Journal of Criminal Law & Criminology最新文献

{"title":"Success in Court","authors":"Joseph N. Ulman, F. L. Wellman","doi":"10.2307/1137477","DOIUrl":"https://doi.org/10.2307/1137477","url":null,"abstract":"","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2012-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1137477","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68356112","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"\"Dearest Property\": Digital Evidence and the History of Private \"Papers","authors":"Donald A. Dripps","doi":"10.2139/SSRN.2012010","DOIUrl":"https://doi.org/10.2139/SSRN.2012010","url":null,"abstract":"Why does the Fourth Amendment distinctly mention “papers” as well as “effects”? Why should we care? This Article suggests that we should care because modern doctrine’s equation of “papers” with other “effects” produces increasingly disturbing results in an age of dense concentrations of intimate personal information stored on small, portable devices like cell phones and flash drives. The Fourth Amendment says “papers” because the founders perceived the seizure of papers as a grave abuse distinct from the abuse of general warrants or writs of assistance. The evidence for this claim is traced from the 1760’s through the famous but largely unstudied Supreme Court decision in Boyd v. United States in 1884. The evidence suggests that the modern equation of “papers” with “effects” conflicts with both the text and original understanding of the text. The Article also suggests that Boyd’s per se prohibition of seizing papers solely for use as evidence, while not historically implausible, is not historically inevitable either. History has left the door open to the imposition of structural safeguards on the collection of documentary evidence, including digital evidence, so long as those safeguards prevent the indiscriminate, expropriating, unregulated and inquisitorial seizures that were justly condemned at the founding.","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2012-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67850148","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"CHILD WITNESSES AND THE CONFRONTATION CLAUSE.","authors":"Thomas D Lyon,&nbsp;Julia A Dente","doi":"","DOIUrl":"","url":null,"abstract":"<p><p><i>After the Supreme Court's ruling in</i> Crawford v. Washington that a criminal defendant's right to confront the witnesses against him is violated by the admission of testimonial hearsay that has not been cross-examined, lower courts have overturned convictions in which hearsay from children was admitted after child witnesses were either unwilling or unable to testify. A review of social scientific evidence regarding the dynamics of child sexual abuse suggests a means for facilitating the fair receipt of children's evidence. Courts should hold that defendants have forfeited their confrontation rights if they exploited a child's vulnerabilities such that they could reasonably anticipate that the child would be unavailable to testify. Exploitation includes choosing victims on the basis of their filial dependency, their vulnerability, or their immaturity, as well as taking actions that create or accentuate those vulnerabilities.</p>","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4212261/pdf/nihms-566838.pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"32787218","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"American Policing at a Crossroads: Unsustainable Policies and the Procedural Justice Alternative","authors":"Stephen J. Schulhofer, T. Tyler, Aziz Z Huq","doi":"10.1108/pijpsm.2012.18135caa.003","DOIUrl":"https://doi.org/10.1108/pijpsm.2012.18135caa.003","url":null,"abstract":"As victimization rates have fallen, public preoccupation with policing and its crime-control impact has receded. Terrorism has become the new focal point of concern. But satisfaction with ordinary police practices hides deep problems. The time is therefore ripe for rethinking the assumptions that have guided American police for most of the past two decades. This Article proposes an empirically-grounded shift to what we call a procedural justice model of policing. When law enforcement moves toward this approach, it can be more effective at lower cost and without the negative side effects that currently hamper responses to terrorism and conventional crime. This Article describes the procedural justice model, explains its theoretical and empirical foundations, and discusses its policy implications, both for ordinary policing and for efforts to combat international terrorism.","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2011-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"62177927","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Deadly Dilemmas III: Some Kind Words for Preventive Detention","authors":"R. Allen, L. Laudan","doi":"10.2139/SSRN.1755215","DOIUrl":"https://doi.org/10.2139/SSRN.1755215","url":null,"abstract":"This paper explores the role of assessments of dangerousness in the criminal law, arguing that they are ubiquitous not only in setting sentences and guiding bail and parole decisions but, far more importantly, in determining which activities are criminalized and which are not. While many theorists of the criminal law continue to assert that prospective judgments of dangerousness have no legitimate role in the criminal law (since persons are to be punished supposedly only retrospectively for harms already committed), we argue that it is entirely appropriate to punish people for harms that they are likely to commit, provided that pertinent due process demands are satisfied. More generally, we deny both the existence and the desirability of a sharp distinction between the aims of criminal law and the aims of other forms of legal control and regulation.","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2011-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67735076","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Excusing Behavior: Reclassifying the Federal Common Law Defenses of Duress and Necessity Relying on the Victim's Role","authors":"M. Bedi","doi":"10.2139/SSRN.1742647","DOIUrl":"https://doi.org/10.2139/SSRN.1742647","url":null,"abstract":"Scholars have long debated the best way to classify the affirmative defenses of necessity and duress. Necessity typically involves a defendant arguing that he committed the crime in order to avoid a greater evil created by natural forces. Duress usually entails a defendant arguing that he committed the crime in order to avoid unlawful physical threats made by a third party. Most scholars categorize duress as an excuse (wrongful conduct where the defendant is still found not culpable based upon mitigating circumstances) and necessity as a justification (warranted or encouraged conduct where the defendant is found not culpable), but their focus has been on state law and related jurisprudence. This Article makes an original contribution to the literature by presenting a theory for classifying these defenses that focuses entirely on the role of the victim in the criminal act and ultimately categorizes both defenses as excused acts. The Article consists of two parts. First, it surveys how federal courts have treated duress and necessity. They have applied similar standards both during the liability and sentencing phases of trial. Some courts actually have adopted a consolidated definition for these affirmative defenses. This treatment suggests that duress and necessity should be classified in the same way. The second part of the Article focuses on the conceptual framework behind classifying these defenses. In light of federal jurisprudence, we need to reexamine the methods criminal theorists have used to distinguish necessity and duress. Scholars typically focus their attention on the defendant and what he does. The prominent theories include appealing tothe type of harm the defendant causes, his particular state of mind, whether he deserves aid from another, whether his behavior conforms to a public norm, or whether his actions are warranted. However, none of these five approaches provides a comprehensive methodology that accurately captures the nature of duress and necessity. Nor do any of them preserve our intuitions when applied to other affirmative defenses such as self- defense and insanity. The problem is that theorists have focused too heavily on the defendant. In doing so, they have left out the victim—the central figure who suffers the harm. This Article seeks to change this defendant-oriented perspective when it comes to classifying duress and necessity. The final part of the Article outlines an alternative theory that focuses entirely on the victim’s role in the crime. As the person who was harmed by the defendant’s conduct, the victim should be our focus when deciding whether the defendant’s conduct constitutes an excused or justified act. Where the victim played a direct role in what happened, the defendant’s action is better classified as a justification, and where the victim innocently suffered, the defendant’s action is better classified as an excuse. This focus on the victim’s culpability more accurately captures the intuitive differ","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2011-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67731932","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"'Nigger': A Critical Race Realist Analysis of the N-Word within Hate Crimes Law","authors":"G. Parks, Shayne E. Jones","doi":"10.2139/SSRN.1248382","DOIUrl":"https://doi.org/10.2139/SSRN.1248382","url":null,"abstract":"Is it ever not a hate crime when a White person attacks a Black person and hurls the N-word repeatedly during the attack? Some contend that where a White person is immersed in Black culture, they may use the N-word and not harbor any racial animus. An analysis of White an Black use of the N-word within 1) hip hop lyrics, racialized comedy routines, and spoken-word performances suggest that Blacks use the word frequently, but even Whites immersed in Black culture do not. This, coupled with the fact that unconscious race bias is prevelant among Whites and predicts White usage of the N-word, suggest that White usage of the N-word while assaulting a Black person is indicative of racial animus - if only at the unconscious level.","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2008-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1248382","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68153259","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Cognitive Psychology of Mens Rea","authors":"K. Heller","doi":"10.2139/ssrn.1128003","DOIUrl":"https://doi.org/10.2139/ssrn.1128003","url":null,"abstract":"Actus non facit reum nisi mens sit rea - the act does not make a person guilty unless the mind is also guilty. Few today would disagree with the maxim; the criminal law has long since rejected the idea that causing harm should be criminal regardless of the defendant's subjective culpability. Still, the maxim begs a critical question: can jurors accurately determine whether the defendant acted with the requisite guilty mind? Given the centrality of mens rea to criminal responsibility, we would expect legal scholars to have provided a persuasive answer to this question. Unfortunately, nothing could be further from the truth. Most scholars simply presume that jurors can mindread accurately. And those scholars that take mindreading seriously have uniformly adopted common sense functionalism, a theory of mental-state attribution that is inconsistent with a vast amount of research into the cognitive psychology of mindreading. Common-sense functionalism assumes that a juror can accurately determine a defendant's mental state by applying commonsense generalizations about how external circumstances, mental states, and physical behavior are causally related. Research indicates, however, that mindreading is actually a simulation-based, not theory-based, process. When a juror perceives the defendant to be similar to himself, he will mindread through projection, attributing to the defendant the mental state that he would have had in the defendant's situation. And when the juror perceives the defendant to be dissimilar to himself, he will mindread through prototyping, inferring the defendant's mental state from the degree of correspondence between the defendant's act and his pre-existing conception of what the typical crime or defense of that type looks like. This goal of this essay is to provide a comprehensive - though admittedly speculative - explanation of how jurors use projection and prototyping to make mental-state attributions in criminal cases. The first two sections explain why jurors are unlikely to use a functionalist method in a case that focuses on the defendant's mens rea. The next three sections introduce projection and prototyping, describe the evidence that jurors actually use them to make mental-state determinations, and discuss the cognitive mechanism - perceived similarity between juror and defendant - that determines which one a juror will use in a particular case. The final two sections explain why projection and prototyping are likely to result in inaccurate mental-state determinations and discuss debiasing techniques that may make them more accurate.","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2008-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.1128003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68144995","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Police, Politics, and Culture in a Deeply Divided Society","authors":"B. Hasisi","doi":"10.1201/B19313-10","DOIUrl":"https://doi.org/10.1201/B19313-10","url":null,"abstract":"This Article deals with minorities' perceptions of the police in 'deeply divided societies.' These societies are generally characterized by political disagreements, and the literature shows that most researchers emphasize the centrality of the political variable in order to understand police-minority interactions. This Article acknowledges the centrality of the political variable and adds a cultural variable that may improve the understanding of police-minority relations in a deeply divided society. In some societies, the disparity in the perceptions of majority and minority groups cannot be attributed solely to the political variable, but also to cultural differences. This is especially prominent in the case of native or immigrant minorities. Hence, it is reasonable to expect that this cultural pluralism will be reflected in minorities interaction with and its perception of the police. Findings from a survey conducted in Israel indicate that political disagreements between Jews and Arabs have negatively affected the Arab minority's perceptions of the police. This Article also shows that the Arab minority group is not homogenous in regard to their relationship with the police; there are significant political and cultural differences among Arab sub-groups (Muslim, Christian, and Druze). The Druze hold similar political orientations to the Jewish majority, and consequently their perceptions of the police were found to be more positive than those of Muslim Arabs. Nevertheless, both Druze and Muslim Arabs expressed restricted receptivity to contact with the police when police practices threatened their community cultural codes. The findings from this research call for both a deeper analysis of the relationships between minority groups and the police, and for a more attentive probe of the distinctions among minority groups.","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2008-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"65992347","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Nazi saboteurs on trial: A military tribunal and American law","authors":"C. Tobias","doi":"10.5860/choice.41-1753","DOIUrl":"https://doi.org/10.5860/choice.41-1753","url":null,"abstract":"","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71097949","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}