International Journal of Evidence & Proof, The

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

ISBN:: 1365-7127

Issue Number

No. 29-1, January 2025

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.
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.
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.
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.
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.
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.
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.
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.
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.