Anglès criminològic, parcial 1 Virginia (2017)Apunte Inglés
- Trial by jury
- introduction to criminology
Vista previa del texto
Type of witnesses
• Eye witnesses -> gives testimony to facts seen by him. must be competent and qualified to testify in
• Expert witnesses -> advisory character -> provides scientific criteria to explain the evidences of the • • • • case Prosecution witnesses (acusació) -> exhibits formal charges against the offender on the court Defense witnesses -> opposed to the prosecutor’s complaint Hostile witnesses -> makes statements adverse the group calling or examining him/her Circumstantial witnesses -> indirect Problems with witnesses • Different versions • Credibility • Victims don’t want to remember -> traumatic experience • High stress and anxiety -> the ability to observe and recall is diminished • Victims focus the attention on the weapon, not the identity of the perpetrator • Memory -> we only process the important information not the details - Not all the information that we keep in our mind can be recovered (recuperar) or remembered - Is easier to memorize if there’s an interest in what we perceive - We memorize according to our senses (not only interest what we see, but also what we listen, smell, feel..) - Flashbacks are in color and textures can e appreciated, especially in traumatic experiences - Memories are like films and a good exercise to remember is to write the incident • Our expectations modify what we see, how we see it… so our perception changes depending on our mood, context… • Testimonies can “contaminate” what they say, remember… • In moments of fear, the brain is still working, it can’t be blocked so you can’t faint (desmaiar) Trial by jury Judici amb jurat Jury panel of everyday citizens that are summoned (citats) by a court to determine the verdict of a case in which one of their peers (iguals) from society is on trial.
• Grand jury: don't’ determine guilty or innocence, it determines if the offender should have formal charges. they have to write an indictment, a written statement of charges.
• Petite jury: civil/criminal cases. listens to evidence presented by both parties during a trial and returns a verdict. is the one we have in Spain (there’s only a jury in penal cases) Jury duty (deure): is part of our responsibility as citizens and you are fined (multat) if you don’t attend when you’re called for duty.
Jury’s job Hear/see testimony and evidence in a trial, deliberate and render a verdict Don’t decide the sentence, only if the cases have been proved.
it’s needed a jury that listens until the end without doing previous decisions. The jury hasn’t have to be conditioned. They have to be impartial and empathize with both sides.
USA - Role of the jury • hear all the evidence presented from both parties within (dintre) the courtroom (sala) and come to a • majority* or unanimous decision regarding (considerant) the guilt/liability (responsabilitat) of the defendant (acusat) on a trial * majority is not accepted in murder trials and some drug offenses unless after 6 hours the jury cannot reach a unanimous decision Don’t decide on the sanction given if found guilty in a criminal rial, however they can determine the amount of damages awarded if present a civil case.
Payment • Jurors are paid per day + diets (meals, accommodation and transport) • An employer must release you for jury duty History and functions • Judge the facts in a case • modeled after the British experience as described in the Magna Carta 1215 • American colonists believed very strongly in the right to trial by jury • Primary purpose -> safeguard citizens against arbitrary governmental actions Scope of the right - USA (abast dels drets) • Not all litigants are entitled to (amb dret a) a jury trial - Exempt are juvenile offenders, adults charged with petty offenses (faltes lleus) - crimes for which authorized punishment is less than six months in jail - Some states offer wider (conjunt) guaranties.
• Not all civil litigants are entitled to a jury trial Jury size - USA • English juries became fixed as 12 in the 14th century. This practice was adopted in USA.
• Supreme Court has ruled that 12 is a “historical accident” • Less than 12 is allowed in: - Noncapital criminal cases -> not the most important - Civil cases Composition of the jury - USA • Criminal cases -> 12 jurors • Civil cases -> 6 jurors or more -> they0re optional, the defendant or plaintiff (demandant) must request to have their case heard by a jury. the cost of the jury is borne (carregat) by the parties in that case, not taxpayers (contribuents) like in criminal cases.
-> Some argue: 6 member juries reduce court backlog (feines pendents).
Social science finds: • Small and large juries spend equal time deciding cases • Small juries don’t exclude important points of view • Jury size doesn’t affect criminal cases • Some evidence -> 12 juries are less able to reach verdict Cases tried by jury in Spain • Generally, penal cases, not civil cases. Example: murder, homicide, aid or induction to suicide, fraud, burglary, forest fires….
Number of jurors empaneled 11 -> 9 juries + 2 substitutes Voting system in Spain After the jury studies all the information given in the trial, they vote. First, they have to determine if the facts have been proved or not. Are necessary 7 out of 9 votes to declare that the facts are accepted. Later, the jury has to vote the guilty or innocence of the defendant. To consider he/she is innocent are required 5 votes, and to consider he/she is guilty are required 7 votes.
When they have the results, the spokesperson has to write a minute, which is send to the judge.
The juries are compeled to participate in the vote, the abstention is not an option. If the juries reject voting, they’ll have to face a fine.
Verdict unanimity? In USA, depending on the case, is necessary or not the unanimity.
the unanimity is a signal of agreement and union between the members of the jury, and it also demonstrates that the evidences are clear to sentence the offender. Arrive to the unanimity is thought to be difficult and it can be a large process, especially in the most challenging cases, but it allows a deep deliberation and all the evidences and thing said during the trial can be discussed. Some juries can be afraid of saying their opinion if it’s different from the others but, in unanimity cases all juries can express themselves freely, so all of them can participate in the process.
What’s a majority? Civil Criminal USA 5 out of 6 11 of 12 Spain Don’t apply (there’s not a certain number) 7 of 9 Jury selection • Juries are chosen through random processes and deliberate choice • Three steps: - Compiling a master jury list (complir amb els requisits d’una llista) - Drawing the venire - Conducting the voir dire • Do these steps produce fair and impartial juries? yes, the random process is the best to produce and impartial jury, but it’s also necessary a process where both parties choose together the jury panel because, if not, it’s possible that some members of the jury are influenced by one or another depending their own experiences and context.
There are 4 stages in the process: Stage 1: Jury districts and the jury list roll • The names of potential jurors are selected from the register of electors for the jury district/city in which the case is being held • The juries commissioner estimates the number of jurors required in each of the jury districts and informs de Electoral Commissioner • The juries commissioner prepares a draft jury roll from the people listed on the register of electors (electoral roll) • 36 people are chosen Stage 2: pre-selection of jurors • Juries commissioner sends a “Notice of Jury Selection” and a questionnaire to all people who have been • randomly selected from the electoral roll. this must be answered and returned within 14-21 days. the questionnaire helps determine eligibility for jury service (20 people are selected) Many individuals aren’t able to serve on a jury because they’re either consider to be: - Ineligible: people who are too closely related or involved in the court process (plice, lawyers, judges, court reporters…) or people who have a disability which would render them incapable of jury service (intellectual disability, deaf or blind people…) - Disqualified: individual who has been sentenced to prison imprisonment as a result of committing an indictable offense; people on remand (presó preventiva) at the time of call for jury duty; a person who has been declared bankrupt.
- Excused: • Excused for good reason: a person can apply to juries commissioner to be excused for jury services for a good reason: illness or poor health, incapacity, substantial hardship would reult, substantial financial hardship, advanced age, substantial inconvenience to public would result • Excused permanently: person can apply to juries commissioner to be permanently excused due to: continued poor health, disability, advanced age.
Stage 3: panel preparation: • Responses to questionnaires are screened (protegir) for those who are eligible for jury service.
• A list of potential jurors is drawn up (20 of them are chosen) Stage 4: summoning the jurors • Individuals receive a summon not less than 10 days before they are required to appear in court • not all people summons at this stage will actually serve on a jury panel.
Jury pool: potential people to be in the jury. they are selected for every case at random through a ballot (votació). the name and occupation of every potential juror is written onto the card. this is placed in the ballot box and when the jurors name is read out, is allocated to the relevant courtroom.
Jury panel: definitive members of the jury. After members have been allocated in courtrooms, a card for each juror is again placed into a ballot box. they will be told: type of action, name of the accused, names of the principal witnesses, estimated length of the trial, any other relevant information. The judges associate draws out a card and states the jurors name and occupation. The selected juror is asked to walk across the courtroom, passed the defendant in the dock (banc dels acusats) and take their place in the jury box. this will continue until the required number of jurors are selected Challenging a juror (qüestionar un membre del jurat): the defendant and the prosecution in a criminal case can challenge a potential juror. If there’s a cause, they can challenge a potential jurors unlimited times, they must have a good reason as to why they don’t feel as though that individual should serve on the jury; these challenges are rare. In peremptory challenge (no hi ha causa), either party can challenge or strike out (eliminar) a potential juror for no reason at all. each side is able to do this 6 times for a criminal case and 3 times for a civil case.
Disclosure of information • Identities and information on the deliberations of the jury aren’t prohibited during the trial • After the trial, generally, this information can be disclosed (revelada) as long as the names of the jurors and relevant legal proceedings aren’t revealed. In USA, both parties can have this information in orden to ask them some questions.
Venire • The venire is the jury pool (persones potencials per ser part del jurat) • Names are drawn from the master jury list and they are asked to report for jury duty • Compliance with the jury duty summonses is a major concern (many people don’t report or ask for exemptions) -> el compliment amb la citació en el deure de formar part del jurat és una gran propcupació.
Voir dire • Examination of a prospective (futur) juror to determine if they can be fair and impartial • Processes varies tremendously - sometimes only a judge is involved, in other cases lawyers participate too • Scope and intensity of the questioning varies too, it can take more or less time depending on the case.
Jury consultants • Group of people used to choose the members of the jury • Jury selection has taken a scientific turn - Used in high profile/expensive cases - Use public opinion polls (votacions), focus groups to help write questions for lawyers to use during the voir dire • Used more by defense attorneys (advocat) than prosecutors (fiscal) Rules of evidence • Evidence refers to information presented at trial: - Real evidence: includes objects - Testimony: statements by witnesses -> in Spain, people can’t doubt on the life of the testimony - Expert witnesses: possess special knowledge or expertise (experiència) - Direct evidence: refers to proof of a fact without other information - Circumstantial evidence: indirectly proves a point • There’re two criteria for judging evidence: - Trustworthiness: only the most reliable and credible information should be used - For example, courts avoid hearsay (rumors) which is secondhand evidence - Relevance: evidence must be related to an issue at trial - Is needed an effort to avoid immaterial or irrelevant evidence • In USA, the jury has access to all evidences and the summary, and they can ask to the experts to repeat some explanations. In Spain, the jury don’t has access to the summary, only to the evidences shown in the courtroom.
The verdict • The jury foreperson (supervisor) announces the verdict - the decision of a trial court. after the announcement, wither parties can ask for the jurors to be polled.
• Juries convict in criminal cases 2/3 of the times and in civil cases find for the plaintiff about 50% • Studies show that juries and judges would frequently agree on outcome (resultat) Trials as balancing wheels • Juries are democratic institutions -> they represent a deep commitment to the role of citizens in the • • • • • administration of justice Juries resolve disputes that individuals are unable or unwilling (poc disposats) to resolve The settlement (acord) of most cases is directly related to past jury verdicts in similar cases Juries introduce community norms into the legal process There’s a wide (ampli) variation in veredicts Juries introduce considerable uncertainty (dubte) in the legal process Conclusion • Trials are protected in the Constitution and a significant part of our legal history • Jury trials are an essential part of the legal system • Issues surrounding jury size, unanimity, selection and decision making are frequent topics of study • An important conclusion is that there is considerable discretion Introduction to criminology Victimology “Scientific study of physical, emotional and financial harm people suffer because of illegal activities” Included in this definition is the victimization occurring for victims within (dintre) the criminal justice system -> “revictimització” -> “you permitted it”, “you could say it before”… Victims: Individuals who experience loss, injury or hardship for any reason Crime victims: Above as result of an illegal act -> “danys per delicte” Direct/Primary victims: experience criminal act and its consequences first-hand Indirect/Secondary victims: family and those who suffer emotionally of financially but are not immediately involved. can also include care-givers and first responders. Some studies demonstrate that this type of victims can suffer similar consequences as primary victims and some countries offer help (therapy), but not in Spain.
Studying victimization scientifically • Subjective approach (apropament): issues are approached from standpoint (punt de vista) of morality, ethics, philosophy, personalized reactions and emotions.
• Objective approach: requires observer to be fair (imparcial), open-minded, even-handed, dispassionate, neutral and unbiased.
Why should victimologists NOT be pro-victims? Maybe defender is innocent, every case is different… it doesn’t exist an ideal victim. The 1st 5min you talk with the victim you have to decide if you believe or not what he/she says. The doubt about your own testimony is a signal of credibility.
• “Ideal victim”: - was weaker than aggressor - acting virtuously or not looking for trouble - not breaking any laws - the wrongdoer was a stranger acting illegally and was unprovoked - don't’ defend themselves Victims or offenders? • Who is the victim and whois the offender? That’s not always clear -> consider cases like Subway Vigilante, • Menendez Brothers, John and Lorena Bobbitt… in this cases is difficult be objective and don’t empathize with de initial victim.
The dynamics between victims and victimizers need to be sorted out (planejar, preparar) in an evenhanded (imparcial) and open-minded manner - objectively.
Criminals as victims • Victims aren’t always “innocent” -> examples: gang members attacking another gang; drug dealer ripping off (estafar) a costumer; a “john” robbing a prostitute or vice-versa… • The designations “victim” and “offender” aren’t always at opposite poles but sometimes can be pictured as overlapping.
Cycle of violence • Cycle of violence over time can transform victims into victimizers. Examples: - A group of picked on (abusar) students may gang up against the bully - Battered wife may launch a vengeful attack agains husband - Convicts much more likely to have been abused physically or sexually as children -> being a victim during the childhood don’t involve become an offender.
Victims vs “good guys” • Victimologists don’t limit their studies to clashes (desacords) between victims and offenders, they also consider the social reaction to victimization.
• Victims are often “used” by other parties. For example, media sensationalizes some cases; organizations with an agenda may use a victim’s plight (aprieto) for publicity, fund rising….
The challenge of objectivity • Victimological research must tell the whole truth regardless of who is disappointed or insulted • 3 types of biases undermine (debilitar) the ability of any social scientist to achieve objectivity 3 types of bias 1. May arise (resultar) from personal experience, taking the form of individual preferences and prejudices 2. Derives from the history of the discipline itself: • Pioneers in the study of victimology first introduced the concept of victim-blaming -> culpar a la víctima • Today, majority of victimologists are pro-victim 3. A subtle (sutil) bias traced back (rastrejar l’origen) to the mood of the times: • 60-70s: demand for government to devise (idear) ways to help victims get back on their feet financially, medically and emotionally • 80s: theme of self-reliance and a reduction in government social spending and tax cutting gained popularity Victimology’s undeserved “bad reputation” • Victimology during the 90s and into the 20th century has become a “dirty word” to many people -> the word is associated with something “bad” • Don’t confuse “victimism” (consider yourself as a victim) with “victimology” • “Victimology” is often misused, when the author intends to describe “victimism”. Examples of misusing the word “victimology”: - Victimology is a new academic discipline that only means “the study of victims” - It is focused on the research about people harmed by criminals - It doesn’t impose a partisan (imparcial) point of view or a set or predictably biased conclusions - the ideology of “victimism” is a coherent, integrated set of beliefs that shapes interpretations and leads to political action Victimology vs criminology • Victimology is best viewed as an area of specialization within criminology. Victimologists ask why some • • - individuals, households and entities are targeted while others aren’t; they use patterns and trends to develop victimization prevention strategies and risk-reduction tactics. Boundaries (límits) are still unclear.
Criminology embraces the scientific study of illegal activities, offenders, their victims, criminal law and the justice system, and societal reactions to the crime problem. Criminologists ask why certain individuals become involved in lawbreaking while others don’t; they apply their findings to devise crime prevention strategies. boundaries are clear.
Both: study how the criminal justice system actually works vs how it is supposed to work.
Overlap due to lack of boundaries (solapament degut a la falta de límits): crime rates 8prové del govern) vs victimization rates (prové d’enquestes, ong’s associacions d’ajuda…) Divisions within the discipline • Conservative influence - Focuses primarily on street crimes - Everyone has to be held (considerar) accountable (responsable) for their decisions and actions - Emphasis on self reliance (autosuficiència), NOT government - Individual responsibility for preventing, avoiding, resisting and recovering from criminal acts - Strictly punish offenders on behalf (de part de) of their victims • Liberal influence - Scope of field to extend beyond street crimes (s’extén més enllà dels crims del carrer) - Endorse (respatlla) government intervention - Extend “safety net” mechanisms for all kind of misfortunes - Look to wrongdoers repaying their victims to allow for reconciliation • Radical/critical/conflict influence - Victimization is a result of oppressive social system - Looks toward societal factors such as poverty, unemployment, language barriers… as explanations behind crime Why study victimology? • Intellectual benefits • Expansion of horizons • Practical applications that ease suffering (alleujar el sofriment) of others and provide a sense of purpose, worth, accomplishment and satisfaction • To obtain a complete understanding and appreciation of reactions to victimization What victimologists do • Victimologists explore the interactions between victims and offenders, victims and the criminal justice system, and victims and society • Victimologists study the ways in which crime victims are harmed (fer mal), including physical injury, psychological trauma and financial loss.
Forensic victimology - Constructing a victim profile Constructing a victim profile • Forensic victimology is concerned (preocupat) with the investigation and examination of particular victims alleged (pressumpte) to have suffered specific crimes, which is an idiographic form of knowledge building • Idiographic refers to the study of the concrete: examining individuals and their actuals qualities. An • idiographic victim profile is a list of the characteristics possessed by a specific victim (this has to include all the information possible - physical, biological, mental, social, educational, occupational and personality description) Nomothetic refers tot he study of the abstract: examining groups and universal laws. The primary goal of nomothetic victim studies is to accumulate general, typical, common or averaged characteristics of victim groups (create generic profiles in which we later can base the profile of a specific victim). Nomothetic victim profiles don’t represent an actual victim that exists in the real world.
The purpose of victim profiles • Forensic victimologists serve investigations and court proceedings in the following ways: - Assist in understanding elements of the crime - Assist in developing a timeline - Define the suspect pool - Provide investigative suggestions (things that the others can’t see and can help in the interrogation and in the investigation) - Assist with crime reconstruction - Assist with contextualizing allegations of victimization - Assist with the development of offender modus operandi (how the victim feels or remembers is not how is happened exactly) - Assist with the development of offender motive (ajudar en l’esclariment dels motius de l’agressor): try • to understand why and try to prevent; it helps to assess the situation and evaluate the risk of the offender.
- Assist with the case linkage (unió) - Assist with public safety response - Educate the court Forensic victimology is intended to serve both investigative and forensic goals, which are very different in scope (àmbit) and reliability with respect to findings. Not all the information that we have from the investigation will be used in the trial. When the investigation process finishes, starts the process of the forensic victimologist. All the information from the investigation is used to value it’s reliability and choose the one that will appear un the trial.
Standards of practice ■ Practice standards are the fundamental rules that set the limits of evidentiary interpretation.
■ The following practice standards are designed to help reduce bias, encourage the employment of analytical logic and the scientific method, and require the formation of hypotheses and conclusions only in accordance with the known evidence. Everything that is written in an inform has to be able to be corroborated: - Forensic examiners must strive (esforçar-se) diligently to avoid bias.
- Forensic examiners are responsible for requesting all relevant evidence and information in order to render an adequate victim profile and form related opinions.
- Forensic examiners are responsible for determining whether the evidence they are examining is of sufficient quality to provide the basis for an adequate examination.
- Forensic examiners must, whenever possible, visit the crime scene.
- Forensic conclusions, and their basis, must be provided in a written format.
- Forensic examiners must demonstrate an understanding of behavioral science, forensic science, and the scientific method.
- All conclusions must be based on established facts. Facts may not be assumed for the purpose of analysis.
- Conclusions must be valid inferences based on logical arguments and analytical reasoning.
- Conclusions must be reached with the assistance of the scientific method.
- Conclusions must demonstrate an understanding of, and clearly distinguish between, individuating findings and all others.
- Forensic examiners must demonstrate an understanding of the conditions of transfer (Locard’s Exchange Principle and Evidence Dynamics).
- Any evidence, data, or findings on which conclusions are based must be made available through presentation or citation.
Victimology: general guidelines • It’s necessary to know as much as possible about the victim.
• The following objective packages must be gathered (recollit) and assessed by the criminal investigator and forensic victimologist alike, as with any intelligence: - Personal Package • Sex; Race; Height; Weight; Hair color/length/dyed; Eyes: color/glasses/contacts: a victim that don’t want to wear glasses -> affects it’s credibility; Clothing/jewelry: the way a person dresses can attract the attention (this influences on the risk of being a victim); Personal items; Grooming/ manner of dress; Smoker or non-smoker; Hobbies/skills; Routine daily activities and commitments; Recently scheduled events; Upcoming scheduled events - Digital Package • Call phone: calls, chats, address book, GPS, photos, video; Laptop/desktop: email, calls, chats, documents, address books, browser history, photos, video; Personal Web sites: recent browser history, social network and social media activity, blogs, dating Web site, and other personal subscription Web sites; Financial Web sites/payment history: stocks, mutual funds/401K, credit cards, and online banking; Personal GPS device: recent trips, destinations, bookmarked points of interest - Residence Package - • Physical home address; Location/condition of bedroom; Evidence of music/literature/personal interests; Personal correspondence; Personal sexual items/explicit material; Missing items; Signs of violence; Location/condition of personal vehicle; Hard line phone calls; 911 calls and criminal history of residence Relationship Package: it’s important to have information from people that has’t got a direct relationship with the victim because he/she can be victimized at home.
• Current and previous intimate or marital partner(s) / family members / household members / friends / co-workers/classmates / counseling - Employment Package • Educational background and history; Current occupations/job titles; Place of employment/work schedule/supervisor/coworkers; Employment history; Work phone: calls, chats, address book, GPS, video; Laptop/desktop: email, calls, chats, documents, address books, browser history, photos, video; Business GPS device: recent trips, destinations, bookmarked points of interest; Business vehicle: logs, travel (times/destinations), GPS device; Business insurance policies - Financial Package • Wallet/Purse: contents, cards, personal items; Credit cards/history;Bank accounts/history; Property ownership; Stocks/mutual funds/410K/retirement benefits; Insurance policies - Medical Package • Current state of intoxication (drug and alcohol levels); Current medical conditions (physical and mental); History of serious medical conditions; Current medications; Current treatment regimes; Current treatment professionals; Recent medical appointments; Addictions (drugs, alcohol, or obsessive behavior) - Court Package • Criminal history;Civil court history; Witness history; In-state and out-of-state records; Evidence of victim criminal activity during the crime; Evidence of ongoing victim criminal activity unrelated to the crime • We have to know as much as possible about the victim to establish a chronology • These packages should be used to complete the following tasks: - Compile a list of the victim’s daily routines, habits, and activities - Compile a complete list of victim family members with contact information - Compile a complete list of victim friends with contact information - Compile a complete list of victim coworkers/schoolmates with contact information - Create a timeline of events using witness statements, digital evidence, and physical evidence.
Creating a Timeline: the last 24h • The purpose of creating a timeline is to familiarize the forensic victimologist with the last known activities of the victim.
• A good approach to creating this timeline of locations and events includes at least the following steps: - Compile all witness data - Compile all available forensic evidence and findings - Compile all of the police/media crime scene photographs and video - Compile all security stills and video covering the crime scene and any paths taken by the victim or offender to or from it Create a linear timeline of events and locations Create a map of the victim’s route for the 24 hours before the attack, as detailed as possible Physically walk through the victim’s last 24 hours using the map and forensic evidence as a guide Document expected background elements of the route.
Then, attempt to determine the following: - The point at which the offender acquired the victim - The place where the offender attacked the victim - How well the attack location can be seen from any surrounding locations - Whether the offender would need to be familiar with the area to know of this specific location or get to it - Whether knowledge of the route would require or indicate prior surveillance - Whether this route placed the victim at higher or lower exposure to an attack - Whether the acquisition of the victim on that route placed the offender at higher or lower exposure to identification or apprehension - • ...