In the Field – The Development of Reasons in Criminal Proceedings

This paper is concerned with argumentation in legal proceedings, namely in criminal cases. My interest is to explore how in the legal realm different argumentation fields interact, the juridical field being just one of them. The paper lays out an approach of studying argumentation in the legal realm in the framework of an ethnographic methodology by identifying the “topical rules” the participants in criminal trials adhere to. Suggesting the notion of field-dependence as a good starting point for the analysis of legal argumentation, I will give several examples of different fields of argumentation interacting in criminal proceedings. The examination of what counts as a good reason and how arguments are employed, negotiated, and evaluated within a criminal proceeding might shed light on the practice of constructing facts and arriving at decisions in court. It can furthermore point at the constitution of legal rationality and how it is produced in criminal trials. I argue that rationality in criminal proceedings is interactively accomplished by negotiating different standards of validity.     

Maltreated children's understanding of and emotional reactions to dependency court involvement

Little is known about the extent to which maltreated children understand what is happening during their participation in court proceedings, despite large numbers of children coming into contact with the legal system as victims of maltreatment. In the present study, maltreated 4‐ to 15‐year‐olds were interviewed about their understanding of dependency court on the day of their scheduled court visit. Their feelings about attending their hearings were also assessed, and after their hearing, their understanding of the decisions was examined. Age‐related improvements in children's understanding emerged. Also, children who were more knowledgeable about the legal system were less distressed about attending their hearings, as were younger children who had been in the system a longer time. Finally, a majority of children lacked full or accurate understanding of what actually happened during their hearings. Findings have implications for children's participation in legal proceedings and the development of interventions to facilitate children's legal understanding. Copyright © 2009 John Wiley & Sons, Ltd.     

Methodological, ethical, and legal considerations in drug court research

Since their inception in the late 1980s, drug courts have become the most prevalent specialty court in the United States. A large body of outcome research conducted over the past two decades has demonstrated that drug courts effectively reduce drug use and criminal recidivism, which has led to the rapid proliferation of these courts. Importantly, drug court research has flourished despite the many challenges faced by researchers when working with a vulnerable population of justice-involved substance users. In this article, we highlight the most common methodological, ethical, and legal challenges encountered in drug court research, and discuss ways in which researchers can overcome these challenges to conduct high-quality research. Drug court research exemplifies how rigorous empirical investigation can be accomplished in the criminal justice system, and it can serve as a useful model for researchers working in other parts of the judicial system.     

Defining autism: professional best practices and published case law

There are clear indications that both the reported incidence of autism in children and litigation involving this developmental disorder are increasing. However, to date there has been a dearth of research analyzing court cases and legal decisions concerning students with autism. The purpose of this review was to examine published hearing/review and court decisions concerning autism eligibility in educational settings in relation to empirically supported best practices in the assessment of autism. A total of 13 cases were identified for inclusion in the review. In general, the results indicated that hearing/review officers and judges neither relied upon nor explicitly acknowledged empirically supported assessment methods in their published eligibility decisions. It appeared that many hearing/review officers and judges relied on expert witnesses, who may or may not have had particular expertise and knowledge regarding current best practices in autism eligibility assessment. Implications of the findings and areas for future research are discussed.     

Omission bias in vaccination decisions: Where’s the “omission”? Where’s the “bias”?

Several studies have reported that parents are often reluctant to vaccinate their own or other people’s children, even when the balance of health risks and benefits clearly favors vaccination. This reluctance has been interpreted as a manifestation of “omission bias”, a general tendency to prefer inactive to active options even when inaction leads to worse outcomes or greater risks. The research raises significant public health concerns as well as worries about human decision biases in general. In this paper we argue that existing research on vaccination decisions has not convincingly demonstrated any general reluctance to vaccinate nor has it made the case that such a tendency, if found, would constitute a bias. We identify several conceptual and methodological issues that, we argue, cloud interpretation of earlier studies. In a new questionnaire-based study (Experiment 1) we examined the vaccination decisions of undergraduate students (N=103) and non-student adults (N=192). In both groups a clear majority chose to vaccinate when disease and vaccination risks were balanced. Experiments 2 and 3 identify several problems associated with the measures used in earlier studies, and show how these problems could have led to the misleading appearance of majority anti-vaccination preferences. In our data, vaccination intentions appear to be less a function of generalized preferences for action or inaction than they are of the regret respondents expect to feel if vaccination or non-vaccination were to lead to a poor outcome. Regret-avoiding choices led some respondents to favor vaccination, others to oppose it. In two follow-up studies, few respondents mentioned action or inaction per se in explaining their choices. We conclude that there is no convincing evidence that a generalized “omission bias” plays any important role in vaccination decisions.     

Extended School Year Services for Handicapped Children: Leadership Issues and Actions

This article addresses issues that leaders should consider when determining an exceptional child's need for extended school year services. An examination of the legal issues that emerged as a result of Pennsylvania's extended school year court cases is presented, and a broader range of educational issues that were not considered in the litigation is discussed. The authors take the position that decisions to implement extended school experiences for exceptional children should be based on educational determinants exceeding those presented in Armstrong vs. Kline and the more recent court cases. In addition, specific recommendations are made regarding policy development for extended school year programs serving exceptional children.     

Factors Associated with Delays of Days to Decades to Criminal Prosecutions of Child Sexual Abuse

Until the latter part of the 20th century, legal doctrines made it almost impossible to successfully prosecute in criminal court a case involving child sexual abuse (CSA), whether the complaint was timely or delayed. Many English-speaking countries have abrogated most formal legal barriers to prosecuting CSA cases, and courts are faced with the singular challenge of adjudicating sexual offenses against children that are reported to have happened years or decades earlier. We conducted analyses of 4,237 criminal complaints of CSA heard in Canadian criminal courts. There were several differences between timely and delayed prosecutions that led us to conclude that delayed prosecutions of CSA are common and due, in part, to the nature of the offense. Offense duration was associated with longer delays to prosecution. When the accused had access to the child through his position in the community, length of delay to prosecution was very long, particularly for male complainants. More research is needed on delayed CSA prosecutions, particularly given an apparent trend for jurisdictions to abolish barriers to criminal prosecutions of CSA that occurred years or decades earlier. Copyright © 2015 John Wiley & Sons, Ltd.     

An Analysis of Judicial Opinions in Same-Sex Visitation and Adoption Cases

There are two broad categories of family court decisions involving same-sex “second-parents”: first, cases where a second-parent is seeking visitation with her former partner's children; and second, adoption cases where the couple is seeking legal recognition of the second-parent's role in raising the children. Several jurisdictions grant same-sex second-parent adoptions; however, lesbian or gay second-parents, without a formal legal relationship with the children have rarely been successful in their attempts for visitation. In this paper the courts' analyses of the legal arguments made by the parties is reviewed. The results indicate that similar arguments are used in each of the different types of cases, but that the courts rely more heavily on statutory interpretation in the adoption cases.     

Sicherungsverwahrung

The author, chairman of a criminal enforcement court and a criminal court, explains the current legal situation following the judgment of the Federal Constitutional Court on preventive detention. He describes the judicial requirements of psychiatric or psychological assessment and the judical understanding of the term ??mental disorder?? under these circumstances.     

A ray of light about frozen embryos.

The Tennessee Supreme Court's decision in Davis v. Davis, a case that raises the question of how to allocate frozen embryos in the event of divorce, addresses many of the legal issues posed by in vitro fertilization. The decision considers the interests of the progenitors as well as of the children who may result. For example, the court held that gamete providers' discretion regarding the disposition of embryos can be limited only when their decisions would harm the children who might be born. The court also made clear that efforts to seek genetic parenthood are protected only when accompanied by a desire to raise the resulting children, a conclusion that also affects other reproductive technologies. In addition to elaborating an analytic framework, the court set guidelines for resolving disputes when the couples had made no prior agreements, including holding that while the embryos are ex-utero the desire to avoid genetic parenthood almost always trumps the wish to become a parent. The well-reasoned analysis in Davis v. Davis should help shape legal and ethical discussion regarding the use of in vitro fertilization for many years to come.     

Bad or Mad? Personality disorders and legal responsibility-the German situation

Criminal offenders have a high rate of personality disorders (PDS), especially Antisocial Personality Disorders and psychopathy, but criminal acts are not necessarily the result of PD. Findings from psychiatric research suggest that the development of PD is influenced by genetic factors, that can result in deviant traits in temper, emotionality and cognitive style. There is general agreement that those peculiarities and vulnerabilities find their expression and structure only under a complex interplay of stimulating or impairing environmental influences. Do these genetic factors-or other factors-diminish a person's criminal responsibility? There is no difficulty in diagnosing PDs, but the challenging questions arise in forensic assessments of defendants for criminal responsibility who have a PD. This article discusses the German legal situation and special problems created by the term of "diminished" criminal responsibility. In contrast to the Anglo-American legal situation, the German criminal law obliges the court to order an indeterminate forensic - psychiatric confinement, in addition to punishment, if the offender had acted under diminished criminal responsibility and is now still considered to be dangerous. The convicted offender remains under the control of the criminal court during psychiatric hospitalization. The change from handling the personality disordered offender as a criminal to handling him as someone with a mental disorder creates a social option for extended state interventions, including indeterminate hospitalization.     

Deal und Fehlurteil

This article describes the function of criminal proceedings. On this basis it outlines the limits of a lawful settlement of the outcome of criminal proceedings between the court, the prosecution and the accused in contrast to an illegitimate deal. This allows the notion of a judicial error to be defined in this context. Building on this it is shown that deals in particular bear certain risks for a judicial error that can be averted by strictly observing the legal provisions for settlements.     

Sentencing Convicted Juvenile Felony Offenders in the Adult Court: The Direct Effects of Race

While research indicates that Black and Hispanic adults sentenced in the criminal court tend to be rendered more severe punishments than their White counterparts, only one prior study has examined whether this finding holds for juveniles tried in the adult system. The findings from this sole study need replication, however, since the effects posed by trial type were not taken into account and it is likely that the results are confounded by measurement error resulting from overlap in criminal sentencing. The current study addressed these issues by assessing whether race has a direct impact on waived juveniles being criminally sentenced to restitution, probation, or jail. Data were derived from a secondary, cross‐sectional national dataset on felony juvenile offenders convicted in the adult system. Three hypotheses were tested. After controlling for a number of important legal and extra‐legal predictors of sentencing, race differences in sentencing outcomes were observed and the findings yielded partial support for the hypotheses. The implications of the research are noted. Copyright © 2012 John Wiley & Sons, Ltd.     

The response to domestic violence in a model court: some initial findings and implications

This study utilized a non-experimental design to obtain information on a full range of domestic violence incidents brought before the Quincy, Massachusetts District Court, a model court. One limitation of previous research on spouse assaults using more sophisticated designs is that the target population has been restricted to specific subgroups of cases thereby limiting subsequent discussions of policy/practice implications of the findings vis-a-vis all spouse assault cases. To address this research “shortfall”, we obtained permission from the Quincy District Court to examine all the spouse assault cases brought before the court during a 7-month period (June, 1995, through February, 1996). The findings show that in a full enforcement environment, victims took out restraining orders only against the most violent, criminally abusive men. Most men who were arrested for domestic violence had prior criminal histories for a variety of offenses. Domestic violence offenders appeared to be of two types: those with extensive and diverse criminal histories and those with little or no such involvement. However, active criminal justice intervention against domestic violence offenders appears to be primarily directed toward offenders already active in the criminal justice system. © 1998 John Wiley & Sons, Ltd.     

The Limitations and Potential of Neuroimaging in the Criminal Law

Neuroimaging showing brain abnormalities is increasingly being introduced in criminal court proceedings to argue that a defendant could not control his behavior and should not be held responsible for it. But imaging has questionable probative value because it does not directly capture brain function or a defendant’s mental states at the time of a criminal act. Advanced techniques could transform imaging from a coarse-grained measure of correlations between brain states and behavior to a fine-grained measure of causal connections between them. Even if this occurs, bias and other attitudes may unduly influence jurors’ interpretation of the data. Moreover, judges’ decisions about whether neuroimaging data is legally relevant and admissible are normative decisions based on more than empirical evidence. Advanced neuroimaging will better inform assessments of criminal responsibility but will not supplant or explain away the psychological and normative foundation of the criminal law.     

An evaluative study of the role of the grandparent in the best interests of the child

Abstract

Most custody decisions are made in courts hewing to the concept “the best interests of the child. “Most professionals agree that children suffer from a fractured family situation; they disagree on the degree to which children suffer at various stages of growth and development. There is a lack of agreement as to what constitutes a child's best interests. Recent research suggests that grandparents may play a very significant role in the entire life cycle of children. The legal position of grandparents in custodial matters remains somewhat ambiguous. Recently legislation has granted grandparents the right to seek visitation. This represents an awareness on the part of the court that grandparents and grandparenting may be a significant factor in actualizing the best interests of the child.     

Adults sexually abused as children: Legal actions and Issues

This article first briefly discusses the problem of delayed memories and long-term effects of child sexual abuse and the current trend to bring civil lawsuits or criminal prosecutions for childhood sexual abuse. The article addresses the primary obstacle to such actions—the statute of limitations—which in most states places a time limit on when legal actions can be commenced. It describes the purpose of the statute of limitations and the need for changing or extending it in child sexual abuse cases; it then summarizes and analyzes the methods used by state legislation and judicial decisions to change or extend the statute of limitations in both criminal and civil actions. The article examines the pros and cons of bringing legal actions for child sexual abuse many years later, and concludes with a discussion regarding the current debate about the accuracy and authenticity of long-term memory and the advisability of legal reforms to extend or eliminate the statute of limitations in this area.     

Are police officers more likely to kill African-American suspects?

In recent psychological research decisions by police officers to shoot criminal suspects are often assumed to be racially biased, and it is concluded that officers are more likely to shoot African-American suspects. This assumption was tested with national data on persons killed during legal interventions and with data bearing on the African-American proportion of criminal suspects law enforcement officers face. Analysis indicates that the African-American share of persons killed by law enforcement officers, while higher than the African-American percentage of the U.S. population, is lower than one would expect based on the estimated African-American proportion of suspects confronted in violent encounters or the African-American percentage of suspects who kill police officers.     

Anticipatory injustice among adolescents: age and racial/ethnic differences in perceived unfairness of the justice system

The present study examines age differences in anticipatory injustice, or the expectation of unfair or discriminatory treatment in the legal system. 1,393 adolescents and young adults from the community or from detention centers and jails were interviewed regarding demographic and justice system experience, intelligence, expectations about fair treatment, and legal decisions. African Americans and Latinos and those with more system experience expected greater injustice across multiple legal contexts. Anticipatory injustice increased with age among African Americans and those with the most system experience. It also predicted choices about police interrogation, attorney consultation, and plea agreements. Anticipations of injustice during adolescence may affect future interactions with court officials as well as more general constructs of legal socialization.     

Effects of prior juror experience on jury sentencing

The effect of prior juror service on jury sentencing was investigated in an archival study of 143 criminal trials resulting in convictions. Trials took place over two calendar years in a state circuit court requiring jurors to serve 30-day terms. Jurors sentenced defendants in each case according to a set of guidelines determined by trial judges. The severity of the sentences imposed by jurors was rated by 101 subjects on a scale of 1 (least severe) to 100 (most severe). The results indicated that the more experienced juries gave significantly more severe sentences than did the less experienced juries. This finding was unchanged when civil court experience was considered in addition to criminal court experience. Possible interpretations of these results are discussed.