The internationalisation of criminal evidence : beyond the common law and civil law traditions / John D. Jackson, Sarah J. Summers.

Format:

Book

Author/Creator:

Jackson, John D., 1955- author.

Summers, Sarah J., author.

Series:

Law in context

Language:

English

Subjects (All):

Evidence, Criminal.

Physical Description:

1 online resource (xxxv, 405 pages) : digital, PDF file(s).

Place of Publication:

Cambridge : Cambridge University Press, 2012.

System Details:

text file

PDF

Summary:

Although there are many texts on the law of evidence, surprisingly few are devoted specifically to the comparative and international aspects of the subject. The traditional view that the law of evidence belongs within the common law tradition has obscured the reality that a genuinely cosmopolitan law of evidence is being developed in criminal cases across the common law and civil law traditions. By considering the extent to which a coherent body of common evidentiary standards is being developed in both domestic and international jurisprudence, John Jackson and Sarah Summers chart this development with particular reference to the jurisprudence on the right to a fair trial that has emerged from the European Court of Human Rights and to the attempts in the new international criminal tribunals to fashion agreed approaches towards the regulation of evidence.

Contents:

Part I Evidentiary contexts 1

1 Evidence across traditions 3

1.1 Introduction: the convergence debate 3

1.2 Comparative evidence scholarship 9

1.3 The rationalist tradition and the rights tradition 14

1.4 Towards shared evidentiary principles 19

1.5 Beyond the common and civil law traditions 27

2 The common law tradition 30

2.1 Introduction: free proof and the common law 30

2.2 Common law conceptions of the law of evidence 34

2.3 Evidence law adrift? 38

2.4 Challenges to free proof 40

2.4.1 The epistemic challenge 41

2.4.2 The scientific challenge 45

2.4.3 The constitutional challenge 50

2.5 Conculsion 55

3 Evidential traditions in continental European jurisdictions 57

3.1 Introduction 57

3.2 The development of criminal evidence law and the movement towards 'freedom of proof' 58

3.3 The importance of the nineteenth-century procedural reforms 66

3.4 Freedom of proof and restrictions on the doctrine in modern evidence law 69

3.5 Excluding or prohibiting the use of evidence 72

3.6 Recent developments in evidence law 74

3.7 Conclusion 76

4 The international human rights context 77

4.1 Introduction 77

4.2 The evolution of evidentiary human rights norms 79

4.2.1 The right to a fair trail 79

4.2.2 The equality of arms principle 83

4.2.3 The right to an adversarial trial 86

4.3 The process of proof and the regulation of the investigation/pre-trial phase 95

4.3.1 Defence rights and the importance of the procedural environment 97

4.3.2 Potential for per-trial activities to impinge on defence rights 99

4.4 Towards convergence or realignment? 101

4.5 Conclusion 106

5 Evidence in the international criminal tribunals 108

5.1 Towards an international system of justice 108

5.2 Problems of legitimacy 110

5.2.1 Function and purpose of international criminal trials 111

5.2.2 The evidentiary context 112

5.2.3 Reaching agreed rules of procedure and evidence 115

5.3 Common law foundations 116

5.4 The ad hoc tribunals 119

5.5 Rubbing points between the common law and the civil law 124

5.6 The need for realignment 131

5.6.1 The right to equality of arms 133

5.6.2 The right to an adversarial 136

5.7 Towards the future and the international Criminal Court 140

5.8 Conclusion 145

Part II Evidentiary rights 149

6 Fair trials and the use of improperly obtained evidence 151

6.1 Introduction 151

6.2 Theories explaining the exclusion of improperly obtained evidence 153

6.3 Evidence obtained by way of torture, inhuman or degrading treatment 158

6.3.1 Evidence obtained by way of torture 160

6.3.2 Evidence obtained by way of inhuman or degrading treatment 163

6.3.3 Fairness and evidence obtained by recourse to torture or ill-treatment 166

6.4 Deception, coercion, traps and tricks 169

6.4.1 Wiretapping and covert surveillance 171

6.4.2 De facto 'interrogation' of suspects in custody 175

6.4.3 De facto 'questioning' of suspects not in custody 179

6.4.4 Fairness and the use of evidence by deception and coercion 181

6.5 Entrapment 188

6.6 Fruit of the poisonous tree 191

6.7 Conclusion: improperly obtained evidence, fairness and the under-regulated pre-trial/investigative process 194

7 The presumption of innocence 199

7.1 Introduction 199

7.2 The meaning of the presumption of innocence 200

7.2.1 The presumption as an evidentiary protection 200

7.2.2 Treating defendants as innocent 205

7.2.3 Substantive innocence 208

7.3 The presumption of innocence and the rationalist tradition 211

7.4 The presumption and fair trial standards 215

7.5 The scope of the presumption of innocence under human rights law 217

7.6 Reversal of the burden of proof 221

7.7 Avoiding prejudice 228

7.7.1 An independent and impartial tribunal 229

7.2.2 Participatory rights 233

7.7.3 The right to a reasoned judgment 237

7.8 Conclusion 239

8 Silence and the privilege against self-incrimination 241

8.1 The historical and transnational importance of the right of silence 241

8.2 The scope of the privilege in international law 246

8.2.1 The international instruments 246

8.2.2 Funke v.France 248

8.2.3 Charged with a criminal offence 250

8.2.4 Incrimination 251

8.2.5 Compulsion 252

8.2.6 Defiance of the will of the suspect 253

8.3 Exception to the rights against self-incrimination and of silence 256

8.3.1 The public interest 256

8.3.2 Other factors 258

8.3.3 Inferences from silence 260

8.4 Rationale of the privilege and the right of silence 266

8.5 The right of silence as a necessary condition for active defence participation 273

8.6 Incorporating fair trials standards from the point of being called to account 277

8.7 Conclusion 283

9 Defence participation 285

9.1 Introduction: legal representation and self-representation 285

9.2 The right to effective legal assistance 289

9.2.1 Early legal assistance 289

9.2.2 Communication with counsel 289

9.2.3 Right to private communication and legal professional privilege 291

9.2.4 Balancing away the privilege 293

9.3 The right to full disclosure of evidence 295

9.3.1 The case against the accused 295

9.3.2 The scope of the right to disclosure: Jespers and Edwards 297

9.3.3 Uncertainties as to scope 301

9.3.4 An absolute right? 304

9.4 Common law shortcomings 307

9.5 Beyond disclosure: access to evidence outside the possession of the prosecution 310

9.5.1 Defence investigations 310

9.5.2 Application to the court 312

9.6 Public interest immunity 316

9.6.1 The principle of judicial scrutiny 317

9.6.2 Adversarial argument 319

9.7 Conclusion 323

10 Challenging witness evidence 325

10.1 Introduction 325

10.2 Justifying the right to challenge incriminatory witness evidence 327

10.3 The regulation of the right to challenge witness evidence: the human rights perspective 334

10.3.1 The importance of the witness evidence: the sole or decisive test 338

10.3.2 An adequate and proper opportunity to challenge the witness 342

10.3.2.1 The significance of the procedural environment: principal versus preliminary proceedings 342

10.3.2.2 The circumstances of witness hearing: the importance of an impartial judge and the right to counsel 345

10.3.2.3 Obligation to organise the witness examination hearing 349

10.3.2.4 Restrictions on the defence's opportunity to challenge the witness 351

10.3.2.5 The substantive sufficiency of the opportunity to challenge the witness 356

10.3.3 Defence obligations, waiver and forfeiture 359

10.3.4 Challenging expert witnesses 361

10.4 Conclusion 362

11 Towards a theory of evidentiary defence rights 367

11.1 Beyond tradition 367

11.2 Prospects for evidentiary defence rights 371

11.3 Victims' rights and participation 372

11.4 State security and terrorism 380

11.5 Cost and expedition 384

11.6 Legal culture and tradition 387.

Notes:

Title from publisher's bibliographic system (viewed on 05 Oct 2015).

Other Format:

Print version:

ISBN:

9781139093606

Access Restriction:

Restricted for use by site license.