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The Oxford Handbook of Criminal Process最新文献

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Pretrial and Civil Detention of “Dangerous” Individuals in Common Law Jurisdictions 普通法适用范围内“危险”人士的审前拘留和民事拘留
The Oxford Handbook of Criminal Process Pub Date : 2019-04-14 DOI: 10.1093/oxfordhb/9780190659837.013.29
B. McSherry
{"title":"Pretrial and Civil Detention of “Dangerous” Individuals in Common Law Jurisdictions","authors":"B. McSherry","doi":"10.1093/oxfordhb/9780190659837.013.29","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780190659837.013.29","url":null,"abstract":"This chapter examines issues surrounding the pretrial and civil detention of “dangerous” individuals in common law jurisdictions. It first provides an overview of justifications for pretrial and civil detention schemes governing “dangerous” individuals as well as “pre-crime,” “pre-trial,” “post-crime,” and “post-sentence” schemes including risk assessment. In particular, it considers the pre-charge detention of suspected terrorists, civil detention of those with severe mental health problems and/or intellectual disabilities, remand and bail, unfitness to plead, and indefinite detention of recidivist offenders and of those found not guilty by reason of mental impairment. The chapter concludes with an analysis of criticisms of pretrial and civil detention schemes based on the grounds of human rights, due process, and the principle of proportionality.","PeriodicalId":375046,"journal":{"name":"The Oxford Handbook of Criminal Process","volume":"150 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115318641","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}
引用次数: 3
Conceptualizing the Victim within Criminal Justice Processes in Common Law Tradition 普通法传统刑事司法程序中的受害人概念
The Oxford Handbook of Criminal Process Pub Date : 2019-04-14 DOI: 10.1093/OXFORDHB/9780190659837.013.14
Marie Manikis
{"title":"Conceptualizing the Victim within Criminal Justice Processes in Common Law Tradition","authors":"Marie Manikis","doi":"10.1093/OXFORDHB/9780190659837.013.14","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190659837.013.14","url":null,"abstract":"This chapter considers the various philosophical underpinnings of victim involvement in the criminal justice processes of common law jurisdictions. It first examines the role of the victim in criminal justice processes, focusing on an individualized and private conception of the victim instead of the public interest and public harm as defined by these actors rather than themselves, as well as conceiving the victim as part of the public interest. It then discusses various types of victim participation in criminal justice processes before proceeding with an analysis of the relationship between victims and the actors of criminal justice processes, namely, law enforcement (police and prosecutors) and defendants. The article also proposes a theoretical framework that enables a pluralistic view of victim participation and concludes by highlighting how the foundation and conception of victim involvement can affect the relationship among victims, prosecutors, and the defendant.","PeriodicalId":375046,"journal":{"name":"The Oxford Handbook of Criminal Process","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123086039","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}
引用次数: 1
Trial Procedures in Response to Terrorism 应对恐怖主义的审判程序
The Oxford Handbook of Criminal Process Pub Date : 2019-04-14 DOI: 10.1093/OXFORDHB/9780190659837.013.36
Nicola McGarrity
{"title":"Trial Procedures in Response to Terrorism","authors":"Nicola McGarrity","doi":"10.1093/OXFORDHB/9780190659837.013.36","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190659837.013.36","url":null,"abstract":"This chapter examines trial procedures aimed at preventing and responding to terrorism, focusing on the influence of the executive branch of government upon terrorism prosecutions. It first provides an overview of the various fora in which a terrorism trial might be held, namely, trials conducted before the ordinary civilian criminal courts, specialist civilian terrorism courts, and military courts. It then considers the different categories of individuals and entities who might be tasked to decide the question of guilt or innocence, with emphasis on the abolition of trial by jury in favor of trial by judge alone. It also analyzes some of the modifications made to criminal trial procedure and the consequences of these in terms of executive control of the trial proceedings, taking into account open justice, access to legal representation, presumption of innocence, and procedural fairness.","PeriodicalId":375046,"journal":{"name":"The Oxford Handbook of Criminal Process","volume":"115 5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129048414","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}
引用次数: 0
Rights and Duties of Experts 专家的权利和义务
The Oxford Handbook of Criminal Process Pub Date : 2019-04-14 DOI: 10.1093/oxfordhb/9780190659837.013.13
J. Vuille
{"title":"Rights and Duties of Experts","authors":"J. Vuille","doi":"10.1093/oxfordhb/9780190659837.013.13","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780190659837.013.13","url":null,"abstract":"This chapter examines the rights and duties of experts, with emphasis on the rules governing the use of expert evidence in the non-adversary criminal justice systems most commonly found in Europe. It first provides an overview of relevant concepts and definitions relating to the position and role of the expert in criminal investigations and trials before discussing the process of hiring non-adversary experts and defining the questions put to them, the duties that befall the expert, and the issue of defense rights in connection with expert evidence. It also reviews the empirical literature about the evaluation of expert evidence by jurors and professional judges before proceeding with an analysis of what sanctions can be imposed when an expert commits a gross negligence or willfully misleads the court. Finally, it explores several issues that have arisen lately with regards to the use of expert evidence in criminal proceedings.","PeriodicalId":375046,"journal":{"name":"The Oxford Handbook of Criminal Process","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125971702","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}
引用次数: 0
Victim Rights in Civil Law Jurisdictions 民法管辖下的受害人权利
The Oxford Handbook of Criminal Process Pub Date : 2019-04-14 DOI: 10.1093/oxfordhb/9780190659837.013.15
Johanna Göhler
{"title":"Victim Rights in Civil Law Jurisdictions","authors":"Johanna Göhler","doi":"10.1093/oxfordhb/9780190659837.013.15","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780190659837.013.15","url":null,"abstract":"This chapter discusses the issue of victim rights in criminal justice processes in civil law jurisdictions, using supranationally applicable European Union law on victim rights as well as examples from domestic jurisdictions. It first considers the right of a victim to be informed about all rights and services in the context of a crime and how he/she can realize these rights before analyzing the obligation of states to protect the victim’s interests in privacy, bodily integrity, life, liberty, and security. It then explains procedural rights allowing the victim to actively participate and influence decision-making in criminal proceedings, the normative and theoretical foundation of a victim’s right to criminal prosecution and punishment, and a victim’s right to a review of a decision not to prosecute. It also examines how the victim’s role in criminal proceedings is conceived, and concludes with an overview of the concept of parallel justice for victims.","PeriodicalId":375046,"journal":{"name":"The Oxford Handbook of Criminal Process","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134534188","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}
引用次数: 3
Challenges of Trial Procedure Reform 审判程序改革面临的挑战
The Oxford Handbook of Criminal Process Pub Date : 2019-04-14 DOI: 10.1093/oxfordhb/9780190659837.013.22
H. Satzger, Frank Zimmermann
{"title":"Challenges of Trial Procedure Reform","authors":"H. Satzger, Frank Zimmermann","doi":"10.1093/oxfordhb/9780190659837.013.22","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780190659837.013.22","url":null,"abstract":"This chapter examines the impact of European Union legislation on trial procedure reforms in EU Member States’ national criminal justice systems. It first considers the harmonization of procedural rights in the EU from the initial concept of mutual recognition, focusing on the legislative efforts to strengthen the rights of suspects and accused persons as well as the rights of victims in the trial phase, before discussing European rules for the admissibility and assessment of evidence. It then uses the European Public Prosecutor’s Office (EPPO) as an example to highlight the potential impact of supranational institutions on national trial proceedings. It shows that the criminal trial itself is subject to European influences, noting that the EPPO-Regulation contains some rules for the preliminary question of where the trial will take place.","PeriodicalId":375046,"journal":{"name":"The Oxford Handbook of Criminal Process","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115707040","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}
引用次数: 0
Evidence Discovery and Disclosure in Common Law Jurisdictions 英美法系司法管辖区的证据开示与披露
The Oxford Handbook of Criminal Process Pub Date : 2019-04-14 DOI: 10.1093/oxfordhb/9780190659837.013.49
Darryl K. Brown
{"title":"Evidence Discovery and Disclosure in Common Law Jurisdictions","authors":"Darryl K. Brown","doi":"10.1093/oxfordhb/9780190659837.013.49","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780190659837.013.49","url":null,"abstract":"This chapter examines issues surrounding evidence disclosure and discovery in common law jurisdictions, focusing primarily on the disclosure regimes in England and Wales and in the United States. It first traces the evolution of pretrial evidence disclosure rules and provides an overview of common law approaches to disclosure obligations. In particular, it considers three kinds of evidence: evidence that the prosecution plans to present at trial to prove the defendant’s guilt, government evidence that does not favor the prosecution’s case, and evidence in possession of the defense that it plans to present at trial. The article proceeds by discussing the rationales and structural choices that adversarial justice systems are required to make in their disclosure schemes. One such choice is how much to empower judges, rather than the parties, to make decisions about disclosure requirements.","PeriodicalId":375046,"journal":{"name":"The Oxford Handbook of Criminal Process","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120964955","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}
引用次数: 0
Empirical Approaches to Criminal Procedure 刑事诉讼的实证方法
The Oxford Handbook of Criminal Process Pub Date : 2019-04-14 DOI: 10.1093/OXFORDHB/9780190659837.013.3
J. Hodgson, Y. Mou
{"title":"Empirical Approaches to Criminal Procedure","authors":"J. Hodgson, Y. Mou","doi":"10.1093/OXFORDHB/9780190659837.013.3","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190659837.013.3","url":null,"abstract":"This chapter discusses empirical approaches to criminal procedure, focusing on three broad and recurring themes that reflect the complex nature of the criminal justice system as a social institution: legal culture, discretion, and policy. It first considers criminal justice in the context of its sociopolitical culture, taking into account the place of legal and occupational cultures and the ways that they influence criminal justice law and practice. It also looks at culture as rhetoric before reviewing studies that explore some routine criminal justice practices, particularly how criminal justice institutions, such as the police and the prosecution, exercise discretion, and factors that affect a jury’s decision-making. Finally, it examines the relationship between law and policy, and more specifically how public policies (such as austerity) impact criminal justice practices, and how empirical research on law has contributed to evidence-based policy.","PeriodicalId":375046,"journal":{"name":"The Oxford Handbook of Criminal Process","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131279149","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}
引用次数: 0
Double Jeopardy and Ne Bis in Idem in Common Law and Civil Law Jurisdictions 英美法系和大陆法系的双重诉讼和一事不再理
The Oxford Handbook of Criminal Process Pub Date : 2019-04-14 DOI: 10.1093/OXFORDHB/9780190659837.013.26
Carl-Friedrich Stuckenberg
{"title":"Double Jeopardy and Ne Bis in Idem in Common Law and Civil Law Jurisdictions","authors":"Carl-Friedrich Stuckenberg","doi":"10.1093/OXFORDHB/9780190659837.013.26","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190659837.013.26","url":null,"abstract":"This chapter explores the main issues as well as the principal commonalities and differences found in the civil law and common law traditions with regard to the legal doctrine of double jeopardy (ne bis in idem). It begins with an overview of double jeopardy, along with the related concepts of res judicata and lis pendens. It then considers the supporting and conflicting rationales for the prohibition of multiple criminal procedures and the historical origins of the double jeopardy rule. It also discusses the prohibition of double jeopardy as embedded in international human rights law, along with the idem factum approach and the idem crimen approach to addressing the double jeopardy prohibition. The chapter also examines exceptions to res judicata and concludes with an analysis of other legal tools that can effectuate the protection against multiple prosecutions for the same criminal occurrence.","PeriodicalId":375046,"journal":{"name":"The Oxford Handbook of Criminal Process","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126927103","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}
引用次数: 3
Forensic Science Evidence, Adversarial Criminal Proceedings, and Mainstream Scientific “Advice” 法医学证据、对抗性刑事诉讼和主流科学“建议”
The Oxford Handbook of Criminal Process Pub Date : 2019-04-14 DOI: 10.1093/oxfordhb/9780190659837.013.39
G. Edmond
{"title":"Forensic Science Evidence, Adversarial Criminal Proceedings, and Mainstream Scientific “Advice”","authors":"G. Edmond","doi":"10.1093/oxfordhb/9780190659837.013.39","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780190659837.013.39","url":null,"abstract":"This chapter examines adversarial responses to forensic science evidence, with emphasis on the implicit orderliness and taken-for-granted evidentiary value of some historical (that is, pre-DNA) forensic sciences as well as the legal assumptions and practices that developed symbiotically alongside them. It first provides an overview of the main rules and procedures regulating the admission and use of expert opinion evidence in adversarial criminal proceedings before discussing the findings and recommendations of various scientific reviews. It also considers legal engagement with forensic science evidence and related scientific advice, and concludes by asking whether there are meaningful standards regulating the admission of forensic science evidence and noting the implications of this for the efficacy of traditional adversarial trial mechanisms, the fairness of proceedings, and the rectitude of legal decision-making.","PeriodicalId":375046,"journal":{"name":"The Oxford Handbook of Criminal Process","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121733854","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}
引用次数: 2
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