Australian Uniform Evidence Law

Now in its second edition, Australian Uniform Evidence Law provides a clear, accessible introduction to the law of evidence. Following the structure of the Evidence Act 1995 (Cth), the text introduces students to basic principles, then covers more complex elements of evidence law. Cases and excerpts from legislation have been selected to guide students through the application of the Act. This edition has been updated to include significant recent case examples and decisions. Each chapter includes a summary of key points, definitions and practice questions to encourage students to apply their knowledge to realistic scenarios. The final chapter comprises longer-form, complex problems designed to test students' understanding of the concepts and rules covered in the Act as a whole. Guided solutions to each question are provided so students can check their understanding. Providing clear explanations and examples, Australian Uniform Evidence Law is an essential resource for all students of evidence law.

SCIENTIFIC VIEWS OF M.K. TREUSHNIKOV THROUGH THE PRISM OF PUBLICATION ACTIVITY

This article is an attempt to briefly analyze the scientific activity of Mikhail Konstantinovich Treushnikov, which is carried out through the prism of his publication activity in all its manifestations. In addition, this study presents an attempt to collect a complete bibliography of M.K. Treushnikov. The significance of this study is determined both by its uniqueness, which is due to the use of information from various sources, and the presence of individual theses and conclusions formulated by the authors. Thus, this work focuses on the fact that M.K. Treushnikov, in addition to considering the problems of civil and arbitral procedural law, paid attention to the development of problems of higher education, including in terms of methodology, and that, perhaps, allowed him to create a real school of civil procedure law in the walls of the Lomonosov Moscow State University. In addition, the thesis is put forward and substantiated that M.K. Treushnikov was actively engaged in questions of the law of evidence, as well as judicial law, which were widely reflected in his numerous works published in various journals and collections, as well as embodied in monographs.

Between Fact and Opinion: The Sui Generis Approach to Expert Witness Testimony in International Criminal Trials

It is a fundamental tenet of the law of evidence, spanning all jurisdictions, that witness testimony should ideally be delivered in open court by the individual who observed the event in question, or by the expert whose technical knowledge is relied upon. A notable exception to this principle has emerged in the field of international criminal justice, where courts and tribunals may allow ‘summarising witnesses’ to present a summation of witness testimony. In the case of Ayyash et al., the Special Tribunal for Lebanon extended the principle, allowing voluminous expert opinion evidence to be presented in factual summation. This article analyses such approaches, utilising doctrinal methods alongside empirical Wigmorean analysis, to assess the probity of these sui generis practices. The results are placed in legal and theoretical perspective, demonstrating that international courts and tribunals are departing from an overarching obligation to integrate international and domestic standards in respect of expert testimony.

Free Evaluation of Evidence: Does the icc need a Law of Evidence?

The International Criminal Court appears to have adopted a sui generis legal framework which favours the oldest features of both the common law and the continental law. Historically, the common law and continental legal systems have conceived questions of evidence and proof differently. Therefore, modes of judicial thinking are also different. The continental approach in the Bemba case freely evaluated the evidence. The common law approach evaluated the evidence against the burden of proof. Even though free evaluation may assist the truth-seeking mission of the Court on admissibility, the decision at the end of the trial requires rigorous evaluation only against the burden of proof. The common law of evidence provides a judicial thinking process for evaluating evidence, but free evaluation does not. This paper addresses whether the icc should develop its own evidence law to provide a route of rigorous judicial thinking when weighing evidence at the deliberation phase.

The Role of Rules in the Law of Evidence

This chapter starts out with Bentham’s antinomian thesis that rejected the very idea of setting up rules for selecting and evaluating evidence. Bentham believed that factfinding should be governed by epistemically good reasons as a process unconstrained by artificial legal rules. The author observes that most legal systems took up this approach by softening the hard edges of rules (as in common law jurisdictions) and by following the basically free-proof model of factfinding (as in countries that adopted the continental European approach). Yet, he claims that the law of evidence still remains substantially an affair of rules. Why this is the case and whether it should be the case, is the subject of this chapter.

Evidence Law and Empirical Psychology

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.

Introduction

This volume presents contributions from scholars spread across three continents and domiciled in twelve different countries, whose common interest is evidence theory as related to law. Evidence theory as related to law stayed mostly dormant until the advent of the “New Evidence Scholarship” in the mid-eighties of the twentieth century. The publication of William Twining’s book, Theories of Evidence: Bentham & Wigmore in 1985 and the 1986 Boston University Law Review Evidence Symposium volume have changed things around. These publications have irreversibly changed the direction of the study of evidence by shifting evidence scholars’ focus from rules to reasons. The shift from rules to reasons was transformative along two dimensions: interdisciplinarity and internationalization. The realization that reasons moving the factfinding process forward are antecedent to, and consequently more important than, evidentiary rules has opened up new paths of inquiry that connected adjudicative factfinding to epistemology, mathematics, economics, psychology, sociology, political morality, and linguistics, and led to further and richer explorations of how theories of probability and induction affect the understanding and reform of the law of evidence. The primacy of reasons has also created a sizable common ground for theorizing for evidence scholars from different countries. With a focus on reasons rather than rules, the differences between factfinding in the more regulated Anglo-American systems vis-à-vis the freer European systems—once understood as dramatic—became less important. The Introduction to the volume presents its chapters and highlights the major philosophical and interdisciplinary insights discussed in it.

Access to Information and Evidence

This chapter explores the provision and testing of evidence, which is central to civil procedure. Effective access to information and evidence are basic tools that ensure access to justice is a real rather than a merely theoretical right. There is a great deal of variety across European jurisdictions in respect of the approach taken to evidence-taking, and particularly to access to relevant information. This is a consequence of a variety of factors: the distinction between the civil law/common law; legal history; and procedural culture, and particularly the distribution of roles between the court, judiciary, and parties. This divergence in approaches to evidence may be the source of difficulties in cross-border litigation. The chapter identifies the common core of the law of evidence and the best, or more convenient, rules, including those related to the management of evidence, in use in European jurisdictions. To do so, it looks at the ALI/UNIDROIT Principles, the IBA Rules of Evidence and of legal instruments addressing the issue of evidence and access to information within the European Union.

Alat Sebagai Alat Bukti Dalam Tindak Pidana Narkotika

In the case of Narcotics Crime, verification is one of the important process, because in this process we can know how the criminal act can be done and to make that the defendant is the guilty one. Indeed based on judge confidence and all the evidence. In Law Number 35 of 2009 Concerning Narcotics, Article 101 Paragraph (1) regulates that: "Narcotics, Narcotics Precursors, and tools or goods used in Narcotics and Narcotics Precursor crimes or those involving Narcotics and Narcotics Precursors and their results are declared to be confiscated for the state." But, there is no explanation about definition of “tools or goods in Narcotics crime”. So that can make a question what is tools used in Narcotics crime and can that tools qualified as evidence so have more value in verification process. More than that, what is ratio decidendi the conviction of the instrument as evidence in Narcotics crime.Keywords: Law of Evidence; Evidence; Corroboration.AbstrakDalam kasus tindak pidana Narkotika, pembuktian merupakan salah suatu proses yang beperan sangat vital, karena di dalam proses inilah dapat diketahui bagaimana tindak pidana Narkotika tersebut dilakukan dan menentukan apakah terdakwa benar bersalah. Tentunya berdasarkan keyakinan hakim serta alat bukti yang ada. Dalam Undang-Undang Nomor 35 Tahun 2009 Tentang Narkotika, Pasal 101 ayat (1) mengatur bahwa: “Narkotika, Prekursor Narkotika, dan alat atau barang yang digunakan di dalam tindak pidana Narkotika dan Prekursor Narkotika atau yang menyangkut Narkotika dan Prekursor Narkotika serta hasilnya dinyatakan dirampas untuk negara”. Namun sayangnya, dalam Penjelasan Undang-Undang Narkotika, Pasal ini tidak dijelaskan lebih lanjut bahkan tidak terdapat definisi secara pasti mengenai “Alat atau barang yang digunakan di dalam tindak pidana Narkotika”. Oleh karena itu menimbulkan pertanyaan apakah yang dimaksud dengan alat yang digunakan dalam tindak pidana Narkotika serta dapatkah alat tersebut dikualifikasikan sebagai alat bukti sehingga mempunyai nilai pembuktian lebih dalam proses pembuktian. Selain itu mengetahui apakah ratio decidendi penjatuhan putusan terhadap alat sebagai alat bukti dalam tindak pidana Narkotika. Kata Kunci: Pembuktian; Alat Bukti; Petunjuk.

Role of Forensic Evidence in Upholding Justice: Exploring Islamic Law and the Experience of Syariah Courts in Malaysia

In Islamic law of evidence, there are several forms of evidence commonly used by courts to establish facts. In today’s era, a form of evidence called forensic evidence has also emerged. A question then arises, what is the appropriate legal basis for acceptance of this forensic evidence in the Islamic law of evidence. This paper focuses on the evolution of the Islamic law of evidence and investigates the position of forensic evidence in Islamic law from sources such as the Quran, the Prophet’s traditions, and the practices of the Companions of the Prophet. In addition, this study also looks at the experience of the Malaysian Syariah Courts in terms of how forensic evidence is dealt with in hearing family law cases. The research design of this study is content analysis. Data were obtained by document analysis, including books, papers, journals, case reports, and other records relating to the role of forensic evidence. The methods used to interpret the data for this qualitative research are analytical and deductive. As a result, it can be said that forensic evidence is not an unfamiliar matter in the Islamic law of evidence. In fact, forensic evidence has been relied on by the Syariah Courts of Malaysia in making several decisions for certain cases in order to ensure that justice is upheld in society.