Disclosure Of Evidence Research Articles

Establishing the Circumstances of Civil Cases: Some Doctrinal and Practical Approaches

The paper analyzes certain provisions of civil procedural legislation in terms of their effectiveness as a means of establishing actual circumstances of civil cases by the court from the standpoint of doctrine and judicial practice. The authors examine the relationship between the presentation and disclosure of evidence, draw a conclusion about their close relationship, and their identification, sometimes admitted by judicial practice, is critically assessed. The question of the period for disclosure of evidence was investigated, in respect of which it was concluded that provisions of the Code of Civil Procedure of the Russian Federation, although not quite specific, but sometimes quite definitely allow this period to be established. Taking into account the stance of the Supreme Court of the Russian Federation, then authors propose a solution to the problem of the consequences of non-disclosure of evidence in a civil case. The paper analyzes individual norms and institutions that allow the court to establish the circumstances of civil cases without evidence or on the basis of explanations of the other party. It is concluded that the norm of the second sentence of Part 1 of Art. 68 of the Code of Civil Procedure of the Russian Federation is neither a legal fiction nor an evidentiary presumption. This is one of the manifestations of the action of the general rule for the distribution of the duty of proof. The authors support and justify the position that the norm of Part 31 of Art. 70 of the Arbitration Procedure Code of the Russian Federation is an evidentiary presumption, and the presumption not of fact, but of evidence. In relation to Part 3 of Art. 79 of the Code of Civil Procedure of the Russian Federation, it is concluded that establishment of the facts by the court by applying this norm does not mean obtaining true knowledge about them. Therefore, this provision of the civil procedure law is applied in judicial practice with extreme care.

Digital investigations: relevance and confidence in disclosure

The field of digital forensics has grown exponentially to include a variety of digital devices on which digitally stored information can be processed and used for different types of crimes. As a result, as this growth continues, new challenges for those conducting digital forensic examinations emerge. Digital forensics has become mainstream and grown in importance in situations where digital devices used in the commission of a crime need examining. This article reviews existing literature and highlights the challenges while exploring the lifecycle of a mobile phone examination and how the disclosure and admissibility of digital evidence develops.

CHILDRENS EVIDENCE IN CUSTODY DISPUTES CASES IN THE SHARIA COURTS

In the process of trial in court, evidence disclosure is essential to uphold justice. Basically, every party is qualified to provide evidence before the judge decides. In the case of child custody disputes, besides the statements by the mother and the father, statements from the child involved can help the court in making the right decision. According to Islamic law, children who have attained the age of mumayyiz can be given the opportunity to choose. In addition, their views can also be taken as a support evidence to help the court make a decision. This article will analyse childrens rights to express their views, particularly in the determination of child custody disputes. The debate also looks at current legal provisions and practices in the Sharia Court. The analysis found that judges approach in accepting childrens evidence varies. There are still no specific procedures that can be used as a guide by the Sharia Court. The differences include the methods of interviewing or taking recorded statements, the procedures applied and the location where statements are recorded.

РАЗВИТИЕ НОРМ О ПОДГОТОВКЕ ГРАЖДАНСКИХ ДЕЛ К СУДЕБНОМУ РАЗБИРАТЕЛЬСТВУ В ЦИВИЛИСТИЧЕСКИХ ПРЕЦЕССУАЛЬНЫХ КОДЕКСАХ РОССИЙСКОЙ ФЕДЕРАЦИИ

The article highlights the stages of development of legislation regulating preparatory procedural actions in civil cases in courts of general jurisdiction and arbitration courts. The author notes that the Decrees of Peter the Great had an important impact on setting the time limits for the performance of some procedural preparatory actions in the 18th century. The adoption of the Charter of Civil Procedure of 1864 consolidated preliminary written preparation as an important stage in the proceedings that carried out based on adversarial and equality of rights of the parties. The author comes to a conclusion that the stage of preparing the case for trial practically did not exist until 1929, since the 1923 Civil Procedure Code of the RSFSR reduced the essence of the preparation only to the judge’s right to collect necessary evidence for the resolve of the case at the request of the plaintiff and beyond the objections of the defendant. It is noted that the RSFSR Civil Procedure Code, adopted in 1964, also did not call the preparation of the case for trial a mandatory stage of the process; and only in the Resolution of the Plenum of the Supreme Court of the RSFSR of 19 March 1969 “On the Preparation of Civil Cases for Trial” preparation was indicated as independent stage and is obligatory in every civil case. The author emphasizes that the adoption in 2002 of the Civil Procedure Code of the Russian Federation and the Arbitration Procedure Code of the Russian Federation significantly changed the preparation of the case for trial, imparting an adversarial character to the preparatory actions. The legislative fundamentalization of this stage allowed the author to present the preparation of the case for trial as a system consisting of two interconnected subsystems (guided and regulatory). The author notes that a systemic approach to studying the preparation of cases for consideration makes it possible to identify the role of preparatory procedures in civil procedure, to regulate the interaction between the court and the parties, to predict possible results from preparatory procedures, and find out the balance between the purposes and aims of preparation at each stage of the proceedings. A comparative analysis of the norms of the Civil Procedure Code of the Russian Federation and the Arbitration Procedure Code of the Russian Federation, which regulate the rules on the disclosure of evidence, made it possible to come to the conclusion that it is inexpedient to stipulate in the Civil Procedure Code of the Russian Federation the obligation to disclose evidence without establishing measures of responsibility for its failure to comply. Attention is drawn to the inconsistency of the legislator, who defines Article 132 of the Code of Administrative Proceedings of the Russian Federation as “Aims of Preparing an Administrative Case for Trial”, but does not indicate any of them. The author offers a list of such aims. Noting the specifics of administrative proceedings, the author states that such a problem of preparing an administrative case for trial as reconciliation of the parties can be singled out with a certain degree of conditionality, since the court promotes the reconciliation of the parties if reconciliation is possible in this category of administrative cases. On the contrary, in civil and arbitration proceedings the central place in the modern model of preparatory procedures in the court of first instance should be occupied by two interrelated goals: the first is aimed at maximizing the possibilities of reconciliation of the parties, the second is aimed at the qualitative preparation of the case for consideration in court, in connection with which the importance of the stage of preparing the case for trial is growing, since in the event of conciliation or refusal of the claim, the goal of the proceedings can be achieved without trial. In her study of the problems of scientific understanding of the purposes and aims of both preparatory procedures and entire civil proceedings, the author comes to the conclusion that the effectiveness of judicial protection is directly dependent on the implementation of the targets based on constitutional provisions of civil, arbitration and administrative proceedings. Exploring foreign experience, the author points out that along with effective dispute resolution, a social function becomes an important component of the purpose of civil legal proceedings, without which domestic justice cannot do. In many ways, this should contribute to legislative consolidation of conciliation among the aims of civil, arbitration and administrative proceedings.

Quality assessment of global prostate cancer screening guidelines

Objective: To systematically review the quality of clinical practice guidelines for prostate cancer screening to serve as a reference for developing prostate cancer screening guidelines in China. Methods: We searched PubMed, Embase, Cochrane Library, China National Knowledge Infrastructure, Wanfang Data, and SinoMed with the term "prostate cancer" "prostate carcinoma" "prostate tumor" "screening" "early detection" "guideline" "recommendation" as keywords. The Appraisal of Guidelines for Research & Evaluation (AGREE) Ⅱ instrument and Reporting Items for Practice Guidelines in Healthcare (RIGHT) were used for critical appraisal. Results: A total of thirteen guidelines were included in this review. Evaluated by the AGREE Ⅱ instrument, ten were considered as A level. Two guidelines scored B level, and one was considered C level. Lowest mean domain scores were for stakeholder involvement (52.1%) and applicability (34.0%). Using the RIGHT checklist, we found that the low reporting quality of the thirteen guidelines could be attributable to incomplete disclosure of evidence (64.6%), funding, declaration and management of interest (44.2%), or other information (46.2%). Conclusions: No guidelines for prostate cancer screening was developed in China. The methodological quality of the guidelines in prostate cancer screening was good, which set a tone for the development of Chinese guidelines. However, all guidelines showed poor reporting quality.

Quality assessment of global breast cancer screening guidelines

Objective: To evaluate the quality of the published breast cancer screening guidelines to provide a reference for domestic studies in the future. Methods: PubMed, Embase, Cochrane Library, Web of Science, SinoMed, China National Knowledge Infrastructure, VIP, and Wanfang Data were searched to identify breast cancer screening guidelines on until August 2020. Two reviewers screened literature and extracted data independently. The Appraisal of Guidelines for Research & Evaluation Ⅱ(AGREEⅡ) and Reporting Items for Practice Guidelines in Healthcare(RIGHT) tools were used to evaluate the quality of the included guidelines. Results: A total of 15 breast cancer screening guidelines were included, of which seven were published in the United States, with publication years focusing on 2015 to 2019, and 11 guidelines had updated versions. "Rigour of development" (47.0%±22.1%) and "Applicability" (44.0%±15.1%) of AGREEⅡ scored lower than other domains. "Review and quality assurance" (46.7%±39.9%) and "Funding, declaration, and management of interests" (41.7%±24.4%) of RIGHT were reported poorer than others. There were six guidelines recommended and another nine recommended with modifications based on the overall AGREEⅡ score. There were four guidelines with a good level, and another 11 were with a moderate level of RIGHT. The National Comprehensive Cancer Network published the best overall quality guidelines in 2018 (AGREEⅡ: 83.3%, RIGHT: 80.0%) and by the American Cancer Society in 2015 (AGREEⅡ: 83.3%, RIGHT: 85.7%). Conclusion: The quality of breast cancer screening guidelines was predominantly of moderate quality, and greater attention should be paid to the guideline development process and quality control of the guidelines.

Disclosure of electronic evidence under U.S. law

Disclosure of electronic evidence under U.S. law

Indonesia’s Criminal Justice System on Trial

This article discusses flaws of Indonesia’s criminal procedural laws through an analysis of the Jessica Wongso case. After a televised trial in 2016, Wongso was convicted of murdering her friend Salihin, by putting cyanide in her coffee at a Jakarta café, and sentenced to 20 years’ imprisonment. The conviction was upheld on appeal in late 2018. The police obtained very limited evidence against Wongso, leaving prosecutors unable to determine the cause of Salihin’s death, much less to prove convincingly that Wongso was the perpetrator. By contrast, the defense mustered significant exculpatory evidence. But the judges, at first instance and on appeal, took an uncritical view of the prosecution evidence and ignored the defense case. Throughout the investigation and trial, Wongso was not accorded the presumption of innocence, partly because of Indonesia’s flawed or absent formal legal infrastructure for arrests, detentions, searches, and disclosure of prosecution evidence to the defense. It is also because highly prejudicial press coverage before and during trials is not prohibited and because judges lack professionalism. All this suggests a strong need for reform—not only to Indonesia’s criminal procedure law, but also to the way it is applied in practice.

Voluntary Disclosure of Evidence in Plea Bargaining

Voluntary Disclosure of Evidence in Plea Bargaining

Unintelligent Decision-Making?

The disclosure of evidence, primarily from the prosecutor to the defense (i.e., discovery) is key to a fair and just legal system. Restrictive discovery policies have been criticized for contributing to innocent defendants pleading guilty (Alkon, 2014) and to uninformed plea decisions (Friedman, 1971). Open-file policies, in which prosecutors broadly share evidence with the defense, are a leading reform to address these issues. This study investigated the impact of guilt and access to discovery information (with or without exculpatory evidence) on plea decisions. We hypothesized that, in comparison to their counterparts, participants who had access to all of the evidence (i.e., those in open-file condition) and participants who were innocent would rate the evidence against them as significantly weaker, their probabilities of conviction at trial as significantly lower, and would be less likely to take the plea deal. We also hypothesized that ratings of evidence strength and probability of conviction would mediate expected relations between the plea decision and conditions. One-hundred participant-defendants were randomly assigned to open- vs. closed-file and guilt vs. innocence conditions, and asked to review case materials that either contained full or partial discovery. They were then asked to rate the strength of the evidence against them, their probability of conviction, and to accept or reject a plea offer in a hypothetical case. Defendant guilt and access to discovery information impacted perceived evidence strength, which subsequently impacted plea decision-making. Our findings indicate that access to discovery information indirectly impacted defendants’ plea decisions.

Mediation and Appropriate Dispute Resolution

2019 was a significant year for mediation. On 7 August 2019, 46 states – an unprecedented number – came together in Singapore to sign the United Nations Convention on International Mediated Settlement Agreements Resulting from Mediation (“Singapore Convention”). The Convention, which comes into force on 12 September 2020, provides a legal framework for the recognition and enforcement of mediated settlement agreements across borders and thereby addresses one of the major criticisms of international mediation, namely, the lack of an internationally recognised expedited enforcement mechanism. The Singapore Convention aims to be for mediation what the Convention on the Recognition and Enforcement of Foreign Arbitral Awards is for arbitration. The Singapore Convention casts an even brighter spotlight on Singapore as a mediation and dispute resolution hub; with this attention comes increased interest in Singapore’s jurisprudence on mediation and other forms of appropriate dispute resolution (“ADR”). It is therefore timely to introduce a chapter on mediation and ADR to the Ann Rev. In terms of scope, this chapter will not deal with arbitration unless it forms part of a mixed mode dispute resolution process, which has mediation as an element. Further, the authors note that the body of jurisprudence on mediation and ADR-related subject matter is evolving. Thus, the categories of cases in this chapter will develop accordingly. In this inaugural chapter, the authors offer a review of cases in three categories. First, cases on the recognition and enforcement of negotiated and/or mediated settlement agreements are examined. Next, cases which address issues in mediation and ADR practice and ethics are reviewed. Finally, the authors consider cases dealing with civil procedure aspects of mediation, including disclosure of mediation evidence and the apportionment of costs.

AG Hogan advises CJEU to rule that disclosure of evidence in court proceedings is not a communication to the public

Abstract Opinion of Advocate General Hogan in Case C-637/19 BY v CX, EU:C:2020:650, 3 September 2020 In his Opinion on 3 September 2020, Advocate General (AG) Hogan advised the Court of Justice of the European Union (CJEU) to rule that the electronic transmission by a party to proceedings of protected materials as evidence to a court does neither constitute a communication nor a distribution to the public under, respectively, Articles 3(1) and 4(1) of Directive 2001/29 (the InfoSoc Directive).

The Economic Succession Doctrine in Private Enforcement of EU Competition Law: 'Nothing Extraordinary' After Skanska Industrial?

The article analyses the recent judgment of the Court of Justice of the European Union (CJEU) in Skanska Industrial. In its preliminary ruling, the CJEU recognised for the first time the so-called “economic succession doctrine” in damage claims concerning a breach of EU competition rules. In the judgment, the CJEU relied on its well-established case law. From this point of view, the ruling is “nothing extraordinary”. Nevertheless, the judgment represents an important milestone that contributes to the development of damage claims in Europe. The article first discusses the origins of the economic succession doctrine, which derives from the broad concept of “undertaking” developed by the CJEU case law and the so-called “single economic entity” doctrine. Afterwards, the article discusses the Skanska Industrial case, in particular by comparing the opinion of Advocate General (AG) Wahl with the CJEU ruling in the case. The article concludes by discussing the potential consequences of the CJEU ruling in Skanska Industrial on private enforcement of EU competition law, as well as the questions that remain open after the judgment. After Skanska Industrial, it remains unclear how the disclosure of evidence will take place in practice in the context of a damage claim following a corporate restructuring. Secondly, the limits of the economic succession doctrine remain unclear: it is unclear when a corporate restructuring indeed leads to the establishment of a “new” undertaking, free from the antitrust liability acquired by its predecessor. Finally, it remains unclear whether Skanska Industrial case law could also be extended to other remedies besides damage claims, such as actions requesting a court injunction, compensation for unjust enrichment, or a declaration that a contract is null and void. The article argues that in the coming years the CJEU will probably be called to clarify SkanskaIndustrial case law in order to answer these remaining questions.

ОКРЕМІ АСПЕКТИ ПРАВОВОГО РЕГУЛЮВАННЯ РОЗКРИТТЯ ДОКАЗІВ ЗА ЦИВІЛЬНИМ ПРОЦЕСУАЛЬНИМ ЗАКОНОДАВСТВОМ

Статтю присвячено дослідженню окремих аспектів правового регулювання розкриття доказів за цивільним процесуальним законодавством. З’ясовується чинне нормативне регулювання розкриття доказів та історія становлення цього інституту. Аргументується позитивний вплив інституту розкриття доказів на ефективність цивільного судочинства, розвиток змагальності, сприяння процесуальній співпраці та примиренню сторін, забезпечення усім учасникам справи завчасного отримання інформації.
 Проводиться аналіз співвідношенню понять «докази» і «засоби доказування». Наголошується на тому, що застосування терміну «розкриття доказів» цілком можливе щодо засобів доказування, однак, виникають певні проблеми при застосуванні цього поняття до доказів у розумінні фактичних даних, інформації.
 З’ясовується дія правил про розкриття щодо різних видів доказів. Підкреслюється, що речові докази також вимагають розкриття, однак визначені в законі правила не є придатними для цього. Пропонується ознайомлення з речовими доказами у місці їх знаходження. Пропонується також надання фотографій відповідних речових доказів одночасно з наданням копій інших доказів. Підкреслюється, що особливі складності стосуються розкриття таких засобів доказування як показання свідків. Доводиться, що розкриття засобів доказування має обмежитись лише повідомленням про намір використовувати такі засоби доказування. Разом з тим, слід передбачити в законодавстві право учасників справи опитати свідків, а також інших учасників справи за їх згодою.
 Акцентується увага на тому, що окремі засоби доказування отримуються судом безпосередньо : витребовуватись судом за клопотанням учасників справи, отримуватися як матеріали виконаного судового доручення, як висновок призначеної судом експертизи. Вказується на те, що доцільно зобов’язати суд негайно повідомити про їх отримання учасників справи, та надати можливість з ними ознайомитися. Також висловлюється критика використаного в законі терміну «завчасно» для регламентації строків розкриття доказів. Тому видається доцільним встановити більш чітку межу, наприклад, не менше ніж за три дні до початку розгляду справи по суті. Окреслюються перспективи подальших досліджень розкриття доказів в цивільному судочинстві.

Due Process in Antitrust Enforcement Through the Lens of Comparative Law

Due process in antitrust enforcement has significant implications for better professional and accurate enforcement decisions. Not only can due process spur economic growth, raise government credibility, and limit the abuse of powers according to law, it also promotes competitive reforms in monopolized sectors and curbs corruption. Jurisdictions learn from the best practices in the investigation process, decisionmaking process, and the announcement and judicial review of antitrust enforcement decisions. By comparing the enforcement policies of China, the European Union, and the United States, this article calls for better disclosure of evidence, participation of legal counsel, and protection of the procedural and substantive rights of the respondent in the investigation process. In conducting evidence review and arriving at punitive decisions, the enforcement agency should establish a separation between investigatory and adjudicatory functions. Finally, the issued punishment decision should contain more comprehensive information and be subject to judicial review of the court.

Reducing Unjust Convictions: Plea Bargaining, Trial, and Evidence Disclosure

AbstractWe develop a dynamic model of a criminal case, from arrest through plea bargaining and (possibly) trial, allowing for the potential discovery of exculpatory evidence by prosecutors (who choose whether to disclose it) and defendants. We consider three regimes: (1) no disclosure required; (2) disclosure only required before trial; and (3) early disclosure required from arrest onward. These regimes have complex distributional consequences for the defendants. We find that innocent defendants ex ante prefer early disclosure whereas guilty defendants prefer disclosure only before trial. We also explore some of the social costs attributable to the regimes (JEL K4, D82, D73).

Evidence of the Financial Audit

Evidence is an argument that justifies the truth or falsity of a subjective opinion or assertion. Characteristics of audit evidence directly impact the obtaining process of sufficient audit evidence as well as determine the final audit decision regarding fairness and truthfulness of financial reporting. The purpose of the article is to identify the material aspects of evaluating audit evidence and to define the concept of the financial statement‘s audit evidence. The research methods applied in the article are comparative analysis and synthesis of Lithuanian and foreign scientific literature, interpretation, critical thinking and systematization of financial audit laws and regulations. Furthermore, the article examines the concept of financial audit evidence, its characteristics and criteria of reliability as well as disclosure of material audit evidence.

Risk Preferences and Incentives for Evidence Acquisition and Disclosure

Abstract Civil disputes feature parties with biased incentives acquiring evidence with costly effort. Evidence may then be revealed at trial or concealed to persuade a judge or jury. Using a persuasion game, we examine how a litigant’s risk preferences influence evidence acquisition incentives. We find that high risk aversion depresses equilibrium evidence acquisition. We then study the problem of designing legal rules to balance good decision making against the costs of acquisition. We characterize the optimal design, which differs from equilibrium decision rules. Notably, for very risk-averse litigants, the design is “over-incentivized” with stronger rewards and punishments than in equilibrium. We find similar results for various common legal rules, including admissibility of evidence and maximum awards. These results have implications for how rules could differentiate between high risk aversion types (e.g., individuals) and low risk aversion types (e.g., corporations) to improve evidence acquisition efficiency.

Main Reasons for the Crisis in the United States Civil Litigation in the Second Half of the Twentieth — Early Twenty-First Century

In the 1970s and 1980s, a crisis of the judicial system (litigation explosion) broke out in the United States. It manifested itself in a multiple increase in the number of appeals to the courts, the duration of cases, and the legal expenses of the parties. Under the pressure of the idea of reducing the burden on the judicial system, the US civil procedure undergone changes. This paper is a part of a larger study of the nature of these transformations. Thus, the author analyzes the causes and factors that contributed to the development of this crisis. It is established that they are largely related to the sphere of civil procedure. In particular, these are features of the distribution of legal costs between the parties to the dispute — the so-called American rule, which does not impose the legal costs of the opponent on the losing party and therefore does not prevent the presentation of obviously unfounded claims (as in the case of the "loser pays" rule). The possibility of a contingency fee contract between the lawyer and the plaintiff, combined with other factors, led to the emergence of a huge industry based on damages, including class actions. The 1938 Federal Rules of Civil Procedure significantly simplified the requirements for a claim, which also contributed to an increase in the number of appeals. Abuse by the parties during the evidence disclosure procedure became a significant problem, since it is during this procedure that the parties incur the maximum costs. Identifying the factors that contributed to the development of the crisis will allow us to better understand the essence of the changes that the US civil procedure has undergone in recent decades.

Implementasi Hermeneutika Amina Wadud atas Bias “Politik Gender” dalam Syari’at: Rekonstruksi Aurat pada Pria

Political Gender bias hints at the marginality of women under the control of men. Women seem to never move from the shackles of male dominance in all aspects, not least Syari’at religion. Imam Mazhab organize the woman’s nakedness on all parts of the body except the face, palms and soles of the feet. And the opposite, men strip the body, except between the navel to the knee. Ideal moral distortion is clearly appear at this point, where the prevention of adultery against the fornication is contrary to the facts. Surveys prove that 7 parts of a man’s body which not used in the limits of the genitals, potentialy stimulate women sexual. Thus, the reconstruction of the male aurat is necessary for potential change in Gender Politics bias.This study seeks to launch a new discourse for overcome Gender Political bias in Shari’ah. The study is based on hermeneutics of suspicious that initiated by Amina Wadud as one of the initiators of gender equality. Methods of data analysis are qualitative, referring to previous research results and mixed with other data sources. Three variables are presented in this study: first, the explanation of Amina Wadud’s hermeneutics. Second, the disclosure of gender-bias evidence in Shari’ah. Third, the implementation of Amina Wadud’s Hermeneutic on the Political bias in Shari’ah, which contains the reconstruction offer on the Male aurat. The novelty side of the study lies in the reconstruction of male aurat and the use of Amina Wadud’s Hermeneutic as a blow to the analysis of male problems, where prior research has only focused on women’s issues.