刑事被告人证明责任研究

根据无罪推定原则 ,控诉方承担证明被告人有罪的责任 ,被告方不承担证明责任 ,这是一项基本原则。但证明责任包括证明有罪的责任和证明无罪的责任 ,被告方不承担证明有罪的责任是绝对的、无条件的 ,在某些特殊情况下 ,被告方仍要承担提出证据证明自己无罪的局部责任 ,这在许多诉讼制度和证据法发达的国家和地区成为普遍认可的实践。我国对此应予以借鉴 ,它符合诉讼合理主义的要求 ,具有一定的理论依据 ,即刑事政策、证明难易、诉讼效率。     

Effective size and defendant bias in eyewitness identification lineups

Two aspects of fairness in eyewitness identification lineups are discussed: the effective size of a lineup, and the degree of bias towards or away from the defendant. Procedures are proposed for measuring both aspects of lineup fairness and a range of hypothetical examples is given. An appendix discusses and explains procedural and computational details, and provides a table of critical ranges of identification proportions for lineups of varying sizes and for different numbers of observers.     

Plaintiff injury and defendant reprehensibility: Implications for compensatory and punitive damage awards

A criticism of the civil jury is that jurors' decisions about damages are capricious and arbitrary. In particular, critics point to the skyrocketing nature of punitive damage assessments as evidence of a system run amok. The purpose of this study was to examine the factors that influence jurors' decisions about compensatory and punitive awards. We assess whether, as the law intends, jurors' decisions about compensation are influenced by the severity of the plaintiff's injury but not by the reprehensibility of the defendant's conduct, and whether assessments of punitive damages are related to the defendant's conduct but not to the plaintiff's injury. Across three cases, mock jurors generally utilized relevant information and ignored irrelevant factors in their decisions about damages. Results are discussed in terms of the extent to which juror decision making comports with legal doctrine.     

When is defendant status a shield or a liability? Clarification and extension

Previous research has documented that an offender's status may be a protective shield or a harmful liability. One model (Rosoff, 1989) contends that status effects are moderated by offense magnitude, with status providing a shield for minor offenses, but acting as a liability for major offenses. Another model (Skolnick & Shaw, 1994) asserts that the professional relatedness of an offense moderates status effects, with status acting as a shield for professionally unrelated offenses and as a liability for professionally related offenses. A study is presented to determine the moderator of these status effects. Clarifying and extending prior research of the investigators, 120 participants read one of 12 hypothetical civil case summaries and rated defendant liability, monetary damages, and other evaluative judgments. A 3×2×2 factorial design varied offense severity, defendant status, and the professional relatedness of the offense. Results strongly supported professional relatedness as the moderator of status effects, extending previous findings from criminal to civil proceedings and eliminating alternative hypotheses suggested by the earlier work.     

测谎在台湾地区为被告有利证明方法的检讨

台湾地区司法实务上使用测谎鉴定作为辅佐证据的情形相当普遍。法源主要依据台湾地区“刑事诉讼法”第161-1条：“被告得就被诉事实指出有利之证明方法。”此所指之证明方法没有绝对严格的限制,目的在发现真实、保障被告人权,故而台湾地区法院认可经被告同意施测之测谎结果具有证据能力。然而,测谎在台湾地区现已演进成“反客为主”的现象,刑事被告主动要求测谎,并且主张以测谎通过之结果作为被诉事实有利的证明;反之,未通过测谎的被告则上诉质疑测谎结果的可靠性,致使法院过去对于测谎结果多采肯定说之态度起了变化。相较于刑事案件,“民事诉讼法”第355条第1项明文：“文书,依其程序及意旨得认作公文书者,推定为真正。”致被告于民事庭审援引测谎鉴定报告的情形亦不遑多让。测谎成为被告另类脱罪、卸责的手段,对于台湾地区司法实务长期依赖测谎之使用,预料产生冲击与警惕之意义。实有重新检讨测谎作为证明方法之必要。     

An overlooked vulnerability in a defendant: Attention deficit hyperactivity disorder and a miscarriage of justice

Aim . To describe the implications of a Court of Appeal murder case involving a 15‐year‐old youth. His attention‐deficit hyperactivity disorder (ADHD) was not identified at trial, but 8 years later it was and his conviction was quashed. Method . An analysis of the judgments by the Court of Appeal at an earlier hearing (1997) and in 2004, together with a review of how the relatively new diagnostic concept of ADHD, can be employed to aid assessment of important vulnerable qualities. Results . One of the primary effects of ADHD in the case was to ‘affect’ the IQ scores, making it look as if the defendant was suffering from mental retardation and so masking his other more relevant vulnerabilities. Conclusions . ADHD symptoms are relevant to contended issues around adverse inferences and fitness to plead and stand trial. A comprehensive ADHD assessment, including neuropsychological testing, is necessary where there are indications of a history of childhood ADHD.     

The effects of defendant dress and supervision on judgments of simulated jurors: An exploratory study

Two studies explored the biasing effect of defendant dress (personal/institutional) and supervision (armed/no supervision) on juror judgments of guilt and recommended sentence using 2×2 between-subjects factorial designs. University students in study 1 and registered voters in study 2 watched a videotape of a reenacted criminal trial, then made judgments of defendant guilt and recommended sentences. Results in both studies revealed significant bias against defendants in personal dress with armed supervision and institutional dress with no supervision. Discussion focuses on the appropriateness of models of attribution and equity in describing subjects' discretionary processes, the nature of an unexpected sympathy effect for the defendant in institutional dress with armed supervision, and the practical implications of the findings. Specific needs for future research in this area are also addressed.Funds for both studies were provided by a Faculty Research Grant from the University of Missouri at Kansas City. The authors wish to thank Edwina Dorch and Devin Powers for their assistance with data collection.     

Effects of inconsistent eyewitness statements on mock-jurors' evaluations of the eyewitness,perceptions of defendant culpability and verdicts

In attempting to discredit an eyewitness, it is a common strategy for an attorney to highlight inconsistencies in the eyewitness's recall testimony during cross-examination and encourage the jurors to infer, based on those inconsistencies, that the eyewitness's memory is faulty. An experiment was conducted to examine the effectiveness of this cross-examination strategy. Subjects viewed a simulated cross-examination and rendered judgmenets about the eyewitness and defendant. The type of inconsistent testimony was manipulated between subjects. Subjects exposed to inconsistent recall testimony about either central or peripheral details perceived the eyewitness as less credible (as evidenced by ratings on multiple dimensions) and the defendant as less culpable. Inconsistency on central details led to fewer convictions. Results point to the effectiveness of this cross-examination strategh.     

公共服务背景下再议村民委员会作为行政诉讼被告资格

作为自治组织——村委会能否成为行政诉讼的被告,争论很多。村委会虽然不是行政机关．但它是国家政治体系的有机组成部分,在正常的职责活动中履行着相应的行政管理职能,有相对独立的行政职权。在公共服务背号下,村委会办理公共事务和公益事业,以实现其“公共职能”为直接目的行为,是一种准行政行为。所以．村委会在履行某些行政职能并以自己名义作出具体行政行为,发生争议引起诉讼时,应当成为行政诉讼的被告。     

Juror decision making for juveniles tried as adults: the effects of defendant age,crime type,and crime outcome

This study examined the influences of the crime type (person or property) and the crime outcome (mild or severe) on mock jurors’ verdict and sentencing decisions for adult defendants and juvenile defendants tried as adults. Jurors read a trial summary depicting a defendant charged with aggravated robbery or second-degree burglary. The crimes had either mild or severe damage inflicted on the person or property, and the defendant's age was presented as 14 or 24. Neither the defendant age nor the crime outcome affected jurors’ verdicts; however, jurors were more likely to convict a defendant charged with a crime against a person. Jurors recommended longer sentences for an adult defendant, a defendant charged with a crime against a person, and a defendant charged with a crime with a severe outcome. The discussion explored these outcomes and the role of bias in jurors’ perceptions of defendants.