LSN: Procedure (Criminal Procedure) (Topic)最新文献

{"title":"The Principles of Fair Trial","authors":"Mohd Sahil","doi":"10.2139/ssrn.3903240","DOIUrl":"https://doi.org/10.2139/ssrn.3903240","url":null,"abstract":"“Lex uno ore omnes alloquitur” which means that everyone is equal before the eyes of the law which is an important principle which forms the basis of judicial proceedings across the world. The law treats everyone equally and this principle is enshrined in various provisions of the Indian Constitution. Article 14 of the Indian Constitution exclusively deals with the Right to Equality. Trials are an indispensable part of any proceeding. Conducting fair trails is an important aspect of the law which ensures equality. The concept of a fair trial is not just a right provided in our country but it is also guaranteed by various other legislations all over the world. Article 6 of the European Convention on Human Rights deals with the Right to a fair trial. According to this Article, everyone is entitled to a fair and public hearing within a reasonable time. The trial must be conducted by an independent and impartial tribunal established by law.","PeriodicalId":268118,"journal":{"name":"LSN: Procedure (Criminal Procedure) (Topic)","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127517418","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}

{"title":"A Note on Optimal Sentencing with Recurring Crime and Adjudication Errors","authors":"Alice Guerra, T. Nilssen","doi":"10.2139/ssrn.3741566","DOIUrl":"https://doi.org/10.2139/ssrn.3741566","url":null,"abstract":"We analyze optimal sentence length for recurring crimes in the face of adjudication errors. We develop an infinite-horizon model where offenders are habitual---they repeat crimes whenever free. If apprehended, criminals may be wrongfully acquitted. Similarly, innocent persons may be apprehended and wrongfully convicted. The key finding is that, under reasonable conditions, the two types of adjudication errors have opposite effects on optimum sentencing. Sentence length should decrease with the risk of wrongful convictions, and increase with the risk of wrongful acquittals.","PeriodicalId":268118,"journal":{"name":"LSN: Procedure (Criminal Procedure) (Topic)","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133052282","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}

{"title":"Principle of the Speed of Proceedings and Right to an Adequate Length of the Criminal Proceedings: European Context and Czech Reflection","authors":"Jiří Mulák","doi":"10.2139/ssrn.3849244","DOIUrl":"https://doi.org/10.2139/ssrn.3849244","url":null,"abstract":"The paper deals with the principle of the speed of proceedings and the right to an adequate length of the proceedings. In the paper presented, attention is paid at first to the legal framework at both European and national levels, approach of the European Court of Human Rights to assessment of an inadequate length of criminal proceedings, followed by the principle of the speed of criminal proceedings in the Code of Criminal Procedure – its position in the system of fundamental principles, and to selected amendments whose aim was to accelerate criminal proceedings. Great attention is paid to individual provisions of the Czech Code of Criminal Procedure which should contribute to fast and effective criminal proceedings.","PeriodicalId":268118,"journal":{"name":"LSN: Procedure (Criminal Procedure) (Topic)","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134510732","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}

{"title":"Capital Forfeiture","authors":"Gilad Miron","doi":"10.2139/ssrn.3728707","DOIUrl":"https://doi.org/10.2139/ssrn.3728707","url":null,"abstract":"This work deals with a constitutional issue regarding the proprietary protection of a defendant or suspect in a criminal proceeding. Naturally, in today's constitutional era, we are concerned with the balance between the public and state interests in combating the criminality of corruption, money laundering and bribery by forfeiture of property acquired and obtained through criminal and economic offenses, and the protection of the constitutional right of the perpetrator or a third party claiming rights to property decided by state authorities by court order. In general, the aforementioned balance is unorthodox because it folds criminal aspects inherent in the basic purpose of combating crime, money laundering and corruption, and 'civil' aspects of protecting the property that has been explicitly anchored in the Basic Law: human dignity and liberty, and raising the right to the status of constitutional right. This means that a person whose property is forfeited can claim protection of his right to property that is forfeiture and that forfeiture is an unreasonable and disproportionate act. In these circumstances, it is possible that the decision is found in balancing the rationales underlying the above principles or rights that are struggling for the premiere. On the one hand, it is in the public interest to fight delinquency through economic means in order to achieve deterrence and punishment among the public and criminal bodies (criminal bodies) and the protection of an individual's proprietary right to his property. <br><br>In general, when criminal suspicion arises and the existence of grounds for forfeiture of property, such as property obtained in the past of drug trafficking or money laundering and/or as part of a fight against a criminal organization, the state is entitled to require the court to issue a temporary forfeiture order for the property involved in criminal matters until the sentence is handed down in which the court will decide definitively regarding the forfeiture of the seized and forfeiture of property. Forfeiture is expressed in real assets and other assets such as bank accounts, including the interest that grew on the forfeiture fund.","PeriodicalId":268118,"journal":{"name":"LSN: Procedure (Criminal Procedure) (Topic)","volume":"123 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116715365","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}

{"title":"The New Amy, Vicky, and Andy Act: A Positive Step Towards Full Restitution for Child Pornography Victims","authors":"P. Cassell, James R. Marsh","doi":"10.2139/SSRN.3317733","DOIUrl":"https://doi.org/10.2139/SSRN.3317733","url":null,"abstract":"Providing restitution to victims of child pornography crimes has proven to be a challenge for courts across the country. Child pornography is often widely disseminated to countless thousands of criminals who have a prurient interest in such materials. While the victims of child pornography crimes often have significant financial losses from the crimes (such as the need for long term psychological counseling), allocating a victim’s losses to any particular criminal defendant is problematic. \u0000 \u0000Five years ago, the Supreme Court gave its answer on how to resolve this issue with its ruling in Paroline v. United States. Interpreting a restitution statute enacted by Congress, the Court concluded that in a child pornography prosecution, a restitution award from a particular defendant is only appropriate to the extent that it reflects “the defendant’s relative role in the causal process that underlies the victim’s general losses.” \u0000 \u0000In the ensuing years, lower courts have struggled to implement this holding. Just recently, Congress stepped in to ensure that victims will receive appropriate restitution. In November 2018, the Senate and House resolved their differences in how to handle the issue, passing the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 (or “AVAA” for short). President Trump signed the legislation into law on December 7, 2018. \u0000 \u0000In this article, we describe the impact of this important new legislation. We set the stage by describing the need for restitution for child pornography victims, using the story of the lead victim in the Act (“Amy”) as an illustration of why restitution is needed. We then turn to the problematic legal regime that was created by the Supreme Court’s Paroline decision, noting some of the confusion in the lower courts following the ruling. Against this backdrop, we then discuss the AVAA, explaining how it will be a useful step forward for victims of these crimes. One even more important possibility is that the Act could set a precedent for expanding restitution for victims in the future.","PeriodicalId":268118,"journal":{"name":"LSN: Procedure (Criminal Procedure) (Topic)","volume":"185 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131985335","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}

{"title":"In Re: Petition for Appointment of a Prosecutor Pro Tempore by Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4 : Petition for Appointment of Prosecutor Pro Tempore","authors":"P. Cassell, Heidi Nestel, B. Warr, Margaret Garvin, Gregory Ferbrache, Aaron H. Smith","doi":"10.2139/SSRN.3271926","DOIUrl":"https://doi.org/10.2139/SSRN.3271926","url":null,"abstract":"This is a petition filed in the Utah Supreme Court on behalf of four women (Jane Does 1, 2, 3, and 4) who were sexually assaulted, and yet the public prosecutor with jurisdiction refused to file criminal charges against their attackers. The petition relies on Utah Constitution, article VIII, § 16, which anticipates situations where a crime victim might need her own avenue for initiating criminal prosecution. Accordingly, this constitutional provision provides that “[i]f a public prosecutor fails or refuses to prosecute, the Supreme Court shall have power to appoint a prosecutor pro tempore.” Indeed, to underscore the fact that other ways to initiate a prosecution are available, the provision specifically states that public prosecutors in this state shall have the “primary responsibility” for prosecuting crimes. “Primary” responsibility is, of course, not the same as exclusive responsibility. \u0000This petition explains why the Utah Supreme Court to use its power to appoint a prosecutor, both to bring justice for these four particular sexual assault victims and, more broadly, to help protect a class of victims – women and girls who have been sexually assaulted – who are under-protected by current prosecutorial practices in our country. The petition argues that the Court can address systemic under-prosecution of rape cases through its power under the Utah Constitution, not only under the Court-Appointed Prosecutor Provision, art. VIII, § 16, but also to protect rights contained in Utah’s Victims’ Rights Amendment, art. I, § 28, the Utah Uniform Operation of Laws Clause, art. I, § 24, and the Utah Equal Rights Provision, art. IV, § 1. It also has power to act through the federal Equal Protection Clause, U.S. Const., amend. XIV. \u0000The petition concludes by asking for the Court to appoint a prosecutor to prosecute the sexual assaults committed against the four Jane Does.","PeriodicalId":268118,"journal":{"name":"LSN: Procedure (Criminal Procedure) (Topic)","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122902211","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}

{"title":"Presumption of Innocence and Deterrence","authors":"Marie Obidzinski, Yves Oytana","doi":"10.2139/ssrn.3202230","DOIUrl":"https://doi.org/10.2139/ssrn.3202230","url":null,"abstract":"Prodefendant rules in criminal procedure, such as the presumption of innocence, are usually suspected of undermining deterrence. We investigate the soundness of this claim in a model in which criminal-law enforcers decide about their investigating effort under either the presumption of innocence or the presumption of guilt. We show, under some conditions, that the presumption of innocence may minimize the social costs of crime, when compared to the presumption of guilt, by inducing the law enforcer to increase investigative efforts, thereby improving deterrence.","PeriodicalId":268118,"journal":{"name":"LSN: Procedure (Criminal Procedure) (Topic)","volume":"6 2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126058813","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}

{"title":"When Do the Innocent Plead Guilty?","authors":"Alex Lundberg","doi":"10.2139/ssrn.3100845","DOIUrl":"https://doi.org/10.2139/ssrn.3100845","url":null,"abstract":"The implications of a strategic model of plea bargaining are threefold. First, prosecutors induce the innocent to plead guilty when trial costs are high. Second, plea bargaining unequivocally increases wrongful convictions. Lastly, police share an important role in minimizing wrongful convictions. Law enforcement cannot rely on prosecutors to sort the guilty from the innocent.","PeriodicalId":268118,"journal":{"name":"LSN: Procedure (Criminal Procedure) (Topic)","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121509977","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}

{"title":"Optimal Non-Prosecution Agreements and the Reputational Effects of Convictions","authors":"Murat C. Mungan","doi":"10.2139/ssrn.3041967","DOIUrl":"https://doi.org/10.2139/ssrn.3041967","url":null,"abstract":"Abstract Many claim that non-prosecution agreements (NPAs) reduce deterrence by mitigating the reputational sanctions that would otherwise be imposed on corporations through plea-bargains. They suggest, based on this claim, that NPAs ought to be used infrequently. This article presents a signalling model wherein reputational sanctions emerge as a result of noisy signals produced through a firm's prosecution. It is shown that, if, as claimed, NPAs provide third parties with less information regarding a firm's wrongdoings, then firms would be willing to pay an NPA premium to avoid convictions. Thus, the NPA premium can be chosen to induce only those firms which would otherwise be over-deterred to accept NPAs. Therefore, offering NPAs with high premia is superior to the option of not using NPAs. The article also characterizes optimal NPAs, and identifies relationships between deterrence; frequency of NPA use; firms’ characteristics; and NPA terms. It explains how these relationships can be exploited to form and test hypotheses on whether convictions obtained through plea-bargains cause greater reputational harm to firms than NPAs.","PeriodicalId":268118,"journal":{"name":"LSN: Procedure (Criminal Procedure) (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129607316","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}

{"title":"Unmarked? Criminal Record Clearing and Employment Outcomes","authors":"Jeffrey Selbin, J. Mccrary, Joshua Epstein","doi":"10.2139/ssrn.2486867","DOIUrl":"https://doi.org/10.2139/ssrn.2486867","url":null,"abstract":"An estimated one in three American adults has a criminal record. While some records are for serious offenses, most are for arrests or relatively lowlevel misdemeanors. In an era of heightened security concerns, easily available data, and increased criminal background checks, these records act as a substantial barrier to gainful employment and other opportunities. Harvard sociologist Devah Pager describes people with criminal records as “marked” with a negative job credential. In response to this problem, lawyers have launched unmarking programs to help people take advantage of legal record clearing remedies. We studied a random sample of participants in one such program to analyze the impact of the record clearing intervention on employment outcomes. Using methods to control for selection bias and the effects of changes in the economy in our data, we found evidence that: (1) the record clearing intervention boosted participants’ employment rates and average real earnings, and (2) people sought record clearing remedies after a period of suppressed earnings. More research needs to be done to understand the durability of the positive impact and its effects in different local settings and labor markets, but these findings suggest that the record clearing intervention makes a meaningful difference in employment outcomes for people with criminal records. The findings also suggest the importance of early intervention to increase employment opportunities for people with criminal records. Such interventions might include more legal services, but they might also include record clearing by operation of law or another mechanism that does not put the onus of unmarking on the person with a criminal record.","PeriodicalId":268118,"journal":{"name":"LSN: Procedure (Criminal Procedure) (Topic)","volume":"276 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133366225","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}