Pub Date : 2020-06-15DOI: 10.1177/1365712720930797
Zhuhao Wang
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.
{"title":"The fate of evidence law: Two paths of development","authors":"Zhuhao Wang","doi":"10.1177/1365712720930797","DOIUrl":"https://doi.org/10.1177/1365712720930797","url":null,"abstract":"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.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"24 1","pages":"329 - 348"},"PeriodicalIF":1.5,"publicationDate":"2020-06-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712720930797","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48128126","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-10DOI: 10.1177/1365712720927622
T. Ward
Through a series of judicial decisions and Practice Directions, the English courts have developed a rule that expert evidence must have ‘a sufficiently reliable scientific basis to be admitted’. There is a dearth of case-law as to what degree of reliability is ‘sufficient’. This article argues that the test should be interpreted as analogous to one developed in the law of hearsay: expert evidence (scientific or otherwise) must be ‘potentially safely reliable’ in the context of the evidence as a whole. The implications of this test will vary according to the relationship between the expert evidence and the other evidence in the case. The article identifies three main patterns into which this relationship falls. Whether the jury relies upon the evidence will depend upon what they regard as the best explanation of the evidence and how far they trust the expert. Whether their reliance is safe (as a basis for conviction) depends on whether they could rationally rule out explanations consistent with innocence, and whether the degree to which they take the expert’s evidence on trust is consistent with prosecution’s burden of proving the essential elements of its case, including the reliability of any scientific techniques on which it relies.
{"title":"Explaining and trusting expert evidence: What is a ‘sufficiently reliable scientific basis’?","authors":"T. Ward","doi":"10.1177/1365712720927622","DOIUrl":"https://doi.org/10.1177/1365712720927622","url":null,"abstract":"Through a series of judicial decisions and Practice Directions, the English courts have developed a rule that expert evidence must have ‘a sufficiently reliable scientific basis to be admitted’. There is a dearth of case-law as to what degree of reliability is ‘sufficient’. This article argues that the test should be interpreted as analogous to one developed in the law of hearsay: expert evidence (scientific or otherwise) must be ‘potentially safely reliable’ in the context of the evidence as a whole. The implications of this test will vary according to the relationship between the expert evidence and the other evidence in the case. The article identifies three main patterns into which this relationship falls. Whether the jury relies upon the evidence will depend upon what they regard as the best explanation of the evidence and how far they trust the expert. Whether their reliance is safe (as a basis for conviction) depends on whether they could rationally rule out explanations consistent with innocence, and whether the degree to which they take the expert’s evidence on trust is consistent with prosecution’s burden of proving the essential elements of its case, including the reliability of any scientific techniques on which it relies.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"24 1","pages":"233 - 254"},"PeriodicalIF":1.5,"publicationDate":"2020-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712720927622","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43915810","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-04DOI: 10.1177/1365712720930600
Marie-Helen Maras, A. S. Wandt
The data generated by Internet of Things devices is increasingly being introduced as evidence in court. The first US case involving the introduction of medical data from a pacemaker as evidence of arson and insurance fraud was State of Ohio v Compton. The purpose of this article is three-fold. First, the article explores this case, looking in particular at the facts of the case and the charges brought against the defendant. Second, the article critically examines the decision of the trial court judge during the suppression hearing for the evidence from the pacemaker. In this hearing, the judge ruled that the search and seizure did not violate the Fourth Amendment rights of the defendant and allowed the pacemaker data to be entered as evidence against him. Third, the article considers the implications of this decision for future cases involving Internet-of-Things (IoT) medical data. Ultimately, the constitutional protections of IoT medical device data and the circumstances under which the data from these devices will be collected and used as evidence, are issues that currently demand the attention of legal and digital forensics professionals and warrant public debate.
{"title":"State of Ohio v. Ross Compton: Internet-enabled medical device data introduced as evidence of arson and insurance fraud","authors":"Marie-Helen Maras, A. S. Wandt","doi":"10.1177/1365712720930600","DOIUrl":"https://doi.org/10.1177/1365712720930600","url":null,"abstract":"The data generated by Internet of Things devices is increasingly being introduced as evidence in court. The first US case involving the introduction of medical data from a pacemaker as evidence of arson and insurance fraud was State of Ohio v Compton. The purpose of this article is three-fold. First, the article explores this case, looking in particular at the facts of the case and the charges brought against the defendant. Second, the article critically examines the decision of the trial court judge during the suppression hearing for the evidence from the pacemaker. In this hearing, the judge ruled that the search and seizure did not violate the Fourth Amendment rights of the defendant and allowed the pacemaker data to be entered as evidence against him. Third, the article considers the implications of this decision for future cases involving Internet-of-Things (IoT) medical data. Ultimately, the constitutional protections of IoT medical device data and the circumstances under which the data from these devices will be collected and used as evidence, are issues that currently demand the attention of legal and digital forensics professionals and warrant public debate.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"24 1","pages":"321 - 328"},"PeriodicalIF":1.5,"publicationDate":"2020-06-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712720930600","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47208563","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-02DOI: 10.1177/1365712720928668
Solveig Laugerud
In this article, I use the concept of chronotope, which means time-space, to analyse knowledge production at the intersection of science, technology and law. I do a comparative study of written legal decisions regarding criminal injuries compensation in rape cases from two different legal institutions in Norway—namely, the Compensation Authority and the criminal courts. In these written decisions, the two institutions state the reasons and justifications for their decisions by invoking, relying on and dismissing various kinds of knowledge, such as forensic, medical and psychological knowledge. The aim of this comparison is to investigate how these reasons and justifications constitute evidence and credibility. I argue that the two institutions attach themselves to different kinds of expert knowledge because they are chronotopically different and consequently constitute evidence and credibility in different ways.
{"title":"Embodied truths and authentic selves: The constitution of evidence and credibility in rape cases","authors":"Solveig Laugerud","doi":"10.1177/1365712720928668","DOIUrl":"https://doi.org/10.1177/1365712720928668","url":null,"abstract":"In this article, I use the concept of chronotope, which means time-space, to analyse knowledge production at the intersection of science, technology and law. I do a comparative study of written legal decisions regarding criminal injuries compensation in rape cases from two different legal institutions in Norway—namely, the Compensation Authority and the criminal courts. In these written decisions, the two institutions state the reasons and justifications for their decisions by invoking, relying on and dismissing various kinds of knowledge, such as forensic, medical and psychological knowledge. The aim of this comparison is to investigate how these reasons and justifications constitute evidence and credibility. I argue that the two institutions attach themselves to different kinds of expert knowledge because they are chronotopically different and consequently constitute evidence and credibility in different ways.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"24 1","pages":"307 - 320"},"PeriodicalIF":1.5,"publicationDate":"2020-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712720928668","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47481925","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-08DOI: 10.1177/1365712720923157
F. Leverick
This paper presents overwhelming evidence that prejudicial and false beliefs held by jurors about rape affect their evaluation of the evidence and their decision making in rape cases. The paper draws together for the first time the available evidence from both quantitative and qualitative studies (most of which are not found in law journals, but rather in scientific outlets, most commonly those focusing on experimental psychology). The quantitative research demonstrates that mock jurors’ scores on so-called ‘rape myth scales’ are significant predictors of their judgments about responsibility, blame and (most importantly) verdict. The qualitative research indicates that jurors frequently express problematic views about how ‘real’ rape victims would behave and what ‘real’ rape looks like during mock jury deliberations and that even those who score relatively low on abstract rape myth scales can express prejudicial beliefs when deliberating in a particular case. The studies vary in terms of their realism, but it is important to note that some of the studies reported here were highly realistic trial reconstructions, involving representative samples of jurors drawn from the community, live trial reconstructions, evidence-in-chief and cross-examination, accurate legal directions and deliberation in groups. The review concludes by examining the evidence on whether juror education—whether in the form of judicial directions or expert evidence—might be effective in addressing problematic attitudes.
{"title":"What do we know about rape myths and juror decision making?","authors":"F. Leverick","doi":"10.1177/1365712720923157","DOIUrl":"https://doi.org/10.1177/1365712720923157","url":null,"abstract":"This paper presents overwhelming evidence that prejudicial and false beliefs held by jurors about rape affect their evaluation of the evidence and their decision making in rape cases. The paper draws together for the first time the available evidence from both quantitative and qualitative studies (most of which are not found in law journals, but rather in scientific outlets, most commonly those focusing on experimental psychology). The quantitative research demonstrates that mock jurors’ scores on so-called ‘rape myth scales’ are significant predictors of their judgments about responsibility, blame and (most importantly) verdict. The qualitative research indicates that jurors frequently express problematic views about how ‘real’ rape victims would behave and what ‘real’ rape looks like during mock jury deliberations and that even those who score relatively low on abstract rape myth scales can express prejudicial beliefs when deliberating in a particular case. The studies vary in terms of their realism, but it is important to note that some of the studies reported here were highly realistic trial reconstructions, involving representative samples of jurors drawn from the community, live trial reconstructions, evidence-in-chief and cross-examination, accurate legal directions and deliberation in groups. The review concludes by examining the evidence on whether juror education—whether in the form of judicial directions or expert evidence—might be effective in addressing problematic attitudes.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"24 1","pages":"255 - 279"},"PeriodicalIF":1.5,"publicationDate":"2020-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712720923157","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46047949","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-06DOI: 10.1177/1365712720922753
A. Cusack
For over a quarter of century Ireland’s statutory special measures framework, as originally enacted by the Criminal Evidence Act 1992, remained largely unchanged, falling beyond the reformative gaze of successive Irish governments. This period of political inertia, however, came to an abrupt end in 2017 when Irish policymakers, motivated by developments at a European Union level, introduced two landmark legislative instruments which promised to reimagine the availability and diversity of Ireland’s store of statutory testimonial accommodations, namely the Criminal Law (Sexual Offences) Act 2017 and the Criminal Justice (Victims of Crime) Act 2017. By interrogating these newly-commenced instruments in light of the experience of crime victims with intellectual disabilities, this paper surveys the current procedural landscape governing the treatment of vulnerable crime victims in Ireland and is intended to go some way towards exposing the embedded evidential barriers which continue to prejudice efforts aimed at securing their best evidence in court.
{"title":"Addressing vulnerability in Ireland’s criminal justice system: A survey of recent statutory developments","authors":"A. Cusack","doi":"10.1177/1365712720922753","DOIUrl":"https://doi.org/10.1177/1365712720922753","url":null,"abstract":"For over a quarter of century Ireland’s statutory special measures framework, as originally enacted by the Criminal Evidence Act 1992, remained largely unchanged, falling beyond the reformative gaze of successive Irish governments. This period of political inertia, however, came to an abrupt end in 2017 when Irish policymakers, motivated by developments at a European Union level, introduced two landmark legislative instruments which promised to reimagine the availability and diversity of Ireland’s store of statutory testimonial accommodations, namely the Criminal Law (Sexual Offences) Act 2017 and the Criminal Justice (Victims of Crime) Act 2017. By interrogating these newly-commenced instruments in light of the experience of crime victims with intellectual disabilities, this paper surveys the current procedural landscape governing the treatment of vulnerable crime victims in Ireland and is intended to go some way towards exposing the embedded evidential barriers which continue to prejudice efforts aimed at securing their best evidence in court.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"24 1","pages":"280 - 306"},"PeriodicalIF":1.5,"publicationDate":"2020-05-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712720922753","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41677781","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-04-01DOI: 10.1177/1365712719894007
Leandro De Brasi
In this paper I argue that, given that one epistemic goal of judicial decision-making is to reach reasonably plausible decisions, the divisions of epistemic and cognitive labour help processes of judicial decision-making to better promote that goal under certain conditions. Those conditions concern the possession of a certain intellectual character (in particular, a humble and autonomous character) by the subjects exploiting those divisions of labour and the existence of a certain diversity among those subjects. So, in order to better promote reasonably plausible decisions, we should take measures that make it likely that those divisions of labour are exploited under those conditions. Given this, some prescriptive recommendations are made.
{"title":"Judicial decisions, intellectual virtues and the division of labour","authors":"Leandro De Brasi","doi":"10.1177/1365712719894007","DOIUrl":"https://doi.org/10.1177/1365712719894007","url":null,"abstract":"In this paper I argue that, given that one epistemic goal of judicial decision-making is to reach reasonably plausible decisions, the divisions of epistemic and cognitive labour help processes of judicial decision-making to better promote that goal under certain conditions. Those conditions concern the possession of a certain intellectual character (in particular, a humble and autonomous character) by the subjects exploiting those divisions of labour and the existence of a certain diversity among those subjects. So, in order to better promote reasonably plausible decisions, we should take measures that make it likely that those divisions of labour are exploited under those conditions. Given this, some prescriptive recommendations are made.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"24 1","pages":"142 - 161"},"PeriodicalIF":1.5,"publicationDate":"2020-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712719894007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45168832","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-04-01DOI: 10.1177/1365712719887409
E. Schofield-Georgeson
There is a scant existing literature on the relationship between the right to silence and its effect on convictions in Australia and comparable jurisdictions. Existing research has downplayed its significance in the face of various ‘law and order’ interventions seeking to limit its operation. This study is one of the largest of its kind, surveying over 1,000 charges to empirically assess the frequency of use and the effects of silence rights (the right to silence, privilege against self-incrimination and burden of proof) on conviction, in relation to a particular set of charges laid against a specific group of marginalised defendants in the Local Court summary jurisdiction of NSW. Adding to the existing literature, this study shows empirically how silence rights operate within an Australian summary jurisdiction for a specific group of criminal defendants who are significantly socially marginalised. In the process, it demonstrates that the use of silence rights is significant for this group, mostly in non-regulatory criminal matters. In this respect, silence rights can be understood to correlate with rates of conviction, mitigation of criminal sentencing and the practice of charge-bargaining.
{"title":"Silence Matters: A survey of the right to silence in the summary jurisdiction of New South Wales","authors":"E. Schofield-Georgeson","doi":"10.1177/1365712719887409","DOIUrl":"https://doi.org/10.1177/1365712719887409","url":null,"abstract":"There is a scant existing literature on the relationship between the right to silence and its effect on convictions in Australia and comparable jurisdictions. Existing research has downplayed its significance in the face of various ‘law and order’ interventions seeking to limit its operation. This study is one of the largest of its kind, surveying over 1,000 charges to empirically assess the frequency of use and the effects of silence rights (the right to silence, privilege against self-incrimination and burden of proof) on conviction, in relation to a particular set of charges laid against a specific group of marginalised defendants in the Local Court summary jurisdiction of NSW. Adding to the existing literature, this study shows empirically how silence rights operate within an Australian summary jurisdiction for a specific group of criminal defendants who are significantly socially marginalised. In the process, it demonstrates that the use of silence rights is significant for this group, mostly in non-regulatory criminal matters. In this respect, silence rights can be understood to correlate with rates of conviction, mitigation of criminal sentencing and the practice of charge-bargaining.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"24 1","pages":"121 - 141"},"PeriodicalIF":1.5,"publicationDate":"2020-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712719887409","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48100804","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-04-01DOI: 10.1177/1365712719877893
Kelly Howard, C. McCann, Margaret Dudley
Communication assistance is a form of specialist support for witnesses and defendants in justice settings who have been identified as having communication difficulties. This relatively new role in New Zealand is modelled on the role of the intermediary in England and Wales. This research provides a qualitative analysis of professionals’ perspectives (n = 28 participants) on the challenges of communication assistance for young people facing criminal charges in the New Zealand youth justice system. The findings of this study do not question whether or not communication assistance should exist, but rather how it might best function in practice. The overall implications are that more education and guidance for youth justice professionals is needed.
{"title":"‘I was flying blind a wee bit’: Professionals’ perspectives on challenges facing communication assistance in the New Zealand youth justice system","authors":"Kelly Howard, C. McCann, Margaret Dudley","doi":"10.1177/1365712719877893","DOIUrl":"https://doi.org/10.1177/1365712719877893","url":null,"abstract":"Communication assistance is a form of specialist support for witnesses and defendants in justice settings who have been identified as having communication difficulties. This relatively new role in New Zealand is modelled on the role of the intermediary in England and Wales. This research provides a qualitative analysis of professionals’ perspectives (n = 28 participants) on the challenges of communication assistance for young people facing criminal charges in the New Zealand youth justice system. The findings of this study do not question whether or not communication assistance should exist, but rather how it might best function in practice. The overall implications are that more education and guidance for youth justice professionals is needed.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"24 1","pages":"104 - 120"},"PeriodicalIF":1.5,"publicationDate":"2020-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712719877893","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41804239","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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