Alleged brain damage, diminished capacity, mens rea, and misuse of medical concepts.

As focus on the insanity defense diminishes, defendants may place emphasis on a lack of knowing or purposeful behavior in order to negate a criminal charge. This use of a mens rea defense in accord with Model Penal Code principles is exemplified by the current New Jersey statute. Such a defense may result in a lesser charge or a finding of not guilty. In addition to reviewing applicable law, this report presents a sex offense case in which remote brain damage was invoked as a purported basis for incapacity to formulate the required intent; the study also raises the issue of the inappropriate or questionable use of medical principles, a practice that diminishes professional credibility in the courts and in the community.     

Misidentification of self and the Riel Phenomenon.

Misidentification syndromes or phenomena are found in a number of psychiatric situations that may become the subject of forensic science review. One of the most curious is misidentification of self in which the individual perceives himself or herself as another being while able to explain the loss of the original identity. Recognizing these phenomena may be helpful in accurate diagnosis, in considering such conditions as psychosis of whatever type, multiple personality disorder, and other amnesia and fugue states, and in understanding the person's psychopathology. Two cases are presented to illustrate a process that the authors have named the Riel Phenomenon, after the person who was a party to what is often recognized as the most famous case in Canadian history.     

Postpartum depression syndrome as a defense to criminal behavior

Though history records that women have suffered from PPD for centuries, little attention is directed to this serious malady in today's medical and legal communities. Medical research indicates that PPD is the result of the physical stress of pregnancy and childbirth, the social stress of the mothering role, or a combination of both. There are four phases of PPD: maternity blues, postnatal exhaustion, postnatal depression and puerperal psychosis. Victims of puerperal psychosis manifest bizarre behaviors — including the murder of their own children. Approximately 18 cases in the United States have involved the use of PPD as a defense to murder. British medical and legal authorities recognize PPD as a serious women's health issue, and as a viable insanity defense. Legal experts in the United States believe that the PPD defense will be used more frequently in this country. A review of the basic principles of the insanity defense supports the admission of this defense in legal proceedings.     

法国宪法实践中对国际条约的合宪性审查

设立宪法委员会实施合宪性审查是法国1958年宪法的一大突破,其中对于国际条约的合宪性进行审查更是宪法委员会实践中的亮点之一。在欧洲一体化进程加快的形势下,作为国内的合宪性审查机构,如何实施对于国际法文件,特别是欧盟法律文件的合宪性审查是宪法委员会面临的重大难题,宪法委员会在这个方面既表现出了一定的创造性,更表现出了相当大的自我约束,这在一定程度上发展了法国的宪法制度,但也反映出其对于宪法难题的回避。     

The medical and scientific evidence in alleged tubocurarine poisonings. A review of the so-called Dr. X case

The problem of proving the presence or absence of a poison in a buried cadaver is the central theme of this presentation. Certain general questions are posed which may serve to guide those seeking to determine the cause of death in buried cadavers and allegedly due to a poison. Medicolegal and scientific evidence is presented from the court records of five deaths which were alleged homicides due to intravenous tubocurarine. As to the medical evidence: The prosecution claimed absence of adequate medical causes but full congruence with intravenous tubocurarine as the cause of death. The defense claimed and presented its evidence, including history, clinical picture, gross and microscopic pathological findings--for the deaths having occurred from competent natural causes in all but one case. In that one case the cause was undetermined. In two of the four cases evidence was presented for the mechanism of death and why they died at the time that they did. As to the forensic toxicological evidence: The prosecution claimed qualitative identification but with no particular quantitative detection or identification limits of tubocurarine in the remains based on results of combinations of HPLC followed by RIA and of some selected ion direct inlet mass spectrometry. The defense corroborated--along with a quantitative estimate--the presence of a substantial concentration of tubocurarine in the liver specimen of one case. However the chain of custody of this particular specimen was compromised for a period of several days between post-exhumation autopsy and submission to the prosecution toxicologists. With respect to all the other specimens examined by the defense, direct inlet mass spectrometry failed to show ions which are critical for establishing the identity of tubocurarine. The defense also presented results of experiments which showed that the tissues of the cases in question destroyed tubocurarine at such a rate that no reasonably conceivable administered amount could have survived the 10 years of burial of these cases. In each of the five cases exhumation and re-autopsy would have been found to be neither justified nor even indicated had an objective examination of the available record been made and supplemented by a similarly objective review of the literature and the simple stability experiments used by the defense. After an 8-month trial, the jury brought in a not guilty verdict on all counts after less than 2 h of deliberations.     

Book Reviews

Book review in this Article
Environmental Liability, Patricia Thomas (Ed.)
Manual of European Environmental Law, A. Kiss and D. Shelton (Eds.)
World Forests For the Future: Their Use And Conservation, Kilaparti Ramakrishna & George M. Woodwell (Eds.)
International Encyclopedia of Laws, Vol. I and Vol. II, Prof. Dr. R. Blanpain (Ed.)
International Environmental Law and Regulation, Schlickman, McMahon van Riel (Eds.)     

PMS,psychosis and culpability: sound or misguided defense?

Premenstrual Syndrome (PMS) is believed to affect up to 90% of women of reproductive age. A small subset of women have been identified who actually experience psychotic symptoms in the premenstrual phase of their cycles. Not surprisingly, PMS has made it into the courts where it has been offered as a defense for criminal acts. The defense has generally fared poorly in the United States, although it has been successfully used as a factor in supporting diminished capacity in Great Britain. The following paper sets out to review the medical literature on premenstrual syndrome with a particular focus on premenstrual psychosis. Available literature from both medical and legal sources is then utilized to investigate instances in which premenstrual psychosis has been invoked as a defense in the courts.     

还原沈家本:略论沈家本与晚清司法场域之变迁(1901-1911年)

沈家本是清末修律改革中的核心人物之一 ,但以往的研究受研究方法的局限 ,将沈家本描述成一个孤独的司法英雄和法学天才 ,显然 ,这与清末法制变革的历史真实相去甚远 ,也不符合沈家本的真实面目。运用法国社会学家布迪厄的场域理论 ,通过分析清末国家元场域与司法场域及法学场域等场域间的关系 ,从中揭示沈家本在清末修律活动中的地位和作用及晚清司法场域变迁的逻辑 ,还沈家本以本来面目。     

The trials of Steven Truscott.

Determination of time of death (postmortem interval) is one of the most difficult problems confronting forensic pathologists. One noteworthy such case is that of Steven Truscott, a 14-year-old Canadian youth who was convicted of the June 1959 rape-murder of 12-year-old Lynne Harper in rural southwestern Ontario. The two had been seen together on the evening when Lynne was last seen alive. At her autopsy approximately 48 h later, the prosecutor, relying almost entirely on examination of the gastric contents, placed the time of death during the period in which the two were apparently in each other's company. Truscott's defense was unable to refute this opinion, and Truscott was sentenced first to death, then to life imprisonment. Isabel LeBourdais, a Canadian journalist, published a book defending Truscott that eventually led to a judicial rehearing, but his conviction was upheld. The examination of gastric contents is only one measure employed in the often difficult determination of time of death. It has not been made inherently more reliable in this regard since 1959. It is crucial, therefore, to use all available evidence in determining time of death.     

Women''s marital difficulties: Requests of separation in New France

Using requests for separation by married couples in Canadian New France during the seventeenth and eighteenth centuries, this article explores the reasons behind the break-up of their marriages. The documents reveal that conjugal life with an alcoholic husband, who was violent or unconcerned with the well-being of his family, forced women to submit a request for separation. The study of marital separations during French administration provides valuable insights into the marriage norms, the duties and behaviors sanctioned by them, and the lines drawn between normality and marginality in that period.     

Toward Subnational Comparative Cultural Policy Analysis: The Case of Provincial Cultural Policy and Administration in Canada

Comparative policy analysis is an underdeveloped field of study in Canadian policy scholarship at the national and subnational levels. Cultural policy research is also underdeveloped in Canada, particularly at the provincial level. This article aims to contribute to the development of subnational comparative cultural policy analysis by assessing the analytical value of utilizing national-level cultural policy approaches as referents for provincial comparative analysis. We develop four main approaches to cultural policy and administration—the French, British, American, and hybrid (mixed) approaches—and explore their applicability to analyzing the origin and evolution of cultural policy and administration in five Canadian provinces. The article draws on a recently concluded three-year national study of provincial and territorial cultural policy and administration codirected by authors Gattinger and Saint-Pierre.     

电影语言在贝克特剧作中的运用——从《最后一盘录音带》谈起

在《最后一盘录音带》中 ,剧作者贝克特采用了平行、交叉和复现等三种蒙太奇技巧 ,从而借助蒙太奇所特有的叙述功能和表现功能 ,实践“纯戏剧”和“反戏剧”的主旨 ,并且重新组织了人物语言 ,变革了时空结构 ,模糊了时空观念 ,以直观具体的舞台形象直喻了非理性的作品主题 ,使创作形式和创作内容达到了高度统一。     

Recent status of the medical examiner system in Japan: demographic variation of medicolegal deaths in Hyogo Prefecture and uncertainty in medicolegal investigations conducted by medical practitioners.

The medical examiner system has been steadily abolished in Japan. Instead, medicolegal investigations are entrusted by the police to medical practitioners, who are not permitted to perform autopsies. The necessity for the medical examiner system was assessed through inquest records in Hyogo, one of the three prefectures which still have medical examiner systems. Standardized mortality ratios (SMRs) for accidents and suicides were negatively associated with population density, being high in rural areas with a large proportion of elderly citizens, while the SMR for natural deaths was high in urbanized areas and associated with the proportion of inquests to total resident deaths. The high proportion of inquests, however, did not always mean that inquest records were of good quality. Significant differences in the quality of medicolegal investigations seemed to exist between medical examiners and medical practitioners. That is, in order to certify the cause-of-death, medical examiners performed autopsies in about half of their cases, while only 2% of medical practitioner cases were subjected to autopsies. Medical practitioners, who certified the cause-of-death as "heart failure" without advising an autopsy, were regularly entrusted with inquests. It is likely that the causes-of-death for medicolegal cases may be questionable since more than 85% of all medicolegal deaths were investigated by medical practitioners, which may cause inaccuracy in at least 3-7% of mortality statistics. It is necessary to educate medical practitioners concerning the importance of mortality statistics and ICD and on the validity of autopsies, in order to obtain accurate mortality statistics from medicolegal cases.     

The cohesion and fragmentation of organized medicine in France and the United States

The French and American medical professions share similar historical bases for strong political and economic market positions. As professions, the attributes of common education, ethics, and mission tend to keep physicians together in their political organization. But the medical professions in both France and the United States are also subject to intraprofessional forces of division, such as the conflicts which often oppose generalists to specialists. Although organized medicine in France and the United States shares these commonalities, there is a very important difference between the two countries. The French profession tends toward organizational particularism, both ideologically and nonideologically, which serves to splinter it in ways inimical to the interests of the medical profession. By contrast, the American medical profession tends to organize universally-that is, its organizational base is much more often one of unity and accommodation toward the divergent interests of physicians. Thus, organized medicine in the United States has more easily fought off political and economic pressures coming from government and the private sector-but by no means with total success. On the other hand, highly fragmented organized medicine in France has experienced an almost linear decline in the face of pressures coming from a determined and strong state.     

The importance of scientific evaluation of biological evidence — Data from eight years of case review

In 2009, the National Research Council published a report stating that the addition of more science and technology into the field of forensic science in the United States would be of great benefit to the judicial system. As a starting point to address this NRC report, one needs to make an assessment of the system. One factor that is continuously requested is an estimate of an error rate. In any given scientific area of forensics that is difficult to quantitate except by external review and audits. After eight years of requested defense review of cases with biological and DNA evidence, most cases appear to be scientifically sound in test methods and procedures. However, there were some cases where errors in the forensic science process did occur. This article takes information compiled from those eight years of defense review and summarizes the cases where errors have been discovered and discusses the scientific implications of these errors. The scope of this article is limited to crime scene collection and forensic science laboratory testing of biological materials for body fluid identification and DNA individualization to a source. The greatest value of defense review comes from (a) providing effective balance and independent oversight to the judicial process and (b) collecting data into a format that can be useful as a guide in training programs.     

The impact of judges' perceptions of credibility in fibromyalgia claims

Fibromyalgia (FM) is a confusing and controversial diagnosis, characterized by widespread pain and tenderness at specific anatomical sites. The cause of this syndrome is unknown, and the course of the condition is difficult to predict. Without a known cause, predictable course, or effective treatment, it is not surprising that FM is a contentious diagnosis from a medical perspective, as well as a civil litigation and disability insurance industry perspective. The purpose of this study was to investigate judges' perceptions of credibility in litigated cases involving FM claims in the Canadian courts, and the relation between perceived credibility and awards granted. A systematic review was conducted of every trial-by-judge litigated FM claim in Canada (N=194 cases) up to 2003. The cases were examined in relation to credibility factors. The role and responsibility of the plaintiff was central in claims involving issues of misrepresentation, fraud, non-disclosure, failure to mitigate, and contributory negligence. The presence of these issues suggested a possible decrease or loss in the claim as a result of the plaintiff's conduct. In regards to the actions of defendants, the presence of investigative and surveillance information alone did not affect the awards granted. However, the credibility of that information had a large effect on the amount of award granted. Plaintiff credibility played a similar role, indicating that plaintiffs perceived as more credible were typically granted greater awards. An examination of medical expert credibility revealed that judges appear to perceive experts as more credible overall than plaintiffs, regardless of the expert's role in the case.     

Sexual abuse by psychotherapists: the call for a uniform criminal statute.

Recent surveys show an alarming rate of sexual exploitation of patients by psychotherapists. As such conduct often falls outside the scope of rape, which allows a defense of consent, the psychotherapist is not prosecuted. Although all sexual contact between therapist and patient is prohibited by codes of professional ethics, the licensing boards that enforce these codes do not possess adequate power to deter this behavior. Further, professional review boards have absolutely no authority over unlicensed therapists who sexually abuse their patients. As a result, licensed therapists who have been censured in one state may practice as unlicensed therapists in another state and continue to sexually abuse patients. The only effective deterrent would be a uniform statute, adopted in all states, criminalizing this specific abuse of the unique therapist-patient relationship. Such a statute should include unlicensed therapists as potential offenders and consent to sexual contact should not be a defense. The statute also should provide for enhanced efforts to inform and protect victims. This Note first examines six of the nine criminal statutes that currently exist in order to show the full range of provisions presently in force to deter this conduct. This Note then proposes model provisions for a uniform statute.     

Rethinking risk in pediatric research

This article reviews four areas of pediatric research in which we have identified questionable levels of allowable risk, exceeding those foreseen by the Commission. They are the following: (1) the categorization of increasingly risky interventions as minimal risk in a variety of protocols; (2) the increasing number of applications for federal panel review of research not otherwise approvable because of higher projected risk levels; (3) research on asymptomatic at risk children; and (4) the inclusion of children and adolescents in placebo-controlled trials for participants of all ages without performing subgroup analysis. While embracing the imperative to include children in research is an encouraging step towards providing the pediatric population with effective medical care and finally eradicating the therapeutic orphan, we must ensure that this research does not become overly permissive.     

The use of neuroscientific evidence in Canadian criminal proceedings

This article addresses the question of how neuroscientific evidence is currently used in the Canadian criminal justice system, with a view to identifying the main contexts in which this evidence is raised, as well as to discern the impact of this evidence on judgements of responsibility, dangerousness, and treatability. The most general Canadian legal database was searched for cases in the five-year period between 2008 and 2012 in which neuroscientific evidence related to the responsibility and recidivism risk of criminal offenders was considered. Canadian courts consider neuroscientific evidence of many types, particularly evidence of prenatal alcohol exposure, traumatic brain injury, and neuropsychological testing. The majority of the cases are sentencing decisions, which is useful given that it offers an opportunity to observe how judges wrestle with the tension that evidence of diminished capacity due to brain damage tends to reduce moral blameworthiness, while it also tends to increase perceptions of risk and dangerousness. This so-called double-edged sword of the biological explanation of criminal behavior was reflected in this study, and raises questions about whether and when the pursuit of such evidence is advisable from the defense perspective.