从死刑错案反观死刑案件中的刑事辩护——以五例典型的故意杀人罪死刑错案为样本

刑事辩护的价值在于均衡控辩双方的力量,从而查明案件,避免刑事错案。死刑案件的复杂性、重大性和死刑的不可撤销性,使得刑事辩护在死刑案件中具有举足轻重的意义。死刑错案是发现目前死刑案件中刑事辩护所存在问题的重要途径,对完善死刑案件刑事辩护制度也有重要价值。死刑案件辩护制度的改进方向应由＂有辩护＂转向＂有效辩护＂,而这需要通过设立死刑案件刑辩律师专门管理制度和特殊参与机制来予以实现。     

Death in homes for the aged/nursing homes from the legal medicine viewpoint

Following the death of 16 inhabitants of a nursing home within a period of 2 weeks, the prosecution ordered legal autopsies in all of the cases, which had not yet been buried or cremated, suspecting a neglect of nursing or active euthanasia respectively. Two out of a total of ten cases revealed drug overdoses which could have explained death. However, due to concurring causes of death, the evidence could not be furnished with adequate security. In the present case, the examinations helped--already in a preliminary stage of the investigations--to prevent the authorities from more expensive proceedings as well as the respective nursing home from being unjustly suspected of having committed a criminal offense.     

论辩方对有利于被告人证据的阅卷权

2012年《刑事诉讼法》关于辩方阅卷范围的规定引发了关于控方是否有义务将其掌握的全部证据,尤其是有利于被告人证据提交给辩方问题的讨论。鉴于控方在证据获取中的绝对优势地位,从维持控辩平等、实现有效辩护、维系检察官客观义务、探求实体真实的角度出发,由辩方掌握全面阅卷权有其理论正当性,而不同法系国家中辩方从控方获取有利于被告人信息的比较法考察也印证了这一判断,目前关键在于如何通过制度设计保障辩方这一阅卷权的实现,其他国家的制度设计可以给我们一些启示。     

An epidemic of cocaine associated deaths in Utah

This article describes 15 cocaine associated deaths in Utah in a 3 1/2-month period in early 1984, compared to 6 cocaine associated deaths for all of 1983. Brief case histories of the 15 cases are presented along with data on age, sex, county of death, cause of death, association of the cocaine with the death, cocaine analytical methodology, and a summary of cocaine concentrations in blood and urine. In four of the cases, cocaine by injection was the cause of death, whereas the other cases had cocaine or metabolite detected incidentally. The epidemiology of a single, well-defined cocaine source is described and related to this transient, remarkable increase in cocaine associated deaths.     

Fatal Intoxication with Toluene Due to Inhalation of Glue

Two cases of fatal intoxications with toluene due to glue sniffing are described. In case 1, the autopsy did not indicate cause of death, while in case 2, the cause of death was determined to possibly be due to mechanical asphyxia by drowning. As the decedents had a history of glue sniffing, toxicological analyses were performed. Using gas chromatography with flame ionization detector and gas chromatography/mass spectrometry (GC/MS) with headspace method, toluene was detected in biological samples. Toluene ranged from 3.81 to 20.97 μg/g, with the highest concentrations observed in liver and brain (13.82–20.97 μg/g) in both cases. Based upon this data, the cause of death in both cases was determined to be toluene poisoning. Toxicological investigations are extremely important and should be considered mandatory in all deaths thought to be due to volatile substance abuse, as well as all deaths that are thought to be due to poisoning in young people.     

《正当防卫指导意见》中的程序问题评析

《正当防卫指导意见》中关于程序问题的若干规范对于正确办理涉正当防卫案件意义重大。侦查机关在取证工作中,应当着重注意对于能够证明不法侵害行为存在证据的及时收集。公检法机关在依法公正处理涉正当防卫案件时,尤其应当认真听取辩护方意见,及时披露案件信息,回应社会关切。对属于正当防卫的案件应当及时作出不予追究决定。但对于防卫过当案件均应适用认罪认罚从宽制度的要求似乎不妥。对于陪审制的运用应扬长避短。在案件办理的不同环节均应注意释法析理,尤其应当注意在认定为正当防卫的案件中对被害人及其家属进行释法析理。在做好法治宣传教育工作中,既要教育公民自觉遵守法律,更要教育公民敢于拿起法律的武器,积极行使防卫权利。     

论不在犯罪现场的证明

我国2012年《刑事诉讼法》所确立的不在犯罪现场的辩方开示义务如“邯郸学步”,这是把一种可能无需法律规制的常识判断转化为一种程序规则“。不在犯罪现场的证据”具有无罪的指向性、整体的意见性以及形态的中介性,这一概念发展了证据形式和证据种类的理论。然而这个规则既无根基也无后果,一方面,在我国官方垄断取证的背景之下“,不在犯罪现场”的辩护不可能对控方造成突然袭击,还可能被认为是狡辩而不受待见,而辩护方的所有取证活动必须汇集到控方的单向证明活动之中才被看做是证据;另一方面,倘若被告人并未履行“不在犯罪现场”的证据开示义务,尽管出于辩护本能,根本没有这种可能,对被告人而言,也没有相应的惩罚后果。须知在英美法系国家为寻找真相而要求庭前开示不在犯罪现场的证据也可能事与愿违。因此,在我国“不在犯罪现场”的证明只关注了为了削弱程序抗辩的证据交换问题,而未考虑辩护方的证据收集能力的前提问题以及控诉方怠于为反对抗辩而积极取证的责任问题。在此背景下,基于无罪推定原则,不在犯罪现场的抗辩是辩护方证否的权利,及早提出可以防止追诉机关的错误积重难返;又基于举证责任分配原则,不在犯罪现场的证明反而是控诉方要承担的一个证实的义务,要求其积极核实和审查。     

Deaths related to chemical burns

The authors present a series of 6 deaths due to the uncommon cause of chemical burns. Of the 6 deaths due to chemical burns, 4 deaths were due to ingestion of a chemical, 1 death was caused by chemical burns of the skin, and 1 death resulted from rectal insufflation of a chemical. Seven additional cases where chemical burns may have been a contributing factor to the death or an incidental finding are also presented. Four cases are related to an incident involving chemical exposure during an industrial explosion. Three cases involve motor fuel burns of the skin. Two cases concern a plane crash incident, and 1 case involved a vehicular collision. Cases are derived from the records of the Dallas County Medical Examiner's Office and those of the authors' consultation practices. Each of the cases is presented, followed by a discussion of the various mechanisms of chemical injury.     

Blowfly Larval Tissues as a Secondary Detector for Determining Paraquat-Related Death in Rabbit Carcass

Paraquat poisoning is commonly associated with suicide or homicide in Malaysia. In a case involving advanced body decomposition, pathological analysis regarding the cause of death may become difficult or almost impossible. Insects serve as common alternative matrix for poison detection in forensic analysis. Paraquat detection via secondary bioaccumulation in fly larvae tissue has never been reported. In this study, tissues from blowfly larvae collected from a rabbit carcass with paraquat poisoning were analyzed for secondary bioaccumulation. Larvae samples were collected and analyzed using liquid–liquid extraction. The detection was performed via reduction of quaternary ammonium presence in paraquat and analyzed using gas chromatography–mass spectrometry (GC-MS) with selected ion monitoring mode (SIM mode). GC-MS showed the elution of reduced paraquat was at retention time 12.8 min. Blowfly larvae tissue has proven useful as a secondary detector in paraquat-related deaths.     

The use of neuroscientific evidence in the courtroom by those accused of criminal offenses in England and Wales

This examination of the extent of the use of neuroscientific evidence in England and Wales identifies 204 reported cases in which such evidence has been used by those accused of criminal offenses during the eight-year period from 2005–12. Based on the number of reported cases found, the use of such evidence appears well established with those accused of criminal offenses utilizing such evidence in approximately 1 per cent of cases in the Court of Appeal (Criminal Division). Neuroscientific evidence is used to quash convictions, to lead to convictions for lesser offenses and to lead to reduced sentences. In addition, cases are identified where neuroscientific evidence is used to avoid extradition, to challenge bail conditions and to resist prosecution appeals against unduly lenient sentences. The range of uses identified is wide: including challenging prosecution evidence as to the cause of death or injury, challenging the credibility of witnesses and arguing that those convicted were unfit to plead, lacked mens rea or were entitled to mental condition defenses. The acceptance of such evidence reflects the willingness of the courts in England and Wales to hear novel scientific argument, where it is valid and directly relevant to the issue(s) to be decided. Indeed, in some of the cases the courts expressed an expectation that structural brain scan evidence should have been presented to support the argument being made.     

Circumstances at the time of death in drug fatalities

The circumstances in drug-related deaths were investigated in this study. The basic client sample was composed of 743 drug addicts of the opiate type who had been admitted into the institute's drug-free outpatient program from 1969 to 1982. In this program, 91 clients died during the observation period. In order to be able to judge the various backgrounds adequately, a multiply subdivided classification system was developed for the death cases. Each case was recorded in three main categories: manner of death, cause of death, and phase of addiction. This was a more elaborate procedure than those commonly used since, in general, such death cases are only subdivided into a few groups that differ little from one another. Two manners of death predominated in this sample: accidents caused by poison (62%) and suicide (25%). Within in the various causes of death, poison cases prevailed (80%) and opiate intoxication (single or combined) was predominant (60%). Concerning the phase of addiction two phases were distinguished: the actual drug addiction phase (65%) and the intramural stay in prison or a hospital (25%). There were no significant sex-related differences. Various combinations regarding the mechanism of lethal opiate intoxication of drug addicts were scrutinized, concentrating on three approaches: the lack of opiate tolerance after periods of abstinence, the synergistic effect of simultaneously taking other CNS-depressant drugs, and differences in concentration in the heroin used. Our conclusions are given from the point of view of adequate counseling for drug addicts.     

Fatal "crack" cocaine ingestion in an infant

This report describes a 10-month-old infant girl who died of cocaine poisoning. The infant was found apneic and in ventricular fibrillation after the parents summoned rescue personnel and claimed she had ingested rat poison. The parents later admitted that 2 hours before calling for assistance, the infant's 2-year-old brother was found eating "crack" cocaine and also feeding it to the infant. Investigators found "crack" cocaine throughout the house and in the infant's crib. At autopsy, the infant had two pieces of "crack" cocaine in the duodenum. The brain exhibited a markedly thinned corpus callosum. Toxicologic examination showed high concentrations of cocaine in the blood and in other specimens. The manner of death was classified as homicide because the infant was willfully placed in a hazardous environment with an easily accessible toxic substance, medical attention was deliberately delayed for 2 hours, and medical personnel were deceived when they were falsely told she had ingested rat poison. These features were thought to constitute neglect. The toxicologic characteristics of this case are unique. There are numerous reports of passive cocaine inhalation in infants and children less than 5 years of age, but ingestion of cocaine in this age group has rarely been documented. This age group also has no reported deaths due to cocaine ingestion and no cases of "crack" cocaine ingestion. The high concentrations of cocaine seen in this case, combined with the "crack" cocaine found in the duodenum, indicate ingestion as the route of exposure. The thinned corpus callosum in this case may be a consequence of intrauterine cocaine exposure.     

Axonal injury in young pediatric head trauma: a comparison study of β-amyloid precursor protein (β-APP) immunohistochemical staining in traumatic and nontraumatic deaths

We tested the independent utility of β-amyloid precursor protein (β-APP) immunohistochemical staining as evidence of brain trauma in the deaths of young children. Blinded reviewers retrospectively reviewed immunostained brain tissues from homicidal deaths, age-matched control cases without evidence of trauma, as well as cases of sudden infant death syndrome (SIDS). The reviewers correctly identified five of the seven cases with documented inflicted head trauma. However, one of seven age-matched control cases and one of 10 SIDS/sudden unexplained death in infancy (SUDI) cases demonstrated staining patterns similar to those seen in cases of inflicted trauma. We discuss these cases and the circumstances surrounding them with the intent to explain the difficulties associated with immunohistological interpretation of axonal injury. Although the utility of β-APP is quite powerful if not confounded by global hypoxic-ischemic injury, ultimately, β-APP studies should be only one piece of information in the determination of cause and manner of death.     

An Evaluation of Childhood Deaths in Turkey Due to Yellow Phosphorus in Firecrackers

Yellow phosphorus (YP) is a powerful protoplasmic poison used in the manufacturing of matches, pest poisons, firecrackers, firework cracker, lights for watches, military ammunition, and agriculture fertilizer. YP is extremely flammable and toxic and easily absorbed from the gastrointestinal tract. In this study, we examined childhood deaths from 1997 to 2012 resulting from the ingestion of firecrackers. The patients ranged from 2 to 15 years of age and were admitted to the hospital with a variety of symptoms. Those that presented with nausea, vomiting, and hypotension rapidly deteriorated and entered a coma. An autopsy was performed in all but one of the 16 cases reviewed. Macroscopically, the livers had a yellowish discoloration with petechial bleeding. Histopathologic examination revealed acute toxic hepatitis. In conclusion, these firecrackers are found in corner shops throughout Turkey, may cause death in children with little warning, and should be banned to prevent further deaths.     

Sniffing-associated deaths in Denmark

An account is given of 20 deaths, which occurred in association with sniffing during the period 1959 – 1978. The annual number of deaths was almost constant during the period. Most of the deaths occurred in males. Ether and trichloroethylene were the predominant toxic substances. The material was divided into two groups. Group A, 14 cases, included real sniffing deaths, the cause of death being poisoning by the substance inhaled. In group B, 6 cases, sniffing was a contributory factor to death: 2 cases of suffocation by obstruction, one case of carbon monoxide poisoning during fire, one case of septicemia/severe anemia caused by bone marrow depression, and one case of bleeding to death from stab wounds inflicted by a sniffer against a non-sniffer. The circumstances before and at the time of death are reported, together with the autopsy and toxicological findings when these were performed.     

Two cases of accidental asphyxia by neck compression between bed bars

Two cases of asphyxia due to compression of the neck between the side bars of a bed in elderly subjects affected by neuropsychiatric pathologies are presented. In both cases no lesions were found on the skin or in the anatomic structures of the neck. The absence of lesions made determining the cause of death difficult. Generic evidence of asphyxia (acute pulmonary emphysema and petechiae) allowed a diagnosis to be formulated. The discovery of the object that caused the death was possible only with information regarding the circumstances and inspection of the scenes of the deaths.     

Mountaineering fatalities on Mount Rainier, Washington, 1977-1997: autopsy and investigative findings.

Mountain climbing is a popular recreational activity with a growing number of participants and associated fatalities. To define the characteristics of these fatal incidents and the typical autopsy findings in the victims, we reviewed the autopsy and investigative findings of all fatalities that occurred on Mount Rainier from 1977 through 1997. A total of 50 deaths occurred in 29 separate incidents. Fifty-eight percent of accident victims died as the result of a fall; another 34% died as a result of an avalanche. The incidents leading to death occurred at an average altitude of 3652 m (11,977 feet); range, 2073 to 4389 m (6800-14,400 feet). The average age of the victims was 31.2 years (range, 17-55 years), and 47 of the 50 were men (94%). Bodies were not recovered in 13 cases (26%). Autopsies were performed in 30 of the remaining 37 cases. At autopsy, the cause of death was ascribed to multiple injuries in 12 cases (40%), isolated head and neck injuries in 7 cases (23%), and chest injuries in 1 case (3%). Asphyxia and hypothermia were the cause of death in 8 cases (27%) and 2 cases (7%), respectively. The frequency of specific injuries is presented by anatomic region. The unique autopsy and investigative features of mountaineering deaths are discussed.     

核准追诉低龄未成年人刑事责任的程序定位及其重要展开

从程序上看,核准追诉低龄未成年人刑事责任的行为属于侦查程序的行为,而不是立案程序或审查起诉程序的行为。因而报请核准追诉的时间应当分为两种情况:一是在需要逮捕被追诉人的案件中,侦查机关应当在提请批准逮捕的同时报请核准追诉;二是在无需逮捕被追诉人的案件中,侦查机关在确定查明的事实与收集的证据符合核准追诉条件时,就应当立即报请核准追诉。根据这种程序定位,在核准追诉的证据方面,应当根据我国《刑法》第17条第3款规定的实体法事实确定证明对象,根据审查批捕标准确定核准追诉的证明标准;在核准追诉的当事人参与权与救济权方面,应当听取未成年犯罪嫌疑人及其辩护律师的意见,还应当听取被害人及其近亲属的意见,被害人及其近亲属不服不予核准追诉决定的,不可提起自诉,但可以申请复议一次。     

Suicide by Fatal Pentobarbital Intoxication in Ontario,Canada, from 2012 to 2015

A fatal concentration of pentobarbital found in a coroner's case where the history had not indicated use of this drug prompted a review of fatalities in Ontario from 2012 to 2015. Coroner's case files, including police and toxicology reports, were reviewed in twenty deaths, in which pentobarbital was identified as the primary cause of death. In all of the deaths (11 females, 9 males), the blood concentration of pentobarbital was greater than 10 mg/L. There were three to eight deaths per year and each was classified as suicide. In 11 cases, there was clear evidence that the drug was purchased over the internet from Mexico or China and imported into Canada. In four cases, it appears that the pentobarbital was labeled as a different, innocuous chemical to facilitate crossing the border without scrutiny. The findings underscore the value of a thorough scene investigation, including details of evidence that may be considered unrelated.     

Acute flurazepam intoxication: a case report

A fatality due to ingestion of flurazepam is reported. Flurazepam is a benzodiazepine, a widely prescribed hypnotic drug for use in sleep disorders. There are only few documented reports of the disposition of flurazepam in deaths due to overdose. A 68-year-old woman was found deceased at home with no evidence of trauma or asphyxia. Toxicologic analyses were performed and drug levels measured by means of gas chromatography coupled to mass spectrometry. The flurazepam concentration in each specimen was as follows: heart blood 2.8 microg/mL, bile 323 microg/mL, and urine 172 microg/mL. Presence of flurazepam into gastric content was observed too. Based on the autopsy findings, patient history, and toxicologic results, the cause of death was determined to be acute intoxication of flurazepam and the manner, suicide.