SCIENTIFICALLY CRAFTED CHILD CUSTODY EVALUATIONS

This article proposes a model for the interdisciplinary colloboration of judges, attorneys, and evaluators prior to the writting of a court order for child custody evaluation in the formulation of specific psycholegal questions that guide the examination. These questions accurately reflect the concerns of the court, the attorneys, and the parties to the dispute while framing the evaluation questions within the behavioral sciences, suitable for evaluation by a mental health professional. Such a model best suits the court by providing information on specific, legally relevant areas of parenting, child development, and/or mental health useful to the trier of fact.     

Psycholegal treatment and intervention

In the same way that the interface of law and psychology has brought about the development of “psycholegal” assessment methods, parallel forms of psycholegal interventions are beginning to emerge as well. What distinguishes them from traditional forms of psychotherapy is that their administration requires an integration of both legal and psychological knowledge. Divorce mediation, treatment of incompetence to stand trial, and other examples are shown to fall within this new category of interventions. A conceptual model for the development of psycholegal interventions is presented. Forensic mental health professionals are urged to approach their development more systematically.     

Statistical Inference on Measures of Lineup Fairness

Psychological research on eyewitness testimony has made important contributions to the measurement of lineup fairness. The mock witness task, and measures of functional size, effective size, and diagnosticity have proved useful both in application to real-world problems and to ongoing research aimed at the optimization of criminal investigation techniques. However, these measures are typically used in the absence of any inferential statistical considerations. This is unfortunate, since the mock witness task relies on an implicit probability model. An attempt is made in this paper to identify a suitable formal probability model for the mock witness task, and suggestions are made with respect to how to reason inferentially about many of the lineup measures developed in psycholegal research. It is important to reason inferentially about these measures, and a failure to do so may mislead those to whom measures of lineup fairness are presented.     

An interdisciplinary collaborative model for developing psycholegal questions in court ordered child custody evaluations

When a child custody evaluation is ordered from the bench, it is common practice for a judge to include a request for psychological evaluation of the parents and their minor children. Occasionally, a judge will provide a list of questions to be assessed. It is often left to the examiner to draw inferences from the court order and pleadings about the precise scope and purpose of the evaluation. This article proposes a model for the interdisciplinary collaboration of judges, attorneys and evaluators prior to the writing of the court order in the formulation of specific psycholegal questions that reflect the concerns of the court as well as those of the attorney and their clients and which may be anchored in the behavioral science literature. Such a model best suits the court by providing information on specific, legally relevant areas useful to the trier of fact.     

On the assessment of children in suspected child sexual abuse in light of Daubert and Frye: limitations of profiles and interviews as scientifically grounded evidence

Practice with children and families entails the higher probability of encountering forensic issues of child sexual abuse (CSA) assessments for which relatively few psychologists, allied mental health and legal practitioners are sufficiently well equipped. The current paper reviews some of the key psycholegal issues bearing on the assessment of suspected CSA in the contexts of: (a) recent psycholegal precedence and common law rules of reliability and admissibility of CSA profile evidence; (b) the empirical problems with CSA syndromes; and (c) the problems with children's interviews as evidence, and suggestions for valid interviewing guidelines supporting free recall. These psycholegal issues are presented in terms of the Frye standard for expert testimony and the Federal Rules of Evidence, with recent American and Canadian case illustrations, such as Daubert v. Merrell Dow Pharmaceuticals, Hadden v. State of Florida (1997), Bighead v. The United States of America (1997), Diocese of Winona v. Interstate Fire & Cas. Co. (1994), and R. v. Simpson (1996).     

SCIENTIFICALLY CRAFTED CHILD CUSTODY EVALUATIONS

Part 1 of this two-part series proposed the use of an interdisciplinary model in the development of psycholegal questions that guide child custody evaluations. It was argued that defining the scope and focus of an evaluation at the time that a court order is entered provides a more structured and clearly defined set of questions to be researched and examined within the context of the behavioral science literature. The present article offers a conceptual model to be used in gathering and analyzing data in child custody evaluations. It is argued that the use of forensic methodology provides a more scientific basis for the information provided by the evaluator to the trier of fact, ultimately resulting in a more useful and accurate picture of the family in question.     

Psycholegal Assessment of Co-occurring Chronic Pain and Schizophrenia Post-MVC: Analysis of Causation Using Two Case Examples

The key aspect of any psycholegal assessment is the analysis of causation, which requires consideration of important legal constructs such as the but for test, material contribution test, thin skull, and crumbling skull. An analysis of causation can be especially helpful in determining overall liability when evaluating the impact of two major co-occurring conditions. This paper focuses on the utility of conducting an analysis of causation using two case examples in which chronic pain and schizophrenia co-occurred following a motor vehicle collision (MVC). Collision-related injuries often lead to the development of chronic pain and could result in permanent and serious impairment and disability. Schizophrenia is a rare psychological occurrence in the collision context and is associated with its own unique and overwhelming physical, psychological, and cognitive challenges. In the psycholegal context, evaluating the impact of two major co-occurring conditions can be problematic and lead to conceptual challenges. In the two cases presented, some assessors attributed nearly all post-collision changes to schizophrenia as if it were pre-existing or in a latent state and failed to assess or even consider the contribution of MVC-related sequelae to the onset of schizophrenia. As part of addressing these conceptual challenges, we present a model of psycholegal assessment that takes into account the pre-, peri- and post-MVC variables that best explain the occurrence of these two conditions. The model also allows the assessor to determine the current and future needs of injured persons, the permanent physical, psychological, and cognitive sequelae that impact quality of life and/or work, and prognosis for the near and distant future.     

Earnings prospects,matching effects,and the decision to terminate a criminal career

This study represents an effort to investigate the age pattern of criminal involvement from an economist's perspective. It presents a dynamic stochastic model of sequential search and match evaluation which is used to explain the reasons for, and the timing of, the decision to terminate a criminal career. The behavioral implications derived from the theoretical model are tested using individual National Longitudinal Survey of Youth data. Estimation results strongly support the prediction of a negative relation between theoption value of retaining a criminal career and desistance decisions. More specifically, the effects of current and future expected criminal earnings are shown to be negative, substantial, and statistically significant in determining desistance probabilities. Retiring behavior is also significantly responsive to variables measuring personal costs of punishment and the availability and attractiveness of a legal income-generating activity in ways consistent with theoretical expectations.     

前构成要件行为概念之提倡——兼评可罚违法性理论和我国《刑法》第13条但书规定

前构成要件行为是指尚未进入刑法评价的行为,是刑法评价的对象。前构成要件行为具有行为性和法益侵害性两大特征,由行为人、行为、行为对象以及法益四个要素予以体现。前构成要件行为的功能在于将法益侵害轻微的行为排除在刑法评价对象之外,并且区分了刑法评价对象和刑法评价本身。因此,前构成要件行为实质上发挥了三阶层理论中可罚违法性的机能,并且暗合了我国《刑法》第13条但书的规定,避免了其在犯罪论体系上的弊病,因而具有重要的理论和现实意义。     

我国刑事司法中法律评价与道德评价的冲突论

本文从刑事法律与道德的一般关系出发,阐述了刑事司法中法律评价与道德评价的关系,认为道德评价对司法人员的法律评价存在着一定的影响;文章分析了刑事司法中的法律评价与道德评价冲突的原因和方式,认为刑事法律评价与道德评价的冲突实质上是法律文化与道德文化的冲突,这种冲突在我国司法实践中有三种不同的表现方式;文章同时分析了司法实践中对于刑事法律评价与道德评价冲突的二种不同的协调方式及其利弊。     

Controlling violence: criminal justice, society, and lessons from the US

Based on a lecture to policy makers in Brazil, this essay explores lessons that developing nations can learn from US experiences in the fight against violence and crime. A brief summary of trends in crime, criminal justice policy, and criminal punishment in the US over the past four decades is followed by an evaluation of the dominant imprisonment strategy of the 1970s through 1990s. It is argued that benefits of the massive increase in criminal punishment have been few and that costs have been excessive in terms of material, human, and social capital. Nonetheless, the American experience provides inspiration when we consider the broader societal potential for social organization: values and norms; self-interest and involvement in legitimate exchange networks; mobilization of social capital; and diverse mechanisms of social control. These concepts are explained, and specific institutions and mechanisms to control violence and crime are explored under each of them. This revised version was published online in August 2006 with corrections to the Cover Date.     

从罪刑均衡到罪责刑相适应——兼论刑法中“人”的消隐与凸显

刑法理论发展史上,经由刑事古典学派与刑事实证学派的对立纷争,罪刑关系经历了从罪刑均衡到"人"刑对应的演绎脉络。我国当代刑法理论确定罪责刑相适应原则,藉由刑事责任论的建构和充实,较为完美地实现了罪刑关系范畴中行为考察和行为人评价的统一。梳理从罪刑均衡到罪责刑相适应的发展历程,可以看出,伴随刑法理论的发展,犯罪人逐渐实现从消隐到凸显的地位变迁。当代刑法学的发展方向,应是日益重视行为人主体地位的确立和人格特征的评价。以此为视角,我国刑法学应从理论上更加重视主观因素和行为人因素的植入,在实践中更加关注行为人人身危险性的评价和犯罪恶性的改造。     

论刑事政策的评估

刑事政策评估的内容包括效益评估、成本评估、影响评估、过程评估、价值评估 ,其评估方法有前后对比法、成本效益分析法。影响刑事政策评估的重要因素有 :评估体制、评估主体、评估方法、评估环境等 ,应建立多层次、多方位的刑事政策评估机制。     

Basic approaches to medical,forensic, and biomechanical studies in expert evaluation of a car injury

Modern approaches to forensic medical expert evaluation of car injuries are discussed. Many problems remain unsolved after examination of injuries in victims inside the car, which negatively tells on the versions suggested during criminal investigation of car accidents. The experts often neglect the most sensitive methods for evaluation of these injuries and many fundamental approaches to the problem: differential diagnosis of primary and secondary injuries; basic medical and biomechanical methods and studies of the clues; fundamentals of total systems evaluation of the results of forensic medical expert evaluation.     

True and false intentions: asking about the past to detect lies about the future

This study is on how to discriminate between true and false intentions, an emerging area within psycholegal research. We argue that asking about the past (the planning phase) might be a promising way to detect lies about the future (intentions). That is, participants who had developed false intentions to mask their criminal intentions were assumed to provide equally long and detailed answers to questions about intentions, compared to participants who told the truth about their intentions. In contrast, we predicted that lying participants would be worse at answering questions about the planning of their stated (false) intentions, compared to participants telling the truth about the planning of their stated (true) intentions. To test our assumptions, we used a newly devised experimental set-up accommodating the main characteristics of intent. Both lying and truth-telling suspects perceived the questions on planning as more unanticipated, and more difficult to answer, compared to the questions about their intentions (future actions). Furthermore, in support of our predictions we found that the truth-telling (vs. lying) suspects' answers to questions on planning were longer and perceived as more detailed and clear, whereas liars' and truth-tellers' answers to questions on intentions were equally long and perceived as equally detailed.     

“一体四层”的犯罪论体系之提倡——以大陆法系与我国犯罪论体系为分析对象

自然主义的犯罪论体系是既无评价对象又无评价标准的“无体无层”的体系,存在论的犯罪论体系是评价对象与评价标准不分的“体、层不分”的体系,规范论的犯罪论体系是只有评价标准没有评价对象的“有层无体”的犯罪论体系,组合式的犯罪论体系是“体、层矛盾”的犯罪论体系,诸种体系皆为不当。事实与价值绝对二分论、一体论必须向相对二分论“温和”转向。犯罪论体系应建构评价对象与评价标准相对二分的“一体四层”的体系。     

刑事责任能力评估工具在司法精神病鉴定中的应用

目前,我国刑事责任能力采用三分法,分为完全责任能力、限定责任能力和元责任能力.但在司法精神病鉴定工作中,由于缺乏客观标准,三者的区分尚带有较大主观性,常导致不同鉴定人对同一案例的责任能力判定存在分歧.因此,刑事责任能力的评定一直是司法精神病鉴定亟待解决的难题.本文综述了在司法精神病鉴定中使用的几种责任能力评定量表及其应用情况,认为虽然目前这类量表的信度和效度存在争议,但其对提高鉴定结果的科学性、客观性提供了一种良好思路.     

法国刑事证据自由原则及其限制

法国刑事证据自由原则,即将证据能力与证据形式作一清楚切割,允许通过任何形式证明犯罪事实。证据形式自由与证据评估自由及法官依据内心确信裁判的伦理责任一道构成自由心证制度体系。法国证据自由原则历经古典时期的萌芽、中世纪的式微、法国大革命的确立及现代发展四个阶段。法国确立证据自由原则的合理依据是刑事诉讼的特殊属性、提高打击犯罪效率的需要及揭示案件真相的要求。合法性及正当性是对证据自由原则的限制。法国通过立法及判例规定了对主要取证手段的限制,如讯问犯罪嫌疑人、搜查与扣押、电信截听及诱惑侦查。程序无效制度保证限制的有效性,通过程序性制裁形成威慑力。正当性的灵活性及程序无效的偶发性使得法国在刑事证据上从加强“限制”重回“自由”,达成新的平衡。重视“实体真实”始终是法国刑事司法最为核心的价值,这不啻为中国当前完善刑事证据制度提供新的启发。     

Implementation evaluation: A future direction in project evaluation

The problem of implementation failure is an important component in the evaluation of criminal justice projects. In general, the issue of project implementation has been neglected by organizational researchers and evaluation specialists as well as by policymakers and program developers. In direct contrast to the existing pattern, we stress the importance of organizational factors and the relationships between individuals and organizations for the successful implementation and institutionalization of criminal justice projects.     

Criminal superstition, pregnancy and infants at the turn of the 19th century

Around 1900, various crimes were still caused by criminal superstition. Criminologists like Hans Gross, Albert Hellwig and August L?wenstimm were engaged in the exploration of this topic aiming at the complete explanation of criminal behaviour linked to superstition. Crimes against pregnant women and infants are particularly good examples to illustrate the problems arising from crimes motivated by superstition. When assessing superstition under scientific and legal aspects, the criminologists applied different approaches, although positivistic rationalization was the most common tendency. In the forensic and legal evaluation of crimes related to superstition the problematical questions were whether the perpetrator was criminally responsible and how the offence was to be legally qualified. In many cases, criminals motivated by superstition were treated with more lenience.