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.     

How Collaborative the Collaboration? Assessing Interagency Collaboration within a Juvenile Court Diversion Program

Juvenile delinquency with co‐occurring substance abuse and mental health disorders has become an increasing problem within the United States. In part this can be attributed to the excessive number of delinquent youth entering the juvenile justice system with untreated substance abuse and/or mental health disorders. In an effort to combat this problem, interagency collaborations have been formed to provide more effective treatment services. One such interagency collaboration is the JETS Program. This study identifies the strengths and limitations of establishing an interagency collaboration within the first year of a juvenile treatment court's inception.     

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.     

Restraining the Court: Assessing Accounts of Congressional Attempts to Limit Supreme Court Authority

We propose a multilevel account of legislative Court curbing in order to assess existing explanations as to why such proposals come about. We argue that although Court curbing is commonly seen as the result of institutional conflict between Congress and the Supreme Court, it is best understood as a product of three interrelated factors: the individual motivations on the part of lawmakers, the partisan context in which they operate, and institutional disagreements between Court and legislature. We find evidence that micro‐level factors offer an important insight into Court curbing that institution‐focused explanations alone cannot.     

The Court Settles the Case!

The discussion of problems of legal defense, begun this year in the pages of LG, has produced a lively exchange of opinions and has touched on important questions of our criminal proceedings.     

State Withdrawal Notifications from the Rome Statute of the International Criminal Court: South Africa,Burundi and the Gambia

In 2016 three African states namely South Africa, Burundi and The Gambia submitted written notifications of withdrawal from the Rome Statute of the International Criminal Court (Rome Statute) to the Secretary-General of the United Nations pursuant to Article 127 of the Rome Statute. Although the African Union welcomed and fully supported the three withdrawal notifications and considered them as ‘pioneer implementers’ of its ‘Withdrawal Strategy’, The Gambia and South Africa withdrew their notifications of withdrawal. Some other states – Kenya, Namibia and Uganda – have made threats to submit withdrawal notifications. This article examines four issues arising out of the said withdrawal notifications. First, why did the three states submit withdrawal notifications from the Rome Statute? Second, what is the impact of the three states’ withdrawal notifications? Third, is the African Court on Human and Peoples’ Rights (or the yet-to-be-established African Court of Justice and Human and Peoples’ Rights) a suitable African regional ‘alternative’ to the ICC? Finally, what steps might be taken to avoid, or at least minimise, further withdrawals in the future and to avoid impunity of perpetrators of international crimes in states that have withdrawn from the Rome Statute?     

Low-Level,but High Speed?: Assessing Pretrial Detention Effects on the Timing and Content of Misdemeanor versus Felony Guilty Pleas

Abstract

While numerous studies have examined pretrial detention and felony case outcomes, little empirical attention has been devoted to misdemeanor pretrial detention. We theorize that misdemeanants detained for a longer proportion of time will plead guilty quicker because the costs of fighting their charges in jail often outweigh the sanctions they face. Utilizing data on 165,630 felony and misdemeanor cases from Miami-Dade County, Florida, during a 4-year period (2012–2015) we assess whether the effects of pretrial detention length on the timing and content of guilty pleas differ across lower-level and upper-level courts. Survival analyses and multinomial logistic regressions indicate that misdemeanor cases overall and those involving lengthier pretrial detention are resolved faster, with most resulting in non-carceral sanctions such as credit for time served (CTS). Given that misdemeanors make-up the bulk of U.S. criminal cases, these findings reveal important insights about how pretrial detention impacts case-processing dynamics in lower courts.     

Judicial Management of the Pretrial Process in Massive Litigation: Special Masters as Case Managers

This article reports on the experience of Special Masters appointed to regulate pretrial phases of a large civil antitrust suit. It describes techniques for expediting discovery, determining claims of privilege in production of documents, establishing stipulations of undisputed facts, and controlling and resolving disputes arising in discovery. It suggests a "managerial" approach to pretrial that is flexible and experimental and that may be useful in controlling the pretrial phase of other "big" cases.     

国际法院解决领土争端中的关键日期问题——中日钓鱼岛列屿争端关键日期确定的考察

国际法院在解决领土争端的实践中,基于国家主权平等的要求,坚持当事方提供证据自由原则。但是,这并不意味着其不加甄别地采纳所有的证据。鉴于领土争端案件的复杂性和重要性,国际法院针对个案特殊情况,对证据可采性隐含适用了一些限制条件。关键日期一般决定着证据的可采性。对于在关键日期之后当事方的行为,国际法院通常不予考虑,除非该行为是先前行为的正常继续。而且,国际法院强调,在关键日期之后的当事方提供的利己证据,同样不具有可采性,并不存在分量大小的问题。关键日期证据排除规则对于解决钓鱼岛列屿争端具有重要意义。在关键日期之后,日本为了巩固对我国钓鱼岛列屿主权要求而采取的利己措施或试图取得有效统治之证据不具有可采性。     

Expanding the Constitution Beyond the Court: The Case of Euro-Constitutionalism

The paper addresses the role of the Court of Justice in the European integration process, as well as, more broadly, tensions between constitutionalism and new governance. I propose an account, according to which the judiciary should not be seen as standing in an aloof place in the political order, and as opposed to a—pluralistic, irrational, and anarchical—society, but rather as part of a continuum on which other governance arrangements are also placed according to their share in 'tribunality'—the deliberativeness of their decision-making processes and their openness to new facts.     

Evaluation of Implementation of the Kentucky Court Rules of Procedure and Practice: An Approach to Assessing the Impact of Court Reform Efforts

This article describes a Supreme Court of Kentucky court improvement initiative designed to promote uniformity and improved court practice with an ultimate goal of the improvement of outcomes for children and families through implementation of Family Court Rules of Procedure and Practice. Twelve jurisdictions were purposely selected to exhibit a range of family and non‐family court jurisdictions, rural and middle‐sized locations. This article focuses on the results of court case file review related to indicators of due process and timeliness. Implications for court evaluation and reform activities are discussed.     

Empirical and Legal Perspectives on the Impact of Pretrial Publicity: Effects and Remedies

Law and Human Behavior -     

The Effects of Pretrial Publicity on Juror Verdicts: A Meta-Analytic Review

The effect of pretrial publicity (PTP) on juror verdicts was examined through a meta-analysis of 44 empirical tests representing 5,755 subjects. In support of the hypothesis, subjects exposed to negative PTP were significantly more likely to judge the defendant guilty compared to subjects exposed to less or no negative PTP. Greater effect sizes were produced in studies which included a pretrial verdict assessment, use of the potential juror pool as subjects, multiple points of negative information included in the PTP, real PTP, crimes of murder, sexual abuse, or drugs, and greater length of time between PTP exposure and judgment. The effect was attenuated with student subjects, use of general rather than specific PTP information, certain types of PTP content, a post-trial predeliberation verdict, and specific types of crimes. Implications of these results are discussed, along with possible mechanisms that underlie the PTP effect.     

商标问卷调查在英美法院商标侵权案件中的运用

商标问卷调查已被英国和美国法院用于在商标侵权案件中证明混淆可能性的存在,但英国法院对商标问卷调查的效力经常持怀疑态度,其证据力比较有限,而美国法院则积极欢迎当事人提供商标问卷调查证据,其证据力甚至等同于专家证言。为了保证商标问卷调查的证据效力,英美法院均在司法实践中总结出问卷调查时应遵循的规则。我国可以借鉴英美法院的做法,确立商标问卷调查在商标侵权案件中的证据地位和调查规则。     

刑事证人出庭作证难问题研究

随着刑事审判方式改革的不断深入,证人出庭作证、接受质证在刑事诉讼中的作用越来越重要,但由于立法和司法上的原因,刑事案件证人出庭作证难也已成为不容忽视的问题。完善我国证人权利及其保障制度、完善立法、加强对公民的法制定位和教育是解决这一问题的对策。     

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.     

The Impact of Race on the Pretrial Decision

This study examined the effect of race on the pretrial release decision for drug offenders. Although this decision point has not been examined as extensively as the final sentencing decision, it is a critical discretion point which impacts defendants’ future sentencing outcomes. The results found that race had a significant impact on judges’ decisions to release a defendant on recognizance, with black defendants less likely to receive this release status. Race was not significant, however, in the decision of bail amount or in the likelihood to post bail. These results are consistent with the focal concerns perspective which suggests that black defendants are viewed by courts as more dangerous and blameworthy and thereby, less likely to be released on their own recognizance.     

论审前重复供述的可采性

由于审前重复供述的可采性直接关涉非法证据排除规则能否得到有效实施,因而,必须对审前重复供述的可采性做出规范。域外国家和地区有关判例在判断重复供述可采性时均是分析前次的非法取证行为是否对重复供述产生影响。此种分析严格来说不是“毒树之果”理论的运用．而是“非法讯问行为持续影响效力”的分析方法。我国应采用“非法取证行为持续影响效力”的分析方法,以便能在现行的法律框架内为法院排除重复供述提供法律依据。采用此种分析方法须综合考量个案中的具体因素。在我国,排除重复供述还面临着前次非法供述难以被排除以及法官自由裁量权过大两方面的困境,对此应进一步构建和完善相关制度．