Conformance to Attorney Performance Standards

Legal representation of clients facing involuntary commitment to a maximum security hospital was investigated. Eighty-nine hearings were observed during a 5-week period immediately following implementation of Attorney Performance Standards, which define minimally adequate representation. The 10 participating attorneys reported their preparation for each case, and a summary measure of advocacy was derived. Generally, attorneys engaged in all required activities that could be accomplished in a single preparatory visit to the hospital. The level of advocacy in cases where clients faced civil commitment was compared to cases where the client faced criminal commitment. The unexpected finding that the level of advocacy for civil clients was significantly lower than that for clients facing commitment under any other legal category, was discussed in light of the degree of dangerousness presented by civil clients, the effects of deinstitutionalization, and emerging social policy.     

The effects of statutory change on the civil commitment of the mentally ill

Several states have revised their civil commitment statutes in recent years. A majority of the recent revisions reflect judicial directives to provide more explicit commitment criteria, but in some instances, criteria have been broadened in reaction to the difficulty of getting some individuals hospitalized under strict criteria. Such statutory changes have impacted considerably on both process and outcome of the civil commitment system. Adoption of explicit commitment criteria has resulted most visibly in substantial reduction of hospital admissions and census. The present study examines the impact of explicit changes in commitment criteria in Florida following the 1982 enactment of amendments to the Baker Act. A total of 80 commitment hearings are reviewed before and after the law took effect to determine procedural effects of the law on degree of defense counsel advocacy, client dispositions, and on the court's adherence to more explicit criteria. State hospital admissions, discharge, and census information is examined in order to identify the larger impact of 1982 statutory changes on the commitment system. Evidence from hearings and state data suggests that changes in the Florida law impacted significantly on both process and outcome of the civil commitment system. Clients referred to commitment hearings are more dangerous, and may represent a new hard-core group remaining after more explicit eligibility criteria are applied by local intake, and emergency detention facilities. State hospital admissions and census in Florida declined significantly following enactment of the 1982 law, consistent with findings from other states enacting similar statutory reforms. Implications for deinstitutionalization policy and administration are discussed.     

Attorney communication and impression making in the courtroom

This study investigated the effectiveness of attorney communication and impression making in the courtroom. Trained in-court observers rated attorney presentations for factual and legal informativeness, organization, articulateness, and rapport during the opening statement phase of 50 trials. After the trials, jurors were asked to evaluate the attorneys' overall articulateness. enthusiasm, and likableness during the trial. The attorneys were then questioned about their own performance on these indices. The results revealed that the opening statements of prosecuting attorneys were judged by observers as better organized and more factually and legally informative than defense attorneys. However, these variables were not related to trial outcome. Juror evaluations of prosecuting attorneys more closely agreed with these attorneys' self-perceptions of courtroom performance while defense attorneys rated themselves significantly more favorably than did jurors. More courtroom experience did not generally lead to better courtroom performance during opening statements for either prosecuting or defense attorneys, and often resulted in significant overestimations of general performance relative to juror evaluations, particularly among defense attorneys. System constraints operating in favor of prosecutors and performance feedback mechanisms available to prosecutors but not to defense attorneys are discussed. These mechanisms may account for the discrepancies between juror perceptions of attorneys and attorney self-perception.     

Using British Trial Procedures in American Cases: A More Civil Trial?

A number of attorneys, judges, and legal scholars have asserted that the overly combative nature of American trials may impact on the actual quality of justice and bring the legal system into disrepute. In contrast, many who witness criminal and civil trials conducted in Great Britain are struck by the greater apparent civility of the courtroom atmosphere. Closer examination of the English system reveals seven specific procedural differences that may contribute to this perceived change in atmosphere. In this study, these procedural differences were manipulated and their effect on verdict and on perceptions of trial participants measured. In addition, opinions about these differences were elicited. Results showed that while the trial was perceived as more civil, and the judge viewed more positively, participants tended to indicate preferences for the American style. Implications of these results are discussed.     

Representing Immigrants: The Role of Lawyers in Immigration Bond Hearings

Do immigration lawyers matter, and if so, how? Drawing on a rich source of audio recording data, this study addresses these questions in the context of U.S. immigration bond hearings—a critical stage in the removal process for noncitizens who have been apprehended by U.S. immigration officials. First, my regression analysis using a matched sample of legally represented and unrepresented detainees shows that represented detainees have significantly higher odds of being granted bond. Second, I explore whether legal representation affects judicial efficiency and find no evidence of such a relationship. Third, I examine procedural and substantive differences between represented and unrepresented hearings. My analysis shows no differences in the judges' procedural behaviors, but significant differences in the detainees' level and type of courtroom advocacy. Represented detainees are more likely to submit documents, to present affirmative arguments for release, and to offer legally relevant arguments. Surprisingly, however, I find no evidence that these activities explain the positive effect of legal representation on hearing outcomes. These findings underscore the need to investigate not only what lawyers do in the courtroom, but also less quantifiable factors such as the quality of their advocacy, the nature of their relationship to other courtroom actors, and the potential signaling function of their presence in the courtroom.     

Dangerousness of civil commitment candidates

This study followed a large, statewide sample of civil commitment candidates both in and out of the hospital for 6 months following their postcourt hearings to determine their postcourt dangerousness. It objectively measures dangerousness by dividing it into five legal components of behavior: (1) type, (2) object, (3) frequency, (4) weapon/means, and (5) severity of outcome. Using data from ward charts, readmission evaluations, recommitment affidavits, and arrest and community mental health center records, it describes candidates' dangerousness in terms of those, five components and compares that dangerousness with the alleged dangerous behavior that brought them into the civil commitment process. It finds that candidates do not tend to be dangerous in the 6 months following their court hearings.     

精神病人合同能力鉴定的相关问题

为了探讨精神病人合同能力鉴定的相关理论 ,解决合同能力鉴定中鉴定标准混乱的问题 ,对合同能力鉴定的法律基础、标准、民事行为能力与民事权利能力的区别 ,民事行为能力的广义、狭义区分进行了论述。提出合同能力鉴定的核心问题是意思表示的真实性 ,主张将合同能力分为有、无两级 ,强调合同能力的分级与民事行为能力的等级存在区别。并提出合同能力鉴定的程式为 :首先判定其行为能力 ,有行为能力相应具有合同能力 ,无行为能力即无合同能力 ,限制民事行为者 ,应根据年龄、智力、精神健康状况、生活关联度 ,再分为有合同能力、无合同能力。     

Topographies of forensic practice in Imperial Germany

This article examines the topography and “cultural machinery” of forensic jurisdictions in Imperial Germany. It locates the sites at which boundary disputes between psychiatric and legal professionals arose and explores the strategies and practices that governed the division of expert labor between them. It argues that the over-determined paradigms of ‘medicalization’ and ‘biologization’ have lost much of their explanatory force and that historians need to refocus their attention on the institutional and administrative configuration of forensic practices in Germany. After first sketching the statutory context of those practices, the article explores how contentious jurisdictional negotiations pitted various administrative, financial, public security, and scientific interests against one another. The article also assesses the contested status of psychiatric expertise in the courtroom, as well as post-graduate forensic psychiatric training courses and joint professional organizations, which drew the two professional communities closer together and mediated their jurisdictional disputes.     

Blind or Biased? Justitia's Susceptibility to Anchoring Effects in the Courtroom Based on Given Numerical Representations

This article presents an integrative review of recent research on anchoring effects in the courtroom as one example for the strong impact of representation norms on sentencing decisions. Anchoring effects – the assimilation of numerical judgments to a given standard – have been demonstrated in many judgmental domains. Even sentencing decisions are subject to anchoring effects. In court proceedings this gives disproportionate weight to the prosecutor, whose sentencing demand serves as an anchor. The prosecution's sentencing demand even affects defense attorneys, who assimilate their own sentencing recommendation to it. This influence seems to remain outside of defense attorneys' awareness. Expertise does not attenuate this bias. Accordingly, defendants might be better off if defense attorneys could make their final case prior to the prosecutor's case.     

“I (can) see myself… But what for?” On Live Camera Feeds in Courtrooms (from the Perspective of Witnesses)

The paper’s aim is to present and critically discuss a peculiar practice noticed and studied in courtrooms in the Lower Court in Kraków, Poland. In courtrooms where different hearings take place, two cameras are installed on the wall or on the stand near the judge’s bench. One camera is aimed at the center of the courtroom, where non-professional participants such as witnesses or plaintiffs stand while being questioned by judge. The second camera’s view is more general—it covers the rest of the courtroom, including the benches for plaintiffs, claimants, defendants, and their legal representatives, and most notably the general public. Naturally, the mere presence of cameras in the modern courtroom is not surprising. What raises some questions is the presence of TV screens in the Kraków Lower Court’s courtrooms (and in Poland’s courts in general), which display the feed from both cameras during the hearing. Consequently, people gathered in the courtroom, especially people questioned by the judge (such as witnesses), can see themselves “live” in the TV screen. Even without raising the subtle details and differences between individual courtrooms, the system of displaying, in real time, live video feeds from a courtroom into the same courtroom begs for more detailed, critical analysis. For instance, one should address the system’s (presumably intended) functions (e.g. transparency, behavior control, and correction of time perception) and the real consequences for the dynamics during hearings, which are not assumptions or hypotheticals. The paper distinguishes the issues connected with the system and addressees them through the perspective of witnesses who participate in the hearings, using the collected opinions of witnesses.

     

A comparison of respondents in initial and recommitment hearings

Legislators and researchers have focused on one aspect of civil commitment: initial commitments. Many patients, however, remain in the hospital after their initial commitment expires and, thus, must be recommitted if they are to remain in involuntary treatment. Demographic, clinical, and treatment data were collected on 374 adults having initial or recommitment hearings during a 3-month period at a large state hospital in Virginia. Respondents in initial commitment hearings were younger and displayed acute symptoms; recommitment respondents were older with symptoms of chronic psychopathology, especially those associated with schizophrenia and organic brain syndrome. The subject of recommitment patients and hearings needs to be a focus of future research efforts to determine whether these differences are reflected in a greater relative gap between the letter and practice of the law in recommitment hearings.This research was supported by grant No. R03 MH44065-01 from the National Institute of Mental Health. The financial assistance of the Institute for Research Development of the Human Sciences Research Council is also acknowledged. This article was written while the first author was a postdoctoral fellow in Clinical Services Research, NIMH grant No. 5T32MH17184-06.     

The aged and the dangerousness criterion in involuntary civil commitment

Using data from official court records and observations in court hearings throughout one state with a typical reform statute, this study investigates the elderly against whom petitions are brought for involuntary civil commitment. In relation to their proportion in the population, the aged are only slightly more likely than younger persons to become respondents in commitment proceedings; but they are over three times more likely to remain involuntarily hospitalized and to be subjected to recommitment proceedings. Once brought into the process, they are more likely than younger respondents to be committed and are more likely to be successively recommitted. In analyzing court testimony, focus is on evidence of dangerousness since involuntary commitment is limited to the mentally ill who are dangerous. Almost half of the young old initial respondents with formal hearings have no testimony alleging dangerous behavior and more than half of the old old have no such testimony. The alleged dangerous acts of the aged tend to be unintentional harm rather than assault.     

REPRESENTING RESPONDENTS UNDER NEW CIVIL COMMITMENT STATUTES: An Analysis of Counsel's Role In and Out of the Courtroom

Using quantifiable attorney behavior measures, instead of outcome measures, both before and during court hearings, this study attempts to evaluate legal representation under reform civil commitment procedures. Counsel representing involuntary commitment respondents full time were well prepared. Court appointed counsel, though better prepared than reported in studies done prior to reform, did not fully investigate their cases. Lack of adequate preparation was associated with a passive role and a non adversary position in court.     

A Lab Experiment on Committee Hearings: Preferences,Power, and a Quest for Information

In principle, committees hold hearings to gather and provide information to their principals, but some hearings are characterized as political showcases. This article investigates conditions that moderate committee members' incentives to hold an informative hearing by presenting a game‐theoretic model and a lab experiment. Specifically, it studies when committees hold hearings and which types of hearing they hold by varying policy preferences of committee members and the principal and political gains from posturing. Findings provide new insights to how preferences and power distribution affect individuals' incentives to be informed when they make decisions as members of a committee in many contexts.     

Attitudes among medical and law students toward decision-making in regard to involuntary psychiatric hospitalization

Background

The management of individuals with mental illnesses sometimes requires involuntary hospitalization. The Israel Mental Health Act requires that cases of involuntary psychiatric hospitalization (IPH) be periodically reviewed by the district psychiatric committee. The discussion in the committee often leads to debate regarding the need for an IPH potentially depriving the patient of his freedom. Little is known about the way in which the psychiatrists and attorneys on these committees arrive at their decisions. The present study was designed to examine the views of future doctors and attorneys concerning cases of possible IPH to determine whether their decisions would be influenced by their respective professional educational backgrounds.

Methods

After compiling demographic data, we asked 170 students from each of the two disciplines what their decision would be in two hypothetical cases that dealt with the question of a prolongation of a psychiatric hospitalization. Questionnaires examining social distance and possible stigmatizing views concerning psychiatric patients were also distributed and collected.

Results

The response rates for the medical and law students were, respectively, 90% and 85%. We found no differences between the medical and law students regarding their views on prolongation of a psychiatric hospitalization. This was consistent regardless of whether the hospitalization was against the patient's will or according to his wish and against the treating physicians' advice. We also found that the medical and law students had similar general views regarding psychiatric patients, but that the latter evidenced greater social distance than the former.

Conclusions

Academic background and socialization were not found to influence the decisions of students regarding IPH. Educational programs and exposure to psychiatric patients during law studies are proposed to lessen psychiatric stigma and promote better understanding between members of the two disciplines.     

Specialized Domestic Violence Courts

Abstract

The multimethod study assesses the perceptions of specialized domestic violence courts' processes with victims' experiences as the central focus. Perceptions of the traditional courts and specialized domestic violence courts are compared among victims, courtroom police, attorneys, judges and victim advocates. Domestic violence education among attorneys, judges, and victim advocates is also compared. Despite the intended improvements with the specialized court model, victims report similar problems in both court models. Safety and victims support among respondents is mixed. Professionals from the specialized court receive no more domestic violence education than those from the general court. Victims' and courtroom police recommendations are presented.     

Posttraumatic stress disorder in tort actions: forensic minefield

The authors discuss posttraumatic stress disorder (PTSD) as a basis for personal injury litigation. Three case examples raise issues related to: (1) the controversy surrounding expansion of tort liability, (2) the courtroom use of psychiatric nomenclature as represented in the DSM (e.g., PTSD), and (3) ethical concerns regarding psychiatric expert witnesses. Psychiatrists became easy targets when problems related to personal injury "stress" cases developed. A careful analysis, however, demonstrates that the issues are complex and multifaceted. For example, tort liability expansion was primarily instituted to compel a greater provision of liability insurance, not to reward stress claims. The increasing use of psychiatry's DSM in the courtroom has occurred despite explicit precautions against forensic application. Finally, the need for psychiatric expert witnesses has increased because courts have gradually usurped some psychiatric clinical prerogatives and because there has been a trend toward greater consideration of emotional pain and suffering. Although psychiatric expert witnesses have not been beyond reproach, critics have attempted to impeach the entire psychiatric profession for the questionable actions of the minority. The authors provide a detailed analysis of current problems, offer suggestions for improvement, and provide an educational counterpoint to the "hysterical invective" that often greets psychiatric testimony.     

论民国初期“物权契约理论”的发展——以大理院判例中不动产物权变动模式为例

清末时期,法制变革,西方民法学理论被引入并逐步传播开来。至民国初期,民事法律继续沿用前清现行律中的民事有效部分。接受过西方民法学理论教育的大理院推事们在民事审判实践中,运用大陆法系的物权理论审理物权变动案件形成了很多经典判例。这些判例在内容上客观地展现了物权变动模式在民国初期的发展趋向,在一定程度上反映了物权契约理论的发展历程。     

Court Discretion

All mention of specific types and dimensions of dangerous behavior, given by witnesses in testimony in 414 civil commitment hearings of allegedly dangerous mentally ill adults in one state, was recorded to see how such evidence affects court decision. A positive association between involuntary commitment and evidence of dangerous behavior as defined by appellate courts was found. Commitments increased with movement up a continuum of action and physical harm and with recency and recurrency. Much of the variance in involuntary commitment is explained by court concern with substantive justice.