Constrained Waiver of Trial Rights? Incentives to Plead Guilty and the Right to a Fair Trial

This article develops an interpretative framework to examine when incentives to plead guilty should be found to constrain defendant choice to waive fair trial rights under the European Convention on Human Rights. This framework is informed by existing jurisprudence, specifically the judgments of the European Court of Human Rights in Natsvlishvili and Togonidze v. Georgia and Deweer v. Belgium, and socio‐legal literature. According to the framework, an incentive to plead guilty should be found to violate fair trial rights where it makes it unreasonable to expect defendants to exercise their right to a full trial, is independent of the projected outcome at trial, and causes the defendant to plead guilty. An empirical analysis of guilty‐plea practice in England and Wales informed by this new framework identifies problematic incentives and suggests such incentives may disproportionately influence vulnerable defendants.     

Trial and Error at the End of Life--No Harm Done?

English law gives the competent patient the right to refuselife-saving medical treatment, either contemporaneously or inan advance directive, and a physician commits a battery whentreating a patient who validly refused treatment. However, withregard to the details of a physician's liability, many questionsremain unanswered, and it is not at all clear under what circumstancesa patient's tort action for unwanted life-saving treatment willsucceed, and what remedies would be available to the patient.The article suggests that a physician should be liable in batteryfor administering life-saving treatment, even if he/she haddoubts about the validity of the patient's treatment refusal,unless a defence of reasonable mistake can be established. Furthermore,in case of a battery which resulted in keeping the patient alive,the patient should not only be able to claim nominal damages,but general and special damages, including mental and physicalpain and suffering caused by the prolongation of the patient'slife, should equally be available.     

Whither Criminology: Its Global Futures?

This paper takes as its starting point the recent interventions of Jock Young (2011) on the contemporary state of criminology. In adding to these observations those made by Connell (2007) and Aas (2012), the case will be made, following de Sousa Santos (2014), for a criminology of absences. In endeavouring to uncover these absences, the paper will consider how the ‘bogus of positivism’ (Young 2011, chapter 4), its associated presumptions and related conceptual thinking, manifest themselves in two substantive areas of contemporary concern: violence against women and violent extremism. With the first of these issues I shall consider the ongoing controversies in which the bogus of positivism is most apparent: the powerful influence of the criminal victimisation survey as the data gathering instrument about such violence. In the second area of concern, this bogus of positivism is most apparent in its ‘nomothetic impulse’ (ibid: 73). Both of these discussions will expose different, but connected absences within criminology. In the final and concluding part of this paper, I shall return to the questions posed by the title of this paper: whither criminology, and in the light of this discussion, offer some thoughts on the place of Asian criminology within criminology’s global future(s).     

Taking Sides? Issues of Bias and Partisanship When Researching Socio-political Conflict

The article unpacks the issues of bias and partisanship—and the risk of being accused of these—which confront social scientists who study socio-political conflict. Drawing on the author’s experience when conducting research on the conflict between animal liberation activists and their state and corporate adversaries in Britain (1999–2014), the article argues for a relational research approach—focusing on the interaction between contending parties, rather than study stakeholders singly—as a way to overcome challenges of taking sides when studying socio-political conflict. The debate generated by Howard Becker’s classic essay “Whose side are we on?” (1967), now 50 years old, is used throughout the article as a point of reference for addressing the issues involved. The argument is made for constant reflexivity during research on radical social movements, and for “temporary bias” during qualitative fieldwork.     

“Fair and Balanced?” Justice Issues on Political Talk Shows

Like their news program predecessors, many political talk shows focus a considerable amount of their coverage on justice issues. Although numerous past studies have examined justice issue presentation in news programs, infotainment, and crime drama, to date only one forthcoming study has examined crime and justice coverage on political talk shows. Political talk shows often present issues in a debate format, as well as emphasize the balanced nature of the content in advertising, with one program even using the slogan “fair and balanced.” Building upon the format of previous media studies, we analyzed a composite month of videotaped footage of three popular political talk shows appearing on cable networks: CNN’s Lou Dobbs Tonight, MSNBC’s Hardball with Chris Mathews, and The O’Reilly Factor from the Fox News Channel. Using content analysis techniques, this study examines balance in the form and content of these programs in terms of presentation of justice issues, political party identification of hosts and guests and realistic presentations of race and gender in the context of crime and justice. Results indicate that these programs tend to adopt an advocacy tone rather than an objectivist one. Furthermore, we demonstrate that racial and gender portrayals of crime and justice on these shows are significantly distorted from reality, with a priority afforded to white female victims of violent crime and minority male offenders.     

Whither the Prosecutor? Prosecutor and County Effects on Guilty Plea Outcomes in Wisconsin

Abstract

By most accounts, the prosecutor is the most powerful person in the courtroom, with discretion to dismiss cases, reduce charges, and offer noncustodial sentences in exchange for guilty pleas. Yet, little is known about the effects of individual prosecutors or community contexts on case outcomes. Relying on data from 318,000 felony and misdemeanor cases in Wisconsin, the present study examines the impact of several prosecutor and county characteristics on case dismissal, guilty plea to lesser charges, and the imposition of a noncustodial sentence following a guilty plea. The authors find that prosecutor caseload composition is associated with variations in guilty plea outcomes, but that neither prosecutor experience nor prosecutor caseload pressure affect other case outcomes. The authors also find that defense counsel and change in defense counsel exert significant influence on guilty plea outcomes. These findings are discussed in relation to focal concerns and courtroom communities perspectives.     

Was the Dujail Trial Fair?

The Dujail trial against eight persons accused of crimes againsthumanity was intended as the first of fourteen trials; it wasseen as a quick and simple case that would enable the Tribunalto develop its skills outside the limelight. The trial was infact a missed opportunity in the search for Iraqi justice. Itfell short in three notable ways: (i) it was severely compromisedby political interference: lack of judicial independence, linkedto the absence of a culture of respect for the fairness andimpartiality of the judicial process, was the greatest failingof the trial; (ii) there were breaches in fair trial standardsat the trial and appellate level; (iii) due to evidentiary andanalytical gaps, the trial did not expose the full extent ofcrimes committed by the deposed regime; much of the judgmenthinged on inference and stretched notions of liability. TheDujail trial was better than previous (and current) Iraqi trials.But that was not enough to meet minimum fair trial guarantees.     

Whither Remoteness? Wellesley Partners LLP v Withers LLP

In Wellesley v Withers, the Court of Appeal held that where a defendant is concurrently liable in tort and contract, the contractual rules for the remoteness of loss must apply. Two principal reasons emerge from the judgments. The first, that each party has had the chance to alert the other to unusual risks, is valid but often unconvincing. The second is more original and compelling: that the nature of any responsibility assumed in tort is distinct from, but wholly defined by, the valid contract. This note seeks to develop that argument. It then addresses the uncertain issue of concurrent liability in equity. It suggests that in a case in which any fiduciary duties arise out of, and are defined by, a valid contract, it may now be appropriate to apply the contractual remoteness rules to a concurrent claim for breach of contract and equitable compensation.     

Am I Respected or Not?: Inclusion and Reputation as Issues in Group Membership

Six studies examined why and when respect vs. disrespect influences people’s emotions, self-worth, and behavior. Following relational models of justice, we argued that people use groups to derive information about the social self and as such value respect information because it indicates (a) whether or not they are accepted, and (b) how their status within the group is evaluated. These two identity concerns were operationalized by means of reinforcing people’s desire to belong (i.e., the identity concern of acceptance) and concern for reputation (i.e., the identity concern of one’s status evaluation). In line with predictions, the first three studies demonstrated that respect matters only among those whose concerns to belong are made salient. Studies 4–6 further showed that respect only influenced reactions among those who have strong concerns for reputation. It is concluded that respect communicates information relevant to people’s identity concerns—i.e., inclusion and reputation.     

The EU and Issues of Human Rights Protection: Same Solutions to More Acute Problems?

Academic literature repeatedly calls for the EU's accession to the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (hereinafter Convention 1 ). Similarly, the Lisbon Treaty provides that the EU must accede to the Convention. [Correction made here after initial online publication.] This might seem odd as the European Court of Justice (hereinafter ECJ 1 ) has over the years developed abundant case‐law on human rights protection in the EU, and the EU has not so long ago adopted a, albeit non‐binding, catalogue of human rights (the Charter of Fundamental Rights of the EU (hereinafter Charter)). But after all these years, cases, and Treaty amendments, the EU is in fact going back to the ECJ's 1996 landmark opinion which recommended the EU's formal accession to the Convention, 1 already proposed in 1979 by the Commission. 1 One reason for this might be that, in the meantime, human rights issues have multiplied in the application of EU law, especially in areas such as the Second and Third Pillars where—at least initially—fewer human rights protection guarantees were foreseen.     

Trial by media?: Media reliance,knowledge of crime and perception of criminal defendants

Previous research has linked extensive news media coverage of crimes and the criminal process to pretrial jury bias against defendants. Most research, however, has tested the effects of reading fabricated crime stories on mock jury decisions or general perceptions of crime. Using telephone interviews, this study examines whether perceptions of the defendant in an actual double homicide were related to reliance on local news media for news and information. The results provide clear evidence that potential jurors who are exposed to media coverage of crimes form biases against criminal defendants. Newspaper and television reliance were found to be positively related to perceptions of guilt. The results also show that newspaper reliant individuals knew significantly more facts about the case. Television reliant individuals judged the defendant's character as significantly more negative.     

Too Fine to be Good? Issues of Granularity,Uniformity and Error in Spatial Crime Analysis

Journal of Quantitative Criminology - Crime counts are sensitive to granularity choice. There is an increasing interest in analyzing crime at very fine granularities, such as street segments, with...     

Issues and Options for the Post-2012 Climate Architecture – An Overview

This article provides a background for the Developing post-2012 scenarios project, an international study which looks at a range of scenarios that countries may wish to consider for a post-2012 framework to tackle climate change. The purpose of the article is threefold. Firstly, it provides a review of the literature for the future climate regime. Secondly, it provides a set of criteria that are used in order to evaluate whether the scenarios provided in the other articles in this Special Edition are likely to be effective. Thirdly, the article spells out some of the more general policy implications rising from these scenarios.     

Whither Suffering? The Potential Impact of Tort Reform on the Emotional and Existential Healing of Traumatically Injured Chronic Pain Patients

Approximately half of the state legislatures in the USA have enacted tort reform, generally focused on reducing noneconomic damages such as those awarded for pain and suffering of traumatically injured parties. Traumatic injury has been empirically associated with the development of chronic pain, which in turn has been associated with the concept of human suffering. This analysis examines the meaning of suffering within the context of traumatically induced chronic pain, recognizing that this population is at heightened risk of experiencing long-term emotional as well as physical pain. Factors contributing to profound suffering include the potential development of post-traumatic stress disorder, depression and anxiety, role/identity loss, maltreatment by a medical system generally inept in its management of chronic pain, and the negative manner in which personal injury victims are often treated by the legal system. While the American medical system struggles to identify suffering, the legal system—through tort reform—has chosen to simply ignore it, demonstrating little concern for the integrity of the vulnerable chronic pain sufferer. In doing so, the “destructed” chronic painient is further “deconstructed”. We argue that by limiting the size of settlements and jury awards, tort reform serves to potentially deny personal injury victims of a critical vehicle for finding meaning in their suffering, and accordingly limits their likelihood of achieving relief.     

The Missing Witness? George V,Competence, Compellability and the Criminal Libel Trial of Edward Frederick Mylius

A criminal libel trial in 1911 set the monarch against one of his subjects. Edward Mylius repeated a rumour that accused King George V of marrying Queen Mary when – secretly – the King had previously married someone else and had three children. The criminal charge, the process used to bring the issue to court, the advice to the King of the relevant ministers (including Winston Churchill as Home Secretary) and the trial itself stretched the boundaries of fairness. The legacy of the trial created a lingering problem. Can the monarch ever be required to face the direct scrutiny of examination by being required to appear as a witness in his or her own court to support a personal complaint?     

Psychological Injuries,Workers’ Compensation Insurance,and Mental Health Policy Issues

A selected review of workers’ compensation (WC) statutes reveals significant discrepancies between and within state coverage of job-related psychological injuries. Examples of the different rules on compensability of different types of injuries, across various state jurisdictions, are provided using specific case examples to demonstrate some of the more pronounced idiosyncrasies within and between the state statutes. PTSD and depression are frequent WC claims, and examples of how these injuries are treated within the WC systems, between states, are offered. In addition to an overview of various psychological injuries, attention is also provided to more specific qualifying issues, including extraordinary or unusual circumstances and occupational comparison groups (e.g., similarly situated). Examples of the omission of large bodies of scientific evidence related to the epidemiology, assessment, and failure to treat workplace psychological injuries are highlighted. Individual, employee, employer, and societal costs further demonstrate the implications of untreated psychological injuries. Given the disparity between the states and the lack of parity for mental health-related injuries, recommendations are offered to begin a move towards the parity of mental and medical benefits in WC.