La construction du verdict de culpabilité : magistrature pénale et production de vérité judiciaire au Brésil

L’objectif de cette thèse est de comprendre de quelle manière le juge décide de la culpabilité de l’accusé, notamment dans les affaires de vol et de trafic de stupéfiants. En s’appuyant sur le programme ethnométhodologique et sur une enquête ethnographique, la recherche se penche sur l’ensemble de pratiques et raisonnements présents dans l’activité décisionnelle des juges, afin de rendre visibles les savoirs d’action mobilisés pour décider de la culpabilité. La thèse montre que la prise de décision est fortement marquée par la présomption de culpabilité qui découle d’un processus de catégorisation des justiciables en tant que « voleurs » et « trafiquants ». Ces catégories typiques sont associées à l’image de l’ennemi, c’est-à-dire, l’individu insoumis et incapable d’un modus vivendi commun (Jakobs, 2009). Prenant appui sur les analyses empiriques réalisées, l’étude fait une analogie entre la figure de l’ennemi et le concept d’homo sacer (Agamben, 1997; 2002) en proposant finalement que le verdict de culpabilité se construit à l’intérieur d’un « camp » - c’est-à-dire, un lieu de suspension de l’ordre juridique (Agamben, 1997) – qui se structure, paradoxalement, au sein même de la justice pénale. Mots-clés: sentencing ; vol ; trafic de stupéfiants ; verdict de culpabilité ; Brésil

L'erreur judiciaire : une démonstration difficile

"Mémoire présenté à la Faculté des études supérieures en vue de l'obtention du grade de Maîtrise en droit (L.L.M.)"

Perceptions of alibi evidence as a function of the strength of incriminating *evidence

The current study investigated the exculpatory value of alibi evidence when presented together with various types of incriminating evidence. Previous research has reported that alibi evidence could weaken the effects of DNA evidence and eyewitness identification. The present study assessed the effectiveness of alibi evidence in counteracting defendant's confession (experiment 1) and eyewitness evidence (experiment 2). In experiment 1, three levels of alibi evidence (none, weak, strong) were combined with three levels of confession evidence (voluntary, elicited under low pressure, elicited under high pressure). Results indicated significant main effects of confession and alibi and an alibi by confession interaction. Of participants exposed to high-pressure confession, those in the strong alibi condition rendered lower guilt estimates than those in the no alibi condition. In experiment 2, three levels of alibi were combined with two levels of eyewitness evidence (bad view, good view). A main effect of alibi was obtained, but no interaction between alibi and eyewitness evidence. ^ An explanation of this pattern is based in part on the Story Model (Pennington & Hastie, 1992) and a novel “culpability threshold” model of juror decision-making. The Story Model suggests that jurors generate verdict stories (interpretations of events consistent with a guilty or not guilty verdict) based on trial evidence. If the evidence in favor of guilt exceeds jurors' threshold for perceiving culpability, jurors will fail to properly consider exonerating evidence. However, when the strength of incriminating evidence does not exceed the jurors' threshold, they are likely to give appropriate consideration to exculpatory evidence in their decisions. ^ Presentation of a reliable confession in Experiment 1 exceeded jurors' culpability threshold and rendered alibi largely irrelevant. In contrast, presentation of a high-pressure confession failed to exceed jurors' culpability threshold, so jurors turned to alibi evidence in their decisions. Similarly, in the second experiment, eyewitness evidence (in general) was not strong enough to surpass the culpability threshold, and thus jurors incorporated alibi evidence in their decisions. A third study is planned to further test this “culpability threshold” model, further explore various types of alibi evidence, and clarify when exculpatory evidence will sufficiently weaken the prosecution's “story.” ^

Quantification of standards of proof thresholds in criminal and civil litigation

Standards of proof in law serve the purpose of instructing juries as to the expected levels of confidence in determinations of fact. In criminal trials, to reach a guilty verdict a jury must be satisfied beyond a reasonable doubt, and in civil trials by a preponderance of the evidence. The purposes of this study are to determine the quantitative thresholds used to make these determinations; to ascertain the levels of juror agreement with basic principles of justice; and to try to predict thresholds and beliefs by juror personality characteristics. Participants read brief case descriptions and indicated thresholds in percentages, their beliefs in various principles, and completed three personality measures. A 92-94% threshold in criminal and an 80% threshold in civil matters was found; but prediction by personality was not supported. Significant percentages of jurors disavowed the presumptions of innocence and right to counsel.

Jury option needs early verdict

The decision in Rubin v Buchanan [2011] QSC 275 confirms that a trial by jury should be considered at the outset of a proceeding.

Reparations for ‘guilty victims’: Navigating Complex Identities of Victim-Perpetrators in Reparation Mechanisms

Reparations are often declared victim-centred, but in transitional societies defining who is a victim and eligible for reparations can be a politically charged and controversial process. Added to this, the messy reality of conflict means that perpetrators and victims do not always fall in two separate categories. Instead in certain circumstances perpetrators can be victimised and victims can be responsible for victimising others. This article explores complex victims, who are responsible for victimising others, but have themselves been unlawfully victimised. Looking in particular at the 1993 Shankill bombing in Northern Ireland, as well as Colombia and Peru, such complex victims are often seen as ‘guilty’ or ‘bad’ victims undeserving of reparations. This article argues that complex victims need to be included in reparation mechanisms to ensure accountability and to prevent their exclusion becoming a source of victimisation and future violence. It considers alternative avenues of human rights courts, development aid, services and community reparations to navigate complex identities of victim-perpetrators. In concluding the author finds that complex identities can be accommodated in transitional societies reparation programmes through nuanced rules of eligibility and forms of reparations.

Rhetorical Topographies of Post-Earthquake L'Aquila: Locality, Activism, and Citizenship Engagement

Thesis (Ph.D.)--University of Washington, 2014

Reaching a verdict

Two experiments, using a mock legal case, confirmed the causal role of arguments in verdict decisions and explored the process involved. Experiment I showed that verdicts varied with the strength of counter-arguments and Experiment 2 showed that the use of background information that undermined such arguments determined the verdict reached. Such results confirm the causal role of arguments but do not speak to the representations constructed. In both experiments we analysed the reasons proposed for verdicts. Participants generally represented the state of affairs, and conjectured state of affairs, to which the arguments referred. Experiment 2 also asked participants about the number of causal possibilities they envisaged. Confidence in the verdict was moderated by the strength of counter-arguments but in different ways for those who envisaged a single causal account as opposed to two causal accounts. In the former case, confidence decreased with the rated strength of counter-arguments. In the latter case, confidence increased. We suggest that verdicts are abductive explanations of the events generated through a process of mental simulation.

Could the presumption of innocence protect the guilty?

At criminal trial, we demand that those accused of criminal wrongdoing be presumed innocent until proven guilty beyond any reasonable doubt. What are the moral and/or political grounds of this demand? One popular and natural answer to this question focuses on the moral badness or wrongness of convicting and punishing innocent persons, which I call the direct moral grounding. In this essay, I suggest that this direct moral grounding, if accepted, may well have important ramifications for other areas of the criminal justice process, and in particular those parts in which we (through our legislatures and judges) decide how much punishment to distribute to guilty persons. If, as the direct moral grounding suggests, we should prefer under-punishment to over-punishment under conditions of uncertainty, due to the moral seriousness of errors which inappropriately punish persons, then we should also prefer erring on the side of under-punishment when considering how much to punish those who may justly be punished. Some objections to this line of thinking are considered.

Are mortgage lenders guilty of the housing bubble? A UK perspective

Existing theoretical models of house prices and credit rely on continuous rationality of consumers, an assumption that has been frequently questioned in recent years. Meanwhile, empirical investigations of the relationship between prices and credit are often based on national-level data, which is then tested for structural breaks and asymmetric responses, usually with subsamples. Earlier author argues that local markets are structurally different from one another and so the coefficients of any estimated housing market model should vary from region to region. We investigate differences in the price–credit relationship for 12 regions of the UK. Markov-switching is introduced to capture asymmetric market behaviours and turning points. Results show that credit abundance had a large impact on house prices in Greater London and nearby regions alongside a strong positive feedback effect from past house price movements. This impact is even larger in Greater London and the South East of England when house prices are falling, which are the only instances where the credit effect is more prominent than the positive feedback effect. A strong positive feedback effect from past lending activity is also present in the loan dynamics. Furthermore, bubble probabilities extracted using a discrete Kalman filter neatly capture market turning points.