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.

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.

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.

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.

8. The opinion rule and the presentation of expert evidence

Evidence ◽  
2019 ◽  
pp. 316-347
Author(s):  
Roderick Munday
Keyword(s):  
Expert Opinion ◽  
General Rule ◽  
Bayes Theorem ◽  
Expert Evidence ◽  
Dna Evidence ◽  
The Core ◽  
The Subject ◽  
The Law ◽  
Law Of Evidence

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. The ‘opinion rule’ is one of the major exclusionary rules of the law of evidence. This chapter discusses the following: the general rule excluding evidence of opinion; four exceptions to the opinion rule born of necessity; the principal exception to the opinion rule: expert opinion; the presentation of DNA evidence; and the use of the Bayes’ theorem and instructing the jury in mathematical probabilities.

1. Introduction

2018 ◽  
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.

Conduct, relevance and the hearsay rule

Legal Studies ◽  
1993 ◽  
Vol 13 (1) ◽  
pp. 54-68 ◽  
Author(s):  
Michael Hirst
Keyword(s):  
Criminal Law ◽  
Common Sense ◽  
Criminal Cases ◽  
Men And Women ◽  
Rules Of Evidence ◽  
The Law ◽  
Hearsay Rule ◽  
Law Of Evidence

‘In my view, the criminal law of evidence should be developed along common-sense lines readily comprehensible to the men and women who comprise the jury and bear the responsibility for the major decisions in criminal cases. I believe that most laymen, if told that the criminal law of evidence forbade them even to consider such evidence as we are debating in this appeal, would reply, “Then the law is an ass.”…The hearsay rule was created by our judicial predecessors, and if we find that it no longer serves to do justice in certain conditions then the judges of today should accept the responsibility of reviewing and adapting the rules of evidence to serve present society.’

scholarly journals Third Party Fraud inducing Material Mistake Slip Knot Investments 777 (Pty) Ltd v du Toit 2011 4 SA 72 (SCA)

2017 ◽  
Vol 14 (7) ◽  
pp. 186
Author(s):  
Chris James Pretorius
Keyword(s):  
Supreme Court ◽  
General Rule ◽  
Case Law ◽  
Third Party ◽  
The Third ◽  
The Supreme Court ◽  
The Law ◽  
The Third Party ◽  
Court Of Appeal ◽  
Slip Knot

In Slip Knot Investments v Du Toit 2011 4 SA 72 (SCA) the Supreme Court of Appeal had to determine if the material mistake of a contractual party induced by the fraud of an independent third party could sustain a plea of iustus error raised by the mistaken party. The position prior to this decision was uncertain and characterised by inconsistency, mostly occasioned by the application of the iustus error doctrine together with fault. The Supreme Court of Appeal found that in the circumstances the mistaken party was liable, despite the fraud of the third party, on the basis of the reliance theory. The decision is commendable for bringing a measure of certainty to the law of mistake on this point and indicating that the reliance theory (as opposed to the iustus error doctrine) is the appropriate means to resolving such cases. Nevertheless, it is suggested that although the general rule implied by the court's approach is entirely apposite, there may well be exceptional instances where on the basis of relevant policy considerations the reliance theory should not prevail and the mistaken party should be absolved from contractual liability. In this manner reliance, which at first seems reasonable for being induced by the conduct of the contract denier, may upon further reflection be regarded as unreasonable based on the consideration of risk creation at the hand of the contract assertor, for instance. Admitting exceptions in appropriate circumstances would also provide a degree of consonance with earlier case law, where, even if the court's approach was open to theoretical criticism, a court has intuitively felt that liability should not lie.

scholarly journals Em defesa do Direito Probatório fundado em regras- e da Epistemologia também

2017 ◽  
Vol 1 (2) ◽  
pp. 319
Author(s):  
Frederick Schauer
Keyword(s):  
Jeremy Bentham ◽  
Rule Based ◽  
Legal Rules ◽  
Relevant Evidence ◽  
Moral Theories ◽  
Rules Of Evidence ◽  
The Law ◽  
Law Of Evidence ◽  
Epistemic Appraisal ◽  
Formal Rules

<p><strong>RESUMO:</strong></p><p>Desde que Jeremy Bentham escreveu a sua severa crítca ao Direito Probatório, filósofos e juristas têm critcado as regras probatórias excludentes argumentando que as regras formais que excluem classes inteiras de provas em razão da sua alegada infabilidade violam máximas epistemológicas fundamentais que exigem que toda prova pertinente seja levada em consideração. Embora algumas partes da prova possam ser excluídas por falta de fabilidade – argumentam eles – seria um erro fazer tais juízos em relação a categorias inteiras, em oposição a fazê-los somente em relação à provas específcas apresentadas para propósitos específicos. Este artgo põe em causa essas alegações, argumentando que exclusões fundadas em regras servem a propósitos similares àqueles desempenhados pelas regras nas teorias morais consequencialistas de regras, e que, de maneira ainda mais importante, elas são totalmente consistentes com a natureza excludente das regras jurídicas em geral. Na verdade, uma vez visto o papel que as regras excludentes podem desempenhar na Epistemologia Jurídica, se torna possível ver que elas poderiam ter um papel a desempenhar na avaliação epistêmica em geral.</p><p><strong>ABSTRACT:</strong> </p><p>Ever since Jeremy Bentham wrote his scathing critque of the law of evidence, both philosophers and legal scholars have criticized the exclusionary rules of evidence, arguing that formal rules excluding entre classes of evidence for alleged unreliability violate basic epistemological maxims mandating that all relevant evidence be considered. Although particular pieces of evidence might be excluded as unreliable, they argue, it is a mistake to make such judgments for entire categories, as opposed to making only in the context of partcular pieces of evidence ofered for specifc purposes. This paper challenges these claims, arguing that rule-based exclusions serve similar purposes to those served by rules in rule-consequentalist moral theories, and that, even more importantly, they are entrely consistent with the exclusionary nature of legal rules in general. Indeed, once we see the role that exclusionary rules might serve in legal epistemology, we can see that they might have a role to play in epistemic appraisal more generally.</p>

1. Introduction to the law of evidence

2017 ◽  
Author(s):  
Richard Glover
Keyword(s):  
European Convention ◽  
Law System ◽  
Rules Of Evidence ◽  
The Common ◽  
The Law ◽  
Definition Of ◽  
The Right ◽  
Law Of Evidence ◽  
The Impact

This chapter provides an overview of the law of evidence. It discusses the definition of evidence and how the law of evidence differs from the science or philosophy of evidence; the characteristics of the judicial trial that demand a particular legal approach to the presentation and use of evidence including, on occasion, its exclusion; the development of the rules of evidence in the common law system and the factors that influenced this; the classification of the rules of evidence; and the impact of the European Convention on Human Rights, in particular the provisions relating to the right to a fair trial.

scholarly journals La preuve devant les tribunaux administratifs et quasi judiciaires

2005 ◽  
Vol 21 (3-4) ◽  
pp. 825-853
Author(s):  
Patrice Garant
Keyword(s):  
Common Law ◽  
Administrative Law ◽  
Natural Justice ◽  
Rules Of Evidence ◽  
The Common ◽  
The Law ◽  
Law Of Evidence ◽  
Administrative Justice

Procedure before quasi-judicial boards and tribunals has recently attracted abundant comment as well as some criticism. In administrative law, rules of evidence form an important part of procedure. In this paper, the author first tries to define what are the sources of the law of evidence before quasi-judicial agencies in Québec : the common law, the two Codes, statutes and regulations. Then follows in two parts an overview of the principal rules that govern the manner in which claims and arguments are brought before tribunals and the extent to which specific provisions or general principles of administrative law allow tribunals themselves to gather evidence required for the purposes of a decision. The paper suggests that administrative justice requires that the tribunal really be « master of the procedure », within the framework of natural justice.

Sign in / Sign up

Export Citation Format

Share Document