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Date: April 29, 2024 Mon
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Results for criminal procedure
21 results foundAuthor: Morgan Harris Burrows LLP Title: Research into the impact of bad character provisions on the courts Summary: This report is based on research that tracked bad character applications received in 6 court centers over eight months in 2006, and interviews with key practitioners. Overall the study found that the new law has had a beneficial but not revolutionary impact on criminal trials. Overall, the new bad character provisions represent a major codification of the behavior relating to the admission of the bad character evidence. The percent of contested cases with a bad character application in the magistrates' court was between 5 and 6 percent. While there was greater variation in the Crown Court: ranging from 72% in Sheffeld and 27% in Bradford. Many of these cases related to the new provision or statutory 'gateway' where evidence of bad character can be put forward which shows the defendant's propensity to commit offences and be untruthful. Details: London: Ministry of Justice, Office for Criminal Justice Reform, 2009 Source: Ministry of Justice Research Series 5/09 Year: 2009 Country: United Kingdom URL: Shelf Number: 115659 Keywords: Admissible EvidenceCourtsCriminal Procedure |
Author: Amnesty International Title: Case closed: rape and human rights in the nordic countries Summary: This report shows that women who report rape to the police in the Nordic countries have only a small chance of having their cases tried by a court of law. The result is that many perpetrators are never held to account for their crimes. Amnesty International examines the gaps in laws, procedures and practices and calls on the governments of Denmark, Finland, Norway and Sweden to take steps to ensure justice for all victims and survivors of sexual crimes. Details: London: Amnesty International, 2008, 27p. Source: Internet Source Year: 2008 Country: United Kingdom URL: Shelf Number: 118149 Keywords: CourtsCriminal Justice SystemsCriminal ProcedureEuropeRape |
Author: Kadar, Andras Title: Presumption of Guilt: Injurious Treatment and the Activity of Defense Counsels in Criminal Proceedings against Pre-trial Detainees Summary: Pre-trial detention, which according to its statutory definition, is the “judicial deprivation of the defendant’s freedom before the delivery of the final and non-appealable sentence” is one of the most problematic institutions of the criminal procedure. In terms of the presumption of innocence, no one may be considered guilty until their guilt is established by a final court sentence. Furthermore, in accordance with the principle of the constitutional penal law, no one may be punished until their guilt is established in a fair procedure. Pretrial detention is not a punishment (a legal sanction imposed for a breach of law), but a so-called coercive measure: an act restricting the defendant’s rights for the sake of the undisturbed and successful accomplishment of the criminal procedure. However, in terms of its effective impact, pre-trial detention does not greatly differ from the most severe form of punishment known in Hungarian penal law, i.e., imprisonment. This is what makes the problems connected with pre-trial detention especially emphatic. From the subjective point of view of the defendant, whose guiltiness has not been established yet and who might be eventually acquitted, there is no significant difference between imprisonment and pre-trial detention. Both mean a deprivation of personal liberty, both are implemented in the same (or similar) institutions and under the same or similar circumstances. What is more, sometimes the circumstances may be less favorable for remand prisoners than for convicted detainees. This makes the issue of pre-trial detention very sensitive. Although the coming into force of the new code of criminal procedure on 1 July 2003 has solved the most burning problems of the field through the reform of the appeal procedure and the limitation of the maximum length of pre-trial detention, the present regulation and practice of this institution is still not fully satisfactory. Details: Helsinki: Humgarian Helsinki Committee, 2004. 176p. Source: Internet Resource: Accessed May 3, 2011 at: http://pdc.ceu.hu/archive/00005303/01/Presumption_of_Guilt.pdf Year: 2004 Country: Hungary URL: http://pdc.ceu.hu/archive/00005303/01/Presumption_of_Guilt.pdf Shelf Number: 121593 Keywords: Criminal ProcedurePretrial Detention (Hungary) |
Author: Bierschbach, Richard A. Title: Proportionality and Parole Summary: Commentators analyzing the Supreme Court’s watershed decision in Graham v. Florida, which prohibited sentences of life without parole for juveniles convicted of nonhomicide crimes, have generally done so in substantive proportionality terms, ignoring or downplaying parole in the process. This Article challenges that approach, focusing on the intersection of proportionality and parole as a jumping off point. Taking parole seriously makes clear that Graham is difficult to understand solely in terms of substantive proportionality concepts like individual culpability and punishment severity. Instead, the decision can be seen as establishing a rule of constitutional criminal procedure, one that links the validity of punishment to the institutional structure of sentencing. By requiring the state to revisit its first-order sentencing judgments at a later point in time, Graham mandates a procedural space for granular, individualized, and ultimately more reliable sentencing determinations. I expose this procedural and institutional side of parole’s constitutional significance, situate it within the constitutional landscape of sentencing, and sketch some of its implications for the future of sentencing regulation. Details: New York: Cardozo School of Law, 2012. 45p. Source: Internet Resource: Cardozo Legal Studies Research Paper No. 367: Accessed April 27, 2012 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2038969 Year: 2012 Country: United States URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2038969 Shelf Number: 125078 Keywords: Criminal LawCriminal ProcedureJuvenile OffendersParole (U.S.)Sentencing, Proportionality |
Author: Ingram, Matthew C. Title: Criminal Procedure Reform in Mexico: Where Things Stand Now Summary: On June 18, 2008, a federal reform in Mexico mandated a package of changes to the criminal justice system throughout the country, covering 33 jurisdictions: the federal justice system and all 32 states (including the Federal District of Mexico City). Although portions of the reform dealt with changes to the criminal justice system in general, the emphasis on investigatory and adjudicatory practices - and on improving due process in general - justifies referring to the reform as principally one of criminal procedure. This paper assesses progress in the implementation of the 2008 reform across the 33 jurisdictions mentioned above. The content and significance of the changes have been covered widely by both policy analysts and legal scholars (e.g., Shirk 2010; Ingram, Rodriguez-Ferreira, and Shirk 2011; Zwier and Barney 2012; Ingram and Shirk 2012), especially since it is part of a broader global and regional transformation in criminal procedure that dates back at least to Italy's prominent 1988 reform (Grande 2000; Amodio 2004) and started spreading through Latin America in the early 1990s (Langer 2007). Given existing attention to these aspects of the reform, I only briefly summarize the reform's content within this paper. The main focus in policy and academic circles is quickly shifting to the implementation of the reform and to questions about whether the reform, even when completely implemented, is achieving its anticipated results, why it is doing so, or why not. The attention here to the progress of implementation is part of this new focus. Details: Washington, DC: Wilcon Center, Mexico Institute, 2013. 37p. Source: Internet Resource: Accessed February 26, 2013 at: http://www.wilsoncenter.org/sites/default/files/Ingram_CrimProReformMexico_Jan_2013.pdf Year: 2013 Country: Mexico URL: http://www.wilsoncenter.org/sites/default/files/Ingram_CrimProReformMexico_Jan_2013.pdf Shelf Number: 127719 Keywords: Criminal Justice Reform (Mexico)Criminal Justice SystemsCriminal Procedure |
Author: Carrera, Sergio Title: Europe’s Most Wanted? Recalibrating Trust in the European Arrest Warrant System Summary: This paper assesses the uses and misuses in the application of the European Arrest Warrant (EAW) system in the European Union. It examines the main quantitative results of this extradition system achieved between 2005 and 2011 on the basis of the existing statistical knowledge on its implementation at EU official levels. The EAW has been anchored in a high level of ‘mutual trust’ between the participating states’ criminal justice regimes and authorities. This reciprocal confidence, however, has been subject to an increasing number of challenges resulting from its practical application, presenting a dual conundrum: 1. Principle of proportionality: Who are the competent judicial authorities cooperating with each other and ensuring that there are sufficient impartial controls over the necessity and proportionality of the decisions on the issuing and execution of EAWs? 2. Principle of division of powers: How can criminal justice authorities be expected to handle different criminal judicial traditions in what is supposed to constitute a ‘serious’ or ‘minor’ crime in their respective legal settings and ‘who’ is ultimately to determine (divorced from political considerations) when is it duly justified to make the EAW system operational? It is argued that the next generation of the EU’s criminal justice cooperation and the EAW need to recognise and acknowledge that the mutual trust premise upon which the European system has been built so far is no longer viable without devising new EU policy stakeholders’ structures and evaluation mechanisms. These should allow for the recalibration of mutual trust and mistrust in EU justice systems in light of the experiences of the criminal justice actors and practitioners having a stake in putting the EAW into daily effect. Such a ‘bottom-up approach’ should be backed up with the best impartial and objective evaluation, an improved system of statistical collection and an independent qualitative assessment of its implementation. This should be placed as the central axis of a renewed EAW framework which should seek to better ensure the accountability, impartial (EU-led) scrutiny and transparency of member states’ application of the EAW in light of the general principles and fundamental rights constituting the foundations of the European system of criminal justice cooperation. Details: Brussels, Belgium: Centre for European Policy Studies, 2013. 46p. Source: Internet Resource: CEPS Paper in Liberty and Security in Europe no. 55: Accessed March 26, 2013 at: http://www.ceps.eu/book/europe%E2%80%99s-most-wanted-recalibrating-trust-european-arrest-warrant-system Year: 2013 Country: Europe URL: http://www.ceps.eu/book/europe%E2%80%99s-most-wanted-recalibrating-trust-european-arrest-warrant-system Shelf Number: 128131 Keywords: Arrest and ApprehensionArrest Warrants (Europe)Criminal ProcedureJudicial Systems |
Author: Dharmapala, Dhammika Title: Punitive Police? Agency Costs, Law Enforcement, and Criminal Procedure Summary: Criminal law enforcement depends on the actions of public agents such as police officers, but there is no standard economic model of police as public agents. We seek to remedy this deficiency by offering an agency model of police behavior. We begin by explaining why the standard contracting solutions are unlikely to work. Instead, we follow recent literature exploring intrinsic motivation and posit heterogeneity in the preferences of potential agents. Drawing on experimental evidence on punishment preferences (so-called “altruistic punishment”), in which subjects reveal a preference for punishing wrongdoers, our model identifies circumstances in which “punitive” individuals (with stronger-than-average punishment preferences) will self-select into law enforcement jobs that offer the opportunity to punish (or facilitate the punishment of) wrongdoers. Such “punitive” agents will accept a lower salary and be less likely to shirk, but create agency costs associated with their excessive zeal (relative to the public’s preferences) in searching, seizing, and punishing suspects. Under plausible assumptions, the public chooses to hire punitive police agents, while submitting them to monitoring by other agents (such as the judiciary) with average punishment preferences. Thus, two kinds of agents are better than one. We explore various implications for police shirking, corruption, and the content of the criminal procedure rights that the judiciary enforces. Details: Chicago: University of Chicago Coase-Sandor Institute for Law & Economics, 2013. 55p. Source: Internet Resource: University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 644 : Accessed June 26, 2013 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2278597 Year: 2013 Country: United States URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2278597 Shelf Number: 129167 Keywords: Criminal ProcedurePolice BehaviorPolice MisconductPolicing |
Author: Bloom, Robert M. Title: The Fourth Amendment Fetches Fido: New Approaches to Dog Sniffs Summary: Dogs' relationship to man as hunters, finders, protectors, and friends has existed for thousands of years. Today dogs serve very important law enforcement functions as sniffers in the investigation of crimes and other threats to society. The Fourth Amendment of the United States Constitution is of comparatively more recent vintage and seeks to protect the individual's privacy from infringement by the government. This Article deals with the Fourth Amendment implications when the government infringement is a dog sniff. In the Supreme Court's latest decision on dogs Florida v. Jardines, Franky, a drug-detection dog, walked onto the porch of Mr. Jardines' home, sniffed around and alerted his handler that drugs were inside the house. From this alert, the police obtained a search warrant for the home where they discovered a marijuana growing operation. The issue before the Court was whether Franky's sojourn to the porch constituted a Fourth Amendment search requiring justification and a warrant. Justice Scalia wrote for the Court in Florida v. Jardines and utilized a property based analysis in his desire to keep "easy cases easy." He held that uninvited sniffs of the home from the porch implicated the Fourth Amendment. This so called easy approach left several questions unanswered. This Article attempts to examine some of these questions, including what would happen if the dog sniff had occurred on a public sidewalk or if the dog sniff was of a person in a public place. Additionally, this Article explores the rationale for classifying dog sniffs as sui generis, thereby not implicating the Fourth Amendment. It debunks this rationale and suggests a more effective way to deal with dog sniffs in the future. Details: Boston: Boston College Law School, 2013. 30p. Source: Internet Resource: Legal STudies Research Paper Series; Research Paper 315: Accessed March 28, 2014 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2330969## Year: 2013 Country: United States URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2330969## Shelf Number: 132006 Keywords: Canine SearchesCriminal ProcedureDogsFourth Amendment |
Author: Inter-American Commission on Human Rights. Rapporteurship on the Rights of Persons Deprives of Liberty Title: Report on the Use of Pretrial Detention in the Americas Summary: For more than a decade, the Inter-American Commission on Human Rights (hereinafter "the IACHR", "the Inter-American Commission" or "the Commission") has considered the arbitrary and illegal use of pretrial detention a chronic problem in many countries of the region. In its recent Report on the Human Rights of Persons Deprived of Liberty in the Americas, the IACHR listed the excessive use of pretrial detention among the most serious and widespread problems in the region and noted that this dysfunctionality in criminal justice systems is in turn the cause of other problems such as overcrowding and the failure to separate detainees awaiting trial from the convicted. Along with other structural problems linked to the respect for and the guarantee of the rights of persons deprived of liberty, this situation has also been systematically identified in the Americas by United Nations monitoring mechanisms, whose mandate includes safeguarding the human rights of persons under criminal prosecution and/or deprived of liberty, such as: the Human Rights Committee (HRC), the Committee against Torture (CAT), the Subcommittee on Prevention of Torture (SPT), the Working Group on Arbitrary Detention (WGAD) and the Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment (SRT). Similarly, other qualified actors such as the United Nations Latin American Institute for the Prevention of Crime and the Treatment of Offenders (ILANUD), have deemed that "[e]specially serious within the issue of the accelerated increase of prison populations is the case of prisoners awaiting trial"; therefore, "the region must continue its efforts to maintain more prudent levels of unconvicted prisoners." The Report on the High Level Expert Group Meeting on the United Nations Standard Minimum Rules for the treatment of prisoners, which was held in Santo Domingo, laid out some of the common causes at the regional level for the high proportion of prisoners awaiting trial, such as delays in bringing criminal defendants to trial, the absence of adequate legal advice, the influence of public opinion and the "tendency for prosecutors and judges to order that those awaiting trial should be held in detention, rather than making other arrangements for pre-trial supervision in the community." The excessive use of pretrial detention in the Americas has also been acknowledged by other bodies of the Organization of American States (OAS), such as at the Third Meeting of Officials Responsible for Penitentiary and Prison Policies, where reference was made to the "excessive use of preventive detention," and it was estimated that in the region "more than 40% of the prison population is on pretrial detention". The foregoing situation exists in spite of binding international norms that are very clear in recognizing the presumption of innocence and the exceptional nature of pretrial detention; the broad recognition of these rights at the constitutional level in the region; and the political will expressed at the highest level by the States twenty years ago in the framework of the Summits of the Americas, where governments made the commitment to "[t]ake the necessary steps to remedy inhumane conditions in prisons and to minimize the number of pretrial detainees" (The Miami Plan of Action, 1994). In this context, the Inter-American Commission considers that the excessive use of pretrial detention runs contrary to the very essence of the democratic rule of law, and that implementing this measure as a form of expeditious justice that results in a kind of anticipated sentence is flagrantly contrary to the provisions of the American Convention and Declaration, and the principles from which the Charter of the Organization of American States has drawn inspiration. Moreover, the use of pretrial detention is an important measure of the quality of the administration of justice and, as such, has a direct bearing on the quality of democracy. The IACHR recognizes the duty of States to maintain public order and protect all persons under their jurisdiction from crime and violence. Nonetheless, the Commission reiterates the longstanding principle enshrined in the Inter-American system that "irrespective of the nature or gravity of the crime prosecuted, the investigation of the facts and the eventual trial of specific persons should be carried out within the limits and according to the procedures that permit public safety to be preserved, with full respect for the human rights." Additionally, the Inter-American Court of Human Rights (hereinafter "the Inter-American Court" or "the Court") has held that "[t]he concept of rights and freedoms as well as that of their guarantees cannot be divorced from the system of values and principles that inspire it. In a democratic society, the rights and freedoms inherent in the human person, the guarantees applicable to them and the rule of law form a triad. Each component thereof defines itself, complements and depends on the others for its meaning." As is covered in depth in this report, excessive use of pretrial detention is a complex problem caused by a variety of factors, such as: issues of legal design, structural deficiencies in administration of justice systems, interferences with judicial independence and deeply rooted tendencies in judicial culture and practice. Details: Source: Internet Resource: Accessed August 6, 2014 at: http://www.oas.org/en/iachr/pdl/reports/pdfs/Report-PD-2013-en.pdf Year: 2014 Country: International URL: http://www.oas.org/en/iachr/pdl/reports/pdfs/Report-PD-2013-en.pdf Shelf Number: 132910 Keywords: Criminal ProcedureHuman Rights AbusesPretrial DetentionPreventive DetentionPrisoners |
Author: Schuman, Jacob Title: Sentencing Rules and Standards: How We Decide Criminal Punishment Summary: Over the course of the past 300 years, American sentencing policy has alternated between "determinate" and "indeterminate" systems of deciding punishment. Debates over sentence determinacy have so far focused on three main questions: Who should decide punishment? What makes punishment fair? And why should we punish wrongdoers at all? In this Article, I ask a new, fourth, question: How should we decide punishment? I show that determinate sentencing uses rules to determine sentences, while indeterminate sentencing relies on standards. Applying this insight to federal sentencing practice, I demonstrate that district court judges "depart" or "vary" from the United States Sentencing Guidelines in order to correct the substantive and formal errors that result from rule-based decision-making, instead sentencing in such cases based on the 3553(a) standard. I argue that judges should be more willing to take departures and variances in cases involving particularly large or particularly numerous sentence adjustments, which exacerbate the impact of rule-based errors. Details: Unpublished paper, 2015. 54p. Source: Internet Resource: Accessed march 11, 2015 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545671 Year: 2015 Country: United States URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545671 Shelf Number: 134898 Keywords: Criminal LawCriminal ProcedureSentencing (U.S.)Sentencing Guidelines |
Author: Bell, Jeannine Title: Cross-Sectional Challenges: Gender, Race, and Six-Person Juries Summary: After two grand juries failed to indict the police officers that killed Michael Brown and Eric Garner in 2014, our nation has engaged in polarizing discussions about how juries reach their decision. The very legitimacy of our justice system has come into question. Increasingly, deep concerns have been raised concerning the role of race and gender in jury decision-making in such controversial cases. Tracing the roots of juror decision-making is especially complicated when jurors' race and gender are factored in as considerations. This Article relies on social science research to explore the many cross-sectional challenges involved in the jurors' decision making in the George Zimmerman case. To analyze how the Zimmerman jurors' race and gender may have affected their decision-making in the case, we present empirical studies evaluating the effect of race and gender on juror decision-making in criminal cases. Our aim in this Article is to create dialogue about an important challenge for our justice system: How can we fulfill the constitutional mandate that juries be diverse? How can we overcome the barriers to fulfilling this ideal? We conclude by demanding stronger measures to ensure that juries represent a fair cross-section of the communities that they represent. Our suggestions also include focusing on the prosecutor's special obligations to serve justice by selecting a jury that adequately represents the community from which it is drawn. These and other changes are crucial to ensuring that communities accept even the most controversial jury decisions as legitimate. Details: Bloomington, IN: Maurer School of Law, Indiana University, 2015. 47p. Source: Internet Resource: Legal Studies Research Paper Series No. 310: Accessed March 16, 2015 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2570816 Year: 2015 Country: United States URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2570816 Shelf Number: 134938 Keywords: Criminal ProcedureJuries (U.S.)RaceRacial Disparities |
Author: John Jay College of Criminal Justice Title: The Summons Report: Trends in the issuance and disposition of summonses in New York City: 2003-2013 Summary: This report examines summonses issued in New York City from 2003-2013. The study offers an in-depth look at summons issuance patterns in the City's five boroughs and two community courts from data provided by the Office of Court Administration. In the decade covered by the report, about a half-million summonses were issued each year. Key findings include: -Overall, summonses are on the decline. This decline is driven by lower issuance rates among 16-17 year olds and 18-20 year olds, mainly for Disorderly Conduct. -On average for the past decade, roughly 2 in 5 summonses resulted in a Dismissal or an Adjournment in Contemplation of Dismissal. Only 1 out of 5 summonses resulted in a disposition of Guilty. -On average over the past decade, 36 percent of summonses resulted in the issuance of a warrant. The majority of these warrants were vacated and as of December 15, 2014, 14 percent of all summonses issued between 2003 and 2013 had an open warrant remaining. -There is substantial borough-level variation throughout the summons process, in patterns of issuance, charges, and dispositions. Details: New York: John Jay College of Criminal Justice, 2015. 96p. Source: Internet Resource: Accessed June 4, 2015 at: http://www.jjay.cuny.edu/sites/default/files/news/Summons_Report_DRAFT_4_24_2015_v8.pdf Year: 2015 Country: United States URL: http://www.jjay.cuny.edu/sites/default/files/news/Summons_Report_DRAFT_4_24_2015_v8.pdf Shelf Number: 135886 Keywords: Court SummonsesCourtsCriminal Procedure |
Author: Rodriguez Ferreira, Octavio Title: Criminal Procedure Reform in Mexico, 2008-2016: The Final Coundown for Implementation Summary: This is one of a series of special reports that have been published on a semi-annual basis by Justice in Mexico since 2010 on issues related to crime and violence, judicial sector reform, and human rights in Mexico. This report examines Mexico's progress toward implementation of the country's "new" criminal justice system, which introduces the use of oral, adversarial proceedings and other measures to improve the handling of criminal cases in terms of efficiency, transparency, and fairness to the parties involved. This report is based on several months of research and data analysis, field observation, and active participation by the authors in the process of training law professors, law students, and attorneys in preparation for implementation of the reforms. The report provides a general background on the 2008 judicial reform initiative, and examines Mexican government efforts to implement the reforms at the federal, state, and judicial district level, relying on a unique dataset and maps generated by the Justice in Mexico program based at the University of San Diego. As an additional resource, this report also contains a translation of the 2008 constitutional changes underlying the reforms. Ultimately, the authors find that there has been significant progress toward the implementation of the new criminal justice system, and offer recommendations to assist the Mexican government and international aid organizations to help Mexico sustain this progress in the years to come. Details: San Diego: Justice in Mexico, University of San Diego, 2015. 56p. Source: Internet Resource: Accessed October 28, 2015 at: https://justiceinmexico.org/wp-content/uploads/2015/10/151008_FINALCOUNTDOWN_Full-Finallow-res.pdf Year: 2015 Country: Mexico URL: https://justiceinmexico.org/wp-content/uploads/2015/10/151008_FINALCOUNTDOWN_Full-Finallow-res.pdf Shelf Number: 137161 Keywords: Criminal Justice ReformCriminal LawCriminal Procedure |
Author: Romero, Maybell Title: Profit-Driven Prosecution and the Competitive Bidding Process Summary: Prosecutors are the most powerful organs of the criminal justice system, enjoying discretion in decision-making far beyond that of law enforcement officials, defense attorneys, and judges. Perhaps due to this exceptional position, contemporary understandings and perceptions of criminal prosecutors have tended to be largely positive; evidence of such a normative understanding of the prosecutor and its role may be found from a variety of sources, from (other) law review articles to pop cultural touchstones in television and movies. The prevailing "prosecutorial norm" in the public consciousness embodies 1) a full-time government employee, 2) who devotes all of their time and professional energies to criminal prosecution, and 3) tries to somehow do or affect some vague notion of "justice." Such norms, however, are regularly challenged and flouted when the prosecutorial function is outsourced. While the outsourcing of nearly every function of the criminal adjudicative process has attracted great attention among scholars and policymakers, a greater critical lens must be focused on prosecutors. The hazards of prosecutorial outsourcing have largely been neglected because existing prosecutorial scholarship focuses on the United States Attorney or district attorneys' offices in large, metropolitan areas. Not all prosecutorial offices are created equal, however. Cities, towns, and other small political subdivisions throughout the country frequently hire prosecutors on a part-time basis through a competitive bidding process, releasing requests for proposals (RFPs) in an effort to procure bids. This practice, however, may be observed not only in small or rural municipalities, but also in cities located near larger population centers. Examples of such municipalities include Ferguson, Missouri, or Kyle, Texas. Such local governments often work with budgets that are not expansive enough to hire a full-time city attorney or prosecutor. Beyond demonstrating the qualifications the applicant attorneys or firms vying for a prosecution contract may have to serve as good prosecutors, applications from such applicants must also demonstrate cost effectiveness by detailing what budget and compensation is required during the term of service specified by the RFP. While engaging in a competitive bidding process may seem like a smart way to handle the problem of governmental waste and financial inefficiencies, it introduces a host of challenges and negative externalities. This Article sheds light on the problems caused by introducing an overtly economic calculation (how cheaply and how profitably the prosecutorial function may be fulfilled) into the criminal adjudicative process. This practice not only flouts American Bar Association and National District Attorney Association prosecutorial standards, but also undermines the prosecutorial norms described above in ways that are likely to destabilize confidence - and the social cohesion born of such confidence - in local criminal justice systems. This practice has the risk, however, of expanding beyond the reach of non-metropolitan jurisdictions to larger counties, cities, and local governments as budgets continue to shrink across the board and devolution and privatization continue to be advanced as cure-alls to economic woes. Details: Provo, UT: Brigham Young University - J. Reuben Clark Law School, 2016. 52p. Source: Internet Resource: BYU Law Research Paper No. 16-21 : Accessed August 30, 2016 at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2820312 Year: 2016 Country: United States URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2820312 Shelf Number: 140101 Keywords: Criminal ProcedureCriminal ProsecutionProsecutors |
Author: Zambia. Human Rights Commission Title: A Survey Report on the Application of Bond and Bail Legislation in Zambia Summary: This survey was conducted to collect information on factors affecting access and conditions regarding bail among people found to be in conflict with the law in Zambia. The survey was conducted for a period of six months in all ten provinces of the country. The findings of this study are meant to provide a basis for the review of current bail legislation relating to bail conditions in Zambia by promoting easy access for suspects or inmates to bail regardless of their social and economic conditions. The target respondents for the surveys were inmates in prisons, police officers in charge of a police station, magistrates and public prosecutors. The survey also examined the current committal process of matters to the High Court and the transfer process of matters to other courts so as to determine causes of delays in the two processes. A total of 2,168 respondents were interviewed in this survey. The findings reveal that on average suspects in Zambia are kept in police custody for fourteen days before they are made to appear before the court. The survey has shown that in Lusaka suspects were kept in police custody for about 22 days. Eastern province had the least detention days of 6 days. Another key finding is that about 30% of the remandees indicated that they have been awaiting judgment for a period of over one year. Two- thirds said they have been awaiting judgment for a period of less than one month. Nearly 6% have been waiting for judgment for at least 9 months. The survey also revealed several reasons explaining why few suspects attempted applying for bail. The reasons brought forward included suspects lack of knowledge that they can apply for police bond or bail and; suspects having no working sureties to sign police bond for them. The survey revealed that bail conditions in Zambia are stringent, requiring suspects to provide two working sureties as a condition for granting of bail. Findings also showed that time taken for cases to be committed to the High Court can be inordinately long as can be the rendering of judgments. The survey thus revealed that there were challenges at every stage of the criminal justice process that hindered accused persons' enjoyment of their due process rights. In this regard, the Commission found that the criminal justice system has more often than not failed in its function of ensuring that the rights of the accused are protected with the country falling short of the principles enunciated in the international standards to which it is a party. There is therefore need for a thorough review of the existing law regarding the bail and police bond conditions in Zambia as well as the law and processes that regulate the committal of cases to the High Court. In addition to this is the need for sensitisation of the citizenry on the rights to bond and bail in Zambia. Chapter 1 focuses on the problem statement and situational analysis. It further speaks to the survey objectives and methodology used. Chapter 2 focuses on the law relating to bail and committal in Zambia. It demonstrates the relationship between human rights and criminal justice; the law relating to bail and committal; preliminary inquires; survey procedures and committal sentencing. In Chapter 3 of the report, the findings of the survey are discussed. These relate to the demographic characteristics of the respondents, arbitrary and over detention of suspects, the issue of legal representation and judgement. The findings reveal the bail and bond conditions, bail during trial, reasons for the court not granting bail and the process of transfer of cases from the lower court for committal to the high court. Finally Chapter 4 concludes with recommendations from the Human Rights Commission regarding the need for reform in the legal and justice system and specifically regarding bail and police bond and the committal process. Details: Lusaka: Human Rights Commission, 2014. 52p. Source: Internet Resource: Accessed September 22, 2016 at: http://www.osisa.org/sites/default/files/survey_report_hrc_zambia_2014.pdf Year: 2014 Country: Zambia URL: http://www.osisa.org/sites/default/files/survey_report_hrc_zambia_2014.pdf Shelf Number: 145587 Keywords: Bail BondsCriminal CourtCriminal Justice SystemCriminal ProcedureDue ProcessHuman RightsPretrial Release |
Author: Helsinki Foundation for Human Rights Title: Pre-Trial Detention in Poland Summary: 1. As of 31 October 2015, 4,356 people remain in prisons as pre-trial detainees in Poland. At the same time, the overall prison population in the country amounts to 72 195. This means that pre-trial detainees constitute 6.0 per cent of all detainees. Even though this percentage seems low and the number of motions for pre-trial detention decreased by almost 30% between 2009- 2014, the research revealed that Poland still faces serious challenges with respect to pre-trial detention. 2. As part of an EU funded project, a common research methodology was applied in 10 EU Member States, with research data gathered through the monitoring of PTD hearings, analysing case files, as well as surveying defence lawyers and interviewing judges and prosecutors. In the course of the Polish research, 4 PTD hearings were observed, 70 case-files analysed, 24 defence lawyers surveyed, and 9 judges and 7 prosecutors interviewed. 3. On 1 July 2015, a fundamental reform of the Code of Criminal Procedure and important changes to the Criminal Code entered into force. The reform introduced an adversarial model of proceedings, which places more emphasis on the activity of prosecutors and lawyers, and leaves the judge as an impartial arbitrator. It is important to view the results of the research in the light of these recent legislative changes, which address several of the identified limitations to the fairness of the proceedings. The key findings regarding the pre-trial detention decision-making in Poland were as follows: 4. Decision-making procedure: According to the law, before applying a preventive measure the court or the prosecutor shall hear the defendant. This means that the defendant has to be present at the first pre-trial detention hearing. This obligation does not, however, extend to other pre-trial detention hearings, which is why the equality of arms may not be secured throughout the whole pre-trial detention proceedings. The research showed that the defendant, if not in hiding or otherwise unavailable to the justice system, is present at the first pre-trial detention hearing. The defendant is not always present at other pre-trial detention hearings, especially if he has been appointed a lawyer. Equally, defendants who do attend hearings are often not represented by a lawyer. Additionally, the defence's preparation of the hearing is sometimes limited by insufficient access to the case files. It should, however, be noted that the regulation on access to case files has recently been changed as a result of legislative changes in the European Union and the case-law of the European Court of Human Rights and the Polish Constitutional Tribunal, The access has been widened for the defendant. Still, the majority of lawyers surveyed explained that they have 30 minutes or less to prepare for the hearing, with access to the case file. 5. The substance of decisions: Case file research revealed that the risk of the suspect perverting the course of justice, the risk of the suspect absconding and the fact that a severe penalty may be imposed on the suspect are the most commonly used justifications for ordering pre-trial detention. The reasoning given is often formulaic and not tailored to the specific case, repeating the arguments raised by the prosecution. This can be partly explained with the swiftness of the proceedings which limits the time for judges to read the case file and forces them to rely on the evidence provided by the prosecution. However, the provisions of the Code of Criminal Procedure were changed in relation to the content of justifications of pre-trial detention orders. The amendments may contribute to a more careful and diligent judicial consideration of matters that involve pre-trial detention, as judges will be obliged to refer in their justifications directly to the circumstances listed in the new provision. We hope that the explicit designation of the assumed line of reasoning which should accompany judicial resolution of pre-trial detention matters will persuade courts to examine more thoroughly whether a need to apply pre-trial detention actually exists. 6. Use of alternatives to detention: The conducted research and official statistics show that police supervision and money bail are the most commonly used non-custodial, preventive measures. At the same time, the interviewed judges and prosecutors do not perceive noncustodial preventive measures as effective and trustworthy alternatives to pre-trial detention. What is more, case file research and surveys conducted among defence practitioners show that judicial consideration of alternatives to detention is limited to a single-sentence argument that such alternatives would not protect the integrity of the proceedings. 7. Review of pre-trial detention: The success rate of complaints against pre-trial detention orders of regional courts was about 3% in 2014. Defence practitioners surveyed complained of the automatism and superficiality of judicial decisions which lack proper justifications based on the facts of the case and substantiated presumptions, even in cases being reviewed and appealed against. The case files research confirmed the notion that courts of higher instance rarely change the decisions of lower level courts. The decisions of higher level courts often repeat previous decisions. Defence practitioners also commented in the survey that reviews are not frequent enough to take account of changed circumstances of the case or other factors. Preparation of review is often also challenged by the defence's insufficient access to the case file. The majority of lawyers surveyed believe that the proceedings and investigations are not conducted more diligently and effectively because a pre-trial detainee is involved. 8. Recommendations The conclusions of the research indicate that the practice of pre-trial detention decision-making in Poland falls short of the European Court of Human Rights standards in a number of areas. In light of these findings, the main recommendations are the following: a. The legislator should consider clarifying the prerequisites for pre-trial detention contained in the Code of Criminal Procedure. b. The legislator should introduce a maximum duration of pre-trial detention. Optionally, the authority to extend the duration of pre-trial detention beyond the limit in exceptional circumstances should be vested in the Supreme Court. c. The legislator should introduce the rule that cases of persons in pre-trial detention should take precedence over other cases on a judge's docket. d. The legislator should introduce a provision on the defendant's obligatory presence at all pre-trial detention hearings. e. The legislator should introduce obligatory legal representation in cases where a prosecutor requests pre-trial detention or alternatives to detention. f. The amounts awarded as compensation in cases of unlawful pre-trial detention should be increased. g. The legislator should consider introducing new preventive measures (home detention and electronic monitoring) into the Code of Criminal Procedure. h. The Institute of Justice could undertake further research on non-custodial preventive measures, including their perception among the representatives of the justice system. i. The Ministry of Justice, the National School of Judiciary and Public Prosecution and the Prosecutor General should conduct more training on pre-trial detention standards. j. The authorities should ensure effective implementation of the Code of Criminal Procedure in relation to access to case files and guidance on pre-trial decision-making. k. The authorities should also ensure proper implementation of the case-law of the European Court of Human Rights. Details: Warsaw: Helsinki Foundation for Human Rights, 2015. 86p. Source: Internet Resource: Accessed April 10, 2017 at: http://www.hfhr.pl/wp-content/uploads/2016/02/HFHR_PTD_2015_EN.pdf Year: 2015 Country: Poland URL: http://www.hfhr.pl/wp-content/uploads/2016/02/HFHR_PTD_2015_EN.pdf Shelf Number: 144772 Keywords: Criminal DefendantsCriminal ProcedurePretrial DetentionPretrial Release |
Author: Levine, Kate Title: Discipline and Policing Summary: A prime focus of police reform advocates is the transparency of police discipline. Indeed, transparency is one of if not the most popular accountability solutions for a wide swath of policing problems. This Article examines the "transparency cure" as it applies to Police Disciplinary Records ("PDRs"). These records are part of an officer's personnel file and contain reported wrongdoing from supervisors, Internal Affairs Bureaus, and Citizen Complaint Review Boards. This Article argues that making PDRs public is worthy of skeptical examination. First, it problematizes the notion that transparency is a worthy end-goal for those who desire to see police reform in general. Transparency is often seen as a solution with no downside, but this Article argues that, in the realm of PDRs, it comes with at least two major tradeoffs: first making PDRs public will not lead to the accountability that advocates seek, and in fact may cause retrenchment from police departments. Second, transparency on an individual level necessarily comes with major privacy tradeoffs. The problem with individualized transparency is not theoretical. in fact, it has been much critiqued by scholars in a different but comparable realm: the wide dissemination of criminal records. PDRs and criminal records have similar problems: due process issues, inaccuracy, arbitrary and discriminatory enforcement, and permanent reputational harm. Indeed, the rhetoric used by law enforcement to defend their privacy rights sounds almost identical to the critiques scholars make of criminal record transparency. This Article argues that the comparison of PDRs and Criminal Records is instructive because it allows us to view criminal records through a new lens. As with criminal record publication, forced PDR transparency will likely not solve the problems advocates hope it will. Thus, the Article concludes that a more nuanced regime should be put in place for PDRs, and that advocates should use law enforcement rhetoric to support a more privacy-protective regime for criminal records. Details: Unpublished paper, 2018. 64p. Source: Internet Resource: Accessed May 9, 2018 at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3130980 Year: 2018 Country: United States URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3130980 Shelf Number: 150124 Keywords: Criminal ProcedurePolice AccountabilityPolice DisciplinePolicing |
Author: Volkov, Vadim Title: The Prosecutor Effects in Trials for Petty Violent Offences in Russia Summary: The Russian Criminal Procedure Code specifies two possible types of trial for petty violent offences. The normal procedure is referred to as private prosecution. The victim initiates the case by submitting the claim directly to the court and acts as prosecutor. The second possible trial type for the same category of offences includes preliminary investigation by the police and the participation of the public prosecutor in court hearings on behalf of the victim. In practice both procedures are used with comparable frequency. The paper utilizes this duality of procedure and employs the quasi-experimental nonequivalent control group design to compare trial outcomes in the two types of trial and examine the effects associated with the participation of the public prosecutor in court. It uses two datasets: (a) that includes information on the entire population of defendants tried for offences in question between 2009 and 2013 and, (b) that resulted from the one-to-one merger of (a) with the dataset generated from court verdict texts available online. Controlling for the selection of cases into the public prosecutor track as well as for legal and extralegal characteristics of offence and offender, the analysis establishes that the participation of the public prosecutor in trials reduces the probability of acquittal and increases the probability of reconciliation of parties and case dismissal (conditional upon the admission of guilt). Another dimension of the public prosecutor effect is the mitigation of disparities in the likelihood of acquittal associated with the occupational status of defendant, save for the law enforcement employees. The latter are more likely to be acquitted than defendants with other occupational status and are less probable to reconcile with the victim. Details: Unpublished paper, 2018. 17p. Source: Internet Resource: Accessed May 16, 2018 at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3130646 Year: 2018 Country: Russia URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3130646 Shelf Number: 150243 Keywords: Criminal ProcedureCriminal Trials Prosecution Prosecutors Violent Crime |
Author: Hartlen, Chelsea D.M. Title: Managing Criminal Women in Scotland: An Assessment of the Scarcity of Female Offenders in the Records of the High Court of Justiciary, 1524-1542 Summary: The records of Scotland's High Court of Justiciary that run from 1524 to 1542 contain a remarkably low number of women charged with felonies and pleas of the crown, and reveal the justiciar's reluctance to convict or execute female offenders. Criminal procedure and jurisdiction afforded victims and kin opportunities to deal with deviant women before they attracted the attention of the king and his justiciar. Moreover, in the Borders, remote central governance, minority rulers and feuding encouraged a quasilegal system of private justice that operated within the organising principal of kindred to maintain order. In Scotland, this manifested in a sorting process that kept women out of the justice court and under the management of local officials and kindred. This thesis examines these documents in order to understand better the experiences of women before the law and the efficacy of centralised governance and private justice in sixteenth-century Scotland. Details: Halifax, Nova Scotia: Dalhousie University, 2014. 183p. Source: Internet Resource: Thesis: Accessed August 2, 2018 at: https://dalspace.library.dal.ca/bitstream/handle/10222/53870/Hartlen-Chelsea-MA-HIST-August-2014.pdf?sequence=3 Year: 2014 Country: United Kingdom URL: https://dalspace.library.dal.ca/bitstream/handle/10222/53870/Hartlen-Chelsea-MA-HIST-August-2014.pdf?sequence=3 Shelf Number: 151009 Keywords: Criminal CourtsCriminal ProcedureFemale OffendersHistorical StudyWomen Offenders |
Author: Scott, Emily Title: Justice Diverted? Prosecutorial discretion and and the use of diversion schemes in Victoria Summary: Diversion programs are theoretically available to all Victorians facing their first minor criminal charge. These programs give people the opportunity to be "diverted" from the justice system and avoid a criminal record, with the opportunity to participate in rehabilitative programs and contribute to the community. It has been shown that participation in such programs reduces the likelihood of reoffending. However, a key barrier to being accepted into these programs is the requirement that the prosecution consent. Where the prosecution refuse to consent to diversion, this decision is not made in open Court and cannot be subject to review. Such a lack of transparency creates great scope for inconsistency and prejudice, which detrimentally impacts minority groups. Chapter 1 outlines the background and current legislative framework for the adult and youth diversion schemes. Chapter 2 discusses why the diversion program is an integral part of the criminal justice system. Chapter 3 identifies the issues that are impeding the success of the diversion schemes and focuses on the impact of diversion schemes on vulnerable groups, namely, Aboriginal and Torres Islander (ATSI) people, culturally and linguistically diverse (CALD) communities, and survivors of family violence. Chapter 4 highlights the legal issues implicit within the current legislative framework governing adult and youth diversion. Chapter 5 presents our recommendations for legislative and practical reforms, based on our research and consultations with key stakeholders. Details: Melbourne: Liberty Victoria, 2018. 40p. Source: Internet Resource: Accessed August 8, 2018 at: http://apo.org.au/system/files/172361/apo-nid172361-769821.pdf Year: 2018 Country: Australia URL: http://apo.org.au/system/files/172361/apo-nid172361-769821.pdf Shelf Number: 0 Keywords: Criminal Courts Criminal ProcedureDiversion Prosecutorial Discretion |
Author: Leonaite, Erika Title: Inside Police Custody 2. Suspects' Procedural Rights in Lithuania Summary: Data obtained by police during the first questioning of the suspect is often of vital importance for the case. Thus, it is important to ensure that during the questioning the main procedural rights of suspects - right to interpretation, right to information, right to effective defence - are respected. These procedural rights are enshrined both in European Union directives and in Lithuanian law, regulating criminal procedure. In order to find out how procedural rights operate in day-to-day practice of police investigators, researchers from the Human Rights Monitoring Institute conducted observation-based research. Researchers observed questionings of arrested suspects and conducted qualitative interviews with police investigators and defence lawyers. This research, based on data from real-life questionings, enabled us to identify the main areas of concern, revealing gaps between legal regulation and daily practice of police investigators. At the same time, examples of good practices, applied by some investigators and demonstrating professional attitude towards procedural standards, were observed as well. This research conducted in Lithuania is part of a wider-scale regional project, carried out in eight other EU countries - Austria, Bulgaria, Hungary, Italy, Poland, Slovenia, Romania, and Spain. Details: Vilnius, Lithuania: Human Rights Monitoring Institute (HRMI), 2018. 115p. Source: Internet Resource: Accessed May 4, 2019 at: https://hrmi.lt/wp-content/uploads/2019/03/National_report_Lithuania_2018.pdf Year: 2018 Country: Lithuania URL: https://hrmi.lt/wp-content/uploads/2019/03/National_report_Lithuania_2018.pdf Shelf Number: 155663 Keywords: Accused PersonsCriminal ProcedurePolice CustodyPolice InvestigationsPolice ProceduresProcedural RightsSuspects Rights |