PUENTES ENTRE LOS HECHOS Y EL DERECHO APLICABLE EN LA VERIFICACIÓN PROBATORIA: ESTANDAR Y VALORACIÓN DE LA PRUEBA

The legal argumentation on controversial facts deals with the evidence that allows reaching a precise verdict on the facts. The evidence is necessary to support the factual assertions made by the parties and the conclusions of fact made by the decision makers. But the test per se does not yield verdicts. The evidence must be evaluated and whoever decides must consider whether or not it satisfies a basic minimum to consider a fact proven, if it meets a standard of proof. Much work has been done on the subject of legal standards of proof. Legal argumentation theorists, evidence scholars, civil and criminal process scholars, among others, have extensively addressed this issue. Some of them have made an analytical effort to clarify the idea of an evidentiary standard; others have done descriptive work to understand how the standards actually work; Others have done a kind of normative work in the hope of suggesting better or at least better defined standards; and the best contributions to the debate do more than one of these things at the same time.

What Can COVID-19 Tell Us About Evidence-Based Management?

People worry that many COVID-19 decisions are not evidence based, but applying typical evidence-based management (EBM) in a pandemic seems difficult. A pandemic is characterized by uncertainty, high potential loss, time pressure, and competing values, all posing challenges to EBM. Drawing on events in government responses to COVID-19, this essay focuses on three issues: What should be considered as evidence in pandemic-like situations? How can we make evidence more accessible to decision makers in such situations? And, does evidence have a role in ethical judgments in a pandemic? The essay argues that EBM must be extended to address pandemic-like situations. The evidentiary standard should take into consideration “appropriateness,” “reasonableness,” and “intuition,” paying attention to the stages of a pandemic and the type of errors we want to avoid. In addition, the essay calls for building policy capacity in terms of coproducing and applying evidence in and outside government, as well as strengthening public managers’ capacity in evidence-based ethical analysis.

Die Another Day: Zeroing in on Targeted Dumping – Did the AB Hit the Mark in US–Washing Machines?

In US–Washing Machines, the WTO Appellate Body (AB) extended the prohibition of zeroing to the so-called exceptional (or W-T) methodology, where the dumping margin is established by comparing the weighted average normal value to export price of specific transactions. Given that the exceptional method was the only method under which the AB had not definitively rejected zeroing, this dispute may have hammered the last nail in the coffin of zeroing. Or, maybe not. The AB did not address a key issue, namely: What is the evidentiary standard that an investigating authority must meet in order to have legitimate recourse to W-T? In addition, the AB's suggested approach to aggregating dumping amounts across targeted and non-targeted groups may produce zeroing-like outcomes even if the authority does not resort to zeroing. It seems inevitable that future disputes will be required to address these issues, since history shows that at least some investigating authorities are gearing towards using this methodology ad nauseam. The AB has left zeroing to die another day.

When Your Kind Cannot Live Here: How Generic Language and Criminal Sanctions Shape Social Categorization

Using generic language to describe groups (applying characteristics to entire categories) is ubiquitous and affects how children and adults categorize other people. Five-year-olds, 8-year-olds, and adults ( N = 190) learned about a novel social group that separated into two factions (citizens and noncitizens). Noncitizens were described in either generic or specific language. Later, the children and adults categorized individuals in two contexts: criminal (individuals labeled as noncitizens faced jail and deportation) and noncriminal (labeling had no consequences). Language genericity influenced decision making. Participants in the specific-language condition, but not those in the generic-language condition, reduced the rate at which they identified potential noncitizens when their judgments resulted in criminal penalties compared with when their judgments had no consequences. In addition, learning about noncitizens in specific language (vs. generic language) increased the amount of matching evidence participants needed to identify potential noncitizens (preponderance standard) and decreased participants’ certainty in their judgments. Thus, generic language encourages children and adults to categorize individuals using a lower evidentiary standard regardless of negative consequences for presumed social-group membership.

The ‘Reasonable Basis to Proceed’ Threshold in the Kenya and Côte d’Ivoire Proprio Motu Investigation Decisions: The International Criminal Court’s Lowest Evidentiary Standard?

Prior to the ICC Pre-Trial Chamber II’s decision authorizing a proprio motu investigation with respect to the situation in Kenya, the jurisprudence of the ICC indicated that there existed three broad evidentiary thresholds pursuant to the Rome Statute: ‘reasonable grounds to believe’ for the issuing of warrants of arrest or summonses to appear, ‘substantial grounds to believe’ for the confirmation of charges, and ‘beyond reasonable doubt’ for a finding of guilt. However, the aforementioned decision held that there existed another: ‘reasonable basis to proceed’ for the authorizing of a proprio motu investigation. It further held that this was the lowest evidentiary threshold provided for in the Rome Statute – lower than that for the issuing of a summons to appear or an arrest warrant. This remained unquestioned in Pre-Trial Chamber III’s subsequent Côte d’Ivoire investigation authorization decision. This result was based primarily on the fact that, at the preliminary examination phase, the Prosecutor cannot engage his/her full investigative powers. This article questions that conclusion on the basis that the standard offered by Pre-Trial Chamber II is, in substance, practically indistinguishable from that governing the issuing of an arrest warrant or a summons to appear and that the former Prosecutor was able to satisfy it without engaging his full preliminary examination powers. It argues that, instead, the standard should be the same for both. However, a distinction is maintained not because one standard is inherently lower than the other, but because of the different contexts in which they are applied. The critical element is evidence that ‘pins’ the crime(s) to an individual(s). Such evidence is not required when requesting authorization to commence a proprio motu investigation, but it is crucial when seeking an arrest warrant or a summons to appear. Thus, applying the same evidentiary standard in both circumstances results in different evidentiary material depending on the absence or inclusion of this element. It is submitted that the Prosecutor’s full investigative powers are reserved to obtain exactly the more specific and narrow evidence that can justify the deprivation of a person’s liberty or to summon him or her to The Hague.