Topic
Nolle prosequi
About: Nolle prosequi is a research topic. Over the lifetime, 56 publications have been published within this topic receiving 794 citations. The topic is also known as: dismissal.
Papers published on a yearly basis
Papers
Book•
13 Nov 2007
TL;DR: Answering for Crime as mentioned in this paper is a seminal work on the structure of criminal law and criminal liability, focusing on the question of what we should have to answer for, and to whom, under the threat of criminal conviction and punishment.
Abstract: This is the paperback edition of Antony Duff's acclaimed new work on the structures of criminal law and criminal liability. His starting point is a distinction between responsibility (understood as answerability) and liability, and a conception of responsibility as relational and practice-based. This focus on responsibility, as a matter of being answerable to those who have the standing to call one to account, throws new light on a range of questions in criminal law theory: on the question of criminalisation, which can now be cast as the question of what we should have to answer for, and to whom, under the threat of criminal conviction and punishment; on questions about the criminal trial, as a process through which defendants are called to answer, and about the conditions (bars to trial) given which a trial would be illegitimate; on questions about the structure of offences, the distinction between offences and defences, and the phenomena of strict liability and strict responsibility; and on questions about the structures of criminal defences. The net result is not a theory of criminal law; but it is an account of the structure of criminal law as an institution through which a liberal polity defines a realm of public wrongdoing, and calls those who perpetrate (or are accused of perpetrating) such wrongs to account. "For a criminal law theorist, this book is simply a must read. Duff's sweeping coverage of criminal law-ranging from the act requirement to justifications and excuses-offers a structural edifice that is indispensible. Though one may not always agree with Duff, his original analysis and complex rethinking provides significant insights into the most central questions within criminal law theory. One cannot help but learn from Duff. And anyone who wishes to be taken seriously in criminal law theory will have to grapple with his arguments." Kimberley Kessler Ferzan, Criminal Justice Ethics, 2009 "Philosophers who specialize in normative inquiries but find the time to read only one book in criminal theory every few years should immediately place Answering for Crime at the very top of their pile. It is the best book to have appeared in the philosophy of criminal law in the last decade, and the finest book ever to have focused on the structure of criminal responsibility. Answering for Crime cements Antony Duff's reputation as one of the two most important philosophers of criminal law living in the Anglo-American world today...Answering for Crime is an exceedingly original work of legal philosophy written in a refreshingly accessible style...I believe that any future work on the structure of criminal responsibility and liability must begin with Duff's work. No existing book in the philosophy of criminal law can rival the breadth, scope, and sophistication contained in Duff's analysis. I admire Answering for Crime deeply and recommend it strongly not only to criminal theorists, but also to all philosophers interested in how criminal theory sheds light on normative inquiry generally." Douglas Husak, Law and Philosophy, 2009 "...the book is an ambitious one, and has implications for almost every aspect of criminal law theory...As was to be expected from one of the most philosophically sophisticated yet institutionally sensitive writers in the field of criminal law theory, Answering for Crime is a rich book that makes a very substantial contribution to the discipline. ..The argument is complex and, particularly in the early chapters, does not always make for easy reading; but the conception is clear, elegant, and fully worked through..." Nicola Lacey, New Criminal Law Review, 2009 "It covers so many important issues with such clarity and rigour that one review cannot possibly do it justice...What Duff says about crimes, but also his views about a whole range of other issues, are deeply thought out and important...Duff's book does more to articulate a clear and structured view of criminal responsibility than has been achieved to date and his account of criminal responsibility and liability, as well as of the central doctrines and practices of criminal responsibility, will have lasting significance for criminal lawyers and philosophers alike." Victor Tadros, Mind, 2009
309 citations
TL;DR: In this paper, the authors assess the implications of these changes for the function of the criminal law, assess the reasons behind them, and examine whether or not they are to be welcomed.
Abstract: Recent years have seen mounting challenge to the model of the criminal trial on the grounds it is not cost-effective, not preventive, not necessary, not appropriate, or not effective. These challenges have led to changes in the scope of the criminal law, in criminal procedure, and in the nature and use of criminal trials. These changes include greater use of diversion, of fixed penalties, of summary trials, of hybrid civil–criminal processes, of strict liability, of incentives to plead guilty, and of preventive orders. The paper will assess the implications of these changes for the function of the criminal law, assessing the reasons behind them, and examining whether or not they are to be welcomed. Identifying the larger import of these changes draws attention to the changing relationship between state and citizen as well as changes in the nature of the state itself. These can in turn be attributed to a jostling among the different manifestations of the authoritarian state, the preventive state, and the regulatory state. These changes have profound normative implications for a liberal theory of the criminal law that require its re-articulation and its defence. A modest start may be to insist that where the conduct is criminal and the consequences are punitive the protections of criminal procedure and trial must be upheld.
171 citations
TL;DR: A Second Model of the Criminal Process as discussed by the authors is an alternative model of the criminal process that rejects the dichotomy between substance and process characteristic of the kind of thinking about criminal procedure which Packer exemplifies and which is implicit in the title of this article.
Abstract: This title, as the reader will understand in retrospect, is in several respects something of a misnomer. A central theme of this article is that Packer, to whose article of a similar name, see note 2 infra, this title alludes, has given us not the tv.'o \"models\" he claims, but only one; hence this article should be entitled \"A Second Model of the Criminal Process.\" It seems better to sacrifice such logic to rhetorical convenience. A similar consideration dictated use of the word \"model,\" despite the fact, discussd in note 14 infra, that we are concerned with ideologies and perspectives, not models. Finally. one of the most important features of the alternative ideology I shall develop is that it rejects the dichotomy between substance and process characteristic of the kind of thinking about criminal procedure which Packer exemplifies and which is implicit in the title I have borrowed from him. t Assistant Professor of Law, Yale Law School. B.A. 1962, University of California (Berkeley); LL.B. 1965, Yale University. 1. The concept of \"ideology\" has a long and tortured history. See especially K. MA NNHES, IDEOLOGY AND UTOPiA (1936). I am not, in this article, primarily interested in the relation of ideology to self-interest, social structure, or the like. Cf. however, pp. 414-16 infra. I am concerned, whatever its genesis, with its effect on thought. I use the word to refer to that set of beliefs, assumptions, categories of understanding, and the like, which affect and determine the structure of perception (not only of physcal phenomena, like causation, which has consumed the interest of philosophers, but also, and most particularly here, of social facts, relationsips and possibilities). Ideological beliefs are pre-logical because they determine the structure of perception and consciousness and therefore are enmeshed in the factual and linguistic premises of argument. It is only self-consclousness concerning the existence and nature of ideology which permits an appreciation of the extent to which it determines the contents of the world of experience and possibility. Self-consciousness is therefore the primary intellectual virtue. The analytic rigor appropriate to logical discourse is relatively less important, because the very content of the concepts to be used is at stake, and the latent propositions involved do not submit themselves to the sort of empirical or logical refutation that is possible once the ideological structure of a domain is set. The preceding ideas all have an extensive literature of their own, and they will figure, more or less explicitly, in the entire remainder of this article. Whatever the difficulties may be with the concept of ideology, it is an essential critical concept of which far too little use has been made in legal scholarship. Cf. A. BLrmERG, CPMUMNAL JusntcE (1967), where the concept of ideology is invoked as an explanatory tool, but is used only to refer to factual misconceptions and to the conceptions of the criminal process which they serve to support-these might, in turn, be related to ideological preconceptions, but that analysis is not undertaken. See id. at xiii and 32-87, in particular. Compare Packer's occasional use of the word in the same loose way, note 14 infra. Cf. also L. RAuziNowicz, IDEoLoGY A,,D Ca im (1966), which is an excellent book, but is concerned with criminogenic theories, not with \"ideologies\" as I am using the word.
140 citations
Journal Article•
TL;DR: Makkai et al. as mentioned in this paper analyzed prosecutorial decisions to proceed with or discontinue prosecution in a sample of adult sexual assault cases and found that case decisions are primarily based on evidentiary considerations related to the ability to secure a conviction, but also raise questions about the handling of cases involving prior relationships.
Abstract: Prosecution agencies are often criticised for their performance in prosecuting sexual assault. A lack of external transparency means there is little knowledge about the specific criteria used in decisions to proceed with or discontinue prosecutions. Understanding the factors that impact on the exercise of prosecutorial discretion therefore constitutes an important step towards improving criminal justice outcomes in sexual assault prosecutions. This paper analyses prosecutorial decisions to proceed with or discontinue prosecution in a sample of adult sexual assault cases. The results indicate that case decisions are primarily based on evidentiary considerations related to the ability to secure a conviction, but they also raise questions about the handling of cases involving prior relationships. Toni Makkai Director Prosecutors employed by the state and territory offices of the Director of Public Prosecutions (DPP) are vested with a range of discretionary powers in relation to prosecuting indictable offences. Some of the most important decisions include whether to proceed with a prosecution and whether to discontinue prosecution by either deciding not to find a bill of indictment (no bill), or declining to present an indictment to the court (nolle prosequi). Each DPP has developed a prosecution policy to guide prosecutors in making decisions about the conduct and disposition of cases. While there are differences in the various guidelines, they all identify two essential elements to be considered in determining whether to prosecute (Refshauge 2002). First, there must be sufficient evidence to justify prosecution and provide reasonable prospects of conviction. This assessment takes into account factors such as the competence, credibility and availability of witnesses, the admissibility of evidence, and any other factors that could affect the likelihood of a conviction. Once it is established that there is sufficient evidence, the second and overriding concern is whether it is in the public Interest for the matter to proceed. The public interest is not a question of political or popular pressure; relevant factors Include the seriousness and prevalence of the offence, factors related to the victim and the defendant,1 and the need to maintain public confidence in institutions such as the courts. Few Australian studies have examined factors that predict prosecutorial decisions in adult sexual assault cases. A Queensland study (Briody 2002) and United States research show that case decisions are shaped by a complex Interplay of structural and attitudinal factors (Kerstetter 1990; Kingsnorth, Macintosh & Wentworth 1999; Spohn, Beichner & Davis-Frenzel 2002). Decisions are largely driven by legal considerations relating to the prospects of conviction, such as the seventy of the crime, the type and strength of the evidence, and the defendant's culpability. The data also show that prosecutorial decisions are open to influence by variables that are extraneous to the legal elements of the case, including sociodemographic characteristics of victims and defendants and the victim-defendant relationship. These decisions often involve legal issues that are matters of professional judgment and require a degree of subjectivity, so prosecutors can have different views on a matter and some decisions may reflect personal biases. An influential perspective on legal decision-making, derived from a study by Albonetti (1987), suggests that the relative weight given to legal and extralegal factors will vary, as prosecution decision-making is principally oriented towards eliminating uncertainty in pursuing cases that are likely to lead to a conviction. Prosecutors know that they cannot predict or control the behaviour of the defendant, defence counsel and jury, so the probability of proceeding increases in the presence of legal and extralegal factors that boost the likelihood of success and decrease uncertainty over potential outcomes (Al bon etti 1987). …
44 citations
38 citations
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| Year | Papers |
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| 2019 | 1 |
| 2017 | 1 |
| 2016 | 3 |
| 2015 | 4 |
| 2014 | 3 |
| 2013 | 1 |