Federal courts are vitally important fora in which to remedy constitutional violations that occur during state criminal proceedings. But critics have long lamented the difficultly of obtaining federal review of these violations. The Supreme Court rarely grants certiorari to review state criminal convictions, including allegations of constitutional defects, on direct appeal. Likewise, the Court has historically declined to grant certiorari to review habeas claims that originate in state courts. And Congress has circumscribed the ability of all federal courts to grant relief on habeas claims made by state prisoners. The dominant scholarly view, therefore, is that systemic constitutional violations are going unremedied and will continue to go unaddressed absent broadscale change.
This Essay argues that an unnoticed change in the Supreme Court’s certiorari practice over the last five years has reopened a previously closed path to remedying these violations. The Supreme Court has a long-stated presumption against taking cases that originate in state collateral proceedings, i.e., state proceedings in which a prisoner challenges his or her conviction or sentence, often on federal constitutional grounds, after the conviction has become final. This Essay shows that, although the Court previously hewed to that presumption, things have changed. Beginning in October Term 2015 and continuing to the present, the Court has steadily granted certiorari in these cases, indicating a sub silentio abrogation of its stated presumption. This Essay documents this changed certiorari practice and explains its significance, both for vindication of constitutional criminal procedure rights and for our understanding of the Supreme Court’s central role in shaping those rights.
{"title":"Direct Collateral Review","authors":"Payvand Ahdout","doi":"10.2139/ssrn.3487105","DOIUrl":"https://doi.org/10.2139/ssrn.3487105","url":null,"abstract":"Federal courts are vitally important fora in which to remedy constitutional violations that occur during state criminal proceedings. But critics have long lamented the difficultly of obtaining federal review of these violations. The Supreme Court rarely grants certiorari to review state criminal convictions, including allegations of constitutional defects, on direct appeal. Likewise, the Court has historically declined to grant certiorari to review habeas claims that originate in state courts. And Congress has circumscribed the ability of all federal courts to grant relief on habeas claims made by state prisoners. The dominant scholarly view, therefore, is that systemic constitutional violations are going unremedied and will continue to go unaddressed absent broadscale change.<br><br>This Essay argues that an unnoticed change in the Supreme Court’s certiorari practice over the last five years has reopened a previously closed path to remedying these violations. The Supreme Court has a long-stated presumption against taking cases that originate in state collateral proceedings, i.e., state proceedings in which a prisoner challenges his or her conviction or sentence, often on federal constitutional grounds, after the conviction has become final. This Essay shows that, although the Court previously hewed to that presumption, things have changed. Beginning in October Term 2015 and continuing to the present, the Court has steadily granted certiorari in these cases, indicating a sub silentio abrogation of its stated presumption. This Essay documents this changed certiorari practice and explains its significance, both for vindication of constitutional criminal procedure rights and for our understanding of the Supreme Court’s central role in shaping those rights.<br>","PeriodicalId":423661,"journal":{"name":"LSN: Criminal Procedure (Topic)","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117130164","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 article addresses a way to support out-of-court dispute resolution which has not yet been considered in civil law systems: the introduction of apology legislation. Apology legislation encompasses a combination of statutory provisions that reduce or remove the adverse legal consequences of apologizing. The idea underpinning this device is to create a safe harbour in which people do not feel inhibited to apologize. This is based on the premise that once an apology is tendered, parties will come to an amicable resolution of their conflict more likely and more easily. The first apology act was introduced in Massachusetts in the US in 1986. Since then, the phenomenon has spread throughout the common law world (Australia, Canada, England and Wales, Scotland, Ireland and Hong Kong). Civil law systems are a remarkable blind spot in this continuously expanding field. Very few scholars have endeavoured to explain why this type of legislation has been enacted in common law systems and not in continental Europe. This article claims that there is no real difference between both legal traditions when it comes to the need to protect apologies, as the evidentiary consequences of apologizing are roughly equal. The current lack of apology legislation in continental Europe may be explained otherwise. First, on a substantive level, there is less emphasis on tort law and private claiming than in many common law jurisdictions. Second, on a procedural level, civil law systems are less familiar with legal rules prohibiting the use of specific items of evidence, whereas common law systems have enacted a comprehensive system of exclusionary rules. Notwithstanding those differences, this article submits that a case can be made for introducing apology legislation in civil law systems. Apology legislation is a cost-effective tool that might serve the policy priority of resolving conflicts through alternative methods of dispute resolution rather than trial. It might affect an earlier stage in the emergence of a dispute than other ADR-mechanisms. Finally, it has the advantage of avoiding mischaracterization and thus righting the wrong perception that it is better not to apologize.
{"title":"Introducing Apology Legislation in Civil Law Systems. A New Way to Encourage Out-of-Court Dispute Resolution","authors":"Wannes Vandenbussche","doi":"10.2139/ssrn.3237528","DOIUrl":"https://doi.org/10.2139/ssrn.3237528","url":null,"abstract":"This article addresses a way to support out-of-court dispute resolution which has not yet been considered in civil law systems: the introduction of apology legislation. Apology legislation encompasses a combination of statutory provisions that reduce or remove the adverse legal consequences of apologizing. The idea underpinning this device is to create a safe harbour in which people do not feel inhibited to apologize. This is based on the premise that once an apology is tendered, parties will come to an amicable resolution of their conflict more likely and more easily. \u0000 \u0000The first apology act was introduced in Massachusetts in the US in 1986. Since then, the phenomenon has spread throughout the common law world (Australia, Canada, England and Wales, Scotland, Ireland and Hong Kong). Civil law systems are a remarkable blind spot in this continuously expanding field. Very few scholars have endeavoured to explain why this type of legislation has been enacted in common law systems and not in continental Europe. This article claims that there is no real difference between both legal traditions when it comes to the need to protect apologies, as the evidentiary consequences of apologizing are roughly equal. The current lack of apology legislation in continental Europe may be explained otherwise. First, on a substantive level, there is less emphasis on tort law and private claiming than in many common law jurisdictions. Second, on a procedural level, civil law systems are less familiar with legal rules prohibiting the use of specific items of evidence, whereas common law systems have enacted a comprehensive system of exclusionary rules. \u0000 \u0000Notwithstanding those differences, this article submits that a case can be made for introducing apology legislation in civil law systems. Apology legislation is a cost-effective tool that might serve the policy priority of resolving conflicts through alternative methods of dispute resolution rather than trial. It might affect an earlier stage in the emergence of a dispute than other ADR-mechanisms. Finally, it has the advantage of avoiding mischaracterization and thus righting the wrong perception that it is better not to apologize.","PeriodicalId":423661,"journal":{"name":"LSN: Criminal Procedure (Topic)","volume":"519 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131645755","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}
Recent years have seen a rush toward evidence-based tools in criminal justice. As part of this movement, many jurisdictions have adopted actuarial risk assessment to supplement or replace the ad-hoc decisions of judges. Proponents of risk assessment tools claim that they can dramatically reduce incarceration without harming public safety. Critics claim that risk assessment will exacerbate racial disparities. Despite extensive and heated rhetoric, there is virtually no evidence on how use of this “evidence-based” tool affects key outcomes such as incarceration rates, crime, or racial disparities. The research discussing what “should” happen as a result of risk assessment is hypothetical and largely ignores the complexities of implementation. This Article is one of the first studies to document the impacts of risk assessment in practice. It evaluates pretrial risk assessment in Kentucky, a state that was an early adopter of risk assessment and is often cited as an example of best-practices in the pretrial area. Using rich data on more than one million criminal cases, this Article shows that a 2011 law making risk assessment a mandatory part of the bail decision led to a significant change in bail setting practice, but only a small increase in pretrial release. These changes eroded over time as judges returned to their previous habits. Furthermore, the increase in releases was not cost-free: failures-to-appear and pretrial crime increased as well. Risk assessment had no effect on racial disparities in pretrial detention once differing regional trends were accounted for. Kentucky’s experience does not mean we should abandon risk assessment, but it should temper the hyperbolic hopes (and fears) about its effects. Risk assessment in practice is different from risk assessment in the abstract, and its impacts depend on context and details of implementation. If indeed risk assessment is capable of producing large benefits, it will take research and experimentation to learn how to achieve them. Such a process would be evidence-based criminal justice at its best: not a flocking toward methods that bear the glossy veneer of science, but a careful and iterative evaluation of what works and what does not.
{"title":"Assessing Risk Assessment in Action","authors":"M. Stevenson","doi":"10.2139/ssrn.3016088","DOIUrl":"https://doi.org/10.2139/ssrn.3016088","url":null,"abstract":"Recent years have seen a rush toward evidence-based tools in criminal justice. As part of this movement, many jurisdictions have adopted actuarial risk assessment to supplement or replace the ad-hoc decisions of judges. Proponents of risk assessment tools claim that they can dramatically reduce incarceration without harming public safety. Critics claim that risk assessment will exacerbate racial disparities. Despite extensive and heated rhetoric, there is virtually no evidence on how use of this “evidence-based” tool affects key outcomes such as incarceration rates, crime, or racial disparities. The research discussing what “should” happen as a result of risk assessment is hypothetical and largely ignores the complexities of implementation. This Article is one of the first studies to document the impacts of risk assessment in practice. It evaluates pretrial risk assessment in Kentucky, a state that was an early adopter of risk assessment and is often cited as an example of best-practices in the pretrial area. Using rich data on more than one million criminal cases, this Article shows that a 2011 law making risk assessment a mandatory part of the bail decision led to a significant change in bail setting practice, but only a small increase in pretrial release. These changes eroded over time as judges returned to their previous habits. Furthermore, the increase in releases was not cost-free: failures-to-appear and pretrial crime increased as well. Risk assessment had no effect on racial disparities in pretrial detention once differing regional trends were accounted for. \u0000 \u0000Kentucky’s experience does not mean we should abandon risk assessment, but it should temper the hyperbolic hopes (and fears) about its effects. Risk assessment in practice is different from risk assessment in the abstract, and its impacts depend on context and details of implementation. If indeed risk assessment is capable of producing large benefits, it will take research and experimentation to learn how to achieve them. Such a process would be evidence-based criminal justice at its best: not a flocking toward methods that bear the glossy veneer of science, but a careful and iterative evaluation of what works and what does not.","PeriodicalId":423661,"journal":{"name":"LSN: Criminal Procedure (Topic)","volume":"106 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115789127","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}
Bail is one of the most consequential decisions in criminal justice. The ability to secure bail often makes the difference between guilt and innocence, retaining employment and family obligations, and keeping a place to live. These implications affect those charged with felonies and this has been the focus for many years, but it affects even more so those charged with misdemeanors. A misdemeanor is theoretically a less serious crime with less serious consequences, but the effects on a defendant’s life are just as serious in the short term. There is a growing body of important empirical work that demonstrates the impact of being denied bail on those charged with misdemeanors. However, there is a lack of theoretical scholarship explaining defendants’ rights when it comes to misdemeanor bail. There is also a lack of historical perspective in determining how we have dealt with misdemeanor crimes. Considering this historical perspective, we learn that misdemeanors have always been plentiful but it is only recently that they have become a serious problem and that their impact has become as serious as felony offenses. This Article strives to a first step toward creating a theoretical footing for misdemeanor bail decisions by considering the historical role of misdemeanors and discussing the importance of creating an analytical framework for making these decisions.
{"title":"The History of Misdemeanor Bail","authors":"S. B. Baughman","doi":"10.2139/ssrn.3197305","DOIUrl":"https://doi.org/10.2139/ssrn.3197305","url":null,"abstract":"Bail is one of the most consequential decisions in criminal justice. The ability to secure bail often makes the difference between guilt and innocence, retaining employment and family obligations, and keeping a place to live. These implications affect those charged with felonies and this has been the focus for many years, but it affects even more so those charged with misdemeanors. A misdemeanor is theoretically a less serious crime with less serious consequences, but the effects on a defendant’s life are just as serious in the short term. There is a growing body of important empirical work that demonstrates the impact of being denied bail on those charged with misdemeanors. However, there is a lack of theoretical scholarship explaining defendants’ rights when it comes to misdemeanor bail. There is also a lack of historical perspective in determining how we have dealt with misdemeanor crimes. Considering this historical perspective, we learn that misdemeanors have always been plentiful but it is only recently that they have become a serious problem and that their impact has become as serious as felony offenses. This Article strives to a first step toward creating a theoretical footing for misdemeanor bail decisions by considering the historical role of misdemeanors and discussing the importance of creating an analytical framework for making these decisions.","PeriodicalId":423661,"journal":{"name":"LSN: Criminal Procedure (Topic)","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115240160","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 book provides readers with an exploration of ways to reduce the rate of false convictions in the criminal justice system. The criminal justice system should be seen as a Safety-Critical System, specifically a system that deals with matters of life and death, where any error is likely to cause grave harm to both the individual and society. Implementing safety in criminal law is necessary, both morally and economically. Incorporating into the criminal justice system a modern safety theory that is commonly accepted in other areas, such as space, aviation, engineering, and transportation, is an idea that was developed jointly by myself and Dr. Mordechai Halpert and presented mainly in the coauthored article “A Safety Doctrine for the Criminal Justice System.” This is the starting point of the book. The book expands the preliminary proposition and engages in the application of the modern safety theory and methods in the criminal justice system. Thus, for example, the book demonstrates how the fundamentally important Identify-Analyze-Control method can and should be implemented in the system, using Nancy Leveson’s STAMP’s model (“System-Theoretic Accident Model and Processes”). This is the first book that proposes a general theory of safety for the criminal justice system. It provides specific safety rules for certain types of criminal evidence and criminal law procedures.
{"title":"Safety from False Convictions","authors":"Boaz Sangero","doi":"10.2139/ssrn.2816292","DOIUrl":"https://doi.org/10.2139/ssrn.2816292","url":null,"abstract":"This book provides readers with an exploration of ways to reduce the rate of false convictions in the criminal justice system. The criminal justice system should be seen as a Safety-Critical System, specifically a system that deals with matters of life and death, where any error is likely to cause grave harm to both the individual and society. Implementing safety in criminal law is necessary, both morally and economically. Incorporating into the criminal justice system a modern safety theory that is commonly accepted in other areas, such as space, aviation, engineering, and transportation, is an idea that was developed jointly by myself and Dr. Mordechai Halpert and presented mainly in the coauthored article “A Safety Doctrine for the Criminal Justice System.” This is the starting point of the book. The book expands the preliminary proposition and engages in the application of the modern safety theory and methods in the criminal justice system. Thus, for example, the book demonstrates how the fundamentally important Identify-Analyze-Control method can and should be implemented in the system, using Nancy Leveson’s STAMP’s model (“System-Theoretic Accident Model and Processes”). This is the first book that proposes a general theory of safety for the criminal justice system. It provides specific safety rules for certain types of criminal evidence and criminal law procedures.","PeriodicalId":423661,"journal":{"name":"LSN: Criminal Procedure (Topic)","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114149249","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}
Freedom of movement, expression and the Right to Life are essential in every democratic community. Where ever in the world there is threat to these rights, people tend to do the impossible to re-emphasize them. They revolt, protest and in some extreme cases riot. This article seeks examine Bail, the restriction it poses to these rights, the practice of bail in Nigeria and United States of America and lessons to be learned.Applying for bail, admitting a person to bail, terms and conditions under which such bail is to be granted, jumping of bail, bogus sureties all these are issues that have become hindrances to justice in the administration of criminal justice system in Nigeria. Often, persons in police custody who are released on bail, or accused persons on trial who are released by the court on bail, jump bail and disappear when they believe that there is overwhelming evidence against them. Unlike the system in the United States of America where every individual transaction is traceable, in Nigeria it is often the case that persons who jump bail remain within the jurisdiction of the court and are still impossible to trace. This makes it difficult for easy dispensation of justice as Nigerian Law does not recognize trial in absentee (in criminal cases). Eventually, the case is struck out by the Judge denying justice to the victims and the State. This weakens the belief of the masses in the Judiciary and in the administration of Criminal justice system in Nigeria encouraging people to resort to jungle justice and self help.
{"title":"A Comparative Analysis: The Practice of Bail Pending Trial in Nigeria and the United States of America","authors":"Mercy Nwosu","doi":"10.2139/ssrn.2714328","DOIUrl":"https://doi.org/10.2139/ssrn.2714328","url":null,"abstract":"Freedom of movement, expression and the Right to Life are essential in every democratic community. Where ever in the world there is threat to these rights, people tend to do the impossible to re-emphasize them. They revolt, protest and in some extreme cases riot. This article seeks examine Bail, the restriction it poses to these rights, the practice of bail in Nigeria and United States of America and lessons to be learned.Applying for bail, admitting a person to bail, terms and conditions under which such bail is to be granted, jumping of bail, bogus sureties all these are issues that have become hindrances to justice in the administration of criminal justice system in Nigeria. Often, persons in police custody who are released on bail, or accused persons on trial who are released by the court on bail, jump bail and disappear when they believe that there is overwhelming evidence against them. Unlike the system in the United States of America where every individual transaction is traceable, in Nigeria it is often the case that persons who jump bail remain within the jurisdiction of the court and are still impossible to trace. This makes it difficult for easy dispensation of justice as Nigerian Law does not recognize trial in absentee (in criminal cases). Eventually, the case is struck out by the Judge denying justice to the victims and the State. This weakens the belief of the masses in the Judiciary and in the administration of Criminal justice system in Nigeria encouraging people to resort to jungle justice and self help.","PeriodicalId":423661,"journal":{"name":"LSN: Criminal Procedure (Topic)","volume":"125 6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129725435","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}
D. DeMatteo, J. Edens, Meghann P. Galloway, J. Cox, Shannon Toney Smith, Julie Present Koller, Benjamin Bersoff
Although the Psychopathy Checklist-Revised (PCL-R; Hare, 2003) appears to be the most widely used measure of psychopathic traits in forensic settings around the world, relatively little is known about how often it is introduced into legal cases and the types of cases in which it is being used. DeMatteo and Edens (2006) first summarized the extant U.S. case law on the PCL-R, identifying 87 cases in which it had been introduced since its publication in 1991 through 2004. Using an identical search strategy employed in the earlier review (LexisNexis legal database), we identified 348 cases involving the PCL-R from 2005 through 2011. Notably, the PCL-R appeared to be primarily a “prosecution tool” in these cases in that it was rarely first introduced into evidence by the defense. In most cases it was used to assess offenders with significant histories of violence in the context of risk assessments—with resulting risk statements being strongly associated with the results of the PCL-R evaluation (i.e., high psychopathy equating with high recidivism risk, low psychopathy equating with low recidivism risk). Challenges to the admissibility of PCL-R evidence in these cases were rare and typically unsuccessful, even though some assertions, particularly in relation to the PCL-R's predictive validity, appeared to have questionable scientific support. On average, prosecution examiners reported PCL-R scores that were 7 points higher than defense examiners. We discuss these findings in the context of the appropriate roles for the PCL-R in court and its potential for misuse when evaluating psycho-legal issues.
{"title":"Investigating the Role of the Psychopathy Checklist–Revised in United States Case Law.","authors":"D. DeMatteo, J. Edens, Meghann P. Galloway, J. Cox, Shannon Toney Smith, Julie Present Koller, Benjamin Bersoff","doi":"10.1037/A0035452","DOIUrl":"https://doi.org/10.1037/A0035452","url":null,"abstract":"Although the Psychopathy Checklist-Revised (PCL-R; Hare, 2003) appears to be the most widely used measure of psychopathic traits in forensic settings around the world, relatively little is known about how often it is introduced into legal cases and the types of cases in which it is being used. DeMatteo and Edens (2006) first summarized the extant U.S. case law on the PCL-R, identifying 87 cases in which it had been introduced since its publication in 1991 through 2004. Using an identical search strategy employed in the earlier review (LexisNexis legal database), we identified 348 cases involving the PCL-R from 2005 through 2011. Notably, the PCL-R appeared to be primarily a “prosecution tool” in these cases in that it was rarely first introduced into evidence by the defense. In most cases it was used to assess offenders with significant histories of violence in the context of risk assessments—with resulting risk statements being strongly associated with the results of the PCL-R evaluation (i.e., high psychopathy equating with high recidivism risk, low psychopathy equating with low recidivism risk). Challenges to the admissibility of PCL-R evidence in these cases were rare and typically unsuccessful, even though some assertions, particularly in relation to the PCL-R's predictive validity, appeared to have questionable scientific support. On average, prosecution examiners reported PCL-R scores that were 7 points higher than defense examiners. We discuss these findings in the context of the appropriate roles for the PCL-R in court and its potential for misuse when evaluating psycho-legal issues.","PeriodicalId":423661,"journal":{"name":"LSN: Criminal Procedure (Topic)","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125231145","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 ‘reasonable doubt standard’ is the controlling standard of proof for criminal fact finding in several jurisdictions. Drawing on decision theory, some scholars have argued that the stringency of this standard varies according to the circumstances of the case. This article contends that the standard does not lend itself to the ‘sliding-scale’ approach mandated by decision theory. This is supported through investigation of the concept of ‘reasonableness’. While this concept has mostly been studied as it operates with reference to practical reasoning, scant attention has been given to the meaning that it acquires when referred to theoretical reasoning. Unlike in the former case, reasonableness does not in the latter depend on the reasoner's attitudes in favour of the outcomes of a decisional process. Therefore, since criminal fact finding is an instance of theoretical reasoning, the question whether in this enterprise a doubt is reasonable is not susceptible to a decision-theoretic approach.
{"title":"Two Meanings of ‘Reasonableness’: Dispelling the ‘Floating’ Reasonable Doubt","authors":"Federico Picinali","doi":"10.1111/1468-2230.12038","DOIUrl":"https://doi.org/10.1111/1468-2230.12038","url":null,"abstract":"The ‘reasonable doubt standard’ is the controlling standard of proof for criminal fact finding in several jurisdictions. Drawing on decision theory, some scholars have argued that the stringency of this standard varies according to the circumstances of the case. This article contends that the standard does not lend itself to the ‘sliding-scale’ approach mandated by decision theory. This is supported through investigation of the concept of ‘reasonableness’. While this concept has mostly been studied as it operates with reference to practical reasoning, scant attention has been given to the meaning that it acquires when referred to theoretical reasoning. Unlike in the former case, reasonableness does not in the latter depend on the reasoner's attitudes in favour of the outcomes of a decisional process. Therefore, since criminal fact finding is an instance of theoretical reasoning, the question whether in this enterprise a doubt is reasonable is not susceptible to a decision-theoretic approach.","PeriodicalId":423661,"journal":{"name":"LSN: Criminal Procedure (Topic)","volume":"123 21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132463626","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 Code of Criminal Procedure, 1898 (Cr. P. C. 1898) is the general law of criminal procedure in Pakistan. The Procedure is an adjective law . The general substantive law of crime is contained in the Pakistan Penal Code, 1860. There are also special laws of both kinds and the rule is that where a general and special law is in conflict with each other the special law is to prevail. Where there is no provision in a special law concerning any matter the general law may be applied for the ends of justice. It brings consistency in the administration and application of law. Inquiries and trials are not one and the same thing. An inquiry is prior to trial while a trial is after an inquiry and it starts from the framing of the charge and ends at pronouncement of judgment. In this paper mode of taking and recording evidence in inquiries and trials is discussed, analyzed and commented upon in the light of the judicial precedents available on the subject. Chapter 25 is devoted by the Code for this subject. It contains twelve operative sections (ss. 353 to 361 and 363 to 365).
{"title":"Mode of Taking and Recording Evidence in Inquiries and Trials: Ch. XXV [Ss. 353 to 365] CrPC","authors":"Justice Dr. Munir Ahmad Mughal","doi":"10.2139/SSRN.2161495","DOIUrl":"https://doi.org/10.2139/SSRN.2161495","url":null,"abstract":"The Code of Criminal Procedure, 1898 (Cr. P. C. 1898) is the general law of criminal procedure in Pakistan. The Procedure is an adjective law . The general substantive law of crime is contained in the Pakistan Penal Code, 1860. There are also special laws of both kinds and the rule is that where a general and special law is in conflict with each other the special law is to prevail. Where there is no provision in a special law concerning any matter the general law may be applied for the ends of justice. It brings consistency in the administration and application of law. Inquiries and trials are not one and the same thing. An inquiry is prior to trial while a trial is after an inquiry and it starts from the framing of the charge and ends at pronouncement of judgment. In this paper mode of taking and recording evidence in inquiries and trials is discussed, analyzed and commented upon in the light of the judicial precedents available on the subject. Chapter 25 is devoted by the Code for this subject. It contains twelve operative sections (ss. 353 to 361 and 363 to 365).","PeriodicalId":423661,"journal":{"name":"LSN: Criminal Procedure (Topic)","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-10-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132789212","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}
Unlike rules governing discovery in civil cases, which require that the two sides exchange most information about their respective cases, criminal discovery results in a highly limited flow of information. This is particularly true in the dozen or so states that follow the restrictive federal rule, which is premised in part on the idea that a defendant is not entitled to witness names or statements for pretrial investigation, but rather only for cross-examination purposes should the case ever get to that stage. In these jurisdictions, defense counsel gets almost no information about the state's case. Yet pre-trial investigation of the prosecution's case and possible defenses has long been recognized as a core function of defense counsel, one that is necessary to the testing of the facts in our adversarial system. Indeed, counsel's Sixth Amendment duty to provide effective assistance of counsel encompasses the duty to "make reasonable investigations or . . .make a reasonable decision that makes particular investigations unnecessary." The right to effective assistance rings hollow when restrictive discovery rules render an attorney unable to investigate the facts of the case. The situation is presented most starkly with an innocent defendant, who knows nothing about the facts of the case against him and thus has no information to share. How can counsel investigate enough to make informed choices about trial defenses when the client can say no more than "I know nothing about these charges"? An assumption that a defendant has enough information about the case to allow for investigation flies in the face of the constitutional right to a presumption of innocence. There are clear connections among the effective assistance of counsel, the duty to investigate and discovery. It is the aim of this article to both explore those connections and to urge a Sixth Amendment analysis of restrictive discovery rules. The Supreme Court has considered discovery almost exclusively through the lens of due process under the Fourteenth Amendment. Scholarship on discovery also largely fails to explore the validity of restrictive discovery under such a Sixth Amendment analysis. Reconsideration of the discovery framework is timely for two reasons. First, the Supreme Court has injected new life into defense counsel's constitutional duty to investigate in two recent decisions which reversed death sentences. In Williams v. Taylor, for the first time the Supreme Court found ineffective assistance of counsel based on defense counsel's inadequate investigation. In Wiggins v. Smith, the Court found that defense counsel's paltry investigation into mitigation evidence for Wiggins's capital sentencing hearing did not comport with "prevailing professional norms."The second reason that reconsideration of the analytic framework is timely is that the recent debate over fairness in the death penalty has led to a greater understanding of the causes of wrongful convictions and to the identif
{"title":"Too Little, Too Late: Ineffective Assistance of Counsel, the Duty to Investigate, and Pretrial Discovery in Criminal Cases","authors":"Jenny M. Roberts","doi":"10.2139/SSRN.1126709","DOIUrl":"https://doi.org/10.2139/SSRN.1126709","url":null,"abstract":"Unlike rules governing discovery in civil cases, which require that the two sides exchange most information about their respective cases, criminal discovery results in a highly limited flow of information. This is particularly true in the dozen or so states that follow the restrictive federal rule, which is premised in part on the idea that a defendant is not entitled to witness names or statements for pretrial investigation, but rather only for cross-examination purposes should the case ever get to that stage. In these jurisdictions, defense counsel gets almost no information about the state's case. Yet pre-trial investigation of the prosecution's case and possible defenses has long been recognized as a core function of defense counsel, one that is necessary to the testing of the facts in our adversarial system. Indeed, counsel's Sixth Amendment duty to provide effective assistance of counsel encompasses the duty to \"make reasonable investigations or . . .make a reasonable decision that makes particular investigations unnecessary.\" The right to effective assistance rings hollow when restrictive discovery rules render an attorney unable to investigate the facts of the case. The situation is presented most starkly with an innocent defendant, who knows nothing about the facts of the case against him and thus has no information to share. How can counsel investigate enough to make informed choices about trial defenses when the client can say no more than \"I know nothing about these charges\"? An assumption that a defendant has enough information about the case to allow for investigation flies in the face of the constitutional right to a presumption of innocence. There are clear connections among the effective assistance of counsel, the duty to investigate and discovery. It is the aim of this article to both explore those connections and to urge a Sixth Amendment analysis of restrictive discovery rules. The Supreme Court has considered discovery almost exclusively through the lens of due process under the Fourteenth Amendment. Scholarship on discovery also largely fails to explore the validity of restrictive discovery under such a Sixth Amendment analysis. Reconsideration of the discovery framework is timely for two reasons. First, the Supreme Court has injected new life into defense counsel's constitutional duty to investigate in two recent decisions which reversed death sentences. In Williams v. Taylor, for the first time the Supreme Court found ineffective assistance of counsel based on defense counsel's inadequate investigation. In Wiggins v. Smith, the Court found that defense counsel's paltry investigation into mitigation evidence for Wiggins's capital sentencing hearing did not comport with \"prevailing professional norms.\"The second reason that reconsideration of the analytic framework is timely is that the recent debate over fairness in the death penalty has led to a greater understanding of the causes of wrongful convictions and to the identif","PeriodicalId":423661,"journal":{"name":"LSN: Criminal Procedure (Topic)","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131626521","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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