刑事卷证与技术审判

从证据手段在审判中的运用来看,以卷证为基础的欧陆主要法治国家的刑事审判可以界定为一种技术审判,而英美以口证为主要手段的刑事审判大致属于一种经验审判。我国普遍运用卷证的刑事审判也可归为一种技术审判方式,但由于对卷证的过度依赖、司法者职业化和专业化程度不高和刑事卷证运用的程序性制约机制的欠缺,导致我国技术审判的异化。当下推行的以审判为中心的诉讼制度改革并非是对刑事卷证运用的根本否定,相反,为我国刑事卷证在审判中运用的制度改革奠定了基础。     

Physical and chemical evidence remaining after the explosion of large improvised bombs. Part 2: Firings of calcium ammonium nitrate/sugar mixtures

Six test firings of large improvised explosive devices were carried out. The principal objectives of the firings were to measure the physical effects of the explosions upon representative objects placed nearby and to recover any chemical traces deposited on these objects. The results are intended for use as an aid in determining the approximate size and type of an explosive employed in terrorist attacks. Three 454 kg charges of a mixture of calcium ammonium nitrate (CAN) fertilizer and sugar, and three 2268 kg charges of a similar mixture, all confined in cylindrical steel containers were fired. Each charge was surrounded by 19 road signs mounted on posts and four vehicles, to act as witness materials. The analysis of aqueous swab extracts taken from the witness materials after firing showed the recovery of nitrate, ammonium and low levels of glucose. No sucrose was detected. Nitrate was usually recovered in greater quantities than ammonium and recovery generally decreased with increasing distance from the charges in any given direction. Quantities recovered from objects placed at the same distance in different directions varied considerably. Patterns of physical damage to the witness materials could be discerned according to their distance from the charge and the size of the charge. The velocities of detonation and air blast effects were measured.     

新自由主义对美英国家刑事法制的影响及反思

从一国或地区的政治经济体制来理解其刑事法制,可以以相对宏观的视角把握其刑事法制脉络。美国刑事法制自20世纪70年代以来发生了深刻变化,从刑事法制基本观念到具体实践都渗透强烈的报应主义色彩,而隐藏其后则是新自由主义思潮。美国刑事法制的转变也影响着英国等国家。对这一思潮进行研究,一方面可以对这些国家刑事法制过去半个世纪发展脉络进行整体把握,另一方面也为分析研究这些国家刑事法制提供了一个更具批判性的视角。     

Methamphetamine use in nonurban and urban drug court clients

Population-based surveys suggest that methamphetamine use and abuse may be rising in the United States. However, little is known about methamphetamine use in eastern sections of the United States, particularly nonurban areas. The purpose of the present study was (a) to explore reported methamphetamine use and its correlates among Kentucky drug court clients and(b) to determine whether differences exist between methamphetamine users by drug court location. Of the 500 drug court clients surveyed, approximately 32% n=161) reported lifetime methamphetamine use. Methamphetamine users and nonusers differed in their drug-use profiles, self-reported criminal history, and number of criminal offenses. Nonurban and urban methamphetamine users differed in their drug-use profiles, psychological functioning, self-reported criminal history, and number of criminal offenses. These results suggest that differences exist between these populations and clinicians, and criminal justice officials may need to consider these differences when planning treatment and rehabilitation strategies.     

美国版权侵权刑事责任的评析

美国国会分别于１９９７年和１９９８年通过了《反电子盗窃法》和《数字化千年之际版权法案》两部法律,将版权法、联邦刑法及其相关法律进行部分修正,试图强化对于通过电子方式构成的版权侵权的刑事处罚和对版权人的保护。这两部法律与相关法律一起构建了比较全面的版权刑事保护体系,因此分析美国最新版权侵权的刑事责任的发展,有助我们研究完善版权的刑事责任的法律规定。     

两极化刑事政策之批判

近年来我国不少学者积极倡导美国的两极化刑事政策。20世纪70年代产生于美国的两极化刑事政策有其特殊的背景和成因，它是对过度的矫正刑运动的反思与调整，重刑主义是其重心和实质，在理论上存在难以克服的矛盾和错乱。两极化刑事政策并非多数国家普遍奉行的刑事政策，即使在美国也不是一项长久持续的刑事政策。两极化刑事政策既不符合我国刑事法治的现实需要，也与我国目前提倡的宽严相济刑事政策相违背。我国不宜实行两极化刑事政策。     

Participatory Democracy and Criminal Justice

This essay asks if there is a role for an active public in ratcheting down the harsh politics of crime control in the United States and the United Kingdom that has led to increased use of the criminal law and greater severity in punishment. It considers two opposing answers offered by political and legal theorists and then begins to develop a participatory democratic framework for institutional reform.     

The importation and re-exportation of organized crime: explaining the rise and fall of the Jamaican posses in the United States

During the 1980s and 1990s, Jamaican posses captured the imagination of the press corps, film makers, and numerous of criminal justice scholars in the United States. However, except for a few historical references, their virtual disappearance from the contemporary criminal justice literature leaves many unanswered questions. In updating the literature, this paper examines the main factors contributing to the decline of Jamaican posses in the United States and explains how their criminal activities were displaced to Jamaica through aggressive U.S. anti drug and anti-gang operations and immigration policies.     

‘Endemic to the species’: ordering the ‘other’ via organised crime

The United States has been the prime mover in the establishment of both the concept of organised crime and the use of the concept in its attempt to establish global hegemony, in which law enforcement became a little more than a front for a government-backed central casting agency, stereotyping both heroes and villains. This article offers an account of how the ‘Other’ has been used as prism for the construction of organised crime primarily in the United States and how this construction, as a franchise, has been exported on the international level and on heterogeneous criminal landscapes.     

“宽严相济”与“两极化”之辨析

我国的宽严相济刑事政策与美国的两极化刑事政策在生成背景、基本含义、精神实质等方面都有显著区别,不宜混淆。两极化刑事政策的生成背景是矫正刑运动的危机及其反动,其基本含义是重重和轻轻二元分立、两极分化,其精神实质是重刑主义。而宽严相济刑事政策的生成背景是对严打刑事政策的反思和纠正,其基本含义是根据犯罪的严重程度和犯罪人的人身危险性大小实行宽区别对待、宽严互济、互补,其精神实质是宽严适度、侧重宽缓。     

我国身份盗窃的刑法规制研究——兼与美国身份盗窃刑法规制的比较

身份盗窃具有严重的法益侵害性,应当运用刑法予以规制。但是我国现行刑法并没有为其设置专门罪名,而是通过对其预备行为与后续行为的禁止来实现对身份盗窃的间接规制。并且相关规范在行为的内容、主体、对象以及主观方面等要素的规定上存在严重的不足,无法满足规制的需要。而美国联邦及所属州和地区却通过不同模式的制定法为我们展现了运用刑法对身份盗窃进行直接规制的可能。这些模式大致分为两类,两类模式各有优劣。本文在比较分析的基础上,探索分析了我国完善身份盗窃刑法规制的途径与措施。     

Forensic palynology: current status of a rarely used technique in the United States of America

The United States of America would seem to be an excellent location for using pollen data in forensic applications. The vegetation within the region is highly diverse ranging from areas of Arctic tundra to some of the most inhospitable deserts anywhere in the Western Hemisphere. The highly varied ecology, great plant diversity, thousands of vegetational microhabitats, and extensive published pollen records for the region provide an ideal setting for these types of analyses. This diversity, often characterized in most locations by unique combinations of pollen types, makes the use of forensic pollen a reliable technique that can often be used to associate individuals with a unique crime scene or geographical region. Nevertheless, forensic pollen studies in the United States of America are currently one of the most highly under utilized techniques available to assist in solving criminal and civil cases. During the past century there has been a very limited attempt to use pollen evidence in either criminal or civil cases, for a variety of reasons, including a lack of available information about the technique, a very limited number of specialists trained to do forensic pollen work, and an almost total absence of academic centers able to train needed specialists or forensic facilities able, or willing, to fund research in this area. Hopefully, this paucity of use will change if certain steps are taken to encourage the routine collection and use of pollen evidence in both criminal and civil cases.     

Media coverage and public opinion of the O. J. Simpson trial: Implications for the criminal justice system

This article considers some of the beneficial and detrimental influences of media coverage of celebrity criminal trials based on a survey administered during the criminal trial of O.J. Simpson. Analysis indicates those who exhibited a stronger psychological involvement with Simpson developed through repeated media exposure were more likely to believe his innocence. African American respondents also were more likely to believe in Simpson's innocence than were others. Gender had no effect on beliefs of Simpson's guilt or innocence. Those with a strong belief in the fairness of the United States justice system more strongly supported unrestricted media coverage of the trial. Anglo Americans more than African Americans believed Simpson's lawyers used the media effectively for their advantage. Learning about the justice system by following the case resulted in increased interpersonal discussions about the legal system.     

Criminal insanity in 19th-century Ireland,Europe and the United States: Cases,contexts and controversies

The insanity defence has a lengthy, complex history. This article provides a concise, comparative background to the evolution of criminal insanity legislation and institutions for the mentally ill in the nineteenth century, with particular reference to Ireland and the United States. Three key themes are identified and explored: (a) the emergence of the insanity defence in the nineteenth century (e.g. the McNaughtan Rules); (b) conditions in nineteenth-century asylums and institutions for the ‘criminally insane’ (with particular reference to overcrowding, physical illness and asylum deaths); and (c) nineteenth-century considerations of criminal responsibility in women with mental illness (with particular reference to medical and judicial views of the relevance of menstruation, pregnancy and child-birth). These themes are explored through review of historical literature (with particular reference to the work of Dr. Isaac Ray, founding father of forensic psychiatry in the United States) and examination of previously unpublished archival material from the Central Criminal Lunatic Asylum, Dublin.     

Criminal homicide and the elderly offender: A theoretical and empirical analysis

This paper theoretically develops and empirically tests factors that significantly affect criminal homicide arrest rate patterns in the United States for elderly criminals of the ages 65 years and older, from 1964 to 1985. The analysis reveais that changes in commonly selected economic, demographic, law enforcement, and punishment variables are significantly correlated with elderly criminal homicide arrest rates in a manner consistent with implications from general theoretical models of criminal behavior and with frameworks specifically dealing with criminal homicide.     

To admit or not to admit: a comparative constitutional perspective on illegally obtained evidence in Ghana

During criminal investigations, law enforcement agents sometimes flout the law. They extract evidence by torture, illegal wiretapping, unlawful searches and seizures among other illegitimate means. In the United States, such illegally (or improperly) obtained evidence is inadmissible in criminal trials subject to some exceptions. The reverse position generally obtains under English law. In Ghana, because the Supreme Court has yet to make a definitive pronouncement on the issue, conflicting viewpoints exist. In this article, we analyse the relevant constitutional, statutory and case law principles with the view to clarifying the admissibility or otherwise of illegally obtained evidence in Ghanaian courts.     

春秋时期的刑罚概念

春秋人尚未对刑罚概念的内涵和外延做出严格的界定,当时实际运用的刑罚概念有三种,即：（１）狭义刑罚,（２）广义刑罚,（３）“治民”之刑,可称中义刑罚。     

The Death Penalty: An Unusual Punishment America is Inflicting Upon Itself

The United States is the only Western, industrialized nation still executing criminal offenders. The Constitutional provision that is most often used to call the appropriateness of capital punishment in the United States into question is the 8th Amendment, which prohibits cruel and unusual punishment. Opponents of capital punishment have often argued various reasons why the death penalty is a cruel punishment, but the Supreme Court of the United States has not agreed. A new approach to abolition advocacy is needed. Since the death penalty has not been determined cruel, I submit a new legal argument based on the unusual nature of capital punishment. Utilizing systems theory, I posit the death penalty is an unusual criminal punishment due to the extraordinary range of persons beyond merely the defendant who are negatively impacted by executions.     

Could Wild Horses Drag Access Away From Courtrooms? Expanding First Amendment Rights to New Pastures

More than thirty years ago, the Supreme Court of the United States created a First Amendment right of access to criminal trials in Richmond Newspapers, Inc. v. Virginia. At the time—and in the Supreme Court cases that immediately followed Richmond Newspapers—the assumption was that such a right of access would apply only to judicial proceedings. This article examines a small but significant body of case law that extends the First Amendment right of access to criminal proceedings to new venues far removed from courtrooms. Using the 2012 opinion of the United States Court of Appeals for the Ninth Circuit in Leigh v. Salazar as an analytical springboard, this article analyzes how the so-called experience-and-logic test fashioned by the high Court in Press-Enterprise Co. v. Superior Court in 1986 is being applied in such cases. Cases like Leigh also provide an excellent opportunity for courts to clarify precisely the nature and extent of the history required to find qualified rights of access given the relatively recent government program to which the plaintiff in that case now seeks access.     

A comparison of email versus letter threat contacts toward members of the United States Congress

To better understand inappropriate correspondence sent to public officials, 301 letter cases and 99 email cases were randomly selected from the United States Capitol Police investigative case files and compared. Results indicate that letter writers were significantly more likely than emailers to exhibit indicators of serious mental illness (SMI), engage in target dispersion, use multiple methods of contact, and make a problematic approach toward their target. Emailers were significantly more likely than letter writers to focus on government concerns, use obscene language, and display disorganization in their writing. Also, letter writers tended to be significantly older, have more criminal history, and write longer communications. A multivariate model found that disorganization, SMI symptoms, problematic physical approach, and target dispersion significantly differentiated between the correspondence groups. The group differences illuminated by this study reveal that letter writers are engaging in behavior that is higher risk for problematic approach than are emailers.