Criminal procedure is organized as a tournament with predefined roles. We show that assuming the role of a defense counsel or prosecutor leads to role induced bias even if participants are asked to predict a court ruling after they have ceased to act in that role, and if they expect a substantial financial incentive for being accurate. The bias is not removed either if participants are instructed to predict the court ruling in preparation of plea bargaining. In line with parallel constraint satisfaction models for legal decision making, findings indicate that role induced bias is driven by coherence effects (Simon, 2004), that is, systematic information distortions in support of the favored option. This is mainly achieved by downplaying the importance of conflicting evidence. These distortions seem to stabilize interpretations, and people do not correct for this bias. Implications for legal procedure are briefly discussed.
{"title":"Role Induced Bias in Court: An Experimental Analysis","authors":"A. Glöckner, C. Engel","doi":"10.2139/ssrn.1676142","DOIUrl":"https://doi.org/10.2139/ssrn.1676142","url":null,"abstract":"Criminal procedure is organized as a tournament with predefined roles. We show that assuming the role of a defense counsel or prosecutor leads to role induced bias even if participants are asked to predict a court ruling after they have ceased to act in that role, and if they expect a substantial financial incentive for being accurate. The bias is not removed either if participants are instructed to predict the court ruling in preparation of plea bargaining. In line with parallel constraint satisfaction models for legal decision making, findings indicate that role induced bias is driven by coherence effects (Simon, 2004), that is, systematic information distortions in support of the favored option. This is mainly achieved by downplaying the importance of conflicting evidence. These distortions seem to stabilize interpretations, and people do not correct for this bias. Implications for legal procedure are briefly discussed.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130039525","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A recent study of death penalty cases has revealed that judges, who are ordinarily thought of as the guardians of criminal defendants’ constitutional rights, are more likely to impose harsher punishments than jurors. This may be unsettling in its own right, but it is especially concerning because judges are the individuals charged with determining whether punishments are unconstitutionally cruel and unusual under the Eighth Amendment, and these determinations are supposed to be based on “the evolving standards of decency that mark the progress of a maturing society.” The study suggests that judges are out of step with society’s moral norms, raising the question of why judges, rather than juries, are entrusted with resolving constitutional questions of cruel and unusual punishments. This Article argues that juries are better equipped to make these determinations and that charging juries to employ their own moral values to decide these matters is consistent with the underlying purpose and history of the ratification of the Eighth Amendment. This shift in power would also be in line with the Supreme Court’s recent elevation of the jury in criminal cases such as Apprendi v. New Jersey and United States v. Booker.
{"title":"The Missing Jury: The Neglected Role of Juries in Eighth Amendment Punishments Clause Determinations","authors":"M. Ryan","doi":"10.2139/SSRN.1918497","DOIUrl":"https://doi.org/10.2139/SSRN.1918497","url":null,"abstract":"A recent study of death penalty cases has revealed that judges, who are ordinarily thought of as the guardians of criminal defendants’ constitutional rights, are more likely to impose harsher punishments than jurors. This may be unsettling in its own right, but it is especially concerning because judges are the individuals charged with determining whether punishments are unconstitutionally cruel and unusual under the Eighth Amendment, and these determinations are supposed to be based on “the evolving standards of decency that mark the progress of a maturing society.” The study suggests that judges are out of step with society’s moral norms, raising the question of why judges, rather than juries, are entrusted with resolving constitutional questions of cruel and unusual punishments. This Article argues that juries are better equipped to make these determinations and that charging juries to employ their own moral values to decide these matters is consistent with the underlying purpose and history of the ratification of the Eighth Amendment. This shift in power would also be in line with the Supreme Court’s recent elevation of the jury in criminal cases such as Apprendi v. New Jersey and United States v. Booker.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":" 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116845304","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay explores the implications of complexity for understanding both the law of evidence and the nature of the legal system. Among the propositions critically analyzed is that one significant way to understand the general problem of the meaning of rationality is that it has involved a multivariate search for tools to understand and regulate a hostile environment. The law of evidence is conceptualized as a subset of this effort, at least in part, as involving a search for tools to regulate the almost infinitely complex domain of potentially relevant evidence and at the same time to accommodate policy demands. The proposition is then considered that the legal system of which the evidentiary system is a part has emergent properties that may not be deducible from its component parts and that suggest that it may be, or at least has properties highly analogous to, a complex adaptive system. One implication of this analysis is that the tools of standard academic research that rely heavily on the isolation and reduction of analytical problems to manageable units to permit them to be subjected to standard deductive methodologies may need to be supplemented with analytical tools that facilitate the regulation of complex natural phenomena such as fluid dynamics. This has direct implications for such things as the conception of law as rules, and thus for the Hart/Dworkin debate that has dominated jurisprudence for 50 years. That debate may have mis-characterized the object of its inquiry, and thus the Dworkinian solution to the difficulties of positivism is inapplicable. Even if that is wrong, it can be shown that the Dworkinian solution is not achievable and cannot rationally be approximated. Solutions to legal problems within the legal system as a whole (as compared to any particular node within the legal system) are arrived at through a process of inference to the best explanation that occurs within a highly interconnected set of nodes that has similarities to a neural network.
{"title":"Taming Complexity: Rationality, the Law of Evidence, and the Nature of the Legal System","authors":"R. Allen","doi":"10.2139/ssrn.1845817","DOIUrl":"https://doi.org/10.2139/ssrn.1845817","url":null,"abstract":"This essay explores the implications of complexity for understanding both the law of evidence and the nature of the legal system. Among the propositions critically analyzed is that one significant way to understand the general problem of the meaning of rationality is that it has involved a multivariate search for tools to understand and regulate a hostile environment. The law of evidence is conceptualized as a subset of this effort, at least in part, as involving a search for tools to regulate the almost infinitely complex domain of potentially relevant evidence and at the same time to accommodate policy demands. The proposition is then considered that the legal system of which the evidentiary system is a part has emergent properties that may not be deducible from its component parts and that suggest that it may be, or at least has properties highly analogous to, a complex adaptive system. One implication of this analysis is that the tools of standard academic research that rely heavily on the isolation and reduction of analytical problems to manageable units to permit them to be subjected to standard deductive methodologies may need to be supplemented with analytical tools that facilitate the regulation of complex natural phenomena such as fluid dynamics. This has direct implications for such things as the conception of law as rules, and thus for the Hart/Dworkin debate that has dominated jurisprudence for 50 years. That debate may have mis-characterized the object of its inquiry, and thus the Dworkinian solution to the difficulties of positivism is inapplicable. Even if that is wrong, it can be shown that the Dworkinian solution is not achievable and cannot rationally be approximated. Solutions to legal problems within the legal system as a whole (as compared to any particular node within the legal system) are arrived at through a process of inference to the best explanation that occurs within a highly interconnected set of nodes that has similarities to a neural network.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"98 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116263865","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Imagine a grandmother who wants to testify in a criminal trial that her husband confessed to her that he molested their two-year old grandson, but she is prevented from doing so. This is a true example of how a defendant can invoke the confidential martial communications privilege. Federal courts and half of the state legislatures have created exceptions to the confidential martial communications privilege in narrow situations. If a defendant has committed a crime against “the child of either” spouse, or against a “child residing in the home,” then the defendant cannot bar testimony based on the confidential marital communications privilege. However, if the defendant has molested a neighbor’s child or child unrelated to the family at the neighborhood park, and confessed that crime to the spouse, then the confession is privileged. This article sets forth reasons why limiting the marital privilege exception to “the child of either” spouse or to the “child residing in the home” is unreasonable. All children, regardless of their connection to the family, should be protected, particularly in child molestation cases which are often difficult to prosecute given the lack of witnesses and physical evidence. Jurisprudence, public policy, and legal theory all lead to the same conclusion: that courts and state legislatures should adopt an exception to the confidential marital communications privilege in cases involving the molestation of “any child.” The first half of the article sets forth the legal history of the marital privilege and the current landscape of exceptions to it in child abuse cases. The Appendix to the article groups the exceptions of all federal and state jurisdictions into three categories. The second half of the article sets forth reasons why the “any child” exception should be adopted and also how federal courts and state legislatures can do so. As part of this analysis, I have drafted proposed legislation.
{"title":"Protecting 'Any Child': The Use of the Confidential Marital Communications Privilege in Child Molestation Cases","authors":"Naomi Harlin Goodno","doi":"10.17161/1808.20148","DOIUrl":"https://doi.org/10.17161/1808.20148","url":null,"abstract":"Imagine a grandmother who wants to testify in a criminal trial that her husband confessed to her that he molested their two-year old grandson, but she is prevented from doing so. This is a true example of how a defendant can invoke the confidential martial communications privilege. Federal courts and half of the state legislatures have created exceptions to the confidential martial communications privilege in narrow situations. If a defendant has committed a crime against “the child of either” spouse, or against a “child residing in the home,” then the defendant cannot bar testimony based on the confidential marital communications privilege. However, if the defendant has molested a neighbor’s child or child unrelated to the family at the neighborhood park, and confessed that crime to the spouse, then the confession is privileged. This article sets forth reasons why limiting the marital privilege exception to “the child of either” spouse or to the “child residing in the home” is unreasonable. All children, regardless of their connection to the family, should be protected, particularly in child molestation cases which are often difficult to prosecute given the lack of witnesses and physical evidence. Jurisprudence, public policy, and legal theory all lead to the same conclusion: that courts and state legislatures should adopt an exception to the confidential marital communications privilege in cases involving the molestation of “any child.” The first half of the article sets forth the legal history of the marital privilege and the current landscape of exceptions to it in child abuse cases. The Appendix to the article groups the exceptions of all federal and state jurisdictions into three categories. The second half of the article sets forth reasons why the “any child” exception should be adopted and also how federal courts and state legislatures can do so. As part of this analysis, I have drafted proposed legislation.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133751355","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
By modeling judicial torture as a war of attrition, the paper derives the optimal strategies of the magistrate and the accused defendant as functions of their characteristics and the nature of uncertainty. Torture can occur as an equilibrium outcome in which both parties take costly actions to overcome informational barriers. Whether the magistrate will torture, and its result if he does, is shown to depend on how he evaluates the loss of type II error against the torturee's pain, his belief on how likely it is that the defendant is guilty, and the defendant's disutility of being tortured relative to the legal penalty of crime.
{"title":"Judicial Torture as War of Attrition","authors":"Kong‐Pin Chen, Chien-Fu Chou, Tsung-Sheng Tsai","doi":"10.2139/ssrn.1412066","DOIUrl":"https://doi.org/10.2139/ssrn.1412066","url":null,"abstract":"By modeling judicial torture as a war of attrition, the paper derives the optimal strategies of the magistrate and the accused defendant as functions of their characteristics and the nature of uncertainty. Torture can occur as an equilibrium outcome in which both parties take costly actions to overcome informational barriers. Whether the magistrate will torture, and its result if he does, is shown to depend on how he evaluates the loss of type II error against the torturee's pain, his belief on how likely it is that the defendant is guilty, and the defendant's disutility of being tortured relative to the legal penalty of crime.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134358738","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Though the growth in US prison populations over the past three decades - from 300,000 inmates in the 1970s to 1.6 million today - is well known, its causes are not. This paper examines one potential source of growth that has received surprisingly little rigorous attention: changes in time actually served in prison. Using offender-level data from the National Corrections Reporting Program, this paper demonstrates that median and 75th percentile times to release have not risen dramatically, and have even declined in some jurisdictions - although some of the decline appears to be caused by states increasingly incarcerating minor offenders who may not have been admitted in earlier years. In general, the results indicate that changes in admissions practices, rather than time served following admission, have played the dominant role in prison population growth. This paper also examines how offender-level traits have shaped the probability of release. The young, the Hispanic, and the violent are less likely to be released in any given period, and those over forty more likely to be so. Blacks, women, and property and drug offenders are no less likely to be released than their counterparts.
{"title":"The Myths and Realities of Correctional Severity: Evidence from the National Corrections Reporting Program on Sentencing Practices","authors":"John F. Pfaff","doi":"10.2139/ssrn.1338365","DOIUrl":"https://doi.org/10.2139/ssrn.1338365","url":null,"abstract":"Though the growth in US prison populations over the past three decades - from 300,000 inmates in the 1970s to 1.6 million today - is well known, its causes are not. This paper examines one potential source of growth that has received surprisingly little rigorous attention: changes in time actually served in prison. Using offender-level data from the National Corrections Reporting Program, this paper demonstrates that median and 75th percentile times to release have not risen dramatically, and have even declined in some jurisdictions - although some of the decline appears to be caused by states increasingly incarcerating minor offenders who may not have been admitted in earlier years. In general, the results indicate that changes in admissions practices, rather than time served following admission, have played the dominant role in prison population growth. This paper also examines how offender-level traits have shaped the probability of release. The young, the Hispanic, and the violent are less likely to be released in any given period, and those over forty more likely to be so. Blacks, women, and property and drug offenders are no less likely to be released than their counterparts.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"97 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114153936","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The defense counsel in a rape case makes his way to the District Attorney's offices in order to work out a possible plea bargain. His client maintains that the sex was fully consensual, while the District Attorney claims that he has substantial evidence to the contrary. His client's position is that he is innocent of the charge and is entitled to a full acquittal, while the District Attorney is demanding that the full weight of the law be brought to bear against him, including a hefty custodial sentence. Defense counsel knows from reading the evidential material that an integral part of his client's posturing and that of the District Attorney merely amount to rhetoric for the purposes of conducting negotiations, and that it would be an uphill battle to prove either of the two extreme positions. Defense counsel is experienced enough to know that there is insufficient evidence in the case to convict his client of rape, but the chances of an acquittal are also unclear. The acceptable solution in his view is to reach a plea bargain, according to which his client will admit to a minor sex offense in return for a relatively light sentence, enabling the prosecution therefore also to feel vindicated. With this aim in mind, the accused's attorney makes his way to the District Attorney's offices. The client also needs convincing that this is the best deal for him in the circumstances, or at least it amounts to the lesser of two evils.A criminal case of such kind, far from being uncommon, is the standard practice of defense counsels in the overwhelming number of cases . In this article, it will be argued that defense counsel's function in such instances is identical to that of a mediator, seeking as he does to reconcile the positions of the accused and the prosecution. Within this framework, the plea bargain should be seen as part of the broad conception of Alternative Dispute Resolution (ADR) which first made its appearance at the late 1970's.An analysis of plea bargains in the western world as part of the broader concept of Alternative Dispute Resolution actually shows that it is the defense counsel, rather than the court or the other parties to the issue, who functions as mediator, assessing the interests of the parties caught up in the dispute . This also gives expression to the philosophy of privatization upon which mediation is based. The tactics of influence and creating an impression of force employed by the defense counsel in plea bargains are identical in every way to those used by mediators. The methods of persuasion, use of pressure, delineation of the debate, manipulations and numerous other parameters are identical to those employed by the mediator. As a result, if indeed the mediation function of the defense counsel in plea bargaining may be recognized, it will be argued that this has implications, rooted in applying the accumulated experience of the mediator in private litigation in relation also to plea bargains in criminal cases.
{"title":"Is ADR (Alternative Dispute Resolution) Philosophy Relevant to Criminal Justice? - Plea Bargains as Mediation Process between the Accused and the Prosecution","authors":"Prof. Gabriel Hallevy","doi":"10.2139/ssrn.1315984","DOIUrl":"https://doi.org/10.2139/ssrn.1315984","url":null,"abstract":"The defense counsel in a rape case makes his way to the District Attorney's offices in order to work out a possible plea bargain. His client maintains that the sex was fully consensual, while the District Attorney claims that he has substantial evidence to the contrary. His client's position is that he is innocent of the charge and is entitled to a full acquittal, while the District Attorney is demanding that the full weight of the law be brought to bear against him, including a hefty custodial sentence. Defense counsel knows from reading the evidential material that an integral part of his client's posturing and that of the District Attorney merely amount to rhetoric for the purposes of conducting negotiations, and that it would be an uphill battle to prove either of the two extreme positions. Defense counsel is experienced enough to know that there is insufficient evidence in the case to convict his client of rape, but the chances of an acquittal are also unclear. The acceptable solution in his view is to reach a plea bargain, according to which his client will admit to a minor sex offense in return for a relatively light sentence, enabling the prosecution therefore also to feel vindicated. With this aim in mind, the accused's attorney makes his way to the District Attorney's offices. The client also needs convincing that this is the best deal for him in the circumstances, or at least it amounts to the lesser of two evils.A criminal case of such kind, far from being uncommon, is the standard practice of defense counsels in the overwhelming number of cases . In this article, it will be argued that defense counsel's function in such instances is identical to that of a mediator, seeking as he does to reconcile the positions of the accused and the prosecution. Within this framework, the plea bargain should be seen as part of the broad conception of Alternative Dispute Resolution (ADR) which first made its appearance at the late 1970's.An analysis of plea bargains in the western world as part of the broader concept of Alternative Dispute Resolution actually shows that it is the defense counsel, rather than the court or the other parties to the issue, who functions as mediator, assessing the interests of the parties caught up in the dispute . This also gives expression to the philosophy of privatization upon which mediation is based. The tactics of influence and creating an impression of force employed by the defense counsel in plea bargains are identical in every way to those used by mediators. The methods of persuasion, use of pressure, delineation of the debate, manipulations and numerous other parameters are identical to those employed by the mediator. As a result, if indeed the mediation function of the defense counsel in plea bargaining may be recognized, it will be argued that this has implications, rooted in applying the accumulated experience of the mediator in private litigation in relation also to plea bargains in criminal cases.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114563801","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Crime never confined itself to within the four walls of a given State. Cross-border crime always existed. Yet, States turned a relatively blind eye to the international aspect of crime: they fought crime by bringing it back within their realm. If necessary, they will use extradition rules, but extradition is just an other mechanism to assert territorial jurisdiction, as its objective is to bring the offender to justice within a given space. Indeed, crimes are not only defined but also sanctioned within a territory. States claim jurisdiction first of all on a territorial basis, whether the offense is entirely committed within its four walls, or whether only the conduct or the result of this conduct happened on the territory. Even when a State can claim jurisdiction on personality (author or victim), it ultimately does so because personality is associated with a territory, an enclosed space encompassing values a State wishes to defend through the person of its citizens, as if the person was carrying with her at all times a portion of that territory.Not surprisingly then, criminal law is perceived as the bastion of State's power, maybe the last bastion. Within the EU for example, where States forego important areas of their sovereignty, criminal law remains a no-go area for the European institutions that officially have no power to legislate and adjudicate in criminal law offenses.And yet, the past decades have seen an evolution that tends to relegate the principle of territoriality to the background (I). The increase in transnational crimes forced States to reinvent their cooperation. Regarding international crimes, which have emerged only sixty years ago, the new ICC illustrates the vitality of this movement to bypass territorial walls when necessary. More recently, cybercrime challenged the traditional assizes of criminal law, notably by creating, in virtual communities, virtual crimes which impact is difficult to translate and thus to sanction in real space. And even the EU starts to claim competence to draft criminal laws to protect the environment.In light of those examples, the demise of territoriality could appear imminent. And yet, it is not: despite undeniable challenges, criminal law continues to rest on territoriality (II). Contrary to what was predicted or wished about cyberspace regulation, most cybercrimes can be dealt and are dealt with on a territorial basis, extradition playing an important role in bringing to justice offenders. Old walls stay and if they disappear, it is to be replaced by bigger walls: the EU may weaken its Member States' inside walls, but the outside walls are reinforced. Thus, territories remain the first anchor of criminal law, despite some notable changes in some areas that might well lead the way to rethink criminal law.
{"title":"Criminal Law in the 21st Century: The Demise of Territoriality?","authors":"Audrey Guinchard","doi":"10.2139/SSRN.1290049","DOIUrl":"https://doi.org/10.2139/SSRN.1290049","url":null,"abstract":"Crime never confined itself to within the four walls of a given State. Cross-border crime always existed. Yet, States turned a relatively blind eye to the international aspect of crime: they fought crime by bringing it back within their realm. If necessary, they will use extradition rules, but extradition is just an other mechanism to assert territorial jurisdiction, as its objective is to bring the offender to justice within a given space. Indeed, crimes are not only defined but also sanctioned within a territory. States claim jurisdiction first of all on a territorial basis, whether the offense is entirely committed within its four walls, or whether only the conduct or the result of this conduct happened on the territory. Even when a State can claim jurisdiction on personality (author or victim), it ultimately does so because personality is associated with a territory, an enclosed space encompassing values a State wishes to defend through the person of its citizens, as if the person was carrying with her at all times a portion of that territory.Not surprisingly then, criminal law is perceived as the bastion of State's power, maybe the last bastion. Within the EU for example, where States forego important areas of their sovereignty, criminal law remains a no-go area for the European institutions that officially have no power to legislate and adjudicate in criminal law offenses.And yet, the past decades have seen an evolution that tends to relegate the principle of territoriality to the background (I). The increase in transnational crimes forced States to reinvent their cooperation. Regarding international crimes, which have emerged only sixty years ago, the new ICC illustrates the vitality of this movement to bypass territorial walls when necessary. More recently, cybercrime challenged the traditional assizes of criminal law, notably by creating, in virtual communities, virtual crimes which impact is difficult to translate and thus to sanction in real space. And even the EU starts to claim competence to draft criminal laws to protect the environment.In light of those examples, the demise of territoriality could appear imminent. And yet, it is not: despite undeniable challenges, criminal law continues to rest on territoriality (II). Contrary to what was predicted or wished about cyberspace regulation, most cybercrimes can be dealt and are dealt with on a territorial basis, extradition playing an important role in bringing to justice offenders. Old walls stay and if they disappear, it is to be replaced by bigger walls: the EU may weaken its Member States' inside walls, but the outside walls are reinforced. Thus, territories remain the first anchor of criminal law, despite some notable changes in some areas that might well lead the way to rethink criminal law.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"123 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123142233","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The last decade has seen remarkable process in understanding ongoing psychological processes at the neurobiological level, progress that has been driven technologically by the spread of functional neuroimaging devices, especially magnetic resonance imaging, that have become the research tools of a theoretically sophisticated cognitive neuroscience. As this research turns to specification of the mental processes involved in interpersonal deception, the potential evidentiary use of material produced by devices for detecting deception, long stymied by the conceptual and legal limitations of the polygraph, must be re-examined. Although studies in this area are preliminary, and I conclude they have not yet satisfied the foundational requirements for the admissibility of scientific evidence, the potential for use - particularly as a devastating impeachment threat to encourage factual veracity - is a real one that the legal profession should seek to foster through structuring the correct incentives and rules for admissibility. In particular, neuroscience has articulated basic memory processes to a sufficient degree that contemporaneously neuroimaged witnesses would be unable to feign ignorance of a familiar item (or to claim knowledge of something unfamiliar). The brain implementation of actual lies and deceit more generally, is of greater complexity and variability. Nevertheless, the research project to elucidate them is conceptually sound, and the law cannot afford to stand apart from what may ultimately constitute profound progress in a fundamental problem of adjudication.
{"title":"Cross-Examining the Brain: A Legal Analysis of Neural Imaging for Credibility Impeachment","authors":"Charles N. W. Keckler","doi":"10.2139/ssrn.667601","DOIUrl":"https://doi.org/10.2139/ssrn.667601","url":null,"abstract":"The last decade has seen remarkable process in understanding ongoing psychological processes at the neurobiological level, progress that has been driven technologically by the spread of functional neuroimaging devices, especially magnetic resonance imaging, that have become the research tools of a theoretically sophisticated cognitive neuroscience. As this research turns to specification of the mental processes involved in interpersonal deception, the potential evidentiary use of material produced by devices for detecting deception, long stymied by the conceptual and legal limitations of the polygraph, must be re-examined. Although studies in this area are preliminary, and I conclude they have not yet satisfied the foundational requirements for the admissibility of scientific evidence, the potential for use - particularly as a devastating impeachment threat to encourage factual veracity - is a real one that the legal profession should seek to foster through structuring the correct incentives and rules for admissibility. In particular, neuroscience has articulated basic memory processes to a sufficient degree that contemporaneously neuroimaged witnesses would be unable to feign ignorance of a familiar item (or to claim knowledge of something unfamiliar). The brain implementation of actual lies and deceit more generally, is of greater complexity and variability. Nevertheless, the research project to elucidate them is conceptually sound, and the law cannot afford to stand apart from what may ultimately constitute profound progress in a fundamental problem of adjudication.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"123 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131807409","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
As a new President faces a whole host of civil liberties issues upon taking office, one that looms large is communications privacy. Still unresolved from the previous administration are the legality of President Bush's so-called Terrorist Surveillance Program and the constitutionality of the Foreign Intelligence Surveillance Act. Embedded in those important questions is a question about the sanctity of the nation's oldest and most venerable means of long-distance communications, the mail. That question is whether the government may open first-class mail without a warrant and, if so, under what circumstances. In this short article, I analyze the regulatory, statutory, and constitutional issues related to that question. I conclude that the statutory prohibition on mail opening only applies to mail matter that falls into the category of "letter" - which, roughly speaking, is defined as a "message" or "communication" or "correspondence." The prohibition on mail opening does not apply to mail matter other than "correspondence," such as bombs, anthrax or any ordinary good. The statute bars the opening of letters without a warrant, subject only to one relevant exception: the "physical searches" provisions in the Foreign Intelligence Surveillance Act ("FISA"). The government may not open letters without either a warrant or following the procedures set forth in FISA. There is no "exigent circumstances" exception for letters, though the government may temporarily detain a letter for the purpose of obtaining a warrant.On the other hand, the government may open other mail matter without a warrant subject only to the strictures of the Fourth Amendment. The Fourth Amendment does contain an "exigent circumstances" exception to the ordinary rule that a warrant is required. Thus, scenarios that might involve hazardous materials such as anthrax or a ticking time bomb would in many circumstances fall into this exception.
{"title":"Can the President Read Your Mail? A Legal Analysis","authors":"Anuj C. Desai","doi":"10.2139/SSRN.962453","DOIUrl":"https://doi.org/10.2139/SSRN.962453","url":null,"abstract":"As a new President faces a whole host of civil liberties issues upon taking office, one that looms large is communications privacy. Still unresolved from the previous administration are the legality of President Bush's so-called Terrorist Surveillance Program and the constitutionality of the Foreign Intelligence Surveillance Act. Embedded in those important questions is a question about the sanctity of the nation's oldest and most venerable means of long-distance communications, the mail. That question is whether the government may open first-class mail without a warrant and, if so, under what circumstances. In this short article, I analyze the regulatory, statutory, and constitutional issues related to that question. I conclude that the statutory prohibition on mail opening only applies to mail matter that falls into the category of \"letter\" - which, roughly speaking, is defined as a \"message\" or \"communication\" or \"correspondence.\" The prohibition on mail opening does not apply to mail matter other than \"correspondence,\" such as bombs, anthrax or any ordinary good. The statute bars the opening of letters without a warrant, subject only to one relevant exception: the \"physical searches\" provisions in the Foreign Intelligence Surveillance Act (\"FISA\"). The government may not open letters without either a warrant or following the procedures set forth in FISA. There is no \"exigent circumstances\" exception for letters, though the government may temporarily detain a letter for the purpose of obtaining a warrant.On the other hand, the government may open other mail matter without a warrant subject only to the strictures of the Fourth Amendment. The Fourth Amendment does contain an \"exigent circumstances\" exception to the ordinary rule that a warrant is required. Thus, scenarios that might involve hazardous materials such as anthrax or a ticking time bomb would in many circumstances fall into this exception.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130981364","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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