借鉴“刑事免责”制度和“证据强制”规则之构想

刑事免责是美国刑事诉讼中的一项基本制度 ;证据强制是适用刑事免责的一个重要证据规则。本文阐述了“刑事免责”制度和“证据强制”规则的立法背景、二者的内涵关系以及适用的范围等 ;论证了我国确立“刑事免责”制度与“证据强制”规则的必要性 ,提出了借鉴其合理内容的一些构想 ,认为在我国确立“刑事免责”制度与“证据强制”规则对于缓解我国侦查机关的侦查取证困难有较大作用     

Morality in criminal law and criminal procedure: Principles,doctrines, and court cases

One of the drawbacks of the current era of predominance of Positive Law over Natural law, is that the moral roots of criminal law are all too easily overlooked or even ignored. Yet one should always keep in mind that moral standards (and the related area of Natural Law) historically preceded any type of criminal legislation or judicial decisions. This Note describes some selected aspects of criminal law of the United States (both substantive and procedural), with occasional references to other countries where necessary. Particular attention is focused on criminal law court cases and on how they deal with morality. The author argues that much more attention should be paid to the fundamental relationship between moral values and criminal law.     

The forensic evaluation and treatment of children: ethics and values

This article will review the history of ethics and values in the forensic evaluations and treatment of children. Topics to be discussed include paternalism, advocacy, parental responsibility, and legal doctrine of parens patriae. Various aspects of the treatment of children, including medications, behavior modification, and psychotherapy, are also examined for ethical considerations. Agency consultation in conflicts of ethics that are associated with public laws are also addressed. The ethical implications of the use of children in any research as research subjects is also addressed.     

论强制证人出庭作证制度的风险控制

《刑事诉讼法》(2012年)规定的强制证人出庭作证制度对于准确认定案件事实,促进我国刑事庭审方式改革,均具有积极作用.但是,该制度不仅本身存在适用范围过窄,未出庭证人审前陈述证据效力未明确等缺憾,而且在我国目前的制度环境下,还存在可能导致诉讼成本激增、控诉方取证难之风险.如何控制这些风险,关键在于还法律制度功能性产物之本来面目,以一种整体性思维分析域外强制证人出庭作证制度,完善我国的强制证人出庭作证制度,并建立诸如合理的证人出庭例外、规范的证人出庭变通措施、可行的刑事诉讼费用制度等相关配套制度.     

Evaluation and treatment of insanity acquittees in the community

This paper describes the monitored outpatient treatment program for Psychiatry Security Review Board (PSRB) clients in the largest single community treatment agency in the Oregon system. We describe 161 persons referred to this agency for evaluation and treatment. Ninety-one PSRB clients received treatment and of this group 51% had their conditional release revoked by the PSRB. The most frequent cause of revocation was noncompliance with treatment. There were only 11 crimes committed during the study period, four of which were in the felony range. The majority of PSRB clients are chronically mentally ill persons. We discuss both the treatment approach and our results in light of a recently published research agenda for insanity acquittees.     

The Lockhart Committee: developing policy through commitment to moral values, community and democratic processes

The Lockhart Committee was appointed by the federal government in 2005 to review the Prohibition of Human Cloning Act 2002 (Cth) and the Research Involving Human Embryos Act 2002 (Cth). The issues in the review are ones on which community views differ widely and many people hold strong and diverging opinions. Yet all members of the committee were able to agree on their recommendations when the committee reported to Parliament in December 2005 and since that time, most of its recommendations have been implemented in amendments to federal and State legislation. This article describes the committee's process in considering the issues in the review, in consulting stakeholders and the broader community and in formulating its recommendations.     

Individual values and delinquency: on considering universals in the content and structure of values

The systematic relation between delinquency and the overall spectrum of individual values has not been a particular topic of psychological research in the past. To fill this gap, we refer to Schwartz’s [(1992). Universals in the content and structure of values: Theoretical advances and empirical tests in 20 countries. Advances in Experimental Social Psychology, 25, 1–65] theory of universals in the content and structure of values (TUV) and re-interpret the results of Hermann’s [(2003). Werte und Kriminalität. Wiesbaden: Springer] criminological research on individual reflexive values, norm acceptance, and self-reported delinquency against this background: We verify to what extent the Individual Reflexive Value Scale (IRVS) covers the overall spectrum of values defined by TUV. We validate this match by content analysis and multidimensional scaling (MDS) and compute IRVS-based basic and higher-order value scores. Confirmatory and spherical MDS with these scores yield the circular value structure postulated by TUV. Structural equation modelling (SEM) reveals systematic relations between basic values, norm acceptance and self-reported delinquency in accord with the ‘sinusoid curve hypothesis’. Moving around the value circle yields the highest negative correlations of self-reported delinquency with tradition and conformity and the highest positive correlations with hedonism and stimulation. These values are indicators of the higher-order value dimension ‘conservation’ versus ‘openness to change’. The significant impact of this value dimension on norm acceptance and delinquency is documented by means of SEM.     

Canadian compulsory community treatment laws: recent reforms

This paper addresses the principles underlying compulsory community treatment (CCT) and discusses the different provisions in Canada's twelve jurisdictions. Comparisons with different models of CCT in other countries are also drawn. CCT is not only intended to reduce relapses it is also a "least restrictive" alternative to in-patient detention. Seven of the twelve Canadian mental health acts allow conditional leave from hospital. Two jurisdictions provide community treatment orders, but require two or three previous in-patient admissions. Criteria for CCT, in most jurisdictions, includes that there is a "likelihood of significant mental or physical deterioration". The requirement for previous hospitalization for CCT in Canada, unlike other countries, precludes CCT for use with first episode patients. Some jurisdictions require consent for CCT. Most jurisdictions explicitly state that the services necessary for the CCT conditions must be available.     

Therapeutic community treatment programming in corrections

Abstract

This paper contrasts the American TC model with that of the United Kingdom, presents an overview and history from 1965 to the present of Therapeutic Community (TC) treatment as applied in the United States particularly to drug using offenders, and it details findings from five scientifically sound studies that this kind of treatment during custody for incarcerated drug using offenders is effective in reducing drug abuse and recidivism. A final section presents the therapeutic principles derived from North American TC research and practice conducive to altering addict-offender lifestyles and improving the likelihood of a positive outcome.     

Fault-lines in community treatment order legislation

This article discusses the major tension points in the legislation that authorises involuntary outpatient treatment for mental disorder in six British Commonwealth jurisdictions. Particular attention is paid to the role of competence (or capacity) principles in the ruling legal criteria, to the precise powers of community treatment conferred, and to the potential impact of the legislation on clinicians' liability concerns. It is argued that the conferral on clinicians of a power to administer 'forced medication' in community settings is not required to promote active use of involuntary outpatient care, and that such a power should not be provided. The article concludes with discussion of the reasons why community treatment orders are used more frequently in some jurisdictions than others.     

对人大行使许可采取强制措施、审判权的构建思考

依据法律规定 ,司法机关对人大代表采取强制措施、进行审判必须提请人大主席团或常委会许可。但是 ,由于法律对于人大行使许可权时审查的内容、审查的程序 ,对许可决定不服的救济途径等等并没有作出详细的规定 ,因而在实践出现了不少问题。人大的许可权是一种有限审查权 ,因此 ,应当明确人大许可审查内容以程序性审查为主 ,以实体性审查、事务性审查为辅 ;完善人大许可采取强制措施、审判的具体操作程序及审查的期限 ;建立对人大许可决定不服的救济途径等。以此来构建我国人大行使许可采取强制措施、审判的制度。     

Social skills,distorted perception and being suspect: Studies in impression formation and the ability to deceive

Conclusion This paper dealt with the relation between social skills and a) making a suspicious impression, b) the ability to deceive. The results suggest that observers typically entertain perceptual distortion: introverted and socially anxious persons automatically impress them as less credible while extroverts establish more credibility. Introverts and socially anxious people are more likely to be designated as suspect in the sense of Article 27 of theCod of Penal Procedure-their extroverted and non-anxious counterparts run less risk on this point. The results further show that social skills are related to the ability to hide the truth. The introverted and socially anxious are poor liars. In sum, we may conclude that the likelihood of criminal stigmatization is appreciably greater if one's behavior is introverted or socially anxious because they impress others as suspicious (they run the risk of being apprehended more readily and they will more quickly succumb under questioning). Eysenck's theory (1984) states that crimes are more strongly correlated with extroversion. This means that extroverts have a double advantage. The double handicap for introverted and socially anxious persons could be undone if detection officers would pay somewhat greater attention to the extroverted and socially non-anxious. In addition, we would recommend that training programs for police officers include material on impression formation and impression management as aspects of social skills.