International Journal of Evidence & Proof, The

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

ISBN:: 1365-7127

Issue Number

Latest documents

Are all complainants of sexual assault vulnerable? Views of Australian criminal justice professionals on the evidence-sharing process
Cases of historic child assault typically rely on the complainant's narrative due to lack of corroborating evidence. Although it is important that complainants give their best evidence, concern has been expressed that evidence-sharing procedures are suboptimal. This study explored criminal justice professionals’ perspectives on the utility of introducing reforms to the evidence-sharing process. We interviewed judges, prosecutors, defence counsel and witness assistance officers (N = 43) on the utility of regulating the questioning of complainants and of using video-recorded interviews as evidence-in-chief. Many professionals perceived that adult complainants of child assault were vulnerable and supported reforms to evidence-sharing. Primary objections to these reforms were the belief that all adult complainants should share evidence in the same way and the poor quality of investigative interviews. This study illuminates potential barriers to the implementation of reforms which would change how adult complainants of child assault give evidence.
Special investigative measures: Comparison of the Serbian Criminal Procedure Code with the European Court of Human Rights Standards
This paper is focused on several important issues that deal with special investigation measures. The main perspective of the analysis is based on the ECtHR case law on this issue. Two issues are from primary interests: secret monitoring of communication and undercover investigator. Intensive ICT development enables various modern techniques and methods of crime investigation but also results in some new types of crime that could be committed using ICT. Expansion of the fundamental rights and their protection, especially in Europe, raised global awareness of the right to privacy and the need to protect it. Having that in mind, it seems that the main question that should be answered by legislator is: Where is the borderline between the right to privacy and the public interest to investigate or prevent crime and collect evidence? The undercover investigator falls under Article 6 of the Convention and there are different rules on the admissibility of such evidence. Serbian Criminal Procedure Law on some points is in line with ECtHR standards, but some very important provisions, as well as practice, are not.
Psychiatric Evaluation in Chinese Criminal Proceedings:A Legal Perspective
Psychiatric evaluation is widely used in criminal cases to screen people with mental disorder because insanity can either exempt the offender from criminal responsibility or mitigate his/her criminal punishment. The operation of psychiatric evaluation in China used to carry a typical characteristic of civil law tradition, but recent reforms have strengthened the procedural safeguards for psychiatric evaluation and stressed the requirement of its presentation and examination in criminal trials. This article will explore how psychiatric evaluation is conducted, and how the expert opinion is presented and examined as evidence in criminal trials in China. Part I will give a historical overview of psychiatric evaluation in China's criminal cases. Part II will introduce the current legislation on psychiatric evaluation in China. Part III will explore problems with current legislation and practice. In this part, high-profile cases will be cited to illustrate loopholes in the psychiatric evaluation law and practical problems with the operation of evaluation. Potential solutions to these loopholes or problems will also be explored. Part IV will focus on the presentation and examination of psychiatrists’ expert opinion in criminal trials. Although expert witnesses are also required to testify before the court in China, very few of them take the stand in practice. This part will discuss why reforms kept failing and what should be done to bring expert witnesses to court. Psychiatrists are important expert witnesses; the discussion of live psychiatrists will shed light on the appearance of all the expert witnesses in Chinese criminal trials.
Combating the ‘myth of physical restraint’ in human trafficking and modern slavery trials heard in the Crown Court
The greatest hurdle to an effective criminal justice response to human trafficking is the prevalence of myths about how exploitation happens and who ‘counts’ as a genuine victim. This includes the myth that, to be a genuine victim, an individual must have been subject to some form of physical restraint. Previous work has demonstrated how this myth undermines trafficking prosecutions in various jurisdictions. It has demonstrated that, in the absence of physical restraint during their exploitation, victims are deemed to lack credibility. However, what is missing in the current body literature is a robust analysis of whether something should be done to address this issue. By engaging with the foundational principle of accurate fact-finding, this article argues that some form of regulation of cross-examination in the English and Welsh jurisdiction, with a view to preventing this myth from manifesting in trials, would be justified.
Private communication between lawyers as evidence in a judicial process: A comparative journey 1
In professional negotiations between lawyers, it is usual to share information, data and documents that could be protected with legal privilege. This paper analyses, from a comparative perspective, the possible evidentiary use of the documents that a lawyer obtains from the opposing lawyer in a subsequent judicial process. A conflict is presented here between two fundamental procedural guarantees: The right to evidence of the party that possesses the documents and the right to defence and legal privilege of the party that delivered them in the prior negotiation to the lawsuit. The solution provided by different legal systems is therefore not always straightforward, because some legal systems do protect legal privilege and others protect the right to evidence, with different solutions for the rights put in balance here.
Reported communication challenges for adult witnesses with intellectual disabilities giving evidence in court
Communication plays a key role in a witness's ability to give evidence and participate in the court process. Adults with intellectual disabilities (ID) can be negatively impacted by communication difficulties such as: limitations in recall abilities; suggestibility to leading questions; difficult question styles used by advocates; and unfamiliar language used within the court setting. Most research carried out on communication challenges for adults with ID, when giving evidence, has involved participants in psychology-based experimental methodology. In this study 19 court reports assessing actual witnesses (complainants and defendants) with ID, written by Registered Intermediaries in Northern Ireland, were analysed. A wide range of communication difficulties were identified for the adult witnesses. Difficulties resulting from communication used by their communication partner (typically the advocate in a court setting) were also described. A rich model of the challenges for both partners, in giving evidence and in cross-examination, is presented, extending previous research. This study highlights the need for research within UK courts to assess: how witnesses with ID are being questioned; the effectiveness of changes made to the court process to enhance communication; the impact of the court process and environment on communication and alternative question styles for advocates to use.
Witness Statements for Employment Tribunals in England and Wales: What are the ‘Issues’?
In England and Wales, Employment Tribunals (ETs) hear claims from persons who believe that an employer, or potential employer, has treated them unlawfully. Witness statements form part of the evidence considered by ETs, but research is lacking with regard to the methods used to produce ET witness statements. This study presents the findings from 40 semi-structured interviews with ET judges, panel members, employment lawyers (solicitors, barristers, advisers) and litigants. Our data revealed six themes: professional processes, enabling through case management, presentation preferences, challenges for litigants in person, availability and quality of resources, and lack of training. Participants felt that the quality of witness statements varied amongst those prepared by professional advisors and by litigants in person. Our interviews revealed almost no evidence of practitioner training on how best to prepare a witness statement. We make recommendations about guidance and training for those tasked with drafting witness statements.
Evidence, Risk, and Proof Paradoxes: Pessimism about the Epistemic Project *
Why can testimony alone be enough for findings of liability? Why statistical evidence alone can't? These questions underpin the ‘Proof Paradox’. Many epistemologists have attempted to explain this paradox from a purely epistemic perspective. I call it the ‘Epistemic Project’. In this paper, I take a step back from this recent trend. Stemming from considerations about the nature and role of standards of proof, I define three requirements that any successful account in line with the Epistemic Project should meet. I then consider three recent epistemic accounts on which the standard is met when the evidence rules out modal risk (Pritchard 2018), normic risk (Ebert et al., 2020), or relevant alternatives (Gardiner 2019 2020). I argue that none of these accounts meets all the requirements. Finally, I offer reasons to be pessimistic about the prospects of having a successful epistemic explanation of the paradox. I suggest the discussion on the proof paradox would benefit from undergoing a ‘value-turn’.
Whither, hither and thither, Res Gestae? A comparative analysis of its relevance and application
In Singapore, the common law doctrine of res gestae (‘RG’) risks becoming extinct given the statutory inclusions of hearsay evidence. Further, the test for RG is unsettled. This article thus argues that RG is still relevant but must be applied principally. It is relevant because first, it is unwise to uproot a doctrine existing since 1808. Second, comparative analysis of cases from United Kingdom, India, New Zealand and Australia evinces the residual need for RG. Third, a modified approach to applying it can in fact exclude inadmissible evidence. This article further proposes a three-strand test. First, as a preliminary requirement, objectively, there was no concoction involved. Second, the evidence must relate to a fact-forming part of the same transaction but was not contemplated in s. 32(1) of the Evidence Act. Third, the evidence must have sufficient probative value to outweigh its prejudicial effect.
Proving non-fatal strangulation in family violence cases: A case study on the criminalisation of family violence
Non-fatal strangulation is recognised as a common form of coercive control in violent relationships. Overwhelmingly it is perpetrated by men against women. It is dangerous both because of the immediate and serious injuries it can cause, and the risk of future violence associated with it. A discrete offence of non-fatal strangulation has been introduced in many countries. Queensland, Australia introduced a discrete non-fatal strangulation offence in 2016. While the offence is charged often, around half the non-fatal strangulation charges laid by police do not proceed. We spoke to prosecution and defence lawyers to better understand the evidential obstacles to successful prosecution. We found that the prosecution of the offence faces challenges common to family violence offences more broadly, despite it being a discrete physical act. Specifically, we found that the willingness of the victim to testify and the perception of the victim's credibility were key to successful prosecution.