Duress and criminal responsibility

While the plea of duress is generally accepted as a defense against criminal prosecution, the reasons why it exonerates are subject to dispute and disagreement. Duress is not easily recognizable as either an excusing or justifying condition. Additionally, duress is generally not permitted as a defense against criminal homicide, though some American jurisdictions allow the defense in felony-murder cases. In this paper, I present an argument for how and why the presence of duress can defeat a finding of criminal responsibility. This is intended to establish the philosophical foundation for the legal acceptability of the duress defense, even though I conclude that the defense does not qualify as either an excuse or a justification. I also argue that the duress defense should be allowed in cases of homicide.     

Menstrual cycles and criminal responsibility

Since at least the turn of the century, there have been reports indicating that women have an increased tendency toward criminal behavior during certain phases of the menstrual cycle. Recently these reports have served as the basis for a proposal to expand the insanity defense to recognize the impact of menstrual cycles in diminishing criminal responsibility. This paper reviews the empirical literature on the link between menstruation and crime and raises several critical questions regarding interpretation of this data. In light of these questions it is suggested that at this time an insanity defense based on menstrual symptomology would be inappropriate.     

Implicit theories of criminal responsibility

Three questions relevant to insanity decisions were examined: (a) What informational cues are weighed most heavily in the attribution of criminal responsibility? (b) How do verdict forms influence these attributions? And (c) How do individuals' beliefs about insanity and responsibility influence decision making? Undergraduate subjects (n=181) responded to vignettes portraying an act by a mentally disordered defendant. Psychiatric jargon was avoided, so that attributions were not a function of diagnostic terminology. It was found that, under the traditional scheme of not guilty by reason of insanity (NGRI) vs. guilty, level of mental disorder (schizophrenia vs. personality disorder) was the primary determinant of insanity decisions. Also, insanity judgments were more likely to be made for acts performed without planful intentionality. Under the alternative scheme of NGRI vs. guilty but mentally ill (GBMI) vs. guilty, mental disorder still controlled NGRI verdicts; a bizarre act increased the likelihood of a GBMI over a guilty verdict; and the GBMI verdict option reduced markedly the proportion of psychotic defendants found NGRI and the proportion of personality disordered defendants found guilty. There were no significant differences between diagnostic groups in the likelihood of being found GBMI. Most subjects preferred to utilize the GBMI option as a compromise verdict even in the face of very severe mental illness. Attitudinal data revealed considerable variation in agreement with the classic moral logic of the insanity defense and accounted for a significant amount of the variance in insanity decisions. The implications for both social policy and future research are discussed.     

Depression, responsibility, and criminal defenses

The concepts of voluntary action, agency, free will, and responsibility, while central to moral and legal institutions, are generally poorly understood. Philosophers of law such as H.L.A. Hart, Joel Feinberg, and Robert F. Schopp have contributed significantly to understanding of these concepts through their work on the foundations of criminal defenses, including excuses based on mental illness. In this paper, I summarize and present their valuable insights, in the context of an argument (influenced by personal experience) that clinical depression, even when non-psychotic, may in some cases constitute a legitimate excuse for criminal or otherwise immoral failures to act.     

Character,purpose, and criminal responsibility

This paper explores analyzing criminal responsibility from the Humean position that blame is for character traits. If untoward acts indicate undesirable character traits, then the agent is blameworthy; if they do not, then the actor is not blameworthy — he has an excuse. A distinctive feature of this approach is that that voluntariness of acts is irrelevant to determining blameworthiness.This analysis is then applied to a variety of issues in criminal law. Mens supports inferences to character traits, and the Humean approach provides a reason for rejeting strict criminal liability. The Humean approach also helps resolve a number of issues about attempts, such as punishment for impossible attempts and the defense of abandonment. It also supports the broad outlines of the defense of mistake and provides a third alternative in the Wooton-Hart debate over punishment and treatment.     

The social construction of criminal responsibility and insanity

This study examines the effects of judicial instructions (traditional American Law Institute [ALI] not guilty by reason of insanity [NGRI] instructions contrasted with ALI instructions supplemented with the guilty but mentally ill [GBMI] alternative) and case information cues (delusional content and planfulness) on student and community subjects' attributions of responsibility. GBMI instructions substantially reduced the probability of NGRI and guilty verdicts in response to vignettes portraying highly psychotic defendants and altered the pattern of variability in responsibility construal ratings. Variation in delusional content cues (self-defense versus non-self-defense) influenced ratings of criminal appreciation but did not affect the verdict distributions. Less planfully commited crimes resulted in higher proportions of insanity verdicts. However, individual differences in responsibility construals of the defendant and in attitudes toward the insanity defense were stronger predictors of verdicts than the design variables, suggesting that individual differences in social-moral cognition are at least as relevant to the attribution of responsibility as are case cues or legal frames of reference. Contrary to previous studies,Witherspoon death penalty attitudes were not related to verdicts, but people without conscientious scruples toward the death penalty were more likely to render guilty verdicts.     

Diagnosis of antisocial personality disorder and criminal responsibility

The present study empirically investigates whether personality disorders and psychopathic traits in criminal suspects are reasons for diminished criminal responsibility or enforced treatment in high security hospitals. Recently, the tenability of the claim that individuals with personality disorders and psychopathy can be held fully responsible for crimes has been questioned on theoretical bases. According to some interpretations, these disorders are due to cognitive, biological and developmental deficits that diminish the individual's accountability.The current article presents two studies among suspects of serious crimes under forensic evaluation in a Dutch forensic psychiatric observation clinic. The first study examined how experts weigh personality disorders in their conclusions as far as the degree of criminal responsibility and the need for enforced forensic psychiatric treatment are concerned (n = 843). The second study investigated associations between PCL-R scores and experts' responsibility and treatment advisements (n = 108).The results suggest that in Dutch forensic practice, the presence of a personality disorder decreased responsibility and led to an advice for enforced forensic treatment. Experts also take characteristics of psychopathy concerning impulsivity and (ir)responsibility into consideration when judging criminal accountability. Furthermore, they deem affective deficiencies sufficiently important to indicate suspects' threat to society or dangerousness and warrant a need for forensic treatment.     

SARS引发的刑事责任

SARS是一场严重的公共危机 ,引发的刑事犯罪多种多样。尽管SARS的防治已被正式纳入传染病防治法律体系 ,但我国现行传染病防治法律制度的缺陷使得实践效果不佳 ,如何运用刑事责任这道“安全阀”来保障SARS防治工作存在不少盲点 ,对此 ,本文在对其缺陷进行了分析的基础上提出了具体对策 ,以期深化对SARS引发的刑事责任的认识 ,从而帮助完善传染病防治法律制度     

SARS引发的刑事责任

SARS是一场严重的公共危机,引发的刑事犯罪多种多样.尽管SARS的防治已被正式纳入传染病防治法律体系,但我国现行传染病防治法律制度的缺陷使得实践效果不佳,如何运用刑事责任这道"安全阀"来保障SARS防治工作存在不少盲点,对此,本文在对其缺陷进行了分析的基础上提出了具体对策,以期深化对SARS引发的刑事责任的认识,从而帮助完善传染病防治法律制度.     

刑事责任能力评定的神经法学观点

认知神经科学对法律行为背后神经心理机制的聚焦和讨论,催生了神经科学与法学的联姻—神经法学.其中,从认知神经科学的角度来评定刑事责任能力是神经法学的重要研究领域.文章重点介绍了精神疾病患者决策过程的认知神经科学研究成果和反社会个体的脑结构和功能异常以及基因多态性的研究证据,来分析讨论这两个特殊群体的刑事责任能力,以此说明认知神经科学可能对司法实践中刑事责任能力评定带来的影响.     

Impulse control and criminal responsibility: lessons from neuroscience

Almost all of the world's legal systems recognize the "M'Naghten" exception to criminal responsibility: the inability to appreciate the wrongfulness of action. This exception rests on the assumption that punishment is morally justified only if the defendant was able to choose whether to do wrong. Jurists and jurisdictions differ, however, on whether to extend M'Naghten's logic to cases where the defendant understood the wrongfulness of an act but was incapable of resisting an impulse to commit it. In this article I ask whether contemporary neuroscience can help lawmakers to decide whether to adopt or retain this defense, known variously as the "irresistible impulse" defense or the "control" or "volitional" test for insanity. More specifically, I ask firstly, whether it is empirically true that a person can understand the wrongfulness of an act yet be powerless to refrain from committing it; and second (assuming an affirmative answer to the first), whether the law of criminal responsibility can practically accommodate this phenomenon? After canvassing the relevant neuroscientific literature, I conclude that the answer to the first question is "yes." After examining the varied treatment of the defense in the United States and other nations, I also give an affirmative answer to the second question, but only in limited circumstances. In short, the defense of irresistible impulse should be recognized, but only when it can be shown that the defendant experienced a total incapacity to control his or her conduct in the circumstances.     

试论刑事责任能力与民事行为能力的认定标准

在司法实践中，尤其是司法精神医学鉴定工作中，刑事责任能力与民事行为能力的认定是需要经常面对的问题，目前对此问题尚缺乏统一的认识，认定标准尚不十分明确,而且有的人对这两个概念的理解也不够。本文试对刑事责任能力和民事行为能力的认定标准加以阐述并进行比较，分析它们的异同之处，以期对司法精神医学鉴定工作乃至整个司法工作的顺利进行有所裨益。     

试论刑事责任能力与民事行为能力的认定标准

在司法实践中 ,尤其是司法精神医学鉴定工作中 ,刑事责任能力与民事行为能力的认定是需要经常面对的问题 ,目前对此问题尚缺乏统一的认识 ,认定标准尚不十分明确 ,而且有的人对这两个概念的理解也不够。本文试对刑事责任能力和民事行为能力的认定标准加以阐述并进行比较 ,分析它们的异同之处 ,以期对司法精神医学鉴定工作乃至整个司法工作的顺利进行有所裨益。一、刑事责任能力概念的界定刑事责任能力 ,简称责任能力 ,对其表述多种多样 ,一般认为是指行为人辨认和控制自己实施危害社会行为的能力。即行为人能够正确认识自己行为性质的意义、…     

论我国刑事责任的承担方式

刑事责任问题是刑法理论中比较重要的问题.正确认识刑事责任的承担方式是刑法发展的要求,同时也是 刑事责任理论应用于实战的前提条件。本文探讨了我国刑事责任的承担方式,并提出刑事制裁概念。     

精神病人刑事责任能力影响因素研究

目的研究精神病人刑事责任能力影响因素。方法用湖南医科大学精神卫生研究所编制的精神病人责任能力评定量表,对司法部司法鉴定中心2001年鉴定的159例刑事责任能力评定案件进行回顾性资料分析。结果该量表的绝大多数条目在不同责任能力组差异均达统计学显著性水平,对作案行为的罪错性认识、作案现实动机、自我控制能力损害、自知力损害、作案时间选择性、现实检验能力损害、生活自理能力损害、工作或学习能力损害等是影响其辨认能力和控制能力的主要因素,以对作案行为的罪错性认识、作案现实动机、自知力损害等因素更为明显。结论责任能力评定量表可为精神病人责任能力评定提供相对可靠的客观依据。     

论我国刑法中未成年人的刑事责任

未成年人犯罪问题已日益为国际社会及世界各国所关注。未成年人的身心特点决定了对其犯罪应采用有别于成年人犯罪的刑事责任追究制度。我国现行刑法对未成年人犯罪明确规定了从宽处罚和不适用死刑的原则。从有助于我国未成年人犯罪刑事政策的贯彻落实考虑 ,本文对未成年人犯罪刑事责任和从宽处罚的原因进行探讨 ,并对“降低刑事责任年龄”观点提出异议 ,为司法实践正确解决未成年人犯罪的刑事责任提出新的思路。     

刑事被告人证明责任研究

根据无罪推定原则 ,控诉方承担证明被告人有罪的责任 ,被告方不承担证明责任 ,这是一项基本原则。但证明责任包括证明有罪的责任和证明无罪的责任 ,被告方不承担证明有罪的责任是绝对的、无条件的 ,在某些特殊情况下 ,被告方仍要承担提出证据证明自己无罪的局部责任 ,这在许多诉讼制度和证据法发达的国家和地区成为普遍认可的实践。我国对此应予以借鉴 ,它符合诉讼合理主义的要求 ,具有一定的理论依据 ,即刑事政策、证明难易、诉讼效率。