Uncovering Credibility

2019 ◽  
pp. 582-599
Author(s):  
Julia Simon-Kerr
Keyword(s):  
Irrelevant Information ◽  
Inner Life ◽  
Witness Credibility ◽  
Evidence Law ◽  
The Law ◽  
Rational Process

The project of evidence law is in many ways analogous to that of the author or artist. All seek to expose deeper truths. While the novelist can freely invent character and corresponding behavior, evidence law uses fictive devices to recreate a coherent narrative from ostensibly unimagined facts. It does this, in part, by structuring the ways in which we assess witness credibility. What witnesses say is at the heart of most trials and whether to believe those witnesses is an overarching concern. The novelist or painter can show us the inner life of characters through an omniscient narrator or a telltale blush. Evidence law employs a different, though no less evocative, means for signaling credibility. It makes otherwise irrelevant information admissible at trial as credibility evidence, encouraging fact-finders to consider the kind of person whose word they are being asked to accept by digging into that person’s past. In admitting this evidence, the law relies on a false equivalence between a propensity to lie, which will allegedly be uncovered through credibility evidence, and evidence tailored to the question of whether a witness should be believed, which is what is actually being offered to the fact-finder. This chapter seeks to disentangle the two concepts—propensity to lie and worthiness of belief—and in so doing to reveal the danger in mistaking a fundamentally authorial impulse to use worthiness and status-based distinctions to color in the narratives of the courtroom in service of a hyper-rational process of proof.

scholarly journals Questioning the Behavioral Assumption Underlying Wigmorean Absolutism in the Law of Evidentiary Privileges

2003 ◽  
Vol 65 (2) ◽  
Author(s):  
Edward J. Imwinkelried
Keyword(s):  
Evidence Law ◽  
The Law ◽  
Privileged Communications ◽  
Primary Impact

From society’s perspective, the rules governing privileged communications such as those between a client and his or her attorney are arguably the most important doctrines in evidence law. Most evidentiary doctrines relate to the court’s institutional concerns. By way of example, the best evidence and hearsay rules are largely designed to enhance the reliability of the evidence on which the trier of fact bases his or her findings. The primary impact of these rules is on the in-court behavior of witnesses, attorneys, and judges.

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.

Witness the Witness

2016 ◽  
Author(s):  
Michael J. Saks ◽  
Barbara A. Spellman
Keyword(s):  
Psychology Research ◽  
Inadmissible Evidence ◽  
Source Confusion ◽  
Oral Testimony ◽  
Evidence Law ◽  
The Law ◽  
Source Of Information

The major source of information in a trial’s search for factual truth is the oral testimony of witnesses. The main worry about those witnesses is that they will be in error or will intentionally lie or mislead. Consequently, the law provides tools to help assess the veracity and accuracy of witnesses. However, the effects of some of those tools (e.g., oath) are unknown, and we know that people in general are bad at using certain other tools (e.g., demeanor cues in assessing veracity). Cross-examination often is praised as the law’s greatest method for getting at both veracity and accuracy, but surprisingly little psychology research exists on it. One worry about cross-examination is the same worry that psychologists have about leading questions: source confusion (jurors sometimes don’t remember which witness said what, and so don’t remember which testimony was discredited during cross-examination). Like the problem of disregarding inadmissible evidence, it can be difficult or impossible to erase what has already been learned. Historically, evidence law precluded people from testifying when the law assumed they would be likely to lie or make mistakes. The rules then opened the courtroom doors wider, allowing nearly everyone to testify, with the assumption that lawyers could expose or jurors could recognize when witnesses were lying. Interestingly, in the realm of privileges, which prevent some potential witnesses from testifying for various psychological and policy reasons, end up precluding many of the potential witnesses who would have the most incentive to lie on the witness stand.

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.

scholarly journals Document Falsification/Forgery from the View of Islamic Jurisprudence and Malaysian Law

2019 ◽  
Vol 57 (2) ◽  
pp. 459-498
Author(s):  
Wan Abdul Fattah Wan Ismail ◽  
Ahmad Syukran Baharuddin ◽  
Lukman Abdul Mutalib ◽  
Muneer Ali Abdul Rab al-Qubaty
Keyword(s):  
Content Analysis ◽  
Expert Opinion ◽  
Penal Code ◽  
Legal Institutions ◽  
Analysis Methods ◽  
Frequent Use ◽  
Islamic Jurisprudence ◽  
Important Means ◽  
Evidence Law ◽  
The Law

Although the scholars of Islamic jurisprudence discussed the importance of document and its strength as a mean of proof, they did not discuss the issue of forgery unless slightly compared with the scholars of law. This is due to its limited extension and uses in the period of times. And with the frequent use of them in our time, the debates have extended towards several circumstances either to attempt for or to deny a forgery. Therefore, this research is conducted to study the document falsification from the perspectives of Islamic Jurisprudence and Malaysian Law. It is also to explain the definition, procedure and methods to identify the crime and its punishment. The study used inductive and content analysis methods on previous scholars’ opinions, discussions and explanation from two different legal institutions. This study found the following important results: The are many forms of forgery occur in this era and can be classified either as material or incorporeal fraud. Several implications have been issued against the forgery crime in the Malaysian Penal Code, such as imprisonment, lashes and fines. The Islamic jurisprudence and the Malaysian Evidence Act 1950 has established several methods to verify the validity of documents such as confession, testimony, expert opinion, and oath, but the opinion of the expert is the most important means in verifying the authenticity and originality of documents. This study also found that the Malaysian Evidence Law did not discuss the oath as a mean to verify documents. As analysed, the method to verify documents discussed in the books of jurisprudence is very different from that of the Malaysian Evidence Act 1950, which specifies the conditions of documents and the number of witnesses, but the law does not specify the number of witnesses and impose conditions only.[Meskipun para ahli tata hukum Islam membahas pentingnya sebuah dokumen sebagai alat bukti, namun mereka kurang membahas persoalan pemalsuan dokumen sedalam para ahli hukum konvensional. Hal ini terkait dengan terbatasnya waktu dan kuantitas penggunaan, sehingga frekuensi penggunaannya memunculkan debat yang panjang, baik yang menerima atau yang menolak soal pemalsuan. Oleh karena itu, artikel ini membahas pemalsuan dokumen dari perspektif tata hukum Islam dan hukum nasional di Malaysia. Artikel ini juga menjelaskan definisi, prosedur, dan metode identifikasi kejahatan ini serta hukumannya. Penulis menggunakan metode induktif dan analisis isi pada opini, perdebatan, dan penjelasan dari dua institusi hukum yang berbeda. Kajian ini menyimpulkan adanya beragam bentuk pemalsuan dewasa ini, baik material atau non material. Beberapa aturan hukum telah dikeluarkan di Malaysia dan sangsi nya seperti penjara, cambuk dan denda. Peradilan Islam dan Undang Undang Saksi Tahun 1950 telah menetapkan beberapa metode untuk validasi dokumen seperti: pengakuan, testimoni, pendapat ahli, dan sumpah, namun pendapat dari ahli masih merupakan cara utama untuk verifikasi keautentikan dan keaslian dokumen. Artikel ini juga menemukan bahwa peraturan hukum di Malaysia belum membahas sumpah sebagai alat verifikasi dokumen. Juga metodenya berbeda antara yang ada di dalam buku teks dengan Undang Undang 1950 yang lebih fokus pada kondisi dokumen dan jumlah saksi, padahal di dalam hukumnya tidak memperhitungkan jumlah saksi, hanya kondisinya saja.]

scholarly journals The Development of Evidence Law in Civil Cases Towards the Unification of Civil Procedural Law

Yuridika ◽  
2019 ◽  
Vol 35 (1) ◽  
pp. 31
Author(s):  
Deny Haspada ◽  
Efa Laela Fakhriah
Keyword(s):  
Law Enforcement ◽  
Burden Of Proof ◽  
Legal Certainty ◽  
Important Stage ◽  
Procedural Law ◽  
Public Nature ◽  
Evidence Law ◽  
The Law ◽  
Settlement Of Disputes ◽  
Rules Of The Game

The proof is the most important stage in settlement of a case in court because it aims to prove that a particular legal event or relationship has been made as a basis for a lawsuit. Through the burden of the proof stage, the judge will get the bases to decide between settling a case. Nevertheless, the burden of proof regulation remains plural. There are even some regulations which regulate not only the material law but also the formal law. Such a situation affects the achievement of order and legal certainty in law enforcement efforts. As is known, the nature of the procedural law is formal law, namely the law concerning the rules of the game in settlement of disputes through the court, and is binding on all parties and cannot be deviated. That is why procedural law has a public nature. For the certainty of law, therefore, the procedural law must be in the codification form of unification nature so that it can generally apply to and binding on all parties. Therefore, it is necessary to reform the civil procedural law that is codified and nationally applicable.

Evidence Law and Empirical Psychology

2021 ◽  
pp. 349-363
Author(s):  
Justin Sevier
Keyword(s):  
Twentieth Century ◽  
Academic Discipline ◽  
Future Research ◽  
Historical Account ◽  
Empirical Psychology ◽  
The Public ◽  
Evidence Law ◽  
The Law ◽  
Law Of Evidence ◽  
The Relationship

Empirical psychology is a natural fit for understanding the law of evidence but is also substantially at odds with it. Since the early twentieth century, researchers have begun applying the insights from experimental psychology to various aspects of courtroom adjudication, including the assumptions underlying the Federal Rules of Evidence and the effects of the rules on litigants and the public. At the same time, the law has struggled with whether and how to incorporate insights from an academic discipline that embodies goals and methodologies that are, in many ways, dramatically different from its own. This chapter unfolds a brief historical account of the relationship between empirical psychology and the law of evidence, specifies the major contributions that psychologists have made to our understanding of evidence law, highlights recent, cutting-edge research, and makes several suggestions for how future research can assist in maintaining the relevance of psychology to sound evidentiary policy.

Ethical Challenges: Less About Moral Wrongdoing and More About Communication Breakdown

2015 ◽  
Vol 20 (3) ◽  
pp. 72-84 ◽  
Author(s):  
Paula Leslie ◽  
Mary Casper
Keyword(s):  
Ethical Challenges ◽  
Speech Language Pathology ◽  
Thickened Liquids ◽  
Communication Breakdown ◽  
Professional Duty ◽  
Language Pathology ◽  
The Law ◽  
Personal Case

“My patient refuses thickened liquids, should I discharge them from my caseload?” A version of this question appears at least weekly on the American Speech-Language-Hearing Association's Community pages. People talk of respecting the patient's right to be non-compliant with speech-language pathology recommendations. We challenge use of the word “respect” and calling a patient “non-compliant” in the same sentence: does use of the latter term preclude the former? In this article we will share our reflections on why we are interested in these so called “ethical challenges” from a personal case level to what our professional duty requires of us. Our proposal is that the problems that we encounter are less to do with ethical or moral puzzles and usually due to inadequate communication. We will outline resources that clinicians may use to support their work from what seems to be a straightforward case to those that are mired in complexity. And we will tackle fears and facts regarding litigation and the law.

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