Law of evidence

Exclusion of Evidence Obtained in Breach of the Right to Privacy: Will Victoria's Charter Protect the Rights of Criminal Defendants?

by Caroline Henckels

The Birth of a Custom: Nomads, Sharīa Courts and Established Practices in the Tashkent Province, ca. 1868-19

by Paolo Sartori

Islamic Law and Society, 18/3-4 (2011): 293-326

In colonial Central Asia qāḍīs played a key role in establishing customary legal practices.
In adjudicating... more In colonial Central Asia qāḍīs played a key role in establishing customary legal practices.
In adjudicating claims of horse theft, qāḍīs operating in the Tashkent province under
Russian rule had recourse to customary rules of evidence known in the local Kazakh
communities. If a qāḍī ascertained that an animal was not stolen, but had been
acquired from a third party by a bone fide purchaser, he routinely used a probative
procedure unknown of in the Central Asian judicial manuals of the 19th and early
20th centuries. Based on an examination of sharīʿa court registers from the Tashkent
province, Bukharan shurūṭ works and unpublished archival material, I argue that the
establishment of Russian rule in the region and the introduction of triennial elections
for choosing judges made it necessary for each qāḍī to meet the demands of the
community that had elected him, thereby encouraging him to confer sharʿī legitimacy
on local legal practices.

Types of Legal Evidence

by Rodney Sims

Federal Rules of Evidence or FRE

The key aspects of the assignment was to focus on illustrative types of demonstrative evidence. The main focal point... more The key aspects of the assignment was to focus on illustrative types of demonstrative evidence. The main focal point being information pertaining to Federal Rules of Evidence 901.

Gatekeeping

by Peter Oh

Attorney-Client Privilege In the Public Sector: A Survey of Government Attorneys

by Nancy Leong

20 Georgetown Journal of Legal Ethics 163 (2007)

Courts have divided over whether the attorney-client privilege operates as it does for private individuals as it does... more Courts have divided over whether the attorney-client privilege operates as it does for private individuals as it does when the client is a government entity. The traditional instrumental rationale for the privilege - i.e., that the privilege is necessary to facilitate full disclosure of information from the client to the attorney - has been called into question by empirical research even in the context of the relationship between private individuals and their attorneys. When the client is an entity, such as a corporation, the instrumental need for this incentive is even more questionable. And when the client is not only an entity, but also a government body, bestowing a privilege upon that entity seems particularly perverse: the privilege could then be used to withhold information from the very citizens that the entity exists to represent.

To bolster the argument against an absolute privilege in the context of government entity clients, my article summarizes the results of thirty detailed interviews I conducted with attorneys who represent government entities. Twenty-five attorneys represented state government entities; five represented municipalities. In the aggregate, the attorneys I spoke with suggested that they did not view their role as analogous to the role of an attorney in the private sector and indicated that they gave substantial weight to the public interests at stake in the representation. This was the case regardless whether the ethical rules in the attorney's state mandated an absolute privilege for government entities or indicated that some qualification to the privilege was appropriate. The article concludes, therefore, that a qualified rather than an absolute privilege is appropriate in the context of representation of a government entity client.

Statistical Evidence, Sensitivity, and the Legal Value of Knowledge

by David Enoch

‘Judging’ Economists: Economic Expertise in Competition Law Litigation - A European View (September 4, 2009). University College of London Centre for Law and Economics Working Paper No. 01-09. Also published at The Reform of EC Competition Law: New Challenges, , Ioannis Lianos & Ioannis Kokkoris, eds.,Kluwer, 2009, pp. 185-320

by Ioannis Lianos

The study focuses on the admissibility and assessment of economic expertise in EC competition law litigation. I start... more The study focuses on the admissibility and assessment of economic expertise in EC competition law litigation. I start by exploring the broader issues raised by the integration of economic expertise in litigation: in particular the risk of moral hazard and adverse selection because of the epistemic asymmetry between judges and experts and the risk of expert bias. The analysis of these problems will bring me to the question of the conception of science and of the relations between science and law that underpins the concept of scientific expertise and, more specifically, economic expertise. I will then identify the extent of the problem of epistemic asymmetry and expert bias by looking to the degree and the locus of the intrusion of economic analysis in competition cases. I will examine the instruments, procedural and substantive, employed by the legal system, in order to mitigate the risks flowing from the epistemic asymmetry and the expert bias claims. First, I will highlight the different institutional and procedural frameworks that were adopted at the European Union level and in some selected member states in order to integrate economic expertise in litigation. My objective will be to understand how these institutional solutions may address each of the identified problems. Second, I will look to 'substantive' law approaches in the adjudication of expertise, such as the development of specific standards for the admissibility and the sufficiency of economic expertise in courts, as an alternative or as an additional option to deal with the challenges raised by economic expertise. The paper will conclude that the possible adverse effects of the epistemic asymmetry and expert bias between judges and experts raise important concerns that the legal systems should tackle. The current procedural/institutional and substantive legal framework governing economic expertise does not however take sufficiently into account important concerns that are specific to economics and other social sciences, such as the preservation of the scientific 'competition' in the supply of economic theory and consequently methodological or assumptions-related pluralism in economic thought. In particular, I will argue against adopting specific standards of admissibility of economic expertise in Europe. This is a US context-specific solution which does not necessarily fit with the specific characteristics of the European legal system. It is also an approach that represents an outdated and partial view of the scientific as well as of the judicial adjudication process.

L'article 1348 du Code civil et la preuve du testament perdu

by Jean-René Binet

SCIENTIFIC EVIDENCE AND THE CRIMINAL LAW: LESSONS FROM BRAIN-BASED LIE DETECTION

by John Danaher

"Blind Expertise and the Problem of Scientific Evidence"

by John Danaher

(2011) 15(3) International Journal of Evidence and Proof 207

Scientific evidence presents a problem for the courts: the subject-matter is often complex; the experts who present... more Scientific evidence presents a problem for the courts: the subject-matter is often complex; the experts who present the evidence can be cherry picked and biased; and judges and juries are frequently unsure about how to weigh the evidence once it has been presented. This article diagnoses the problems associated with scientific evidence and then proceeds to consider two possible solutions to those problems: (1) the reliability test solution; and (2) the blind expertise solution. The former is currently favoured by law reform agencies in Ireland and England, but the primary focus of this article is on the latter. It is concluded that the blind expertise solution has considerable attractions and should be seriously considered as a reform option

Principles of Adjudication in Islamic law

by Ahmed Fazel Ebrahim

The principles governing adjudication in Islamic courts differ with in some respectives from that of other legal systems The principles governing adjudication in Islamic courts differ with in some respectives from that of other legal systems

Dying Declaration - Evidentiary Value : The Law

by Kumar Rajendran

Collection, analysis and exchange of DNA data in the European Union

by Rosanna Belfiore

published in New Journal of European Criminal Law (3) 2011, pp. 317-337

The present article provides a general overview of the relevant legislation concerning collection, analysis and... more The present article provides a general overview of the relevant legislation concerning collection, analysis and exchange of DNA data throughout the EU. While collection and analysis of biological materials for the purpose of obtaining DNA profiles have been mainly left to national legislations, which have, however, assimilated internationally recognised profiling techniques, exchange of DNA profiles thereby obtained has been made the object of several EU measures, some generally dealing with exchange of information and data, others expressly devoted to DNA data exchange. In the light of this overview, the aim of this article is to discuss whether the current legislative framework is adequate for promoting swifter and more effective police and judicial cooperation in criminal matters within the EU.

Kolluğun Olay Yeri İnceleme Yetkisi

by Veysel Dinler

Crime Scene Investigation Authorization of the Law Enforcement

Suç Analizi-I (Ed.) Mustafa Kaygısız/Hanefi Sever, Adalet Yayınevi, Ankara, 2006, ss. 115–129
Crime Analysis-I, (Ed.) Mustafa Kaygisiz & Hanefi Sever, Adalet Publishing, Ankara, 2006, pp. 115-129

ISBN – 975–6385–75–8

(in Turkish)

Crime Scene Investigation Authorization of the Law Enforcement Crime Scene Investigation Authorization of the Law Enforcement

English Law's Epistemology of Expert Testimony

by Tony Ward

Journal of Law and Society 33(4): 572-95 (2006)

The decision whether to believe an expert witness raises difficult epistemological and ethical questions for a lay... more The decision whether to believe an expert witness raises difficult epistemological and ethical questions for a lay juror or judge. This article examines the English courts' approach to these questions in the light of a series of cases which endorse the test of admissibility formulated in the Australian case of R v. Bonython. It examines the case law in the context of the epistemology of testimony and argues that, if interpreted more rigorously than it generally has been to date, Bonython could provide the framework for an approach which avoids the pitfalls of either a 'scientistic' or a 'constructivist' epistemology of expert testimony. Such an approach needs to distinguish between different types of expertise and the differing degrees of deference that they call for on the part of a lay fact-finder.

De la loyauté de la preuve électronique

by Lucien Castex

Lettre du CEJEM n°43

eDiscovery and the Law
- Data destruction policies
- Privacy harm
- Compliance eDiscovery and the Law
- Data destruction policies
- Privacy harm
- Compliance

“Exclusion of Evidence: DPP (Walsh) v Cash” (2011) 15 International Journal of Evidence and Proof 62

by Yvonne Daly

In the arena of improperly obtained evidence the Irish courts have, for some time, operated one of the strictest, if... more In the arena of improperly obtained evidence the Irish courts have, for some time, operated one of the strictest, if not the strictest, exclusionary rules in the common law world where evidence is obtained in breach of constitutional rights. Through an interesting and intricate series of cases beginning in the mid-1960s with People (AG) v O’Brien [1965] IR 142 on to People (DPP) v Kenny [1990] 2 IR 110, and beyond, the legal basis for exclusion was established, considered and reconsidered. This case-note discusses the High Court and Supreme Court decisions in the latest in the line of such cases, DPP (Walsh) v Cash [2007] IEHC 108 (28 March 2007), [2010] IESC 1 (18 January 2010) and considers its impact on suspect rights and policing in the Irish pre-trial process.

http://doras.dcu.ie/16804/

“Judicial Oversight of Policing: Investigations, Evidence and the Exclusionary Rule” (2011) Crime, Law and Social Change

by Yvonne Daly

The Burden and Standard of Proof in the European Court of Human Rights

by Tobias Thienel

Published in German Yearbook of International Law 50 (2007), pp. 543-588

The Admissibility of Evidence Obtained by Torture under International Law

by Tobias Thienel

Published in European Journal of International Law 17 (2006), pp. 349-367

The article presents a survey of the international legal issues raised by the use of evidence obtained by torture,... more The article presents a survey of the international legal issues raised by the use of evidence obtained by torture, which concern not only the procedural right to a fair trial, but also play a part in protection from the abhorrence of torture itself. In this discussion, the author passes comment on the recent English decisions in the case of A and Others. The question of the admissibility of such evidence is broken down into several different cases. All those cases come within the exclusionary rule of Article 15 of the UN Convention against Torture. The article further argues that the inadmissibility is also comprehensive under the right to a fair trial, having regard to the right against self-incrimination and to the unreliability of statements obtained by torture. It is also argued that this exclusionary rule is part of customary international law and that the very concept of jus cogens obliges all states to distance themselves from any violation of its substantive content and to therefore refuse to accept any evidence obtained by torture. The article therefore exposes the exclusionary rule as coextensive with the prohibition of torture and as a function of this prohibition.