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Police Officers’ Knowledge of Gant 警察对甘特的了解
IF 0.4
New Criminal Law Review Pub Date : 2021-01-01 DOI: 10.1525/nclr.2021.24.4.468
James A. Purdon, Henry F. Fradella, C. Totten, Gang Lee
{"title":"Police Officers’ Knowledge of Gant","authors":"James A. Purdon, Henry F. Fradella, C. Totten, Gang Lee","doi":"10.1525/nclr.2021.24.4.468","DOIUrl":"https://doi.org/10.1525/nclr.2021.24.4.468","url":null,"abstract":"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.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73293756","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
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
New Criminal Law Review Pub Date : 2021-01-01 DOI: 10.1525/NCLR.2021.24.1.59
A. Chitov
{"title":"The Concepts of Truth and Fairness in Thai Criminal Procedure","authors":"A. Chitov","doi":"10.1525/NCLR.2021.24.1.59","DOIUrl":"https://doi.org/10.1525/NCLR.2021.24.1.59","url":null,"abstract":"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.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76083211","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
Transferred Intent in Italian Criminal Law 意大利刑法中的意旨转移
IF 0.4
New Criminal Law Review Pub Date : 2020-11-27 DOI: 10.1525/nclr.2020.23.4.636
Tom Trinchera
{"title":"Transferred Intent in Italian Criminal Law","authors":"Tom Trinchera","doi":"10.1525/nclr.2020.23.4.636","DOIUrl":"https://doi.org/10.1525/nclr.2020.23.4.636","url":null,"abstract":"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.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2020-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76878575","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
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
New Criminal Law Review Pub Date : 2020-11-27 DOI: 10.1525/nclr.2020.23.4.655
M. Bromberg, Larissa Welmans, Cassandra Lee
{"title":"Reading Between the Text(s) - Interpreting Emoji and Emoticons in the Australian Criminal Law Context","authors":"M. Bromberg, Larissa Welmans, Cassandra Lee","doi":"10.1525/nclr.2020.23.4.655","DOIUrl":"https://doi.org/10.1525/nclr.2020.23.4.655","url":null,"abstract":"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.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2020-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82842565","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
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
New Criminal Law Review Pub Date : 2020-11-27 DOI: 10.1525/nclr.2020.23.4.471
April Xiaoyi Xu
{"title":"Applying the Model Penal Code Insanity Defense to Sleepwalking Killers and Psychopaths","authors":"April Xiaoyi Xu","doi":"10.1525/nclr.2020.23.4.471","DOIUrl":"https://doi.org/10.1525/nclr.2020.23.4.471","url":null,"abstract":"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.\u0000 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.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2020-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76386011","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
A Truce in Criminal Law’s Distributive Principle Wars? 刑法分配原则之战的休战?
IF 0.4
New Criminal Law Review Pub Date : 2020-11-27 DOI: 10.1525/nclr.2020.23.4.565
P. Robinson
{"title":"A Truce in Criminal Law’s Distributive Principle Wars?","authors":"P. Robinson","doi":"10.1525/nclr.2020.23.4.565","DOIUrl":"https://doi.org/10.1525/nclr.2020.23.4.565","url":null,"abstract":"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.\u0000 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.\u0000 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.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2020-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73255835","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
The Transformational Function of the Criminal Law 论刑法的转换功能
IF 0.4
New Criminal Law Review Pub Date : 2020-11-27 DOI: 10.1525/nclr.2020.23.4.584
A. Corda
{"title":"The Transformational Function of the Criminal Law","authors":"A. Corda","doi":"10.1525/nclr.2020.23.4.584","DOIUrl":"https://doi.org/10.1525/nclr.2020.23.4.584","url":null,"abstract":"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.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2020-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75320194","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
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
New Criminal Law Review Pub Date : 2020-11-27 DOI: 10.1525/NCLR.2020.23.4.437
J. Child
{"title":"Defense of a Basic Voluntary Act Requirement in Criminal Law from Philosophies of Action","authors":"J. Child","doi":"10.1525/NCLR.2020.23.4.437","DOIUrl":"https://doi.org/10.1525/NCLR.2020.23.4.437","url":null,"abstract":"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.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2020-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83277167","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
Editor’s Introduction 编辑器的介绍
IF 0.4
New Criminal Law Review Pub Date : 2020-11-27 DOI: 10.1525/nclr.2020.23.4.435
Carrie Leonetti
{"title":"Editor’s Introduction","authors":"Carrie Leonetti","doi":"10.1525/nclr.2020.23.4.435","DOIUrl":"https://doi.org/10.1525/nclr.2020.23.4.435","url":null,"abstract":"","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2020-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85025651","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
Strict Liability and the Purpose of Punishment 严格责任与处罚目的
IF 0.4
New Criminal Law Review Pub Date : 2020-11-27 DOI: 10.1525/nclr.2020.23.4.516
Monika Simmler
{"title":"Strict Liability and the Purpose of Punishment","authors":"Monika Simmler","doi":"10.1525/nclr.2020.23.4.516","DOIUrl":"https://doi.org/10.1525/nclr.2020.23.4.516","url":null,"abstract":"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.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2020-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78101428","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
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