论人民陪审制改革的模式选择——谈“混合制”陪审模式的建立

人民陪审制在我国是舶来品,其建立的基本理念主要有两个方面:一是实现人民参与国家政权的管理和司法民主;一是通过人民陪审员的参与,实现准确认定案件事实、适用法律的目的。我国目前人民陪审制的实际运行与以上两个理念冲突,无法实现人民陪审制的功能。在审判方式改革日益深入的当今时代,英美国家的陪审制对人民陪审制的完善具有一定的借鉴意义。为此,我们主张我国人民陪审制的改革在立足人民陪审员对法律适用具有一定的发言权的基础上,借鉴英美陪审制的合理因素,建立混合式的人民陪审制。     

浅论我国刑事陪审制度的规范化

刑事陪审制度是一项古老的司法制度 ,在人类的司法文明史上影响深远。中国的刑事陪审制度经过两起两落的坎坷历程 ,处于一种进退两难、操作混乱的状态。在结合我国的具体国情和吸收国外有益经验的基础上 ,提出了完善刑事陪审制度的具体措施。     

Protection Against Judicially Compelled Disclosure of the Identity of News Gatherers' Confidential Sources in Common Law Jurisdictions

In many common law liberal democracies today, news gatherers are resisting efforts to use the powers of the courts to compel them to identify their confidential sources. Often the struggles are epic. Often the public interest in effective news gathering fuelling the vitality of a modern liberal democracy is insufficiently recognised. The article uses recent cases to spotlight the shortfalls in the approach and legacy of the common law in dealing with news gatherer/confidential source relationships. Post Human Rights Act English decisions, especially that of Tugendhat J in Ackroyd , combining European style commitment to the public interest in vigorous newsgathering with common law style analysis of evidence, point the way to a more effective approach. US and Hong Kong cases remind news gatherers of their public interest responsibilities.     

Race-Based Peremptory Challenges: An Empirical Analysis of Litigation from the U.S. Court of Appeals, 2002–2006

This paper examines race-based peremptory challenges. Such challenges occur during the voir dire jury selection process. The process allows both the defense and the prosecution to strike jurors who they believe will not decide cases fairly. However, in the case of Batson v. Kentucky 476 U.S. 79 (1986), the Supreme Court ruled that race could not be used as a factor in eliminating prospective jurors. This paper examines federal litigation for five years in which it was alleged that race was used as a factor in removing a juror. An examination of the cases revealed that most of the cases involved sole male litigants who allege that there were multiple race-based peremptory challenges used in their cases. Moreover, most of the cases that led to the allegations involved violent offenses. Other case characteristics are noted, but of most significance was the finding that most appellants lost their cases. As such, the courts felt that most of the challenges were, in fact, race neutral. The implications of this research are discussed. This study was funded by an undergraduate research grant from Penn State University.     

中世纪英国陪审团制度成因探究

中世纪英国诉讼制度的根本变迁是陪审团制度在王室巡回法庭的建立。伴随王室巡回法庭在整个司法组织体系中主导地位的确立,陪审团成为关涉自由人诉讼的主要审判组织形式。通过考察中世纪英国社会各阶层的之间博弈、民众认知理性的发展等因素对审判组织形式变迁的影响,探析英国陪审团制度形成的基本动力要素,为我国的司法制度改革提供一些理性的思考。     

Effects of judicial instructions and juror characteristics on interpretations of beyond reasonable doubt

The standard of proof, beyond reasonable doubt (BRD), serves as a threshold for reaching verdicts in criminal cases. Past research has demonstrated that factors such as the wording of judicial instructions defining the standard can influence people's interpretation of it. In addition, there is some concern that instructions may not be effective for the wider jury-eligible population. In an experimental study involving members of the general public, we examined the effect of two commonly used judicial instructions (i.e. sure and firmly convinced) against a situation when BRD was undefined, on people's quantitative interpretations of BRD as well as on their self-reported understanding of the standard and confidence in applying it. We also explored the effect of juror characteristics (i.e. gender, age and education). Compared to when the standard was undefined, the sure instruction helped to reduce inter-individual variability in interpretations of BRD and the firmly convinced instruction increased people's understanding of the standard. However, neither instruction was effective in increasing confidence in applying the standard or in reducing observed individual differences. These findings underscore the importance of developing evidence-based judicial instructions that can benefit the broad jury-eligible population equally and in a variety of ways.     

Non-biased lineup instructions do matter – a problem for older witnesses

Abstract

From the limited literature on older witnesses’ identification performance it is known that they are less accurate on lineups compared to younger witnesses. What is less certain is why they show this age deficit and what can be done to aid their performance. Witnesses forgot being given non-biased lineup instructions informing witnesses that the perpetrator may or may not be present. More older witnesses than younger witnesses forgot and witnesses who failed to report remembering these instructions were significantly less accurate on the lineups. In addition, the current study investigated the use of sequential lineup presentation and stringent decision criteria to aid the performance of older witnesses. Sequential presentation was beneficial to both younger and older adults when the lineup was target absent (TA) but was detrimental when the lineup was target present (TP). Stringent decision criteria had no significant beneficial effect. Future directions for aiding older witnesses’ performance are discussed.