英美刑法中权利限定性原则

英美刑法传统上不考虑被害人行为对犯罪所产生的影响。越来越多的学者认识到,刑事责任取决于加害—被害的互动过程中责任。当被害人以自己的行为而放弃法律所保护的权利时,那么行为人的刑事责任就应在此限度内相应的予以减轻,这就是英美刑法中的权利限定性原则。被害人权利的减少可以是自愿的也可以是非自愿的。目前该原则主要在被害人同意、正当防卫以及挑衅行为中适用。权利限定性原则既考查了行为人的不法行为,也考虑了被害人的行为,是对犯罪事实中的刑事责任的全面反映。因此,应当在刑法理论中建立一套完整的体系,使其得到广泛的适用,而不仅仅是适用于个案。     

我国精神障碍者非自愿医疗的法律透视——以精神卫生法的出台为背景

随着精神卫生法的颁布,我国非自愿医疗法律制度初步建立,为良莠不齐的地方性立法提供了统一的依据,平等地保护了精神障碍者的合法权益。但该法律制度仍存在法律原则中缺乏明确的无病推定规定、非自愿医疗的分类标准单一、"去行政化"理念未能贯彻到位、精神障碍者与监护人利益冲突悬而未决、非自愿医疗的程序规范力度不够、精神卫生法与刑事诉讼法衔接不畅等诸多问题。为妥善解决这些问题,需要在人文主义的价值理念指引下进行完善,应当依据是否触犯刑法分类处理、畅通非自愿医疗的司法救济渠道、加强监护制度与非自愿医疗制度的耦合、细化非自愿医疗的出入院程序、强化无利益关系第三方的监督机制。     

业务过失犯罪处罚问题研究

科学技术的发展在给人类带来巨大的福祉的同时,也使得生产、交通、建筑等高风险领域中过失犯罪的发生率持续上升。为保障社会安全,适应惩治和防范业务过失犯罪的需要,应加重我国刑法对业务过失犯罪的处罚,彻底改变刑法对该类犯罪的处罚轻于普通过失犯罪的普遍现象;适当增加业务过失危险犯;改变多数业务过失犯罪法定刑刑种设置的单一性,增设罚金刑和资格刑。     

Bad cops

Research Summary Police scholars and public policymakers throughout generations have sought to identify reliable correlates of police misconduct. Despite these efforts, general statements as to the etiology and epidemiology of police misconduct remain inconclusive, in part because of the inconsistent definitions of misconduct and the difficulty of obtaining the data required to make such statements. This research attempts to fill these gaps through a comparison of the personal and career histories of all 1,543 officers who were involuntarily separated from the New York City Police Department (NYPD) for cause during 1975–1996 with a randomly selected sample of their police academy classmates who served honorably. The study uses confidential NYPD files as its major data sources, which include extensive biographical and career information. The study finds that career‐ending misconduct rarely occurs in the NYPD and that the types of misconduct do not match well with existing definitions. Several factors emerge as significant predictors of misconduct, including officer race, minimal education, records of prior criminality and prior poor employment, failure to advance in the NYPD, and histories of citizen complaints. Policy Implications This study shows that existing definitions of police misconduct are difficult to apply to actual cases of police malpractice, which leads the authors to create a new eight‐category classification scheme. The rarity of misconduct, especially on‐duty abuse, confirms prior research indicating that most police officers do their jobs without engaging in serious malpractice. These findings suggest that the NYPD has become better behaved as it has become more diverse along race and gender dimensions and that the link between black officers and misconduct might be explained by persistent “tokenism.” The findings related to race have important implications for continued efforts to build racially representative police departments. Personal history findings highlight the importance of conducting background investigations that disqualify candidates with arrest records and employment disciplinary histories, whereas the inverse relationship between college education and misconduct provides strong support for continued emphasis on pre‐ and post‐employment educational requirements.     

A rare case of lethal methadone intoxication of a 3-week-old infant

The authors describe a rare case of lethal methadone intoxication of a 3-week-old infant. Born of a drug-addicted mother who was undergoing methadone substitution therapy, the newborn presented withdrawal symptoms and was immediately admitted to a paediatric ward where it was treated for 3 weeks, without administration of methadone. The infant died during bottle feeding within 24 h following discharge home.A post-mortem examination was performed as well as histopathological, toxicological and genetic tests were carried out in order to establish the cause and mode of death.The autopsy revealed obstruction of the lower air passages by stomach contents along with classical features of asphyxia. Toxicological tests revealed high concentrations of methadone and its metabolite in blood and urine as well as presence of methadone in stomach contents, and the DNA polymorphism analysis of the (sex-specific) amelogenin locus gave a negative result.On the basis of the results of the post-mortem examination, the laboratory tests and the police investigation, it was concluded that the drug was ingested with the bottle milk, and the possibility of administration of methadone at the hospital or its ingestion with the breast milk was precluded. Though both the cause and mode of death were established, the public prosecutor discontinued proceedings in the case due to inability to find the perpetrator.     

Diesel fumes do kill: a case of fatal carbon monoxide poisoning directly attributed to diesel fuel exhaust with a 10-year retrospective case and literature review*

While it is known that diesel fuel combustion engines produce much lower concentrations of carbon monoxide (CO) than gasoline engines, these emissions could certainly generate lethal ambient concentrations given a sufficient amount of time in an enclosed space and under suitable environmental conditions. The authors report a case of CO poisoning which was initially referred for autopsy as a presumed natural death of a truck driver found in the secure cab of a running diesel tractor trailer truck. Completion of the preliminary investigation ascribed death to complications of ischemic heart disease (IHD), pending toxicological analysis that included quantification of CO. When the toxicology results showed lethal blood COHbg, the cause of death was re-certified as CO intoxication secondary to inhalation of (diesel) vehicular exhaust fumes. Because of the unique source of fatal CO intoxication in this case, the contributory IHD and the possible contaminants in the putrefied blood, a 10-year retrospective review was conducted on all nonfire related CO deaths autopsied (n = 94) at the Office of the Chief Medical Examiner in Louisville, KY from 1994 to 2003. For validation of the COHbg detection method used by the Kentucky Office of Forensic Toxicology (KYOFT), blood samples from these cases along with controls were submitted to three laboratories using various analytical methods yielding no statistically significant differences. Lastly, an extensive literature review produced no scientifically reported cases of fatal CO poisoning attributed to diesel fuel exhaust.     

大鼠急性斑蝥中毒血流动力学研究

大鼠急性斑蝥中毒的血流动力学研究结果显示,灌胃后,大鼠左心室舒张末压(LVEDP)呈下降趋势,左心室内压(LVP)和左室压最大变化速率(±dp/dt max)变化不明显;心率(HR)在低剂量组加快,而大剂量组减慢;心电图(EKG)无明显改变;呼吸频率(RR)先快后慢,大鼠死亡时,呼吸比心跳早停止几分钟。提示斑蝥中毒死亡较快时,呼吸抑制作用是一个不容忽视的因素。     

大鼠急性鲤醇硫酸酯钠中毒血流动力学研究

探讨急性鲤醇硫酸酯钠（SCS）中毒早期死亡机制和死因。草鱼胆汁提取物SCS按3.0LD50、4．0LD50和5.0LD50的剂量给Wistar大鼠腹腔注射，观察大鼠血流动力学、心电图及呼吸的影响。结果表明；大鼠腹腔注射SCS后，动脉血压（SAP、DAP和MAP）下降；左心室功能（LVP、LVEDP和±dp／dtmax）降低；心电图示心电不稳，心肌缺血S-T段抬高或T波倒置，心率、呼吸先加快而后逐渐变慢，有明显的剂量-效应关系。表明SCS对心肌有选择毒性作用，其早期死因为心源性休克。实验结果为鱼胆中毒的诊断、防治及其法医学鉴定和鱼胆毒素的利用提供有关资料。     

Alcohol and Parasomnias: The Statistical Evaluation of the Parasomnia Defense in Sexual Assault,Where Alcohol is Involved

Sleep sex may be a defense for alleged sexual assault. The International Classification of Sleep Disorders (ICSD3) states: “Disorders of arousal should not be diagnosed in the presence of alcohol intoxication… The former [alcohol blackouts] are exponentially more prevalent.” A panel member of ICSD3, quoting ICSD3 asserts: “alcohol intoxication should rule out a sleep-walking defense”. This implies extremely strong support for a prosecution hypothesis (H_p) over a defense hypothesis (H_d). I use Bayesian methodology to evaluate the evidential probity of alcohol intoxication. The likelihood ratio, LR, measures the amplification of prior odds of guilt, . By Bayes' theorem, . I use data from cross-sectional studies of sexual assault and prevalence of alcohol use, in college students, with data from longitudinal studies, and data from the epidemiology of parasomnias to evaluate LR (alcohol). LR ~1.5 or 5, depending whether alcohol does, or does not, increase the risk of parasomnias. The proposition of extremely strong support for H_p implies a LR ~1,000,000, so the proposition in ICSD3 is not supported by formal analysis. The statistical reasoning in ICSD3 is unclear. There appears to be inversion of the Bayesian conditional (confusing intoxication given assault, and assault given intoxication) and failure to evaluate alcohol intoxication in H_d. Similar statistical errors in R. v Sally Clark are discussed. The American Academy of Sleep Medicine should review the statistical methodology in ICSD3.     

Acute arsenic poisoning: clinical, toxicological, histopathological, and forensic features

This report describes a suicide case by acute arsenic intoxication via intravenous injection. A 30-year-old woman injected arsenic As (V) (sodium arseniate disodique: Disodium Hydrogena Arsenik RP) in a successful suicide attempt. Three hours following administration, the woman developed severe digestive symptoms. She was admitted to a hospital and transferred to the intensive care unit within 12 h of the massive administration of arsenic. Despite therapeutic efforts, over the next 2 h she developed multiorgan failure and died. A postmortem examination was performed. Pulmonary edema and congestion of liver were apparent. As (V) and As (III) were determined by high performance liquid chromatography and inductively coupled plasma mass spectrometry after mineralization of samples by concentrated nitric acid. Toxicological analysis revealed high concentrations of arsenic in biological fluids as well as in organs. Histopathological examination showed a typical indication of myocarditis. These findings were in agreement with acute arsenic poisoning. The symptoms developed by this young woman (intoxication by intravenous administration) were comparable to oral intoxication. The clinical signs, survival time, and administration type are discussed in light of the literature on acute and chronic arsenic poisoning.