing subjects' inferences about the criminality of the defendant and this is related to posttrial judgments.