Criminal Procedure eJournal最新文献

{"title":"Race and Reasonable Suspicion","authors":"Ric Simmons","doi":"10.2139/ssrn.3696453","DOIUrl":"https://doi.org/10.2139/ssrn.3696453","url":null,"abstract":"The current political moment requires us to rethink the ways that race impacts policing. Many of the solutions will be political in nature, but legal reform is necessary as well. Law enforcement officers have a long history of considering a suspect’s race when conducting criminal investigations. The civil rights movement and the progressive criminal justice decisions of the Warren Court mitigated the explicit use of race as a factor, but there is ample evidence that many modern police officers still openly or implicitly use race to guide their investigative decisions. \u0000 \u0000This article examines and critiques how courts have historically analyzed the question of race in the context of determining reasonable suspicion or probable cause. There are two constitutional provisions that regulate whether and how the police can use race as a factor to meet the legal standards. Under the Fourth Amendment, police can only use race as a factor if race is relevant to the likelihood that the suspect is engaged in criminal activity. In theory, there could be a relationship between race and criminal activity in a narrow subset of cases. But in reality, police and courts rely on dubious anecdotal data to support this relationship, and conduct flawed statistical analysis to calculate the strength of the relationship. Also, much of the data that exists is tainted by decades of biased policing and prosecution practices. Because there are a small subset of cases in which a correlation between race and crime may exist; we need a legal reform that requires prosecutors to demonstrate the existence and strength of the correlation through empirical data rather than through the subjective experiences of law enforcement. \u0000 \u0000Under the Equal Protection Clause, police officers may only explicitly use race to support individualized suspicion if the use of race is narrowly tailored to serve a compelling state interest and there is no race-neutral factor that would also satisfy that interest. Although one would expect this standard to severely limit the use of race in criminal investigations, courts have allowed police to use race in a surprising number of cases. In many cases, courts do not even find that the explicit use of race triggers strict scrutiny. In other cases, when so-called race neutral factors trigger disparate impact, the evidentiary burden shifts to criminal defendants to prove that the race-neutral factor was applied with discriminatory purpose, a standard which is nearly impossible to establish. Even when strict scrutiny is triggered, courts have often been willing to conclude that crime control is a compelling state interest and that the use of race is narrowly tailored to meet that interest. This article argues that courts in criminal cases must apply an Equal Protection test identical to the test used in civil cases in order to limit the use of race in criminal investigations, thereby limiting the practice to the rare instances when it is truly necessary.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116730660","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":"Auto-Mobile Accident Control and Nigeria Federal Road Safety Corps: A Critical Analysis of the Commercial Drivers’ Experience","authors":"Emmanuel Uzuegbu-Wilson","doi":"10.2139/ssrn.3694888","DOIUrl":"https://doi.org/10.2139/ssrn.3694888","url":null,"abstract":"Road traffic accidents lead to death and disability as well as financial cost to both society and the individual involved. The causes of road traffic accidents are not just human error or driver’s negligence. Unfortunately, Nigerian highways are arguably one of the worst and most dangerous in the world. This paper therefore provides a critical analysis of the commercial drivers’ assessment of auto-mobile accident control and Nigeria Federal Road Safety Corps. A sample of three hundred commercial drivers purposively selected from fifteen motor parks in Abeokuta, Ijebu-Ode and Sagamu, Ogun State took part in this study. A self-developed instrument was used for collection of data. Four research questions were raised and tested. Data collected was analyzed using descriptive statistics and Multiple Regression Analysis. Findings revealed that the roles of the FRSC on auto-mobile accident control and management was perceived good by the drivers. Also, the FRSC public enlightenment programme to an extent has enhanced positive attitude among road users, while the total variance accounted for by the FRSC public image on the behavior of commercial vehicle drivers is 15.1% (R2 = 0.151, F = 4.712, P > .05). This study concluded that road traffic crashes are predictable, could be prevented, and that whatever change we are clamoring for must start from every one of us – drivers, law enforcement agents, and government alike.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115814686","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":"Legislating for Profit and Optimal Eighth Amendment Review","authors":"Murat C. Mungan, Thomas J. Miceli","doi":"10.2139/ssrn.3582661","DOIUrl":"https://doi.org/10.2139/ssrn.3582661","url":null,"abstract":"We derive a profit maximizing legislator's decisions to criminalize and punish offenses, and compare them to the optimal scope of criminalization and punishment. A profit maximizing legislator overcriminalizes and overpunishes all criminalized acts when the degree to which it internalizes harms from crimes increases proportionally with the harm from crime until it fully internalizes the harms from the most severe crimes. An analysis of Eighth Amendment review, in the form of an upper bound on the fine that the legislator may impose, reveals that in addition to reducing the fines imposed by the legislator down to optimal levels, there are gains to imposing strict upper bounds for low harm crimes to remove the legislator's incentives to criminalize these acts in the first place. These results provide a rationale for asymmetric judicial review wherein upper bounds are imposed on punishment, but not lower bounds.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115697638","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":"Court-Appointed Lawyer in the Criminal Trial","authors":"Silviu-Ștefan Petriman","doi":"10.2139/ssrn.3388111","DOIUrl":"https://doi.org/10.2139/ssrn.3388111","url":null,"abstract":"The article presents a few issues about the importance and necessity of a court-appointed lawyer in the criminal trial. In order to secure the right to defence, if the suspect or defendant has not appointed a lawyer to represent his/her interests, the judicial body has the obligation to take measures in order to appoint a public defender. Therefore, the protection of such rights must be material and objective, not only theoretical and illusory. But the appointment of a lawyer only is not enough to provide effective assistance. The public defender is appointed on written demand of court, justice of peace, preliminary chamber judge, criminal investigation or search body, bar council. The suspect or defendant is not allowed to elect a public defender. If appointed, the public defender has the obligation to provide legal assistance less when there is a conflict of interest between the lawyer or a suspect or defendant. This measure is determined both for consolidating the idea of fair, transparent justice and for securing a fair trial to the individuals criminally accused.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125021791","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 Relation between Young Children's False Response Latency, Executive Functioning, and Truth-Lie Understanding","authors":"Shanna Williams, Elizabeth C. Ahern, T. Lyon","doi":"10.2139/ssrn.3071025","DOIUrl":"https://doi.org/10.2139/ssrn.3071025","url":null,"abstract":"This study examined relations between children’s false statements and response latency, executive functioning, and truth-lie understanding in order to understand what underlies children’s emerging ability to make false statements. A total of 158 (2- to 5-year-old) children earned prizes for claiming that they were looking at birds even when presented with images of fish. Children were asked recall (“what do you have?”), recognition (“do you have a bird/fish?”), and outcome (“did you win/lose?”) questions. Response latencies were greater when children were presented with fish pictures than bird pictures, particularly when they were asked recall questions, and were greater for false statements than for true statements, again when children were asked recall questions. Older but not younger children exhibited longer latencies when making false responses to outcome questions, suggesting that younger children were providing impulsive desire-based responses to the outcome questions. Executive functioning, as measured by the day-night Stroop task, was not related to false statements. Children who were better at labeling statements on a truth-lie identification task were more proficient at making false statements. The results support the proposition that the cognitive effort required for making false statements is dependent upon the types of questions asked.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"506 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124503360","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":"Non-Conviction Based Forfeiture: Testing the Constitutionality of Section 17 of the Advanced Fee Fraud Act Against Critical Human Rights Scrutinies - Patience Jonathan v FRN in Perspective","authors":"Victor Ubaka Onyemelukwe","doi":"10.2139/ssrn.3326074","DOIUrl":"https://doi.org/10.2139/ssrn.3326074","url":null,"abstract":"The research advances the argument in favour of a constitutional legitimacy of civil or In Rem Forfeiture proceedings against properties and assets reasonably suspected to be proceeds of some unlawful activity. It exhaustively interrogates the constitutionality of Section 17, Advanced Fee Fraud Act, hereinafter referred to as the AFF Act, against critical human right challenges and concerns raised against Non Conviction based forfeiture, (NCBF) in the 2018 Court of Appeal decision in Dame Patience Jonathan v Federal Republic of Nigeria. The paper dissects the AFF Act from a constitutional blueprint perspective; interrogates the validity of the Court of Appeal decision and finally justifies and vindicates the AFF Act & the judicial verdict as constitutionally within the purview of the Framers’ intent.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"52 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129299284","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":"Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes","authors":"M. Stevenson","doi":"10.2139/ssrn.2777615","DOIUrl":"https://doi.org/10.2139/ssrn.2777615","url":null,"abstract":"Instrumenting for detention status with the bail-setting propensities of rotating magistrates I find that pretrial detention leads to a 13% increase in the likelihood of being convicted, an effect explained by an increase in guilty pleas among defendants who otherwise would have been acquitted or had their charges dropped. On average, those detained will be liable for $128 more in court fees and will receive incarceration sentences that are almost five months longer. Effects can be seen in both misdemeanor and felony cases, across age and race, and appear particularly large for first or second time arrestees. Case types where evidence tends to be weaker also show pronounced effects: a 30% increase in pleading guilty and an additional 18 months in the incarceration sentence. While previous research has shown correlations between pretrial detention and unfavorable case outcomes, this paper is the first to use a quasi-experimental research design to show that the relationship is causal.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123885881","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":"Rethinking the Ken Through the Lens of Psychological Science","authors":"J. Chin, W. Crozier","doi":"10.31228/osf.io/quwcv","DOIUrl":"https://doi.org/10.31228/osf.io/quwcv","url":null,"abstract":"Canadian courts regularly exclude psychological expert evidence that would explain the factors that produce mistaken eyewitness identifications and false confessions (two significant sources of wrongful convictions). Courts justify these exclusions on the basis that the evidence is not beyond the ken of the trier of fact-the psychologist would simply be describing an experience shared by the judge and jury. In this article, the authors suggest this reasoning rests on two fundamental misunderstandings of psychology: unconscious neglect and dispositionism. In other words, judges mistakenly assume the trier of fact understands the unconscious situational forces that distort memories and cause innocent people to confess. Moreover, judges appear to prefer dispositional evidence of some disorder or syndrome suffered by the accused or by the witness to the crime. After demonstrating evidence of such reasoning in several decisions, the authors suggest reforms based on a more nuanced understanding of human psychology.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126373430","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":"An Honest Politician's Guide to Deterrence: Certainty, Severity, Celerity, and Parsimony","authors":"M. Tonry","doi":"10.4324/9781351112710-13","DOIUrl":"https://doi.org/10.4324/9781351112710-13","url":null,"abstract":"Conclusions by economists and other social scientists about the deterrent effects of punishment were long discordant, economists finding that increases in punishment produce marginal deterrent effects and other social scientists typically finding either that they do not or that any effects found are too small and contingent on particular conditions to have policy relevance. That discordance has now ended, with both now accepting the “no, too small, or too contingent” finding. In Beccaria’s classic terms, there is now agreement that the effects of certainty and immediacy are much more important than the effects of severity. A substantial literature shows, however, that particular police deployments can reduce the incidence of crime. An important policy lesson is that resources should be diverted from imprisonment to policing. Another is that sentencing laws and practices should be substantially recast to reduce the severity of punishment and with that the sizes of the prison population and public spending on imprisonment. Saved funds can be used to reduce public spending generally, reallocate money to other unmet public needs, and invest more in policing and community corrections.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130509822","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":"Issues in CI Litigation: Balancing Informant Privilege with the Right to Full Answer and Defence","authors":"Chris De Sa, Hafeez S Amarshi","doi":"10.2139/SSRN.2960929","DOIUrl":"https://doi.org/10.2139/SSRN.2960929","url":null,"abstract":"A large number of search warrants in serious criminal cases rely on information derived from confidential informants. The court and the Crown have an obligation to protect the identity of the informant. This task has to be carefully balanced with the corresponding right to full answer and defence. Courts must be prepared to adopt a flexible approach to disclosure. Two tools have recently emerged in the caselaw that seek to strike this balance – the drafting of judicial summaries and exparte in camera proceedings. This paper further discusses current issues in informant litigation including the relevant distinctions between an agent and informant and defence efforts at piercing the privilege when innocence is at stake or fabrication of the informant is alleged.","PeriodicalId":273284,"journal":{"name":"Criminal Procedure eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128585192","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}