International Commentary on Evidence最新文献

{"title":"A Tale of Two Approaches - The NAS Report and the Law Commission Consultation Paper on Forensic Science","authors":"Rhonda M. Wheate, A. Jamieson","doi":"10.2202/1554-4567.1110","DOIUrl":"https://doi.org/10.2202/1554-4567.1110","url":null,"abstract":"Recent publications from the National Academy of Science (USA) and the Law Commission (UK) provide an interesting contrast in approach to well documented and historic problems with the use of “scientific\" evidence in legal proceedings. The NAS recommends a thorough assessment of the scientific bases of forensic science, to discern and improve the validity of the science before it can be considered suitable for court purposes. The UK approach more tentatively examines the legal admissibility of forensic science, leaving aside the more fundamental questions as to the inherent unreliability of the evidence. Drawing upon the American report and current experience in the UK, this paper proposes a more robust admissibility regime in the UK, including recognition and acceptance of the different roles of the prosecution and defence expert; more thorough and less combative disclosure by the prosecution; wider availability of validation data; and greater legal and research support for the thorough review of the “science\" underlying forensic science.","PeriodicalId":129839,"journal":{"name":"International Commentary on Evidence","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132986608","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Wanting the Truth: Comparing Prosecutions of Investigative and Institutional Deception","authors":"Lissa Griffin","doi":"10.2202/1554-4567.1097","DOIUrl":"https://doi.org/10.2202/1554-4567.1097","url":null,"abstract":"Defensive dishonesty in criminal investigations has increasingly been prosecuted without standards for identifying harmful deception or other meaningful checks on prosecutorial discretion. Although they are often grouped together statistically and evaluated as comparable crimes, there is a clear distinction between investigative lies and in-court perjury. The differences between the offenses—including the standards for prosecution, the perceived victim, and the purposes of bringing charges—suggest reasons to reconsider the current approach to investigative lies such as false statements. More truth is produced, and arguably more cooperation results, when the government focuses on the quality of the information flow. The structural protections in place with regard to institutional perjury can be explained in part as truth-seeking tools, and I propose translating warning requirements and distinctions between active and passive lies into the context of investigative deception. Efforts to get accurate information could more effectively curtail evidentiary foul play than strategies designed just to get defendants. And being attentive to whether a false statement actually causes harm—a mitigating principle seemingly at work in the perjury context—might further optimize deterrence.","PeriodicalId":129839,"journal":{"name":"International Commentary on Evidence","volume":"73 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127381972","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Re-Thinking the Criminal Standard of Proof: Seeking Consensus about the Utilities of Trial Outcomes","authors":"L. Laudan, H. Saunders","doi":"10.2202/1554-4567.1099","DOIUrl":"https://doi.org/10.2202/1554-4567.1099","url":null,"abstract":"For more than a half-century, evidence scholars have been exploring whether the criminal standard of proof can be grounded in decision theory. Such grounding would require the emergence of a social consensus about the utilities to be assigned to the four outcomes at trial. Significant disagreement remains, even among legal scholars, about the relative desirability of those outcomes and even about the formalisms for manipulating their respective utilities. We attempt to diagnose the principal reasons for this dissensus and to suggest ways in which a broadly shared evaluation might be forged. Along the way, we note: (1) The disproportionate role that the Blackstone ratio of errors continues to play in utility appraisals (despite its unintelligibility in the context of utilities); and (2) The persisting belief—for which there is no theoretical basis—that any plausible assignment of utilities will inevitably result in a very high standard of proof.","PeriodicalId":129839,"journal":{"name":"International Commentary on Evidence","volume":"94 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115252922","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Litigating Sex Crimes in the United States: Has the Last Decade Made Any Difference?","authors":"Myrna S. Raeder","doi":"10.2202/1554-4567.1091","DOIUrl":"https://doi.org/10.2202/1554-4567.1091","url":null,"abstract":"This comprehensive article reviews the history of advocacy on behalf of adult and child female victims of rape and other sexual assaults, focusing on both long term and short term trends. The first section provides statistical information about victimizations, rape reporting and prosecutions over the last 15 years. The second section explores the variety of issues that arise in the context of rape shields, including the extent of admission of evidence of prostitution and promiscuity, and urges that judges be required to find preliminary facts by a clear and convincing evidence standard before admitting any evidence of the complainant's sexual life that the defense claims is not barred by a rape shield. In addition, a reverse balancing test should also be required prohibiting such evidence of a sexual nature unless its probative value substantially outweighs the danger of harm to the complainant or unfair prejudice to any party. The author argues that these restrictions do not violate the Confrontation Clause.The next major section discusses the admission of the defendant's prior acts to prove propensity and lustful disposition. The author does not support the general admission of propensity evidence, but favors a flexible approach to the admission of Rule 404(b), particularly in child abuse cases, which is currently the prevalent approach. To the extent that propensity evidence is generally permitted, such as under the Federal Rules and in California, the author would also subject its admission to a clear and convincing evidence standard. Other topics addressed include rape counselor privileges; fresh complaint; DNA database issues, Sexual Abuse Response Teams and the use of forensic nurses.The article also explores how the rights of crime victims affect trials of sex crimes, and urges that more attention be given to providing legal assistance to child victims of sexual assaults. The article concludes by looking at evidentiary issues in child abuse cases, such as competency, remote testimony, expert testimony, and discusses the child friendly courtroom in light of Crawford's ban on testimonial statements in the absence of a declarant who has been subjected to cross examination.","PeriodicalId":129839,"journal":{"name":"International Commentary on Evidence","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121606781","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Evidence during the Ten Years of ICE","authors":"C. Callen, S. Doran, J. Jackson","doi":"10.2202/1554-4567.1096","DOIUrl":"https://doi.org/10.2202/1554-4567.1096","url":null,"abstract":"In this introduction to the ten year anniversary issue of ICE, the founding editors reflect briefly upon the establishment of ICE and how it has developed in the previous ten years. The theme of the issue, 'Evidence during the Ten Years of ICE,' is then introduced and the six essays in the issue are summarised.","PeriodicalId":129839,"journal":{"name":"International Commentary on Evidence","volume":"04 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130338152","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Eyewitness Identification Evidence: Procedural Developments and the Ends of Adjudicative Accuracy","authors":"Andrew Roberts","doi":"10.2202/1554-4567.1087","DOIUrl":"https://doi.org/10.2202/1554-4567.1087","url":null,"abstract":"This article provides critical analysis of some of the more notable procedural developments relating to eyewitness identification evidence over the past decade.","PeriodicalId":129839,"journal":{"name":"International Commentary on Evidence","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131648173","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Paradoxical Validity Determinations: A Decade of Antithetical Approaches to Admissibility of Expert Evidence","authors":"Erica Beecher-Monas","doi":"10.2202/1554-4567.1081","DOIUrl":"https://doi.org/10.2202/1554-4567.1081","url":null,"abstract":"Over the past decade, courts throughout the common law system have taken an increasingly antithetical approach to expert testimony. In civil cases, and in criminal DNA identification cases, courts appear to be actively engaged in scrutinizing the scientific testimony that comes before them. Defense attorneys appear to have little difficulty in challenging questionable scientific testimony. Research scientists are brought into the discourse as experts for the parties or the court. Courts are articulating the bases for their admissibility decisions, and these decisions are being reviewed on appeal. In the criminal cases, however, where criminal identification procedures other than DNA are concerned, each of the participants in the legal process has failed. Prosecutors repeatedly present experts whose testimony they have reason to know is (at best) dubious. Defense attorneys fail to bring challenges to the scientific validity of even patently flawed expert testimony. Courts, when challenges do arise, fail to engage in serious gatekeeping. And reviewing courts refuse to find shoddy gatekeeping to be an abuse of discretion. The consequence of this antithetical approach to admissibility, is that the rational search for truth, in which the adversary system is supposedly engaged, is taken seriously only in civil cases. While the civil courts are busy minutely scrutinizing scientific studies proffered as the basis for expert testimony, the criminal courts are admitting into evidence testimony (again, with the exception of DNA) for which those studies have never been done. This antithetical approach imposes unacceptable costs on the entire justice system.","PeriodicalId":129839,"journal":{"name":"International Commentary on Evidence","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132134516","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Organised Crime, Anonymous Witnesses and Fair Trials in Ireland: Responding to R v Davis","authors":"L. Campbell","doi":"10.2202/1554-4567.1086","DOIUrl":"https://doi.org/10.2202/1554-4567.1086","url":null,"abstract":"This article assesses the absence of witness anonymity in Ireland, and explores the likelihood of its future adoption, using the recent decision of the House of Lords in R v Davis and the Criminal Evidence (Witness Anonymity) Act 2008 as a catalyst for this discussion. It examines the potential threat posed by anonymous evidence to the constitutional right to a fair trial in Ireland, and it analyses current incursions on the right to cross-examine witnesses, which have received judicial imprimatur.However, despite the lack of anonymous witness in the courts and in political and legal debate, three developments suggest that Irish policy makers may not remain averse to such a tactic: the erosion of the right to cross-examination in emergency legislation; the use of anonymous witnesses in civil proceedings; and the desire to incorporate third party interests and rights in criminal justice matters.This article concludes by considering ostensibly less problematic means of protecting intimidated witnesses and their evidence, as alternatives to anonymous evidence.","PeriodicalId":129839,"journal":{"name":"International Commentary on Evidence","volume":"CE-26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126543378","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Decade of Change in Sixth Amendment Confrontation Doctrine","authors":"R. Kirst","doi":"10.2202/1554-4567.1082","DOIUrl":"https://doi.org/10.2202/1554-4567.1082","url":null,"abstract":"The United States Supreme Court brought new prominence to Sixth Amendment confrontation doctrine in 2004 when it announced its testimonial interpretation in Crawford v. Washington. This essay describes how confrontation doctrine was changed in the last decade by Crawford and the Court's subsequent decisions in Davis v. Washington and Giles v. California. It examines what the disagreements among the five opinions in Giles suggest about whether the Court will continue to rely so strongly on historical hearsay doctrine to interpret the Confrontation Clause. It discusses other confrontation issues the Supreme Court will face in future cases.","PeriodicalId":129839,"journal":{"name":"International Commentary on Evidence","volume":"92 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124641633","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Muddle of Silence","authors":"P. Schwikkard","doi":"10.2202/1554-4567.1088","DOIUrl":"https://doi.org/10.2202/1554-4567.1088","url":null,"abstract":"This article looks at the status and application of the right to remain silent in a number of common law jurisdictions. It explores the multiple rationales said to underlie the right to remain silent and concludes that there is only one that withstands scrutiny, namely, that the right to remain silent assists in preventing the abuse of public power. As such the right is instrumental in nature and infringements of the right need to be assessed against this rationale. Accordingly, if appropriate safeguards are in place minor encroachments such as the drawing of adverse inferences from silence should not create undue concern. However, given both the normative and instrumental value of the right to remain silent, it would be foolish to undermine the right in the absence of clear utilitarian gains for doing so and infringements should never be viewed as justified in the absence of appropriate safeguards against the abuse of public power.","PeriodicalId":129839,"journal":{"name":"International Commentary on Evidence","volume":"142 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116611069","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}