International Journal of Evidence & Proof, The

Publisher:
Sage Publications, Inc.
Publication date:
2021-09-06
ISBN:
1365-7127

Issue Number

Latest documents

  • The propensity to control: Non-sexual violence as probative of sexual offending in the intimate partner context

    This article explores, with reference to four recent New Zealand appellate court decisions, the use of evidence of prior non-sexual offending by a defendant against the same complainant offered to prove sexual offence charges. Such ‘relationship propensity evidence’ can be particularly crucial for explaining the defendant–complainant dynamic in cases involving intimate partner violence. However, in some cases, courts have applied traditional common law ‘similar fact’ notions of linkage and coincidence to exclude evidence of non-sexual offending in relation to sexual charges. We argue that this is an unsatisfactory outcome that is largely resultant from the governing provision being designed to assess similar fact reasoning. Rather, we submit that in the context of intimate partner violence, seemingly discrete and unrelated forms of violence should be understood as potentially linked by the underpinning dynamic of coercive control. This shift in characterisation of varying forms of violence—from discrete and dissimilar to connected by a dynamic of coercive control—will result in a more flexible approach to the cross-admissibility of relationship propensity evidence in appropriate cases, including when it comes to offering evidence of physical violence as probative of sexual offending.

  • Evidentiary value and evidentiary status of blockchain evidence

    Blockchain evidence is a technical method for evidence storage, transmission and fixation. Its evidential value has a dual nature, reflected in the fact that it cannot be absolutely tamper-resistant, can only provide periodic assurance of evidence authenticity and the commonly used consortium chains do not possess all the benefits of public chains. Simultaneously, blockchain evidence occupies a unique status within the entire evidence system, it serves as an evidentiary storage mechanism, is essentially an electronic evidence reflecting both the evidence collection process and outcome and its notarisation and forensic examination documents are a type of opinion evidence. It is evident that blockchain evidence does not emerge in a vacuum, rather than serving as a mere replacement for traditional evidence, blockchain evidence represents an upgrade in the functionality and effectiveness of traditional evidence. From this perspective, the improvement of blockchain evidence rules should align with the basic position of ‘technological neutrality’, which means that although technological evolution can lead to rapid changes, legislators are not always required to cater to these dynamic demands. It is essential to distinguish between on-chain and off-chain when addressing issues of authenticity, hearsay and originality, and improvements proposing should within the frameworks of existing electronic evidence rules and opinion evidence rules, thereby unlocking the potential of blockchain evidence.

  • Responding to the danger of wrongful conviction for historical sexual abuse: A case for resurrecting abuse of process for delay?

    This article examines the potential risk of wrongful conviction for defendants facing historical sexual abuse charges where there is substantial delay. This risk arises from problems with truth-finding based on witness testimony, challenges posed by missing evidence and the increasing erosion of procedural safeguards. This article considers two recent proposals for reform, including first, whether the Court of Appeal should be more prepared to revisit the factual basis of decisions in historical sexual offence appeals; or second, whether there is a need to strengthen procedural safeguards at trial through the doctrine of abuse of process for delay. This article concludes that, whilst there would be advantages to broadening the grounds for appeal, the criminal courts should be more prepared to stay substantially delayed claims for abuse of process where there is missing evidence. The current approach has the potential to be unfair and fails to protect those defendants who are most disadvantaged by delayed claims.

  • Parading the eyewitness: Caste atrocity and the Test Identification Parade

    The study of the Test Identification Parade (TIP) within Indian evidence law must be contextualised considering the intensification of atrocities and brutalities against oppressed caste communities in India. Despite the existence of a separate law – Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 – to adjudicate caste-based atrocities, its implementation has been met with severe obstacles. Studying how evidentiary practices encounter the Act reveals how the law of evidence, too, participates in the playing out of a caste crime. It is in this regard that the discussion surrounding the Test Identification Parade must be infused with a political character, surfacing the power relations and structural aspects surrounding testimony and memory within crimes. Through the TIP, evidence law constitutes the nodal site upon which the dominant caste police and judiciary collude to deprive marginalised castes of just outcomes. This piece examines the jurisprudence of the TIP in caste atrocities judgments, in order to investigate the various ways in which the law plays out a caste atrocity.

  • Examining factors predicting sexual exploitation among victims of human trafficking

    The primary aim of this study is to investigate the factors predicting sexual exploitation among victims of human trafficking, specifically examining how traffickers’ means of control, types of sexual services, nature of recruiter relationships and female age groups play a role in this phenomenon. The data analysed spanned from 2002 to 2019 and were sourced from anonymised public data provided by the Counter-Trafficking Data Collaborative (CTDC), a global hub collecting information from counter-trafficking organisations worldwide. Utilising a binary logistic regression approach, the study identified that traffickers employ various means of control, such as debt bondage, taking earnings, threats, sexual abuse, false promises, use of psychoactive substances, exploitation of children, threat of law enforcement and withholding necessities, aligning with Biderman's Theory of Coercion. Additionally, victims experience prostitution, pornography and private sexual services, often recruited by intimate partners and friends. Furthermore, the study revealed that young women aged 30 years and above were less likely to experience sexual exploitation compared to younger girls.

  • Legal transcription service in the light of access to justice in the Southern Nations, Nationalities and Peoples’ Regional State (SNNPRS) judicial system

    This paper focuses on the serious but not well-acknowledged problem related to legal transcript production in SNNPRS High Courts. It sheds light on how distortions of content are made in the testimonies of witnesses to the extent they may affect the legal evidential purpose transcripts could serve. Textual data were collected through audio-recording of court proceedings, review of legal transcripts and interviews. The findings indicated that legal transcription is conducted by employees who had qualification in computer science, but no training in legal transcription and the role that transcripts have in the judicial process. The High Courts of the region employ unilingual and inter-lingual modes of transcription, depending on whether limited court language-proficient witnesses who testify in their native tongue are provided with a court interpreter or not. Major language use problems that are observed in the legal transcripts were found to be attributable to lack of training, and lack of awareness on the part of judges, the judicial system and legal transcribers.

  • Similar fact evidence in contractual interpretation: Bhoomatidevi d/o Kishinchand Chugani Mrs Kavita Gope Mirwani v Nantakumar s/o v Ramachandra and another [2023] SGHC 37

    In the recent Singapore High Court case of Bhoomatidevi d/o Kishinchand Chugani Mrs Kavita Gope Mirwani v Nantakumar s/o v Ramachandra and another [2023] SGHC 37, the claimant argued, inter alia, that evidence of a prior contract between the first defendant and a third party should be admitted to prove that the defendant had entered into a loan agreement with her in his personal capacity. Justice Lee Seiu Kin dismissed her claim, applying s. 14 of the Evidence Act.

  • The role of the judge in the European plea bargaining procedures: Three models compared

    This article examines the role of the judge in ‘prosecutor-centred’, ‘law-centred’ and ‘judge-centred’ models of plea bargaining in the European context. A comprehensive study regarding the judicial role in plea bargaining is necessary, since the principle of double control has frequently been neglected in negotiated case dispositions, and in the literature it has often been suggested that more robust judicial control of plea bargaining should be in place. Instead of a pan-European overview, our article focuses on the different models of plea bargaining, particularly in the example of the Swiss abbreviated proceedings, the German confession bargaining and the English sentence discount. In order to put the judge's role into context, the article first introduces the contours of each model before analysing the role of the judge in these proceedings. In conclusion, the article compares the models discussed, which would provide a baseline for assessing the judicial role in plea bargaining.

  • What do we know about ‘rape myth’ research and the claim that there is ‘overwhelming evidence’ that juries are prejudiced in rape trials?

    This paper examines the research by Fiona Leverick and demonstrates the methodological flaws in much of the ‘rape myth’ and mock jury research. Other ideas about rape myths and the ‘justice gap’ are explored and seen to be questionable. Furthermore, through a detailed examination of the rape myth acceptance scales, which Leverick describes as being ‘scientifically validated’, we trace the ideological and political-ethical nature of these scales and show a clear one-sidedness in how researchers have used them. Most particularly, we find that there is one-sidedness when it comes to the question of victim empathy. One result of this is that mock jury research has indicated that victim empathetic participants are finding individuals guilty of rape, despite the lack of evidence, and almost nothing has been said about the potential miscarriages of justice being demonstrated in these cases. The argument is thus made that rather than there being overwhelming evidence of rape myth prejudices amongst the public, there appears to be a one-sidedness amongst most rape myth researchers that is encouraging a sentiment of victim empathy that could distort the principles of justice regarding defendants being innocent until proven guilty based on a need to prove guilt beyond reasonable doubt. 1

  • What do we know about ‘rape myth’ research and the claim that there is ‘overwhelming evidence’ that juries are prejudiced in rape trials?

    This paper examines the research by Fiona Leverick and demonstrates the methodological flaws in much of the ‘rape myth’ and mock jury research. Other ideas about rape myths and the ‘justice gap’ are explored and seen to be questionable. Furthermore, through a detailed examination of the rape myth acceptance scales, which Leverick describes as being ‘scientifically validated’, we trace the ideological and political-ethical nature of these scales and show a clear one-sidedness in how researchers have used them. Most particularly, we find that there is one-sidedness when it comes to the question of victim empathy. One result of this is that mock jury research has indicated that victim empathetic participants are finding individuals guilty of rape, despite the lack of evidence, and almost nothing has been said about the potential miscarriages of justice being demonstrated in these cases. The argument is thus made that rather than there being overwhelming evidence of rape myth prejudices amongst the public, there appears to be a one-sidedness amongst most rape myth researchers that is encouraging a sentiment of victim empathy that could distort the principles of justice regarding defendants being innocent until proven guilty based on a need to prove guilt beyond reasonable doubt. 1

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