Prosecutors' Discretionary Use of the Grand Jury to Initiate or to Reinitiate Prosecution

This study examines the exercise of prosecutorial discretion in two areas: the decision to initiate prosecution by indictment (in lieu of a preliminary hearing) and the decision to reinitiate prosecution by indictment after preliminary hearing discharge. To explore concerns about prosecutors' use of the grand jury to pursue prosecution in cases with insufficient evidence to convict at trial, the author studied prosecutors' practices in murder cases in Cook County, Illinois. To gather the information the author collected disposition data for prosecutions initiated by grand jury and by preliminary hearing, interviewed prosecutors, and examined prosecutors' case documents indicating reasons for declining or pursuing prosecution of discharged cases. The data show similar conviction rates for prosecutions initiated by grand jury and those by preliminary hearing but a significantly lower rate for prosecutions reinitiated after discharge. Three reasons for the latter finding are discussed: special evidentiary characteristics of reinitiated cases, seriousness of the offense studied, and prosecutors' special motivations and practices in serious cases. The author suggests that although prosecutors typically are constrained by practical, organizational, professional, and ethical concerns, they may in extraordinary situations reinitiate prosecution of weak cases. In light of the study's findings, the author assesses several proposals to eliminate or restrain prosecutors' power to reinitiate.     

公共政策视野下的起诉裁量权

本文以公共政策为视角,分析公共政策对起诉裁量权配置和运行的影响,讨论了保护被害人利益的公共政策,宽严相济、惩罚与教育并重的公共政策、公正与效率兼顾的公共政策对起诉裁量权的作用,以及起诉裁量权中所应有的协商性、交往性含义,并通过应然与实然的比较,提出我国起诉裁量权问题上观念更新和制度更新的必然性和紧迫性.     

The Prosecution Service Function within the Swiss Criminal Justice System

The criminal justice system of Basel is described as a cantonal example for Switzerland. Special attention is paid to the Prosecution Service Function within this framework and its relationship to police and courts. The article not only refers to legal provisions but to the factual handling of criminal cases as well.     

The Prosecution Service Function within the Turkish Criminal Justice System

The national criminal justice system of Turkey is described. Special attention is paid to the Prosecution Service Function within this framework and its relationship to police and courts. The article not only refers to legal provisions but to the factual handling of criminal cases as well.     

The Prosecution Service Function within the Croatian Criminal Justice System

The national criminal justice system of Croatia is described. Special attention is paid to the Prosecution Service Function within this framework and its relationship to police and courts. The article not only refers to legal provisions but to the factual handling of criminal cases as well.     

The Prosecution Service Function within the Spanish Criminal Justice System

The national criminal justice system of Spain is described. Special attention is paid to the function of the Public Prosecution Services within this framework and its relationship to police and courts. The article not only refers to legal provisions but to the factual handling of criminal cases as well.     

从裁量二元论到裁量一元论

裁量二元论长期以来是行政法领域中的支配性理论,它把裁量问题与法律问题作为各自独立的二元来理解;裁量一元论正好相反,它认为裁量问题与法律问题并非各自独立的二元,根本不存在不受法律拘束的自由裁量。裁量一元论自20世纪中期以来,随着大陆法系国家法院对行政裁量态度的转变而逐渐抬头;20世纪后期以来,更有取代裁量二元论之势。这一现象意味着大陆法系国家行政裁量观念发生了质变,其直接原因是“裁量滥用”法理的展开,更深层次的原因则是是法治国家理念的质变。     

Discretionary Justice: Decision Making in a State Juvenile Parole Board

The literature in Criminal Justice is replete with commentary on both the virtues and injustices associated with adult parole board decision-making. There has been far less attention paid to juvenile parole boards in part because so few of them exist. Institutional release decisions in most states still remain the purview of juvenile institutional staff members. This paper examines parole Authority decision-making in a citizen-dominated state juvenile parole board. The paper focuses on the conduct of hearings, dispositional guidelines, criteria used by board members in decision-making and the advocacy role of parole officers and institutional staff. The influence of deinstitutionalization and least restrictive policies on parole Authority decision making is also discussed. During recent years, the literature in criminal justice has become replete with commentary on the virtues and injustices associated with parole board decision-making. Consequently, many questions have been raised about disparate sentences, the criteria used by parole boards in making decisions, unstructured discretion, and the pressing need for guidelines and statistically accurate parole prediction instruments. The intent of this paper is to examine parole decision-making in a state juvenile parole board where individualized treatment and rehabilitation have been long standing goals. The paper focuses upon the criteria used by board members in decision-making, the conduct of hearings, the guideline system used to determine a recommended length of confinement and the advocacy role of parole officers and institutional staff. The influence of deinstitutionalization and least restrictive policies on parole board decision-making is also discussed. The author is presently completing the second year of a two-year appointment as a member of the Parole Authority under discussion. Since December, 1983, the author has continuously observed and participated in approximately 300 individual parole hearings over thirty-seven hearing days.     

Sound and Fury: Pretextual Prosecution and Department of Justice Antiterrorism Efforts

Using Justice Department antiterrorism efforts as a case study, this article expands upon existing theories of pretextual prosecution by distinguishing a law enforcement system that employs a pretextual strategy from one that employs what I term technical or disingenuous prosecutions. Contrary to Justice Department claims, the data suggest that since September 2001, federal investigators continually have referred a large number of specious antiterrorism matters to federal prosecutors. The data further suggest that federal prosecutors are more likely to be engaging in technical or disingenuous prosecutions than pretextual prosecutions.     

Overseeing Criminal Justice: The Supervisory Role of the Public Prosecution Service in China

The Chinese public prosecution service, the procuracy, is modelled on the Soviet Union system and has been accorded the controversial function of supervising other legal institutions in the criminal justice system. Drawing upon my own empirical data on the prosecution of crime in China, this article critically examines the way the power of supervision operates from an internal perspective. It argues that the power of supervision has been used as an institutional asset to secure the interests of the procuracy by analysing its oversight of police investigations and court decisions, the way prosecutors perceive themselves, and the efficacy of the supervision in a comparative context. The current status of the procuracy dictates that it is unable to undertake the role of supervision to safeguard the criminal process.     

职务犯罪案件审查起诉程序改革探讨

以同一检察院自侦自诉为基本、异地检察院起诉为补充的现行职务犯罪案件审查起诉模式存在着诸多问题,例如,侦查监督形同虚设,缺乏司法公信力,损害司法公平,加剧法检冲突。因此,有必要对现行模式予以改革。建议吸收现行模式中异地起诉的合理做法,对职务犯罪案件全面推行异地同级审查起诉。通过此举,可以改变同一检察院自侦自诉现状,切实发挥侦查监督作用;增强司法公信力,有利于保护犯罪嫌疑人的权利;消除司法处遇不平等情形,维护司法公平;减少法检冲突,节约司法资源。具体可从移送与受理程序、审查起诉程序、刑事立案监督程序、侦查活动监督程序、犯罪嫌疑人被告人逃匿死亡案件违法所得的没收程序以及其他程序等方面构建职务犯罪案件异地同级审查起诉程序。     

少捕慎诉慎押刑事司法政策研究

少捕慎诉慎押刑事司法政策是推进国家治理体系和治理能力现代化,实现强制措施制度回归诉讼保障功能,应对犯罪结构发生重大变化和深化落实宽严相济刑事政策的必然要求。贯彻少捕慎诉慎押刑事司法政策应当在厘清其内涵的基础上规范其适用范围并遵循一定的原则,其实施路径包括正确把握逮捕的条件;进行实质化的羁押必要性审查;用好、用足不起诉制度;与认罪认罚从宽制度合理衔接以及充分发挥辩护制度的重要作用等。检察机关作为捕诉职能的承担者,是该政策有效施行的“第一责任人”,应当充分发挥“司法纽带”作用。时机成熟时,应当对该政策进行延伸,形成“少拘少捕慎诉慎押慎判”的系统的刑事司法理念和政策。     

Sue and Labour:The Assured's Duty to Mitigate and the Insurer's Duty to Reimburse

Introduction The purpose of the sue and labour clause is well known,as Lord Blackburn stated in Aitchison v Lohre: to encourage and induce the assured to exert themselves,and therefore the insurers bind themselves to pay in proportion any expense incurred,whenever such expenses     

自诉转公诉问题思考

对于被害人享有自诉权的案件,公安机关或检察机关在一定条件下将其转为公诉,这有利也有弊。从域外立法规定和司法实践来看,自诉转公诉主要是通过直接提起公诉、接管自诉或独立上诉三种方式来实现的,它与代为告诉、自诉担当既有区别又有联系。完善我国自诉转公诉制度既要借鉴域外先进经验,又要立足我国国情,注意该制度可能产生的弊端,增强该制度的可操作性。     

宽严相济刑事政策视野中不起诉裁量权的行使

实施宽严相济刑事政策,构建和谐社会,正在成为我国具有广泛社会认同感的共同目标.检察机关作为国家的法律监督机关,在促进社会公平正义,建设法治国家中发挥着重要作用.但是由于我们在执法理念、刑事政策、队伍素质等方面存在一些问题,致使我国目前的裁量不起诉制度并未很好地体现立法的精神.我们应当以宽严相济刑事司法政策为蓝本,全面认识适用相对不起诉的价值取向,确保不起诉裁量权正确而有效地行使.     

论侦查裁量权之检察监督

侦查裁量权发挥了积极作用,但是仍然存在被滥用的危险。实践中,侦查机关裁量权主要分为实体事项裁量权、程序事项裁量权和侦查技术裁量权。检察机关作为国家的法律监督机关,加强对侦查裁量权的监督是检察监督的应有之义。检察机关通过不断提高发现职务犯罪的能力,加强检察机关对侦查活动的参与权,进一步规范、完善检察机关引导、指导和指挥侦查机制,积极提升检察监督的科技含量和检察干警的法律监督能力,促进刑事侦查裁量权合理行使。     

International Prosecution and National Bureaucracy: The Contest to Define International Practices Within the Danish Prosecution Service

This article explores how international ideals and practices of law enforcement come into conflict with national bureaucracies. Drawing on original interviews, the investigation demonstrates how the competition to define the role of international prosecution impacted career strategies as well as the actual administration of criminal law within the Danish Prosecution Service (DPS). The analysis shows that this competition is embodied in two competing groups of prosecutors situated in a wider national bureaucracy—itself subject to transformations that affect the very stakes of the contest to define the international. While the institutionalists build careers closely attuned to the systemic and increasingly lean‐management‐inspired requirements of the DPS, the dissident and consequently unsettled position of the activists leads them to craft alternative career strategies closely related to the emergence of new international fields of criminal law.     

Lawyers' Duty to Do Justice: A New Look at the History of the 1908 Canons

This article examines a long-forgotten controversy about lawyers' duties to evaluate the justice of their clients' causes in civil cases that took place among the members of the Committee of the American Bar Association (ABA) that drafted the 1908 Canons of Professional Responsibility. The article presents an analysis of newly discovered internal working documents of this important, but never before examined, ABA committee, supplemented with primary historical research into the views and backgrounds of the committee's members. The article demonstrates how a clash of perspectives among these men-traceable in part to their backgrounds but also to their unpredictable allegiances to conflicting trends in legal thought at the turn of the century-prevented the committee from reaching a satisfactory resolution on the duty's to-do-justice issue. The committee members instead adopted ineffectual compromise language in the Canons, leaving us with a legacy of concealed ambivalence on the question of lawyers' duty to do justice in civil cases.