Adjudication Error, Finality, and Asymmetry in the Criminal Law

2013 ◽  
Vol 26 (2) ◽  
pp. 377-398 ◽  
Author(s):  
Richard L. Lippke
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Wrongful Conviction ◽  
Criminal Justice Systems ◽  
Criminal Charge ◽  
Justice Systems ◽  
Set Up

All forms of criminal charge adjudication produce errors of mistaken conviction or acquittal. Yet in most criminal justice systems, an endpoint of sorts is eventually reached and further attempts to correct errors are disallowed. The first issue discussed is whether such “finality” in charge adjudication should be presumptive or non-presumptive. My contention is that it should be presumptive. But should it be presumptive only for convictions or also for acquittals? As against strong forms of asymmetry, I urge weaker forms, according to which we should seek to correct both kinds of errors while exhibiting some degree of preference for correcting errors of wrongful conviction over those of wrongful acquittal. The issues that must be faced if we are to set up procedures allowing rebuttal of the presumption of finality are then surveyed. Doing so reveals the forms that weak asymmetry might take.

The European Integrated Criminal Justice System and its Constitutional Framework

2005 ◽  
Vol 12 (2) ◽  
pp. 125-147 ◽  
Author(s):  
Joachim Vogel
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
European Integration ◽  
Criminal Law ◽  
Justice System ◽  
Legal Systems ◽  
Member States ◽  
Criminal Justice Systems ◽  
Financial Interests ◽  
Justice Systems

This article discusses the concept of the integrated European criminal justice system and its constitutional framework (as it stands now and as laid down in the Treaty Establishing a Constitution for Europe signed in Rome on 29 October 2004). It argues that European integration does not stop short of criminal justice. Integration does not mean that Member States and their legal systems, including their criminal justice systems, are being abolished or centralised or unified. Rather, they are being integrated through co-operation, co-ordination and harmonisation; centralisation, respectively unification, is a means of integration only in specific sectors such as the protection of the European Communities' financial interests. The article further argues that the integrated European criminal justice system is in need of a constitutional framework. The present framework suffers from major deficiencies. However, the Treaty establishing a Constitution for Europe will introduce a far better, all in all satisfactory, ‘criminal law constitution’.

scholarly journals Victims and international criminal justice: a vexed question?

2008 ◽  
Vol 90 (870) ◽  
pp. 441-459 ◽  
Author(s):  
Mina Rauschenbach ◽  
Damien Scalia
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Justice ◽  
International Level ◽  
International Regime ◽  
Criminal Proceedings ◽  
Criminal Justice Systems ◽  
Justice Systems ◽  
Vexed Question

AbstractDespite the growing attention being paid to “victims” in the framework of criminal proceedings, this attention does not seem to be meeting their needs under either national criminal justice systems or the international regime. In the latter, the difficulties encountered by the victims are aggravated by factors specifically arising from the prosecution and punishment of mass crimes at international level. This has prompted the authors to point out that the prime purpose of criminal law is to convict or acquit the accused, and to suggest that the task of attending to the victims should perhaps be left to other entities.

Terrorist Speech and the Criminal Law – A Comparative Analysis

2017 ◽  
Vol 25 (3) ◽  
pp. 230-259 ◽  
Author(s):  
Johannes Keiler
Keyword(s):  
Comparative Analysis ◽  
Criminal Justice ◽  
The Netherlands ◽  
Criminal Law ◽  
Critical Analysis ◽  
Vantage Point ◽  
Criminal Justice Systems ◽  
Justice Systems ◽  
Legal Frameworks

This article examines the ways that the criminal justice systems of England and the Netherlands deal with terrorist speech in the form of direct and indirect incitement to terrorism. This contribution commences with a discussion of the conditions under which the criminalisation of terrorist speech is justified. That discussion identifies criteria that must be satisfied if liability for terrorist speech is to be justified. The specific English and Dutch legal frameworks for addressing terrorist speech are then assessed in light of those criteria. This comparison provides the vantage point for a critical analysis of the merits and defects of terrorist speech offences. This contribution ends by identifying and discussing doctrinal elements that must be considered in order to ensure compliance with fundamental principles of criminal law and to prevent over-criminalisation.

Equality in Multi-door Criminal Justice

2020 ◽  
Vol 23 (1) ◽  
pp. 60-73
Author(s):  
Richard A. Bierschbach
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Absolute Sense ◽  
Criminal Justice Systems ◽  
Process Oriented ◽  
Justice Systems ◽  
Post Industrial ◽  
Industrial Societies

As contemporary criminal justice practices have grown more varied, the equality concerns they raise have grown more nuanced and complex. This essay explores the interplay between equality in criminal justice and the mix of punitive and non-punitive mechanisms that have proliferated in parallel in the criminal justice systems of many post-industrial societies in the last thirty years. Multi-door criminal justice does not fare well under the dominant conception of equality in American criminal law, which seeks to stamp out disparities in punishment and ensure roughly equal outcomes for roughly similar offenders. But we need not view that as fatal to multi-door criminal justice. Tension between a multi-door system and our reigning approach to equality might suggest reasons to question the latter more than it does the former. Alternative, more flexible, more process-oriented conceptions of equality might exist that could better accommodate a multi-door world while still protecting and advancing egalitarian norms and ideals. At the same time, shifting our perspective on equality will not eliminate all equality concerns that flow from multi-door criminal justice, and it likely will reveal new ones. The question then becomes not whether multi-door criminal justice is unequal in some absolute sense. The question is whether it is less unequal—or unequal in more palatable ways—than what we have now.

scholarly journals Improving Wrongful Conviction Review: Lessons from a Comparative Analysis of Continental Criminal Procedure

2015 ◽  
Author(s):  
Paul J Saguil
Keyword(s):  
Criminal Justice ◽  
Criminal Procedure ◽  
University Of California ◽  
Wrongful Conviction ◽  
Wrongful Convictions ◽  
Criminal Justice Systems ◽  
The Subject ◽  
Popular Interest ◽  
Justice Systems ◽  
Mistaken Identification

The study of wrongfuil conviction has yielded much evidence outlining that factors such as mistaken identification, false confessions, unsavoury informants, and misconduct on the part of the prosecution, defence, and police, inter alia, are causes of wrongfuil conviction common to most, if not all, criminal justice systems. Despite the resurgence of scholarly and popular interest in the phenomenon of wrongful conviction, there are a number of gaps in our knowledge and there is little scholarship available that addresses the subject of this article.In this article, the author addresses the question posed by Professor and Dean of Social Ecology (University of California — Irvine) C. Ronald Huff: "Are some criminal justice systems more likely to produce wrongful convictions than others?" The author undertakes a comparative study of criminal procedure in France and Germany in order to critique and appraise the Canadian approach to wrongful conviction review. He argues that incorporating specific elements of Continental practice into our domestic procedures would substantially increase and improve the opportunities for correcting miscarriages of justice in Canada.

scholarly journals Formalism versus pragmatism – A comparative legal and empirical analysis of the German and Dutch criminal justice systems with regard to effectiveness and efficiency

2021 ◽  
pp. 1023263X2110059
Author(s):  
Robin Hofmann
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Legal History ◽  
Justice System ◽  
Legal Practice ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
Criminal Justice Systems ◽  
Effectiveness And Efficiency ◽  
Justice Systems

The German and the Dutch criminal justice systems not only share a common legal history but also follow the inquisitorial tradition with the prosecution playing a strong role. Despite these commonalities, there are a number of remarkable differences between the two jurisdictions, particularly with a view to procedural law and legal practices. While the German criminal law is known for being formal and rather doctrinal, the Dutch system is strongly driven by pragmatism and efficiency. This efficiency has become an important factor for the progressing Europeanization of criminal law and increasingly influences German criminal procedural law. This article compares selected aspects of the Dutch and German criminal justice systems. While previous legal comparative studies of the two neighbouring countries have focused on substantive criminal law, this paper will mainly deal with procedural criminal law and prosecutorial practices. The emphasis will be on criminal justice effectiveness and efficiency. Some of the questions addressed are: what constitutes an efficient criminal justice system? How is efficiency defined and implemented in legal practice? A variety of indicators for criminal justice efficiency are proposed and applied to criminal proceedings, prosecutorial practices and the sentencing systems in both countries.

Why We Don’t See Race: How Australia Has Overlooked Race as an Influence on Miscarriages of Justice

2020 ◽  
pp. 215336872092229
Author(s):  
Greg Stratton ◽  
Alyssa Sigamoney
Keyword(s):  
Criminal Justice ◽  
Case Studies ◽  
Race And Ethnicity ◽  
Wrongful Conviction ◽  
Wrongful Convictions ◽  
Causal Factors ◽  
Criminal Justice Systems ◽  
Justice Systems ◽  
Limiting Errors

While criminal justice systems are increasingly prepared to identify and overturn wrongful convictions, the focus of limiting errors has centered upon commonly accepted “causal factors” of wrongful conviction. Importantly, there has been limited work that has explored the question of who is most vulnerable to fall victim to this error. We explore three landmark case studies highlighting wrongful convictions in Australia where race, racialized policing, or racism were crucial yet unresolved issues leading to an erroneous conviction. These cases and the absence of resolutions of these racialized issues in these convictions typify the inadequacies of Australian approaches to wrongful conviction. We argue that to achieve justice in Australia we must not be limited to the causal factors that have come to define American innocence and should support greater acknowledgment of how race and ethnicity influence wrongful conviction.

“We’ll Take the Tough Ones”

2019 ◽  
Vol 22 (4) ◽  
pp. 542-584
Author(s):  
Chrysanthi S. Leon ◽  
Corey S. Shdaimah
Keyword(s):  
Criminal Justice ◽  
Diversion Programs ◽  
Social Emotional ◽  
Theoretical Frameworks ◽  
Material Resources ◽  
Professional Goals ◽  
Criminal Justice Systems ◽  
Working Groups ◽  
Justice Systems

Expertise in multi-door criminal justice enables new forms of intervention within existing criminal justice systems. Expertise provides criminal justice personnel with the rationale and means to use their authority in order to carry out their existing roles for the purpose of doing (what they see as) good. In the first section, we outline theoretical frameworks derived from Gil Eyal’s sociology of expertise and Thomas Haskell’s evolution of moral sensibility. We use professional stakeholder interview data (N = 45) from our studies of three emerging and existing prostitution diversion programs as a case study to illustrate how criminal justice actors use what we define as primary, secondary, and tertiary expertise in multi-agency working groups. Actors make use of the tools at their disposal—in this case, the concept of trauma—to further personal and professional goals. As our case study demonstrates, professionals in specialized diversion programs recognize the inadequacy of criminal justice systems and believe that women who sell sex do so as a response to past harms and a lack of social, emotional, and material resources to cope with their trauma. Trauma shapes the kinds of interventions and expertise that are marshalled in response. Specialized programs create seepage that may reduce solely punitive responses and pave the way for better services. However empathetic, they do nothing to address the societal forces that are the root causes of harm and resultant trauma. This may have more to do with imagined capacities than with the objectively best approaches.

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