An economic analysis of the right to a jury trial

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.… 6th Amendment, US Constitution     

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.     

公诉一体化机制改革述评

目前,我国正在推进公诉一体化的制度建设.公诉一体化有利于高效地追诉犯罪;防范公诉权滥用;防止外部的非法干预;保障被告人权利.其主要内容应当包括上级检察院的指令权、下级抖检察院的报告义务、公诉政策一体化和公诉人一体化.但是,在公诉一体化的同时应当保障公诉检察官的相对独立性.我国在推进公诉一体化机制改革时,一方面在改革内容上存在欠缺,另一方面忽视了保障公诉检察官的相对独立性,应当加以改进.     

DNA human identification for the family rights: One year of agreement between UNESP/Laboratory of Paternity and Public Defender Service in São Paulo State

The universities have realized the importance of extending their knowledge to the population through the provision of services. Thus, this paper presents the data obtained in an agreement between UNESP/Laboratory of Paternity and Public Defender Service in São Paulo State to make DNA paternity tests.     

人权保护视野下的证人隐名制度

在刑事诉讼程序中授予某些证人隐名,是国际法庭和西方国家普遍的做法。证人隐名是投入资源最少,往往也是最为有效的保护证人安全与隐私利益的举措,是建立证人出庭制度的重要一环。允许证人在作证时不披露身份,可能会影响被追诉人质证权的行使,损害被追诉人接受公正审判的权利。为此,国际社会与各国设立的证人隐名制度,通常都设计了较为详细的证据规则与程序保障机制,以实现被追诉人与证人之间的利益平衡。了解证人隐名制度的运行状况与其中蕴含的价值选择,有助于我国证人出庭制度乃至庭审制度的借鉴与改革。     

关于被告人权利的最低限度保证

《公民权利和政治权利国际公约》第14条第3款确立了国际社会关于被告人权利最低限度保证的公认标准,人权事务委员会关于该款的一般性意见、结论性意见和处理有关个人来文案件的决议,以及缔约国有关该款的保留和解释性声明,进一步明确了这些标准的具体内容。被告人权利的最低限度保证至少应当包括被告知指控、有相当时间和便利准备辩护、受审时间无不合理迟延、出庭自我辩护和由其选择的辩护人进行辩护、传唤和询问证人、必要时免费获得译员帮助和不被强迫自我归罪的权利。防止及惩治恐怖主义及其他任何严重罪行的需要,均不构成剥夺被告人权利最低限度保证的合法理由。     

Abortion on demand in a post-Wade context: must the state pay the bills?

The legal issues involved with the application of the United States Supreme Court decisions in Roe v. Wade and Doe v. Bolton (1973) are reveiwed, particularly the question of whether an indigent pregnant woman now has the right to abortion on demand at public expense. The 2 decisions, based on the Fourteenth Amendment, established that a woman, in consultation with her physician, must be free to choose to terminate her pregnancy, at least in the first trimester. State laws are permitted only to regulate abortion procedures in the second trimester and may only regulate or proscribe abortion itself after the fetus becomes viable. The Court did not rule that indigents had a corollary right to the implementation of abortion, and thus free abortions do not appear to be constitutionally required. However, depending on the type of Medicaid coverage in which the individual state is participating, the medically indigent may receive Medicaid benefits for abortions, at least in the first trimester. Since Medicaid is voluntary for the state, it could drop out of the program entirely or the Congress could specifically exclude abortions from Medicaid coverage. Both actions appear unlikely, however, and abortions for medical reasons clearly seem to fall under Medicaid's purpose. Consequently, despite the Wade and Bolton decisions, the right to abortion is limited by the ability of indigents to pay for it. In the light of the serious complications of illegal abortion, it is concluded that legislators should insure the availability of legal abortions. Such a move would not in itself encourage abortions but would properly extend the right to abortion to all citizens.     

法国刑事和解制度述评

法国的刑事和解制度是指检察官本人或其委派的人向犯罪行为人提出某种交易形式的建议从而中断公诉时效的一种制度。它主要适用于承认自己犯有主刑当处罚金刑或犯有一项或数项当处5年以下监禁刑,或犯有一项或数项违警罪的成年犯罪行为人。刑事和解制度是法国立法者为了解决其诉讼程序的繁杂及效率低下而在起诉与不起诉之间所做的选择,是一种非典型的公诉替代方式。由于这一制度与某些传统的诉讼原则存在冲突,因此一直众说纷纭,莫衷一是;尽管如此,该制度良好的司法效果最终使其得以广泛适用和发展,目前已成为法国治理刑事犯罪不可或缺的重要程序之一。     

Holding to Account a Possible European Public Prosecutor Supranational Governance and Accountability Across Diverse Legal Traditions

The Lisbon Treaty provides a legal basis for the Member States of the European Union (EU) to establish a European Public Prosecutor (EPP) with competence to prosecute, in the courts of the Member States, crimes against the financial interests of the Union. Article 86 of the Treaty on the Functioning of the European Union, provides that the Member States may unanimously, or through flexible cooperation where nine Member States agree, establish such a European-level prosecution body, with the possibility for its powers to be extended by unanimity to include serious crime having a cross border dimension or affecting more than one Member State. Within the legal traditions of the Member States, means of holding prosecution authorities to account vary considerably. Probably the strongest form of accountability exists in the civil law tradition of Member States that permit appeals to judicial bodies for decisions not to prosecute, which contrasts with the traditional common law reluctance to even give reasons for not prosecuting. Similarly, the ways in which prosecution authorities interact or overlap with police functions, and thus with general mechanisms of police and/or bureaucratic accountability, differ. Some of the particular features of EU cooperation suggest additional accountability issues, notably, questions concerning competence spill-over and problems of remoteness. This paper seeks to address how to conceptualise governance and accountability of a possible EPP outside of the context of a trial (the latter entailing a type of open legal accountability that can be studied in its own right) and including the question of the definition of competences.     

The Minimal State and Indigent Defense

Very few scholars discuss the moral basis of the right of persons accused of crimes to be supplied with attorneys if they cannot afford them. More discussion of the topic is needed, in particular because political theorists who prefer a minimal state deny that indigent persons have such a moral right. This article addresses their contentions by developing three arguments for supplying poor persons accused of crimes with defense attorneys. First, doing so will prevent state officials from becoming emboldened in their dealings with the poor, such that they might come to pose a threat to the non-poor. Second, poor persons who believe that the state does not treat them fairly will have reduced incentives to abide by the law, which will, in turn, increase the cost of the minimal state. Third, the better off should show solidarity with the poor in demanding that the minimal state honor all citizens’ rights to life, liberty, and property. Crucial to these arguments is the claim that a right of indigent defense is unlike other welfare rights in that securing it protects other basic moral rights that minimal statists acknowledge.     

利用影响力受贿罪主体解析

国家工作人员也可以成为本罪主体;“近亲属”含义应以《刑事诉讼法》第82条第（六）项规定为准;利用影响力受贿罪中的“关系密切人”范围大于“特定关系人”范围,判断是否是关系密切人不应限于平时双方交往是否密切,而在于行为人所具有的影响力能否使国家工作人员利用职务之便为请托人牟取不正当利益;“离职的国家工作人员”指原系国家工作人员并具有国家工作人员身份、要求国家工作人员为请托人谋利时已不再行使国家工作人员职能的人。     

Ideology as determinant of views on the insanity defense

This research explores the hypothesis that an individual's position on the insanity defense is a function of his/her underlying ideology. Fifty-seven clinical psychologists and fifty-five psychiatrists in the United States responded to a questionnaire that measured their beliefs about personal vs. social responsibility for crime, the frequency of their own experience as expert witnesses in insanity cases, and their attitudes toward the insanity defense. As predicted, locus of responsibility for crime was found to have a highly significant curvilinear relationship to attitude toward the insanity defense, with very liberal and very conservative subjects being most anti-insanity defense. Psychiatrists, and those with more expert witness experience, were also significantly more favorable toward the insanity defense.     

刑事司法鉴定中的程序正义——邱兴华案对中国刑事司法鉴定制度的启示

邱兴华一案给我们的启示是:赋予当事人直接启动司法鉴定的权利,允许控辩双方的专家在法庭上对鉴定意见进行自由、公开的辩论,建立统一的司法鉴定标准,是在中国刑事司法鉴定领域实现程序正义的基本要求。     

Decision Making in Delinquency Cases: The Role of Race and Juveniles' Admission/Denial of the Crime

Investigated how accused delinquents' admission/denial of their crimes affected adjudication and disposition decisions. An archival analysis of 2,043 adjudication decisions in 16 Georgia counties found that juveniles who admitted committing their crimes were treated more severely than juveniles who denied committing their crimes. Whites were more likely than Blacks to admit committing the crime, and, after controlling for this and other legal factors, race did not have a significant effect. In the second study, 67 judges, 53 probation officers, and 126 court service workers made adjudication and disposition decisions about three juveniles in an experimental simulation in which race of juvenile, length of prior record, and the juvenile's reaction to the crime (admitting or denying it) were systematically manipulated. Consistent with the archival study, juveniles who admitted committing their offense were treated more severely than juveniles who denied committing their offense. Possible reasons are discussed for why admitting a crime leads to more punishment.     

刑讯逼供致人伤残、死亡的定罪及证明责任

刑讯逼供罪“致人伤残、死亡的 ,依照本法第 2 3 4条、第 2 3 2条的规定定罪从重处罚”应属于可反驳的推定犯 ,即立法推定的故意伤害罪、故意杀人罪。推定犯中 ,公诉机关和被告人各自承担相应的证明责任。推定犯具有合理的立法理由和目的     

论容留卖淫罪、容留吸毒罪的“容留”

容留卖淫罪、容留吸毒罪的"容留"指为卖淫、吸毒者提供行为场所,不包括提供其他便利行为。提供场所后才明知场所使用者有卖淫、吸毒活动不制止或不中止提供场所是否构成容留应具体情况具体分析,不能一概而论。场所的本质特征是行为人有权控制且能控制。共同控制人在共同控制的场所中卖淫或吸毒,其他共同控制人知情不制止、甚至为其放风报信不构成容留,明知场所的共同控制人容留卖淫或吸毒不制止,只有在行为人事先知情事中不制止才构成容留共犯。     

Legal Aid,Self-Representation,And The Crisis At The Hague Tribunal

The unfolding of the case of Prosecutor v. Vojislav ŠeŠelj at the International Criminal Tribunal for the Former Yugoslavia (ICTY) has been dramatic and more than a little chaotic. The author argues that it is diagnostic of a broader crisis at the Tribunal. As an experiment in international justice, the ad hoc tribunal model has proved to be expensive and slow, but on several points also procedurally arbitrary, intellectually unconvincing, and vulnerable to improper political considerations. These problems have attained a critical mass in ŠeŠelj’s case, as illustrated here. The accused ŠeŠelj, an ultranationalist politician and former paramilitary leader, has vowed to bring the Tribunal to its knees. He is self- represented at trial. This privilege was twice reaffirmed in 2006 by the ICTY Appeals Chamber, having been twice revoked by a bench of trial judges. In 2007, the new pre-trial judge in the case (now presiding judge), Jean-Claude Antonetti, declared that a self-represented accused who can prove indigence is entitled to legal aid. He ordered the Registrar of the Tribunal to pay ŠeŠelj’s defence expenses from the Tribunal’s legal aid budget if ŠeŠelj could prove his indigence. The author argues that while there is good reason to disburse legal aid funds to an indigent accused who has been granted privileges of self-representation, this entitlement was not convincingly explained by Antonetti. Moreover, ŠeŠelj’s destructive aims were improperly set aside by Antonetti in reaching his decision on the public financing of his defence. The current situation, which represents the combined effort of the Appeals Chamber and Antonetti, allows ŠeŠelj to bully participants in the proceedings, issue thinly veiled threats to prospective witnesses and the public at large, and bend the trial procedure to the requirements of his political populism. The poor handling of this case by the Tribunal as a whole calls into question the ad hoc tribunal model of international criminal justice. In the period 2003–2007, the author was a legal advisor to ICTY trial judges, working for a short time on the Vojislav ŠeŠelj case prior to its transfer to Judge Antonetti.     

两岸刑事证人出庭作证制度之比较

证人出庭作证是保障被告人对质权、保证刑事案件审判质量的客观需要。我国大陆地区长期存在证人出庭难、出挺少的问题,完善证人出庭作证制度也是此次刑诉法再修改的重点内容之一。台湾地区在确定应出庭证人范围、强制证人出庭作证、证人保护与作证补偿、证人拒绝作证等方面的可行性做法,可以为大陆地区进一步完善证人出庭作证制度提供借鉴和参考。     

Automated decision-making in the EU Member States: The right to explanation and other “suitable safeguards” in the national legislations

The aim of this paper is to analyse the very recently approved national Member States’ laws that have implemented the GDPR in the field of automated decision-making (prohibition, exceptions, safeguards): all national legislations have been analysed and in particular 9 Member States Law address the case of automated decision making providing specific exemptions and relevant safeguards, as requested by Article 22(2)(b) of the GDPR (Belgium, The Netherlands, France, Germany, Hungary, Slovenia, Austria, the United Kingdom, Ireland).The approaches are very diverse: the scope of the provision can be narrow (just automated decisions producing legal or similarly detrimental effects) or wide (any decision with a significant impact) and even specific safeguards proposed are very diverse.After this overview, this article will also address the following questions: are Member States free to broaden the scope of automated decision-making regulation? Are ‘positive decisions’ allowed under Article 22, GDPR, as some Member States seem to affirm? Which safeguards can better guarantee rights and freedoms of the data subject?In particular, while most Member States refers just to the three safeguards mentioned at Article 22(3) (i.e. subject's right to express one's point of view; right to obtain human intervention; right to contest the decision), three approaches seem very innovative: a) some States guarantee a right to legibility/explanation about the algorithmic decisions (France and Hungary); b) other States (Ireland and United Kingdom) regulate human intervention on algorithmic decisions through an effective accountability mechanism (e.g. notification, explanation of why such contestation has not been accepted, etc.); c) another State (Slovenia) require an innovative form of human rights impact assessments on automated decision-making.