Researchers studying human behavioral genetics have made significant scientific progress in enhancing our understanding of the relative contributions of genetics and the environment in observed variations in human behavior. Quickly outpacing the advances in the science are its applications in the criminal justice system. Already, human behavioral genetics research has been introduced in the U.S. criminal justice system, and its use will only become more prevalent. This essay discusses the recent historical use of behavioral genetics in criminal (...) cases, recent advances in two gene variants of particular interest in the criminal law, MAOA and SLC6A4, the recent expert testimony on behalf of criminal defendants with respect to these two gene variants, and the future direction of behavioral genetics evidence in criminal cases. (shrink)

The Criminal Cases Review Commission (CCRC) was the first publicly funded body created to investigate claims of wrongful conviction, with the power to refer cases to the Court of Appeal. In other countries, such as Australia, Canada and the United States, many regard the CCRC as the optimal solution to wrongful conviction and, for years, Innocence Projects in these countries have called for the establishment of a CCRC-style body in their own jurisdictions. However, it is now Innocence (...) Projects which are being introduced in England and Wales to try to assist applicants who are innocent but convicted. This article reviews why the CCRC was created, discusses the role of factual innocence within this body and within the criminal justice system generally and explores why Innocence Projects are being created in England and Wales, despite the presence of the CCRC. It explains how these different organizations may work together to assist factually innocent people who have been wrongly convicted, and the role Innocence Projects may play generally in criminal justice reform and legal education. (shrink)

In this paper a new use case for legal argumentation support tools is considered: supporting discussions about analyses of complex criminal cases with the help of Bayesian probability theory. By way of a case study, two actual discussions between experts in court cases are analysed on their argumentation structure. In this study the usefulness of several recognised argument schemes is confirmed, a new argument scheme for arguments from statistics are proposed, and an analysis is given of debates (...) between experts about the validity of their arguments. From a practical point of view the case study yields insights into the design of support software for discussions about Bayesian analyses of complex criminal cases. (shrink)

Whenever a litigant needs to prove that a certain result was caused in a specific way, what could be more compelling than citing the infinitesimal probability of that result emanating from an alternative natural cause? Contrary to this intuitive position, in the present article, I argue that the contention that a result was due to a certain cause should remain unaffected by statistical evidence of the extremely low probability of an alternative cause. The only scenario in which the low probability (...) of a natural cause would be relevant to the case at hand is if it were contrasted with another piece of statistical evidence: the frequency of the criminal activity among people who are similar to the accused. However, by connecting the use of probabilistic generalisations in legal fact-finding to the issue of free will, I hold that, in Criminal Law, contrasting frequencies in this manner is objectionable—as a matter of principle—regardless of how reliable the statistical analysis is. Consequently, if the low probability of a natural cause is probative only if contrasted with another piece of statistical evidence that is objectionable, then neither piece of evidence should be admitted in criminal trials. (shrink)

Analysis of the U.S., Canadian and English approaches to excluding illegally obtained real evidence, which passes the threshold test of authenticity, probative value and relevance, reveals various ways in which poisoned truths are treated in criminal legal systems. A person who has no interaction with the criminal legal system may of course be considerably sympathetic to the English rule which attempts always to reveal the immediate truth. For if one considers only an individual criminal case, the English (...) rule certainlyappears to value truth above all else. However, a contextual analysis makes it clear that there is a systemic effect in always revealing the truth that may result in fewer incidents of the truth being revealed in the future than if the immediate truth were suppressed in a particular case. The U.S. and Canadian exclusionary rules recognize the systemic harm of automatically revealing all truths the moment the truths become apparent. While the U.S. courts have had trouble agreeing on the rationale for excluding illegally obtained real evidence, they have come up with a rule which in the end balances the immediate harm of exclusion of the truth and the systemic harm of its inclusion. The U.S. rule is also very predictable, clearly setting out when a future truth is threatened by revealing an immediate truth. The Canadian rule is in the early stages of development, and, while there is a clearly stated rationale that seeks a justice of truth, it is not sufficiently concrete to allow one to predict when the rationale of a justice of truth will be achieved. In the final analysis, and in contrast to the English exclusionary rule, both the Canadian and U.S. rules address thesystemic harm of always including illegally obtained real evidence. (shrink)

Discussion in the paper focuses on instituting a requirement that juries in criminal cases make public the reasons for their verdicts. The nature of such a requirement is elaborated, as is the way in which defects in the reasons provided might serve as a basis for appealing convictions. Various arguments for adopting such a requirement are considered, as are objections to doing so. In support of the requirement, I contend that it would enable defendants in criminal (...) class='Hi'>cases to ensure that their procedural rights have been respected. Such a requirement can also be construed as a condition of the legitimacy of exercises of political power and as an implication of the right of each person to be treated with equal concern and respect. The main objections to such a requirement concern its possible interference with jury independence and the complications and inefficiencies appeals of reasoned verdicts would produce. (shrink)

Criminal justice is primarily designed to serve the public interest in relation to criminal acts. Restorative justice is designed to address the harm-related needs of individuals in the aftermath of wrongdoing. These distinct aims require such different processes and priorities that any attempt to integrate restorative justice within the criminal justice system will almost invariably undermine the quality and effectiveness of both. In this book, the author argues that the optimal relationship between the two should therefore be (...) one of maximum independence: the instruments of the state should not be used to impose or enforce the decision to participate in restorative justice, any component of the restorative justice process or its outcome. It is also suggested that, in the absence of legislative innovation, this kind of separation is likely to require that restorative justice is situated after a case has actually exited the justice system, or after it has, in legal terms, effectively done so, as in a post-sentence context. [Note: The publisher offers a 40% discount on this book (conditions apply). Please see the author's website: "Relational Approaches" for details.]. (shrink)

Mr. C was a 62-year-old Chinese-American man suffering from end stage liver disease secondary to Hepatitis C. While on the waiting list for a liver, he was told that his current condition and MELD score were not advanced enough to expect a liver transplant for several years. Because of his chronic fatigue, he asked if there was any way to speed up the process but was told that was not possible.

This book addresses the European Court of Human Rights’ fairness standards in criminal appeal, filling a gap in this less researched area of studies. Based on a fair trial immediacy requirement, the Court has found several violations of Article 6 of the European Convention on Human Rights at the appellate level by at least eighteen States of the Council of Europe in a vast array of cases, particularly in contexts of first instance acquittals overturning and of sentences increasing (...) on appeal. -/- On the one hand, the book critically engages this case-law with the law revisions it has recently inspired in European countries, as well as with the critiques and difficulties that it continues to raise. On the other hand, it interweaves insight from criminal procedure theory with new discoveries in the field of cognitive sciences (neuroscience of memory, philosophy of knowledge, AI), shedding an interdisciplinary light on the (in)adequacy and limits of the Strasbourg Court’s jurisprudence. (shrink)

Commentators seemingly agree about what negligence is—and how it is contrasted from recklessness. They also appear to concur about whether particular examples (both real and hypothetical) portray negligence. I am less confident about each of these matters. I explore the distinction between recklessness and negligence by examining a type of case that has generated a good deal of critical discussion: those in which a defendant forgets that he has created a substantial and unjustifiable risk of harm. Even in this limited (...) kind of example, no single perspective on blame and liability proves to be defensible. Nonetheless, a discussion of this type of case is helpful because it enables us to appreciate the difficulties in understanding the nature of negligence and the ensuing uncertainty about whether penal liability for negligence is ever warranted. (shrink)

Language-related right in the legal proceedings is mostly associated with access to interpreting. Literature on the bilingual courtroom primarily centres on the role of interpreters in the intercultural communication. This paper, drawing on discourse analysis of a case study in a Chinese criminal court, investigates the atypical role played by an interpreter when she ceases to be an active participant in the bilingual interaction. It discusses how language ideology underlying the judicial practice could transform the role of the interpreter (...) and convert the bilingual arterial into a monolingual one. Situating the analysis in the wider social and legal context of Chinese criminal justice system, this paper attempts to explain and interpret the judicial behaviour to keep the interpreter silent and the impact on the language rights enjoyed by the minority-language-speaking defendants. (shrink)

‘Optimistic’ normative theories of criminal justice aim to justify criminal sanction in terms of its reprobative/rehabilitative value rather than its punitive nature as such. But do such theories accord with ordinary intuitions about what constitutes a ‘just’ response to wrongdoing? Recent empirical work on the psychology of punishers suggests that human beings have a ‘brutely retributive’ moral psychology, making them unlikely to endorse normative theories that sacrifice retribution for the sake of reprobation or rehabilitation; it would mean, for (...) example, that we cannot expect people to support such optimistic theories democratically, calling their feasibility into question. Taking the civic republican theory as an exemplar of optimistic theories, we argue that it does not fail this feasibility test. We review recent empirical research, including studies of our own, to support the claim that, far from being brute retributivists, human beings are generally satisfied only with punishment that delivers something other than mere retribution. And we show that this coheres very closely with the goals and policies that civic republicanism would support, as it may be expected to cohere also with other optimistic proposals. (shrink)

The Codification of Islamic Criminal Law in the Sudan: Penal Codes and Supreme Court Case Law under Numayrī and al-Bashīr. By Olaf Köndgen. Studies in Islamic Law and Society, vol. 43. Leiden: Brill, 2018. Pp. xii + 480. $171, €149.

Arguments in favour of strengthening the rights of victim–survivors in the criminal justice process have largely been made within the framework of a human rights perspective and with a view to meeting their procedural needs and minimising their experiences of secondary victimisation. In this article, however, I ask whether the prevalent legal arrangement, whereby victim–survivors are assigned the legal status of witnesses in criminal cases, with limited if any rights, is a just arrangement. In order to answer (...) this question, the article draws on interviews with 35 victim–survivors of sexual violence in Iceland. The interviews are presented against the backdrop of Nordic legal thinking and are interpreted in the context of Nancy Fraser’s democratic theory of justice. On the basis of the findings, I argue that assigning complainants the role of witnesses constitutes a case of misframing that results in misrecognition throughout the criminal justice process. (shrink)

This paper analyses the role of remorse and apology in international criminal trials by juxtaposing two prominent cases of convicted war criminals Biljana Plavšić and Esad Landžo. Plavšić was the first and only Bosnian Serb political leader to plead guilty before the International Criminal Tribunal for the former Yugoslavia. Her acknowledgement of guilt and purported remorse expressed during her ICTY proceedings was celebrated as a milestone for both the ICTY and the Balkans. However, she later retracted her (...) remorse while serving her prison sentence. Landžo was a guard at the notorious Čelebići detention camp and did not acknowledge his guilt publicly during his ICTY trial. Seven years after his release from prison, Landžo personally confronted survivors and apologised to them. Through comparison of these two widely different cases, we illustrate varying roles criminal trials can play in offender’s reflection on his/her crimes and how relevance and resonance of war criminal’s remorse in and outside of the courtroom depend on how remorse is expressed and to whom. (shrink)

Name der Zeitschrift: Semiotica Jahrgang: 2017 Heft: 216 Seiten: 423-450.

Should we use the same standard of proof to adjudicate guilt for murder and petty theft? Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law. This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes. I reject consequentialist arguments for a radically flexible standard (...) of proof, instead defending a modestly flexible approach on non-consequentialist grounds. The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments. This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society. (shrink)

The purpose of this article is to continue the discussion on Europe’s converging criminal justice systems. In particular, I test a hypothesis that has recently appeared in the literature, which sees the jurisprudence of the European Court of Human Rights as one of the most significant factors that encourage a harmonization process between the adversarial and inquisitorial criminal justice systems of Europe. This claim is supported by examining the Court’s jurisprudence to identify decisions that led to legislative and (...) policy amendments in the domestic legal orders of the 46 member states of the Council of Europe. This account shows how an interplay currently taking place between judicial, policy, and statutory powers is marking the end of the adversarial-inquisitorial era. Finally, the conclusion identifies the three most important impediments that are likely to hamper this harmonization process. (shrink)

Should we use the same standard of proof to adjudicate guilt for murder and petty theft? Why not tailor the standard of proof to the crime? These relatively neglected questions cut to the heart of central issues in the philosophy of law. This paper scrutinises whether we ought to use the same standard for all criminal cases, in contrast with a flexible approach that uses different standards for different crimes. I reject consequentialist arguments for a radically flexible standard (...) of proof, instead defending a modestly flexible approach on non-consequentialist grounds. The system I defend is one on which we should impose a higher standard of proof for crimes that attract more severe punishments. This proposal, although apparently revisionary, accords with a plausible theory concerning the epistemology of legal judgments and the role they play in society. (shrink)

This book reflects the belief that a careful study of the Law of Attempts should be both interesting in itself, as well as being a productive route into a number of larger and deeper issues in criminal law theory and in the philosophy of action. By identifying the legal doctrines which courts and legislatures have developed or adopted, the author goes on to ask whether and how they can be rationalized or rendered persuasive. Such an approach involves paying detailed (...) attention to cases. The book is also unusual in that it grapples with English, Scots and US law, showing great breadth of research as well as philosophical sophistication. This is a work which is likely to become a seminal study and a major contribution to the study of law and legal philosophy. (shrink)

Criminalization is a form of social marginalization that is little appreciated as a determinant of poor health. Criminalization can be understood in at least two ways — in the narrow sense as the imposition of criminal penalties for a certain behavior, and more broadly as the conferral of a criminalized status on all individuals in the population, whether proven guilty of a specific offense or not. Both criminal penalties and criminalized status threaten the mental and physical health of (...) these populations in many ways. Incarceration, abandonment by families and communities, social disdain, physical abuse, discrimination, and relentless fear undermine their ability to enjoy their right to the highest attainable standard of health goods and services. Understanding the social determinants of health in these populations and formulating programs to address them have rarely been high priorities in national or international policy. (shrink)

Criminal sanctions are typically inflicted by the state. The central role of the state in determining the severity of these sanctions and inflicting them requires justification. One justification for state-inflicted sanctions is simply that the state is more likely than other agents to determine accurately what a wrongdoer justly deserves and to inflict a just sanction on those who deserve it. Hence, in principle, the state could be replaced by other agents, for example, private individuals. This hypothesis has given (...) rise to recent calls to reform the state's criminal justice system by introducing privately inflicted sanctions, for example, shaming penalties, private prisons, or private probationary services. This paper challenges this view and argues that the agency of the state is indispensable to criminal sanctions. Privately inflicted sanctions sever the link between the state's judgments concerning the wrongfulness of the action and the appropriateness of the sanction and the infliction of sufferings on the criminal. When a private individual inflicts punishment, she acts on what she and not the state judges to be a justified response to a criminal act. Privately inflicted sanctions for violations of criminal laws are not grounded in the judgments of the appropriate agent, namely the state. It is impermissible on the part of the state to approve, encourage, or initiate the infliction of a sanction on an alleged wrongdoer on the basis of a private judgment. Such an approval grants undue weight to the private judgment of the individual who inflicts the sanction. (shrink)

Two significant, apparently unrelated, trends have emerged in American society and medicine. First, American medicine is reexamining its approach to dying. The Institute of Medicine, the American Medical Association and private funding organizations have recognized that too many dying people suffer from pain and other distress that clinicians can prevent or relieve. Second, this past decade has marked a sharp increase in the number of physicians prosecuted for criminal negligence based on arguably negligent patient care. The case often cited (...) as a watershed is People u. Einaugfer, which involved a New York nursing home patient whose physician was convicted in 1993 of two criminal misdemeanors after he ordered an elderly dialysis patient to be tube fed through a peritoneal dialysis Catheter.How is the growing awareness of dying patients’ pain and the increasing willingness of prosecutors to charge physicians with crimes connected? Pain at the end of life is frequently treated with narcotics, prescription drugs that are closely regulated by state and federal law. That complex web of laws—and a growing fear of legal sanctions—has deterred physicians from prescribing controlled substances. As those legal sanctions move from disciplinary actions to criminal charges, physicians’ fears may expand. (shrink)

Two significant, apparently unrelated, trends have emerged in American society and medicine. First, American medicine is reexamining its approach to dying. The Institute of Medicine, the American Medical Association and private funding organizations have recognized that too many dying people suffer from pain and other distress that clinicians can prevent or relieve. Second, this past decade has marked a sharp increase in the number of physicians prosecuted for criminal negligence based on arguably negligent patient care. The case often cited (...) as a watershed is People u. Einaugfer, which involved a New York nursing home patient whose physician was convicted in 1993 of two criminal misdemeanors after he ordered an elderly dialysis patient to be tube fed through a peritoneal dialysis Catheter.How is the growing awareness of dying patients’ pain and the increasing willingness of prosecutors to charge physicians with crimes connected? Pain at the end of life is frequently treated with narcotics, prescription drugs that are closely regulated by state and federal law. That complex web of laws—and a growing fear of legal sanctions—has deterred physicians from prescribing controlled substances. As those legal sanctions move from disciplinary actions to criminal charges, physicians’ fears may expand. (shrink)

This article presents the conception of negligent account management, analyses the rules of the criminal act that govern criminal liability for negligent account management, by focussing on the form of guilt and the problem of its content. The plenary session’s conclusion that the two offences – failure to administer bookkeeping and failure to protect the bookkeeping documents – can be committed both intentionally and negligently is disputed in this article. The adoption of the new Criminal Code in (...) 2000, setting the form of guilt and its content in criminal cases for negligent account management, posed no significant problems – the court practice and legal literature followed the attitude that this crime could be committed only negligently. According to Article 16(4) of the Criminal Code 2000, a person is punished for negligent commission of a crime or a misdemeanour only in individual cases stipulated in the Special Part of the Criminal Code. The problem was that no “individual case” was foreseen in Article 223 of the Criminal Code that imposed liability for negligent bookkeeping. This created preconditions for deviating from pre-existing case-law under which this crime could be qualified as negligent. Only in 2009 the Criminal Division of the Lithuanian Supreme Court concluded in its plenary session that Article 223 of the Criminal Code provided liability for criminal record-keeping and accounting only if committed negligently as a form of guilt, and other activities pursuant to this Article might be committed intentionally and recklessly. The plenary session identified a loophole of criminal law and created preconditions for the formation of uniform court practice. Only the legislator can remove the loophole of criminal law identified by the Supreme Court of Lithuania. The author states that all of the acts named in Article 223 of the Criminal Code can be committed negligently and suggests applying the rule contained in Article 16(4) of the Criminal Code to Article 223 of the Criminal Code. All of these findings are based on historical, grammatical and logical interpretation of the “neglect” concept and the analysis of Articles 222 and 223 of the Criminal Code. (shrink)

The modern Lithuanian legal doctrine recognises that criminal liability is a last resort (ultima ratio) protecting the society from various law violations. This idea has got deep roots in criminology and is obviously based on the position of rational approach towards the state criminal policy. However, it is not clear whether it is of obligatory legal status to the legislature and the courts. This article attempts to present the idea of a last resort as a concept based on (...) the constitutional principles of the rule of law, justice, proportionality and rationality in the legislation and case law. The author concludes that the main precursors of the ultima ratio principle are the German legal doctrine of protection of legal goods (Rechtsgüterschutz) and Harm principle respected in the common law tradition, as well as the need for protection of human rights in the democratic world. These concepts raise the duty of the legislator to justify the act of criminalisation by legitimate purpose and to comply with certain constitutional limits of application of criminal law. The idea of criminal liability as a last resort is recognised both in the jurisprudence of the Constitutional Court (obiter dictum) and in the practice of the Supreme Court of Lithuania reasoning particular decisions in criminal cases, especially delimiting criminal and other types of legal liability. The author concludes that the fact of discrepancy of criminal law to ultima ratio test can be one of the arguments in support of its objection to the Constitution and even the European Convention on Human Rights and Fundamental Freedoms. At the same time, the author of the article has found that many norms of the Criminal Code are in conflict with the idea of a last resort. (shrink)

RESUMEN: La labor del Tribunal Penal Internacional para la Ex-Yugoslavia tuvo un momento importante en la compresión del principio de legalidad, como principio básico en la garantía de los derechos humanos, al enfrentar no sólo el derecho consuetudinario como fuente de derecho sino también diferentes modos o enfoques en la identificación de este derecho consuetudinario. Esta relación debe ser analizada a la luz de las limitaciones que tiene el derecho internacional y, sobre todo, de los procedimientos de creación de normas. (...) No resulta fácil exigir responsabilidad en el cumplimiento del derecho internacional humanitario y de los derechos humanos. La práctica de este Tribunal abre una vía para la reflexión con la finalidad de asegurar el respeto de los derechos humanos en cualquier circunstancia, incluso de aquellos que llevaron a cabo la comisión de graves crímenes contra la comunidad internacional.ABSTRACT: The work of the International Criminal Tribunal for the former Yugoslavia was important for understanding the principle of legality as a key principle on the guarantee of Human Rights. The former was due to the Tribunal’s work on having faced the customary law as a source of law using different perspectives for its identification. The link between customary law, principle of legality and human rights has to be analyzed taking in account the limits of International law and the procedures for creating legal norms. It is not easy to invoke responsibility in the fulfillment of international humanitarian law and international law of human rights. The practice developed by this Tribunal provides an avenue for thinking about ensuring the respect of the human rights in any case including the commission of grave crimes against international community. PALABRAS CLAVE: derecho internacional de los derechos humanos, principio de legalidad, derecho internacional humanitario, costumbre internacionalKEYWORDS: international law of human rights, principle of legality, international humanitarian law, international custom. (shrink)

According to a number of influential views in penal theory, 1 one of the primary goals of the criminal justice system is to rehabilitate offenders. Rehabilitativemeasures are commonly included as a part of a criminal sentence. For example, in some jurisdictions judges may order violent offenders to attend anger management classes or to undergo cognitive behavioural therapy as a part of their sentences. In a limited number of cases, neurointerventions — interventions that exert a direct biological effect (...) on the brain — have been used as aids to rehabilitation, typically being imposed as part of criminal sentences, separate treatment orders, or conditions of parole. Examples of such interventions include medications intended to attenuate addictive desires in substance-abusing offenders and agents intended to suppress libido in sex offenders.This chapter reviews some of the ethical issues raised by the use of neurointerventions as aids to rehabilitation. (shrink)

Disagreement persists about when, if at all, disenfranchisement is a fitting response to criminal wrongdoing of type X. Positive retributivists endorse a permissive view of fittingness: on this view, disenfranchising a remarkably wide range of morally serious criminal wrongdoers is justified. But defining fittingness in the context of criminal disenfranchisement in such broad terms is implausible, since many crimes sanctioned via disenfranchisement have little to do with democratic participation in the first place: the link between the nature (...) of a criminal act X (the ‘desert basis’) and a fitting sanction Y is insufficiently direct in such cases. I define a new, much narrower account of the kind of criminal wrongdoing which is a more plausible desert basis for disenfranchisement: ‘political wrongdoing’, such as electioneering, corruption, or conspiracy with foreign powers. I conclude that widespread blanket and post-incarceration disenfranchisement policies are overinclusive, because they disenfranchise persons guilty of serious, but non-political, criminal wrongdoing. While such overinclusiveness is objectionable in any context, it is particularly objectionable in circumstances in which it has additional large-scale collateral consequences, for instance by perpetuating existing structures of racial injustice. At the same time, current policies are underinclusive, thus hindering the aim of holding political wrongdoers accountable. (shrink)

Organ trafficking and trafficking in persons for the purpose of organ transplantation are recognized as significant international problems. Yet these forms of trafficking are largely left out of international criminal law regimes and to some extent of domestic criminal law regimes as well. Trafficking of organs or persons for their organs does not come within the jurisdiction of the ICC, except in very special cases such as when conducted in a manner that conforms to the definitions of (...) genocide or crimes against humanity. Although the United States Code characterizes trafficking as a transnational crime with national implications, (22 U.S.C. § 7101(b)(24) (2010)), trafficking is rarely prosecuted in domestic courts. It has thus functioned in practice largely as what might be judged a stateless offense, out of the purview of both international and national courts. Yet these forms of organ trafficking remain widespread—and devastating to those who are its victims. In this article, we begin by describing what is known about the extent of organ trafficking and trafficking in persons for the purpose of removal of organs. We then critically evaluate how and why such trafficking has remained largely unaddressed by both international and domestic criminal law regimes. This state of affairs, we argue, presents a missed chance for developing the legitimacy of international criminal law and an illustration of how far current international legal institutions remain from ideal justice. (shrink)

The question addressed here is whether evidence concerning defendants' past criminal records should be introduced at their trials because such evidence reveals their character and thus reveals whether they are the kinds of persons likely to have committed the crimes with which they are currently charged. I strongly caution against the introduction of such evidence for a number of reasons. First, the link between defendants' past criminal records and claims about their standing dispositions to think and act is (...) tenuous, at best. Second, noncharacter, or trace, evidence should have primacy in determining the guilt or innocence of defendants. Third, character evidence will vary in its freshness and specificity. Other things being equal, only relatively fresh and specific character evidence has probative value. Moreover, such evidence will have greater probative value in criminal cases where the issue before the court is whether a crime has been committed than in cases where the issue is whether it was the defendant who committed the crime. Finally, we might be more sanguine about the introduction of fresh and specific character evidence under conditions likely to work against its misuse or misinterpretation. However, the relevant conditions may not often be satisfied in the real world of criminal trials and defendants. (shrink)

This paper puts the famous story of Jekyll and Hyde to work for a specific analytic purpose. The question of responsibility for crime, complicated by the divided subjectivity implicit in Mr. Hyde’s appearance, and illuminated by Robert Louis Stevenson’s grasp of contemporary psychiatric, evolutionary and medical thought as promising new technologies for effecting a distinction between criminality and innocence, is key to the interest of the story. I argue that Jekyll and Hyde serves as a powerful metaphor both for specifically (...) late Victorian perplexities about criminality and criminal responsibility, and for more persistently troubling questions about the legitimacy of and practical basis for criminalization. A close reading of the story illustrates the complex mix of elements bearing on criminal responsibility-attribution, and—incidentally—helps to explain what is wrong with the influential argument that, by the end of the nineteenth Century, attributions of responsibility in English criminal law already rested primarily and unambiguously on factual findings about the defendant’s state of mind. Far from representing the triumph of a practice of responsibility-attribution grounded in the assessment of whether the defendant’s capacities were fully engaged, I argue that the terrain of mental derangement defences in late nineteenth Century England helps us to understand that longer-standing patterns of moral evaluation of character remained central to the criminal process. And precisely because ‘character’ remained key to the institutional effort to distinguish criminality and innocence, the ‘terror’ of Stevenson’s story resides in its questioning of whether either scientific knowledge or moral evaluation of character can provide a stable basis for attributions of responsibility. In conclusion, I will also suggest that Stevenson’s tale can help us to make sense of the resurgence of overtly ‘character-based’ practices of responsibility attribution in contemporary Britain and the United States, which themselves reflect a renewed crisis of confidence in our ability to effect a ‘dissociation’ between criminality and innocence. (shrink)

In her recent book The Limits of Blame, Erin Kelly argues that we should rethink the nature of punishment because delivering blame is, contrary to the widely held view, not among the justifiable aims of a criminal justice system. In this paper, firstly, I discuss her case against criminal blame. Kelly argues that the emphasis on blame in the criminal justice system and in public discourse is one of the main causes of the stigma and exclusion faced (...) by those convicted for a crime. This claim might appear puzzling and, while she provides other convincing arguments against criminal blame, Kelly does not extensively defend this particular argument. To offer support for this view, I reflect on the often overlooked distinction between moral blame and criminal blame to show how the latter, unlike the former, is exclusionary and stigmatising. Secondly, I address the claim put forth by Kelly that blame should play no role in the criminal justice system at all. In light of her argument about the optional nature of moral blame, I explore the possibility that the state should leave open to victims the option to blame criminal wrongdoers in restorative justice conferences. I argue that in such contexts blame would not have the same exclusionary features of criminal blame in traditional settings and that it could serve some valuable aims articulated by communicative theories of punishment, such as the restoration of moral relationships. (shrink)

In the last two decades, the philosophy of criminal law has undergone a vibrant revival in Canada. The adoption of the Charter of Rights and Freedoms has given the Supreme Court of Canada unprecedented latitude to engage with principles of legal, moral, and political philosophy when elaborating its criminal law jurisprudence. Canadian scholars have followed suit by paying increased attention to the philosophical foundations of domestic criminal law. Because of Canada's leadership in international criminal law, both (...) at the level of the International Criminal Court and of specific war crimes tribunals, they have also begun to turn their attention to international criminal law per se. This collection seeks to bring all these Canadian voices together for the first time, and evidence the fact that criminal law theory is no longer to be associated exclusively with the older British, German and American traditions. The topics covered include questions of philosophical methodology, the legitimate scope of domestic and international criminalization, rationales for criminal law defences in both domestic and international law, the philosophical underpinnings of specific crimes and forms of joint responsibility, as well as the theorization of criminal procedure and evidence law. ENDORSEMENTS "In continental Europe, academic commentary on the criminal law has long manifested large philosophical ambitions. Less so in common-law countries, where the dominance of jury trial and the piecemeal development of case-law, together with the famously robust attitudes of common lawyers, have militated against detailed philosophical engagement with doctrine. Over the last 20 years or so, however, new generations of philosophically-literate lawyers and legally-informed philosophers have overcome the historic resistance. Nowhere more so, it seems, than in Canada, where the common law and civilian traditions meet. In 'Rethinking Criminal Law Theory', François Tanguay-Renaud and James Stribopoulos have joined with 14 talented Canadian colleagues to showcase the tremendous breadth and depth of their contemporary national contribution to the subject. Ranging across topics as diverse as emergency, obscenity, and insanity, these essays - without exception insightful and penetrating -set a high standard for the rest of us to aspire to.'' John Gardner, University of Oxford "'Rethinking Criminal Law Theory' is an excellent collection of essays demonstrating the vigour, creativity and range of Canadian criminal justice scholarship. It covers a wide range of problems and issues both in the domestic and the international context. Core questions are examined in depth and new questions are brought to the fore. I recommend it very highly to criminal lawyers and philosophers of the criminal law." Professor Victor Tadros, University of Warwick "'Rethinking Criminal Law Theory 'is packed with outstanding contributions from criminal law theorists who are among the best not only in Canada, but in the whole English-speaking world. Broad and deep in its coverage, the collection offers fresh approaches to a wide range of cutting-edge issues in the field. It provides a resource readers will come back to repeatedly." Stuart Green, Professor of Law and Justice Nathan L Jacobs Scholar, Rutgers University. (shrink)

I examine how deferred-prosecution agreements employed against suspected corporate criminality amount to a form of social engineering that infringes the presumption. I begin with a broad understanding of the presumption itself. Then I offer a brief description of how these agreements function. Finally I address some of the normative issues that must be confronted if legal philosophers who hold retributivist views on punishment and sentencing hope to assess this device. My judgment tends to be favorable. More importantly, I caution against (...) the facile assumption that any means to infringe the presumption is necessarily an illegitimate part of penal practice. (shrink)