Pub Date : 2019-10-01DOI: 10.1177/1365712719874633
M. Plaxton
JUSTICE, Working Party Report: Prosecuting Sexual Offenses (10 June 2019), https://justice.org.uk/ new-justice-working-party-report-prosecuting-sexual-offences/ This Report makes several recommendations concerning, among other things, ways of improving witness evidence in trials of sexual offences. In particular, it recommends that video recorded interviews “should be carried out by properly skilled forensic interviewers”; and that, in some cases, video recorded interviews should be conducted in two stages (an initial exploratory interview, followed by a more focused interview designed to elicit information that will stand as evidence-in-chief). Furthermore, a range of recommendations are made for the improvement of forensic services.
{"title":"Noticeboard","authors":"M. Plaxton","doi":"10.1177/1365712719874633","DOIUrl":"https://doi.org/10.1177/1365712719874633","url":null,"abstract":"JUSTICE, Working Party Report: Prosecuting Sexual Offenses (10 June 2019), https://justice.org.uk/ new-justice-working-party-report-prosecuting-sexual-offences/ This Report makes several recommendations concerning, among other things, ways of improving witness evidence in trials of sexual offences. In particular, it recommends that video recorded interviews “should be carried out by properly skilled forensic interviewers”; and that, in some cases, video recorded interviews should be conducted in two stages (an initial exploratory interview, followed by a more focused interview designed to elicit information that will stand as evidence-in-chief). Furthermore, a range of recommendations are made for the improvement of forensic services.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"23 1","pages":"442 - 443"},"PeriodicalIF":1.5,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712719874633","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46970438","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 : 2019-10-01DOI: 10.1177/1365712719862296
M. Stockdale, R. Mitchell
Legal professional privilege entitles parties to legal proceedings to object to disclosing communications. The form of legal professional privilege that is now commonly known as ‘legal advice privilege’ attaches to communications between a client and its lawyers in connection with the provision of legal advice. The provision of legal advice increasingly involves the use of technology across a wide spectrum of activities with varying degrees of human interaction or supervision. Use of technology ranges from a lawyer conducting a keyword search of a legal database to legal advice given online by fully automated systems. With technology becoming more integrated into legal practice, an important issue that has not been explored is whether legal advice privilege attaches to communications between client and legal services provider regardless of the degree of human involvement and even if the ‘lawyer’ might constitute a fully automated advice algorithm. In essence, our central research question is: If a robot gives legal advice, is that advice privileged? This article makes an original and distinctive contribution to discourse in this area through offering novel perspectives on and solutions to a question which has not previously been investigated by legal academics.
{"title":"Legal advice privilege and artificial legal intelligence: Can robots give privileged legal advice?","authors":"M. Stockdale, R. Mitchell","doi":"10.1177/1365712719862296","DOIUrl":"https://doi.org/10.1177/1365712719862296","url":null,"abstract":"Legal professional privilege entitles parties to legal proceedings to object to disclosing communications. The form of legal professional privilege that is now commonly known as ‘legal advice privilege’ attaches to communications between a client and its lawyers in connection with the provision of legal advice. The provision of legal advice increasingly involves the use of technology across a wide spectrum of activities with varying degrees of human interaction or supervision. Use of technology ranges from a lawyer conducting a keyword search of a legal database to legal advice given online by fully automated systems. With technology becoming more integrated into legal practice, an important issue that has not been explored is whether legal advice privilege attaches to communications between client and legal services provider regardless of the degree of human involvement and even if the ‘lawyer’ might constitute a fully automated advice algorithm. In essence, our central research question is: If a robot gives legal advice, is that advice privileged? This article makes an original and distinctive contribution to discourse in this area through offering novel perspectives on and solutions to a question which has not previously been investigated by legal academics.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"23 1","pages":"422 - 439"},"PeriodicalIF":1.5,"publicationDate":"2019-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712719862296","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45457364","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 : 2019-09-26DOI: 10.1177/1365712719873008
Shiri Portnoy, Lorraine Hope, A. Vrij, K. Ask, S. Landström
During police interviews, innocent suspects may provide unconvincing alibis due to impaired memory processes or guilt-presumptive behaviour on behalf of the interviewer. Consequently, innocent suspects may be prosecuted and tried in court, where lay people who serve jury duty will assess their alibi’s credibility. To examine lay people’s beliefs and knowledge regarding suspect alibis, and specifically about such factors that may hamper innocent suspects’ ability to provide convincing alibis, we administered an eight-question questionnaire across the United Kingdom (n = 96), Israel (n = 124), and Sweden (n = 123). Participants did not tend to believe that innocent suspects’ alibis might inadvertently include incorrect details, but acknowledged that impaired memory processes may cause this. Additionally, most participants believed that a presumption of guilt can affect how interviewers interview suspects. The findings suggest that lay people who may serve jury duty hold some mistaken beliefs regarding alibi provision by suspects.
{"title":"Beliefs about suspect alibis: A survey of lay people in the United Kingdom, Israel, and Sweden","authors":"Shiri Portnoy, Lorraine Hope, A. Vrij, K. Ask, S. Landström","doi":"10.1177/1365712719873008","DOIUrl":"https://doi.org/10.1177/1365712719873008","url":null,"abstract":"During police interviews, innocent suspects may provide unconvincing alibis due to impaired memory processes or guilt-presumptive behaviour on behalf of the interviewer. Consequently, innocent suspects may be prosecuted and tried in court, where lay people who serve jury duty will assess their alibi’s credibility. To examine lay people’s beliefs and knowledge regarding suspect alibis, and specifically about such factors that may hamper innocent suspects’ ability to provide convincing alibis, we administered an eight-question questionnaire across the United Kingdom (n = 96), Israel (n = 124), and Sweden (n = 123). Participants did not tend to believe that innocent suspects’ alibis might inadvertently include incorrect details, but acknowledged that impaired memory processes may cause this. Additionally, most participants believed that a presumption of guilt can affect how interviewers interview suspects. The findings suggest that lay people who may serve jury duty hold some mistaken beliefs regarding alibi provision by suspects.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"24 1","pages":"59 - 74"},"PeriodicalIF":1.5,"publicationDate":"2019-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712719873008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46931645","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 : 2019-09-05DOI: 10.1177/1365712719874630
M. Plaxton
In the course of performing a laparoscopic hysterectomy on Lanette Mitchell, Dr Evan Shikora made an incision into Mitchell’s abdomen. He noticed that Mitchell’s colon “had been severely cut”, making it necessary to perform an emergency loop ileostomy. Mitchell’s bowel was repaired, but she needed to wear an external ileostomy pouch for a time. Mitchell sued Dr Shikora, alleging negligence. She argued that Dr Shikora’s conduct fell below the medical standard of care, inasmuch as he failed “to identify her colon before making an incision into her abdomen”. Importantly, though, she did not claim battery or lack of informed consent; i.e. she did not claim that she was unaware of the risks or complications associated with the medical procedure when she consented to it. At trial, the defendant adduced expert evidence about known risks and complications of laparoscopic hysterectomies; in particular, that “in making the initial incision, a physician often cannot see through the tissue”, making it impossible to know for certain whether he or she will perforate the colon even in the absence of surgical negligence. The risks of such perforation are therefore present even during a ”properly performed laparoscopic hysterectomy.” The jury found in favour of Dr Shikora. On appeal, a three-judge panel of the Pennsylvania Superior Court held that the expert evidence, adduced by the defendant, should have been excluded. That evidence, the Superior Court held, was irrelevant, misleading, and confusing:
{"title":"Case commentaries","authors":"M. Plaxton","doi":"10.1177/1365712719874630","DOIUrl":"https://doi.org/10.1177/1365712719874630","url":null,"abstract":"In the course of performing a laparoscopic hysterectomy on Lanette Mitchell, Dr Evan Shikora made an incision into Mitchell’s abdomen. He noticed that Mitchell’s colon “had been severely cut”, making it necessary to perform an emergency loop ileostomy. Mitchell’s bowel was repaired, but she needed to wear an external ileostomy pouch for a time. Mitchell sued Dr Shikora, alleging negligence. She argued that Dr Shikora’s conduct fell below the medical standard of care, inasmuch as he failed “to identify her colon before making an incision into her abdomen”. Importantly, though, she did not claim battery or lack of informed consent; i.e. she did not claim that she was unaware of the risks or complications associated with the medical procedure when she consented to it. At trial, the defendant adduced expert evidence about known risks and complications of laparoscopic hysterectomies; in particular, that “in making the initial incision, a physician often cannot see through the tissue”, making it impossible to know for certain whether he or she will perforate the colon even in the absence of surgical negligence. The risks of such perforation are therefore present even during a ”properly performed laparoscopic hysterectomy.” The jury found in favour of Dr Shikora. On appeal, a three-judge panel of the Pennsylvania Superior Court held that the expert evidence, adduced by the defendant, should have been excluded. That evidence, the Superior Court held, was irrelevant, misleading, and confusing:","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"23 1","pages":"440 - 441"},"PeriodicalIF":1.5,"publicationDate":"2019-09-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712719874630","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47880689","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 : 2019-06-11DOI: 10.1177/1365712719851136
William Cullerne Bown
The possibility of measuring the success of the criminal justice system in distinguishing the guilty from the innocent is often dismissed as impossible or at least impractical. Here I claim to demonstrate that such epistemic measurement would only be difficult. All measurement consists of two steps, the acquisition of observations and their processing through a computational framework. The law has lacked both, but I have recently put forward a computational framework and here I set out how the necessary observations can be obtained. This completes the conceptual foundations necessary for the development of jurisprudence as a social science, for policymaking in the law that is rooted in rational concern for epistemic outcomes, and for us to fulfil the modern, trustworthy and democratic promise that our forebears found in Blackstone’s ratio.
{"title":"Measuring justice","authors":"William Cullerne Bown","doi":"10.1177/1365712719851136","DOIUrl":"https://doi.org/10.1177/1365712719851136","url":null,"abstract":"The possibility of measuring the success of the criminal justice system in distinguishing the guilty from the innocent is often dismissed as impossible or at least impractical. Here I claim to demonstrate that such epistemic measurement would only be difficult. All measurement consists of two steps, the acquisition of observations and their processing through a computational framework. The law has lacked both, but I have recently put forward a computational framework and here I set out how the necessary observations can be obtained. This completes the conceptual foundations necessary for the development of jurisprudence as a social science, for policymaking in the law that is rooted in rational concern for epistemic outcomes, and for us to fulfil the modern, trustworthy and democratic promise that our forebears found in Blackstone’s ratio.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"23 1","pages":"399 - 421"},"PeriodicalIF":1.5,"publicationDate":"2019-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712719851136","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44216217","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 : 2019-06-03DOI: 10.1177/1365712719851134
J. Morrison, R. Forrester-Jones, J. Bradshaw, G. Murphy
Courts in England, Wales and Northern Ireland have identified children and adults with intellectual disabilities (ID) as vulnerable witnesses. The call from the English Court of Appeal is for advocates to adjust questioning during cross-examination according to individual needs. This review systematically examined previous empirical studies with the aim of delineating the particular communication needs of children and adults with ID during cross-examination. Studies utilising experimental methodology similar to examination/cross-examination processes, or which assessed the communication of actual cross-examinations in court were included. A range of communication challenges were highlighted, including: suggestibility to leading questions and negative feedback; acquiescence; accuracy; memory and understanding of court language. In addition, a number of influencing factors were identified, including: age; IQ level; question styles used. This review highlights the need for further research using cross-examination methodology and live practice, that take into consideration the impact on communication of the unique environment and situation of the cross-examination process.
{"title":"Communication and cross-examination in court for children and adults with intellectual disabilities: A systematic review","authors":"J. Morrison, R. Forrester-Jones, J. Bradshaw, G. Murphy","doi":"10.1177/1365712719851134","DOIUrl":"https://doi.org/10.1177/1365712719851134","url":null,"abstract":"Courts in England, Wales and Northern Ireland have identified children and adults with intellectual disabilities (ID) as vulnerable witnesses. The call from the English Court of Appeal is for advocates to adjust questioning during cross-examination according to individual needs. This review systematically examined previous empirical studies with the aim of delineating the particular communication needs of children and adults with ID during cross-examination. Studies utilising experimental methodology similar to examination/cross-examination processes, or which assessed the communication of actual cross-examinations in court were included. A range of communication challenges were highlighted, including: suggestibility to leading questions and negative feedback; acquiescence; accuracy; memory and understanding of court language. In addition, a number of influencing factors were identified, including: age; IQ level; question styles used. This review highlights the need for further research using cross-examination methodology and live practice, that take into consideration the impact on communication of the unique environment and situation of the cross-examination process.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"23 1","pages":"366 - 398"},"PeriodicalIF":1.5,"publicationDate":"2019-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712719851134","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42048171","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 : 2019-06-02DOI: 10.1177/1365712719851043
Ellika Sevelin
This paper deals with the distinction between law and fact. In the article ‘The myth of the law-fact distinction’ (Allen and Pardo, 2003a), Ronald Allen and Michael Pardo argue that there is no ontological, epistemological or analytical distinction between law and fact. Instead, they claim that the distinction ought to be understood pragmatically, by considering whether the judge or jury is in the best position to decide the question. The problem with this is that it does not add to the understanding. In a soon-forgotten passus they suggest that the distinction is between legal and non-legal facts, rather than between law and fact. In this paper I revise the article by Ron and Pardo and make an argument in favour of the distinction between legal and non-legal facts. The notion of ‘legal’ and ‘non-legal’ underlines the fact that the dichotomy is relevant specifically from a legal point of view. In the legal context different consequences apply to law and fact, the same is not true in a non-legal context.
本文论述了法律与事实之间的区别。Ronald Allen和Michael Pardo在《法律与事实区别的神话》（Allen and Pardo，2003a）一文中认为，法律与事实之间不存在本体论、认识论或分析上的区别。相反，他们声称，应该通过考虑法官或陪审团是否处于决定问题的最佳位置，务实地理解这种区别。这样做的问题在于，它没有增加理解。在一段很快被遗忘的passus中，他们认为法律和非法律事实之间的区别，而不是法律和事实之间的区分。在本文中，我修改了Ron和Pardo的文章，并提出了有利于区分法律事实和非法律事实的论点。“合法”和“非合法”的概念强调了这样一个事实，即从法律的角度来看，这种二分法是相关的。在法律背景下，不同的后果适用于法律和事实，而在非法律背景下则不然。
{"title":"What about the non-legal facts: Revising Allen and Pardo’s analytical distinction between law and fact","authors":"Ellika Sevelin","doi":"10.1177/1365712719851043","DOIUrl":"https://doi.org/10.1177/1365712719851043","url":null,"abstract":"This paper deals with the distinction between law and fact. In the article ‘The myth of the law-fact distinction’ (Allen and Pardo, 2003a), Ronald Allen and Michael Pardo argue that there is no ontological, epistemological or analytical distinction between law and fact. Instead, they claim that the distinction ought to be understood pragmatically, by considering whether the judge or jury is in the best position to decide the question. The problem with this is that it does not add to the understanding. In a soon-forgotten passus they suggest that the distinction is between legal and non-legal facts, rather than between law and fact. In this paper I revise the article by Ron and Pardo and make an argument in favour of the distinction between legal and non-legal facts. The notion of ‘legal’ and ‘non-legal’ underlines the fact that the dichotomy is relevant specifically from a legal point of view. In the legal context different consequences apply to law and fact, the same is not true in a non-legal context.","PeriodicalId":54168,"journal":{"name":"International Journal of Evidence & Proof","volume":"23 1","pages":"349 - 365"},"PeriodicalIF":1.5,"publicationDate":"2019-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1177/1365712719851043","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44590532","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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