Better to Explain or to Testify? The Position of the Accused as a Source of Oral Evidence in a Criminal Trial in a Comparative Perspective

In this article the position of the accused as a source of personal evidence in three different European legal systems: Poland, Germany, and England, will be presented. This analysis will be oriented to understand the way of functioning of the two different models of giving statements of fact by the accused at a criminal trial. The main difference is that in the common law model of criminal trial the accused may only present evidence by testifying as a witness speaking about what happened, whereas in the continental model the accused gives a specific personal type of evidence (that in the Anglo-Saxon literature is rather described as “oral evidence”) that is known as explanations. From this differentiation several consequences arise: among others, the possibility of presenting untruthful explanations and presenting many versions of events in the continental model which have to be assessed by the judges. At the same time, the same right of the accused to silence and not to give incriminating evidence applies in both models of criminal trial – however, in two different shapes and with different types of limitations.

Trade on the North Eastern Bank of the Lagos Lagoon: A Focus on Ejinrin Lagoon Market, 1851–1939

This article discusses trade and market activities on the north eastern bank of the Lagos Lagoon. Our particular focus is on the Ijebu lagoon market of Ejinrin. During the period covered by this study, Ejinrin was a meeting point for traders from Lagos and those from southeastern Yoruba hinterland. Traders reportedly attended the market not only from Ijebuland but also from places such as Gbongan, Ile-Ife, Ilesha, Oyo, Ilorin, Okitipupa, Owo, Epe, Orimedu, Atijere and other towns in Yorubaland. Colonial records show that attendance at Ejinrin reached between 20,000 and 26,000 on a market day by the end of the nineteenth century and by 1908, the market was rated as the largest market in the whole of the western provinces of Nigeria. Such was the strategic importance of this market that it supplied Lagos with the bulk of the palm oil shipped overseas during the pre-colonial and colonial periods. Thus, the lagoon market occupied a very important place in the local economy of the Ijebu and that of Lagos. This article is an attempt to understand this aspect of the indigenous economy of Nigeria. It is an attempt to analyze and document the history of commercial activities in this geographical zone of the Lagos (Ijebu) Lagoon. The study relied largely on documentary evidence got from the National Archives, Ibadan and extensive oral evidence collected from those who, at one time or the other, had attended the market.

Negative Aesthetic Experiences of Prosecuting the Barely Alive

Theories of negative aesthetics claim that some aesthetic qualities like disgust, ugliness, and repulsiveness are instrumentally valuable, and can be justified as a necessary means to producing what might be considered an ultimately positive aesthetic experience. In an international criminal trial, the presentation of “ugly” visual and oral evidence may be justified in service of the aims of the trial. But when the “barely alive” are prosecuted, however, a justification for a negative aesthetic experience may not exist. In this paper, I argue that due to their vulnerability and the need to protect their dignity, individuals who have been accused of mass atrocity crimes but who are nearing the end of their lives should generally not be subjected to public trial and punishment. The negative aesthetic experiences generated by displaying someone close to death in that setting cannot be justified by positive aesthetic or moral experiences.

Audiovisual link technologies in Australian criminal courts: practical and legal considerations

Audiovisual link (AVL) technologies have had considerable impact on criminal court processes in Australia and overseas, particularly following the need for social distancing created by the coronavirus pandemic in 2020. AVL technologies have enabled courts to take oral evidence from witnesses and litigants in different geographical locations, reducing the need to travel long distances and minimising the time, administrative costs and health risks associated with attending court in person. In 2016 the AIC commenced a project to document the extent to which AVL technologies are used in criminal courts in Australia, as well as the types and prevalence of AVL technologies used and the technological, administrative and procedural issues associated with their use in terms of fairness, openness, legality and natural justice. This report assesses the practical and legal considerations that need to be taken into account when adopting AVL technologies in the criminal courts and concludes by identifying best practice initiatives for the adoption of AVL technologies in Australia. An accompanying report presents findings regarding the implementation of systems in Australia (Smith, Savage & Emami 2021).

18. Hearsay Evidence

Hearsay evidence in criminal cases most often arises in two situations: if a witness testifies about facts of which he has no personal knowledge because the facts were communicated to the witness by another person who is not in court; and where a witness’ written statement is put before the court because the witness is unable to attend court to give oral evidence. This chapter discusses the general rule of hearsay evidence; identifying hearsay evidence; statutory exceptions to the hearsay rule; hearsay evidence under the Criminal Justice Act (CJA) 2003; hearsay admissible under the preserved common law rules; procedure for admitting hearsay evidence; and hearsay evidence and the European Convention on Human Rights (ECHR) 1950.

A VALORAÇÃO DA PROVA ORAL NO PROCESSO PENAL BRASILEIRO

The present work had as main objective the accomplishment of a jurisprudential survey regarding the analysis that has been carried out by the Courts when evaluating the oral evidence in the scope of the domestic criminal process. Initially, brief considerations were made regarding the system of evidential valuation adopted mostly in Brazil -rational persuasion -in order to enter objectively in the assessment of oral evidence by national jurisprudence. In this context, several judgments of the Supreme Federal Court, Superior Court of Justice and several State Courts were analyzed, in which precedents were established regarding the valuation of the victim's word, the testimony of police witnesses and informants, as well as the statements of the defendant, whether he is a collaborator or not.Data collection was performed based on accessible sources, such as: printed documents, scientific articles, books and judges, always considering the need for data collection from various sources. The data were analyzed using the hypothetical-deductive method, collected information analyzed and compared in a dialectical way. The results achieved with the research with concrete as to the contribution to the debate that permeates the theme, concluding by the need to build a jurisprudential framework that allows the valuation of the evidence in order to respect the principles of the presumption of innocence and the prohibition of protection deficient.

The Collection, Authentication, and Use of Oral Evidence in African History

Several works on this subject have substantially established that oral evidence is a reliable source in African historiography. But it is not sufficient for such works being Africanist responses to Eurocentric postulations that pre-literate African societies, lacking Western-written sources, had no history. Though such works have improved our knowledge of the relevance of oral tradition in the reconstruction of African history, African oral tradition has been criticized by Western scholars. To this end, the article departures from most works on African oral historiography whose attentions are on the relevance of oral evidence in African history. Rather, it provides a manual on the process of engaging in the collection, authentication, and use of such oral data as to ensure that it is a credible source for writing African history. It is argued in the article that pre-literate African history will be more credible after critically scrutinizing data derived from oral evidence.

“This disaster is probably worse than the bombing”: the fires of besieged Leningrad in the perception of Leningraders

The article deals with the problem of perception of fires that were the result of German aerial bombardments and artillery shellings of Leningrad, as well as the careless actions of emaciated citizens during the blockade of the city. The paper is based on the evidence of Blockade’s period (diaries, letters, official documents, periodical press materials), transcript of oral evidence, which appeared shortly after the blockade and the war, memories, interviews created later.

On Some Features of Osip Mandelstam’s Representation in the Memories by Anna Akhmatova

The article presents some considerations on the motives for the creation and text strategies of Akhmatova’s memories of Mandelstam. The Pages from a Diary are viewed from two points of view: first, as a fragment of Akhmatova‘s memoir prose of a certain historical time, as an actualization of personal memory in order to correct collective cultural memory; secondly, as a supertext formed by numerous drafts, lists and variations.Within the framework of this genre, it is possible to single out a number of principles that Akhmatova is guided by when creating a memoir text: for example, a dialogical mode of a “conversation” with existing memories, documents, oral evidence; intention of myth-fighting, etc. A look at the Pages from a Diary as a work of narrative prose (based on Akhmatova’s definition of memories as a “short story”), called “The Death’s Way,” allows us to add the hero of her memoir to a number of “damned poets” that are not alien to Mandelstam.

Indigenous People and The Sustainable Development Goals in Brazil: A Study of the Kaingang People

Indigenous Peoples continue to face substantial challenges. This article focuses on the Kaingang People in Southern Brazil and is contextualized by the Sustainable Development Goals (SDG) adopted by all the United Nations member states in 2015. The authors adopted an Indigenist research methodology to obtain oral evidence and provided an education-focused case-study. The research findings reveal that, despite Brazilian Constitutional recognition and SDG provisions, in practice, the Indigenous People in Brazil are experiencing renewed threats to their indigeneity. The SDGs need to be implemented more robustly at the local level to overcome these emancipatory barriers. The article reveals the key role of empowerment that can be played by carefully articulated indigenous education programs.