DNA as ‘ready-made evidence’: An analysis of Portuguese judges’ views

The introduction of biological evidence in judicial settings raises particular modes of entanglement between professional cultures and perceptions of the probative value of evidence. When DNA evidence reaches court, it also challenges the perceived margins of critical assessment of the work and understandings of previous links in the chain of custody, like the criminal police, forensic experts and the public prosecution services. Given the apparent neutrality of judicial institutions, how do Portuguese judges perceive and value biological evidence? And how do judges see their articulation with other operators of the criminal justice system? An analysis of 14 interviews carried out with Portuguese judges reveals the challenges in the evaluation of biological evidence, which is characterised as a ‘safe haven’, grounded as it is on an indisputable scientific authority. The suggestion of the presence of a cultural rift emerges, which, taken with the work of other epistemic cultures, leads to biological evidence being seen as ‘ready-made evidence’ on its arrival in court, thus limiting the role of judges in its appraisal.

Resuscitating criminal courts after Covid-19: Trialling a cure worse than the disease

This article, focusing on the issue of custody time limits litigated under Covid-19 conditions, sets out how reasoned decisions to refuse to extend custody for unconvicted defendants excited the disapproval of senior judges such that fundamental changes were made to evidence, procedure and proof as well as effecting permanent manipulation of the composition of the adjudicating panels authorised to deal with such cases. This additionally raises fundamental questions about the administration and governance of the courts, the independence of the judiciary in decision-making and the basic utility of the presumption of innocence in such cases.

Psychiatric Evaluation in Chinese Criminal Proceedings:A Legal Perspective

Psychiatric evaluation is widely used in criminal cases to screen people with mental disorder because insanity can either exempt the offender from criminal responsibility or mitigate his/her criminal punishment. The operation of psychiatric evaluation in China used to carry a typical characteristic of civil law tradition, but recent reforms have strengthened the procedural safeguards for psychiatric evaluation and stressed the requirement of its presentation and examination in criminal trials. This article will explore how psychiatric evaluation is conducted, and how the expert opinion is presented and examined as evidence in criminal trials in China. Part I will give a historical overview of psychiatric evaluation in China's criminal cases. Part II will introduce the current legislation on psychiatric evaluation in China. Part III will explore problems with current legislation and practice. In this part, high-profile cases will be cited to illustrate loopholes in the psychiatric evaluation law and practical problems with the operation of evaluation. Potential solutions to these loopholes or problems will also be explored. Part IV will focus on the presentation and examination of psychiatrists’ expert opinion in criminal trials. Although expert witnesses are also required to testify before the court in China, very few of them take the stand in practice. This part will discuss why reforms kept failing and what should be done to bring expert witnesses to court. Psychiatrists are important expert witnesses; the discussion of live psychiatrists will shed light on the appearance of all the expert witnesses in Chinese criminal trials.

Special investigative measures: Comparison of the Serbian Criminal Procedure Code with the European Court of Human Rights Standards

This paper is focused on several important issues that deal with special investigation measures. The main perspective of the analysis is based on the ECtHR case law on this issue. Two issues are from primary interests: secret monitoring of communication and undercover investigator. Intensive ICT development enables various modern techniques and methods of crime investigation but also results in some new types of crime that could be committed using ICT. Expansion of the fundamental rights and their protection, especially in Europe, raised global awareness of the right to privacy and the need to protect it. Having that in mind, it seems that the main question that should be answered by legislator is: Where is the borderline between the right to privacy and the public interest to investigate or prevent crime and collect evidence? The undercover investigator falls under Article 6 of the Convention and there are different rules on the admissibility of such evidence. Serbian Criminal Procedure Law on some points is in line with ECtHR standards, but some very important provisions, as well as practice, are not.

Are all complainants of sexual assault vulnerable? Views of Australian criminal justice professionals on the evidence-sharing process

Cases of historic child assault typically rely on the complainant's narrative due to lack of corroborating evidence. Although it is important that complainants give their best evidence, concern has been expressed that evidence-sharing procedures are suboptimal. This study explored criminal justice professionals’ perspectives on the utility of introducing reforms to the evidence-sharing process. We interviewed judges, prosecutors, defence counsel and witness assistance officers ( N = 43) on the utility of regulating the questioning of complainants and of using video-recorded interviews as evidence-in-chief. Many professionals perceived that adult complainants of child assault were vulnerable and supported reforms to evidence-sharing. Primary objections to these reforms were the belief that all adult complainants should share evidence in the same way and the poor quality of investigative interviews. This study illuminates potential barriers to the implementation of reforms which would change how adult complainants of child assault give evidence.

Private communication between lawyers as evidence in a judicial process: A comparative journey

In professional negotiations between lawyers, it is usual to share information, data and documents that could be protected with legal privilege. This paper analyses, from a comparative perspective, the possible evidentiary use of the documents that a lawyer obtains from the opposing lawyer in a subsequent judicial process. A conflict is presented here between two fundamental procedural guarantees: The right to evidence of the party that possesses the documents and the right to defence and legal privilege of the party that delivered them in the prior negotiation to the lawsuit. The solution provided by different legal systems is therefore not always straightforward, because some legal systems do protect legal privilege and others protect the right to evidence, with different solutions for the rights put in balance here.

Combating the ‘myth of physical restraint’ in human trafficking and modern slavery trials heard in the Crown Court

The greatest hurdle to an effective criminal justice response to human trafficking is the prevalence of myths about how exploitation happens and who ‘counts’ as a genuine victim. This includes the myth that, to be a genuine victim, an individual must have been subject to some form of physical restraint. Previous work has demonstrated how this myth undermines trafficking prosecutions in various jurisdictions. It has demonstrated that, in the absence of physical restraint during their exploitation, victims are deemed to lack credibility. However, what is missing in the current body literature is a robust analysis of whether something should be done to address this issue. By engaging with the foundational principle of accurate fact-finding, this article argues that some form of regulation of cross-examination in the English and Welsh jurisdiction, with a view to preventing this myth from manifesting in trials, would be justified.

Witness Statements for Employment Tribunals in England and Wales: What are the ‘Issues’?

In England and Wales, Employment Tribunals (ETs) hear claims from persons who believe that an employer, or potential employer, has treated them unlawfully. Witness statements form part of the evidence considered by ETs, but research is lacking with regard to the methods used to produce ET witness statements. This study presents the findings from 40 semi-structured interviews with ET judges, panel members, employment lawyers (solicitors, barristers, advisers) and litigants. Our data revealed six themes: professional processes, enabling through case management, presentation preferences, challenges for litigants in person, availability and quality of resources, and lack of training. Participants felt that the quality of witness statements varied amongst those prepared by professional advisors and by litigants in person. Our interviews revealed almost no evidence of practitioner training on how best to prepare a witness statement. We make recommendations about guidance and training for those tasked with drafting witness statements.

Evaluating witness testimony: Juror knowledge, false memory, and the utility of evidence-based directions

Eyewitness evidence is often important in criminal cases, but false or misleading eyewitness evidence is known to be a leading cause of wrongful convictions. One explanation for mistakes that jurors are making when evaluating eyewitness evidence is their lack of accurate knowledge relating to false memory. This article examines lay beliefs relating to memory and ways in which they diverge from expert consensus. It identifies ways in which current directions provided to jurors in this area are likely to be deficient in influencing juror knowledge and in helping them apply that knowledge in a case context, and develops criteria that can be used to assess the likely effectiveness of directions. A new evidence-based training direction is designed based on these criteria, and tested in a mock jury study (N = 411). Results suggest that the proposed direction is more effective than a basic direction in influencing juror knowledge and facilitating the application of that knowledge to case facts.

Reported communication challenges for adult witnesses with intellectual disabilities giving evidence in court

Communication plays a key role in a witness's ability to give evidence and participate in the court process. Adults with intellectual disabilities (ID) can be negatively impacted by communication difficulties such as: limitations in recall abilities; suggestibility to leading questions; difficult question styles used by advocates; and unfamiliar language used within the court setting. Most research carried out on communication challenges for adults with ID, when giving evidence, has involved participants in psychology-based experimental methodology. In this study 19 court reports assessing actual witnesses (complainants and defendants) with ID, written by Registered Intermediaries in Northern Ireland, were analysed. A wide range of communication difficulties were identified for the adult witnesses. Difficulties resulting from communication used by their communication partner (typically the advocate in a court setting) were also described. A rich model of the challenges for both partners, in giving evidence and in cross-examination, is presented, extending previous research. This study highlights the need for research within UK courts to assess: how witnesses with ID are being questioned; the effectiveness of changes made to the court process to enhance communication; the impact of the court process and environment on communication and alternative question styles for advocates to use.