Current Issues in Evidence and Procedure - Comparative Comments from a Continental Perspective

Abstract

In this article, Professor Nijboer discusses three dimensions of generality in evidence and procedure: (1) generality of fundamental issues in evidence and fact-finding and insights about them across national borders, (2) generality of issues of criminal evidence across various relevant disciplines (and professions), and (3) generality with respect to specific issues of criminal evidence and its principles and rules addressing the various probanda of specific crimes (murder, theft, rape, arson, negligence causing a serious traffic accident, et cetera). He then comments on the contributions to this anniversary issue from a continental perspective, with frequent references to case law of the European Court of Human Rights (ECHR). Professor Nijboer finds that while legal scholars are increasingly communicating with legal scholars in other countries and scientists from other fields, there is a simultaneous counter-tendency toward adoption of crime-specific rules of substantive law and evidentiary measures for specific kinds of crime (such as protection of witnesses in rape cases, where the protection complicates the fact-findings process). He concludes from this that there is a tension between greater generality in regard to the first two dimensions and increasing specificity in regard to the third. In his final paragraphs, he turns to W.L. Twining's description of the development of evidentiary theory, in which the same tension between dimensions can be seen. The European Union's increasing legal harmonization will probably promote further discussion of evidentiary theory across disciplinary, professional, and national boundaries.