Two Models of Criminal Fault

Criminal Law and Philosophy - I discuss two problems for the standard Anglo-American account of recklessness, and the distinctions between intention, recklessness, and negligence. One problem...     

Negligence, Belief, Blame and Criminal Liability: The Special Case of Forgetting

Commentators seemingly agree about what negligence is—and how it is contrasted from recklessness. They also appear to concur about whether particular examples (both real and hypothetical) portray negligence. I am less confident about each of these matters. I explore the distinction between recklessness and negligence by examining a type of case that has generated a good deal of critical discussion: those in which a defendant forgets that he has created a substantial and unjustifiable risk of harm. Even in this limited kind of example, no single perspective on blame and liability proves to be defensible. Nonetheless, a discussion of this type of case is helpful because it enables us to appreciate the difficulties in understanding the nature of negligence and the ensuing uncertainty about whether penal liability for negligence is ever warranted.     

重大过失理论的构建

传统大陆民法理论关于重大过失的解说既无法提供明确的认定方法,又内在地欠缺解释力。重大过失应当是一种有认识的过失,但同时须在客观上制造了巨大的危险。它是一种偏主观的、行为人很大程度上可避免的过错,是一种具有较强道德可责难性的过错。它是介于故意与普通过失之间、更接近于故意的一种独立过错类型。有认识的认定应坚持知道与有理由知道两级分类,并有效运用司法推论和立法推定。危险巨大性的认定主要涉及损害可能性与损害程度两方面判断。重大过失的法律效果原则上与故意相同,但有例外。     

Intention and Attempt

Anglo-American criminal law traditionally demands a criminal purpose for an attempt conviction, even when the crime attempted requires only foresight or recklessness. Some legal philosophers have defended this rule by appeal to an alleged difference in the “moral character” or “intentional structure” of intended versus non-intended harms. I argue that there are reasons to be skeptical of any such differences; and that even if conceded, it is only on the basis of an unworkable view of criminal responsibility that such a distinction would support a rule restricting attempts to criminal purpose. I defend instead the “continuity thesis,” according to which attempts are functionally continuous with endangerment offenses: both are legal efforts to regulate unreasonably dangerous conduct. The upshot of the continuity thesis is that there is little substantive difference between attempt and endangerment in principle, no matter how they are labeled in law.     

Triggers for alcohol‐related violence in young male offenders

Purpose. Improving the effectiveness of offender treatment programmes is important and one approach is to attend to their content. The aim here was to identify triggers to alcohol‐related violence to inform the development of programmes to treat this problem. Method. Information from 149 young male offenders’ accounts of incidents of alcohol‐related violence was studied using thematic analysis. Results. Sixteen triggers for violence were identified and these were organized into six themes: (1) being offended by someone, (2) seeing an opportunity for material gain, (3) seeing others in need of help, (4) perception of threat, (5) distress, and (6) wanting a fight. Discussion. The implications of the results for developing treatments for alcohol‐related violence are presented. First, identifying triggers should be part of the treatment programme and ways of avoiding triggers should be addressed. Second, changing values, specifically hypermasculine and antisocial values, could attenuate the rewards signalled by the triggers. Third, methods of reducing the potency of triggers would be of value and would include addressing issues of need for respect and responses to perceived disrespect. Fourth, non‐violent ways of helping people who are in trouble need to be introduced. Fifth, coping with threat cues through distraction and increasing self‐awareness would reduce the effects of ‘alcohol myopia’. Sixth, seeking fights for excitement could be reduced by examining the costs through motivational procedures. Finally, and self‐evidently, a primary target of treatment programmes to reduce alcohol‐related violence should be to reduce the level and frequency of alcohol intoxication.     

Toxic or tolerant: chloral and the drug dilemma.

The role that a drug or combination of drugs plays in the causation of death cannot always be stated with certainty. Drugs associated with the development of tolerance create a particular problem, and there is need for additional data concerning tolerable concentrations achieved by drug abusers. The common drug chloral hydrate falls into this category, and a case of possible chloral hydrate intoxication has been presented.     

Recklessness Without the Risk

Criminal Law and Philosophy - Risk is at the core of criminal recklessness, but its exact constitution comes into focus only in unusual cases. In rethinking criminal law, Larry Alexander and...     

Differential diagnostics of stomach contents showing blue discoloration

A 42-year-old man evidently had died from an intoxication. On the basis of the findings at scene it was primarily assumed that the man had ingested a larger quantity of an ethylene glycol-containing antifreeze for suicidal purposes. The man was said to have had an alcohol problem and did not only consume drinking alcohol, but also other alcoholic liquids. At autopsy, a bluish liquid with an aromatic smell was found in the oesophagus and stomach. However, toxicological analyses did not furnish evidence of ethylene glycol--as expected--but a potentially fatal concentration of ethanol (blood alcohol concentration 4.01 per mille). The blue colour (patent blue C.I.42051) came from a liquid used in the wind-screen washer system in winter, which now contains ethanol (denatured with 2-butanone) instead of ethylene glycol. The results of the toxicological findings including the analysis of congener alcohols and the differential diagnostics of blue-coloured stomach contents are discussed.     

Caldwell Recklessness is Dead, Long Live Mens Rea's Fecklessness

The House of Lords has recently reiterated its preference for a purely subjective doctrine of mens rea by overruling the Caldwell test of recklessness. It is argued that while the subjective basis of mens rea is essential to ensure that it is the accused's culpability that is being judged, courts must be prepared to accept that there is a residual objective element that is part of mens rea and it is that which determines whether the accused is morally blameworthy. Unless this is formally accepted, mens rea will never be restored to its proper normative role; that of determining whether the 'mens was rea'. ¹     

The Reasonableness in Recklessness

Criminal Law and Philosophy - Recklessness involves unreasonable/unjustified risk-taking. The argument here is that recklessness in the criminal law is best understood as nevertheless containing an...     

What are Intoxicated Offenders Responsible for? The ��Intoxication Defense�� Re-examined

I provide a brief history of the common law governing the criminal liability of intoxicated offenders, and the codification and application of the intoxication rules in Canada. I argue that the common law and its statutory application in Canada violate a number of principles of criminal justice. I then argue that the rules cannot be saved by attempts to subsume them under principles of prior fault. I end with a modest proposal for law reform.     

Intoxicated eyewitnesses: prevalence and procedures according to England’s police officers

Despite the apparent role alcohol plays in criminal offences, there is at present no evidence available as to the extent of the problem of intoxicated witnesses within England. To address this lack of research, police officers from seven constabularies completed an online survey addressing issues such as the prevalence of intoxicated witnesses, how officers determine intoxication, the procedures employed and their effectiveness. Officers indicated that intoxicated witnesses were a common, to very common, occurrence with most officers determining intoxication through physical symptoms and the witness’s own admission. In terms of interviewing witnesses, the majority of officers indicated that initial details were taken whilst witnesses were intoxicated, but the evidential interview was taken when sober. Officers also indicated that if the witness was intoxicated then the case was less likely to proceed to court and that officers viewed the witness as less accurate. These findings are considered from a criminal justice perspective and discussed in relation to future research.     

Adjudication and the Law

It can be compatible with justice and the rule of law for acourt to impose new legal liabilities retrospectively on a defendant.But judges do not need to distinguish between imposing a newliability, and giving effect to a liability that the defendanthad at the time of the events in dispute. The distinction isto be drawn by asking which of the court's reasons for decisionthe institutions of the legal system had already committed thecourts to act upon, before the time of decision. I explain theseconclusions through an assessment of the last episode in thedebate between H.L.A.Hart and Ronald Dworkin.     

Trespass,impasse, collaboration: Doing research on women's rights in India

A developing tenet of feminism is the need to work collaboratively in order to avoid assumptions of universality and embrace differences between women. In this paper, Cossman and Kapur reflect upon their attempts to put this principle into practice in research on women's rights in India. They highlight ethical dilemmas raised by their project which forced them to problematize and challenge many of their initial assumptions about doing feminist research, particularly those of identity politics which give primacy to women's experiences as a claim to truth. The authors affirm the importance of identity and experience, but at the same time acknowledge the limitations of this affirmation for the development of effective methodological and political strategies. Osgoode Hall Law School What I feel is radical is trying to make coalitions with people who are different from you. I feel it is radical to be dealing with race and sex and class and sexual identity all at one time. I think that is really radical because it has never been done before.     

Fatal acute alcohol intoxication in an ALDH2 heterozygote: a case report

On an evening in November, a 25-year-old man was found dead in his bedroom. There were many empty snap-out sheets for flunitrazepam tablets in the trash at his bedside. He had been beaten by a gang of young people earlier in the morning of the same day. At the medico-legal autopsy, although there were many bruises and/or abrasions on the whole body, only slight subdural hemorrhage was observed, and none of them was thought to be the cause of death. Flunitrazepam and its metabolites were not detected in his body fluid by gas chromatography-mass spectrometry (GC-MS). Marked lung edema and a severe congestion of organs were observed. His blood alcohol concentration from the femoral vein was 2.00 mg/ml. Fatal cases of acute alcohol intoxication usually have shown higher alcohol concentration (2.25-6.23 mg/ml). Although the genotype of aldehyde dehydrogenase 2 (ALDH2) has not previously been mentioned as a contributing factor in determining the cause of death, in this case the genotype of ALDH2 was ALDH2*1/2 and thus is important. Those who possess the ALDH2*2 gene show high concentrations of acetaldehyde (AcH) at even comparatively lower alcohol levels. Consequently, the cause of death was considered to be acute alcohol intoxication including AcH poisoning.     

Electroretinogram and Histopathologic Changes of the Retina after Methanol Intoxication

In order to study the functional and structural alterations of the retina in SD rat model after methanol intoxication,35 rats were divided randomly into five groups administrated with saline,3-day high dose,7-day high dose,3-day low dose and 7-day low dose methanol separately.The retinal function of each group was assessed by flash electroretinogram(F-ERG) 3 and 7 days after methanol poisoning.The microstructure and ultrastructure of the retina were observed at the same time.The high-dose methanol intoxication induced irreversible retinal functional and structural damages 3 days after poisoning,which included prolonged latency and reduced amplitude of the Max-reaction of F-ERG.These injuries were aggravated 7 days after poisoning.Meanwhile,the latency and amplitude of the Cone-reaction of F-ERG were also affected 3 days after poisoning,but there were no further worsening tendency 7 days after poisoning.The retinal histological analysis showed cellular edema,heteromorphy and disarrangement,tissular loosen of the inner nuclear layer and photoreceptors layer.The mitochondrial damage began at the photoreceptors layer and developed further into the inner nuclear layer.The low-dose methanol intoxication only caused transient damage of the retina.Our results showed that the function and structure of the photoreceptor and inner nuclear layer were the primary target of methanol intoxication and that the rod cells were more sensitive to methanol intoxication than the cone cells.The mitochondrial damage developed from outer layer to inner layer of the retina.     

From a Pluralism of Grounds to Proto‐Legal Relations: Accounting for the Grounds of Obligations of Justice

In this paper I discuss critically Mathias Risse's paper “Responsibility and Global Justice.” First, I argue that for Risse's pluralist account of the grounds of justice to hold together, there is need to presuppose a monist standpoint which ultimately contributes to grounding principles of justice. Second, I point out that Risse's understanding of obligations of accountability and justification is rather narrow in that it functions as an addendum to obligations of justice. Conversely, I will suggest that the obligation of accountability plays a deeper role: The conditions that ground it feature at the same time among the grounds of obligations of justice. Accordingly, the kind of relation that gives rise to a duty among agents to account for their actions must be in place when obligations of justice obtain. Following on from these remarks I will adumbrate an alternative account of the relation which grounds (enforceable) obligations of justice.     

Mock jurors' perceptions of identifications made by intoxicated eyewitnesses

Abstract

Psychology research has generally neglected intoxicated eyewitnesses. The current study addressed this need by exploring mock jurors' perceptions of intoxicated witnesses. Undergraduate participants read summarized sexual or aggravated battery cases in which either the victim or a bystander identified the defendant under varying intoxication levels. They answered questions about the case and provided verdicts. Participants were sensitive to the effect that intoxication may have on witnesses' cognitive ability, but not to varying degrees of intoxication. Neither the role of the eyewitness nor the type of crime committed had an effect on perceptions of witness impairment. Participants' perceptions of witness impairment informed identification credibility ratings, and credibility assessments affected verdicts. Impairment and credibility ratings fully mediated intoxication's effect on verdicts. Unlike much prior research, our results suggest that mock jurors can consider potentially important witness information when rendering verdicts.     

Sleep deprivation does not mimic alcohol intoxication on field sobriety testing

Previous research shows that sleep deprivation (SD) produces cognitive impairment similar to that caused by alcohol intoxication. Individual studies suggest that SD also causes deficits in motor skills that could be mistaken for intoxication. Consequently, SD often is used as a defense when an impaired driver is charged with driving while intoxicated. Twenty-nine adult subjects participated in two test sessions each, one after a full night's rest and the other after wakefulness of at least 24 h. Subjects consumed prescribed amounts of alcohol during each session. Law enforcement officers conducted field sobriety tests identical to those with which a driver would be assessed at roadside. Researchers also measured clinical responses of visual function and vital signs. The presence and number of validated impairment clues increase with increasing blood alcohol concentration but not with SD. Thus, SD does not affect motor skills in a manner that would lead an officer to conclude that the suspect is intoxicated, unless intoxication also is present.     

Iatrogenically-related, fatal methotrexate intoxication: a series of four cases

Since the early eighties, the folic antagonist methotrexate (MTX) has been used in long-term treatment of rheumatoid arthritis. Because of the high toxic potential clinical and laboratory controls at regular intervals and patient education in order to avoid misadventure is of overriding importance. We present four cases of fatal MTX intoxication due to medical malpractice from the Tübingen Institute of Forensic Medicine autopsy material, which show the severe consequences of MTX overdose. It becomes evident that among non-rheumatologists there still is need for information about toxicity and dose limitation in MTX low-dose treatment.