The good faith exception to the exclusionary rule: Some implications for the police

Since 1961, when the United States Supreme Court ruled that evidence obtained by unreasonable search and seizure would not be admissible as evidence in state courts, police officers have had to work within the constraints imposed by the so-called “exclusionary rule.” This article traces the history of the exclusionary rule, reviews the Supreme Court's changing rationale for its existence, and examines a variety of proposed alternatives. Law enforcement officials need to be aware of the alternatives, for virtually all of them would remove the burden of the results from the prosecutors and the courts and place them on the officer and/or the agency. This article concludes that the implications of a good faith exception have ramifications for both the officer and the agency, ramifications that would fall most heavily, however, on agency policies and resources.     

The Impact of Officer and Agency Characteristics on the Likelihood of Arrest in Domestic Violence Situations among Rural Law Enforcement Officers

Domestic violence cuts across all demographic groups. The factors related to why police officers arrest in some domestic violence situations but not others have been often studied. Little research, however, has been conducted on the arrest views of rural police officers. One hundred seventy line officers in six rural Midwestern counties were surveyed to determine the impact of officer personal characteristics and agency type on arrest decisions in various hypothetical domestic violence scenarios. First, the same situational factors appeared to be important in shaping the arrest decision in domestic violence calls of rural officers as have previously been found with urban officers. Second, the characteristics of officers and the type of agency had some impact on the likelihood of arrest, particularly if there was evidence of a physical assault. Third, the presence of evidence of a physical assault helped shape the arrest decisions of rural officers. Fourth, situational factors were more important than officer characteristics and the type of agency. Nancy Hogan and Shannon Barton contributed equally to the paper. The authors thank Janet Lambert for editing and proofreading the paper. The authors also thank the anonymous reviewers for their comments and suggestions.     

论宪法权利的实现模式

随着中国法治化进程的推进 ,人们的宪法权利意识越来越强。遗憾的是 ,现有的宪法权利保障模式并不能从根本上保障公民宪法权利的充分实现。因此 ,建立宪法诉讼应该成为保障宪法权利的必由之路。     

Police leniency in traffic enforcement encounters: Exploratory findings from observations and interviews

Despite the volume of time officers spend on traffic enforcement encounters, there was limited research exploring how they used their discretion in such interactions. Issues relating to police decision making patterns in the enforcement of motor vehicle laws were particularly salient in light of the on-going debate over racial profiling. This study examined how officers made decisions (in particular, to stop and to sanction) in the course of traffic enforcement. Using field observations and interviews with officers in a small midwestern agency, the authors described the factors and forces that officers used in making discretionary choices. The findings indicated that leniency in sanctioning was very common and that officers expected citizens to be contrite and acknowledge responsibility for their infractions. Implications for larger and more systematic observational studies are discussed.     

La construcción de una democracia respetuosa de los derechos humanos. reflexiones a partir del modelo constitucional adoptado por la república de timor oriental

This paper proposes to show the benefits of adopting a constitutional model that incorporates fundamental rights and judicial review systems in order to build a democracy respectful of human rights. Such goal will be achieved analyzing the constitutional model adopted by the young republic of East Timor. To that end, first we will explain briefly the political background and the roots of the Constitution of this country. Further on, we will present some of the characteristics of the constitutional model of East Timor. Specifically, we will show that this Constitution: i) it is not made up only of rules, but also includes values and principles which are directly applicable, and works as validity standards for the whole legal system; and ii) it recognizes some legal contents -related to human rights- that limit the rules, decisions and actions made by authorities and citizens. Finally, we will point out some challenges that this constitutional models usually face when reviewing authority decisions.     

宪法保留：对基本自由权利限制的限制原则

法律保留原则要求某些重要事项必须留给立法机关以法律的形式加以规定,目的是约束行政权,防止行政权滥用,并在客观上要求司法机关依法裁判;然而,宪政的本质特征之一是有限政府的理念,即使是立法机关的权力本身也应当是有限度的。实际上,宪政国家违宪审查制度的普遍确立正是主要基于对立法权滥用的矫正;而我国从依法治国到依宪治国思路的转变也在事实上承认了立法权本身存在滥用的可能。因此,从法律保留到宪法保留,是保障人民基本自由权的重要原则,这一原则立基于对多数决暴政的恐惧和对有限政府理念的信奉,它在一定程度上杜绝了宪法一手承认人民基本自由权利,而法律的另一手却又予以剥夺的弊病。     

Picking battles: Correctional officers,rules, and discretion in prison

To outsiders, prisons vacillate between visions of regimented order and anarchic disorder. The place of rules in prison sits at the fulcrum between these two visions of regulation. Based on 131 qualitative interviews with correctional officers across four different prisons in western Canada, we examine how correctional officers understand and exercise discretion in prison. Our findings highlight how an officer's habitus shapes individual instances of discretionary decision‐making. We show how officers modify how they exercise discretion in light of their views on how incarcerated people, fellow officers, and supervisors will interpret their decisions. Although existing research often sees a correlation between “rule‐following” by incarcerated individuals and official statistics on such misdeeds, our data highlight that official statistics on rule violations do not easily represent the rate or frequency of such misbehavior. Instead, these numbers are highly discretionary organizational accomplishments. Our findings advance an appreciation for correctional officer discretion by focusing on the range of factors officers might contemplate in forward‐looking decisions about applying a rule and how they rationalize the nonenforcement of rules.     

论回避宪法判断原则

作为"权利的宣言书",宪法最明快地保护人权,理当在实践中发挥作用.但即使在宪法审查制度发达的国家,法院在引用宪法上也恪守消极主义立场,尽量回避宪法性判断,在法律层面上处理案件,充分尊重普通法律的稳定和立法权的独立.然而法律的制定常受现实的影响,从而忽略宪法的基本原则,如果盲目坚持回避宪法判断的原则,就会姑息纵容损害基本权的立法行为.所以当基本权受到明显的、持续的、严重的侵犯时,各国法院仍会积极适用宪法判断.这一点也值得国内实务界和学术界适当借鉴,以应付以宪法为诉讼依据的案件和事件.     

裁判请求权保障与法院审判人员的优化配置

在实行法官员额制改革过程中,必须一并考虑法院审判人员的分类管理和优化配置问题。在民事诉讼中,为保障公民的裁判请求权,对于民事纠纷案件的审理,必须配置入额法官;对于非讼案件的审理、诉前或审前的法院调解以及立案登记等程序事项的处理应交由司法实务官进行,从而让法官专注于民事纠纷案件的审判,以更好地落实公民的裁判请求权保障之宪法理念。司法事务官不同于助理审判员,其不能审理所有的民事案件;司法事务官也不同于法官助理,司法事务官不是法官的助手,其可以依法独立行使职权。司法事务官不是宪法意义上的处理民事纠纷的法官,司法事务官不必进入法官员额。     

经济法之政府干预的宪政解读

宪政之于经济法的法治要求,意味着国家干预经济的一切活动都应当有相应的法律依据,国家干预经济的行为应该受到制约。经济宪政是以保障基本权利为基础、以社会本位为核心价值的宪政理念。为了实现政府干预的宪政目标,应限制行政权力,要求政府干预遵循法治化的进程,以确保宪政经济权利并接受违宪审查。     

中美非法证据排除规则的规制与适用比较研究——兼析我国“非法证据排除第一案”

美国非法证据排除规则的内涵是,警察在调查取证时,如果违反宪法第四修正案（免于非法搜查）、第五修正案（不得自证其罪）以及第六修正案（获得律师帮助）所保障的宪法基本权利,获得的证据将不会被法院所采用。美国法院还进一步创设了“毒树之果”、“米兰达规则”以及相应限制规则,实现了对该规则的双向规制。我国新修订的刑事诉讼法以成文法形式规定了非法证据排除规则,从立法层面来看,我国并没有完全吸收其宪法基本权利的保障内涵;从适用层面来看,我国法院适用得当,但是说理不足,使该规则并不具有法定可预期性。加强非法证据排除规则的宪法理论研究是更好实施该规则的前提。     

What happens when a reform works? The need to study unanticipated consequences of mandatory processing of domestic violence

One of the primary facets of the sociology of law is concerned with the relationships between formal rules and regulations having the force of governmental social control and the values, norms and practices of those who enforce them (or not). This “law in action” perspective enables research to test out the differential impact on legal decisions of both formal and informal aspects of social control (Hawkins, 1992). One of the limitations of recent work on domestic violence is that it focuses too narrowly on one or two negative sanctions, e.g., arrest or restraining orders, to the exclusion of the other options and the mix of formal and informal decisions in the criminal justice system as a whole (Reiss, 1974). This research attempts through a close analysis of the workings of the Quincy, Massachusetts criminal justice system in response to domestic violence, to identify the consequences, unanticipated and anticipated, of decisions made in several domains (public, police, prosecutors, and courts) of the criminal justice system. This study uses in-depth interviews with batterers, victims and criminal justice agency and related personnel as well as agency policies, training materials and records to examine possible unintended consequences of aggressive intervention in cases of domestic violence. This study will explore the impact of the Quincy Domestic Violence Program, considered to be a national model, on the lives of victims and offenders who are treated by the court. We have selected the District Court at Quincy, Massachusetts as our research site. It has a well deserved national reputation treating abusers systematically from the initial intake by arresting officers through close supervision in probation.     

All Bark and No Bite: Notes on the Federal Constitutional Court's 'Banana Decision'

The Federal Constitutional Court's banana decision of 7 June 2000 continues the complex theme of national fundamental‐rights control over Community law. Whereas in the ‘Solange II’ decision (BVerfGE 73, 339) the Federal Constitutional Court had lowered its standard of review to the general guarantee of the constitutionally mandatorily required minimum, the Maastricht judgment (BVerfGE 89, 155) had raised doubts as to the continued validity of this case law. In the banana decision, which was based on the submission of the EC banana market regulation by the Frankfurt‐am‐Main administrative court for constitutional review, the Federal Constitutional Court has now confirmed the ‘Solange II’decision and restrictively specified the admissibility conditions for constitutional review of Community law as follows. Constitutional complaints and judicial applications for review of European legislation alleging fundamental‐rights infringements are inadmissible unless they show that the development of European law including Court of Justice case law has since the ‘Solange II’ decision generally fallen below the mandatorily required fundamental‐rights standard of the Basic Law in a given field. This would require a comprehensive comparison of European and national fundamental‐rights protection. This paper criticises this formula as being logically problematic and scarcely compatible with the Basic Law. Starting from the position that national constitutional courts active even in European matters should be among the essential vertical ‘checks and balances’ in the European multi‐level system, a practical alternative to the Federal Constitutional Court's retreat is developed. This involves at the first stage a submission by the Federal Constitutional Court to the Court of Justice, something that in the banana case might have taken up questions on the method of fundamental‐rights review and the internal Community effect of WTO dispute settlement decisions. Should national constitutional identity not be upheld even by this, then at a second stage, as ultima ratio taking recourse to general international law, the call is made for the decision of constitutional conflicts by an independent mediating body.     

论基本权利的发展趋势

基本权利是宪法的核心和关键,是宪法的生命和价值所在,是宪法之所以成为根本法的原因.通过历史和实证分析,探讨近代宪法和现代宪法在确认和保障公民基本权利方面的若干发展趋势,即由自由权发展到社会权,由法律保障发展为宪法保障,由国内保障发展为国际保障.基本权利的这些发展趋势对我国的宪政制度建设提出了若干引人深思的问题.     

Accessibility to new drugs for use in military and civilian exigencies when traditional human efficacy studies are not feasible; determination under the interim rule that informed consent is not feasible for military exigencies; request for comments--FDA. Request for comments

The Food and Drug Administration (FDA) is requesting written comments related to the advisability of revoking or amending the interim final rule that permitted the Commissioner of Food and Drugs (the Commissioner) to determine that obtaining informed consent from military personnel for the use of an investigational drug or biologic is not feasible in certain situations related to military combat. The agency is also soliciting written comments identifying the evidence needed to demonstrate safety and effectiveness for such investigational drugs that cannot ethically be tested on humans for purposes of determining their efficacy. FDA is seeking written comments from all interested groups, including, but not limited to: Consumers, patient groups, veterans and veteran groups, active-duty military personnel, organizations and departments, ethicists, scientists, researchers with particular expertise in this area, and health care professionals. The written comments are intended to provide FDA with information to help the agency in making policy decisions on the use of investigational products during military exigencies and the appropriate evidence needed to demonstrate safety and effectiveness for drug and biological products used in military or other exigencies when traditional human efficacy studies are not feasible.     

宪法判断的正当化功能

对特定国家行为的合宪性作出具有法律效力的宪法判断,有助于实现基本权利的保障和法律体系的统一。除此之外,对国家行为的正当化也是宪法判断所能实现的一个重要功能。宪法是法律体系的正当性基础,通过对法律规范作出合宪判断,可以直接强化其宪法上的正当性,而即便是违宪判断,通过法律技术的运用和处理,也可以实现对特定法律规范或国家行为的正当化功能。     

论违宪审查在东欧国家转型中的作用

东欧转型在法制方面的一项重要内容是普遍建立以宪法法院为审判机构的集中违宪审查制度。宪法法院通过对宪法文本中法治原则的阐释以实现国家转型的法治目标。宪法法院阐释的法治原则内容具体包括法的安定原则、分权原则、合比例原则、司法独立原则和基本权利司法救济保障原则等五项原则。     

我国宪制发展中短期态势评估

我国宪法确立了国家的基础性制度架构,内容包括若干基本宪法原则、公民宪法权利的范围及其保护、国家权力的横向和纵向配置,以及宪法的保障实施。我国宪制发展面对的课题可概括为以下几种:使政治、法律体制改革跟上经济体制改革的步伐;有效保障宪法确认的公民基本权利;实现执政党与国家关系的法治化;形成独立的有权威的司法体系;建立行之有效的违宪审查制度。我国完全可以在今后5-10年内实现一些具体的宪制改革目标,其中包括:初步实现政党以及执政党与国家机关关系的法制化;省、自治区、直辖市人大代表乃至全国人大代表由选民直选产生;修改选举法,容许人大代表选举实行竞选;实现不同职业选民的平等选举权;使司法机关相对于本级地方党委和本级地方其他国家机关有较大独立性;采取立法措施弥补公民基本权利法律保障方面的缺失;消除地方因权力过度集中于执政党的领导机构而形成的党的书记破坏法制、搞个人专制的问题;在全国人大内部设立宪法监督委员会作为设立宪法法院前的过渡措施;逐步终止地方国家机关正职领导人员选举和补选环节普遍违反法律原则的做法。     

Civil liability of private security: Enforcer of moral obligations to right legal wrongs

The private security industry in the United States now has approximately twice as many personnel as does the public police. Private Security personnel have authority over the liberty, and sometimes the lives, of customers and employees. Often they exercise this awesome responsibility with little if any background and training. In most instances private security personnel are not considered law officers or peace officers and are, therefore, not bound by the same rules and regulations that apply to public police. More and more frequently, untrained or minimally trained, and basically unqualified security officers are taking actions against customers and employees which are excessive and unreasonable. Without the Constitutional protections which would be available if the act were committed by a public police officer, the only recourse for a private individual against reckless and wanton conduct on the part of private security personnel is a civil action, seeking compensation for the inconvenience caused or injuries received. The courts have found that companies and their security personnel have an obligation to be reasonable in their investigations of suspected criminal violations by employees and customers. Failure to conduct a proper and reasonable investigation will open the individual directing the investigation, and the company authorizing it, to liabililty for the injury their improper actions have caused. Civil liability suits have become the moral enforcer for improper and excessive conduct by private security personnel.     

融贯民商:职务代理的构造逻辑与规范表达  ——《民法总则》第170条释评

职务代理是一项传统的商事代理制度。职务代理权源于被代理人的意定授权，但其范围和类型受到法律规定的限制，被代理人承受职务代理行为的效果是法律规定的结果。我国《民法总则》第170条系以民商合一理念为指导，首次在民法典总则编中明确规定了职务代理规范。在制度功能上，该规范有助于统一司法裁判。但基于职务代理制度的商事属性，该条第1款的适用范围需被限缩，与职务代理有关的商事登记制度还需完善，职务代理权类型还需细化。同时，该条第2款是职务代理制度的特殊规范，适用时应注意它与表见代理和普通无权代理的区分。未来可在《商法通则》中通过建构统一的商事登记规范和对职务代理权的类型化处理，完善职务代理制度。