Dissertations / Theses on the topic 'Criminal defendant'

Requirements for the defendant to actively participate in the criminal process have been increasing in recent years such that the defendant can now be penalised for his non-cooperation. This thesis explores the procedural implications of penalising a defendant’s non-cooperation, particularly its effect on the English adversarial system. This thesis uses three key examples: 1) limitations placed on the privilege against self-incrimination, 2) adverse inferences drawn from a defendant’s silence, and 3) adverse inferences drawn from defence non-disclosure. The thesis explores how laws regarding the privilege against self-incrimination, the right to silence and pre-trial disclosure came to be reformed such that the defendant can now be penalised for his non-cooperation, and how these laws have been approached by the courts. A normative theory of criminal procedure is developed in the thesis and is used to challenge the idea of penalising defendant non-cooperation in the criminal process. The theory proposes that the criminal process should operate as a mechanism for calling the state to account for its accusations and request for official condemnation and punishment of the accused. Within this framework, the defendant should be free to choose whether or not to cooperate and participate throughout the process. The theory rests upon a broad interpretation of the presumption of innocence, the right to a fair trial, and a conception of the relationship between citizen and state. Conversely, the thesis finds that, by placing participatory requirements on the defendant and penalising him for his non-cooperation, a participatory model of procedure has developed. This model relies on the active participation of the defendant in pursuit of efficient fact finding. The participatory model is far removed from England’s history of adversarialism and, unfortunately, has less regard for legitimacy, fairness and respect for defence rights.

This thesis examines the interpretation and application of the Criminal Justice Act 2003 (UK), Part 11 Chapter 1, which came into force on 15 December 2004. Part 11 Chapter 1 concerns evidence of bad character, a concept approximately comparable with common law similar fact evidence, in relation to all parties who may be connected with a criminal trial. The admission and use of similar fact evidence has often been the subject of controversy, and the significant changes made by the CJA 2003 have attracted their own body of support and criticism. The nine chapters of this thesis attempt an in-depth study into the impact of the legislation on the robustness and effectiveness of the criminal trial, and consider whether the criminal trial is suited to the level of exposure of bad character now facilitated by the CJA. In particular, the thesis focuses upon the key provisions governing the uses of bad character evidence of the defendant: the seven gateways set out in s 101 of the CJA. The operation of those gateways and their accompanying explanatory provisions is examined through a combination of engagement with the Law Commission’s Report 273 (which preceded the enactment of the legislation), the range of Court of Appeal cases dealing with the legislation, and academic commentary. It was foreshadowed by commentators and early case law that the new provisions might not be easy to interpret or apply, and subsequent cases have borne out this prediction. An analysis of the bad character provisions suggests that, even though the CJA was intended to provide clarity in regulation, it has itself led to confusion in some important respects. Certain central terms lack definition, and some provisions have unintended consequences. The case law reflects this in its frequent, often brief, and sometimes inconsistent analysis of the specific parts of the legislation, which can make it difficult to determine the defendant’s guilt or innocence in a precise and scrupulous manner.

Тези виступу зарубіжного гостя в рамках ІІІ Міжнародного молодіжного наукового юридичного форуму.
In the criminal procedural law of the Republic of Serbia, and thus in its criminal procedure legislation, special attention is paid to measures ensuring the presence of the defendant in criminal proceedings. One of the reasons for such treatment of this issue is the fact that the presence of the defendant in the criminal procedure is obligatory. For the purpose of practical implementation of this standard, the Criminal Procedure Code of the RS (hereinafter referred to as CPC of RS) also provides for measures to ensure the presence of the defendant 234 in criminal proceedings. One of the seven foreseen measures is bail.

Тези виступу зарубіжного гостя в рамках ІІІ Міжнародного молодіжного наукового юридичного форуму.
In the criminal procedural law of the Republic of Serbia, and thus in its criminal procedure legislation, special attention is paid to measures ensuring the presence of the defendant in criminal proceedings. One of the reasons for such treatment of this issue is the fact that the presence of the defendant in the criminal procedure is obligatory. For the purpose of practical implementation of this standard, the Criminal Procedure Code of the RS (hereinafter referred to as CPC of RS) also provides for measures to ensure the presence of the defendant 234 in criminal proceedings. One of the seven foreseen measures is bail.

False confessions are a leading cause of wrongful convictions. Defendants under the age of 18 or who have mental retardation are at a high risk of making false confessions. Participants read a short synopsis of a hypothetical robbery and trial. They then answered several questions as jurors. The age (16 years or 32 years) and intelligence in terms of IQ (68 or 102) of the defendant were manipulated. Results suggest there was no effect of age or intelligence on verdict or confidence that the confession was true. There was an effect of age and intelligence on guilt confidence such that defendants are less confident of a guilty verdict when the defendant is a juvenile or has mental retardation than when the defendant is an adult or of average intelligence. Punishment of younger defendants was more lenient than punishment of adult defendants. Confessions made by defendants with mental retardation were perceived as less reliable than confessions made by defendants of average intelligence, but there was no effect of intelligence on punishment.

Extra-legal variables are factors within a trial that are logically irrelevant to the determination of a verdict. They are deemed extra-legal they are extra to the law and are not prescribed in the relevant statutes upon which the relevant issue must be decided. Research investigating judicial decision-making, however, demonstrates that extra-legal variables often affect jurors' judgements and improperly influence their decision-making. Examples of extra-legal variables include the personal attributes of trial participants, e.g., the victim's physical attractiveness, socio-economic status, and age. Studies conducted in North America indicate that the race of the victim and defendant inappropriately influences jurors' decision-making. However, to date, no such published research has been conducted in Australia. Due to Australia's diverse population, which consists of several minority groups and a dominant Caucasian group, it is likely that race may net as an extra-legal variable. Furthermore, several Australian studies have documented a strong prejudice against Aborigines and Asians, with the potential for a newly emerging prejudice against individuals from Middle-Eastern countries. The present study investigated whether the race of the victim would affect jurors' perceptions and judgements in a simulated attempted-rape trial. Research also indicates that the process of deliberation amongst other things, can affect the influence of extra-legal variables on decision-making, and that it can either exaggerate or attenuate this influence. Therefore, the impact of deliberation on the jurors' perceptions and judgements was investigated, and also whether an interaction occurred between race and deliberation. One hundred and six participants were recruited to examine the effects of the race of the victim on their judgements of the defendant, crime, and victim. Due to Australia having a dominant Caucasian race, it was assumed that when the victim is Aboriginal, Asian or of a Middle Eastern origin, jurors' judgements of the defendant, crime and the victim will be negatively prejudiced by the victim's race, and that when the victim is Caucasian, no such prejudice will impact upon the jurors' decision-making. It was also assumed that deliberation would attenuate the influence of the extra-legal variable of the victim's race, such that any bias observed in pre-deliberation judgements will be reduced in post deliberation judgements. The quantitative data was analysed with a series of 4 x 2repeated measures ANOVAs and a qualitative analysis was undertaken of the deliberation discussions. Quantitative results revealed no significant effects for victim race. However, the effect for race approached significance regarding the seriousness of the crime, with the crime perceived as least serious for the Middle-Eastern victim. The pattern of results identified across several items also revealed a consistent trend toward the different races. An overall positive trend was observed toward the Aboriginal victim, and a negative trend identified toward the Middle-Eastern victim, and to a lesser extent, the Caucasian victim. Qualitative analyses support this pattern of results. The effect for deliberation revealed a number of significant findings, with the victim's character perceived as more positive, and the defendant as less guilty following deliberation. Significant interactions were also identified regarding the defendant's sentence and the responsibility of the victim. In particular, following deliberation, the defendant in the Caucasian condition was given a significantly reduced sentence, and the Asian victim was perceived as significantly less responsible. The results are discussed in terms of the need for closer analyses of Australian intergroup relations, social desirability and cultural stereotyping, and their influence on courtroom decisions.

Anecdotal evidence supports the belief among indigent individuals who are assigned defense counsel that they would be better represented by privately retained counsel. This perspective jeopardizes attorney effectiveness by reducing communication and trust between the attorney and client. Research on the effectiveness of counsel is sparse. The purpose of this quantitative study was to bridge this gap in knowledge by comparing the effectiveness of privately retained and publicly appointed counsel between 2008 and 2013, both before and after the imposition of state-wide compensation limitations on publicly appointed defense counsel. The theoretical framework was Stuntz's theory, which stresses that one part of the criminal justice system will be compensated for elsewhere in the system. Research questions focused on the success rates of publicly funded and privately retained counsel in jury trials in a large state district court in New England. Data were collected from court records and analyzed using tests of proportions and a binary logistic regression to determine the success rates of the types of counsel and whether appointed counsels' relative effectiveness changed after the compensation limitations were imposed in 2011. The results indicated that there was no significant difference in acquittal rates between counsel groups or for either counsel group before and after the imposition of the statewide compensation limits. Implications for positive social change include educating defendants on the effectiveness of publicly appointed counsel to enhance the trust within these attorney-client relationships, and improving the quality of discourse in legislative deliberations focused on weighing budget cuts to appointed counsel compensation with the risk to the fair administration of justice.

Розглядаючи право обвинуваченого на захист, як предмет кримі- нально-процесуальних гарантій, слід виділити права, що додатково на- дані обвинуваченому, взятому під варту, а саме, вимагати звільнення, якщо обмеження волі застосовано незаконно чи тримання під вартою продовжується понад строк, передбачений законом; подавати скарги на дії прокурор.

Under the Criminal Code Compilation Act 1913 (WA), any number of individuals may be joined as co-defendants in a single trial, fanning a situation known as a joint trial. The charge/s against each defendant are considered separately and given a separate verdict by the jury. There is considerable debate in the legal arena as to the utility of joint trials, although to date little empirical research exists to substantiate any of the claims made. The present study aimed to contribute to the sparse knowledge base on joint trials by examining the impact of evidence strength on juror decision making in joint and single trials of the same defendant. Sixty mock juror university students were required to listen to an audiotaped trial summary about a hypothetical assault case that followed the same procedure as would be followed in Australian criminal courts. Evidence strength was manipulated so that defendant A had relatively weak and circumstantial evidence implicating him in the offence, and defendant B had very strong, substantive evidence implicating him in the offence. Two pilot studies confirmed that this manipulation was successful. The participants were assigned to one of three conditions - the single trial of defendant A, the single trial of defendant B, or the joint trial of defendants A and B. After listening to the trial summary, the participants were then required to give a verdict for the defendant/s, and rate the strength of the prosecution and defence evidence presented for the defendant/s. The hypothesis that the effect of joining their trials will be different for defendants A and B in terms of the proportion of guilty verdicts rendered for each defendant was supported. It was found that defendant A was significantly more likely to be found guilty in the joined condition than in the single condition (p < .05). There was no such effect observed for defendant B (p > .05). The second hypothesis that the effect of joining their trials will be different for defendants A and B on the perceived strength of prosecution evidence was also supported. Statistical testing revealed that there was a significant increase in the perceived strength of the prosecution evidence for defendant A in the joint condition, as c0mpared to the single condition (p < .05). There was no significant difference between the prosecution evidence strength ratings for defendant 8 in the single and joint conditions (p > .05). There was no support for the hypothesis that the effect of joining their trials will be different for defendants A and B on the perceived strength of defence evidence. For both defendants, there was no significant difference between defence evidence strength ratings in the joined and single conditions (p >.05). These results are interpreted with reference to impression formation theory. The limitations of the present study, including the sample, trial medium, trial elements, consequentiality of the task, and the trial materials are discussed. Directions for future research, such as improvements in the present study and additional sources of bias that may influence verdicts in joint trials, are also examined.

Gender justice is an important component of contemporary international criminal law. Feminist scholars and practitioners have been instrumental in advancing gender law reform within international criminal law and a key outcome has been the prosecution of conflict related sexual violence, in particular through the work of the Ad Hoc Tribunals for Rwanda and the Former Yugoslavia, as well as analysis of the Extraordinary Chambers in the Courts of Cambodia. This thesis argues that, despite these important gains with respect to gender justice in international criminal law, there has been inadequate attention to women as potential perpetrators, defendants, and suspects of international crimes. In addressing the absence of female defendants from prosecution under international criminal law, I argue that expectations with regard to gender are reproduced in international criminal law without sufficient understanding of the diversity of gender as a power relation reproduced intersectionally with other power relations. Following Engle's work on the hypervisibility of women as victims of sexual violence, the thesis analyses female defendants in legal and cultural contexts to examine female violence in armed conflict, beyond gendered meanings. Furthermore, through drawing on feminist approaches from MacKinnon to Kapur, to examine constructions of gender, sexuality, race and class, within law, the thesis challenges narrow assumptions with respect to gender in armed conflict that collapse into stereotypes of raced victimhood and sexual vulnerability. Gender is understood, not as a form of identity, but as a power arrangement that is implicated in racial, ethnic, classist, and socio-economic understandings of conflict and of culture. Thus, enhanced understanding of the complexity of gender in armed conflict is advocated through the study of female defendants. The thesis highlights representations of women accused of international crimes in the ICTY, ICTR, and the ECCC, and identifies tensions between international and domestic dialogues as a result. The study of the ICTY demonstrates the friction between the pursuit of gender justice and the limited gendered narratives women are represented through in depictions of the conflict in the Former Yugoslavia. Similarly, in the ICTR the thesis demonstrates a racialised preoccupation with violence that further reproduces gender, minus its complex relation with race stereotypes. In the study of the ECCC the absence of female defendants is analysed via tensions between local and international perceptions of political leadership, law, and gender. This is not a study of the stories of individual female defendants; rather the research explores how understandings of gender, international law, and armed conflict shift when female defendants are positioned as the focus of analysis.

Борба против најтежих облика прекограничног криминалитета захтевала је успостављање тешње сарадње између држава чланица Европске уније. У том циљу је установљен принцип узајамног признавања судских одлука, који се огледа у чињеници признавања и извршења страних судских одлука са што мање контроле и у кратком року, као да је у питању одлука домаћих правосудних органа. На основу овог принципа усвојен је велики број инструмената којима се остварује ближа сарадња парвосудних и полицијских органа држава чланица ЕУ и овај принцип операционализује у пракси.Предмет докторске дисертације су управо ти савремени облици сарадње правосудних и полицијских органа у кривичним стварима на нивоу ЕУ који се реализују кроз примену принципа узајамног признавања и њихова усаглашеност са основним људским правима окривљеног лица. Предметна проблематика обухвата Европску унију, као територијални ентитет у оквиру којег је принцип узајамног признавања најразвијенији, кроз велики број инструмената који на њему почивају. Основни проблем који се јавља у вези са предметом дисертације је у успостављању баланса између потребе за безбедношћу и ефикасношћу кривичног поступка, ради којих је и установљен читав инструментаријум који ће се проучавати и међународно признатих људских права, која су у овом процесу занемарена, а све у циљу што веће сарадње и пуног међусобног поверења у кривичноправне системе држава чланица ЕУ.Циљ истраживања предметне проблематике је настојањe да се укаже на досадашња достигнућа у овој области на нивоу ЕУ, идентификују проблеми који у овој области постоје, анализира положај окривљеног на нивоу ЕУ, стандарди заштите права окривљеног према Европској конвенцији о људским правима и пракси Европског суда за људска права. Као крајњи циљ жели се дати одговор на питање какав је положај окривљеног лица у поступцима пружања разних облика међународне правне помоћи у кривичним стварима на нивоу ЕУ у зависности од инструмената сарадње и да ли баланс између безбедности и заштите људских права на нивоу ЕУ постоји или како се може постићи.VIУ раду је представљен принцип узајамног признавања и одабрана су четири инструмента која почивају на овом принципу, као типични представници: Европски налог за хапшење, Европски налог за спровођење истраге, Европски налог за вршење надзора и инструмент који регулише узајамно признавање мера пробације и алтернативних санкција. Анализом правних основа на којима почивају, стања имплементације у националним законодавствима и праксом примене, дошло се до сазнања о предностима и недостацима принципа узајамног признавања. Поред тога, уочен је велики пропуст твораца ових инструмената да заштите основна људска права окривљеног у кривичном поступку. Стога је приступљено анализи стања људских права окривљеног на нивоу ЕУ и могућих правних путева заштите права окривљеног у случају повреде права у поступку примене савремених облика институционалне сарадње у кривичним стварима. Осим ЕУ, нагласак је у раду стављен и на поступак пружања међународне правне помоћи у кривичним стварима по прописима Републике Србије и извршено је поређење са системом узајамног признавања који је на снази у ЕУ. У закључним разматрањима су изнети закључци спроведеног истраживања, предлози de lege ferenda за унапређење принципа узајамног признавања и положаја окривљеног на нивоу ЕУ, као и став о усаглашености потребе за ефикасношћу кривичног поступка на нивоу ЕУ и заштите основних људских права окривљеног.
Borba protiv najtežih oblika prekograničnog kriminaliteta zahtevala je uspostavljanje tešnje saradnje između država članica Evropske unije. U tom cilju je ustanovljen princip uzajamnog priznavanja sudskih odluka, koji se ogleda u činjenici priznavanja i izvršenja stranih sudskih odluka sa što manje kontrole i u kratkom roku, kao da je u pitanju odluka domaćih pravosudnih organa. Na osnovu ovog principa usvojen je veliki broj instrumenata kojima se ostvaruje bliža saradnja parvosudnih i policijskih organa država članica EU i ovaj princip operacionalizuje u praksi.Predmet doktorske disertacije su upravo ti savremeni oblici saradnje pravosudnih i policijskih organa u krivičnim stvarima na nivou EU koji se realizuju kroz primenu principa uzajamnog priznavanja i njihova usaglašenost sa osnovnim ljudskim pravima okrivljenog lica. Predmetna problematika obuhvata Evropsku uniju, kao teritorijalni entitet u okviru kojeg je princip uzajamnog priznavanja najrazvijeniji, kroz veliki broj instrumenata koji na njemu počivaju. Osnovni problem koji se javlja u vezi sa predmetom disertacije je u uspostavljanju balansa između potrebe za bezbednošću i efikasnošću krivičnog postupka, radi kojih je i ustanovljen čitav instrumentarijum koji će se proučavati i međunarodno priznatih ljudskih prava, koja su u ovom procesu zanemarena, a sve u cilju što veće saradnje i punog međusobnog poverenja u krivičnopravne sisteme država članica EU.Cilj istraživanja predmetne problematike je nastojanje da se ukaže na dosadašnja dostignuća u ovoj oblasti na nivou EU, identifikuju problemi koji u ovoj oblasti postoje, analizira položaj okrivljenog na nivou EU, standardi zaštite prava okrivljenog prema Evropskoj konvenciji o ljudskim pravima i praksi Evropskog suda za ljudska prava. Kao krajnji cilj želi se dati odgovor na pitanje kakav je položaj okrivljenog lica u postupcima pružanja raznih oblika međunarodne pravne pomoći u krivičnim stvarima na nivou EU u zavisnosti od instrumenata saradnje i da li balans između bezbednosti i zaštite ljudskih prava na nivou EU postoji ili kako se može postići.VIU radu je predstavljen princip uzajamnog priznavanja i odabrana su četiri instrumenta koja počivaju na ovom principu, kao tipični predstavnici: Evropski nalog za hapšenje, Evropski nalog za sprovođenje istrage, Evropski nalog za vršenje nadzora i instrument koji reguliše uzajamno priznavanje mera probacije i alternativnih sankcija. Analizom pravnih osnova na kojima počivaju, stanja implementacije u nacionalnim zakonodavstvima i praksom primene, došlo se do saznanja o prednostima i nedostacima principa uzajamnog priznavanja. Pored toga, uočen je veliki propust tvoraca ovih instrumenata da zaštite osnovna ljudska prava okrivljenog u krivičnom postupku. Stoga je pristupljeno analizi stanja ljudskih prava okrivljenog na nivou EU i mogućih pravnih puteva zaštite prava okrivljenog u slučaju povrede prava u postupku primene savremenih oblika institucionalne saradnje u krivičnim stvarima. Osim EU, naglasak je u radu stavljen i na postupak pružanja međunarodne pravne pomoći u krivičnim stvarima po propisima Republike Srbije i izvršeno je poređenje sa sistemom uzajamnog priznavanja koji je na snazi u EU. U zaključnim razmatranjima su izneti zaključci sprovedenog istraživanja, predlozi de lege ferenda za unapređenje principa uzajamnog priznavanja i položaja okrivljenog na nivou EU, kao i stav o usaglašenosti potrebe za efikasnošću krivičnog postupka na nivou EU i zaštite osnovnih ljudskih prava okrivljenog.
The fight against the hardest forms of cross-border crime required the establishment of a closer cooperation between the Member States of the European Union. In the light of that aim, the principle of mutual recognition of judicial decisions was established, which is reflected in the fact of recognition and enforcement of foreign court decisions with less control and in a short term, as if it was a decision of the national judicial authorities. On the basis of this principle a large number of instruments was adopted, which enable closer cooperation of judical and police authorities of the EU Member States and allow this principle to operate in practice.The subject matter of the doctoral thesis are these modern forms of cooperation between judicial and police authorities in criminal matters at the EU level that are implemented through the application of the principle of mutual recognition and their compliance with fundamental human rights of the defendant. The subject matter also includes the European Union, as a territorial entity where the principle of mutual recognition is most developed, through a number of instruments that are based on it. The main problem that arises in connection with the subject matter of the dissertation is to establish a balance between the need for security and efficiency of the criminal proceedings for which the entire instrumentation to be studied was established and internationally recognized human rights, which are ignored in this process, all in order to achieve a greater cooperation and full mutual trust in the criminal justice systems of the EU Member States.The aim of this research is in an attempt to highlight the previous achievements in this area at the EU level, identify the problems that exist in this field, analyze the position of the defendant at the level of EU and standards to protect the defendant's rights under the European Convention on Human Rights and according to the practise of the European Court of Human rights. The ultimate aim would be to provide an answer to the question concerning the position of the defendant in the proceedings of providing various forms of mutual legal assistance in criminal matters at the EU level, depending on the instruments of cooperation and whether there is balance between security and human rights protection at the EU level or how it may be achieved.VIIIThe paper presents the principle of mutual recognition and the following four instruments based on this principle, were selected as typical representatives: The European Arrest Warrant, The European Investigation Order, The European Supervision Order and an instrument that regulates mutual recognition of probation measures and alternative sanctions. By analysing the legal basis of this instruments, state of their implementation in national legislations and their enforcement in practise, we learned about the advantages and disadvantages of the principle of mutual recognition. In addition, a major failure was observed of the creators of these instruments to protect the basic human rights of the defendant in a criminal proceedings. Therefore, it was necessary to analyse the state of human rights of the defendant at the EU level and possible legal ways of protecting the rights of the defendant in case of infringement of rights in the process of the applying contemporary forms institutional cooperation in criminal matters. Besides the EU, the emphasis is put on the procedure of providing mutual legal assistance in criminal matters under the regulations of the Republic of Serbia and it was compared with the system of mutual recognition which is in force in the EU. In final considerations the conclusions of the research are presented, as well as the proposals de lege ferenda to improve the principle of mutual recognition and position of the defendant at the EU level, along with the opinion regarding the compliance of the need for effective criminal proceedings with the EU level protection of fundamental human rights of the defendant.

Foucault's 'governmentality approach' developed the notion of 'dividing practices' (1991; see Seddon 2007) which recognises that how individuals and groups are categorised determines how they are governed. This thesis draws on critical disability studies and criminological literature on 'doing justice to difference' to develop a disability perspective in criminology, in order to analyse the governance of offenders with autism. It argues that there is descriptive and normative value in proactively categorising these groups as 'disabled' under the 'social model' of disability. The social model of disability is helpful in enabling us to distinguish between impairment and disablement. It allows us to comprehend the 'psy' literature, which explores the link between the 'symptomatology' of autism and criminality (the 'impairment branch' of the distinction) in combination with the 'interconnecting variables' (Browning and Caulfield, 2011) which lead offenders with autism into the criminal justice system and their inequitable experiences (the 'disablement branch' of the distinction). This is timely given the entrenchment of this model in the Equality Act 2010 and the inception of the Autism Act 2009, Statutory Guidance (DOH, 2010; 2015) and related policy. Using cross-method triangulation of qualitative data collected through interviews with elites and practitioners, textual analysis and court observation of eight adult defendants with autism through their court process, this thesis investigates why the status of this group as disabled under the Equality Act 2010 has been overlooked in criminal justice policy and criminal court decision-making. It examines the extent to which policy-makers and criminal justice decision-makers consider the defendant's autism in their decision-making about the defendant's case in the courts. Finally, it examines the impact of 'collateral' effects of the criminal justice process on family members who supported these defendants.

When two or more people are alleged to have committed a crime together they are automatically tried together in a joint trial. Defendants can apply to have a joint trial severed into separate trials, but they are rarely granted. However, joint trials might be biasing against defendants in that they might have a greater likelihood of obtaining aguilty verdict than if they had separate trials. A review of the literature indicated that authors have several hypotheses why joint trials might be biasing, though there is no conclusive evidence that this is the case. This study used a mock juror paradigm to investigate whether joint trials are biasing toward defendants. Results indicated that there was not a significant difference in the proportion of guilty/not-guilty verdicts across one, two, and three defendant trial conditions when all defendants involved were charged with the same offence (assault). It was concluded that having multiple defendants in a trial was not, on its own, biasing against the first or second defendants. However, having a co-defendant with a more serious charge (grievous bodily harm) led to a significant increase in the proportion of guilty verdicts assigned to the defendant in two out of three scenarios. It was concluded that it is possible that paired with a co-defendant who has a more serious charge is biasing, but future research to assess this factor more thoroughly to make firmer conclusions. Therefore, it might be important for judges to consider differences in charge seriousness when deciding whether to grant separate trials to defendants who apply for them. It is suggested that there was little information for participants in this study to remember and organise, compared to the amount of information presented in real trials. Further, damaging inadmissible evidence against defendants was not included in this study. Future research should investigate the effects of length and complexity, and inadmissible evidence to assess for any biases against joint trial defendants.

In criminal proceedings are held before the final judgment, limitations of rights for preventive purposes. These restrictive measures are called precautionary measures. This thesis proposes a general theory for these acts: Based on the principle of necessity and the object of criminal proceedings, submits that those measures are justified by the existence of one or more risks for the valid performance of the process and the dangerousness of the defendant. The theory includes determining the basis for punitive preventive measures, materials and formal adoption requirements and the requirement of proportionality. It also proposes a methodology for practical application of theory and criteria to limit the use of remand. It addresses the analysis of the presumption of innocence as a rule of treatment, deriving their theoretical and practical virtuality in criminal proceedings
En el proceso penal se dictan, antes de la sentencia definitiva, limitaciones de derechos con fines preventivos. Estas medidas limitativas son denominadas medidas cautelares. La presente tesis propone una teoría general para estos actos: A partir del principio de necesidad y del objeto del proceso penal, sostiene que aquellas medidas se justifican por la existencia de uno o varios riesgos para la válida realización del proceso y la peligrosidad del imputado. La teoría incluye la determinación del fundamento de las medidas cautelares penales, sus presupuestos materiales y formales de adopción y la exigencia de proporcionalidad. Se propone además una metodología de aplicación práctica de la teoría y unos criterios para limitar el uso de la prisión provisional. Además, aborda el análisis de la presunción de inocencia como regla de trato, derivando su virtualidad teórica y práctica en el proceso penal

To respect the rights owed to a person in the legal process, defendants must be able to understand the criminal legal proceedings against them. In legal terms, a defendant must be competent to stand trial. If a prosecutor, defense attorney, or judge questions a defendant's competency, the legal proceedings stop until evaluations can be conducted. Competency evaluations are one of the most common evaluations conducted within the legal system. Approximately 10,000-18,000 defendants per year are found incompetent and sent to competency restoration services (Gowensmith, Frost, Speelman, Therson, 2016). Competency restoration involves one or both of the following: educating a defendant about the legal process, and/or medication to resolve symptoms of mental illness, making restoration both a legal and mental health issue. This creates conflict between the defendant's mental health and due process and the court's pursuit of justice. This paper reviews important federal and state cases, rulings, and research related to the involuntary commitment and treatment of criminal defendants found not competent to stand trial. After discussing the implications of cases, rulings, and research on this subject, this paper discusses how the restoration of those found incompetent to stand trial can best satisfy both legal and psychological interests.

Previous research found gender to be a primary consideration of judges in terms of actions towards defendants. Blameworthiness, the combined effect of criminal history, offense severity, and the defendant's role in the criminal event, is also known to impact judge's actions. Little, though, is known about how gender and blameworthiness, combined, may be related to judges' actions towards white-collar defendants. The purpose of this case study, therefore, was to explore whether defendant gender and blameworthiness impact judicial actions towards defendants charged with white-collar crime(s) in a federal district court of New York. The theoretical framework was Demuth and Steffensmeier's theory of focal concerns. Research questions focused on the impacts of defendants' gender and blameworthiness in general and with regard to bail and restitution decisions. Data consisted of published court case summaries for 1,162 criminal cases heard by the US District Court for the Southern District of New York between 2009 and 2015. These data were analyzed via an inductive coding process and then subjected to content analysis. Themes that emerged revealed that all facets of blameworthiness impacted restitution while only the seriousness of the offense impacted bail decisions. Further, gender was found to impact judge's actions in subtler ways than in prior research. For example, analysis revealed slight modifications in word choice in the case summaries that appeared to be connected to the gender of the defendant, particularly related to restitution decisions. The results of this study may be used to courts and Congress to enhance existing statutes and guidelines directed at decreasing the impact of gender and blameworthiness on defendants by the justice system.

This study investigated whether a defendant?s history of childhood sexual abuse (CSA) and/or personality disorder (PD) diagnosis affected juror decision-making in a child sexual abuse trial. The personality disorders in the study were borderline personality disorder (BPD) and antisocial personality disorder (APD). Participants were 186 college students who read a summary of the trial and then made various juror decisions. The defendant?s CSA history, alone or combined with PD diagnosis, did not affect guilt ratings or sentence recommendations, indicating that jurors did not automatically assume that a defendant who had been abused as a child was guilty (as an adult) of being an abuser. However, when the defendant had a PD diagnosis, there were higher guilt ratings than when there was no PD diagnosis. PD diagnosis was the best predictor of guilt ratings, suggesting that jurors perceive defendants more negatively if they have borderline or antisocial personality disorder.

This study has presented a comprehensive historical overview of the context and significance of a, criminal defendants constitutional right to due process of law. The evidence suggests that, in many circumstances, a criminal defendant is not being afforded our most basic constitutional guarantee of fairness and justice for allOne of the primary objectives of this study was to develop a working definition for journalists to better understand the fundamental concepts of a defendants right to exculpatory evidence during criminal proceedings.Since 1791, the Supreme Court has had to continually broaden a criminal defendants right to exculpatory information. In case after case, a similar fad pattern has shown that pauper criminal defendants with court appointed attorneys having to compete against state or federal prosecutors with unlimited investigative and legal research funding This disparity is further compounded when the state or government prosecutors define to turn over information or evidence which could help the defendants case.Further analysis identified other problem areas within the scope of due process which deserve significant attention such as: the grand jury process, plea-bargains, probable cause warrants, and post-conviction hearings.
Department of Journalism

Гуцуляк М.Я. Кримінально-виконавча характеристика покарання у виді громадських робіт: дисертація на здобуття наукового ступеня кандидата юридичних наук за спеціальністю 12.00.08 – кримінальне право та кримінологія; кримінально-виконавче право / Гуцуляк Микола Ярославович. – Львів: Львівський державний університет внутрішніх справ, 2010. - 234 с.
У дисертації міститься комплексне дослідження кримінальновиконавчої характеристики виконання і відбування покарання у виді громадських робіт. Здійснено аналіз становлення та розвитку виконання та відбування покарання у виді громадських робіт, розкрито поняття та зміст покарання у виді громадських робіт у контексті кримінально-виконавчої та кримінально-правової характеристики, показано сучасний стан виконання і відбування зазнаного виду покарання, сформульовано пропозиції щодо його удосконалення. Досліджено кримінально-виконавчу характеристику покарання у виді громадських робіт, визначено кримінально-виконавчу інспекцію як суб’єкт виконання цього виду покарання, показано її взаємодію з державними органами та громадськістю, проведено ґрунтовний порівняльний аналіз зарубіжного досвіду організації виконання покарання у виді громадських робіт, розкрито права та обов’язки засуджених до покарання у виді громадських робіт, визначено порядок застосування до них засобів виправлення і ресоціалізації.The dissertation includes a complex research of criminally executive characteristic of punishment execution such as public works. The analysis of the formation and development of execution and serving one’s punishment such as21 public works is carried out, a concept and a content of punishment as public works in the context of criminally executive characteristics is exposed, the modern form of execution and serving of this type of punishment is shown, and the suggestions of its improvement are formulated. Criminally executive characteristic of punishment in the form of public works is investigated, criminally executive inspection as a subject of punishment execution is determined, its interaction with state bodies and public is shown, the detailed comparative analysis of foreign experience of organization of punishment implementation in the form of public works is carried out, the rights and duties of defendants for punishment such as public works are determined, the order of application of reformation and resocialization to them is determined.

碩士
國立臺灣大學
法律學研究所
82
Acording law-system of Europe that was after seventeen cent- ery,it used constitution to rule country system and human right . So, what human rights are very important. In 1791, American''''s constitution had been ruled to give defendant,Article 4 (The ri- ght of the people to be secure in their persons,houses, paper, and effects, against unreasonable searches and seizures,shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describ -ing the place to be searched, and the persons or things to be seized.);Article 5(No person shall be held to answer for a capi- tal, or otherwise infamous crime, unless on a presentment or in- dictment of a Grand Jury,except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for pub- lic use, without just compensation.); Article 6 (In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witness against him; to have compulsory process for obtain- ing Witnesses in his favor, and to have the assistance of coun- sel for his defence.),than after world war 2 the Germany and Japan had the same rules. But our country is lack of them. This paper commends and suggests by these rules, hopes to es- tablish this kind of rule or principle.

碩士
國立臺灣大學
法律學研究所
102
Aborigines have been living on this island for over 6,000 years. In the context of their long history, Aborigines have their own unique traditions and customs. However, these aboriginal traditions and cultures, are not only incompatible with the legal norms, but also often cause serious conflicts. Accordingly, when the "Tribal Customs" collides with "Criminal Penalties", it also pulls the trigger of judicial war between tribes and state. In this battle, there are many adverse factors in the Aboriginal Defendants'' criminal proceedings. For example, the lack of legal resources and professional judges, aborigines'' cultural and linguistic barriers, and the improper conduct of trial mode, etc. These factors make Aboriginal Defendants retreat in the battle, and also make them trapped in quagmire. Therefore, this article will explore many problems faced by Aboriginal Defendants from the beginning of criminal investigation to the end of trial, such as Judicial Interpreter issues, Defense in Investigative Procedure, Mandatory Defense of Trial, and the implementation of Aboriginal Dedicated Court. And then attempt to put forward the corresponding solutions. Besides, one of the most important issues for Aboriginal Defendants, is whether judges or prosecutors have "empathy" to deal with every Aboriginal Defendant''s case. This article believe, legislators should profoundly consider the judicial interests of Aboriginal Defendants, and make several relevant amendments or decriminalization clauses. Moreover, the civilian law enforcers'' decisions should be made based on tribal perspectives, and supplemented by their legal profession. So as to implement the aim of Aboriginal Basic Law and Additional Articles of the Constitution to protect the multiculturalism, and to achieve the purpose of returning the rights to "Aborigine".

碩士
亞洲大學
財經法律學系
106
The Article 8 of the Constitution expressly states that "personal freedom shall be guaranteed to the people" and that hindrance in such by the state authority must be based on "legitimate legal procedure", especially in the request of review with "judicial intervention". However, this article began with Judicial Interpretation No. 690 and discovered that some of the non-criminal defendants were bound to require the judge retains in due process of law (as explained in Judicial Interpretation No. 166, 251 and 588), while others did not request the judge retains (as seen in No. 690, 708 and 710), even though in Judicial Interpretation No. 708 and 710, other judges were asked to intervene to grant immediate judicial relief. Therefore, in case of restraining personal freedom of a non-criminal defendant, judges were still involved regardless of the type of requiring the judge retains or not, that even for case of judicial intervention in the due process of legal proceeding, there was no consistent context and objective criteria to follow to guarantee non-criminal protection, posing an unfavorable situation to personal freedom. As a result, the article, with a preceding context of requiring judge's involvement to provide an "immediate" and "effective" measure of interventive review, would attempt to reconstruct a righteous due process of protection for non-criminal defendant's personal freedom. By substantiating the definition of "immediate" judicial intervention, judge's involvement was further classified as "ex-ante judge retains", "ex-post facto judge retains" and "immediate judicial relief" to effectively clarify “notification service", "direct trial", "right of inspection", "right of reply", "proposition of evidence", "subpoena and examination of witnesses" and "retention of defense attorney", to ensure that judges were unbiased to perform their duty with guarantee of personal freedom to the accused. Finally, with regard to the requirements of immediate and effective judicial intervention, reforms and recommendations would be proposed on the current law governing the personal freedom of certain non-criminal defendants. Keywords: Article 8 of the Constitution、Due Process of law、Judicial Interpretation No. 690、The Retention of Judges、Judicial intervention

碩士
輔仁大學
法律學系碩士在職專班
106
Criminal Procedure Law regulates the countries’ prosecution, trial and punishment of crimes, that is to say, the law regulating the existence and scope of specific penalties in the country, whose main purpose is to discover the truth and guarantee human rights and to comply with "Due process of law" and " Fundamental Rights Protection" and the principle of " Criminal Procedure Law" and so on. Therefore, the countries should find out the truth and prosecute to punish the crimes within the limits of human rights protection. However, given the current limited judicial resources were apparently unable to swallow an ever-increasing and increasingly complex criminal case within the reasonable period and the people's expectation. It is a consideration of "litigation economy" in criminal policy to ease the source of the case. However, outside the normal criminal procedure set up the "summary litigation system" such as "summary trial procedure", "summary procedure" and "negotiation procedure." In other words, whether the facts of the case have been clarified or not; the case of actual discovery is complicated, categorized as a simple and special procedure to replace the strict usual procedure to clarify cases of misdemeanor to both the speed of refereeing. Ease the huge amount of litigation case economic goals, but these "simple litigation system" contravene the principle of fear has violated “the principle of Criminal Procedure Law” and “the litigation right.” The view on the evolution of the law relating to the "simple procedure system" of criminal law has clearly pointed out that the legislative policy has been clearly aimed at the continuous expansion of the scope of application of the "summary procedure" and is afraid to deviate from the spirit of the original legislation. The principle of "summary procedure" has been changed so far. Apart from the mandatory defense cases, there is no restriction on the types of cases. Therefore, the pursuit of "litigation economy" also threatens the protection of the fundamental rights of constitutional proceedings and the principle and principle of deviation from criminal proceedings. This study mainly focuses on "Summary Procedure" as a research and discussion topic. The purpose of this study is below. The author tries to put forward the suggestion of this study on "Summary Procedure" of criminal procedure, and hopes that the litigation system of "Summary Procedure" can exert litigation economic effect of reducing the amount of cases under the protection of truth and human rights.

This report comes from four intensive months of internship which followed the daily operation of a collective court in the Lisbon Central Criminal Court, as well as all the remaining collaborators in the exercise of jurisdictional activity. As work of a practical nature, it is carried out a contextualization of the court, of the developed activities during the internship and, also, of the preponderant criminality. As juridical research work, this report deepens the issue of the probative value of the statements of a co-accused to the detriment of another co-accused. It goes through a historical evolution regarding this means of proof, followed by an assessment of its criteria and valuation limits, as well as a brief approach of them in the scope of the European Court of Human Rights and the European Convention on Human Rights. Following the accused's behaviour in criminal proceedings, the issue of rewarded collaboration is introduced. Initially, Law No. 12.850/2013 in force in Brazil is analyzed and, later, the configuration of this institute is exposed in the Portuguese legal system. The figure of the repentant/collaborating accused is described, observing the value of his statements. Finally, the possibility of implementing Brazilian law in Portugal is studied, confronted with current procedural principles. In summary, the present report intends to demonstrate, based on the analysis recorded during the internship, issues that have been raised within the scope of the accused’s statements and, to what extent, their credibility and valuation can occur, determining since a possible benefit or procedural advantage until the exemption or mitigation of the penalty applicable to the crimes committed.
Este relatório é oriundo de quatro meses intensivos de estágio que acompanharam diariamente o funcionamento de um tribunal coletivo no Juízo Central Criminal de Lisboa, bem como todos os restantes colaboradores no exercício da atividade jurisdicional. Enquanto trabalho de natureza prática é realizada uma contextualização do tribunal, das atividades desenvolvidas ao longo do estágio e da criminalidade preponderante. No que diz respeito ao trabalho de investigação jurídica, este relatório aprofunda a questão do valor probatório das declarações de um coarguido em prejuízo de outro coarguido. Passa por uma evolução histórica referente a este meio de prova, seguida de uma aferição dos seus critérios e limites de valoração, bem como uma breve abordagem das mesmas no âmbito do TEDH e da CEDH. Na sequência do comportamento do arguido no processo penal, é introduzida a problemática da colaboração premiada. Inicialmente, é analisada a Lei n.º 12.850/2013 vigente no Brasil e, posteriormente, é exposta a configuração deste instituto no ordenamento jurídico português. É descrita a figura do arguido arrependido e/ou colaborador, observando o valor das suas declarações. Por fim, é estudada a possibilidade da implementação da lei brasileira em Portugal confrontada com os princípios processuais vigentes. Em síntese, o presente relatório pretende demonstrar com base na análise registada ao longo do estágio, questões que se têm vindo a colocar no âmbito do valor das declarações do arguido e em que medida, a sua credibilidade e valoração pode ocorrer, determinando desde um possível benefício ou vantagem processual até à isenção ou atenuação da pena aplicável aos crimes praticados.

This diploma thesis deals with the institute of Cooperating defendant. In particular, it focuses on its relation to the basic principles governing the Czech criminal proceedings, as well as selected aspects of its legal regulations. The institute of cooperating defendant has been in legal force since January 2010. Its legal regulation may be found in the legal provision 178a of the Code of Criminal Procedure. The Criminal Code contains substantive legal provisions defining the consequences related to the attainment of the cooperating defendant designation. Such consequences especially include the exceptional reduction of the length of imprisonment or even complete waiver of any sort of punishment. The institute is typically used as a tool to fight organized crime. The institute has its roots in the common law legal system from which a lot of European countries have been importing many other legal institutes, especially in the last three decades, to speed up criminal proccedings, help solve the lack of evidence and fight against organized crime which poses a threat to the society as well as the democratic state. The import of legal institutes that are otherwise typical for the common law system, however, poses many obstacles, especially because the criminal proceedings of the continental legal...

1 Confession and its impact on the criminal proceedings Abstract The aim of this thesis is to provide a comprehensive view of the issue of confession, to characterize this legal concept and describe its importance in matters of substantive and procedural criminal law. For this purpose, the author synthesized the available legal, doctrinal, judicial and other relevant information with her own opinions and considerations de lege ferenda. The content of the thesis is divided into six chapters. The first chapter contains a historical introduction covering the development of confession from the 14th century to the political trials of the 1970s. The second chapter characterizes confession in terms of content and form, focusing on particular requirements for confession and various situations in which it can be made. It also focuses on the legal concept of declaration of guilt, its differences from confession and the mutual relation between the two aforementioned in the light of the recent amendment to the Criminal Procedure Code. The third chapter deals with confession as the evidence and its significance even in case it is revoked or obtained in an inadmissible manner. The fourth chapter deals in more detail with forced confessions, methods of physical and mental pressure on the defendant and presents the results...

Este trabalho vai-se debruçar sobre a problemática e as diferentes perspetivas sobre a fase de Instrução no atual Código de Processo Penal, em Portugal, que por sua vez é uma fase facultativa de controlo jurisdicional da decisão de acusar ou arquivar, decisão essa que é tomada ainda na fase de inquérito, que aparentemente com a leitura do art.º 286, nº 1 do CPP, nos diz que A instrução visa a comprovação judicial da decisão de deduzir acusação ou arquivar o inquérito em ordem a submeter ou não a causa a julgamento Em torno desta questão e não menos controversa é a dualidade de atribuições do JIC, que por um lado, este é o guardião dos direitos fundamentais do arguido e do ofendido na fase de inquérito, mas por outro lado, este mesmo JIC, é chamado em ordem a investigar e decidir, nos termos do 288, nº 1 do CPP, ao mesmo tempo que salvaguarda direitos fundamentais, o que de imediato, parece antagónico e que levanta a questão, se não deveria haver uma alteração no sentido de a lei processual penal não permitisse que o juiz competente que intervêm na fase de inquérito, não fosse o mesmo juiz competente para dirigir a fase de instrução. Por fim, é trazida á colação pela eficácia da legalidade conjugada com a estrutura do processo penal que está orientado para obter uma efetiva proteção dos direitos fundamentais e que vai fazendo alguma ressonância na eficácia da justiça penal, precisamente pela proteção dos direitos fundamentais dos arguidos conflituando com a proteção não menos digna dos direitos fundamentais dos ofendidos.
This work will be look into the problems and different perspectives on the state of instruction in the current Code of Criminal Procedure, in Portugal, which in turn is an optional step for judicial review of decision to prosecute or file, a decision which is yet been taken at the investigation stage, apparently with the reading of art. 286, paragraph 1 of the CPP, tells us that "The instruction aims to judicial confirmation of the decision to prosecute or to close the investigation in order to submit or not the cause to trial On this issue and no less controversial is the dual tasks of JIC, which on the one hand, this is the guardian of fundamental rights of the accused and the victim in the investigation stage, but on the other hand, this same JIC, is called in order to investigate and decide, under the art. 288, paragraph 1 of the CPP, while safeguarding fundamental rights, which instantly seems antagonistic and that raises the question of whether there should be an amendment to the criminal Procedure law not to allow the competent judge to interven in the investigation stage is not the same competent judge to direct the investigation stage. Finally, is brought into play by the effectiveness of legality combined with the structure of criminal procedure that is geared for an effective protection of fundamental and will doing some resonance in the effectiveness of criminal justice rights, specifically the protection of fundamental rights of defendants conflicting with no less worthy protection of fundamental rights of the victims.

Dissertação de mestrado em Direito Jurídico
A alteração da qualificação jurídica e suas implicações para o processo penal enquanto tema sobre o qual nos iremos debruçar, reconhecida que é a sua importância e interesse dogmático, suscita ainda algumas controvérsias no universo judiciário. Consideramos a necessidade de olhar para este tema numa perspetiva marcadamente prática e de condensação de soluções, procurando contribuir para o seu devido esclarecimento e compreensão das implicações efetivas que a alteração da qualificação jurídica tem, tanto para o arguido como para o próprio processo. Iremos analisar o regime e tratamento que este tema tem na prática judiciária penal, enquadrando-o pela evolução legislativa e pelos importantes contributos da doutrina, condensando as críticas e dificuldades que lhe são apontadas, procurando, assim, contribuir para a interrogação dos respetivos problemas e maior esclarecimento da temática. Por fim, sendo uma questão tão adjetiva, com um interesse prático bastante elevado, pela sua marcada índole processual penal, iremos sempre encaminhar o estudo para a análise da jurisprudência. Podemos, desde logo, afirmar que esta é uma questão que se mantém ativa, em parte pela pertinência dos casos e questões que constantemente continuam a ser levantadas nos Tribunais, mas também pelos novos moldes que vai adquirindo a par de evoluções da própria doutrina, o que torna a questão particularmente pertinente e atual. Assim, um dos propósitos da elaboração desta dissertação de mestrado condensa-se no intuito de esclarecer, problematizando e analisando na prática judiciária penal, a questão da alteração da qualificação jurídica ao longo do processo penal.
The alteration of the legal qualification and its implications for the criminal procedure as a subject on which we will focus, recognized that it is its importance and dogmatic interest, still raises some controversies in the judicial universe. We consider the need to look at this topic in a markedly practical and condensing perspective of solutions, in order to contribute to the proper clarification and understanding of the effective implications that the amendment of the legal qualification has, both for the defendant and for the process. We will analyze the regime and treatment that this subject has in criminal judicial practice, framing it by legislative evolution and the important contributions of the doctrine, condensing the criticisms and difficulties that are pointed to it, thus trying to contribute to the interrogation of the respective problems and greater clarification of the theme. Finally, being such an adjective question, with such high practical interest, due to its marked criminal procedural nature, we will always forward the study to the analysis of jurisprudence. We can, as a matter of fact, affirm that this is an issue that remains active, partly due to the pertinence of cases and questions that are constantly being raised in the Courts, but also by the new molds that it is acquiring along with the evolution of the doctrine itself, which makes the issue particularly pertinent and current. Thus, one of the purposes of the elaboration of this master's thesis is condensed in order to clarify, problematizing and analyzing in the criminal judicial practice, the question of the alteration of the juridical qualification throughout the criminal procedure.

Role of Plea Bargainingin the US The aim of this thesis is to explain to the reader the term Plea Bargaining, to explain the principles of this legal institute and its role in the penal system of the United States of America. The Author does not only describe the Plea Bargaining, but also analyses the institute thoroughly, accenting its positive and negative aspects, considering the point of view of the particular participants of the process. Last but not least, the thesis contains the author's critical evaluation. The institute of Plea Bargaining appears in the common law system from the second half of the nineteenth century, while evincing a quantitative growth in the long term. Currently, it is being used in the absolute majority of penal proceedings, and a change in this trend can in no way be expected in the closest future - therefore, this institute shall be considered as absolutely indispensable for the law of the United States of America. Despite its wide use, its application also gives rise to negative emotions. Relatively often, there are opinions appearing, questioning its legitimacy and legality, for Plea Bargaining is not regulated in the statute law and is not only directly contrary to the Constitution of the United States of America, but also to multiple international treaties on...

碩士
輔仁大學
法律學系碩士在職專班
105
Judicial flaw and the trial delay not only many civilized states problems but our country problems.On the April 22, 2009, Act to Implement the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights(hereafter the two Covenants),was announced by the President. The Judical Yuan to legislate” The Criminal Speedy Trial Act” by the two Covenants, in order to protect for criminal defedants speedy trail right ,and make our country lawsuit system could proper and speedy. The Judical Yuan to legislate”The Criminal Speedy Trial Act” base on the law of foreign. First, for researching the issue, the regulations about speedy trail in the U.S and European Court Of Human Rights would be simply introduced. They are great details on the speedy trial, which worthy to studying and learning. Second, I would explored Taiwan speedy trial legal system, and focusing on article 7 of The Criminal Speedy Trial Act, and how to relieve speedy trail rights, when be infringed. In addition, aggregate theories, opinions of The Judical Yuan, and court judgment, for presenting practical situations. Finally, I am comparative Taiwan speedy trial legal system with foreign law system, and put up the legislation amendment prosals in this paper. Keywords:The criminal speedy trial act of articles 7,speedy trial rights,trial delay,promotion of lawsuit procedure, sentence-free appeal.

碩士
國防大學管理學院
法律學系
100
The concept of impartial tribunal is a claim for achieving the criminal defendants' fair trial rights. The concrete practice which achieve the concept should focus on the fairness and neutrality of the organization of courts, and the procedural equality between the both adversary. "The National Conference on Judicial Reform" in 1999, although our country established the direction of reform which construct and meet the people's trust "Impartial Tribunal", and continued implementing a series of judicial reforms, hoped to make the Criminal Procedure Code to become the law which contain efficacious prosecution of offences, maintain public security and protection of human rights. But we observed the content of related reform, and could be found this reform that is ignored the concept of impartial tribunal which is claimed the court resolutions should be impartial and neutral. While in that reform we still execute the systems which the record and exhibits shall be sent therewith to the court that may let the judge produce prejudge and bias before trial, and destory the judges' mentality of the Presumption of Innocence, and prejudice the judges' impartiality, and lead to the result that the existing procedures for the operation is still contrary to the concept of impartial tribunal, thereby affect the implement of protected defendants' rights. Therefore, this article intends to make the concept of impartial tribunal as a basis, and explore the structure of national criminal justice organizations and related procedures under the concept which is practiced, and through these organizations and procedures to concrete implement the protection of defendants' rights. Finally, we integrate the investigative result in each chapter to re-examine the existing criminal justice organizations and proceedings in our country, explain the inadequacies of current system which protected defendants' rights and put forward suggestions, and hope to build a system of criminal proceedings which correspond the concept of impartial tribunal.

碩士
國立臺灣大學
法律學研究所
95
It is very important to the defendant that he has the right to access the file in criminal proceedings. But, because the domestic law is too simple, we still need to further discuss about the content of this right：subject, scope, limitation and how to appeal. This thesis tries to talk about the handle mode of access to the file from the practices in the European Convention of Human Rights and the German norms, and hopes to be beneficial to legislators and judicial practices in our country. The first part of this paper is the profile of the domestic theories and practices and put the questions forward. Second, it introduces the European Convention of Human Rights and the practices of the European Court of Human Rights (the Court); moreover, it classifies the cases and sets up the handle mode of the Court. Third, it also introduces norms and practices in Germany, and observes the interaction between the Court and German practices. It sets up the handle mode of German law by connecting with case law of the Court. Then, it draws a conclusion to two handle modes, answers domestic questions and tries to build a domestic handle mode (new mode). It also discusses conflicts between new mode and domestic practices. Finally, it summaries two handle modes and the interaction between them, and proposes the suggestion about the defendant’s right of access to the file. After all, we don’t know what will be happened, but what we can do is to utilize existing information and make a best decision. The information is so important, this right is too. This thesis has been added new Article 33 of criminal procedure law (2007.07.04) and Judicial Yuan Interpretation No. 627 (2007.06.15).

碩士
國立臺北大學
法學系
95
Item 1 of Article 161 of the Code of Criminal Procedure definitely provides that the burden of proof concerning the definition of the offense lies on the prosecutor since Taiwanese Code of Criminal Procedure moves towards the “improved adversarial system” in 2002. However, the term “showing the instrument of proof” brings heaps of difficulties when explaining and applying it. More surprisingly, the legislature refers to Anglo-American Law, but never contemplates the defendant’s burden of proof in criminal case. This thesis, therefore, adopts the criminal defendant’s perspective and concentrates on the rationales of allocating the burden of proof in US and UK. This thesis copes with three propositions: 1. meanings and functions of the burden of proof; 2. rationales of allotting the burden of proof to the criminal defendant; 3. whether the reverse onus violates the presumption of innocence. There are two basic meanings as to the burden of proof: (1) the burden of producing evidence; (2) the burden of persuasion. The former is used to make the litigant’s allegation a live issue. As a result, the court does not have any duty to rule on the defendant’s allegation if he fails to render sufficient evidence to make his issue out. It is so called “the burden of producing evidence” when a defense fails to become a triable issue, the defendant will be in such an unfavorable situation that the judge will not give the jury any instruction about the defendant’s allegation or that the court itself will not make any holding on it. As for the latter, the defendant who fails to convince the court of his allegation must take on the adverse judgment if he bears the burden of persuasion. There are two essential apparatus to burden the defendant in criminal case: one presumption and the other (affirmative) defense. A presumption means that while the basic fact is proved the presumed fact will be deemed true if not disproved. In other words, the defendant bears the burden of disproving the presumed fact while the basic fact of the offense has been proved. Defenses are almost similar to justifications, excuses or alleviations in Continental criminal law; nonetheless, the defendant is usually allotted the burden of proof to show defenses in US and UK. The US Supreme Court has held that it violates the defendant’s Due Process right to shift the burden of persuasion to the defendant in criminal case. The US Supreme Court still adheres to the tradition, holding that it does not run counter to the presumption of innocence even if the criminal defendant must bear the burden of proof to support his (affirmative) defense. In 2002, the British House of Lords has held in R v Lambert that the presumption of innocence is not an absolute principle, but the statutory exception (i.e. the reverse onus of proof) should be legitimate and proportionate. Because Taiwanese criminal law has been influenced by the German tri-tiered structure of offenses for a long time, this thesis concludes that the defendant in criminal case must at least shoulder the burden of adducing evidence to make out his justifications, excuses or alleviations. That is to say, the criminal defendant must render sufficient evidence if he offers any defense before the prosecution rebuts. This approach would not only protect the defendant’s right to the presumption of innocence but also promote a fair and just criminal litigation.

碩士
國立政治大學
法律學系
106
In Taiwan, the defense system in trial can be divided into “ Cases of Mandatory Required Representation by Defense Counsel ” and “ Cases of Non-mandatory Required Representation by Defense Counsel ”. The former case, the legal rule that the trial can't be conducted unless there is a defense counsel, has caused conflicts between defendants and courts in practice, and arises some theoretical debates in the academic community. The latter case, even if the defense counsel fail to appear, the trial is still procedurally legal. However, given a pro se defendant situation, it is doubtful that whether there is sufficient ability to exercise the right to defense and whether the defense system’s goal to achieve the protection of the defendant can be realized. This article intended to investigate “the right of access to court files” and “the right to apply for survey evidence “to illustrate the difficulties of pro se defendant in the cases of non-mandatory required representation by defense counsel. What have been the reasons which lead to the problematic condition from above in Taiwan criminal procedural system? It is because of the suspicion that “the right of defense” and “the defense counsel “ are considered equivalent, that is to say the defendant’s right to defense must be relied on the defense counsel, but this thought ignored the right of defense arises from the defendant’s own subjective status. The subject of the defense right should be the defendant and not the defense counsel. Therefore, the defendant’s will should be respected, and the defendant is the core of the right to defense. The meaning or purpose of the defense system should be based on the defendant’s consideration. Accordingly, this article refers to foreign legal system, from the point of view of the defendant as the main body of criminal litigation rights and substantive due process of law, it is concluded that the defendant should have the right to Proceed pro se. That is, the discretion for defendant himself or herself to choose what kind of method should be taken to defend in lawsuit and to make the best of it. Therefore, the defense counsel’s assistance can be refused in criminal proceedings and the defendant himself or herself can choose to defend themselves. There is no strong justification for excluding defendants to Proceed pro se from the cases of mandatory Required Representation by Defense Counsel. As long as the relevant requirements are well designed and system supported, the defendant's autonomy shall be maximally respected. Furthermore, some fears such as the derogation of trial justice shall not exist any longer. Although it originally allows defendants to Proceed pro se in cases of Non-mandatory Required Representation by Defense Counsel, however, in these cases, the defendants are often in a weaker position than the prosecutor’s. In order to equalize the weapons in such cases, the role of the court should be moderated in favor of the defendant, and hence the position of the parties is fairly adjusted. Moreover, the rights legally granted to defendants to exercise, especially “the right of access to court files “ and “the right to apply for survey evidence ", should also be improved to meet the requirements of defendant’s right to Proceed pro se. Keywords: Proceed pro se, the Right to defense, Compulsory defense, Non-compulsory defense, Standby counsel, Subjectivity, Judicial fairness, the Right of access to court files, the Right to apply for survey evidence

碩士
國立臺灣海洋大學
海洋法律研究所
101
Abstract The court’s guard and control measures against the defendant during criminal trials cause significant impacts to defendant’s fundamental rights. However, while the compulsory measures in criminal procedure are regulated under constitutional law and statutes, the court’s guard and control measures are not provided in statue laws. It is not clear whether these measures do comply with the principle of proportionality and due process. Hence this thesis will introduce the court's guard and control measures in criminal trials, and further describe their definition, party, category, nature, and function. This thesis will analyze the legal status of defendant who is under the guard and control. Not only will this thesis review the rights and obligations of defendant form the prospects in practice and in academic, but it will clarify the defendant’s status, in comparison with the prisoner’s right and obligation in similar position. This thesis will investigate the interference to defendant’s fundamental rights under guard and control measures by means of examination of relevant fundamental rights, theory, and judicial review. Moreover, this thesis will research the merits of current guard and control system under the principle of legal reservation, the principle of proportionality, and the due process. It will also brief and discuss relevant cases and rulings thereof. Lastly, this thesis will discuss the remedy of guard and control measures. Since the existing regulation lacks the remedy section, it is very important as how the remedy of guard and control measures can apply to other remedy methods in current legal system. By researching the comprehensive issues above, this thesis will resolve the disputes raised from the guard and control measures against the defendant in criminal procedure, and make recommendations to amend the current regulations.

碩士
國立臺灣大學
法律學研究所
99
Criminal procedure is based on communication, and the goal is to discover the truth and protect the human rights. But if a criminal defendant can not understand or speak the language used in court, he/she will have difficulty in communication and could not exercise his/her other procedural rights, so he/she should accept the assistance of an interpreter for free, so as to build the language bridge between he/she and the court, and this will enable him/her to have knowledge of the case against him/her and to defend himself/herself, notably by being able to put before the court his/her version of the events. 　　Many international conventions guarantee the right to receive the free assistance of an interpreter. But interpreter are deemed a pure procedural tool in our country- not belong to an procedural rights of a criminal defendant. Therefore, we should rebuild the ideal protection system of the right to receive the free assistance of an interpreter. 　　This thesis will refer to the european law, and consider the assistance of an interpreter is a right of the criminal defendant. The detail character of the guarantee and the construction of the relevant selecting or training rules will be discussed in the following text. I believe that in order to guarantee the right to receive the free assistance of an interpreter, we should discuss not only the character of the right but also the relevant selecting or training rules, then we could rebuild our protection system of the right to receive the free assistance of an interpreter and the goal of the criminal procedure will be fulfil.

碩士
中國文化大學
法律學系
104
Suspect countries facing the judiciary in a variety of ways or posture when presented, is likely to be in a helpless position, there is a need to use the defender system, especially by Criminal Responsibility or arrested by the defendant or the presence or detention of suspects, the case is bound by its liberty, the right to defense and the general liberty of the people have to exercise restraint were not vary, in order to avoid its such rights by derogation to ensure that the inspection, the police authorities of the party on the other, and guarantee People affected by constitutional guarantees of the right of action to effectively protect the rights of criminal procedure on. This paper argues that the right of defense or the right to counsel in criminal proceedings, should discuss how to apply the necessity, particularly in human rights deprivation may be more serious investigation of the police inquiry procedure, then starting from the introduction of the criminal defense system, defense system Discussion The history, defenders of the status of the program, the purpose and meaning of the defense system, and to pursue its constitutional and legal basis for the foundation, and then return to this article concerned the investigation stage, how to apply the right of defense and implementation of the issue, and focus on the investigation of the police Defenders of the present exercise program right, suggestions and opinions of the article of the future direction of reform. In this paper, from the perspective of comparative law, introduce the development of the defense system of the States before, and with the development of the defense system of our country's situation is in contrast, continue the presentation and analysis of various doctrinal theories about the status of the defender, purpose and meaning of the defense system, as well as the essence of the concept of an effective defense, and summarizes the connotation about the defense system of the introduction of this chapter, shall integration analysis. Part of the constitutional basis of the defense system, the introduction describes the provisions of the Federal Constitution and the Supreme Court judgment and the provisions of the Constitution of Japan, as well as provisions of our Constitution and Justice interpretation of the substantive constitutional interpretation. The legal basis of the defense system, which in addition to having the constitutional basis of the foregoing, there are its legal basis. In this paper, I want to explore the core, that is the investigation of the right to defense, first outlined the concept of the defense as well as the substance of the investigation of the investigation, and the presence of cut-related problems when defender Right investigation interrogation, the first to explore the concept of the right of the presence and function the presence of the right to counsel, and the center of gravity of the pendulum in the investigation of the interrogation, the police inquiry stage, especially the presence of counsel basis of the right to defense and how to protect? how effective implementation of the substance of the defense? the presence of the right of way and the exercise of the existing system in place missing? Finally, this paper put forward recommendations for improvement. Finally, and for the full text to be summarized Integration, analysis, make a point of the conclusion of this article.