难以辨识的法院庭审管理——以药家鑫案庭审发放意见表为中心

药家鑫案引发了颇多可供讨论的法律问题,比如媒体与司法的关系、司法民主与司法公正的关联等。仅就一审法院在庭审中发放"旁听案件反馈意见表"的行为来说,就可以映射出许多关于当前中国司法改革的样态。究其本质,发放意见表实则难属司法行为或审判行为,其更多地表现为一种法院的管理行为。从庭审管理的角度而言,这一行为彰显了在当前集权体制下行政化的法院管理模式逐渐难堪的现实,同时也反映了当前法院还算占绝对优势控制的庭审管理环节深受媒体和舆论的压制而艰难前行的无奈,并且还反映了法院在以政治为首要职能的高压下难以实施专业性技能管理的困境。     

The media coverage of court proceedings in Europe: Striking a balance between freedom of expression and fair process

Press curiosity to report on legal proceedings has been a salacious feature in history of mass media. Pre-trial comment, media coverage of press proceedings and the protection of privacy of the defendant are some of the main legal issues which are raised by the ambiguous relation of media to court proceedings. The Internet revolution and the emergence of the blogosphere have added a new dimension to the analysis of these legal issues. A balance between freedom of expression and the guarantee of a fair unprejudiced process has to be achieved in the context of application of legal mechanisms of protection of the justice’s authority, such as contempt of court. As regards the question of media coverage of the court proceedings, the decision of the UK Supreme Court on May 2011 to permit television coverage of its hearings demonstrates an important shift as regards how publicity is perceived by the administration of justice in the UK, while there is a certain disparity between national legislators in the way they deal with this issue at a European level. The legal question of the protection of the defendant through the effective guarantee of the presumption of innocence and, consequently, that of a fair trial is often combined with the debate about the right of the defendant’s privacy not only when there is a pressing social need for information to the public before or during the court trial but also many years after the end of the legal proceedings.     

Administration and Justice

Although the existence of plea negotiation as an operative mode of disposition in most criminal court systems has been firmly established, its role in the administration of justice remains a topic of considerable debate. It has been claimed that plea negotiation subverts ideal principles of justice while attending to administrative needs for speedy case settlement. More recent research indicates that disposition by guilty plea is a complex process that incorporates system needs as well as principles of justice. Findings from an exploratory study of the felony disposition guilty plea is a complex process that incorporates system needs as well as principles of justice. Findings from an exploratory study of the felony disposition process in the Multnomah County court system in Portland, Oregon suggest that, under certain conditions, plea negotiation can effect a balance between competing but interdependent domains of action in the criminal disposition process.     

Legal,Psychological, and Behavioral Outcomes

States have responded to the public's outrage at rising juvenile crime by revising their transfer statutes to make it easier to transfer juvenile offenders for trial and sentencing in criminal court and possible incarceration in adult prisons. These changing trends in juvenile justice raise three questions about what actually happens to juveniles once they are in the adult criminal justice system. To what extent does trial in adult court and/or incarceration in adult prisons promote or retard community protection, juvenile offenders' accountability, and the development of competencies in juvenile offenders? This article discusses state transfer laws and the legal consequences of criminal court prosecution, and analyzes current research on deterrence effects of transfer laws, conviction and sentencing in juvenile versus criminal court, recidivism rates in juvenile versus criminal court, and conditions and programming in juvenile versus adult correctional facilities. The research findings have two important implications for juvenile justice policy: the number of juvenile cases transferred to criminal court should be minimized, and imprisonment of juveniles in adult facilities should be avoided whenever possible. These implications are discussed, and directions for future research are identified.     

Intimate partner violence and the justice system: an examination of the interface

Women entering the court system face a challenging experience, in part, because a courtroom can be an intimidating and difficult place for any person, and in part because women victimized by crimes in which the offender is known to them face distinctive difficulties when they seek the court's remedies. The interface is also made more challenging for women as the literature offers disparate findings as to the efficacy of criminal justice responses and civil remedies. This article briefly explores the unique characteristics of intimate partner violence cases that influence the interface of these victims with the court system. Areviewis provided of research on the criminal justice interventions in cases of intimate partner violence; and research on the efficacy of civil protective orders.     

In Search of the Missing Link: Examining Contextual Variation in Federal Charge Bargains across U.S. District Courts

Abstract

Punishment scholars acknowledge the fundamental importance of both prosecutorial discretion and jurisdictional variation in punishment; yet, little is known about the extent to which charging practices vary across court contexts. This is especially true in the federal criminal justice system. This research investigates this issue by linking four years of charging data from the Administrative Office of the U.S. Courts (AOUSC) to corresponding data from the U.S. Sentencing Commission (USSC). It incorporates unique information on district court contexts from a variety of sources to investigate jurisdictional variation in charge reductions. Findings provide evidence that federal charging practices vary across district courts. In particular, several structural court characteristics are significantly related to the likelihood of charge reduction for similarly-situated defendants. Results from this study are interpreted through the lens of contemporary legal perspectives on court communities and suggest several fruitful directions for additional research on the social contexts of criminal prosecution.     

媒体对司法的监督

大众传媒是当今社会公众了解公共信息并表达意见的主要渠道。媒体的监督具有促进司法独立、司法公开和司法公正的价值,但媒体与司法之间同时存在着冲突。冲突的解决应当从各国的实际情况出发,找到两者之间的平衡,以达到保障人权和司法公正的实现。从我国的司法现状看,更应强调对媒体作为公众舆论渠道的保护。     

Mental health, gender, and drug court completion

Drug-involved offenders report high rates of mental health problems that can negatively impact criminal justice outcomes. Yet, relatively little attention has been given to the mental health issues of drug court offenders. Therefore, this study examined 449 participants in a Delaware drug court and investigated relationships between mental health, gender, and program completion. Bivariate results indicated that gender was related to both mental health status and completion status. Multivariate findings revealed that two indicators of mental health, depression and being prescribed drugs for a psychological or emotional problem, were significant predictors of drug court completion. Policy implications include assessing the mental health status of all drug court participants at program entry so that services can be provided which aim to improve offender health and increase the likelihood of successful program outcomes. Drug courts must better meet the needs of participants with co-occurring disorders if they are to remain an effective and viable criminal justice intervention. This research was supported by grant RO1 DA12424 “Drug Court Offenders in Outpatient Treatment,” by the National Institute on Drug Abuse.     

Youth justice conferencing and indigenous over-representation in the Queensland juvenile justice system: a micro-simulation case study

Restorative justice conferencing for young offenders is firmly established in Australian juvenile justice, and legislated conferencing schemes are operating in all Australian states and territories. While there is some variation in the terms used to describe restorative justice conferences (e.g., family group conferencing, family conferencing, or youth justice conferencing), there is much more consistency in how the conferencing process is managed across Australian jurisdictions. In Queensland youth justice conferencing is a process that brings together an offender, the victim and their supporters to discuss the harm caused by the offending behaviour and provide the young person with an opportunity to take responsibility for his or her behaviour and make amends. This paper begins by briefly sketching the development of restorative justice conferencing in Queensland and describes the Juvenile Justice Simulation Model (JJSM), a micro-simulation model developed for criminal justice policy analysis in Queensland, Australia. We use this micro-simulation model to conduct an experimental exploration of the effects that youth justice conferencing has on system-wide outcomes for indigenous young people. The model simulates the impact of interventions up until 2011 on the number of finalised youth justice court appearances. Our results indicate that youth justice conferencing is unlikely to reduce the over-representation of indigenous young people in the juvenile justice system. The simulations demonstrated that, by the 2011, youth justice conferencing would result in a 12.5% decrease in finalised court appearances. Unfortunately, this decrease was more apparent for non-indigenous young people (13.7% decrease in court appearances) than for indigenous young people, who had a 10.5% decrease in court appearances. This differential impact of conferencing is due to the different court appearance profiles between indigenous and non-indigenous young offenders, with indigenous young people initiating offending at an earlier age and offending more frequently than non-indigenous young offenders.     

Socializing Distrust of the Justice System through the Family in Juvenile Delinquency Court

Juvenile delinquency courts in the United States generally require parents to attend all court hearings, but little is known about how parents' experiences in the court process affect their discussions of the justice system with their court‐involved children. Using multiperspectival and longitudinal data combining observations with interviews of parents and youth in two courts, this research finds that many parents discuss the legal process in negative terms with their children when parents are outside the presence of legal authorities. This research adds to the literature on legal socialization by examining how parents' perceptions of law and their experiences with the court become part of the socializing content provided by parents to their court‐involved children. Creating a more meaningful role for parents in the juvenile justice process may potentially lead to more positive discussions of the court process between parents and juvenile defendants.     

DNA鉴定人出庭作证现状、问题及对策

DNA鉴定在刑事案件的侦查中能锁定犯罪嫌疑人、串并案件、提供侦查线索,是重要的技术破案手段.DNA证据通常是可靠的,被大多数人认可,以前DNA鉴定人出庭作证非常少见.但是,DNA证据也并非完美,在应用中常常会出现一些问题,还有个别DNA检验出错,因而法庭必须加强对DNA证据的审查.随着我国新刑诉法的出台,DNA鉴定人出庭作证将是今后日常工作之一,通过质证,排除非法证据,准确阐释证据的证明力,最终实现刑事诉讼的实体公正和程序公正.本文亦针对在探索阶段鉴定人出庭作证存在的问题给予了一些建议.     

THE HEDGEHOG DILEMMA IN THE COURT-MEDIA RELATIONSHIP IN CHINA

This paper explains why Schopenhauer＇s ＂Hedgehog Dilemma＂ may be the most apposite metaphor for the relationship between the courts and the media. Whatever they get from each other, the media＇s role representing the public and the court＇s role representing justice are both essential to modern democracy. Therefore, their relationship has attracted attention, not just in legal and media professions, but also in public and government debate. In the last two decades, China ＇s highest court has issued judicial interpretations and guidelines to regulate the activities of the media and the court, which has brought the topic to a new level of discussion. As a drafter of these official documents, the author will comment on development in this field and their interaction with values inherent to democracy.     

How Litigants in Dutch Courtrooms Come to Trust Judges: The Role of Perceived Procedural Justice,Outcome Favorability,and Other Sociolegal Moderators

This paper examines the hypothesis that litigants' perceived procedural justice is positively associated with their trust in judges. We argue that although this association might seem quite robust, it can vary across contexts. In particular, we suggest that the nature and magnitude of the association between procedural justice and trust in judges depends on outcome concerns, and other sociolegal moderators such as outcome importance and prior court experience. We tested our predictions in three different types of law cases among 483 litigants at court hearings of the district court of the Mid‐Netherlands. As predicted, our results indicate that perceived procedural justice was positively associated with trust in judges when outcomes were relatively favorable, and that this association was even stronger when outcomes were relatively unfavorable. The courtroom context studied here enabled us to explore how other sociolegal variables moderated these relationships.     

Sentencing data-driven cybercrime. How data crime with cascading effects is tackled by UK courts

This paper contributes to research seeking to understand if and how legislation can effectively counter cybercrimes that compromise personal data. These ‘data crimes’, which are the ‘dark side’ of big data and the data economy enabled by cloud computing, display cascading effects, in that they empower disparate criminals to commit further crimes and victimise a broad range of individuals or data subjects. The paper addresses the under-researched area of sentencing, which, as the last step of the judicial process, plays a crucial role in how the law is interpreted and implemented.This paper investigates courts’ approach to the evolving technological environment of cybercrime captured by data crime and the cascade effect and whether the cascade effect can assist courts in dealing with data-driven cybercrime. The paper examines original data collected from UK courts, namely 17 sentencing remarks relating to cybercrime court cases decided in England & Wales between 2012 and 2019. The analysis shows that courts appreciate the impact of data crime and their cascading effects, but that the complexity of the offences is lost at sentencing, arguably due to the negative impact of systemic factors, such as technology neutral law and the lack of legal authorities.After examining such systemic factors, the paper suggests how the cascade effect could aid sentencing by adding specificity and context to data crime. The paper ends with avenues for further research relating to debates on fair cybercrime sentencing and open justice.     

Transforming Teens: Measuring the Effects of Restorative Justice Principles in a Teen Court Setting

This paper examines the impact of restorative justice principles in a teen court setting. Specifically, our research attempts to quantitatively measure learning of certain restorative justice principles through the teen court process by comparing matched, pre‐ and post‐survey responses to questions involving the adolescent's ability to understand their crime as a violation of relationships within their community, as opposed to merely a violation of law. Qualitative responses regarding the efficacy of the teen court program from both teen participants and their parents are also examined in the context of restorative justice principles. Finally, the efficacy of the teen court model is discussed in terms of recidivism rates compared to teens who do not experience the teen court process.     

Food security and secure food in the Anthropocene

Delinquency in middle class areas (and why it is low) has been a neglected topic in criminology. The book by Singer [1] advances knowledge about this topic, focussing on Amherst (NY), but also comparing it with the high crime area of Newark (NJ). The book discusses various community and neighborhood factors that might have contributed to the low crime rate in Amherst, but also emphasizes the importance of parenting and juvenile justice processing. The book highlights the need for more research on community/neighborhood effects on offending after controlling for individual and family factors. It also highlights the need for more research on self-reported delinquency versus court processing of middle class versus lower class youth, and on possible juvenile justice system biases after controlling for characteristics of offenses and offenders. Its main policy implications are that more programs and opportunities are needed for youth in lower class areas, there should be more efforts to increase collective efficacy in these areas, and juvenile court processing should be minimized as much as possible.     

Sex and Experience: Modeling the Public’s Perceptions of Justice, Satisfaction, and Attitude Toward the Courts

The purpose of the present study is to examine the influence that sex has on the interconnection between justice, satisfaction with the courts, and attitudes toward the courts. Using national level polling data, the results show that different forms of justice coalesce into a latent measure of justice. Further, the results show that sex differences in our latent measure of justice do exist. In addition, those with experience with the course have a negative attitude toward the court system. Finally, the results show that the impact of justice on attitude toward the court system is partially mediated by satisfaction with the court. Policy implications are discussed.     

Diversion in the Canadian Juvenile Justice System: A Tale of Two Cities

Abstract The present study attempted to evaluate the effectiveness of diversion in the juvenile justice system by comparing two different communities. One community has a formalized, well-established diversion program whereas the other community utilizes the Family Court to a much greater extent. Preliminary data suggests no difference in recidivism for a matched sample of young offenders. The implications of the study are discussed in terms of future research on diversion and the need for appropriate comparison groups. In the past two decades, diversion programs have been one of the major innovations within the juvenile justice system. These programs have attempted to divert juveniles from the formal process involving court hearings by creating alternative interventions at the policy and community level. The basic premises underlying these programs is that the formal court system may do more harm than good by labeling youngsters as “delinquent” and rendering them more vulnerable by involvement in an adversary process (Reference numbers 4, 12, 14). Diversion programs that provide youngsters with an opportunity to make restitution or perform community services are compensation for their misbehavior are seen as more immediate and meaningful consequences than awaiting a formal adversarial court hearing (5, 13). However, diversion programs have not met with universal acceptance. Critics have pointed out that programs, in fact, “widen the justice net” by processing children who never would have gone to court anyway (3, 7). As well, concerns have been raised as to the protection of clients' legal rights in the diversion program and the dangers of “double jeopardy” in the event that failure in a program could lead to an even more severe disposition by the court (8, 9). The debate over the effectiveness of diversion programs has been fueled by the lack of research. Although there are many studies that suggest the success of this approach (1, 6, 10), the research has suffered in its credibility due to the absence of appropriate control groups. The present study attempted to fill this significant void in previous evaluations of diversion, by comparing two communities in southwestern Ontario with different approaches to juvenile justice. The cities of Windsor and London are approximately 200 km apart, with comparative populations (200,000 vs 250,000). Windsor has well established diversion programs with substantial support of community agencies, the police force and Crown Attorney's office. This program is described in detail elsewhere (2, 11) so will not be outlined here. London has no such program and consequently has an obviously greater number of youngsters handled through the formalized juvenile court. The authors hoped to capitalize on this “naturally occurring difference” in approach between the two cities by examining the rate of recidivism of young offenders as well as determine their attitudes (and that of their parents) toward the interventions they received. The hypotheses in the pilot studies outlined were that the diversion program youth in Windsor would have a more positive attitude about their intervention and would be less likely to recidivate than a matched sample of youth in London, based on the theoretical underpinning of diversion as well as the results of previous outcome studies.