Fair and Expeditious Pre-trial Proceedings: The Future of International Criminal Trials

In recent times it has been argued that international criminalproceedings are too costly, too long and no longer politicallyor financially viable. This article proposes several ways inwhich pre-trial proceedings in international criminal trialsmay be fairly expedited. The author argues that more judicialinvolvement in the pre-trial phase could assist in reducingthe length and ineffectiveness of international criminal trials.     

The Impact of the ICTY Trials on Public Opinion in the Former Yugoslavia

If the impact of the ICTY in the countries of the former Yugoslaviawere to be measured exclusively by the poor public perceptionof the Tribunal that prevails, perhaps the best course of actionwould be to shut its doors without waiting for the end of itsmandate. The author tries, however, to show the more complexand multifaceted nature of the perception of the Tribunal atdifferent levels, in the different countries of the former Yugoslavia,as well as at different moments in time. His conclusion is thatthe ICTY should have done more to improve its image in the region,thereby making it more difficult for the local elites to distortand manipulate its message.     

Investigation and Prosecution of Large-scale Crimes at the International Level: The Experience of the ICTY

Although the prosecution of large-scale crimes at the internationallevel shares some similarities to the prosecution of organizedcrime at the national level, there are a number of importantdifferences that make the two areas hardly comparable. Two distinctivetraits of international criminal proceedings stand out in thisregard: (i) the lack of any enforcement agency that would allowprosecuting authorities to carry out investigations on the territoryof an interested state without its assistance and the absenceof a general power to carry out such arrests, which render statecooperation of prime importance and (ii) the fact that the proceduralmodel of international criminal tribunals is mixed containingelements of accusatorial (common law) as well as inquisitorial(civil law) systems. As far as prosecutions are concerned, usefulconcepts and procedures adopted from both legal traditions canbe found in the Statute, the Rules of Procedure and Evidenceas well as in the approach of prosecutors, defence counsel andjudges to the introduction of evidence and, more generally,to the manner in which proceedings are conducted. One of themain examples of this is the acceptance of proof of facts bymeans other than oral evidence as a result of the influenceof the civil law tradition, which has progressively made itsway in the procedural system of the International Criminal Tribunalfor the former Yugoslavia (ICTY). Yet, on the other hand, somemethods normally resorted to in national criminal prosecutionmay turn out to be useful at the international level, such asresorting to insider witnesses. Although known to domestic systems,such practice may have a particular significance in the contextof the prosecution of international crimes. So have additionalforms of criminal participation (such as the notion of jointcriminal enterprise). Only a mixing of traditional and innovativeinvestigative tools and the proper balance of the differentlegal cultures can ensure effective prosecution of internationalcrimes.     

Prosecuting and Defending Diplomats as War Criminals: Ribbentrop at the Nuremberg Trials

This article considers the question of holding foreign ministers responsible for war crimes. A recent decision by the International Court of Justice, the Arrest Warrant case, Congo v Belgium, appears to have diluted the developing international customary rule that suspends immunity when a grave international crime has been committed. This article suggests that the Nuremberg International Military Tribunal decision in the Ribbentrop Case constitutes a precedent for how international criminal law should interpret the nature and scope of the immunity for foreign ministers. As a successful prosecution of Hitler’s former foreign minister, it is remarkable how little attention has been paid to this aspect of the Ribbentrop Case given that it was a path-breaking decision. For that reason, the present article is a case study of this example where prosecutors at an international criminal tribunal were able to successfully prosecute a foreign minister in a manner that may, therefore, still prove instructive given the existing legal position following the Arrest Warrant Case. The article considers in detail how Ribbentrop’s defence lawyers constructed a series of arguments that the prosecution were, however, largely able to demolish through resort to a variety of strategies. Dr Michael Salter is Professor of Law at the Lancashire Law School, University of Central Lancashire, United Kingdom; Dr Lorie Charlesworth is Senior Lecturer at the Law School, Liverpool John Moores University, United Kingdom.     

Literacy: A Process of Interpreting the World as a Text

Abstract

Literacy today means developing a technical skill on an electronic machine. (French 1990)     

The Enforcement of Arrest Warrants by International Forces: From the ICTY to the ICC

The conflict in the former Yugoslavia set a precedent in modernhistory for having a multinational military force being empoweredand directed to execute arrest warrants issued by an internationalcriminal tribunal. On legal grounds, the International CriminalTribunal for the former Yugoslavia (ICTY) attained this resultby relying on the broad wording of its governing Statute coupledwith the ICTY's own rule-making powers. In contrast, the draftersof the International Criminal Court (ICC) Statute elaboratedon the nature of the cooperation from international forces insignificantly more details but at the same time opted for reducingthe ICC's powers vis-à-vis these forces. Therefore, theICC Statute now runs contrary to the ICTY's case law recognizinga judicial power to order an international force to executean ICTY arrest warrant. This deferential stance towards collectiveenterprises of states not only infringes upon the States Parties’general obligation to cooperate with the ICC, but, in the end,weakens the ICC's ability to enforce international criminaljustice.     

The Legal Profession as a Social Process: A Theory on Lawyers and Globalization

This article proposes a processual theory of the legal profession. In contrast to the structural, interactional, and collective action approaches, this processual theory conceptualizes the legal profession as a social process that changes over space and time. The social process of the legal profession includes four components: (1) diagnostic struggles over professional expertise; (2) boundary work over professional jurisdictions; (3) migration across geographical areas and status hierarchies; and (4) exchange between professions and the state. Building on the processual theory and using China as a primary example, the author proposes a research agenda for studying lawyers and globalization that seeks to shift the focus of research from the legal elite to ordinary law practitioners, from global law firms to local law firms, and from advanced economies to emerging economies.     

A Study of Leucine Aminopeptidase as a Possible Means of Identifying Semen

Leucine aminopeptidase (LAP) activity was investigated in a number of human body fluids, vegetable extracts, casework stains and vaginal swabs by means of either a spot test or photometric assay. The vaginal swabs were also examined for acid phosphatase (AP) and the levels of activity of both enzymes were compared. The results show that LAP can be readily detected in semen stains by means of the spot test or photometric assay. The spot test for LAP was found to be slower and less sensitive than the widely used AP test although no positive reactions were obtained with semen-free vaginal swabs. None of the other body fluids tested, including saliva, gave positive reactions although a slight positive reaction with faecal material was recorded.     

Metadata Retention as a Means of Combatting Terrorism and Organised Crime: A Perspective from Australia

On October 13, 2015, new laws came into force in Australia requiring telecommunications service providers to retain and store their ‘metadata’ for 2 years so that it remains available for analysis by anti-terrorism strategists and organised crime fighters. But there are ongoing issues associated with this legislative approach, including the threats to privacy thereby, and concerns that the retention system can be circumvented entirely. This paper will outline the legal and criminological questions that need to be explored in order to help policymakers work through these issues so that an appropriate balance can be struck between forestalling crime and terrorism using all available electronic means, and not unduly curtailing the legitimate rights to privacy that citizens in modern democracies currently expect to enjoy.     

Loperamide as a Potential Drug of Abuse and Misuse: Fatal Overdoses at the Medical University of South Carolina

Loperamide is an over‐the‐counter, μ‐opioid receptor agonist commonly used as an antidiarrheal agent. Loperamide was thought to have minimal abuse potential due to its low bioavailability and limited central nervous system activity; however, there have been increasing reports of loperamide misuse in supratherapeutic doses to achieve euphoria and/or avoid opioid withdrawal. A literature review suggests a rise in loperamide abuse was inevitable, with substantial increases in reported cases over the last decade. Five fatal cases of toxic medication use where loperamide was listed as a primary or contributory cause of death were identified at the Medical University of South Carolina. The characteristic autopsy demographics and findings are described, and the mechanisms of abuse and toxicity of loperamide are reviewed. Loperamide overdoses are a growing concern from both a forensic and clinical standpoint, and the frequency of reported cases will likely increase as awareness grows within the medical and toxicological communities.     

Due Process and the Death Penalty: The Role of Prosecutorial Misconduct in Closing Argument in Capital Trials

Prosecutorial misconduct in closing argument during the penalty phase of capital trials can be defined as any disparaging or prejudicial statements calculated to influence the jury to consider improper factors in determining life in prison or the death penalty (Gaskill, 1991, p. 13). Improper statements made by the prosecutor during closing argument may jeopardize a defendant's right to a fair trial. While acknowledging such statements as misconduct, courts sometimes permit them on the theory that the presence of improper statements in closing argument would not change the juries' verdicts and therefore are not fundamentally unfair (Chapman v. California, 1967). The present study examined whether improper statements made by the prosecutor in closing argument during the penalty phase of a capital trial would result in more death penalty recommendations. Three hundred and twenty jury-eligible individuals viewed a videotape based on the penalty phase of an actual capital trial (Brooks v. State, 1977). Individuals exposed to improper statements made by the prosecutor in closing argument recommended the death penalty significantly more often than those not exposed to the statements.     

Desistance as a Developmental Process: A Comparison of Static and Dynamic Approaches

New research in the field of developmental criminology has led researchers to reconceptualize desistance as a behavioral process that unfolds over the life course. This approach puts more emphasis on the pathways by which people reach the state of non-offending, and less emphasis on the state of non-offending itself. This reconceptualization has implications for how we measure desistance in longi-tudinal data. In this paper, we suggest that the traditional measurement approach is inconsistent with this view, and we present an alternative measurement approach based on the premises of developmental criminology. Although not perfect, we argue that the dynamic measure better describes the key elements of the process of desistance. Both approaches are implemented using data from the Rochester Youth Development Study, a longitudinal study of youthful offenders. We demon-strate that the two approaches identify different people as desistors. Moreover, we argue that the dynamic definition of desistance has more promise for providing insight into the changes that are the behavioral focus of the desistance process.     

A Comparison of the Effectiveness of Swabbing and Flossing as a Means of Recovering Spermatozoa from the Oral Cavity

This study examined whether flossing the teeth is a more effective collection method in recovering spermatozoa than conventional swabbing techniques. It was hypothesized that inclusion of flossing as a collection method would extend the recovery of spermatozoa to longer postcoital intervals (PCIs). Eighteen individuals provided 174 oral cavity samples. Successful recovery of spermatozoa was assessed with respect to the collection method and reported activity in the oral cavity during the PCI. Samples were subjected to a differential extraction procedure prior to microscopic evaluation of the extracted pellet. The results indicate that swabbing is more effective than flossing when the PCI falls within 1.5–12 h. However, spermatozoa were recovered from seven floss samples where the corresponding swabs gave negative results. When combining the results from the two collection methods, the percentage of subjects from whom spermatozoa are recovered increases for each PCI beyond the 0‐h interval.     

Block Randomized Trials at Places: Rethinking the Limitations of Small N Experiments

Objectives

Place-based policing experiments have led to encouraging findings regarding the ability of the police to prevent crime, but sample sizes in many of the key studies in this area are small. Farrington and colleagues argue that experiments with fewer than 50 cases per group are not likely to achieve realistic pre-test balance and have excluded such studies from their influential systematic reviews of experimental research. A related criticism of such studies is that their statistical power under traditional assumptions is also likely to be low. In this paper, we show that block randomization can overcome these design limitations.

Methods

Using data from the Jersey City Drug Market Analysis Experiment (N = 28 per group) we conduct simulations on three key outcome measures. Simulations of simple randomization with 28 and 50 cases per group are compared to simulations of block randomization with 28 cases. We illustrate the statistical modeling benefits of the block randomization approach through examination of sums of squares in GLM models and by estimating minimum detectable effects in a power analysis.

Results

The block randomization simulation is found to produce many fewer significantly unbalanced samples than the naïve randomization approaches both with 28 and 50 cases per group. Block randomization also produced similar or smaller absolute mean differences across the simulations. Illustrations using sums of squares show that error variance in the block randomization model is reduced for each of the three outcomes. Power estimates are comparable or higher using block randomization with 28 cases per group as opposed to naïve randomization with 50 cases per group.

Conclusions

Block randomization provides a solution to the small N problem in place-based experiments that addresses concerns about both equivalence and statistical power. The authors also argue that a 50 case rule should not be applied to block randomized place-based trials for inclusion in key reviews.     

缺乏对抗的“被告人说话式”审判——对我国“控辩式”刑事审判的实证考察

我国立法机关于1996年在吸收了对抗式刑事审判合理因素的基础上,创设了"控辩式审判"方式,以解决庭审走过场的弊端和实现控辩审职能的分化。从司法实践来看,改革者的目标并没有得到实现。我国的刑事审判在实际运作上是一种缺乏对抗的"被告人说话式"审判,具体表现在:庭审上趋于消极但不中立的法官,公诉人对审判的单方面主导,被告人是法庭上的"主角","说话权"受限的量刑辩护人,法庭调查的书面化等。由此导致我国刑事审判制度的双高现象:高效率和高定罪率。