刑事被害人陈述的证据学思考

有关被害人陈述制度,在刑事司法实践中存在诸多困扰和矛盾之处,被害人不同诉讼身份所带来的紧张关系对其陈述的证明力造成不利影响;被害人的控诉职能导致其自由陈述受到限制。新近立法对被害人陈述制度做出了部分努力,但仍不完善。因此,必须修正被害人身份冲突;确立人证取得以任意侦查为原则,以强制侦查为例外的取证规则;明确非法取证行为的审查主体及程序;确立翻证免受刑事追诉为原则,承担刑事责任为例外的规则。     

The federal government and academic texts as barriers to informed consent

Informed patient consent for medical treatment is required by both law and medical ethics. Yet, both federal agencies and academicians are participating in the suppression of information about the heightened risk of breast cancer posed by oral contraceptives and induced abortion. There is historical precedent in the long-delayed acknowledgement of the smoking/lung cancer link. By law, a patient has the right to be fully informed of the nature of her medical condition and any proposed course of therapy. It is assumed that a patient will be given the complete and true scientific basis of her diagnosis and treatment, to ensure that her well-being and her autonomy in decision-making are protected. Informed consent is the process by which a patient can participate in choices about medical treatment. It originates from the legal and ethical right of the patient to direct what is done to her body, and from the ethical duty of the physician to involve the patient in her medical care. Our federal government has become a barrier to informed consent concerning oral contraceptive drugs and induced abortion.     

刑事被害人陈述的证据学思考

有关被害人陈述制度,在刑事司法实践中存在诸多困扰和矛盾之处,被害人不同诉讼身份所带来的紧张关系对其陈述的证明力造成不利影响;被害人的控诉职能导致其自由陈述受到限制。新近立法对被害人陈述制度做出了部分努力,但仍不完善。因此,必须修正被害人身份冲突;确立人证取得以任意侦查为原则,以强制侦查为例外的取证规则;明确非法取证行为的审查主体及程序;确立翻证免受刑事追诉为原则,承担刑事责任为例外的规则。     

How Democratic is Civil Disobedience?

In her book, Conscience and Conviction, Kimberley Brownlee argues that there is nothing undemocratic about the robust, primary right to civil disobedience that she devotes most of her argument to defending. To the contrary, she holds that there is nothing paternalistic about civil disobedients opposing the will of democratic majorities, because, inter alia, democratic majorities cannot claim particular epistemic superiority, and because there are flaws inherent to democratic procedures that civil disobedience addresses. I hold that Brownlee’s arguments fail. In particular, her argument fails because it does not properly construe the nature of the epistemic claim that can be made either by democratic procedures or by civil disobedients, and because it illegitimately conflates the concern about permanent minorities that has been a constant thorn in the side of democratic theorists, with a concern with all outvoted minorities, whether permanent minorities or not.     

Court Procedures

It has been said that “the court is the second trauma.” It might be better to say the system, rather than the court. The President's Task Force (page 51) recommends a federal study “to evaluate the juvenile justice system from the perspective of the victim.” The system may interview the child time and again, each time making her relive the experience, keeping the wound open. It may force her down to court waiting rooms where she sits uncomfortably without even the accoutrements of a dentist's office for hours and then often to be told that the case was continued and to come back next week. She may be put on a witness stand, in a big formal room, with what seems like a thousand eyes staring at her, and a bailiff in full uniform ready to lock her up, and a judge in a black robe towering above her. She may find that the newspapers and television are full of her name and pictures and stories about what happened to her which they obtained from the official records. And this may make her the focus of her classmates with all the brutal teasing that can involve. The system may also suddenly arrest her father and just as suddenly release him. It may plea bargain away her future hope of rehabilitation without even talking to her, in the name of speedy justice. The system is always more concerned with the well-being of the criminals than of the victims. When children are the victims, surely change can be made. Recommended by the President's Task Force (page 73), a starting point is to require “that judges at both the trial and appellate level(s) participate in a training program addressing the needs and legal interests of crime victims.”     

The Executive as Executioner and the Informed Governance Principle

An executive ought to be as informed as possible about the needs and preferences of her constituency and about the most important policy issues that her constituency confronts. This ethical duty, referred to as the “informed governance principle,” requires that an executive who is not opposed to the death penalty personally carry out at least one execution of a death row inmate. Having an executive act as executioner, even if just once, could also help citizens reflect upon their personal ethical commitments, spur them to monitor the government’s power, and prompt them to contemplate how best to distribute power so that the chance of injustice is minimized.     

A case of homicidal intoxication by chloropicrin

An 18-year-old girl and her boyfriend were sprayed with toxic chemicals from the left front door of their parked car. The girl died of intoxication about 4 h later. The main findings of postmortem examination were spotty discolorations on her skin and severe pulmonary edema. The unknown chemical was identified as chloropicrin by gas-liquid chromatography and gas chromatography-mass spectrometry of her lung and on samples from the car's console box, cassette tape case, and floor mat, all of which were wet with chemicals. The content of chloropicrin in her lung was calculated at 1.6 ng/g of wet weight.     

Was Ellen Wronged?

Imagine a citizen (call her Ellen) engages in conduct the state says is a crime, for example, money laundering. Imagine too that the state of which Ellen is a citizen has decided to make money laundering a crime. Does the state wrong Ellen when it punishes her for money laundering? It depends on what you think about the authority of the criminal law. Most criminal law scholars would probably say that the criminal law as such has no authority. Whatever authority is has depends on how well it adheres to the demands of morality inasmuch as morality is the only authority we have. Thus if morality says that money laundering should not be a crime then the state wrongs Ellen when it punishes her. But if the criminal law as such does have authority, and if in the exercise of its authority the state has decided to make money laundering a crime, then the state does Ellen no wrong when it punishes her.     

在押被告与律师会见通信权的保障与限制——以欧洲人权法院裁判为借镜

在押被告能够接触辩护律师并在不受监察的情况下进行会见通信,是达成有效辩护的关键,但基于监所秩序管理与刑事程序保全,又不能一概排除限制会见通信的措施。这里涉及不同目的之间的冲突和调和,在此欧洲人权法院裁判关于会见通信保障与限制的解释与运作值得参考。我国《刑事诉讼法》应确立自由交流权的立法基点,在押被告与辩护律师之间,应以会见通信不受监察为原则,限制会见通信为例外。监察措施应贯彻必要性和比例性原则,构建防止监察手段滥用的程序担保措施。     

Symmetry,proportionality and productivity bias hypothesis: evidence from panel-VAR models

By imposing symmetry and proportionality conditions and using the asymptotic theory of panel-VAR models, this study examines the behavior of real exchange rates and productivity bias hypothesis for New Zealand vis-a-vis her major trading partners and the proposed free trade area. The evidence clearly rejects the strong version of the PPP hypothesis but the weak version of the PPP hypothesis receives some support. The findings also indicate that productivity differentials among countries are one of the major sources that contribute to the deviation of the PPP-based exchange rate from the equilibrium rate. Policy implications for the proposed free trade agreement are offered.     

Batterers Stalking Patterns

This clinically based study asked 165 batterers attending a court-mandated assessment program to quantify a series of behaviors that occurred since being convicted of battering. The behaviors clustered into 2 factors: (1) an Ambivalent Contact Pattern whereby behaviors of batterers were associated with contacting their ex-partner, sending gifts and letters, and watching her without her knowing while harboring conflicting feelings of love, hate, and anger; and (2) a Predatory Contact Pattern whereby the behaviors of batterers were associated with hang up calls, entering her home without permission, threatening or physically causing harm to her while harboring a propensity for abusiveness. Clinicians should assess batterers for predatory thoughts about the estranged partner, and reason for the contact since separation. Presence of stalking behaviors and predatory fantasy is a window to determine repetitive and escalating domestic violence.     

Individual and collective justice and injustice: Implications for intergroup conflict

This paper focuses on the combined impact of individual and collective justice and injustice on intergroup conflict. The basic premise is that an adequate understanding of the course of intergroup relations requires knowledge not only about relevant conditions on the intergroup level, but also about the intragroup conditions that might predispose each group to assume a particular type of social orientation. It is assumed that an individual is more dissatisfied when both s/he and her/his group are unjustly treated than when only either one is. The consequences of different combinations of justice and injustice for the individual and his/her group are specified for the intensity of conflict between two groups. Sixteen intergroup scenarios are first derived and rank-ordered, via three assumptions, in terms of how aversive they are likely to be from the perspective of one of two interacting groups. The viewpoints of both groups are then taken into account in an attempt to make predictions about the potential for and intensity of intergroup conflict.     

Movie review

An invisible population exists which is doing time with prisoners serving sentences in New York state prisons. Mothers, fathers, wives, husbands, sisters, brothers, and children of prisoners suffer the same isolation, discrimination, and financial and emotional burdens that the prisoners do. The writer, who once served as a chaplain to prisoners receiving care in hospital, tells of her experiences, including her marriage to a prisoner who died within the walls. She discusses his medical care, death, and how she was able to set him free at last. While most of society believes prisoners to be dangerous sociopaths, another segment recognizes their similarities to the rest of us and loves them. Finally, the author calls for understanding and compassion and a restorative approach to justice.     

When Children are the Least Vulnerable to False Memories: A True Report or a Case of Autosuggestion?

In this case report, a legal case revolving around the reliability of statements given by a 6‐year‐old girl is described. She claimed to have witnessed her mother being murdered by her father. Two psychological experts provided diametrically opposed opinions about the reliability of her statements. One expert, a clinician, opined that the girl's statements were based on autosuggestion whereas the other expert, a memory researcher, stated that autosuggestion was unlikely to have played a role. This case and the analysis of the experts' opinions illustrate what may happen when experts in court are unaware of the recent literature on (false) memory. That is, recent studies show that autosuggestion is less likely to occur in young children than in older children and adults. The current case stresses the importance and implications of relying on memory experts in cases concerning the reliability of eyewitness statements.     

A case of sudden infant death due to a primary cardiac sarcoma

The case reported herein concerns the unexpected death of a 3-month-old female newborn who suddenly collapsed in her mother's arms and was dead on arrival at the hospital. The clinical histories of the baby and her parents were negative for symptoms or signs of illness, even those of cardiovascular origin. Furthermore, no clinical appearance of a pathologic status was noted by pediatricians after the birth until the last emergency recovery. The autopsy excluded external and internal signs of violence but revealed a large primary cardiac tumor arising from the free wall of the left ventricle, which had totally invaded the heart causing mitral valve deformation. Histological examination showed a low-grade sarcoma that completely infiltrated the myocardial tissue. The pathogenesis of this sudden infant death was postulated as being owing to a fatal ventricular fibrillation combined with a tumor-related restrictive cardiomyopathy obstructing left ventricular filling.     

Rogers v. Whitaker

The High Court of Australia affirmed the Supreme Court of New South Wales' determination that a doctor has a duty to warn a patient of any material risk involved in a proposed treatment. A risk is considered material if a reasonable person in similar circumstances would attach significance to the risk, or if the doctor is, or should be, cognizant that the particular patient would express concern about the risk. The trial court overruled the precept that a doctor could not be found negligent in warning a patient if the doctor acted within the purview of common practice, even though other practitioners may follow different procedures and regardless of the particular patient's concerns. In this case, Maree Whitaker became essentially blind after an unsucessful operation on her right eye caused sympathetic ophthalmia in her left eye. Although there was no question that the surgery had been performed with the requisite skill and care, Ms. Whitaker petitioned the court for relief due to the failure of the ophthalmologist, Dr. Christopher Rogers, to warn her of the possibility (approximately 1 in 14,000) that the sympathetic ophthalmia condition could develop. The trial court's award of damages was affirmed because, in spite of Ms. Whitaker's expressed specific concern that her "good eye" not be harmed, Dr. Rogers did not inform her of the potential risks associated with the surgery.     

Adoption and Victorian culture

In 1888, evangelical, educator and feminist Constance Maynard adopted Effie Anthon, a six year old girl from a Salvation Army orphanage. Her mother, Rosabianca Fasulo was an unmarried, Italian woman recently “rescued” by the Salvation Army. Maynard anticipated that Effie would one day join her at her college but she met none of the expectations for her. She entered domestic service but fell ill with tuberculosis and died in a workhouse in 1915. This is one particular case history of an adoption when the practice was not yet formalized but small numbers began to adopt children unknown to them. It tentatively opens up the history of adoption in Victorian Britain. It also illuminates some broader questions about family ties, the meanings associated with motherhood, and how the body and character formation were understood.     

The medically examined applicant for private insurance and his/her right to informed consent: a comparative analysis

Within the context of health and insurance law, an important question that arises is "to what extent is an applicant for private insurance truly capable of giving his/her 'free' and informed consent for a medical examination?". It should be borne in mind that it is the private insurer who requires a medical examination in order to gather medical information, and, moreover, that the insurer will not be inclined to conclude or carry out an insurance contract without this medical information. A distinction has to be made between not being free by legal coercion and not being (completely) free by factual circumstances. Exercising the right to informed consent involves exactly weighing up the consequences of the decision. Hence the applicant must be put in a position of being able to weigh up the consequences and take them into consideration.