Trauma memories on trial: is cross-examination a safeguard against distorted analogue traumatic memories?

Trauma memories can feel more disorganised than more mundane memories. That may be problematic in legal contexts. Here we examined: (a) whether that disorganised feeling makes people more susceptible to suggestive questioning during direct examination; and (b) whether cross-examination is the safeguard it is purported to be: that is, we examined whether cross-examination can uncover and correct distorted trauma memories. We showed participants a film depicting a graphic car accident. For some participants, the film unfolded in a temporally disorganised way. We then interviewed participants immediately after the film regarding what they had seen: this ‘direct examination’ included free recall, cued recall and yes/no questions, some of which were misleading. Then, 48 hours later, a second interviewer cross-examined participants. Contrary to our predictions, neither manipulation of the film's temporal organisation, nor participants’ self-reported feelings of event disorganisation significantly affected their accuracy of the film during direct or cross-examination nor their recognition memory of the film. Instead, we found that regardless of whether participants’ memories were distorted by the direct examination, the suggestive nature of the cross-examination introduced sufficient doubt that participants were willing to change their answers. We conclude that traumatic memories are vulnerable to suggestive questioning and, unfortunately, cross-examination is not the legal system's fail-safe corrective influence.     

The Right to Trial by Jury

abstract Recently, the right to trial by jury has attracted a number of vociferous critics with deep reservations about the use of juries, most of whom are in favour of greatly restricting the use of juries with a minority desiring complete abolition. This article offers a justification for the continued use of jury trials. I shall critically examine the ability of juries to render just verdicts, judicial impartiality, and judicial transparency. My contention is that the judicial system that best satisfies these values is most preferable. Of course, these three values are not the only factors relevant for consideration. Empirical evidence demonstrates that juries foster both democratic participation and public legitimation of legal decisions regarding the most serious cases. Nevertheless, juries are costly and, therefore, economically less efficient than competing modes of trial. I do not argue that all human beings possess an inalienable legal right to be tried by a jury. However, it is my hope that this analysis will make clear what we might gainor lose when we propose jury reforms.     

With Respect to the Analytic Frame: Commentary on Paper by Steven Stern

In this discussion of Steven Stern's paper, support is expressed for the position that analysis should not be defined simply by external criteria such as four-times-a-week frequency, but should get its definition from intrinsic criteria. This raises the question, however, of what the intrinsic criteria are understood to be, and what status to accord the fact that certain extrinsic or objective aspects of the clinical framework (a fixed setting, ground rules, prohibitions, and social and legal sanctions) seem non-negotiable, indispensable, and even constitutive of the therapeutic process, as is the analyst's unilateral application of analytic techniques. Note is made of how the paper lacks a rigorous approach to the actual phenomenology of the frame, thus forfeiting a conceptual appreciation of its distinctive structuring role and its complex functionality. In lieu of an adequate exploration of how the frame works in its own right, the paper superimposes a theory-driven and highly partisan position regarding the necessary malleability of the frame, deriving from the belief that everything in the clinical encounter is co-created and negotiated. A critique of this approach is offered, centering on what is seen as an inadequate distinction between structure and process in this model of the clinical encounter.     

Disorder in the courtroom? Child witnesses under cross-examination

When a witness gives evidence in an adversarial criminal trial, there are two main questioning phases: direct examination and cross-examination. Special provisions are sometimes made for children to give direct evidence, but the majority of child witnesses are still cross-examined. While several decades of research have demonstrated how to elicit children’s direct evidence in a manner that promotes completeness and accuracy, the cross-examination process directly violates many of these principles. Here, we outline the characteristics of cross-examination, particularly as it pertains to children, and we review research about its impact on children, their testimony, and their credibility. We consider options for reforming the cross-examination process and propose avenues for future research.     

Assessing the remedy: the case for contracts in clinical trials

Current orthodoxy in research ethics assumes that subjects of clinical trials reserve rights to withdraw at any time and without giving any reason. This view sees the right to withdraw as a simple extension of the right to refuse to participate all together. In this paper, however, I suggest that subjects should assume some responsibilities for the internal validity of the trial at consent and that these responsibilities should be captured by contract. This would allow the researcher to impose a penalty on the subject if he were to withdraw without good reason and on a whim. This proposal still leaves open the possibility of withdrawing without penalty when it is in the subject's best interests to do so. Giving researchers recourse to legal remedy may now be necessary to protect the science, as existing methods used to increase retention are inadequate for one reason or another.     

What is the Right to Exclude Immigrants?

It is normally taken for granted that states have a right to control immigration into their territory. When immigration is raised as a normative issue two questions become salient, one about what the right to exclude is, and one about whether and how it might be justified. This paper considers the first question. The paper starts by noting that standard debates about immigration have not addressed what the right to exclude is. Standard debates about immigration furthermore tend to result either in fairly strong cases for open borders or in denials that considerations of justice apply to immigration at all, which results in state discretion positions. This state of debate is both theoretically unsatisfactory and normatively implausible. The paper therefore explores an alternative approach to the right to exclude immigrants from the perspective of recent debates about the territorial rights of states. The right to exclude claimed by states is analysed and it is shown to differ both conceptually and normatively from rights to impose political authority within a territory. The paper finally indicates how this analysis might broaden the focus of debates about immigration and suggest alternative regimes of migration regulation the possibility of which is obscured by traditional justice approaches.     

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.     

Legal Coercion,Respect & Reason-Responsive Agency

Legal coercion seems morally problematic because it is susceptible to the Hegelian objection that it fails to respect individuals in a way that is ‘due to them as men’. But in what sense does legal coercion fail to do so? And what are the grounds for this requirement to respect? This paper is an attempt to answer these questions. It argues that (a) legal coercion fails to respect individuals as reason-responsive agents; and (b) individuals ought to be respected as such in virtue of the fact that they are human beings. Thus it is in this sense that legal coercion fails to treat individuals with the kind of respect ‘due to them as men’.     

A Moral Argument Against Moral Realism

If what is morally right or wrong were ultimately a function of our opinions, then even such reprehensible actions as genocide and slavery would be morally right, had we approved of them. Many moral philosophers find this conclusion objectionably permissive, and to avoid it they posit a moral reality that exists independently of what anyone thinks. The notion of an independent moral reality has been subjected to meticulous metaphysical, epistemological and semantic criticism, but it is hardly ever examined from a moral point of view. In this essay I offer such a critique. I argue that the appeal to an independent moral reality as a ground for moral obligations constitutes a substantive moral mistake. However, I do not conclude from this that we must therefore embrace the opposite view that moral truths are ultimately dependent on our attitudes. Rather, I suggest that we reject both of these views and answer the classic meta-ethical question “Is what we morally ought to do ultimately a function of our actual attitudes, or determined independently of them?” with Neither.     

Gaining Institutional Permission: Researching Precarious Legal Status in Canada

There is limited research into the situations of people living with precarious status in Canada, which includes people whose legal status is in-process, undocumented, or unauthorized, many of whom entered the country with a temporary resident visa, through family sponsorship arrangements, or as refugee claimants. In 2005, a community-university alliance sought to carry out a research study of the lived experiences of people living with precarious status. In this paper, we describe our negotiation of the ethics review process at a Canadian university and the ethical, legal, and methodological issues that emerged. Although being able to guarantee our participants complete confidentiality was essential to the viability of the project due to their vulnerability to detention or deportation, we discovered that the Canadian legal framework limited us to being able to offer them confidentiality “to the fullest extent possible by law.” One way to overcome this conflict would have been through the construction of a Wigmore defence, in which we would document that the research would not be possible without assurance of our participants’ confidentiality. Such a defence would be tested in court if our research records were subpoenaed by immigration enforcement authorities. Rather than take the risk that this defence would not be successful and would result in our participants being deported, we altered the research methods from using multiple interviews to establish trust (which would have required that we store participants’ contact information) to meeting participants only once to discuss their experiences of living with precarious legal status in Canada. Our encounter with the ‘myth of confidentiality’ raised questions about the policing of knowledge production.     

Contributing to Discourse

For people to contribute to discourse, they must do more than utter the right sentence at the right time. The basic requirement is that they add to their common ground in an orderly way. To do this, we argue, they try to establish for each utterance the mutual belief that the addressees have understood what the speaker meant well enough for current purposes. This is accomplished by the collective actions of the current contributor and his or her partners, and these result in units of conversation called contributions. We present a model of contributions and show how it accounts for a variety of features of everyday conversations.     

Action as the Conclusion of Practical Reasoning; The Critique of a Rödlian Account

In this paper I take up the question of whether and in what sense action might be the conclusion of practical reasoning and argue against the answer provided by Sebastian Rödl's account of practical reasoning. Rödl's account aspires to steer a middle ground between the attitudinal and the neo‐Aristotelian accounts of practical reasoning, by proposing that its conclusion is at once a thought and a movement. This account is worth considering for it promises to explain both practical reasoning's practicality (that it brings about action) and its rationality (that it is subject to thought governing norms) in one move. But, I argue in this paper, a Rödlian account—an account which grants Rödl's central theses—fails to deliver on its promise. The reason is that, like others, a Rödlian also assumes that the only sense in which practical reasoning is practical is the sense in which it has a conclusion. Challenging this assumption in the right way, I finally suggest, helps us reassess the task of explaining practical reasoning in a way that goes beyond Rödlian, attitudinal and neo‐Aristotelian accounts alike.     

A qualitative analysis of mock jurors' deliberations of linkage analysis evidence

Evidence about a suspect's behavioural similarity across a series of crimes has been presented in legal proceedings in at least three different countries. Its admission as expert evidence, whilst still rare, is becoming more common thus it is important for us to understand how such evidence is received by jurors and legal professionals. This article reports on a qualitative analysis of mock jurors' deliberations about expert linkage analysis evidence. Three groups of mock jurors (N = 20) were presented with the prosecution's linkage analysis evidence from the USA State v. Fortin I murder trial and expert evidence for the defence constructed for the purposes of the study. Each group was asked to deliberate and reach a verdict. Deliberations were video‐recorded and subject to thematic content analysis. The themes that emerged were varied. Analysis suggested that the mock jurors were cautious of the expert evidence of behavioural similarity. In some cases they were sceptical of the expert. They articulated a preference that expert opinion be supported using statistics. Additional themes included jurors having misconceptions concerning what is typical offender behaviour during rape which suggests there is a need for expert linkage analysis evidence regarding behavioural similarities and the relative frequencies of crime scene behaviours. Copyright © 2010 John Wiley & Sons, Ltd.     

Civil Ethics and the Validity of Law

This paper aims to clarify the nature and contents of 'civil ethics' and the source of the binding force of its obligations. This ethics should provide the criteria for evaluating the moral validity of social, legal and morally valid law. The article starts with observing that in morally pluralist Western societies civil ethics already exists, and has gradually started to play the role of guiding the law. It is argued that civil ethics should not be conceived as 'civic morals' which is in fact rather 'state ethics', nor as 'public ethics' which is said to reach its perfection when it becomes law, nor as ethics applicable primarily to the basic structure of a society (political liberalism), but instead as a citizens' ethics. Subsequently the paper attempts to show what the contents of this ethics are, and which ethical theory would be able to ground its obligations.     

Coercive Interference and Moral Judgment

Coercion is by its very nature hostile to the individual subjected to it. At the same time, it often is a necessary evil: political life cannot function without at least some instances of coercion. Hence, it is not surprising that coercion has been the topic of heated philosophical debate for many decades. Though numerous accounts have been put forth in the literature, relatively little attention has been paid to the question what exactly being subjected to coercion does to an individual that makes it so hostile to his person. This paper develops an analysis of the subjective aspect of coercion whereby this hostility is explained. It is argued that coercion is not just a matter of interference with one’s agency, but also affects one’s morality. Because coercion is a form of subjugation it does more than merely limit one’s freedom, it constitutes an affront to one’s dignity as well. A new account of coercion is developed that pays particular attention to the subjectivity inherent in coercion. This account takes a middle ground in the ongoing debate between advocates of moralised and non-moralised conceptualisations of coercion. The paper closes by applying this account to two prominent issues in the literature on coercion: the use of coercion claims in attempts to avoid being held responsible for one’s actions, and the coerciveness of the law.     

Notes on Autocephaly and Phyletism

Changing one’s religion is increasingly common in multicultural societies. Such changes are made more likely when there is greater contact between individuals of different creeds. Conversion is also the result of proselytising activities carried out by various religious faiths or groups. This paper analyses the recognition of the right to change religion and the safeguarding of this right under international treaties, giving special attention to Europe. The study shows the content and limits of this right and examines the role of the state in its regulation. Both having membership of a given faith and changing religion can have legal consequences with respect to the state. This fact has been demonstrated by the legal battles that have arisen in a number of European countries as a consequence of changing religion. According to the international human rights legal system, the function of the secular state should be to safeguard equal treatment for all citizens, ensuring that neither religious affiliation nor a change of such affiliation results in discrimination.     

Legal and Ethical Considerations for Requiring Consent for Apnea Testing in Brain Death Determination

Abstract

The past decade has witnessed escalating legal and ethical challenges to the diagnosis of death by neurologic criteria (DNC). The legal tactic of demanding consent for the apnea test, if successful, can halt the DNC. However, US law is currently unsettled and inconsistent in this matter. Consent has been required in several trial cases in Montana and Kansas but not in Virginia and Nevada. In this paper, we analyze and evaluate the legal and ethical bases for requiring consent before apnea testing and defend such a requirement by appealing to ethical and legal principles of informed consent and battery and the right to refuse medical treatment. We conclude by considering and rebutting two major objections to a consent requirement for apnea testing: (1) a justice-based objection to allocate scarce resources fairly and (2) a social utility objection that halting the diagnosis of brain death will reduce the number of organ donors.     

Why Tugendhat's Critique of Heidegger's Concept of Truth Remains a Critical Problem1

With what right and with what meaning does Heidegger use the term ‘truth’ to characterize Dasein's disclosedness? This is the question at the focal point of Ernst Tugendhat's long‐standing critique of Heidegger's understanding of truth, one to which he finds no answer in Heidegger's treatment of truth in §44 of Being and Time or his later work. To put the question differently: insofar as unconcealment or disclosedness is normally understood as the condition for the possibility of propositional truth rather than truth itself, what does it mean to say – as Heidegger does – that disclosedness is the “primordial phenomenon of truth” and what justifies that claim? The central aim of this paper is to show that Tugendhat's critique remains unanswered. Recent Heidegger scholarship, though it confronts Tugendhat, has not produced a viable answer to his criticism, in part because it overlooks his basic question and therefore misconstrues the thrust of his objections. Ultimately, the paper suggests that what is needed is a re‐evaluation of Heidegger's analysis of truth in light of a more accurate understanding of Tugendhat's critique. The paper concludes by sketching the profile of a more satisfactory reply to Tugendhat's critical question, advocating a return to Heidegger's ‘existential’ analyses in Being and Time in order to locate the normative resources Tugendhat finds lacking in Heidegger's concept of truth.     

The Rational Reconstruction of Argumentation Referring to Consequences and Purposes in the Application of Legal Rules: A Pragma-Dialectical Perspective

In this paper, the author develops an instrument for the rational reconstruction of argumentation in which a judicial decision is justified by referring to the consequences in relation to the purpose of the rule. The instrument is developed by integrating insights from legal theory and legal philosophy about the function and use of arguments from consequences in relation to the purpose of a rule into a pragma-dialectical framework. Then, by applying the instrument to the analysis of examples from legal practice, it is demonstrated that the instrument can offer a heuristic and critical tool for the analysis and evaluation of legal argumentation that can ‘bridge’ the gap between more abstract discussions of forms of legal argumentation on the one hand, and legal arguments as they occur in actual legal practice on the other hand.     

The influence of FMRI lie detection evidence on juror decision-making

In the current study, we report on an experiment examining whether functional magnetic resonance imaging (fMRI) lie detection evidence would influence potential jurors' assessment of guilt in a criminal trial. Potential jurors (N = 330) read a vignette summarizing a trial, with some versions of the vignette including lie detection evidence indicating that the defendant was lying about having committed the crime. Lie detector evidence was based on evidence from the polygraph, fMRI (functional brain imaging), or thermal facial imaging. Results showed that fMRI lie detection evidence led to more guilty verdicts than lie detection evidence based on polygraph evidence, thermal facial imaging, or a control condition that did not include lie detection evidence. However, when the validity of the fMRI lie detection evidence was called into question on cross-examination, guilty verdicts were reduced to the level of the control condition. These results provide important information about the influence of lie detection evidence in legal settings. Copyright © 2011 John Wiley & Sons, Ltd.