International Journal of Evidence & Proof, The

Publisher:: Sage Publications, Inc.
Publication date:: 2021-09-06

ISBN:: 1365-7127

Issue Number

Latest documents

Evidence law and economics
Preponderance, proportionality, stepwise liability
After comparing the preponderance and proportional approaches to adjudication by considering some cases susceptible to being decided in either way, the work develops an in-depth discussion of Lavie's stepwise approach, and points out some major concerns that it poses, namely concerns about conceptual resources, methodology and matters of principle. As to conceptual resources, the work addresses and clarifies what Lavie means by ‘probability’ and ‘gradually increasing steps’; on methodology, it observes that reliance on Beckerian deterrence in this context is not convincing due to its reductionist motivational focus, which has also been challenged empirically by behavioural studies, and to its dismissal of the institutional function of trials; on matters of principle, finally, the work claims that the fundamental changes in the jural positions of claimant and defendant raise very high concerns in terms of the right to a fair trial.
The skewing effect of outcome evidence
Behaviours are primarily regulated to reduce the risks of a negative outcome to others. This article discusses the use of outcomes as evidence of violations of a legal standard (outcome evidence). The current debate over outcome evidence centres around limited rationality. Opponents argue that factfinders’ estimations are distorted by hindsight bias, while supporters argue that factfinders properly update the probability of fault, given information about the outcome. The article adopts the rationality assumptions and argues that factfinders should nevertheless disregard outcome evidence in most cases unless the outcome can provide evidence that works for or against the defendant or when the law creates inefficient incentives to comply with the legal standard, then using adverse outcomes as evidence may help solve the problem of undercompliance. The article further shows that when evidence cannot be excluded, changes to the law governing primary behaviour are warranted to account for the distortionary effect of outcome evidence.
Stepwise liability: Between the preponderance rule and proportional liability
There are two familiar decision rules: the binary, preponderance of the evidence and the continuous, proportional liability rule. This article proposes a thought experiment. Instead of all-or-nothing or a continuous rule, the law can utilise a middle ground—assigning liability stepwise, according to the procedural progression of the case—stepwise liability. Stepwise liability relies on the gradual design of civil procedure. Under the current system, the plaintiff has to pass several procedural thresholds with increasing evidentiary requirements in order to proceed to trial. Examples are a motion to dismiss and then a summary judgment. I propose that, corresponding to the procedural progression of the case, after surviving each step the plaintiff will be entitled to a gradually increasing share of the damages. Stepwise liability offers several advantages relative to the traditional rules. It provides partial compensation where the defendant's liability falls short of the 50% threshold, hence restoring incentives to take care. Unlike the proportional rule, this outcome can be achieved without major modifications to the existing decision rules. Unlike both rules, the proposal enables plaintiffs to cash in with some award before trial. I analyse the foregoing advantages together with the potential pitfalls, such as over-deterrence, larger legal expenses, and the day-in-court ideal.
The economic case for conviction multiplicity
Evidence law categorises convictions in purely binary terms, excluding the possibility of judgment of degree. The derivative allocation of punishment also assumes a similarly binary, ‘all or nothing’ structure: punishment can be calibrated, but not with the established probability of guilt. The article will use economic analysis to formulate the deterrence-based case for deserting this binary conceptualisation, in favour of a multiplicity of conviction categories. The discussion will be devoted both to the context of plea bargaining and to the realm of the criminal trial: with respect to plea bargaining, the article will present the economic case for converting the criminal standard of proof into a negotiable feature of trial. In the trial context, the article will make the deterrence-based argument for calibrating the size of the sanction with the level of proof, in a manner which accommodates a host of conviction categories. Using these examples and the tools of economic analysis, the article will demonstrate how a multiplicity of conviction categories and derivative distribution of punishment could allow for a better realisation of the deterrence goals underlying the criminal justice system.
What matters for assessing insider witnesses? Results of an experimental vignette study
Assessments of insider or accomplice witnesses are a major challenge in complex criminal cases, such as those of international crimes: war crimes, crimes against humanity, and genocide. While insiders are both important and problematic, little is known about how legal decision-makers determine to what extent such witnesses can be relied upon. This study, the first to experimentally study practitioner decision-making in this context, presents the findings of an online vignette experiment with former and current international criminal law practitioners (N = 160). Quantitative analyses show that the assessments of the witness and the information quality are interdependent, hence, where an insider is considered not credible, the information they provide is perceived as less reliable as well, and vice versa. Furthermore, decision-makers tend to accord more weight to the quality of information rather than the quality of the witness, in line with jurisprudence analyses. The consequences for research and practice are discussed.
Re-thinking notions of evidence and proof for sentencing: Towards a more communitarian model
Judges and magistrates are often criticised for failing to take sufficient account of social factors such as poverty and social deprivation when sentencing offenders. The implication is that the sentencing practices of the courts lack an important social dimension—that of ‘social justice’—namely, the perception that the punishment of criminalised behaviour by the state is fair and non-discriminatory. This article asserts that the notion of ‘social justice’ sits uneasily with the values that sustain the existing paradigm of adversarial trial. It is argued that shifting the focus of the adversarial trial away from its narrow preoccupation with individual accountability towards a more communitarian model of penal accountability would significantly enhance the moral credibility of sentencing and its social impact. A more flexible approach to the admissibility and evaluation of evidence is advocated, one conceived within a communitarian ideology whose purpose is to promote penal interventions which enhance social justice.
Book Review
The exposition of rape in Cyprus: From the crime scene to the court room
This paper constitutes the first attempt to explore the act of rape in Cyprus. It delineates the nexus between victims of rape and offenders, as well as the circumstances in which the two converge. Also, it explores the legal backdrop against which rape court cases are dealt with by the local judiciary. For achieving this, 58 court cases (spanning from 2000 to 2020) are analysed. Findings underpin that female rapes in Cyprus do not markedly diverge from rapes occurring in offshore milieus. Also, although domestic statutory law on rape has long set aside the element of force, case law still carries remnants of judicial bias to that end.
Digital evidence in defence practice: Prevalence, challenges and expertise
This article examines how criminal defence lawyers in the English adversarial system understand and use digital evidence (DE). Its first aim is to provide an empirical insight into their practices. Secondly, the article seeks to analyse the difficulties encountered by these professionals in accessing and working with DE—both those that they receive from the prosecution and those presented by the DE they need to defend their clients. Thirdly, the article discusses how criminal defence lawyers understand DE and its limitations and select relevant expert witnesses. Fourthly, it considers how the tensions discussed can be overcome. It is argued that while systemic issues outside the control of criminal defence lawyers are likely to impact the speed with which DE and witness expertise are secured, improving these professionals’ digital literacy remains key to best representation and successful criminal justice outcomes.