A critical review of published competency-to-confess measures

The development of standardized assessments for competency-to-confess evaluations has remained largely neglected for the last several decades. Groundbreaking research was conducted on Miranda waivers during the late 1970s, but researchers have failed to sustain programmatic research. This critical review focuses on four published Miranda measures (Comprehension of Miranda Rights, Comprehension of Miranda Rights-Recognition, Comprehension of Miranda Vocabulary, and Function of Rights in Interrogation). When evaluated by contemporary standards, the validation of these measures is very limited. Major improvements are needed for interrater reliability, test-retest reliability, content validity, construct validity, and criterion-related validity.     

Maltreatment of handicapped children: A critical review

Despite increased interest in child abuse and neglect in the past decade, little research attention has been focused on maltreatment in handicapped populations. This is surprising given that many handicapped children display characteristics (e.g., chronic and pervasive behavioral disturbances, decreased social initiations with caregivers) that are associated with high risk for assault and neglect in nonhandicapped children. Numerous investigations have found an overrepresentation of handicapped children in maltreated samples, and results of more recent efforts reveal a high incidence of abuse and neglect in handicapped populations. Although these data underscore the high risk for maltreatment in handicapped children, a number of important issues warrant further empirical examination. Moreover, generalizations and interpretations of findings from previous research have been obfuscated by methodological shortcomings. The present paper reviews the literature concerning abuse and neglect of handicapped children. Research strategies and issues are delineated and current problems in this field are discussed. Suggestions for directions future research might take are offered.     

Decline of the English jury*

Abstract

This biographical study of the lived experiences of six law teachers offers a new dimension to understanding the dynamics of law teaching. The overall purpose of the study is to reveal how these law teachers make sense of the world of legal education in terms of individual identities, values and whether they necessarily regard themselves as academics. The significance of the study is the contribution it seeks to make in understanding individual law teachers and how they experience the dynamics of a rapidly changing teaching environment. The study reveals how different experiences emerge through a complex interplay between spheres of influence and theoretical frames of reference. A theoretical perspective considers three possible explanations, work orientation, performativity and supercomplexity, with regard to how experiences fit within apparent epistemological shifts in the academy.

The biographical method has not hitherto been applied to understanding this dimension of legal education. The purpose in adopting this method is to make a deliberate departure from more traditional research methods in legal education and to determine the extent to which it might be possible to see the world of legal education as a lived experience. This approach provides tools of analysis for understanding the dynamics of law teaching and dynamic identities.     

Published findings from the spouse assault replication program: A critical review

Published reports from seven jointly developed experiments have addressed whether or not arrest is an effective deterrent to misdemeanor spouse assault. Findings supporting a deterrent effect, no effect, and an escalation effect have been reported by the original authors and in interpretations of the published findings by other authors. This review found many methodologically defensible approaches used in these reports but not one of these approaches was used consistently in all published reports. Tables reporting the raw data on the prevalence and incidence of repeat incidents are presented to provide a more consistent comparison across all seven experiments. This review concludes that the available information is incomplete and inadequate for a definitive statement about the results of these experiments. Researchers and policy makers are urged to use caution in interpreting the findings available to date.     

Impact of hypnotic testimony on the jury

In the past decade, the forensic use of hypnosis to enhance the memories of victims, witnesses, and defendants has sharply increased. A great deal of controversy surrounds this issue. Some commentators argue that testimony derived from hypnosis should not be allowed as evidence because of its inherent unreliability and the unduly powerful impact it may have on a jury. In the present research, we used a jury simulation technique to study the impact that a hypnotically refreshed witness has upon jurors' decision making. A major finding is that jurors view hypnotic testimony with a certain amount of skepticism. In some respects, its impact is comparable to that of testimony based on delayed recall, and rarely does it have the impact of testimony from an immediate report. In addition, jurors' judgments about hypnotically refreshed testimony affected the way they evaluated other evidence at trial: Jurors who learned that a prosecution witness had been hypnotized were less believing ofother prosecution witnesses than were jurors not exposed to hypnotic testimony. The forensic application of these findings is discussed.This research was supported by a grant from the National Science Foundation, Law and Social Sciences Program. We thank Jane Goodman, Doug Leber, Bonnie Sawnson, Russ Wade, Karen Guest, Jonna Barsanti, Don Kline, Elaine Sullivan, and David Kuykendall for their help at various stages of the project.     

The Swedish jury system in press cases: An offspring of the English trial jury?

In the area of press freedom the English influence has for more than 200 years been strongly felt in Sweden. The introduction of a jury system in press cases in 1815 was clearly inspired by the English example. The Swedish variant had, admittedly, some strange features but it was nonetheless, in essence, a jury. Thus it should, historically and systematically, be looked upon as an offspring of the English trial jury.

Since 1815 the Swedish jury has grown more ‘English’ in some respects. Those greater similarities notwithstanding, there are still important differences between the two systems. At least two of the differences are the result of Swedish innovations.

In 1949 the Swedes in the new Freedom of the Press Act included a provision, stating that the court of first instance not only may but must review a verdict of conviction. If also the court convicts and, consequently, fixes the penalty, the defendant can always take the case at least to the appropriate court of appeal. Thus, there is a double‐check or even a triple‐check against an unwarranted conviction. From the defendant's point of view the Swedish jury system can be described as fool‐proof.³⁵

In 1949 the Swedes also introduced a new method of choosing the jury. The jurors are drawn by lot but not, as in England, with the electoral register as the starting point but from a panel chosen by politically elected councils. Furthermore, one third of the jurors must be present or former lay assessors. Through that method of selecting the jurors the Swedes have reasonably counteracted the traditional charges that juries are ignorant or confused or both. On the other hand, the Swedish system may be sensitive to political influence on the administration of justice since the composition, not exactly of this or that jury but of the whole panel, is the indirect result of political elections. However, once more, unwarranted convictions are almost certainly reversed by the courts.

With their method of choosing the jurors the Swedes also avoid a problem which has, in recent years, caused considerable disquiet in Great Britain ‐ jury vetting. The ancient practice of ‘Stand by for the Crown’ is still a reality in English courts. How often the prosecution uses its right to influence the composition of juries by vetting proposed jurors is not known. However, the practice has caused serious concern among lawyers. ‘The fear of “packed” juries is still with us’, to quote an expert in the field, John F. McEldowney.³⁶

The Swedish jury in press cases is certainly not the most important or the best known offspring of the English trial jury ‐ that is, of course, the American jury. However, the Swedish jury has survived for more than 165 years and is still going strong. It is quantitatively of modest significance ‐ there are in ‘normal’ years no more than a dozen cases in the country. However, the jury has an umbrella effect outside the printed media, i.e. what you are allowed to say in a newspaper or in a book you can almost certainly say at a public meeting or on a stage.

In recent decades the Swedish jury has shown a considerable capability of development. It has approached the English model on some points while, at the same time, making innovations on others. It is possible that Sweden during the 1980s may somewhat expand the jury system within the area of free speech, i.e. outside the printed media.     

Empirical assessment of the escabinato jury system

Abstract

There are two practical applications of the jury system: the jury of lay people and the escabinato jury involving joint decision making by legal experts and lay people. Research undertaken in this field has been almost exclusively centered on the former. This work consists of an empirical study of the role of legal suggest that the loss of a jury of peers implies the dominance of the judge's opinion. The causes and consequences of this domination have been assessed.     

Changing views of jury power

This article highlights the major events and empirical research in the continuing debate over the power and competence of the jury in civil and criminal trials. The concept ofjury nullification, the power of the jury to return a verdict based upon their moral conscience despite the evidence and the law, is used as a convenient filter to discuss the legal and behavioral assumptions about jury power and performance. The legal, historical, and even behavioral contexts reflect a bipolar theme in the level of trust Americans have exhibited towards the jury system. One pole reflects the notion that juries lack predictability and rationality in their verdicts and are moved by emotional concerns. Antipodally, juries have been thought to reflect an historical competence at applying common sense notions of equity and rationality to conflicted and ambiguous cases. This article traces the history of these two views of jury power and competence. A critical review of the empirical research that may inform the debate about the jury's competence in both criminal and civil arenas is provided.     

Scheduling of new psychoactive substance the Swiss way: A review and critical analysis

Since the introduction of the European Early Warning System in 2005, >700 new psychoactive substances (NPS) have been listed. This review article presents for the first time the Swiss narcotic law in perspective of scheduling of NPS, and compares it to the regulations of the German speaking neighbours Austria and Germany.The Swiss way is a fast and effective way for scheduling NPS, with the purpose to restrict drug trafficking and for controlling the NPS drug market: the legal basis for scheduling substances of abuse is the “Law about narcotics and psychotropic substances” (BetmG, SR 812.121), which includes the “narcotic law directory (BetmVV-EDI, SR 812.121.11) suitable for listing all controlled substances. The BetmVV-EDI, SR 812.121.11 contains seven indices, with index e specifically designed for the fast scheduling of NPS. Newly appearing NPS can either be controlled under a structure analogues definition or by listing single substances. The list of single substances is updated at least once per year, and structure analogues definitions can be implemented, in order to keep track with new developments on the NPS market. The latest version from November 30th 2018 contains ten different structure analogue definitions and 207 single substances. Requirements to list NPS are their appearance on the NPS market, suspected psychotropic effects and their suggestions by Forensic professionals. As soon as substances are newly placed, on Schedule I of the 1961 Convention or Schedule II of the 1971 Convention by the Commission on Narcotic Drugs of the World Health Organization they can easily be transferred from index e to index a-d of the BetmVV-EDI, SR 812.121.11. The Austrian law uses a structure analogue and single substances approach (introduced in 2012, one update in 2016), whereas the German NPS law (established in 2016, no update yet) only lists two structure-analogue-definitions. All three legislations have defined which core structures, kinds and sites of substitutions are regulated.     

The death-qualified jury and the defense of insanity

We predicted that people who are excluded from serving on juries in capital cases due to their opposition to the death penalty (excludable subjects) tend to place a greater value on the preservation of due process guarantees than on efficient crime control, and therefore are more likely to accept an insanity defense in criminal cases than are people who are permitted to serve on capital juries (death-qualified subjects). Subjects who had previously been classified as death-qualified or excludable read four summaries of cases in which the defendant entered a plea of insanity, and made judgments of guilt or innocence. In the two cases involving nonorganic disorders (schizophrenia), death-qualified subjects were significantly more likely than excludable subjects to vote guilty; in the two cases involving organic disorders (mental retardation and psychomotor epilepsy), there were no differences between the two groups. In addition, excludable subjects gave significantly higher estimates than death-qualified subjects of the proportion of defendants pleading insanity who really are insane.     

The effect of jury nullification instruction on verdicts and jury functioning in criminal trials

Jury nullification is a mechanism, and a defense, which allows the jury, as representatives of the community, to disregard both the law and the evidence and acquit defendants who have violated the letter, but not the spirit of the law. Should juries simply follow the law as articulated by the trial judge, or should they act as “conscience of the community,” and neglect the strict requirements of the law when it would lead to unjust or inequitable verdicts? The present study was aimed at providing empirical data for the following question: will the jury operate in a manner which is different than its normal functioning if given explicit nullification instructions? Three nullification instructins varying in explicitness as to nullification were combined with three criminal cases to yield a 3×3 factorial design. Forty-five six-person juries (270 subjects), were randomly assigned to the nine experimental groups. The results showed that juries given explicit nullification instructtions were more likely to vote guilty in a drunk driving case, but less likely to do so in a euthanasia case. The third case, which dealt with murder, did not show any differences due to instructions. Juries in receipt of nullification instructions spent less deliberation time on the evidence and more on defendant characteristics, attributions, and personal experiences.     

The representative jury requirement: Jury representativeness and cross sectional participation from the beginning to the end of the jury selection process

The paper specifically addresses the many ways in which the facially neutral procedures actually fail to secure representative jury pools. Although the Sixth Amendment's fair cross‐section requirement forbids systematic discrimination in the creation of the jury venire and panel, it does not guarantee that the criminal jury will in fact reflect an accurate cross‐section of the community. As a result, not only does the Court fail to focus on nonlegally recognized screening mechanisms and factors such as exemptions, excuses, failure to followup jurors, etc., may affect jury representativeness, but also the Court never examined cross‐sectional representation at the entirety of the jury selection processes, except jury panels and final juries.

The first section of this paper presents a brief overview of the constitutional law impacting impartial juries, especially addressing the fair cross‐section doctrine that is the focus of contemporary jury selection procedures. In providing empirical and systematic comparisons of jury participation at each of the distinct jury selection stages encompassing a general population, jury wheels, jury qualified pools, jury eligibles, jury panels, and actual trial jurors, the second section of this paper makes critical analyses of the cumulative effects of screening mechanisms in jury selection. The paper assesses jury compositions by looking at demographic, socio‐economic, and ideological profiles of prospective jurors, illustrating that those jury profiles do not necessarily reflect cross‐sectional representation of the community population at comprehensive stages of the jury selection process. The analytical findings show that unless some deep seated reforms are made to eliminate cumulative effects of selection biases and correct representative imbalances of jury wheels, qualified pools, jury panels, and trial juries, historically underrepresented groups such as racial minorities, the poor, and part‐time employees will continue to be underrepresented on juries, negating the public's shared responsibility for the administration of justice in one of America's most heralded democratic institutions.     

The basis of citizen's perceptions of the criminal jury

Two studies examined citizens' perceptions of the criminal jury and their evaluations of 6- or 12-person juries operating under unanimous or majority decision rules. Study 1 was a telephone survey of 130 adult citizens in which respondents evaluated alternative jury structures in the abstract. In Study 2, students were asked to evaluate jury structures for a hypothetical trial in which they were either the defendant or the victim in a crime with a mild or serious outcome. In both studies, jury size and decision rule were related to ratings of procedural cost, and the severity of the crime moderated procedural evaluations. In Study 1, juries were preferred to judges and the 12-person unanimous jury was preferred over other jury structures when the crime involved was serious. In Study 2, there were no direct effects due to variations in jury structure, but subjects appeared to trade off procedural cost and thoroughness of deliberation as a function of the seriousness of the crime. Procedural fairness emerged as the strongest independent predictor of desirability for jury procedures, and fairness was related to representativeness and accuracy. The role manipulation did not influence subjects' responses. In both studies, respondents were very supportive of the jury as an institution, despite a perception that erroneous jury verdicts do occur.     

陪审制度的制约机能比较研究

陪审制,是当代西方司法制度的一个重要组成部分。它源远流长,起伏跌宕,荣辱兴衰共具一身。时至今日,陪审制仍是英美法系国家中制约审判的一个重要手段。本文力求对两大法系陪审制的作用及其制约机能进行比较研究,一方面可深探陪审制度的精髓,另一方面可为我国的人民陪审制提供可借鉴的经验。 一、陪审制的产生与发展 如果它也算陪审制的话,我们应该将历史的目光放至那遥远的古希腊。公元前594年,梭伦当选为雅典的执政官,他首创了陪审法庭的新制度。实际上,是在集市日的市场上审理诉讼案,一些有闲暇的公民可以参加。后来,这种制度成为雅典民主制的一个重要组成部分,使公民具有了“参与审判”的权利。古罗马时期亦有陪审制的存在,但在公     

分权、政府间竞争与经济发展——概念、逻辑及其批评

在过去的30多年,包括中国在内的许多国家都存在通过中央分权地方政府以促进经济发展的潮流。对相关理论和实践的研究变得日益重要,其内容包括梳理分权的概念与类型,探究分权促进经济发展的理论逻辑及其思想根源,以及评析分权研究中可能存在的方法论问题。研究发现,尽管分权改革得到了世界银行在内的国际组织与许多学者的支持,但目前对于分权能否真正通过引入地方竞争机制来保护市场并推动经济的长久发展并无定论。包括"市场保护型联邦制"在内的诸多分权理论普遍存在对市场建设的制度环境进行过度假设的问题,如此分权与经济发展之间的因果关系被或多或少地扭曲了。