International Journal of Evidence & Proof, The

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

ISBN:: 1365-7127

Issue Number

No. 28-2, April 2024

Latest documents

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
Evidence from criminal law experts in Indonesian criminal trials: Usurping the judicial function?
This article seeks to account for the recent explosion in the use of expert legal evidence given by criminal law academics in criminal trials in Indonesia. This issue has received almost no scholarly attention, despite experts sometimes even opining on the guilt or innocence of defendants. Focusing on the evidence given for criminal trials by three preeminent Indonesian legal scholars, this article examines the form and content of the evidence, the justifications put forward in Indonesia for allowing it, and whether judges are receptive to it. Contrary to the assumptions of lawyers, we find that, overall, expert evidence appears to have very little discernible impact on judicial decision-making. It does, however, give the state an evidentiary advantage over defendants in some cases. We then consider what our findings say about the Indonesian judicial system—particularly the perceived competence of its judges—and the legal system more broadly.
Reasoning from background knowledge: Evaluating and explaining behaviour in Finnish rape judgments
According to explanationist theories of evidence, fact-finders reason by evaluating the ‘goodness’ of different narratives that explain the evidence. One standard is external coherence: does the narrative fit with what the fact-finder knows or assumes about the world? This study uses qualitative content analysis to examine how District Court judges draw inferences directly from ‘background knowledge’ in 119 Finnish rape cases and how these inferences are contested by dissenting and appellate judges. The results show that especially the complainant's behaviour was frequently evaluated against behavioural scripts and other background beliefs. Outspoken reliance on rape myths was relatively rare, and myths were explicitly resisted as often as they were relied upon. Where judges used stereotypical behaviour to support the rape complainant's testimony, this reasoning could be explained by the search for optimum (explanatory) coherence or the Finnish legal principle that a rape complainant's testimony requires supporting evidence. Judges also used estimates of prior probabilities to inform their reasoning; few behaviours are impossible, but some actions are ‘more coherent’ with rape than with non-rape, or vice versa. Accruing the type of knowledge necessary (and usually unavailable) for probabilistic reasoning is therefore necessary also for explanationist reasoning.
Unpacking the exclusionary rule of repeated confessions in China
While Chinese law recognises that repeated confessions following an initial confession procured by illegal means should be excluded from trial, the legal doctrine by which China excludes such evidence differs significantly from other jurisdictions. China's approach to the exclusion of repeated confessions is premised on what this paper loosely terms a ‘principle plus exceptions’ model, in which a general exclusionary rule for repeated confessions is supplemented with a closed list of exceptions. A study of the 113 cases on China Judicial Documents Network highlights the difficulties in the operationalisation of the ‘principle plus exceptions’ model, with the result that the law on repeated confessions is inconsistently applied. In response, this paper proposes that China should adopt a flexible and open-ended case-specific analysis, whereby courts examine the admissibility of the repeated confession based on the circumstances of each case and various factors. In the end, this paper advocates for essential institutional reforms aimed at bolstering the judicial authority of the Chinese judiciary and facilitating the advancement of evidence law reform in China.
Vulnerable witnesses in Chilean criminal proceedings: New developments
Common law countries have long been implementing legal reforms that recognise the special needs of vulnerable witnesses. While these issues have been the subject of considerable scrutiny and debate in evidence law scholarship, this is not the case across Latin American legal systems. This article intends to contribute to such a debate. Chile recently enacted two special laws that significantly amended the general evidentiary regime in an effort to account for the challenges facing children and victims of sex crimes. This article provides an account and analysis of these recent legal reforms. We contend that while both laws address critical issues impacting specific classes of victims, the lawgivers failed to recognise that there is conflict between the rights of the victims and the rights of the accused, generating legal reforms that have unreasonably restricted the right of defendants to confront witnesses.
The research on an electronic evidence forensic system for cross-border cybercrime
In response to cross-border cybercrime, investigative organs have adopted cross-border criminal forensic measures such as online public extraction, remote electronic data inspection and real-time monitoring, which may violate the principles of data sovereignty and judicial assistance. While promoting the establishment of a cross-border cooperation mechanism, China should establish a new cross-border electronic evidence criminal forensics model by promoting the procedural justification of cross-border search and monitoring measures. To better regulate cross-border criminal forensics activities, it is necessary to improve the cross-border cybercrime procuratorial organs system to intervene in advance and guide investigations.
A missing piece in the debate about naked statistical evidence
In this article, I want to draw attention to a class of cases that is ignored, sometimes deliberately, in the debate about the probative value of naked statistical evidence (NSE). I am talking about cases in which ‘statistical’ propositions are the principal subject of proof. I will show that they are legally relevant and remain immune to the arguments against NSE put forward in the evidence literature. All of this, I will conclude, makes it convenient to pay more attention to them. First, I will highlight the hypothetical cases discussed in the NSE debate and the kind of propositions that must be proved in them: ‘singular’ propositions. Second, I will show that there are other cases, also relevant in legal systems, in which the principal factum probandum are ‘statistical’ propositions. Third, I will argue that this difference is substantial for the NSE debate.
A systematic account of probabilistic fallacies in legal fact-finding
Evidence scholars have observed probabilistic fallacies in legal fact-finding and given them names since the 1980s (for example ‘Prosecutor's Fallacy’ and ‘Defense Attorney's Fallacy’). This has produced a rather un-organised list of over a dozen different probabilistic fallacies. In this article, the author proposes a systematic account where the observed probabilistic fallacies are organised in categories. Hierarchical relations between probabilistic fallacies are highlighted, and some fallacies are re-named to reflect the category they belong to and their relation to other fallacies in that category. All fallacies are precisely defined and illustrated with examples from real cases where they are committed by fact-finders. The result is a list of 12 probabilistic fallacies organised into 7 categories.
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.