Addressing the Adversarial Deficit in Non-Jury Criminal Trials

1997 ◽  
Vol 31 (1-3) ◽  
pp. 645-689 ◽  
Author(s):  
John D. Jackson ◽  
Sean Doran
Keyword(s):  
Legal Profession ◽  
Criminal Trials ◽  
Legal Scholarship ◽  
Legal Proceedings ◽  
American Scholar ◽  
Rules Of Evidence ◽  
Evidence Law ◽  
The Law ◽  
Law Of Evidence ◽  
The Way

It is a curious quirk of legal scholarship that so much attention has been devoted to the rules and procedures that operate injury trials and so little to the way in which these rules and procedures operate in the vast majority of trials which are conducted without a jury. This “jury-centredness” as it has been called was noted almost thirty years ago by the American scholar Kenneth Culp Davis when he urged scholars and the legal profession to escape from the deep-seated habit of allowing all thinking about evidence law to be dominated by the needs of the 3% of trials that involve juries and to think instead about the needs of the remaining 97% of trials that are tried without a jury. It is certainly true that the withdrawal of the jury from many categories of cases throughout this century in many jurisdictions has not been accompanied by any instant changes in the law of evidence. Certain commentators have noted that in spite of Thayer's claim that the rules are the “child of the jury”, the rules of evidence have proved remarkably resilient in outlasting the demise of the jury. The parent may have ceased to exist in many legal proceedings but the child has lived on.

1. Introduction

2020 ◽  
pp. 1-7
Author(s):  
Adrian Keane ◽  
Paul McKeown
Keyword(s):  
Adversarial System ◽  
Differences Of Opinion ◽  
Rules Of Evidence ◽  
History Of ◽  
The Law ◽  
Fact Finding ◽  
Law Of Evidence ◽  
Practical Constraints

Evidence is information by which facts tend to be proved, and the law of evidence is that body of law and discretion regulating the means by which facts may be proved in both courts of law and tribunals and arbitrations in which the strict rules of evidence apply. This introductory chapter discusses truth and the fact-finding process and explains how getting to the truth in court is hampered by practical constraints, the adversarial system, the rules of evidence themselves, and the fact that litigation is a human endeavour that necessarily provides scope for differences of opinion, error, deceit, and lies. The chapter also contains a brief history of the development of the law to date.

5. Hearsay

2016 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Criminal Justice ◽  
Criminal Trials ◽  
Questions And Answers ◽  
Flow Charts ◽  
The Law ◽  
Law Of Evidence ◽  
Hearsay Evidence ◽  
Law Commission

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. This chapter focuses on the rule against hearsay, which is, historically, one of the great exclusionary rules underlying the law of evidence. In 1997 the Law Commission recommended that hearsay evidence be put on a clearer statutory footing in criminal trials. This eventually led to wholesale reform in the Criminal Justice Act (CJA) 2003, which preserves the rule but increases the number of exceptions and safeguards, providing a comprehensive regime for hearsay. The chapter provides an overview of the changes to hearsay introduced by the CJA 2003.

scholarly journals Redefining Relevancy and Exclusionary Discretion in Sir James Fitzjames Stephen’s Indian Evidence Act of 1872: The Singapore Experiment and Lessons for Other Indian Evidence Act Jurisdictions

2012 ◽  
Vol 10 (1) ◽  
pp. 1-53
Author(s):  
Siyuan Chen
Keyword(s):  
Sri Lanka ◽  
Common Law ◽  
Case Law ◽  
The World ◽  
Rules Of Evidence ◽  
Evidence Law ◽  
The Law

AbstractIn many jurisdictions, the rules of evidence can often be instrumental in determining the outcome of a dispute. But to what extent can evidence law be controlled by codification, or is it better to leave its regulation and development to the judges via common law? In an attempt to bridge the gap between the rules of an antiquated evidence statute and the modern realities of practice, Singapore’s Evidence Act was amended in 2012. Certain relevancy provisions were amended to allow greater admissibility of evidence, while new provisions were introduced to act as a check against abuse. However, it will be argued that these amendments have changed the paradigm of the admissibility of evidence under the statute and have also done little to clarify existing ambiguities in the law. This paper explains why and, given the near-complete absence of case law that has interpreted the amendments, offers a few tentative suggestions on possible ways forward. To the extent that Singapore’s Evidence Act was largely modelled after Stephen’s Indian Evidence Act of 1872, Singapore’s 2012 amendments may be of comparative interest to readers in a number of jurisdictions around the world particularly those in Asia such as Bangladesh, Brunei, Burma, Malaysia and Sri Lanka – these countries had adopted the iconic statute to varying degrees – and of course, to India itself. Many of these jurisdictions have also not made major amendments to their evidence legislation, and therefore there may be something to learn ahead of time from Singapore’s experiment.

IV. The functions of the judge and jury

2018 ◽  
pp. 176-226
Author(s):  
Roderick Munday
Keyword(s):  
General Rule ◽  
Direct Methods ◽  
Third Party ◽  
Judicial Control ◽  
Jury Deliberations ◽  
Rules Of Evidence ◽  
Basic Functions ◽  
The Law ◽  
Law Of Evidence ◽  
Reliable Methods

This chapter discusses the basic functions of judge and jury. It begins with the general rule of separation of functions of judge and jury, before turning to some of the more direct methods of judicial control. The chapter also considers the extent to which the average jury understands the directions that the law requires the judge to give, and whether jurors are as imperceptive, ignorant, or prejudiced as some of the rules of evidence suppose. Secret monitoring of jury deliberations is one way of resolving these issues, but such monitoring would amount to contempt of court. Moreover, any discussion with a third party before verdict is liable to result in a conviction being quashed. Recourse must, at present, be had to simulations and generally less reliable methods of obtaining the information needed to provide a basis for understanding and improving the law of evidence.

Categorizing Identity: Literary, Performative, and Legal Languages in Oscar Wilde’s Libel Trial vs the Marquess of Queensberry

2020 ◽  
Author(s):  
Fred Hook
Keyword(s):  
Criminal Trials ◽  
Child Prostitution ◽  
Picture Of Dorian Gray ◽  
The Law ◽  
Dorian Gray ◽  
Concrete Image ◽  
The Way

Wilde has been generally accepted as one of the first figures of the queer man that is now known, however, how he came to represent this identity has not been much discussed. While his criminal trials, which led to his eventual conviction of ‘gross indecency,’ undoubtedly played a strong part on his emerging portrayal as a gay man, his first trial involving a libel suit against the Marquess of Queensberry is little discussed in relation to the start of his downfall and portrayal as a gay man. Thus, this project looks at Oscar Wilde’s libel trial and its effects on the identity of the homosexual man. By looking at the language used in the libel trial and its use of The Picture of Dorian Gray as evidence, the project concludes that by using the interpretations of Wilde’s novel during the trial, the law created a concrete image of what ‘gross indecency between men’ was, and of the type of person who participated in it, using Wilde as a representative for this identity. The way that his identity was forged allows us to see that while homosexuality as a way of being began to take shape thanks to Wilde’s trial, it was still imbued with negative connotations and seen as pederastic, tying it to anxieties around child prostitution and trafficking of the 1800s. The development of this new identity and its portrayal betters the understanding of the vilification of Wilde during his downfall and his novel’s role in this.

The Contextualised Court: Litigating ‘Culture’ in Canada

2005 ◽  
Vol 9 (2) ◽  
pp. 73-109 ◽  
Author(s):  
Robert J. Currie
Keyword(s):  
Decision Making ◽  
Multicultural Society ◽  
Rules Of Evidence ◽  
The Law ◽  
Law Of Evidence ◽  
Relevant Material

This article surveys the manner in which the courts of Canada have treated the concept of ‘culture’ as a justiciable matter in litigation. It starts from the premise that a constitutionally ‘multicultural’ society has manifest impetus to factor cultural realities into court-based decision-making, and acknowledges that judicial use of ‘contextualism’ appears to have provided the framework for reception of cultural evidence. Using the rules of evidence as a lens, the article: surveys how courts have found culture to be relevant, material and admissible in various kinds of legal disputes; analyses the trends; and offers some preliminary thoughts as to how the law of evidence should continue to adapt in order to accommodate culture in a principled manner.

Discretion and Security: Excluding Evidence under Section 78(1) of the Police and Criminal Evidence Act 1984

1990 ◽  
Vol 49 (1) ◽  
pp. 80-90 ◽  
Author(s):  
C.J.W. Allen
Keyword(s):  
Common Law ◽  
The Other ◽  
Rule Of Thumb ◽  
The Common ◽  
Political Compromise ◽  
The Law ◽  
Law Of Evidence ◽  
Court Of Appeal ◽  
The Way

Among rules of law Karl Llewellyn noted at one extreme the “rule-of-thumb, in which the flat result is articulated, leaving behind and unexpressed all indication of its reason”. At the other extreme was “the way of principle, in which the reason is clearly and effectively articulated, and that articulation is made part of the very rule”. The vice of principle, he observed, “can be a vaporish vagueness, and the techniques of its effective formulation are not easy to isolate for communication and use”. Partly for this reason, partly perhaps because of its origin in a last-minute political compromise, section 78(1) of the Police and Criminal Evidence Act 1984 at first confounded attempts to predict the manner of its application. One commentary suggested that it was “of no practical use”; there were dicta in the Court of Appeal to the effect that it did “no more than to re-state the power which judges had at common law before the Act of 1984 was passed”. A leading work on the law of evidence expressed the view that the sub-section was “cast in terms of such vagueness and generality as to furnish little guidance to the court”. There has been some development since those early days. It now seems clear that the Police and Criminal Evidence Act 1984 is to be regarded as a codifying Act which has to be looked at on its own wording. Section 78(1), therefore, does not merely re-state the position at common law. It is also clear that in its operation it overlaps section 76 and, through section 82(3), some of the common law. Section 78(1) may be applied in a variety of situations, with or without the presence of some element of impropriety in the way in which the evidence was obtained. Basic questions about its operation nevertheless remain.

2. Burden and standard of proof: Presumptions

2018 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Burden Of Proof ◽  
Presumption Of Innocence ◽  
Criminal Trials ◽  
Standard Of Proof ◽  
Statutory Provision ◽  
Questions And Answers ◽  
Flow Charts ◽  
The Law ◽  
The Difference ◽  
Law Of Evidence

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. This chapter discusses the allocation of the burden of proof in civil and criminal trials, depending on who should bear the risk. In criminal trials the ‘presumption of innocence’ means that the burden is on the prosecution, unless reversed by express or implied statutory provision. The law of evidence safeguards what in some jurisdictions is a civil right backed by the constitution. It is important to understand the difference between the legal and evidential burden and the occasions where they are separately allocated. Tricky areas are where there is a divorce of the legal and evidential burden, primarily in situations where the prosecution cannot expect to put up evidence to anticipate every specific defence the accused may present.

2. Burden and standard of proof: presumptions

2016 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Burden Of Proof ◽  
Presumption Of Innocence ◽  
Criminal Trials ◽  
Standard Of Proof ◽  
Statutory Provision ◽  
Questions And Answers ◽  
Flow Charts ◽  
The Law ◽  
The Difference ◽  
Law Of Evidence

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. This chapter discusses the allocation of the burden of proof in civil and criminal trials, depending on who should bear the risk. In criminal trials the ‘presumption of innocence’ means that the burden is on the prosecution, unless reversed by express or implied statutory provision. The law of evidence safeguards what in some jurisdictions is a civil right backed by the constitution. It is important to understand the difference between the legal and evidential burden and the occasions where they are separately allocated. Tricky areas are where there is a divorce of the legal and evidential burden, primarily in situations where the prosecution cannot expect to put up evidence to anticipate every specific defence the accused may present.

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