Pub Date : 2020-04-01DOI: 10.1177/1365712720913333
Christian Dahlman
The problem of ‘naked statistical evidence’ is one of the most debated issues in evidence theory. Most evidence scholars agree that it is deeply problematic to base a verdict on naked statistical evidence, but they disagree on why it is problematic, and point to different characteristics of naked statistical evidence as the root of the problem. In this article, the author discusses the merits of different solutions to the problem of naked statistical evidence, and argues for the incentive-solution: verdicts based on naked statistical evidence are unacceptable as they do not contribute in a positive way to the incentive structure for lawful behaviour.
{"title":"Naked statistical evidence and incentives for lawful conduct","authors":"Christian Dahlman","doi":"10.1177/1365712720913333","DOIUrl":"https://doi.org/10.1177/1365712720913333","url":null,"abstract":"The problem of ‘naked statistical evidence’ is one of the most debated issues in evidence theory. Most evidence scholars agree that it is deeply problematic to base a verdict on naked statistical evidence, but they disagree on why it is problematic, and point to different characteristics of naked statistical evidence as the root of the problem. In this article, the author discusses the merits of different solutions to the problem of naked statistical evidence, and argues for the incentive-solution: verdicts based on naked statistical evidence are unacceptable as they do not contribute in a positive way to the incentive structure for lawful behaviour.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"24 1","pages":"162 - 179"},"PeriodicalIF":1.5,"publicationDate":"2020-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712720913333","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46022412","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: 10.1177/1365712720913336
Elaine Freer
Much academic literature explores the reliability of expert evidence in criminal proceedings in England and Wales. However, almost no attention has been paid to misconduct by experts giving evidence in criminal cases. Whilst rare, its serious impact on the administration of justice and public trust in it means that this area requires analysis. This article explores possible responses to expert witness misconduct occurring in the context of criminal proceedings in England and Wales, noting particularly the differences in responses available, depending firstly upon whether the expert is a registered professional, and secondly whether the expert has stepped outside of their expertise; did not have relevant expertise at all, or was dishonest. Professional disciplinary procedures focus on ‘fitness to practise’, and it is argued that this is sufficient where a registered professional has overstepped their expertise, but has not displayed mala fides. On the contrary, where someone gives evidence purporting to have expertise that they do not, or lies about their conduct as an expert in the case, criminal sanctions are available, appropriate, and should be used. These include contempt of court; perverting the course of justice; fraud by false representation, and perjury.
{"title":"Experts and pretenders: Examining possible responses to misconduct by experts in criminal trials in England and Wales","authors":"Elaine Freer","doi":"10.1177/1365712720913336","DOIUrl":"https://doi.org/10.1177/1365712720913336","url":null,"abstract":"Much academic literature explores the reliability of expert evidence in criminal proceedings in England and Wales. However, almost no attention has been paid to misconduct by experts giving evidence in criminal cases. Whilst rare, its serious impact on the administration of justice and public trust in it means that this area requires analysis. This article explores possible responses to expert witness misconduct occurring in the context of criminal proceedings in England and Wales, noting particularly the differences in responses available, depending firstly upon whether the expert is a registered professional, and secondly whether the expert has stepped outside of their expertise; did not have relevant expertise at all, or was dishonest. Professional disciplinary procedures focus on ‘fitness to practise’, and it is argued that this is sufficient where a registered professional has overstepped their expertise, but has not displayed mala fides. On the contrary, where someone gives evidence purporting to have expertise that they do not, or lies about their conduct as an expert in the case, criminal sanctions are available, appropriate, and should be used. These include contempt of court; perverting the course of justice; fraud by false representation, and perjury.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"24 1","pages":"180 - 207"},"PeriodicalIF":1.5,"publicationDate":"2020-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712720913336","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48917381","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 : 2020-03-30DOI: 10.1177/1365712720914649
D. Vecchi
Proof beyond a reasonable doubt (BARD) is one of the most fundamental requirements of American criminal law and other legal systems. Professor Larry Laudan has criticised this requirement for several reasons. His main contention is that the BARD formula converts evidential support into subjective confidence, and is therefore not a genuine standard of proof. At the same time, Laudan holds that BARD produces a large number of guilty defendant’s acquittals due to its excessive demand for evidence. The aim of this article is to show that Laudan’s argument regarding the number of guilty defendant’s acquittals is unacceptable. Perhaps the real ratio of false negatives to false positives were what Laudan holds them to be, yet he fails to provide any suitable argument to support his claim, or to attribute the alleged frequency of errors to a particular standard of proof—BARD or otherwise.
{"title":"Laudan’s error: Reasonable doubt and acquittals of guilty people","authors":"D. Vecchi","doi":"10.1177/1365712720914649","DOIUrl":"https://doi.org/10.1177/1365712720914649","url":null,"abstract":"Proof beyond a reasonable doubt (BARD) is one of the most fundamental requirements of American criminal law and other legal systems. Professor Larry Laudan has criticised this requirement for several reasons. His main contention is that the BARD formula converts evidential support into subjective confidence, and is therefore not a genuine standard of proof. At the same time, Laudan holds that BARD produces a large number of guilty defendant’s acquittals due to its excessive demand for evidence. The aim of this article is to show that Laudan’s argument regarding the number of guilty defendant’s acquittals is unacceptable. Perhaps the real ratio of false negatives to false positives were what Laudan holds them to be, yet he fails to provide any suitable argument to support his claim, or to attribute the alleged frequency of errors to a particular standard of proof—BARD or otherwise.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"24 1","pages":"211 - 232"},"PeriodicalIF":1.5,"publicationDate":"2020-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712720914649","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47518691","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 : 2020-01-01DOI: 10.1177/1365712719867972
E. Johnston
This article contends that piecemeal changes to the adversarial process since the dawn of the new millennium have transformed the CJS. The advent of (near) compulsory disclosure means the defendant has to reveal many elements of his defence. This dilutes the adversarial battle and leaves a process which is managerialist in nature. The Early Guilty Plea system is a mechanism to increase the efficiency by stemming the amount of cases reaching the trial stage. This has an impact on the defence lawyer’s role and renders him conflicted between advancing the best interest of the client against other pre-trial obligations. This small empirical study suggests that classic adversarial lawyers are seen as a relic of a bygone era. The modern criminal justice system prioritises speed and efficiency. If a case reaches court, the defendant is treated as an ‘informational resource’ of the court reminiscent of his position in the 17th century.
{"title":"The adversarial defence lawyer: Myths, disclosure and efficiency—A contemporary analysis of the role in the era of the Criminal Procedure Rules","authors":"E. Johnston","doi":"10.1177/1365712719867972","DOIUrl":"https://doi.org/10.1177/1365712719867972","url":null,"abstract":"This article contends that piecemeal changes to the adversarial process since the dawn of the new millennium have transformed the CJS. The advent of (near) compulsory disclosure means the defendant has to reveal many elements of his defence. This dilutes the adversarial battle and leaves a process which is managerialist in nature. The Early Guilty Plea system is a mechanism to increase the efficiency by stemming the amount of cases reaching the trial stage. This has an impact on the defence lawyer’s role and renders him conflicted between advancing the best interest of the client against other pre-trial obligations. This small empirical study suggests that classic adversarial lawyers are seen as a relic of a bygone era. The modern criminal justice system prioritises speed and efficiency. If a case reaches court, the defendant is treated as an ‘informational resource’ of the court reminiscent of his position in the 17th century.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"24 1","pages":"35 - 58"},"PeriodicalIF":1.5,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712719867972","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44248327","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 : 2020-01-01DOI: 10.1177/1365712719851133
Vincent Denault, Norah E. Dunbar, P. Plusquellec
In their paper ‘Evaluating credibility of witnesses—Are we instructing jurors on invalid factors?’, Vrij and Turgeon (2018) argue that jurors should be advised not to consider demeanour when trying to evaluate if witnesses are honest or dishonest because of ‘overwhelming scientific evidence’. However, in this response, we contend that substantial empirical scientific studies on nonverbal communication alongside the limitations of deception detection research, as cited by Vrij and Turgeon (2018), undermine their overall argument. While jurors should be warned about erroneous beliefs and dubious concepts on human communication, jurors should also be advised to consider demeanour as a way of enriching their overall understanding of witnesses and their verbal testimony.
{"title":"The detection of deception during trials: Ignoring the nonverbal communication of witnesses is not the solution—A response to Vrij and Turgeon (2018)","authors":"Vincent Denault, Norah E. Dunbar, P. Plusquellec","doi":"10.1177/1365712719851133","DOIUrl":"https://doi.org/10.1177/1365712719851133","url":null,"abstract":"In their paper ‘Evaluating credibility of witnesses—Are we instructing jurors on invalid factors?’, Vrij and Turgeon (2018) argue that jurors should be advised not to consider demeanour when trying to evaluate if witnesses are honest or dishonest because of ‘overwhelming scientific evidence’. However, in this response, we contend that substantial empirical scientific studies on nonverbal communication alongside the limitations of deception detection research, as cited by Vrij and Turgeon (2018), undermine their overall argument. While jurors should be warned about erroneous beliefs and dubious concepts on human communication, jurors should also be advised to consider demeanour as a way of enriching their overall understanding of witnesses and their verbal testimony.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"24 1","pages":"11 - 3"},"PeriodicalIF":1.5,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712719851133","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46396234","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 : 2020-01-01DOI: 10.1177/1365712719864608
R. Urbaniak, Pavel Janda
The aim is to develop a sensible probabilistic model of legal corroboration in response to an attack on the probabilistic approach to legal reasoning due to Cohen. One of Cohen’s arguments is that there is no probabilistic measure of evidential support which satisfactorily captures the situation in which independent witnesses testify to the truth of the same proposition (or independent pieces of evidence converge on a certain claim)—the phenomenon called corroboration (or convergence). We investigate the properties of several probabilistic measures discussed by Cohen, discuss Cohen’s criticism of those measures, and develop our own. Finally, we offer a probabilistic measure of corroboration that evades the critical points raised against the ones discussed so far.
{"title":"Probabilistic models of legal corroboration","authors":"R. Urbaniak, Pavel Janda","doi":"10.1177/1365712719864608","DOIUrl":"https://doi.org/10.1177/1365712719864608","url":null,"abstract":"The aim is to develop a sensible probabilistic model of legal corroboration in response to an attack on the probabilistic approach to legal reasoning due to Cohen. One of Cohen’s arguments is that there is no probabilistic measure of evidential support which satisfactorily captures the situation in which independent witnesses testify to the truth of the same proposition (or independent pieces of evidence converge on a certain claim)—the phenomenon called corroboration (or convergence). We investigate the properties of several probabilistic measures discussed by Cohen, discuss Cohen’s criticism of those measures, and develop our own. Finally, we offer a probabilistic measure of corroboration that evades the critical points raised against the ones discussed so far.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"24 1","pages":"12 - 34"},"PeriodicalIF":1.5,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712719864608","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42149272","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 : 2020-01-01DOI: 10.1177/1365712719893190
M. Plaxton
Rachel Ormston, Professor James Chalmers, Professor Fiona Leverick, Professor Vanessa Munro, Lorraine Murray, Scottish Jury Research: Findings From A Large-Scale Mock Jury Study (Scottish Government, October 2019), https://www.gov.scot/publications/scottish-jury-research-fingings-largemock-jury-study-2/ This important study was commissioned by the Scottish government to better appreciate (a) how “the unique features of the Scottish jury system [affect] jury reasoning and jury decision making”; and (b) how jurors make sense of the “not proven” verdict’, and choose between that verdict as opposed to others. This is the largest mock jury study ever conducted in the United Kingdom, as may well be the most realistic. The key “overarching” finding is that the way in which the jury system is “constructed” makes an important difference to jury verdicts.
Rachel Ormston, James Chalmers教授，Fiona Leverick教授，Vanessa Munro教授，Lorraine Murray，苏格兰陪审团研究:大规模模拟陪审团研究的结果(苏格兰政府，2019年10月)，https://www.gov.scot/publications/scottish-jury-research-fingings-largemock-jury-study-2/这项重要的研究由苏格兰政府委托，以更好地理解(A)“苏格兰陪审团制度的独特性如何影响陪审团推理和陪审团决策”;(b)陪审员如何理解“未经证实的”裁决，并在该裁决和其他裁决之间做出选择。这是英国有史以来规模最大的模拟陪审团研究，也可能是最现实的。关键的“总体”发现是，陪审团制度的“构建”方式对陪审团的裁决有重要影响。
{"title":"Noticeboard","authors":"M. Plaxton","doi":"10.1177/1365712719893190","DOIUrl":"https://doi.org/10.1177/1365712719893190","url":null,"abstract":"Rachel Ormston, Professor James Chalmers, Professor Fiona Leverick, Professor Vanessa Munro, Lorraine Murray, Scottish Jury Research: Findings From A Large-Scale Mock Jury Study (Scottish Government, October 2019), https://www.gov.scot/publications/scottish-jury-research-fingings-largemock-jury-study-2/ This important study was commissioned by the Scottish government to better appreciate (a) how “the unique features of the Scottish jury system [affect] jury reasoning and jury decision making”; and (b) how jurors make sense of the “not proven” verdict’, and choose between that verdict as opposed to others. This is the largest mock jury study ever conducted in the United Kingdom, as may well be the most realistic. The key “overarching” finding is that the way in which the jury system is “constructed” makes an important difference to jury verdicts.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"24 1","pages":"100 - 100"},"PeriodicalIF":1.5,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712719893190","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43045066","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 : 2020-01-01DOI: 10.1177/1365712719875753
Ian Hunt, Justice Mostyn
We argue that the laws of probability promote coherent fact-finding and avoid potentially unjust logical contradictions. But we do not argue that a probabilistic Bayesian approach is sufficient or even necessary for good fact-finding. First, we explain the use of probability reasoning in Re D (A Child) [2014] EWHC 121 (Fam) and Re L (A Child) [2017] EWHC 3707 (Fam). Then we criticise the attack on this probabilistic reasoning found in Re A (Children) [2018] EWCA Civ 1718, which is the appeal decision on Re L. We conclude that the attack is unjustified and that the probability statements in the two cases were both valid and useful. We also use probabilistic reasoning to enlighten legal principles related to inherent probability, the Binary Method and the blue bus paradox.
我们认为，概率定律促进连贯的事实发现和避免潜在的不公正的逻辑矛盾。但我们并不认为概率贝叶斯方法是充分的，甚至是必要的，以良好的事实发现。首先，我们解释了Re D (A Child) [2014] EWHC 121 (Fam)和Re L (A Child) [2017] EWHC 3707 (Fam)中概率推理的使用。然后，我们批评了Re A (Children) [2018] EWCA Civ 1718中对这种概率推理的攻击，这是对Re l的上诉决定。我们得出结论，攻击是不合理的，两个案例中的概率陈述既有效又有用。我们也用概率推理来启发与固有概率、二元法和蓝巴士悖论相关的法律原则。
{"title":"Probability reasoning in judicial fact-finding","authors":"Ian Hunt, Justice Mostyn","doi":"10.1177/1365712719875753","DOIUrl":"https://doi.org/10.1177/1365712719875753","url":null,"abstract":"We argue that the laws of probability promote coherent fact-finding and avoid potentially unjust logical contradictions. But we do not argue that a probabilistic Bayesian approach is sufficient or even necessary for good fact-finding. First, we explain the use of probability reasoning in Re D (A Child) [2014] EWHC 121 (Fam) and Re L (A Child) [2017] EWHC 3707 (Fam). Then we criticise the attack on this probabilistic reasoning found in Re A (Children) [2018] EWCA Civ 1718, which is the appeal decision on Re L. We conclude that the attack is unjustified and that the probability statements in the two cases were both valid and useful. We also use probabilistic reasoning to enlighten legal principles related to inherent probability, the Binary Method and the blue bus paradox.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"24 1","pages":"75 - 94"},"PeriodicalIF":1.5,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712719875753","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47309890","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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