The trials of law and literature

Ronnie Warrington died on 28th September 1994.     

The case of two trials: Father-son incest

Although efforts for investigating and prosecuting child abuse cases have increased little attention has been paid to juror response to child testimony. This paper, developed as part of a pilot study to test a questionnaire for polling jurors' opinions in child sexual abuse cases, analyzes a case in which there was a reversal of outcome at retrial. Poll results of the jurors' opinions suggest the need for testimony from law enforcement and child sexual abuse experts to explain children's perception, memory, and recall of a reported experience.     

民事庭审质证的基本要素研究

民事庭审质证是质证双方在法庭主持下就证据的证明力和可采性进行相互辩驳的诉讼行为,其基本要素包括质证主体、质证客体、质证内容和质证方式四个方面。质证主体应是证据或其形成过程的认识者、质证意思的独立表示者、质证程序的参与者、质证行为的实施者、与质证相关的程序性权利的享有者或程序性义务的承担者,其不但包括当事人,而且包括广义上的证人。质证客体的范围应限于“当事人提出质疑的证据”,过宽或过窄均不利于兼顾司法公正的实现和诉讼效率的提升。质证内容应限于证据的真实性、关联性和合法性三个方面,证据的客观性缺乏质证意义,充分性只有在证据链中才有质证意义。质证方式亦即质证的行为方式,其有别于质证的基础性工作,是质证双方针对证据的证明力及其可采性展开的法庭论辩。     

The effects of stealing thunder in criminal and civil trials

The effectiveness of a persuasion technique referred to asstealing thunder was assessed in two simulated jury trials. Stealing thunder is defined as revealing negative information about oneself (or, in a legal setting, one's client) before it is revealed or elicited by another person. In Study 1, 257 college students read or heard one of three versions of a criminal assault trial in which a damaging piece of evidence about the defendant was absent (no thunder), brought up by the prosecutor (thunder), or brought up by the defense attorney and repeated by the prosecutor (stolen thunder). In Study 2, 148 college students heard a civil negligence trial in which damaging evidence about the key plaintiff's witness was absent (no thunder), brought up by the defendant's attorney (thunder), or brought up by the witness himself (stolen thunder). In both studies, stealing thunder significantly reduced the impact of the negative information. A path analysis of the processes underlying the effect suggested that verdicts were affected because of enhanced credibility.Often a difficult decision in opening statements is whether, and if so how, to volunteer weaknesses. This involves determining your weaknesses and predicting whether your opponent intends to use them at trial. There is obviously no point in volunteering a weakness that would never be raised at trial. Where, however, that weakness is apparent and known to the opponent, you should volunteer it. If you don't, your opponent will, with twice the impact. (Mauet, 1992, pp. 47–48)We would like to thank Michelle Cox, Gim Koay, Dana Koay, and Ralph Mueller for their helpful input. Thanks also to Irv Horowitz and Steve Karau for their comments on earlier drafts.     

The trials and tribulations of court reform: A review essay

This study examines the impact of religious programs on institutional adjustment and recidivism rates in two matched groups of inmates from four adult male prisons in New York State. One group had participated in programs sponsored by Prison Fellowship (PF); the other had no involvement with PF. PF and non-PF inmates are similar on measures of institutional adjustment, as measured by both general and serious prison infractions, and recidivism, as measured by arrests during a one-year follow-up period. However, after controlling for level of involvement in PF-sponsored programs, inmates who were most active in Bible studies were significantly less likely to be rearrested during the follow-up period.     

Smoking trials with mercury contaminated cigarettes. Studies of attempted poisoning]

In the context with an attempted poisoning it was investigated, to which extent an intoxication can be caused by smoking cigarettes, which contain elementary mercury. With a smoking apparatus the effect of the amount (9 mg to 1.4 g) and of the distribution of the Hg within the cigarette on its concentration in the mainstream and sidestream smoke as well as in the ash and the filter was analytically determined. It follows from these experiments, that at a good distribution almost independently of the amount involved only up to 2 mg Hg per cigarette are inhalated with the mainstream smoke, whereas up to 97% are found in the sidestream smoke. In the ash and the filter only small amounts are detected. By comparison with cases described in literature it is shown, that a poisoning by such cigarettes is possible only after frequent smoking or by passive smoking via the sidestream smoke in small and badly aerated rooms.     

On Complicity and Compromise: A Reply to Peter French and Steven Ratner

Peter French’s and Steven Ratner’s thoughtful comments are helpful in advancing the analysis we offered in our book On Complicity and Compromise. Inevitably, there are areas of disagreement and bones to pick. However, our primary concern in this reply will be to press, with their assistance, the more positive agenda.     

Settlement during patent litigation trials. An empirical analysis for Germany

Settlement in patent litigation suits is a frequently observed phenomenon. Even though parties have the opportunity of achieving an agreement at the first negotiation round they often reach one during trial. Game theoretic models suggest that additional or differently evaluated information may trigger settlement after a first bargaining round. This paper investigates settlement decisions in patent infringement suits for Germany. Based on a data set of 824 patents involved in infringement suits in Germany during 1993 and 1995 I find legal differences between the District Courts to have a significant impact on the settlement rates during trial. The results also reveal it is only in later stages of the trial that invalidity suits as a means of defense have a positive impact on the probability of settlement. Prior opposition to the litigated patent, however, always has a negative impact on settlement probability. Contrary to results for the US the adoption of the prevailing or not at the first instance has no effect on the settlement decision at the second instance.

民事诉讼中公文书证之证据效力研究

在民事证据立法中,不仅要明确赋予公文书证在证据法上的地位,更要对公文书证的证据效力进行明确,赋予其完全的证据能力和证据力,并根据公文书证的分类构建差异化的证据力规则。在推定公文书证均具有形式证据力的基础上,原则上推定其具有实质证据力,但是针对报道性公文书证,允许其通过提供相反证据予以推翻,处分性书证则不允许。最终通过对当事人对公文书证异议程序和相应救济手段的构建来规范和引领公文书证在司法实践中的科学合理适用。     

Korean citizen participation in criminal trials: The present situation and problems

As citizen participation in criminal trials was first introduced in 2008, it is advisable to keep the present form of an all-citizen jury system rather than introduce or adopt aspects of the Continental mixed tribunal system because the former system makes the best use of the meaning of Article 1 of the Act of Citizen Participation in Criminal Trials in Korea. Though previously professional judges participated in the deliberation process, under the current system, the new procedure should allow only jurors to engage in deliberations and render verdicts, with sentencing still left to professional judges. The new law should also eliminate a consent agreement required for a defendant in jury trial, thereby making jury trial mandatory for certain classes of heinous crimes like murder or even political crimes; juvenile cases, however, may still be excluded from jury trial. In addition, the exclusion right of the court should also be recognized, but the current comprehensive rule (Article 9 (1) (3)) should be eliminated. It is necessary for the jury verdict to have legal binding force such that the prosecutor cannot appeal the acquittal if the verdict was decided unanimously. Lastly, as for the use of victim participation programs, it is enough to simply allow victims to make statements as witness. This year, on March 6, 2013, the revised system of civil participation in criminal trials has been ready based on the evaluation of the current system by the Committee on Civil Judicial Participation, which was comprised of members from the judiciary, the academia, and civil organizations. The new amendment will be submitted to the National Assembly within this year.     

Rape trials and jurors' decisions

Recently, many writers have argued that equal protection for victims of rape is not presently offered in the courts since the outcomes of rape trials are frequently influenced by certain victim, defendant, and rape case characteristics. By systematically manipulating the factors of defendant and victim race, victim physical attractiveness, victim sexual experience, strength of evidence presented, and type of rape committed in a legal rape case, the present study sought to examine the effects of these factors on jurors' verdicts. Data collected from a sample of 896 citizens serving as mock jurors for the rape case indicated that these extraevidential factors had significant effects. Furthermore, it was found that the factors did not act independently as a number of significant interactions were identified. These interactions suggested that the impact of extraevidential factors on jurors' decisions is far more complex than what some writers and law reformers have thought. Implications of the findings are discussed in terms of discriminatory treatment of plaintiffs and defendants in rape cases and the role of juror selection in introducing fairness in rape trials.