International Journal of Evidence & Proof, The

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

Latest documents

  • Zombie forensics: the use of the polygraph and the integrity of the criminal justice system in England and Wales

    The criminal justice system of England and Wales increasingly deploys the polygraph to extract information from released offenders. Although there is little judicial authority regarding the admissibility of polygraph evidence, we should not misinterpret silence as legal uncertainty. The paper will, first, show that the central claim for the understanding of the polygraph—i.e. the presupposition that the polygraph indicates deception—is inextricably linked to an obsolete paradigm in psychology (Introspection). Secondly, I will turn to first principles in the law of evidence, especially the general ban on opinion evidence and the requirement for scientific validity. The requirement that expert evidence has a sufficiently reliable scientific basis explains why polygraph evidence cannot be adduced at the criminal process. Thirdly, I will draw attention to the use of polygraph tests in the context of probation, pursuant to the Offender Management Act 2007. With the use of the polygraph, the criminal justice system does not only infringe the released offender’s human rights, but also fails to protect the public. The combination of inadmissibility of the polygraph in the criminal process and its use from probation services creates thus a major contradiction which is detrimental to the integrity of the legal order.

  • A case study on shortage of evidence in wrongful convictions in China

    The judiciary can only get to know the facts of a case that occurred in the past through limited evidence, and even with the shortage of evidence, the facts are fuzzy just like the moon on water. Wrongful convictions are very often based on a shortage of evidence and an ambiguity of facts. In those cases, judges face a dilemma in finding facts and applying rules of law. In order to prevent wrongful convictions, it is important to clarify the standard of evidence, to promote the legality of criminal investigation and to improve the assessment of evidence.

  • A comparison between the standard of proof applicable in arbitration and formal adjudication

    This article aims to describe the application of the standard of proof in arbitration and to question whether the standard to be applied should be the same as or lower than in ordinary civil justice as a result of the contractual origin of the dispute. The determination of the applicable standard takes into consideration the equality of arms and other guarantees of due process, along with the fact of the absence of the standard rule in the Arbitration Act 1996. The arbitrator shall establish these aspects at the beginning of the process, considering also the rules of burden of proof.

  • Victim legal representation and the adversarial criminal trial: A critical analysis of proposals for third-party counsel for complainants of serious sexual violence

    The past several decades have witnessed a shift toward victim interests being considered and incorporated within adversarial systems of justice. More recently, some jurisdictions have somewhat contentiously considered granting sex offences complainants’ legal representation at trial. In Australia, the Royal Commission into Institutional Responses to Child Abuse (2017), the Royal Commission into Family Violence (2016) and the Victorian Law Reform Commission (2016) considered the potential role of legal counsel for complainants in the criminal trial process. While contrasting quite significantly with the traditional adversarial framework—which sees crime as contested between state and accused—legal representation for complainants is not unprecedented, and victims may already retain counsel for limited matters. Despite broader use of victim legal representation in the United States, Ireland and Scotland, and as recently considered by the Sir John Gillen Review in Northern Ireland, legal representation for sex offences complainants is only just developing in Australia. Notwithstanding recent reference to legal representation for complainants where sexual history or reputational evidence may be adduced, there exists no sufficient guidance as to how such representation may be integrated in the Australian criminal trial context. This article explores the implications of introducing such counsel in Australia, including the possible role of non-legal victim advocates.

  • The Moorov doctrine and coercive control: Proving a ‘course of behaviour’ under s. 1 of the Domestic Abuse (Scotland) Act 2018

    In 2019, a distinct offence of ‘abusive behaviour towards partner or ex-partner’ (‘domestic abuse’) came into force in Scotland via s. 1 of the Domestic Abuse (Scotland) Act 2018. This new offence has been celebrated for its meaningful incorporation of the concept of coercive control (Evan Stark has described the 2018 Act as ‘gold standard’ legislation) and may serve as a model for other jurisdictions looking to criminalise coercive and controlling behaviours. The practical effectiveness of the offence in Scotland, however, will hinge on how Scotland’s corroboration rule, and the accompanying Moorov doctrine (‘Moorov’), are applied in this context. Drawing both on recent doctrinal developments and on a conceptual understanding of the dynamics of coercive control, this article offers the first in-depth analysis of how Moorov is likely to apply in s. 1 cases. It identifies developments that are likely to assist the prosecution, as well as potential barriers to the doctrine’s successful application, and argues that in certain cases judges and jurors will have difficulty seeing the ‘course of conduct’ required by Moorov without proper understanding of the policy underpinning the Act and the gendered nature of domestic abuse. The article considers how this understanding may be brought about, both within the confines of the current law and in terms of possible reform.

  • Hearsay evidence in Uganda: Understanding its meaning, admissibility and probative value

    In Uganda legislation requires witnesses to adduce direct evidence in court. However, this may not be possible in all cases and the law provides for circumstances in which hearsay may be admissible. The Evidence Act is the main piece of legislation which governs the issue evidence. In this article, the author relied on 539 cases in which the Ugandan High Court, Court of Appeal and Supreme Court have dealt with hearsay evidence to establish the principles which these courts have developed on this issue. This case law shows, inter alia, that there are three major issues that Ugandan courts are still grappling with when it comes to hearsay evidence: the definition of hearsay; the admissibility of hearsay (exceptions to the hearsay rule) and the probative value of hearsay evidence. The author suggests ways in which courts can handle these issues.

  • Rebooting the new evidence scholarship

    The new evidence scholarship addresses three distinct approaches: legal probabilism, Bayesian decision theory and relative plausibility theory. Each has major insights to offer, but none seems satisfactory as it stands. This paper proposes that relative plausibility theory be modified in two substantial ways. The first is by defining its key concept of plausibility, hitherto treated as primitive, by generalising the standard axioms of probability. The second is by complementing the descriptive component of the theory with a normative decision theory adapted to legal process. Because this version of decision theory is based on plausibilities rather than probabilities, it generates plausibilistic expectations as outputs. Because these outputs are comparable, they function as relative plausibilities. Hence the resulting framework is an extension of relative plausibility theory, but it retains deep ties to legal probabilism, through the proposed definition of plausibility, and to Bayesian decision theory, through the normative use of decision theory.

  • Corrigendum to Tapes, transcripts and trials: The routine contamination of police interview evidence
  • Registered intermediaries’ assessment of children’s communication: An exploration of aims and processes

    Following the implementation of the Youth Justice and Criminal Evidence Act 1999 for England and Wales, Registered Intermediaries have been available to assist child witness communication in legal proceedings since 2004. Registered Intermediaries are given training to fulfil this role. However, their assessments and practices are conducted independently. This study examined Registered Intermediaries’ perceptions and experiences of this independent practice, and the impact this had on the quality of the legal process in terms of evidential quality, child witness experiences and engagement. Seventeen experienced and currently active Registered Intermediaries with a range of communication specialisms took part in semi-structured interviews, which were analysed thematically. Six main themes emerged from the data: assessment constraints and requirements, essential elements of the assessment process, why the assessment process is effective, ensuring recommendations are followed through, pressures and barriers, and practice development. The Registered Intermediaries stressed the need for further training for themselves as well as for legal professionals, and emphasised the benefits of working as a team throughout the assessment and legal process.

  • The fate of evidence law: Two paths of development

    Evidence law was famously deemed ‘the child of the jury’, its development widely perceived as a by-product of the jury trial. Conventional wisdom tells us that juries, because of their cognitive and epistemic failings, can hardly be trusted and thus need rules of evidence to steer them in the right direction. Therefore, given that jury trials are vanishing in the United States and other common law countries, we must question whether the traditional evidence-law model is sustainable. At the same time that juries have been on the decline, rapid developments in science and technology have led to new forms of evidence, including scientific evidence, electronic evidence and process-based evidence. Presenting these new types of evidence at trials, however, often creates a mismatch with the traditional evidence-law framework. A systematic redesign of 21st-century evidence law to better accommodate the intensified interplay between science, technology and the law seems to be the next natural development. This essay explores these two distinct paths of evidence law—the old, jury-driven model and a new, science-directed model—and argues for preserving the old path while at the same time spending more resources and making greater effort to accommodate these new forms of evidence.

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