The Center for Law, Society, and Culture (http://www.law.indiana.edu/centers/lawsociety/) is sponsored by the Indiana University Maurer School of Law. The Center actively supports and promotes multidisciplinary understanding of law and legal problems through scholarship, teaching, and discussion. The Center is located in the School of Law on the Bloomington campus of Indiana University, but produces, presents and coordinates research conducted by more than 70 scholars from schools and departments across Indiana University. The Center's affiliated scholars hold appointments in African-American studies, business, criminal justice, journalism, history, economics, English, law, and gender studies, among others, and are dedicated to an interdisciplinary approach to the study of the role of law in society and culture. The Center supports research related to the law in a broad sense, including the cultural aspects of law expressed through political theory and scientific aspects of law expressed through technological advances in biotechnology, environmental science and information technology.
LAW & SOCIETY: PUBLIC LAW - CRIME, CRIMINAL LAW, & PUNISHMENT eJOURNAL
Sponsored by: Indiana University Maurer School of Law
"The Fraught Dichotomy between Context and Tendency Evidence in Sexual Assault Cases - Suggestions for Reform"
New Directions for Law in Australia: Essays in Contemporary Law Reform, Ron Levy, Simon Rice, Molly O'Brien, Pauline Ridge and Margaret Thornton (eds) (2017)
JOHN L ANDERSON, University of Newcastle (Australia) - Newcastle Law School
In this chapter, it will first be argued that the admissibility of relationship/context evidence under the uniform Evidence Acts should be specifically governed by a statutory provision similar to section 34P Evidence Act 1929 (SA), which presumptively makes all evidence of 'discreditable conduct' inadmissible and sets a rigorous threshold for the prosecution to persuade the trial judge that the evidence is admissible. This will require a transparent judicial balancing process rather than simply relying on the outmoded notion that directions to the jury will ameliorate the unfair prejudice to the defendant. Second, it will be contended that increased use of expert evidence to explain so-called 'counter-intuitive' behaviours of sexual assault victims, particularly children, is an option in certain cases that will be a more objective way of maintaining the credibility of victims without the need for a detailed and highly prejudicial account of 'misconduct' and events leading to the charged offence.
MICHAL BUCHHANDLER-RAPHAEL, Washington and Lee University School of Law
Psychological research has long found that anger may lead to aggression, sometimes even fatal one. The provocation doctrine corresponds to this finding by providing that murder charges may be mitigated to voluntary manslaughter if evidence establishes that the defendant acted under the influence of a â€œsudden heat of passionâ€?, resulting from â€œadequate provocationâ€?. The modern rationale underlying provocation doctrine rests on the idea that defendantâ€™s intense emotion of anger had resulted in loss of self-control, therefore he or she ought to be partially excused.
Case law demonstrates that defendants sometimes kill out of fear of serious physical violence threatened by the deceased. For example, victims of long-term physical abuse by the deceased may kill their abusers out of fear of future violence, even if at the moment of the killing the deceased was not posing an imminent threat to life. In circumstances where defendants are unable to satisfy the requirements of self-defense, provocation might be the only viable defense that would mitigate a murder conviction to voluntary manslaughter. Yet, existing provocation doctrine is unfit to capture the distinct features characterizing the reaction of fearful defendants. Commonly perceived as an anger-centric defense, the defenseâ€™s elements mostly accommodate typical the responses of defendants who acted quickly, immediately following a single and sudden triggering incident, before any lapse of time allowed them to regain control.
The article offers three major contributions to challenge existing view of provocation: first, it considers psychological research that had found that fear, similarly to anger, may also significantly interfere with individualsâ€™ decision-making processes by disturbing rational judgement, therefore sometimes leading to lethal aggression. Second, drawing on this research, the articleâ€™s key argument is that provocation doctrine should be reconstructed to also include a fear-based prong. Third, recognizing fear-based provocation calls for rejecting the â€œanger-loss of controlâ€? paradigm that currently dominates judges and jurorsâ€™ perception of the defense. In its place, the article advocates an alternative framework that would focus on the fearful defendantâ€™s fear of violence threatened by the victim that caused a significant impairment in the defendantâ€™s thought processes, resulting in obscured judgment and reasoning. The reconstructed defense would also include an objective component, under which, the defendant would have to prove that a person of ordinary disposition would also experience such emotion and respond rashly without exercising reason and judgment.
"Critique of the RCMP's Firearms and Investigative Services Directorate (FIESD) 2014 Annual Report"
GARY A. MAUSER, Simon Fraser University (SFU) - Beedie School of Business
DENNIS R. YOUNG, Independent Firearms Researcher
The RCMP has abandoned the traditional definition of a "crime gun" and now relies on a new definition that adds administrative crimes to the traditional criteria that required the firearm to be used or suspected of being used in a violent crime. The new definition includes firearms confiscated from citizens who committed paper crimes, such as allowing their firearms permit to lapse, as well as including "found guns," which includes firearms confiscated by police that are abandoned, such as those found at the residence of a suicide.
Another somewhat misleading term, "gun related crime," is also used in conjunction with "crime gun." A gun-related crime is one where a gun was found at the crime scene. The firearm need not have been used to commit the crime, just found at the scene. This means that any crime at the residence of a hunter, target shooter or gun collector is automatically classified as a "gun related crime," whether violent or non-violent; even if the firearm remained locked up in a safe.
These two terms allow Canadian police agencies to make misleading claims, e.g., "It is a fact that the majority of gun related crimes in our communities are committed with guns that are domestically sourced." This statement contrasts with research that found smuggling to be the primary source of guns used in violent crime in Canada.
"Discreet Discretion and Moderate Moderation in Judicial Sentencing: A Commentary on Kenya's Sentencing Policy Guidelines, 2016"
Strathmore University Law Journal, Forthcoming
HARRISON OTIENO MBORI, Strathmore University Law School
Criminal sentencing is an integral part in in any judicial system for the fair administration of justice. The process of sentencing and the standards applied by judicial officers has, however, been a notoriously difficult component in many criminal law systems. In Kenya, sentencing has been blamed as one of the sources of â€˜popular dissatisfaction with the administration of justiceâ€™ to borrow from Roscoe Pound. This was the impetus for the Kenyan Judiciary to introduce the Sentencing Policy Guidelines, 2016 (SPGs). This paper is a general commentary, critique, and analysis of the SPGs. The author argues that SPGs come at an instructive epoch in Kenyaâ€™s economic, socio-political, and cultural development.
This contribution is not a polemic on the Kenyan SPGs. The commentary makes sideglances to various jurisdictions that have had a longer experience with sentencing guidelines. The article forecasts that Kenyan SPGs will, despite its few shortcomings, nevertheless, prove to be important for all judicial officers involved in Kenyaâ€™s criminal justice system.
"What Should Police Do?: Reflections on Katzenbach and Kerner at 50"
MEGAN QUATTLEBAUM, Yale Law School
TOM TYLER, Yale University - Law School
Fifty years later, the resentments that led to the â€œcivil disordersâ€? of the summer of 1967 continue to plague American policing. We argue that one of the primary drivers of alienation from law enforcement, particularly in disenfranchised communities, is that officers are asked to take on responsibilities for which they are not recruited, equipped, or trained. Whether by choice or by default, police departments today address many social welfare problems. Yet it remains the case that police officers are by and large generalists, trained in and capable of deploying force. From domestic disputes to traffic violations to public drunkenness to reports of shots fired, the police who are sent to patrol the streets or respond to calls are, in general, the same armed officers, who have received largely identical training. We argue that this mismatch is costly, both to municipal budgets and to the wellbeing of police officers and communities. And we weigh the merits of four possible approaches to reform: specialization, civilianization, collaboration with other agencies, and re-allocation of social welfare tasks.
About this eJournal
Sponsored by: Indiana University Maurer School of Law.
This eJournal distributes working and accepted paper abstracts of empirical or theoretical scholarship on topics related to crime, criminal law, and criminal punishment (including the death penalty), from any disciplinary perspective. Covered topics include victims' rights, criminal sentencing rules, criminal sentencing procedures, criminal punishment, theories of criminal punishment, alternatives to traditional criminal punishment, criminal law doctrine, and administration of criminal justice.
Editor: Joseph L. Hoffmann, Indiana University
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Legal Scholarship Network (LSN), a division of Social Science Electronic Publishing (SSEP) and Social Science Research Network (SSRN)
Law & Society: Public Law - Crime, Criminal Law, & Punishment eJournal
ALFRED C. AMAN
Roscoe C. O'Byrne Professor of Law, Indiana University-Bloomington, Maurer School of Law
Professor of Law, Indiana University Maurer School of Law
PETER C. CARSTENSEN
George H. Young-Bascom Professor of Law, University of Wisconsin Law School
KENNETH GLENN DAU-SCHMIDT
Willard and Margaret Carr Professor of Labor and Employment Law, Indiana University Maurer School of Law
LAUREN B. EDELMAN
Director, Center for the Study of Law and Society, Agnes Roddy Robb Professor of Law and Professor of Sociology, University of California, Berkeley - Jurisprudence & Social Policy Program and Center for the Study of Law and Society
SALLY ENGLE MERRY
Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology
HOWARD S. ERLANGER
Voss-Bascom Professor of Law, Professor of Sociology [Emeritus] Review Section Editor - Law & Social Inquiry, University of Wisconsin Law School
LUIS E. FUENTES-ROHWER
Professor of Law, Adjunct Professor of Latino Studies, Adjunct Professor of Political Science, Indiana University Maurer School of Law
MARC S. GALANTER
John & Rylla Bosshard Professor of Law, University of Wisconsin Law School, Madison
Co-Director, Center for Law, Society and Culture, Professor of History & Law, Indiana University-Bloomington, Maurer School of Law
WILLIAM D. HENDERSON
Professor of Law, Indiana University Maurer School of Law
Editorial Advisory Board, Law and Society Review, Assistant Professor, University of Illinois at Urbana-Champaign - Department of Sociology
Professor of Law and Political Science, SUNY Buffalo Law School
JOYCE S. STERLING
Professor of Law, University of Denver Sturm College of Law