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Police Officers’ Knowledge of Gant 警察对甘特的了解
IF 0.4 Q2 Social Sciences Pub Date : 2021-01-01 DOI: 10.1525/nclr.2021.24.4.468
James A. Purdon, Henry F. Fradella, C. Totten, Gang Lee
The U.S. Supreme Court’s decision in Arizona v. Gant fundamentally altered the law governing police searches of vehicles incident to the arrest of a vehicle occupant. To date, there has been no empirical examination of Gant’s impact on line officers. The present study does so using data from a survey of police officers that assessed their ability to apply Gant. Although 93 percent of the officers had been taught Gant and 77 percent had received training within the twelve months prior to completing the survey, 67 percent incorrectly applied Belton, rather than Gant. Moreover, nearly half of the sample were missing constitutionally permissible opportunities to search the vehicle under either of Gant’s two prongs. Concerningly, officers who had received recent training on vehicle searches were significantly less likely to identify correct search protocols under Gant’s evidence prong. The implications of these findings are discussed.
美国最高法院在亚利桑那州诉甘特案中的裁决从根本上改变了有关警察搜查车辆事件的法律,逮捕车辆乘员。迄今为止,还没有实证研究甘特对一线官员的影响。目前的研究使用了一项对警官的调查数据来评估他们应用甘特的能力。尽管93%的警官学过甘特,77%的警官在完成调查前的12个月内接受过培训,但67%的警官错误地使用了贝尔顿,而不是甘特。此外,近一半的样本错过了宪法允许的在甘特的两个尖头下搜查车辆的机会。令人关切的是,最近接受过车辆搜查训练的警官在甘特的证据标准下识别正确搜查协议的可能性要小得多。讨论了这些发现的意义。
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引用次数: 0
The Concepts of Truth and Fairness in Thai Criminal Procedure 泰国刑事诉讼中的真实与公平观念
IF 0.4 Q2 Social Sciences Pub Date : 2021-01-01 DOI: 10.1525/NCLR.2021.24.1.59
A. Chitov
This study looks at the principles that shape the structure of the whole of Thai criminal procedure law. It examines how the search for truth is attempted to be reconciled with the idea of a fair trial or procedural fairness. The conflict between the search for truth on the one hand and guaranteeing procedural rights of the accused on the other is particularly problematic in the Thai context. Thai law affirms that some evidence cannot be admissible if it is obtained by a violation of certain procedural norms. At the same time, the law allows judges to admit some unlawfully obtained evidence in the interest of justice. The conflict between various legal norms cannot be solved without permitting judges to exercise broad discretion in striking the right balance between discovering the true facts and protecting the rights of the accused. Thai legal education and practice does not allow a broad judicial discretion in accepting or rejecting evidence on the grounds that it was obtained unlawfully. As a result, there is an attempt to build a sophisticated system of rules to accommodate the interests of justice and fairness in different situations. This system, however, lacks clarity and consistency.
本研究着眼于塑造整个泰国刑事诉讼法结构的原则。它考察了寻求真相是如何试图与公平审判或程序公平的理念相协调的。在泰国的情况下,一方面寻求真相,另一方面保障被告的程序权利之间的冲突尤其成问题。泰国法律申明,如果某些证据是通过违反某些程序规范获得的,则不能接受。同时,法律允许法官为了司法公正而承认一些非法获得的证据。如果不允许法官行使广泛的自由裁量权,在发现真实事实和保护被告权利之间取得适当的平衡,各种法律规范之间的冲突就无法解决。泰国的法律教育和实践不允许在以非法获得证据为由接受或拒绝证据方面有广泛的司法自由裁量权。因此,人们试图建立一个复杂的规则体系,以适应不同情况下的正义和公平利益。然而,这一体系缺乏明确性和一致性。
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引用次数: 0
Transferred Intent in Italian Criminal Law 意大利刑法中的意旨转移
IF 0.4 Q2 Social Sciences Pub Date : 2020-11-27 DOI: 10.1525/nclr.2020.23.4.636
Tom Trinchera
This article examines the rule on transferred intent under Italian criminal law and argues that such rule does not only concern the mental element of the crime (mens rea), as generally considered in both Italian and Anglo-American literature, but also involves a multiple offense scenario in which a willful offense attempted against the intended target coexists with a negligent one actually carried out against an unintended victim. According to the rule on transferred intent, the two offenses should be considered as a single offense for the purpose of sentencing.
本文考察了意大利刑法中关于意图转移的规则,并认为这一规则不仅涉及意大利和英美文学中普遍认为的犯罪的心理要素(犯罪意图),而且还涉及多重犯罪情景,在这种情况下,针对预期目标的故意犯罪与针对意外受害者的实际过失犯罪并存。根据意图转移规则,在量刑时应将这两种犯罪视为一种犯罪。
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引用次数: 0
Reading Between the Text(s) - Interpreting Emoji and Emoticons in the Australian Criminal Law Context 文本之间的阅读——在澳大利亚刑法语境中解读表情符号和表情符号
IF 0.4 Q2 Social Sciences Pub Date : 2020-11-27 DOI: 10.1525/nclr.2020.23.4.655
M. Bromberg, Larissa Welmans, Cassandra Lee
Emoji and emoticons are becoming increasingly prevalent in criminal law cases around the world, although some judicial officers currently have no experience of them or of interpreting them. This article offers an in-depth examination of the area of emoji and emoticons in criminal law. It provides an overview of emoticons and emoji, including their history, their global popularity of use in modern communication, and their particular interpretative difficulties. It canvasses and analyzes international criminal cases involving emoji and emoticons. It provides a valuable table that lists each such case in which emoji and emoticons are present. In reviewing the existing international case law, this article identifies the handful of cases in which judicial officers have attempted to interpret emoji and emoticons in the criminal law context. However, it also demonstrates the absence of clear guidance on methods of interpreting emoji and emoticons. Most importantly, this article aims to assist filling this void by proffering important recommendations regarding interpreting emoji and emoticons in the criminal law context.
表情符号和表情符号在世界各地的刑法案件中越来越普遍,尽管一些司法官员目前没有使用或解释它们的经验。本文对刑法中的表情符号和表情符号领域进行了深入的研究。它概述了表情符号和表情符号,包括它们的历史,它们在现代交流中的全球流行程度,以及它们特殊的解释困难。它调查和分析涉及表情符号和表情符号的国际刑事案件。它提供了一个有价值的表格,列出了每一个表情符号和表情符号出现的情况。在审查现有的国际判例法时,本文确定了司法人员试图在刑法背景下解释表情符号和表情符号的少数案例。然而,这也表明在解释表情符号和表情符号的方法上缺乏明确的指导。最重要的是,本文旨在通过提供有关在刑法背景下解释表情符号和表情符号的重要建议来帮助填补这一空白。
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引用次数: 3
Applying the Model Penal Code Insanity Defense to Sleepwalking Killers and Psychopaths 示范刑法典精神错乱辩护对梦游杀手和精神病患者的应用
IF 0.4 Q2 Social Sciences Pub Date : 2020-11-27 DOI: 10.1525/nclr.2020.23.4.471
April Xiaoyi Xu
The American legal system currently tends to excuse sleepwalking killers, particularly based on the involuntary act defense, more so than the insanity defense. By contrast, the law generally does not excuse psychopathic murderers. However, the status quo may not be the optimal or most just solution to this legal dilemma; depending on one’s philosophical beliefs regarding the tension between society’s interest and the accused’s rights, one can identify various flaws within the prevailing application of the insanity defense in cases involving sleepwalking and psychopathy. As the law is constantly evolving, there is space for growth in this area, especially with the advancement in neuroscience, which can offer more insight into sleepwalkers’ and psychopaths’ brains. In approaching the complex questions of whether and how the law should excuse sleepwalking killers and psychopaths from punishment, this article turns to relevant findings from neuroscience for support and focuses on one particular approach, that of the Model Penal Code (MPC) insanity defense. We begin with an overview of the relevant criminal law doctrine in contextualizing the MPC’s approach to insanity defense. We then apply the relevant MPC section, § 4.01, to the sleepwalking killer and psychopath contexts, bearing in mind relevant studies and findings in neuroscience and related scientific disciplines, as well as their limitations at this stage. Part of the analysis considers the U.S. Supreme Court’s latest insanity law decision, Kahler v. Kansas (2020), in relation to the subject matter of this article.
美国的法律体系目前倾向于为梦游杀手开脱,尤其是基于非自愿行为辩护,而不是精神错乱辩护。相比之下,法律一般不会为精神变态的杀人犯开脱。然而,现状可能不是解决这一法律困境的最佳或最公正的办法;根据一个人对社会利益和被告权利之间的紧张关系的哲学信仰,一个人可以在涉及梦游和精神病的案件中普遍适用的精神错乱辩护中发现各种缺陷。随着法律的不断发展,这一领域还有增长的空间,特别是随着神经科学的进步,它可以为梦游者和精神病患者的大脑提供更多的见解。在探讨法律是否以及如何为梦游杀手和精神病患者开脱惩罚的复杂问题时,本文转向神经科学的相关发现寻求支持,并着重于一种特殊的方法,即《模范刑法典》(MPC)精神错乱辩护。我们首先概述了MPC在精神错乱辩护方面的相关刑法原则。然后,我们将相关的MPC部分,§4.01,应用于梦游杀手和精神病患者的背景,记住神经科学和相关科学学科的相关研究和发现,以及它们在这个阶段的局限性。部分分析考虑了美国最高法院最新的精神错乱法判决,卡勒诉堪萨斯州(2020年),与本文的主题有关。
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引用次数: 0
A Truce in Criminal Law’s Distributive Principle Wars? 刑法分配原则之战的休战?
IF 0.4 Q2 Social Sciences Pub Date : 2020-11-27 DOI: 10.1525/nclr.2020.23.4.565
P. Robinson
Crime-control utilitarians and retributivist philosophers have long been at war over the appropriate distributive principle for criminal liability and punishment, with little apparent possibility of reconciliation between the two. In the utilitarians’ view, the imposition of punishment can be justified only by the practical benefit that it provides: avoiding future crime. In the retributivists’ view, doing justice for past wrongs is a value in itself that requires no further justification. The competing approaches simply use different currencies: fighting future crime versus doing justice for past wrongs. It is argued here that the two are in fact reconcilable, in a fashion. We cannot declare a winner in the distributive principle wars but something more like a truce. Specifically, good utilitarians ought to support a distributive principle based upon desert because the empirical evidence suggests that doing justice for past wrongdoing is likely the most effective and efficient means of controlling future crime. A criminal justice system perceived by the community as conflicting with its principles of justice provokes resistance and subversion, whereas a criminal justice system that earns a reputation for reliably doing justice is one whose moral credibility inspires deference, assistance, and acquiescence, and is more likely to have citizens internalize its norms of what is truly condemnable conduct. Retributivists ought to support empirical desert as a distributive principle because, while it is indeed distinct from deontological desert, there exists an enormous overlap between the two, and it seems likely that empirical desert may be the best practical approximation of deontological desert. Indeed, some philosophers would argue that the two are necessarily the same.
控制犯罪的功利主义者和报复主义哲学家长期以来一直在为刑事责任和惩罚的适当分配原则而争论不休,两者之间几乎没有明显的和解可能性。在功利主义者看来,惩罚的实施只有在它提供的实际利益——避免未来的犯罪——的情况下才是正当的。在报应主义者看来,为过去的错误伸张正义本身就是一种价值,不需要进一步的辩护。竞争的方法只是使用不同的货币:打击未来的犯罪与为过去的错误伸张正义。本文认为,在某种程度上,这两者实际上是可以调和的。在分配原则的战争中,我们不能宣布谁是赢家,而只能宣布休战。具体地说,优秀的功利主义者应该支持基于公平的分配原则,因为经验证据表明,为过去的不法行为伸张正义可能是控制未来犯罪的最有效和最有效的手段。一个被社会认为与正义原则相冲突的刑事司法系统会引发反抗和颠覆,而一个以可靠地伸张正义而闻名的刑事司法系统,其道德信誉会激发人们的顺从、帮助和默许,并且更有可能让公民内化其规范的真正应受谴责的行为。报应主义应该支持经验沙漠作为一种分配原则,因为尽管它确实与义务论沙漠不同,但两者之间存在着巨大的重叠,而且似乎经验沙漠可能是义务论沙漠的最佳实践近似。事实上,一些哲学家会认为这两者必然是相同的。
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引用次数: 1
The Transformational Function of the Criminal Law 论刑法的转换功能
IF 0.4 Q2 Social Sciences Pub Date : 2020-11-27 DOI: 10.1525/nclr.2020.23.4.584
A. Corda
It is often maintained that the criminal law is supposed to intervene only when a certain social norm has become so significant within a given society to justify its protection by means of penal sanctions. The criminal law is thus thought to mirror a hierarchy of values it neither shapes nor contributes to building; rather, it is required to stand at least one step behind social change. This article challenges this view, presenting a normative account that contributes to the debate on what is permissible for the criminal law to try to achieve. It does so by defining and theoretically substantiating the “transformational function” of the criminal law. The term refers to the use of criminalization and punishment to change, rather than merely reflect, social norms, attitudes, and beliefs alongside, and combined with, non-penal policy-making tools in contested domains. Four operational conditions of legitimacy are identified and discussed. Within such operational boundaries, this article contends that the criminal law can play an important role in promoting social change—i.e., the establishment of new norms and values—as well as helping the coagulation of norms, attitudes, and beliefs not yet fully entrenched within the societal body.
人们常常认为,只有当某种社会规范在一个特定社会中变得如此重要,以至于有理由通过刑事制裁来保护它时,刑法才应该进行干预。因此,刑法被认为反映了一种既不塑造也不有助于建立的价值观等级;相反,它需要至少落后于社会变革一步。这篇文章挑战了这一观点,提出了一个规范性的解释,有助于辩论什么是允许刑法试图实现的。它通过对刑法的“转换功能”进行界定和理论论证来实现这一目标。该术语指的是使用刑事定罪和惩罚来改变,而不仅仅是反映,社会规范,态度和信仰,以及在有争议的领域与非刑事政策制定工具相结合。确定并讨论了合法性的四种操作条件。在这样的运作范围内,本文认为刑法可以在促进社会变革方面发挥重要作用,即:建立新的规范和价值观,以及帮助凝聚尚未在社会团体中完全根深蒂固的规范、态度和信仰。
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引用次数: 1
Defense of a Basic Voluntary Act Requirement in Criminal Law from Philosophies of Action 从行为哲学看刑法中自愿行为的基本要件
IF 0.4 Q2 Social Sciences Pub Date : 2020-11-27 DOI: 10.1525/NCLR.2020.23.4.437
J. Child
When looking to identify the basic ingredients of criminal responsibility, reference is standardly made to a voluntary act requirement (VAR). We blame a defendant (D) for what she has done or (perhaps) failed to do where such doing or failing to do is proscribed by law; we do not punish mere thoughts or character. However, despite the continued appeal of the VAR in abstract principle, the precise definitions and restrictions entailed within it are not always clear, and its usefulness in preventing inappropriate criminalisation is openly (and in many cases correctly) challenged. Principally, and crucially, the VAR has received sustained attack in recent years from critics within the philosophies of action, highlighting its descriptive and normative shortcomings. It is contended that such criticism is misplaced. This article provides defence to a stripped-back definition of the VAR, distinguishing the general definition of action in philosophy from the definition of action within the criminal law, and seeking to identify and preserve a doctrinally workable model of the latter.
在寻求确定刑事责任的基本成分时,通常会参考自愿行为要求(VAR)。我们对被告(D)所做的或(可能)未做的行为进行指责,而此类行为或未做行为是法律所禁止的;我们不会仅仅惩罚思想或性格。然而,尽管VAR在抽象原则上一直具有吸引力,但它所包含的精确定义和限制并不总是明确的,它在防止不当刑事定罪方面的作用也受到公开(在许多情况下是正确的)挑战。最重要的是,VAR近年来受到了来自行动哲学内部批评者的持续攻击,突出了其描述性和规范性的缺陷。有人认为,这种批评是错误的。本文为VAR的精简定义提供了辩护,将哲学中的一般行为定义与刑法中的行为定义区分开来,并试图确定和保留后者在理论上可行的模型。
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引用次数: 1
Editor’s Introduction 编辑器的介绍
IF 0.4 Q2 Social Sciences Pub Date : 2020-11-27 DOI: 10.1525/nclr.2020.23.4.435
Carrie Leonetti
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引用次数: 0
Strict Liability and the Purpose of Punishment 严格责任与处罚目的
IF 0.4 Q2 Social Sciences Pub Date : 2020-11-27 DOI: 10.1525/nclr.2020.23.4.516
Monika Simmler
The main argument of this article is that only a clear conception of the purpose of punishment can orient the debate about the positioning of the fault requirement and strict liability doctrine in criminal law. A categorization of the varieties of strict liability offenses, as well as an adequate model for normatively appraising the legitimacy of these deviations from the principle of culpability, should be based on a systematic analysis of criminal law’s role and function in society. As is argued, the original purpose of criminal law consists in the stabilization of norms by means of punishment. Taking up that finding, this work provides a detailed view of the distinct mechanism of placing blame, allowing for the presentation of a clear scheme for categorizing and appraising the variety of strict liability offenses. It is stated that offenses substantively deviating from the standard mechanism of placing blame can potentially result in over-punishment, which is dysfunctional and not justifiable. Properly placing blame is essential for the appropriate fulfillment of criminal law’s purpose in society. Therefore, the claim of the principle of culpability and critiques of strict liability doctrine find their basis not only in considerations of fairness, but also social necessity. By presenting a systematic categorization of strict liability offenses, this research offers a clear approach to a frequently discussed doctrine and establishes new arguments against its legitimacy.
本文的主要论点是,只有明确刑罚目的的概念,才能为罪责要件和严格责任原则在刑法中的定位之争指明方向。严格责任犯罪的种类分类,以及对这些偏离罪责原则的合法性进行规范评价的适当模型,应以对刑法在社会中的作用和功能的系统分析为基础。如前所述,刑法的最初目的在于通过惩罚手段来稳定规范。根据这一发现,这项工作提供了一种独特的指责机制的详细观点,从而可以提出一种明确的计划,对各种严格责任罪行进行分类和评价。文章指出,实质上偏离标准的归咎机制的犯罪行为可能导致惩罚过重,这是不正常的,也是不合理的。适当的罪责是刑法在社会中合理实现其目的的必要条件。因此,罪责原则的主张和对严格责任主义的批判不仅有公平考虑的依据,也有社会必要性的依据。通过对严格责任犯罪进行系统的分类,本研究为一个经常被讨论的理论提供了一个清晰的方法,并建立了反对其合法性的新论点。
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引用次数: 3
期刊
New Criminal Law Review
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