盗窃罪中“数额较大”的认定规则

“数额较大”的认定是盗窃罪定罪量刑中的关键问题之一。司法解释采用了数额属性多元化的认定方法,既缺乏理论基础,也难以有效指导实务。司法裁判虽倾向于重视处罚的实质合理性,但并未形成统一的认定规则。通过梳理不同立法例下“损失”要素的定位,可以形成“占有转移”与“财产损失”两种视角下“数额较大”认定的理论方案。基于整体财产保护理念的以客观实质损失作为认定基准的方案,存在忽视我国刑法不同条款对“数额性后果”表述上的差异、对司法实践的认识以偏概全、不能妥适处理轻微实施盗窃的出罪等问题。相对而言,立足个别财产保护思想、以占有转移数额为基础,同时考虑主观指向数额的方案凸显了主观要件对不法和责任的制约,能周延地应对各种案型,值得肯定。该方案的具体规则是:先确定基础性数额即占有转移的财物价值“较大”,以此作为数额上限,再考察故意、排除意思、利用意思等主观要件指向的数额,各数额均需达到“较大”,最终的“数额较大”,是经此多种数额共同认定的结果。     

德国近五十年刑事立法述评

自1969年德国刑法大改革至今的五十年间,德国的刑事立法活动非常频繁。在此期间,德国立法机关不但对《刑法典》总则犯罪论部分的规定进行了彻底的修订,而且针对犯罪的法律后果以及刑法分则乃至附属刑法中的诸多罪名进行了持续的改革,在恐怖主义犯罪、妨害公务犯罪、毒品犯罪以及保安监禁等领域尤其如此。整体而言,德国立法者在过往半个世纪中日趋侧重功能主义的积极刑事立法观,导致德国刑法逐步从传统法治国背景下的法益保护法和市民防御法转向以社会控制为主导的国家干预法和社会防卫法,造成了诸多难以与现有法律体系和学说理论相协调的象征性立法。我国应当从德国近五十年的刑事立法中吸收其先进经验,对其中的弊端也要引以为戒。     

Reply to Mac Giolla and Ly (2019): On the reporting of Bayes factors in deception research

Bayes factors provide a continuous measure of evidence for one hypothesis (e.g., the null, H0) relative to another (e.g., the alternative, H1). Warmelink et al. (2019, Legal Criminol Psychol, 24, 258) reported Bayes factors alongside p‐values to draw inferences about whether the order of expected versus unexpected questions influenced the amount of details interviewees provided during an interview. Mac Giolla & Ly (2019) provided several recommendations to improve the reporting of Bayesian analyses and used Warmelink et al. (2019) as a concrete example. These included (I) not to over‐rely on cut‐offs when interpreting Bayes factors; (II) to rely less on Bayes factors, and switch to ‘nominal support’; and (III) to report the posterior distribution. This paper elaborates on their recommendations and provides two further suggestions for improvement. First, we recommend deception researchers report Robustness Regions to demonstrate the sensitivity of their conclusions to the model of H1 used. Second, we demonstrate a method that deception researchers can use to estimate, a priori, the sample size likely to be required to provide conclusive evidence.     

The Accuracy and Repeatability of Reconstructing Single Bullet Impacts Using the 2D Ellipse Method

When a bullet punctures a surface, it leaves behind a bullet impact, which can be analyzed in order to determine the origin and trajectory path from which a bullet was discharged using many different scientific methods to reconstruct a shooting scene. The purpose of the research was to test the accuracy and repeatability of reconstructing the impact angle of single bullet impacts using the ellipse method. The research was conducted by firing various calibers of ammunition into drywall panels positioned at varying angles of incidence from 88° until ricochet occurred. This was done in order to determine which caliber type and angle of incidence are most accurate and precise for reconstructing a shooting scene. The study examined four caliber types fired into drywall panels, with 5 repeated shots for each of the 11 angles of incidence (n = 220). Furthermore, 31 participants partook in the study to estimate a bullet impact angle of incidence utilizing the ellipse method. The results show that the best performance (accuracy and repeatability) is seen with the measurements of the 0.45 caliber ammunition. When angle of incidences is low (<64°), the performance (accuracy and repeatability) was seen to be better in all caliber ammunitions. Overall, the data provided for single bullet impacts deposited in drywall show that the ellipse method is useful in providing measurements for most crime scene reconstruction purposes and has also demonstrated that results vary depending on the type of ammunition, firearm, and angle of incidence being examined.     

New Approaches to Age Estimation Using Palatal Suture Fusion

Palatal suture fusion has seen little testing and/or application due in part to an inadequately described relationship to formal age ranges. This study presents a modified scoring method that examines fusion on samples of modern documented adult males and compares two Bayesian approaches to age estimation. In the first analysis, American and Portuguese collections were used to derive univariate and multivariate transition analysis (TA) parameters, which combined with an informative prior, estimated age in a sample of modern Americans and Portuguese. For the second analysis, a Bayesian multiple linear regression (BMLR) used indicator statuses as the independent variables with age as the dependent variable. Highest posterior density regions (HPDRs) and highest posterior density intervals (HDI) were calculated for a holdout sample. Final age estimates for the methods were tested for accuracy using cumulative binomial tests at 75% and 90% coverages. The HPDRs from multivariate TA captured age better for younger individuals, but consistently underaged. The cumulative binomial tests on the BMLR results indicated the prediction intervals performed as expected, and we show they are narrower (more precise) and/or more accurate than the corresponding HPDR. The modified method presented here formally links palatal suture obliteration to age using two different approaches, one of which (BMLR) is new to the aging literature. The BMLR provided results free from bias and more reasonable age ranges while maintaining accuracy. We present a look-up table and a free, simple R file for users to download and run their own estimates with BMLR.     

Examination of Hacking and Blunt Force Skeletal Trauma

Hacking trauma is prevalent in forensic cases involving genocide and dismemberment, but research into the identification of this type of trauma is lacking. The present study examines characteristics of hacking and blunt force skeletal trauma in order to determine if there is a point at which blunt force trauma becomes distinguishable from hacking trauma. Ten implements with a range of blade angles (i.e., the striking surface of the implement) were used in conjunction with a controlled-force hacking device to impact 100 limb bones of white-tailed deer (Odocoileus virginianus). Observations of the trauma included the occurrence and degree of fragmentation, the entrance widths of the impacts, and composite scores of six hacking characteristics, especially the distinctive V-shaped kerf. ANOVA tests and regression analyses were used to assess the relationships between these characteristics and the blade angles. A significant relationship (p-value = 0.011) was found between the composite hacking scores and the blade angles, indicating that blunt force and hacking trauma can be distinguished. The entrance widths of the impacts exhibited a significant relationship with the blade angles (p-value = 0.037). There was also a significant relationship between the visibility of a V-shaped kerf in the bones (p-value = 0.003), with visibility decreasing around the 60° blade angle. These data should assist in establishing guidelines to differentiate hacking and blunt force skeletal trauma in cases where the implement is on a spectrum between sharp and blunt.     

Two-dimensional metric comparisons between dynamic bare footprints and insole foot impressions-forensic implications

Footwear may be found at crime scenes as physical evidence. Such footwear often has impression features of the wearer’s foot on the insole of the shoe. Scientific research and literature have established that footprints are distinct. This study compares two-dimensional measurements on bare footprints to foot impressions on insoles to determine if significant differences or similarities exist. Dynamic footprints were collected from 51 donors using the Identicator® Inkless Shoe Print Model LE 25P system. Seven foot length and width measurements were taken based on the Reel linear measurement method. Footprint measurements between bare footprints and foot impressions on the insoles were compared. Only two differences (p > 0.05) were observed between the various bare footprint and insole foot impression measurements on the right and left side for most of the measurements, CALC (p < 0.001) and A1 (p = 0.04). Bare footprint and insole A5 measurements on the left side were also significantly different (p = 0.015). The results of the study have implications in the forensic analysis of foot impression evidence on insoles in footwear in assisting with identifying the wearer of said footwear. Situations may arise in the forensic context when comparing the foot impression on the insole of footwear to a suspect’s bare footprint or a footprint from post-mortem remains. This study contributes to the scant literature available on the topic and to understanding the similarities and differences observed in the various linear measurements that may be utilized in the comparison process of footprint impressions on shoe insoles to bare footprints.     

虚开增值税专用发票罪若干问题探析

虚开增值税专用发票罪是我国新刑法规定的一个新罪名。由于本罪具有较强的专业性,刑法的规定也不很清晰,所以,与本罪相关的一些问题在司法实践中引起了争议。比如,虚开增值税专用发票又以此骗取国家税款的行为应如何定性、对虚开增值税专用发票罪是否可以适用死刑等。对此,只有在综合分析后才能得出正确的结论。