Mistake of Fact or Mistake of Criminal Law? Explaining and Defending the Distinction

This article makes six points. First, under any plausible normative perspective, the distinction between mistake (and ignorance) of criminal law and mistake of fact must at least sometimes be drawn. Second, the fundamental distinction is between a mistake about the state’s authoritative statement of what is prohibited (“M Law”), and a mistake about whether that prohibitory norm is instantiated in a particular case (“M Fact”). Third, when an actor makes a mistake about an evaluative criterion whose content the fact-finder has discretion to elaborate, it is impossible both to allow this discretion and to faithfully realize a jurisdiction’s policy of treating M Fact and M Law differently. Fourth, the claim that every unreasonable M Fact is really a M Law elides important differences between the two kinds of mistake. Fifth, various borderline objections, such as the famous Mr. Fact/Mr. Law example, do not undermine the fundamental distinction, although in rare instances, they do constitute genuine counterexamples that do not effectuate the principles and policies that the distinction ordinarily serves; and even here, they are exceptions that prove (the rationale for) the rule. Sixth, specification or evolution of a criminal law norm, such as the criterion for nonconsent in rape law, can convert a legally relevant M Fact into a legally irrelevant M Law. This phenomenon does not undermine the fundamental distinction between these types of mistake; to the contrary, it reveals the significance of that distinction.     

The Language of Miranda Warnings in American Jurisdictions: A Replication and Vocabulary Analysis

Miranda warnings are remarkably heterogeneous in their language, length, and content. Past research has focused mostly on individual Miranda warnings. Lacking in generalizability, these studies have limited applicability to both public policy and professional practice. A large-scale survey by R. Rogers et al. [2007b, Law and Human Behavior, 31, 177-192] examined Miranda warnings from across the United States and documented striking differences in the length, content, and reading comprehension. In moving from single jurisdiction studies to nationally representative research, the replication of the Rogers et al. survey is essential. With an additional 385 general Miranda warnings, most of the original findings were confirmed; this replication allows Miranda researchers to use findings based upon nationally-representative warnings for their subsequent research. Beyond reading comprehension, the study makes an original contribution to the understanding of Miranda vocabulary that is often infused with abstruse words and legalistic terms. It provides the first analysis of sentence complexity, which affects both Miranda comprehension and retention. As a result of these analyses, preliminary guidelines are provided for increasing the comprehension and understanding of Miranda warnings.     

Being Ms B: B, autonomy and the nature of legal regulation

In this article, we question the apparent simplicity of medical law's construction of 'life and death' cases as a clash between the sanctity of life principle and patient autonomy. Our main purpose in doing so is to try to understand more fully the nature of law's regulation of the existence and non-existence of life. Specifically, we argue that, by broadening the understanding of autonomy in this area beyond a simple concern for patients' rights and self-determination, to include a focus on the individual generally, it becomes possible to identify some of the legal practices that are central to the manner in which law regulates the threshold between life and death. Through an analysis of a recent case in English law--Re B (an adult: refusal of medical treatment)--(although Australian jurisdictions presently disclose no similar, authoritative case, ours presently is almost an arbitrary choice)--we demonstrate the central role played in this regulation by tests for mental capacity, questions of character, explanation, and imagination. We conclude that medical law, at least in this context, can be theorised as a normalising practice--one in which the determination of norms often occurs through patients.     

Particle size analysis of sediments, soils and related particulate materials for forensic purposes using laser granulometry

Particle size is a fundamental property of any sediment, soil or dust deposit which can provide important clues to nature and provenance. For forensic work, the particle size distribution of sometimes very small samples requires precise determination using a rapid and reliable method with a high resolution. The Coulter trade mark LS230 laser granulometer offers rapid and accurate sizing of particles in the range 0.04-2000 microm for a variety of sample types, including soils, unconsolidated sediments, dusts, powders and other particulate materials. Reliable results are possible for sample weights of just 50 mg. Discrimination between samples is performed on the basis of the shape of the particle size curves and statistical measures of the size distributions. In routine forensic work laser granulometry data can rarely be used in isolation and should be considered in combination with results from other techniques to reach an overall conclusion.     

A case history of the application of social judgment theory to policy formulation

Social judgment theory provides (1) a theoretical framework for understanding the origin of policy quarrels and (2) methods for their resolution. Social judgment theory asserts that differences in policy are often cognitive in origin. Such cognitive differences are produced by the highly interdependent aspects of the more or less unreliable environments within which policies are made. Discussion alone is often insufficient for resolving policy differences because the covert, inconsistent nature of human judgment prevents individuals from accurately describing their cognitive processes. Consequently, judgmental aids, such as computer graphics technology and input-output analysis, are necessary in order to externalize and thus to clarify the causes of disagreement. Social judgment theory, computer graphics technology, and input-output analysis were successfully employed both in formulating an agency-wide policy as well as specifying how this policy would be implemented. Empirical support for the theoretical position was thus obtained.